PRACTICE AND PROCEDURE – cross-claim – application to strike out certain paragraphs of Cross-Respondent’s defence – whether relevant parts of defence fail to disclose a reasonable defence or are otherwise an abuse of process in accordance with rr 16.21(1)(e)-(f) of the Federal Court Rules 2011 (Cth)
PRACTICE AND PROCEDURE – application to amend defence to cross-claim pursuant to FCR r 16.53 – standard to be applied – whether proposed amendments legally viable – where proposed amendments raised more than 30 years after events in question – whether delay prejudicial to Cross-Claimants
ESTOPPEL – estoppel by representation – whether pleading defective because no allegation of pre-existing legal relationship – whether principles in Waltons Stores (Interstate) v Maher (1988) 164 CLR 387 applicable – whether equity can enforce representation – whether representation can be communicated generally – promissory estoppel
EQUITY – whether laches available as a defence to a claim for declaratory relief pursuant to s 21 of the Federal Court Act 1976 (Cth) – nature of the property right in unregistered trade mark – whether knowledge of facts giving rise to claim is essential element of plea of laches – whether laches available as a defence to a claim for rectification of the Register of Trade Marks under s 88(1) of the Trade Marks Act 1995 (Cth)
TRADE MARKS – where Cross-Claimant seeks rectification of Register of Trade Marks – considerations relevant to exercising discretion under s 88(1) of the Trade Marks Act 1996 (Cth)
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0223
For more information, see the original judgement.
