Jonathan Livingston Engineering Co Limited v Commissioner of Patents

[2021] NZHC 2542

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-25

[2021] NZHC 2542

BETWEEN

JONATHAN LIVINGSTON

ENGINEERING CO LIMITED
Appellant

AND

COMMISSIONER OF PATENTS

Respondent

Hearing:	27 September 2021
Appearances:	V C Casey QC as Counsel Assisting
Judgment:	27 September 2021

JUDGMENT OF COOKE J

(Dismissing appeal for failure to prosecute)

[1]                 This proceeding involves a proposed appeal by the appellant against a decision of the Assistant Commissioner of Patents to refuse to accept a patent application.

[2]                 The appeal was originally filed in January 2020. At that stage the appellant was represented by counsel, but counsel was granted leave to withdraw in August 2020.

[3]                 Very little has happened with the proceedings since that date, with the primary issue being whether Mr Yi-Chuan Lin could represent the appellant in the appeal. On 22 February 2021 Gendall J directed that an application for Mr Lin as a non-lawyer to represent the company should be filed with supporting information.

[4]                 Documents were subsequently filed by Mr Lin, but they did not meet the requirements. At a case management conference on 3 May 2021 at which Mr Lin

JONATHAN LIVINGSTON ENGINEERING CO LIMITED v COMMISSIONER OF PATENTS [2021] NZHC

2542 [27 September 2021]

appeared by telephone from Taiwan Isac J gave Mr Lin a further opportunity to provide the necessary information in support of the application earlier identified by the Court.

[5]                 Further materials were then filed, but they were still inadequate. By judgment dated 28 May Isac J dismissed the application.1 When doing so he said:

[30]      A further case management conference will be scheduled in  late July 2021. That will provide the appellant with a further, but final, opportunity to instruct a lawyer to represent it in this proceeding.

[31]      Without determining the matter, if representation has not been resolved by the next conference, it may be necessary to consider whether striking out the appeal is an appropriate step.

[6]                 The date for the callover has since been rescheduled to the hearing today. By email to the Registrar dated 24 September Mr Lin then stated (inter-alia):

Evidently, the Justice is strongly biased and mistaken, fair and just considerations could no longer be expected from such an honerable [sic] position. So please understand that I have to refuse to participate all coming proceedings in the future, unless there happens to be a voluntary Justice change.

[7]                 When the proceedings were called this morning there was no appearance for the appellant. Ms Casey QC appeared as amicus. She made application under r 20.12 of the High Court Rules 2016 that the appeal be dismissed as the appellant had failed to proceed with it.

[8]                 I apply the principles referred to in Gibson v Dental Disciplinary Tribunal in considering this application, with the ultimate question being to determine what is in the interests of justice.2 This appeal was filed in January 2020, more than 18 months ago. No substantive steps have been taken since that time. The delay has been inordinate and inexcusable. As Ms Casey submitted there is a public interest in having appeals concerning patents addressed as soon as practicable. Nothing has been advanced by the appellant to demonstrate why counsel could not be instructed. Mr Lin

1      Jonathan Livingston Engineering Co Ltd v Commission of Patents [2021] NZHC 1227.

2      Gibson v Dental Disciplinary Tribunal (2005) 17 PRNZ 669.

has said that he now declines to participate. In those circumstances it is clear that the appeal should be dismissed under r 20.12, and I duly make that order.

Cooke J

Solicitors:
Clifton Chambers, Wellington for Counsel Assisting