Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd [2016] FCA 610 File number(s): VID 953 of 2015
Judge(s): MORTIMER J
Date of judgment: 30 May 2016
Catchwords: PRACTICE AND PROCEDURE – application for split trial pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) such that questions of liability would be heard and determined separately and prior to any questions of quantum – dispute regarding use of the word "Shape" in business names – misleading or deceptive conduct and false or misleading representation claims under the Australian Consumer Law – declarations, damages and injunctive relief sought under the Australian Consumer Law – passing off claim – damages or account of profits sought at the applicant's election for passing off – whether split trial would be just and convenient – relevant considerations – overlapping evidence on liability and quantum – potential difficulties arising from the same witnesses giving evidence twice – efficiencies gained and lost by splitting trial – relevance of applicant's right of election – application refused
Legislation: Competition and Consumer Act 2010 (Cth) sch 2, Australian Consumer Law, ss 18, 29(1)(g), 29(1)(h) Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 30.01
Cases cited: Arnold v Attorney-General (Vic) (unreported, Sundberg J, 8 September 1995) Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 38 IPR 163 Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 Energy Australia v Australian Energy Ltd [2001] FCA 1049 Erven Warnink BV v J Townend & Sons (Hull) Ltd (No 1) [1979] AC 731 (HL) Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591 JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2) [2014] FCA 1378 Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; 217 ALR 495 Reckitt & Colman Products v Borden Inc [1990] 1 WLR 491 (HL) Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
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