Sheldon & Hammond Pty Ltd v Metrokane Inc - [2002] FCA 1561

FEDERAL COURT OF AUSTRALIA
Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561
PRACTICE AND PROCEDURE – video link for testimony from overseas and interstate witnesses – two witnesses too ill to travel by air to Sydney – increase in security for costs.
Federal Court of Australia Act 1976 (Cth) s 47A – 47G
Copyright Act 1968 (Cth) s 202(1)
Trade Practices Act 1974 (Cth) ss 52 and 53(g)
Laporte Group Australia Ltd v Vatselias (Supreme Court of NSW, unreported, 15 November 1991) cited
Lamesa Holdings BV v Commissioner of Taxation (Federal Court of Australia, unreported, 30 July 1998) cited
Mewett v Commonwealth of Australia [1998] FCA 1360 cited
Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 cited
Versace v Monte [2001] FCA 1454 cited
Australian Competition And Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 cited
SHELDON & HAMMOND PTY LTD v METROKANE INC
N 634 OF 2002
CONTI J
16 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 634 OF 2002

BETWEEN:

SHELDON AND HAMMOND PTY LTD (ACN 076 567 989)
APPLICANT

AND:

METROKANE, INC
RESPONDENT

METROKANE, INC
CROSS-CLAIMANT

SHELDON AND HAMMOND PTY LTD (ACN 076 567 989)
CROSS-RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

16 DECEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Edward Kilduff to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney.
2.At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Robert Larimer to be adduced by the respondent be given by video link from New York in the United States pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth).
3.At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Daniel Simons to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney, or, if so requested by reason of medical circumstances then prevailing, in Brisbane.
4.The respondent provide within 21 days of the date of this order further security for costs in favour of the applicant by way of payment into Court of the sum of $26,000.
5.The respondent produce to the applicant’s solicitors on or before 24 December 2002 the documents set out in the schedule to these orders.
6.To the extent that the respondent does not presently have the documents referred to in order 5 above, the respondent make such requests and do such things as may be necessary to obtain from:
(a)Mr Kilduff;
(b)Link Product Design. Inc.
(c)Pollen Design.

The documents referred to in the Schedule and produce those documents to the applicant’s solicitors on or before 24 December 2002.
7.The costs of the present applications be reserved.
8.Liberty be granted to either party to apply in relation to these orders on 3 days’ notice.
SCHEDULE
(a)Copyright Registration No. V81023-879 referred to…

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: [2002] FCA 1561
Decision Date: 16 DECEMBER 2002

CaseChat Overview and Summary

Sheldon & Hammond Pty Ltd, a company involved in the production and sale of a corkscrew, initiated proceedings against Metrokane Inc, a competitor, in the Federal Court of Australia. The dispute revolved around allegations of copyright infringement and the misappropriation of trade secrets, with Sheldon & Hammond seeking relief in the form of an injunction, damages, and an account of profits. The court was tasked with determining procedural issues related to the gathering of evidence and the costs associated with the proceedings.

The central legal issues before the court involved the appropriate means of obtaining evidence from witnesses located in different jurisdictions and the requirement for the respondent to provide additional security for costs. The court had to decide whether certain witnesses should testify in person, whether video link testimony would suffice, and the necessity of obtaining further security for costs. Additionally, the court needed to establish the necessity for the respondent to produce specific documents related to copyright registrations and financial details of the design fees.

In resolving these issues, the court determined that Mr Edward Kilduff, a witness residing in Australia, should provide his testimony in person at the Federal Court in Sydney. Conversely, Mr Robert Larimer, based in the United States, was permitted to give his testimony via video link from New York. Mr Daniel Simons, another witness, was to testify in person in Sydney, with the option to do so in Brisbane if his medical circumstances warranted it. Furthermore, the court mandated that Metrokane Inc furnish an additional $26,000 in security for costs. Lastly, the respondent was ordered to produce specific documents within a stipulated timeframe, including a copyright registration and financial records related to the corkscrew design.

The court's orders reflect a meticulous consideration of procedural fairness and the logistical challenges of international litigation. The final orders outline the specific measures required from the respondent to ensure the smooth progression of the proceedings, highlighting the court's intent to facilitate an efficient and just resolution to the dispute.

Orders

Orders of the court

1. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Edward Kilduff to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney.

2. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Robert Larimer to be adduced by the respondent be given by video link from New York in the United States pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth).

3. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Daniel Simons to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney, or, if so requested by reason of medical circumstances then prevailing, in Brisbane.

4. The respondent provide within 21 days of the date of this order further security for costs in favour of the applicant by way of payment into Court of the sum of $26,000.

5. The respondent produce to the applicant’s solicitors on or before 24 December 2002 the documents set out in the schedule to these orders.

6. To the extent that the respondent does not presently have the documents referred to in order 5 above, the respondent make such requests and do such things as may be necessary to obtain from:

(a) Mr Kilduff;

(b) Link Product Design. Inc.

The documents referred to in the Schedule and produce those documents to the applicant’s solicitors on or before 24 December 2002.

7. The costs of the present applications be reserved.

8. Liberty be granted to either party to apply in relation to these orders on 3 days’ notice.

SCHEDULE

(a) Copyright Registration No. V81023-879 referred to in Exhibit “BL-9” to Mr Larimer’s affidavit sworn 7 November 2002; and

(b) documents evidencing the break-up of the entire design fees and mold fees attributable to the RABBIT corkscrew referred to in paragraph 27 of Mr Kilduff’s affidavit sworn 7 November 2002.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 634 OF 2002

BETWEEN:	SHELDON AND HAMMOND PTY LTD (ACN 076 567 989) APPLICANT
AND:	METROKANE, INC RESPONDENT METROKANE, INC CROSS-CLAIMANT SHELDON AND HAMMOND PTY LTD (ACN 076 567 989) CROSS-RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	16 DECEMBER 2002
WHERE MADE:	SYDNEY