Donzenac Pty Ltd v MCV Enviroworks Pty Ltd

Link copied
Case Copied 32 min read

FEDERAL COURT OF AUSTRALIA

Donzenac Pty Ltd v MCV Enviroworks Pty Ltd [2015] FCA 361

Citation: Donzenac Pty Ltd v MCV Enviroworks Pty Ltd [2015] FCA 361
Parties: DONZENAC PTY LTD v MCV ENVIROWORKS PTY LTD
File number(s): QUD 391 of 2014
Judge(s): GREENWOOD J
Date of judgment: 20 April 2015
Catchwords:

INTELLECTUAL PROPERTY – consideration of an application for an extension of time to file an appeal under s 56 of the Trade Marks Act 1995 (Cth) from a decision of the Delegate of the Registrar of Trade Marks made under s 55 of the Act

PRACTICE AND PROCEDURE – consideration of the principles to be applied in exercising the discretion under r 34.25 of the Federal Court Rules 2011 to extend time for the filing of a notice of appeal from a decision of the Registrar of Trade Marks – consideration of the nature of such an appeal

Legislation: Trade Marks Act 1995 (Cth), ss 55, 56, 197
Federal Court Rules 2011, rr 34.24, 34.25
Cases cited: Blount Inc v Registrar of Trade Marks (1998) 83 FCR 50 - cited
Austereo Pty Ltd v DMG Radio (Australia) Pty Ltd (2004) 209 ALR 93 – cited
Ocean Spray Cranberries Inc v Registrar of Trade Marks (2000) 47 IPR 579 – cited
Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 – cited
NV Sumatra Tobacco Trading Company v British American Tobacco Services Ltd (2011) 198 FCR 435; 283 ALR 743 – cited
Allesch v Maunz (2000) 203 CLR 172 – cited and quoted
Coal & Allied v AIRC (2000) 203 CLR 194 – cited and quoted
Lomas v Winton Shire Council [2003] AIPC 91‑839 – cited
Southern Cross Refrigerating Company v Toowoomba Foundry Pty Ltd (1953) 91 CLR 592 – cited
Food Channel Network Pty Ltd v Television Food Network GP (2010) 185 FCR 9 – cited
Kabushiki Kaisha Universal v Aristocrat Leisure Industries Pty Ltd BC9800472 [1998] AIPC 91‑396 – cited and quoted
Date of hearing: 8 October 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 75
Counsel for the Applicant: Mr M Jones
Solicitor for the Applicant: Ms K Stonier, Griffith Hack Lawyers
Counsel for the Respondent: Mr B McEniery
Solicitor for the Respondent: Mr M Metzeling, I P Gateway Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 391 of 2014
BETWEEN:

DONZENAC PTY LTD
Applicant
AND:

MCV ENVIROWORKS PTY LTD
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

20 APRIL 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The time for filing an appeal in the form of the notice of appeal annexed as KAS‑13 to the affidavit of Kellie Anne Louise Stonier sworn 21 July 2014 from the decision of the Delegate of the Registrar of Trade Marks dated 14 May 2014 and described as Decision 2014 ATMO42 is extended to and including Friday, 24 April 2015. 

2.The applicant pay the costs of the respondent of and incidental to the application. 

Note:    Entry of…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Donzenac Pty Ltd v MCV Enviroworks Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2015] FCA 361
Decision Date

CaseChat Overview and Summary

Donzenac Pty Ltd sought an extension of time to appeal a decision of the Delegate of the Registrar of Trade Marks, which had rejected their application to register a trade mark. The matter was heard in the Federal Court of Australia. The primary issue before the Court was whether the applicant had demonstrated sufficient grounds for an extension of time under section 56 of the Trade Marks Act 1995 (Cth). This involved assessing the principles applicable to exercising discretion under rule 34.25 of the Federal Court Rules 2011 for extending time to file a notice of appeal. The Court also needed to consider the nature of such an appeal.

In considering the application, the Court applied the principles set out in relevant case law, focusing on whether the applicant had acted with due diligence and whether there were any exceptional circumstances justifying an extension. The Court determined that the applicant had provided adequate explanations for the delay and had demonstrated that they had acted with reasonable promptness and diligence once the grounds for appeal became apparent. The Court also noted that there were no significant prejudice to the respondent if the extension was granted. The Court found that the application met the criteria for an extension of time.

Consequently, the Court granted the application for an extension of time, allowing the appeal to be filed by a specified date. Additionally, the Court ordered the applicant to pay the costs of the respondent associated with the application. The precise terms and conditions of the order are detailed in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The time for filing an appeal in the form of the notice of appeal annexed as KAS‑13 to the affidavit of Kellie Anne Louise Stonier sworn 21 July 2014 from the decision of the Delegate of the Registrar of Trade Marks dated 14 May 2014 and described as Decision 2014 ATMO42 is extended to and including Friday, 24 April 2015.

2. The applicant pay the costs of the respondent of and incidental to the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.