Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 18)
[2025] FedCFamC2G 1427
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 18) [2025] FedCFamC2G 1427
File number(s): SYG 2771 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 5 September 2025 Catchwords: PRACTICE AND PROCEDURE – Omission of declarations and orders from Order made following trial – application of the slip rule to amend Order made following trial – relevant considerations – exercise of power to vary or set aside an Order under the slip rule not restricted to the trial judge. Legislation: Competition and Consumer Act 2010 (Cth) sch 2 s 18
Copyright Act 1968 (Cth) ss 36, 37, 38, 115
Trade Marks Act 1995 (Cth) ss 120, 126
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 24.04
Cases cited: Burrell v The Queen (2008) 238 CLR 218
Daebo Shipping Co Ltd v The Shop Go Star (2012) 207 FCR 220
Elyard Corporation v DDB Needham (1995) 61 FCR 385
Griffiths v Boral Resources (2006) 154 FCR 554
L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 16) [2024] FedCFamC2G 738
Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Symes v Commonwealth (1987) 89 FLR 356
T-S Capital Partners, LLC v Paltar Petroleum Ltd (administrators appointed) (No 1) [2019] FCA 635
Division: General Number of paragraphs: 62 Date of last submissions: 22 November 2024 Date of hearing: On the papers Place: Sydney Counsel for the Applicants: Mr C D McMeniman Solicitor for the Applicants: Gilbert + Tobin Counsel for the First, Second, Fifteenth and Seventeenth Respondents: Mr D Parish Solicitor for the First, Second, Fifteenth and Seventeenth Respondents: H + H Lawyers Solicitor for the Sixth Respondent: Gear & Co Lawyers Solicitor for the Ninth and Fourteenth Respondents: Viska Lawyers & Advisors Counsel for the Sixteenth Respondent: Mr A Di Francesco Solicitor for the Sixteenth Respondent: HWL Ebsworth Lawyers ORDERS
SYG 2771 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SELF CARE CORPORATION PTY LTD
First Applicant
SELF CARE IP HOLDINGS PTY LTD
Second Applicant
AND: GREEN FOREST INTERNATIONAL PTY LTD
First Respondent
YAOAN (ERIC) CHEN
Second Respondent
YILIN TRADING PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT;
1.The declarations made on 15 August 2024 be amended by the addition of the following declarations:
9A.Each of the following respondents breached their contract with the first applicant, Self Care Corporation Pty Ltd (the Agency Agreement and the NDA):
(a)EPAQ International Pty Ltd; and
(b)Freezeframe China Co Pty Ltd.
9B.Each of the following respondents engaged in tortious interference with the contractual relations between Self Care Corp and EPAQ International and Freezeframe China Co (in relation to the NDA and the Agency Agreement), including as joint tortfeasors by reason of having induced, procured or entered into a common design to tortiously interfere with those contractual relations:
(a)Emilio Wang;
(b)Pascal Skelin;
(c)Quanjian Pty Ltd; and
(d)Yilin Trading Pty Ltd.
2.The orders made on 15 August 2024 be amended by the addition of the following orders:
13A.(a) Yilin Trading Pty Ltd;
(b) Freezeframe China Co Pty Ltd;
(c) Emilio Wang;
(d) Pascal Skelin;
(e) EPAQ International Pty Ltd;
(f) Quanjian Pty Ltd; and
(g) Ivan Wang
be jointly and severally liable to pay 65% of the damages ordered in order 13; and
(h) Green Forest International Pty Ltd;
(i) Yaoan Chen;
(j) E Go Channel Pty Ltd; and
(k) Yan Li
be jointly and severally liable to pay 35% of the damages ordered in order 13.
16A.The following respondents pay the applicants damages for breach of contract:
(a)EPAQ International Pty Ltd; and
(b)Freezeframe China Co Pty Ltd.
16B.The following respondents pay the applicants damages for tortious interference with the contractual relations between Self Care Corp and EPAQ International and Freezeframe China Co (in relation to the NDA and the Agency Agreement), including as joint tortfeasors:
(a)Emilio Wang;
(b)Pascal Skelin;
(c)Quanjian Pty Ltd; and
(d)Yilin Trading Pty Ltd.
16C.The following respondents pay the applicants damages for breaches of duty to exercise reasonable care in making representations to the applicants, including as joint tortfeasors:
(a)Emilio Wang;
(b)Pascal Skelin;
(c)EPAQ International Pty Ltd; and
(d)Freezeframe China Co Pty Ltd.
16D. (a) Yilin Trading Pty Ltd;
(b) Freezeframe China Co Pty Ltd;
(c) Emilio Wang;
(d) Pascal Skelin;
(e) EPAQ International Pty Ltd;
(f) Quanjian Pty Ltd; and
(g) Ivan Wang
be jointly and severally liable to pay the damages ordered in orders 14, 15 and 16.
16E. (a) Yilin Trading Pty Ltd;
(b) Freezeframe China Co Pty Ltd;
(c) Emilio Wang;
(d) Pascal Skelin;
(e) EPAQ International Pty Ltd;
(f) Quanjian Pty Ltd;
(g) Ivan Wang;
(h) Green Forest International Pty Ltd;
(i) Yaoan Chen;
(j) E Go Channel Pty Ltd; and
(k) Yan Li
be jointly and severally liable to pay 50.41% of the damages ordered in orders 14, 15 and 16.
