Lamont v Malishus Limited (NZ) - [2020] FCCA 1031

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMONT v MALISHUS LIMITED (NZ) & ORS

[2020] FCCA 1031

Catchwords:
PRACTICE AND PROCEDURE – Ex parte hearing of first court date of application for relief for trade mark infringement in circumstances where orders have made in previous proceeding – whether the proceeding should be permitted to proceed – directions made.

Applicant:

DARREN LAMONT

First Respondent:

MALISHUS LIMITED (NZ) NZCN: 4429858

Second Respondent:

ROBERT JURCIC

Third Respondent:

CLINTON SELWYN

Fourth Respondent:

RIMA NICHOLAS

Fifth Respondent:

CHRIS HAU

File Number:

SYG 787 of 2020

Judgment of:

Judge Manousaridis

Hearing date:

8 April 2020

Date of Last Submission:

8 April 2020

Delivered at:

Sydney

Delivered on:

8 April 2020

REPRESENTATION

Applicant in person, by telephone, ex parte

THE COURT NOTES

The matter came before Judge Manousaridis shortly after 2:15 pm on 8 April 2020 on a first court date and was heard ex parte.
There also came before Judge Manousaridis shortly after 2:15 pm on 8 April 2020 an application in a case filed by the applicant on 30 March 2020 that was also heard ex parte.
At the hearing of the first court date and the application in a case the applicant:
a.read into evidence affidavits the applicant made, these being an affidavit made on 28 March 2020, one made on 30 March 2020, and one made on 2 April 2002, and tendered into evidence a bundle of documents which has been marked exhibit “A” (Relevant Material);
b.sought a freezing order and ancillary relief based on evidence the applicant submitted showed the second and third respondents had advertised for sale a business for $65,000; and
c.by reference to the Relevant Material submitted the second and third respondents have breached, and unless restrained will continue to breach, orders the Court made on 14 November 2019 (Orders).
The Court did not make a freezing order.

THE COURT ORDERS

The matter is listed before Judge Manousaridis at 2:15 pm on 14 April 2020 for the following purposes:
a.to hear an application by the applicant for the granting of a freezing order and any ancillary relief;
b.to hear submissions on whether, given the Relevant Material, the Court has power to refer, and, if so, whether it should refer to the Registrar or to some person the Relevant Material for the purpose of considering whether the second and third respondents, or both, have breached the Orders and, if so, to commence contempt proceedings; and
c.directions.
The hearing fixed pursuant to order 5 shall take place by telephone unless good cause to the contrary is shown.
By 12:00 pm on 9 April 2020 the applicant file and serve by email the second and third respondents:
a.a sealed copy of these orders; and
b.the Relevant Material.
The parties have liberty to apply on such notice as the circumstances warrant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 787 of 2020

DARREN LAMONT

Applicant

And

MALISHUS LIMITED (NZ) NZCN: 4429858

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN

Third Respondents

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 (NZ)

Details

AGLC: Lamont v Malishus Limited (NZ) [2020] FCCA 1031
Case: [2020] FCCA 1031
Decision Date: 8 April 2020

CaseChat Overview and Summary

The applicant, Lamont, sought interlocutory relief for trade mark infringement against Malishus Limited. The application was heard ex parte, meaning Malishus Limited was not present or represented. This hearing occurred in circumstances where orders had already been made in previous proceedings between the parties.

The primary legal issue before the court was whether the current proceeding should be permitted to proceed, particularly given the ex parte nature of the hearing and the existence of prior orders. The court was required to consider the appropriate procedural directions to manage the matter effectively.

Judge Manousaridis reasoned that while the application was brought ex parte, it was necessary to ensure that Malishus Limited was properly notified and given an opportunity to respond. The court acknowledged the need for interlocutory relief in trade mark infringement matters but balanced this with the principles of natural justice. Consequently, the court made directions for service of the application and set a date for a further hearing where both parties could be present.

Orders