Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894

Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894

The Court refused to revisit the 8 June 2021 grant of leave because Cantarella's application was not based on any material change in circumstances or newly discovered material; the matters relied on had been put, or could have been put, at the original leave hearing. The Molinari affidavits being late-served did not justify imposing a discovery-like condition that would not have been imposed had the affidavits been served within time. Cantarella was to be placed, within reason, in the position it would have occupied had the affidavits been served within time, but that did not require the additional conditions sought.

Jurisdiction
Australia
Judgment Date
04 August 2021
Procedural Posture
Practice and Procedure Interlocutory Application in Trade Mark Proceeding / Application to Impose Additional Conditions on a Grant of Leave to Adduce and Rely on Further Affidavit Evidence Served Out of Time, During a Final Hearing Adjourned Part Heard
Outcome
Cantarella's application refused.
Legal Topics
['interlocutory Orders' 'leave to Adduce Affidavit Evidence' 'conditions on Leave' 'variation of Interlocutory Orders' 'non Party Documents' 'overseas Witnesses' 'trade Mark Proprietorship']
['practice and Procedure' 'intellectual Property' 'trade Marks'] ['interlocutory Orders' 'leave to Adduce Affidavit Evidence' 'conditions on Leave' 'variation of Interlocutory Orders' 'non Party Documents' 'overseas Witnesses' 'trade Mark Proprietorship']

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Procedural Posture

Practice and Procedure Interlocutory Application in Trade Mark Proceeding / Application to Impose Additional Conditions on a Grant of Leave to Adduce and Rely on Further Affidavit Evidence Served Out of Time, During a Final Hearing Adjourned Part Heard

Legal Issues

  1. 1 ['Whether the Court should revisit the grant of leave made on 8 June 2021 allowing Lavazza to adduce and rely on the Molinari affidavits.' 'Whether additional conditions should be imposed requiring Lavazza to obtain and produce documents from Molinari relating to books and records investigated by Mr Mengoli and decisions to adopt packaging.' 'Whether procedural fairness required the imposition of those additional conditions given Molinari was outside Australia and ordinary processes such as subpoena might be difficult.']

Ratio Decidendi

The Court refused to revisit the 8 June 2021 grant of leave because Cantarella's application was not based on any material change in circumstances or newly discovered material; the matters relied on had been put, or could have been put, at the original leave hearing. The Molinari affidavits being late-served did not justify imposing a discovery-like condition that would not have been imposed had the affidavits been served within time. Cantarella was to be placed, within reason, in the position it would have occupied had the affidavits been served within time, but that did not require the additional conditions sought.

Court Disposition

Cantarella's application refused.

Orders

  • ["The applicant's/cross-respondent's application for the imposition of additional conditions on the grant of leave given to the respondents/cross-claimant on 8 June 2021 to adduce and rely on further affidavit evidence, be refused."]