Hoser v Eleftheriou
[2025] FedCFamC2G 392
•17 March 2025
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 claimLegislation: 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 r.13.04 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (“the Rules”). The applicant has not filed and served documents required under the Rules and, clearly, the respondent has not defended the proceeding with due diligence.
Where there has been a default, the court is empowered by r.13.05 of the Rules to, relevantly, give judgment against the respondent for the relief that the applicant appears to be entitled to on the statement of claim and that the court is satisfied it has power to grant.
That power is discretionary. The court is not obliged to give judgment against a respondent when they are in default. In the present case, I have very serious concerns about the basic validity of the claim against the respondent.
The essence of the trademark claim is that the applicant, through an exclusive licence, is able to enforce the trade mark, “Snakeman”. The respondent is said to have infringed that trade mark by using the competing trademark “Stel_Snakeman”.
The difficulty with this case is that, although both the applicant and the respondent have registered their respective trade marks with IP Australia, I have grave doubts about whether the trade marks are sound. It seems to me that “snakeman” is a descriptive term, much like “computer man” for a man who fixes computers or a “picture man” for a man who hangs paintings or “rubbish man” for a man who takes away rubbish. As such, the term “snakeman” could not be a trade mark.
The applicant today has said that is not correct. He said that, within the industry, it is well known that “Snakeman” is not a generic descriptor of the sorts of things he does.
What the applicant does is catch snakes. He says such people are called snake catchers. He also displays wildlife, including snakes, and says such people are known as wildlife displayers. However, it seems to me that, whatever the general industry might think, people who are not involved would easily refer to a person as a snakeman if they catch snakes or if they display snakes.
As such, I am not persuaded that the court ought to grant default judgment on the trade mark claim. It may be that, as the applicant has indicated this morning, he would be in a position to produce a lot more evidence to substantiate his claim that “snakeman” is not a descriptive term. If he wishes to do that, that can be done on another occasion.
Turning to the defamation claim, the court clearly would have no jurisdiction in relation to a defamation claim if it were not for the court’s associated jurisdiction. A defamation claim in the normal course would need to be taken in the State courts. However, s.134 of the Federal Circuit and Family Court of Australia Act 2021 provides that:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
In the case 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, Gibbs J, as his Honour then was, said at CLR pages 495 to 496:
… Speaking generally it may be said that, given identity of parties, one matter is associated with another if the two matters arise out of substantially the same, or closely connected, facts …
There would appear to be no constitutional impediment to the court exercising jurisdiction in the defamation case and there is also identity of parties in the two matters in which the applicant seeks default judgment. However, I am not presently persuaded that the trade mark issue and the defamation issue arise out of the same or substantially the same or closely connected facts. The applicant has said that they do arise out of substantially connected facts. However, at present, I am not persuaded of that.
The trade mark infringement claim is based on the usage of the allegedly infringing words, whereas the defamation claim is based on words that are allegedly defamatory. They just seem to me to be clearly distinct matters. I think it would be inappropriate in the circumstances to proceed with the default judgment in the defamation application because I am not persuaded that the court has jurisdiction in the circumstances of this case.
Consequently, the application for default judgment will be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 19 March 2025
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