7.11.2.4 Discretionary Matters

Also in this Chapter:

• 7.11.2.1 Requesting an Extension of Time
• 7.11.2.2 Application of the Law
• 7.11.2.3 Justification for the Extension
• ​​​​​​​7.11.2.5 Period of an Extension
• 7.11.2.6 A Hearing in Relation to an Extension
• 7.11.2.7 Parties Involved in Negotiations
• 7.11.2.8 Review of a Decision to Grant or Refuse an Extension
• 7.11.2.9 ＂Out of Time＂ Evidence

Key Legislation:

Patents Regulations:

• reg 5.9 Extension of time for filing evidence

Once the mandatory requirements of reg 5.9(2) have been met, there is a discretion whether to grant an extension.  This follows from the use of the term "may" in reg 5.9(1).

Considerations that would be relevant to whether to refuse an extension of time are those identified under the former law:

• the nature and significance of the evidence that is being prepared; and
• the private and public interests.

In CSIRO v BASF [2014] APO 74 the delegate identified another consideration: had the party deliberately misled the Commissioner, either by explicit statement or omission, in order to obtain an extension.

The private and public interests

The private and public interests are not relevant to whether a party has acted promptly and diligently in preparing their evidence.  The balancing of private and public interests may be relevant to the exercise of discretion.