GSM (Trademarks) Pty Ltd v Shao (No 2) [2006] FCA 1393

GSM (Trademarks) Pty Ltd v Shao (No 2) [2006] FCA 1393

Because the affidavit sought by the applicants would require the respondent to create a document disclosing information about manufacture, importation and dealings in allegedly infringing goods, and such contents may tend to incriminate him given s 148 of the Trade Marks Act 1995 (Cth), it was inappropriate to order the Norwich Pharmacal relief sought.

Jurisdiction
Australia
Judgment Date
12 October 2006
Procedural Posture
Trade Marks Proceeding Concerning Alleged Infringement of the BILLABONG Mark / Notice of Motion Made Returnable Instanter Seeking Final Relief Including Norwich Pharmacal Relief; Directions Hearing
Outcome
The Court declined to order the Norwich Pharmacal relief sought and made procedural directions and ancillary orders.
Legal Topics
['norwich Pharmacal Relief' 'privilege Against Self Incrimination' 'preliminary Discovery or Disclosure' 'suppression or Non Publication Order' 'interlocutory Directions']
['trade Marks' 'civil Procedure' 'evidence'] ['norwich Pharmacal Relief' 'privilege Against Self Incrimination' 'preliminary Discovery or Disclosure' 'suppression or Non Publication Order' 'interlocutory Directions']

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Procedural Posture

Trade Marks Proceeding Concerning Alleged Infringement of the BILLABONG Mark / Notice of Motion Made Returnable Instanter Seeking Final Relief Including Norwich Pharmacal Relief; Directions Hearing

Legal Issues

  1. 1 ['Whether the respondent should be ordered to file and serve an affidavit disclosing identities, contact details and details of persons and entities involved in manufacture, importation, sale, supply, distribution, promotion or provision of goods bearing the BILLABONG mark.' 'Whether the privilege against self-incrimination made it inappropriate to require the respondent to create an affidavit whose contents may tend to incriminate him.' 'Whether publication of exhibit material should be forbidden under s 50 of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

Because the affidavit sought by the applicants would require the respondent to create a document disclosing information about manufacture, importation and dealings in allegedly infringing goods, and such contents may tend to incriminate him given s 148 of the Trade Marks Act 1995 (Cth), it was inappropriate to order the Norwich Pharmacal relief sought.

Court Disposition

The Court declined to order the Norwich Pharmacal relief sought and made procedural directions and ancillary orders.

Orders

  • ['Grants leave to the respondent to file in Court a Notice of Appearance signed by the respondent and dated 12 September 2006.' 'Orders that the publication of exhibit A4 (as retendered on the hearing commencing at 5:00 pm on 12 October 2006) be forbidden without the leave of the Court or a Judge in accordance with...