FEDERAL COURT OF AUSTRALIA

Fujian Holdings Pty Ltd (ACN 069 228 879) v Rockman (Australia) Pty Ltd (ACN 051 308 475) [2005] FCA 340

FUJIAN HOLDINGS PTY LTD (ACN 069 228 879) v ROCKMAN (AUSTRALIA) PTY LTD (ACN 051 308 475) AND PUI LUN CHAN

NSD 1982 OF 2003

GYLES J

7 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The hearing date be vacated.

2.      The respondents pay the applicant’s costs thrown away by the adjournment on a solicitor/client basis to be taxed and paid forthwith.

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 on behalf of the respondents to adjourn a hearing fixed for next Monday in a case which has had already an unfortunate procedural history.  It is a trademark infringement case with both a defence and cross claim for revocation.  There is no interlocutory relief on foot and the first respondent has submitted that it has ceased importing the tea products in question and that there is no evidence of continuing to import and sell the goods in question.

2                     I need not recite the procedural history, it has been set out and summarised well in the submissions on behalf of the applicant and what it amounts to is a failure to attend to fundamentals in relation to discovery.  I also note that there may well be gaps in the evidence of both parties on issues upon which they carry the onus of proof.  It is accepted by the respondents that the principal default is theirs.  They also accept that the price for the adjournment will be an appropriate order for costs. 

3                     I have been in two minds about the application because there is a great deal to be said in matters of this kind for the parties to be held to hearing dates.  It is a commercial matter in which the respective parties are able to and ought to be weighing up the cost benefit of what is involved.  To enable what amounts to successive adjournments is not best fitted to force the parties to confront the case that they need to pursue.  Indeed, it is put by the applicants that, in effect, the respondents are putting off the evil day by what amount to manoeuvres.  There certainly has been what amounts to a serious default in relation to the directions which were given.

4                     On the other hand, the applicant’s claim is a money claim.  An award of interest can compensate for delay and I can make an appropriate order so far as costs are concerned.  I appreciate that an adjournment may enable the respondents to buttress their case, as to both the defence and counter claim, but that, I think, is the inevitable result of applying the principles which the High Court have laid down in dealing with matters of this kind.

5                     With some hesitation I vacate the hearing date.  I order that the respondents pay the applicant's costs thrown away by the adjournment on a solicitor/client basis to be taxed and paid forthwith. 

Associate:

Dated:              1 April 2005