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Appellate jurisdiction

The appellate jurisdiction of the Federal Court of Australia includes:

1. Appeals from decisions of a single Judge of the Federal Court exercising the original jurisdiction of the Court, either interlocutory or final

A party may appeal from a final judgment of a single Judge within the time period set by Rule 36.03 of the Federal Court Rules 2011. In some cases leave to appeal is required by legislation to appeal from a final judgment of a single Judge. If a party wishes to appeal from an interlocutory decision leave of the Court is required. An application for leave to appeal may be made within the time period set by Rule 35.13.

2. Appeals from other courts (in limited circumstances)

Pursuant to section 24(1) of the Federal Court of Australia Act 1976, the Court has jurisdiction to hear and determine: 24(1)(b) appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); and (c) in such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction. The circumstances in which the Federal Court may hear appeals from other courts depends on the provisions of the relevant legislation. For appeals in criminal cases from the Supreme Court of a Territory see Part 37 of the Federal Court Rules.

3. Fair Work appellate jurisdiction

Pursuant to s 565 of the Fair Work Act 2009, an appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under that Act.

4. Appeals from a decision of a Federal Magistrate

Section 25(1AA) of the Federal Court of Australia Act 1976 requires that the appellate jurisdiction of the Court in relation to an appeal from a judgment of a federal magistrate is to be exercised by a single Judge or if a Judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court – a Full Court.

The rules of the Federal Court apply to these appeals: see Chapter 4 of the Federal Court Rules 2011.

The original jurisdiction of the Federal Court of Australia includes:

1. Appeals and other matters from tribunals constituted by a judge or presidential member

The Court’s original jurisdiction to hear and determine appeals or matters from decisions of tribunals or authorities, including the Administrative Appeals Tribunal, must be exercised by the Full Court in certain circumstances. Pursuant to s 20(2) of the Federal Court of Australia Act 1976, the original jurisdiction of the Court in a matter coming before the Court from a tribunal or authority while constituted by a member or members who include a judge of the Court or of another court created by the Parliament, shall be exercised by a Full Court. In the case of an appeal from a decision of a presidential member of the AAT, the Chief Justice may consider it appropriate for the appeal to be heard and determined by a Full Court pursuant to s 44(3) of the Administrative Appeals Tribunal Act 1975.

2. Matters remitted from the High Court of Australia

Division 32.1 of the Federal Court Rules 2011 deals with the procedure for matters remitted from the High Court to the Federal Court.

3. Fair Work original jurisdiction

The Court is also vested with original jurisdiction pursuant to s 19(1) of the Federal Court of Australia Act 1976 to hear matters arising under the Fair Work Act 2009 (Cth). The President of Fair Work Australia, Justice Guidice, is a judge of the Federal Court. Therefore, the original jurisdiction of the Court in a matter coming to the Court from FWA pursuant to s563 of the Fair Work Act 2009 constituted by Guidice J or Guidice J sitting with others, must also be exercised by a Full Court pursuant to s 20(2) of the Federal Court of Australia Act 1976.

Where the President of FWA refers a question of law to the Federal Court pursuant to s608 of the Fair Work Act 2009, the question of law must be determined by the Full Court of the Federal Court.

Procedure for appeals generally

Chapter 4 of the Federal Court Rules deals with all appeals and related applications brought in the Court’s appellate jurisdiction. You should take some time to become familiar with these Rules.

Practice Note App 2 deals with the conduct and preparation of appeals by litigants and representatives.

Appeals are to be filed in the registry in which the original matter was heard (Rule 36.02). Following the commencement of an appeal, it is generally assigned a callover date and arrangements are made for the preparation and filing of the appeal books.

How do you appeal?

You must complete a Form 121 for appeals from the Federal Court Magistrates Court or Form 122 for an appeal from any other court. On this form you are called the appellant as you are the party making the appeal.

Time limits

Appeals from final judgments must be filed and served 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 67.

Listings for Full Court and appellate sittings

Practice Note App 1 deals with the procedures to be followed for Full Court and appellate callovers in each State and Territory and other listing information. There are four scheduled Full Court and appellate sittings per year. Each sitting is usually four weeks in duration.

The callover judge may also make or vary orders for the filing of outlines of submissions and lists of authorities in accordance with Practice Note App 2 and Practice Note CM 2. If no orders are made regarding the filing of written submissions, or lists of authorities and legislation, the Practice Notes will apply. 

Parties in all States and Territories are required to submit a status report prior to the callover (on a date notified in writing), to assist in the allocation process. Parties will be issued with a status report at a time close to the callover.

The usual cut-off date for the inclusion of new matters in the callover is seven days prior to the callover. There may also be urgent or compelling circumstances where it is appropriate for a party to request that the matter be included for hearing in the next available sitting period. Where such circumstances exist, a party should contact the relevant Registry to discuss their request.

Settling the content of the appeal book

Before the hearing of the appeal the content of the appeal book must be determined and prepared in accordance with any practice note issued by the Court. Where the parties require assistance, an appointment to settle the appeal papers with a registrar may be necessary. The registrar may also seek information about the likely duration of the hearing, notify the parties of the next callover date and determine the number of copies of the appeal books to be filed by a fixed date. Parties should make themselves familiar with Practice Note App 2 and the Example Appeal Book Indexes.

Fees

A notice of appeal attracts the prescribed fee for appeals. A setting down fee is also payable when the matter is listed for hearing. In some cases, daily hearing fees will also be payable.

Please consult the fees page of this site for more detailed fees information.

Urgent hearings

A party may seek an order that an appeal or other application be expedited and heard outside the published dates for Full Court and Appellate sittings. An application for an expedited hearing should be accompanied by an affidavit evidencing urgency.

Parties requiring further information regarding urgent applications should contact the local registry of the Federal Court.

The Hearing

Prior to the hearing 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 in accordance with the time frames referred to in Practice Note App 1 although a Judge may set a different time frame.

As the appellant, 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.

Rule 36.57 contains the rules about how to make an application to be allowed to present further evidence.

What if I want to withdraw my appeal?

You can withdraw your appeal by filing a Form 126. 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 exercising the appellate jurisdiction of the Federal Court. The jurisdiction of the High Court to hear appeals from the Federal Court is prescribed in s 33 of the Federal Court of Australia Act 1976.

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.

Further information

For information of a general nature please contact the Federal Court officer in charge of Full Courts and appeals at your nearest Federal Court Registry.

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