Jemella Australia Pty Ltd v M Style Plus Pty Ltd [2007] FCA 347

FEDERAL COURT OF AUSTRALIA

Jemella Australia Pty Ltd v M Style Plus Pty Ltd [2007] FCA 347

SEARCH ORDER - alleged counterfeit products - whether prima facie case of breach of trade mark - potential for actual loss or damage - whether there is a real possibility that the respondents will destroy the incriminating products Held: Search order granted. Federal Court Rules O 25B EFG Australia Ltd v Kennedy (unreported, NSESC, Bryson J, 2 August 1995) cited JEMELLA AUSTRALIA PTY LTD ACN 104 455 138 v M STYLE PLUS PTY LTD ACN 117 201 975, NIVINE DODAR, MOHAMAD MOHANNA AND JEMELLA LIMITED QUD81 OF 2007

COLLIER J

9 MARCH 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD81 OF 2007

BETWEEN: JEMELLA AUSTRALIA PTY LTD ACN 104 455 138

Applicant

AND: M STYLE PLUS PTY LTD ACN 117 201 975

First Respondent

NIVINE DODAR

Second Respondent

MOHAMAD MOHANNA

Third Respondent

JEMELLA LIMITED

Fourth Respondent

JUDGE: COLLIER J DATE OF ORDER: 9 MARCH 2007

WHERE MADE: BRISBANE

Upon the undertakings given to the Court by the applicant, the applicant's solicitor, the independent solicitors and the independent computer experts that are contained in Schedule B to the annexed draft search order,

THE COURT ORDERS THAT:

SEARCH ORDER Penal Notice TO: M STYLE PLUS PTY LTD ACN 117 201 975 AND TO: NIVINE DODAR AND TO: MOHAMAD MOHANNA If you (being the persons bound by the Order): (a) refuse or neglect to do any act within the time specified in the Order for the doing of the act; or (b) disobey the Order by doing an act which the Order requires you to abstain from doing, you will be liable to imprisonment, sequestration of property or other punishment. Any other person who knows of this Order and does anything which helps or permits you to breach the terms of this Order may be similarly punished. TO: M STYLE PLUS PTY LTD (ACN 117 201 975) AND TO: NIVINE DODAR AND TO: MOHAMAD MOHANNA This is a 'search order' made against you on 9 March 2007 by Justice Collier at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: Introduction 1. (a) the application for this order is made returnable immediately; (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 14 March 2007. 2. Subject to the next paragraph, this order has effect up to and including 23 March 2007, ("the Return Date"). On the Return Date at 10.15 am, there will be a further hearing in respect of this order before Justice Collier. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone 07 3248 1111) or to the Duty Judge (phone 07 3248 1100). 4. This order may be served only between 9.00 am and 2.00 pm on a business day. 5. In this order: (a) 'applicant' means the person who applied for this order; (b) 'independent computer expert' means the person identified as the independent computer expert in the search party referred to in Schedule A to this order; (c) 'independent solicitor' means the person identified as the independent solicitor in the search party referred to in Schedule A to this order; (d) 'listed thing' means any thing referred to in Schedule A to this order; (e) 'premises' means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondents' control on or about the premises or that are otherwise identified in Schedule A; (f) 'search party' means the persons identified or described as constituting the search party in Schedule A to this order; (g) 'thing' includes a document; (h) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (i) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor.