Federal Court of Australia

Quach v Registrar of Trade Marks (No 2) [2026] FCA 57

ORDERS

THE COURT ORDERS THAT:

1.    The application lodged on 1 September 2025 be dismissed.

2.    The applicant pay the second respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The applicant, Dr Quach, applies, in his own name and on his own behalf, for an extension of time in which to appeal a decision of a delegate of the Registrar of Trade Marks (the Delegate), made on 5 August 2025. In that decision, the Delegate determined that a certain trade mark be registered in the name of the respondent to this application, the Proprietors of Strata Plan 48462 (the Owners Corporation), and rejected the objections raised by a company associated with Dr Quach, QE Family Pty Ltd (QE Family).

2    For the reasons that follow, Dr Quach should not be granted the extension of time. In short, this is because (a) Dr Quach has failed to provide a sufficient explanation as to his failure to lodge an appeal within the reasonable time, (b) the proposed appeal has no prospects of success in circumstances where Dr Quach does not have standing to bring the appeal and, in any event, has not demonstrated any substantive intelligible grounds of appeal, and (c) it is likely that allowing the proposed appeal to proceed would cause some detriment to the Owners Corporation.

Background to the Application

3    On 21 December 2023, Mr Greg Medcraft (who appears to be a member of the Owners Corporation), on behalf of his company, Medcraft Pty Ltd, filed an application under s 27 of the Trade Marks Act 1995 (Cth) (Trade Marks Act) for the registration of trade mark 2410434, being the name, “Byron Bay Beachfront Apartments”, together with a stylised turtle.

4    On 27 May 2024, QE Family (a company of which Dr Quach claims he is the director and shareholder) filed a notice of opposition, under s 52 of the Trade Marks Act, to the registration of the mark. It later filed a statement of grounds and particulars in support of its opposition on 26 June 2024 (which was subsequently rectified).

5    On 5 June 2024, Medcraft Pty Ltd assigned its interest in the mark to the Owners Corporation. Subsequently, on 31 July 2024, the Owners Corporation filed a notice of intention to defend the registration application, under s 52A of the Trade Marks Act.

6    On 5 May 2025, the Owners Corporation requested that the opposition be determined without a hearing. It appears that QE Family did not object to that request.

7    On 5 August 2025, the Delegate determined the application on the papers. In her decision, she rejected QE Family’s objections and determined that the applied for mark should move to registration.

8    For present purposes, there is no need to consider in great detail the matters raised by the Delegate’s decision. It suffices to note that QE Family’s objections were several, though one perhaps worth mentioning concerned the trade mark applicant’s identity and capacity to own a trade mark. As noted, the application for the mark was assigned to the Owners Corporation from Medcraft Pty Ltd. The Delegate’s decision noted that under s 106(1) of the Strata Schemes Management Act 2015 (NSW), an owners corporation for a strata scheme can hold and manage personal property on behalf of the owners corporation, and hence, the Owners Corporation can own the trade mark.

9    Another element of the Delegate’s decision, which is perhaps also worth mentioning, is the question of ownership of the mark. Considering the material before her, the Delegate determined that the true owner of the mark was, in fact, the Owners Corporation. Accordingly, the Delegate determined that the mark be forwarded for registration in the name of the Owners Corporation.

10    On 1 September 2025 (being 27 days after the date of the Delegate’s decision), Dr Quach filed the present application for an extension of time in which to appeal the Delegate’s decision, under r 34.25 of the Federal Court Rules 2011 (Cth) (the Rules). The application was served on the Registrar on 19 September 2025, however it was not, at the time, served on the Owners Corporation. In a subsequent case management application before a Registrar of this Court, it was ordered that the Owners Corporation apply to be joined to the application. Orders were made to that effect, following a hearing: Quach v Registrar of Trade Marks [2025] FCA 1544 (Quach v Registrar of Trade Marks).

11    On 15 October 2025, this Court made certain orders as to the filing and serving of submissions for the purpose of this application. Dr Quach was ordered to file and serve his submissions 14 days prior to the hearing, but failed to do so. In any event, the Owners Corporation has filed its submissions in the absence of any by Dr Quach, doing the best that it could in the circumstances. Dr Quach eventually filed a document headed “Submissions” on 22 January, consisting of one page, but it does not provide any great detail as to the arguments which he sought to advance.

Relevant statutory provisions and principles

12    Under s 56 of the Trade Marks Act, an opponent may appeal to the Federal Court from a decision of the Registrar made under s 55 of the Trade Marks Act. An “opponent” under the Trade Marks Act is defined in s 6 as:

opponent, in relation to the registration of a trade mark, means:

(a)    the person who has filed (under section 52) a notice of opposition to the registration of the trade mark; or

(b)     if section 53 applies—a person in whose name the notice of opposition is taken to have been filed.

13    The Rules, at Div 34.3, sets out specific procedural rules which govern appeals from various intellectual property legislation. Relevantly, r 34.24 provides:

34.24    Starting an appeal—filing and service of notice of appeal

(1)    A party who wants to appeal from a decision of the Commissioner must, within 21 days of the date of the decision, file a notice of appeal, in accordance with Form 92.

(2)    A notice of appeal must state the following:

(a)    the Commissioner from whom the appeal is brought and the date of the decision;

(b)    whether the appeal is from the whole or a part of the decision (including, if from a part only, details of the part);

(c)    the order or orders sought;

(d)    the grounds relied on in support of each order sought;

(e)    the particulars of each ground relied on.

Note:    A Registrar will fix a return date and place for hearing and endorse those details on the notice of appeal. The return date will be at least 28 days after filing.

(3)    The applicant must serve the notice of appeal on the Commissioner and each other party to the appeal within 5 days after filing the notice of appeal.

14    “Commissioner” is defined by r 34.21 of the Rules to mean:

Commissioner means:

(a)    for a proceeding under the Designs Act—the person holding the office of Registrar under that Act; and

(b)    for a proceeding under the Olympic Insignia Protection Act—the person holding the office of Registrar under the Designs Act; and

(c)    for a proceeding under the Patents Act—the person holding the office of Commissioner under that Act; and

(d)    for a proceeding under the Trade Marks Act—the person holding the office of Registrar under that Act.

15    Rule 34.25, pursuant to which the present application is made, makes provision for an extension of the time provided by r 34.24(1) in which to appeal:

34.25    Application for extension of time to file notice of appeal

(1)     A person who wants to apply for an extension of time within which to file a notice of appeal mentioned in rule 34.24 must file an application for an extension of time, in accordance with Form 67.

(2)     The application may be made during or after the period mentioned in rule 34.24.

(3)     The application must be accompanied by:

(a)     an affidavit stating the following:

(i)     briefly but specifically, the facts on which the application relies; and

(ii)     why the notice of appeal was not filed within time; and

(iii)     the nature of the appeal; and

(iv)     the questions involved; and

(b)     a draft notice of appeal that complies with rule 34.24.

(4)     The applicant must, at least 14 days before the day fixed for the directions hearing, serve a copy of the application and the accompanying documents on:

(a)    the Commissioner; and

(b)     each interested person.

16    In essence, r 34.25 empowers the Court with a discretion to grant leave to allow a would-be appellant to file out of time. Though subparagraph 34.25(3)(a) identifies certain matters to be addressed by an applicant when an exercise of that discretion is sought – namely, the explanation for the delay, the nature of the appeal, and the questions involved – these do not circumscribe the various other factors to which the Court may have regard: Yang v Vuly Pty Ltd [2020] FCA 1037 [8]. Those factors were summarised by Greenwood J in Donzenac Pty Ltd v MCV Enviroworks Pty Ltd [2015] FCA 361 at [44] as being:

(1)    the length of the delay;

(2)    the explanation for the delay, including whether the applicant is personally blameless for it;

(3)    any prejudice caused to the respondent or other persons arising out of the delay;

(4)    actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested;

(5)    the merits of the proposed appeal;

(6)    alternative avenues for relief available to the applicant; and

(7)    questions of public interest, if any, applicable to the subject of the appeal.

