Brodel v Farnsworth [2004] FCA 736

FEDERAL COURT OF AUSTRALIA

Brodel v Farnsworth [2004] FCA 736 JOHN BRODEL v PETER EDWIN FARNSWORTH V394 of 2003

RYAN J 9 JUNE 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V394 of 2003

BETWEEN: JOHN BRODEL

Applicant

AND: PETER EDWIN FARNSWORTH

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 JUNE 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for leave to appeal is refused. 2. The applicant pay the respondent's costs of the application, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V394 of 2003

BETWEEN: JOHN BRODEL

Applicant

AND: PETER EDWIN FARNSWORTH

Respondent

JUDGE: RYAN J

DATE: 9 JUNE 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 It will have been clear from the discussion which I have had with the applicant that this application for an extension of time within which to appeal from the order of Finkelstein J of 1 August 2003 must fail. His Honour, in the course of reasons for that order, indicated as follows: '… Mr Brodel's complaint is not with Mr Farnsworth. The facts propounded by Mr Brodel do not suggest that Mr Farnsworth has done anything that would amount to an infringement of Mr Brodel's rights. If Mr Brodel has any complaint it is with Telstra. This problem was pointed out to Mr Brodel when this application was begun some time ago. It was suggested that Mr Brodel should amend his proceedings to bring the claim against Telstra. For one reason or another, he chose not to adopt that course (perhaps because any such claim may now be statute barred). He must now suffer the consequences.' 2 As I have indicated in the course of discussion with Mr Brodel this morning, the statutory declaration under the Trade Marks Act 1995 (Cth), although made by the named respondent, Farnsworth, was as the heading indicates, made "In the matter of Australian Trade Mark application No 652986 in the name of Telstra Corporation Ltd and opposition by John Brodel." That, together with what appears in the body of the statutory declaration, makes it clear that Mr Farnsworth was making the declaration solely as an officer, employee or agent of Telstra, and in no sense in his own interest. 3 Accordingly, the conclusion reached by Finkelstein J was manifestly correct. Moreover, in light of the fact that the selection of the wrong respondent had been pointed out to the applicant at about the time when the proceedings were initiated, I can see no basis on which it could be suggested that his Honour's discretion miscarried when he ordered the applicant to pay the costs of the respondent Farnsworth. It was obviously a relevant matter to take into account that the applicant had proceeded, notwithstanding an early intimation that the proceedings were misconceived, to prosecute the application as originally formulated. 4 It follows that neither the complaint against the substantive order of Finkelstein J, nor that against his Honour's exercise of discretion as to costs, has any prospect of success. Accordingly, even had the applicant been able to demonstrate acceptable reasons for the delay of over five months in seeking an extension of time, it would not be a proper exercise of the Court's discretion to grant such an extension. The application must therefore be refused with costs. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.