Honest Reveira v Registrar of Trade Marks  FCA 1122 (7 August 2018)
Unsuccessful application by Honest Reveira for judicial review of a decision by the Registrar’s delegate to allow applications for an extension to file oppositions to non-use removal applications.
On 27 August 2017, Honest Reveira filed applications for removal of two trade mark registrations owned by Honest the Snack Shack Pty Ltd (Snack Shack). These removal applications were advertised and the opposition period ended on 7 November 2018 without any oppositions being filed. On 22 November 2017, Snack Shack applied for extensions of one month to 7 December 2017 to file oppositions and subsequently filed the oppositions on 4 December 2017. By decision made on 2 February 2018, the Registrar’s delegate granted the extension applications.
Honest Reveira sought judicial review and to set aside this decision on the grounds that (1) it was not authorised by the Trade Marks Act 1995 and/or involved an error of law, and (2) the Registrar’s delegate did not have jurisdiction to make the decision.
Under Regulations 9.11 and 9.12, the Registrar may, if satisfied that the grounds justify it, grant a request to extend the time for filing a Notice of Intention to Oppose or Statement of Grounds and Particulars, whether made before or after the relevant due date, where there are “circumstances beyond the control of the person, other than an error or omission by the person, the person’s agent, the Registrar or an employee”.
In this case, the Registrar’s delegate granted the extension based on the poor health of Mr Naik who manages the affairs of Snack Shack which is a very small family restaurant business.
Honest Reveira argued the “circumstances beyond the control of the person” is in the nature of a force majeure provision which was not satisfied here. However, Moshinsky J considered that, as a matter of principle, health issues affecting a person are capable of constituting circumstances beyond the person’s control and, in the case of a small company, it may be possible to establish circumstances beyond the control of the company by reference to the situation of a single individual. His Honour considered that it was open to the delegate to conclude that there were circumstances beyond the control of Snack Shack and that these circumstances justified an extension of time.
Honest Reveira also argued that the facts and circumstances relied on by Snack Shack related to only part of the period within which the notice was required to be filed. However, in his Honour’s view, the material put forward by Snack Shack, while perhaps not as detailed as it could have been, was capable of supporting a finding that there were circumstances beyond the company’s control throughout the relevant period. It was also open to the delegate to have regard to the medical conditions of Mr Naik and the medical certificate put into evidence which were consistent with these health issues persisting throughout the relevant period.
Moshinsky J concluded that the evidence filed in support of the extension may be considered thin, and another delegate may have formed a different view, but the material was capable of supporting a finding that there were circumstances beyond the company’s control throughout the relevant period.
Honest Reveira also argued that the Regulations require an applicant for an extension of time to explain the delay between the period when the notice of intention to oppose was first due and when the request for an extension was actually filed. Without such an explanation the Registrar has no jurisdiction to grant an extension. However, Moshinsky J considered the declarations relied upon by Snack Shack provided both (a) the facts and circumstances forming the basis of the ground relied on and (b) the reasons why the request was not made within the prescribed period. Although the delegate did not expressly state that she was satisfied that there was “sufficient reason for the delay in making the request”, the material generally indicates a close familiarity of the delegate with the relevant provisions, and his Honour was not prepared to infer that she did not reach the required state of satisfaction.