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[2026] ACTSC 275
Supreme Court of the ACT
2026-08-04
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Quach v Dehelean Citation: [2026] ACTSC 275 Hearing Date: 13 March 2026 Decision Date: 4 August 2026 Before: Muller J Decision: (1) The subpoena dated 9 January 2026 issued to the Proper Officer at IP Australia is set aside in whole. (2) The application by the plaintiff lodged on 20 October 2025 seeking leave to serve documents by email is dismissed. Catchwords: CIVIL LAW – PRACTICE AND PROCEDURE – Subpoenas – application to set aside subpoenas – whether legitimate forensic purpose exists – whether there is an abuse of process CIVIL LAW – PRACTICE AND PROCEDURE – Service – application for substituted service – whether personal service impracticable – whether steps taken to effect personal service Legislation Cited: Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 6460, 6604, 6606 Cases Cited: CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2025] ACTSC 137 Pesec v Consolidated Builders Ltd [2022] ACTSC 241 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Read v Chang [2010] 6 ASTLR 289; FamCA 876 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] 118 NSWLR 336; NSWCA 145 Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147 Parties: Michael Van Thanh Quach (Plaintiff) Tim Dehelean (Defendant) Representation: Counsel Self-represented (Plaintiff) J Woodyatt (IP Australia) Solicitors Self-represented (Plaintiff) Australian Government Solicitor (IP Australia) File Number: SC 310 of 2025 MULLER J:
This originating application arises out of a dispute about trademarks.
On 1 December 2023, Medcraft Pty Ltd filed a trademark application with IP Australia for a particular name and logo for its business (the Trademark). The defendant to the originating application, Tim Dehelean, was employed by IP Australia as a Trade Mark Examiner and examined the trademark application. On 12 January 2024, he marked the application as accepted for possible registration (the Registration Decision). His decision was published in the Official Journal of Trade Marks on 22 May 2024.
On 27 May 2024, a notice of objection to the Registration Decision was filed with IP Australia by QE Family Pty Ltd (QE), as trustee for Qe Tai Sing Family Trust. Dr Michael Van Thanh Quach, the plaintiff in the originating application, is the sole director of QE. On 5 August 2025, a delegate of the Registrar of Trade Marks dismissed QE’s objection with accompanying reasons.
Mr Dehelean ceased working as a Trade Mark Examiner on 15 September 2024, before ceasing employment altogether with IP Australia on 17 April 2025.
On 22 August 2025, Dr Quach filed his originating application in this Court seeking an injunction against the Registrar of Trade Marks from registering the Trademark. Dr Quach subsequently issued a subpoena to IP Australia for them to produce the personal details of Tim Dehelean such as: I. Address(es) II. Phone number(s) III. Email address(es) IV. Emergency contact name and telephone number
In the first application before me, IP Australia asks for the subpoena to be set aside pursuant to r 6604 of the Court Procedures Rules 2006 (ACT). Rule 6604 provides: (1) On the application of a party or someone else having a sufficient interest, the court may set aside a subpoena completely or partly, or grant other relief in relation to it. Note Pt 6.2 (Applications in proceedings) applies to an application under this rule. (2) A copy of the application must be served on the issuing party. (3) The court may order that the applicant give notice of the application to any other party or anyone else who has a sufficient interest.
I am satisfied IP Australia, as the party to whom the subpoena is directed, has a sufficient interest in the subpoena to enable them to bring this application. In support of its application, IP Australia reads an affidavit of Clare Ruiyan Smart, affirmed on 30 January 2026.
In the second application before me, Dr Quach seeks orders granting leave to serve by email at Mr Dehelean’s last known place of work a copy of the originating process. In support of the application, Dr Quach reads his affidavit affirmed on 20 October 2025. I will return to the second application later.
What are the grounds relied upon for setting aside the subpoena?
IP Australia relies on four grounds in support of their application.
First, the subpoena lacks a legitimate forensic purpose. The only connection between Mr Dehelean and Dr Quach is the trademark application process. Mr Dehelean was acting in a professional capacity in dealing with the application process and there is no significant importance in his personal details warranting their disclosure to Dr Quach through the subpoena. If the use of the subpoena is to acquire personal information to effect personal service, that is not a legitimate forensic purpose, because substituted service is the proper and available avenue.
Secondly, IP Australia says the subpoena is unreasonable, burdensome and oppressive. It is not drafted so as to request documents or other items according to the Rules. That places a burden on IP Australia to identify the relevant categories of documents which is too high in circumstances where a legitimate forensic purpose is absent. IP Australia also relies on its interest in protecting the personal details of its current and former employees. That interest arises from IP Australia needing to effectively discharge its duties without an unreasonable risk those working for it would be targeted.
