Order treating an application as abandoned for failure to file a counter-statement quashed, and the application and opposition restored. The judgment is notable for what the Court said beyond the facts: it reminded the Registry of an earlier direction to adopt a technical solution providing proof that an email has been received by the recipient, warning that unless the authorities act on this, every rejection on the ground of abandonment will be challenged and the authorities themselves will be overburdened.
Application deemed abandoned under section 21(2) for want of a counter statement, set aside. The Registry's own instructions showed no acknowledgment of service of the notice of opposition on the applicant or its agent, and counsel admitted the email had bounced. The notice having never been served, the application could not be treated as abandoned.
An application was wrongly deemed abandoned under section 21(2). The two month period runs from receipt of the notice of opposition by the applicant, and the counter statement was filed within two months of the date on which the notice was actually dispatched. The applicant had used the very form the Registrar's notice directed, and since the deeming fiction defeats a substantive right, the application could not be treated as abandoned merely because the prescribed form had changed under the 2017 Rules.
Applications deemed abandoned under section 21(2) for failure to file counter statements, quashed. The Registry relied on Rules 17 and 18 and on a dispatch record showing a status of success, Rule 18(2) deeming a communication served at the time of sending the email. The Court held that section 21(2) runs the two month period from the receipt by the applicant of the copy of the notice of opposition. Rule 18(2) incorporates a legal fiction which, construed literally, would mean no more than proof of transmission, and so construed it would not be in consonance with the section, particularly given that the statute does not incorporate deemed receipt and that a substantive right of the applicant is at stake. The prescribed time limit therefore runs only from the date of receipt of the email, and a dispatch record does not qualify as evidence of receipt.
The application was treated as abandoned under section 21(2) for not filing a counter statement. The Registry had never served the notice of opposition and produced no proof of service, while the applicant had written four times asking for it. Abandonment cannot follow from the Registry's own default.
