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3.14 Appeals; AAT and Judicial Review; Other Court Actions Involving the Commissioner; Section 105 Amendments

Date Published


Relevant Legislation

The Act

Section 105

Amendments directed by a court

Section 139

Parties to proceedings

Section 140

Commissioner to be given copies of orders

Section 154

Jurisdiction of the Federal Court

Section 159

Commissioner may appear in appeals

Section 224

Review of decisions (AAT)

The Regulations

Regulation 22.26

Review of decisions (AAT)

See also:

Federal Court Rules 2011 – particularly Division 34.3 Intellectual Property

Administrative Decisions (Judicial Review) Act 1977

Administrative Appeals Tribunal Act 1975

Evidence Act 1995​​​​​​​


There are a number of mechanisms under which decisions of the Commissioner may be subject to judicial or administrative appeal or review. Which applies in any particular circumstance depends on the statutory power under which the decision was made. For example, decisions under sections 35, 36, 42, 51, 60, 75, 81, 82, 100A, 101, 101F, 101J, 101N, 104, 109 and 191A may be appealed to the Federal Court.

Review of decisions under the provisions of the Act and Regulations specified in sec 224 and reg 22.26 may be appealed to the Administrative Appeals Tribunal (AAT).

If the Act does not specify a right of appeal or review, then generally the only avenue is judicial review under the Administrative Decisions (Judicial Review) Act.

The period in which an appeal may be filed to the Federal Court (e.g. from a decision in a substantive opposition, determination of entitlement or a refusal of an application after examination or re-examination) is 21 days from the date of the decision.

For an application for review to the AAT (e.g. from a decision on an extension of time) or to the Federal Court under the AD(JR) Act the time period is generally 28 days from the date of the decision.

Further information about filing an appeal or application for review can be obtained from the Federal Court or AAT. It is strongly advised that professional legal advice be obtained before instituting proceedings noting that in court proceedings an unsuccessful party may be subject to an order for costs against them.  

This part of the manual also covers other court proceedings in which the Commissioner is not a party but has a right to appear, and applications to amend a patent request or specification under sec 105 .

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