Guide to Administrative or Constitutional Law cases

This guide sets out information about administrative law cases and constitutional law cases in the Federal Court and the steps involved from the commencement through to the finalisation of these types of cases.

You should always consider the relevant legislation (including the Federal Court Act of Australia 1976 (Cth) ('Federal Court Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules"). Administrative law cases and constitutional law cases fall within the Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area.You should also consider the ACLHR Practice Note (ACLHR-1) 

This guide is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law. 

 

A.  Administrative law

What is an administrative law case?

  • Federal administrative law concerns the conduct and decision-making involving Commonwealth statutory or non-statutory (executive) powers. Using administrative law, the Court decides whether government conduct and decision-making is undertaken in accordance with the law of Australia, and through a fair process.
  • Appeals to the Court from migration decisions of the Federal Circuit Court are not the subject of the Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area or this guide, however, similar requirements will generally apply.
  • The critical matter to understand is that generally it is not the job of a judge in this Court to make, or remake, a decision made by the government. The Judge's only job is to make sure that in making the decision, or doing something, the government applied the law correctly and provided a fair process.

Looking for relevant statutes

  • Usually, the power of the government to make an administrative decision which affects your interests, and what kind of fair process it must use, will be set out in the written law, called a statute. Sometimes the written law is also contained in regulations, which are made under the authority of a statute. The decision made in your case by the government will usually refer to the statute or regulations that were used. You can then access Commonwealth statutes, and regulations on the Federal Register of Legislation website.

Appeals from Tribunals on a question of law

Where does this Court get its powers about government decision making?

  • The two main statutes that give this Court power to supervise many but not all government decisions and conduct are the Administrative Decisions (Judicial Review) Act 1977 (Cth) (s 5) and the Judiciary Act 1903 (Cth) (s 39B). 
  • Again, the Court can only decide if the decision-maker applied the law correctly and adopted a fair process generally.

What orders does the Court usually make in successful administrative law cases?

  • When you tell the Court what orders you want the Court to make, you should remember that the Court cannot change the decision, unless there are exceptional circumstances. If you succeed, the usual orders will be that the decision you have complained about is set aside (so it no longer has any effect) and to send the case back to the Tribunal for a new decision to be made in accordance with relevant legal requirements.
  • The decision maker will then make a new decision, which may or may not be different to the first one.

Can I stop a person from doing something, or make a person do something until my case is finalised?

  • In some circumstances, you can ask the Court for orders that a government official not do something, or that the person be ordered to do something. Such orders include injunctions.
  • Sometimes, you may need to ask the Court for an injunction to stop something happening, or to make something happen, while you are preparing your case for trial. This is called an interlocutory injunction.
  • If you think you may need an interlocutory injunction, speak to the Court's Registry staff.

 

B.  Constitutional law

Cases involving the Australian Constitution

  • If your case involves the Australian Constitution, or its interpretation and that is the main part of your case, then your case is a constitutional case in the ACLHR NPA.

Notice under s 78B of the Judiciary Act 1903 (Cth)

  • Before the Court can hear a constitutional case, notice must be given to the Attorneys-General of all the States and Territories and the Commonwealth. This notice is required by s 78B of the Judiciary Act 1903 (Cth).
  • The Court cannot start a constitutional case unless it is satisfied that such notice has been provided to the Attorneys-General and a reasonable time has elapsed since giving the notice for the Attorneys-General time to consider: whether to intervene in the case or whether 'removal' (transfer) to the High Court is appropriate. 
  • Division 8.2 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) sets out how to file a s78B notice and service requirements including how you must serve it on all the Attorneys-General for the States and Territories and the Commonwealth.

 

C.  Steps in an administrative law or constitutional law proceeding

  • People involved in a court case are generally called "parties" and include applicants and respondents. Applicants and respondents may be individual, organisations or corporations. There can be more than one applicant and respondent. 
  • If you apply to the Court to start a case, you will be called the "applicant".
  • If a case has been started against you, you will be called the "respondent".

1. Preparing your application

Administrative law cases

  • Part 31 of the Federal Court Rules sets out some important matters and requirements if you want to commence a judicial review proceeding, including the correct forms to use and documents to file and serve on the other parties. See also the Forms and Rules section of the ACLHR NPA's webpage.
  • In your application to the Court you should comply with the relevant Rules and also:
     identify the decision or the conduct you are complaining about, and the date it was made, or the date the conduct occurred.
     tell the Court who made the decision, or who engaged in the conduct that you are complaining about.
     explain why you say the decision or conduct was not made in the way Australian law requires, or why there was no fair process.
     tell the Court what orders you want the Court to make.
     if you were given reasons for the decision, provide those reasons to the Court.

Constitutional law cases

  • For cases involving constitutional matters, you should comply with Division 8.2 of the Federal Court Rules which set out how to file and serve a notice. 
  • The party who has raised the matter must file a notice in the Registry, in accordance with Form 18, stating:
    the nature of the constitutional matter, and
    the facts showing that the matter is one to which r 8.11 of the Federal Court Rules applies.

