High Court Rules (Amendment) (Cth)

High Court Rules.                                                75 

JUDICIARY ACT 1903–1959.

HIGH COURT RULES.

Statutory Rules 1959, No. 107.(a)

Definitions.

1. Order 66, rule 1, is amended by omitting the definition of “ a law relating to industrial property ” and inserting in its stead the following definition:—

“ ‘ a law relating to industrial property ’ means a law of the Commonwealth or a Territory relating to Patents, Trade Marks, Designs or Copyright and includes—

(a) a provision of an Act repealed by the Patents Act

1952-1955 in its application by virtue of sub-section (3.) of section 5 of that last-mentioned Act; and

(b)a provision of an Act repealed by the Trade Marks Act 1955-1958 in its application by virtue of sub-section (4.) of section 5 of that last-mentioned Act;

Application of Order.

2. Order 66, rule 2, is amended by inserting after the words “ Order 66a ” the words “ or Order 66b ”.

Application of other Orders.

3. Order 66, rule 3, is amended by inserting after the words “ Order 66a ” the words “ and Order 66b”.

4. After Order 66a the following Order is inserted:—

“ ORDER 66b.

Proceedings under the Trade marks Act 1955-1958.

Definitions.

“ 1. In this Order, unless the contrary intention appears—

‘ proceeding ’ includes an appeal (other than an appeal under section 116 of the Act), application, case stated or question reserved under the Act;

‘ the Act ’ means the Trade Marks Act 1955-1958, and includes the regulations made under that Act;

‘ the Court ’ includes the Court exercising jurisdiction as the Appeal Tribunal under the Act;

‘ the Registrar of Trade Marks ’ means the Registrar of Trade Marks under the Act.

Application of this Order.

“ 2. This Order applies to all proceedings in the Court under the Act, subject to any special order made by the Court or a Justice.

Application of other Orders.

 “3. Order 60, rules 6 and 7, and Order 64 and, subject to this Order, the other provisions of these Rules, other than Order 66, apply, so far as is practicable, to proceedings to which this Order applies.

Applications and appeals.

“ 4.—(1.) Unless otherwise required or authorized by any law, an appeal from a decision, determination, order or direction of the Registrar of Trade Marks to the Court or an application to the Court under the Act shall be made by motion on notice.

(a) Made under the Judiciary Act 1903–1959 on 16th December, 1959; notified in the Gazette on 31st December, 1959.

76 JUDICIARY ACT 1903-1959—

“ (2.) In the case of an appeal, the notice shall be filed within twenty-one days after the date of the decision, determination, order or direction of the Registrar and shall state—

(a) whether the appeal is from the whole or a part only of the decision, determination, order or direction appealed from and, if it is from a part only, what part; and

(b)the grounds of the appeal.

“ (3.) The Court or a Justice may, on such terms and conditions as it or he thinks fit, allow a notice to be amended.

“ (4.) On the hearing of an appeal, the appellant shall be limited to the grounds stated in the notice or, if the Court has allowed the notice to be amended, to the grounds stated in the notice as amended.

Notice of appeals and applications.

“ 5.—(1.) Notice of an appeal or application to the Court under the Act shall be given to the Registrar of Trade Marks and any other person who may be prejudicially affected by the appeal or application forthwith after the notice of motion by which the appeal or application is brought has been filed.

“ (2.) The notice shall be given by serving or delivering a copy of the notice of motion upon or to the person to whom the notice is to be given.

“ (3.) The service or delivery shall be effected not less than twenty-one clear days before the day on which the appeal or application is to come before the Court for hearing.

Transmission of documents to Court by Registrar of Trade Marks.

“ 6. Where notice of an appeal against a decision, determination, order or direction of the Registrar of Trade Marks is given to the Registrar of Trade Marks under the last preceding rule, the Registrar of Trade Marks shall, within fourteen days after receiving the notice—

(a)transmit to the Registrar any documents in his possession which are necessary for the hearing of the appeal, together with a list of those documents; and

(b)give notice in writing to the appellant that the documents have been so transmitted.

Affidavits to be used on appeals and applications.

“ 7.—(1.) A copy of an affidavit intended to be used by a person upon the hearing of an appeal or application to the Court under the Act shall be served or delivered by him upon or to every other party to the appeal or application and each person to whom notice of the appeal or application has been given.

“ (2.) Service or delivery of an affidavit under the last preceding sub-rule shall be effected within seven days of the date on which the affidavit was filed in the Court and, subject to the next succeeding sub-rule, not less than fourteen clear days before the day on which the appeal or application is to come before the Court for hearing.

“ (3.) An affidavit in reply shall be filed and served or delivered within a reasonable time before the day on which the appeal or application is to come before the Court for hearing.

                                                      High Court Rules.  77

Service of documents.

“ 8. A document to be served upon or delivered to the Registrar of Trade Marks may be served or delivered by sending it in a prepaid letter through the post properly addressed to the Registrar of Trade Marks at his office and, if so sent, the document shall be deemed to have been served or delivered at the time when the letter containing it would be delivered in the ordinary course of post.