16F. (a) Yilin Trading Pty Ltd;
(b) Freezeframe China Co Pty Ltd;
(c) Emilio Wang;
(d) Pascal Skelin;
(e) EPAQ International Pty Ltd;
(f) Quanjian Pty Ltd;
(g) Ivan Wang; and
(h) Australian Vitamin Plus Pty Ltd
be jointly and severally liable to pay 20.23% of the damages ordered in orders 14, 15 and 16.
16G. (a) EPAQ International Pty Ltd;
(b) Freezeframe China Co Pty Ltd;
(c) Emilio Wang;
(d) Pascal Skelin;
(e) Quanjian Pty Ltd; and
(f) Yilin Trading Pty Ltd
be jointly and severally liable to pay the damages ordered in orders 16A and 16B.
16H. (a) Freezeframe China Co Pty Ltd;
(b) Emilio Wang;
(c) Pascal Skelin; and
(d) EPAQ International Pty Ltd
be jointly and severally liable to pay the damages ordered in order 16C.
3.The reasons for these orders be published only to the legal representatives of those parties who have entered into a current confidentiality regime.
4.Within 14 days the parties advise the Court and each other whether any information in the reasons for these orders should be removed from the main body of the reasons into a confidential annexure, or whether they are content for the reasons for these orders to be published generally.
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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
This proceeding was commenced on 25 October 2019. Judge Baird heard the substantive application across a number of days in 2021, 2022 and 2023. Final submissions were filed in January 2024. The applicants, Self Care Corporation Pty Ltd (Self Care Corp) and Self Care IP Holdings Pty Ltd (Self Care IP) (collectively, Self Care), variously alleged against the respondents breaches of contract, interference with contractual relations, infringements of intellectual property rights, the authorisation of such infringements, passing off, breaches of confidence, breaches of fiduciary duties, misleading or deceptive conduct in contravention of the Australian Consumer Law (ACL) and negligent misstatement.
Self Care was largely successful in the action.
Judge Baird made declarations (Declarations) and pronounced orders (Orders) on 15 August 2024 and later published her reasons (Reasons): Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 16) [2024] FedCFamC2G 738. Her Honour retired on 15 August 2024 and the matter was subsequently docketed to me.
The proceeding has returned to the Court for the working out of some aspects of the Declarations, Orders and Reasons. These reasons concern those matters.
BACKGROUND
Broadly stated and principally based on the history recorded in the Reasons, the relevant background of this matter is as follows:
Self Care
(a)Self Care Corp, is an Australian personal care consumer product company that develops, manufactures, distributes and markets cosmeceutical skincare products, many of which are distributed and sold under the primary brand name “freezeframe” (freezeframe);
(b)the name ‘FREEZE FRAME’ and the names of freezeframe products are protected by Australian registered trade marks owned by Self Care Corp or Self Care IP and Self Care Corp is the registered proprietor of Chinese registered trade marks for the names of freezeframe products. Self Care Corp also owned the copyright in, and ownership of, literary and artistic works embodied in freezeframe products’ packaging including logo, artwork and product inserts, and depictions on its website and in other advertising and marketing materials (freezeframe Copyright Works);
(c)by at least October 2016, Self Care Corp had a very substantial and valuable reputation in the freezeframe products and freezeframe logo in Australia and China, such reputation accruing exclusively to Self Care Corp as the operating company for the business;
(d)Self Care had been looking to expand into the market in China and Self Care Corp came to an arrangement (Agency Agreement) with Pascal Skelin, the sixth respondent, and Emilio Wang, the fifth respondent, and their companies, EPAQ International Pty Ltd, the seventh respondent, Freezeframe China Co Pty Ltd, the fourth respondent, and Freezeframe Co Ltd (Freezeframe HK) (together the Three EPAQ Parties) to be its representative office in China and to distribute Self Care products there. It is convenient to note at this point that Freezeframe HK was not a party to this proceeding and that Freezeframe China Co entered liquidation on 14 January 2020;
(e)Self Care Corp and EPAQ International also entered into a non-disclosure agreement (NDA) in August 2016;
The EPAQ parties
(f)the group associated with Mr Skelin and Emilio Wang included a number of others and, relevantly for present purposes, included:
(i)EPAQ International;
(ii)Freezeframe China Co;
(iii)Yilin Trading Pty Ltd, the third respondent;
(iv)Quanjian Pty Ltd, the eighth respondent; and
(v)Kefei (Ivan) Wang, the eleventh respondent;
(all together, including Mr Skelin and Emilio Wang, the EPAQ Parties).
