The High Court of Australia and IP Matters

This article first appeared in The Watermark Journal Vol 23 No 4 (December 2006)

The High Court of Australia hears appeals against the decisions of lower courts in Australia including the Federal Court of Australia. However, there is no automatic right to have an appeal heard by the High Court. The aggrieved party must apply for leave to appeal and persuade the Court in a preliminary hearing that there are valid reasons for the appeal to be heard.

(a)  whether the proceedings in which the judgment to which the application relates involved a question of law:

(i)     that is of public importance, whether because of its general application or otherwise; or

(ii)    in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and 

(b)  whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

• the judgment appealed from is correct or not sufficiently doubtful; 
• the appeal is unlikely to succeed; 
• the case has little or no relevance beyond the parties to the dispute; 
• the case is not a suitable vehicle for the resolution of the legal issue; 
• the appeal does not involve a question of law of sufficient public importance; 
• an appeal is not in the interests of justice; 
• the appeal is against an interlocutory order;
• the appeal challenges a previous decision of the High Court and there is insufficient reason to reconsider that decision; and
• the appeal turns on a question of fact.