Chiron Corporation v Registrar of Trade Marks

[1998] FCA 928

FEDERAL COURT OF AUSTRALIA

TRADEMARKS – ADMINISTRATIVE REVIEW - review of decision of Registrar – extension of time in which to file notice of opposition – whether “error or omission” in accordance with the Trade Marks Regulations.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Trade Marks Act 1995 (Cth)
Patents Act 1952 (Cth)
Trade Marks Regulations 1995 (Cth)

Kimberly-Clark Ltd v Commissioner of Patents ( No 3) (1988) 131 IPR 569, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-368, cited
Waterford v The Commonwealth (1987) 163 CLR 54 at 77, cited

CHIRON CORPORATION v

THE REGISTRAR OF TRADE MARKS

NG 576 of 1997

BRANSON J
SYDNEY
7 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 576  of   1997

BETWEEN:	CHIRON CORPORATION APPLICANT
AND:	THE REGISTRAR OF TRADE MARKS RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		7 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the delegate of the Registrar of Trade Marks be affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 576 of 1997

BETWEEN:	CHIRON CORPORATION APPLICANT
AND:	THE REGISTRAR OF TRADE MARKS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	7 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application under s 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) (“the ADJR Act”) for an order of review in respect of the decision of the first respondent that an application for an extension of time within which the applicant may file a notice of opposition to the registration of the trade mark in Trade Mark Application No. 672041 be refused.  Trade Mark Application No. 672041 has been made by the second respondent.

It is accepted that the applicant is a person who is aggrieved by a decision to which the ADJR Act applies within the meaning of s 5 of the ADJR Act. The ground upon which the application was argued is that the decision involved an error of law. The alternative ground identified in the written application, that the making of the decision was an improper exercise of the power conferred by the Trade Marks Act 1995 (Cth) (“the Act”), was not pressed.

STATUTORY BACKGROUND

Part 4 of the Act, which is comprised of ss 27-51, is concerned with applications for the registration of a trade mark in respect of goods and/or services. Sections 27-29 govern the making of such an application. Section 30 provides that the Registrar must publish particulars of the application in accordance with the Trade Marks Regulations (“the Regulations”).

Part 5 of the Act, which is comprised of ss 52-62, is concerned with opposition to the registration of a trade mark. So far as is here relevant, s 52 provides as follows:

“52(1)If the Registrar has accepted an application for the registration of a trade mark, a person may oppose the registration by filing a notice of opposition.

(2)The notice of opposition must be in an approved form and must be filed within the prescribed period or within that period as extended in accordance with the regulations.”

Regulation 5.1 of the Regulations fixes the prescribed period for the purposes of s 52 of the Act. It is in the following terms:

“5.1For the purpose of s 52(2) of the Act (which deals with notice of opposition), the period for filing a notice of opposition is 3 months from the day on which the acceptance of the application is advertised in the Official Journal.”

It is necessary also to note the terms of regulations 5.2, 5.3 and 5.4:

“5.2(1) A person may apply to the Registrar for an extension of time in which to file a notice of opposition.

(2)   An application for an extension of time may be made within the period for filing a notice of opposition referred to in regulation 5.1 on 1, or more than 1, of the following grounds and on no other ground:

(a)an error or omission by a trade marks officer;

(b)an error or omission by the person applying for the extension of time, or by the person’s agent;

(c)circumstances beyond the control of the person applying for the extension of time;

(d)the conduct of genuine negotiations between that person and the applicant for registration;

(e)the undertaking of genuine research to decide:

(i)whether opposition is justified;  or

(ii)on the grounds of opposition.

(3)   If the period for filing a notice of opposition has ended, an application for extension of time may be made at any time before the trade mark is registered on 1, or more than 1, of the grounds set out in paragraph (2)(a), (b) or (c) and on no other ground.

5.3An application for an extension of time in which to file a notice of opposition must:

(a)be in an approved form;  and

(b)be accompanied by a declaration stating:

(i)the facts on which the grounds specified in the application are based;  and

(ii) if the period for filing a notice of opposition has ended – the reason why the application was not made before the end of that period.

5.4(1)Subject to subregulations (2) and (4), if the Registrar is reasonably satisfied as to the grounds set out in an application for an extension of time to file a notice of opposition, the Registrar must grant the extension of time.

