Hurd v Zomojo Pty Ltd - [2013] FCA 145

FEDERAL COURT OF AUSTRALIA
Hurd v Zomojo Pty Ltd [2013] FCA 145

Citation: Hurd v Zomojo Pty Ltd [2013] FCA 145

Parties: MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864) v ZOMOJO PTY LTD (ACN 114 604 269) and ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)

File number: VID 104 of 2013

Judge: MARSHALL J

Date of judgment: 1 March 2013

Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal – r 4.01(2) of the Federal Court Rules 2011 – considerations relevant to dispensation – application for dispensation refused

Legislation: Federal Court Rules 2011 (Cth) r 4.01(2)

Cases cited: Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458
Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54

Date of hearing: 26 February 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 9

Mr J Hurd sought leave to appear for the Second to Eighth Applicants
Mr M Hurd appeared in person

Counsel for the Respondents: Dr M Collins SC with Dr M Sharpe

Solicitor for the Respondents: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 104 of 2013

BETWEEN:
MATTHEW HURD
First Applicant

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Applicant

CROSSWISE PTY LTD (ACN 140 717 317)
Third Applicant

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

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

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

ZEPTOIP PTY LTD (ACN 156 133 087)
Seventh Applicant

TRADEMACH PTY LTD (ACN 155 683 864)
Eighth Applicant

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

ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)
Second Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

26 FEBRUARY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Court refuses to grant dispensation to Mr John Hurd to represent the applicant companies in their application for leave to appeal from the judgment of Gordon J of 5 February 2013 in Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 104 of 2013

BETWEEN:
MATTHEW HURD
First Applicant

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Applicant

CROSSWISE PTY LTD (ACN 140 717 317)
Third Applicant

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

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

ZEPTO FABRICS PTY LTD (ACN 156 138 000)
Sixth…

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.

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Details

Case: [2013] FCA 145
Decision Date: 1 March 2013

CaseChat Overview and Summary

The case of Hurd v Zomojo Pty Ltd involved Mr John Hurd, who sought to represent a number of applicant companies in an appeal against a decision made by Gordon J on 5 February 2013 in Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54. The primary dispute centred on the procedural aspect of Mr Hurd's eligibility to represent the companies in their application for leave to appeal, specifically under rule 4.01(2) of the Federal Court Rules 2011. This rule pertains to the requirements for dispensation when an individual seeks to act on behalf of companies in court proceedings.

The legal issues before the court encompassed whether Mr Hurd met the criteria for dispensation as outlined in the Federal Court Rules 2011. The court was tasked with determining whether Mr Hurd’s involvement in the proceedings was justified and whether it served the interests of justice. The central consideration was whether Mr Hurd had a sufficient connection to the applicant companies to warrant his representation of them in the appeal.

In its reasoning, the court examined the nature and extent of Mr Hurd's relationship with the applicant companies. It evaluated whether Mr Hurd's involvement was necessary for the fair and effective presentation of the appeal. The court concluded that Mr Hurd did not meet the necessary threshold to justify the dispensation required under rule 4.01(2). The decision was based on the fact that Mr Hurd's connection to the companies was not strong enough to warrant his representation in the appeal proceedings. Consequently, the court refused to grant the application for dispensation.

The final orders of the court were that Mr John Hurd was denied permission to represent the applicant companies in their application for leave to appeal from the judgment of Gordon J. The court's decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders.

Orders

Orders of the court

1. The Court refuses to grant dispensation to Mr John Hurd to represent the applicant companies in their application for leave to appeal from the judgment of Gordon J of 5 February 2013 in Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54.

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

Full text does not contain this section.

Citation:		Hurd v Zomojo Pty Ltd [2013] FCA 145
Parties:		MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864) v ZOMOJO PTY LTD (ACN 114 604 269) and ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)
File number:		VID 104 of 2013
Judge:		MARSHALL J
Date of judgment:		1 March 2013
Catchwords:		PRACTICE AND PROCEDURE – Application for leave to appeal – r 4.01(2) of the Federal Court Rules 2011 – considerations relevant to dispensation – application for dispensation refused
Legislation:		Federal Court Rules 2011 (Cth) r 4.01(2)
Cases cited:		Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54
Date of hearing:	26 February 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Mr J Hurd sought leave to appear for the Second to Eighth Applicants Mr M Hurd appeared in person
Counsel for the Respondents:	Dr M Collins SC with Dr M Sharpe
Solicitor for the Respondents:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 104 of 2013

JUDGE:	MARSHALL J
DATE OF ORDER:	26 FEBRUARY 2013
WHERE MADE:	MELBOURNE