Hoser v Pelley
[2025] FedCFamC2G 1008
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Pelley [2025] FedCFamC2G 1008
File number: MLG 3335 of 2024 Judgment of: JUDGE CHAMPION Date of judgment: 3 July 2025 Catchwords: DEFAMATON – JURISDICTION – Whether the Court has jurisdiction as to the Applicant’s defamation claim –Where Applicant has regularly invoked the court’s jurisdiction as to a claim under the Trade Marks Act 1995 –Held defamation claim a severable claim from the Trade Marks Act claim and not part of a single justiciable controversy – Held no jurisdiction as to the defamation claim.
DEFAMATION – EXTENSION OF TIME – Held court would not in any event extend time for the commencement of the defamation action.
PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Whether the Trade Marks Act application is an abuse of process because the application seeks to vex twice the First Respondent as to allegations of infringements of registered trade marks when another court has dismissed the allegations as part of the dismissal of a defence to a defamation action between the same parties in the Victorian courts – Held not an abuse of process for the Applicant to pursue claims as to infringements of trade marks raising different factual allegations
PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Whether the court ought to order security for costs in favour of the Fifth Respondent – Applicant impecunious and has a weak case against the Fifth Respondent – Order for security
Legislation: Defamation Act 2005 (Vic) s. 6
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 131, 143, 215
Limitation of Actions Act 1958 (Vic) ss. 5, 23B
Trade Marks Act 1995 (Cth) ss. 26, 125, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr. 13.13, 22.01
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14
Chang v Comcare Australia [1999] FCA 1677
Cowell v Taylor (1885) 31 Ch D 34
Hoser v Eleftheriou [2025] FedCFamC2G 392
Hoser v Harrison (No 2) [2024] FedCFamC2G 786
Hoser v Harrison [2024] FedCGFamC2G 436
Hoser v Pelley (No 3) [2023] VSCA 257
Hoser v Pelley (No 4) [2023] VSCA 319
John v Rees [1970] Ch 345 at 402; [1969] 2 All ER 274
Kermani v Westpac Banking Corporation (2012) 36 VR 130
Knight v Beyond Properties Pty Ltd [2005] FCA 764
Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385
Lucas v Yorke (1983) 50 ALR 228
Pelley v Kotabi Pty Ltd [2021] VCC 1425
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Rogers v R (1994) 181 CLR 251
G.E. Dal Pont, Law of Costs (5th ed, LexisNexis, 2021)
D. Rolph, Rolph on Defamation (2nd ed, Thomson Reuters, 2024)
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of last submissions: 21 February 2025 Date of hearing: 21 February 2025 Place: Melbourne Applicant: In person First Respondent: In person Second Respondent: No appearance Third Respondent: No appearance Fourth Respondent: In person Solicitor for the Fifth Respondent: Mr Robertson of Robertson Legal & Conveyancing Lawyers Sixth Respondent: No appearance ORDERS
MLG 3335 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
Applicant
AND: MARK DAVID PELLEY
First Respondent
MARK PELLEY AND ASSOCIATES PTY LTD AS TRUSTEE FOR THE MARK’S FAMILY TRUST
Second Respondent
DEAN STEWART (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
Defamation action
1.Under s. 143 of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) and r. 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the Applicant’s claim (as to defamation) in paragraph 1 of his application dated 30 September 2024 and paragraphs [112]–[161] of his Statement of Claim dated 30 September 2024 is dismissed.
Abuse of process
2.The First Respondent’s application under r. 13.13(c) to stay or dismiss the Applicant’s trade mark infringement claims under the Trade Marks Act 1995 is dismissed.
Security for costs
3.Under s. 215 of the FCFCOA Act and r. 22.01 of the Rules, the Applicant is to give security for the Fifth Respondent’s costs in the amount of $24,200 by way of payment into the trust account of the lawyer of the Fifth Respondent, Robertson Legal & Conveyancing Lawyers Pty Ltd, on or before 4.00 pm on 31 July 2025.
4.The Applicant take no further step in the proceeding as against the Fifth Respondent until he provides security as set out in order 3 above.
5.In default of compliance with order 3, the application in respect of the Fifth Respondent is stayed until further order.
Directions
6.The matter is listed for directions at 10.00 am on 11 August 2025.
Costs
7.Costs are reserved.
AND THE COURT NOTES THAT:
A.Although it was not necessary to decide having regard to order 1, the court notes that it would not have extended the time for the Applicant to commence his defamation action under s. 5(1AAA) of the Limitation of Actions Act 1958 (Vic).
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
JUDGE CHAMPION:
INTRODUCTION
Mr Hoser and Mr Pelley
Mr Raymond Hoser, the Applicant, and Mr Pelley, the First Respondent, are the principal parties in this litigation.
The Second Respondent – Mark Pelley and Associates Pty Ltd as Trustee for the Mark’s Family Trust – is a corporate trustee and a company associated with Mr Pelley. Ms Aishah Pelley is Mr Pelley’s daughter and the Fourth Respondent. Ms Yu Ying Pelley is Mr Pelley’s mother and the Fifth Respondent. Mr Dean Stewart is the Third Respondent apparently joined on the basis that Mr Pelley operated a business from Mr Stewart’s address. Similarly, Kimal Nominees Pty Ltd, the Sixth Respondent, owns property from where it is alleged Mr Pelley infringed trade marks registered to Mr Hoser.
Mr Hoser commenced this claim by an application dated 30 September 2024 and an accompanying Statement of Claim (SOC) which runs to some 411 paragraphs and further appendices. The SOC has some repetition and duplication in its numbering which ideally might be sorted out but this is not a matter which prevents the claim going forward.
Mr Hoser says he has three causes of action: (1) a defamation claim; (2) an action for infringement of registered trademarks under the Trade Marks Act 1995 (Cth); and (3) an Australian Consumer Law action.