(2)The Registrar must not grant the extension of time, unless the Registrar:

(a)is reasonably satisfied that the person applying for the extension of time has served a copy of the application, and the accompanying declaration, on the applicant for registration of the trade mark;  and   

(b)has given to both the person applying for the extension of time and the applicant for registration of the trade mark a reasonable opportunity to make representations concerning the application for extension of time.

(3)For the purposes of paragraph (2)(b), the representations may be made in writing or at a hearing or by such other means as the Registrar reasonably allows.

(4)If an application for extension of time is made after the period for filing a notice of opposition has ended, the Registrar must not grant the extension unless the Registrar is reasonably satisfied that there is sufficient reason for the application not being made before the end of that period.

(5)An extension of time must be for such period:

(a)in the case of an extension of time that is granted on a ground set out in paragraphs 5.2(2)(a), (b) and (c) – as the Registrar believes is reasonable;  or

(b)in the case of an extension of time that is granted on a ground set out in paragraphs 5.2(2)(d) and (e) – not exceeding 3 months as the Registrar believes is reasonable.”

FACTUAL BACKGROUND

The second respondent, by an application dated 4 September 1995, applied in accordance with the regulations for registration of the trade mark “CHIRON” in respect of computer software.    Acceptance of the application was advertised in the Official Journal dated 15August 1996.   On 15 November 1996 the applicant, by a legal practitioner in the employ of its Trade Mark Attorneys (“the legal practitioner”), applied for an extension of time within which to file a notice of opposition on the ground of the conduct of genuine negotiations between the applicant and the respondent (reg. 5.2(2)(d)).  An extension of time within which the applicant might file a notice of opposition was granted until 15 February 1997.       

On 14 February 1997 the applicant, by the legal practitioner, again  applied for an extension of time within which to file a notice of opposition on the ground of the conduct of genuine negotiations between the applicant and the respondent.  By a statutory declaration of the same date provided to the Registrar in support of the second application for an extension of time, the legal practitioner set out a history of negotiations between the applicant and the second respondent.  In that statutory declaration the legal practitioner made reference to advice provided to the second respondent that “we intended to apply for a further extension of time within which to lodge Notice of Opposition to Application 672041” (emphasis added).

By letter dated 27 February 1997, a Hearings Officer of the Australian Industrial Property Organisation (“AIPO”) advised the applicant’s Trade Mark Attorneys as follows:

“Subregulation 5.2(3) provides that if the period for filing a notice of opposition has ended, an application for extension of time may be made on the grounds set out in paragraphs 5.2(2)(a), (b) or (c) and on no other ground.  In accordance with Regulation 5.1 the period for filing notice of opposition is 3 months from the date of advertisement of the acceptance of the application for registration. In the present case that period ended on 15 November 1996.  As the grounds cited in your application and in the supporting declaration do not come within any of the grounds provided under subregulation 5.2(3), the extension of time is not allowable.  The Registrar therefore proposes to refuse the extension of time sought unless you request to be heard in the matter within 14 days from the date of this letter.”

On 5 March 1997 the applicant, by the legal practitioner, again applied for an extension of time within which to file a notice of opposition.  The ground relied on in this application was “an error or omission by the person applying for the extension of time, or by that person’s agent” (reg. 5.2(2)(b)).   On the same day, the applicant, by the legal practitioner, lodged a notice of opposition to registration of the trade mark in Trade Mark Application No. 672041.   By a statutory declaration provided to the Registrar in support of the application for an extension of time dated 5 March 1997, the legal practitioner declared:

“8.This application for extension for time was clearly lodged in error because Notice of Opposition should have been filed by the deadline of 15 February 1997.”

No additional explanation or particularisation of the error or omission relied upon was given by the statutory declaration.

By letter dated 18 March 1997 from AIPO, the applicant’s Trade Mark Attorneys were advised:

“You have stated that you are relying on the ground of an error or omission by the person applying for the extension of time, or by that person’s agent.  Your Statutory Declaration at 8. indicates that “this application for extension of time was clearly lodged in error because Notice of Opposition should have been filed by the deadline of 15 February 1997”.   I have considered your declaration and do not believe that this statement, above, is sufficient to support the ground claimed.   …  Your Statutory Declaration does not indicate the reason that the Notice of Opposition was not filed.  If, for instance, it was due to an incorrect diary entry or similar which led to failure to file the Notice of Opposition in time, and such information was submitted in declaratory form, consideration could be given under regulation 5.3.  At the present time, however, it is not clear how the claimed “error or omission” came to occur.

