SOCIÉTÉ Des Produits NestlÉ SA and ANOR v Christian and ANOR (No.2)
[2014] FCCA 1867
•4 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOCIÉTÉ DES PRODUITS NESTLÉ SA & ANOR v CHRISTIAN & ANOR (No.2) | [2014] FCCA 1867 |
| Catchwords: PRACTICE & PROCEDURE – Application to re-open case – leave to issue subpoenas – whether justice of the case favours the grant of leave to re-open – whether the documents called for by the subpoenas are relevant to any issue in the proceedings – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.88Q, 88Q(1) |
| Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 |
| First Applicant: | SOCIÉTÉ DES PRODUITS NESTLÉ SA |
| Second Applicant: | NESTLE AUSTRALIA LTD ACN 000 011 316 |
| First Respondent: | JAMES WILLIAM CHRISTIAN |
| Second Respondent: | MARK CHARLES CHRISTIAN |
| File Number: | SYG 3214 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr P.W. Flynn |
| Solicitors for the Applicants: | Banki Haddock Fiora |
| First respondent appeared by telephone. |
ORDERS
The first respondent’s application for leave to re-open case and for a vexatious proceedings order is dismissed.
The first respondent pay the applicants’ costs of this application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3214 of 2013
| SOCIÉTÉ DES PRODUITS NESTLÉ SA |
First Applicant
NESTLÉ AUSTRALIA LTD ACN 000 011 316
Second Applicant
And
| JAMES WILLIAM CHRISTIAN |
First Respondent
MARK CHARLES CHRISTIAN
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
A final hearing of this matter took place on 6 June 2014. By an email sent to my associate on 18 June 2014 the first respondent, Mr Christian, inquired whether the Court would have any objection to Mr Christian issuing a subpoena to a particular person for the purpose of attending Court to give evidence and produce documents and to make a vexatious proceedings order. After my associate emailed both parties that any application in relation to the matters raised by Mr Christian should be made before me in open Court, my associate received an email from Mr Christian on 24 June 2014 confirming he wished to apply for a vexatious proceedings order and orders authorising the issue of subpoenas to a number of persons.
The grounds on which Mr Christian seeks these orders are set out in an affidavit affirmed on 30 June 2014. Although in the form of an affidavit it is in fact a submission and I will treat the affidavit as a submission. Mr Christian relies on two grounds for the vexatious proceedings order. The first is that the applicants’ proceedings against the respondents for their infringement of the applicants’ trademarks are without reasonable grounds and have been instituted to cause delay and detriment to the first respondent’s business. The second ground is the assertion that the deponents have collaborated to deliberately create false and misleading evidence to discredit A-Sashi Vitamins and Mr Christian.
Mr Christian seeks orders for the issue of subpoenas against five persons. The first, who I will only refer to by the initials, is J.C. Mr Christian claims that J.C. has acted against Mr Christian in a way to purposely harass, annoy or to achieve another wrongful purpose. Mr Christian desires a subpoena to be issued calling for the production of:
…documents including emails and any other written communications he wrote, sent or received in relation to A-Sashi Vitamins, James Christian and or family members of James Christian.
The second person is Ms Judith Brimer. Ms Brimer is said to be the Executive Officer of the Therapeutic Goods Administration (TGA). The subpoena Mr Christian requests be issued would call for the production of documents relating to, “complaint 2013/07/031”, the TGA received regarding 15 A-Sashi Vitamins products. Mr Christian asserts that the complaint was made to TGA by J.C.
The third person against whom a subpoena is sought to be issued is Ms Julie Robb, a partner of the applicants’ solicitors. The proposed subpoena is for the purpose of calling for the production of all documents:
…in relation to A-Sashi Vitamins and these Court matters.
Mr Christian says that all deponents have denied any knowledge of any person from King & Wood Mallesons having any involvement in these proceedings and the purpose of the calling of these documents is to disprove that denial of knowledge.
The fourth person against whom Mr Christian wishes to issue a subpoena is Mr Owen Nelson, the General Manager of the Musashi Nutrition business. The proposed subpoena will call for the production of:
…all emails written, sent or received by him and other Musashi employees between Musashi and Banki Haddock Fiora and King & Wood Mallesons and Donna Bessell in relation to A-Sashi Vitamins and these Court matters.
The purpose of having these documents produced on subpoena is to contradict the denial of Mr Nelson of any knowledge of any person from King & Wood Mallesons having any involvement in these Court matters or complaint to the TGA in relation to A-Sashi Vitamins.
And the fifth person against whom Mr Christian desires to issue a subpoena is Ms Donna Bessell, the Regional IP Advisor for the applicants. The proposed subpoena will call for:
…all emails written, sent or received by her and other Nestle employees (excluding affidavits) between Nestle and Banki Haddock Fiora and King & Wood Mallesons in relation to A-Sashi Vitamins and these Court matters.
These documents are asserted to be relevant to disproving the denial of all deponents of knowledge of any person Nestle, King & Wood Mallesons or any other person making a complaint to the TGA in relation to A-Sashi Vitamins. These being the grounds on which Mr Christian seeks the orders, I will first deal with the question of the subpoenas.
