REASONS FOR JUDGMENT
1 The applicants allege that the respondent has infringed their trade marks in relation to the well-known children's cartoon characters, Bob the Builder and Thomas the Tank Engine. They also claim that the respondent has passed off his goods as the applicants' goods and has engaged in conduct that is misleading and deceptive conduct or likely to mislead and deceive. The first applicant is a member of the HIT Entertainment group of companies and the second applicant is wholly owned subsidiary of the first applicant.
2 On 1 February 2006 the applicants commenced this proceeding by filing and serving an application and statement of claim. I am satisfied by affidavit evidence filed by the applicant that on 6 February the application and statement of claim were served on the respondent personally at 15 Shirley Street, Noble Park, Victoria. The application and the accompanying letter from the applicants' solicitors stated that the applicant should attend the Federal Court in Sydney on 7 March 2006. The letter also advised that if the respondent was unable to travel to Sydney he should approach the Victorian Registry of the Federal Court to arrange a video link. It gave the telephone number of the writer and the Victorian Registry.
3 On the Court's initiative the first directions hearing was moved from 7 to 14 March 2006 and the Court advised both parties in writing of the change. At the directions hearing on 14 March 2006 the respondent did not appear. Mr Teasdale, who appeared for the applicants, indicated that, based on the respondent's non-appearance, he would be filing a Notice of Motion seeking default judgment against the respondent under O 35A of the Federal Court Rules. The matter was stood over until 6 June for further directions or for hearing of the Notice of Motion should one be filed.
4 The Notice of Motion was filed on 25 May. It was personally served on the respondent on 26 May 2006. No appearance has been filed for the respondent and he again failed to appear. Although I had told the applicants at the directions hearing on 14 March that I would hear any notice of motion for a default judgment on 6 June, the notice of motion was stamped "for directions only". The motion was served on the respondent before the mistake was picked up. On 26 May the solicitors for the applicant wrote to the Court pointing out the problem and stating that on 6 June they would seek leave for the motion to be heard on that date. Copies of this letter were sent to the respondent by express post and by registered post. In the circumstances I saw no injustice to the respondent in hearing the notice of motion. I am satisfied that he was properly advised of the date and purpose of the hearing, which he ignored at his peril.
5 Order 35A applies where a party is in default, which is the case here; O 35A r2(2)(b). It permits the Court to give judgment against the respondent in default under r3(2)(c) and r3(2)(d). Speaking of O 35A r3(2)(c), in Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3], Heerey J observed:
'the rule does not require proof by way of evidence of the applicant's claim; rather that on the face of the statement of claim there is a claim for the relief sought and, of course, that the court has jurisdiction to grant that relief.'
6 I am satisfied that the conditions of O 35A r3(2)(c) have been met and that I am entitled to make the orders sought. However, the applicants have elected to proceed under O 35A r3(2)(d) and accept that, in accordance with the principles stated in Australian Securities Commission v Macleod (1994) 54 FCR 309 at 314, I must satisfy myself on the evidence before me (uncontested though it may be) that their claims have been made out and I am justified in making the orders sought. On 6 June, after hearing submissions made by Ms Gay, the solicitor for the applicants and considering the evidence to which Ms Gay took me I reached that level of satisfaction and made the requested orders. I said that I would provide reasons at a later date; these are my reasons.