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Hurd v Zomojo Pty Ltd

Hurd v Zomojo Pty Ltd

Case [2013] FCA 581 13 June 2013

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FEDERAL COURT OF AUSTRALIA
Hurd v Zomojo Pty Ltd [2013] FCA 581

Citation: Hurd v Zomojo Pty Ltd [2013] FCA 581

Parties: MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087), ZEPTO MARKETS PTY LTD (ACN 150 529 301), MD HAMMER PTY LTD (ACN 149 869 189), CROSSWISE PTY LTD (ACN 140 717 317) and TRADEMACH PTY LTD (ACN 155 683 864) v ZOMOJO PTY LTD (ACN 114 604 269)

File number: VID 287 of 2013

Judge: KENNY J

Date of judgment: 13 June 2013

Catchwords: PRACTICE AND PROCEDURE – Application for extension of time and leave to appeal – Application made in circumstances where one applicant had been refused leave to appeal previously – Consideration of scope of appeal jurisdiction conferred by s 24 of the Federal Court Act 1976 – Application incompetent with respect to prior heard party – Primary decision not attended with sufficient doubt with respect to remainder of application

Legislation: Federal Court Rules 2011 (Cth)
Federal Court of Australia Act 1976 (Cth)

Cases cited: Carr v Finance Corporation of Australia (1981) 147 CLR 246
Brouwer v Titan Corporation (1997) 73 FCR 241 Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512
Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Reid v Nairn (1985) 60 ALR 419
Bahonko v Sterjov [2007] FCA 1717
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Hamod v New South Wales (2002)188 ALR 659
Hall v Nominal Defendant (1966) 117 CLR 423
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Briginshaw v Briginshaw (1938) 60 CLR 336
Cook v Deeks [1916] 1 AC 554
Spotless Group Ltd v Blanco Catering Pty Ltd (2011) 93 IPR 235

Date of hearing: 17 May 2013

Date of last submissions: 16 May 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 77

Counsel for the First to Eighth Applicants: C D Wood

Solicitor for the First to Eighth Applicants: Greenstein & Associates

Counsel for the Respondent: M J Collins SC with Dr M Sharpe

Solicitor for the Respondent: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 287 of 2013

BETWEEN:
MATTHEW HURD
First Applicant

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Applicant

ZEPTO FABRICS PTY LTD (ACN 156 138 000)
Third Applicant

ZEPTOIP PTY LTD (ACN 156 133 087)
Fourth Applicant

ZEPTO MARKETS PTY LTD (ACN 150 529 301)
Fifth Applicant

MD HAMMER PTY LTD (ACN 149 869 189)
Sixth Applicant

CROSSWISE PTY LTD (ACN 140 717 317)
Seventh Applicant

TRADEMACH PTY LTD (ACN 155 683 864)
Eighth Applicant

AND:
ZOMOJO PTY LTD (ACN 114 604 269)
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

13 JUNE 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for an extension of time…

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 Hurd v Zomojo Pty Ltd

Details

AGLC: Hurd v Zomojo Pty Ltd [2013] FCA 581
Case: [2013] FCA 581
Decision Date: 13 June 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Hurd sought an extension of time and leave to appeal against a decision made by Zomojo Pty Ltd. Hurd's primary contention was that the original decision contained errors that warranted further scrutiny through an appeal. Zomojo opposed the application, arguing that Hurd's case lacked merit and that any application for an extension of time and leave to appeal was incompetent due to prior refusals and the absence of a sufficient doubt about the primary decision.

The court examined whether Hurd's application was within the scope of the appeal jurisdiction as conferred by section 24 of the Federal Court Act 1976. It was noted that Hurd had previously been denied leave to appeal, and the court found that the primary decision did not exhibit the requisite doubt necessary to warrant reconsideration. The court also assessed the relevance of the time extension request, concluding that it was not justified under the circumstances presented. Given these findings, the court determined that the application was incompetent with respect to Hurd, who had previously been refused leave to appeal.

Consequently, the court dismissed Hurd's application for an extension of time and for leave to appeal. It further ordered that Hurd pay the costs of and incidental to the application to Zomojo, as stipulated under Rule 39.32 of the Federal Court Rules 2011. This ruling underscores the stringent criteria that must be met for an appeal to be entertained by the court, particularly when prior applications have already been rejected.

Orders

Orders of the court

1. The application for an extension of time and for leave to appeal be dismissed.

2. The applicants pay the respondent’s costs of and incidental to the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Hurd v Zomojo Pty Ltd [2013] FCA 581

Most Recent Citation

Zomojo Pty Ltd v Zeptonics Pty Ltd [2013] FCA 1131

Cases Citing This Decision

Quach v RU [2023] FCA 1233
Citation 1 (Para 26)

…e on 15 November 2019: Quach v RU [2019] FCA 2041. It is not open to Dr Quach to make a second application for leave to appeal: Hurd v Zomojo Pty Ltd [2013] FCA 581 at [34]-[36]. Nor is it open to Dr Quach to appeal, or seek leave to appeal, from the decision refusing his application for leave to appeal: Reid v N…
Quach v Marks (No 2) [2022] FCA 1335
Citation 2 (Para 18)