Mr Hoser’s daughter, Ms Adelyn Hoser is the registered owner of the trade marks and under s. 26(2) of the Trade Marks Act Mr Hoser must make her a “defendant in the action”. Mr Hoser pleads that he is a licensed user of the trade marks registered to Ms Adelyn Hoser (SOC, [13]). This will need to occur at the next directions hearing.
I must decide four interlocutory issues:
(1)does the court have jurisdiction as to Mr Hoser’s defamation action against Mr Pelley?
(2)if the court has jurisdiction, ought I to extend time for the commencement of the defamation action?
(3)ought Mr Hoser’s trademark infringement claims under the Trade Marks Act be stayed or dismissed as an abuse of process? and
(4)ought Mr Hoser provide security for costs in favour of Ms Yu Ying Pelley, Mr Pelley’s mother and the Fifth Respondent?
SUMMARY
As to issue 1, t the court does not have jurisdiction as to the defamation claim.
As to issue 2, if I am wrong about jurisdiction, I would not have granted an extension of time for Mr Hoser to commence his defamation claim in any event.
As to issue 3, Mr Hoser’s trade marks infringement claims are not an abuse of process.
As to issue 4, I will order Mr Hoser provide security for costs in the amount of $24,200 in favour of the Fifth Respondent.
My reasons follow. After setting out some relevant context, I will deal sequentially with these four issues.
The context of past litigation
Mr Hoser and Mr Pelley have been opposing litigants in substantial past defamation litigation in which the appeal judgment is in the Victorian Supreme Court of Appeal (VSCA) in Hoser v Pelley (No 3) [2023] VSCA 257.
In Hoser v Pelley (No 3) Elliott AJA (with whom McLeish JA and Walker JA agreed) provided a useful summary of the deterioration of the parties’ friendship into a “bitter relationship” and then into litigation.
I have adopted a short summary of elements of Elliott AJA’s judgment and an excerpt from it because it provides a convenient context particularly as to Mr Pelley’s application that Mr Hoser’s action against him for infringement of Mr Hoser’s registered trade marks is an abuse of process because Mr Hoser is vexing him twice as to the same cause of action these issues having arrived in the litigation in the Victorian courts. I will return in more detail to Elliott AJA’s judgment when I consider issue 3 below.
Elliott AJA noted that Mr Hoser has many years of experience in handling and catching snakes (Hoser v Pelley (No 3), [6]).
In 2012, Mr Pelley participated in a venomous snake handling course Mr Hoser conducted by (at [7]). After this, Mr Hoser and Mr Pelley “became good friends” ([7]).
The friendship did not last and they became business competitors and then opposing litigants:
[9]Pelley eventually set up his own snake catching and handling business. Hoser initially took no exception. ….
[10]Just as Hoser had done for years, Pelley advertised his business on a range of platforms, including on social media. In response to Pelley’s advertising, Hoser requested that Pelley refrain from using a number of terms the subject of his trade marks. These included ‘snake busters’, ‘snakebusters’ and variations of these terms, together with ‘snake man’ and ‘the snake man’….. However, the harmonious coexistence of the two businesses was short-lived.
[11]From around early 2017, there was a complete breakdown in what became a bitter relationship for reasons unnecessary to explore. Hoser and Pelley actively competed against each other for business. By this time, both their respective businesses involved handling, catching and displaying snakes, including at reptile shows and parties. They also trained dogs to avoid venomous snakes.
[12]Pelley continued to advertise. Hoser complained to Pelley about his use of the terms ‘snake catcher’ and ‘snake handler’ on Facebook. After initially acceding to Hoser’s requests, Pelley obtained legal advice to the effect that he was not breaching any of Hoser’s trade mark rights by using these terms. His evidence was that the advice referred to generic terms and the difference between logos and words. Based on this advice, he formed the view that he could continue to use these terms, which he did. Pelley persisted on the basis that such terms were merely descriptive. He also considered he was entitled to use ‘canine snake avoidance’ as a descriptive term concerning training dogs to avoid snakes. He applied to register his own trade marks and continued to advertise using terms such as ‘snake hunter’, ‘snake removal’, ‘snake catcher’, ‘the snake catcher’, ‘reptile parties’, ‘snake avoidance’, ‘canine snake avoidance’ and ‘snake handler’.
[Footnotes omitted]
The subject matter of the litigation which caused Elliott AJA to recount the history of the deterioration of Mr Hoser and Mr Pelley’s friendship into litigation was Mr Hoser’s appeal against a defamation verdict in Mr Pelley’s favour against Mr Hoser in the County Court of Victoria (Pelley v Kotabi Pty Ltd [2021] VCC 1425).
In Pelley v Kotabi the trial judge in the County Court had awarded Mr Pelley “$150,000 in damages, together with $15,000 in aggravated damages plus interest” against Mr Hoser as to defamatory publications which were published between 5 April 2018 and 11 April 2019 (Hoser v Pelley (No. 3), [3] and [33]).
Mr Hoser’s appeal had only marginal success. Mr Hoser did not succeed in relation to any of the liability grounds and the trial judge’s conclusion that certain publications were defamatory was undisturbed on appeal (Hoser v Pelley (No 3), [334]).
On appeal, the trial judge’s orders as to damages were set aside. In Hoser v Pelley (No 4) [2023] VSCA 319 the VSCA reassessed damages and held that only a modest reduction in damages was warranted. The court reassessed damages at $140,000 general damages, $10,000 aggravated damages and $21,000 interests (Hoser v Pelley (No 4), [14]–[15]).
Litigation in this Court
The parties’ litigation has now moved to this court.
ISSUE 1: DOES THIS COURT HAVE JURISDICTION AS TO MR HOSER’S DEFAMATION CLAIM?
What is Mr Hoser’s defamation claim?
Mr Hoser’s defamation claim concerns Mr Pelley’s Facebook post made on 19 January 2023 (SOC, [116] p 8 of 156):
NEED A SNAKE CATCHER? WHAT TO ASK TO ENSURE YOUR SAFETY
Aishah and I have complete police checks and WWC checks. (Craig has these too but we're updating the new ones)
Make sure your snake catcher can show and display complete police checks and Working with Kids checks otherwise DO NOT DEAL WITH THEM.
