Wilkshire v Bombala Shire Council [2006] FCA 1158

FEDERAL COURT OF AUSTRALIA

Wilkshire v Bombala Shire Council [2006] FCA 1158 PRACTICE AND PROCEDURE – costs relating to amendment of proceeding and premature motion to strike out PETER JOHN WILKSHIRE v BOMBALA SHIRE COUNCIL ACD 7 OF 2006

GYLES J

31 AUGUST 2006

SYDNEY VIA VIDEO LINK TO CANBERRA IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 7 OF 2006

ON APPEAL FROM A DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS

BETWEEN: PETER JOHN WILKSHIRE

Applicant

AND: BOMBALA SHIRE COUNCIL

Respondent

JUDGE: GYLES J

DATE OF ORDER: 31 AUGUST 2006

WHERE MADE: SYDNEY VIA VIDEO LINK TO CANBERRA

THE COURT ORDERS THAT:

1. The applicant bear his own costs up to and including 27 April 2006. 2. The respondent bear its own costs of and concerning the preparation of and filing of the motion filed on 20 April 2006 and the affidavit in support, any costs associated with service or attempted service thereof and of the argument as to costs of the motion. 3. All other costs of the parties to date will be costs in the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 7 OF 2006

ON APPEAL FROM A DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS BETWEEN: PETER JOHN WILKSHIRE

Applicant

AND: BOMBALA SHIRE COUNCIL

Respondent

JUDGE: GYLES J

DATE: 31 AUGUST 2006

PLACE: SYDNEY VIA VIDEO LINK TO CANBERRA

REASONS FOR JUDGMENT 1 On 17 March 2006 Peter John Wilkshire commenced an appeal from a decision of a Delegate of the Registrar of Trade Marks dismissing his opposition to the registration of a trade mark in the name of the respondent, Bombala Shire Council. The appeal was listed for directions at 9.15 am on 27 April 2006. At that stage, the applicant represented himself. The notice of appeal was obviously drafted by a lay person and was not in conventional form. The address for service was ' "Grannys Well", Wilkshire Road Via Delegate NSW 2633'. 2 A notice of appearance was filed by solicitors on behalf of the respondent on 3 April 2006. On 20 April 2006 the respondent filed a notice of motion seeking the striking out of a number of grounds in the notice of appeal and an order that 'the applicant file and serve within 14 days of this order a statement which identifies with precision the grounds on which the respondent's application for registration is opposed'. The motion was supported by an affidavit of a solicitor sworn on 19 April 2006. The only substantive matter in that affidavit was as follows: 'The Notice of Appeal includes various grounds relating to issues of alleged bias and collusion which the Respondent considers to be irrelevant to the matters before the Court on the appeal. On behalf of the Respondent, I request that the Court make orders sought by the Respondent in the Respondent's Notice of Motion dated 18 April 2006.' The notice of motion was made returnable at 10.15 am on 27 April 2006. 3 On 26 April 2006 a notice of appointment of solicitor was filed on behalf of the applicant. On that day, the Court was presented in chambers with consent short minutes of order signed by the solicitors for the parties as follows: '1. If not filed and served beforehand, the applicant file and serve a notice of appointment of solicitor by 4pm on 27 April 2006.