Walker v Body Logic Resources Pty Ltd (No 2)

[2009] FCA 440

FEDERAL COURT OF AUSTRALIA

Walker v Body Logic Resources Pty Ltd (No 2) [2009] FCA 440

Federal Court Rules O 28 r 5, O 35A r 3(2), O 35A r 3(1)(a)

ROBERT WALKER v BODY LOGIC RESOURCES PTY LTD, SCENIC CLIFF PTY LTD T/AS BODY LOGIC RESOURCES and LISA ROBYN MCASEY

NSD 373 OF 2008

BUCHANAN J
4 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 373 of 2008

BETWEEN:

ROBERT WALKER
Applicant

AND:

BODY LOGIC RESOURCES PTY LTD
First Respondent

SCENIC CLIFF PTY LTD T/AS BODY LOGIC RESOURCES
Second Respondent

LISA ROBYN MCASEY
Third Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	4 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The amended statement of claim filed on 28 April 2008 be struck out.

2.        The proceeding commenced by the applicant on 18 March 2008 be dismissed.

3.        The defence to the cross-claim filed by the cross-respondent on 30 June 2008 be struck out.

4.        There be judgment for the cross-claimants on the cross-claim filed on 11 June 2008.

5.The Register of Trade Marks be rectified pursuant to s88 of the Trade Marks Act by cancelling the registration of the registered trade marks 1164195, 1164197 and 1164198.

6.The applicant/cross-respondent pay the costs of the respondents/cross-claimants of and associated with:

a)        the notice of motion filed by the respondents/cross-claimants on 20 June 2008;

b) this notice of motion save insofar as costs have already been awarded; and

c)        the proceedings generally.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 373 of 2008

BETWEEN:

ROBERT WALKER
Applicant

AND:

BODY LOGIC RESOURCES PTY LTD
First Respondent

SCENIC CLIFF PTY LTD T/AS BODY LOGIC RESOURCES
Second Respondent

LISA ROBYN MCASEY
Third Respondent

JUDGE:	BUCHANAN J
DATE:	4 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. On 17 April 2009 I made orders for substituted service upon the applicant/cross-respondent of a notice of motion which had been filed on 27 March 2009 (see Walker v Body Logic Resources Pty Ltd [2009] FCA 375). I listed the balance of the notice of motion, which sought orders for summary disposition of the proceedings including the cross-claim, for hearing today. There was no appearance for the applicant/cross-respondent and no other step has been taken by him in the proceedings since the last occasion.

2. Mr Moritz, who appeared today for the respondents/cross-claimants, filed an affidavit deposing to service upon the applicant/cross-claimant.  I am satisfied that service has occurred in accordance with the orders which I made on the last occasion. 

3. The applicant has not complied with orders made that he should provide security for costs or a list of proposed categories of documents for discovery.  Those orders were made on 23 July 2008 and were to be complied with by 14 August 2008 and 1 August 2008 respectively.  I am satisfied therefore that the application may be dismissed under O 28 r 5.

4. I am also satisfied that the application may be dismissed under O 35A r 3(1)(a).  The default upon which such an order might operate includes, but is not confined to, the facts that the applicant has failed to supply security for costs, failed to provide a list of categories of documents for discovery, failed to attend directions hearings, and failed to prosecute his application with due diligence.  In the circumstances, the amended statement of claim filed on 28 April 2008 will be struck out, and the proceedings commenced by the applicant will be dismissed. 

5. I am satisfied, for similar reasons, that under O 35A r 3(2) the defence to the cross-claim which cross-claim was filed on 11 June 2008 should be struck out.  The cross-respondent’s defaults include, but are not limited to, the facts that he has failed to appear at directions hearings, failed to comply with orders made by the court, and failed to defend the cross-claim with due diligence. 

6. In those circumstances, the cross-claim stands undefended.  Mr Moritz has informed me that there is no matter of which the court should be aware which would stand in the way of the remedies sought in the cross-claim.  Some of those remedies are expressed in the alternative.  It seems to me that the appropriate order to be made is the order sought in the notice of motion cancelling the registration of the trademarks which were identified in the pleadings, namely, trademarks number 1164195, 1164197 and 1164198.

7. The respondents/cross-claimants seek their costs of the various hearings which have been necessitated by the filing and service of the application and statement of claim.  It is appropriate that such costs be awarded.  It is not necessary that I deal again with the costs of part 1 of the notice of motion with which I dealt on the last occasion.  Otherwise costs should be awarded to the respondents/cross-claimants of and associated with this notice of motion to the extent that costs have not already been awarded, the notice of motion filed by them on 20 June 2008, and the proceedings generally.

8. I will make the following orders:

   1.The amended statement of claim filed on 28 April 2008 be struck out.

   2.The proceeding commenced by the applicant on 18 March 2008 be dismissed.

   3.The defence to the cross-claim filed by the cross-respondent on 30 June 2008 be struck out.

   4.There be judgment for the cross-claimants on the cross-claim filed on 11 June 2008.

   5.The Register of Trade Marks be rectified pursuant to s 88 of the Trade Marks Act by cancelling the registration of the registered trade marks 1164195, 1164197 and 1164198.

   6.The applicant/cross-respondent pay the costs of the respondents/cross-claimants of and associated with:

   a)the notice of motion filed by the respondents/cross-claimants on 20 June 2008;

   b)this notice of motion save insofar as costs have already been awarded; and

   c)the proceedings generally.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        7 May 2009

There was no appearance for the Applicant
Solicitor for the Respondents:	Kelly & Co

Date of Hearing:	4 May 2009
Date of Judgment:	4 May 2009