Wild Wolf Company v Wild & Wolf (Holdings) Ltd [2016] FCA 1148

FEDERAL COURT OF AUSTRALIA

Wild Wolf Company v Wild & Wolf (Holdings) Ltd [2016] FCA 1148 File number: NSD 657 of 2015

Judge: MARKOVIC J

Date of judgment: 15 September 2016

Legislation: Federal Court Rules 2011 (Cth) r 5.22 and r 5.23(1)(b)

Date of hearing: 15 September 2016

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Trade Marks

Category: No Catchwords

Number of paragraphs: 10

Counsel for the Appellant: The appellant did not appear

Solicitor for the Respondent: Mr L Mancini, Maxwell IP Lawyers

ORDERS NSD 657 of 2015

BETWEEN: WILD WOLF COMPANY Appellant

AND: WILD & WOLF (HOLDINGS) LTD Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 15 SEPTEMBER 2016

THE COURT ORDERS THAT:

1. Pursuant to rule 5.23(1)(b) of the Federal Court Rules 2011 the proceedings be dismissed. 2. The appellant is to pay the respondent's costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J: 1 This matter was commenced by the filing of a notice of appeal on 6 June 2015. In the proceeding the appellant, Wild Wolf Company, appeals from a decision of the Registrar of Trade Marks given by a delegate of the Registrar on 15 May 2015. 2 The proceeding has been listed before the Court on numerous occasions for directions and case management hearings. On 4 February 2016 orders were made that included an order that the appellant file and serve a statement of grounds of opposition, stating the grounds of opposition and particulars on which it continued to rely. That order was not complied with by the appellant. 3 On 16 May 2016 a notice of ceasing to act was filed by Spruson and Ferguson Lawyers Pty Ltd who, until that time, had been acting for the appellant in the proceeding. No other lawyer has filed a notice of appearance on behalf of the appellant since that time. 4 The proceeding was subsequently listed before the Court on 28 July 2016. At that time there was no appearance by or on behalf of the appellant. The proceeding was stood over to 1 September 2016 and the respondent was required to notify the appellant of the further date for directions and any application that it intended to make at that time. The proposed listing on 1 September 2016 was adjourned on the application of the respondent and the matter was stood over to today. The respondent was required to notify the appellant of the adjourned date and time. 5 Today when the matter was called there was no appearance on behalf of the appellant. As I was sitting in Brisbane the matter was called three times outside the allocated Courts both in Brisbane and in Sydney where the video facility was intended to be set up for the purposes of today's directions hearing. There was no appearance on behalf of the appellant, despite the matter being called in both of those locations. 6 The respondent now applies for an order pursuant to r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) (the Rules), which provides that if an applicant is in default a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant either immediately or on conditions specified in the order. 7 Rule 5.22 of the Rules provides that a party is in default if it fails, among other things, to comply with an order of the Court or attend a hearing in the proceeding or prosecute the proceeding with due diligence. 8 The respondent relies on an affidavit affirmed by its solicitor, Leonard Mancini, on 14 September 2016. In that affidavit Mr Mancini sets out the efforts that have been made by him to notify the appellant of today's listing. Those efforts include searches undertaken to identify contact addresses, emails and telephone numbers of the appellant and solicitors who may act for or be in contact with the appellant, who is resident in Spain. Some of the attempts to contact the appellant by various means were successful while some were not. However, I am satisfied that sufficient successful attempts were made to notify the appellant of today's listing. 9 The appellant is in default. It has failed to comply with the Court's order made on 4 February 2016 to file and serve a statement of grounds of opposition. It has also failed to attend a hearing in the proceeding, both on 28 July 2016 and today and it is clearly not prosecuting the proceeding with due diligence. In those circumstances, I am satisfied that an order should be made pursuant to r 5.23(1)(b) of the Rules and I will make such an order. 10 I order that: (1) pursuant to r 5.23(1)(b) the proceedings be dismissed; (2) the appellant is to pay the respondent's costs of the proceeding. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.