Jackel International Limited v Jackel Pty Limited (No 2)
[2012] FCA 549
•17 May 2012
FEDERAL COURT OF AUSTRALIA
Jackel International Limited v Jackel Pty Limited (No 2) [2012] FCA 549
Citation: Jackel International Limited v Jackel Pty Limited (No 2) [2012] FCA 549 Parties: JACKEL INTERNATIONAL LIMITED, SANGENIC INTERNATIONAL LIMITED and MAYBORN ANZ PTY LTD (ACN 154 703 134) v JACKEL PTY LIMITED (ACN 128 984 707), JACKEL TRADE MARKS PTY LTD (ACN 128 984 690) and JACKEL ANZ PTY LIMITED (ACN 133 251 546) File number: VID 1467 of 2011 Judge: NORTH J Date of judgment: 17 May 2012 Date of hearing: 17 May 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicants: Ms E Strong SC Solicitor for the Applicants: Corrs Chambers Westgarth Counsel for the Respondents: Ms J Baird SC Solicitor for the Respondents: Chrysiliou Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1467 of 2011
BETWEEN: JACKEL INTERNATIONAL LIMITED
First ApplicantSANGENIC INTERNATIONAL LIMITED
Second ApplicantMAYBORN ANZ PTY LTD (ACN 154 703 134)
Third ApplicantAND: JACKEL PTY LIMITED (ACN 128 984 707)
First RespondentJACKEL TRADE MARKS PTY LTD (ACN 128 984 690)
Second RespondentJACKEL ANZ PTY LIMITED (ACN 133 251 546)
Third Respondent
JUDGE:
NORTH J
DATE OF ORDER:
17 MAY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The trial dated fixed for 24 July 2012 is vacated. The respondents’ interlocutory application filed 14 May 2012 is otherwise dismissed.
THE COURT ORDERS BY CONSENT THAT:
2.Confidential Annexure MGS9 to the affidavit of Matthew Guy Swinn sworn on 16 May 2012 be kept confidential (including not being made available for inspection on the Court file without an order of the Court) and not made available to anyone other than the Court and the Respondents’ lawyers (upon the provision of confidentiality undertakings in a form agreed between the parties).
THE COURT FURTHER ORDERS THAT:
3.There be no order as to costs.
4.The directions hearing listed for 25 June 2012 be vacated and relist for 10.15 am on 23 July 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1467 of 2011
BETWEEN: JACKEL INTERNATIONAL LIMITED
First ApplicantSANGENIC INTERNATIONAL LIMITED
Second ApplicantMAYBORN ANZ PTY LTD (ACN 154 703 134)
Third ApplicantAND: JACKEL PTY LIMITED (ACN 128 984 707)
First RespondentJACKEL TRADE MARKS PTY LTD (ACN 128 984 690)
Second RespondentJACKEL ANZ PTY LIMITED (ACN 133 251 546)
Third Respondent
JUDGE:
NORTH J
DATE:
17 MAY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The respondents seek a number of orders, including that the trial date fixed by the Court for 24 July 2012 be vacated.
As identified in discussions with counsel during the course of today’s hearing, the resolution of the application to vacate the trial date comes down, in the end, to a balance between two competing considerations. The first is the claim by the respondents that the time between the filing of the last piece of evidence and the commencement of the trial is six business days or approximately 10 days including two weekends. The respondents’ solicitors contend that this time period is too constrained, in all the circumstances, to allow them to properly prepare for the case.
The second consideration is the applicants’ contention that the delay which would be occasioned if the trial date were vacated would cause them commercial disadvantage. In the event that the trial does not proceed on 24 July 2012, the high likelihood, given the state of listing in my docket, is that this matter would not be heard before at least the early part of next year.
Various other considerations were raised by the parties but in the end these seem to be the two matters of importance which need to be considered to determine the application to vacate the trial date.
The time between the filing of the respondents’ evidence in reply and the commencement of the trial is short. Ms Strong SC, who appears on behalf of the applicants, nonetheless says that most of the work done in the last stages would be done by the applicants rather than the respondents. There is force in what she says. However, I place greater emphasis on the opinion expressed by the solicitors for the respondents that they will be overly taxed by the shortness of the period.
Whilst it would not be right to accept, uncritically, the views of practitioners in the Court on such matters, nonetheless such opinions deserve respect and due weight.
In support of the applicants’ countervailing contention, namely the commercial prejudice which would flow from the trial date being vacated, the applicants rely on a confidential annexure to the affidavit of Matthew Guy Swinn sworn on 16 May 2012. This evidence demonstrates that there are a number of retailers who intend to deal with the applicants, some of them somewhat reluctantly, and then there are others who will not deal with the applicants until the litigation resolves the issues between the parties. There is undoubtedly a commercial advantage in the matter being resolved earlier rather than later. However, this evidence does not establish a strong commercial imperative for an early hearing of the matter.
If the commercial position were to change significantly, such that the need for a hearing became urgent, then the applicants have liberty to return to the Court to place before it such matters as might induce the Court to bring forward the trial date. The evidence at the moment does not satisfy me that such a course is necessary.
Consequently, balancing the two most significant factors against each other, the need to accord to the respondents a proper time period for the preparation of their case warrants the present listing being vacated.
Other applications were made by the respondents, including that the matter be transferred to Sydney. In view of the deferral of the trial, it is unlikely that the respondents press that application but, in the event that they do, then it should be refused. The management of this matter is almost completed and it would be wrong to transfer a matter so advanced in management to another judge in another city unless there were strong reasons for doing so. The reasons provided, namely the location of the respondents’ witnesses and solicitor, in all of the circumstances of this case, do not justify such an order.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 28 May 2012
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