Always DEMAND to see their police check. You do not want a catcher with an extensive criminal record or current charges.
At The Snake Hunter - we are always transparent.
We work with Victoria Police who call us to catch snakes and are big believers in working as part of the community.
For more information about your safety go to #safetyfirst #police
Mr Hoser alleges that the post carried defamatory imputations (among others) that he was a risk to the members of the public and did not have a valid or proper police check (SOC, [112]–[113]) and had “an extensive criminal record” (SOC, [117]). There are further defamatory imputations alleged (SOC, [118]–[128]).
Mr Hoser alleges that he suffered serious actual harm caused by this publication (SOC, [130]–[148]).
He seeks damages of $500,000 (SOC, [152]).
What is my analysis?
Under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), original jurisdiction is legislation which is vested in the court by laws made by the Commonwealth Parliament. The Trade Marks Act vests original jurisdiction in this Court. This court has jurisdiction as to Mr Hoser’s trademark claims as a prescribed court under s. 125 of the Trade Marks Act (as to the definition of a “prescribed court”, see Trade Marks Act s. 190). As a result, Mr Hoser has regularly invoked the court’s jurisdiction as to his trade mark infringement claims, subject to my analysis of the abuse of process issues below.
Where the court’s jurisdiction is regularly invoked as to a federal matter its jurisdiction encompasses the whole “single justiciable controversy” and may encompass a claim under the tort of defamation depending on the facts. Whether that is so is determined by a “common transactions and facts test” (Re Wakim; Ex parte McNally (1999) 198 CLR 511, [140]). That would be the result if different claims are so inter-related that the determination of one claim is essential to the determination of the other (Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7, 512). That is, one question which arises is whether the determination of the defamation claim is essential to the determination of the trade marks claim.
To illustrate that this may depend on the facts, I refer to two apparently different results in two decisions, both involving Mr Hoser.
In Hoser v Harrison (No 2) [2024] FedCFamC2G 786 Judge Manousaridis appears to have proceeded on the basis that the court had jurisdiction as to a defamation claim where there was also an Australian Consumer Law claim.
In Hoser v Eleftheriou [2025] FedCFamC2G 392 which concerned an application for default judgment (handed down since the hearing of the interlocutory claim before me), Judge Riley said at [15]:
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.
What is my conclusion in this case?
Mr Hoser’s defamation claim concerns a specific Facebook post made on 19 January 2023.
His trade mark infringement actions concern ten matters on identified dates the earliest of which is about June 2019 (matter 3) and ending on 29 September 2024 (matter 11) (the ten trademark infringement claims are identified in the SOC as “Second matter complained of”, “Third matter complained of” etc.).
It cannot be said that the determination of the defamation claim is essential to the determination of the trade marks claims (Cf Philip Morris, above). The defamation action with its focus on a particular and single publication on 19 January 2023 is severable from the controversy about whether there has been an infringement of Mr Hoser’s registered trademarks and is a separate and distinct dispute. The defamation claim does not arise out of common transactions and facts with the trade marks infringements claims.
I have no jurisdiction as to the defamation claim. I will dismiss that part of Mr Hoser’s defamation claim under s. 143 of the FCFCOA Act and r. 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 because Mr Hoser has no reasonable prospect of successfully prosecuting his defamation proceeding because the court lacks jurisdiction as to it. I will make an order accordingly (order 1).
ISSUE 2: IF MR HOSER’S DEFAMATION ACTION IS WITHIN JURISDICTION SHOULD HE BE GRANTED AN EXTENSION OF TIME?
If I am wrong as to jurisdiction, I have considered — on that alternative scenario — whether I would grant an extension of time for Mr Hoser’s commencement of a defamation action.
As to whether to grant an extension I must apply Victorian law
In Hoser v Harrison[2024] FedCGFamC2G 436 at [151]–[153], relevantly to the grant of an extension of time, Judge Manousaridis said the following:
The proceeding is before me as a judge of this Court sitting in the State of New South Wales. It is therefore the law of the State of New South Wales I must apply; and, to the extent the rules of procedure that apply to a proceeding in this Court do not apply to an action based on defamation, I am to apply the rules of procedure that are applied in New South Wales.
The relevant law is in part contained in the Defamation Act 2005 (NSW) (Defamation Act). That Act “relates to the tort of defamation at general law”
Making the necessary adjustment for the fact that I am sitting in Victoria, I will adopt the same procedural approach as Judge Manousaridis adopted in Hoser v Harrison and in considering whether to grant an extension I will apply the Defamation Act 2005 (Vic) and the Limitation of Actions Act 1958 (Vic).
The limitations period
The statutory note to s. 6 of the Defamation Act 2005 (Vic) is as follows:
Note
The Limitation of Actions Act 1958 provides a general limitation period of 1 year for defamation actions extendable by a court in certain circumstances to up to 3 years.
Section 5(1AAA) of the Limitation of Actions Act 1958 (Vic) provides:
An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.
The date of the first publication of the impugned Facebook post was 19 January 2023. The apparent expiration of the time period for the commencement of a defamation action under s. 5(1AAA) was 19 January 2024.
Mr Hoser proceeded before me on the basis that he needed an extension of time because he commenced his application on 30 September 2024 some 20 months after the date of publication and 8 months after the period s. 5(1AAA) prescribed.
Section 23B(1) of the Limitation of Actions Act 1958 (Vic) governs the grant of an extension of time as follows:
(1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2) The court may extend the limitation period applicable under section 5(1AAA) to (1AAC) to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.
(3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the plaintiff's delay; and
(b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—
(i) the day on which the facts became known to the plaintiff; and
(ii) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and
(c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.
At a level of high principle, in Brisbane South Regional HealthAuthority v Taylor (1996) 186 CLR 541 at 552 McHugh J outlined the reason for limitation periods as follows:
… First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them … The final rationale for limitation periods is that the public interest requires the disputes be settled as quickly as possible.
In Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385 Lee J noted in a defamation context apposite to the question before me (albeit not as to the particular provision as to an extension of time I must consider) at [22]:
…a tight limitation period applies, but it is an entire year. This is a period during which a claimant is allowed, and would be expected, to: reflect and consider maturely whether the proposed litigation is able to be resolved without litigation; consider whether the cost of litigation would be proportionate to the extent of perceived damage; conduct necessary enquiries as to the identity of the respondent or respondents; and decide whether there is sufficient material to decide to litigate. Finally, if litigation is to be commenced, there is a need to ensure sufficient material is available to the person settling the claim to provide a proper basis for any allegations proposed to be made. But more generally, the period of a year also allows a potential litigant time to see how things go. Was the damage as bad as first imagined? Will I let sleeping dogs lie or risk stirring up the controversy by suing? A claimant is entitled to reflect upon what might be a life-changing decision bringing stress and potential adverse financial consequences.
Further, Lee J’s observations in Lehrmann at [23] that the “statutory task is holistic, involving the evaluation of all relevant facts or the circumstances” that existed within one year of the date of publication” remain apposite.
Should I grant an extension?
On his application for an extension of time Mr Hoser relied on his affidavit made on 7 February 2025 (Ex. A5). He deposed at [7] that:
At the relevant time in early 2023, I was defending a defamation action against Mark PELLEY in the Court of Appeal as well as numerous criminal charges PELLEY had caused police to lay against me on a regular basis.
Mr Hoser submitted that it was reasonable for him not to commence his defamation case because he was advised he was going to be successful in his defence to Mr Pelley’s defamation case in the Victorian courts (T60:L11-14). As events transpired, he was not successful in his defence but that case only ended with the High Court’s refusal of a grant of special leave on 11 April 2024 to appeal against the outcome in the Court of Appeal after the expiration of the 12 month period prescribed by s. 5(1AAA) on 19 January 2024 (Ex. A4, [122]).
Mr Hoser also deposed (Ex. A4, [125]) that this case was “delayed pending resolution” of another claim in which Judge Manousaridis published an interlocutory judgment on 27 August 2024 in Hoser v Harrison(No 2) [2024] FedCFamC2G 786.
He also orally submitted that he had had some discouragement from court registry staff in this court as to the filing other defamation actions (T60:L39-46).
Assuming that I am wrong as to jurisdiction, I would not in any event have extended time for Mr Hoser’s commencement of his defamation claim.
The touchstone for an extension is set out in s. 23B(2) of the Limitations of Actions Act 1958 and provides that Mr Hoser must satisfy me that it is “just and reasonable to allow an action to proceed”.
Neither party addressed me on the strength of the defamation claim. I treat this as a neutral matter on the extension of time application. In the absence of submissions from the parties, there is nothing I read in the Facebook post which weighs significantly in favour of it being just to allow the defamation claim to proceed. I note the post does not apparently refer to Mr Hoser- at least expressly - by name.
By reference to those particular matters set out in s. 23B(3), I must have regard to the “length of the delay”. Ordinarily a claim ought to be issued within time. The length of Mr Hoser’s delay of approximately 8 months after the expiration of one year from the date of publication is material. Although it is a matter of degree, with reference to the matters McHugh J outlined in Brisbane South Regional Health Authority, the delay means relevant evidence may have been lost. To some extent, it is oppressive to allow an action to be brought after circumstances giving rise to it have passed.
As to the “reasons for delay,” Mr Hoser’s reasons which related to hoped-for success in other litigation and registry discouragement from issuing this proceeding do not constitute a satisfactory explanation for his delay. Plainly expressed, although the institution of any litigation ought to be the subject of prior mature consideration as Lee J observed in Lehrmann (above), Mr Hoser has not proved that a hoped-for outcome in one set of litigation which is not ultimately achieved, constitutes a satisfactory explanation for delay in the commencement of other litigation. The evidence as to registry discouragement is too uncertain to amount to a satisfactory reason for delay.
Further, s. 23B(3)(b) is not engaged. Mr Hoser has not submitted that “some or all of the facts relevant to the cause of action became known” to him after the limitation period expired. This is not a case in which Mr Hoser seeks an extension because he did not know all relevant facts. Rather, he made a forensic decision not to issue within the 12 months. Only when his defence in the defamation action Mr Pelley had brought in the Victorian courts ultimately failed — which he knew only after the limitation period expired — did he change tack and make a different forensic choice.
With reference to s. 23B(3)(c), because of the delay relevant evidence as to the impact of Mr Pelley’s impugned Facebook post is likely to be “less cogent than if the action had been brought within the limitation period”. I give that matter some weight against an extension of time.
I accept that Mr Hoser is an individual who has been representing himself in various litigation with the emotional strains and logistical challenges that entails. Nonetheless, it is apparent that Mr Hoser accorded other matters priority ahead of issuing this defamation claim for which he now seeks an extension of time.
Although it is not strictly necessary to decide because the defamation claim is not within my jurisdiction, even if I had come to a different view as to jurisdiction, it is not just and reasonable to allow Mr Hoser’s defamation action to proceed.
ISSUE 3: SHOULD MR HOSER’S TRADEMARK INFRINGEMENT APPLICATION BE STAYED AS AN ABUSE OF PROCESS?
Issue 3 is whether Mr Hoser’s trade mark infringement claims ought to be stayed as an abuse of process.
Under r. 13.13(c) of the Rules, I have a discretion to order that a proceeding be “stayed, or dismissed generally” if satisfied that “the proceeding or claim for relief is an abuse of the process of the court.”
Mr Pelley pursued his claim for summary dismissal on the basis that the proceeding was an abuse of process and not under r. 13.13(a) that there was no reasonable prospect of success in Mr Hoser prosecuting it.
The relevant principles
In Rogers v R (1994) 181 CLR 251 at 286 McHugh J summarised the categories of abuse in the following terms:
Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.