The alternative to the submission of a further declaration is to seek a hearing in the matter.  I intend to refuse the application if you fail to use these avenues within 14 days of the date of this letter.”

By a statutory declaration dated 26 March 1997 the legal practitioner declared as follows:

“1.I am an employee of Spruson & Ferguson and am responsible for the conduct of this case.

2.This Declaration is supplementary to my Declaration dated 5 March 1997 which was lodged at the Trade Marks Office in support of an application for extension to lodge Notice of Opposition on that same day.

3.My firm has two means of monitoring deadlines, one of which is the employee’s personal diary and the other is a computer-generated reminder system.

4.I had diarised this matter for 13 February 1997 to apply for an extension of time.

5.Annexed marked “A” is a copy of my diary entry for this date.

6.On 14 February 1997, I applied for a three month extension of time within which to file Notice of Opposition to registration of application 672041 and crossed out my diary entry of 13 February 1997.

7.I made an error in diarising this matter on 13 February 1997 to apply for an extension of time and not to file Notice of Opposition.

8.Accordingly, an extension of time from 15 February to 25 March 1997 is required within which to lodge Notice of Opposition to application 672041.”

The diary entry referred to in para 5 of the above statutory declaration reads “10020/25 get ext^n”  and has two lines through it.   The numbers “10020/25” are the file reference for this matter of the firm Spruson & Ferguson.

By letter dated 30 April 1997 addressed to the Deputy Registrar, Hearings, the solicitors for the second respondent noted that the statutory declarations made by the legal practitioner made no mention of why her firm’s computer generated reminder system failed to alert her to, in effect, the need to file a notice of opposition.  The solicitors referred to the extended delay that had occurred and asked that the extension of time sought on behalf of the applicant be denied.  A copy of this letter was provided by AIPO to the legal practitioner.

By a further statutory declaration, made on 16 May 1997, the legal practitioner declared:

“3.As I explained in my Statutory Declaration of 26 March 1997, my firm has two means of monitoring deadlines, one of which is a computer-generated reminder system.

4.Ten days before a deadline, my firm’s computer system produces a reminder notice of the impending deadline and requires an employee to advise what action has been taken.

5.On 14 February 1997, when I applied for a three month extension of time within which to file Notice of Opposition to registration of Application 672041 the computer-generated reminder form of my firm gave me the option of requesting either an extension of time or filing Notice of Opposition.  Annexed hereto and marked Exhibit “A” is a copy of a printout of that computer-generated reminder.

6.The computer-generated reminder system did not inform me that I already [sic] applied for an extension of time within which to file Notice of Opposition to registration of Application 672041.

7.On 14 February 1997, I applied for a three month extension of time within which to file Notice of Opposition to registration of Application 672041 and in doing so made an error in not filing Notice of Opposition.

8.My error was a result of an incorrect diary entry in my personal diary of 13 February 1997 and because my firm’s computer-generated reminder was not set up to give me only the option of filing Notice of Opposition.”

The Deputy Registrar, Hearing, fixed Friday 20 June 1997, as the date for a formal hearing date to resolve the validity of the application for an extension of time within which to file a notice of opposition dated 5 March 1997.    Each of the applicants and the second respondent advised the Deputy Registrar, Hearings, that it would rely on documentation before the Registrar and would not appear at the hearing.

REASONS FOR DECISION OF THE DELEGATE OF THE REGISTRAR

The delegate of the Registrar (“the delegate”) in his written reasons for decision referred to regulation 5.1 of the regulations and noted:

“The period for filing notice of opposition therefore ended on 15 February 1997 so that any application for an extension of time made after that date could be validly made only on the grounds set out in paras (a), (b) and (c) of reg. 5.2(2).”

