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[2003] FCA 1579
plaintiff. The Court made a permanent trade mark restraint, stayed it pending appeal only for the existing Gold Coast stores subject to local-use limits, imposed the $50,000 and pre-proceedings-loss...
Allsop J dealt with how the earlier trade mark orders would operate while an appeal was pursued. The respondents did not obtain a stay of the costs order. They did obtain a limited pause on the trade mark restraint for four existing Gold Coast stores, provided their use and advertising remained local. The applicants’ final order was also made subject to a $50,000 payment set off against costs and exclusion of claims for pre-proceedings damages or profits relating to those stores. The reasons focus on the practical consequences of delay and the interim arrangements, rather than restating the full basis of the earlier trade mark decision.
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2,483 words · generated 01/10/2026
This judgment records Allsop J’s reasons for the form and conditions of orders made on 23 December 2003. The reasons are brief and expressly confined to issues argued that day. They do not reproduce the full earlier merits decision. Paragraph 1 says the Court had disposed of the proceedings “insofar as I have heard them” under an earlier order, and paragraphs 2–3 identify orders made on 4 and 8 December that the 23 December orders supplemented.
1 cited instrument linked from this judgment.
The applicants were Mobileworld Communications Pty Ltd, Mobileworld Operating Pty Ltd and Crazy John (Australia) Pty Ltd. The respondents included Q & Q Global Enterprise Pty Ltd and several entities using or associated with the “Crazy Ron’s” business names. The order identifies two registered marks: No 656212 in Class 38 for “telecommunications”, and No 803950 in Classes 35 and 38, covering specified telecommunications-related business advisory, retail and service categories.
Order 1 permanently restrained the respondents, their servants and agents, from using “Crazy John”, “Crazy John’s”, “Crazy Ron”, “Crazy Ron’s”, “www.crazyrons.com.au”, or substantially identical or deceptively similar names, so as to infringe those registered marks. The reasons discuss the practical and procedural arrangements around that restraint rather than its full substantive basis.
Four matters were debated on 23 December. The first was the structure of the primary trade mark order, on which counsel reached a measure of agreement and no question of principle arose ([4]). The second was whether the costs order should be stayed. The third was whether the trade mark restraint should be stayed for the Gold Coast stores pending appeal. The fourth was what conditions should attach to the final trade mark order under s 126 of the Trade Marks Act 1995 (Cth) ([5]–[8]).
The Court refused to stay costs. It allowed the restraint to be stayed temporarily for the respondents’ existing Gold Coast stores, with use and advertising confined to the local Gold Coast area north of the Tweed River, pending determination of the appeal (order 4). The respondents undertook to file and pursue an appeal and to keep and preserve accounting records for those stores (order 3). The Court also ordered that the applicants pay $50,000 to the respondents by way of set-off against costs, subject to the adjustment specified in order 6, and that the applicants could not claim damages or an account of profits for the Gold Coast stores for the period before the proceedings began.
The Court adjourned the hearing on damages or an account of profits and ordered the respondents to pay the applicants’ costs of the 8 and 23 December proceedings. The appeal-related arrangements and financial conditions should therefore be understood as part of the orders made in this particular procedural setting, not as a complete account of the underlying trade mark dispute.
For the costs order, Allsop J applied a broad discretionary approach. He said the discretion did not require “special circumstances”, but required recognition of the importance of viewing a first-instance judgment as final ([6]). He referred to Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 and Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694–5 as examples of the relevant principles ([5]). The reasons do not set out those decisions’ facts or give a more detailed account of their reasoning.
The decisive facts for costs were evidential and practical. There was no evidence that the respondents, or people behind them, could not pay. The ascertainment of the correct costs was expected to take time. Allsop J also noted that if payment of taxed costs became necessary before the appeal and interfered with its disposition, an application could then be made in the appellate jurisdiction to address any perceived injustice ([6]). On those points, he refused the stay. His reasoning is not that a costs stay could never be granted, but that the evidence and timing in this case did not warrant one.
