A word to the wise –
Don’t Disobey Court Orders!
Earlier this year, Ozcare took action 1
against Auscare Home & Community
Care Limited and Auscare
Foundation Limited (collectively,
Auscare) for infringement of Ozcare’s
trade marks. That action was settled
on 27 April 2022 on the basis of
orders that included the following:
“With effect from 26 June
2022, each of the Respondents/
Cross-Claimants, by its officers,
employees, servants, agents
and otherwise, be permanently
restrained from using in Australia
each of the Auscare Trade Marks
and Foundation Trade Marks, or
any mark which is substantially
identical to or deceptively similar
with any of the Ozcare Trade Marks
or Foundation Trade Marks, in
respect of the Infringing Services.”
This order was made with the
consent of the parties, and
effectively granted relief to
prevent Auscare from continuing
to infringe Ozcare’s trade marks.

Despite having consented to
this order and being allowed
two months in which to cease
use, Auscare continued to use
the marks – particularly in the
domain names auscare.org.au
and auscareservices.com.au,
which were redirected to other
websites controlled by Auscare.

On 30 June 2022 Auscare was
put on notice of their breach of
the earlier orders, following which
Ozcare sought an injunction at a
hearing on 15 July 2022 to prevent
the continuing infringement.

In particular, Ozcare sought to
prevent Auscare from redirecting
from the domain names and sought
deregistration of the domain names.

Justice Perram’s orders
included a Penal Notice,
advising that refusing or
neglecting to do any act
within the time specified or
disobeying the order would
result in imprisonment,
sequestration of property
or other punishment.

Justice Perram found that,
considering the continued
infringement of Ozcare’s trade mark,
it was appropriate to grant both
an injunction against maintaining
a redirection from the domain
names to any websites operated
by Auscare, and an order requiring
Auscare to deregister each of the
domain names within two days.

Counsel for Auscare argued that
two days was insufficient time to
deregister the domain names, but
Justice Perram noted that Auscare
had already had 11 weeks to comply
with the initial orders. However,
given that the actual deregistration
would be in the hands of the domain
name registrars, Justice Perram
modified the order to require
Auscare to “take all reasonable
steps” to deregister the domain
names within the specified time.

Because Auscare had already
been in breach of the initial orders,
Justice Perram’s orders included a
Penal Notice, advising that refusing
or neglecting to do any act within
the time specified or disobeying
the order by doing a prohibited
act would result in imprisonment,
sequestration of property or other
punishment. This Notice extended
to any person who, knowing of
the order, helped or permitted a
breach of the orders – thereby
catching the companies’ directors.

In addition, Ozcare’s costs of
$10,400 were awarded in full against
Auscare on an indemnity basis.

The moral of the story? If a court
orders you to do something, do
it! Or if it orders you not to do
something, don’t do it! Especially
if you consented to the orders!
11 Russell Waters | Principal
BSc LLB FIPTA
1 Ozcare v Auscare Home & Community Care Limited (Further Orders) [2022] FCA 835
Inspire November 2022
It might seem obvious that if a judge issues an order,
you are likely to get into trouble if you then ignore that order.

russell.waters@pof.com.au