Wang v Anying Group Pty Ltd

[2010] FCA 684

FEDERAL COURT OF AUSTRALIA

Wang v Anying Group Pty Ltd [2010] FCA 684

Citation:		Wang v Anying Group Pty Ltd [2010] FCA 684
Parties:		HUA WEI WANG, XINYING PTY LTD (ACN 118 548 977) and NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568) v ANYING GROUP PTY LTD (ACN 126 282 657), YANYAN SUN and YUN CHEN; ANYING GROUP PTY LTD (ACN 126 282 657), YANYAN SUN and YUN CHEN v HUA WEI WANG, XINYING PTY LTD (ACN 118 548 977), NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568), REGISTRAR OF TRADE MARKS, CHUANG WANG and ANYING INTERNATIONAL FINANCIAL PTY LIMITED (ACN 105 067 990)
File number:		NSD 768 of 2008
Judge:		FOSTER J
Date of judgment:		29 June 2010
Date of hearing:	29 June 2010
Place:	Sydney
Division:	GENERAL DIVISION
Number of paragraphs:	11
Counsel for the Applicants/First, Second and Third Cross-Respondents:	Mr C Harris SC
Solicitor for the Applicants/First, Second and Third Cross-Respondents:	Colin Biggers & Paisley
Counsel for the First, Second and Third Respondents/ Cross-Claimants:	Mr J Garnsey QC, Mr C Moschoudis
Solicitor for the First, Second and Third Respondents/Cross-Claimants:	Ren Zhou Lawyers
Counsel for the Fourth, Fifth and Sixth Cross-Respondents:	The Fourth, Fifth and Sixth Cross-Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 768 of 2008

BETWEEN:

HUA WEI WANG
First Applicant

XINYING PTY LTD (ACN 118 548 977)
Second Applicant

NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
Third Applicant

AND:

ANYING GROUP PTY LTD (ACN 126 282 657)
First Respondent

YANYAN SUN
Second Respondent

YUN CHEN
Third Respondent

AND BETWEEN:

ANYING GROUP PTY LTD (ACN 126 282 657)
First Cross-Claimant

YANYAN SUN
Second Cross-Claimant

YUN CHEN
Third Cross-Claimant

AND:

HUA WEI WANG
First Cross-Respondent

XINYING PTY LTD (ACN 118 548 977)
Second Cross-Respondent

NEW CENTURY 2001 PTY LTD TRADING AS
ANYING SYDNEY COMPANY (ACN 114 661 568)
Third Cross-Respondent

REGISTRAR OF TRADE MARKS
Fourth Cross-Respondent

CHUANG WANG
Fifth Cross-Respondent

ANYING INTERNATIONAL FINANCIAL PTY LIMITED
(ACN 105 067 990)
Sixth Cross-Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	29 JUNE 2010
WHERE MADE:	SYDNEY

THE COURT:

1.GRANTS leave to the first, second and third respondents to file in Court the affidavit of Laura Rutter sworn on 29 June 2010.

2.ORDERS that the further hearing of all questions of liability raised in the proceedings (including those liability issues raised by the Cross-Claim) be adjourned to 1 September 2010 at 10.15 am before Foster J.

3.DIRECTS that the first, second and third respondents file and serve by 24 August 2010 any Expert’s Report upon which they intend to rely in relation to the claim for infringement of copyright brought by them in their Cross-Claim.

4.ORDERS that the question of costs occasioned by the adjournment of the present hearing be reserved.

5.GRANTS to all parties liberty to apply on two days’ notice or on such shorter notice as may be required.

6.NOTES that the only matters which are reserved for consideration on 1 September 2010 are expert evidence and submissions directed to the claim by the first, second and third respondents that certain of the cross-respondents have infringed their copyright in the Anying name, the Anying logo and certain associated Chinese characters.   

