Federal Court of Australia

Form 5: Application (modified to include heading, signature block and filing party's details as required by Order 41 of the Federal Court Rules)
Version: 7
Rule: Order 4 rule 1
Use: This form is used if you are starting a proceeding in the Court. There are some exceptions to this. Please see the guide below for more details.

Guide to Form 5

Please read this guide and the form carefully. As the applicant, you are responsible for making sure all your paperwork is in order. Although the Court’s Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court’s procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents.

When should you use Form 5?

This form must be used if you are starting a proceeding in the Federal Court other than a proceeding listed below.

That is, you should not use the form if you are:

· applying to set aside a bankruptcy notice and/or to extend time for compliance with a bankruptcy notice. Use modified Form 5.
· applying for a rule calling on a person or organisation to show cause why an order should not be made under clauses 163, 164, 164A or 167 of the Workplace Relations Act 1996 (RAO Schedule 1B) in relation to a person or organisation. Use Form 6.
· making a cross-claim against a person who has started a proceeding against you. Use Forms 8, 9 or 10 as appropriate.
· applying for review by a Judge of a decision of the Registrar under subsection 35A(5) of the Federal Court of Australia Act (where you did not make an oral application for review to the Registrar at the time that the power was exercised). Use Form 27.
· appealing from a decision or determination of the Superannuation Complaints Tribunal or Australian Competition Tribunal. Use Form 55A.
· appealing against an ‘appealable objection decision’ under the Taxation Administration Act 1953. Use Form 55D.
· appealing against a ‘departure prohibition order’ under the Taxation Administration Act 1953. Use Form 55DA.
· Applying for an order of review under the Administrative Decisions (Judicial Review) Act 1977. Use Form 56.
· applying for judicial review of a decision under the Judiciary Act 1903in relation to certain decisions under the Migration Act 1958. Use Form 56A.
· appealing from a decision of Commissioner or Registrar (as the case may be) under the Patents Act 1990, Designs Act 1906, Trade Marks Act 1955 or Olympic Insignia Protection Act 1987. Use Form 58A.
· applying for a declaration as to the persons entitled to moneys paid into Court pursuant to s 202(3) or s 215(1) of the Life Insurance Act 1995. Use Form 59.
· applying under the Lands Acquisition Act 1989 for compensation. Use Form 61.
· applying under the Lands Acquisition Act 1989 for approval under s 116. Use Form 62.
· applying under the Lands Acquisition Act 1989 for an extension of time. Use Form 63.
· applying under the Circuit Layouts Act 1989 to determine equitable remuneration. Use Form 64.
· applying under the Circuit Layouts Act 1989 for a determination of the terms for the doing of an act in relation to an eligible layout. Use Form 65.
· applying for a determination as to the validity of any election, or of the declaration of a poll for an election, under the Aboriginal and Torres Strait Islander Commission Act 1989. Use Form 73.
· applying to commence a representative proceeding (also known as a “class action”) under Part IVA of the Federal Court of Australia Act 1976. Use Form 129.
· applying to register a foreign judgment under s 6(1) of the Foreign Judgments Act 1991. Use Form 132.
· appealing from the National Native Title Tribunal under s 169 of the Native Title Act 1993 on a question of law relating to a right to negotiate application or registration of an indigenous land use agreement. Use Form 141.
· lodging a creditor’s petition under the Bankruptcy Act 1966. Use Form 150.
· lodging a creditor’s petition for the administration of a deceased person’s estate under the Bankruptcy Act 1966. Use Form 157.
· lodging an administrator’s petition under section 247 of the Bankruptcy Act 1966. Use Form 158.
· making a claimant application for a determination of native title in relation to an area for which there is no approved determination of native title. Use Native Title Form 1.
· making a non-claimant application for a determination of native title in relation to an area for which there is no approved determination of native title. Use Native Title Form 2.
· making an application for revocation or variation of an approved determination of native title, on the grounds set out in s 13(5) of the Native Title Act. Use Native Title Form 3.
· making an application for a determination of compensation under the Native Title Act. Use Native Title Form 4.
· making an application under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001. Use Corporations Form 1.

How do you apply to the Federal Court?

If you make an application to the Court you will be called the applicant. You must follow the following steps to make an application.

1. Get a Form 5 and fill it out. This is the application form. You can get a copy of Form 5 from the Registry or download a copy from the Court’s website.

2. Get a Form 20 and fill it out. This is the affidavit. An affidavit is a written statement, affirmed or sworn before a solicitor or Justice of the Peace. The affidavit must set out the facts that support the reasons for your application. If there are any papers you want to attach to the affidavit then the person who witnesses your signature on the affidavit must also sign the attachments at the same time. You can get a copy of Form 20 from the Registry or download a copy from the Court’s website.

A guide to filling out the affidavit is provided below.

3. The original application form and affidavit plus a copy of each document for each party must be delivered to the Federal Court. You can do this by bringing the documents to the Registry, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court’s website.

