Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd [2017] FCA 340

Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd [2017] FCA 340

The adjournment application was refused because Luvalot did not provide sufficient material or a proper explanation for a very late application to vacate a trial date. The evidence suggested Ms Bi Zi was unwilling rather than unable to give evidence, and an adjournment on that basis would be pointless. There were critical gaps about when Luvalot or its lawyers knew of the pregnancy, travel limitations, passport and visa issues, and what steps had been taken to secure the witnesses' attendance. In the absence of a proper explanation, refusal was appropriate under the principles in Aon.

Jurisdiction
Australia
Judgment Date
29 March 2017
Procedural Posture
Interlocutory Application in Intellectual Property Proceeding Concerning Alleged Registered Design Infringement and Cross Claim Challenging Validity / Application by the Respondent/cross Claimant to Adjourn a Trial Listed to Start on 4 April 2017
Outcome
Application for adjournment dismissed; indemnity costs ordered against the Respondent/Cross-Claimant; proposed video-link application and mediation listed.
Legal Topics
['adjournment of Trial' 'unavailability of Overseas Witnesses' 'evidence by Video Link' 'indemnity Costs' 'registered Design Infringement' 'validity of Registered Design']
['practice and Procedure' 'intellectual Property' 'copyright and Industrial Designs'] ['adjournment of Trial' 'unavailability of Overseas Witnesses' 'evidence by Video Link' 'indemnity Costs' 'registered Design Infringement' 'validity of Registered Design']

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Procedural Posture

Interlocutory Application in Intellectual Property Proceeding Concerning Alleged Registered Design Infringement and Cross Claim Challenging Validity / Application by the Respondent/cross Claimant to Adjourn a Trial Listed to Start on 4 April 2017

Legal Issues

  1. 1 ['Whether the trial should be adjourned because two overseas witnesses were unavailable or unwilling to travel to Australia or to a video-link facility in Guangzhou to give evidence.' 'Whether Luvalot provided sufficient material and explanation for a late adjournment application made shortly before trial.' 'Whether the alleged absence of passports and visas for the Chinese witnesses justified an adjournment.' 'Whether indemnity costs should be ordered against Luvalot on the adjournment application.']

Ratio Decidendi

The adjournment application was refused because Luvalot did not provide sufficient material or a proper explanation for a very late application to vacate a trial date. The evidence suggested Ms Bi Zi was unwilling rather than unable to give evidence, and an adjournment on that basis would be pointless. There were critical gaps about when Luvalot or its lawyers knew of the pregnancy, travel limitations, passport and visa issues, and what steps had been taken to secure the witnesses' attendance. In the absence of a proper explanation, refusal was appropriate under the principles in Aon.

Court Disposition

Application for adjournment dismissed; indemnity costs ordered against the Respondent/Cross-Claimant; proposed video-link application and mediation listed.

Orders

  • ['The application for an adjournment of the trial is dismissed.' "The Respondent/Cross Claimant pay the Applicant/Cross Respondent's costs of the application on an indemnity basis." 'The proposed application by the Respondent/Cross Claimant for the evidence of one or other of its witnesses to be taken by video-link...