Refusal to hear submissions not a breach of natural justice rules


In Structureco Inc v Registrar of Trademarks, the Federal Court of Australia has ruled that the registrar of trademarks was not in breach of the rules of natural justice in refusing to hear Structureco Inc's submissions before issuing a summons requesting that it appear and produce documents at non-use application proceedings.

Structureco is the registered proprietor of the trademark STRUCTURE. Starite Distributors Pty Ltd filed an application before the registrar of trademarks for non-use of that mark. The shipping director of Structureco's Australian importer filed a declaration in opposition to the application. Starite sought that the shipping director be available for cross-examination and that Structureco be required to produce certain documents. Structureco wrote to the registrar asking to be heard in relation to Starite's requests. The registrar refused Structureco's demand and issued a summons to the shipping director.

Structureco applied to the Federal Court for a review of the registrar's ruling.

The court referred to its previous decisions in Sixth Ravini Pty Ltd v Deputy Commissioner of Taxation, May v Commissioner of Taxation ((1999) 92 FCR 152), and Minosea Pty Ltd v Australian Securities Commission ((1994) 14 ACSR 642). Those decisions considered provisions to give evidence or produce documents under the Income Tax Assessment Act 1936 and the Australian Securities Commission Act 1989.

In Sixth Ravini, May and Minosea, the Federal Court noted that under both acts, it is an offence to fail to comply with a notice to give evidence or produce documents. In each case, the court concluded that the relevant provisions did not require the decision maker to comply with the requirements of natural justice before issuing a notice.

The decisions of Sixth Ravini, May and Minosea highlight that the requirements of natural justice must be approached flexibly, with a view to the factual context of the particular case.

In Structureco, the court considered that Section 203 of the Trademarks Act 1995, which deals with the reasonable opportunity to be heard, supports the application of the approach in Sixth Ravini, May and Minosea to the registrar's power to summon witnesses and require the production of documents.

The court acknowledged that the registrar has power to act of her own volition and it found that the registrar had satisfied herself that sufficient reasons existed to issue the summons and request for documents. The court concluded that the errors of law claimed were not established. The result is consistent with a flexible approach to natural justice, taking into account the relevant factual context.

Lisa Ritson and Catherine Pavey, Blake Dawson Waldron, Sydney

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