Stack v Commissioner of Patents

Stack and GST sought judicial review of a decision by the Commissioner of Patents regarding the validity of a patent. Drummond J dismissed the application and made a declaration that section 210(d) of the Patents Act 1990 did not confer judicial power on the Commissioner and was a valid exercise of the Commonwealth's legislative power. The applicants argued that the Commissioner could not exercise discretion under Regulation 5.5(1)(a) to impose a pecuniary penalty without providing for an appeal, citing Harris v Caladine. They also sought to treat the application as the first judicial determination and set aside the Commissioner's decision. Drummond J found that the applicants had not criticised the delegate's conclusion that the notice of opposition was invalid on its face, and agreed with the delegate's assessment that the applicants had not fully disclosed the circumstances relevant to the exercise of the discretionary power to extend time. The judge held that the delegate did not commit any reviewable error in refusing to dismiss the notice of opposition.

Drummond J carefully considered the arguments presented by the applicants and the relevant statutory and regulatory provisions. The judge noted that the applicants had not contested the validity of the notice of opposition and agreed with the delegate's assessment that the applicants had not fully disclosed the circumstances relevant to the exercise of the discretionary power to extend time. The judge also found that the applicants' argument that the Commissioner could not exercise discretion under Regulation 5.5(1)(a) to impose a pecuniary penalty without providing for an appeal was unpersuasive. The judge held that the delegate did not commit any reviewable error in refusing to dismiss the notice of opposition. The applicants' appeal was dismissed, and they were ordered to pay the costs of the appeal.