SCRIBAL PROPRIETARY LIMITED AND STENMARK PROPRIETARY LIMITED V. HENRY GEORGE MARTIN 21/1962

SCRIBAL PROPRISTARY LIMITED AND," STENMARK PROPRIETARY LIMITED

REASONS FOR JUDGMENT

'A.C. Brooks, Government Printer, Melbourne 6.7639,60

ORAL,

SCRIBAL PROPRIETARY LIMITED STENMARK PROPRIETARY LIMITED

Ve

HENRY GEORGE MARTIN

WINDEYER J.

fh

In this case a notice of appeal was given by the opponents against the decision of the Commissioner, who disallowed their opposition to the grant of a patent. The appellants have now made it clear that they do not intend to proceed with their appeals. They have filed a notice of discontinuance. The authority for filing a notice of discontinuance is said to be Order 27 of the High Court Rules.

A difficulty arises however because, whether that Order be applicable or not, a discontinuance merely terminates the pending proceedings and is not necessarily a bar to subsequent proceedings. The Commissioner is not prepared, as the matter stands, to issue a patent. The question arises under the old Act. I would not be prepared to make an order under Section 66 determining that a patent should issue. But it appears that, notwithstanding the provisions of Section 66, the Commissioner will regard himself as at liberty to authorise the issue of a patent if this appeal be dismissed.

I am, however, prepared to dismiss the appeals by consent and leave it to the Commissioner to take whatever course he thinks appropriate in the circumstances.

I say I would not be prepared to make an order determining that a patent should issue because I do not have before me material which would enable me to come to that decision.

There remains one difficult. Although it appears perfectly clear that the appellants are prepared

to consent to a dismissal of their appeals no one is

2.

here on their behalf formally to consent, they thinking that they have done all that is required to make their attitude clear, In the circumstances I will treat the persons who are present, and who have been in communication with them and their solicitors as authorised to convey to me their consent to the dismissal of the appeals.