Hendrik Johannes Liebenberg, who worked as a Patent Examiner from October 2012 until May 2024, has applied to the Federal Court of Australia for writs of certiorari and mandamus following unsuccessful FWC proceedings. His case centres on allegations that routine quality assurance procedures at IP Australia constituted improper interference with his decision-making authority. He has, additionally, escalated these claims into broader accusations about institutional practices.
For readers unfamiliar with the legal terminology, a writ of certiorari commands an inferior court or tribunal to set aside a decision, and is typically used when the decision-maker has exceeded their jurisdiction or made a jurisdictional error. A writ of mandamus compels a public official or body to perform a duty they are legally required to perform, or to exercise their jurisdiction according to law. Both are supervisory remedies allowing superior courts to oversee the exercise of power by decision-makers.
While it is more usual for the Federal Court to review administrative decision under the Administrative Decisions (Judicial Review) Act 1977, the difficulty for Mr Liebenberg is this case is that paragraph (a) of Schedule 1 to the ADJR Act excludes decisions made under employment-related legislation – including the Fair Work Act – from review. This exclusion reflects Parliament's intention that Fair Work matters should be resolved within the specialist tribunal system rather than through general administrative law review. To succeed, therefore, Mr Liebenberg will need to show that the FWC fundamentally misunderstood its jurisdiction, not just that it made errors within its jurisdiction.
The case provides a window into workplace dynamics at Australia’s primary intellectual property agency, though the FWC found no merit in the constructive dismissal claim after examining the circumstances of Mr Liebenberg's resignation.
The Core Dispute: Quality Assurance vs Individual Authority
Mr Liebenberg’s central complaint relates to IP Australia's standard quality assurance processes for patent examination. As a patent examiner with delegated authority to make decisions on applications, he objected when his work was subject to review or input from other team members as part of routine quality control procedures.
From 2021 onwards, Mr Liebenberg raised concerns with IP Australia management about what he argued were improper examination processes. In submissions to the FWC, IP Australia has characterised these issues as ‘Administrative Law Concerns’ – a term adopted throughout the subsequent FWC proceedings. Mr Liebenberg’s position was that any review or modification of his examination decisions constituted unlawful interference with his authority as a delegated decision-maker and violated administrative law principles regarding improper ‘fettering’ of decision-making power.
IP Australia’s position was that its quality assurance procedures, developed through extensive stakeholder consultation, were standard practice designed to maintain examination quality while preserving individual examiner authority where appropriate. The agency pointed to established escalation procedures for handling conflicts and noted that such processes are routine in administrative decision-making environments.
The disagreement appears to reflect differing views about the appropriate balance between individual examiner autonomy and institutional quality oversight – a tension that exists in many professional environments where individual expertise operates within organisational frameworks.
Escalating Workplace Tensions
What began as a professional disagreement about procedures escalated over several years into broader allegations about IP Australia's management practices. IP Australia sought to address Mr Liebenberg’s concerns through various means, including discussions with human resources, the Office of Legal Counsel, two different Commissioners of Patents, and various senior managers.
Despite these engagements, Mr Liebenberg remained unsatisfied with IP Australia’s explanations and began characterising the agency’s practices in increasingly serious terms. By 2024, he was describing routine quality assurance procedures (in an email quoted in the original FWC decision) as ‘unlawful, unreasonable, unfair, inefficient, and abusive management practices.’
IP Australia maintained that it had made substantial efforts to address Mr Liebenberg’s concerns through proper channels and provided multiple opportunities for him to continue his employment. The agency’s approach included refusing to immediately accept his initial resignation in February 2024 and allowing him to rescind it and take extended leave.
The Employment Termination
The employment relationship ended through a protracted process spanning several months in 2024. After expressing dissatisfaction with IP Australia’s position at a February meeting, Mr Liebenberg tendered his resignation, stating he could not support what he characterised as unlawful practices.
