Speedo Holdings B.V. v Evans

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FEDERAL COURT OF AUSTRALIA

Speedo Holdings B.V. v Evans [2011] FCA 1089

Citation: Speedo Holdings B.V. v Evans [2011] FCA 1089
Parties: SPEEDO HOLDINGS B.V. AND ANOR v DAVE EVANS
File number: NSD 1442 of 2011
Judge: FLICK J
Date of judgment: 21 September 2011
Catchwords: PRACTICE AND PROCEDURE – application for an order for deemed service of documents – application for substituted service    
Legislation: Trade Marks Act1995 (Cth)
Federal Court Rules2011, rr 10.23, 10.24
Federal Court Rules, O 7 rr 9, 10
Cases cited: Astellas Pharma Inc v Kissei Pharmaceutical Co Ltd [2010] FCA 335, cited
Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666, cited
Beluga Shipping GMBH & Co v Headway Shipping Ltd (No 3) [2008] FCA 1989, cited
Commonwealth Bank of Australia v King [2011] FCA 790, cited
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2010] FCAFC 110, 87 IPR 461, cited
GSM (Trademarks) Pty Ltd v Shao [2006] FCA 1272, cited
Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067, referred to
Date of hearing: 21 September 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicants: Mr M J Darke
Solicitor for the Applicants: Ms O Gourley (Corrs Chambers Westgarth)
Counsel for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 1442 of 2011
BETWEEN:

SPEEDO HOLDINGS B.V.
First Applicant

SPEEDO INTERNATIONAL LIMITED
Second Applicant
AND:

DAVE EVANS
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

21 SEPTEMBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Rule 10.23 of the Federal Court Rules2011, the Originating Application and Statement of Claim in this proceeding are taken to have been served on the Respondent by the Applicants having sent a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com on 29 August 2011.

2.Pursuant to Rule 10.24 of the Federal Court Rules2011, until such time as the Respondent files and serves a notice of address for service or further order, that service by the Applicants on the Respondent of any further documents in this proceeding may be effected by the Applicants sending a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com.

3.A copy of these Orders, together with the reasons for decision, are to be served on the Respondent on or before midday on 22 September 2011.

4.Costs are reserved.

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




IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 1442 of 2011
BETWEEN:

SPEEDO HOLDINGS B.V.
First Applicant

SPEEDO INTERNATIONAL LIMITED
Second Applicant
AND:

DAVE EVANS
Respondent

JUDGE:

FLICK J

DATE:

21 SEPTEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 29 August 2011 there was filed in this Court an Originating Application and…

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Details
Case
[2011] FCA 1089
Decision Date

CaseChat Overview and Summary

In the matter of Speedo Holdings B.V. v Evans, the plaintiff sought orders for deemed and substituted service of documents on the defendant, Dave Evans, due to his refusal to provide a residential address for service. Evans, who is associated with the publication of various websites, was identified via an email address he confirmed as valid. The Federal Court of Australia was tasked with determining whether the attempts to serve documents personally on Evans were practicable, and if the documents had been brought to his attention. The legal issues revolved around the interpretation and application of Rules 10.23 and 10.24 of the Federal Court Rules 2011, concerning deemed service and substituted service of documents respectively.

The Court found that it was not practicable to serve the documents personally on Evans, given his refusal to provide a residential address. Additionally, the Court held that the documents had indeed been brought to Evans' attention through the email correspondence. Therefore, the Court ruled that the documents were deemed to have been served on Evans under Rule 10.23, and that any further documents could be served by email under Rule 10.24 until Evans provided a new address for service or the Court ordered otherwise. The Court also ordered that the reasons for its decision, along with a copy of the orders, be served on Evans by a specified date, with costs reserved.

The final orders of the Court were that the Originating Application and Statement of Claim were deemed to have been served on Evans via email on 29 August 2011, and that any further documents could be served in the same manner until Evans provided a new address for service or further order. Additionally, the Court ordered that a copy of the orders, along with the reasons for decision, be served on Evans by midday on 22 September 2011, and reserved costs.

Orders

Orders of the court

1. Pursuant to Rule 10.23 of the Federal Court Rules 2011, the Originating Application and Statement of Claim in this proceeding are taken to have been served on the Respondent by the Applicants having sent a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com on 29 August 2011.