[Footnotes omitted]
In Kermani v Westpac Banking Corporation (2012) 36 VR 130 at [97] Robson JA (with whom Neave and Harper JJA agreed) distilled 14 relevant principles. I reproduce only the principles most directly relevant to the issues I must decide as follows:
(1) The court possesses an inherent jurisdiction to stay its proceedings as
an abuse of process if the proceedings are unjustifiably oppressive and
vexatious or manifestly unfair or otherwise bring the administration
of justice into disrepute among right-thinking people
(2) The jurisdiction should only be exercised in exceptional cases or
sparingly with the utmost caution
…
(4) The circumstances in which abuse of process may arise are extremely
varied and the courts have refrained from limiting the circumstances
to fixed categories
(5) In considering whether to grant a stay as an abuse of process, the
court should undertake a weighing process involving a subjective
balancing of a variety factors and considerations
…
(8) The rationale underlying the principle against double jeopardy, in that
an individual should not be vexed twice for the same cause, is a factor
properly to be taken into account in the weighing exercise
(9) It is prima facie vexatious to bring two extant civil actions where one
will lie
…
(11) The prima facie rule applies where the issues overlap or significantly
overlap or there is a similarity of subject matters of the proceedings.
(12) The fact that the parties may not be identical, or the relief different,
does not necessarily disentitle relief under this principle
(13) In considering whether the rule should apply, the court should
consider whether there was no reasonable justification for the second
proceeding based on legitimate considerations of convenience, cost or
the like
(14) The guiding considerations are oppression and unfairness to the other
party to the litigation and concern for the integrity of the system of
administration of justice. Regard may be had to:
(a) the importance of the issue in and to the earlier proceeding,
including whether it is an evidentiary or ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two
proceedings;
(e) any plea of fresh evidence, including the nature and
significance of the evidence and the reason why it was not part
of the earlier proceeding;
(f) the extent of the oppression and unfairness to the other party if
the issue was relitigated and the impact of the relitigation upon
the principle of finality of judicial determination and public
confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the
matters supportive of abuse of process
[Footnotes and citations omitted]
Applying those principles to this case: the Statement of Claim
Mr Hoser structured his Statement of Claim on the basis that there are “twelve matters complained of.”
The “first matter complained of” was Mr Hoser’s defamation claim which has been dealt with above.
The second to eleventh “matters complained of” concern infringement of registered trade marks. For completeness, I have summarised them in the table below and included the twelfth matter which concerns a claimed breach of the Australian Consumer Law.
Matter Date Substance of alleged infringement SOC (2) 29 September 2020 Mr Pelley infringed Mr Hoser’s registered trademark “snake avoidance” (trademark application number 2074944) by displaying a “refused trademark logo” on the header of the following document provided to a veterinarian entitled “veterinary certificate for the use of e-collars”
[173]; [175]; annexure 2, p. 54 (3) June 2019 Mr Pelley infringed Mr Hoser’s registered trademark “snake avoidance” by creating a TikTok Account entitled “Canine Snake Avoidance”
[185]-[190] (4) 21 August 2024 Mr Pelley infringed Mr Hoser’s registered trademark “snake avoidance” via the creation, use and maintenance of a Facebook page entitled “Canine Snake Avoidance.” [132]; Annexure 4, p. 58 (5) 31 July 2023 Mr Pelley and The Mark’s Family Trust infringed Mr Hoser’s registered trademark “snake avoidance” by emailing a potential client documents that have “Canine Snake Avoidance” printed in the upper-right header. Further, Mr Pelley electronically signs his email as “Mark Pelley – The Snake Hunter | CEO Canine Snake Avoidance.” [218]-[224]; Annexure 5, pp. 66-77 (6) May 2018 Mr Pelley infringed Mr Hoser’s registered trademark “snake avoidance” via the creation of a Google Business page entitled “Canine Snake Avoidance.”
[233]; [136] (7) 18 February 2023; 20 March 2023 Mr Pelley infringed Mr Hoser’s registered trademark “snake avoidance” by establishing a business office for “Canine Snake Avoidance” located at Shop 3a, 3 - 5 Inglis St, Diamond Creek, VIC. Further, Mr Pelley published a post on Facebook on 20 March 2023 advertising the physical business location. [253]; [138]; [254]-[256] (8) 19 April 2023 As the proprietor of Shop 3a, 3 - 5 Inglis St, Kimal Nominees Pty Ltd (the sixth respondent) infringed upon infringed Mr Hoser’s registered trademark “snake avoidance” by way of Mr Pelley’s conduct complained of in the “seventh” complaint.
[271]-[286] (9) 18 February 2023 Miss Aisha Pelley (the fourth Respondent) infringed Mr Hoser’s registered trademark “snake avoidance” via a verbal telephone conversation with Mr Bob Graham. Mr Hoser alleges that infringed his trademark by making representations to a potential client that she worked for a business known as “Snake Avoidance”
[292]-[308] (10) 10 June 2018 to 4 March 2019 Mr Pelley and Ms Yu Ying Pelley (the Fifth Respondent) infringed Mr Hoser’s registered trademark “Snake Avoidance.” Mr Pelley and Ms Yu Ying Pelley created and managed a Google Business page for “Canine Snake Avoidance.” Mr Hoser further alleges Ms Yu Ying Pelley’s residential address (Patyah Street, Diamond Creek, Vic, 3089) was listed as the relevant business address on the Google Business page.
[314]-[315] (11) 1 January 2019 - 29 September 2024 Mr Pelley and The Mark’s Family Trust infringed “all the applicant’s relevant registered trademarks” via the parties’ use of Search Engine Optimization (SEO) methods.
Further, Mr Hoser alleges that the parties continued to assert ownership of his trademarks by creating Google adverts for their business that were “[triggered]” by the trademarked terms.[331]; [334] (12) 1 January 2019 – 29 September 2024 Mr Pelley, The Mark’s Family Trust and Miss Aisha Pelley infringed Mr Hoser’s trademarks via the parties’ use and maintenance of “webpages and social media accounts.” Mr Hoser claims that the parties’ conduct as described in complaints 2-11 cumulatively amount to a cause of action under the Australian Consumer Law as enacted in Schedule 2 of the Competition and Consumer Act 2010 (Cth). [387]-[388]; [149]-[150] Is it an abuse of process for Mr Hoser to pursue these matters in this Court because, having regard to the decision in Hoser v Pelley (No 3), Mr Pelley is being “vexed twice” as to the same cause?
