Skill Tiling Pty Ltd v Quality Skill Tiling Pty Ltd  FedCFamC 2G 177
Application for default judgment under Rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – Default by Respondents – deemed admissions by reason of default – where the Court has power to grant relief sought.
Judge Forbes granted judgment in default against each of the Respondents in relation to trade mark infringement, making declarations and ordering injunctions. The case contains a useful summary of the principles to be applied in seeking default judgment and appropriate wording to be included in a declaration obtained in such circumstances.
The Applicant, Skill Tiling Pty Ltd, sought default judgment against the Quality Skill Tiling Pty Ltd (QST) and its sole director, secretary and shareholder Mr Nazari. In its application for default judgment, Skill Tiling pursued only a subset of the final relief sought in the originating application, namely claims for trade mark infringement, and sought declarations and permanent injunctions.
The Court analysed the principles guiding the exercise of the Court’s power in relation to default judgment and similar powers available to the Federal Court of Australia under its rules, noting that an applicant is not required to prove by way of evidence the claim which is sought to be advanced. Rather, the Court needs to be satisfied on the face of the statement of claim that the applicant appears entitled to the relief claimed and the Court is satisfied that it has the power to grant the relief.
Judge Forbes was satisfied that the statement of claim complied with the rules of pleading and properly pleaded causes of action that supported the granting of relief, namely a claim against QST for trade mark infringement and a common law claim against Mr Nazari as a joint tortfeasor in that infringement. Judge Forbes noted there was no requirement to determine, on a final basis, whether the trade marks are identical or deceptively similar, but to the extent assessment was relevant to the exercise of the Court’s discretion, the Court was satisfied that there was a reasonably arguable prima facie case that the marks referred to in the pleading (Quality Skill Tiling) are deceptively similar to Skill Tilings’ registration for the mark Skill Tiling.
The Court was satisfied that the pleaded allegations were capable of supporting a finding that Mr Nazari was knowingly involved in the infringing acts (by way of correspondence putting him on notice), whether or not he knew he was contravening any law.
The case is a useful reminder on the law and procedure applicable to the granting of declarations in default judgment applications. Section 141(1) of the Federal Circuit and Family Court of Australia Act gives the Court jurisdiction to make binding declarations of right in relation to a matter in which it has original jurisdiction and that the Court has a wide discretionary power to make declarations. There is no requirement, as there once was, for there to be a proper contradictor before declaratory relief can be granted. The requirement for a contradictor is met if there is a party who had an interest to oppose the declaratory relief that was being sought. This encompasses a range of responses from a respondent who is in outright opposition, to a respondent who does not appear, despite awareness that a declaration was to be sought, especially if there was precise knowledge of the date of the hearing of the application.
However, the Court noted that in exercising appropriate caution when considering declaratory relief, it was to be remembered that on an application for default judgment, the Court is proceeding on the basis of the claim as pleaded by the applicant and in the absence of a defence or contradictory evidence. Accordingly, it is appropriate to make it clear that there has been no adjudication on the merits of the applicant’s claims. This was to be done by including wording in the declaration to the effect that the declarations are made “upon admissions which the respondent in question are taken to have made consequent upon their non-compliance with the requirements of the Rules of Court”. This wording was based on what was suggested by Keifel J, as her Honour then was, in Australian Competition and Consumer Commission v Dateline.net.au Pty Ltd  FCA 1427 at . The Court noted that it had power to grant the injunction against QST and both declaratory and injunctive relief against Mr Nazari. The Court also made an order that the respondents jointly and severally pay the applicant’s costs.