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

[2013] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-3243

[2013] NZHC 2480

BETWEEN

G-STAR RAW C.V.

First Plaintiff

G-STAR AUSTRALIA PTY LTD
Second Plaintiff

AND

JEANSWEST CORPORATION (NEW ZEALAND) LTD

Defendant

Hearing:	20 September 2013
Counsel:	D L Marriott for Plaintiffs A W Johnson for Defendant
Judgment:	20 September 2013

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:

James & Wells, Auckland Martelli McKegg, Auckland

G-S TAR RAW C.V. v JEANSWEST CORPORATION (NEW ZEALAND) LTD [2013] NZHC 2480 [20

September 2013]

The issues

[1] This proceeding is a claim by G-Star Raw C.V. (G-Star) against Jeanswest Corporation (New Zealand) Ltd (Jeanswest) for alleged infringement of copyright. The co-plaintiff is G-Star Australia Pty Ltd, the exclusive distribution of G-Star branded products in Australasia. Further background to the dispute is set out in a judgment that I gave yesterday.[1]

[1] G-Star Raw C.V. v Jeanswest Corporation (New Zealand) Ltd [2013] NZHC 2461.

[2] Following yesterday’s hearing I adjourned for further consideration today two points. The first related to an application to have evidence from Mr Morriset taken by video-link. Mr Morriset is the person who is said to have the creator of the original artistic work in issue. I indicated a willingness to make an order provided that more detail could be provided about the place to which the link would be made, and other procedural matters of the type to which Allan J referred in Yang v Chen.[2] The second concerned an application for leave to administer interrogatories. I return to that later.

Video-link evidence

[2] Yang v Chen HC Auckland CIV-2007-404-1751, 13 May 2010 at para [78].

[3] Counsel have conferred in relation to the video-link issue.  Arrangements are being made for Mr Morriset to give evidence from facilities in Amsterdam, in the Netherlands. Because of Mr Morriset’s age and health condition, he will start his evidence at 8am Amsterdam time, which is 6pm New Zealand time. It is proposed that the evidence be given on Tuesday night, New Zealand time, 24 September 2013.

[4]  In discussions with counsel the video-link will be booked for six hours, so that the latest the Court can sit in hearing Mr Morriset’s evidence will be midnight. That is based on an estimation by senior counsel for Jeanswest, Mr Elliott QC, of the time required for cross-examination. It also takes account of the fact that Mr Morriset’s evidence will be given through an interpreter.

[5] As a cut off time is required for the video link, I have directed that cross- examination  may  only  go  until  11.15pm,  leaving  at  least  45  minutes  for  re-

examination. Should counsel for G-Star indicate that less time is required, additional time could be made available to Mr Elliot. I have no desire to interrupt the extent of relevant cross-examination unless absolutely necessary due to the constraints of taking evidence by video-link.

[6] The trial was to begin on Tuesday 24 September 2013.  It will commence at 3pm that day. Mr Marriott will open the case for G-Star. Following opening the Court will adjourn until 5.45pm, when the Registrar will establish the video-link to the Netherlands.

[7]      In terms of the practical arrangements, I record:

(a)The responsibility of getting physical garments to the place at which Mr Morriset will give evidence will be for G-Star, in respect of those exhibits it intends to produce, and Jeanswest, in respect of any additional garments that it wishes to put in cross-examination to Mr Morriset. Jeanswest’s costs of conveying the physical exhibits to the location in Amsterdam will be borne in the first instance by G-Star. Although I have directed that all relevant costs be paid by G-Star, that will be subject to review as to reasonableness at the conclusion of the trial, in case any issues arise as to wasted time and expense.

(b)Arrangements will be made for the documentary exhibits contained in the bundles of documents to be sent to Amsterdam and available for Mr Morriset in the same form as they will be available for witnesses in New Zealand. G-Star will arrange for an independent solicitor to be present when Mr Morriset gives his evidence. The name of that solicitor will be provided to the solicitors for Jeanswest as soon as possible.

(c)G-Star will arrange for an interpreter to be available in New Zealand while Mr Morriset’s evidence is given. A certified translator will also be present in Amsterdam to assist in referring to documents where necessary.

