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Karlsson v Griffith University

Karlsson v Griffith University

Case [2020] NSWCA 176 14 August 2020

Jurisdiction

Appeal

Statutory Construction

Standing

Administrative Law

Statutory Interpretation

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Karlsson v Griffith University [2020] NSWCA 176
Hearing dates: 14 August 2020
Date of orders: 14 August 2020
Decision date: 14 August 2020
Before: Payne and White JJA
Decision:
Dismiss the summons seeking leave to appeal for want of jurisdiction.

Catchwords:
COURTS – jurisdiction – appeal requiring leave to appeal from the Common Law Division – Trade Marks Act 1995 (Cth) – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Trade Marks Act – summons seeking leave to appeal dismissed for want of jurisdiction

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Jurisdiction of Courts (Cross-vesting) Act1987 (Cth)
Trade Marks Act 1955 (Cth)
Trade Marks Act 1995 (Cth)
Trade Practices Act 1974 (Cth)

Cases Cited:
Bramco Electronics Pty Ltd v ATF Mining Electrics Proprietary Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392
CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
Karlsson v Griffith University [2019] NSWSC 1335
Karlsson v Griffith University [2020] NSWSC 365
Morris Finance Ltd v Brown [2016] NSWCA 343
Morris Finance Ltd v Brown (2016) 93 NSWLR 551
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50
Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572
Woolworths Ltd v Lister [2004] NSWCA 292

Texts Cited:
Dennis Pearce, Interpretation Acts in Australia, (1st ed 2018)
Mark Davison, Ian Horak, Shanahan's Australian Law of Trade Marks and Passing Off (online ed, 2020)

Category: Principal judgment
Parties: Annika Karlsson (Applicant)
Griffith University (Respondent)
Representation:
Counsel:
Plaintiff (in person)
T L Hollo (Respondent)
Solicitors:
Bartley Cohen Litigation Lawyers (Respondent)

File Number(s): 2020/00135070
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1335; [2020] NSWSC 365

Date of Decision:

01 October 2019

Before:

Adamson J, Wright J

File Number(s):

2019/229499

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ms Karlsson, the applicant, sought leave to appeal from two decisions of the Supreme Court in Karlsson v Griffith University [2019] NSWSC 1335 (the first judgment) and Karlsson v Griffith University [2020] NSWSC 365 (the second judgment).

In the first judgment, Adamson J struck out the applicant’s pleading and set out a regime to facilitate the matter being re-pleaded. In the second judgment, Wright J refused the applicant leave to file a proposed further amended statement of claim dated…

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 Karlsson v Griffith University

Details

AGLC: Karlsson v Griffith University [2020] NSWCA 176
Case: [2020] NSWCA 176
Decision Date: 14 August 2020

CaseChat Overview and Summary

The applicant, Karlsson, sought leave to appeal to the Court of Appeal from a decision of the Common Law Division. The respondent was Griffith University. The dispute concerned an appeal that arose under the *Trade Marks Act 1995* (Cth).

The central legal issue before the Court of Appeal was whether it possessed jurisdiction to hear the appeal. This involved determining the applicability of section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), which prohibits the institution and determination of certain appeals other than in a federal court, and whether the appeal involved a matter arising under the *Trade Marks Act*.

The Court of Appeal reasoned that section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act* was a bar to its jurisdiction in this instance. It concluded that the appeal was one that could not be instituted or determined by a State Supreme Court, and therefore, the Court of Appeal lacked the necessary jurisdiction to entertain the application for leave to appeal.

Consequently, the summons seeking leave to appeal was dismissed for want of jurisdiction.

Orders

Orders of the court

Dismiss the summons seeking leave to appeal for want of jurisdiction.

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.

Citations

AGLC Citation

Karlsson v Griffith University [2020] NSWCA 176

Most Recent Citation

Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206

Cases citing this decision · 10 of 10 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 13

…) v Pascoe (2016) 349 ALR 193 at 197 [11], [14]-[15]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551 at 556 [22]-[25]; Karlsson v Griffith University (2020) 103 NSWLR 131 at 133-135 [10]-[14]; Guan v Li (2022) 405 ALR 701 at 709 [41]. [150]See, eg, Herzfeld and Prince, Interpretation , 3rd ed (2024) at 8-10 [1.50]. [15…
Karlsson v Griffith University, in the matter of Karlsson
[2024] FCA 205 Para 14

…l from the two decisions. The applicant’s application was dismissed by the Court of Appeal for want of jurisdiction: Karlsson v Griffith University [2020] NSWCA 176; 103 NSWLR 131. The applicant later applied to the High Court for special leave to appeal. Her application was refused: Karlsson v Griffith University…
Bolinger v Bell (No 2)
[2022] NSWSC 1495

…nghanns (1999) 149 FLR 247 Iphostrou & Iphostrou [2011] FamCA 20 Karlsson v Griffith University (2020) 103 NSWLR 131; [2020] NSWCA 176 Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 Leventis & Leventis [2021] FedCFamC1F 46 Lovine & Connor (2012) FLC 93-515; [2012] FamCFAFC 168 Macrina & Macrina [2021] FedCFa…
Guan v Li
[2022] NSWCA 173 Para 43

