Mygrain Solutions Pty Ltd v Scintex Pty Ltd

This matter concerned an application by Mygrain Solutions Pty Ltd (the Applicant) for an extension of time to file evidence in answer in opposition proceedings before the Registrar of Trade Marks, with Scintex Pty Ltd (the Opponent) being the other party. The Applicant sought to extend the deadline for filing its evidence in answer, which had passed.

The primary legal issue before the Hearing Officer was whether to grant the Applicant an extension of time to file its evidence in answer under regulation 5.15 of the *Trade Marks Regulations 1995* (Cth). Alternatively, the court had to consider whether, if an extension was not granted under regulation 5.15, it was appropriate to take the Applicant's evidence into account under regulations 21.15(4) and 21.19. The Applicant argued that its bona fide engagement in settlement negotiations constituted an exceptional circumstance justifying an extension, and also raised grounds relating to alleged errors or omissions by the Registrar.

The Hearing Officer noted that the Applicant had made requests for an extension of time, and after considering submissions, advised the parties that if the extension under regulation 5.15 was not granted, the evidence would be considered under regulations 21.15(4) and 21.19. The Applicant relied on declarations from its lawyer, and the Opponent relied on a declaration from its lawyer, both confirming that genuine negotiations had occurred but eventually discontinued. The Hearing Officer ultimately decided that the balance of convenience favoured the Applicant and that it was in the public interest to consider the Applicant's evidence in answer under regulations 21.15(4) and 21.19, given that the evidence had been provided to the Opponent and the Opponent had an opportunity to make representations.

The Hearing Officer directed that the Applicant's evidence in answer, being the declaration of Ryan Rose dated 10 August 2021 with exhibits, would be considered under regulations 21.15(4) and 21.19. The Opponent was granted leave to file any evidence it wished to rely on in reply to this evidence by 9 July 2022.