Beling v Sixty International S.A. [2015] FCA 250

Beling v Sixty International S.A. [2015] FCA 250

The costs power in s 221 of the Trade Marks Act 1995 (Cth), in the context of the formal statutory scheme for trade mark opposition proceedings and the prescribed scale of costs, is conditioned by the same principles applicable to comparable statutory costs powers, including the solicitor litigant exception recognised in Cachia and Guss. The delegate refused costs by treating the applicant only as a self-represented litigant and failing to consider that exception, although the applicant had claimed to be an Australian legal practitioner. That failure was an error of law affecting the costs discretion, so the appeal was allowed and the costs question was returned to the Registrar for...

Jurisdiction
Australia
Judgment Date
20 March 2015
Procedural Posture
Appeal From a Delegate of the Registrar of Trade Marks Concerning Refusal to Award Costs in Trade Mark Opposition Proceedings / Final Judgment
Outcome
Appeal allowed.
Legal Topics
['solicitor Litigant Exception' 'self Represented Litigants' 'registrar of Trade Marks Costs Discretion' 'procedural Fairness' 'appeal Under Trade Marks Act 1995 (cth)']
['costs' 'trade Marks' 'administrative Law'] ['solicitor Litigant Exception' 'self Represented Litigants' 'registrar of Trade Marks Costs Discretion' 'procedural Fairness' 'appeal Under Trade Marks Act 1995 (cth)']

Case Brief

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Procedural Posture

Appeal From a Delegate of the Registrar of Trade Marks Concerning Refusal to Award Costs in Trade Mark Opposition Proceedings / Final Judgment

Legal Issues

  1. 1 ['Whether the solicitor litigant exception to the principle that successful self-represented litigants are not entitled to costs applies to awards of costs under s 221 of the Trade Marks Act 1995 (Cth).' 'Whether the delegate of the Registrar of Trade Marks erred by refusing costs on the basis that the applicant was self-represented without considering that he was an Australian legal practitioner.' 'What orders should be made on the appeal once error in the exercise of the costs discretion was identified.' 'Whether the applicant should receive costs of the appeal as a self-represented solicitor litigant and from what date.']

Ratio Decidendi

The costs power in s 221 of the Trade Marks Act 1995 (Cth), in the context of the formal statutory scheme for trade mark opposition proceedings and the prescribed scale of costs, is conditioned by the same principles applicable to comparable statutory costs powers, including the solicitor litigant exception recognised in Cachia and Guss. The delegate refused costs by treating the applicant only as a self-represented litigant and failing to consider that exception, although the applicant had claimed to be an Australian legal practitioner. That failure was an error of law affecting the costs discretion, so the appeal was allowed and the costs question was returned to the Registrar for...

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'The decision of the delegate of the Registrar of Trade Marks as to Trade Mark Application Number 1441489 made on 16 October 2014 is set aside only insofar as the delegate declined, in paragraph [37] of the decision, to make an award of costs to the applicant.' "The Registrar is directed, whether...