Hoser v Pelley [2025] FedCFamC2G 1008

She expressly allowed her son the First respondent to use her home address as the business address for his business brand "canine snake avoidance" from 2018 to at least mid 2019.

1. The Fifth Respondent is referred to in Mr Hoser's "tenth matter complained of" (SOC, [145]; 314]). Mr Hoser there claims:

In the period from about 10 June 2018 to at least 4 March 2019 but not after May 2019, the first respondent and fifth respondent Yu Ying Pelley created and ran a Google business page listing the home address of the fifth respondent (the first respondent's mother), being [address omitted] as the business address for "Canine Snake Avoidance" and traded as such in breach of S120 of the Trade Marks Act 1995.

1. In his prayer for relief, Mr Hoser does not differentiate between the First, Second, Fourth and Fifth Respondents in his claim for "$6 million for the registered trademark infringement and/or misleading and deceptive conduct" (SOC, pdf p. 31, [4]).
2. The Fifth Respondent's application for security seeks security for costs as follows:
   1. The Applicant pay Security of Costs in the amount of $24,200 ...

1. I have a discretion to order security for costs as I consider "appropriate" (FCFCOA Act s. 215; r. 22.01 of the Rules). In making any order, I must do justice between the parties.
2. I will order Mr Hoser give security for the Fifth Respondent's costs of the proceeding by the payment of the amount of $24,400 into the trust account of her solicitor. My reasons follow.
3. Mr Hoser deposes that he is impecunious (Ex. A6, [11]):

There is no dispute that I am effectively bankrupted as a result of Mark PELLEY's actions against me from 31 Dec 2016 to the present date.

1. One factor relevant to my discretion is that "the general rule is that poverty is no bar to a litigant" (Cowell v Taylor [1885] UKLawRpCh 237; (1885) 31 Ch D 34, 38 cited by Professor Dal Pont, Law of Costs, (5th ed, LexisNexis, [29.13]). It has also been said that "access to justice trumps mere poverty" (Dal Pont, [29.15]).
2. Having said that, impecuniosity is not irrelevant: "impecuniosity ...is a factor to be weighed in all the circumstances of the case" (Dal Pont, [29.13], citing Lucas v Yorke (1983) 50 ALR 228, 228).
3. A significant factor in the exercise of my discretion on the particular facts of this case is that I regard Mr Hoser's proposed claim against the Fifth Respondent as a weak case. In Knight v Beyond Properties Pty Ltd [2005] FCA 764 Lindgren J regarded the weakness of the applicant's case as relevant to the exercise of the discretion as to whether to grant security. Necessarily, my observations are tentative before the evidence has not been tested. Mr Hoser's main substantive allegation is that the Fifth Respondent has "allowed" her son to use her home address for his business brand and/or that she herself was involved in the development of a Google page. There is presently no cogent material to support the allegation that the Fifth Respondent was involved in the development of a Google page.
4. Mr Hoser apparently seeks to rope in - almost in passing - Mr Pelley's mother as part of ongoing litigation between him and Mr Pelley on the basis of a bare allegation against her. On the pleading as it stands, his case against the Fifth Respondent is weak. I must strike a balance between exposing the Fifth Respondent to the expense of defending her position and the risk of unnecessarily shutting out the Applicant from relief.
5. The balance weighs in favour of requiring an order for security. I have decided to order security because of a combination of facts: there is impecuniosity and I assess the Applicant's case as weak (see i.e., Chang v Comcare Australia [1999] FCA 1677, cited in Knight, [33]). The Fifth Respondent ought not to be put to the expense of defending the claim without the provision of security.
6. Mr Hoser did not rationally dispute the amount of the security.
7. I will order that Mr Hoser provide security by 31 July 2025 in the amount of $24,200 (order 3). In default of provision of security, the application against the Fifth Respondent is stayed until further order (order 5).

1. I will set this matter down for further directions on 11 August 2025.
2. I note three matters ahead of that directions hearing.
3. First, the future course of the proceeding is complicated by the fact that there are six named respondents. As of the date of the hearing of the interlocutory applications in which I have now published these reasons, not all respondents had been served. I will need to be updated as to service issues at the directions hearing.
4. Second, Mr Hoser pleads that the trade marks were transferred from him to Ms Adelyn Hoser. Section 26(2) of the Trade Marks Act is as follows:

(2) If the authorised user brings an action for infringement of the trade mark, the authorised user must make the registered owner of the trade mark a defendant in the action. However, the registered owner is not liable for costs if he or she does not take part in the proceedings.

1. Mr Hoser will need to put Ms Adelyn Hoser on notice ahead of the next return date that she is a necessary party because of s. 26(2) of the Trade Marks Act.
2. Third, Mr Pelley made a contempt application on 20 March 2025. By orders made on 9 May 2025 I made orders that Mr Pelley was to file and serve by 10 June 2025 a statement of charge specifying the alleged contempt, a supporting affidavit and written submissions. Order 4 was a self-executing order in the following terms:
   1. If Mr Pelley does not file the material in accordance with each of the orders 1 - 3 set out above by 4.00 pm on 10 June 2025, his Application in a Proceeding as to contempt will stand dismissed.
3. Because Mr Pelley did not file that material, his contempt application stands dismissed.
4. In correspondence, Mr Hoser indicated he wished to apply for costs as to Mr Pelley's dismissed contempt application. He may do so and I will hear him as to costs should he file his material sufficiently before 11 August 2025. I note, however, he was self-represented at the hearing concerning the contempt application. To be successful as to costs, he will therefore need to persuade me that the circumstances are to be differentiated from the High Court's decision in Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 at 410-411 in which the High Court held that costs are not available to a self-represented litigant to compensate that litigant in person for time lost.
5. I will otherwise hear from the parties at the directions hearing as to next steps.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.