Lamont v Malishus Limited - [2020] FCA 1535

FEDERAL COURT OF AUSTRALIA
Lamont v Malishus Limited [2020] FCA 1535

File number: NSD 33 of 2020

Judgment of: BURLEY J

Date of judgment: 16 October 2020

Date of publication of reasons: 21 October 2020

Catchwords: PRACTICE AND PROCEDURE – application for substituted service of initiating documents – where respondent resides in New Zealand – application of the Trans-Tasman Proceedings Act 2010 (Cth) – where respondent has refused to accept personal service as required by the Act – application of the Federal Court Rules 2011 (Cth) relating to substituted service – application granted

Legislation:
Federal Court Rules 2011 (Cth) r 10.24, r 36.06

Trans-Tasman Proceedings Act 2010 (Cth) s 9

Cases cited: Webster v Brewer [2020] FCA 622

Division: General Division

Registry: New South Wales

National Practice Area: Intellectual Property

Sub-area: Copyright and Industrial Designs

Number of paragraphs: 14

Date of hearing: 15 October 2020

Counsel for the Applicant: Ms. Cairns with Ms A. Reid (for the application for an extension of time)
The Applicant appeared in person (for the interlocutory application)

Counsel for the First, Second and Third Respondents: Mr I. Horak with Ms L. Davis (for the application for an extension of time)
The First, Second and Third Respondents did not appear (for the interlocutory application)

Counsel for the Fourth Respondent: The Fourth Respondent did not appear

ORDERS

NSD 33 of 2020

BETWEEN:
DARREN LAMONT

Applicant

AND:
MALISHUS LIMITED

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

16 OCTOBER 2020

THE COURT ORDERS THAT:
Application for extension of time
1.The applicant/appellant be granted an extension of time until 4pm on 23 October 2020 to file the notice of appeal in the form of the draft notice of appeal filed on 28 July 2020.
2.The costs of and incidental to the application for an extension of time be costs in the cause.

Service
3.Pursuant to s 9 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) and r 36.05 of the Federal Court Rules 2011 (Cth) (FCR), the applicant/appellant be granted leave to serve the following documents on the fourth respondent in New Zealand:
(a)The application for an extension of time filed on 10 January 2020;
(b)The notice of appeal filed pursuant to order 1 above; and
(c)A copy of these orders,

(the Documents).
4.Pursuant to s 9 of the TTPA and r 10.24 of the FCR, the applicant/appellant be granted leave to serve on the fourth respondent, by email at Rima.Nicholas@police.govt.nz, by 4pm on 30 October 2020, scanned copies of the Documents.
5.Pursuant to s 9 of the TTPA and FCR 10.24(c), the Documents will be taken to have been personally served on the fourth respondent, upon transmission to the email address recorded in order 5 above.

Sound recordings from the Court below
6.The parties and their legal representatives be provided with copies of the sound recordings of all hearings conducted before Judge Manousaridis in Federal…

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 Lamont v Malishus Limited

Details

AGLC: Lamont v Malishus Limited [2020] FCA 1535
Case: [2020] FCA 1535
Decision Date: 16 October 2020

CaseChat Overview and Summary

The Federal Court heard an application from the appellant, Lamont, seeking an extension of time to file a notice of appeal and the application of the Trans-Tasman Proceedings Act 2010 (Cth) to serve documents on the fourth respondent who resides in New Zealand. The appellant, Lamont, was appealing against a decision of the Federal Circuit Court of Australia in proceedings that had commenced in the Federal Circuit Court. The fourth respondent had refused to accept personal service as required by the Trans-Tasman Proceedings Act. The court was required to determine whether the Federal Court Rules 2011 (Cth) permit substituted service of documents on the fourth respondent in this case, and if so, by what means.

