Preparing an application
To commence an intellectual property proceeding, you need to use the appropriate form.
- For all intellectual property disputes (except an appeal from a decision of the Registrar of Trade Marks, the Registrar of Designs, or the Registrar of Plant Breeder’s Rights), use the Application – General Federal Law.
- For an appeal from a decision of the Registrar of Trade Marks or the Registrar of Designs, use the Federal Court’s Notice of Appeal (Intellectual Property)
You must also file a statement of claim or points of claim, or an Affidavit - General federal law and migration.
The grounds of an application must explain briefly the basis on which the orders are sought.
If you file a statement of claim or points of claim to support your application, that pleading should observe the requirements of part 16 of the Federal Court Rules, as identified in items 10 to 16 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The pleading should summarise the material facts on which you rely, but not the evidence by which those facts are to be proved. All necessary particulars must be given.
Consider whether the use of a concise statement in support of your originating application should be used, instead of points of claim or supporting affidavit. The purpose of a concise statement is to enable you to bring to the attention of the respondent and the Court, the key issues and key facts at the heart of the dispute and the essential relief sought from the Court.
You should prepare it in the nature of a pleading summons and it may be drafted in a narrative form. If a concise statement is filed with the application, no further originating material in support (points of claim or affidavit) needs to be filed until the Court orders.
The concise statement should not exceed five pages (including formal parts). It should be plain, concise and direct, and summarise the following:
- the important facts giving rise to the claim
- the relief sought and against whom
- the primary legal grounds (causes of action) for the relief sought, and
- the alleged harm you suffered, including, wherever possible, a conservative and realistic estimate or range of loss and damage.
In most cases, if you file an application and affidavit in support, you will not need to file a statement of claim or a points of claim, but, where appropriate, on the first court date (a case management hearing) the Court may order you to file and serve points of claim, in addition to any affidavit you may have filed.
Filing with the Court
What do I need to pay?
You will need to pay a filing fee to the Court when you file the application. For the current fees see, Fees.
In some circumstances, you may be exempt from paying court fees, for example, if you are a concession holder. You will need to apply to the Court for the exemption, using the Application for Exemption from Paying Court Fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship, by filing the Application for Exemption from paying Court fees or reduction – Financial Hardship.
You might need to provide supporting documentation to the Court to support your application for a fee exemption or fee waiver, for example, a photocopy of your concession card. If you are unsure about your eligibility for a fee exemption or waiver, the Court can advise you about the correct process for filing an application and help you with the appropriate application forms.
For more information see the General Federal Law Practice Direction – Intellectual property proceedings (GENFED-IP)
After your application has been filed, you must serve the application and the supporting statement of claim or points of claim or Affidavit - General federal law and migration on the respondent.
To serve documents on a corporation, you (or someone who serves the documents on your behalf) can serve the documents by leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation. You can leave the documents:
- at the corporation’s registered office, or
- if there is no registered office, at the corporation’s main place of business or main office.
If you cannot serve the documents by hand, you can apply to the Court for an order to serve the documents in a different way (substituted service). Making an application for substituted service is done by filing an Application in a proceeding with an accompanying Affidavit - General federal law and migration explaining why you want an order for substituted service.
After the documents have been served, you may need to complete an Affidavit of service proving that you have served the application. You will only need to do this if the respondent does not file and serve a Notice of address for service.
You should file the Affidavit of service with the Court (using eLodgment). The Affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed Affidavit of Service with you at any court hearing.