Titan Support Systems Inc v Nguyen

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FEDERAL COURT OF AUSTRALIA

Titan Support Systems Inc v Nguyen [2014] FCA 884

Citation: Titan Support Systems Inc v Nguyen [2014] FCA 884
Parties: TITAN SUPPORT SYSTEMS INC v MINH HOANG NGUYEN
File number: NSD 504 of 2014
Judge: PERRY J
Date of judgment: 21 August 2014
Catchwords:

CONSUMER LAW – Business conducted by individual over internet – Whether Court has jurisdiction under Australian Consumer Law

PRACTICE AND PROCEDURE – Where respondent failed to defend matter – Proper approach upon application for default judgment – Matters set out in Statement of Claim taken to be admitted – When appropriate to rely on evidence – Evidence permitted to be led as to service – Injunctions requiring ongoing compliance subject to further order of the Court   
Legislation: Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth), ss 18, 29, 232
Competition and Consumer Act 2010 (Cth), ss 4, 6, 86
Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 16.32,
Cases cited: ACCC v Dataline (2006) 236 ALR 665
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Date of hearing: 5 August 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: Mr Bushby (solicitor)
Solicitor for the Applicant: Loke Bushby International
Counsel for the Respondent: The Respondent did not appear
Solicitor for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 504 of 2014
BETWEEN:

TITAN SUPPORT SYSTEMS INC
Applicant
AND:

MINH HOANG NGUYEN
Respondent

JUDGE:

PERRY J

DATE OF ORDER:

15 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.As and from 4 pm on Tuesday 26 August 2014, the Respondent by himself, his servants or agents, under his name or under the name Lite W8 Enterprises, be restrained from:

(i)holding out that he is authorised to sell any Titan brand products used in the sports of Powerlifting and/or Weightlifting which have been manufactured or supplied by the Applicant;

(ii)using the Business Name “Titan Australia”, “Titan Support Australia” or any other Business Name which includes the word “titan” or “Titan” in connection with the sports of Powerlifting and/or Weightlifting or in connection to equipment used in such sports;

(iii)displaying in any forum connected to the sports of Powerlifting and/or Weightlifting, or on any product used in such sports, any logo  which contains the word “titan” or “Titan”;

(iv)using the domain name “titanaustralia” or using any domain name connected to the sports of Powerlifting and/or Weightlifting or in connection to equipment used in such sports which includes the word “titan” or “Titan”;

(v)selling or advertising for sale any product used, or intended for use in, the sports of Powerlifting and/or Weightlifting with the name “titan” or “Titan” anywhere on it which has not been supplied by the Applicant; and

(vi)using the word “titan” or “Titan” in any website connected to the sports of Powerlifting and/or Weightlifting, or connected to the equipment used in…

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Details
Case
[2014] FCA 884
Decision Date

CaseChat Overview and Summary

Titan Support Systems Inc initiated proceedings against Mr Nguyen in the Federal Court of Australia, alleging breaches of the Australian Consumer Law (ACL) and seeking injunctive relief. The primary contention is that Mr Nguyen failed to defend the matter with diligence or at all, leading Titan to seek judgment in default. Mr Nguyen was served with the original application and statement of claim on 17 June 2014, with subsequent attempts to contact him proving unsuccessful. Despite further attempts to notify Mr Nguyen of the impending trial, he failed to appear or respond, resulting in the matter being listed for trial on 5 August 2014. As no defence was filed by the deadline of 7 August 2014, Titan sought judgment in default.

The legal issues the court had to address included whether Mr Nguyen's failure to defend or appear justified the exercise of the Court's discretion to award judgment in default, and whether the alleged breaches of the ACL warranted the relief sought by Titan. The Court had to determine if Mr Nguyen's inaction constituted a sufficient default and if the ACL claims were substantiated enough to justify granting the relief without a defence. The Court found that Mr Nguyen's complete lack of engagement in the proceedings supported the granting of judgment in default.

In its reasoning, the Court noted that the rules providing for judgment in default must be strictly construed due to the significant consequences of such judgments. The Court considered Mr Nguyen's complete absence from the proceedings, including his failure to respond to service, contact attempts, and court appearances, as sufficient grounds to exercise the discretion under r 5.23(2)(c) of the Federal Court Rules. The Court found Titan's claims under the ACL to be well-founded, particularly under s 18, which prohibits misleading or deceptive conduct in trade or commerce. Consequently, the Court granted the relief sought by Titan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Due to the seriousness of the consequences of a judgment in default, the rules providing for judgment in default must be strictly construed and the discretion exercised cautiously.2. SHOULD THE DISCRETION TO AWARD JUDGMENT IN DEFAULT BE EXERCISED?2.1 Relevant defaults by the respondent The primary reason for the orders sought is that the respondent, Mr Nguyen, has failed to defend the matter with any diligence or, indeed, at all. No contact has been made by Mr Nguyen with the Court following service of the proceedings. The originating application, statement of claim and genuine steps statement were filed by Titan on 22 May 2014. Mr Nguyen was served with sealed copies of the original application and statement of claim, the genuine steps statement and affidavits in support of Titan’s claims on 17 June 2014. A letter was also served advising that the first return date from the matter before the Court is 2 July 2014 and that, if Mr Nguyen did not appear on that date, Titan would seek the orders in his absence. The genuine steps statement stated that a number of attempts had been made to contact Mr Nguyen in February 2014 by letters, email and voicemail messages, all of which were unsuccessful and no response was received from him. The matter was called on for directions on 2 July 2014 where there was no appearance by Mr Nguyen. An amended originating summons and amended statement of claim was subsequently filed pursuant to leave granted on 2 July 2014 and was served on Mr Nguyen on 10 July 2014, together with a letter from Titan’s solicitors advising that if the respondent did not appear on 30 July 2014, Titan would seek the Court to make the orders sought in his absence. The matter came on again for directions before me on 30 July 2014 where there was again no appearance by Mr Nguyen. There having been no response from Mr Nguyen to the application or indication that he intended to defend proceedings, the matter was listed for trial on 5 August 2014. The time within which a defence may be filed under r 16.32 of the Federal Court Rules to the amended application and statement of claim is 28 days and expired on 7 August 2014. As this was after the hearing, I indicated that I would defer making any orders until after that date. No defence has since been filed. I am satisfied that Mr Nguyen has failed to defend the matter at all and also to attend any of the hearings. It follows that the discretion to grant judgment in default under r 5.23(2)(c) is enlivened.2.2 The claim Titan alleges breaches of ss 18 and 29, the Chapter 2 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA). Injunctive relief is sought by Titan under s 232 of the ACL. Section 18 of the ACL provides that:“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” As I am satisfied for the reasons below that relief should issue because of the alleged contraventions of s 18, it is unnecessary for me to consider the plea under s 29.

Ratio Decidendi

Legal Principle Established

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