The delegate referred to authorities in which consideration is given to the term “error or omission”.   He gave consideration to the statutory declarations made by the legal practitioner and observed:

“Having declared in her statutory declaration on the very day the application for extension of time was lodged that her intention at that time was to apply for a further extension I think that she cannot be heard to say now that she was not aware that an earlier extension had already been applied for or that she was not reminded of that fact on 6 February when the computer-generated reminder notice was produced.  Her “incorrect” diary entry is evidence of no more than that she intended all along to apply for an extension of time and had never formed the intention to file a notice of opposition at any time up until the date of filing the application for the extension.”

The delegate concluded:

“The ‘error or omission’ claimed was no more than a failure to file the notice of opposition in time which of itself is not an error or omission in terms of the regulation.  The power of the Registrar to grant the extension of time was not therefore enlivened and in accordance with reg. 5.4(4) I have no alternative but to refuse the application.”

CONTENTIONS OF THE APPLICANT

The first submission of the applicant was that the delegate erred in law in concluding that for the purpose of reg. 5.2 of the Regulations the period for filing a notice of opposition ended on 15 February 1997. The contention advanced was that the phrase “the period for filing a notice of opposition referred to in regulation 5.1” appearing in the opening words of reg. 5.2(2) of the Regulations, includes any extension of that period granted by the Registrar pursuant to reg. 5.4.

The second submission of the applicant was, in effect, that since, as the applicant contended, the legal practitioner acted on a wrong construction of reg. 5.2 of the Regulations, the delegate made an error of law in concluding that her error did not fall within reg. 5.2(2)(b) so as to enliven the discretion in the Regulation to grant the extension of time sought.

CONSIDERATION

In my view, the construction of reg. 5.2(2) of the Regulations for which the applicant contends must be rejected.

Regulation 5.2  allows a person to apply to the Registrar, at any time before the trade mark is registered, for an extension of time within which to file a notice of opposition.  However, more extensive grounds may be relied on if an extension is sought at any early stage than if an extension is sought at a later stage.    Regulation 5.2(2) lists the grounds upon which such an application may be made “within the period for filing a notice of opposition referred to in regulation 5.1”.  Regulation 5.2(3) provides that only a limited number of the grounds set out in reg. 5.2(2) are available “[i]f the period for filing a notice of opposition has ended”.   Senior Counsel for the applicant appropriately conceded that the period referred to in reg. 5.2(3) must be the same period as that referred to in reg. 5.2(2), namely “the period for filing a notice of opposition referred to in regulation 5.1”.

The period for filing a notice of opposition referred to in regulation 5.1 is three months. Regulation 5.1 makes no mention of any extension of that period. Section 52(2) of the Act provides that a notice of opposition must be filed within the prescribed period (ie. the period prescribed by reg. 5.1) or within that period as extended in accordance with the regulations (ie. as extended by the Registrar under reg. 5.4). However, it would seem to fly in the face of the plain words of reg. 5.2(2) to treat “the period for filing a notice of opposition referred to in regulation 5.1” as including any extension of that period granted pursuant to reg. 5.4 in a particular case.  The words “referred to in regulation 5.1” must be given some work to do:  they are calculated, in my view, to limit the period within which the grounds set out in reg.5.2(2)(d) and (e) to may be invoked by an applicant for an extension of time within which to file a notice of opposition.  That is, they are intended to impose a temporal limit on the extent to which the processing of an application for registration may be delayed by negotiations between an applicant for registration and a potential opponent to the registration, or by the undertaking of research by a potential opponent to the registration.

I turn to consider the second submission of the applicant. This submission is dependent upon the applicant’s contention that the legal practitioner acted on a wrong construction of reg. 5.2 of the Regulations and that, if the delegate concluded otherwise, such conclusion amounted to an error of law.

The applicant did not suggest that the delegate made an error of law in his construction of the words “error or omission” in reg. 5.2(2)(d).  In this respect the delegate referred to the decision of Jenkinson J in Kimberly-Clark Ltd v Commissioner of Patents ( No 3) (1988) 131 IPR 569. In that case Jenkinson J gave consideration to the meaning of the words “error or omission” in a context similar to reg. 5.2 of the Regulations, namely in s 160 of the now repealed Patents Act 1952 (Cth) (“the Patents Act”). So far as is presently relevant, s 160 of the Patents Act provided:

“160(1)Where, by reason of error or omission on the part of an officer or person employed in the Patent Office, an act or step in relation to an application for a patent or in proceedings under this Act (not being a proceeding in a court) required to be done or taken within a certain time has not been so done or taken, the Commissioner shall extend the time for doing the act or taking the step.

