Richard James Lifford Hewitt Trustee for the Hewitt Trust v Abercromby's Real Estate Pty Ltd

This matter concerned an opposition to the removal of trade marks from the Register, heard by Iain Thompson, a delegate of the Registrar of Trade Marks. The applicant for removal was Abercromby's Real Estate Pty Ltd, and the opponent was Richard James Lifford Hewitt, Trustee for the Hewitt Trust. The dispute arose from an application to remove trade marks from the Register, which was opposed by Mr Hewitt.

The primary legal issue before the delegate was whether to admit certain "supplementary" declarations made by Mr Hewitt into evidence. These declarations had been appended to letters seeking late extensions of time to serve and file evidence. The delegate also had to consider the evidence that had been properly served and filed by both parties.

The delegate reasoned that the "supplementary" declarations should not be admitted into evidence. This was because the opponent's own correspondence indicated that these were not the final form of the evidence and that further documentation was expected but never materialised. Furthermore, admitting these declarations would have been procedurally unfair to the applicant, as it would have constituted an ambush, with the applicant having prepared for the hearing on the basis that these materials were not part of the opponent's evidence. Consequently, the delegate determined to hear submissions only in relation to the declarations that had been properly served and filed.