FEDERAL COURT OF AUSTRALIA

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

PETER JOHN ARTHUR and OTHERS v VAUPOTIC INVESTMENTS PTY LTD and OTHERS

NO. VID 598 OF 2003

HEEREY J

12 APRIL 2005

MELBOURNE

THE COURT ORDERS THAT:

1. The defences and cross-claims filed by the first and second respondents are struck out and that judgment is entered for the applicants.
2. An injunction is granted restraining the first and second respondents whether by themselves or by their directors, officers, servants or agents or otherwise howsoever from infringing the applicants’ monopoly in the Australian Registered Design number AU113919S (“the registered design”), and, in particular from:

(a)    applying or causing to be applied any or all of the Registered Design or any obvious or fraudulent imitations of it to any number plate cover;

(b)    selling or offering or keeping for sale any or all of the Registered Design or or any obvious or fraudulent imitation of it has been applied, in infringement of the applicants’ monopoly of the Registered Design.

3. The first and second respondents deliver upon oath to the applicants for destruction all licence plate covers in the possession, custody or power of the respondents to which the Registered Design or any obvious or fraudulent imitation of it has been applied without the licence or authority of the applicants.
4. The first and second respondents pay within 14 days the applicants' costs pursuant to the orders of The Honourable Justice Goldberg dated 11 August 2004 and 1 September 2004 in the sum of $7859.00 in accordance with the itemised account in taxable form filed herein.
5. The first and second respondents pay the costs of this proceeding, including all reserved costs and the costs of this application forthwith, such costs to be taxed unless otherwise agreed to.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter was listed for trial this morning.  Mr Wilmoth of counsel appeared for the first and second respondent.  He sought leave for his instructing solicitor to withdraw.  In support of that application he tendered an affidavit by Keith Thomas Bagot Hughes sworn 12 April 2005.  Mr Hughes is a principal of the firm Church Hill, solicitors on the record for the first and second respondents.  He deposed that at approximately 12 noon on Friday last he received a telephone call from Mrs Danielle Vaupotic, whom I infer is the wife of the first respondent Mr Vlado Vaupotic. 

2                     Mrs Vaupotic said to Mr Hughes that the first and second respondents wished to represent themselves.  Mr Hughes deposes that he briefly discussed the matter, outlining various difficulties with the cause of action, highlighting the point that those respondents had, on their instructions, not filed any affidavit material and there were problems with Vaupotic Investments Pty Ltd representing itself.  Although the seven-days notice required by O 55 r 7 was not given, the explanation will be apparent I think it is appropriate that I grant Messrs Church Hill leave to withdraw.

3                     The matter then proceeded with the hearing of the applicants’ notice of motion dated 24 March 2005.  Under that notice they sought judgment under O 35A in default.  There has been a very substantial default, as appears from the affidavit of Joanne Mary Simmons sworn 23 March 2005.  I shall not set out the details, they appear from that affidavit.  It appears that there has been consistent failure to comply with orders made by this Court.  The conditions of O 35A r 3(2)(c) are satisfied.  Since the proceeding was commenced by an application supported by a statement of claim I am empowered to give judgment against the first and second respondents.  The rule does not require proof by way of evidence of the applicant's claim; rather that on the face of the statement of claim there is a claim for the relief sought and, of course, that the court has jurisdiction to grant that relief. 

4                     The structure of the claim is a fairly straight forward one alleging infringement of a registered design. On the face of the statement of claim I am satisfied that the applicant is entitled to the relief sought and that the court has power to grant it.  In answer to the applicant's motion, Mr Vaupotic sought to tender a document which he said was a document from a patent attorney which proved how he was the originator of the design in question.  I declined to receive the document. It was not sworn and the first and second respondents, apparently as the result of a conscious decision, have been in deliberate breach of earlier directions of this court. 

5                     Mr Vaupotic said that he did not have any funds to fund the defence of this case.  That may be so and it is a misfortune for him, but it is no grounds for denying the applicants relief to which they are entitled under the rules.  So therefore I will make the orders sought in the motion namely:

1. The defences and cross-claims filed by the first and second respondents are struck out and that judgment is entered for the applicants.
2. An injunction is granted restraining the first and second respondents whether by themselves or by their directors, officers, servants or agents or otherwise howsoever from infringing the applicants’ monopoly in the Australian Registered Design number AU113919S (“the registered design”), and, in particular from:
1. applying or causing to be applied any or all of the Registered Design or any obvious or fraudulent imitations of it to any number plate cover;
2. selling or offering or keeping for sale any or all of the Registered Design or or any obvious or fraudulent imitation of it has been applied, in infringement of the applicants’ monopoly of the Registered Design.
3. The first and second respondents deliver upon oath to the applicants for destruction all licence plate covers in the possession, custody or power of the respondents to which the Registered Design or any obvious or fraudulent imitation of it has been applied without the licence or authority of the applicants.
4. The first and second respondents pay within 14 days the applicants' costs pursuant to the orders of The Honourable Justice Goldberg dated 11 August 2004 and 1 September 2004 in the sum of $7859.00 in accordance with the itemised account in taxable form filed herein.
5. The first and second respondents pay the costs of this proceeding, including all reserved costs and the costs of this application forthwith, such costs to be taxed unless otherwise agreed to.

6                     I was told there has been settlement as between the applicants and the third respondent, although it may become the subject of a further application. 

Associate:

Dated:              15 April 2005