Boyd v Wild Hibiscus Flower Company Pty Ltd

REASONS FOR RULINGS 1 Objection is taken by the solicitor for the respondents to the whole of the affidavit of James Boyd, sworn on 23 December 2011, on the grounds of relevance. He does not press for an immediate ruling in respect of most of the affidavit. However, in respect of three paragraphs (paragraphs 10, 11 and 12), he does press for an immediate ruling. 2 In paragraph 10, the deponent swears, in a general sense, to the existence of agreements between himself, a company associated with the deponent called Fingerlimeing Good Pty Ltd, and growers, whereby those growers grow finger limes from stock which have been grafted by the deponent and sold to them for the purpose of Fingerlimeing Good Pty Ltd supplying and fulfilling orders for finger limes placed by Australian and overseas customers. The objection taken is that the agreements are not in evidence. 3 It seems to me that, for present purposes, the deponent is entitled to give evidence of the existence of these agreements in the general way in which he has in this affidavit in order to establish that these agreements exist. I am, after all, presently dealing with an interlocutory application and the purpose of the tender of this material is to establish only the existence and general nature of the agreements referred to. I will allow paragraph 10. 4 Paragraph 11 is in a different category. Paragraph 11 is in the following terms: Since in or about 2000, either through [Fingerlimeing Good Pty Ltd] or myself, in all correspondence, invoicing and labelling the trade marks annexed hereto have been used extensively. 5 Paragraph 11 is too general to be of any assistance and I reject it. 6 Paragraph 12 is in the following terms: In addition, since 2006 these trade marks have been used on my Limeburst websites which include, but are not limited to, the following: , , , , and . I own all of these domain names. Annexed hereto and marked "G" is an extract from the "Who-is" website for these domain names showing me as the owner. 7 I will allow paragraph 12, but I will read it as limited to the use of the trade marks identified in that paragraph and to the use of such other trade marks as may appear from Annexure G. Insofar as the paragraph purports to go further, it is too general to be of any assistance. 8 Subject to the rulings which I have made, the balance of Mr Boyd's affidavit and all of the annexures thereto will be admitted into evidence. There is no point reserving for future argument the respondents' general relevance objection. 9 The applicants also sought to read the affidavit of Lindsay Douglas Boyd, affirmed on 23 December 2011. Some objections were taken to that affidavit by the solicitor for the respondents. In light of those objections, the applicants reconsidered their position in respect of that affidavit and have now withdrawn it. That affidavit, therefore, has not been read by the applicants in support of the present interlocutory application. 10 The applicants read the affidavit of Luke Bhatty, sworn on 5 January 2012. Objection is taken to that affidavit by the solicitor for the respondents on the ground that it is bad in form. In particular, he submitted that the source and basis upon which evidence given on information and belief is not disclosed. Counsel for the applicants accepts this criticism and now seeks to rely upon the affidavit only as a submission. This affidavit will be accepted as a submission only and not as evidence. 11 The applicants also tender a number of items: The first is a green box of about 18 centimetres square with a depth of about 10 centimetres with various markings on it, including the word "Limeburst" on the lid of the box, the word "lime" being in white, and the word "burst" being in green, a picture of a finger lime split in half and some other markings. There is reference to a website and to an address which is associated with the applicants. The second item is a plastic punnet which bears similar "limeburst" markings and similar address details. The third item is a small brochure which is approximately 9 centimetres square, containing approximately 10 pages of text, much of which appears to be written in German, with references to websites. The fourth item is a business card with the word "limeburst" on it and pictures of finger limes with a reference to a website and an address associated with the applicants. The fifth item is a round sticker which has the words "limeburst" and "fingerlimes" on it with the additional words "citrus caviar". There is also a reference to a website and to an address associated with the applicants on that sticker. The final item is a product card which is very similar in terms of its presentation to the sticker. That is to say, it mentions the words "citrus caviar" and has the following in the top left-hand corner, "Nominated for Fruit Logistica Innovation Award 2011". On the reverse side of this product card the following appears: "James and Lindsay Boyd, Fingerlimeing Good Pty Ltd, Northern Rivers, NSW, Australia". There is then a reference to an email address and a phone number. 12 These items were tendered shortly before lunch today and then pressed immediately after lunch. There is no evidence given in any of the affidavits relied upon by the applicants or anywhere else which would assist the Court to understand just exactly what these items are, who used or uses them (and when) and the purpose for which they were or are used. These matters are all left up in the air in a way which is of no assistance to the applicants or to the Court. 13 Tendered as they are, with no explanation, these items are of no probative value and I reject them. They will remain with the file and be marked as "MFI-A". 14 In addition, some searches have been carried out over lunch by the legal representatives of the applicants in respect of applications made by the first respondent for the registration of various trade marks. The applicants seek to tender these searches. These searches are not relevant to the present application and I reject them. They will become "MFI-B". I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.