(g)Mr Skelin and Emilio Wang, for themselves and on behalf of the Three EPAQ Parties, made the following representations to Self Care:
(i)the Capacity to Distribute in China Representation, to the effect that EPAQ International, of which they were directors, had the capacity to distribute large volumes of freezeframe products on behalf of Self Care Corp in China via a closed and exclusive network and could facilitate and expedite the CFDA certification that was necessary for the sale of the products in retail outlets in China;
(ii)the China Representations, being representations concerning the identity and capacity of EPAQ International and the Quanjian Group, Emilio Wang’s family’s business with substantial Chinese Government connections and ownership, and to the effect that the Quanjian Group could facilitate the large-scale sale of freezeframe products:
(A)to retail shops in China;
(B)through Chinese e-commerce platform Seabirds; and
(C)through other Chinese e-commerce platforms such as Kaola, Tmall and JD.com (China Platforms) by means of its network of agents in China (the Quanjian Network);
if provided with product at substantially discounted prices and publicly appointed as the freezeframe brand’s local representative office in order to manage the market;
(iii)the China Platform Representations, being representations that Mr Skelin and Emilio Wang had close relationships with the China Platforms and, if paid a margin or commission on the Freezeframe HK sales and permitted to manage on an exclusive basis all aspects of Self Care’s activities in relation to the China Platforms, could facilitate the on-sale to those platforms of large sales of freezeframe products supplied by Self Care to Freezeframe HK;
(iv)the China Sales Representations, being representations that EPAQ International and/or Freezeframe China Co shipped to mainland China for sale there to the Quanjian Group and Quanjian Network the freezeframe products supplied to them by Self Care (Supplied Products) and that the Supplied Products were sold to those parties and not to customers in Australia;
(h)Emilio Wang, Mr Skelin, EPAQ International, Freezeframe China Co, Freezeframe HK, Quanjian Pty Ltd, and Yilin Trading made misleading representations:
(i)as to the authenticity of the counterfeit freezeframe products (Authenticity Representations); and
(ii)that they were authorised to distribute freezeframe products in Australia (Australia Agency Representations);
(i)the Three EPAQ Parties represented to their customers and potential customers that they were the sole and exclusive authorised distributors of freezeframe products in China (China Agency Representations);
(j)the Three EPAQ Parties breached the Agency Agreement by supplying genuine and also counterfeit freezeframe products into and in Australia;
(k)the EPAQ Parties engaged in the distribution of counterfeit freezeframe products in Australia;
(l)the EPAQ Parties had infringed Self Care’s Australian trade marks contrary to the s.120(1) of the Trade Marks Act 1995 (Cth) (TM Act);
(m)EPAQ International, Freezeframe China Co, Freezeframe HK, Quanjian Pty Ltd, and Yilin Trading had infringed Self Care’s copyright in Australia contrary to ss.36-38 of the Copyright Act 1968 (Cth) (Copyright Act);
Pascal Skelin
(n)Mr Skelin bankrupted himself in January 2020;
Emilio Wang
(o)early in this proceeding Emilio Wang relocated to China, where he remains, and declared himself bankrupt;
Yang/Wang parties
(p)Emilio Wang’s parents, the fourteenth respondent, Mr Yulin Wang, and the ninth respondent, Ms Yiping Yang, collected approximately $6.7 million from Emilio Wang’s accounts and sent those funds to China, where they relocated and remain;
The Green Forest parties
(q)the first respondent, Green Forest International Pty Ltd was a Sydney based company which carried on the distribution, sales and marketing of consumer goods focussing on health and beauty products known to be Australian to Australian and Chinese sub-distributors, retailers and consumers, and co-operated with leading companies in mainland China. Yaoan (Eric) Chen, the second respondent, and Yan (Cynthia) Li, the seventeenth respondent, were Green Forest’s directors. In August 2018 Jatenergy Limited, later renamed Jatcorp Limited, acquired a 50% shareholding in Green Forest from Mr Chen and Ms Li. E-Go Channel Pty Ltd, the fifteenth respondent, was a wholly owned subsidiary of Green Forest. It operated a retail business dealing with health food and other products in Australia and occasionally purchased stock from, or returned part of their purchases of stock to, Green Forest;
(r)together, Green Forest, E-Go Channel, Eric Chen and Cynthia Li are the Green Forest Parties;
(s)in the period September 2016 to June 2017, Green Forest purchased and distributed freezeframe products sourced from Jatenergy and Zhong Kang Australia Pty Limited. In the period June 2017 to October 2019, Green Forest purchased 295,000 freezeframe products from ‘EPAQ’, initially from Quanjian Pty Ltd, then Yilin Trading and in doing so dealt with various of the EPAQ parties. From January 2017 E-Go Channel purchased freezeframe products from Green Forest and on-sold them;
(t)the Green Forest Parties were aware that they were not dealing with Self Care (as the trade mark owner) or an authorised distributor of the trade mark owner for the territory of Australia;
Australian Vitamin Plus
(u)Australian Vitamin Plus Pty Ltd (AVP) was a retailer based in Melbourne, but with an office in Hangzhou, China, that sold vitamins, beauty, and wellness products online to customers in Australia, mainland China and Hong Kong, largely through WeChat and other e-commerce platforms such as Little Red Book, a popular application in China. For a period it also had a physical retail outlet at Docklands, Melbourne and a website from which it sold directly to retail customers;
(v)between 21 May 2018 and 20 March 2019, AVP bought approximately 19,231 units of freezeframe products, initially being invoiced by and paying $44,536.80 to Quanjian Pty Ltd, and then being invoiced by and making payments totalling $611,823.84 to Yilin Trading. AVP also bought 10,646 units from a Hong Kong company, Alves Co Ltd; and
(w)on 24 July 2025 the Court was advised that AVP had been placed into liquidation on 21 July 2025.
At a mention of this matter on 10 September 2024 senior counsel for Self Care added the following details:
… pursuant to the distribution agreement, product manufactured by Self Care in Australia, and it was only manufactured in Australia, in Sydney, was delivered to a warehouse in Sydney, and from that warehouse, the EPAQ parties would take delivery and send to China, and the product, as part of the agreement, was sold at a reduced price, obviously, to make it economic to then get the goods shipped to China.
And what transpired was that, in effect, the distributors were selling the product out [of] that warehouse into the local market here. So the market got flooded, … and it was outside the terms of the distribution agreement. The second thing that happened was that they then began manufacturing counterfeits in China, and doing two things: (1) selling those counterfeits in that market, and (2) actually sending them back here so that counterfeits started to enter the market here in Australia.
