Read the full judgment text of HCAL 002061/2000 on BabelCite. This High Court CFI judgment was delivered on 31 January 2001 before Hartmann J.
Administrative law – judicial review – trade marks – opposition proceedings – Registrar's discretion to extend time under Trade Marks Rules Rule 91 – sub-contract terminated due to delay in progress – oral hearing on extension application – subsequent change in applicable guidelines – T-Mobil judgment – Bristol-Myers Squibb guidelines superseded – principles of procedural fairness – natural justice – duty to afford parties opportunity to make representations on new legal authority – whether the Registrar was required to inform parties of the new legal framework and invite fresh submissions before deciding – whether the absence of such notification vitiated the decision – certiorari – mandamus – costs. On 7 June 2000 the Registrar heard oral representations on the Applicant's application for an extension of time to file notices of opposition to the registration of four trade marks by Morgan & Banks Ltd. The day after the hearing, on 8 June 2000, the T-Mobil judgment was handed down, holding that the approach under Bristol-Myers Squibb (which required a satisfactory explanation for delay as a precondition to exercising discretion) was no longer the correct test, and that under Mortgage Corporation Ltd v Sandoes and Finnegan v Parkside Health Authority the court must look at all the circumstances and weigh the adequacy of any reason for delay against other factors. The Registrar, despite the change in law, did not call for a second hearing or invite further submissions but proceeded to refuse the extension on 12 June 2000. Held, granting an order of certiorari and an order of mandamus: the Registrar, in performing her statutory duties, is constrained to act in accordance with procedural fairness; the twin pillars of natural justice encompass the right to be heard and to advocate one's case by way of submissions; there is no difference in principle between 'evidence' and 'legal precedent' which the tribunal proposes to take into consideration; the Registrar's failure to inform the parties of the T-Mobil judgment and to afford them an opportunity to make fresh representations amounted to a breach of procedural fairness, particularly because T-Mobil was advantageous to the Applicant and deprived it of the chance to argue its case under the more favourable framework; the obligations of procedural fairness rest on the tribunal, not on the parties. Decision quashed and matter remitted to the Registrar to reconsider in accordance with law; order nisi for costs in favour of the Applicant, to be made final if no application to argue costs is made within 30 days.
Legal issues: Whether the Registrar's reliance on a new legal framework without notice to the parties breached procedural fairness
Outcome: Order of certiorari granted quashing the Registrar's decision of 12 June 2000; order of mandamus granted remitting the matter to the Registrar to reconsider in accordance with law.
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