D03.11 Withdrawal of request for examination

Date Published

While the regulations do not expressly deal with withdrawals of requests for examination, there is a general principle that a person who files a request may withdraw that request. However:

  • If the request has been given effect, the withdrawal of the request cannot withdraw or negate the effect that has been given to the request; and
  • A withdrawal can only be of the thing the person has requested – a person cannot withdraw a request made by a third party.

Where the person who requested examination requests withdrawal of the request before an examination report is issued, the request for withdrawal can be given effect. However there is no refund of fees – see below.

If the examiner has reached the stage of completing a first report (whether that be an adverse report, or a clear report), the request for examination has been given effect. Importantly, an examination report is prepared by a delegate of the Registrar and is inherently incapable of being withdrawn by the owner. Additionally the time for completion of examination is set by the date of the first report (regulation 5.04). Consequently once an examination report has been completed the examination must be dealt with on its merits; the owner cannot avoid dealing with the report by withdrawing the request for examination.

In all circumstances, the fee for filing the request is non-refundable; the effect of the withdrawal does not change the fact that an examination request was filed and an associated fee is payable. Furthermore, the withdrawal of a request for examination prior to the due date for paying the examination fee in response to an ITP does not avoid the consequence of ceasing if that fee is not paid – even though the examination request has been withdrawn by the due date for payment.