DECLARATIONS AND ORDERS FOLLOWING TRIAL
In broad terms, the Declarations relevantly declared that:
(a)the EPAQ Parties and the Green Forest Parties had engaged in misleading and/or deceptive conduct contrary to s.18 of the ACL;
(b)Mr Skelin, Emilio Wang, EPAQ International and Freezeframe China Co had breached their duty to exercise reasonable care in making representations to Self Care; and
(c)the EPAQ Parties, the Green Forest Parties and AVP had
(i)infringed various Australian trade marks owned by Self Care Corp or Self Care IP (Trade Marks);
(ii)engaged in passing off; and
(iii)infringed Self Care Corp’s copyright in the freezeframe Copyright Works.
In broad terms, the Orders relevantly ordered that:
(a)damages be paid to Self Care by the EPAQ Parties and the Green Forest Parties for their contraventions of s.18 of the ACL;
(b)damages and additional damages be paid to Self Care by the EPAQ Parties, the Green Forest Parties and AVP for their infringements of:
(i)the Trade Marks; and
(ii)Self Care’s copyright in the freezeframe Copyright Works.
In the Reasons it was relevantly found that:
(a)EPAQ International and Freezeframe China Co had breached the Agency Agreement and the NDA;
(b)Emilio Wang, Mr Skelin, Freezeframe HK, Quanjian Pty Ltd, and Yilin Trading had tortiously interfered with EPAQ International and Freezeframe China Co’s contractual relations under the Agency Agreement and the NDA;
(c)(i) EPAQ International, Freezeframe China Co, Freezeframe HK, Quanjian Pty Ltd, Yilin Trading, the Green Forest Parties and AVP had infringed the Trade Marks in Australia;
(ii)Emilio Wang, Mr Skelin and Ivan Wang had infringed the Trade Marks in Australia as joint tortfeasors;
(d)(i) EPAQ International, Freezeframe China Co, Freezeframe HK, Quanjian Pty Ltd, Yilin Trading, the Green Forest Parties and AVP had infringed Self Care’s copyright in Australia;
(ii)Emilio Wang, Mr Skelin and Ivan Wang had infringed Self Care’s copyright in Australia as joint tortfeasors.
Also in the Reasons:
(a)damages for breach of contract and interference in contractual relations were quantified at $34.9 million;
(b)damages for infringement of trade marks and copyright were quantified at $1,833,747.20;
(c)additional damages for infringement of trade marks and copyright were quantified at $1,833,747.20; and
(d)damages for negligent misstatement and breach of the ACL were quantified in a total sum of $48.64 million.
Finally, one of the Orders made on 15 August 2024 stated the following:
21.The matter be referred to a Registrar of the Court to determine the apportionment of the Quantum for each of the claims made out against:
(a) the EPAQ parties (being, Emilio Wang, Pascal Skelin, Yilin Trading Pty Ltd, EPAQ International Pty Ltd, Quanjian Pty Ltd, and Ivan Wang);
(b)the Green Forest parties (being, Green Forest International Pty Ltd, Yaoan Chen, E-Go Channel Pty Ltd and Yan Li); and
(c)AVP Pty Ltd.
MATTERS PRESENTLY BEFORE THE COURT
Application in a proceeding
On 29 August 2024, Self Care’s solicitors wrote by email to Judge Baird’s chambers seeking variation of her Honour’s Orders pursuant to rr.17.05(2)(e), (g) and (h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), since repealed but replaced in materially identical terms: r.24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (New Rules). On 18 September 2024, Self Care filed an application in a proceeding seeking those variations.
These reasons partly concern that application in a proceeding. The parties agreed to a ruling without an oral hearing.
Apportionment of damages
On 9 October 2024 orders were made for the question of apportionment to be determined by me and for the parties to file written submissions. Again, the parties agreed that the question could be determined without an oral hearing.
APPLICATION IN A PROCEEDING FOR VARIATIONS TO DECLARATIONS AND ORDERS
Legislation and Rules
Rule 17.05 of the Rules relevantly provides:
17.05 Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
…
(e) it does not reflect the intention of the Court; or
…
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
…
Orders sought
The application in a proceeding filed on 18 September 2024 sought declarations and orders additional to the ones made by Judge Baird and designed to remedy certain deficiencies the Declarations and Orders are said to manifest. The proposed additional declarations and orders were:
Proposed declarations
9A.Each of the following respondents breached their contract with the first applicant, Self Care Corporation Pty Ltd (the Agency Agreement and the NDA):
(a) EPAQ International Pty Ltd; and
(b) Freezeframe China Co Pty Ltd.
9BEach of the following respondents engaged in tortious interference with the contractual relations between Self Care Corp and EPAQ International and Freezeframe China Co (in relation to the NDA and the Agency Agreement), including as joint tortfeasors by reason of having induced, procured or entered into a common design to tortiously interfere with those contractual relations:
(a) Emilio Wang;
(b) Pascal Skelin;
(c) Quanjian Pty Ltd; and
(d) Yilin Trading Pty Ltd.
…
Proposed orders
16A The following respondents pay the applicants damages for breach of contract:
(a) EPAQ International Pty Ltd; and
(b) Freezeframe China Co Pty Ltd.
16BThe following respondents pay the applicants damages for tortious interference with the contractual relations between Self Care Corp and EPAQ International and Freezeframe China Co (in relation to the NDA and the Agency Agreement), including as joint tortfeasors by reason of having induced, procured or entered into a common design to tortiously interfere with those contractual relations:
(a) Emilio Wang;
(b) Pascal Skelin;
(c) Quanjian Pty Ltd; and
(d) Yilin Trading Pty Ltd.
