| Federal Court of Australia | |
| Practice Notes issued by the Chief Justice |
| No. 1. Appeals to a Full Court |
| Status: | Revoked |
| Date issued: | 9 February 2001 |
| Date revoked: | 14 August 2003 |
| Version history: |   25 September 2009 (APP 1) 3 January 2008 14 August 2003 9 February 2001 8 April 1994 25 July 1991 20 September 1990 7 May 1990 |
Practice Note No 1 issued on 8 April 1994 is revoked and the following Practice Note is substituted.
This practice note describes the practice and procedures to be followed by all parties in respect of Full Court appeals. Parties who are not represented by a legal practitioner in proceedings before the Court are also required to follow these practices and procedures unless otherwise ordered by the Court.
The practice note also applies to matters to be heard by the Full Court other than appeals, in so far as the practice and procedures described herein are appropriate.
A – Listings for Full Court sittings
The District Registrar will prepare a list of all appeals pending for hearing before a Full Court.
The District Registrar will forward to the solicitors on the record, or where there is no solicitor, to the party, a notice of call-over, which will include the call-over date.
The list will be called over before a Judge or a Registrar. At the call-over the representatives of the parties should advise the Court of the following:
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 require it, 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 fixture of hearing dates by the Chief Justice, the District Registrar will publish a list of those matters that have been included in the sittings. Information regarding the hearing date for each appeal will be sent to all solicitors on the record, or where there is no solicitor, to the party. 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 require it, 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 should be accompanied by an affidavit evidencing urgency.
Parties requiring further information regarding urgent Full Court hearings should contact the local district registry of the Court in the first instance.
B – Orders for Outline of Submissions and Lists of Authorities
Unless otherwise ordered at the call-over, the procedure set out below shall be followed:
1. Each party shall prepare an outline of that party’s submissions on the appeal.
2. The outline of submissions shall contain concise statements of:
(a) 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, reference to authority or finding of fact to be relied upon in support of each step;
(c) where there is to be a challenge to any of the primary judge’s findings of fact, the error (including any failure to make a finding of fact) should be identified, the finding which the party contends ought to have been made should be specified, and the reasons it is said that an error has been made should be given. Reference to the evidence intended to be relied upon in support of the argument should be supplied.
The outline of submissions should be accompanied by a chronology, or a reference to the page in the appeal book at which a chronology may be found.
3. The appellant shall file and serve 5 copies of its outline of submissions and list of authorities and legislation by 4pm, 5 clear working days before the date of hearing of the appeal.
4. The respondent shall file and serve 5 copies of its outline of submissions and list of authorities and legislation by 4pm, 2 clear working days before the date of hearing of the appeal.
5. The appellant shall file and serve 5 copies of any outline of submissions in reply by 4pm on the last working day before the date fixed for the hearing of the appeal.
6. The outline of submissions should not ordinarily exceed 10 pages in length, unless leave is obtained at the call-over to lodge a more lengthy document.
7. All references to the appeal book in the submissions should refer to the relevant page and the relevant part of the page [eg. A.B 27.5 – 28.2].
8. Similarly, references to authority should give the case, 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].
9. It is expected that the oral arguments will follow the outline of submissions. New issues, not included in the outline, may not be advanced on the hearing of the appeal except with the leave of the Full Court.
10. Each list of authorities and legislation should be divided into two parts. Part “A” should contain only the authorities and legislation from which passages are to be read. Counsel who is to argue the appeal is to certify that the authorities in Part “A” are intended to be read. Part “B” should contain the authorities and legislation to which counsel might refer but from which passages are not to be read. The relevant sections of legislation should be specified.
11. The Court will supply for the use of the Judges up to a maximum of ten of the cases on Part “A” of the list marked with a single asterisk as follows:
Cases that are reported in the Commonwealth Law Reports, Federal Court Reports, Australian Law Reports, the authorised reports of the State where the appeal is to be heard and unreported Federal Court of Australia cases.
12. Counsel may identify in Part “A” five cases in addition to those referred to in paragraph 11 above to which they wish to refer to at some length. These cases are to be identified on the list by a double asterisk. It is the responsibility of counsel to provide photocopies of those cases for the use of the Judges the photocopies to be handed up during argument.
13. A party who intends to cite from a book or a case other than one referred to in the Reports in paragraph 11 above, shall provide photocopies of the relevant parts of the book or the Report for the use of the Judges to be handed up during argument.
14. Five copies of the list of the authorities and legislation referred to in Part “A” should be lodged with the Registrar at the place where the appeal is to be heard not less than two working days before the date of hearing of the appeal.
A copy of the list of authorities and legislation should on the morning of the last working day before the hearing of the appeal, be given to all other counsel briefed in the matter.
In all cases, counsel for the appellant should assume, in opening the appeal, that the members of the Full Court have read the judgment and/or summing up of the court appealed from, the Notice of Appeal and the outline of submissions.
C – Notice of Points of Appeal Abandoned
Counsel for the appellant shall, 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. Likewise, with respect to the grounds advanced in a Notice of Contention.
D – Appeal Books
The appellant shall prepare and file the requisite number of appeal books as determined by the Registrar unless otherwise ordered by the Court.
The Appeal Book shall contain:
(a) an index of its contents;
(b) 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;
(c) the reasons for judgment of summing up of the primary Judge;
(d) the Notice of Appeal, and any notice of Cross-Appeal or Notice of Contention;
(e) any submitting appearances;
(f) such of the transcript of the hearing below as is necessary for the Court to read to determine the appeal; and
(g) any affidavits and exhibits from which the parties will ask the Court to read in the course of their submissions (complete documents should only be included where it is necessary for a proper understanding of the document). Transcript and exhibits that will not be referred to in submissions should not be included. The inclusion of unnecessary material is likely to result in an order that the costs occasioned by the unnecessary material be borne by the party responsible for its inclusion.
If it becomes apparent during the course of the hearing that it is necessary to refer to additional material the parties can, by leave, hand copies to the Court.
In cases involving many documents or extensive transcript the Court recommends that the parties prepare an electronic appeal book, and in appropriate cases the Court may order that the appeal book (or any part) be in electronic form. Where a party considers that an electronic appeal book is appropriate, that party should confer with the other parties involved and with the District Registry as soon as possible after the notice of appeal is served.
E – Additional Requirement in respect of Criminal Appeals from the Supreme Court of the Australian Capital Territory
In an appeal against conviction or an appeal against conviction and sentence the Crown shall file a Summary of Trial with its outline of submissions. The Summary of Trial should include the following details:
The requirement for a Summary of Trial is in addition to all other practices and procedures prescribed in this practice note.
B A BEAUMONT
Acting Chief Justice
9 February 2001