(2)Where, by reason of –

(a)an error or omission on the part of the person concerned or of his agent or attorney;  or

(b)circumstances beyond the control of the person concerned,

an act or step in relation to an application for a patent or in proceedings under this Act (not being proceedings in a court) required to be done or taken within a certain time has not been so done or taken, the Commissioner may, upon application by the person concerned, but subject to this section, extend the time for doing the act or taking the step.”  

Before his Honour it was contended that the person who made the decision under review mistakenly construed the words “error or omission” in s 160(2)(a) as comprehending only accidental events or inadvertence, and not as comprehending that which is merely the product of error of judgment. As to this contention, Jenkinson J said at 579-580:

“It is in my opinion difficult to suppose that only the inadvertences and accidental steps, and not errors resulting from faulty reflection, of [officers or employees of the Patent Office] were intended by the draftsman to be within s 160(1). Further, the word ‘error’ is not easily assigned a clear meaning restricted by reference to one or several particular categories of flawed mental function. The attempt is likely to lead to the drawing of fine and often unrealistic distinctions. And some errors of judgment by agents and attorneys may be as bizarre and as little to be anticipated as lapses of memory and accidental slips. Although the latter kinds of error may be those which the draftsman had principally in mind, I do not think the phrase ‘error or omission’ should be given by construction the restricted meaning which the delegate assigned, and accordingly I conclude that this ground of the application has been established.

I do not think that the conclusion I have reached reduces s 160(2)(a) to a mere power of general extension.  By no means every judgment by ‘the person concerned’ or by ‘his agent or attorney’ which can be shown to have been mistaken will answer the description ‘error or omission’ in the ordinary meaning of those words, which in their context carry, in my opinion, a connotation of obviousness in error.”

After considering Jenkinson J’s discussion of the words “an error or omission” in the Kimberley-Clark case, which included the above passage, the delegate concluded:

“It appears plain from this part of Jenkinson J’s judgment that the words ‘error or omission’ should be given their plain, ordinary meaning and are not to be taken to be words of art.   They should not be restricted by construction to certain categories of aberration of thought or behaviour such as misunderstanding, ignorance of the law, confusion or deception etc. or to mere inadvertence or accidental slips.  Moreover, the error or omission must be obvious.

If it can be shown that there has been an error or omission it must also be shown of course that the error or omission was the cause of the late filing of the extension application.”

Neither party advanced any criticism of this aspect of the delegate’s reasoning.  Nor did either party challenge the accuracy of the delegate’s expressed view that a simple failure to file the notice of opposition in time was not an “error or omission” within the meaning of reg. 5.2(2)(b) of the Regulations.

In none of the statutory declarations made by the legal practitioner did she advance a construction of reg. 5.2 of the Regulations upon which she relied at any relevant time. Nor did she assert in any of the statutory declarations that she had acted on a wrong construction of reg. 5.2 of the Regulations It would appear, however, that as at 3 February 1997 the legal practitioner was acting on the assumption that a further extension of time within which to file a notice of opposition could be obtained by her client. On that day she advised the solicitors for the second respondent that her firm intended to apply for a further extension of time. It is not clear from the statutory declarations on what ground the legal practitioner then understood that such further extension would be sought. It would seem that she could not realistically have had in mind the grounds set out in reg. 5.2(2)(a) or (b). Theoretically she could have had in mind the ground set out in reg. 5.2(2)(e). The facts disclose, however, that when she made an application for a further extension of time within which to file a notice of opposition, the ground which she purported to invoke was that set out in reg. 5.2(2)(d).

The legal practitioner muddied, rather than clarified, the water by placing weight in her statutory declaration of 16 May 1997 on the asserted fact that:

“The computer-generated reminder system did not inform me that I already [sic] applied for an extension of time within which to file Notice of Opposition to registration of Application 672041”.

