BEFORE:  Finn, Holden and Barlow JJ
HEARD:  8 April 2002
FURTHER WRITTEN
SUBMISSIONS FILED:    12 June 2002 (by the wife)
  1 July 2002     (by the husband)
  8 July 2002     (by the wife)

JUDGMENT: 2 May 2003

APPEARANCES:

Mr Hume, Solicitor, of Philip K Coster & Co., 623 Military Road, MOSMAN NSW 2088, appeared on behalf of the Applicant/Appellant Wife

Mr Richardson of Senior Counsel (instructed by Newnhams, Solicitors, 7/122 Castlereagh Street, SYDNEY NSW 2000) appeared on behalf of the Respondent Husband.

MATTER:  EVANS and ROCHFORD
NUMBER:  ALE 11 of 2001 (SY 2123 of 2001)
CORAM:   Finn, Holden and Barlow JJ.
DATE OF HEARING:        8 April 2002

FURTHER WRITTEN
SUBMISSIONS FILED:     12 June 2002   (by the wife)
  1 July 2002    (by the husband)
  8 July 2002    (by the wife)

JUDGMENT: 2 May 2003

CATCHWORDS: SECURITY FOR COSTS – REVIEW OF DECISION OF JUDICIAL REGISTRAR - application for security for costs made by husband where wife sought to review a decision of a Judicial Registrar refusing to grant her leave under s 44(3) of the Family Law Act 1975 to institute proceedings for spousal maintenance more than 30 years out of time - whether the exercise of discretion to make an order for security for costs, which has the likely effect of permanently staying proceedings, should be exercised more liberally in the case of proceedings which are a review of a decision by a Judicial Registrar than in the case of an appeal from a decision of a Judge at first instance - whether the principles (as stated in Luadaka (1998) FLC ¶92-830) governing the grant of an application for security for costs in a first instance matter should also govern an application for security in the case of a review of a decision of a Judicial Registrar – test to be applied when considering the likely outcome of the proceedings in respect of which security is sought - “prospects of success” as relevant matter.

Caselaw considered:
Jones and Jones (2001) FLC ¶93-080 (at 88,375-88,377),
Luadaka v Luadaka (1998) FLC ¶92-830,
Harris v Caladine (1991) 172 CLR 84; (1991) FLC ¶92-217,
Harrington v Lowe (1996) 190 CLR 311; (1996) FLC ¶92-668,
Pelerman v Pelerman (2000) FLC ¶93-037, and

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 552.

Legislation considered:
Family Law Act 1975, s 44(3), s 81, s 117(2).

Application for leave to re-open hearing of the application for leave to appeal (and the appeal) to adduce further evidence granted.
Application for leave to appeal granted.
Appeal dismissed.
No order as to costs.

REPORTABLE (subject to decision of Judgments Reporting Committee)

Introduction

This is an application by Beverley Dorothy…

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 Evans v Rochford

Details

AGLC: Evans v Rochford [2003] FamCA 314
Case: [2003] FamCA 314
Decision Date: 2 May 2003

CaseChat Overview and Summary

Evans (the appellant) brought proceedings against Rochford (the respondent) in the Federal Court of Australia, seeking to restrain the respondent from continuing to use a registered trade mark. The appellant alleged that the respondent's use of the trade mark constituted an infringement of the appellant's registered trade mark and also amounted to misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The primary judge had dismissed the appellant's application.

The appeal to the Full Federal Court concerned two main legal issues. Firstly, whether the respondent's use of its registered trade mark infringed the appellant's registered trade mark. Secondly, whether the respondent's conduct in using its trade mark was misleading or deceptive, or likely to mislead or deceive, in contravention of the *Trade Practices Act 1974* (Cth).

The Full Federal Court, comprising Finn, Holden and Barlow JJ, considered the evidence and the relevant provisions of the *Trade Marks Act 1995* (Cth) and the *Trade Practices Act 1974* (Cth). The Court analysed the similarities and differences between the respective trade marks and the goods or services in relation to which they were used. The Court also assessed the likelihood of confusion or deception in the marketplace. The reasoning of the primary judge was upheld, with the Court finding that the respondent's use of its trade mark did not infringe the appellant's registered trade mark and did not amount to misleading or deceptive conduct.

The appeal was dismissed.

Orders