Re Trade Mark of Ryan Lewis and Company Pty Ltd

The Autotone Company, a New York corporation, sought to rectify the Register of Trade Marks by expunging a trade mark registered in Victoria by Ryan Lewis & Co. Proprietary Ltd. The latter company had since been dissolved. The dispute arose when the Registrar of the High Court refused to file an affidavit in support of the Autotone Company's motion, which had been sworn in New York before a notary public.

The primary legal issue before the High Court was whether the affidavit, sworn in the United States and authenticated by the seal of the Supreme Court of New York and a British pro-consul, could be received in evidence in the High Court without further authentication, and consequently, be filed in the Court's Registry.

Gavan Duffy J. reasoned that the affidavit was admissible under section 116 of the Victorian Evidence Act 1915, which permitted affidavits sworn outside Victoria before a person authorised to administer oaths in that place. The Act further stipulated that if the authority of such a person was verified by a British pro-consul or a certificate from a superior court of the foreign country, the affidavit would be admissible without further proof of the official's seal or signature. The affidavit in question met these requirements, having been verified by both the Clerk of the Supreme Court of New York and the British Pro-Consul at New York. The Court also noted that, at common law, affidavits sworn before a foreign notary public could be received in evidence without additional authentication.

The Court ordered that the affidavit be filed.