The delegate, not surprisingly, understood this statement to imply that, if the legal practitioner had been informed by the computer-generated reminder system that she had already applied for an extension of time within which to file a notice of opposition, she would have known not to do so again, but would have filed, within the extension of time already granted, a notice of opposition.   That is, the delegate apparently understood the legal practitioner by her statutory declaration of 16 May 1997 to be suggesting that she appreciated as at 5 March 1997 that her client would not be able to obtain a second extension of time within which to file a notice of opposition.  The delegate, relying on the legal practitioner’s statutory declaration of 14 February 1997, concluded that as at that date (ie the last day for the filing of the notice of opposition) she knew that her client had already obtained an extension of time within which to file a notice of opposition.  He thus, it appears, concluded that the totality of the evidence before him established no more than that the legal practitioner simply failed to file the notice of opposition in time.

Understandably in the circumstances, the applicant did not seek to place reliance on s 5(1)(h) of the ADJR Act which allows an order for review to be sought on the ground “that there was no evidence or other material to justify the making of the decision”. Section 5(3) of the ADJR Act qualifies s 5(1)(h) as follows:

“5(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless –

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established;  or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

As Mason CJ pointed out in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358:

“The effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h).   If we put to one side the situation to which par. (b) is directed (proof of the non-existence of a fact critical to the making of a decision), the opening point of par. (a) restricts the ‘no evidence’ ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established.  In such a case the ground of review is that there was ‘no evidence or other material … from which he could reasonably be satisfied that the matter was established.”

I interpolate that the matter before me is not such a case (see reg. 5.4(4) of the Regulations). Mason CJ in the Bond case went on at 358:

“As the respondents do not seek to bring this case within s 5(3)(a) or (b), the ground of review in s 5(1)(h) has no direct application here.  But the presence of s 5(3) tells against an expansive interpretation of s 5(1)(f).   Indeed, it might be argued from the presence of s 5(1)(h) and (3) that they constitute a definitive and exhaustive statement of the ‘no evidence’ ground of review for the purpose of s 5, thereby excluding such a ground from the concept of ‘error of law’ in s 5(1)(f).   However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law.   The better view … is to treat ‘error of law’ in s 5(1)(f) as embracing the ‘no evidence’ ground as it was accepted and applied in Australia before the enactment of the AD (JR) Act and to treat the ‘no evidence’ ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a ) and (b) of s 5(3) make provision”.

The finding by the delegate that the legal practitioner simply failed to file the notice of opposition in time does not constitute the decision of the delegate. Such finding was made by him in the course of the reasoning process which led to his decision. It is reviewable by this Court under s 5(1)(f) of the ADJR Act only if there was no probative evidence to support it or if the inference which led to it was not reasonably open on the facts before the delegate. As Brennan J pointed out in Waterford v The Commonwealth (1987) 163 CLR 54 at 77 “there is no error of law simply in making a wrong finding of fact”.

In my view, it cannot be said that there was no probative evidence before the delegate to support his finding that the legal practitioner simply failed to file the notice of opposition in time.  This finding was based on inferences apparently drawn by the delegate which inferences were reasonably open to him having regard to the statutory declarations made by the legal practitioner.   Those inferences were first, that as at the last date for the filing of the notice of opposition she knew that her client had already obtained an extension of time within which to file a notice of opposition, and secondly, that at that time she knew that this meant that she should file a notice of opposition rather than a further application for an extension of time within which to file a notice of opposition.

As a result of the finding made by the delegate, the erroneous diary reminder which the legal practitioner referred to in her statutory declaration and the deficiencies, if any, in her firm’s computer-generated reminder form, were not the cause of the late filing of the notice of opposition.  They did not mislead her in any material respect.   That is, the delegate must be understood to have rejected the conclusion drawn by the legal practitioner in paragraph 8 of her statutory declaration of 16 May 1997 having regard to the totality of the evidence before him.

It is not material whether I would have drawn the same conclusion as the delegate on the material that was before him.  The issue before me is whether it has been established that there was no probative evidence to support his finding, or that the inferences drawn by him were not reasonably open on the facts before him.   I conclude that it has not been so established.

The decision of the delegate will be affirmed.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson

Associate:

Dated:            7 August 1998

Counsel for the Applicant	Mr D Catterns QC
Solicitors for the Applicant:	Sprusons
Counsel for the Respondent	Dr A Bennett QC
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 July 1998
Date of Judgment:	7 August 1998