Review, Writs and the Intellectual Property Division

In one line

Beyond the statutory appeal there are three further routes, the Registrar's own power to review, the High Court's writ jurisdiction, and the specialised intellectual property divisions the High Courts created after 2021.

Review by the Registrar

Section 127 sets out the Registrar's powers, and clause (c) is the review power: to review his own decision on an application made in the prescribed manner.

What review is. A reconsideration by the same authority of its own order, ordinarily on the ground of an error apparent on the face of the record, or of new and important matter which could not have been produced earlier.

What it is not. It is not an appeal in disguise. A party who simply disagrees with the decision must appeal under section 91.

Why it matters in practice. Registry orders are often made in the absence of a party, or on a record that was incomplete because a document did not reach the file. Review is quicker and cheaper than an appeal to the High Court, and it does not require the three month period to be met, though the rules prescribe their own time for it.

And the choice between review and appeal is a real one. An order that is wrong on the material before the Registrar calls for an appeal. An order that is wrong because of something on the record, or because something was not before him through no fault of the party, calls for review.

The writ jurisdiction

Articles 226 and 227 of the Constitution give the High Courts the power to issue writs and to superintend all courts and tribunals within their territory. The Constitution has not been read for these notes, so the Articles are named and not quoted.

When a writ is the only route. Where the Act gives no appeal.

The clearest instance is section 131(2), which provides that no appeal shall lie from an order of the Registrar extending or refusing to extend time. An order refusing an extension can be fatal, since section 132 permits the Registrar to treat an application as abandoned for default, and the only recourse is the High Court's supervisory jurisdiction.

Other instances. Inordinate delay by the Registry; a refusal to act at all; an order made without jurisdiction; a decision reached in breach of natural justice where no appeal is available.

The limit. Where the Act gives an appeal, the High Court will ordinarily require the party to use it. The existence of an alternative statutory remedy is not an absolute bar to a writ, but it is a strong reason to refuse one.

The intellectual property divisions

When the Appellate Board was abolished on 4 April 2021, its pending matters and its future work went to the High Courts.