Karlsson v Griffith University

Supreme Court of NSW|2019-10-01|Before: Adamson J

Solicitors: Bartley Cohen Litigation Lawyers (Defendant) File Number(s): 2019/229499

Introduction

On 24 July 2019 Annika Karlsson (the plaintiff) filed a document which purported to be a statement of claim against Griffith University (the defendant). The statement of claim was not in proper form. On 31 July 2019 the plaintiff filed a further document entitled "Amended Statement of Claim". By notice of motion filed on 28 August 2019 the defendant sought an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 14.28 that the whole of the amended statement of claim be struck out; an order that the defendant be excused from filing a defence under UCPR, r 14.3 until further order of the Court; orders relating to service on the plaintiff; and an order for costs.
Mr Hollo, who appeared on behalf of the defendant, submitted that the amended statement of claim was embarrassing within the meaning of UCPR, r 14.28(1)(b) in that the defendant could not reasonably apprehend the case it had to meet. Further, the pleading disclosed no reasonable cause of action and ought therefore be struck out pursuant to UCPR, r 14.28(1)(a).

Consideration

It is apparent from the amended statement of claim that its form is so embarrassing that the defendant should not be required to plead to it. I am also satisfied, in light of the narrative of largely uncontroverted objective facts and the undisputed law, that the amended statement of claim discloses no reasonable cause of action. Indeed it may be that the plaintiff has no reasonable cause of action against the defendant at all. However, that is not a matter which I can determine today having regard to the power under which the orders are sought. I note that the defendant does not in this application seek summary dismissal of the claim itself, but rather that the pleading be struck out pursuant to UCPR, r 14.28.
What Mr Hollo proposes in draft short minutes of order which I will mark MFI 2 is a regime whereby the current pleading is struck out and that the defendant is excused from filing a defence, but that the plaintiff be obliged to serve a proposed further claim on the defendant with a view to the defendant indicating whether it consents or objects to the plaintiff's proposed further claim. The purpose of these draft orders is to place the onus on the plaintiff to establish to the Court that any further pleading is in proper form and appropriately made before it may be filed.
In all the circumstances I am satisfied that the protocol proposed in the proposed short minutes of order is appropriate. I note that the plaintiff has indicated that she has already consulted several lawyers. It is open to infer that she has not necessarily taken the advice of those lawyers, although this is an area which is pre-eminently one which requires legal expertise. I note that the plaintiff also seeks orders for service and the orders which I make on that topic will be made by consent.
The other matter which must be addressed is that Mr Hollo has proposed in MFI 2 that leave be refused to the extent to which the proposed further claim makes any claim that the defendant by its use of the "Know more. Do more" trade mark in the period 10 May 2013 to 20 August 2018 infringed the plaintiff's trade mark under the Trade Marks Act.
The legal analysis which I have undertaken and set out above results in the conclusion, on the basis of objective and apparently incontrovertible evidence and by reason of the provisions of the Trade Marks Act referred to above, that the defendant, as the registered trade mark holder, was entitled to use the trade mark in the period between 10 May 2013 (being the priority date) and 20 August 2018 (being the date on which its trade mark was cancelled). However, given the protocol in the short minutes of order it would not appear to me to be appropriate that I make the order in the terms sought by Mr Hollo since that will be a matter for the Court hearing any application by the plaintiff for leave to file the proposed further claim to determine. I appreciate that the defendant has sought draft order (4) in the hope that it will have a prophylactic effect. I hope that my reasons are sufficient to serve that purpose.

Costs

The defendant has also sought its costs of the notice of motion and an order pursuant to UCPR, r 42.7(2) that they be payable forthwith. Mr Hollo submitted that this order is appropriate since the notice of motion is in effect a discrete matter which had to be brought by the defendant because of the plaintiff's unreasonable conduct. Mr Hollo referred to the plaintiff's conduct in not only filing a pleading which was bad in form, but also in filing a pleading which discloses no reasonable cause of action known to the law.
In the circumstances I am persuaded that it is appropriate to make such an order in the present case by reason of the submissions made by Mr Hollo to which the plaintiff had no substantive response. For these reasons I make the orders set out below.

Orders

I make the following orders: 1. Pursuant to UCPR, r 14.28, the whole of the amended statement of claim filed on 31 July 2019 be struck out. 2. The defendant is excused from filing a defence under UCPR, r 14.3 until further order of the Court or otherwise until the time provided in (5)(b) below. 3. The plaintiff to serve on the defendant a proposed further amended statement of claim (Proposed Further Claim) by 22 October 2019. 4. The defendant is to provide to the plaintiff its response to the Proposed Further Claim, by indicating whether it consents or objects to the plaintiff filing the Proposed Further Claim, by 5 November 2019. 5. In the event that the defendant consents to the filing of the Proposed Further Claim: 1. the plaintiff has leave to file and serve the Proposed Further Claim by 12 November 2019; 2. the defendant is to file and serve its defence to the Proposed Further Claim by 10 December 2019; 3. the matter be listed before the Registrar for further directions on 12 December 2019. 1. In the event that the defendant does not consent to the filing of the Proposed Further Claim: 1. the plaintiff is to file and serve any notice of motion and supporting affidavit seeking leave to file the Proposed Further Claim by 19 November 2019; 2. the defendant is to file and serve any affidavit in response by 3 December 2019; 3. the plaintiff's notice of motion be set down for hearing on 10 December 2019. 1. By consent, service on the plaintiff may be effected by: 1. posting a copy of any document to the plaintiff's address at 1010, 75 Shortland Esplanade, Newcastle, NSW 2300; or 2. sending a copy of any document by email to the plaintiff's email address at thana.ak@gmx.com. 1. Order the plaintiff to pay the defendant's costs of, and incidental to, the defendant's notice of motion dated 28 August 2019 on the ordinary basis, to be assessed or agreed, and to be payable forthwith thereafter under UCPR, r 42.7(2). 2. Liberty to apply on 3 days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2019

At a glance

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Source

Judgment (7 paragraphs)

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Legislation Cited (2)