Regulation 147: Extension of time in exceptional circumstances

147 General power of Commissioner to extend time limits in exceptional circumstances

(1) The Commissioner may, in exceptional circumstances, extend a time limit prescribed by these regulations for filing information or a document or for taking a step in respect of a matter.

(2) However, this regulation does not apply—

(a) to a time limit prescribed for filing a notice of opposition of a kind referred to in regulation 152(1)(a); or

(b) to a time limit prescribed for filing information or a document or taking a step in respect of a proceeding described in regulation 152(1); or

(c) to the time prescribed by regulation 154(3) for filing a request for a hearing under section 208 of the Act; or

(d) if the Act precludes an extension being granted under these regulations (see, for example, sections 21(1), 37(2)(b), and 71(2) of the Act).

(3) The Commissioner may grant the extension even if either or both of the following apply:

(a) the time limit has expired for doing the thing:

(b) the Commissioner has already granted an extension under these regulations.

(4) An extension is granted by giving notice to the person filing the information or document or taking the step and to any other parties to the proceeding, and may be on any terms that the Commissioner thinks fit.

Compare: SR 1954/211 r 168

148 Ability to request extension under other regulations must be exhausted

If a regulation other than regulation 147 specifically provides for a power to extend a time limit in relation to a particular matter, a request for an extension under regulation 147 may be made only if the ability to request an extension under the other regulation has been exhausted.

Commentary on regulation 147

1. Regulation 147 is a provision for extending time prescribed under other regulations due to exceptional circumstances.

2. Regulation 147(1), by use of the term “may”, gives the Commissioner discretion to grant or refuse a request for extension of time to meet a relevant time limit prescribed in the regulations. 

3. Regulation 147(2) excludes extensions of some specific regulations and where time limits are prescribed in sections of the Act. However, there are many regulations relating to prescribed time limits, periods and deadlines to which regulation 147 may apply. 

4. Regulation 147(3) allows for granting an extension where the time limit has expired and/or a previous extension under regulation 147 has been granted.

5. Regulation 147(4) provides that:

• where a request is granted the Commissioner must notify the person filing the information or document or taking the step, and must notify any other parties to the proceeding.
• the request may be granted on any terms the Commissioner thinks fit. This may include requiring the applicant to pay any outstanding maintenance fees. 

6. There may be instances where the Commissioner proactively provides an extension under regulation 147 without a specific request being made – such as for IPONZ services during COVID-19.

Commentary on regulation 148

7. Regulation 148 requires that the ability to request an extension under any other regulation must first have been exhausted before a request under regulation 147 can be made. There are many regulations which allow time to be extended without exceptional circumstances needing to be met, or with exceptional circumstances. These must first have been exhausted before an extension under regulation 147 can be allowed.

8. For example, regulation 78(2) allows for a 1 month time to respond to an examination report to be extended providing a request for the time extension and a (substantive) response is received in the extended period. Regulation 78(3) then allows for further time extension to be allowed in exceptional circumstances. So regulation 147 cannot apply to either of these extensions. 

The meaning of “exceptional circumstances”

9. In Merial Inc v Intervet International B.V. [2017] NZHC 2918 (27 November 2017) at [30] the Court followed Creedy v Commissioner of Police [2008] NZSC 31 (23 April 2008) at [31] in concluding that “the meaning of exceptional circumstances is … “unusual, out of the common run””. The Commissioner will apply such criteria in assessing a request under regulation 147.

10. Cases decided under other legislation may be useful in interpreting what is meant by “exceptional circumstances”. However, care should be taken in cases where “exceptional circumstances” is further defined in the legislation relevant to the case. 

11. Such cases include Ye v Minister of Immigration [2009] NZSC 76 and Taylor v Jones [2006] NZSC 114; Skelton v Jones; [2007] 2 NZLR 178.

Examples of regulations where regulation 147 may apply

12. The following are examples of regulations prescribing time limits where regulation 147 may apply to extend the time limits noted:

• Regulation 71 – to request examination for an application, typically a divisional application, within 5 years from the date of filing of the complete specification. 
• Regulation 68 – to file a copy or verified translation of documents relating to the basic application as prescribed by Regulation 70, within 2 months from the date on which a written notice is given to the convention applicant.
• Regulation 65 – to file a verified translation of any document(s) related to a Treaty application as required by IPONZ, within 5 month time limit from the commencement date of the national phase.
• Regulation 80(1) – to put an application in order for acceptance within 12 months from date of issue of the first examination report.