(See also Swole Gym Wear Group Pty Ltd v Swole O’Clock Ltd [2019] FCA 685 [18]; Illinois Tool Works Inc v Airco Fasteners Pty Ltd (2022) 166 IPR 514, 547 [230]).

17    Of course, the Court must also have regard to its overarching purpose of facilitating the just resolution of disputes “as quickly, inexpensively and efficiently as possible” under s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Dunlop v Fishburn (No 3) [2012] FCA 315 [9]. This includes objectives such as, relevantly, the efficient use of judicial resources and the disposal of all proceedings in a timely manner: s 37M(2) of the FCA Act. Indeed, s 37M(3) of the FCA Act requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes that overarching purpose.

18    In the present case, it is obvious that no notice of appeal was filed Dr Quach within the 21-day period required by r 34.24 of the Rules. The extension of time sought is therefore necessary in order for any appeal to proceed. To that end, the pertinent factors for the exercise of discretion in this case are (a) the explanation offered by Dr Quach for his delay, (b) any prejudice caused to the Owners Corporation arising out of the delay, and (c) the merits of the proposed appeal.

Explanation for the delay

19    In any application for an extension of time under the Rules, whether that be to file an appeal or take some other step, a very important consideration is the provision of any explanation for the delay in filing the relevant document: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 215 [103], 216 [108] (Aon). Relatedly, courts should generally be mindful, when considering applications of this nature, of the potential for “loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification”: Aon 192 [30]; University of Sydney v ObjectiVision Pty Ltd [2016] FCA 1199 [63].

20    In this matter, despite adducing no evidence to this effect, Dr Quach offered some apparent explanations for his failure to lodge an appeal. He submitted that:

(1)    he was unaware of the 21-day limit;

(2)    alternatively, the 21-day limit under r 34.24 of the Rules did not apply to appeals under the Trade Marks Act; and

(3)    alternatively, he was “flustered” by the wording of the Rules owing to his status as a self-represented litigant.

21    As to the first justification, it is noted that the Delegate’s decision was communicated by letter to QE Family – the opponent for the purposes of the Trade Marks Act – on or about 5 August 2025. A copy of that letter is attached to what purports to be a draft notice of appeal, although it is not entirely clear that it could be so described. That aside, the letter sets out, rather clearly, that any appeal from the decision should be made within 21 days. It was obviously received and considered by Dr Quach, though he claims he did not read it. Such an assertion is somewhat contradicted by his second justification, as appears at paragraph 4 of his submissions:

It was not clear to me that the 21 day time limit, applies to The Trade Mark Act 1995 (Cth) where is no ‘Commissioner’, and no oral proceeding was convened.

22    That rather suggests he was aware that a 21-day limit applied, but relied upon his own interpretation of it for the purposes of determining when an appeal might be filed.

23    As to that interpretation, Dr Quach’s second justification concerned the operation of the Rules, and in particular r 34.24(1) which provides that:

A party who wishes to appeal from a decision of the Commissioner must, within 21 days of the date of the decision, file a notice of appeal, in accordance with Form 92.

24    Dr Quach says that, because a Registrar is not a “Commissioner”, that rule does not apply to an appeal from a Registrar under the Trade Marks Act. That submission is without merit. As extracted above (see supra [14]), r 34.21 of the Rules relevantly defines the word “Commissioner” for the purposes of Div 34.3 as meaning, in the context of a proceeding under the Trade Marks Act, the person holding the office of Registrar under that Act.

25    It follows that r 34.24 clearly makes a provision for an appeal from a Registrar under the Trade Marks Act, and provides for a time limitation of 21 days.

26    In response, Dr Quach referred to the decision of the High Court in Yager v The Queen (1977) 139 CLR 28 at 43, where Mason J said:

There is, therefore, no legitimate foundation for resorting to the definitions contained in the Narcotic Drugs Act, for the purposes of modifying or qualifying another statutory definition contained in a different Act of Parliament.

