8.9. Examination and certification: Time frame for completion of examination and last-minute responses

If an examiner finds grounds for revocation, the design owner must address those issues within a set time frame (s 65(3)(b), reg 5.04). This is normally 6 months from the date of the first examination report (but see longer period for completion below).

If the grounds for revocation are not resolved within that time frame, the design registration will cease (s 48(1)(a)). To prevent this, the owner can apply for an extension of time (s 137).

If the owner submits a last-minute response – that is, very close to the end of the 6-month time frame – they may file it along with a precautionary request for hearing in case the grounds for revocation are found to still exist.

Longer period for completion

The period for completion may be longer if:

• Material is provided under s 69 and a new ground for revocation is included in an examination notification. In that case the period is either 3 months from the date of the notification that first raises the new ground for revocation or 6 months from the date of the first examination notification – whichever is later (reg 5.04(b)).
• The owner requests to be heard under s 68(4) (reg 5.03(6)(d)). In that case, the Registrar determines the time period (reg 5.04(c)), including the time period for any appeals (reg 5.04(c)(iii)).
• Examination is discontinued because of relevant court proceedings (s 63(4)). In that case, the Registrar determines the time period (reg 5.04(c)). The examination will be put on hold until the court proceedings conclude and is then resumed (see Interface with court proceedings).

Normally the Registrar will not initiate formal proceedings for revocation under s 68(1). Where the owner disagrees with the examination, they must request a hearing (s 68(4)). Each examination notification should include a note to the owner informing them of their right to request a hearing before the end of the 6-month period for completing examination.

Last-minute responses

Sometimes an owner/agent responds to an examination notification very close to the end of the 6-month period for completion of examination. When this happens, examiners will take all reasonable steps to consider the response within the time remaining. Usually, the owner or their agent will have contacted the examiner by phone to let them know that they have just filed a response so that the examiner can consider the response within the time frame.

If the owner submits a last-minute response, they may be concerned that they will lose their design rights if the examiner does not agree with their response. To prevent this, they may file the response along with a precautionary request for hearing (under s 68(4)) in case the grounds for revocation are found to still exist. In those cases, the process is as follows:

• The examiner will acknowledge the request for a hearing and an Invitation to Pay (ITP) is issued. The examiner will then make all reasonable efforts to consider the response in the time remaining. If they are unable to do this, an extension of time under s 137(1) may be applicable.
• If the examiner is satisfied with the response they can issue a certificate of examination (s 67(1)). The request for a hearing will be considered as not filed, as there is no need to take any further action on the precautionary request for hearing (i.e. not required to pay the hearing fee (reg 11.07(3)).
• If the examiner believes that a ground for revocation remains, they will:

• issue another examination report; AND

• advise that the provisions of s 68(5) apply – but only if the hearing fee is paid.

​​​​​​​If an owner is filing a last-minute response along with a precautionary request for hearing, they should not pay the hearing fee when they file the response. Instead, they should wait until they receive the invitation to pay – that way, they pay the fee only if it is needed. This is important because the fee for requesting a hearing will only be refunded in exceptional circumstances – not merely because the hearing is no longer required.