How a request is made

13. A request under regulation 147 may normally be made via voluntary amendment request in the IPONZ online system, using the ‘Request extension of time, Reg. 147’ document type. Where this is not possible the requestor should contact the IPONZ Business Service Centre.

What should be included in the request for an extension of time?

14. The following information should be provided with each request under regulation 147:

• The regulation for which you are seeking the extension of time.
• The specific amount of extension of time required.
• The circumstances causing or likely to cause failure to meet the relevant time limit.
• An explanation as to why those circumstances are exceptional.
• Typically, evidence in support of the request. The evidence should be provided in accordance with regulation 144. See the Hearings Evidence guidelines for more information about affidavits and statutory declarations, and who can take (witness) them. Evidence may not be required in special situations, for example see IPONZ services during COVID-19.

The Commissioner considers various aspects of the request

15. The following non-exhaustive aspects of a request will be considered:

• Whether the circumstances described in the request caused or would be likely to cause the failure to meet the time limit, at least to the extent that the circumstances were a major contribution to the failure.
• Relevant “usual, common run” circumstances which the Commissioner could reasonably establish as a basis from which “unusual, out of the common run” circumstances could be distinguished.
• Whether the circumstances are exceptional in context.
• Whether the requestor has completed the required activity promptly after the relevant time limit, thus having minimal effect on other parties – as in Merial, paragraphs [33] to [36].
• Whether the request is consistent with the underlying policy of the Act – as in Merial, paragraph [34].
• Public interest considerations of the request being refused or granted – as in Merial, paragraph [34].

16. The Commissioner will take into account all aspects which appear relevant to the determination of circumstances as being either non-exceptional or exceptional.

The request is either granted or refused

17. If the request is granted the Commissioner will notify the person filing the information or document or taking the step, and must notify any other parties to the proceeding.

18. The Commissioner may, as per regulation 147(4), grant the request with a different specific time extension to that requested, depending on whether the Commissioner considers the time extension requested reasonable in the specific circumstances.

19. If the request under regulation 147 does not contain sufficient information it may be refused. The Commissioner will provide a reason for refusal. The requestor may make a further request, and may merely address the defect in an earlier request. There is no need to refile documents filed in the earlier request. The requestor may request a hearing in a further request.

Granted request recorded in register

20. The Commissioner will record a grant of a request for extension of time under regulation 147 which includes:

• recording notification to the person filing the information or document or taking the step and to any other parties to the proceeding
• recording any other information relevant to the grant.

Examples of requests under regulations 147

21. The following are examples of requests. The time granted for a regulation 147 request will depend upon individual circumstances.

Example 1:

An applicant fails to request examination of a divisional application within the 5 year time limit. The applicant had merely overlooked requesting examination. A request under regulation 147 to extend time prescribed by regulation 71 is refused.

Example 2:

An agent fails to request examination of a divisional application within the 5 year time limit. Evidence establishes that the agent was instructed by the applicant to request examination prior to the time limit. A request under regulation 147 to extend time prescribed by regulation 71 is granted. The time set under regulation 71 is extended to 5 working days from the date of notification of the granting by IPONZ.

Example 3:

An applicant fails to put an application in order for acceptance within the 12 month time limit. The Commissioner considers that the applicant did not make a reasonable attempt to address examination objections raised sufficiently early in the examination process. A request under regulation 147 to extend time prescribed by regulation 80 is refused.

Example 4:

An applicant fails to put an application in order for acceptance within the 12 month time limit. A covering letter establishes the failure was directly due to the effects of COVID-19 causing delays between applicant and agent. A request under regulation 147 to extend time prescribed by regulation 80 is granted.

Example 5:

An applicant fails to provide a substantive response to an examination report by the deadline prescribed by regulation 78(2). The applicant subsequently files a substantive response and a request for a time extension to the date of filing the response as prescribed under regulation 78(3). The applicant explains in a covering letter how the COVID-19 pandemic has directly resulted in the failure to provide the response. The request under regulation 78(3) is granted and, because the time under regulation 80 has passed, the Commissioner also provides a separate extension of time under regulation 147 to extend the time limit prescribed under regulation 80, in accordance with published COVID-19 practice.