Consideration
13 A decision summarily dismissing a proceeding on the ground that it is an abuse of process is interlocutory: Re Luck (2003) 203 ALR 1 at 4 [9]-[10] per McHugh ACJ, Gummow and Heydon JJ. Leave to appeal is necessary under s 24(1D)(b) of the Federal Court of Australia Act 1976 (Cth) if a proceeding is summarily dismissed under s 31A, as Ms Karlsson's was.
14 The principles that govern the grant of leave to appeal are well established. An applicant for leave must, first, establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, substantial injustice would result from a refusal for leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
15 In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:
proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings (See, eg, Reichel v Magrath (1889) 14 App Cas 665 at 668; Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362.
(emphasis added)
16 Ms Karlsson filed the application for leave to appeal one day out of time because of a misunderstanding, which, the University accepted should not stand in the way of granting her leave to appeal, were she otherwise able to demonstrate a basis on which that should be granted.
17 Here, as Ms Karlsson accepted, she was seeking to relitigate, in her substantively identical proceeding before the primary judge, the same claims that Wright J summarily dismissed.
18 Her Honour was correct to dismiss the proceeding below as an abuse of process and to give the University summary judgment. The primary judge thoroughly analysed Ms Karlsson's claims. She found that they were substantially the same as those in the Supreme Court.
19 Her Honour then proceeded to explain why, in any event, the claims were so badly pleaded that they had no reasonable prospect of succeeding, although she did not need to do so, as she stated. I see no error in any of her Honour's analysis. It was, on the material before me, entirely correct.
20 Ms Karlsson put again to me, in support of her claims on the application for leave, the same submissions that both Wright J and the primary judge had rejected as untenable. For example, she contended that the University had infringed the mark, notwithstanding that at all times of its use of which she complained, it was then registered as the owner of the mark.
21 The circumstances in which Ms Karlsson came to own the mark were that, on 7 August 2018, a firm of patent and trade mark attorneys acting on her behalf wrote to the University, saying, as the primary judge pointed out in her reasons:
Our client intends to start a new business and use the trade mark KNOW MORE. DO MORE. as a slogan for her new business. The nature of the business of our client will be an immigration and education agency, which will provide services in relation to studying in Australia and immigrating to Australia. The business will also provide language training classes for clients who need to meet language requirements of visas.
…
Taking into consideration the different industries which our client and you operate in, we believe that our client's use of the trade mark will not conflict with Griffith University, nor would it cause confusion to consumers. Due to the similarity of the trade marks, however, your registration has been cited against our client's application. As such our client has instructed us to seek a letter of consent from you in relation to their application.
…
Should you not agree to sign the letter of consent an alternative approach for our client to overcome the citation is a non-use action against your trade mark under section 92 of the Trade Marks Act 1995.
(emphasis added)
22 During the hearings before the primary judge and before me, Ms Karlsson explained, that she was not complaining about the University infringing the mark after she became registered as its owner. Rather, her complaint was that she was still able to find historical images of the University having used the mark before she became owner when she searched on the internet, and that the University somehow had an obligation, despite s 124 of the Trade Marks Act, to cause any images previously uploaded onto the internet to be removed so that she would be free to use the mark without those earlier uses being available online.
23 As her patent and trade mark attorney's letter stated, there was no likelihood of confusion between the use the University had made of the mark and her proposed use.
24 It follows that Ms Karlsson's claim, that she advanced before both Wright J and the primary judge, that the University somehow infringed or engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law because the historical images of the University's use of the mark, before or after it was registered as its owner, may have caused confusion, was absurd and vexatious. Each of the primary judge, and Wright J beforehand, was correct in dismissing those claims.
25 The last ground on which Ms Karlsson sought to rely, both before Wright J and the primary judge, was an allegation that, prior to the University's first use of the mark, someone had stolen her bag in Queensland in 2011 which contained a USB stick that recorded her proposed mark. She pleaded that she had a civil cause of action against the University, as a result of the alleged theft of her bag in 2011, based on a definition of theft in the Crimes Act 1958 (Vic), for, somehow, appropriating or stealing the mark and becoming its owner.
26 As Wright J and the primary judge pointed out, this claim was unsustainable. First, any theft occurred, on Ms Karlsson's evidence, in Queensland so that the Victorian statute had no relevance whatsoever to her claim, secondly, the Crimes Act 1958 (Vic) did not give Ms Karlsson a civil cause of action in tort for conversion or for any other cause of action in respect of activities that occurred in Queensland, or elsewhere, thirdly, there was no basis pleaded to suggest that the University had anything to do with the theft or otherwise came to use the mark in 2011 and thereafter as a result of the alleged theft, and fourthly, the action was statute barred.
27 Ms Karlsson was unable to articulate any arguable or coherent allegation of error in her Honour's reasons. The present application itself, like the proceeding before her Honour, is an abuse of the process of the Court and must be dismissed.