FEDERAL COURT OF AUSTRALIA
Karlsson v Griffith University [2022] FCA 997
File number(s): NSD 431 of 2022 Judgment of: RARES J Date of judgment: 15 August 2022 Legislation: Australian Consumer Law ss 18 and 236
Competition and Consumer Act 2010 (Cth) Sch 2
Federal Court of Australia Act 1976 (Cth) ss 24 and 31A
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7
Trade Marks Act 1995 (Cth) s 124
Crimes Act 1958 (Vic)
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Karlsson v Griffith University (2020) 103 NSWLR 131
Karlsson v Griffith University [2020] NSWSC 365
Karlsson v Griffith University [2021] HCASL 12
Re Luck (2003) 203 ALR 1
Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Trade Marks Number of paragraphs: 28 Date of hearing: 15 August 2022 Counsel for the Applicant: Applicant was self-represented Counsel for the Respondent: Mr A G Psaltis Solicitor for the Respondent: Bartley Cohen ORDERS
NSD 431 of 2022 BETWEEN: ANNIKA KARLSSON
Applicant
AND: GRIFFITH UNIVERSITY ABN 78106094461
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
15 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant’s interlocutory applications filed on 7 June 2022 seeking a stay on the execution of the orders of the primary judge made on 24 May 2022 and leave to appeal be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
RARES J:
The applicant, Annika Karlsson, has applied for leave to appeal from (and to stay) the orders of the primary judge that the proceeding below be dismissed with costs and summary judgment be entered in favour of the respondent, Griffith University. Her Honour also dismissed Ms Karlsson’s interlocutory application seeking default judgment against the University for its failure to file a defence, notwithstanding that her Honour had not required it to do so in light of the pendency of the University’s application for summary dismissal.
Background
Ms Karlsson sought relief in her originating application, supported by a statement of claim, that were largely unintelligible. She sought orders under the Trade Marks Act 1995 (Cth) and under s 236 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) against the University in respect of its past use of the trade mark, “Know More, Do More” (the mark). The University had been the registered owner of the mark in class 41 (education services) until 2018 when it obtained cancellation of its registration so that Ms Karlsson could become its registered owner, as she did, and then could use it.
Ms Karlsson claimed that she had previously owned the mark before the University. It had become registered as its owner on 21 November 2014, with a priority date of 10 May 2013 (being the date of its application for registration). The University had commenced…
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- AGLC
- Karlsson v Griffith University [2022] FCA 997
- Case
- [2022] FCA 997
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the primary judge’s decision to summarily dismiss the proceeding as an abuse of process was correct and whether leave to appeal should be granted. The court found that the primary judge’s reasons were cogent and correct. The proceeding was an abuse of process as it sought to relitigate the same claims that had already been dismissed. Furthermore, Ms Karlsson’s statement of claim was so defective that it had no reasonable prospect of succeeding. The court found that there was no error in the primary judge’s analysis and that the proceeding was an abuse of the court’s process.
The court dismissed Ms Karlsson’s application for leave to appeal and her application for a stay of the primary judge’s orders. The court found that the proceeding was an abuse of process and that there was no sufficient doubt to warrant the grant of leave to appeal. The court also found that Ms Karlsson was seeking to relitigate the same claims that had already been dismissed and that her statement of claim was defective to the extent that it would be oppressive or vexatious to the respondent if the proceeding were to continue. The court ordered that Ms Karlsson pay the respondent’s costs.
The court’s decision in Karlsson v Griffith University highlights the importance of properly pleading claims and the consequences of seeking to relitigate the same claims that have already been dismissed. The court found that the primary judge’s decision to summarily dismiss the proceeding as an abuse of process was correct and that there was no sufficient doubt to warrant the grant of leave to appeal. The court also found that Ms Karlsson’s statement of claim was defective to the extent that it would be oppressive or vexatious to the respondent if the proceeding were to continue. The court’s decision serves as a reminder to litigants to properly plead their claims and to avoid seeking to relitigate the same claims that have already been dismissed.
Orders
Orders of the court
1. The applicant’s interlocutory applications filed on 7 June 2022 seeking a stay on the execution of the orders of the primary judge made on 24 May 2022 and leave to appeal be dismissed.
2. The applicant pay the respondent’s costs.
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
Ratio Decidendi
Legal Principle Established
Ms Karlsson then turned to this Court, in October 2021, and began the proceeding, the subject of this application. The primary judge gave detailed, cogent and correct reasons for finding, first, that the proceeding was an abuse of process because it was seeking to relitigate the same claim that Wright J had summarily dismissed, secondly, Ms Karlsson’s statement of claim was hopelessly defective so as to amount to it being oppressive or vexatious and, thirdly, were the proceeding not to be summarily dismissed, the statement of claim should be struck out and Ms Karlsson should not have leave to re-plead for essentially the same reasons as Wright J found. Her Honour found that Ms Karlsson would not be able to formulate a coherent pleading that complied with the Federal Court Rules 2011 as to pleading any more than she was able or willing to do so in the Supreme Court, and she still was not willing to engage a lawyer to assist her to do so. Consideration A decision summarily dismissing a proceeding on the ground that it is an abuse of process is interlocutory: Re Luck (2003) 203 ALR 1 at 4 [9]–[10] per McHugh ACJ, Gummow and Heydon JJ. Leave to appeal is necessary under s 24(1D)(b) of the Federal Court of Australia Act 1976 (Cth) if a proceeding is summarily dismissed under s 31A, as Ms Karlsson’s was. The principles that govern the grant of leave to appeal are well established. An applicant for leave must, first, establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, substantial injustice would result from a refusal for leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings (See, eg, Reichel v Magrath (1889) 14 App Cas 665 at 668; Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361–1362.(emphasis added) Ms Karlsson filed the application for leave to appeal one day out of time because of a misunderstanding, which, the University accepted should not stand in the way of granting her leave to appeal, were she otherwise able to demonstrate a basis on which that should be granted. Here, as Ms Karlsson accepted, she was seeking to relitigate, in her substantively identical proceeding before the primary judge, the same claims that Wright J summarily dismissed. Her Honour was correct to dismiss the proceeding below as an abuse of process and to give the University summary judgment. The primary judge thoroughly analysed Ms Karlsson’s claims. She found that they were substantially the same as those in the Supreme Court. Her Honour then proceeded to explain why, in any event, the claims were so badly pleaded that they had no reasonable prospect of succeeding, although she did not need to do so, as she stated. I see no error in any of her Honour’s analysis. It was, on the material before me, entirely correct.