Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394

Federal Court of Australia

Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394 File number(s): NSD 1711 of 2019 NSD 1858 of 2019 NSD 63 of 2021

Judgment of: HALLEY J

Date of judgment: 14 April 2022

Catchwords: PRACTICE AND PROCEDURE – application for stay of dismissal orders pursuant to r 36.08 of the Federal Court Rules 2011 (Cth) (Rules) – whether stay or rectification of the Trade Marks Register more suitable course pending determination of appeal – consideration of Woolworths Ltd v BP plc (2006) 150 FCR 134; [2006] FCAFC 52 and Woolworths Ltd v BP plc (No 2) (2006) 154 FCR 97; [2006] FCAFC 132 – preservation of status quo and subject matter of appeal – whether stay in public interest – application granted PRACTICE AND PROCEDURE – application for stay of costs orders pursuant to r 36.08 of the Rules – stay of costs order not necessary or appropriate – application dismissed COSTS – application for indemnity costs pursuant to s 43(3)(g) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – principles in respect of Calderbank offers – where appellant party did not accept offer by respondent to settle proceedings – whether rejection of offer unreasonable or imprudent – where appellant would have been in materially better position if it had accepted offer – application granted COSTS – application for costs of stay and indemnity costs applications – neither party wholly successful – no order as to costs in respect of stay and indemnity costs applications PRACTICE AND PROCEDURE – application for suppression orders pursuant to s 37AF of the FCA Act – whether necessary to prevent prejudice to proper administration of justice – consideration of public policy – application granted