Practice Note No 1 issued on 14 August 2003 is revoked and the following Practice Note is substituted.
This Practice Note applies to all parties to appeals before the Full Court, including parties who are not represented by a legal practitioner unless the Court or a Judge otherwise orders.
The Practice Note also applies to other proceedings before the Full Court, in so far as the practices and procedures described are appropriate to such other proceedings.
A – Listings for Full Court sittings
The District Registrar will prepare a list of all appeals and other matters pending for hearing before a Full Court.
The District Registrar will forward a notice of call-over to the solicitors on the record and to any unrepresented parties. The notice will state the date of the next call-over.
The list will be called over before a Judge or a Registrar. At the call-over the parties must be in a position to advise the Court:
of the nature of the matter and the essential issues and how they arise;
of the nature of any cross appeal filed or to be filed in the near future;
of the nature of any notice of contention filed or to be filed in the near future;
whether there are any motions still to be dealt with;
whether the matter is ready to be listed for hearing;
whether the appeal index has been settled;
whether the appeal books have been prepared;
whether any consideration has been given to conducting the appeal electronically;
whether there is any degree of urgency in listing the matter;
the parties’ agreed estimated duration of the hearing and whether that estimate is based on counsels’ advice;
of the names of counsel briefed to appear;
whether counsel is briefed to appear in any other matters that may be listed in the same Full Court sittings including matters to be heard elsewhere in Australia;
of dates in the proposed sittings when the parties or their representatives are not available for hearing and the reasons for non-availability.
The parties must also be in a position to provide details of any other matters that may affect the listing of the matter. Such other matters may include:
identification of other pending cases involving similar legal issues;
whether any party intends to argue that a previous Full Court decision should not be followed;
whether leave to appeal or leave to extend time for the filing and service of the notice of appeal is required;
whether any party seeks expedition of the hearing of the appeal;
whether any Judge of the Court, other than the primary Judge, has made adverse findings as to the credit of any party, or the principals of any party, to the appeal;
whether the appeal is said to raise a particularly important issue of law and, if so, what issue is raised.
The hearing date will be fixed by the Chief Justice after the completion of all call-overs nationally within the range of dates published for the Full Court sittings. If the circumstances so require, a hearing date may be fixed outside the published range of dates. Those appeals not fixed for hearing may be adjourned to the following call-over of Full Court appeals or other directions may be made.
After the hearing dates have been fixed by the Chief Justice, the District Registrar will publish a list of those matters that have been included in the sittings. Notice of the hearing date for each appeal will be sent to all solicitors on the record and to any unrepresented parties. An appeal that has been fixed for hearing may be removed from the list only on the direction of a Judge.
Listing of Matters Outside Published Dates for Full Court Sittings
Where the circumstances so require, the Chief Justice may convene a Full Court outside the published sitting dates for the Full Court. A party may seek an order that an appeal or application to the Full Court be expedited. An application for an expedited hearing must be accompanied by an affidavit providing evidence of urgency.
Parties requiring further information about urgent Full Court hearings should first contact the local District Registry of the Court.
B – Orders for Outline of Submissions and Lists of Authorities
Unless otherwise ordered, the procedure set out below must be followed:
1. Each party must prepare an outline of that party’s submissions on the appeal.
2. The outline of submissions must contain:
(a)
a concise statement of the issues that the appeal presents;
(b) an outline of the argument to be presented on each issue, specifying the steps in the argument, and any legislation, authorities or findings of fact to be relied upon in support of each step.
3. Where a party intends to challenge any of the primary Judge’s findings of fact, the outline must:
(a) identify the error relied upon (including any failure to make a finding of fact);
(b) identify the finding that the party contends ought to have been made;
(c) state concisely why, in the party’s submission, the finding, or failure to make a finding, is erroneous;
(d) give references to the evidence to be relied upon in support of the argument.
4. The outline of submissions must be accompanied by a chronology, or a reference to the page in the appeal book at which a chronology may be found.
5. The appellant must file and serve 5 copies of its outline of submissions no later than 4pm on the last day which is 5 clear working days before the date of hearing of the appeal.
6. The respondent must file and serve 5 copies of its outline of submissions no later than 4pm on the last day which is 2 clear working days before the date of hearing of the appeal.
7. The appellant must file and serve 5 copies of any outline of submissions in reply no later than 4pm on the last working day before the date fixed for the hearing of the appeal.
8. The outline of submissions must not exceed 10 pages in length, unless leave has been given at the call-over.
9. All references to the appeal book in an outline of submissions must refer to the relevant page and the relevant part of the page [eg. A.B 27.5 - 28.2].
10. Similarly, all references in an outline of submissions to authority must give the case name and citation and refer to the relevant page and the relevant part of the page [eg. A v B 112 CLR 210 from 212.5 to 212.7].
11. It is expected that the oral arguments will follow the outline of submissions and new issues, not included in the outline, may not be advanced on the hearing except with the leave of the Full Court.
12. Each party must file and serve a list of authorities and legislation in accordance with Practice Note No 19.
The appellant should assume, in opening the appeal, that the members of the Full Court have read the reasons for the judgment or order appealed from, the notice of appeal and the outlines of submissions.
C – Notice of Points of Appeal Abandoned
The appellant must, within a reasonable time before the hearing of an appeal, give notice to the Court and to the other parties to the appeal of any grounds of appeal to be abandoned. The respondent must likewise give notice of the abandonment of any grounds advanced in a notice of contention.
D – Appeal Books
Unless the Court orders otherwise, the appellant must prepare and file the required number of appeal books as determined by the Registrar.
The appeal books must be prepared in accordance with:
(a) in an appeal to which Order 52 of the Federal Court Rules applies – Order 52 rules 26 to 28B;
(b) in an appeal to which Order 53 applies – Order 53 rules 15A and 15B.
The appeal books must contain:
(a) 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
(b) any affidavits and exhibits which the parties will ask the Court to read. (Complete documents should be included only where that is necessary for a proper understanding of the parts of the document relied upon.)
Transcript and exhibits not likely to be referred to in submissions should not be included. The inclusion of unnecessary material exposes a party to the risk of an order that the costs occasioned by the unnecessary material be borne by the party responsible for its inclusion.
If it becomes necessary during the hearing to refer to additional material, the parties may, by leave, hand copies of the additional material to the Court.
In cases involving many documents or extensive transcript the Court recommends that the parties consider preparing an electronicappeal book. If a party considers that an electronic appeal book may be appropriate, that party should consult with the other parties and with the District Registry as soon as possible after the notice of appeal has been served. In appropriate cases the Court may order that the appeal book, or any part of it, be in electronic form.
