Fensom v Jake Ryan Media Group Pty Ltd

1. Order 5 made on 10 November 2022 be revoked and the question whether there should be any security for costs and the amount of any security shall be determined at an oral hearing to be conducted using the Teams platform.
2. On or before 27 January 2023, the respondents shall file any affidavit in support of the application for security.
3. On or before 17 February 2023, the applicants shall file any affidavit in opposition to the application for security together with any submissions in support of confidentiality orders as to any part of the affidavit material and a minute of any orders sought as to confidentiality.
4. Unless leave is given, no further written submissions shall be filed in respect of the application for security.
5. The application for security for costs be listed for hearing at 10.00 am AWST on 28 February 2023 for 1 hour with each party to be allocated up to 30 minutes for oral submissions.
6. Any application for orders that would allow the second respondent to make submissions in support of the application for security by the first respondent shall be heard on 28 February 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Ms Maxine Fensom and Fortyfifth Sherlock Pty Ltd claim that they have been the promoters of an awards night under the trade marked names Australian Adult Industry Awards, AAIA and A.A.I.A (Marks). Fortyfifth Sherlock Pty Ltd is alleged to be the registered owner of the trade mark A.A.I.A in Class 41: Entertainment and to have used the common law trade marks of Australian Adult Industry Awards and AAIA. 2 Ms Fensom and Fortyfifth Sherlock Pty Ltd (together, Applicants) have commenced proceedings against Jake Ryan Media Group Pty Ltd (JRMG) and Mr Geoffrey Williams (together, Respondents) alleging unlawful use of the Marks. 3 The Respondents seek security for costs. Orders were made to enable the application to be dealt with on the papers. Submissions in support of the application for security have now been filed. They have been prepared by Mr Williams acting on his own behalf. They seek security for both Respondents. The application is not supported by an affidavit. It makes a number of factual claims to support the application. Security is sought in an amount of $200,000. Only the most general information is provided to support that amount. The application is advanced on the basis that the Respondents do not wish to incur further costs in engaging lawyers to defend the claim unless and until security has been provided. 4 The Applicants have provided submissions in response. They deal with the matters raised by way of submissions. They seek to confine the application to one advanced by Mr Williams personally on the basis that leave has not been given for Mr Williams to conduct the proceedings on behalf of JRMG and there are no solicitors on the record for JRMG. The Applicants also provide no affidavit evidence as to the matters relied upon in opposition to the application. Instead they adopt the strange procedure of attaching annexures to the written submissions and seek to develop submissions by reference to those matters (subject to an application for confidentiality orders as to certain matters) and certain other factual propositions simply stated in the submissions. 5 There are factual disputes between the Respondents and the Applicants as to the matters said to bear upon whether there should be security. There is no evidence to support the quantum of the security sought. Nor is there any application for orders to enable Mr Williams to make submissions on behalf of JRMG. I dealt with the circumstances in which it may be appropriate for such orders to be made in A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd [2018] FCA 355. It appears that Mr Williams may not have been aware of these procedural requirements. In circumstances where he is appearing on his own behalf, I consider it appropriate to afford him an opportunity to comply with these requirements. 6 In those circumstances, it is not possible to determine the application for security on the papers as presently filed. Therefore, I propose to list the application for oral hearing and to make directions to enable the question whether security should be ordered and if so in what amount to be determined at that hearing. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.