Trade Marks Amendment Act 1976 (Cth)

TRADE MARKS AMENDMENT ACT 1976

No. 163 of 1976

An Act to amend the Trade Marks Act 1955 and for related purposes.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—

Short title, &c.

1. (1) This Act may be cited as the Trade Marks Amendment Act 1976.

(2) The Trade Marks Act 1955 is in this Act referred to as the Principal Act.

Commencement.

2. (1) Sections 3, 4, 7 and 10 shall come into operation on a date to be fixed by Proclamation, not being earlier than the day that is the commencing day for the purposes of the Federal Court of Australia Act 1976.

(2) The remaining provisions of this Act shall come into operation on the day on which this Act receives the Royal Assent.

Definitions.

3. Section 6 of the Principal Act is amended—

(a) by omitting from the definition of “Australia” in sub-section (1) the words “the Territories to which this Act extends” and substituting the words “Norfolk Island “; and

(b) by inserting in sub-section (1), after the definition of “person”, the following definition:—

“‘prescribed court’ means the Supreme Court of a State, the Supreme Court of the Australian Capital Territory, the Supreme Court of the Northern Territory of Australia or the Supreme Court of Norfolk Island;”.

4. After section 6 of the Principal Act the following section is inserted:—

References to prescribed courts.

“6a. A reference in this Act to a prescribed court shall be read—

(a) in relation to the institution of an appeal or other proceeding, as a reference to a prescribed court having jurisdiction to hear and determine the appeal or other proceeding; and

(b) in relation to the exercise of jurisdiction, as a reference to a prescribed court exercising jurisdiction in accordance with section 112.”.

5. Section 8 of the Principal Act is repealed and the following section substituted:—

Application of Act to Norfolk Island.

“8. (1) This Act extends to Norfolk Island.

“(2) An application for registration of a trade mark is not receivable under a law (other than this Act) in force in Norfolk Island.”.

Limitation of right of appeal.

6. Section 103 of the Principal Act is amended by adding at the end thereof the following sub-section:—

“(5) Where an application has been made to the Administrative Appeals Tribunal, whether before or after the commencement of this sub-section, for a review of a decision of the Comptroller-General of Customs made under sub-section (2), a person is not entitled to appeal to the Minister for Business and Consumer Affairs against that decision.”.

7. Part XV of the Principal Act is repealed and the following Part substituted:—

“PART XV—JURISDICTION AND POWERS OF COURTS

Interpretation.

“111. In this Part, ‘decision’, in relation to the Registrar, includes—

(a) an order of the Registrar;

(b) a refusal by the Registrar, under section 46, to accept an application; and

(c) an acceptance, subject to conditions or limitations, by the Registrar, under section 46, of an application.

Jurisdiction of prescribed courts.

“112. (1) Subject to sub-section (2), every prescribed court has jurisdiction to hear and determine proceedings that, under this Act, may be instituted in a prescribed court.

“(2) A prescribed court, being the Supreme Court of a Territory, does not have jurisdiction to hear and determine a proceeding referred to in sub-section (1) unless, at the time of the institution of the proceeding, the person instituting the proceeding, being an individual, is resident in the Territory, or, being a corporation, has its principle place of business in the Territory.

“(3) The jurisdiction of a prescribed court under this section shall be exercised by a single Judge.

Transfer of proceedings.

“113. (1) A prescribed court in which proceedings have been instituted under this Act may, if the court thinks fit, upon application of a party made at any stage in the proceedings, by order, transfer the proceedings to another prescribed court having jurisdiction to hear and determine the proceedings.

“(2) Where proceedings are transferred from a court in pursuance of this section—

(a) all documents filed of record in that court shall be transmitted by the Registrar or other proper officer of that court to the Registrar or other proper officer of the court to which the proceedings are transferred; and

(b) the court to which the proceedings are transferred shall proceed as if the proceedings had been originally instituted in that court and as if the same proceedings had been taken in that court as had been taken in the court from which the proceedings were transferred.

Appeals from prescribed courts.

“114. (1) Subject to sub-section (2), an appeal lies to the Federal Court of Australia from a judgment or order of a prescribed court exercising jurisdiction under this Act.

