FEDERAL COURT OF AUSTRALIA

Diesel Spa v Hwang [2005] FCA 1619

PRACTICE AND PROCEDURE – application for summary or default judgment against the eleventh respondent – failure to comply with Court orders for filing of a defence – satisfied that eleventh respondent genuinely intends to defend matter – application dismissed – expedited hearing ordered

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 cited

Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 cited

Australian Competition and Consumer Commission v Albert [2005] FCA 1311 cited

DIESEL SPA AND ANGUS IMPORTS PTY LTD v IN BAE HWANG, DARREN GINSBERG, DIONNE SHINE AND ALBERT EZEKIEL

VID 946 OF 2004

TAMBERLIN J

SYDNEY

25 NOVEMBER 2005

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  Costs of the application are reserved.

3.                  The matter, as between the applicants and the eleventh respondent, is stood over for hearing to 12.00 pm on 25 November 2005.

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

REASONS FOR JUDGMENT

1                     On 31 October 2005, I dismissed an application by the two applicants to enter summary or default judgment against Mr Ezekiel.  I now set out my reasons. 

2                     The application is made on the ground that Mr Ezekiel has failed to comply with Court orders and has not indicated any proper defence or basis for opposing the claims of the applicants in relation to the alleged infringement of trade mark.  It is now established that in a case of default such as the present it is not necessary to prove the applicant’s case in order to obtain summary judgment.  Reliance may be placed on the allegations made in the Statement of Claim in circumstances where there has been a relevant default: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J and Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6]—[7] per Jackson J.  All that is necessary is that on the face of the Statement of Claim there is a claim for the relief sought and the Court has jurisdiction to grant the relief.

3                     The applicants rely on claimed failures by Mr Ezekiel to comply with directions of the Court which specified time limits for the filing and serving of documents.  It is said that Mr Ezekiel has failed twice to comply with an order of the Court and that he has also failed on two occasions to file a Defence, notwithstanding a direction that he do so.  In particular, the claim is that Mr Ezekiel’s acts fall within the acts of default set out in O 35A r 2(2)(b), (d), and (h).

4                     On 27 September 2005, Mr Ezekiel filed a document in which he denies having made any of the purchases in question and attaches a statement from the former fifth respondent, Tae U Kim, who is alleged to have sold or distributed the relevant garments and footwear to him.  He also refers to health problems in relation to himself and also his mother by way of explanation for any default he may have made.

5                     The Court documents filed by Mr Ezekiel are extremely sparse and uninformative and do not clearly articulate the case sought to be made in any useful detail.  However, it is apparent from the presence of Mr Ezekiel before me today, together with two witnesses that he proposes to call, that he intends to defend this matter.

6                     Mr Ezekiel informed me that he did not wish to raise any technical defence or put the plaintiff to proof in relation to any matters apart from requiring them to prove the allegations on a factual basis.  Mr Ezekiel informed me that he does not intend to put the applicants to proof of the matters pertaining to the existence of the trade mark.  His case is that as a matter of fact he was in no way involved in the purchase, sale, dealing or distribution of any of the garments or footwear in question and he says that he has not distributed or been involved in relation to any infringement of any trade mark.

7                     In the present case, I am persuaded that Mr Ezekiel genuinely intends to defend this matter.  The strength of his case is far from clear at this point.  He has appeared before me on two occasions and has now brought witnesses whom he says will support his case.  He appears to have no idea whatsoever in relation to Court procedures and formalities.  Nor does he appear to have taken any steps in the available time to familiarise himself with these matters.  His case, as explained to me, is simply and solely that he was not involved and he knows nothing about the garments or footwear in question and he wishes to deny the factual basis of the case brought against him. 

8                     In view of his clear intention to defend the matter and the limitation of the issue to one of fact, I have decided that this is a matter which can best be handled by an expedited hearing.  Accordingly, I have fixed the matter for hearing on 25 November 2005 at 1200 pm and made appropriate directions to facilitate that early hearing.  I have refused the application for summary judgment although I am of the view that there has been default by Mr Ezekiel in complying with the directions.  I reserve the costs of the application for summary judgment and I stand the matter, as between the applicants and the eleventh respondent, over for hearing on 25 November 2005.

Associate:

Dated:              25 November 2005