Visa International Service Association v Wilson

[1987] FCA 825

IN THE FEDERAL COURT OF AUSTRALIA 1 1

DIVISION	GENERAL	)	No. G 473 of 1987
)
NEW SOUTH WALES DISTRICT REGISTRY	)

Between:  VISA INTERNATIONAL

SERVICE ASSOCIATION

Applicant

And :	SARAB NICOLE WILSON	& OTHERS
-

Respondent

CORAM: Einfeld	J.
-	DATE: 11 December 1987
PLACE:  Sydney

EX-TEMPORE JUDGMENT

In this matter the applicant seeks an order for final relief. In

accordance with the application filed in the matter, the basis on	which
it	so moves is that the respondents, the first and fourth respondents,

are in default in filing and serving their defences. The second

directed the applicant to file and serve a statement of claim and the

respondent has not been served with any of the relevant process in this

matter, and I dismiss him from the suit.

Order 11, rule 19 of the Federal Court Rules provides for the filing and

serving of pleadings in accordance with rules 20 to 22, of Order 11,

unless the Court otherwise directs. On 30 October 1987, I continued the

injunction previously pronounced ex parte by Justice Davies, and

affidavits upon which it was proposing to rely, and stood the matter over for directions on 18 November 1987. On that date I noted that a telegram had been received from the first and third respondents seeking

an adjournment for three weeks. In order to permit an application to be

filed for transferring the matter to the Victorian registry o f the Court

the application had been originally filed for the injunctive relief on

30 September 1987.

For the reasons given on 18 November 1987, I declined to grant a three-

week delay but directed that the respondents file and serve their

defence to the application and any application or motion to transfer the

proceedings to Victoria, and directed that the matter be listed for the

hearing of that application and any other directions on 2 December 1987.

I further indicated that if the respondents had failed to file their

defence by	2 December 1987, as well as any application	or motion to
transfer the matter to Victoria, the applicant may move	f o r	default or

summary judgment, and gave other directions designed to bring the effect

of all those orders to the notice of the respondents.

On 2 December 1987, the respondents were not present, but a lay person

appeared on their behalf. He produced a handwritten notice of motion

which was dated 9 November 1987 seeking not merely a transfer of the

matter to the Victorian Registry but also a variation of the existing

injunction which would, if granted, have permitted the continued use by

the respondents of the name or word Viacard, as a business name. This,

of course, would have effectively rendered nugatory the whole	of	the
injunction that was then in existence, and the whole purpose of	the
suit.

The suit is brought by the applicant who offers to the public

internationally, a credit card facility in the name of Visa Card, or
Visa, and the purpose and intent of these proceedings was designed to
bring about a situation whereby the respondents would not be able to
market any services, especially services in any way involved with the

use, promotion, or facility of credit cards under the name Viacard,

because of its similarity and capacity for confusion with Visa,	or Visa
Card.

I should note that on both the 30 October 1987 and 18 November 1987,

when the matters were in the list, the applicant was seeking immediate
default relief of one kind or another, but it appeared to me that the
respondents should be given every possible opportunity to indicate to
the Court not merely that they wanted the matters heard in Victoria, but
what it was that would be litigated in Victoria if the matter was to be

transferred to that Registry.

When the respondents were represented by the lay person on	2 December
1987, I was advised by him, as well as by the affidavit	of the third

respondent which was filed in Court at that time in support of the

notice of motion, to which I have referred, that the respondents were

actually or virtually impecunious and that the first respondent was a
nursing mother to a very small child. Matters were mentioned such as

their inability to afford a plane fare to Sydney for the purpose of

appearing and the difficulty, if not impossibility, of the first

respondent travelling to Sydney with a small baby. It might be noted

that as at 9 November 1987, the affidavit of the third respondent, who	I
am informed is the father of the child concerned, swears that	the child
was then eight months old.

,

!

- 4 -

It is difficult to accept in today's world that it would be impossible

for what is now a nine months old child on that basis to be brought to

Sydney. But the question is	not whether the child could be brought
here, but whether the first	or the third respondents could come here for

the purpose of pressing whatever rights they may feel they have. There

are many methods of travel from Melbourne to Sydney today which do not

involve the expenditure required for an economy class air trip, and

there are, in any case, discount fares available	in that regard.
It is not possible to accept that people claiming to carry on	a viable

and significant business could not, at least one of them, make a journey

to Sydney if the litigation is important to them and if there is a

substantive and substantial defence, which can be advocated. On	2
December 1987,	I made orders standing the matter over to today, but

indicating that the matter would be dealt with today in the event that
there was no indication of any defence of substance to the applicant's

claim.