Now, assuming Mr Christian seeks the documents that he has identified in his submission for the purpose of the proceedings, Mr Christian, in effect, is applying for leave to re-open his case. Accordingly, the question is whether Mr Christian should be given such leave.
The principles governing the exercise of the discretion to permit a party to re-open his or her case were summarised by Kenny J in Inspector-General in Bankruptcy v Bradshaw at paragraph 24.[1] Her Honour said:
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are: (1) fresh evidence…; (2) inadvertent error…; (3) mistaken apprehension of the facts…; (4) mistaken apprehension of the law.
[1] [2006] FCA 22
At paragraph 26 her Honour said:
[T]he overriding principle requires that the Court consider whether, taken as a whole, the justice of the case favours the grant of leave to re-open.
Counsel for the applicants referred me to a decision of Toohey J in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson.[2] And counsel, in written submissions, set out a passage from his Honour’s reasons for judgment in that case. I need not repeat that passage in these reasons for judgment, although I note that it reinforces or certainly is consistent with the passages from the reasons for judgment of Kenny J that I have just set out.
[2] (1986) 67 ALR 491
Mr Christian has accepted that the documents he wishes to obtain by way of subpoenas are not fresh. He does submit, however, that his not having sought these documents before the hearing was due to inadvertent error and Mr Christian there relied on the fact that he is not legally qualified and was not represented. I am prepared to accept that explanation. Mr Christian also submitted that his not seeking these documents by way of subpoena was due to a mistaken apprehension of fact. I am not prepared to accept that. Possibly what occurred was a reconsideration of the matter after Mr Christian cross-examined the applicants’ witnesses. However, it is not necessary for me to make any finding in that regard and I do not make any finding.
Similarly, Mr Christian said that his not seeking the documents is also due to a mistaken apprehension of law. Again, I am not prepared to accept that and, for the reasons that I will explain in a moment, whether or not I do accept that has no bearing on the decision I will make. As Kenny J said, the ultimate and critical question is whether the justice of the case weighs in favour of the Court exercising its discretion in favour of granting leave to re-open and the critical factor there is whether the documents are relevant to any issue in the proceedings and, if so, the extent to which they are relevant.
Mr Christian has submitted that the documents are relevant to prove or to show that the applicants have been interfering or, in other ways, have been attempting to damage his business. In particular, he submitted that he believes that a complaint that had been made to the TGA and that had been withdrawn on the grounds that it was trivial was a complaint made by the applicants. I have been informed by Mr Flynn that that is contrary to the evidence that is before the Court; but, in any event, what Mr Christian says he wanted to know was whether in fact it was true or not that it was the applicants, that is to say Nestle, who made the complaint to the TGA which was ultimately withdrawn.
In my opinion, it is not in the interests of justice that I permit or make an order permitting the issue of subpoenas calling for the documents that Mr Christian says he would desire to have produced to the Court. In my opinion, the subpoenas are not sought for purposes that relate to any issue in the case. The issues in this case are those that arise from the application that has been filed by the applicants and the response that has been filed by Mr Christian. The only issue in the case is whether, as the applicants claim and Mr Christian denies, Mr Christian has infringed the trademarks of which the applicants allege they are the owners.
There is no claim made in the response that Mr Christian filed that the applicants had interfered with the A-Sashi business in any way, let alone in the way which gives rise to an arguable cause of action. So, for those reasons, I will not grant leave to Mr Christian to re-open the case and, in particular, I will not make any order authorising the issue of the subpoenas.
I next turn to the claim for a vexatious proceedings order. Although not referred to by Mr Christian in his submission, counsel for the applicants referred me to s.88Q of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) which is titled “Making vexatious proceedings orders”.
From the fact that Mr Christian has described the order he seeks as a “vexatious proceeding order”, it is reasonable to infer that he is seeking that order pursuant to s.88Q(1) of the FCCA Act. That provides as follows and I quote:
This section applies if the Federal Circuit Court of Australia is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
The grounds on which Mr Christian seeks the vexatious proceedings order by its terms do not fall within s.88Q(1) and, for that reason alone, an application for an order under s.88Q must fail. Perhaps what Mr Christian claims is that the application that the applicants brought was not reasonably arguable and, further, was an abuse of process because it has been brought for an improper purpose. In other words, I read it as an application one would bring to summarily dismiss a claim before hearing.
If that is what the intention was then it is inappropriate that I consider making any such order and the reason for that is that if it was intended to be an order for summary dismissal, such application obviously ought to have been brought before the hearing of the matter. So for that reason as well, I reject the application for a vexatious proceedings order. The end result of all of that is that Mr Christian’s applications for the vexatious proceedings order and for orders granting leave to issue subpoenas are dismissed.
Now, I will turn to the question of costs. As to the questions of costs, the ordinary rule is that the party who succeeds on an application should obtain its costs. The issues raised on this application are discrete issues and the applicants will have incurred them, whether or not they succeed in their main application. Mr Christian says that the only order as to costs I should make is to reserve them. The reasons he has given is that he has already incurred expenses and it is the applicants who have instituted these proceedings. In my opinion, they do not constitute sufficient reasons for me not to make an order for costs in favour of the applicants in relation to today’s application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis.
Associate:
Date: 19 August 2014
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