Most of the rules setting out
the steps in an appeal are set out in Order
52 of the Federal Court Rules. You should take some
time to become familiar with these Rules.
You must complete a Form
55. On this form you are called the appellant as you
are the party making the appeal.
Time limits
Appeals from final judgments must
be made within 21 days of the decision. If the time to
appeal has, or is about to, run out, you can apply for
an extension of this period. You will need to complete
a Form
54A.
What happens after the Notice
of Appeal is filed?
Unless the appeal is from a judgment of a Federal Magistrate, the Registry usually makes an appointment for both parties to attend a meeting to decide what material from the original case should be provided to the Judge or Court in the appeal book. Not all documents from the original hearing may be relevant. This process is called ‘settling the appeal book index’.
If the appeal is from a judgment of a Federal Magistrate, the Registry will allocate a date for a directions hearing or final hearing of the appeal.
At least 7 days before the appointment to settle the appeal book index, if applicable, you must file and serve a draft index listing the documents which you think should be included in the appeal book.
At the meeting the Registrar will discuss the draft index with both parties and decide what materials should be included. The Registrar and the parties must try to exclude documents and parts of the transcript which are not relevant to the appeal so as to reduce the number and length of the documents to be included in the appeal book.
The appeal book must contain:
an index of its contents;
a chronological list of any exhibits (and any other documents received in evidence) that are included in the Appeal Book;
the pleadings of every party as amended before the conclusion of the trial, and any intermediate versions that are relevant to the grounds of appeal, cross-appeal or contention;
the reasons for judgment of the primary Judge or Federal Magistrate;
the formal order of the court from which the appeal is brought:
the notice of appeal, and any notice of cross-appeal or notice of contention;
any submitting appearances;
such parts of the transcript of the hearing at first instance as the parties consider it necessary for the Court to have for the determination of the appeal, but no more; and
any affidavits and exhibits from which the parties will ask the Court to read in the course of their submissions (complete documents should be included only where that is necessary for a proper understanding of the document).
At the meeting the Registrar will also:
ask the parties for an estimate of how long the appeal hearing is likely to take;
advise you how many copies of the appeal book must be prepared;
ask the parties whether any exhibits need to be made available to the Court or Judge hearing the appeal.
You must also file and serve an outline of submissions. This outline should contain a summary of the argument for each issue in the appeal and a list of cases that will be referred to in support of your case. This must usually be done no later than 5 clear working days before the start of the hearing of the appeal, although a Judge may set a different date.
The Hearing
You will be asked to argue your
case first. The respondent will then be given an opportunity
to reply. You will then be given a final opportunity
to reply to anything raised by the respondent. You will
be expected to be familiar with the contents of the appeal
book and to be able to direct the Court to passages in
the book that support your arguments.
If you are successful the Court
may:
make a different decision
to the one made by the Court that heard the original
case; or
order that the case be heard
again.
What if I want the Court or
Judge hearing the appeal to consider evidence that was
not before the original Judge or Magistrate?
Your grounds of appeal must argue
that the original Judge or Federal Magistrate that heard
your case made an error of law. Only in exceptional circumstances
will the Court or Judge hearing an appeal allow additional
evidence to be presented – this is because in most
circumstances, evidence is used to prove facts, not to
make arguments about the law.
Order
52 rule 36 contains the rules about how to make
an application to be allowed to present further evidence.
Briefly the steps are:
not later than 21 days
before the hearing of the appeal, the party that
wants to present additional evidence files:
an affidavit or affidavits
containing the additional evidence, and
an affidavit containing
the grounds for the application to present additional
evidence;
not later than 21 days before
the hearing of the appeal, the party that wants to
present additional evidence serves 3 copies of the
affidavit or affidavits containing the additional evidence
on each other party;
not later than 14 days before
the hearing of the appeal any other party that wants
to present additional evidence files their affidavit
or affidavits containing the additional evidence and
serves 3 copies on each other party;
at the hearing of the appeal
the party that wants to present additional evidence
makes an oral application to the Judge or Court that
the additional evidence be received by the Judge or
Court.
What if I want to withdraw
my appeal?
You can withdraw your appeal by
filing a Form
29. If the appeal has not yet been heard you do not
need the permission of the Court to file the Notice of
Discontinuance. If the hearing has begun, or if the hearing
has ended but the Court has not yet delivered its judgment,
you will need the Court’s permission to file the
Notice of Discontinuance.
If you discontinue the appeal
you will usually be ordered to pay the other party’s
legal costs.
Appeals to the High Court
of Australia
There is no automatic right of
appeal to the High Court from a decision of the Full
Court of the Federal Court or from a decision of a single
Judge who heard an appeal from a Federal Magistrate.
You may apply to the High
Court for permission (called ‘special leave’)
to appeal, but this is only granted in special cases.
If you make an application for special leave to the
High Court, a copy of the application must also be
given to the Federal Court Registry in the State
or Territory where the decision that you wish to
appeal from was made.