The substance of Mr Pelley’s “abuse of process” application is that Mr Pelley argues that Mr Hoser has already litigated the issue of whether Mr Pelley is a trade mark infringer in the Victorian courts. As a result, he submits it is an abuse of process for him to seek to do so again because to do so would mean that Mr Pelley is twice vexed as to the same issue (see Kermani, principle 8, above).
Although the issue is not decisive, the issue in the state courts arose in a particular context. Mr Hoser claimed that Mr Pelley was a trade mark infringer as an element of a defence to a defamation action. Briefly stated, the defence in its relevant part was that Mr Pelley’s reputation could not be harmed because he was a trade mark infringer.
In a detailed analysis in Hoser v Pelley (No 3) (pars. [58]–[186]) Elliott AJA (with whom other members of the Court of Appeal agreed) concluded that Mr Pelley had used the various words as to which Mr Hoser had registered trade marks in a descriptive sense as to goods or services offered. Mr Pelley had not used the words as a trade mark or as a “badge of origin” in the sense of indicating a connection in the course of trade between goods or services and the person who applies the mark to the goods or services (see as to the relevant principle, Hoser v Pelley (No 3), [119]).
Elliott AJA at [129] noted that:
Hoser referred to a large number of exhibits in seeking to demonstrate that the trial judge ought to have been satisfied that Pelley had infringed or stolen his registered trade marks. It is necessary to refer to these in some detail in addressing this ground.
As he foreshadowed, Elliott AJA then referred to the evidence in some detail.
Elliott AJA (at paras [130] and following) noted that Mr Hoser referred to screenshots of Mr Pelley’s “snakehunter.com.au” website. Although Elliott AJA was satisfied that Mr Pelley used words and phrases on the website which were the subject of Mr Hoser’s trademarks His Honour said at [134]:
these terms were all used descriptively and not as a badge of trade origin, and therefore were not used as trade marks.
Next, at [155], Elliott AJA noted that:
In order to seek to establish that Pelley infringed his trade marks, Hoser also relied on the fact that Pelley used the words ‘canine snake avoidance’ on various media.
Elliott AJA dealt with this matter in a slightly different way. His Honour did not need to decide whether the words “canine snake avoidance” on various media were used descriptively or as a trade mark because Mr Pelley’s use of the phrase “canine snake avoidance” post-dated all the publications (said to be defamatory) at issue. On that analysis, even if the words were used as a trade mark the dates of the usage did not establish that Mr Pelley was a trademark infringer at the requisite time of the defamatory publications ([155]). To that extent, issues Mr Hoser wishes to advance in this proceeding — namely Mr Pelley’s use of the words “canine snake avoidance” since 8 October 2019 (the date of the final publication at issue in the Court of Appeal) — requires the consideration of different evidence because of different timeframes.
Elliott AJA observed that a “tweet” dated 4 June 2020 was tweeted on a date after the relevant dates ([156]) of the defamatory publications at issue. Similarly, a Facebook page created on 1 October 2018 was created only at a date which was relevant to publications 8 and 9 in the defamation claim as to which he was considering an appeal ([157]). As to publications 8 and 9 the relevant issue with which Elliott AJA had to deal was not simply whether Mr Pelley was a trade mark infringer but whether he was unlawfully and aggressively infringing the trade mark “snake avoidance” ([159]). A different issue arises for decision in this Court because to be successful in his claim this court Mr Hoser would only need to prove infringement of a trade mark, not aggressive infringement of the trade mark.
As to an Instagram account also created on 1 October 2018, Elliott AJA noted the issue for decision was not whether Mr Pelley was infringing the trade mark but whether he was a “thief” and “acting both unlawfully and aggressively in using words snake avoidance”. The court did not accept that Mr Hoser had established his defence that Mr Pelley was a “thief” ([162]). On the claim in this Court, the issue is not whether Mr Pelley was a thief but whether Mr Pelley has infringed Mr Hoser’s trade marks.
Elliott AJA dealt with an issue that the evidence disclosed that a screenshot of results produced by searching for the term “snake hunter canine snake avoidance” on Facebook revealed that a video with the title ‘canine snake avoidance’ was uploaded to Facebook by the snake hunter on 18 September 2020 and remained available until at least 17 May 2021 (at [167]). On the material presently available to me, this allegation is close in time and substance to the “fourth matter complained of.” Elliott AJA was, however, dealing with the maintenance of a Facebook page in the period September 2020 until May 2021. Mr Hoser’s “fourth matter complained of” concerns Mr Pelley’s control of a Facebook page with the words “snake avoidance” on 21 August 2024 “and proceeding that date by at least one year”. As to the period September 2020 until May 2021, Elliott AJA concluded at [168] that “nothing shown in this screenshot demonstrated that Pelley was using the words “canine snake avoidance” other than as a means of describing a service he was offering” and not as a badge of origin. I note that on the material presently available to me, the material difference in the claim in this Court and the claim Elliott AJA was considering appears confined to the dates of the impugned conduct rather than the nature of the impugned conduct.
Elliott AJA then canvassed “Pelley’s dealings with Google” (at [171]). Mr Hoser’s sixth matter in this proceeding alleges that there was an infringement of Mr Hoser’s trademark by the creation of a Google business page. Elliott AJA said at [173]:
Plainly, each of ‘snake catcher’, ‘snake handler’, ‘snake removal’ and ‘snake control’ described the particular service being offered or provided by Pelley. Without more, the use of those terms could not be considered to be use of the words as a trade mark,…
Although I am concerned that there is a material overlap between Mr Hoser’s fourth claim and sixth claim and the claims as to which the Court of Appeal has ruled, because actions on different dates are at issue, I do not conclude that Mr Hoser’s fourth claim and sixth claim are an abuse of process.
