Common Deficiencies in Requests under Section 223(2) or (2A)

Date Published

There are a number of common deficiencies that occur in applications for an extension of time under section 223.  These are:

The request identifies the wrong period

Where the extension of time is required to do an act in the future, the applicant must ensure that the extension period requested is sufficient to complete the relevant act.

Where the extension of time is requested to gain acceptance, the applicant will need to apply for sufficient time not only to address the reasons for lapsing, but also sufficient time to gain acceptance.  See Extensions of Time to Gain Acceptance for guidance on the time required to gain acceptance.  

The request identifies the wrong type of action

For example, where a divisional application is being filed it is necessary to extend the time for filing a divisional rather than the time for gaining acceptance of the parent.

The particular time period cannot be extended

Extensions of time can only be granted to perform a “relevant act” within the meaning of section 223(11).  For example, an extension under section 223 cannot be granted for making a deposit of a microorganism; or for filing a first-instance application (see Relevant Act).  Furthermore, the Commissioner will not grant an extension under section 223(2) where the extension would serve no useful purpose, or for an action where the Commissioner has become functus officio (see The Commissioner’s Discretion).

The evidence is not sufficient

A declaration may be of low evidentiary value if it relies on hearsay.  For example "I declare that the [foreign] associate has told me that his client has told him that….”.

Hearsay evidence is particularly a problem in situations where there is no apparent reason (other than mere inconvenience) why the person having the direct knowledge of the circumstances cannot provide a declaration.  This is to be contrasted with the situation where "person X, formerly of our employ" committed an error, where hearsay evidence may be the only evidence obtainable.

Declarations that apparently provide “selective” extracts of supporting documents whilst avoiding documents that may be less favourable to their case may have low evidentiary value.  A particular subset of this situation is declarations which refer or allude to documents as supporting their case, but fail to provide copies of them.