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[1907] HCA 41
High Court of Australia
1907-07-01
Higgins JJ, Barton J, Isaacs J, Hiceins J, O'Connor J
Original judgment source is linked above.
'of law or give an opinion as to the power of the Commonwealth to enact n legislation where the opinion cannot be followed up by an effective
'Therefore, where, an action having been brought in the High Court to (este 'in the registration of a trade mark under Part VII. of the Zrade Marks Act 1905, the application for registration was withdrawn before the action
came on for hearing, on a reference to the Full Court of the question whether 'the Parliament had power to enact Part VII. of that Act, that Court refused
. Bruce and D. R. Davies brought an action in the High against the Commonwealth Trade Marks Label Association, en Barker,on behalf of the members of the Association, and he Registrar of Trade Marks. The plaintiffs alleged that the endant Association and the defendant Barker had in October 6 made an application to register a certain mark or label, ibed as a workers' trademark, in respect of all articles of erce and trade, under Part VII. of the Zrade Marks Act They further alleged that the registration and user of the
Griffith ©.5., Barton, 'o'Connor, Isaacs and Higgins JJ.
Tar Com- MONWEALTH TRADE Marks Lazet Asso- CIATION.
mark or label would injure them in their business as printers stationers, and they contended that the Commonwealth Par ment had no power to enact Part VII. of the Trade Marks 4 1905. They asked for a declaration that the defendant A sso¢ tion and the defendant Barker were not entitled to register mark or label, and for an injunction against its registration.
Neither the defendant Association nor the defendant Bar) delivered a defence. But the Registrar by his defence, inter al alleged that after action brought, viz., on or about the 1st Mare 1907, the application for registration of the mark or label hi been withdrawn. ¥
Upon motion for judgment, Barton J. directed that the quest of law, whether the Commonwealth Parliament had pow enact Part VIL of the Zrade Marks Act 1905, should be refer to the Full Court. /
Mitchell K.C. (with him Glynn and Starke), for the plaintifi (GrirrivH C.J. - The application for registration having b withdrawn, the plaintiffs have now nothing of which to compl This Court will not decide abstract questions of constitutio law, or give an opinion as to the validity of a Commonwe I Statute which cannot be followed up by an effective order, Isaacs J. - The plaintiff must show that he has person suffered or may personally suffer an injury before he can have th constitutionality of a law tested: Turpin v. Lemon (1); Tyl er Judges of Court of Registration (2).] ' The plaintiffs are entitled under Part I. Order IIL, r. 1 of th Rules of the High Court 1903 to a declaratory order.
[Hiceins J. - Under that rule you must show that the is properly brought.]
Under an almost identical English rule, Order XXV., 1. 5,) has been held that, where no substantive relief can be given the time, a declaratory order will be made: London Associat of Shipowners and Brokers v. London and India Docks Jo Comainittee (3).
(1) 187 U.S., 51, at p. 60. (2) 179 U.S., 405. (8) (1892) 3 Ch., 242.
x gains J. - The declaration should be ancillary to the putting H.C. or A. suit of a legal right: Williams v. North's Navigation Collieries _ Resi
he plaintiffs are not interested parties. aida Isaacs J. - The Privy Council refuses to give speculative - RADE
ions on hypothetical questions of law, but will only answer - Marks 'questions which arise in concrete cases involving private rights : ber ape: i mney-General for Ontario v. Hamilton Street Railway (2). e also Barraclough v. Brown (3). O'Connor J. - The duty of this Court "is limited to determin- g rights of persons or of property, which are actually contro- in the particular case before it. . . . But the Court is ot empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in ue in the case before it. No stipulation of parties or counsel, ether in the case before the Court or in any other case, can arge the power, or affect the duty, of the Court in this regard "? 'ornia v. Sun Pablo and Tulare Railroad Co. (4). BARTON J. - I should not have made the order of reference if I
, A-G. for the Commonwealth (with him Duffy KC. McArthur), for the Registrar of Trade Marks, were not
Grirerra 0.J. - We are all of opinion that the case should be struck out of the list.
5 'Solicitors, for plaintiffs, Derham & Derham Melbourne.
'Solicitor, for defendant Registrar of Trade Marks, Power's, Commonwealth Crown Solicitor. ; BL.
(1904) 2 K.B., 44, at p. 49. (3) (1897) A.C., 615. (1908) A.C., 524. (4) 143 U.S., 308, at p. 314.