Société BIC SA v MC Distributor Pty Ltd [2006] FCA 1261

Société BIC SA v MC Distributor Pty Ltd [2006] FCA 1261

The application for leave to file and serve the revised second cross-claim is refused because the proposed cross-claim is confusingly drafted, not in proper form, and raises untenable claims, with remedies available under the Trade Marks Act that are not properly pleaded and forms of relief sought under the ADJR Act that are inappropriate given the statutory relief available.

Parties
First Applicant: Société BIC SA; Second Applicant: BIC Australia Pty Ltd; First Respondent: M C Distributor Pty Ltd; Second Respondent: Yuan Ming Zhao; Cross Claimant: M C Distributor Pty Ltd; First Cross Respondent: Société BIC SA; Second Cross Respondent: BIC Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
08 September 2006
Procedural Posture
Application for Leave to File Revised Cross Claim / Hearing and Determination of Application
Outcome
Application for leave to file and serve revised cross-claim refused; costs awarded to Applicants.
Legal Topics
Trade Marks, Pleadings, Administrative Review, Jurisdictional Error
Practice and Procedure Intellectual Property Trade Marks Pleadings Administrative Review Jurisdictional Error

Case Brief

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Parties

Société BIC SA

First Applicant

BIC Australia Pty Ltd

Second Applicant

M C Distributor Pty Ltd

First Respondent

Yuan Ming Zhao

Second Respondent

M C Distributor Pty Ltd

Cross Claimant

Société BIC SA

First Cross Respondent

BIC Australia Pty Ltd

Second Cross Respondent

Procedural Posture

Application for Leave to File Revised Cross Claim / Hearing and Determination of Application

Legal Issues

  1. 1 Whether proposed revised cross-claim is properly pleaded
  2. 2 Whether claims raised in cross-claim are obviously futile or untenable
  3. 3 Whether relief under Administrative Decisions (Judicial Review) Act 1977 (Cth) should be refused in light of remedies available under Trade Marks Act 1995 (Cth)

Ratio Decidendi

The application for leave to file and serve the revised second cross-claim is refused because the proposed cross-claim is confusingly drafted, not in proper form, and raises untenable claims, with remedies available under the Trade Marks Act that are not properly pleaded and forms of relief sought under the ADJR Act that are inappropriate given the statutory relief available.

Court Disposition

Application for leave to file and serve revised cross-claim refused; costs awarded to Applicants.

Orders

  • The application for leave by Amended Notice of Motion filed 26 July 2006 (as further amended by Orders made by consent on 17 August 2006) be refused.
  • The Cross-Claimant pay the Applicants' costs of the application for leave including costs reserved on 28 July 2006 and on 17 August 2006 and any costs thrown away by reason of the substitution of the revised Second Cross Claim.