Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137

FEDERAL COURT OF AUSTRALIA

Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137

PRACTICE AND PROCEDURE – Application for leave to appeal against decision of docket judge refusing an application to enter summary judgment in favour of applicant – No prima facie defence shown on the evidence – Whether summary judgment ought to be refused where a respondent merely seeks to put applicant to proof of its case – Significance of recent enactment of s 31A of Federal Court of Australia Act – Effect of the formula 'no reasonable prospect of successfully defending the proceeding' – Application for leave to appeal granted. Federal Court of Australia Act 1976 (Cth), s 31A

VANS, INC. v OFFPRICE.COM.AU PTY LIMITED, MARJORY PTY LTD, MICHAEL WAGNER, MICHAEL O'SHEA VID131 of 2006 WILCOX J 22 FEBRUARY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID131 of 2006

BETWEEN: VANS, INC.

APPLICANT

AND: OFFPRICE.COM.AU PTY LIMITED

FIRST RESPONDENT

MARJORY PTY LTD

SECOND RESPONDENT

MICHAEL WAGNER

THIRD RESPONDENT

MICHAEL O'SHEA

FOURTH RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 22 FEBRUARY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicant, Vans, Inc., be granted leave to appeal against the order of Finkelstein J, made on 3 February 2006 in Federal Court Proceeding No VID382 of 2005, dismissing an application for summary judgment against the second respondent, Marjory Pty Limited. 2. The directions for trial made by Finkelstein J on 17 February 2006 be stayed, pending determination of the appeal, or earlier order of a judge. 3. The costs of this application be costs in the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.