FEDERAL COURT OF AUSTRALIA Crocker v Toys 'R' Us (Aust) Pty Ltd [2017] FCA 619 File numbers: QUD 647 of 2014 QUD 9 of 2015 QUD 865 of 2015 Judge: REEVES J Date of judgment: 9 February 2017 Catchwords: BANKRUPTCY – proceedings QUD 647 of 2014 and QUD 865 of 2015 commenced by bankrupt before sequestration order – trustees electing not to prosecute the proceedings and requesting dismissal under s 60 of the Bankruptcy Act 1966 (Cth) – consideration of bankrupt's objection to dismissal Held: proceedings QUD 647 of 2014 and QUD 865 of 2015 dismissed Legislation: Bankruptcy Act 1966 (Cth) Trade Marks Act 1995 (Cth) Date of hearing: 9 February 2017 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Trade Marks Category: Catchwords Number of paragraphs: 6 QUD 647 of 2014 The Applicant appeared in person Counsel for the Applicant: Counsel for the Respondents: Mr N Ferrett QUD 9 of 2015 Counsel for the Applicant: Mr N Ferrett Counsel for the Respondent: The Respondent appeared in person QUD 865 of 2015 The Applicant appeared in person Counsel for the Applicant: Solicitor for the Respondent: Ms F Dempsey of Australian Government Solicitor ORDERS QUD 647 of 2014 BETWEEN: DEBRA ANN CROCKER Applicant AND: TOYS 'R' US (AUST) PTY LTD Second Respondent BABY ZONE (AUSTRALIA) PTY LTD Third Respondent THE BABY PROJECT LIMITED PARTNERSHIP LP Fourth Respondent JUDGE: REEVES J DATE OF ORDER: 9 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The applicant is to pay the respondent's costs to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS QUD 9 of 2015 BETWEEN: INFA-SECURE PTY LIMITED (ACN 149 173 660) Applicant AND: DEBRA ANN CROCKER Respondent JUDGE: REEVES J DATE OF ORDER: 9 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The matter is fixed for hearing for two days, commencing at 10.15 am on 12 June 2017. 2. The interlocutory application filed by the respondent on 15 April 2016 is adjourned to the hearing at 10.15 am on 12 June 2017. 3. The interlocutory application filed by the respondent on 12 May 2016 is dismissed. 4. The respondent is to pay the applicant's costs in Order 3 above of the interlocutory application to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS QUD 865 of 2015 BETWEEN: DEBRA CROCKER Applicant AND: REGISTRAR OF TRADEMARKS IP AUSTRALIA Respondent JUDGE: REEVES J DATE OF ORDER: 9 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The applicant is to pay the respondent's costs to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT REEVES J: 1 In proceeding QUD 647 of 2014, I have before me a letter from Ms Crocker's joint and several trustees in bankruptcy, Mr Terry van der Velde and Mr Jason Cronan of SV Partners, addressed to the Registrar of the Court, stating, among other thing, that: … We have reviewed this matter and advise the Trustees elect to discontinue the proceeding. Accordingly, please arrange for this matter to be dismissed. This election was expressly made under s 60 of the Bankruptcy Act 1966 (Cth). 2 Based on that election, the respondent in this proceeding, Infa-Secure Pty Ltd, has sought to have the proceeding dismissed. Ms Crocker has, in response, contended that the proceeding should be stayed pending a further appeal against her bankruptcy order. I agree with Mr Ferrett, for Infa-Secure, that Ms Crocker has no further right of appeal, having already exhausted the right she did have, without success. Even if there were a further right of appeal, I agree with Mr Ferrett that there is no material before me which would indicate that there is any basis upon which that appeal might result in a different outcome for Ms Crocker. Since Ms Crocker has not put forward any other reason why this proceeding should not be dismissed, I therefore order that: (1) proceeding number QUD 647 of 2014 be dismissed. (2) Ms Crocker pay Infa-Secure Pty Ltd's costs of the proceedings to be taxed or agreed. 3 In proceeding QUD 9 of 2015, where Infa-Secure Pty Ltd is suing the applicant, Mr Ferrett has sought to have those proceedings set down for trial. He points out, correctly, that Ms Crocker's bankruptcy does not prevent her from defending that proceeding. I will, therefore, set the matter down for trial. I fix the trial for 12 and 13 June 2017. I direct Infa-Secure to bring in a set of directions appropriate to achieving a trial on those dates and I will make those orders in chambers. 4 There are two interlocutory applications filed by Ms Crocker in that proceeding, one on 15 April 2016 and the other on 12 May 2016. The former seeks to have the proceeding struck out as an abuse of process. I adjourn that application to be dealt with at the trial of the proceeding. The latter seeks to make use of certain materials in proceeding QUD 865 of 2015, to which I am about to turn. I order that that application be dismissed. 5 Proceeding QUD 865 of 2015 is a proceeding brought by Ms Crocker against the Registrar of Trademarks. I have before me a letter from Ms Crocker's trustee in bankruptcy, addressed to the Registrar of the Court, stating, among other things: … We have reviewed this matter and now provide notice the Trustees do not elect to take on the above matter and request the action be dismissed. 6 Accordingly, the Registrar of Trade Marks has sought to have the proceeding dismissed. In response, Ms Crocker has sought to have the matter stayed, pending a further appeal. For the reasons I gave in relation to proceeding QUD 647 of 2014, I do not consider that is a valid ground upon which to order a stay of the proceeding. Furthermore, for the reasons advanced by Ms Dempsey, on behalf of the Registrar, I do not consider the proceeding has any merit. As Ms Dempsey pointed out, Ms Crocker has, since the order of the Registrar made on 8 November 2012, had a right of appeal against that decision under s 56 of the Trade Marks Act 1995 (Cth). That right of appeal has been drawn to her attention on a number of occasions by those acting on behalf of the Registrar. Despite this, Ms Crocker has not attempted to exercise that right. Instead, she has issued this proceeding. Without descending into detail about the claims she has made in this proceeding, in general, they advance preposterous allegations against the Registrar and do not disclose any basis upon which I could conclude there is any cause of action available to Ms Crocker. I therefore order that: (1) Proceeding QUD 865 of 2015 be dismissed. (2) The applicant is to pay the respondent's costs to be taxed or agreed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 31 May 2017