Aco Polycrete Pty Ltd v Krebar Pty Ltd

Aco Polycrete Pty Ltd (Aco) sought a direction from the Registrar concerning the late service of evidence by Krebar Pty Ltd in opposition proceedings. The dispute arose when Krebar served two further declarations as part of its evidence in support, which arrived at Aco's office late on the afternoon before the hearing and were left with a neighbouring tenant as Aco's office was unattended. Aco's representative was out of the country and unaware of the service until the morning of the hearing.

The court was required to determine whether to grant a direction regarding the late service of Krebar's evidence. This involved considering the procedures for the service and filing of evidence in opposition proceedings, particularly in relation to applications for extensions of time. The court also had to assess the appropriateness of the Registrar giving a direction under regulation 5.16 of the relevant regulations, which requires the Registrar to be satisfied that parties have been notified, given an opportunity to make representations, and that the direction is appropriate.

The court referred to regulation 5.15, which permits applications for extensions of time for serving evidence, and regulation 5.16, which allows the Registrar to give directions regarding procedure. The court also noted Part 51, paragraph 3.3 of the Trade Marks Office of Practice and Procedure, which states that while the other party has a right to make representations, the onus remains on the applicant for an extension to justify the time sought. The Office has benchmark limits for extensions, which are not absolute but serve as guidance. The court considered that the late service of the declarations, arriving on the eve of the hearing and left with a neighbouring tenant, meant that Aco's representative was not properly notified and did not have a reasonable opportunity to consider the evidence before the hearing.

The Registrar granted Aco's request for a direction, effectively deeming the service of the two declarations to be ineffective. This meant that Krebar would need to re-serve the declarations and potentially seek an extension of time, subject to Aco's right to make representations.