Nirvaran Herbal Private Ltd v Keenmind Pty Ltd
[2001] FCA 1850
•18 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Nirvaran Herbal Private Ltd v Keenmind Pty Ltd [2001] FCA 1850
NIRVARAN HERBAL PRIVATE LTD & ANOR v KEENMIND PTY LTD & ORS
N 1218 of 2001
EMMETT J
18 SEPTEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1281 OF 2001
BETWEEN:
NIRVARAN HERBAL PRIVATE LIMITED
FIRST APPLICANTVELVETTE INTERNATIONAL PHARMA PRODUCTS LIMITED
SECOND APPLICANTAND:
KEENMIND PTY LIMITED
ACN 081 038 235
FIRST RESPONDENTOLGA SAWTELL
SECOND RESPONDENTQUANTUM GLOBAL AUSTRALIA PTY LIMITED
THIRD RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
18 SEPTEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicants provide security in the sum of $17,500 in a manner satisfactory to the Registrar
2.The proceedings be stayed until such time as that security has been provided.
3.The matter be listed for directions before Emmett J on Friday 21 September 2001.
4.The third respondent have leave to file a motion for security for costs together with any affidavits in support returnable before Emmett J on 21 September 2001.
5.Time for service of the motion together with any affidavits in support be abridged to 10.00 am Wednesday 19 September 2001.
6.The costs of today be paid by the applicants.
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
N 1281 OF 2001
BETWEEN:
NIRVARAN HERBAL PRIVATE LIMITED
FIRST APPLICANTVELVETTE INTERNATIONAL PHARMA PRODUCTS LIMITED
SECOND APPLICANTAND:
KEENMIND PTY LIMITED
ACN 081 038 235
FIRST RESPONDENTOLGA SAWTELL
SECOND RESPONDENTQUANTUM GLOBAL AUSTRALIA PTY LIMITED
THIRD RESPONDENT
JUDGE:
EMMETT J
DATE:
18 SEPTEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These proceedings were commenced on 20 August 2001 by two applicants, each of which is incorporated in India. The applicants seek declarations that conduct of the respondents has contravened s 52 of the Trade Practices Act 1974 and s 61 of the Trade Marks Act 1995. They claim orders restraining the respondents from engaging in conduct that is alleged to constitute such contraventions.
The matter first came before Gyles J on 28 August 2001. On 29 August 2001, Gyles J made directions for the filing and service of affidavits. The matter was stood over to 4 October 2001. The matter, however, was reactivated and came before me on 12 September 2001 when the applicants were granted leave to file an amended application. The return date for the amended application was fixed as 14 September 2001. I also fixed the application, insofar as it sought interlocutory relief, for hearing on 18 September 2001. On 14 September 2001 directions were given by consent and orders were made as follows:
“1. Leave to the respondents to file and serve any motion seeking security for their costs returnable on 18 September 2001.
2. Time for service of any such motion be abridged to 4.00pm on 14 September 2001.
3. Respondents to file and serve any affidavits upon which they rely on or before 17 September 2001.
4. Costs of today be reserved.”
The intention was that the applicants’ claim for interlocutory relief would be dealt with today. In addition, any application for security would be dealt with today. When the matter was called on for hearing, counsel for the applicants indicated that he was not in a position to proceed with the interlocutory application, because of the absence of the principals of the applicants. He had expected that they would arrive in Australia shortly after 14 September but, for reasons that are not fully explained, they have not arrived. Part of the explanation is that one of the principals is ill. There is no explanation as to why the other one was not able to arrive, although he has been in telephone communication with those instructing counsel for the applicants.
The applicants sought an adjournment of the motion for security for costs by reason of the absence of the principals of the applicants. I declined that adjournment on the basis that there did not appear to be any specific matter upon which the applicants needed to give instructions and that there was no satisfactory explanation as to why instructions could not have been given by telephone.
Counsel for the third respondent also intimated a desire to apply for security for costs. However, in the absence of compliance with the directions that I gave on Friday, I indicated that I would not entertain any application made orally on behalf of the third respondent.
The first and second respondents rely on evidence of Mr Christopher Mark Sides concerning the likely costs of the proceeding. His affidavit of 14 September 2001 contains an estimate of costs of the first and second respondents, if the matter were to proceed to final hearing, of $53,900. There has been no challenge to that estimate or to the rates of charging that go to make up the estimate.
In the circumstances it seems to me to be appropriate to order that the applicants provide security for costs. It seems to be common ground that they have no presence in Australia and therefore have no assets from which any order for costs could be satisfied. I do not consider that it is appropriate at this stage to require the applicants to provide security in the full amount of the respondents’ estimated costs. I am also mindful of the application foreshadowed on behalf of the third respondent. There is no connection it appears, other than a commercial connection, between the first and second respondents on the one hand and the third respondent. It is likely, therefore, that there will be two sets of respondents' costs that will be incurred, if the applicants are unsuccessful.
In the light of an estimate of some $50,000 for the total hearing, it seems to me that the appropriate course is to order that the applicants provide security in the sum of $17,500 in the first instance. That is without prejudice to any entitlement on the part of the respondents to seek further security as and when that is appropriate, having regard to the progress of the proceeding. It seems to me to be appropriate, in view of the intimation that the applicants wish to seek interlocutory relief, that the sum of $17,500 be provided as security for costs for the first and second respondents. It is my intention that the same amount would, if similar evidence is provided on behalf of the third respondents, be ordered as security for the third respondents.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 15 January 2001
Counsel for the Applicant: Mr W Hodgekiss Solicitor for the Applicant: Stephen Noss & Associates Counsel for the First and Second Respondent: Mr J Loofs Solicitor for the First and Second Respondent: Pigott Stinson Ratner Thom Counsel for the Third Respondent: Ms C E Adamson Solicitor for the Third Respondent: Gilbert & Tobin Date of Hearing: 18 September 2001 Date of Judgment: 18 September 2001
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