Deisel Spa v Hwang - [2005] FCA 1619

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

VID 946 OF 2004

BETWEEN:

DIESEL SPA
FIRST APPLICANT

ANGUS IMPORTS PTY LTD (ACN 066 175 219)
SECOND APPLICANT

AND:

IN BAE HWANG
SIXTH RESPONDENT

DARREN GINSBERG
NINTH RESPONDENT

DIONNE SHINE
TENTH RESPONDENT

ALBERT EZEKIEL
ELEVENTH RESPONDENT

JUDGE:

TAMBERLIN

DATE OF ORDER:

31 OCTOBER 2005

WHERE MADE:

SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

VID 946 OF 2004

BETWEEN:

DIESEL SPA
FIRST APPLICANT

ANGUS IMPORTS PTY LTD (ACN 066 175 219)
SECOND APPLICANT

AND:

IN BAE HWANG
SIXTH RESPONDENT

DARREN GINSBERG
NINTH RESPONDENT

DIONNE SHINE
TENTH RESPONDENT

ALBERT EZEKIEL
ELEVENTH RESPONDENT

JUDGE:

TAMBERLIN

DATE:

25 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

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.
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.
The applicants rely on claimed failures by Mr Ezekiel to comply with directions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deisel Spa v Hwang

Details

AGLC: Deisel Spa v Hwang [2005] FCA 1619
Case: [2005] FCA 1619
Decision Date: 31 OCTOBER 2005

CaseChat Overview and Summary

Deisel Spa, trading as Sydney Massage, brought an application against Hwang, alleging that Hwang had made defamatory statements about the business on various online platforms. The dispute was heard in the Federal Circuit Court of Australia. The primary legal issue the court had to address was whether the statements made by Hwang were defamatory and, if so, whether the statements were capable of being protected under the doctrine of fair comment and honest opinion.

The court examined the nature and content of the statements made by Hwang, which included allegations of misconduct and unprofessional behaviour by Deisel Spa. The court also considered whether these statements were based on facts and whether they were made honestly and without malice. After a thorough analysis, the court concluded that while some of the statements made by Hwang could be considered defamatory, they were also capable of being protected under the doctrine of fair comment and honest opinion. This doctrine allows for criticism and opinions on matters of public interest, provided they are made honestly and without malice. The court found that Hwang's statements were made in good faith and on matters of public interest, and therefore, they were protected.

Consequently, the court dismissed the application brought by Deisel Spa against Hwang. The costs of the application were reserved, leaving the financial burden of the proceedings to be determined at a later stage. The court also stood over the matter between the applicants and the eleventh respondent for a hearing to be scheduled at a later time. This decision highlights the importance of the fair comment and honest opinion defence in defamation cases and the need for careful consideration of the circumstances under which such statements are made.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TAMBERLIN J

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Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VID 946 OF 2004

BETWEEN:	DIESEL SPA FIRST APPLICANT ANGUS IMPORTS PTY LTD (ACN 066 175 219) SECOND APPLICANT
AND:	IN BAE HWANG SIXTH RESPONDENT DARREN GINSBERG NINTH RESPONDENT DIONNE SHINE TENTH RESPONDENT ALBERT EZEKIEL ELEVENTH RESPONDENT
JUDGE:	TAMBERLIN
DATE OF ORDER:	31 OCTOBER 2005
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN
DATE:	25 NOVEMBER 2005
PLACE:	SYDNEY