Whilst it is of course true that the applicant is a substantial company

with very widespread international connections, there is no

justification, in my mind, merely for transferring the matter to

Melbourne on that basis. No doubt the applicant would not be

financially embarrassed, but there seems to be no particular reason why

costs, even their costs, should be expanded and why either new lawyers

should be briefed to appear or the Sydney lawyers should be put to the

expense and trouble of going to Victoria, if there is no substantive

'defence that can be argued, wherever the matter is being heard.

The Court received ye'sterday, 10 December 1987, a facsimile transmitted

by Australian Post's division known as Intelpost, for my attention. It
appears on its face to be from the first and third respondents, on the
letterhead of Viacard Services, which has a Melbourne telephone number,
but no address. The organisation says at the foot of the letterhead,
that in effect it carries on business in Melbourne, Brisbane, Adelaide
and Sydney.

This only underlines the fact that if the organisation or business enterprise has some Sydney activity, to justify the truth of that

letterhead, it must obviously be able to provide some form of

representation here. When the matter was called this morning and when
it was subsequently brought on for hearing at the end of the directions
list, no appearance came about for the respondents.

In the letter of 10 December 1987, which is addressed in substance to me, there is an appeal for the matter to be transferred to Victoria,

where it is said the respondents have been granted legal aid, or at

least there has been an indication that they would obtain legal aid to

defend the applicant’s claims.

It is not possible for me to accept that it is quite inconceivable that

legal aid could be granted for a matter in a Federal Court, which was

conditioned only on the fact that the matter be heard in Victoria. This

is particularly so in relation to the filing of defence. There would be

no additional expense involved in a Victorian lawyer being asked to

prepare on legal aid a defence to a matter in the Federal Court and

filing it in the Federal Court, either in the Victorian registry or by

facsimile to New South Wales, without the slightest additional expense

to the legal aid services in Victoria.

For that reason, I must treat with scepticism the statement in the

letter of	10 December 1987 that legal aid would be available if	the
matter was	in	Victoria, but is not available if the matter is heard

anywhere else. In any event, in order to obtain any indication that

legal aid might be available, it would obviously be necessary for the

legal aid services to be notified of and satisfied that there was a

substantive defence to the action.

Any information therefore given to the legal aid services to permit such

a conclusion to be drawn, could have been made available to the Court to

identify what the defence was. The letter says that it is beyond the

means of the respondents to lodge a formal defence.	But if the matter
was to proceed into Victoria, a formal defence would have to be filed	if
the matter was to become a piece of contested litigation, and	if legal
aid was granted and was available	for that purpose, it would be equally
available to provide a defence	in the current proceedings.

Apart from those matters, the letter makes some generalised attacks on
the applicant and its bona fides in this action. But I have read the

letter very carefully to try to ascertain even the outlines of a defence

that might be available to the respondents.	I fail to see that there is
such a defence.

On the one hand, the defendants say that they are not in similar or

competitive activities with the applicant. On the other hand, they say

that their enterprise has been:

"founded to promote the use of credit cards in the
purchase of staple and other goods, thereby reducing
the costs and inconvenience to both consumers and
retailers alike. We meant to encourage the use of
all credit cards and eventually debit cards also.

We never purported	or repsesented ourselves to be
associated or in any way sponsored	or recommended by
the applicant.	"

As part of their attack on the applicant, the respondents say in the

letter, that they believe that the applicant simply wants "to eliminate

the competition". They say that it is only

"fair that a small business such as ours be allowed
by law to defend its interest especially as it has
been attacked by a giant of the commercial world and

specifically a foreign one."

If in fact the respondents are conducting activities which are in no way

similar or capable of being confused with those of the applicant, then

they have nothing to fear from these proceedings, for these proceedings
are designed to ensure that what they say is in fact maintained and

secured as a fact.

If the respondents are in no way in competition or capable of being

conceived as in competition with the applicant, then there would be no
point in the applicant having ulterior motives designed to "eliminate
the competition". If these businesses have no connection at all and are

totally separate, it is difficult also to see how the respondents can in

justice claim that: 

"The applicant has all but destroyed	our business
and rendered neaxly	5 0 people unemployed through the

orders obtained so far and the action taken up to

date. "

The applicant has submitted short minutes of the orders which it seeks, which are virtually idential to those contained in the application which

it filed on 3 0 September 1987, and upon the basis of which the interim

injunction has been pronounced, in the initial stages by Justice Davies
and laterally by me.

I make the orders set out on those short minutes.

I direct that the applicant bring in minutes of these orders in a

corrected form to reflect the initialled alteration which I have made on

the order submitted, for the purpose of removing any doubts about the

scope and content of the orders being made.

I direct that the applicant serve a copy of the final order on the

first, third and fourth respondents by registered or hand delivered

mail.