27    The point that Dr Quach attempts to advance is that the Rules impermissibly attempt to modify the definition of “Registrar” under the Trade Marks Act. That is, with respect, incorrect. All that Div 34.3 of the Rules does is make provision for appeals from determinations under various pieces of intellectual property legislation, and it uses an ambulatory provision adopting the word “Commissioner” as a compendious reference for certain officeholders under a variety of Acts. That avoids the need for making separate provisions for each Act. Thus, Dr Quach’s submissions that the 21-day limit on appeals did not apply to him, have no merit.

28    Turning to the third justification, Dr Quach indicated in his submissions that he is a self-represented litigant, and as a result he was “flustered” by the wording of the Rules. In this respect, he appears to call in aid his status as an unrepresented litigant in the Court, as a foundation for according him some degree of leniency. That said, during the course of the hearing, Dr Quach indicated, or acknowledged, that he is somewhat familiar with court processes. He appears to have involved himself in numerous pieces of litigation, over an extended period, in this and other courts. Indeed, in a decision of Wigney J in Quach v RU [2023] FCA 1233, his Honour opens his reasons by saying:

Dr Michael Van Thanh Quach is a familiar self-represented litigant in this and other courts. This judgment deals with three applications for leave to appeal decisions, two of which require extensions of time. Two of the applications relate to interlocutory decisions concerning matters of practice and procedure.

29    There is no need to consider his Honour’s reasons further, although they are illustrative of the manner in which Dr Quach engages in litigation. Nevertheless, the first two sentences seem to indicate that issues of time limits are not unfamiliar to Dr Quach, particularly in relation to appeals.

30    In those circumstances, Dr Quach’s attempt to rely on his status as a self-represented litigant deserves less weight than it might from a person who is wholly unfamiliar with court processes.

31    It is, therefore, not possible to give a great deal of weight to Dr Quach’s mere assertions as to his reasons for not complying. One might conclude, on that basis, that there is no satisfactory explanation for the delay in this case. However, one might also generously assume that Dr Quach misunderstood or misconstrued the legislation, though the statement on the letter of the Delegate delivering the reasons could not have been more clear. Nevertheless, and despite Dr Quach’s experience in court, some leniency can be given to him because he is not a lawyer and he may be somewhat unfamiliar with legal processes.

Prejudice to the Owners Corporation if leave is granted

32    The Owners Corporation claimed that it will suffer prejudice by the granting of an extension of time. Prima facie, there is not a lot of merit in that submission as the relevant lapse of time was only six days.

33    Nevertheless, it appears that there has been a history of disputation involving the Owners Corporation, Dr Quach, his company QE Family, and perhaps even his wife, who is the owner of a unit in the development which the Owners Corporation represents. In that regard, it is quite possible that were the appeal to proceed, it would engage and envelop the Owners Corporation in protracted and lengthy litigation, much of which, given the general assertions made by Dr Quach in the course of this application, would be misdirected. Given that Dr Quach has indicated to the Court that he has been heavily involved in litigation across several courts, one might recognise there to be a real risk of the Owners Corporation having to fend off meritless litigation (see infra [35], [37], [43]) that would necessarily expose it and its members to prolonged inconvenience, expense, and delay. That could also impede upon the operation of its business.

34    It can therefore be accepted that the Owners Corporation will suffer some detriment if the Court were to extend the time in which an appeal might be brought.

Merits of the proposed appeal

35    It is appropriate now to address the merits of the proposed appeal, which is often regarded as a significant consideration: see SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 [23]; DVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1390 [26]. However, in this there is some difficulty. Although the application for an extension of time purported to attach a proposed notice of appeal, the notice does not really expound any substantive intelligible ground. Largely, it asserts that the Registrar of Trade Marks acted without statutory authority, and the decision was invalid. It then says further that the Registrar does not have valid statutory authority to register a trade mark. These are significant assertions, but they are not supported by any particulars. Though Dr Quach sought to rely upon an affidavit which he had sworn in relation to this matter, it does not elucidate what is said to be the absence of power of the Registrar to make decisions under the Trade Marks Act. Largely, the matters raised are matters of assertion with no substance behind them. Thus, it is not possible to ascertain exactly what is meant by or intended by the grounds of appeal, and, for that reason, it is difficult to assume that they carry substantial merit: see, for example, Godla v Commissioner of Police, New South Wales Police Force [2021] FCA 1545 [24]; Kadeh v Administrative Appeals Tribunal (No 3) [2021] FCA 965 [11].

