IP SPOTLIGHT 6 APRIL 2020

ARE THE AUSTRALIAN COURTS STILL OPERATING?

In short – yes. The Federal Court of Australia and the Federal Circuits courts, while remaining shut until 30 June 2020, have put in place plans to ensure that cases are not unduly delayed as a result of the COVID-19 Pandemic.

There are two main Australian Commonwealth courts in which IP matters are heard – the Federal Court and Federal Circuit Court. The Supreme Courts of each State and Territory also have jurisdiction over some IP matters. The High Court hears appeals of IP matters from all of these Courts. All of these Courts are still operating, utilizing electronic means to minimise COVID-19 risk. FEDERAL COURT All listings that require in person attendance listed up to 30 June 2020 have been vacated. The Court has issued “Special Measures in Response to COVID-19 (SMIN-1)”. Apart from the obvious electronic filing and communication measures provided for, some useful points to note include: – – Parties are being asked whether hearings can be conducted on the papers (meaning documents filed by the parties), by telephone or by other remote access technology. The Court has also issued a handy guide to using remote technology for hearings. Encouragingly, Perram J has recently successfully heard a matter using Microsoft Teams. – – The Court will accept the filing of unsworn affidavits on the understanding that, if required, these will later be sworn or affirmed when circumstances allow. FEDERAL CI RCU I T COURT In the IP docket parties are directed to the Court’s COVID-19 notice, which encourages telephone hearings or hearings on the papers where possible. Face to face hearings, where unavoidable, are subject to a special protocol designed to minimise COVID-19 transmission risk. SUPREME COURT OF NSW Unless you have leave from a judge to physically appear in exceptional circumstances, physical appearance is not required in any proceedings. The alternative options to progress your case include: Virtual courtroom appearance by phone or video – the relevant factsheet is here, as well as other audio and visual options – see this page. Disputes between the parties on case management issues in the Commercial List will be dealt with on the papers. H IGH COURT The High Court of Australia will not sit in April, May and June. The question of future sittings will be reviewed in June. The Court will continue to deliver judgments and deal with special leave applications including hearings as necessary at individual registries and will hear any urgent matters that may arise using video conferencing technologies.

TIM FRANCIS Principal

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