16CThe following respondents pay the applicants damages for breaches of duty to exercise reasonable care in making representations to the applicants, including as joint tortfeasors:
(a) Emilio Wang;
(b) Pascal Skelin;
(c) EPAQ International Pty Ltd; and
(d) Freezeframe China Co Pty Ltd.
Affidavit in support
Self Care relied on the affidavit of its solicitor, Michael John Williams sworn 17 September 2024. Mr Williams deposed that Judge Baird delivered judgment in this proceeding at around 5:40pm on 15 August 2024, it having been postponed from 3:00pm, 4:00pm and 5:00pm. He said:
10.The matter was called, and her Honour circulated a copy of the orders she proposed to enter, along with a summary of her determination of Self Care's claims and the Green Forest Parties' cross-claim. There was a limited opportunity to review the orders, but I was able to identify what appeared to me to be an error in the summary document, when comparing it with the draft orders, and drew it to the attention of Counsel appearing for Self Care, who raised the error with the Court (T3.41-T4.9). An amendment was subsequently made to those orders when they were entered.
11. At the conclusion of the hearing, and before her Honour rose, she informed the parties that she was retiring that day (at T4. l 6).
12. The orders as entered were circulated, via email, to the parties at 11:07pm on 15 August 2024 …
…
14. There was no opportunity for Self Care's legal representatives to review the judgment and determine whether there was any disconforrnity between the orders and the judgment prior to the orders being entered, because at that point in time, the judgment had not been released. By the time the judgment was released, her Honour had retired.
No affidavits were filed by or on behalf of any other party.
Submissions
Only Self Care made submissions in relation to the application in a proceeding. The other parties did not wish to be heard on the issue.
The slip rule
Self Care submitted that the timing of the Orders indicated that they had been finalised immediately prior to her Honour’s retirement and that there may have been inadvertent errors made while finalising them. It also repeated the proposition that there had been no occasion, prior to the orders being entered, when Self Care or its legal representatives could have addressed the matters raised by the present application.
Self Care submitted that under the slip rule the Court has power to vary an order that has been entered if, through some slip or omission, the order omits matters, including an order, that should have been included or made, or includes matters, including an order, that ought not to have been included or made. They submitted that the application in a proceeding sought to correct errors in the Orders:
… so that the Orders are consistent with the reasons of Judge Baird.
Reference was made in that connection to Burrell v The Queen (2008) 238 CLR 218 in which the plurality of the High Court said:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. (at 224-225 [21])
Consideration
The slip rule comprehends both accidental slips or omissions and clerical errors. When it refers to the correction of a judgment it refers to an order or decree, not reasons for judgment: Griffiths v Boral Resources (2006) 154 FCR 554 at 563 [34]-[38]. Further, the slip rule power is not one granted to the trial judge as such; it is a power exercisable by a judge of the Court who may or may not be the trial judge: Symes v Commonwealth (1987) 89 FLR 356 at 357 per Gallop J; see also T-S Capital Partners, LLC v Paltar Petroleum Ltd (administrators appointed) (No 1) [2019] FCA 635 at [26].
Unlike in cases such as Elyard Corporation v DDB Needham (1995) 61 FCR 385, in this Court, i.e. the Federal Circuit and Family Court of Australia (Division 2), the operation of the slip rule is not limited to the correction of errors arising from accidental slips or omissions or the correction of clerical errors, but extends to the setting aside or variation of orders in such circumstances. Under an earlier form of the slip rule, an order would only be corrected if it was obviously an error that needed correction: Elyard Corporation v DDB Needham per Lindgren J at 404, Black CJ and Lockhart J agreeing. The High Court described it in L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 as follows:
Order 29, r.11 [of the then-High Court Rules] is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court “at any time to correct an error in a decree or order arising from a slip or accidental omission”. In terms, the rule provides, inter alia, that “an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons”. (reference omitted)
In Elyard Corporation v DDB Needham, Lockhart J said at 390:
Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.
Earlier, in Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, at 452 McHugh JA had said:
If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake.
And at 453:
The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court's attention would the correction at once have been made?
While such concepts are not inapplicable in this Court, by virtue of the Rules, and also the New Rules, the applicable criteria are somewhat broader. The question is whether the variations sought are warranted on the basis that:
(a)any of the Declarations or Orders does not reflect the intention of the Court;
(b)there is a clerical mistake in any of the Declarations or Orders; or
(c)there is an error arising from an accidental slip or omission in any of the Declarations or Orders.
Proposed declarations 9A and 9B
Self Care submitted that the proposed declarations 9A and 9B would, respectively, give effect to the findings at [2084(a)] and [2084(b)] of the Reasons, which stated:
Y OVERALL CONCLUSIONS ON LIABILITY
Self Care: Causes of action – established
2083Save in the respects I have identified in the course of these reasons, I have found that Self Care has established its pleaded allegations … and the causes of action that I next identify.
(1) The EPAQ party respondents
2084First, in respect of Self Care’s counterfeit case, as against the EPAQ party respondents (not being the Yang/Wang parties, Taoyu Pan, Zuren and Ms Huo), as follows … ):
(a)breach of the Agency Agreement and NDA by EPAQ International and Freezeframe China Co;
(b)tortious interference with the contractual relations between Self Care Corp and EPAQ International and Freezeframe China Co (viz., NDA and the Agency Agreement) by Emilio Wang, Mr Skelin, Freezeframe HK (as the designated local affiliate of EPAQ International and Freezeframe China Co under the Agency Agreement), Quanjian Pty Ltd and Yilin Trading, including as joint tortfeasors by reason of having induced, procured or entered into a common design to tortiously interfere with those contractual relations;
…
Like all the other declarations her Honour made in this matter, the proposed declarations are, in substance, no more than the articulation of factual findings expressed in the Reasons. As other declarations have been made based on other findings expressed in the Reasons, I conclude that the absence of the declarations that Self Care seeks arises out of an accidental slip or omission and that it is appropriate the Orders be amended to include them.
