Bacchus Distillery Pty Ltd v BDS Marketing Australia Pty Ltd [2011] FCA 827

FEDERAL COURT OF AUSTRALIA

Bacchus Distillery Pty Ltd v BDS Marketing Australia Pty Ltd [2011] FCA 827 Citation: Bacchus Distillery Pty Ltd v BDS Marketing Australia Pty Ltd [2011] FCA 827

Parties: BACCHUS DISTILLERY PTY LTD v BDS MARKETING AUSTRALIA PTY LTD and CB GLOBAL MANAGEMENT PTY LTD

File number: VID 673 of 2011

Judge: NORTH J

Date of judgment: 30 June 2011

Date of hearing: 29, 30 June 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 34

Counsel for the Applicant: Ms E A Strong SC with Mr I Horak

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondents: Mr S R Horgan SC with Mr B J Murphy

Solicitor for the Respondents: Carter Lawyers

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 673 of 2011

BETWEEN: BACCHUS DISTILLERY PTY LTD

Applicant

AND: BDS MARKETING AUSTRALIA PTY LTD

First Respondent

CB GLOBAL MANAGEMENT PTY LTD

Second Respondent

JUDGE: NORTH J DATE OF ORDER: 5 JULY 2011 WHERE MADE: MELBOURNE

UPON the applicant and BDS International Ltd by their counsel undertaking:

(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order below or any continuation (with or without variation) thereof; and (b) to pay the compensation referred to in (a) to the person there referred to: THE COURT ORDERS THAT: 1. Until the hearing and determination of this proceeding or until further order, each of the Respondents be restrained, whether by itself or by its servants or agents or otherwise, from causing to be manufactured, importing, distributing, promoting for sale or supply, offering, displaying, advertising, selling and/or supplying any alcoholic beverages in or under and by reference to the packaging which appears on any of the following: (a) Exhibit A1 being the Respondents' COWBOY 2 litre cask, as partially depicted in the photograph which is Annexure A1 to this order; (b) Exhibit A2 being the Respondents' COWBOY 700 ml bottle, as partially depicted in the photograph which is Annexure A2 to this order; (c) Exhibit A3 being the Respondents' COWBOY 6 x 30ml pack with contents, as partially depicted in the photograph which is Annexure A3 to this order; and (d) Exhibit A4 being the Respondents' QF 6x30ml pack without contents, as partially depicted in the photograph which is Annexure A4 to this order or any packaging which is a colourable imitation of that which appears on: (e) the COWBOY Liqueur Product (2 litres) being Exhibit VH-36 to the Affidavit of Vincent Heng affirmed 23 June 2011 (the Heng Affidavit), as partially depicted in the photograph in Exhibit VH-35 which is Annexure A5 to this order; (f) the COWBOY Liqueur Product (700ml) being Exhibit VH-34 to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-33 which is Annexure A6 to this order; (g) the COWBOY Shot Products wrap or COWBOY shot being Exhibits VH-20, VH-21 and VH-22 and Exhibits VH-16, VH-17 and VH-18 respectively to the Heng Affidavit, as partially depicted in the three photographs in Exhibit VH-19 and the four photographs in Exhibit VH-15 which are Annexure A7 and Annexure A8 respectively to this order; and (h) the QF Shot Products wrap or QF shot being Exhibit VH-56 and Exhibit VH-54 respectively to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-55 and the photograph in Exhibit VH-53 which are Annexure A9 and Annexure A10 respectively to this order. 2. Each of the following exhibits be confidential and access be restricted to the Respondents' legal advisors: (a) Confidential Exhibits VH-39; (b) Confidential Exhibit VH-40; (c) Confidential Exhibit VH-51; (d) Confidential Exhibit VH-52; (e) Confidential Exhibit VH-58; (f) Confidential Exhibit VH-59; (g) Confidential Exhibit VH-78; (h) Confidential Exhibit VH- 85; (i) Confidential Exhibit VH-86; (j) Confidential Exhibit VH-87; (k) Confidential Exhibit VH-88; (l) Confidential Exhibit VH-89; (m) Confidential Exhibit A6; (n) Confidential Exhibit A7; and (o) Exhibit LJS-3 to the affidavit of Leanne Janine Scott sworn 28 June 2011. 3. Confidential Exhibit A5 be confidential and access be restricted to the Applicant's legal advisors. 4. The Respondents file and serve their Fast Track Response on or before 22 July 2011. 5. The Applicant file and serves any Reply on or before 29 July 2011. 6. The Applicant and the Respondents file and serve lists of documents verified by affidavit on or before 16 September 2011 and make available for inspection the documents recorded therein. 7. That the Respondents pay 60% of the Applicant's costs of and incidental to the application for interlocutory relief. 8. That pursuant to Order 72 of the Federal Court Rules, the proceeding be referred to mediation by a mediator whose identity is to be agreed between the parties on or before 14 days from the date of this order and in default of such agreement the mediation be conducted by a registrar of this Court. 9. The mediation is to take place on or before 19 August 2011 and the result of the mediation to be reported to the Court within 2 days of its completion. 10. If the proceeding does not settle at mediation then, in the case of the mediation being conducted by a Registrar, the Registrar, if appropriate, shall conduct a case management conference immediately following the mediation at which the Registrar may give further directions as to the conduct of the proceeding. 11. The directions hearing is fixed for 10:15am on 3 October 2011. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. Annexure A1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 Annexure A7 Annexure A8 Annexure A9 Annexure A10