“(2) Where the judgment or order of a prescribed court appealed from was pronounced or made in the exercise of its jurisdiction to hear and determine appeals from decisions or directions of the Registrar, an appeal to the Federal Court of Australia does not lie without leave of that Court.

“(3) An appeal lies to the High Court, with special leave of the High Court, from a judgment or order referred to in sub-section (1).

“(4) Except as provided in the foregoing provisions of this section, no appeal lies from a judgment or order referred to in sub-section (1).

Intervention by Commissioner.

“115. A prescribed court may grant to the Registrar leave to intervene in an appeal to the Court.

Powers of prescribed courts.

“115a. Upon the hearing of an appeal from a decision or direction of the Registrar, the prescribed court may—

(a) admit further evidence, either orally or upon affidavit or otherwise;

(b) permit the examination and cross-examination of witnesses, including witnesses who gave evidence orally or upon affidavit or otherwise at the hearing before the Registrar;

(c) order an issue of fact to be tried in such manner as it directs;

(d) affirm, reverse or modify the decision or direction appealed from;

(e) give such judgment, or make such order, as in all circumstances it thinks fit, or refuse to make an order; and

(f) order a party to pay costs to another party.”.

8. The Principal Act is amended by inserting before Part XVI the following Part:—

“PART XVa—APPLICATION FOR REVIEW OF CERTAIN DECISIONS BY ADMINISTRATIVE APPEALS TRIBUNAL

Application for review.

“116. An application may be made to the Administrative Appeals Tribunal for a review of any of the following decisions made on or after the commencement of this Part:—

(a) a decision of the Registrar under sub-section (2) of section 70, sub-section (1) of section 71 or sub-section (1) of section 127;

(b) a decision of the Registrar under sub-section (1) of section 131 not to extend the time for doing an act or taking a step; or

(c) a decision of the Comptroller-General of Customs under sub-section (2) of section 103, not being a decision in respect of which an appeal has been, whether before or after the commencement of this Part, made to a Minister.

Constitution of Administrative Appeals Tribunal for exercise of powers.

“116a. Notwithstanding sub-section (1) of section 21 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal shall, for the purpose of the exercise of its powers in relation to an application made under section 116 (other than under paragraph (c) of that section) be constituted by a presidential member sitting alone. “.

Consequential amendments.

9. (1) The Principal Act is amended by omitting sub-sections 70(3), 71(2) and 127(2).

(2) The amendments made by this section do not affect any appeal instituted under any of the provisions referred to in sub-section (1) before the commencement of this section, or anything arising out of, or any proceeding incidental to or connected with, any such appeal.

Consequential amendments.

10. (1) The Principal Act is amended as set out in Schedule 1.

(2) The amendments made by this section do not affect any proceeding instituted, under the Principal Act, in the High Court (whether as the Appeal Tribunal under the Principal Act or otherwise) before the date of commencement of this section, or anything arising out of, or any proceeding incidental to or connected with, any such proceeding.

Formal amendments.

11. The Principal Act is amended as set out in Schedule 2.

Amendment of Administrative Appeals Tribunal Act.

12. (1) The Schedule to the Administrative Appeals Tribunal Act 1975 is amended by omitting Part XXVI.

(2) Notwithstanding the amendment made by this section, applications may be made in accordance with the provision omitted by this section in respect of decisions made on or after 1 July 1976 and before the commencement of this section.

SCHEDULE 1 Section 10

CONSEQUENTIAL AMENDMENTS

1. In each of the following provisions of the Principal Act the words “a prescribed court” are substituted for the words “the Appeal Tribunal”, wherever occurring in the provision or, where so indicated, occurring as specified in relation to the provision:—

Sections 19(3), 20(2), 21(5), 23(7), 26(4), 30(3), 36(3), 42(4), 43(4), 46(1), 51, 54(3)(b), 81, 86(3), 139(5) and 142 (first occurring).