Assistance to Court by Registrar of Trade Marks.

“ 9.—(1.) In proceedings before the Court, the Registrar of Trade. Marks may appear and be heard, but he shall not be deemed to be a party to the proceedings except in the case of an appeal from a decision, determination, order or direction of the Registrar of Trade Marks not affecting a person other than the appellant.

“ (2.) The Registrar of Trade Marks may submit to the Court a statement in writing signed by him giving particulars—

(a)of any proceedings before him in relation to the matter in issue;

(b)of the grounds of a decision, determination, order or direction given or made by him in respect of those proceedings; and

(c) of the practice of his office in like cases.

“ (3.) The Registrar of Trade Marks shall deliver to the parties copies of any statement he submits to the Court.

“ (4.) The Court may make such use of the statement as the Court may think just.

Registrar of Trade Marks not required to give notice.

“ 10. If the Registrar of Trade Marks elects or is required by the Court to appear in proceedings before the Court, the Registrar of Trade Marks shall not, except by the direction of the Court, be required to give notice of the grounds of any objection he may think fit to take or of any evidence he may think fit to place before the Court.

Cross-appeal.

“ 11.—(1.) A respondent who desires to appeal from a part of a decision, determination, order or direction from which the appellant has appealed, or to seek a variation of a part of that decision, determination, order or direction, need not institute a substantive appeal but may, within twenty-one days after the service upon him of notice of the appeal, or within such further or other time as the Court or a Justice fixes—

(a)file in the Registry in which the appeal is pending a notice of cross-appeal; and

(b)serve a copy of the notice upon the appellant and any other person affected by the relief which the respondent seeks.

“ (2.) The notice of cross-appeal shall state—

(a)what part of the decision, determination, order or direction the respondent cross-appeals from or contends should be varied; and

(b) the grounds of the cross-appeal and the relief he seeks.

“ (3.) It is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of any part of the decision, determination, order or direction actually pronounced or made.

“ (4.) Sub-rules (3.) and (4.) of rule 4 of this Order shall apply in the case of a cross-appeal mutatis mutandis.

78 JUDICIARY ACT 1903-1959—

Application for order under section 74 (7.) of the Trade Marks Act.

“ 12. An application for an order under sub-section (7.) of section 74 of the Act—

(a)shall be made by summons; and

(b)may be heard and determined by a Justice in Chambers.

Summons for directions.

“ 13.—(1.) A person who institutes any proceedings under the Act may, before the proceedings are set down for hearing, take out a summons for directions under Order 31.

“ (2.) The directions may make provision with respect to the time of hearing and the manner in which evidence may be given.

Case stated and question reserved under section 113 of the Trade Marks Act.

“ 14.—(1.) The procedure by which a case shall be stated under section 115 of the Act for the consideration of a Full Court of the High Court shall, unless the Appeal Tribunal under the Act otherwise directs, be in accordance with this rule.

“ (2.) The case shall—

(a)be prepared by the appellant;

(b)be divided into paragraphs numbered consecutively;

(c) state the questions arising for the consideration of the Full Court;

(d)state such facts and refer to, or have annexed to it, such documents as are necessary to enable the Full Court to decide the questions raised by the case;

(e)be signed by the Justice constituting the Appeal Tribunal; and

(f) be filed by the appellant in the Registry in which the proceeding is then pending.

“ (3.) The case shall be prepared and filed within such respective times as the Justice constituting the Appeal Tribunal directs.

“ (4.) The appellant shall, forthwith after the case stated is filed, cause to be prepared, in like manner and form as is required in the case of transcripts under Order 70, a transcript containing a copy of the case, the documents, if any, annexed to the case and an index.

“ (5.) The transcript shall be settled by the Registrar of the Registry in which the case has been filed.

“ (6.) Unless the Court or a Justice otherwise orders, the appellant shall set down a case stated under section 115 of the Act for hearing at the next available sittings of the Full Court at the place where the proceedings are pending.

“ (7.) The appellant shall give to the respondent fourteen days’ notice of the date of the sittings for which the case stated has been set down for hearing.

“ (8.) The Court or a Justice may direct that a case stated shall be heard at a sittings of the Full Court appointed to be held at a place other than that at which the case stated has been set down for hearing.

“ (9.) If the appellant does not file the case stated, or set down the case stated for hearing, as prescribed under this rule, the respondent may apply to the Court or a Justice, by motion upon notice, for an order dismissing the appeal for want of prosecution.

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“ (10.) A question may be reserved, under section 115 of the Act, for the consideration of a Full Court of the High Court by a case stated in accordance with the preceding provisions of this rule or in such other manner as the Justice constituting the Appeal Tribunal under the Act deems expedient.”.

OWEN DIXON C. J.
EDWARD A. McTIERNAN J.
W. K. FULLAGAR J.
(L.S.)	F. W. KITTO J.
A. R. TAYLOR J.
DOUGLAS I. MENZIES J.
W. J. V. WINDEYER J.

M. Doherty, Principal Registrar.