The Gold Coast stay involved a different balance. Allsop J noted the applicants had taken years to attempt to deal with “Crazy Ron’s”, and inferred that the controversy arose in earnest in 2003 when the respondents moved, somewhat unexpectedly, into Sydney and Melbourne ([7]). He considered that, without that expansion, the applicants might not have pursued the Gold Coast use even by then. At the same time, he recognised that the applicants had a trade mark and that the orders to which they were entitled covered south-east Queensland. The applicants’ delay did not destroy their rights, but had practical consequences for the respondents.
In particular, the reasons describe Mr Bakir as having been allowed to put substantial energy and some money into developing goodwill and a persona in south-east Queensland ([8]). If the appeal failed, the respondents would have to stop using the relevant identity and create a new persona and goodwill, investing further time, energy and money. Against that background, Allsop J considered it would cause no real injustice to the applicants to allow four existing shops to continue trading under current arrangements, provided advertising was limited to the local area while the appeal was pending ([7]).
The Court separately addressed conditions on the final trade mark order under s 126. The respondents did not argue that the conditions discussed were unavailable in principle ([8]). The Court treated the delay as a reason to ameliorate some of the burden on the respondents, not as a reason to extinguish the applicants’ rights. It selected $50,000 as a fair, though expressly arbitrary, amount for the four shops, and provided for that sum to be set off against costs. It also barred claims for damages or an account of profits for the relevant Gold Coast operations before the application was filed. The order refers to the date proceedings were instituted; paragraph 8 describes the cutoff as the filing date of the application.
The extract does not set out a broad change in trade mark law. It records the application of existing principles to the terms of orders in one case. Before the 23 December orders, earlier orders had been made on 4 and 8 December, but their full terms and the complete reasons for the merits decision are not included here ([2]). It is therefore not possible from this judgment alone to give a complete account of the parties’ position before those earlier orders.
For stays of first-instance orders, the judgment states that the Court has a broad discretion, does not require special circumstances, and must recognise the importance of treating the first-instance judgment as final ([6]). The Court applied that approach to the costs order, refusing a stay because there was no evidence of inability to pay and because an appellate application remained available if payment later interfered with the appeal.
The judgment also demonstrates a case-specific distinction between the costs order and the trade mark restraint. The costs order remained unstayed, while the restraint was temporarily stayed for a narrowly described part of the respondents’ business. That distinction followed from the different practical considerations addressed in the reasons, not from a general rule that injunctions should be stayed more readily than costs orders.
As to trade mark relief, the Court’s reasoning indicates that delay in enforcement did not, in its view, destroy the applicants’ rights ([8]). Instead, delay influenced the operation and conditions of the order. The final restraint remained in place, but the Gold Coast stores received a temporary, geographically limited exception pending appeal, and the applicants’ monetary claims concerning the pre-proceedings period were restricted. The judgment does not say that these particular conditions must be imposed in other cases.
After the orders, the respondents could continue the existing Gold Coast stores under the stated limitations while the appeal was pending. The respondents also had obligations concerning appeal steps and store accounts, and were not to destroy relevant accounting records (order 3). The applicants’ order was subject to the $50,000 condition and the restriction on pre-proceedings damages or profits. These effects describe the orders in this litigation, not a general amendment to the statutory scheme.
At [6], Allsop J said: “It is a broad discretion, not one requiring special circumstances, but one which recognises the importance of viewing the first instance judgment as final.” In plain English, the Court was not applying a rigid threshold that demanded exceptional facts. But an appeal alone did not displace the force of the first-instance order. The Court looked at the evidence and practical consequences of a stay.
Also at [6], the Court noted there was no evidence that the respondents or those behind them could not pay. It explained that the costs calculation would take time and that a later appellate application could address a situation where payment before the appeal interfered with its determination. This explains why the Court refused a stay at that stage without foreclosing a later application based on a changed practical position.