Third, when considering the lack of a legitimate forensic purpose and the unreasonable burden together, the subpoena amounts to an abuse of court process.
Fourth, no conduct money has been tendered by Dr Quach pursuant to r 6606(1) of the Rules and IP Australia should on that basis alone be relieved from complying.
Why are the documents sought by Dr Quach?
Dr Quach says his purpose in issuing the subpoena is to find Mr Dehelean. As the Rules do not permit him to serve Mr Dehelean at his last known work address it is necessary to subpoena IP Australia for his personal information.
He argues there would be no administration of justice if employers, or public authorities, are able to defend their employees in the way IP Australia is doing. Dr Quach submits it is in the public’s best interests and in the administration of justice for the information concerning Mr Delehean to be disclosed and to enable the matter to be heard.
In relation to the conduct money, Dr Quach submits the security desk at IP Australia’s premises refused to accept the money as they had no capacity to deal with cash. He also says IP Australia has not told him where he could pay the money.
Should the subpoena be set aside?
Rule 6604 of the Rules empowers the Court to set aside a subpoena in whole or in part as well as to grant other relief in relation to it. This power has been described as enabling the court to regulate and protect its own processes: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] 118 NSWLR 336; NSWCA 145 at [60] (Bell P).
In CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2025] ACTSC 137 at [11]-[21], McWilliam J set out the principles in assessing whether a legitimate forensic purpose exists in relation to a subpoena. The assessment involves determining “whether the documents sought will assist in the resolution of the issues in the main case” (at [14]). Such an assessment is affected by the nature of a proceeding and bearing in mind the approach to civil litigation required by s 5A of the Rules: Wornes v Freewater Australia Pty Ltd [2022] ACTSC 147 at [14]-[16] (Kennett J). If there is no legitimate forensic purpose, then the subpoena will “self-evidently be an abuse of process”: Blacktown City Council at [88] (Brereton JA).
Assessing if a subpoena is “oppressive” involves first considering the legitimate forensic interest of the party issuing a subpoena: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [27] (Brereton J). The court then looks to balance the utility of the material sought against the burden which compliance with the subpoena places on the recipient: Portal Software at [27]. The second part of the analysis is an assessment of proportionality: Pesec v Consolidated Builders Ltd [2022] ACTSC 241 at [28] (McWilliam AsJ).
Accepting at face value Dr Quach has experienced some difficulty in locating Mr Dehelean, there are a number of fundamental difficulties with his subpoena directed to IP Australia: (a) There is a dearth of information before me explaining the basis for the originating application being brought against Mr Dehelean. The relief sought is an injunction against the Registrar of Trade Marks. Mr Dehelean is not the Registrar of Trade Marks. He is no longer even employed by IP Australia in any capacity. Any injunctive relief against Mr Dehelean, were it appropriate to be granted, would not bind the Registrar of Trade Marks in any way. No legitimate purpose for the primary proceedings is identified and, as a consequence, there can be no legitimate forensic purpose in seeking Mr Dehelean’s personal details from IP Australia: Read v Chang [2010] 6 ASTLR 289; FamCA 876 at [8] (Cohen J). (b) Even where an arguable case for relief against Mr Dehelean is established, the use of the subpoena process to seek personal information concerning parties to the proceedings will amount to an abuse of process unless and until it is demonstrated the subpoena is issued for a purpose relating to the proceeding: Wornes at [19]. (c) On the limited material available, the subpoena appears to be in the nature of a request for discovery against a third party which is of itself a proper basis for setting it aside: CDLC at [22].
For the reasons set out above, it is appropriate for the subpoena to be set aside.
The second application
Although not expressed as such, Dr Quach, by his application, seeks orders for substituted service. Leave to serve a document otherwise required to be served personally in an alternative way may be given under r 6460 of the Rules. In making such an order, the court may provide the document is taken to be served on the happening of a stated event, at a stated time or at the end of a stated period. As a first step in the process, it is necessary for the court to be satisfied service in the usual way is impracticable. In this case, the affidavit relied upon by Dr Quach demonstrates personal service was attempted on Mr Dehelean at his place of work (or his previous place of work), IP Australia, and the process servers were advised Mr Dehelean no longer works for that entity.
As I have identified above, Dr Quach asserts, without providing any substantive evidence as to his efforts beyond the attempted service at IP Australia’s address, he has been unable to locate Mr Dehelean. Accepting for present purposes, it is impracticable to serve Mr Dehelean personally, the material before me fails to identify an alternative address for service. Dr Quach has by his enquiries established positively Mr Dehelean no longer works at IP Australia and its address therefore cannot be a suitable alternative address for service. No other address is identified. The application must therefore fail.
Orders
I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date:
Quach
Dehelean