Mr Pelley argues that in circumstances in which a court — having considered an array of evidence and conducted a detailed analysis that he had used various words as to which Mr Hoser has registered trade marks — has concluded that he and those words descriptively and not as a badge of origin he ought not to be “vexed twice” for the same cause (Kermani, principle (8)). Further, Mr Pelley submits that it is oppressive and unfair to him for Mr Hoser to be permitted to pursue the same arguments again in this Court as he pursued unsuccessfully in the state courts (Kermani, principle (8); Rogers, category (2)). Relatedly, he submits that permitting Mr Hoser to use the court’s procedures in this way would bring the administration of justice into disrepute (Rogers, category (3)).
In considering whether to grant a stay as an abuse of process I must undertake a weighing process involving a balancing of a variety of factors and considerations (Kermani, principle (5)).
Although there is force in Mr Pelley’s position, I have formed the view that Mr Hoser’s action as to trademark infringement is not an abuse of process.
Five reasons Mr Hoser’s trademark infringement action is not an abuse of process
I have decided that there are five reasons that Mr Hoser’s trade mark infringement action is not an abuse of process.
First, although it is possible there is some overlap between the type of factual matters on which Mr Hoser relied in his unsuccessful truth defence to the defamation claim and the factual matters he seeks to rely upon in this Court, I am not satisfied that there is “significant overlap” (Kermani, principle (11)) because the disputed events are (substantially) different at least because the events have occurred across a different date range. The relevant publications with which the state courts were primarily spanned the dates of the defamatory publications between 5 April 2018 and 8 October 2019. The relevant trade mark infringements alleged in this case (substantially) occurred on more recent dates by reference to the table above. Mr Hoser alleges at [163] that the matters of which he complains “only concern [dates] beyond 1 Jan 2019”.
As to certain matters it was not necessary for the Court of Appeal to reach a final conclusion as to whether Mr Pelley had use the words as a trade mark, because the use post-dated the relevant publications.
It is a “jump” to say that because the Court of Appeal accepted that as to specified events Mr Pelley had used words descriptively and not as a trade mark, and it did not need to make a finding one way or another as to other matters, it is an abuse of process for Mr Hoser to allege as to different events on different dates that Mr Pelley used words in a way which infringed his registered trade marks. It is only after considering the evidence in this case that I may reach a conclusion that Mr Pelley has (as he asserts) used the words descriptively.
Of course, after trial, I may find that the analysis Elliott AJA undertook as to the factual issues in that case applies with equal force to different facts in this case. At this stage, Mr Hoser has not put anything before me which would suggest that Elliott AJA’s legal analysis is incorrect. The apparent closeness of the subject matter in this Court and the matters Elliott AJA analysed in the Court of Appeal means that it has to be said — on the basis of the material currently before me — that Mr Hoser’s claim in this court confronts significant challenges. That is not the same thing as to say it is an abuse of process. The law is strewn with examples of “open and shut” cases which on closer analysis turned out not to be so (see, in a different context, John v Rees [1970] Ch 345 at 402; [1969] 2 All ER 274 at 309). Whether Mr Hoser’s trade mark infringement claim is ultimately successful will be a matter for evidence at trial. Suffice to say, the fact that Mr Hoser wishes to advance a trademark infringement case as to different facts is not an abuse of process.
Secondly, Mr Hoser’s action in this court is an action as to trademark infringement and an action of a different type to the one decided in the Victorian courts. It was not open to Mr Hoser to pursue a trade mark infringement action in the County Court as it is not a prescribed court under ss 125 and 190 of the Trade Marks Act. The Court of Appeal decision was necessarily framed by reference to the fact that it was sitting on an appeal against the result in the County Court. It was not seized of a trade mark infringement claim. As a result, the trademark issue in the County Court and then on appeal in the Court of Appeal arose in a different context, namely as to the (unsuccessful) attempt to prove a defence of truth to a defamation action. There is a “reasonable justification” for the second proceeding because the trademark infringement action could not have been brought in state courts (Kermani, principle (13)).
Thirdly, there are additional and different parties in the current action and at least one different cause of action. Mr Hoser is not issue estopped in terms of the action he wishes to bring against any of the Second to Sixth named Respondents who were not parties to the action in the Victorian courts. There is also the “twelfth matter complained of” as to the ACL claim which was not before the state courts.
With reference to the second and third factors above, I accept that the fact that the parties may not be identical and that the relief is different does not necessarily mean that the proceeding is not an abuse of process. (Kermani, principle (12)).
Fourthly, although the narrative form of the statement of claim and the unavailability to me of the various documentary exhibits Elliott AJA considered in his analysis in Hoser v Pelley (No 3) means that I cannot be definitive as to the extent of the overlap between matters which were considered in the Court of Appeal and matters Mr Hoser advances here, because there appears to be different conduct on more recent dates which constitute the material facts before me I am not presently persuaded that Mr Pelley has been “vexed twice for the same cause” (Kermani, principle (8)).
Fifthly, to the extent that the matter is finely balanced, as Robson AJA observed in Kermani, the jurisdiction should be exercised “in exceptional cases or sparingly with the utmost caution” (Kermani, principle (2)). Proceeding cautiously, Mr Pelley has not proved that the action is an abuse of process.
Conclusion as to whether Mr Hoser’s trademark infringement action is an abuse of process
For the reasons set out above, I will dismiss Mr Pelley’s application to stay or dismiss Mr Hoser’s trademark infringement application because it is an abuse of process (order 2).
ISSUE 4 SHOULD AN ORDER FOR SECURITY FOR COSTS BEING MADE IN FAVOUR OF MS YU YING?
Issue 4 relates to the question of whether I should make an order for security for costs in favour of the Fifth Respondent, Ms Yu Ying Pelley. The Fifth Respondent is Mr Pelley’s mother and Miss Aisha Pelley’s — the Fourth Respondent’s — grandmother.
