King Furniture Australia Pty Limited v Dare Gallery Pty Limited

[2007] FCA 1394

.FEDERAL COURT OF AUSTRALIA

King Furniture Australia Pty Limited v Dare Gallery Pty Limited [2007] FCA 1394

KING FURNITURE AUSTRALIA PTY LIMITED v DARE GALLERY PTY LIMITED ACN 080 914 629, DARE GALLERY QLD PTY LIMITED ACN 119 645 368, DARE GALLERY (BRISBANE) PTY LIMITED ACN 084 354 030, DARE GALLERY SA PTY LIMITED ACN 119 645 386, DARE GALLERY VIC PTY LIMITED ACN 119 64 395 AND DARE GALLERY ADMINISTRATION PTY LIMITED ACN 119 645 359
NSD 1727 OF 2007

COWDROY J
31 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1727 OF 2007

BETWEEN:

KING FURNITURE AUSTRALIA PTY LIMITED
Applicant

AND:

DARE GALLERY PTY LIMITED ACN 080 914 629
First Respondent

DARE GALLERY QLD PTY LIMITED ACN 119 645 368
Second Respondent

DARE GALLERY (BRISBANE) PTY LIMITED ACN 084 354 030
Third Respondent

DARE GALLERY SA PTY LIMITED ACN 119 645 386
Fourth Respondent

DARE GALLERY VIC PTY LIMITED ACN 119 64 395
Fifth Respondent

DARE GALLERY ADMINISTRATION PTY LIMITED ACN 119 645 359
Sixth Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	31 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT NOTES:

1.The respondents’ undertaking that they will not until 5 pm on 21 September 2007 or until further order of the Court, whichever is earlier, cause to be published or broadcast, or take any steps to cause to be published or broadcast, any advertisements referring to the applicant or any products of the applicant.

THE COURT ORDERS THAT:

1.The hearing of the applicant’s Application and Notice of Motion be adjourned to be heard at 10.15 am on 21 September 2007 or as soon as possible thereafter.

2.The applicant file and serve its evidence by 5 pm on 31 August 2007.

3.The respondents file and serve their Statement of Defence and any affidavit in reply by 4 pm on 13 September 2007.

4.The proceedings to be listed before the Judge having the conduct of these proceedings at 9.30 am on 14 September 2007 for any further directions.

5.Costs be reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1727 OF 2007

BETWEEN:

KING FURNITURE AUSTRALIA PTY LIMITED
Applicant

AND:

DARE GALLERY PTY LIMITED ACN 080 914 629
First Respondent

DARE GALLERY QLD PTY LIMITED ACN 119 645 368
Second Respondent

DARE GALLERY (BRISBANE) PTY LIMITED ACN 084 354 030
Third Respondent

DARE GALLERY SA PTY LIMITED ACN 119 645 386
Fourth Respondent

DARE GALLERY VIC PTY LIMITED ACN 119 64 395
Fifth Respondent

DARE GALLERY ADMINISTRATION PTY LIMITED ACN 119 645 359
Sixth Respondent

JUDGE:	COWDROY J
DATE:	31 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By Notice of Motion filed on 29 August 2007 the applicant sought urgent interlocutory relief in respect of the alleged misleading and deceptive conduct of the respondents regarding the publication and broadcast of certain advertisements.

2. Having heard counsel for the applicant this morning, the Court is satisfied that this matter should be dealt with promptly. Such conclusion has been reached in consequence of the submission that the relief sought is not for damages but rather for prompt re-advertising to correct any misleading impression that might be created in the mind of the public resulting from the alleged misleading and deceptive advertisements published and broadcast by the respondents. If the Court finds in the applicant’s favour delayed relief may be ineffective to provide a proper remedy for such breach.

3. The respondents, without admission, do not oppose the making of an interlocutory injunction and have provided an undertaking that they will not publish nor broadcast, nor take any step to have published or broadcast, any advertisements making reference to the applicant or their products.

4. The only issue between the parties is the time before which this matter should come on for hearing and whether such hearing is to be in respect of the motion only or in respect of the final determination of the application. The factual issues are narrow and it does not seem necessary to have a separate hearing on the motion. Such course will only prolong the preparation for the hearing and incur avoidable expense.

5. The Court is satisfied that this matter should be dealt with promptly. The applicant’s evidence which will be complete by today can be considered during the next 13 days by the respondents. This will provide adequate time for the respondents to provide their statement of defence and any affidavits in defence by the next directions hearing listed at 9.30 am on 14 September 2007.

6. The Court makes orders as above.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       31 August 2007

Counsel for the Applicant:	A.S. Bell SC
Solicitor for the Applicant:	Colin Biggers & Paisley
Solicitor for the Respondent:	Bolden Lawyers
Date of Hearing:	31 August 2007
Date of Judgment:	31 August 2007