SOCIÉTÉ Des Produits NestlÉ SA and Ors v Christian and Anor (No.11)

[2014] FCCA 2874

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ORS v CHRISTIAN & ANOR (No.11) [2014] FCCA 2874

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment of interlocutory hearing – application for adjournment dismissed.

First Applicant: SOCIÉTÉ DES PRODUITS NESTLÉ SA

Second Applicant: NESTLÉ AUSTRALIA LTD
(ACN 000 011 316)

Third Applicant: PREMIER NUTRITION CORPORATION

First Respondent: JAMES WILLIAM CHRISTIAN

Second Respondent: MARK CHARLES CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 25 November 2014

Delivered at: Sydney

Delivered on: 25 November 2014

REPRESENTATION

Counsel for the Applicants: Ms J.M. Beaumont

Solicitors for the Applicants: Banki Haddock Fiora

First Respondent appeared by videoconference.

ORDERS

1. The first respondent’s application that the hearing of whether it is feasible to comply with order 3(3C) be adjourned is dismissed.

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

PREMIER NUTRITION CORPORATION

Third Applicant

And

JAMES WILLIAM CHRISTIAN

First Respondent

MARK CHARLES CHRISTIAN

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 3 September 2014, I held that the first respondent, Mr Christian, had infringed trade marks owned by the first applicant and I made a number of orders.  Order 3 of those orders was as follows:

   By 10 September 2014, the first respondent take down from the websites to which the domain name and the domain name resolve, and take down from the Facebook account at any content which displays the sign “A-SASHI” and either of the First A-SASHI Device Mark and the Second A-SASHI Device Mark.

2. On 17 October 2014, order 3 of the orders made on 3 September 2014 was replaced by three orders, one of which was order 3(3C).  That order provided as follows:

   By 31 October 2014 the first respondent restrict the countries in which the website to which the domain name resolves can be viewed to block the site from IP addresses in Australia.

3. On 29 October 2014, there came before me an application in a case filed by Mr Christian seeking, among other things, a stay of order 3(3C).  The ground on which Mr Christian applied for the stay was that it is not technically feasible to comply with that order.  On 29 October 2014 I extended the time for complying with order 3(3C), made directions for the filing of evidence on that issue, and set down for hearing today the question of whether it is technically feasible for Mr Christian to comply with order 3(3C).  Yesterday afternoon, Mr Christian filed an application in a case in which he sought an order that the hearing of whether order 3(3C) was capable of being complied with be adjourned. 

4. The grounds on which Mr Christian applies for that adjournment are that he wishes to be given the opportunity to issue two subpoenas, one addressed to Ms Julie Robb, who is a partner of Banki Haddock Fiora, the solicitors for the applicants, and a subpoena issued to Mr Michael Mulligan.  Mr Mulligan is a person who on 10 November 2014 swore an affidavit which the applicants have filed pursuant to the directions I made on 29 October 2014.  In that affidavit, Mr Mulligan sets out steps he had taken and opinions he has formed as to whether order 3(3C) is capable of being complied with. 

5. The documents that Mr Christian seeks be produced in answer to the subpoenas include the following.  In relation to the affidavit proposed to be issued to Ms Julie Robb, these are all communications between “Banki Haddock Fiora and Ambit / Michael Mulligan”.[1]  Other documents include all communications between Banki Haddock Fiora and all other Shopify experts and any other IT consultants contacted in relation to determining the feasibility of order 3(3C), and all communications between Banki Haddock Fiora and the applicants and other non-parties in relation to order 3(3C). 

   [1] Ambit is the business name through which Mr Mulligan conducts his business.

6. The documents that are proposed to be called by the subpoena addressed to Mr Mulligan include all communications between “Ambit / Michael Mulligan and Banki Haddock Fiora”, and all communications between “Ambit / Michael Mulligan and any persons and companies in relation to blocking, filtering or redirecting an IP address”.  The purposes for which Mr Christian says that these documents should be produced in answer to a subpoena are as follows: 

   1)He wants to inquire and put before the Court the motivation and logic behind the applicants seeking an order in terms of order 3(3C). 

   2)He wants to see whether, and put before the Court if there are, opinions given by any other person concerning the feasibility of restricting access to Mr Christian’s website.

   3)He asserts that the applicants have given false evidence and therefore they cannot be trusted, and therefore it is important to put before the Court all communications between the applicant’s lawyers and Mr Mulligan and other persons. 