36    Pausing here, it is important to note that this Court and courts of this country in general have hitherto shown an almost inexhaustible tolerance for litigants, and in particular litigants in person, in allowing the agitation of claims and causes before them. There is no doubt that it is just and appropriate to ensure that everyone has access to the courts for the determination and quelling of legitimate disputes. However, as the decision of the High Court in Aon makes clear, the resources of the courts are limited and becoming more so, the time available for the resolution of disputes is becoming less, and the courts must be wary of the impact of litigation on respondents. An undue tolerance for allowing meritless (or near-meritless) claims to proceed, would overlook the enormous damage that can be inflicted on respondents or defendants who are involuntarily brought to court in such proceedings. This might just be one of those cases.

37    In any event, putting to one side its substantive deficiencies, Dr Quach’s proposed appeal faces an insurmountable procedural difficulty. As mentioned (see supra [1]), the application for an extension of time was made by Dr Quach in his personal capacity. However, it was QE Family, and not Dr Quach, who opposed the registration of the trade mark before the Registrar. Under s 56 of the Trade Marks Act, only an “opponent” can appeal from a decision of the Registrar. Thus, only QE Family, as the party who filed a notice of opposition (see supra [12]), has standing to bring an appeal. That there was a discordance between the party who was the opponent or respondent before the Registrar and Dr Quach, was not something unknown to him prior to the hearing of the present application. It had been raised in earlier proceedings, and he was warned of the consequences of it: see Quach v Registrar of Trade Marks (2025) 187 IPR 156, 174 [70].

38    Dr Quach sought to avoid his apparent lack of standing by resorting to some other provisions. Initially, he relied upon r 8.01 of the Rules, which he said made provision for an “interested party” to bring proceedings before the Court. That rule does not make such a provision, nor does it make reference to an “interested party”. It simply refers to a person who wants to start a proceeding. Further, that provision concerns the commencement of proceedings, not pursuing appeals and, as such, does not apply here. That is especially so in circumstances where Dr Quach has no cause of action to agitate.

39    On realising the difficulty with that rule, Dr Quach resorted to r 1.40, saying that that rule gives the Court plenary power to make decisions on the application of a person who has a sufficient interest in the proceedings. That rule provides as follows:

1.40    Exercise of Court’s power

The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

(a)    on its own initiative; or

(b)    on the application of a party, or a person who has a sufficient interest in the proceeding.

40    Dr Quach then asserted that he had a sufficient interest in the proceedings on the basis that he was a director and/or shareholder of QE Family, which was the opponent before the Registrar.

41    It is apparent that although Dr Quach was informed of the duality between an entity which is a body corporate, such as QE Family, and the directors, such as himself, he eschewed that and claimed that his directorship or ownership of a share gave him a sufficient interest. That, with respect, is entirely wrong, and the company QE Family is the entity which has the relevant interest.

42    It is worth observing that it seems clear that Dr Quach was reluctant to make QE Family a party to these proceedings. That may be because he was aware of the possibility of orders for costs which might be enforced against a person who pursued an unsuccessful appeal and wished to protect the company from such a contingency.

43    In any event, the reality is that Dr Quach has sought to intervene in proceedings in which he has no sufficient interest. He was not a party before the Registrar, he has no entitlement to appeal and, for that reason, the proposed appeal would be doomed to fail.

The issue of Mr Cholakos’ authority

44    It should also be mentioned that in the course of the hearing, Dr Quach asserted that Mr Cholakos, a representative of the Owners Corporation, did not have authority to appear on the Owners Corporation’s behalf. This issue had not been raised prior to the commencement of the hearing. It had not been telegraphed to the Owners Corporation, nor to Mr Cholakos. It had not been raised in written submissions, even those belatedly filed.

