Herold v Seally [2017] FCA 42

Herold v Seally [2017] FCA 42

Leave to serve Podway in Hong Kong was granted because the Court was satisfied that it had jurisdiction over the trade mark, copyright threats and confidential information claims, the proceeding fell within r 10.42, the applicants had shown a prima facie case for relief against Podway, and service by registered post to Hong Kong was permitted under the Hague Convention and met r 10.43(3). Confirmation of prior service was not ordered because additional materials had since been advanced and relied upon.

Jurisdiction
Australia
Judgment Date
19 January 2017
Procedural Posture
Application for Leave to Serve Originating Application Outside Australia / Ex Parte Interlocutory Application Under R 10.43 of the Federal Court Rules 2011 (cth)
Outcome
Leave granted to serve the second respondent outside Australia; costs reserved.
Legal Topics
['service Outside Australia' 'hague Convention Service by Postal Channels' 'prima Facie Case' 'jurisdiction' 'trade Mark Rectification' 'wrongful Threats of Copyright Infringement' 'confidential Information']
['practice and Procedure' 'intellectual Property' 'trade Marks' 'copyright' 'equity'] ['service Outside Australia' 'hague Convention Service by Postal Channels' 'prima Facie Case' 'jurisdiction' 'trade Mark Rectification' 'wrongful Threats of Copyright Infringement' 'confidential Information']

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Procedural Posture

Application for Leave to Serve Originating Application Outside Australia / Ex Parte Interlocutory Application Under R 10.43 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the Court had jurisdiction in the proceeding for the purposes of r 10.43(4)(a) of the Federal Court Rules 2011 (Cth).' 'Whether the proceeding was of a kind mentioned in r 10.42 of the Federal Court Rules 2011 (Cth).' 'Whether the applicants had a prima facie case for all or any of the relief claimed against Podway.' 'Whether service by international registered post to Podway in Hong Kong was permitted by the Hague Convention for the purposes of r 10.43(3).' 'Whether the Court should confirm prior service under r 10.43(6).']

Ratio Decidendi

Leave to serve Podway in Hong Kong was granted because the Court was satisfied that it had jurisdiction over the trade mark, copyright threats and confidential information claims, the proceeding fell within r 10.42, the applicants had shown a prima facie case for relief against Podway, and service by registered post to Hong Kong was permitted under the Hague Convention and met r 10.43(3). Confirmation of prior service was not ordered because additional materials had since been advanced and relied upon.

Court Disposition

Leave granted to serve the second respondent outside Australia; costs reserved.

Orders

  • ['Pursuant to FCR 10.43 leave is granted to the Applicants to serve the originating application, the amended interlocutory application dated 9 January 2017, the affidavit of Lars Herold made on 12 December 2016 and a sealed copy of these orders (together, "Documents") on the Second Respondent by sending the...