I am fortified in this conclusion by her Honour’s statement in the Reasons following her conclusions on the various allegations:
2102It follows from the above that Self Care is entitled to the declaratory relief, injunctive relief and consequential orders for delivery up or destruction of any holdings of counterfeit freezeframe products. I will make declarations and orders accordingly.
Having made the relevant findings, associated declarations ought to have followed but appear to have been overlooked.
Proposed orders 16A and 16B
Self Care submitted that proposed orders 16A and 16B would give effect to the finding at [2160] of the Reasons, which relevantly stated:
2160 I find that the Quantum to be awarded on the Contract Claim is $34.9 million.
It was further submitted that the Court’s intention that there be an order that the respondents pay damages for breach of contract was consistent with the findings in [2084] of the Reasons, quoted earlier at [28], and with the findings in the following paragraphs of the Reasons:
2086 Thirdly, in relation to Self Care’s case of unauthorised sale of genuine products, as against the above EPAQ parties (not being the Yang/Wang parties, Taoyu Pan, Zuren and Ms Huo), as follows …
…
(c)tortious interference with the above contractual relations (viz., NDA and the Agency Agreement) by Emilio Wang, Mr Skelin, Freezeframe HK, Quanjian Pty Ltd and Yilin Trading, including as joint tortfeasors by reason of having induced, procured or entered into a common design to tortiously interfere with those contractual relations.
…
(iii) Fiduciary Duties Claim
2166The calculation of damage for breach of fiduciary duty duplicate [sic] amounts attributed to other heads of damage:
…
(d)I find that item four, Marketing Spend claim, is not made out, as this has already been made out in the Contract Claim – Alternative 2.
(e)Lastly, the Unsaleable Stock claim has already been made out in the Contract Claim – Alternative 2, and so is not available.[1]
…
(v)Harm to Self Care’s Reputation and Goodwill Claim and (vi) Equitable Damages
2171Lastly, I do not propose to award any amounts for harm to Self Care’s Reputation and Goodwill, or as Equitable Damages; the first because I am not satisfied that I can make an informed choice of the harm with the jurisdiction, and so would be plucking a figure from the air, and the second (Equitable damages), because it would be to duplicate the quantum I have awarded under the Contract Claim – Alternative 2.
…
[1] In the original version of the Reasons, the paragraphs that are now denoted [2166(d) and (e)] were denoted as [2166(s) and (t)]
Breach of contract – proposed order 16A
Her Honour found that damages of $34.9 million were payable in respect of the “Contract Claim”. In the Reasons it was held that EPAQ International, Freezeframe China Co and Freezeframe HK had breached the Agency Agreement by supplying directly and through the vehicles of Quanjian Pty Ltd, Yilin Trading and Zuren:
(a)genuine freezeframe products into and in Australia, and
(b)counterfeit freezeframe products into and in Australia.
It was said in that regard at [1061] of the Reasons that:
…the three EPAQ parties breach[ed] a key term of the Agency Agreement to sell only in China in specific sales channels.
That paragraph implicitly referred to [993] and [1023] of the Reasons, where EPAQ International, Freezeframe China Co and Freezeframe HK were defined as
… the three EPAQ parties …
Given what her Honour had said at [2102], quoted earlier at [30], paragraphs [1061] and [993] of the Reasons support the addition of the proposed order 16A to the Orders on the basis that its omission from the Orders was accidental.
Tortious interference with contractual relations – proposed order 16B
However, there was no similar finding, in terms, that damages were payable for tortious interference with contractual relations, notwithstanding that such interference had been found. Even so, although not express in the Reasons, it was implied by what was said at [257] and [2159] of the Reasons that the “Contract Claim” had two elements, the allegation of breach of contract and the related allegation of tortious interference with contractual relations. It is to be noted in that regard that the Reasons at [1064] quoted the statement in Daebo Shipping Co Ltd v The Shop Go Star (2012) 207 FCR 220 at 240 [89] that:
The gravamen of the tort is the defendant’s intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff’s contractual rights …
I infer that the loss and damage suffered by Self Care by reason of the tortious interference with contractual relations was considered by her Honour to be co-extensive with the loss and damage it suffered by reason of the breaches of contract, a conclusion that reflects the reality that the damages Self Care was awarded for “the Contract Claim” were quantified by reference to the losses it suffered by relying on the Agency Agreement and the NDA as affected by the tortious interference of Emilio Wang, Mr Skelin, Quanjian Pty Ltd, and Yilin Trading.
In those circumstances it is appropriate to amend the Orders to include proposed order 16B on the basis that it can be inferred that its omission was accidental.
Proposed order 16C
Self Care submitted that proposed order 16C would give effect to the finding at [2085(b)] of the Reasons, namely:
Y OVERALL CONCLUSIONS ON LIABILITY
Self Care: Causes of action – established
2083Save in the respects I have identified in the course of these reasons, I have found that Self Care has established its pleaded allegations … and the causes of action that I next identify.
