Snappi Holdings Pty Ltd v R.P. International Pty Ltd
[1995] FCA 96
•27 Feb 1995
IN THE FEDERAL COURT OF AUSTRALIA )No. QG 200 of 1992
QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN:SNAPPI HOLDINGS (PROPRIETARY) LIMITED and SNAPPI BABY PTY. LTD. (ACN: 010 959 190)
Applicants
AND:R.P. INTERNATIONAL PTY. LTD. (ACN: 009 340 265), CLIFFORD RAYMOND PAGET and DELORES MAURI
Respondents
MINUTES OF ORDERS
JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 27 February, 1995
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
The respondents be restrained from making, offering for sale, selling or otherwise using or dealing with the device identified as exhibit 15 or any substantially similar device.
The respondents be restrained from doing anything to cause the device identified as exhibit 15 or any substantially similar device to be made, offered for sale, sold or otherwise used or dealt with.
The respondents deliver up all articles in their power, possession, custody or control which are the same as or substantially similar to exhibit 15.
The respondents pay to the applicants its costs of and incidental to these proceedings from and after 18 February, 1993, including reserved costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 200 of 1992
QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )
BETWEEN:SNAPPI HOLDINGS (PROPRIETARY) LIMITED and SNAPPI BABY PTY. LTD. (ACN: 010 959 190)
Applicants
AND:R.P. INTERNATIONAL PTY. LTD. (ACN: 009 340 265), CLIFFORD RAYMOND PAGET and DELORES MAURI
Respondents
Coram: Drummond J
Date: 27 February, 1995
Place: Brisbane
REASONS FOR JUDGMENT
In this matter the applicants/cross-respondents appear by counsel and seek to proceed with the hearing fixed for today. There is correspondence received by the Court in the course of the past month from the respondents in which the respondents seek what appears to be a relatively short adjournment of today's hearing. None of the respondents has appeared today. The applicants seek an order under O. 32, r. 2(1)(d) the Federal Court Rules that the Court proceed with the trial, so far as the applicants' claims for relief which they intend pursuing are concerned, and an order under O. 32, r. 2(1)(c) dismissing the cross-claim.
It is necessary to say something of the background of the case in order to explain why I have decided to grant the orders sought by the applicants. By application filed 18 December, 1992, the applicants sought an injunction to restrain the sole respondent, R.P. International Pty. Ltd., from infringing the applicants' Australian patent in respect of a nappy fastener. An injunction was also sought to restrain that respondent from infringing the applicants' registered design in respect of the same item; orders were also sought for the delivery up of all infringing articles and an inquiry as to the damages or alternatively an account of profits made by the respondent by reason of the infringement of the patent and of the copyright in the registered design. Later, Mr. Paget and Ms. Mauri, who are associated with the corporate respondent, were joined as respondents and on 8 September, 1993, an amended application was filed seeking relief against the company, Mr. Paget and Ms. Mauri, in terms similar to the relief originally sought only against the corporate respondent.
On 26 October, 1993 I gave judgment in favour of the applicants on its claim for an interlocutory injunction to restrain the respondents until the trial of the action or earlier order from making, offering for sale, selling or otherwise using or dealing with a device embodying the applicants' invention identified in the order, or with any substantially similar device. I also gave directions for the further conduct of the proceedings, including directions for delivery of pleadings by the respondents and for discovery and inspection.
On 31 December, 1993 the respondents filed an amended defence and a cross‑claim, in which the respondents, by their cross-claim, sought a declaration that the applicants' patent was invalid, and also an order revoking the patent. On 16 December, 1994 Cooper J ordered that the action be set down for hearing by me over one week, to commence today, Monday, 27 February, 1995. The respondents were represented by their solicitor on this occasion.
The next thing that happened, so far as the material available to me is concerned, was that Mr. Paget wrote as a director of the corporate respondent to the District Registrar in these terms. After referring to the hearing date of 27 February, 1995 he said:
"Due to circumstances beyond our control the Solicitors acting for us have had to withdraw from the case and we must therefore ask that the trial be deferred until such time as we are able to resolve this position."
That letter, although dated 2 February, 1995, was only received in the Court on 8 February, 1995. It was immediately brought to my attention and, on my direction, my associate wrote to the applicants and to Mr. Paget to advise the respondents that I had listed the matter for directions at 9.15 a.m. the following Monday, 13 February, 1995. Her letter says that appearances were required and it also advises Mr. Paget that, unless a direction was given on 13 February, 1995
altering the trial date, the trial would commence on the day appointed, viz., today.
On 13 February, 1995, at the directions hearing, there was no appearance on behalf of any of the respondents. The applicants submitted that the trial should proceed as planned. I directed that the trial was to proceed on 27 February, 1995 and that the District Registrar should write to all respondents notifying them of that direction. Following the directions hearing, the District Registrar wrote the same day to the respondents to advise them by facsimile of the directions hearing and of my refusal to vacate the trial date and confirmed that the trial would proceed today.