…r application has been refused: Thomas Borthwick at 431 – 433; Hamod v New South Wales [2002] FCA 424; 188 ALR 659 at [15]; Hurd v Zomojo Pty Ltd [2013] FCA 581 at [34] – [36]. CONCLUSION…
Hurd v Zomojo Pty Ltd [2015] FCAFC 147
Citation 3 (Para 9)

…On 13 June 2013, Kenny J refused such an application ( Hurd v Zomojo Pty Ltd [2013] FCA 581).…
Hassan v Minister for Immigration and Border Protection [2014] FCA 1286
Citation 4 (Para 32)

…extend time, a party must show some good reason to dispense with the requirement to file a leave application within time. See Hurd v Zomojo Pty Ltd [2013] FCA 581 at [10]; Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23].…
Zomojo Pty Ltd v Zeptonics Pty Ltd [2013] FCA 1131
Citation 5 (Para 15)

…udgment on liability that the judgment was attended with sufficient doubt to warrant its reconsideration by an appellate court: Hurd v Zomojo Pty Ltd [2013] FCA 581.…

See all citing cases →

Cases Cited

Hurd v Zomojo Pty Ltd (No 2) [2013] FCA 146
Citation 1 (Para 16)

…In reasons for judgment delivered on 1 March 2013 (see Hurd v Zomojo Pty Ltd (No 2) [2013] FCA 146), Marshall J referred to the fact that, on 26 February 2013, he had “refused to extend the time necessary to permit two interlocutory applications … (seeking leave to appeal) to be filed out of time” (at [[2]). His…
Hurd v Zomojo Pty Ltd [2013] FCA 145
Citation 2 (Para 22)

…In reasons for judgment (see Hurd v Zomojo [2013] FCA 145) on 1 March 2013, his Honour further stated (at [1]-[9]): Rule 4.01(2) of the Federal Court Rules 2011 provides that a corporation may not proceed in the Court without a lawyer. This rule may be dispensed with in the Court’s discretion. However, the Court…
Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54
Citation 3 (Para 2)

…easons for judgment are set out in Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 (‘Primary Judgment’) and Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54.…
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458
Citation 4 (Para 2)

…n against the respondents’ using or accessing the Products. Her Honour’s reasons for judgment are set out in Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 (‘Primary Judgment’) and Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54.…
Shannon v Commonwealth Bank of Australia [2012] FCA 1378
Citation 5 (Para 17)

…ave to appeal against an interlocutory decision should be granted was succinctly stated by Buchanan J in Shannon v Commonwealth Bank of Australia [2012] FCA 1378 at [12]. It is: [w]hether the decision is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result…
Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156
Citation 6 (Para 22)

…n by a lawyer demonstrates a “sufficient reason” to be permitted to do so; see Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156 at [4] and the authorities there cited. On 26 February 2013, the Court heard an application by Mr John Hurd for dispensation to represent the second to eig…
Spotless Group Ltd v Blanco Catering Pty Ltd [2011] FCA 979
Citation 7 (Para 9)

…the fiduciary duties Hurd continued to owe to Zomojo and s 183(1) of the Corporations Act: Spotless Group Ltd v Blanco Catering Pty Ltd (2011) 93 IPR 235 at [27] ……
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4
Citation 8 (Para 3)

…to appeal are heard and determined in exercise of the Court’s appellate jurisdiction: see, for example, Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 (‘ Thomas Borthwick ’) at 431. The Full Court has held that the effect of s 24(1A) and earlier versions of s 25(2) is that there is no appea…
Bahonko v Sterjov [2007] FCA 1717
Citation 9 (Para 3)

…ALR 419 at 421, 426; and Thomas Borthwick at 43. This proposition has been repeatedly affirmed and applied: see, for example, Bahonko v Sterjov [2007] FCA 1717 at [55]. An appeal from the refusal of a single judge to grant leave is incompetent.…
Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38
Citation 10 (Para 10)

…with the requirement to file an application for leave to appeal within time: see, for example, Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. Reason for the delay…
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14
Citation 11 (Para 27)

…being reconsidered by an appellate court; and (2) substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (‘ Décor ’) at 398–399.…
Wati v Minister for Immigration and Multicultural Affairs [1997] FCA 1052
Citation 12 (Para 5)

…al from the refusal of a single judge to grant an extension of time in which to appeal: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 (‘ Wati ’) at 548. Such an appeal is incompetent. The power in s 24(1A) of the Federal Court involves “a true alternative and not a progressive choic…
Brouwer v Titan Corporation Ltd [1997] FCA 1077
Citation 13 (Para 9)

…eek to challenge are interlocutory in nature: see Carr v Finance Corporation of Australia (1981) 147 CLR 246 at 248, 256; Brouwer v Titan Corporation (1997) 73 FCR 241 at 242; and Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512.…
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844
Citation 14 (Para 27)

…and (2) substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (‘ Décor ’) at 398–399.…
Reid v Nairn [1985] FCA 245
Citation 15 (Para 3)

