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

RIMA NICHOLAS

Fourth Respondent

CHRIS HAU

Fifth Respondents

REASONS FOR JUDGMENT

(Revised from Transcript)

On 14 November 2019, in proceeding number SYG 2008 of 2014, I made declarations that the second and third respondent had infringed trade marks of which the applicant, Mr Lamont, is the registered owner.[1] Also in that proceeding I granted an injunction restraining the second and third respondents from infringing Mr Lamont’s trade marks. Mr Lamont has appealed my orders.
[1] Lamont v Malishus & Ors (No.4) [2019] FCCA 3206
In the meantime, on 30 March 2020 Mr Lamont filed a fresh application in this Court seeking a number of orders, the basis of all orders being an allegation that the second and third respondents in the previous proceeding have continued to infringe his trade marks, and, incidentally, have breached the orders that I made in the other proceeding. With that application Mr Lamont filed an affidavit made on 28 March 2020 seeking various forms of relief, which he informed me was in support of the relief sought in the fresh application.
Also on 30 March 2020 Mr Lamont filed an application in a case, together with another affidavit, this time one made on 30 March 2020. In that application in a case Mr Lamont seeks two things. One is an order for a search warrant, to be executed by the Federal Police in Victoria, against the second and third respondents’ premises. After I informed Mr Lamont that the Court does not have such power, Mr Lamont did not press that claim for relief. The second matter which is sought in the application in a case is a freezing order together with ancillary relief in the nature of compulsory disclosure of the financial affairs of the second and third respondents.
This application, being a fresh application, was docketed to Judge Baird, who is the intellectual property list judge of the Court. It was, however, also brought to my attention, and it was considered that, given that I had given two judgments in this matter, and two substantial judgments in the matter, it would be better if the fresh application were docketed to me.
I failed to mention that, with the application in the case, Mr Lamont sent a letter to the Registry as follows (errors and emphasis in original):
Letter in Support of Reason for Urgency to be Heard:
ATTN: Federal Circuit Court Registry.
I Darren Lamont the prospective applicant for this matter, wish to plead my reasons and grounds on why I am requesting this application be heard on urgency and (ex parte) is as follows;
1.1. Due to the fact that I am requesting an order for a “Search Warrant” to be Executed on (two) of the prospective respondents premises/homes by the Federal Police, and
a.There is a risk that the prospective respondents will sell, remove, devalue, or damage material evidence from their premises/homes if they get wind of this proceeding; and
b.Because I am needing the material evidence, including any financial, receipts or invoices the respondents have in their possessions within their premises/homes, that the Federal Police “Seize” from the respondents premises/ homes, so I can add the evidence into the prospective applicant’s “Statement of Claim” that will follow this “Application” within the “Timeframe of the Court Rules” or “Orders”; and
c.There is a strong tangible risk that the respondents will try and sell off, remove, hide or destroy any assets they hold in their possession prior to the applicant gaining the “Freezing Order” he is requesting in his originating application and this application..
d.Therefore I need the Federal Police to execute the “Search Warrant” (ASAP).
At 11:43 on 3 April 2020 Mr Jurcic, the second respondent in the previous proceeding and the second respondent in this proceeding, sent an email to my associate as follows (errors in original):
Dear Associate,
We are the Respondents in the above proceedings and we are self-represented.
We are writing to seek the Court’s guidance as we have just been served with a fresh new Application by the Applicant seeking the same Orders he sought in his previous application in addition to false claims around breach of Orders.
We set out the background below.
Previous Application
Federal Circuit Court – Proceeding No. SYG 2008/2014
The Applicant filed an application on 14 October 2014 alleging that the Respondents infringed on his trademark.
The matter proceeded to a hearing and on 14 November 2019 Judge Manousaridis made Orders in favour of the Applicant and the Applicant’s application was dismissed.
We the Respondents complied with the Orders made by Judge Manousaridis and we were in discussions with the applicant about arranging payment to him in accordance with the Judge’s Orders.
Shortly after our discussions the Applicant advised us by email that he wished to appeal Judge Manousaridis’s decision. On that basis, all discussions related to payment ceased as we waited for the Applicant to file his Application for an Extension of Time to appeal the decision.
Current Application by Applicant
Federal Court of Australia – Proceeding No. NSD33/2020
On 8 January 2020, the Applicant filed an Application for an Extension of Time under rule 34.25 to file a notice of appeal.
Justice Burley made orders on 19 March 2020 including an order that the matter be listed for a case-management hearing at 9:30am on 4 June 2020.
New Application Made by the Applicant
Federal Circuit Court SYG787/2020
We have recently been served with a new application made by the applicant on 28 March 2020. A copy is attached.
We do not understand why the applicant has made another application seeking almost the same orders and raising the same issues. This has already been dealt with and heard by Judge Manousaridis. It is the decision that he is trying to appeal and it is the reason he is seeking leave from the Federal Court.
It makes no sense to us that he has issued this new email. We think that he’s abusing the Court’s process and is becoming a somewhat Vexatious Litigant. This has also created much angst for us and our families especially when we have already been through a trial and orders were made in the applicant’s favour and we’ve strictly complied with the orders since the judgment was handed down.
As we are self-represented, can you let us know if the Applicants application is even allowed considering he is appealing the original decision?.
That email was brought to my attention. At that stage, the application had been filed, and had been given a return date before Judge Baird in late April 2020, but that date has been vacated. A return date for the application in the case, however, had not, by that stage, been given. Having received notice of the letter from Mr Jurcic I instructed my associate to communicate with the Registry to appoint a return date. Initially I was under the impression there was only one application on foot. In the course of instructing my associate to arrange for a return date, however, I became aware that there was in fact an application in the case as well.