2. In each of the following provisions of the Principal Act the words “the prescribed court” are substituted for the words “the Appeal Tribunal”, wherever occurring in the provision or, where so indicated, occurring as specified in relation to the provision:—

Sections 46(2), 48(2), 54(3)(d) and 142 (second and third occurring).

3. In each of the following provisions of the Principal Act the words “a prescribed court” are substituted for the words “the High Court”, wherever occurring in the provision or, where so indicated, occurring as specified in relation to the provision:—

Sections 22(1), (2) (first occurring), (4), (5) (first occurring), 23(1), (2) (second occurring), (3) (second occurring), (6) (first and second occurring), (8) and (9), 56(4), 74(7), 88(2) and (3) (first occurring), 94(1), (2) (first occurring) and (4) and 138.

4. In each of the following provisions of the Principal Act the words “the prescribed court” are substituted for the words “the High Court”, wherever occurring in the provision or, where so indicated, occurring as specified in relation to the provision:—

Sections 22(2) (second occurring) and (5) (second occurring), 23(2) (first occurring), (3) (first and third occurring), (5) and (6) (third and fourth occurring), 88(3) (second occurring) and 94(2) (second occurring).

5. The Principal Act is further amended as set out below:—

Provision	Amendment
Section 23(8)...................................	Omit “shall be made as prescribed by the Rules of Court”.
Section 32(1)...................................	(a) Omit “, the Appeal Tribunal or the High Court” (first occurring), substitute “or a prescribed court”.
(b) Omit “, the Appeal Tribunal or the High Court” (second and third occurring), substitute “or the prescribed court”.
Section 38(1)...................................	Omit “, the Appeal Tribunal or the High Court”, substitute “or a prescribed court”.
Section 58(3)...................................	Omit “, the Appeal Tribunal or a court”, substitute “or a prescribed court”.
Sections 67 and 124(4)....................	Omit “the High Court”, substitute “every prescribed court”.

SCHEDULE 2 Section 11

FORMAL AMENDMENTS

1. The following provisions of the Principal Act are amended by omitting any number expressed in words that is used to identify a section of that Act or of another Act, and substituting that number expressed in figures:—

Sections 5(2) and (4), 6(1) (definitions of “registered user” and “the Official Journal”), 20(3), 23(1), (2) and (3)(b), 48(4), 56(3), 59, 60, 61(1), 71(3), 75, 77(1), 88(1), 92, 93(1) and (2), 94(4), 102(2), 124(2), 135(1), 137(1)(a) and (b) and 138.

2. The following provisions of the Principal Act are amended by omitting the words “of this Act”, “of this section” and “of this sub-section” (wherever occurring):—

Sections 5(2), 6(1) (definition of “registered user”), 20(3), 21(6), 23(1), (2), (3) and (4), 26(5), 42(4), 48(4), 54(3)(c) and (d), 55(3), 56(2), (3) and (5), 59, 60, 61(1), 71(3), 74(5) and (7), 75, 77(1), 88(1), 90(3), 93(1) and (2), 94(4), 124(2), 137(1), 138 and 139(4).

3. The following provisions of the Principal Act are amended by omitting the words “Two hundred dollars” and substituting the symbol and figures “$200”:—

Sections 99(1), 100, 102(1), 104(2), 135(1) and 137(1), (2) and (3).

4. The following provisions of the Principal Act are amended by omitting the words “One hundred dollars” and substituting the symbol and figures “$100”:—

Sections 120, 121, 146(1) and 147(b).

