The Federal Court of Appeal has upheld a default judgment against the appellants, where findings of trademark infringement, passing off, depreciation of goodwill and communication of false and misleading statements were established.
The Court of Appeal held that the decision to proceed with the merits of the motion was discretionary, and the discretion was reasonably exercised. Despite having notice of the motion, the appellants did not file a responding motion record nor did they cross-examine on the affidavits.
The corporate defendant did not retain counsel or seek relief from Rule 120 of the Federal Courts Rules. The decision to require the compliance with the Rules was upheld, as was the decision to not allow the personal defendant to give oral evidence on return of the motion. The remedies that were awarded were upheld as being reasonable and within the Court's jurisdiction.
Lastly, the Court of Appeal refused to accept what was characterized as an aid to argument, but that the panel described as a fresh 30 page memorandum of argument that had not been delivered to respondent's counsel.