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Hoser v Pelley

Hoser v Pelley

Case [2025] FedCFamC2G 1008 3 July 2025

Civil Litigation & Procedure

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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 (5^th ed, LexisNexis, 2021)

D. Rolph, Rolph on Defamation (2^nd ed, Thomson Reuters, 2024)

Division: Division 2 General Federal Law

Number of paragraphs: 118

Date…

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 Pelley

Details

AGLC: Hoser v Pelley [2025] FedCFamC2G 1008
Case: [2025] FedCFamC2G 1008
Decision Date: 3 July 2025

CaseChat Overview and Summary

In the matter of Hoser v Pelley, the primary issue before the Court was whether it had jurisdiction to hear Mr Hoser's defamation claim against Ms Pelley. The court was also required to determine if an extension of time should be granted for the commencement of the defamation action, and whether the application under the Trade Marks Act 1995 constituted an abuse of process. Furthermore, the court had to decide if security for costs should be ordered in favour of the Fifth Respondent, given Mr Hoser's financial situation and the weak case against them. Mr Hoser's defamation claim pertained to a specific Facebook post made on 19 January 2023, while his trade mark infringement actions related to ten separate matters spanning from June 2019 to 29 September 2024. The court found that the defamation claim was distinct and severable from the trade marks infringement claims, and thus, the court lacked jurisdiction over the defamation claim. Consequently, the court dismissed the defamation claim under section 143 of the Federal Circuit and Family Court of Australia Act and rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. Regarding the extension of time, the court held that it would not grant an extension for the commencement of the defamation action. The court also found that the Trade Marks Act application was not an abuse of process, as it sought to address different factual allegations of trademark infringements than those previously dismissed by another court. Lastly, the court ordered security for costs in favour of the Fifth Respondent due to Mr Hoser's financial situation and weak case against them.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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”

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hoser v Pelley [2025] FedCFamC2G 1008

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Cases cited in this decision · 15 of 15 shown

Hoser v Eleftheriou
[2025] FedCFamC2G 392 Para 31

…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…
Hoser v Harrison (No 2)
[2024] FedCFamC2G 786 Para 30

…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.…
Hoser v Pelley [No 4]
[2023] VSCA 319 Para 21

…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…
Hoser v Pelley [No 3]
[2023] VSCA 257 Para 12

…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.…
Lehrmann v Network Ten Pty Limited (Limitation Extension)
[2023] FCA 385 Para 7

…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 per…
Kermani v Westpac Banking Corporation
[2012] VSCA 42 Para 26

…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 proceeding…
Knight v Beyond Properties Pty Ltd
[2005] FCA 764 Para 32

…ar 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…
Chang v Comcare Australia
[1999] FCA 1677 Para 34

…r 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.…
Re Wakim; Ex parte McNally
[1999] HCA 27 Para 28

…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 (…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 6

…At a level of high principle, in Brisbane South Regional Health Authority 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…
Rogers v The Queen
[1994] HCA 42 Para 25

…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:…
Cachia v Hanes
[1994] HCA 14 Para 44

…erefore 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.…
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd
[1981] HCA 7 Para 28

…on 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.…
Pelley v Kotabi Pty Ltd
[2021] VCC 1425 Para 18

…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).…
Cowell v Taylor
8 QB 374 Para 30

…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, (5 th ed, LexisNexis, [29.13]). It has also been said that “access to justice trumps mere poverty” (Dal Pont, [29.15]).…

Legislation cited in this decision · 6

Federal Circuit and Family Court of Australia Act 2021 (Cth)
131, 143, 215 4 mentions (from Para 27)
Trade Marks Act 1995 (Cth)
125, 190, 26 4 mentions (from Para 4)
Limitation of Actions Act 1958 (Vic)
23B, 5 3 mentions (from Para 38)
Defamation Act 2005 (TAS)
6 2 mentions (from Para 37)
Competition and Consumer Act 2010 (Cth)
1 mention
Limitations of Actions Act 1958 (Vic)
1 mention (from Para 14)

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 (5^th ed, LexisNexis, 2021) D. Rolph, Rolph on Defamation (2^nd ed, Thomson Reuters, 2024)
Division:	Division 2 General Federal Law
Number of paragraphs:	118
Date…