Rather than processing the resignation immediately, IP Australia sought to clarify his intentions and explore alternatives. Mr Liebenberg subsequently rescinded his resignation and took approved leave from February to May 2024. However, when he failed to return to work in May and later returned agency property, it became clear the employment relationship had effectively ended.
This sequence of events formed the basis for Mr Liebenberg’s constructive dismissal claim, in which he argued that IP Australia's conduct had effectively forced his resignation.
Fair Work Commission Findings
Deputy President Dean's October 2024 decision (Hendrik Johannes Liebenberg v IP Australia [2024] FWC 2933, PDF 359kB) applied established legal tests for constructive dismissal, examining whether IP Australia’s conduct was intended to end the employment or had the probable result of forcing resignation.
The decision found that IP Australia had not engaged in conduct designed to terminate Mr Liebenberg’s employment. On the contrary, the evidence showed the agency had made multiple attempts to preserve the employment relationship and address his concerns through proper channels.
Key findings included that:
- IP Australia had responded to Mr Liebenberg’s concerns ‘on multiple occasions’ through appropriate management channels;
- the Applicant ‘had other options available to pursue any grievances or complaints’ beyond resignation;
- the agency ‘did not immediately accept the Applicant’s resignation’ and ‘provided multiple opportunities to the Applicant to continue in his employment’; and
- Mr Liebenberg had ‘not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign’.
The Deputy President noted that while it was not strictly necessary to examine Mr Liebenberg’s allegations of unlawful conduct in detail, the evidence before the Commission provided no basis for such claims. This assessment was further said to be supported by IP Australia’s 2024 external audit certification covering its quality management systems for patent examination and decision-making processes.
Failed Appeal Attempt
Mr Liebenberg’s appeal to a Full Bench of the FWC raised several challenges to the primary decision, including arguments about the decision-making process and the assessment of his allegations against IP Australia.
In Hendrik Johannes Liebenberg v IP Australia [2024] FWCFB 460 (PDF 290kB), the Full Bench applied the stringent test for unfair dismissal appeals under section 400 of the Fair Work Act 2009, which permits appeals only where it is ‘in the public interest to do so.’ This test requires demonstration of factors such as issues of general application, inconsistent first instance decisions requiring guidance, or manifest injustice.
The appeal decision addressed what the Full Bench considered to be several misconceptions in Mr Liebenberg’s arguments, including his contention that the Commission should have conducted ‘inquisitorial’ proceedings. The Full Bench clarified that ‘unfair dismissal proceedings, whether conducted by conference or hearing, are adversarial, not inquisitorial,’ citing its recent decision in Komeyui Management Pty Ltd v Guy Goonewardena [2024] FWCFB 425.
Finding none of the criteria for public interest appeals were met, the Full Bench refused permission to appeal in December 2024.
Federal Court Application: A High Bar for Review
Mr Liebenberg’s Federal Court application seeks constitutional writs of certiorari and mandamus, attempting to invoke the Court's supervisory jurisdiction over the FWC's decisions. Specifically, he is seeking:
- writs of certiorari quashing both FWC decisions – the primary decision dismissing his unfair dismissal application and the Full Bench decision refusing permission to appeal;
- writs of mandamus compelling the FWC to grant him permission to appeal the primary decision, and to remake both decisions (presumably in his favour); and
- a writ of continual mandamus compelling the FWC to permanently change its decision-making approach from ‘adversarial’ to ‘inquisitorial’ in proceedings.
Such applications face a notably high legal threshold. Federal Court review requires demonstration of jurisdictional error, i.e. circumstances where the decision-maker has fundamentally misunderstood their jurisdiction or failed to exercise it according to law. Mere disagreement with factual findings or legal conclusions properly within the tribunal's authority is insufficient. Additionally (and conceding that this is an area in which I have no expertise) both section 75(v) of the Constitution and section 39B of the Judiciary Act 1903 (granting jurisdiction to the Federal Court) mention writs of mandamus, but neither mention writs of certiorari, potentially raising the question of whether Mr Liebenberg needs to establish that the Federal Court has jurisdiction to issue certiorari in this context.
