Walker v Body Logic Resources Pty Ltd (No 2) [2009] FCA 440

Walker v Body Logic Resources Pty Ltd (No 2) [2009] FCA 440

Because the applicant/cross-respondent had been served in accordance with the substituted service orders, did not appear, failed to comply with orders for security for costs and discovery categories, failed to attend directions hearings, and failed to prosecute or defend with due diligence, the amended statement of claim and defence to cross-claim were struck out, the proceeding was dismissed, and judgment was entered for the cross-claimants. With the cross-claim undefended and no matter identified as standing in the way of relief, the Register of Trade Marks was ordered to be rectified by cancelling registrations 1164195, 1164197 and 1164198.

Jurisdiction
Australia
Judgment Date
04 May 2009
Procedural Posture
Federal Court Proceeding With Cross Claim Concerning Registered Trade Marks / Hearing of Notice of Motion Seeking Summary Disposition of the Proceedings Including the Cross Claim
Outcome
Applicant's proceeding dismissed; judgment entered for the respondents/cross-claimants on the cross-claim; trade mark registrations cancelled; costs awarded to the respondents/cross-claimants.
Legal Topics
['substituted Service' 'security for Costs' 'discovery Defaults' 'dismissal for Default' 'failure to Prosecute With Due Diligence' 'striking Out Pleadings' 'judgment on Cross Claim' 'rectification of the Register of Trade Marks' 'costs']
['civil Procedure' 'trade Marks'] ['substituted Service' 'security for Costs' 'discovery Defaults' 'dismissal for Default' 'failure to Prosecute With Due Diligence' 'striking Out Pleadings' 'judgment on Cross Claim' 'rectification of the Register of Trade Marks' 'costs']

Case Brief

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Procedural Posture

Federal Court Proceeding With Cross Claim Concerning Registered Trade Marks / Hearing of Notice of Motion Seeking Summary Disposition of the Proceedings Including the Cross Claim

Legal Issues

  1. 1 ["Whether the applicant's proceeding should be dismissed for failure to comply with orders for security for costs and discovery categories and failure to prosecute with due diligence." 'Whether the amended statement of claim should be struck out.' 'Whether the defence to the cross-claim should be struck out for default.' 'Whether judgment should be entered for the cross-claimants and the Register of Trade Marks rectified by cancelling trade mark registrations 1164195, 1164197 and 1164198.' 'Whether the respondents/cross-claimants should receive costs.']

Ratio Decidendi

Because the applicant/cross-respondent had been served in accordance with the substituted service orders, did not appear, failed to comply with orders for security for costs and discovery categories, failed to attend directions hearings, and failed to prosecute or defend with due diligence, the amended statement of claim and defence to cross-claim were struck out, the proceeding was dismissed, and judgment was entered for the cross-claimants. With the cross-claim undefended and no matter identified as standing in the way of relief, the Register of Trade Marks was ordered to be rectified by cancelling registrations 1164195, 1164197 and 1164198.

Court Disposition

Applicant's proceeding dismissed; judgment entered for the respondents/cross-claimants on the cross-claim; trade mark registrations cancelled; costs awarded to the respondents/cross-claimants.

Orders

  • ['The amended statement of claim filed on 28 April 2008 be struck out.' 'The proceeding commenced by the applicant on 18 March 2008 be dismissed.' 'The defence to the cross-claim filed by the cross-respondent on 30 June 2008 be struck out.' 'There be judgment for the cross-claimants on the cross-claim filed on 11...