…In Karlsson v Griffith University (2020) 103 NSWLR 131; [2020] NSWCA 176, Payne and White JJA considered whether a claim was one arising under the Trade Marks Act 1995 (Cth). Their Honours observed that s 7 of the Cross-Vesting Act presupposed that an appeal may contain a number of matters for determination and ope…
Karlsson v Griffith University
[2022] FCA 997 Para 8

…is Court pursuant to s 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the Schedule to that Act: Karlsson v Griffith University (2020) 103 NSWLR 131. Their Honours made no order as to costs on the basis that the Court itself had raised the jurisdictional point.…
Karlsson v Griffith University
[2022] FCA 591 Para 6

…the TM Act, can only be heard or determined by the Full Court of this Court, or with special leave of the High Court: Karlsson v Griffith University (2020) 103 NSWLR 131.…
LCA Marrickville Pty Limited v Swiss Re International SE
[2022] FCAFC 17

…taff Superannuation Pty Ltd (No 3) [2007] FCA 2018 Kuru v State of New South Wales (2008) 236 CLR 1 Lange v Queensland Building Services Authority [2012] 2 Qd R 457 Lasermax Engineering Pty Ltd v QBE Insurance (Aust) Ltd (2005) 13 ANZ Ins Cas 61-643 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 Le…
Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases)
[2021] FCA 1206

…2; [2012] 2 Qd R 337 Karlsson v Griffith University [2020] NSWCA 176; (2020) 103 NSWLR 131 Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 A…
Aardwolf Industries LLC v Tayeh
[2020] NSWCA 301 Para 94

…the Trade Marks Act 1955 (Cth) does not prevent its operation to matters arising under the Trade Marks Act 1995 (Cth): Karlsson v Griffith University [2020] NSWCA 176. The prohibition is broader than it might first appear; for example, it extends to the purely contractual claims in Bramco Electronics Pty Ltd v ATF…
Edwards v Gillespie
[2020] NSWDC 475 Para 8

…In Karlsson v Griffith University [2020] NSWCA 176 at [7], the Court emphasised (citing Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [20]) that it is critical to determine “at the outset” whether the court whose jurisdiction is sought to be invoked in fact has that jurisdiction. The obligation of t…

View all 10 citing cases →

Cases cited in this decision · 18 of 18 shown

Karlsson v Griffith University
[2020] NSWSC 365 Para 2

…from two decisions of the Supreme Court in Karlsson v Griffith University [2019] NSWSC 1335 ( the first judgment ) and Karlsson v Griffith University [2020] NSWSC 365 ( the second judgment ).…
Boensch v Pascoe
[2019] HCA 49 Para 8

…Eberstaller v Poulos , at [25]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343, at [21]-[23]; Boensch v Pascoe ; [2016] NSWCA 191; (2016) 311 FLR 101, at [10]. [2] 2. Subject to the satisfaction of the matters referred to in s 7(7) of the Cross-vesting Act after the Court has commenced “to hear a p…
Karlsson v Griffith University
[2019] NSWSC 1335 Para 2

…The applicant sought leave to appeal from two decisions of the Supreme Court in Karlsson v Griffith University [2019] NSWSC 1335 ( the first judgment ) and Karlsson v Griffith University [2020] NSWSC 365 ( the second judgment ).…
Morris Finance Ltd v Brown
[2016] NSWCA 343 Para 8

…n and determined by the Full Court of the Federal Court of Australia: Eberstaller v Poulos , at [25]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343, at [21]-[23]; Boensch v Pascoe ; [2016] NSWCA 191; (2016) 311 FLR 101, at [10]. [2] 2. Subject to the satisfaction of the matters referred to in s 7…
Boensch v Pascoe
[2016] NSWCA 191 Para 8

…ourt of Australia: Eberstaller v Poulos , at [25]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343, at [21]-[23]; Boensch v Pascoe ; [2016] NSWCA 191; (2016) 311 FLR 101, at [10]. [2] 2. Subject to the satisfaction of the matters referred to in s 7(7) of the Cross-vesting Act after the Court has co…
CGU Insurance Ltd v Blakeley
[2016] HCA 2 Para 13

…In CGU Insurance Limited v Blakeley (2016) 259 CLR 339 at 351-2; [2016] HCA 2 at [29] the High Court per French CJ, Kiefel, Bell and Keane JJ elaborated on the statement of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett about the words “arising under” in s 76(ii) of the Co…
Eberstaller v Poulos
[2014] NSWCA 211 Para 7

…As this Court reiterated in Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [20], it is critical to determine at the outset whether a court whose jurisdiction is sought to be invoked in fact has jurisdiction. There is no doubt that the judges of the Common Law Division in the first judgment and the se…
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd
[2013] NSWCA 392 Para 9

…In Bramco Electronics Pty Ltd v ATF Mining Electrics Proprietary Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392 Meagher JA held (at [5]) that the expression “arising under” in s 7(5) is to be given the same meaning as it has in Chapter III of the Constitution.…
Woolworths Ltd v Lister
[2004] NSWCA 292 Para 20

