Farbenfabriken Bayer Aktien gesellschaft v Bayer Pharma Pty Ltd; R v Ashton [1965] HCA 24

Farbenfabriken Bayer Aktien gesellschaft v Bayer Pharma Pty Ltd; R v Ashton [1965] HCA 24

The Australian Company's 1956 application under s. 70 of the repealed Act ceased to be effective when the Trade Marks Act 1955 Cth commenced, and no fresh application under s. 21 was made. The Assistant Registrar therefore had no power to grant the alteration under s. 21, and the purported appeal from that decision was incompetent. Because the Assistant Registrar was exercising a quasi-judicial function affecting rights and acted without the essential prerequisite of a valid application, prohibition should issue.

Jurisdiction
Australia
Procedural Posture
Case Stated and Application for Writ of Prohibition / Full Court Hearing of Question Whether Appeal Was Competent and Order Nisi for Prohibition
Outcome
Appeal held incompetent; order nisi for prohibition made absolute.
Legal Topics
['alteration of Registered Trade Marks' 'transitional Provisions' 'competency of Appeal' 'prohibition' 'jurisdictional Fact' 'quasi Judicial Functions']
['trade Marks' 'administrative Law'] ['alteration of Registered Trade Marks' 'transitional Provisions' 'competency of Appeal' 'prohibition' 'jurisdictional Fact' 'quasi Judicial Functions']

Case Brief

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Procedural Posture

Case Stated and Application for Writ of Prohibition / Full Court Hearing of Question Whether Appeal Was Competent and Order Nisi for Prohibition

Legal Issues

  1. 1 ["Whether the appeal to the High Court from the Assistant Registrar's decision was competent." 'Whether the application made under s. 70 of the repealed Trade Marks Act 1905-1948 Cth survived the commencement of the Trade Marks Act 1955 Cth or could be treated as an application under s. 21 of the new Act.' 'Whether prohibition would lie to restrain the Assistant Registrar from proceeding further upon his decision.']

Ratio Decidendi

The Australian Company's 1956 application under s. 70 of the repealed Act ceased to be effective when the Trade Marks Act 1955 Cth commenced, and no fresh application under s. 21 was made. The Assistant Registrar therefore had no power to grant the alteration under s. 21, and the purported appeal from that decision was incompetent. Because the Assistant Registrar was exercising a quasi-judicial function affecting rights and acted without the essential prerequisite of a valid application, prohibition should issue.

Court Disposition

Appeal held incompetent; order nisi for prohibition made absolute.

Orders

  • ["In Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Limited, the question 'Is the appeal competent?' was answered: No." "Appellant to pay the respondent's costs of the case stated." 'In The Queen v. Ashton and Bayer Pharma Pty. Limited, order that the order nisi for prohibition be made absolute.'...