Lamont v Malishus Limited (No 2)

Case [2022] FCA 237

FEDERAL COURT OF AUSTRALIA

Lamont v Malishus Limited (No 2) [2022] FCA 237  

Appeal from: Lamont v Malishus & Ors (No. 4) [2019] FCCA 3206
File number: NSD 33 of 2020
Judgment of: BURLEY J
Date of judgment: 18 March 2022
Catchwords: PRACTICE AND PROCEDURE – where appellant was self-represented before the Federal Circuit Court of Australia (“FCCA”) – whether FCCA erred by denying appellant right to fair hearing – whether FCCA erred by failing to inform appellant of court practices and procedures – relevant legal principles – relevance of characteristics of litigant and proceedings – no error found
TRADE MARKS – whether FCCA erred in determining that use by fourth respondent of impugned trade mark was not use in Australia – no error found
Legislation:

Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’)

Trade Marks Act1995 (Cth) ss 120 and 126

Federal Circuit Court Rules 2001 (Cth) rr 6.14, 14.02(1), 15A.02(1) and 15A.17

Federal Court Rules 2011 (Cth) r 12.01
Cases cited:

Abram v Bank of New Zealand [1996] FCA 635; ATPR 41-507

Boensch v Somerville Legal [2021] FCAFC 79

Christian v Société Des Produits Nestlé SA (No 2) [2015] FCAFC 153; 115 IPR 421

Dietrich v The Queen [1992] HCA 57; 177 CLR 292

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479

Hamod v New South Wales [2011] NSWCA 375

Lamont v Malishus & Ors (No 3) [2018] FCCA 1294

Lamont v Malishus & Ors (No 4) [2019] FCCA 3206

Lamont v Malishus & Ors (No. 2) [2018] FCCA 895

Lamont v Malishus & Ors [2018] FCCA 423

Lamont v Malishus Limited [2020] FCA 1535

MacPherson v R [1981] HCA 46; 147 CLR 512

Mendonca v Legal Services Commissioner [2020] NSWCA 84

Neil v Nott [1994] HCA 23; 68 ALJR 509

Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1

Tomasevic v Travaglini [2007] VSC 337; 17 VR 100

Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471; 143 FCR 479
Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Trade Marks
Number of paragraphs: 105
Date of hearing: 15 October 2020
Counsel for the Appellant: Ms M Cairns with Ms A Reid
Counsel for the Respondents: The respondents filed submitting notices, save as to costs

ORDERS

NSD 33 of 2020
BETWEEN:

DARREN LAMONT

Appellant
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:

18 MARCH 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs.

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


REASONS FOR JUDGMENT

1         INTRODUCTION

[1]

1.1      The proceedings below

[2]

1.2      The appeal

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AGLC
Lamont v Malishus Limited (No 2) [2022] FCA 237
Case
[2022] FCA 237
Decision Date

CaseChat Overview and Summary

The appellant, Mr Lamont, sought to appeal against the decision of the primary judge of the Federal Circuit Court of Australia in a trade mark dispute. Mr Lamont was self-represented throughout the proceedings. The respondents to the appeal were Mr Nicholas, Mr Jurcic, Mr Selwyn and Malishus Limited. The primary judge dismissed Mr Lamont's claims against all respondents, finding that he had failed to establish that any of them had engaged in infringing activity in Australia. The primary judge found that Mr Jurcic and Mr Selwyn had infringed three of the asserted trade marks, restrained them from using the trade mark MALISHUS in relation to certain goods, ordered them to pay damages and costs. The primary judge found that Mr Nicholas had not engaged in any infringing activity in Australia. The court considered whether the Federal Circuit Court of Australia erred by denying Mr Lamont a fair hearing and whether it erred in determining that Mr Nicholas' use of the impugned trade mark was not use in Australia.

The court found that Mr Lamont was a literate, intelligent and coherent self-represented litigant. The court found that the Federal Circuit Court of Australia did not err in denying Mr Lamont a fair hearing. The court found that the denial of procedural fairness would have made no difference to the outcome of the proceeding. The court found that the Federal Circuit Court of Australia did not err in determining that Mr Nicholas' use of the impugned trade mark was not use in Australia.

