Selth v Australasian Barrister Chambers Pty Limited (No 2) [2016] FCA 46

Selth v Australasian Barrister Chambers Pty Limited (No 2) [2016] FCA 46

The adjournment and cross-claim applications were refused because the proposed cross-claim had not been formulated, the relevant issues had been alive for a considerable time, earlier opportunities and extensions for a cross-claim had passed, the respondents had disavowed any interest in a cross-claim, and the trial was imminent; the Court was not persuaded that the interests of justice favoured delaying the trial for administrative trade mark proceedings. The notice to produce was set aside because the documents sought were not documents mentioned in Mr Selth's affidavit within r 20.31 but were instead categories of documents amounting to de facto discovery. Leave to appeal was refused...

Jurisdiction
Australia
Judgment Date
28 January 2016
Procedural Posture
Intellectual Property, Trade Marks / Interlocutory Applications for Adjournment of Trial, Leave to File and Serve a Cross Claim, Setting Aside a Notice to Produce, and Leave to Appeal From Refusal of an Adjournment
Outcome
All applications by the remaining respondents for adjournment, leave to file and serve a cross-claim, and leave to appeal were refused; the applicants' application to set aside the notice to produce was granted; costs were reserved.
Legal Topics
['adjournment of Trial' 'leave to Bring a Cross Claim' 'notice to Produce' 'leave to Appeal' 'federal Court Rules 2011 R 20.31']
['practice and Procedure' 'intellectual Property' 'trade Marks'] ['adjournment of Trial' 'leave to Bring a Cross Claim' 'notice to Produce' 'leave to Appeal' 'federal Court Rules 2011 R 20.31']

Case Brief

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Procedural Posture

Intellectual Property, Trade Marks / Interlocutory Applications for Adjournment of Trial, Leave to File and Serve a Cross Claim, Setting Aside a Notice to Produce, and Leave to Appeal From Refusal of an Adjournment

Legal Issues

  1. 1 ['Whether the trial listed for 1 February 2016 to 5 February 2016 should be adjourned to permit the remaining respondents to bring a proposed cross-claim and to await administrative trade mark proceedings.' 'Whether leave should be granted to file and serve a proposed cross-claim alleging misleading conduct in relation to trade mark applications and commencement of litigation.' 'Whether the notice to produce issued by the second respondent on 27 January 2016 should be set aside under r 20.31 of the Federal Court Rules 2011.' 'Whether leave should be granted to appeal from the interlocutory refusal of the adjournment application.']

Ratio Decidendi

The adjournment and cross-claim applications were refused because the proposed cross-claim had not been formulated, the relevant issues had been alive for a considerable time, earlier opportunities and extensions for a cross-claim had passed, the respondents had disavowed any interest in a cross-claim, and the trial was imminent; the Court was not persuaded that the interests of justice favoured delaying the trial for administrative trade mark proceedings. The notice to produce was set aside because the documents sought were not documents mentioned in Mr Selth's affidavit within r 20.31 but were instead categories of documents amounting to de facto discovery. Leave to appeal was refused...

Court Disposition

All applications by the remaining respondents for adjournment, leave to file and serve a cross-claim, and leave to appeal were refused; the applicants' application to set aside the notice to produce was granted; costs were reserved.

Orders

  • ['The application to adjourn the trial of the action is refused.' 'The application for leave to file and serve a cross-claim is refused.' 'The notice to produce issued by the second respondent dated 27 January 2016 is set aside.' 'The application for leave to appeal from the order dismissing the application for...