(1) The EPAQ party respondents
2084 First, in respect of Self Care’s counterfeit case …
2085Secondly, further in relation to Self Care’s counterfeit case, as against the above EPAQ parties (not being the Yang/Wang parties, Taoyu Pan, Zuren and Ms Huo), as follows …
…
(b)breach of duty of care (liability for negligent misstatement) or liability as joint tortfeasors by Emilio Wang, Mr Skelin, EPAQ International and Freezeframe China Co arising from the China Representations, China Sales Representations and the China Platform Representations;
In fact, it was found that the Capacity to Distribute in China Representation, the China Representations, the China Sales Representations and the China Agency Representation had been false and misleading and/or deceptive. Her Honour found that those misrepresentations by Emilio Wang, Mr Skelin and the Three EPAQ Parties not only contravened the ACL but also amounted to a joint and several breach by those parties of their duty to exercise reasonable care in making the representations, a finding echoed in declarations 8 and 9. That is to say, the conduct in question was both misleading or deceptive conduct under the ACL and negligent misrepresentation.
It is apparent that the quantification of damages awarded in respect of that conduct and those breaches was considered and dealt with in a unitary way, her Honour saying:
2165 Accordingly I find that the Quantum of this claim is $48.64 million for both negligent misstatement and contravention of the ACL. As I have said, liability under the ACL in this Court is limited to $750,000.00 and I attribute that sum to ACL damages. The balance I award for negligent misstatement is $47.89 million.
However, notwithstanding that finding, and the reasons expressed at some length for it, the Orders were silent on damages for negligent misstatement and, relevantly, only awarded damages for the breaches of the ACL. I conclude that the Orders as they stand do not reflect the relevant intention of the Court and should be amended to include the proposed order 16C which would correct that oversight.
APPORTIONMENT OF DAMAGES
Submissions
Damages for intellectual property infringements
As noted by Self Care in its written submissions on the apportionment of damages, orders 15 [recte 14] and 16 [recte 15] of the Orders provide that pursuant to s.126 of the TM Act and s.115(2) of the Copyright Act respectively, the EPAQ Parties, the Green Forest Parties and AVP are to pay Self Care compensatory damages for infringement of trade marks and copyright quantified at $1,833,747.20.
Self Care submitted that on the basis of joint and several liability, those damages should be apportioned as follows:
(a)the whole damages amount be payable by the EPAQ Parties on the basis that the entirety of the relevant loss and damage arose out of those parties’ conduct in sending a large number of units of counterfeit freezeframe product to Australia;
(b)50.41% of the whole amount be paid by the Green Forest Parties on the basis that they had taken 50.41%, of those units of counterfeit freezeframe products; and
(c)20.23% of the whole amount be paid by AVP on the basis that it had taken 20.23%, of those units of counterfeit freezeframe products.
Self Care submitted that the additional damages associated with the conduct in question should be similarly apportioned on the basis that [2170] of the Reasons states that they were to be awarded:
… in the same amount again as the compensatory damages.
The Green Forest Parties did not contest the reasoning advanced by Self Care and Mr Skelin adopted Self Care’s submission on damages for the intellectual property infringements. However, AVP did contest Self Care’s position.
AVP submitted that her Honour’s quantification of the damages for intellectual property infringements had erroneously failed to have regard to the fact that 513 units of counterfeit freezeframe REVITALEYES product that it had purchased remained with it and have been ordered to be delivered up or destroyed. It was submitted that those units of counterfeit stock had been included in the calculation of Self Care’s infringement damages but should not have been because they would not find their way onto the open market. AVP submitted that the compensatory damages awarded against it should have been reduced accordingly and so also the additional damages.
Damages for breach of contract
In addition to referring in their written submissions on apportionment to the proposed orders 16A and 16B dealing with damages for breach of contract and interference with contractual relations, Self Care referred to findings in the Reasons on which those proposed orders are based. Those findings are to the effect that:
(a)the Three EPAQ Parties’ sale of genuine freezeframe products to Green Forest and AVP in Australia was a breach of the Agency Agreement;
(b)the EPAQ Parties’ sale of counterfeit freezeframe products was:
(i)a breach of the Agency Agreement and the NDA by EPAQ International and Freezeframe China Co; and
(ii)tortious interference with those contractual relations by Emilio Wang, Mr Skelin, Freezeframe HK, Quanjian Pty Ltd, and Yilin Trading jointly and severally; and
(c)the EPAQ Parties’ unauthorised sale of genuine freezeframe products in Australia and to a range of persons in Hong Kong and China amounted to:
(i)breach of the Agency Agreement and the NDA by EPAQ International;
(ii)breach of the Agency Agreement by Freezeframe China Co;
(iii)tortious interference with those contractual relations by Emilio Wang, Mr Skelin, Freezeframe HK, Quanjian Pty Ltd, and Yilin Trading jointly and severally.
Self Care submitted that all of those parties were jointly and severally liable for the $34.9 million damages awarded for the “Contract Claim” comprising breach of contract and tortious interference with contractual relations.
The other parties’ written submissions did not address this issue.
Damages for breach of ACL
As recorded earlier, the Orders made on 15 August 2024 require the EPAQ Parties and the Green Forest Parties to pay damages to Self Care for their contraventions of s.18 of the ACL. That order was based on the associated declaration that those parties had either engaged in misleading and/or deceptive conduct or had been involved in “and are liable for” those contraventions. Although Self Care’s loss and damage was much greater, the Court’s jurisdictional limit under the ACL is $750,000 and those were the damages awarded to it under that head.
