Korolak v Campbell
[2022] FedCFamC2G 1082
Federal Circuit and Family Court of Australia
(DIVISION 2)
Korolak v Campbell [2022] FedCFamC2G 1082
File number(s): MLG 1112 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 November 2022 Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application to amend statement of claim at the commencement of closing oral address – application refused. Legislation: Trade Marks Act 1995 (Cth) ss 120(1), 120(2) Division: General Number of paragraphs: 9 Date of hearing: 25 November 2022 Place: Sydney Solicitor for the Applicant: Mr G Benson of Gareth Benson Lawyers & Associates, by video Counsel for the Respondents: Mr B McEniery, by video Solicitor for the Respondents: McCarthy Durie Lawyers ORDERS
MLG 1112 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RHONDALYNN KOROLAK
Applicant
AND: CANNA CAMPBELL
First Respondent
SASS FINANCIAL AUSTRALIA PTY LTD ATF CANNA CAMPBELL FAMILY TRUST
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 November 2022
THE COURT ORDERS THAT:
1.The applicant’s application to amend the statement of claim by including paragraph 12A set out in the notice of amendment marked MFI-1 is refused.
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
(Revised from transcript)
Just as counsel for the respondents was about to resume making his closing oral submissions, Mr Benson, who appears for the applicant, indicated that he had an application to amend the amended statement of claim. I adjourned the matter for a little while to permit Mr Benson to provide to the respondents and to my associate the form of proposed amendment. Two forms were submitted; and I only say that because I will mark and treat the second notice of amendment as the proposed amendment that Mr Benson is seeking leave to be included in the statement of claim. I will mark that document “MFI-1”.
The proposed amendment seeks to include a new paragraph 12A. It is stated to be an allegation in the alternative to paragraph 12 of the amended statement of claim. Paragraph 12 is a conclusory paragraph of the legal effect of matters alleged in paragraphs 7 to 11 of the amended statement of claim, the conclusion being that the first respondent, Ms Campbell, and the second respondent (SASS) have, pursuant to s 120(1) and 120(2) of the Trade Marks Act 1995 (Cth), infringed the applicant’s trademark. Paragraph 12A alleges, or seeks to allege, that Ms Campbell is jointly and severally liable with SASS as a joint tortfeasor, and then proceeds to identify why that is so. It is alleged that Ms Campbell directed and procured the infringing acts committed by SASS; Ms Campbell went beyond causing SASS to take a commercial or business course of action; and Ms Campbell had a close personal involvement in SASS’s infringing conduct. The particulars appended to paragraph 12A are largely based on matters contained in Ms Campbell’s affidavit made on 4 April 2022.
The application to amend, not surprisingly, is opposed by counsel for the respondents. It is submitted that the application is not supported by an affidavit which explains why the amendment is sought at this late stage in the proceeding. Counsel also submitted that if I were to permit the amendment he would necessarily have to seek further instructions and consider whether it would be necessary to call further evidence. In short, the likelihood would be that if an adjournment were granted, the proceeding would need to be adjourned for some time. In any event, counsel for the respondents said there was no realistic way that he could continue with his closing submissions if I were to permit the proposed amendment.
The effect of Mr Benson’s submissions about the lateness of the notice of the intention to amend the pleadings is – and I think this is my characterisation – that this was something that had not been considered in the past. The inference is available to be drawn that what crystallised the issue, which is the subject of the proposed amendment, is the submission made in writing by the respondents’ counsel yesterday that, to the extent it is found Ms Campbell engaged in infringing conduct, Ms Campbell did not act in a personal capacity, but in her capacity as an employee and director of SASS. Mr Benson also submitted that there is nothing new in this material.
It may be accepted that there has been an oversight in considering the matter which is the subject of the proposed amendment. That, however, must be viewed in the context in which this litigation has proceeded. It will rarely be a sufficient reason to allow an amendment at the dying throes of a proceeding because the course of the litigation has illuminated something that ought have attracted earlier attention than it did. If that were permitted there would be no end to litigation.
Litigation is a structured process, and when it is conducted by way of pleadings that structure is provided by the pleadings. It is by reference to that structure that parties make all the forensic decisions in the case; most importantly, decisions about what evidence to call, on what to cross-examine, what documents to call for, and things of that nature. I am satisfied that this proposed amendment, if allowed, would necessarily lead to the proceeding being adjourned and thereby result in costs thrown away. And I am not only referring to legal costs. There are other costs involved in litigation. There is the opportunity costs to the parties themselves whose time is taken in participating in the litigation; and there are also the stresses, uncertainties, and personal anxieties that litigation inevitably induces to varying degrees on the parties themselves.
There is also another aspect to the matter and that is this. The statement of claim alleges throughout that the alleged infringing activity is undertaken by the first and second respondents. That, at least, arguably might be a sufficient basis for the applicant to allege joint tortfeasorship. Mr Benson says that it is, indeed, his intention to make an argument to that effect. I mention this only because even if this amendment were not granted, that would not necessarily deny the applicant an ability, at least, to contend that the respondents are jointly liable for any infringing conduct.
I should also note that counsel for the respondents submitted that this is an abuse of process. I am not prepared to make that finding. It appears that there was no forensic decision to withhold making this allegation. The application to amend appears to have been prompted by a recognition that there is a potential issue that may not have been properly covered in the statement of claim.
The overall question when considering applications for an amendment is what is required in the interests of the administration of justice. For reasons I have given, I am satisfied that it is not in the interests of the administration of justice that I permit this amendment. On the contrary, I am satisfied that it would be in the interests of the administration of justice to refuse the application.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 24 January 2023
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