Daimler AG v Sany Group Co Ltd - [2014] NZCA 421

IN THE COURT OF APPEAL OF NEW ZEALAND

CA227/2014
[2014] NZCA 421

BETWEEN	DAIMLER AG Applicant
AND	SANY GROUP CO LIMITED Respondent

Hearing:	11 August 2014
Court:	O’Regan P, Randerson and Harrison JJ
Counsel:	R Wallis and T A Huthwaite for Applicant M T Lennard for Respondent
Judgment:	28 August 2014 at 12 pm

JUDGMENT OF THE COURT

AWe rule that the appeal provision applying to the applicant’s intended appeal is s 66 of the Judicature Act 1908.

B We grant an extension of time to appeal.

CThe respondent must pay costs on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

This is an application for an extension of time to appeal against a decision of the High Court, upholding a decision of the Assistant Commissioner of Trade Marks.[1] The notice of appeal against the decision of the High Court was filed one day out of time. The respondent does not object to an extension of time, given the minimal delay and lack of any prejudice to the respondent, but raises a jurisdictional point.

Which appeal provision applies?

[1]Daimler AG v Sany Group Co Ltd [2014] NZHC 532. The decision that was subject to the appeal to the High Court was made by an Assistant Commissioner under delegation from the Commissioner of Trade Marks. For ease of reference we will refer to the Commissioner from now on, with the intention that all references are intended to refer also to Assistant Commissioners.

The argument raised by the respondent is that any appeal against a decision of the High Court on appeal from the Commissioner of Trade Marks must be brought under s 67 of the Judicature Act 1908, and therefore leave to appeal must be obtained. The applicant filed an appeal under s 66 of the Judicature Act, and maintained that it is the applicable appeal provision. Under s 66, the appeal is as of right, and no leave is required. This case is another example of the difficulties arising from inconsistent and incomplete provisions in legislation dealing with appeals to this Court. The issue before us could easily have been resolved by an appeal provision referring specifically to s 66 or s 67.[2]
[2]See the discussion in McGechan on Procedure (online looseleaf ed. Brookers) at [J67.03].
Section 66 provides a general right of appeal from any “judgment, decree, or order” of the High Court. The High Court decision to which the intended appeal relates was clearly a “judgment” for the purposes of that provision.
Section 67 deals with appeals against decisions of the High Court on appeal “from an inferior court”. Under s 67, leave to appeal must be obtained either from the High Court or, if that Court refuses leave, this Court. If the High Court decision is an appeal from an inferior court, s 67 prevails over s 66.[3]

Issue

[3]Osborne v Auckland City Council [2012] NZCA 199, (2012) 21 PRNZ 76 at [21].

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZCA 421
Decision Date: 28 August 2014 at 12 pm

CaseChat Overview and Summary

Daimler AG sought an extension of time to appeal against a decision of the High Court. The High Court decision was itself an appeal against a decision of the Commissioner of Trade Marks. The appeal to the High Court was filed one day out of time. The issue was which provision of the Judicature Act 1908 applied to the intended appeal to the Court of Appeal. The relevant provisions were s 66, which provides a general right of appeal from any judgment, decree or order of the High Court, and s 67, which deals with appeals against decisions of the High Court on appeal from an inferior court. The Commissioner of Trade Marks is an officer appointed by the State to exercise certain powers under the Trade Marks Act 2002. The Commissioner's functions include examining applications for the registration of trade marks, appointing an advisory committee and maintaining the register of trade marks. The Commissioner does not have power to enforce orders, except those pertaining to the maintenance of the register. The Commissioner is an employee of the Ministry of Business, Innovation and Employment, rather than an independent officer. The Commissioner does not undertake roles traditionally assigned to a court, such as resolving disputes in relation to domain names, resolving disputes about alleged infringements of trade marks and resolving border control issues. The Commissioner is not referred to as a court in the Trade Marks Act 2002 and the statutory provisions do not refer to proceedings before the Commissioner as "judicial proceedings". Although the Commissioner is appointed by the State and fulfils a public function, the Commissioner's status as an employee of a Ministry, rather than an independent officer, and the broader powers of the Commissioner contained in s 175A tell against a finding that the Commissioner is a court of judicature. The Court concluded that the appeal was properly brought under s 66 of the Judicature Act 1908. The Court granted an extension of time to appeal. The respondent must pay costs on a band A basis plus usual disbursements.

Orders