G-Star Raw C.V. v Jeanswest Corporation (New Zealand) Ltd

[2013] NZHC 2568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-3243

[2013] NZHC 2568

BETWEEN

G-STAR RAW C.V.

First Plaintiff

G-STAR AUSTRALIA PTY LTD
Second Plaintiff

AND

JEANSWEST CORPORATION (NEW ZEALAND) LTD

Defendant

Hearing:

24, 25, 26, 30 September, 1 and 2 October 2013

Counsel:

D L Marriott and I Finch for Plaintiffs

C Elliott QC and A W Johnson for Defendant

Judgment:

2 October 2013

(ORAL) JUDGMENT (NO. 3) OF HEATH J

Solicitors:

James & Wells, Auckland Martelli McKegg, Auckland  Counsel:

C Elliott QC, Auckland

G-STAR RAW C.V. v JEANSWEST CORPORATION (NEW ZEALAND) LTD [2013] NZHC 2568 [2 October 2013]

[1] Mr Adam Lloyd, the current General Manager Product of Jeanswest Corporation Pty Ltd, is currently giving evidence on behalf of Jeanswest Corporation (New Zealand) Ltd. It is clear from his evidence that questions relating to the design and financing of products ultimately sold through the Jeanswest stores in New Zealand is undertaken through Australia with very little discretionary  decision- making reposed in the “New Zealand Country Manager”.

[2] The issue in this case is whether a run of 374 jeans styled “Dean Biker Slim Straight” were designed in breach of copyright in design drawings held by G-Star Raw C.V. One of the issues that I raised during the course of Mr Lloyd’s evidence is whether there were any financial documents in existence, including budgets, that might provide some information as to the purpose of such a small run and whether it was anticipated that sale of them would be economic.

[3] Mr Lloyd responded by saying that some documents did exist but he did not have them available. Nor had they been discovered in the proceeding. I gained the impression from hearing Mr Lloyd’s evidence that he, while involved to a limited extent in the budgeting process, was not particularly familiar with what was carried out.

[4] In any event, the design of the Dean Biker Slim Straight jean appears to have been commenced at a time proximate to when Mr Lloyd joined Jeanswest in Australia as its General Manager Product. Thus, there may be some doubt as to whether he participated in any budgeting process for the particular jean in issue.

[5] In re-examination, Mr Elliott QC, for Jeanswest, has sought to put to Mr Lloyd a spreadsheet which includes information of a financial nature for January, February and March 2010.  It refers to the jeans in issue but requires a degree of interpretation that this witness may not be able to provide. A number of problems have been raised with the introduction of this document.

[6]Mr Marriott, for G-Star, has opposed its production on the following bases: [a]        First, that it has not been discovered;

[b]Second, that as I have already made a confidentiality order in respect of the document[1] he is unable to take instructions from his client on the issues that would need to be explored, should this be pursued in any detail. Mr Marriott also points out that without an explanation to interpret the document he could not take meaningful instructions in any event.

[1] Because of the nature of the financial information disclosed I have only permitted disclosure to counsel at this stage.

[7] Mr Elliott has submitted that the discovery issue should not be regarded as having weight. He points to the initial discovery required and defined tailored discovery which, on one interpretation, would not include documentation of this nature. In any event, Mr Elliott says he wishes to put the document to Mr Lloyd simply to find out whether he is familiar with it, what he knows about the processes it records and any interpretation he can provide.

[8] I consider that the document may be used for the purpose of being put to Mr Lloyd to ask him whether he has seen this document or something in a similar form, perhaps in an electronic spreadsheet. I consider that is appropriate because otherwise an issue might arise about whether Mr Lloyd should be believed when he has said what type of information he would expect to be available.

[9]    Mr Lloyd may also be asked generally about his familiarity with the process for preparing the document but unless he can confirm that he is involved in the preparation of this particular document, that can be taken no further.

[10] Because of the absence of a witness who can explain fully the way in which this particular document has been collated, I am not prepared to permit it to go into evidence as an exhibit. Even if Mr Lloyd were able to confirm exactly how the document was prepared, it is too late for this to be put in evidence in re-examination.

[11] There is also an issue that concerns me in relation to  the  document’s probative value. The points that I was exploring with Mr Lloyd related to the period during which the design was in preparation and financial information that was being

collated for the purpose of establishing whether it was likely to be profitable or not. The document now presented starts in January 2010, which is the time at which the garments were put into the market for sale. On the face of it, that means that the information relating to budgeting is unlikely to be contained within it. Certainly it could not be extracted without a considerable degree of interpretation from someone qualified to do so.

[12]     Accordingly, Mr Elliott may use the document on the basis outlined.

[13] After the document  has been referred to  by Mr Lloyd, a copy shall be retained by the Registrar and put in a sealed envelope and marked that this was the document put to Mr Lloyd in re-examination. It will not be produced as an exhibit.

[14] My intention is simply to have the document available should there be any appeal, so that the Court of Appeal would be aware of the nature of the document in issue.

[15] The copy held by counsel for G-Star shall be returned to Mr Elliott upon completion of Mr Lloyd’s evidence.

P R Heath J