Adamant Laboratories (Pty) Ltd v General Electric Co

• Judge: Bekker J, Theron J and Colman J
• Judgment Date: 15 May 1964
• Citation: 1964 (3) SA 363 (T)
• Hearing Date: 06 May 1964
• Court: Transvaal Provincial Division

Colman, J.:

This is an appeal, in terms of sec. 79 of the Patents Act, 37 of 1952, from a decision of the Commissioner of Patents.

C The present appellant had (by virtue of an assignment from certain of its employees) been the applicant for a patent for an invention relating to the synthesis of diamonds, and the present respondent had been an objector to the grant of that patent.

The appropriate documents having been filed, and the opposition proceedings being ripe for determination, they were set down for hearing D before the Commissioner on 2nd May, 1962. On 24th April, 1962, one week before the date appointed for the hearing, the application for the patent was withdrawn, the applicant undertaking to pay the objector's taxed costs.

After certain intermediate proceedings had been heard and disposed of, E the objector presented its bill of costs for taxation, and it was taxed by the Deputy Registrar of Patents in his capacity as Taxing Master of the Patent Court. The objector, being aggrieved by the disallowance of certain items in its bill of costs, appealed to the Commissioner. And the Commissioner, in the exercise of his jurisdiction to do so, upheld the appeal with costs, and remitted the items in dispute to the Taxing F Master for reconsideration by him. It is against this decision that the applicant in the Patent Court comes on appeal to us.

Before I refer to the disputed items it will be convenient to say something, firstly, about the powers of the Commissioner in a revision of taxation, and secondly, about the importance and difficulty of the proceedings in which the relevant costs were incurred.

G The matter came before the Commissioner under sec. 76 (2) of the Patents Act. That sub-section provides that a taxation of costs in a patent matter shall be subject to 'appeal' to the Commissioner. But sec. 76 (1) lays down that

'generally, the Commissioner shall, in connection with any action or proceedings before him, have all such powers and jurisdiction as are H possessed by a Judge sitting alone to try a civil action before a Provincial Division of the Supreme Court . . .'

And in sec. 82 (1) it is provided that, save as otherwise laid down in the Patents Act, the procedure in any proceedings before the Commissioner shall, as far as practicable, be in accordance with the law and rules governing procedure in civil cases in the Supreme Court.

The Commissioner, therefore, concluded that despite the use of the word 'appeal' in sec. 76 (2), it was for him, in a revision of taxation,

Colman J

to apply the principles which govern a revision of taxation in the Supreme Court. That approach by the Commissioner was not criticised in the appeal before us, and, in my judgment, rightly so. I turn therefore A to the authorities relating to review of taxation in the Supreme Court.

The leading case is Wellworths Bazaars Ltd v Chandlers Ltd. and Others, 1947 (4) SA 453 (T). It has been followed in a number of subsequent cases, including Century Trading Co. (Pty.) Ltd v The Taxing Master and Another, 1958 (1) SA 78 (W), where its effect was summarised by WILLIAMSON, J., in these terms:

B '. . . the bringing of a bill of costs which has been taxed, before a Court . . . 'for a revision' is not strictly a 'review' in the sense of the Court only interfering with the exercise of an improper discretion . . . I think that at least the position must be that the Court can interfere when in its view the Taxing Master has been clearly wrong in regard to some item'

C I would add a reference to Ally and Others v The Taxing Master and Others, 1954 (3) SA 728 (W), wherein it was held (at p. 733) that a Judge (even in respect of a case which he has not himself heard) is by reason of his experience at the Bar and on the Bench in a better position to assess the difficulty and importance of a matter than the Taxing Master is. Such superior qualification must, in my view, be D attributed likewise to the Commissioner of Patents when he sits to review a taxation.

It was argued before us that the principle, to which I have last referred, has been applied by the Courts only in cases where the matter...