The next relevant event, so far as the material available to me indicates, is that on the afternoon of Friday last, 24 February, 1995, Mr. Paget telephoned the Court List Clerk, Mr. Robinson, to tell him that he would be unable to attend the trial on 27 February, 1995. At Mr. Robinson's suggestion, Mr. Paget sent a facsimile of the same date to the District Registrar, which he signed on behalf of the corporate respondent, referring to his conversation with Mr. Robinson earlier that afternoon; he referred also to what he described as "our letter of 2 February 1995 and your [i.e., the District Registrar's] reply of 13 February 1995". He says:
"Your letter was received by the Company during the Directors absence overseas on an other urgent matter and therefore has only been sighted by us this morning after we arrived back at 3.00am."
It is noteworthy that Mr. Paget does not mention the facsimile of Friday, 8 February, 1995 advising him of the appointed directions hearing. I infer from his silence about this facsimile that he did receive it before he went overseas, but took no action to have himself or any of the other respondents represented on the 13th. In his facsimile of last Friday, 24 February, 1995, Mr. Paget also referred to his initial letter of 2 February, 1995 asking that the trial be postponed to enable the company to appoint new solicitors to replace Messrs Clayton Utz. He went on to say that it would not have been possible for him to have collected the material from Clayton Utz in Brisbane and Perth and to arrange for fresh representation to enable the trial to proceed on 27 February, 1995.
Although some evidence was given in the interlocutory proceedings about the then difficult financial position of the respondent company, it does not appear that the reason why the respondents have, since 2 February, 1995, sought an adjournment of the trial following the withdrawal of their existing solicitors is associated with financial difficulties. That may be the case, but the limited information provided by Mr. Paget rather suggests that some other problem has arisen between the respondents and Clayton Utz, other than a financial one, which has led to those solicitors withdrawing. In any event, the respondents have given only the vaguest indication of the difficulty that led to the withdrawal of their solicitors a month ago and no indication at all, by way of explanation which would enable one to understand the problem, why since 2 February, 1995 they have been unable, so they say, to arrange for alternative representation today in proceedings in which they say they wish to appear and contest the applicants' claims and prosecute their own cross-claim.
The facsimile of 24 February last from Mr. Paget was referred to me and, at my direction, the District Registrar, by facsimiles later that same day, advised the parties that the trial would proceed today unless the respondents made application for and obtained an adjournment of the trial. That communication produced a facsimile dated Saturday, 25 February, 1995, which was drawn to my attention this morning, in which Mr. Paget reiterates his request for an adjournment, asserts that the applicants will suffer no prejudice if the adjournment is granted and says that he wants an adjournment only for a short period, which he describes as "for at least one month". He is thus seeking an adjournment now for about the same period as elapsed between his first communication to the Court on 2 February, 1995 and the date fixed for the trial. He indicates that if the adjournment is not granted, then an appeal will be lodged. Mr. Paget also says in this most recent facsimile that it was the respondent company which pushed for an early trial. Senior counsel for the applicants informed me that some eight months ago the respondents did write to the Court asking for a hearing date, but he also informed me that that was against a background of all the parties generally proceeding in accordance with directions for the preparation of the matter for trial, although he did suggest that there was some minor default on the part of the respondents in complying with directions.
In any event, the position seems to me to be quite plain. The matter was set down for hearing as long ago as 16 December, 1994 for a week. The respondents have provided in the communications they have directed to the Court, seeking what appears to be only a relatively short adjournment of the trial, a very limited explanation why they could not be in a position to proceed today, notwithstanding the difficulties that appear to have developed about a month ago with their previous solicitors. The applicants again oppose the adjournment and wish to proceed. The applicants inform me that the only relief they will be seeking today will be a permanent injunction effectively mirroring the interlocutory injunction granted on 26 October last and that they will be abandoning their other claims for relief.
In these circumstances, where the applicants have a real interest in bringing the matter of both their claims against the respondents and the respondents' cross-claims against them to a conclusion and in which the Court, too, has an interest in ensuring that, save for good reasons shown, trial dates fixed well in advance are not set aside, I propose to grant the applicants' request that the matter proceed, both
in respect of their application and in respect of the respondents' cross-claim.
So far as the cross-claim is concerned, the respondents not having appeared at the trial when the trial was called on, I will order that the cross-claim be dismissed with costs.
I am satisfied on the evidence put before me by the applicants that it is entitled to the injunction sought in paragraph 1 of the draft minutes of orders. I am satisfied, having regard to the evidence before me, as to Mr. Paget and Ms. Mauri's actions in acquiring the company, J.P. Holdings Pty. Ltd., of which they are the directors and shareholders, and in having that company register the name "Dolly Doll Products" as a business name, that it is appropriate to grant the second order proposed in the draft minutes of orders: the evidence indicates that this was the business name under which the corporate respondent carried on its business of trading in the articles in respect of which I granted the interlocutory injunction in October 1993. I infer that there is a likelihood that a direct restraint proposed by the first order in the draft minutes may not necessarily cover the field of infringing conduct that Mr. Paget and Ms. Mauri appear to be likely to engage in through this other company.
I will make orders in terms of paragraphs 1, 2, 3 and 4 of the draft minutes of orders.
I certify that this and the preceding
eight pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.
Associate:
Date: 27 February, 1995
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