Bodum v DKSH Australia Pty Ltd

REASONS FOR JUDGMENT 1 I have considered whether the above proceedings should be heard together. A decision needed to be made to allow the parties to prepare for the trial. I came to the view that both proceedings should be heard together, and advised the parties accordingly on 24 November 2008. I now provide my reasons for this view. 2 Opposing the hearing of the proceedings being heard together, Bodum submitted that: (a) the differences between the proceedings outweighed the issues in common, so that there would be little if any saving in time or costs, and considerable added complexity; (b) the DKSH proceeding was quickly approaching readiness for trial; and (c) there were specific issues of confidentiality which, under the rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, would make a joint trial inappropriate.

Common Issues 3 Reputation is in issue in relation to one product, the Chambord Coffee Plunger. 4 Obviously reputation dates may be different by reference to different parties, but in my view that does not mean that there may not be a substantial overlap of common evidence even to the extent of this reputation issue. 5 I also accept that there are different issues in both proceedings, but I do not regard that as significant. I do not view them as individually taking up much court time. Rather, I am of the view that considerable additional court time and resources would be needed to hear the trials separately, not only as to hearing the evidence, but in the hearing of submissions. 6 There may well be mechanical difficulties, particularly in relation to instructing solicitors who may need to give evidence, but these matters can be procedurally dealt with prior to, and at, trial. In any event, if a solicitor is giving evidence, then the parties may need to properly consider the position of that solicitor taking an otherwise active part in the proceedings. 7 As to the representation necessary at trial, while non-relevant issues of one party are raised, this again can be dealt with prior to or at trial, so that unnecessary costs are not incurred. 8 Bodum submitted that there will be a significant part of the evidence, including expert evidence, which will be wholly irrelevant to any issue in DKSH proceeding. If this is so, then at that part of trial those who have no interest in that evidence can be excused, and can return on a later day on resumption of relevant evidence involving that party. Prior to trial, a timetable can be prepared setting out the scheduling of witnesses, so each party will be able to organise itself accordingly. I do not intend to make any pre-emptive order as to costs now, but the parties will be aware of the difficulty of recovering costs at any distinct part of the trial to which that party has no interest. 9 In my view, all of the difficulties now perceived by Bodum can be overcome by proper co-operation between the parties, or by the application of appropriate case management principles, and otherwise by 'getting on' with the hearing. 10 Finally on this aspect of Bodum's submission, the fact that the proceedings are in different lists causes no difficulty. Assuming that the Playcorp proceedings are removed from the Fast Track List, that proceeding still remains docketed so that it can be case managed effectively in preparation of a joint hearing.