Mediation

Mediation is encouraged and will often be ordered as part of the management of your case. You must attend any court-ordered mediation.

Court-ordered mediation will be conducted by a Registrar of the Court. Alternatively, the parties may agree to use a private mediator appointed under the scheme conducted by the law society or independent bar association of the state or territory in which the proceeding was commenced, or otherwise as agreed.

For more information, please see General Federal Law Practice Direction – Intellectual property proceedings (GENFED-IP).

Consent between the parties

At any time before the judge delivers a decision, you may notify the Court that you have resolved your dispute and reached agreement. You will need to send the Court a draft of what you have agreed, signed by each party and stating that it is a ‘consent order'.

Discontinuance

You can choose to discontinue the application at any time before the first court date or, if the proceeding is continuing on pleadings, any time before the pleadings have closed, by filing a Notice of discontinuance with the Court.

You will need the other party’s consent or the Court’s permission if you want to file a Notice of discontinuance if the first court date has occurred or pleadings have closed. See Rule 23.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025.
 

If you have been served you should read the application as soon as possible. The person who filed the application with the Court is known as the applicant and you (as the other party) are known as the respondent.

What should I do next?

All intellectual property matters filed in the Court are docketed in the National IP List and case managed by the IP List judge.

Court appearances are managed by video link or telephone link when parties or their representatives are in differing locations. For more information about attending court this way see Electronic hearings.

You should file and serve a Notice of address for service, and a Respondent's Genuine steps statement if the applicant filed a genuine steps statement. You must appear at the first court date.

At the first court date, the Court will make orders about the procedural steps to be taken.

Typically, these orders are to file a defence or points of defence, and affidavits. Where a concise statement has been filed, you may be required to file a concise statement in response, which can be drafted in a narrative form.

The Court may order you to file and serve a Response - General Federal Law.

Together with the defence, points of defence, or affidavit, a respondent may file a cross-claim.

Filing with the Court

Wherever possible, you must file court documents commencing or relevant to an existing intellectual property matter online using eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders, and case management correspondence.  See the Federal Court website for information on how to use eLodgment.

If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.

Seeking legal advice

You should seek legal advice about your matter as soon as possible. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. The law can be complex and it is important to obtain some independent legal advice in relation to your situation.   

A community legal centre or legal aid may be able to assist you with advice.  
 

Seeking legal advice

You should seek legal advice about your matter as soon as possible. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. Intellectual property law can be complex and it is important to obtain some independent legal advice in relation to your situation.  

A community legal centre or legal aid may be able to assist you with advice.

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 Originating Application – General Federal Law. The application must also state the principal legislation under which the proceeding is brought.
• 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.

If Part 2 of the Civil Dispute Resolution Act 2011 applies to the proceeding, you must file a Genuine steps statement.

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 13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (General Federal Law Rules). 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.

If you file an affidavit, see the fact sheet Preparing an affidavit. 

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.

For more information see the General Federal Law Practice Direction – Intellectual property proceedings (GENFED-IP). 

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.

The filing fee is separate from legal fees you may need to pay your lawyer if you decide to use one for your matter.

Filing with the Court

Wherever possible, you must file court documents commencing or relevant to an existing matter online using eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders, and case management correspondence. See the Federal Court website for information on how to use eLodgment.

If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.

How do I notify the respondent?

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. This means you must make sure that the respondent receives the filed documents. At the hearing, the judge will often ask for evidence that you have served the documents. 

You can serve the documents by delivering them in person. If the respondent is an organisation, corporation or partnership you may be able to send the documents by registered or express post to their registered office (see Division 10.1 of the General Federal Law Rules).

If you are serving documents on an individual, you (or someone who serves the documents on your behalf) should serve the documents in person. 

If you cannot serve the documents in person or the documents sent by post cannot be delivered, you can apply to the Court for an order that you may serve the documents in a different way, for example, by email. This is known as ‘substituted service’. You make that application by filing an Interlocutory Application with an accompanying Affidavit explaining why you want to serve the application in a different way. The Court will then consider whether to make an order for substituted service. If an order is made, you will need to serve the documents as set out in the order.

After the documents have been served, you will need to complete an Affidavit of service, which you should file 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 the court hearing.

Costs

The Court normally awards costs to the successful party. Schedule 2 to the General Federal Law Rules provides an event-based costs regime, which means certain events in the matter are assigned an amount of money the successful party can recover from the unsuccessful party. However, there is discretion to depart from this regime, and a judge may fix the amount of costs and disbursements payable.

If an order is made for costs to be paid in accordance with the scale of costs applied in the Federal Court of Australia, then – failing agreement – costs may be referred for assessment in accordance with the Federal Court Rules. 

Rule 32.15 of the General Federal Law Rules provides that the Court may specify the maximum costs that may be recovered on a party-party basis. It is expected that the Court will use this provision in dealing with intellectual property proceedings.

The Federal Circuit and Family Court of Australia (Division 2) (the Court) has jurisdiction to hear and determine civil disputes concerning copyright, designs, trade marks and plant breeder’s rights, as set out below. This jurisdiction is concurrent with the jurisdiction of the Federal Court of Australia.

Copyright

The Court has jurisdiction to hear and determine civil copyright matters under the Copyright Act 1968. In particular, the Court can deal with matters arising under Parts V (except section 115A), VAA and IX and section 248J of the Copyright Act 1968.

Trade marks

The Court has jurisdiction to hear and determine the following matters under the Trade Marks Act 1995:

• appeals from decisions of the Registrar of Trade Marks under sections 35, 56, 67, 83(2), 83A(8), 84D and 104
• infringement actions under sections 120 and 121 (see also sections 122 to 128) and 130
• applications for relief from unjustified threats under section 129
• decision on whether a person has used a trade mark under section 7
• determining whether a trade mark has become generic under sections 24, 87 and 89
• amendment or cancellation of registration under sections 85 and 86
• revocation of registration by amendment or cancellation or entering a condition or limitation under sections 88 and 89
• application for an order to remove a trade mark registration for non-use under subsection 92(3) and referral to the Court by the Registrar of Trade Marks under section 94
• application for rectification of the Register of Trade Marks by order of the Court under section 181
• variation of rules governing use of certification trade mark under section 182.

Designs

The Court has jurisdiction to hear and determine the following matters under the Designs Act 2003:

• appeals from decisions of the Registrar of Designs under subsections 28(5), 67(4), 68(6), 50(6), 52(7) and 54(4)
• ability to make a determination of an ‘entitled person’ during proceedings before the Court under section 53
• infringement actions under sections 71 to 76
• applications for relief from unjustified threats under sections 77 to 81
• application for compulsory licences under sections 90 to 92
• revocation of registration under section 93
• for Crown use provisions, provide a determination of the term of use of a design under section 98
• application for the cessation of Crown use of a design under section 102
• rectification of the Register of Designs under section 120.

Plant breeder’s rights

The Court has jurisdiction in respect of alleged infringements under the Plant Breeder’s Rights Act 1994.

Associated jurisdiction

The Court has jurisdiction conferred in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked (section 134 of the Federal Circuit and Family Court of Australia Act 2021).