The appeal was dismissed. There was no order as to costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to 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

On 14 March 2018 the primary judge delivered judgment in those applications: Lamont v Malishus & Ors [2018] FCCA 423 (2018 judgment). His Honour dismissed the strike out application and granted leave to Mr Lamont to file a proposed amended statement of claim subject to certain amendments. On 3 April 2018, Mr Lamont filed an application in which he sought orders, amongst others, that a “worldwide asset preservation order” be made in relation to each of the respondents to the proceedings, and that they “file and serve on the applicant a copy of their financials and asset statements from the past 5 years in Australia and around the world”. On 6 April 2018 the primary judge dismissed that application: Lamont v Malishus & Ors (No. 2) [2018] FCCA 895. On 19 April 2018 Mr Lamont filed his amended statement of claim. On 24 April 2018 Mr Lamont filed an application in a case in which he sought, amongst other things:(1)the leave of the court to serve Mr Nicholas out of the jurisdiction in New Zealand;(2)the leave of the court to issue a subpoena pursuant to rule 15A.02 of the Federal Circuit Court Rules 2001 (Cth); and(3)an order that the first, second or third respondent provide him and/or the court with Mr Nicholas’ known address and email address. On 2 May 2018 the primary judge dismissed that application: Lamont v Malishus & Ors (No 3) [2018] FCCA 1294. On 4 June 2018 the first, second and third respondents filed a defence to the amended statement of claim. On 26 June 2018 the primary judge granted an ex parte application filed by Mr Lamont for substituted service to be permitted to be made on Mr Nicholas in New Zealand. On 27 June 2018 Mr Lamont filed a further amended statement of claim. The proceedings were heard on 10 December 2018. On 14 November 2019 the primary judge delivered final judgment in the proceedings: Lamont v Malishus & Ors (No 4) [2019] FCCA 3206 (2019 judgment). The primary judge found that Mr Jurcic and Mr Selwyn had infringed three of the asserted trade marks, granted an injunction restraining them from using the trade mark MALISHUS in relation to clothing, footwear or headgear, made an order that Mr Jurcic and Mr Selwyn pay nominal compensatory damages and additional damages in the amount of $32,686.75, and ordered that Mr Jurcic and Mr Selwyn pay the costs of the proceedings. The primary judge found that Mr Lamont had failed to establish liability against Mr Nicholas, because he did not consider that Mr Nicholas had engaged in any infringing activity in Australia. The 2019 judgment makes extensive reference to the 2018 judgment.1.2 The appeal In this court, Mr Lamont sought, and subsequently obtained, an extension of time to appeal from the 2019 judgment and orders on the limited bases set out below. Following the grant of leave, Mr Lamont, Mr Jurcic and Mr Selwyn reached a settlement of the proceedings and the proceedings were discontinued against them and Malishus Ltd by consent. No settlement was reached with Mr Nicholas and the present appeal concerns only Mr Lamont’s claims against him.

Ratio Decidendi

Legal Principle Established

In order to warrant intervention on appeal a denial of procedural fairness must work a practical injustice on the appellant in order for the court to exercise its discretion to grant relief: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 [36]-[38] (Gleeson CJ). As the Full Court said in Flightdeck at [58]:…An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141, 147. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 [59], “[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted”: see also Nobarani, 248 [39]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, 544 [49].4.3 Consideration In order to ascertain the assistance to which a self-represented litigant is entitled to receive from the court it is necessary, first, to establish an understanding of the circumstances and the characteristics of the litigant which include his or her intelligence and literacy: Flightdeck at [61]-[70]; Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1 at 26-27 (Samuels JA). The objective matters apparent to me from the materials available on appeal include the following. Mr Lamont is the applicant in commercial proceedings where he is the protagonist seeking a remedy from the court. The statement of claim was competently prepared and logically presented. It identified the parties, the causes of action, the factual bases relied upon to establish liability, and the relief sought. It substantively survived the strike out application the subject of the 2018 judgment. The transcript of the hearing of the strike out application conducted on 8 November 2016 shows that the primary judge explained the processes and procedures of the court relevant to the application. He received into evidence six affidavits from Mr Lamont and two from Mr Jurcic. Mr Lamont coherently explained the gist of his case. When asked about the remedy he sought, he said that he wanted, amongst other things, an injunction, damages and an account of profits. When Mr Lamont said that he was getting overwhelmed by the conduct of the case, the primary judge offered him an adjournment. During the course of argument, Mr Lamont explained that the respondents had responded to his letter before action by seeking to rectify the trade marks register by removing the trade marks in suit but that he had successfully defended that action in the Trade Marks Office. In other words, by his actions and his written and spoken language, Mr Lamont demonstrated that he was literate, intelligent and coherent. After being granted leave to rely on the amended statement of claim, on 3 April 2018 Mr Lamont filed an application in a case seeking the following relief:1.The applicant requests for a (without notice) “Worldwide Asset Preservation Order” be filed on Malishus Ltd, Mr. Robert Jurcic, Mr. Clinton Selwyn and Mr. Rima Nicholas; and2.[the respondents] file and serve on the applicant a copy of their financial and asset statements from the past “5 years” in Australia and the world; and3.[the respondents] file and serve on the applicant all their residential addresses and not a PO Box Address; and...