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Daimler AG v Sany Group Co Ltd

(2014 NZCA 421; 28th August 2014)

In Daimler AG v Sany Group Co Ltd Daimler applied for an extension of time in which to appeal, given that their notice of appeal was filed one day late. Daimler filed its notice of appeal under section 66 of the Judicature Act 1908, which does not require leave to appeal to be obtained from the Court. However, Sany contend that Daimler should have filed under section 67, which does require leave to appeal to be obtained.
The Court of Appeal determined that for section 67 to be the correct appeal ground it would require a decision of the Commissioner of Trade Marks to be regarded as a decision of an inferior Court to the High Court.
However, the Court of Appeal determined that a decision of the Commissioner of Trade Marks cannot be regarded as a decision of an inferior Court to the High Court for the following reasons:
• the Commissioner is not appointed by the Governor-General or a Minister;
• the Commissioner’s role is narrower than a court given that the Commissioner does not resolve disputes relating to trade mark infringement, domains or border control issues;
• costs orders of the Commissioner can only be enforced with the leave of the Court;
• in context the Act does not refer to proceedings before the Commissioner as judicial proceedings;
• the Commissioner does not have the power to summon witnesses.