Federal Court of Australia
Federal Court of Australia
Enagic Co., Ltd v Horizons (Asia) Pty Ltd [2020] FCA 1233 Appeal from: Re: Opposition by Enagic Co., Ltd for registration of trade mark application no 1798917 – KANGEN – in the name of Horizons (Asia) Pty Ltd [2018] ATMO 192
File number: NSD 2363 of 2018
Judgment of: MARKOVIC J
Date of judgment: 21 August 2020
Catchwords: PRACTICE AND PROCEDURE – application to set aside notice to produce – application dismissed COSTS – application for costs on an indemnity basis payable forthwith – application dismissed
Legislation: Federal Court Rules 2011 (Cth), r 30.28
Cases cited: Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 Seven Network Limited v News Limited (No 11) [2006] FCA 174
Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Trade Marks
Number of paragraphs: 20
Date of hearing: 21 August 2020
Counsel for the Appellant: Ms E Whitby
Solicitor for the Appellant: Spruson & Ferguson Lawyers Pty Ltd
Counsel for the Respondent: Ms L Ng appeared on behalf of the Respondent
ORDERS NSD 2363 of 2018
BETWEEN: ENAGIC CO., LTD Appellant
AND: HORIZONS (ASIA) PTY LTD ACN 124 967 835 Respondent
order made by: MARKOVIC J DATE OF ORDER: 21 AUGUST 2020
THE COURT ORDERS THAT: 1. Paragraphs 1, 2 and 4-9 of the respondent's notice to produce dated 23 July 2020 be set aside. 2. The balance of the respondent's notice to produce dated 23 July 2020, being paragraphs 3 and 10, be made returnable before a Registrar of this Court at 9.30 am on 2 September 2020. 3. The respondent pay the appellant's costs of its interlocutory application filed on 5 August 2020. 4. Paragraphs 5, 6 and 7 of the respondent's interlocutory application filed on 12 August 2020 be dismissed. 5. Leave be granted to the respondent to file and serve any application for dispensation, pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (Rules), by it of compliance with r 4.01(2) of the Rules which requires that a corporation must not proceed in the Court other than by a lawyer, together with its affidavits in support setting out in detail why it is that the respondent is unable to be represented by a lawyer in this proceeding, with such application to be made returnable for case management hearing on 16 September 2020 at 9.30 am. 6. The proceeding otherwise be listed for case management hearing on 16 September 2020 at 9.30 am. THE COURT NOTES THAT: 7. In the event that solicitors come on the record for the respondent, the application referred to in Order 5 above will not be required. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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