Intellectual Property Litigation in Australia

By Fairbairn, John; Clark, S. Stuart | Defense Counsel Journal, April 2008 | Go to article overview

Intellectual Property Litigation in Australia


Fairbairn, John, Clark, S. Stuart, Defense Counsel Journal


AUSTRALIA'S strong economy makes it a significant user and creator of intellectual property ("IP") rights. It is also a significant jurisdiction in multinational IP disputes, which are becoming increasingly common in today's global economy. This article provides an overview and analysis of IP litigation in Australia.

I. Overview of Australian Legal System

It is useful, as a preliminary matter, to briefly outline how Australia's legal system operates, (1) with particular reference to IP disputes.

Federal System

Australia is a federation comprising six states and two self governing territories. The Australian Constitution specifies a range of matters that are the responsibility of the Federal Government. The balance of legal matters remains the responsibility of the various State and Territory Governments. Relevantly, the Federal Government has the power to make and has made laws with respect to IP and in particular copyright, patents of inventions, designs, and trade marks. (2)

Australia's laws and legal system have their foundation in the common law of England and its practices and procedures broadly reflect those of the Anglo-American common law world.

While judgments of the House of Lords and the English Court of Appeal are of persuasive authority, they are not binding on Australian courts. More recently, in developing Australia's laws, its courts have looked to the jurisprudence of other countries, particularly the United States and Canada. This is particularly so in the case of IP laws.

Australia has both a Federal Court system and a hierarchy of courts in each of the States and Territories. Each of Australia's Federal IP statutes vests primary jurisdiction for IP litigation in the Federal Court of Australia ("Federal Court"). Concurrent jurisdiction is also vested in the various State Supreme Courts, but generally, IP litigation is commenced and prosecuted in the Federal Court and consequently it is this system that is the focus of this paper.

Federal Court

The Federal Court operates from all capital cities in Australia, but the vast majority of IP litigation is conducted in Sydney and Melbourne, the capitals of Australia's most populous states, New South Wales and Victoria respectively.

The Federal Court is a superior court of record and a court of law and equity; however, it is not a court of general jurisdiction. Rather its jurisdiction is conferred by Federal statutes such as the IP statutes discussed here. Once seized of jurisdiction, the Federal Court is able to deal with all aspects of a dispute, even those arising under common law, equity or State statute, by reason of its accrued jurisdiction. In this way, the Federal Court is able to deal with general law actions such as breach of confidence and passing off.

The Federal Court also has jurisdiction to hear appeals from examiner's decisions of the Trade Marks and Patents Offices. These involve a de novo hearing of the matter, rather than an appeal in the usual sense and the parties may lead fresh evidence.

Federal Magistrate's Court

Some shorter and simpler IP claims can be litigated in the Federal Magistrates Court of Australia, a lower level federal court with a more limited jurisdiction that aims to provide a simpler and more accessible alternative to litigation in the superior courts. It is a relatively recent creation that conducted its first sittings in 2000. Its jurisdiction is also conferred by Federal statute and includes copyright and consumer protection. The Federal Court can also exercise its discretion to transfer other IP matters to the Federal Magistrates Court.

Copyright Tribunal of Australia

The Copyright Tribunal was established under the Copyright Act to deal with inquiries and disputes arising out of royalties payable in respect of the recording of musical works, certain compulsory licences, and existing and proposed licensing schemes, amongst other things. …

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