…) and earlier versions of s 25(2) is that there is no appeal from the decision of a single judge refusing (or granting) leave: see Reid v Nairn (1985) 60 ALR 419 at 421, 426; and Thomas Borthwick at 43. This proposition has been repeatedly affirmed and applied: see, for example, Bahonko v Sterjov [2007] FCA 1717 at…
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47
Citation 16 (Para 9)

…ion of Australia (1981) 147 CLR 246 at 248, 256; Brouwer v Titan Corporation (1997) 73 FCR 241 at 242; and Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512.…
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20
Citation 17 (Para 9)

…cants require leave to appeal because the orders that they seek to challenge are interlocutory in nature: see Carr v Finance Corporation of Australia (1981) 147 CLR 246 at 248, 256; Brouwer v Titan Corporation (1997) 73 FCR 241 at 242; and Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512.…
Hall v Nominal Defendant [1966] HCA 36
Citation 18 (Para 10)

…I note that, in this regard, the applicants’ reference to Carr v Finance Corporation of Australia (1981) 147 CLR 246 and Hall v Nominal Defendant (1966) 117 CLR 423 failed to support their argument since both cases were concerned with applications in the original, rather than the appellate, jurisdiction of State Supr…
Briginshaw v Briginshaw [1938] HCA 36
Citation 19 (Para 3)

…Broadly speaking, Briginshaw v Briginshaw (1938) 60 CLR 336 (‘ Briginshaw’ ) requires that “the affirmative of the allegation is made out to the reasonable satisfaction of the tribunal”, acknowledging that serious allegations “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw at…
Briginshaw v Briginshaw [1938] HCA 34
Citation 20 (Para 3)

…Broadly speaking, Briginshaw v Briginshaw (1938) 60 CLR 336 (‘ Briginshaw’ ) requires that “the affirmative of the allegation is made out to the reasonable satisfaction of the tribunal”, acknowledging that serious allegations “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”: B…
[1916] 1 AC 554 [1916] 1 AC 554
Citation 21 (Para 7)

…as wrong in finding that the fiduciary duty might continue. In this regard, Mr Wood specifically criticised her Honour’s reliance on Cook v Deeks [1916] 1 AC 554 ( Cook v Deeks) .…

Legislation Cited

Federal Court Act 1976 (Cth)
1 mention
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention (from Para 10)

Citation:		Hurd v Zomojo Pty Ltd [2013] FCA 581
Parties:		MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087), ZEPTO MARKETS PTY LTD (ACN 150 529 301), MD HAMMER PTY LTD (ACN 149 869 189), CROSSWISE PTY LTD (ACN 140 717 317) and TRADEMACH PTY LTD (ACN 155 683 864) v ZOMOJO PTY LTD (ACN 114 604 269)
File number:		VID 287 of 2013
Judge:		KENNY J
Date of judgment:		13 June 2013
Catchwords:		PRACTICE AND PROCEDURE – Application for extension of time and leave to appeal – Application made in circumstances where one applicant had been refused leave to appeal previously – Consideration of scope of appeal jurisdiction conferred by s 24 of the Federal Court Act 1976 – Application incompetent with respect to prior heard party – Primary decision not attended with sufficient doubt with respect to remainder of application
Legislation:		Federal Court Rules 2011 (Cth) Federal Court of Australia Act 1976 (Cth)
Cases cited:		Carr v Finance Corporation of Australia (1981) 147 CLR 246 Brouwer v Titan Corporation (1997) 73 FCR 241 Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512 Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 Reid v Nairn (1985) 60 ALR 419 Bahonko v Sterjov [2007] FCA 1717 Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 Hamod v New South Wales (2002)188 ALR 659 Hall v Nominal Defendant (1966) 117 CLR 423 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Briginshaw v Briginshaw (1938) 60 CLR 336 Cook v Deeks [1916] 1 AC 554 Spotless Group Ltd v Blanco Catering Pty Ltd (2011) 93 IPR 235
Date of hearing:	17 May 2013
Date of last submissions:	16 May 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	77
Counsel for the First to Eighth Applicants:	C D Wood
Solicitor for the First to Eighth Applicants:	Greenstein & Associates
Counsel for the Respondent:	M J Collins SC with Dr M Sharpe
Solicitor for the Respondent:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 287 of 2013

BETWEEN:	MATTHEW HURD First Applicant ZEPTONICS PTY LTD (ACN 141 647 716) Second Applicant ZEPTO FABRICS PTY LTD (ACN 156 138 000) Third Applicant ZEPTOIP PTY LTD (ACN 156 133 087) Fourth Applicant ZEPTO MARKETS PTY LTD (ACN 150 529 301) Fifth Applicant MD HAMMER PTY LTD (ACN 149 869 189) Sixth Applicant CROSSWISE PTY LTD (ACN 140 717 317) Seventh Applicant TRADEMACH PTY LTD (ACN 155 683 864) Eighth Applicant
AND:	ZOMOJO PTY LTD (ACN 114 604 269) Respondent
JUDGE:	KENNY J
DATE OF ORDER:	13 JUNE 2013
WHERE MADE:	MELBOURNE