FEDERAL COURT OF AUSTRALIA
Sarifdeen v TM25 Holding B.V. [2016] FCA 1429
Appeal from: TM25 Holding B.V. & Ors v Redac International Pty Ltd & Ors [2016] FCCA 113 File numbers: VID 200 of 2016
VID 201 of 2016Judges: MURPHY J Date of judgment: 28 November 2016 Catchwords: PRACTICE AND PROCEDURE - application for dismissal of appeal - application for dismissal for failure to comply with the Rules, failure to comply with orders of the Court and want of prosecution - appeals dismissed- application for security for costs in the context of an appeal Legislation: Competition and Consumer Act 2010 (Cth)
Copyright Act 1968 (Cth)
Fair Trading Act 1999 (Vic)
Trade Marks Act 1995 (Cth)
Cases cited: Cowell v Taylor (1885) 31 Ch D 34
Dahler v Australian Capital Territory (No 2) [2016] FCA 1100
Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28
Fox v Percy (2003) 214 CLR 118; [2013] HCA 22
Mecrus Pty Ltd v Industrial Energy Pty Ltd (2015) 327 ALR 523; [2015] FCA 103
Skyring v Sweeney [1999] FCA 61
Date of hearing: 8 November 2016 Registry: Victoria Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant in VID 200 of 2016: The Appellant appeared in person Counsel for the Appellant in VID 201 of 2016: The Appellant did not appear Counsel for the Respondents: Mr T Cordiner Solicitor for the Respondents: K & L Gates ORDERS
VID 200 of 2016 BETWEEN: RAZIUDEEN SARIFDEEN
Appellant
AND: TM25 HOLDING B.V.
First Respondent
G-STAR RAW C.V.
Second Respondent
G-STAR AUSTRALIA PTY LTD (ACN 084 011 852)
Third Respondent
VID 201 of 2016 BETWEEN: MOHAMMED KALEEL ABDUL CADER
Appellant
AND: TM25 HOLDING B.V.
First Respondent
G-STAR RAW C.V.
Second Respondent
G-STAR AUSTRALIA PTY LTD (ACN 084 011 852)
Third Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
28 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeals be dismissed pursuant to ss 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) and pursuant to rule 36.74(a), (b), (c) and (d) of the Federal Court Rules 2011.
2.The Appellants jointly pay the costs of the appeals.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
INTRODUCTION
In these proceedings the appellants, Mr Raziudeen Sarifdeen and Mr Mohamed Kaleel Abdul Cader, bring related appeals against a judgment of the Federal Circuit Court made in favour of TM25 Holding BV, G-Star Raw CV, and G-Star Australia Pty Ltd (the G-Star Parties) (TM25 Holding B.V. & Ors v Redac International Pty Ltd & Ors [2016] FCCA 113). Before the Court is an interlocutory application by the G-Star Parties seeking orders that:
(a)the appeals be dismissed for want of prosecution and failure to comply with orders…
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- Case
- [2016] FCA 1429
- Decision Date
CaseChat Overview and Summary
The court considered the procedural history of the case, which included multiple orders for the appellants to file amended notices of appeal and provide draft appeal book indexes. Despite these orders, the appellants failed to comply with the court's directions, leading to the vacating of the appeal hearing and the inability to relist it. The court also noted that the appellants had only partially paid the costs ordered to be paid to the respondent. The court found that the appellants' failure to comply with the court's orders and rules, as well as their lack of diligence in prosecuting the appeals, warranted the dismissal of the appeals.
The Federal Court dismissed both appeals and rejected the application for security for costs. The court held that the appellants had failed to comply with the court's orders and rules, had not diligently prosecuted their appeals, and had not provided sufficient grounds for the appeal to proceed. The court further found that it was unnecessary to decide the application for summary judgment or determine the competency of the appeal. The court ordered that the appellants jointly pay the costs of the appeals.
Orders
Orders of the court
1. The appeals be dismissed pursuant to ss 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) and pursuant to rule 36.74(a), (b), (c) and (d) of the Federal Court Rules 2011.
2. The Appellants jointly pay the costs of the appeals.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Rule 36.72 of the Rules provides that a respondent who objects to the competency of an appeal must file a notice of objection to competency that briefly but specifically states the grounds of the objection. If the Court decides an appeal is not competent, the appeal is dismissed. Consideration re dismissal Having regard to the procedural history set out above I consider it appropriate to dismiss both appeals pursuant to s 25(2B)(ba) and (bb)(i) of the FCA and r 36.74 (1)(a), (b) and (d), doing so on the basis that the appellants have failed to comply with orders of the Court, failed to comply with the Rules and failed to diligently prosecute their appeals. In relation to Mr Cader’s appeal it is also appropriate that it be dismissed pursuant to s 25(2B)(bb)(ii) and r 36.74(1)(c), on the basis that he failed to attend the hearing on 8 November 2016. It is therefore unnecessary to decide the application for summary judgment or decide whether the appeal is competent. I consider it appropriate to dismiss the appeals, first, because: (a)the appellants filed the appeals on 4 March 2016 and the Notices of Appeal did not comply with the Rules; (b)on 6 May 2016 the appellants were ordered to file Amended Notices of Appeal which complied with the Rules and provide draft appeal book indexes to the G-Star Parties by 22 July 2016. They did not do so; (c)as a result of the appellants’ failures it was necessary to vacate the hearing date of the appeal on 6 October 2016. As a result of their continued failures it has not been possible to relist the appeal hearing; (d)on 5 August 2016 the appellants were ordered to file Further Amended Notices of Appeal which complied with the Rules and provide draft appeal book indexes by 16 September 2016. They did not do so; (e)on 5 August 2060 appellants were directed to immediately pay $3,500 to the G-Star Parties’ for their costs of the day. It has been three months since the order and the appellants have only paid $300, doing so on 20 October 2016; (f)on 5 October 2016 the appellants provided draft appeal book indexes, but the indexes did not comply with the Rules or Practice Note APP2; and (g)on 13 October 2016 the appellants filed Further Amended Notices of Appeal. Notwithstanding the delay in filing the amended appeals, as pleaded the grounds of appeal are either deficient or appear to have little merit. It is established that the discretion to dismiss proceedings for want of prosecution must not be exercised lightly: see Van Reesema v Giameos (1979) 27 ALR 525; (1979) 41 FLR 86 (Van Reesema). In Van Reesema the Court considered various factors in deciding whether there had been “contumelious delay” including whether the appellant had complied with the Court’s orders, whether the appellant had failed to provide a draft index of the appeal books within time as required by the Rules, whether the appellant had failed to attend the District Registrar to settle the appeal books as required by the Rules and the public policy in the business of the Court being conducted with expedition and that its rules and orders be complied with. It is noteworthy that most of those factors are made out in the present case.