45    In relation to this, it is important to keep steadily in mind that written submissions are now a critical aspect of the administration of justice. The pre-hearing provision by the parties of the arguments they wish to agitate provides all participants as well as the Court with the opportunity to consider and address the issues raised therein. Had the issue of Mr Cholakos’ standing to represent the Owners Corporation been raised, Mr Cholakos could readily have filed an affidavit establishing his authority. It is a matter of note that, despite Mr Cholakos appearing previously in these proceedings and having filed affidavits stating that he was the authorised representative of the Owners Corporation, no objection had been taken by Dr Quach prior to the present hearing. At the hearing, Mr Cholakos sought to respond to the very late assertion of his lack of authority by relying on an affidavit filed on 17 November 2025 and sworn by him on 14 November 2025. In it, he stated in paragraph 1:

I am authorised to represent the Proprietors of Strata Plan 48462, an interested party to the proceedings and I am authorised to make this affidavit on the proprietors’ behalf.

46    Again, no objection was taken previously to that affidavit or, indeed, to the assertion of Mr Cholakos’ authority to act on behalf of the Owners Corporation.

47    It can be concluded that the issue of Mr Cholakos’ ability to appear before the Court was, in my opinion, a belated issue raised in an ambush-style attempt to derail the matter. Given the obvious insurmountable hurdles that Dr Quach faced, Mr Cholakos was permitted to give oral evidence of his authority to appear. He testified about the making of a written resolution by not just the Owners Corporation itself, but by the members of the corporation in general meeting, and he produced a copy of that minute. Relevantly, the Minutes dated 2 December 2025 stated in the second resolution:

RATIFY APPROVAL FOR REPRESENTATION

Resolved that the Owners, Strata Plan 48462, ratify their approval given via email circular for Greg Medcraft, Bronwyn Morris and Paul Cholakos to represent the Owners Corporation in the Federal Court proceedings in the matter of Dr Michael Quach v Registrar of Trade Marks, including but not limited to providing instructions, sworn statements, evidence and engaging with legal representatives (if required) on behalf of the Owners Corporation.

48    That is, with respect, rather clear in its terms, and was sufficient in the circumstances of this case to authorise Mr Cholakos’ presence in the Court to make representations as he did.

49    Dr Quach also raised his concern that Mr Cholakos may not have been properly authorised on earlier occasions to act on behalf of the Owners Corporation and, in particular, on the application for joinder of the Owners Corporation to the proceedings. With respect, that submission too was meritless. An order was made for the joinder of the Owners Corporation in Quach v Registrar of Trade Marks, and no appeal has been made from that decision. In any event, Dr Quach’s submissions in relation to the agency issue lacked substance in the circumstances of this case.

Conclusion

50    The necessary consequence of the foregoing discussion is that it would be fruitless to extend the time in which Dr Quach might appeal and, therefore, the order of the Court must be that Dr Quach’s application, lodged on 1 September 2025, be dismissed.

Costs

51    On the question of costs, Dr Quach submits that an order ought not be made against him in respect of the costs of the proceedings, in circumstances where the Owners Corporation was self-represented. He says that there are High Court decisions which say that self-represented litigants do not incur legal costs. That is certainly true in respect of the fact that self-represented litigants self-evidently do not incur the costs of lawyers, being solicitors or barristers, and such costs are not recoverable. Similarly, it is a general rule that self-represented litigants are not able to charge for their time in conducting litigation as lawyers or barristers do: Cachia v Hanes (1994) 179 CLR 403, 410–411; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, 339 [1]. However, it is also a general rule that self-represented litigants can recover reasonable disbursements incurred in the proceedings, such as filing fees: Cachia v Hanes (1991) 23 NSWLR 304, 317. The Owners Corporation will likely have incurred such costs in defending the application, which it should be permitted to recover.

52    The order will be that the applicant pay the Owner Corporation’s costs of the application.

Note

53    These are the amended and revised reasons for judgment given on 29 January 2026. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:    

Dated:    5 February 2026