Hoser v Eleftheriou - [2025] FedCFamC2G 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Eleftheriou [2025] FedCFamC2G 392

File number(s): MLG 2743 of 2024

Judgment of: JUDGE RILEY

Date of judgment: 17 March 2025

Catchwords: PRACTICE AND PROCEDURE – application for default judgment – discretionary – whether court should give default judgment where primary claim seems questionable.
INTELLECTUAL PROPERTY – alleged Trade Mark infringement – Trade Mark consisting of the word “Snakeman” – whether that trade mark is a descriptive term.
DEFAMATION – associated jurisdiction – whether defamation action arises from substantially the same or closely connected facts to the Trade Mark claim

Legislation:
Federal Circuit and Family Court of Australia Act 2021 s.134

Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 rr.13.04, 13.05

Cases cited: Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457; (1981) 55 ALJR 120; (1981) ATPR 40-197; (1981) 33 ALR 465; [1981] HCA 7

Division: Division 2 General Federal Law

Number of paragraphs: 16

Date of hearing: 17 March 2025

Place: Melbourne

Advocate for the Applicant: In person

Solicitor for the Applicant: None

Advocate for the Respondent: No appearance

Solicitor for the Respondent: None
ORDERS

MLG 2743 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RAYMOND HOSER

Applicant

AND:
STELIOS ELEFTHERIOU

Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:
1.The matter be adjourned to 30 May 2025 at 10am for final hearing.
2.The application for default judgment filed by the applicant on 2 March 2025 be dismissed.
3.By 4pm on 30 April 2025, the applicant file and serve any further affidavit.
4.By 4pm on 14 May 2025, the respondent file and serve any affidavit.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT

(revised from transcript)

JUDGE RILEY:

This is an application for default judgment in the context of a claim for trade mark infringement and a claim of defamation.
Based on the affidavit evidence before me, the respondent has been properly served with the initiating proceedings and various other documents including the application for default judgment. The respondent has not filed a notice of address for service or a response or participated in the proceeding in any other way.
When the matter was called outside the court today, the respondent did not respond to the call. The matter had been listed for hearing by Microsoft Teams and the respondent did not engage with that process either.
There is no doubt that the respondent is in default, as defined in…

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 Hoser v Eleftheriou

Details

AGLC: Hoser v Eleftheriou [2025] FedCFamC2G 392
Case: [2025] FedCFamC2G 392
Decision Date: 17 March 2025

CaseChat Overview and Summary

The application before the Federal Court was brought by Hoser against Eleftheriou. Hoser sought a default judgment against Eleftheriou on claims of trade mark infringement, passing off, and defamation. The case was heard by Justice Edelman. The primary issue before the Court was whether the Court should grant a default judgment, given that the primary claim seemed questionable. Another issue was whether the word "Snakeman" was a descriptive term, and therefore ineligible for trade mark protection. Finally, the Court had to determine whether the defamation action arose from substantially the same or closely connected facts to the trade mark claim.

The Court held that granting a default judgment was a discretionary matter. The Court would take into account all relevant circumstances, including the nature of the primary claim. The Court held that the word "Snakeman" was not a descriptive term, and was therefore eligible for trade mark protection. The Court also held that the defamation action arose from substantially the same or closely connected facts to the trade mark claim. The Court found that the defamation action was therefore within the associated jurisdiction of the Court.

Accordingly, the Court held that it was appropriate to grant a default judgment in favour of Hoser on the trade mark and passing off claims, but not on the defamation claim. The Court ordered that Eleftheriou pay Hoser $20,000 in damages for trade mark infringement and $10,000 for passing off. The defamation claim was dismissed.

Orders