Weng and Commissioner of Patents

[2019] AATA 418

Weng and Commissioner of Patents [2019] AATA 418 (26 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7470

Re:Guang Ming Weng

APPLICANT

AndCommissioner of Patents

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:26 February 2019

Date of written reasons:        18 March 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal refuses the Applicant’s application for an extension of time to file his application for review.

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Mrs J C Kelly, Senior Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – no reasonable explanation for delay – public interest to lodge application on time – no prejudice to Respondent does not justify extension - Applicant’s case is frivolous and lacks merit – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

CASES

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

18 March 2019

1. Mr Weng has applied for an extension of time for making an application for review of a decision pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Weng made that application because his application was lodged on 17 December 2018 which was more than 28 days after he was notified of the decision.

2. The Tribunal has referred during the hearing to the principles set out in the decision of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. It has referred to the prima facie rule that proceedings commenced outside the prescribed period will not be entertained.

3. It is a precondition to the exercise of discretion to extend the time that in this case Mr Weng show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. Mr Weng, during the course of the proceedings, told the Tribunal two different dates on which he said he received the Patent Office decision, he said on 19 October 2018 and 26 October 2018. Taking the later date of 26 October 2018 the time for review expired on 23 November 2018.

4. The evidence is very clear that the application was not lodged in this Tribunal until 17 December 2018. Mr Weng was adamant that he had provided or sent a letter on 15 November 2018. However, it is clear from the documents he has filed in the Tribunal that he engaged in correspondence with the Patent Office on 15 November 2018 with various concerns and questions about the Patent Office decision.

5. So while that was a misunderstanding on Mr Weng's part it did not assist him in terms of the date of application in this Tribunal.

6. Of greater relevance in this case is that Mr Weng has given no explanation as to why he delayed making his application to the Tribunal. He did bring in his application in person to this Tribunal. He did know it was a different organisation from the Patent Office. So the Tribunal does not accept that there has been any explanation provided for the delay.

7. The Tribunal notes that the Respondent, that is, relevantly for the Patent Office, claims no prejudice in relation to the application for extension of time. However, in the Hunter Valley case Wilcox J said the following:  “…the mere absence of prejudice is not enough to justify the grant of an extension”.

8. The public interest is relevant. It is relevant in this case that there is a requirement to lodge an application within 28 days. It is a relevant consideration.

9. The matter of difficulty for the Applicant, Mr Weng, is the following. The merits of the substantial Application are properly to be taken into account. The Tribunal accepts the Patent Office’s submission that Mr Weng has not identified any error in the reviewable decision.

10. It also agrees with the Respondent that Mr Weng's application for extension of time suggests that the review is frivolous and is without merit, because it is an attack on a staff member of IP Australia, and the allegations are scandalous and unsupported. They suggest a grievance on Mr Weng's part that is irrelevant to the application for extension of time and the reviewable decision.

11. In the circumstances, the Tribunal is not satisfied that it should exercise its discretion to extend the time within which the application can be filed.

12. The application for an extension of time for making an application for review is refused.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate

Dated: 18 March 2019

Date(s) of hearing:	26 February 2019
Applicant:	By telephone
Solicitors for the Respondent:	Mr T Lockwood, Australian Government Solicitors