NOT FOR GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) NG 347 of 1995
)
GENERAL DIVISION )
BETWEEN: DASCH PTY LIMITED
Applicant
AND: BONNET IMPORTS PTY LIMITED
First Respondent
GARY PARKER
Second Respondent
REJECT PTY LIMITED
Third Respondent
SUNBIRD DISTRIBUTORS PTY LIMITED
Fourth Respondent
E COMRIE THOMSON AUSTRALIA PTY LIMITED
Fifth Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 1 August 1995
REASONS FOR JUDGMENT
BURCHETT J.:
On all the evidence it seems to me that there is room for the inference that members of the public would associate a particular range of statuettes of a particular design, colour, type and appearance or series of appearances with the applicant; and there is evidence to suggest that what is being sold is a deliberate copy of that range of products, which
would, as a matter of probability, have acquired some reputation in the marketplace.
In those circumstances it seems to me there is, within the meaning of the authorities, a prima facie case of a breach of s. 52 of the Trade Practices Act by the corporate respondents. In the case of Mr Parker, there is quite suggestive evidence of a very personal involvement, and of a consciousness on his part, leading him to behave aggressively and unreasonably when challenged about the matter, a consciousness that, indeed, he was involved in breaches of the rights of the applicant. In those circumstances I think there is also a prima facie case as regards him under s. 75B of the Trade Practices Act.
It is put that there has been a delay which should move my discretion against the grant of interlocutory relief. There has been a delay of some three months in seeking the present interlocutory order, although the proceedings were commenced quite promptly - some evidence was filed quite promptly, and the applicant appears to have proceeded thereafter with reasonable dispatch to prepare further evidence, the last of its affidavits having only been filed, however, quite recently. The respondents for whom Mr Giugni appears actually offered an undertaking, but not an undertaking to the court, an undertaking as between parties, and a copy of that has been tendered as exhibit 1. It does seem to me that the inferences favouring the applicant have not been answered in any way by the respondents, and that some degree of delay on the applicant's part was reasonable, to assemble the evidence and to see whether the respondents would in fact put it in issue in a serious way, or whether on the other hand they would be prepared to consent to some interlocutory regime.
In all the circumstances, I do not think I should exercise my discretion against the applicant because of the delay that has occurred. I think the balance of convenience, the applicant having given an undertaking as to damages, does favour my granting relief. Proof of the damage done to the applicant by the continuance of the conduct alleged would pose problems, in my opinion, and in the absence of any attempt to justify what has been done, I consider that interlocutory relief as sought ought to be granted. Accordingly, I shall make an order pursuant to paragraph 1 of the notice of motion, until further order, but I shall bring the matter back for further directions within four weeks.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 11 August 1995
Counsel for the Applicant: Mr B.R. Manning
Solicitors for the Applicant: J.E. Mills & Associates
Solicitor for the First and Mr M.A. Giugni of
Second Respondents: Gates Moffitt
Counsel for the Third Respondent:Mr B. Debuse
Solicitor for the Third
Respondent: Robert D. Jonas
Date of hearing: 1 August 1995
