|
Quick Links
Statistics
Total entries in this blog:
Total entries in this category: Published On: May 18, 2008 10:37 PM |
Unsuccessful opponent seeking leave to appeal to the Full CourtSWA had unsuccessfully opposed de Witt's application to register GLENN OAKS as a trade mark in class 33 for a range of spirits. It appealed to the Federal Court pursuant to s 56 and Sundberg J dismissed its appeal. It sought to appeal that dismissal to the Full Court. Pursuant to s 195(2), such an appeal does not lie except with leave. Jessup J has now refused leave, in a decision with important ramifications for those considering whether or not to attempt such an application ... Full Court had held, or at least been thought to have held, that leave to appeal from appeals from the Commissioner/Registrar should be granted to an opponent who had been unsuccessful twice (i.e., before the Commissioner/Redgistrar and then the Court) only in cases of clear prima facie error. A more lenient attitude was thought to apply towards unsuccessful applicants. Jessup J, however, pointed out that: in Pfizer, the Full Court made it clear that there were no rigid rules such as might restrict the exercise of the court’s discretion under provisions such as s 195(2) of the Act. It said that the discretion "must not be constrained by elevating particular approaches to its exercise, in particular classes of case, to rules of general application" (155 FCR at 581 [10]). The Full Court said (at 582 [12]): No doubt, where an unsuccessful opponent, after two hearings and where questions of fact, impression and judgment are involved, seeks leave to appeal, it may be appropriate to require the demonstration of a clear prima facie case of error on the part of the primary judge. Indeed, in the kind of case before the Full Court in Woolworths v BP, it may be rare to grant leave to appeal in the absence of a clear prima facie case of error on the part of the primary judge. But their Honours should not be taken to be diluting the proposition stated repeatedly by Full Courts before them (and repeated by them), that the discretion to grant leave to appeal must not be constrained by elevating particular approaches in particular cases to the status of rules of general application. That is what the submissions of the respondents sought, impermissibly, to do here. In addition, under FCR O52 r 2AA, applications for leave are now heard by a single Judge unless the Judge orders to the contrary. His Honour noted that it was "both simplistic and problematic" to characterise SWA has having been twice unsuccessful. In addition, his Honour expressed some reservation about a single Judge of the Court applying the "clear prima facie error" standard to another single Judge's ruling. In these circumstances, his Honour as a matter of discretion adopted the approach adopted by Burchett J in Registrar v Woolworths which involved two steps: (1) The question is rather whether the appeal would be reasonably arguable or, to put what is really the same point another way, whether there is sufficient doubt to warrant reconsideration of the matter by a Full Court; and (2) whether the denial to the applicant of an opportunity to appeal would involve a substantial injustice, supposing the decision of the judge to have been wrong. While his Honour identified two reasonably arguable "errors", his Honour refused leave because SWA would not suffer a substantial injustice if leave were refused: it could still seek revocation of the registration (once granted) under s 88. Scotch Whisky Association Ltd v de Witt [2008] FCA 73 Sundberg J's decision [2007] FCA 1649 and the Delegate's [2006] ATMO 43 - yes that was my name you saw there. Posted: Friday - 22 February, 2008 at 03:04 PM | |