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 768 of 2008

BETWEEN:

HUA WEI WANG
FIRST APPLICANT

XINYING PTY LTD (ACN 118 548 977)
SECOND APPLICANT

NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568)
THIRD APPLICANT

AND:

ANYING GROUP PTY LTD (ACN 126 282 657)
FIRST RESPONDENT

YANYAN SUN
SECOND RESPONDENT

YUN CHEN
THIRD RESPONDENT

AND BETWEEN:

ANYING GROUP PTY LTD (ACN 126 282 657)
FIRST CROSS-CLAIMANT

YANYAN SUN
SECOND CROSS-CLAIMANT

YUN CHEN
THIRD CROSS-CLAIMANT

AND:

HUA WEI WANG
FIRST CROSS-RESPONDENT

XINYING PTY LTD (ACN 118 548 977)
SECOND CROSS-RESPONDENT

NEW CENTURY 2001 PTY LTD TRADING AS
ANYING SYDNEY COMPANY (ACN 114 661 568)
THIRD CROSS-RESPONDENT

REGISTRAR OF TRADE MARKS
FOURTH CROSS-RESPONDENT

CHUANG WANG
FIFTH CROSS-RESPONDENT

ANYING INTERNATIONAL FINANCIAL PTY LIMITED
(ACN 105 067 990)
SIXTH CROSS-RESPONDENT

JUDGE:	FOSTER J
DATE:	29 JUNE 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The first, second and third respondents have applied for an order deferring certain issues and evidentiary matters associated with those issues arising out of some unfortunate developments in the proceeding. 

2. On 25 May 2010, pursuant to leave which I had previously granted, the first, second and third respondents introduced into their Cross-Claim in the proceedings a claim alleging infringement of copyright.  Up to that point in time, no such claim had been made.  The alleged copyright infringement relates to the same subject matter as is involved in the principal proceeding, that is to say the trademark in Anying (the name) and in an associated logo with certain Chinese characters. 

3. In their defence to the copyright claim, the applicants put in issue all of the allegations constituting that claim.  In par 76C of the Second Further Amended Cross-Claim, the first, second and third respondents made the following allegation:

   The Anying name and mark was and is an original literary work.

4. In their Defence to Cross-Claim, the applicants denied that allegation. 

5. Late on 21 June 2010, the applicants served an expert’s report from a Chinese language expert which addressed a number of matters.  In particular, the expert addressed the question of whether or not the subject matter of the claim for infringement of copyright was an original work. 

6. The immediate response of the first, second and third respondents to the service of that material was to seek an adjournment of the entire case.  No steps were taken by the legal representatives of those respondents, in the first day or two after service of that report, to seek to obtain the assistance of an expert of their own.  Attempts to find such an expert should have been taken as soon as the report was served.  That is to say, such steps should have been taken early on 22 June 2010. 

7. On 24 June 2010, I heard the first, second and third respondents’ application for an adjournment of the whole case and decided on that day not to adjourn the proceedings but to reserve to the first, second and third respondents liberty to raise the matter again during the course of this week should the legal representatives of those respondents form the view that irremediable prejudice might be visited upon those respondents if some accommodation to their position were not allowed. 

8. The matter has again been raised before me today and additional affidavit evidence has been read in support of the current application made by the first, second and third respondents.  In that additional affidavit material, the solicitor for those respondents describes the efforts made so far by her to obtain expert assistance in order to deal with the report served by the applicants on 21 June 2010.  At the moment, the legal representatives for the first, second and third respondents have been unable to retain appropriate assistance, although it appears that every effort to do so has been made since 24 June 2010.  Senior Counsel for the first, second and third respondents has informed me that he requires the assistance of an expert in order to cross-examine the expert called by the applicants.

9. Senior Counsel for the first, second and third respondents has refined his application somewhat from that which he made last week.  He now seeks orders which quarantine the copyright claim from the balance of the present hearing and which afford to the first, second and third respondents a fair opportunity to retain expert assistance to deal with the expert’s report served by the applicants.  Senior Counsel for the first, second and third respondents accepts that the present hearing should otherwise proceed to finality although, of course, judgment cannot be delivered on any part of the case until all of the evidence directed to the copyright claim has been tendered and submissions directed to that claim have been completed.  Senior Counsel for the applicants frankly conceded that a further relatively short delay in the finalisation of the proceedings would not prejudice his clients.

10. In those circumstances and bearing in mind that, were I to force the matter to finality this week, there is potential for substantial injustice to be visited upon the first, second and third respondents, I will reluctantly accede to the application currently being made by Senior Counsel on behalf of those respondents.

11. Accordingly, I will make an order quarantining the copyright claim from the balance of the case which is currently under consideration and I will also make appropriate directions readying that claim for determination at a subsequent date.  This means that, as matters currently stand, I will complete the hearing of all other claims as between the parties currently under consideration (which, I remind the parties, are those claims going to liability only) and will defer further consideration of the copyright claim.  I will reserve the question of costs arising out of the orders which I propose to make.  

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

Associate:

Dated:        1 July 2010