Blount Inc v The Registrar of Trade Marks

[1997] FCA 1315

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 245 of 1997

BETWEEN:	BLOUNT INC APPLICANT
AND:	THE REGISTRAR OF TRADE MARKS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	28 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR DECISION (EX TEMPORE)

In this case, the applicant seeks a direction that the affidavit sworn by Andrew Lewis on 22 September 1997, and filed by the respondent, be removed from the file or, alternatively, an indication from the Court that the affidavit will not be allowed to be read on the hearing of this application.  In my view, neither a direction nor an indication of the type sought in this case by the applicant is appropriate to be made. 

The Registrar of Trade Marks is a party to this proceeding.  Order 58, rule 3 of the Federal Court Rules provides as follows:

“The Commissioner may appear and be heard in any proceedings, but is not a party to proceedings other than an appeal:

(a)       from a decision of the Commissioner;  and

(b)in which there is no party in opposition to the party bringing the appeal.”   

The Commissioner, as defined for the purpose of O 58 by O 58 r 1, is thus entitled to appear and be heard on this proceeding.  In my view, the proper understanding of O 58 r 3  involves that the Commissioner (who in the circumstances of this case is the Registrar) is entitled to place evidence before the Court on the hearing of this matter.

The Registrar will, of course, as his counsel, Mr Cobden, has indicated, be mindful of his appropriate role in placing evidence before the Court.  In my view there is nothing inappropriate in the nature of the evidence in the affidavit of Mr Lewis. 

Of course, upon the case being called on for hearing, all proper objections to Mr Lewis' affidavit can be made when and if the affidavit is read, and I will rule on such objections then.  However, I decline to direct that the affidavit be removed from the file, or to indicate that it will not be allowed to be read, simply because it is evidence filed on behalf of the Registrar.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Branson

Associate:

Dated:            28 October 1997

Counsel for the Applicant:	Mr S G C Burley
Solicitor for the Applicant:	Sprusons
Counsel for the Respondent:	Mr R Cobden
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 October 1997
Date of Decision:	28 October 1997