7.6.4 Reasonable Expenses

Also in this Chapter:

• 7.6.1 Requests for Commissioner to Exercises Powers Under Section 210(1)(a) ＆ 210(1)(c)
• 7.6.2 Basis for Issuing a Summons
• 7.6.3 Basis for Requiring Production of Documents or Articles
• ​​​​​​​7.6.5 Complying with the Summons or Notice to Produce, Reasonable Excuses
• 7.6.6 Sanctions for Non-Compliance
• 7.6.7 Schedule to Requests for Summons or Notice to Produce

Key Legislation:

Patents Act:

• s210 Commissioner's powers  

Note: This information applies to powers exercised by the Commissioner under Section 210, on or after 15 April 2013.

It is expected that a party seeking the benefit of a summons or notice to produce will undertake to pay the reasonable expenses of the person concerned.  That undertaking must be made before making the request in a manner that is legally enforceable, and in a form that can be demonstrated to the Commissioner.

Reasonable expenses would generally include:

• cost of locating the documents or articles
• copying and collating costs (if copying is appropriate)
• cost of legal advice in relation to the summons or notice
• travel costs
• compensation for loss of income (if applicable).

An offer of payment for reasonable expenses does not necessarily require an ‘up-front’ payment in cash – although payment of reasonable conduct money would generally be appropriate.

In the case of dispute over payments of reasonable expenses, the Commissioner has no power to enforce payment of moneys – enforcement of undertakings is a matter for the Courts.  Further, the Commissioner has no power to award costs in regard to reasonable expenses.

Where a party seeks costs associated with objecting to a notice of production those costs should be considered separately as part of a proceeding before the Commissioner and not as a reasonable expense.