Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41

FEDERAL COURT OF AUSTRALIA

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41

PRACTICE AND PROCEDURE – application to reopen appeal after judgment given – alleged lack of procedural fairness – alleged determination of appeal on grounds not able to be addressed by appellants – discretion to reopen – criteria – grounds for reopening not made out – motion to vary or set aside judgment dismissed with costs Copyright Act 1968 (Cth) Federal Court Rules O 35, r 7 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs [1995[ FCA 212 Smith v New South Wales Bar Association (1992) 176 CLR 256 VENUS ADULT SHOPS PTY LTD, TROPHER INSTALLATIONS PTY LTD, ALAN GEORGE VASSALLO, JERRY GORDON AND PHILLIP SALVATORE DE PRIMA v FRASERSIDE HOLDINGS LTD AND CALVISTA AUSTRALIA PTY LTD NSD 1617 OF 2005

FRENCH, KIEFEL AND FINKELSTEIN JJ

28 MARCH 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1617 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: VENUS ADULT SHOPS PTY LTD

First Appellant

TROPHER INSTALLATIONS PTY LTD

Second Appellant

ALAN GEORGE VASSALLO

Third Appellant

JERRY GORDON

Fourth Appellant

PHILLIP SALVATORE DE PRIMA

Fifth Appellant

AND: FRASERSIDE HOLDINGS LTD

First Respondent

CALVISTA AUSTRALIA PTY LTD

Second Respondent

JUDGES: FRENCH, KIEFEL & FINKELSTEIN JJ DATE OF ORDER: 28 MARCH 2007

WHERE MADE: brisbane

THE COURT ORDERS THAT:

1. The appellants' motion filed 3 January 2007 is dismissed. 2. The appellants are to pay the respondents' costs of the motion. 3. The orders of the Court made on 20 December 2006 are to be entered forthwith.