…In Woolworths Ltd v Lister [2004] NSWCA 292 Handley JA (Beazley and Ipp JJA agreeing) dealt with the cognate provision to s 10 of the federal Act, s 68(3)(a) of the Interpretation Act 1987 (NSW). His Honour said:…
Johnson Tiles Pty Ltd v Esso Australia Ltd
[2001] FCA 458 Para 27

…n. The mere fact that a claim is struck out as untenable does not mean it is colourable: Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 French J at [88] (Beaumont and Finkelstein JJ agreeing). We do not understand the judgment of Lindgren J in Cook v Pasminco Ltd to p…
Cook v Pasminco Ltd (No 3)
[2001] FCA 81 Para 26

…d bona fide are colourable, citing Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 and Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677 at [16]. The respondent relied on findings made by Wright J in summarily dismissing the proceeding that the proceeding had no reasona…
Cook v Pasminco Ltd (No 2)
[2000] FCA 1819 Para 26

…nable, or not pursued bona fide are colourable, citing Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 and Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677 at [16]. The respondent relied on findings made by Wright J in summarily dismissing the proceeding that the proceeding had…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2000] FCA 1572 Para 27

…t a claim is struck out as untenable does not mean it is colourable: Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 French J at [88] (Beaumont and Finkelstein JJ agreeing). We do not understand the judgment of Lindgren J in Cook v Pasminco Ltd to provide any differ…
Cook v Pasminco Ltd
[2000] FCA 677 Para 26

…ourable, citing Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 and Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677 at [16]. The respondent relied on findings made by Wright J in summarily dismissing the proceeding that the proceeding had no reasonable prospects of…
LNC Industries Ltd v BMW (Australia) Ltd
[1983] HCA 31

…ion invested in a court of a State pursuant to s 77(iii) of the Constitution, read with s 76(ii) [citing LNC industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581]…” (some footnotes omitted))…
Felton v Mulligan
[1971] HCA 39 Para 12

…In Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 each of the members of the Court addressed the differences in language between a “matter ... involving its interpretation” in s 76(i) and “matter ... arising under…” in s 76(ii) of the Constitution. Barwick CJ (part of the majority in that case), at 374, exp…
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett
[1945] HCA 50 Para 11

…etation of s 76(ii) of the Constitution, Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50 said at 154:…
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation
[1987] FCA 686 Para 26

…rguable, doomed to fail, untenable, or not pursued bona fide are colourable, citing Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 and Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677 at [16]. The respondent relied on findings made by Wright J in summarily dismissing…

Legislation cited in this decision · 8

Acts Interpretation Act 1901 (Cth)
1 mention (from Para 15)
Interpretation Act 1987 (NSW)
1 mention (from Para 20)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
1 mention (from Para 5)
Reprints Act 1972 (NSW)
1 mention
Trade Marks Act 1955 (Cth)
1 mention (from Para 15)
Trade Marks Act 1995 (Cth)
1 mention (from Para 7)
Trade Marks Amendment (Madrid Protocol) Act 2000 (Cth)
1 mention
Trade Practices Act 1974 (Cth)
1 mention

Medium Neutral Citation:	Karlsson v Griffith University [2020] NSWCA 176
Hearing dates:	14 August 2020
Date of orders:	14 August 2020
Decision date:	14 August 2020
Before:	Payne and White JJA
Decision:	Dismiss the summons seeking leave to appeal for want of jurisdiction.
Catchwords:	COURTS – jurisdiction – appeal requiring leave to appeal from the Common Law Division – Trade Marks Act 1995 (Cth) – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Trade Marks Act – summons seeking leave to appeal dismissed for want of jurisdiction
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Jurisdiction of Courts (Cross-vesting) Act1987 (Cth) Trade Marks Act 1955 (Cth) Trade Marks Act 1995 (Cth) Trade Practices Act 1974 (Cth)
Cases Cited:	Bramco Electronics Pty Ltd v ATF Mining Electrics Proprietary Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392 CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2 Cook v Pasminco Ltd (2000) 99 FCR 548; [2000] FCA 677 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 Karlsson v Griffith University [2019] NSWSC 1335 Karlsson v Griffith University [2020] NSWSC 365 Morris Finance Ltd v Brown [2016] NSWCA 343 Morris Finance Ltd v Brown (2016) 93 NSWLR 551 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50 Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 Woolworths Ltd v Lister [2004] NSWCA 292
Texts Cited:	Dennis Pearce, Interpretation Acts in Australia, (1st ed 2018) Mark Davison, Ian Horak, Shanahan's Australian Law of Trade Marks and Passing Off (online ed, 2020)
Category:	Principal judgment
Parties:	Annika Karlsson (Applicant) Griffith University (Respondent)
Representation:	Counsel: Plaintiff (in person) T L Hollo (Respondent) Solicitors: Bartley Cohen Litigation Lawyers (Respondent)
File Number(s):	2020/00135070
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1335; [2020] NSWSC 365 Date of Decision: 01 October 2019 Before: Adamson J, Wright J File Number(s): 2019/229499