7. The applicants oppose the granting of the adjournment, and a number of submissions have been put forward in opposition to my granting the adjournment.  First, it is submitted that Mr Christian has been on notice as to order 3(3C) for some two months and has been the subject of submission and ventilation before the Court on 9, 17 and 31 October 2014.

8. Second, it is submitted that the evidence on which the applicants rely to show the technical feasibility of complying with order 3(3C) was served on 10 November 2014; and although there was some to-ing and fro-ing about the readability of some snapshots referred to in that affidavit, the first respondent has had ample opportunity to deal with that material and to put on evidence in response to it. 

9. Third, it is submitted that the adjournment application was made late.  The application was filed at around 5 pm, or the applicants say they receive notice of it at 5 pm yesterday.  The applicants had prepared to have the matter argued today, including having Mr Mulligan present in Court for the purpose of cross-examination. 

10. Fourth, it is submitted that Mr Christian has not demonstrated any legitimate ground for obtaining the documents referred to in the subpoenas.  It is submitted that the desire to obtain those documents is based on speculation that the documents will elicit something that may assist Mr Christian.  And, finally, it is submitted that to the extent that Mr Christian submits that it is his lack of financial resources that prevents him from obtaining an expert, that is not a factor I should take into consideration. 

11. Whether or not a court grants an adjournment is, of course, a matter within the discretion of the court.  It is always a matter of balancing a number of interests, the most important interests to balance are the interests of the litigants.  What one must assess is matters such as the detriment that will be visited upon the person seeking an adjournment if an adjournment is not granted, and the detriment that will be inflicted on the party opposing the application if the adjournment is granted.  An important factor in undertaking that balancing exercise is the utility of granting an adjournment, and that necessarily requires the court to inquire into the reason for which an application to adjourn is made, and whether that will bring any advantage to the party applying for the adjournment. 

12. Here, the purpose for which the adjournment is sought is to obtain documents.  The first question I must consider is whether there is any legitimate basis for Mr Christian seeking the documents which he does seek.  It is well established that a subpoena can only be issued for some legitimate forensic purpose.  That necessarily requires the person who seeks a subpoena to be issued to show that the subpoenas will produce documents which it is on the cards will have some bearing on the determination of an issue that is before the court.  I first consider whether Mr Christian has identified any issue to which the documents he seeks to be called are relevant. I am afraid I cannot find any such issue. 

13. As I have noted before, the purpose for which this hearing has been set down before me today was to determine whether Mr Christian could comply with order 3(3C). The applicant has put on evidence which, on its face – and I say “on its face” because that evidence has not been tested by cross-examination – indicates that it is indeed feasible to restrict access to Mr Christian’s website so as to prevent users who have an IP address in Australia from accessing his website.  Mr Christian has put on his own affidavit in response to that.  He has included in that affidavit hearsay evidence of opinions given to him by two Shopify experts.  But what is not present in his affidavit is any evidence that he has provided the affidavit of Mr Mulligan to any expert for their comments on whether they agree or disagree with anything that Mr Mulligan has said. 

14. On the face of the material, therefore, there does not appear to me to be any issue about the feasibility of restricting access to the website.  Even if I am wrong about that, the range of documents that Mr Christian seeks to be produced extend way beyond anything that could be considered relevant to the matter I have to decide today.  In the much used terminology in this area of practice and procedure, it is clear that the documents are sought not to support or refute an issue in the proceedings but to obtain documents to determine whether some issue favourable to Mr Christian can be extracted from the documents.  In other words, it appears to me to be without question a fishing expedition. 

15. There are other considerations relevant to whether an adjournment should be granted and that does not relate to the interests of the parties.  It relates to the manner in which this Court conducts litigation.  This matter was set down on 29 October 2014 for the purpose of determining whether order 3(3C) could be complied with.  At the time I set the matter down I made inquiries of both parties about the time they each required to put on material relevant to the determination of that question.  It is intolerable in those circumstances that on the day before the appointed hearing an application is made by one of the parties for an adjournment.  The court is a limited resource.  It cannot continually set matters down and set those matters aside because that necessarily has a disruptive effect on other litigants who have equal claim to the time and consideration of this Court.  Mr Christian has put nothing before me to explain why it is he participated in a process whereby directions were made for the preparation of this hearing and yet, on the day before the hearing, he applied to adjourn the hearing. 

16. For these reasons I dismiss the first respondent’s application that the hearing of whether it is feasible to comply with order 3(3C) be adjourned.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 December 2014