At [7], Allsop J said: “I do not think any real injustice will be caused to the applicants by the four shops on the Gold Coast maintaining trading under the current arrangements with a limitation on advertising to the local area pending the outcome of the appeal.” The translation is that the Court considered the permitted continuation narrow enough to be tolerable while the appeal was pending. The restraint was not suspended across the board: the exception was confined to the existing stores and local advertising.
At [8], the Court said the applicants’ tardiness did not destroy their rights, but placed a real commercial burden on the respondents. This is important because the Court treated delay as relevant to the design of relief, rather than as a complete answer to the trade mark claim. The reasons connect the delay with the respondents’ investment in local goodwill and the anticipated cost of changing business identity.
The $50,000 sum was expressly described as “arbitrary”, but the Court considered it fair amelioration for the four shops ([8]). This wording matters: the reasons do not present the figure as a calculation of proven loss or a general tariff. It was a case-specific condition, set off against costs as provided by the orders.
The judgment is most relevant to a procedural situation in which a party seeks to stay a first-instance order while an appeal is being pursued. For a costs stay, the decision highlights the evidence about ability to pay, the timing of taxation, and whether payment before the appeal would interfere with its disposition ([6]). The Court’s stated approach is broad discretion without a special-circumstances requirement, balanced against the importance of treating the first-instance decision as final.
The trade mark stay reasoning is relevant to a narrower kind of problem: an injunction or restraint has broad geographic scope, but an established local business argues that immediate compliance would disrupt operations before an appeal can be heard. In this case, the Court focused on four existing stores, local trading, restrictions on advertising, and the respondents’ development of goodwill in south-east Queensland ([7]–[8]). The order was not a general permission to use the names throughout Australia.
The judgment may also be relevant where a court is considering whether delay should affect the terms of final relief. The facts identified were the length of time the applicants had taken to address the Gold Coast use, the respondents’ investment in a local business identity, and the prospect of the respondents having to build a new persona and goodwill if the appeal failed ([7]–[8]). The response was a combination of a limited interim stay and conditions concerning pre-proceedings monetary claims and a set-off.
The reasons do not establish that delay will always justify a stay, compensation, or a condition under s 126. They also do not identify a universal method for calculating an amelioration amount. The judge described the $50,000 figure as arbitrary and specific to the four shops. Any comparison with another dispute would need to account for that limited basis and the judgment’s abbreviated procedural scope.
The provided judgment text does not discuss later decisions applying, distinguishing, or questioning Mobileworld Communications Pty Ltd v Q & Q Global Enterprise Pty Ltd. It therefore does not support conclusions about how later courts have treated this judgment.
The only authorities identified in the extract are Powerflex Services Pty Ltd v Data Access Corporation and Alexander v Cambridge Credit Corporation Ltd, which Allsop J cited as examples of the principles concerning a stay of a first-instance order ([5]). The judgment does not provide detailed accounts of those cases’ holdings or describe them as having been followed or applied in a more particular way.
Accordingly, the safest account from this source is limited: the decision cites those authorities in connection with the stay principles, and applies its stated approach to the evidence concerning costs. A later-treatment history cannot be constructed from the supplied judgment alone.
The reasons leave several matters unresolved because they address only the issues argued about the December orders. First, they do not reproduce the full merits reasoning behind the trade mark restraint. The extract identifies the marks and the names restrained, but not the complete analysis of infringement, validity, ownership, or the evidence supporting the earlier decision. Those matters cannot be reconstructed from these nine paragraphs.
Second, the judgment does not determine the appeal. The orders granted leave to appeal to the extent necessary and recorded undertakings about filing and prosecuting it, but the text does not state the appeal’s eventual outcome. It also does not explain whether the local stay was later varied, discharged, or extended.
Third, the amount of any damages or account of profits remained for a later hearing. Order 7 adjourned that hearing to a date to be fixed by the Registrar. Paragraph 8 says that, on the evidence then available, there appeared to be little scope for pre-application monetary relief, but that observation did not determine the remaining hearing in full.
