FEDERAL COURT OF AUSTRALIA

S.P.I. Spirits (Cyprus) Limited v Diageo Australia Limited [2004] FCA 1780

S.P.I. SPIRITS (CYPRUS) LIMITED (Registered in Cyprus) AND SPIRITS INTERNATIONAL N.V. (Registered in the Netherlands Antilles, Company No 1060883) v DIAGEO AUSTRALIA LIMITED (ACN 004 167 720) AND FEDERAL TREASURY ENTERPRISE (FKP) SOJUZPLODOIMPORT

NSD 1816 OF 2004

GYLES J

17 DECEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.      Pursuant to O 6 r 8 of the Federal Court Rules, Federal Treasury Enterprise (FKP) Sojuzplodoimport (FKPS) be added to these proceedings as the second respondent.

2.      The applicants provide to FKPS copies of all documents referred to in the Statement of Claim by 23 December 2004, its access to such documents to be confined to its solicitor and counsel until further order.

3.      FKPS file and serve any cross-claim by 28 January 2005.

4.      The matter be listed for further directions on 10 February 2005.

5.      The parties have liberty to apply on three days’ prior notice.

6.      Costs of the motion be costs in the cause.

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

REASONS FOR JUDGMENT

1                     This is an application for joinder pursuant to O 6 r 8 of the Federal Court Rules.  I have come to the view that the application on behalf of Federal State Unitary Enterprise (FGUP) should be refused as in my opinion there is not sufficient evidence to establish what that body is or what it does or what it might do.  That application is therefore rejected.

2                     I have come to the conclusion, however, that the application to join Federal Treasury Enterprise Sojuzplodoimport (known as FKPS in the motion) should be granted.  I take that view because of the form of relief claimed, particularly that claimed in Order 6 sought in the application, which makes it clear that what might be loosely called the beneficial title to the trademarks is, in practical terms, in issue.  The evidence in support of the motion underlines that conclusion.

3                     It seems to me that this is rather like what would be called in property law a jus tertii.  In a sense the proceeding between applicants and respondent is shadow boxing instead of the real contest which is that between the parties sought to be joined on the one hand and those who claim the other root of title on the other.  I do not think I know enough about the case to say more than that.  It seems to me to be an appropriate case for the operation of O 6 r 8(1)(b).  I do not need to go beyond that.

4                     I recognise that the joinder of FKPS may interrupt the timetable and may, to some extent, slow down the progress of the litigation.  I also accept that FKPS has not come forward with its own clear claim as it could have done prior to this.  However, neither of those circumstances seems to me sufficient to derogate from the desirability of having all issues and all parties effectually before the Court so that the whole matter can be effectively determined.

5                     It may be assumed that the docket judge will give close attention to the management of the matter to ensure that, so far as possible, the commercial realities are dealt with by an appropriate regime being established and an appropriate timetable for litigation being laid down.  That being my ruling, the question then becomes one of management. 

Associate:

Dated:              4 February 2005