23.4. Extensions of time: Error or omission by the customer

Section 137(2) applies if the customer or their agent (lawyer or attorney) makes an error or omission that results in the customer not taking the relevant action.

The Registrar decides whether to accept this reason depending on the individual circumstances and the background of the case. When they seek an extension for this reason, the customer needs to satisfy the Registrar that the error or omission was genuine. It must have been:

• consistent with intending to take the action within the time frame
• causally linked to their failure to take the action within the time frame.

Criteria for granting extension

A finding that there has been an error/omission is not in itself enough to require the grant of an extension of time. There must be a causal link between the error or omission and a relevant act that must be done within a certain time and, because of the error/omission, either is not done or cannot be done within that time. The causal link is indicated by the use of the word ‘because’ in s 137(2).

The Registrar is unlikely to grant the extension because someone merely forgot to carry out an action – if, for example a customer intends to progress the application but puts the wrong date for taking action to do so in their diary. Additionally, being unaware that a relevant act had not been completed, or incorrectly assuming that it had is itself unlikely to be persuasive. See Kmart Australia Limited [2011] ADO 2 at 25:  

From the material before me, it appears that a misunderstanding of the protection that would arise from a Community Design registration is the main reason for failing, initially, to apply for the registration of the designs in Australia. In addition, a misapprehension or ignorance of Designs legislation does not constitute an error by itself.

​​​​​​​

Conditions of extension

• The application for extension must include at least one declaration. This can be a statutory declaration or a declaration under the Designs Act.
• There is a fee per month (or part of a month)
• If the application for extension is for more than 3 months, we need to advertise it for opposition purposes (see s 137(5) and reg 11.13(3)).