The Quarto Group, Inc v Australian Broadcasting Corporation

[2008] FCA 1472

FEDERAL COURT OF AUSTRALIA

The Quarto Group, Inc v Australian Broadcasting Corporation [2008 FCA 1472

THE QUARTO GROUP, INC, QUINTESSENCE EDITIONS LTD AND QUINTET PUBLISHING LTD v AUSTRALIAN BROADCASTING CORPORATION
NSD 427 OF 2008

JACOBSON J
25 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2008

BETWEEN:

THE QUARTO GROUP, INC
First Applicant

QUINTESSENCE EDITIONS LTD
Second Applicant

QUINTET PUBLISHING LTD
Third Applicant

AND:

AUSTRALIAN BROADCASTING CORPORATION
Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	25 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Discharge the order of the Court made in paragraph 12 of the orders dated 3 April 2008.

2.The appeal be dismissed pursuant to O 35A r 3(1)(a) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2008

BETWEEN:

THE QUARTO GROUP, INC
First Applicant

QUINTESSENCE EDITIONS LTD
Second Applicant

QUINTET PUBLISHING LTD
Third Applicant

AND:

AUSTRALIAN BROADCASTING CORPORATION
Respondent

JUDGE:	JACOBSON J
DATE:	25 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants in this matter are three foreign companies which are related to each other.  The first applicant is incorporated in Delaware in the United States of America.  The other two applicants are or appear to be incorporated in England and Wales. 

2. The second applicant claims to have created and published around the world a number of books in the “1001 Series.”  The books have titles such as 1001 Movies You Must See Before You Die and 1001 Golf Holes You Must Play Before You Die. 

3. The applicants claim that in about 2007 a company called Madison Press Books created and/or published a book entitled 1001 Foods You Must Eat Before You Die.  The applicants also claim that Madison has licensed to the ABC the right to publish, distribute and sell the book in Australia. 

4. The applicants claim relief for breaches of ss 52 and 53 of the Trade Practices Act 1974 (Cth) as well as for the tort of passing off.

5. On 3 April 2008, I listed the matter for final hearing on 28 and 29 April 2008.  Shortly before the hearing, my Associate was notified that the matter had been settled and that consent minutes would shortly be provided to the Court.  No consent minutes were supplied and I took steps to arrange for the matter to be re‑listed.  At about that time, a Notice of Ceasing to Act was filed by the applicants’ solicitor.  My Associate contacted the respondent’s solicitors who informed her that they had instructions to attend a directions hearing but otherwise not to take any further action. 

6. In order to bring the matter to a head, the Registry of the Court has made efforts to try to contact the applicant to advise it of today’s directions hearing.  The Registry sent an email to the address of the applicants provided on the Notice of Ceasing to Act, but the email bounced back.  The Registry also telephoned the United Kingdom number provided by the previous solicitors for the applicants.  However, the person who answered that telephone number had never heard of the Quarto Group. 

7. More than two weeks ago I listed the matter for a directions hearing today.  The listing of the directions hearing has been visible on the Court’s e-Search website for a period of approximately two weeks. 

8. When the matter was called on for directions this morning, a solicitor appeared for the respondent but there was no appearance on behalf of the applicants.  The respondent’s solicitor asked me to dismiss the matter in the exercise of my powers under O 35A of the Federal Court Rules. 

9. It is plain from the history of the matter which I have set out above, that this is an appropriate case for the exercise of that power.  I therefore propose to make an order dismissing the proceedings. 

10. On 3 April 2008, I noted an undertaking as to damages given by the applicant and I also noted undertakings to the Court given by the respondents and recorded in Orders 10 and 11 of the orders made on that date.  Those undertakings have now expired and it therefore seems to me to be unnecessary to make any order discharging those undertakings. 

11. However, an undertaking was also recorded in paragraph 12 of the orders made on 3 April 2008.  That undertaking was given by the applicants and continued until further order.  It seems to me to be appropriate in the circumstances that the applicants be discharged from the undertaking.  The orders I will therefore make are as follows: 

    1.Discharge the order of the Court made in paragraph 12 of the orders dated 3 April 2008;

    2.Proceedings dismissed pursuant to O 35A r 3(1)(a) of the Federal Court Rules. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:
Dated:        3 October 2008

The Applicants did not appear.
Solicitor for the Respondent:	Baker & McKenzie
Date of Hearing:	25 September 2008
Date of Judgment:	25 September 2008