The Federal Court application faces substantial procedural hurdles beyond the high threshold for jurisdictional error. Constitutional writs are discretionary remedies, and courts may decline to grant them where comprehensive statutory appeal processes have been properly utilised, as occurred here. The FWC's decisions appear to demonstrate careful application of established legal principles to the factual circumstances. Both the primary decision and appeal involved thorough consideration of Mr Liebenberg's arguments within appropriate legal frameworks.
It is my understanding that supervisory review of FWC decisions is very rare, and typically unsuccessful where the tribunal has operated within its jurisdiction, even if particular parties disagree with the outcomes. It therefore seems likely that Mr Liebenberg faces a difficult path ahead. While every workplace dispute deserves proper consideration through established channels, the Federal Court application might be seen as continued litigation of matters that have been thoroughly examined through appropriate processes before the FWC.
Conclusion – Merit in Objections to Contentious Practices?
I know a few practitioners, along with some patent applicants, who might well share Mr Liebenberg’s disagreement with some of IP Australia’s established examination practices. Specifically, the approach to subject matter eligibility (i.e. ‘manner of manufacture’) in relation to many computer-implemented inventions remains contentious. Applicants continue to contest eligibility rejections, despite a number of appellate court decisions that have upheld refusals of patent applications on this ground. Notably, in the Aristocrat case that is still before the courts, a Federal Court judge at first instance, along with three judges of the High Court, would have reversed IP Australia’s finding that the applicant’s claims were not for a manner of manufacture, while the three judges of the Full Court of the Federal Court agreed that the claimed inventions were ineligible for patent protection, but did not agree upon the reasoning to arrive at that conclusion.
So, with practitioners, applicants and the judiciary divided on the application of the law, it would be very surprising if there were not patent examiners who disagree with IP Australia’s practice in this area. On the other hand, implementing IP Australia’s published examination practices – whether or not one agrees with them – would seem to be a fairly significant part of the job description for a patent examiner. The alternative would be a system in which the outcome of examination might depend significantly on the individual views of the examiner who happens to be allocated to each application.
I sought comment from Mr Liebenberg and IP Australia for this article. Mr Liebenberg stated that: ‘Decision-making disorder is toxic and it undermines public trust, rule of law, object of the patents act, and causes harms and hurts to applicants and patent examiners. There is now an opportunity to raise issues of concern about unclear decision making practices before the Federal Court. If all the parties involved put public trust first then all parties can walk away winners from this matter, regardless whom the outcome might favour.’ A spokesperson for IP Australia advised that ‘the matter Hendrik Liebenberg v IP Australia – ACD24/2025 is currently before the Federal Court of Australia and therefore it is not appropriate for IP Australia to provide any comment on the issues raised in the proceedings.’
The application continues in the Federal Court's ACT Registry: Hendrik Johannes Liebenberg v IP Australia & Anor ACD24/2025.
Before You Go…
Thank you for reading this article to the end – I hope you enjoyed it, and found it useful. Almost every article I post here takes a few hours of my time to research and write, and I have never felt the need to ask for anything in return.
But now – for the first, and perhaps only, time – I am asking for a favour. If you are a patent attorney, examiner, or other professional who is experienced in reading and interpreting patent claims, I could really use your help with my PhD research. My project involves applying artificial intelligence to analyse patent claim scope systematically, with the goal of better understanding how different legal and regulatory choices influence the boundaries of patent protection. But I need data to train my models, and that is where you can potentially assist me. If every qualified person who reads this request could spare just a couple of hours over the next few weeks, I could gather all the data I need.
The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months. No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar. You might even find it to be fun!
There is more information on the project website, at claimscopeproject.net. In particular, you can read:
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Thank you for considering this request!
Mark Summerfield
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