PS&M Pty Ltd v Elixir Marketing Pty Ltd - [2008] FMCA 1331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PS&M PTY LTD v ELIXIR MARKETING PTY LTD

[2008] FMCA 1331

TRADE PRACTICES – Misleading and deceptive conduct.

PRACTICE & PROCEDURE – Adjournment – principles – prejudice and case management.

Federal Magistrates Act 1999 (Cth), ss.3, 14, 42 and 18
Federal Magistrate Court Rules 2001 (Cth), r.1.03

Trade Practices Act 1974 (Cth), ss.52, 86A and 86AA

Goodall v Nationwide News [2007] FMCA 218
Mahmoud v The Owners’ Corporation Strata Plan 811 (No.2) [2006] FMCA 1711
Myers v Myers [1969] WAR 19
Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766
The State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146

Applicant:

PS&M PTY LTD (TRADING AS ELIXIR MARKETING GROUP)

Respondent:

ELIXIR MARKETING PTY LTD

File Number:

PEG 55 of 2008

Judgment of:

Lucev FM

Hearing date:

22 September 2008

Date of Last Submission:

22 September 2008

Delivered at:

Perth

Delivered on:

22 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr Vogt

Solicitors for the Applicant:

Vogt Graham Lawyers

Counsel for the Respondent:

Ms Parker

Solicitors for the Respondent:

Salter Power

ORDERS

The time for the Applicant to file and serve any affidavits be extended to 30 September 2008.
The time for which the Respondents file and serve any affidavits be extended to 10 October 2008.
Costs be in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 55 of 2008

PS&M PTY LTD (TRADING AS ELIXIR MARKETING GROUP)

Applicant

And

ELIXIR MARKETING PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore - edited and revised from the transcript)

Introduction

The substantive application in these proceedings seeks relief in the Court’s trade practices jurisdiction under ss. 86A and 86AA of the Trade Practices Act 1974 (Cth)[1] with respect to alleged misleading and deceptive conduct under s.52 of the TP Act, and also in the Court’s associated jurisdiction under s.18 of the Federal Magistrates Act 1999 (Cth)[2] in relation to alleged passing off.
[1] “TP Act”.
[2] “FM Act”.
The proceedings were commenced by way of application and statement of claim filed on 9 April 2008.

Adjournment application

By correspondence forwarded to the Court earlier today, the respondent sought to further vacate existing orders of the Court, including mediation and hearing dates. The letter is in the following relevant terms:
We write to seek to vacate the mediation conference listed for this matter on 23 September 2008 and to extend the milestones ordered by Magistrate Lucev on 15 August 2008.[3] A copy of the minute of consent orders signed by the parties is attached.
The principal reason why the parties seek to vacate the mediation conference and extend the milestones is due to the fact that they are still engaged in informal negotiations which may result in a resolution of the matter. The parties are anxious not to incur additional legal costs, whilst that informal process is underway.
The parties recognise that there have been previous orders vacating a mediation conference listed for 14 August 2008…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1331
Decision Date: 22 September 2008

CaseChat Overview and Summary

PS&M Pty Ltd, the applicant, brought a claim against Elixir Marketing Pty Ltd, the respondent, for misleading and deceptive conduct under the Australian Consumer Law. The case was heard in the Federal Circuit Court of Australia. The applicant sought an injunction and damages for the respondent’s alleged actions which were deemed to contravene the law by misleading consumers regarding certain products. The primary issue the court had to decide was whether the respondent had engaged in misleading or deceptive conduct. Additionally, the court had to consider whether an adjournment of the case would be appropriate given the complexity of the evidence and the need for further affidavits from both parties.

The court acknowledged the complexity of the case and the necessity for additional information to be presented in the form of affidavits. It was noted that granting an adjournment would facilitate a more comprehensive understanding of the facts and the legal arguments involved. The court found that there was sufficient justification for an adjournment, as the matter required further evidence to be presented in the form of affidavits. This decision was made to ensure that both parties had an adequate opportunity to present their cases and to avoid any potential prejudice. The court also ruled on the costs, deciding that they would be in the cause, meaning that the costs would be borne by the parties as per the usual course.

In conclusion, the Federal Circuit Court of Australia granted the application for an adjournment and extended the time for the applicant and the respondents to file and serve their affidavits. The court found that the adjournment was necessary to ensure that the matter could be properly heard and decided. The decision highlights the importance of thorough case preparation and the need for courts to manage cases in a manner that avoids potential prejudice to the parties involved. The final orders were that the time for the applicant to file and serve any affidavits be extended to 30 September 2008, the time for the respondents to file and serve any affidavits be extended to 10 October 2008, and that the costs be in the cause.

Orders

Orders of the court

The time for the Applicant to file and serve any affidavits be extended to 30 September 2008.

The time for which the Respondents file and serve any affidavits be extended to 10 October 2008.

Costs be in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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