5. The Principal Act is further amended as set out below:—

Provision	Amendment
Section 4..................................................	Omit “to this Act”.
Section 5(4).............................................	Omit “of this Act” (first occurring).
Section 10(5)...........................................	Omit “one”, substitute “1”.
Section 14(2)...........................................	Omit “four”, substitute “4”.
Section 18................................................	Omit “three”, substitute “3”.
Section 23(1)(a).......................................	Omit “one”, substitute “1”.
Section 23(1)(b).......................................	(a) Omit “one”, substitute “1”.
(b) Omit “three “, substitute “3”.
Section 26(5)...........................................	Omit “six”, substitute “6”.
Section 27(1)...........................................	Omit “one”, substitute “1”.
Section 30(3)...........................................	Omit “two”, substitute “2”.
Section 34(1)...........................................	Omit “one “, substitute “1”.
Section 35(1)...........................................	(a) Omit “two”, substitute “2”.
(b) Omit “one”, substitute “1”.
Section 35(2)...........................................	Omit “two”, substitute “2”.
Section 36(2)...........................................	(a) Omit “two”, substitute “2”.
(b) Omit “one”, substitute”1”.
Section 36(3)...........................................	Omit “two”, substitute “2”.
Section 39(1)...........................................	(a) Omit “two”, substitute “2”.
(b) Omit “one”, substitute “1”.
Section 40(3)...........................................	Omit “one”, substitute “1”.
Sections 42(3) and 43(4)...........................	Omit “two”, substitute “2”.
Section 45(2)...........................................	Omit “six”, substitute “6”.
Section 48(1)...........................................	(a) Omit “twelve”, substitute “12”.
(b) Omit “one”, substitute “1”.
Sections 48(2) and (4) and 49(1)...............	Omit “three” (wherever occurring), substitute “3”.
Section 54(1)...........................................	Omit “twelve”, substitute “12”.
Section 54(2)...........................................	(a) Omit “one”, substitute “1”.
(b) Omit “twelve”, substitute “12”.
Section 54(4)...........................................	Omit “twelve”, substitute “12”.
Section 55(1)...........................................	Omit “seven”, substitute “7”.
Section 55(2)...........................................	Omit “fourteen”, substitute “14”.
Sections 56(2)(b) and (5)..........................	Omit “two”, substitute “2”.
Section 58(3)...........................................	(a) Omit “two”, substitute “2”.
(b) Omit “one”, substitute “1”.
Omit “three”, substitute “3”.
Section 61(1)...........................................	Omit “seven”, substitute “7”.
Section 61(2)...........................................	Omit “three”, substitute “3”.
Section 64(1)(e).......................................	Omit “two”, substitute “2”.
Section 69................................................	Omit “fourteen”, substitute “14”.
Section 71(1)...........................................	(a) Omit “twelve”, substitute “12”.
(b) Omit “fourteen”, substitute “14”.
Section 72................................................	(a) Omit “twelve”, substitute “12”.
(b) Omit “two”, substitute “2”.
Section 78(1)...........................................	Omit “two”, substitute “2”.
Section 82(2)...........................................	Omit “three”, substitute “3”.
Section 82(3)(b).......................................	Omit “six”, substitute “6”.
Sections 82(5), 98(1) and 101...................	Omit “three”, substitute “3”.
Section 104(2).........................................	Omit “fourteen”, substitute “14”.

SCHEDULE 2—continued

Provision	Amendment
Section 105.............................................	(a) Omit “two”, substitute “2”.
(b) Omit “a Territory to which the Customs Act 1901-1954 does not apply”, substitute “Norfolk Island”.
Section 108(3)(a)....................................	(a) Omit “two”, substitute “2”.
(b) Omit “one”, substitute”1”.
Section 109(1)........................................	(a) Omit “six”, substitute “6”.
(b) Omit “of this section”.
Section 109(2)........................................	(a) Omit “two”, substitute “2”.
(b) Omit “six”, substitute “6”.
Section 135(1)........................................	(a) Omit “of this Act” (first occurring).
(b) Omit, from paragraphs (h) and (i)(i), “one”, substitute “1”.
(c) Omit, from paragraphs (h) and (i)(i), “two”, substitute “2”.
(d) Omit, from paragraphs (h) and (i)(i), “the first day of January, One thousand nine hundred and fifty-five”, substitute “1 January 1955”.
Section 135(1)(i)(ii)................................	Omit “one”, substitute “1”.
Section 138.............................................	Omit “three” (wherever occurring), substitute “3”.
Section 139(2)........................................	Omit “one”, substitute “1”.
Section 145(1)........................................	Omit “Forty dollars”, substitute “$40”.
Section 147(a).........................................	Omit “twenty-five”, substitute “25”.
Section 147(b)........................................	Omit “six”, substitute “6”.