2. Pursuant to Rule 10.24 of the Federal Court Rules 2011, until such time as the Respondent files and serves a notice of address for service or further order, that service by the Applicants on the Respondent of any further documents in this proceeding may be effected by the Applicants sending a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com.

3. A copy of these Orders, together with the reasons for decision, are to be served on the Respondent on or before midday on 22 September 2011.

4. Costs are reserved.

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

Background

Background to the litigation

Neither of these differences assumes any relevance in the present Interlocutory Application.THE FACTS The facts, for present purposes, need not be explored in any great detail. It is sufficient to note that it is claimed that Mr Evans has been responsible for the publication on the internet of a series of websites. Each of those websites are said to set forth material that is “offensive” or “pornographic”. Addresses which are set forth in a variety of ways employ the word “SPEEDO”. Thus, for instance, one website provides the following address: provides the following address:>Searches of the various websites have disclosed “Dave Evans” as the “contact”. Letters and telephone calls were sent and made to a number of addresses with a view to identifying an address at which the Originating Application and Statement of Claim could be served on Mr Evans. One email was sent on 16 August 2011 to the following address:daveevans@swimmerboyz.comThe email attached a “letter of demand and draft court documents”. That email provoked a response from “Dave ‘Speedo’ Evans” in the following terms:Mr. Gourley,Is that your real name? It sounds like something a dog would bark up – say it with a cough.. (cough) uhdett Gowly.I have no doubt that you are a very intelligent fellow – being a partner and all.I see your paper work is from Corrs, Cambers and Westgarth. I’ve got a feeling Corrs, Chambers and Westgarth aren’t in favour of gay marriage. No need for you guys to be haters. You aren’t a man until you’ve had one right?Thank you for sending that paperwork.I wanted to let you know that this is a valid email address with regard to correspondence.Perhaps you should read my blog… if you took the time you’d not only get some fees but you’d learn that I don’t live in Queensland. Dave Evans doesn’t have an Australian passport, my business is based in the BVI and I look forward to seeing how the NSW Federal Court deals with the jurisdiction issues.The ‘Speedo Corporation’ is your client. It is an Australian brand and it should be interesting to see the ‘reach’ of the NSW Federal Court in imposing their decision regarding a ‘generic’ term.Since you are making your living from ‘Speedo’ I hope to see you at the local pool speedo’ing it up Mr. Gourley.Sincerely,Dave ‘Speedo’ EvansThe content of that response may be left to one side. Of relevance is the fact that the Applicants have identified an email address at which the Respondent may be contacted and has indeed been contacted and has been accepted by Mr Evans as “a valid email address”. Subsequent requests for the provision of a residential address at which personal service could be effected have been unsuccessful. On 29 August 2011 the Applicants’ solicitor forwarded a copy of the Originating Application and Statement of Claim as filed to the same email address as that used on 16 August 2011. The Respondent has confirmed receipt of those documents.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The unsuccessful attempts to secure a residential address for service, it is concluded, make it “not practicable to serve a document” on the Respondent personally within the meaning of and for the purposes of both Rules 10.23 and 10.24. The evidence also establishes the Originating Application and the Statement of Claim have “been brought to the attention of” the Respondent for the purposes of Rules 10.23(b). CONCLUSIONS It is concluded that orders should be made substantially as sought in the Interlocutory Application filed 6 September 2011.ORDERSThe Orders of the Court are:1.Pursuant to Rule 10.23 of the Federal Court Rules2011, the Originating Application and Statement of Claim in this proceeding are taken to have been served on the Respondent by the Applicants having sent a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com on 29 August 2011.2.Pursuant to Rule 10.24 of the Federal Court Rules2011, until such time as the Respondent files and serves a notice of address for service or further order, that service by the Applicants on the Respondent of any further documents in this proceeding may be effected by the Applicants sending a copy of those documents to the Respondent by email at the email address daveevans@swimmerboyz.com.3.A copy of these Orders, together with the reasons for decision, are to be served on the Respondent on or before midday on 22 September 2011. 4.Costs are reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.