Buchanan Turf Supplies Pty Limited v Premier Turf Supplies Pty Ltd [2003] FCA 230

FEDERAL COURT OF AUSTRALIA Buchanan Turf Supplies Pty Limited v Premier Turf Supplies Pty Ltd [2003] FCA 230

TRADE PRACTICES – Plant Breeders Rights – misleading and deceptive conduct DISCOVERY – inferences arising from failure to discover documents DAMAGES – whether the applicant suffers damage where the demand for the applicant's product exceed available supply Plant Breeders Rights Act 1994 (Cth) s 44(4), 53(1)(c) Trade Practices Act 1974 (Cth) s 52, 75B

Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 applied Chamberlain v The Queen (No 2) (1983-1984) 153 CLR 521 applied Jones v Dunkel (1959) 101 CLR 298 referred to Allen v Tobias (1957-1958) 98 CLR 367 followed Steinberg v Commissioner of Taxation (1975-1976) 134 CLR 640 applied Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 applied Chen v Karandonis [2002] NSWCA 412 cited The Ophelia (1916) 2 AC 206 followed Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 applied Cross on Evidence Sixth Australian Edition [17600] BUCHANAN TURF SUPPLIES PTY LIMITED v PREMIER TURF SUPPLIES PTY LTD & ORS N 473 OF 2002 HELY J 25 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 473 OF 2002

BETWEEN: BUCHANAN TURF SUPPLIES PTY LIMITED

ACN 056 449 435)

APPLICANT

AND: PREMIER TURF SUPPLIES PTY LTD

(ACN 089 846 408)

FIRST RESPONDENT

PETER GARAY

SECOND RESPONDENT

MELINDA GARAY

THIRD RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 25 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The first and second respondents be restrained by themselves, their servants or agents from: - representing to anyone that the respondents are authorised to sell the Sir Walter variety of grass; and - representing to anyone that any other grass turf sold by the respondents is the Sir Walter variety of grass. 2. The claim for damages is dismissed. 3. The matter be relisted on a date to be fixed for argument on the question of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.