Make sure you have a copy of the application form and affidavit for yourself.

4. Pay the applicable filing fee. If you cannot afford this fee you may be able to ask the Court to reduce it*. You can get a form to ask the Court to reduce payment and information about the circumstances where a reduction can be given on the Exemption and reduction of fees pages or from the Registry.

* Note: Up to October 2010, the Court could waive Court fees in some circumstances. Changes to the Federal Court of Australia Regulations 2004 introduced on 1 November 2010 means the Court can no longer waive fees; the Court can however, reduce the payment of Court fees if it will result in financial hardship.

5. If the documents are in the correct form the Court’s Registry staff will stamp the original and the copies of each document. The Registry will also write on the application form the time date and place when the parties need to come to the Court for a directions hearing. This is the date on which the application will first be considered by the Court.

6. A stamped copy of the documents must be personally served on each other party at least five days before the date of the directions hearing. For information about personal service see Order 7 rule 2 of the Federal Court Rules.

How to fill in your application

Please read all of these notes before you begin completing the application form.

These instructions assume that you are the applicant in the proceeding, that you are not represented by a lawyer and that the applicant in the proceeding is a natural person, not a company or other corporate entity.

Heading

The applicant is the person who starts the proceeding by filing an application. The respondent is the person who opposes or agrees to the orders which the applicant wants the Court to make. There can be more than one applicant or respondent.

In the spaces provided insert :
· your full name
· the full name of each respondent.

First paragraph

At the start of the form you should briefly describe the application you are making. What do you want the Court to do? You should also write the name of the legislation which gives the Court the power to hear your application and to make the orders you are seeking.

Part A. Details of claim

In Part A write the orders you want the Federal Court to make at the hearing.

Part B. Claim for Interlocutory Relief

Write any orders you want the Federal Court to make before the final hearing of the application, otherwise leave this section blank.

If you complete Part B then it must be dated and signed in the spaces provided.

Part C. Notice to the Respondent

After ‘To the respondent’ write the address of the respondent. If there is more than one respondent you will need to make a copy of the Form 5 for each respondent.

Registry staff will write the time and date for the first directions hearing and the address of the Court where the directions hearing will be held.

Part D. Abridgment of service

The application must be served at least 5 days before the date written on the application for the first directions hearing. If a Registrar has made an order shortening this time then the date that that order was made as well as the new time by which the application must be served must be written in the space provided. Otherwise, leave this section blank.

Part E. Filing and service

If you do not have a lawyer, write your name in the space provided.
In the next space provided write the address to which the Court or the respondent can deliver or send letters or documents to you. The address must be in Australia. The address must be a street address and cannot be a Post Office Box. This is called your address for service.

In the next space, write your residential or business address.

The next section of Part E asks you to indicate whether the application is to be served on anyone. If the application is not required to be served then the words after "OR" should be deleted. If the application is to be served, then delete the words appearing before "OR" and insert the name and address of each respondent upon whom a copy of the application is to be served.

Date and signature

The application form must be signed and dated.

Filing details

Under the horizontal line on the first page of the application, write:

· your name;
· your address for service (ie the address you provided at Part E), telephone number and facsimile number (if any)

How to fill in your affidavit in support of your application)

You can get a copy of Form 20 from the Registry or download a copy from the Court’s website.

Please read all of these notes before you begin completing the affidavit.

Heading

In the spaces provided insert:
· your full name
· the full name of the respondent.

These should be the same names as those used in the application form.

First paragraph

In the spaces provided, write:
· the date on which the affidavit is being made
· your full name, address and occupation.

The main part (‘body’) of the affidavit

The Court’s rules about the requirements for affidavits are set out in Order 14. The affidavit should set out, in numbered paragraphs, the type of application you are making and the facts that support it. There is no limit to the number of paragraphs contained in an affidavit. Each paragraph should deal with a separate issue.

If the affidavit refers to any documents then a copy of each document may be annexed (attached) to the affidavit. Each annexed document must be marked with a letter (eg "A" for the first annexure, "B" for the second annexure, and so on), and must include the following annexure note which can be handwritten on the first page of the annexure:

" This and the following ……. [insert number of pages] pages is the annexure marked "A" in the affidavit of ……….. [insert name of person making the affidavit] sworn before me on …………………… [insert date, including year].

Signed: ……………………… "

The solicitor or Justice of the Peace witnessing the affidavit must sign every annexure note.

Swearing or affirming the affidavit

Do not sign the affidavit straight away.

The person making the affidavit must first take an oath or affirmation in front of a solicitor or Justice of the Peace. Only after the oath or affirmation has been taken can the affidavit be signed. The solicitor or Justice of the Peace must then also sign and date the affidavit and any annexures to it.

If the affidavit is more than one page, then the person making the affidavit and the solicitor or Justice of the Peace must sign each page.

Filing details

Under the horizontal line on the first page of the affidavit, write:
· your name
· your address for service, telephone number and facsimile number (if any).