Nettlefold Advertising Pty Ltd v Nettlfold Signs Pty Ltd [1997] FCA 986

Nettlefold Advertising Pty Ltd v Nettlfold Signs Pty Ltd [1997] FCA 986

Because the failure to seek leave under s 114 of the Trade Marks Act 1955 resulted from an oversight, the notice of appeal was filed within time, the respondent suffered no harm from the procedural non-compliance, the grounds of appeal were sufficiently identified, and the proposed appeal was not frivolous, the Court dispensed with the relevant requirements of O 52 Division 1 and granted the appellant leave nunc pro tunc to amend its notice of appeal. The Court did not decide whether leave to appeal itself should be granted.

Jurisdiction
Australia
Judgment Date
12 September 1997
Procedural Posture
Motion in Appeal Concerning Trade Mark Registration Proceedings / Application for Leave Nunc Pro Tunc to Amend Notice of Appeal and to Dispense With Compliance With Federal Court Rules
Outcome
Motion granted; appellant ordered to pay the respondent's costs of the motion.
Legal Topics
['leave to Appeal' 'amendment of Notice of Appeal' 'non Compliance With Federal Court Rules' 'appeals From Registrar of Trade Marks' 'nunc Pro Tunc Relief' 'costs of Motion']
['trade Marks' 'civil Procedure' 'appeals'] ['leave to Appeal' 'amendment of Notice of Appeal' 'non Compliance With Federal Court Rules' 'appeals From Registrar of Trade Marks' 'nunc Pro Tunc Relief' 'costs of Motion']

Case Brief

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Procedural Posture

Motion in Appeal Concerning Trade Mark Registration Proceedings / Application for Leave Nunc Pro Tunc to Amend Notice of Appeal and to Dispense With Compliance With Federal Court Rules

Legal Issues

  1. 1 ['Whether the appellant should be granted leave nunc pro tunc to amend its notice of appeal to include an application for leave to appeal from the judgment of Heerey J.' 'Whether compliance with O 52 Division 1 of the Federal Court Rules should be dispensed with despite non-compliance with the prescribed procedure for seeking leave to appeal.' 'Whether the appellant should be required to commence again by making a separate application for leave to appeal before pursuing the appeal.' 'Whether costs of the motion should be ordered against the appellant.']

Ratio Decidendi

Because the failure to seek leave under s 114 of the Trade Marks Act 1955 resulted from an oversight, the notice of appeal was filed within time, the respondent suffered no harm from the procedural non-compliance, the grounds of appeal were sufficiently identified, and the proposed appeal was not frivolous, the Court dispensed with the relevant requirements of O 52 Division 1 and granted the appellant leave nunc pro tunc to amend its notice of appeal. The Court did not decide whether leave to appeal itself should be granted.

Court Disposition

Motion granted; appellant ordered to pay the respondent's costs of the motion.

Orders

  • ['Leave granted to the appellant nunc pro tunc to amend its notice of appeal to include an order that leave be granted to appeal from the judgment of Heerey J given in Melbourne on 11 July 1997 in proceeding number VG11 of 1996.' 'Compliance with the requirements of O 52 Division 1 of the Federal Court Rules...