Federal Court of Australia

Form 58A: Notice of Appeal
Version: 5
Rule: Order 58 rule 4

Guide to Form 58A

Please read this guide and the form carefully. As the party appealing a decision (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 58A?

Form 58A should be used if you want to appeal against a decision, direction or determination made by:
· the person holding the office of Commissioner under the Patents Act;
· the person holding the office of Registrar under the Designs Act;
· the person holding the office of Registrar under the Trade Marks Act.

Drafting a Notice of Appeal can be very difficult. It is therefore recommended that a Notice of Appeal be prepared with legal assistance.

You can get contact details of organisations which may be able to provide free or low-cost legal advice or assistance from the Registry or see the Court’s website.

How do you appeal?

1. Get a Form 58A and fill it out. This is the Notice of Appeal. On this form you are called the applicant. You can get a copy of Form 58A from the Registry or download a copy from the Court’s website.

2. The Notice of Appeal must be filed in a Registry of the Court within 21 days of the date of the decision from which you are appealing. If the time to appeal has, or is about to, run out, you must apply for an extension of this period. You need to fill out a Form 27: Notice of Motion together with a Form 20: Affidavit. You can get a copies of Form 27 and Form 20 and instructions for filling them out from the Registry or the Court’s website. Your affidavit needs to set out the special circumstances which have caused the delay (see Order 58 rule 4(3)(b) of the Federal Court Rules).

3. The original Notice of Appeal (and Notice of Motion and affidavit, if any) plus a copy for each other party and the decision-maker whose decision you are appealing from 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 documents for yourself.

4. Pay the application fee. If you cannot afford this fee you can ask the Court to waive it. Some people are also exempt from paying fees (for example, if you have been granted Legal Aid or are the holder of a health care card). You can get a form to ask the Court to waive or grant an exemption from the fee from the Registry or download a copy from the Court’s website.

5. If the documents are in the correct form, Registry staff will stamp the original and the copies. The Registry will also write on the Notice of Appeal the time and date when the matter will first be considered by the Court at a directions hearing.

6. You must arrange for a stamped copy of the Notice of Appeal to be served on each respondent and the decision-maker within 5 days of the day on which the Notice of Appeal was filed. For more information about service see Order 7 rule 2.

7. If you are also applying for an extension of time you must serve a copy of the Notice of Motion and Affidavit on each respondent and the decision-maker at least 14 days before the directions hearing.

How to fill in your Notice of Appeal

Please read all of these notes before completing the Notice of Appeal form.

These instructions assume that you are not represented by a lawyer.

Heading

In the spaces provided, write:
· the title or office of the person who made the decision;
· your full name;
· the name of each respondent to the appeal.

The decision-maker is not the respondent unless there is no party opposing your appeal.

Paragraph 1

In the spaces provided, write:
· the title or office of the person who made the decision;
· the date of the decision;
· the city where the decision was made;
· the actual decision you are appealing against (eg. ‘decision not to register the trade mark ‘Bunnylumps’).

Paragraph 2 (Orders sought)

Write the orders which you want the Court to make in place of the orders that were made by the decision-maker.

Paragraph 3 (Grounds of appeal)

In this part of the form you must write down the errors of law that you say the decision-maker made. You can set out as many errors as you wish. Give each error a new paragraph number.

Respondent details

In the space provided after the words "To the respondent", write the address of each respondent.

Paragraph (b) after the words "Take Notice"

Paragraph (b) is completed by the Registry staff when you file the notice of appeal.

Date and signature

The notice must be signed by the Registrar and dated.

Address for service

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.

Filing details

Under the horizontal line at the bottom of the notice write:
· your name
· your address for service, telephone number and facsimile number (if any).

(January 2005; updated June 2009)