28.1. Hearings: overview

Parties are entitled to dispute the actions we propose to take. Disputes over designs may occur either before or after a design is registered.

Most design disputes are about:

• ownership and entitlement (dealt with under ss 29, 30 and 52) – see the separate topic Ownership disputes

• whether the design was new and distinctive at its priority date (see the examination provisions in ss 62-69).

Most disputes are resolved through the filing of evidence and then a hearing. Evidence must be in the form of a declaration (reg 11.26(1)).

Under s 148 and reg 11.22 the Registrar must give a person an opportunity to be heard before exercising any discretionary power adversely to that person. A person can be heard via written submissions or an oral hearing. Oral hearings are routinely held via videoconference or telephone. Oral hearings may be held in person, but this is by exception only.  
 

Examples of exceptional reasons for an oral hearing to be held in person include:

• a person wanting to attend is unable to use the internet or telephone (for example due to disability and/or a lack of available infrastructure);

• the evidence includes physical specimens that cannot be adequately shown or seen over a video connection.

As stated in the official notice published on 9 November 2022, a request to be heard in person must be in writing and should include:

• the agreement of any other parties (if applicable); and

• a brief explanation of the reasons why the matter should be heard in person.

Requests to be heard in person will be considered on a case-by-case basis, noting that the Registrar has the sole discretion as to whether to hold any hearing in person. 

Costs

The Registrar has powers to award costs in proceedings. Costs are typically awarded against the unsuccessful party.

Fees

There are fees for requesting a hearing. See Hearing fees for details.

Ownership disputes

Hearings about who owns the design are discussed in Ownership disputes.

Withdrawal from proceedings

Either party can withdraw from proceedings at any time before the decision has been issued. Even if a party withdraws, it is possible in some circumstances for costs to be awarded.

Appeals

Either party may appeal (or in some instances seek a review of) the most commonly issued hearing decisions.

For most matters, notice of appeal may be filed in the Federal Court of Australia or Division 2 of the Federal Circuit and Family Court of Australia within 21 days of the decision. For some matters, an application for review of the decision may be made to the Administrative Review Tribunal within 28 days of the decision.

In either case, when issuing the decision the delegate will inform each party of their right to appeal or seek review.

For matters with no right of appeal or review to any of the abovementioned bodies, it may be possible to seek judicial review of the hearing decision in a competent court. The delegate will not routinely mention this to parties when issuing a decision but may do so if they consider it appropriate in all the circumstances.

Corrections to the Register

See Other types of amendments for information on proposals to correct the Register.