Sporte Leisure Pty Ltd v Paul’s International Pty Ltd (No 2) [2010] FCA 451

Sporte Leisure Pty Ltd v Paul’s International Pty Ltd (No 2) [2010] FCA 451

The adjournment was granted because Mr Ahmed's evidence was of considerable importance to the central issue of consent and potentially critical to the outcome of the infringement case, the proposed delay was not excessive in light of that importance, and the respondents had taken reasonable steps to secure his attendance despite the pending visa application. Videolink evidence was not ordered because it was not pressed and the likely cross-examination raised issues of credit and document authenticity.

Jurisdiction
Australia
Judgment Date
12 May 2010
Procedural Posture
Trade Mark Infringement and Trade Practices Act Proceeding With Cross Claim / Part Heard Further Hearing; Respondents' Notice of Motion to Vacate Hearing Dates and Adjourn Further Hearing
Outcome
Adjournment granted; respondents' notice of motion otherwise dismissed; respondents ordered to pay applicants' costs thrown away by reason of the adjournment on an indemnity basis.
Legal Topics
['trade Mark Infringement' 'consent to Application of Trade Marks' 'defence Under S 123(1) of the Trade Marks Act 1995 (cth)' 'alleged Counterfeit Goods' 'trade Practices Act Misleading or Deceptive Conduct' 'adjournment' 'evidence by Videolink' 'witness Availability and Visa Delay' 'indemnity Costs Thrown Away']
['intellectual Property' 'trade Marks' 'consumer Protection' 'civil Procedure' 'evidence'] ['trade Mark Infringement' 'consent to Application of Trade Marks' 'defence Under S 123(1) of the Trade Marks Act 1995 (cth)' 'alleged Counterfeit Goods' 'trade Practices Act Misleading or Deceptive Conduct' 'adjournment' 'evidence by Videolink' 'witness Availability and Visa Delay' 'indemnity Costs Thrown Away']

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Procedural Posture

Trade Mark Infringement and Trade Practices Act Proceeding With Cross Claim / Part Heard Further Hearing; Respondents' Notice of Motion to Vacate Hearing Dates and Adjourn Further Hearing

Legal Issues

  1. 1 ['Whether the further hearing dates should be vacated and the proceeding adjourned because Mr Imran Ahmed had not yet been granted a visa to travel from Pakistan to Australia for cross-examination.' 'Whether, as an alternative, Mr Ahmed should be permitted to give evidence via videolink.' "Whether Mr Ahmed's evidence was sufficiently important to justify an adjournment." 'Who bears the onus of establishing whether the relevant goods were manufactured with the licence of the trade mark owner under ss 120(1) and 123(1) of the Trade Marks Act 1995 (Cth).']

Ratio Decidendi

The adjournment was granted because Mr Ahmed's evidence was of considerable importance to the central issue of consent and potentially critical to the outcome of the infringement case, the proposed delay was not excessive in light of that importance, and the respondents had taken reasonable steps to secure his attendance despite the pending visa application. Videolink evidence was not ordered because it was not pressed and the likely cross-examination raised issues of credit and document authenticity.

Court Disposition

Adjournment granted; respondents' notice of motion otherwise dismissed; respondents ordered to pay applicants' costs thrown away by reason of the adjournment on an indemnity basis.

Orders

  • ['The proceeding be fixed for further hearing commencing at 10:15 am on 5 July 2010, for 2 days.' "The respondents' notice of motion filed 5 May 2010 otherwise be dismissed." "The respondents pay the applicants' costs thrown away by reason of the adjournment on an indemnity basis."]