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Trinidad and Tobago

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Cv. A. No. 14 of 1999

An application for registration of a trademark was filed with the Trinidad and Tobago Intellectual Property Office (“TTIPO”) by Trinidad Import and Export Company Limited (“TIECL”). The Respondent filed a notice in opposition to the said application, following which a counter statement was filed by TIECL, a copy of which was received by the Respondent on November 2, 1995. The Deputy Controller of TTIPO issued a letter to the Respondent, requiring the filing of its evidence in opposition by November 30, 1995.

On November 29, 1995, Attorneys-at-Law for the Respondent wrote to the Deputy Controller of TTIPO requesting an extension to the end of February, 1996, for the filing of said evidence. The Deputy Controller, in her reply, invited the Respondent to seek the consent of TIECL regarding the requested extension and advised that if TIECL had not agreed to same by January 31, 1996, a hearing would be fixed for the Respondent’s application. No consent was granted by TIECL, and the Respondent notified the Deputy Controller accordingly, in response to which the Deputy Controller informed the Respondent’s Attorneys-at-Law that their application for an extension of time would be heard on February 16, 1996, at 10:00 a.m. This hearing was not attended by the Attorney-at-Law for the Respondent but was attended by a director of TIECL. After waiting half an hour, the Deputy Controller commenced the hearing in the absence of the Attorney-at-Law for the Respondent and heard the reasons expressed on behalf of TIECL for opposing the grant of the extension. The Deputy Controller then decided to refuse the Respondent’s application for an extension.

Later that day, the Respondent’s Attorney-at-Law learnt of what transpired at the hearing, and he subsequently communicated with the Deputy Controller regarding the proceedings. By letter dated March 5, 1996, the Respondent’s Attorney-at-Law resubmitted his request for an extension of time. The Deputy Controller sought the guidance of the Solicitor General on the matter, who advised that there was no power in legislation, given to the Deputy Controller, to reopen the application for the extension of time. Accordingly, the Deputy Controller declined to reopen the same.

The Respondent initiated judicial review proceedings in the High Court, which quashed the decision of the Deputy Controller not to re-open the Respondent’s application. The Deputy Controller then appealed the decision of the High Court.

The Court of Appeal found that the issue to be determined was whether or not the Deputy Controller had the power to reopen the question of granting an extension, having made her decision to refuse it in the absence of the Attorney-at-Law for the Respondent. In addition to the Trade Marks Act, Chapter 82:81 and the Trade Marks Rules (GN 91/1956) made under the Act, the court examined R v Kensington and Chelsea Rent Tribunal, ex parte Mac Farlane and the earlier case of R v London County Quarter Sessions Appeals Committee, ex parte Rossi, both of which suggested that there is a principle of general application to tribunals and decision-makers, apart from any power that might be given in legislation, to reconsider an order which was made in the absence of a party who would have had a right to be heard, regardless of whether or not that party was given the opportunity to attend. It was the court’s view that it was not necessary to await the making of legislation by Parliament to avoid injustice and as such, the court was in agreement with the principle laid down in Rossi. The court also considered that when a matter proceeds in the absence of a party, it is most probable that the tribunal or decision maker is not in full possession of the facts accounting for the absence of that party.

The court therefore held that the Deputy Controller had the power to reopen the matter and to give the Respondent an opportunity to be heard, although such power should not be exercised in situations which would involve the decision-maker resolving the same issue a second time. Accordingly, the appeal of the Deputy Controller was dismissed with an order to quash her refusal of the extension of time and re-hear the application for the extension, as well as to pay costs to the Respondent.

Cases referred to: R v Kensington and Chelsea Rent Tribunal, ex parte Mac Farlane; and R v London County Quarter Sessions Appeals Committee, ex parte Rossi.