Review under the Administrative Decisions (Judicial Review) Act 1977 is available for decisions of an administrative character made or proposed to be made under the Patents Act or otherwise by the Commissioner as an officer of the Commonwealth, including a failure to make a decision.

Procedure

The procedure for seeking review is set by sec 11 of the AD(JR) Act and the Federal Court Rules – see Rule 31.1

Generally, a person aggrieved by a decision may file an application for review with the Court within 28 days after the decision and statement of reasons is issued. If not provided when making the decision, that person may request a “statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision”. The Commissioner must either provide that statement of reasons within 28 days or apply for an order of the Court that the person is not entitled to make the request. However, the Commissioner may refuse to prepare and furnish the statement if the request was not made within 28 days after receipt of a written document setting out the decision, or in any other case "within a reasonable time after the decision was made".

The Commissioner is not required to forward documents to the Court. The applicant is required to file relevant documents with the Court.

Note: A copy of the documents must be served on the Commissioner within 5 days of filing with the Court.

Other parties that have an interest in the matter may apply to be made a party to the proceedings pursuant to sec 12 of the AD(JR) Act.

Nature of review

The scope of Judicial Review is limited and goes more to the power of the decision maker to make the decision under the law, rather than the merits of the decision on the relevant facts. Relevant grounds for review (from sections 5, 6, and 7 of the AD(JR) Act) include that:

a breach of the rules of natural justice occurred in the making of the decision;
procedures required by law to be observed in the making of the decision, were not observed;
the person purporting to make the decision did not have jurisdiction;
the decision was not authorised by the enactment it was purported to be made under;
the making of the decision was an improper exercise of the power of the enactment it was purported to be made under, including:
- taking an irrelevant consideration into account;
- failing to take a relevant consideration into account;
- an exercise of a power for a purpose other than a purpose for which it was conferred;
- an exercise of a discretionary power in bad faith;
- an exercise of a personal discretionary power at the direction or behest of another person;
- an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
- an exercise of a power that is so unreasonable that no reasonable person would have so exercised the power;
- an exercise of a power in such a way that the result of the exercise of that power is uncertain; and
- any other exercise of a power in a way that constitutes abuse of the power;
the decision involved an error of law (whether or not apparent in the decision);
the decision was induced or affected by fraud;
there was no evidence or other material to justify the decision but only if:
- the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
- the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist;
the decision was otherwise contrary to law;
a person has a duty to make a decision, no law prescribes a period for the making of the decision, and there has been unreasonable delay in the making of the decision; and
a person has a duty to make a decision, and the person has not made the decision within the time prescribed.

On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:

a. an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

b. an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

c. an order declaring the rights of the parties in respect of any matter to which the decision relates;

d. an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

Effect on implementing the decision

An application for Judicial Review does not normally have the effect of staying the decision - see sec 15 of the AD(JR) Act.

The Court may, however, order a stay if it sees fit.

Role of the Commissioner

The Commissioner is automatically a party to any application for Judicial Review. However the role taken by the Commissioner is dependent on the circumstances including whether another party has been joined. Similar considerations apply to the Commissioner’s role in appeals - see 7.14.1 Appeals to the Federal Court.