Fourth, although the respondents did not contest in principle the availability of the conditions discussed under s 126, the reasons do not provide a broader account of the statutory limits on such conditions. They give the case-specific rationale for the two conditions imposed, not a comprehensive test for future cases.
Finally, the reasons do not state how the $50,000 figure was derived beyond calling it arbitrary and fair amelioration for four shops. Nor do they provide detailed evidence about store turnover, profits, investment, or the precise duration of the applicants’ delay. The judgment supports describing those factors as part of the context, but not treating the sum as a formula for other disputes.
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THE COURT: 1. Orders that the respondents and each of them by themselves their servants or agents be permanently restrained from using the names "Crazy John", "Crazy John's", "Crazy Ron", "Crazy Ron's" or "www.crazyrons.com.au" or any names substantially identical therewith or deceptively similar thereto so as to infringe: (a) Australian registered trade mark No 656212 in Class 38 for "telecommunications"; or (b) Australian registered trade mark No 803950 in Class 35 for "business advisory services relating to telecommunications"; retail services relating to "telecommunications products" and Class 38 for "telecommunications services and advisory services relating thereto". 2. Grants leave to the respondents (to the extent necessary) to appeal from: (a) the orders made on 4 December 2003, to the extent that those orders have not been vacated; (b) order 2 made on 8 December 2003; and (c) the orders made on 23 December 2003. 3. Notes the undertaking of the respondents to the Court: (a) to file their notice of appeal on or before 24 December 2003; (b) to prosecute the appeal diligently; (c) to take all steps available to them to have the hearing of the appeal included in the May sittings of the Full Court in Melbourne; (d) to keep full and proper accounts of the sales and expenses of each of the existing stores on the Gold Coast in Queensland carried on under the name "Crazy Ron's"; and (e) pending the determination of the appeal not to destroy any accounting records of the businesses conducted in those stores. 4. Orders that pending the determination of the appeal, order 1 above be stayed but only in connection with the existing stores trading under the name "Crazy Ron's" on the Gold Coast in Queensland, and that the permitted use or advertising shall only be in connection with existing stores on the Gold Coast and limited to use or advertising undertaken, broadcast or published locally in the Gold Coast area north of the Tweed River, by way of local signage, local newspapers, local radio, local television or local pamphlet drops, or otherwise locally. 5. Grants liberty to the applicants to apply in respect of the stay imposed by order 4 above. 6. Orders as conditions of order 1 above: (a) that the applicant pay to the respondents the sum of $50,000 by way of set off against the applicants' costs, to be taxed in default of agreement, save that in the event that the applicants' costs payable by the respondents are less than $50,000, the applicant shall pay the difference between the sum due for their costs and $50,000; (b) that the applicants shall not be entitled to claim in respect of the operation of the Gold Coast stores any sum by way of damages or for an account of profits prior to the date of institution of these proceedings. 7. Orders that the hearing in relation to damages or on account of profits be adjourned to a date to be fixed by the Registrar. 8. Orders that the respondents pay the applicants' costs of the proceedings on 8 and 23 December 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
C R COMMUNICATIONS PTY LTD (ACN 101 412 266) SIXTH RESPONDENT
REASONS FOR JUDGMENT 1 On 23 December 2003, I made further orders disposing of the proceedings insofar as I have heard them pursuant to an order made earlier under O 29 of the Federal Court Rules. These are the reasons in relation to the issues argued on 23 December 2003 as to the form of the orders made on that date. 2 I made orders on 4 and 8 December 2003 which were supplemented by the orders made on 23 December 2003. 3 Debate took place before me on 23 December 2003 as to certain aspects of those orders. 4 First, there was a debate as to the structural form of the primary trade mark order (order 1). Ultimately there was a measure of agreement between Mr Ireland QC and Mr Shavin QC and no question of principle arose as to the form of order 1. 