Re the Australian Milk Ferment Pty Ltd

The applicants, Charles James Carroll, George Reginald Hall, and Arthur Griffith, trading as The Australian Milk Ferment Proprietary, sought a trade mark. Their application was opposed by La Société Anonyme Le Ferment, a foreign corporation not resident in Australia. The applicants applied to the High Court for an order requiring the opponents to provide security for costs.

The central legal issue before the High Court was whether it possessed the jurisdiction to order an opponent to provide security for costs when the trade mark application and opposition were still pending before the Registrar of Trade Marks. The applicants contended that the Court had an alternative power to grant such an order, particularly as the opponents were not registered or carrying on business within the Commonwealth.

Isaacs J. held that the jurisdiction conferred by section 46 of the *Trade Marks Act 1905* upon the Registrar, the Law Officer, and the Court to order security for costs was referable only to matters pending before those respective tribunals. Consequently, as the trade mark application and opposition were still before the Registrar, the Court lacked the jurisdiction to make the requested order. His Honour also expressed doubt as to whether an order for security for costs could be made against a party solely on the ground of residence outside a particular State but within the Commonwealth, suggesting such a distinction might not constitute a valid legal decision.

The summons was dismissed with costs.