Deckers Outdoor Corporation Inc. v Farley

VICTORIA DISTRICT REGISTRY VID 1022 OF 2007

REASONS FOR JUDGMENT 1 The applicant has applied to the Court for summary judgment under Order 35A of the Federal Court Rules, against the second, third, eighth, eleventh, twelfth, thirteenth, fourteenth, seventeenth and eighteenth respondents. 2 None of these respondents has filed a defence in the proceeding. The eighth, eleventh and thirteenth respondents have filed an appearance. The others have not. None has attended at directions hearings. 3 The applicant is the owner of a registered trade mark and other intellectual property rights in relation to a form of footwear known as "Ugg boots". It discovered that such boots bearing the Ugg Australia Logo and its Sun Device were being manufactured and marketed in Melbourne. Following inquiries and the execution of search orders it alleged that each of the respondents was, in one way or another, involved in the manufacture and/or marketing of counterfeit Ugg boots. 4 The applicant commenced proceedings in this Court on 9 November 2007. There were numerous interlocutory hearings. The applicant ultimately relied on its sixth further amended application and further amended statement of claim which were filed on 14 March 2008. Directions hearings were held on 6 June 2008 and 28 August 2008. The second, third, eighth, eleventh, twelfth, thirteenth, fourteenth, seventeenth and eighteenth respondents (hereafter, "the respondents") did not appear. By notice of motion dated 6 August 2008 (as amended by leave of the Court granted on 1 October 2008) the applicant seeks summary judgment against those respondents. The application's motion was heard on 28 August 2008, 1 and 7 October 2008. The respondents did not appear at the hearing. 5 After the proceeding was commenced a number of the respondent companies went into liquidation. They included the second, eighth, eleventh, twelfth, thirteenth and fourteenth respondents. The same liquidator was appointed to each of these companies. Relevant Court documents have been served on the liquidator but he has not appeared at any directions hearing. The applicant obtained leave under s 471B of the Corporations Act 2001 (Cth), to continue the proceeding against each of these respondents. 6 The applicant seeks various forms of relief against the respondents in its sixth further amended application. This relief includes: · Declarations; · Injunctions; · An order for delivery up of infringing property; and · Costs. 7 Order 35A r 3(2) provides for the entry of default judgments in the event that a respondent fails to do one of a number of things. The applicant relies on the failure, by each of the respondents, to file a defence and the failure of those respondents to attend directions hearings. 8 There is evidence before me by affidavit which satisfies me that each of the respondents has been served with the further amended statement of claim, the sixth further amended application and the various notice of motion regarding the summary judgment application. 9 An applicant for an order under Order 35A does not have to prove its claim by way of evidence. It is sufficient that, on the face of the statement of claim, there is a claim for the relief sought and that it appears that the Court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 at [14]. 10 I am satisfied that each of the respondents is in default by reason of his or its failure to file a defence and to attend directions hearings. The orders sought should be made. 11 On 3 January 2008 the applicant obtained orders from Ryan J against two other respondents (the twentieth and twenty-first respondents) which were conditioned by a requirement that the applicant provide security for an undertaking which it gave to his Honour on that day. It was ordered that $150,000 be paid into and held in the trust account maintained by the applicant's solicitors. On 2 April 2008 the Court made orders by consent that the orders made by Ryan J on 3 January 2008 be vacated. The proceeding, insofar as it involved the applicant and the twentieth and twenty-first respondents was discontinued. In these circumstances the applicant applies to recover the $150,000 which remains in the solicitor's trust account. There being no further requirement for such security to be provided the order should be made. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate: Dated: 10 October 2008 Counsel for the Applicant: Mr E Heerey

Dates of Hearing: 28 August 2008, 1 October 2008, 7 October 2008