5 The second aspect of the orders debated was whether the costs orders should be stayed. I refused to stay the cost order. The principles and cases concerning the stay of a first instance order are well known and are exemplified in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 and Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694-5. 6 I need not dwell on any particular aspect of the principles involved. It is a broad discretion, not one requiring special circumstances, but one which recognises the importance of viewing the first instance judgment as final. There was no evidence before me that the respondents or those behind the respondents could not pay a costs order. The ascertainment of the correct amount of costs will take some time. If it be the case that the necessity to pay the costs as taxed arises prior to the appeal and would interfere with the disposition of the appeal in some fashion, an application can then be brought in the appellate jurisdiction to deal with any perceived injustice which might arise at that point. 7 The third aspect debated before me was the question as to whether the trade mark order should stayed in relation to the Gold Coast stores, pending the outcome of the appeal. In this respect, Mr Ireland's clients proffered certain undertakings as to expedition, keeping of accounts and the like. Mr Shavin pressed for the orders to take effect immediately, his clients proffering an undertaking as to damages to ameliorate the respondents' position should their appeal be successful. I think in all the circumstances that Mr Ireland's clients should have their stay as to the Queensland stores, subject to the limitation of any advertising to the Gold Coast area. The applicants have taken some years to attempt to deal with "Crazy Ron's". The controversy really only arose this year with the movement, somewhat unexpectedly, I infer, of the respondents into the Sydney and Melbourne markets. Had it not been for that movement I doubt very much whether, even now, the applicants would be attempting to deal with the respondents' use of the phrase "Crazy Ron's" on the Gold Coast. Nevertheless, they have a trade mark and they have now sought to enforce their rights in relation to the whole of Australia and the orders to which they are entitled covers south east Queensland. I do not think any real injustice will be caused to the applicants by the four shops on the Gold Coast maintaining trading under the current arrangements with a limitation on advertising to the local area pending the outcome of the appeal. 8 The fourth matter was the appropriate condition to an order under s 126 of the Trade Marks Act 1995 (Cth) in final form. Mr Shavin did not submit that the conditions which were discussed in argument were not able, as a matter of principle, to be attached. The applicants have been tardy in enforcing their rights in south east Queensland. I dealt with the reasons why in my reasons published on 4 December 2003. Whilst I do not think that tardiness destroys their rights, it has placed a burden on the respondents which, in commercial terms, is real. Whether he was entitled to or not, Mr Bakir was plainly allowed to put great energy and some money into the development of his goodwill and persona in the south east Queensland area for some years. On the hypothesis that the appeal is not successful, the respondents will have to stop and create a new persona, a new goodwill and spend energy, time and money doing so. I think it appropriate to place two conditions on the order: first, that there be no claim for damages or account of profits up to the date of the filing of the application (on the evidence thus far I see little scope for such, in any event; secondly, that a sum of money by way of reparation or amelioration for the delay be given to the respondents as the price of the Australia wide order. Whilst it is arbitrary, I think a sum of $50,000 for the four shops is a fair amelioration of the costs involved caused by the delay. This sum of money can be set off against any costs the respondents are obliged to pay in relation to the suit. 9 The above are my reasons for the terms of the orders made on 23 December 2003 which were debated before me. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.
Counsel for the Applicant: Mr D Shavin QC with Ms M Barker
Solicitor for the Applicant: Corrs Chambers Westgarth
Counsel for the Respondent: Mr J Ireland QC with Mr R J Anderson
Solicitor for the Respondent: Morgan Conley Solicitors
Mobileworld Communications Pty Ltd
Q & Q Global Enterprise Pty Ltd
(1996) 67 FCR 65
(1985) 2 NSWLR 685
The Court made a permanent trade mark restraint, stayed it pending appeal only for the existing Gold Coast stores subject to local-use limits, imposed the $50,000 and pre-proceedings-loss conditions, granted leave to appeal to the extent necessary, and adjourned the damages or account-of-profits hearing.