R v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62

R v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62

The power conferred on the Registrar under s. 23(1) of the Trade Marks Act 1955 (Cth) to remove a trade mark from the register for non-use is administrative, not judicial, in character; therefore, it may constitutionally be exercised by the Registrar without offending the separation of powers in the Constitution.

Jurisdiction
Australia
Procedural Posture
Application for Prohibition (order Nisi) / Return of Order Nisi—final Judgment
Outcome
Application dismissed. Order nisi discharged.
Legal Topics
['judicial Power of the Commonwealth' 'administrative Power of Statutory Officers' 'removal of Trade Marks for Non Use' 'separation of Powers' 'validity of S. 23 Trade Marks Act 1955 (cth)']
['constitutional Law' 'intellectual Property Law'] ['judicial Power of the Commonwealth' 'administrative Power of Statutory Officers' 'removal of Trade Marks for Non Use' 'separation of Powers' 'validity of S. 23 Trade Marks Act 1955 (cth)']

Case Brief

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Procedural Posture

Application for Prohibition (order Nisi) / Return of Order Nisi—final Judgment

Legal Issues

  1. 1 ['Whether s. 23(1) of the Trade Marks Act 1955 (Cth) conferring power on the Registrar to remove trade marks involves the exercise of judicial power of the Commonwealth and is therefore invalid under the Constitution.']

Ratio Decidendi

The power conferred on the Registrar under s. 23(1) of the Trade Marks Act 1955 (Cth) to remove a trade mark from the register for non-use is administrative, not judicial, in character; therefore, it may constitutionally be exercised by the Registrar without offending the separation of powers in the Constitution.

Court Disposition

Application dismissed. Order nisi discharged.

Orders

  • ['Order nisi discharged.' "Prosecutor to pay respondents' costs including reserved costs."]