(d)A facsimile machine will be made available at the video-link venue and operated under the supervision of the independent solicitor, should further documents need to be sent. Simialrly, a machine will be available in the Court in Auckland.

(e)The video-link facilities will include a separate camera and monitor for documents.

(f)The only persons who will be present in the Amsterdam conference room, other than the witness, will be those operating the video and facsimile facilities, the independent solicitor and the translator.

(g)Mr Marriott will file a memorandum prior to the commencement of Mr Morriset’s evidence to confirm that Mr Morriset has received written instructions as to the requirements under New Zealand law that there be no communication with anyone connected with the case while under cross-examination.  That will be served on counsel for Jeanswest at the same time as it is filed.

[8] There are two other witnesses who will need to give evidence by video-link. One, Mr Piet Poelman, is a senior executive with the Australian distribution company, G-Star Australia Pty Ltd. He is based in Sydney.

[9] The other is a witness who was served with a subpoena to travel to New Zealand for the hearing, Ms Lawson. She is resident in Melbourne. While an application to set aside that subpoena has been made, that has been put forward on the basis that she is content to give evidence by video-link.

[10] Immediately after this hearing, Mr Marriott will speak to Ms Singh, from the Registry, and provide relevant information to enable her to establish a video-link with Melbourne for Ms Lawson’s evidence at 10am New Zealand time on Wednesday 25 September 2013. Mr Poelman’s evidence is be taken not earlier than 2.15pm (New Zealand time) from Sydney that day.

[11] The times required shall be discussed between counsel and advised to Ms Singh so that the appropriate amount of video-link time is booked. The same arrangements shall pertain in respect of accompanying directions for the evidence of Ms Lawson and Mr Poelman as for Mr Morriset, save for the fact that there is no need for an interpreter or a translator.

[12]   Mr Marriott will ensure that another witness is available on Wednesday next, in case either the evidence of Ms Lawson or Mr Poelman does not take the allotted time. That will enable the case to proceed further, rather than awaiting the next video-link witness.

Interrogatories

[13] In the course of yesterday’s hearing I considered an application by G-Star for leave to issue interrogatories. I adjourned that part of the application which dealt with para 5.1 of the draft then before me. I granted the second in relation to paragraph 5.2(a)–(d) (inclusive). I directed in relation to the latter that answers be provided no later than 9am on Monday 23 September 2013. For reasons that will become apparent, that time is extended until 5pm on 23 September 2013.

[14] In respect of the issues raised in paragraph 5.1, counsel have conferred. They have agreed upon a form of words that can be used. Having reached that agreement, there is no opposition from Jeanswest to an order granting leave for interrogatories to be administered. For convenience, I set out the questions in 5.1:

5.1Document 1 refers to a “freelance patternmaker”.   To the best of your knowledge and belief and having made reasonable enquiries:

(a)Who is the freelance patternmaker?

(b)What commercial or other relationship did the freelance patternmaker have to or with Jeanswest Corporation Pty Ltd, Jeanswest Wholesale Pty Ltd and/or the defendant (and/or any person related to Jeanswest Corporation Pty Ltd, Jeanswest Wholesale Ltd or the defendant) in relation to the design of the Dean Biker Slim jeans?

(c)What instructions and what materials were provided to the freelance patternmaker by Jeanswest Corporation Pty Ltd, Jeanswest Wholesale Pty Ltd or the defendant (or any person related   to   Jeanswest   Corporation   Pty   Ltd,   Jeanswest

Wholesale Pty Ltd or the defendant) in relation to the design of the Dean Biker Slim jeans?

(d)What patters were created by the freelance patternmaker in relation to the design of the Dean Biker Slim jeans?

(e)In relation to any such patters:

(i)Why have the patterns not been discovered or produced for inspection?

(ii)What enquiries were made of the freelance patternmaker by Jeanswest Wholesale Corporation Pty Ltd, Jeanswest Wholesale Pty Ltd and/or the defendant in order to obtain copies of the patterns for the purposes of discovery in this proceeding?

(iii)Where are the patterns now?

(iv)Who now has possession of the patterns?

(v)In the event that the patters are no longer in existence, when were the patterns disposed of or destroyed?

[15]     The  answers  to  those  questions  shall  also  be  provided  by  5pm  on  23 September 2013.

P R Heath J