Jemella Australia Pty Ltd v MacKinnon [2008] FCA 1022 relates to a Customs seizure and an application for an extension of time under section 137 of the Trade Marks Act. It appears that the 10 day period for instituting infringement proceedings is rigid and that if any extension is sought it must be applied for and granted within the 10-day period.
At paragraph 22 Logan J states: “There are, therefore, readily identifiable and potentially conflicting commercial purposes which are resolved by the Parliamentary value judgment that I have mentioned. The time that is specified prime facie is quite short. It seems to me that that time represents Parliament’s view of a reasonable proportionality between potentially conflicting commercial interests. In those circumstances it seems to me unlikely that Parliament envisaged that there would be any ability for there to be what one might term “slippage” in the time limit prima facie specified in s 137(1). The language of s 137(1) also tends to reinforce that particular impression gleaned from evident purposes in the statute. Sackville J was plainly of the view that the language of s 137(1) had that quality.”