Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561

FEDERAL COURT OF AUSTRALIA

Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561

PRACTICE AND PROCEDURE – video link for testimony from overseas and interstate witnesses – two witnesses too ill to travel by air to Sydney – increase in security for costs.

Federal Court of Australia Act 1976 (Cth) s 47A – 47G Copyright Act 1968 (Cth) s 202(1) Trade Practices Act 1974 (Cth) ss 52 and 53(g)

Laporte Group Australia Ltd v Vatselias (Supreme Court of NSW, unreported, 15 November 1991) cited Lamesa Holdings BV v Commissioner of Taxation (Federal Court of Australia, unreported, 30 July 1998) cited Mewett v Commonwealth of Australia [1998] FCA 1360 cited Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 cited Versace v Monte [2001] FCA 1454 cited Australian Competition And Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 cited SHELDON & HAMMOND PTY LTD v METROKANE INC N 634 OF 2002 CONTI J 16 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 634 OF 2002

BETWEEN: SHELDON AND HAMMOND PTY LTD (ACN 076 567 989)

APPLICANT

AND: METROKANE, INC

RESPONDENT

METROKANE, INC

CROSS-CLAIMANT

SHELDON AND HAMMOND PTY LTD (ACN 076 567 989)

CROSS-RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 16 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Edward Kilduff to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney. 2. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Robert Larimer to be adduced by the respondent be given by video link from New York in the United States pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth). 3. At the hearing of the proceedings commencing 24 March 2003, any testimony of Mr Daniel Simons to be adduced by the respondent be given in person at the Federal Court of Australia in Sydney, or, if so requested by reason of medical circumstances then prevailing, in Brisbane. 4. The respondent provide within 21 days of the date of this order further security for costs in favour of the applicant by way of payment into Court of the sum of $26,000. 5. The respondent produce to the applicant's solicitors on or before 24 December 2002 the documents set out in the schedule to these orders. 6. To the extent that the respondent does not presently have the documents referred to in order 5 above, the respondent make such requests and do such things as may be necessary to obtain from: (a) Mr Kilduff; (b) Link Product Design. Inc. (c) Pollen Design. The documents referred to in the Schedule and produce those documents to the applicant's solicitors on or before 24 December 2002. 7. The costs of the present applications be reserved. 8. Liberty be granted to either party to apply in relation to these orders on 3 days' notice. SCHEDULE (a) Copyright Registration No. V81023-879 referred to in Exhibit "BL-9" to Mr Larimer's affidavit sworn 7 November 2002; and (b) documents evidencing the break-up of the entire design fees and mold fees attributable to the RABBIT corkscrew referred to in paragraph 27 of Mr Kilduff's affidavit sworn 7 November 2002. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.