Mr Hoser’s main complaint against the Fifth Respondent is as follows (SOC, [108]):
She expressly allowed her son the First respondent to use her home address as the business address for his business brand “canine snake avoidance” from 2018 to at least mid 2019.
The Fifth Respondent is referred to in Mr Hoser’s “tenth matter complained of” (SOC, [145]; 314]). Mr Hoser there claims:
In the period from about 10 June 2018 to at least 4 March 2019 but not after May 2019, the first respondent and fifth respondent Yu Ying Pelley created and ran a Google business page listing the home address of the fifth respondent (the first respondent’s mother), being [address omitted] as the business address for “Canine Snake Avoidance” and traded as such in breach of S120 of the Trade Marks Act 1995.
In his prayer for relief, Mr Hoser does not differentiate between the First, Second, Fourth and Fifth Respondents in his claim for “$6 million for the registered trademark infringement and/or misleading and deceptive conduct” (SOC, pdf p. 31, [4]).
The Fifth Respondent’s application for security seeks security for costs as follows:
1. The Applicant pay Security of Costs in the amount of $24,200 …
…
I have a discretion to order security for costs as I consider “appropriate” (FCFCOA Act s. 215; r. 22.01 of the Rules). In making any order, I must do justice between the parties.
I will order Mr Hoser give security for the Fifth Respondent’s costs of the proceeding by the payment of the amount of $24,400 into the trust account of her solicitor. My reasons follow.
Mr Hoser deposes that he is impecunious (Ex. A6, [11]):
There is no dispute that I am effectively bankrupted as a result of Mark PELLEY's actions against me from 31 Dec 2016 to the present date.
One factor relevant to my discretion is that “the general rule is that poverty is no bar to a litigant” (Cowell v Taylor (1885) 31 Ch D 34, 38 cited by Professor Dal Pont, Law of Costs, (5th ed, LexisNexis, [29.13]). It has also been said that “access to justice trumps mere poverty” (Dal Pont, [29.15]).
Having said that, impecuniosity is not irrelevant: “impecuniosity …is a factor to be weighed in all the circumstances of the case” (Dal Pont, [29.13], citing Lucas v Yorke (1983) 50 ALR 228, 228).
A significant factor in the exercise of my discretion on the particular facts of this case is that I regard Mr Hoser’s proposed claim against the Fifth Respondent as a weak case. In Knight v Beyond Properties Pty Ltd [2005] FCA 764 Lindgren J regarded the weakness of the applicant’s case as relevant to the exercise of the discretion as to whether to grant security. Necessarily, my observations are tentative before the evidence has not been tested. Mr Hoser’s main substantive allegation is that the Fifth Respondent has “allowed” her son to use her home address for his business brand and/or that she herself was involved in the development of a Google page. There is presently no cogent material to support the allegation that the Fifth Respondent was involved in the development of a Google page.
Mr Hoser apparently seeks to rope in — almost in passing — Mr Pelley’s mother as part of ongoing litigation between him and Mr Pelley on the basis of a bare allegation against her. On the pleading as it stands, his case against the Fifth Respondent is weak. I must strike a balance between exposing the Fifth Respondent to the expense of defending her position and the risk of unnecessarily shutting out the Applicant from relief.
The balance weighs in favour of requiring an order for security. I have decided to order security because of a combination of facts: there is impecuniosity and I assess the Applicant’s case as weak (see i.e., Chang v Comcare Australia [1999] FCA 1677, cited in Knight, [33]). The Fifth Respondent ought not to be put to the expense of defending the claim without the provision of security.
Mr Hoser did not rationally dispute the amount of the security.
I will order that Mr Hoser provide security by 31 July 2025 in the amount of $24,200 (order 3). In default of provision of security, the application against the Fifth Respondent is stayed until further order (order 5).
NEXT STEPS
I will set this matter down for further directions on 11 August 2025.
I note three matters ahead of that directions hearing.
First, the future course of the proceeding is complicated by the fact that there are six named respondents. As of the date of the hearing of the interlocutory applications in which I have now published these reasons, not all respondents had been served. I will need to be updated as to service issues at the directions hearing.
Second, Mr Hoser pleads that the trade marks were transferred from him to Ms Adelyn Hoser. Section 26(2) of the Trade Marks Act is as follows:
(2) If the authorised user brings an action for infringement of the trade mark, the authorised user must make the registered owner of the trade mark a defendant in the action. However, the registered owner is not liable for costs if he or she does not take part in the proceedings.
Mr Hoser will need to put Ms Adelyn Hoser on notice ahead of the next return date that she is a necessary party because of s. 26(2) of the Trade Marks Act.
Third, Mr Pelley made a contempt application on 20 March 2025. By orders made on 9 May 2025 I made orders that Mr Pelley was to file and serve by 10 June 2025 a statement of charge specifying the alleged contempt, a supporting affidavit and written submissions. Order 4 was a self-executing order in the following terms:
4. If Mr Pelley does not file the material in accordance with each of the orders 1 – 3 set out above by 4.00 pm on 10 June 2025, his Application in a Proceeding as to contempt will stand dismissed.
Because Mr Pelley did not file that material, his contempt application stands dismissed.
In correspondence, Mr Hoser indicated he wished to apply for costs as to Mr Pelley’s dismissed contempt application. He may do so and I will hear him as to costs should he file his material sufficiently before 11 August 2025. I note, however, he was self-represented at the hearing concerning the contempt application. To be successful as to costs, he will therefore need to persuade me that the circumstances are to be differentiated from the High Court’s decision in Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 at 410-411 in which the High Court held that costs are not available to a self-represented litigant to compensate that litigant in person for time lost.
I will otherwise hear from the parties at the directions hearing as to next steps.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate: CH
Dated: 3 July 2025
SCHEDULE OF PARTIES
MLG 3335 of 2024 Respondents
Fourth Respondent:
AISHAH PELLEY
Fifth Respondent:
YU YING PELLEY
Sixth Respondent:
KIMAL NOMINEES PTY LTD
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