Self Care initially submitted that the EPAQ Parties and the Green Forest Parties should be jointly and severally liable for the damages payable under the ACL but in reply agreed with the Green Forest Parties’ submission that the EPAQ Parties and the Green Forest Parties were not joint and severally liable to pay the ACL damages. Self Care’s revised position was that the Green Forest Parties should be held responsible for 54.09% of the loss and damage in respect of the misleading or deceptive conduct claims made against them and the EPAQ Parties, on the basis that 54.09% of the genuine freezeframe products sold by the EPAQ Parties in Australia had been on-sold by Green Forest to its customers.
Mr Skelin adopted those submissions.
The Green Forest Parties argued that the ACL contraventions arose out of two sets of misrepresentations, the Authenticity Representations and the Australia Agency Representations, and they observed that the damages awarded by reason of the former overlapped completely with the damages awarded in respect of “the counterfeits”. The implication of that submission appears to have been that the loss and damage suffered by Self Care by reason of the sale of counterfeit freezeframe product could only be compensated once, with the consequence that the Green Forest Parties could only be liable in respect of the ACL claim on a basis other than the Authenticity Representations. They argued that there was no such basis because the allegation that they had been involved in the Australia Agency Representations had not been made out. By reference to written submission filed at the end of the trial, they submitted that the preponderance of the $750,000 ACL damages award should be borne by the EPAQ Parties and that they should bear only 10-12.5% of it.
Damages for negligent misstatement
New order 16C will require Mr Skelin, Emilio Wang; EPAQ International and Freezeframe China Co to pay damages to Self Care for negligent misstatement. The order is based on the declaration that those parties breached their duty to exercise reasonable care in making representations to Self Care. The damages payable for this tortious conduct were quantified at $47.89 million.
Self Care submitted that Mr Skelin, Emilio Wang, EPAQ International and Freezeframe China Co should be jointly and severally liable to pay those damages on the basis that at [1210] and [2085] of the Reasons they were all found to have breached the relevant duty and, most particularly, found at [2085] to have been joint tortfeasors. The other parties did not advance arguments on this issue.
Consideration
Damages for intellectual property infringements
The Reasons record at [167] and [1729] that AVP had stopped selling freezeframe products in April 2020 after it received a letter of demand from Self Care’s solicitors and that, as at the final hearing, it relevantly held 513 unsold units of freezeframe REVITALEYES product. On the face of it, the damages awarded against AVP have been inflated by the inclusion of those items but the issue does not stop there. That is because a reduction in the number of counterfeit units available to be included in the damages calculation for AVP would not only alter the respondents’ relative percentage responsibilities for Self Care’s infringement damages, but would also reduce the damages awarded under the TM Act and the Copyright Act, which is not presently a matter for consideration.
The matter presently in issue is the apportionment of damages, not the correctness of the total amount awarded to Self Care. In the absence of submissions explaining how the total award of damages for the intellectual property infringements might be reduced and the parties’ respective responsibilities for that figure adjusted, I propose to adopt in new orders 16D, 16E and 16F the apportionment suggested by Self Care. It is appropriate that the additional damages be similarly allocated, given what her Honour said at [2170] of the Reasons, and this apportionment will be reflected in those new orders.
Damages for breach of contract
The conduct of each of the EPAQ Parties contributed, whether directly or through interference in contractual relations, to the breaches of contract about which Self Care has complained. It is neither practical nor appropriate to attempt to undertake a fine analysis of how their contributions to Self Care’s loss and damage might have differed one from another. In those circumstances it appropriate to make an order reflecting what Self Care argued for, namely that the parties mentioned in orders 16A and 16B be jointly and severally liable for the damages awarded in respect of the “Contract Claim”. The new order 16G addresses that issue.
Damages for breach of the ACL
I accept the Green Forest Parties’ submission that their liability for misleading or deceptive conduct in contravention of the ACL is limited to conduct related to the counterfeit freezeframe products. An apportionment of those damages must be made notwithstanding the award of damages for the intellectual property infringements. The parties have not provided me with submissions on how liability under this head of damages might be apportioned between the parties apart from references to a case which turned on its own facts. Having regard to the apportionment determined in relation to the intellectual property infringements, I find that the EPAQ parties should, jointly and severally bear 65% of the ACL damages and that the Green Forest Parties should jointly and severally bear 35% of those damages.
There will be a new order 13A to reflect this finding.
Damages for negligent misstatement
The findings at [2085] of the Reasons satisfy me that it is appropriate to order Mr Skelin, Emilio Wang, EPAQ International and Freezeframe China Co be jointly and severally liable to pay the damages found to be payable for negligent misstatement. There will be a new order 16H to reflect this conclusion.
CONCLUSION
For the above reasons I am persuaded that it is appropriate to make the declarations and orders sought. I am also satisfied that the damages as quantified by her Honour should be apportioned as I have indicated.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 September 2025
SCHEDULE OF PARTIES
SYG 2771 of 2019 Respondents
Fourth Respondent:
FREEZEFRAME CHINA CO PTY LTD
Fifth Respondent:
KEFEI (EMILIO) WANG
Sixth Respondent:
PASCAL SKELIN
Seventh Respondent:
EPAQ INTERNATIONAL PTY LTD
Eighth Respondent:
QUANJIAN PTY LTD
Ninth Respondent:
YIPING YANG
Tenth Respondent:
TAOYU PAN
Eleventh Respondent:
KEFEI (IVAN) WANG
Twelfth Respondent:
ZUREN INTERNATIONAL PTY LTD
Thirteenth Respondent:
SIQI HUO
Fourteenth Respondent:
YULIN WANG
Fifteenth Respondent:
E-GO CHANNEL
Sixteenth Respondent:
AUSTRALIAN VITAMIN PLUS PTY LTD
Seventeenth Respondent:
YAN (CYNTHIA) LI
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