FEDERAL COURT OF AUSTRALIA

Baiada Pty Ltd v PQM (Vic) Pty Ltd trading as Lilydale Wholesale Meats [2019] FCA 1604

File number:

NSD 1484 of 2019

Judge:

YATES J

Date of judgment:

25 September 2019

Catchwords:

TRADE MARKS where applicants seek interim injunctive relief for trade mark infringement – final injunctions granted by consent

CONSUMER LAW – where applicants seek interim injunctive relief for contraventions of the Australian Consumer Law –final injunctions granted by consent

Legislation:

Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law

Date of hearing:

25 September 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Trade Marks

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicants:

Mr A Fox

Solicitor for the Applicants:

Gadens

Counsel for the Respondents:

The Second Respondent appeared on behalf of himself and the First Respondent

ORDERS

NSD 1484 of 2019

BETWEEN:

BAIADA PTY LTD ACN 000 426 808

First Applicant

BAIADA POULTRY PTY LIMITED ACN 002 925 948

Second Applicant

AND:

PQM (VIC) PTY LTD ACN 631 205 831 T/AS LILYDALE WHOLESALE MEATS

First Respondent

HENRI-CLAUDE LOUIS PHILLIPE DUPONT, PREVIOUSLY KNOWN AS AND ALSO KNOWN AS PHILLIP WICKHAM

Second Respondent

JUDGE:

YATES J

DATE OF ORDER:

25 SEPTEMBER 2019

BY CONSENT, AND WITHOUT ADMISSIONS AS TO LIABILITY, THE COURT ORDERS THAT:

1.    Subject to Order 2, the first respondent, whether by itself, its servants or agents, be immediately:

(a)    restrained from offering for sale, promoting for sale, selling or distributing any and all of the PQM Products as defined in the Statement of Claim under the name ‘LILYDALE free range meats’;

(b)    restrained from offering for sale, promoting or sale, selling or distributing any meat and poultry products under or by reference to the name ‘Lilydale Free Range’. ‘Lilydale Free Range Meats’ or any sign that is the same as or substantially identical with or deceptively similar to ‘Lilydale Free Range Chicken’;

(c)    restrained from offering for sale, promoting for sale, selling or distributing any meat and poultry products containing the term ‘Lilydale’ under or by reference to get up the same as or substantially similar to the ‘Get-Up’ as described in paragraph 10 of the Statement of Claim (Get-up).

2.    The first respondent will not be in breach of Order 1 if:

(a)    it uses the term ‘Lilydale’ on product packaging and in the name of a product to indicate that the product is sourced or produced from Lilydale, Victora; and

(b)    the word ‘Lilydale’ does not appear on any product packaging as the most prominent or significant word used in any brand name or sign used for such product.

3.    The second respondent whether by himself, his servants or agents or howsoever is immediately restrained from engaging in conduct authorising, licensing or procuring:

(a)    the first respondent to:

(i)    offer for sale, promote for sale, sell or distribute any and all of the PQM Products as defined in the Statement of Claim under the name ‘LILYDALE free range meats’;

(ii)    offer for sale, promote for sale, sell or distribute any meat and poultry products under or by reference to the name ‘Lilydale Free Range’, ‘Lilydale Free Range Meats’ or any sign that is the same as or substantially identical with or deceptively similar to ‘Lilydale Free Range Chicken’;

(iii)    offer for sale, promote for sale, sell or distribute any meat and poultry products containing the term ‘Lilydale’ under or by reference to get up the same as or substantially similar to the Get-Up; or

(iv)    offer for sale, promote for sale, sell or distribute any product that contravenes the terms of Orders 1 and 2.

(b)    any other person to:

(i)     offer for sale, promote for sale, sell or distribute any and all of the PQM Products as defined in the Statement of Claim under the name ‘LILYDALE free range meats’;

(ii)    offer for sale, promote for sale, sell or distribute any meat and poultry products under or by reference to the name ‘Lilydale Free Range’, ‘Lilydale Free Range Meats’ or any sign that is the same as or substantially identical with or deceptively similar to ‘Lilydale Free Range Chicken’;

(iii)    offer for sale, promote for sale, sell or distribute any meat and poultry products containing the term ‘Lilydale’ under or by reference to get up the same as or substantially similar to the Get-Up; or

(iv)    offer for sale, promote for sale, sell or distribute any product that contravenes the terms of Orders 1 and 2.

4.    The proceeding be otherwise dismissed with no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

YATES J:

1    The applicants have commenced proceedings against the respondents for trade mark infringement and contraventions of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)).

2    The matter is presently before me on an application for interim injunctive relief. It first came before me on Friday, 13 September 2019 as an application for abridgment of time for service of the originating application and other documents. I made orders abridging the time for service to 4.00 pm on Monday, 16 September 2019 and listed the matter for case management and, if appropriate, hearing of the applicants’ claim for interim injunctive relief on 18 September 2019 at 9:30 am. Service was duly effected. However, on 17 September 2019, the second respondent, on his own behalf and apparently on behalf of the first respondent, sent an email communication to the Registry requesting an adjournment of the listing on 18 September 2019 “for a sufficient time in order to appoint and brief Counsel in this matter”.

3    When the proceeding was called at 9:30 am on 18 September 2019, there was no appearance by the respondents. The applicants expressed their intention to move on their application for interim injunctive relief. I stood the matter down until the afternoon.

4    In light of the scope of the interim injunctive relief sought by the applicants, and in light of the relatively limited notice the respondents had of the applicants’ claims in that regard, I considered it to be appropriate that the hearing of the applicants’ claim for interim injunctive relief be adjourned for one week to give the respondents the opportunity to file any affidavits on which they wished to rely in answer to that claim. To this end, I made orders that the respondents file and serve all affidavit evidence upon which they proposed to rely in answer to the application for interim injunctive relief by 12.00 noon on 24 September 2019, and that a copy of the Court’s orders be served on the respondents using the email addresses which the respondents had used in correspondence with the applicants and the Court.

5    The respondents have not filed any affidavits; but they have appeared today by telephone. Mr DuPont, the second respondent, is the sole director of the first respondent. I granted leave for him to appear on behalf of the first respondent.

6    The parties have proposed orders by consent and without admissions of liability. These orders, if made, will have the effect that the proceeding will be dismissed with no order as to costs, with certain injunctions in final form being granted.

7    I have reviewed the form of the orders and I am satisfied that they are appropriate. Mr DuPont has confirmed today that he has signed the orders on his own behalf and on behalf of the first respondent. These orders will be made.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:    

Dated:    26 September 2019