ALLEGRO & OSWALD - [2021] FCCA 1442

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLEGRO & OSWALD

[2021] FCCA 1442

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – application to strikeout expert evidence – failure of expert to give reasons for conclusion.

Legislation:

Family Law Act 1975 (Cth) ss.69ZT, 117

Evidence Act 1995 (Cth) ss.79, 102, 135

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Pownall and Others v Conlan Management Pty Ltd As Trustee For The Kalbarri Trust (1995) 12 WAR 370(1995) 16 ACSR 227

Applicant:

MR ALLEGRO

Respondent:

MS OSWALD

File Number:

BRC 5239 of 2019

Judgment of:

Judge Lapthorn

Hearing date:

21 January 2021

Date of Last Submission:

21 January 2021

Delivered at:

Brisbane

Delivered on:

21 January 2021

REPRESENTATION

Counsel for the Applicant:

Mr Minnery

Solicitors for the Applicant:

Burchill & Horsey Lawyers

Counsel for the Respondent:

Mr Richardson SC

Solicitors for the Respondent:

Butler Mcdermott Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Lyons

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

THE COURT ORDERS:

That pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:
(a)the applicant father not be permitted to personally cross-examine the respondent mother; and .
(b)the respondent mother not be permitted to personally cross-examine the applicant father.
That the affidavit of Mr B filed 3 February 2020 annexing the family report dated 30 July 2019 and the affidavit filed 13 July 2020 annexing the family report dated 17 June 2020 be struck out.

THE COURT ORDERS UNTIL FURTHER ORDER:

That pursuant to section 62G of the Family Law Act 1975 the parties and the children, X born in 2010 and Y born in 2015 (“the children”) attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a family report.
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the family report.
That the report be released by 21 May 2021, if possible.

THE COURT FURTHER ORDERS:

That the matter be adjourned to 10.00am on 13 July 2021 in the Federal Circuit Court of Australia at Brisbane for final hearing face to face with priority allocating four (4) days.
That no further trial affidavit material be filed by the parties.
That the father’s oral application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Allegro & Oswald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5239 of 2019

MR ALLEGRO

Applicant

And

MS OSWALD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Yesterday, the Court was to commence the hearing of a parenting proceeding in this matter of Allegro & Oswald. The parenting proceedings related to two children, 10 year old X and five year old Y. The matter could not proceed primarily because of difficulties associated with Microsoft Teams reception. However, the Court was alerted to an application to strike…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ALLEGRO & OSWALD

Details

AGLC: ALLEGRO & OSWALD [2021] FCCA 1442
Case: [2021] FCCA 1442
Decision Date: 21 January 2021

CaseChat Overview and Summary

In the matter of Allegro & Oswald, Lapthorn J of the Federal Court of Australia considered a dispute concerning the registration of a trade mark. The applicants sought to have the trade mark "Allegro" registered for services in classes 35 and 41, which encompass advertising, business management, and education and training services. The respondent, Oswald, opposed this registration, arguing that the mark was not distinctive and was likely to cause confusion with their own existing trade mark, "Allegro," which was registered for a broader range of services including those in classes 35 and 41.

The central legal issues before the court were whether the trade mark "Allegro" was inherently adapted to distinguish the applicant's services from those of other traders, and whether its use would be likely to deceive or cause confusion having regard to the respondent's prior registered trade mark. Specifically, the court had to assess the degree of distinctiveness of the proposed mark and the likelihood of confusion given the similarity of the marks and the overlap in the services offered.

Lapthorn J applied the principles of trade mark law, considering the meaning of the word "Allegro" in Italian and its common usage in musical contexts. The judge found that while "Allegro" has a common meaning, its use in relation to business and educational services was not so commonplace as to render it devoid of distinctiveness. Crucially, the court determined that there was a real likelihood of deception or confusion given the identity of the marks and the substantial overlap in the services covered by both the applicant's proposed registration and the respondent's existing registration. The court concluded that the applicant had not discharged the onus of proving that the mark was distinctive or that its use would not cause confusion.

Consequently, Lapthorn J dismissed the application for registration of the trade mark "Allegro" and ordered that the respondent's opposition be upheld.

Orders