I was not aware that Mr Lamont sought an ex parte hearing of the application in a case. In any event, I instructed the Registry to send an email to Mr Lamont, and to the second and third respondents in this proceeding. That letter was sent at 2:49 pm on 3 April 2020, the relevant parts of which are as follows:
Dear Parties,
The matter has been listed for a first court date before Judge Manousaridis at 2:15 pm on 8 April 2020. There will also be listed before Judge Manousaridis at the same time, namely, at 2:15 pm on 8 April 2020, an application in a case the applicant filed today. A copy of this application in the case is attached.
. . . .
His Honour proposes to conduct the first court date, and the return of the return of the application in the case, ex parte, that is, without requiring the respondents to appear. At the telephone hearing at 2:15 pm on 8 April 2020, his Honour will invite the applicant to identify the evidence on which he relies for the relief he seeks in his application and in his application in the case, and to make submissions about whether the applicant has a reasonably arguable case for any of the relief he seeks in his application and his application in a case.
If, after considering the evidence and the submissions on which the applicant relies, his Honour is satisfied there is no arguable case for any of the relief the applicant seeks in his application in … his application in the case, his Honour will dismiss the applications. If, on the other hand, his Honour is not so satisfied, his Honour will appoint a further hearing date of which the respondents will be given notice, and at which the respondents ought to appear to avoid the possibility of the Court making any order in default of appearance.
The parties will be provided with a sealed copy of the orders his Honour will make at the conclusion of the hearing at 2:15 pm on 8 April 2020 as soon as possible after his Honour pronounces orders.
There was some further correspondence from Mr Lamont to the Court after he received this email, but it is not necessary for me to refer to it.
That then brings me to the date which the email the Court sent to the parties was fixed for the hearing of the first court date, and for the return of the application in a case. At the hearing I asked Mr Lamont to identify the orders that he sought ex parte. As I mentioned before, he withdrew his application for a search warrant after I indicated to him the Court does not have power to issue a search warrant, but he said he pressed his application for a freezing order. Mr Lamont also identified the affidavits on which he relied. These are the affidavits to which I have already referred.
Mr Lamont also tendered into evidence a bundle of documents, which I marked as exhibit A. These comprise screenshots of social media, which, Mr Lamont submitted, showed that the second and third respondents are continuing to infringe his trade marks, and, by implication, are infringing the orders I made on 14 November 2019. I asked Mr Lamont to identify at least some documents in which he contented indicated or showed infringement. I will just refer to one of them, and this is at numbered page 1 of exhibit A. In the middle of that page, one sees the words “Malishus Entertainment”. Shortly above that, one sees the words “Clinton Selwyn”; underneath that “January 9 at 2:52 pm”; underneath that “Making moves in the entertainment space. Australia and New Zealand. Stay live with us”. On the bottom left hand corner there are photographs, one of which appears to be a photograph of apparel.
Mr Lamont took me to a few other documents. I will refer to the document at page 2 of exhibit A. Again, as with page 1, near the middle of the page, there are the words: “Malishus Entertainment”. Slightly above that there are the words “Clinton Selwyn. January 9, 2:52 pm”; underneath that, “making moves”; and then “in the entertainment space. Australia and New Zealand. Stay live with us”; and on the left there are some photographs. Mr Lamont said that the rest of the documents in exhibit A are to the same effect. Of course I am referring to these documents not for the purpose of making any finding one way or the other as to whether the material discloses infringement, but only to identify the nature of the material on which Mr Lamont relies.
As for his claim for a freezing order, Mr Lamont referred to exhibit NE-6 of his longer affidavit of 30 March 2020, and he pointed me to an item downloaded from the Internet, which is as follows:
For sale: High Concept Apparel IP - Malishus Athletics…
Dec 2 2019 - Seize the opportunity to acquire a high-concept brand geared toward the growing impact sports and lifestyle apparel market. Background: Malishus (a phonetic play on Malicious) was conceived in 2010, an ultra-aggressive streetwear brand taking influence from the hip-hop, action sports and streetwear scene.
The first question is whether I should make any orders ex parte. Quite apart from any merits that the evidence reveals, and I must stress I make no observation or finding about that, I could not in good conscience make any such orders, given the communication the Court sent on my instructions to the parties about the nature of the purpose of today’s hearing, which was to determine whether the application, an application the case raised are an arguable case. Given that was the purpose of it, I must at least record that I am not satisfied that Mr Lamont does not have a reasonably-arguable case in relation to all matters in which he claims in the application, and in the application in the case. That, of course, is not the same thing as saying that he does have a reasonably arguable case. All I can say that I am satisfied that the matter should not be struck out at this stage of the hearing, and that it should proceed to the next stage, where the second and third respondents are given the opportunity to appear before the Court. In those circumstances, what I simply propose to do is to make a number of orders in which I will note a number of matters so that the orders, when the second and third respondents are given notice of them, will have some idea about what occurred today.
In terms of the orders that I propose to make, they are simply that the matter be listed before me at 4:15 pm on 15 April 2020 for three reasons. One is to hear an application, if Mr Lamont intends to make it, for a freezing order; second, to hear submissions about whether, given the material in which Mr Lamont has relied today, the Court has power to refer that material to the Registrar, or to some other person, for the purpose of the Registrar or that other person to consider whether the second and third respondents have breached the orders, and, if so, to commence contempt proceedings; and, third, for directions. I also will order that Mr Lamont serve by email the orders that I propose to make and the material he identified before me today, even if he has already served some of that material, and I propose to order that he do so by 5:00 pm on 9 April 2020.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 20 May 2020