The court found that the fourth respondent had refused to accept service as required by the Trans-Tasman Proceedings Act. The court noted that substituted service is available under the Federal Court Rules when a person cannot be served personally. The court found that substituted service by email was permissible under the Federal Court Rules and the Trans-Tasman Proceedings Act. The court also found that the appellant had satisfied the requirements of the Federal Court Rules in relation to the extension of time to file the notice of appeal. The court found that the application for an extension of time should be granted and that the costs of and incidental to the application for an extension of time be costs in the cause. The court also found that the application for leave to serve documents on the fourth respondent by email should be granted.

The court granted the application for an extension of time and for substituted service of documents on the fourth respondent by email. The court also ordered that copies of the sound recordings of all hearings conducted before Judge Manousaridis in Federal Circuit Court of Australia proceeding SYG 2008 of 2014 be provided to the parties and their legal representatives. The court further ordered that a referral certificate be issued to the applicant and the first to third respondents for the provision of advice and to appear at the hearing, including any case management hearing, and any dispute resolution process. Finally, the court referred the matter for mediation and listed the proceeding for a case management hearing.

Orders

Orders of the court

Application for extension of time

1. The applicant/appellant be granted an extension of time until 4pm on 23 October 2020 to file the notice of appeal in the form of the draft notice of appeal filed on 28 July 2020.

2. The costs of and incidental to the application for an extension of time be costs in the cause.

Service

3. Pursuant to s 9 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) and r 36.05 of the Federal Court Rules 2011 (Cth) (FCR), the applicant/appellant be granted leave to serve the following documents on the fourth respondent in New Zealand:

(a) The application for an extension of time filed on 10 January 2020;

(b) The notice of appeal filed pursuant to order 1 above; and

(the Documents).

4. Pursuant to s 9 of the TTPA and r 10.24 of the FCR, the applicant/appellant be granted leave to serve on the fourth respondent, by email at Rima.Nicholas@police.govt.nz, by 4pm on 30 October 2020, scanned copies of the Documents.

5. Pursuant to s 9 of the TTPA and FCR 10.24(c), the Documents will be taken to have been personally served on the fourth respondent, upon transmission to the email address recorded in order 5 above.

Sound recordings from the Court below

6. The parties and their legal representatives be provided with copies of the sound recordings of all hearings conducted before Judge Manousaridis in Federal Circuit Court of Australia proceeding SYG 2008 of 2014.

Pro bono referral

7. Pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), a referral certificate be issued to the applicant and the first to third respondents for the provision of advice and to appear at the hearing, including any case management hearing, and any dispute resolution process.

Mediation

8. The matter be referred for mediation, with such mediation to be conducted by a Registrar of the Court, and to take place on or before 1 December 2020.

Case management hearing

9. The proceeding be listed for case management hearing at 9.30am on 16 December 2020.

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.

File number:	NSD 33 of 2020
Judgment of:	BURLEY J
Date of judgment:	16 October 2020
Date of publication of reasons:	21 October 2020
Catchwords:	PRACTICE AND PROCEDURE – application for substituted service of initiating documents – where respondent resides in New Zealand – application of the Trans-Tasman Proceedings Act* 2010* (Cth) – where respondent has refused to accept personal service as required by the Act – application of the Federal Court Rules 2011 (Cth) relating to substituted service – application granted
Legislation:	Federal Court Rules 2011 (Cth) r 10.24, r 36.06 Trans-Tasman Proceedings Act 2010 (Cth) s 9
Cases cited:	Webster v Brewer [2020] FCA 622
Division:	General Division
Registry:	New South Wales
National Practice Area:	Intellectual Property
Sub-area:	Copyright and Industrial Designs
Number of paragraphs:	14
Date of hearing:	15 October 2020
Counsel for the Applicant:	Ms. Cairns with Ms A. Reid (for the application for an extension of time) The Applicant appeared in person (for the interlocutory application)
Counsel for the First, Second and Third Respondents:	Mr I. Horak with Ms L. Davis (for the application for an extension of time) The First, Second and Third Respondents did not appear (for the interlocutory application)
Counsel for the Fourth Respondent:	The Fourth Respondent did not appear

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	16 OCTOBER 2020