Geneva Laboratories Ltd v Pharmacy Depot Hurstville Pty Ltd [2018] FCA 516

Geneva Laboratories Ltd v Pharmacy Depot Hurstville Pty Ltd [2018] FCA 516

There is no arguable basis or reasonable prospect, on the objective evidence, that Ms Naghipoor had knowledge or was recklessly indifferent to whether the goods were counterfeit, or otherwise acted beyond her good faith role as sole director of U-Care, and thus the claims should not proceed against her.

Parties
First Applicant: Geneva Laboratories Limited; Second Applicant: Union-Swiss (Proprietary) Limited; First Respondent: Pharmacy Depot Hurstville Pty Ltd (In Liq) (ACN 142 283 449); Seventh Respondent: Mina Attia; Tenth Respondent: Hillmear Trading Pty Ltd (ACN 142 283 449); Eleventh Respondent: U-Care Pty Ltd (ACN 132 696 336); Twelfth Respondent: GBW Australia Pty Ltd (ACN 156 604 116); Thirteenth Respondent: Krunal Mehta
Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Interlocutory Application / Application to Join Party (joinder of Non Party as Respondent); Reasons for Summary Dismissal of That Joinder
Outcome
Interlocutory application for joinder of Ms Naghipoor dismissed with costs.
Legal Topics
Accessory Liability, Joint Tortfeasance, Summary Dismissal, Passing Off, Trademark Infringement, Copyright Infringement, Australian Consumer Law, Director Liability, Joinder of Parties
Intellectual Property Practice and Procedure Accessory Liability Joint Tortfeasance Summary Dismissal Passing Off Trademark Infringement Copyright Infringement +3 more

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Parties

Geneva Laboratories Limited

First Applicant

Union-Swiss (Proprietary) Limited

Second Applicant

Pharmacy Depot Hurstville Pty Ltd (In Liq) (ACN 142 283 449)

First Respondent

Mina Attia

Seventh Respondent

Hillmear Trading Pty Ltd (ACN 142 283 449)

Tenth Respondent

U-Care Pty Ltd (ACN 132 696 336)

Eleventh Respondent

GBW Australia Pty Ltd (ACN 156 604 116)

Twelfth Respondent

Krunal Mehta

Thirteenth Respondent

Procedural Posture

Interlocutory Application / Application to Join Party (joinder of Non Party as Respondent); Reasons for Summary Dismissal of That Joinder

Legal Issues

  1. 1 Whether the sole director of a respondent company should be joined as a party as an accessory or joint tortfeasor for the company's alleged contraventions of the ACL, Trade Marks Act, Copyright Act, and passing off.
  2. 2 Whether there was a reasonable prospect of proving the director had knowledge of essential elements or was recklessly indifferent to alleged infringements.
  3. 3 Whether summary dismissal of the joinder application is warranted.

Ratio Decidendi

There is no arguable basis or reasonable prospect, on the objective evidence, that Ms Naghipoor had knowledge or was recklessly indifferent to whether the goods were counterfeit, or otherwise acted beyond her good faith role as sole director of U-Care, and thus the claims should not proceed against her.

Court Disposition

Interlocutory application for joinder of Ms Naghipoor dismissed with costs.

Orders

  • The applicants be granted leave to file and serve a statement of claim in the form sought but omitting any reference to the fourteenth respondent (Ms Naghipoor).
  • The respondents file and serve any defence and cross-claim on or before 13 April 2018.