James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) (ACN 010 874 834) (No 2) [2009] FCA 697

James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) (ACN 010 874 834) (No 2) [2009] FCA 697

The applicants remained the moving parties or aggressors in the litigation, and the reasoning supporting the earlier security order still applied. Because the matter was close to trial and the trial was estimated to occupy about 15 sitting days, further security was warranted to protect Nolmont against costs after the first day, but not as a complete indemnity; $150,000 was appropriate. Nolmont was not to provide security because it was involved defensively and no sufficient novelty or fresh development justified the late application. Confidentiality disputes should be managed by lists and, if unresolved, determined by the Court. Further particulars were unnecessary because Nolmont...

Jurisdiction
Australia
Judgment Date
25 June 2009
Procedural Posture
Federal Court Proceeding Concerning a Subject Trademark and Cross Claim for Revocation / Interlocutory Motions on Notice Before Trial
Outcome
Further security for costs ordered in favour of Nolmont in part; applicants' motion for security and further particulars refused; directions made for evidentiary objections and confidentiality issues; trial dates vacated; costs reserved.
Legal Topics
['security for Costs' 'further Security for Costs' 'confidentiality Claims Over Discovered Documents' 'admissibility of Affidavit Evidence' 'further and Better Particulars' 'vacation of Trial Dates']
['civil Procedure' 'intellectual Property' 'evidence' 'discovery'] ['security for Costs' 'further Security for Costs' 'confidentiality Claims Over Discovered Documents' 'admissibility of Affidavit Evidence' 'further and Better Particulars' 'vacation of Trial Dates']

Case Brief

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Procedural Posture

Federal Court Proceeding Concerning a Subject Trademark and Cross Claim for Revocation / Interlocutory Motions on Notice Before Trial

Legal Issues

  1. 1 ["Whether the applicants and cross-respondents should provide further security for Nolmont's costs of the trial after the first day and subsequent to the trial." "Whether Nolmont should provide security for the applicants' and cross-respondents' costs up to and including the first day of the action." "Whether documents discovered but claimed to be confidential should be inspected by Nolmont's director and Chief Financial Officer or released to named American legal practitioners retained by the applicants." 'Whether Nolmont should provide further and better particulars of the cross-claim concerning alleged advertising and promotion since 1992.']

Ratio Decidendi

The applicants remained the moving parties or aggressors in the litigation, and the reasoning supporting the earlier security order still applied. Because the matter was close to trial and the trial was estimated to occupy about 15 sitting days, further security was warranted to protect Nolmont against costs after the first day, but not as a complete indemnity; $150,000 was appropriate. Nolmont was not to provide security because it was involved defensively and no sufficient novelty or fresh development justified the late application. Confidentiality disputes should be managed by lists and, if unresolved, determined by the Court. Further particulars were unnecessary because Nolmont...

Court Disposition

Further security for costs ordered in favour of Nolmont in part; applicants' motion for security and further particulars refused; directions made for evidentiary objections and confidentiality issues; trial dates vacated; costs reserved.

Orders

  • ["The applicants provide further security in the sum of $150,000 in a form acceptable to the Registrar of the Court for the respondent's costs from and including the second day of the trial until judgment herein." 'The security referred to in paragraph 1 of this Order be provided by 31 July 2009 and in default the...