2.  Lodgment, filing & fees

  • Once the forms have been filled out you need to send the original and copies of the application with all accompanying documents and the genuine steps statement (if required) to the Court. 
  • Once your application and any supporting documents have been completed you need to get this to the Court (see Division 2.3 of the Federal Court Rules). This is called "lodging". If the Court accepts these documents, that is referred to as "filing". 
  • You can lodge a document at the Court in a number of ways, the Court's preference is that you eLodge using the Court's electronic eLodgment system. More information about how to lodge a document is available on the Court's website. 
  • Upon lodgment you must pay an application fee (if any). If you cannot afford this fee, you may be able to ask the Court to exempt you from having to pay it or to defer the time for its payment. More information about this is available on the exemptions and deferral of fees page or from the Registry.
  • If the correct forms are completed the Court will electronically insert, as the first page of the document, a Notice of Filing and Hearing - which sets out the time and date when the people involved in the case need to come to the Court for the first case management hearing.

3.  Service

  • Once you have filed the required documents with the Court, you must give a copy of the stamped application with accompanying document(s), to each person involved in the case. This is known as "service".
  • Part 10 of the Federal Court Rules relates to service generally, including how to go about personal service. Registry may be able to assist you about what to do.
  • For Constitutional cases: you should comply with Division 8.2 of the Federal Court Rules which sets out how you must serve an application on all the Attorneys-General for the States and Territories and the Commonwealth.

4.  Case management hearing

  • The next step will usually be a first case management hearing. The judge who has been allocated the case will hold this hearing. You must prepare carefully for this hearing.
  • The Central Practice Note (CPN-1) and ACLHR Practice Note set out what the Court expects the parties to come prepared to discuss at the first case management hearing. This includes: an idea of how many witnesses you intend to call, and what documents you might need to obtain from the respondent or respondents, or from anyone else. 
  • If you or your representative do not come to the Court at that time, the Court may dismiss your case.
  • At the first case management hearing the judge will make orders to prepare the complaint for hearing. The judge may order:the applicant provide extra information about the complaint;
    • the respondent provide information (for instance by filing a defence and/or affidavit/s);
    • the parties attend a mediation to see if the case can be resolved by agreement between the parties;
    • the complaint be transferred to the Federal Circuit Court of Australia.

5.  Documents and discovery

  • Discovery orders are unusual in administrative law cases and constitutional law cases.
  • You may be entitled to ask another party for documents relevant to your case, if all the documents have not been provided.
  • You may also be asked by another party to supply documents you have that might relate to the issues in the proceeding.
  • For administrative law cases: the Court will expect respondents to provide the applicant with all the documents before a decision-maker when the decision was made (see paragraph 6.9 to 6.10 of the ACLHR Practice Note
  • If you consider you need more documents than this, and the other party does not agree to give them to you, you must request the Court to make an order for discovery. Before making such a request, you should be familiar with:

6.  Mediation

  • The Court has a broad range of options to facilitate alternative dispute resolution (ADR) including mediation (see s53A of the Federal Court Act and Part 28 of the Federal Court Rules). 
  • A wide variety of outcomes can be achieved in mediation, often more than can be achieved by court orders, even if you are successful at trial.
  • The Court may order a mediation, giving consideration to the nature of the case and the parties' opinions.
  • Further information about mediation in the Federal Court is available in the Central Practice Note and on the Court's website.
 

7.  Preparing for trial: affidavits or outlines of evidence

  • The individual judge will decide whether the trial is to be undertaken with affidavits or with oral evidence. However, in an administrative law case or constitutional law case, the evidence will usually be presented in affidavit form.
  • The judge may prefer parties and witnesses to give oral evidence, in the witness box at the hearing. If this is the case, the judge may order parties to provide outlines of evidence.
  • The judge will make orders about when parties must file and serve affidavits, or outlines of evidence. Parties can put documents with affidavits if they wish those documents to form part of the evidence. They can also attach documents to outlines of evidence. Parties should refer to the information relating to evidence in Part 11 of the Central Practice Note and Part 9 of the ACLHR Practice Note.

8. Preparing for trial: Court Books

  • The Judge may order an applicant, or sometimes a respondent if the applicant is self-represented, to file and serve a Court Book. The Court Book contains all the necessary documents and evidence, and previous decisions, as well as the filed court documents, all in one book for easy access.

9. Preparing for trial: submissions

  • Submissions are written documents that set out what a party's case is about. They cover what a party says are the relevant facts about what happened, what law the party says applies and arguments about why the Court should make the orders the party asks the Court to make (see part 14 of the Central Practice Note and Part 12 of the ACLHR Practice Note).
  • The Court may order a summary of submissions to be filed and served on the other parties ahead of the trial.
  • The Court may also order that the parties file and serve final submissions at or after the end of the trial.

10. The trial itself

  • The trial will be listed for one or more specified days and the Court expects parties to finish in the time that has been allocated. Trials usually start at 10:15 am with a one to one and a half hour break for lunch and finish about 4:15 pm each day.
  • The Court might place limits on how long a party can ask witnesses questions, or how long a party can make arguments for. Usually there are no witnesses giving oral evidence in Court in administrative law cases and constitutional law cases. 
  • At the hearing, the Court will look at the relevant documents and the parties' submissions and will listen to the evidence of the applicant and the respondent and their witnesses (if they have any).
  • The judge will then consider the complaint and give a final decision. (See Part 11)
  • A transcript of the trial is always made. However a party must pay for access to the transcript. Information about how to order a copy of the transcript is set out in the Access to Document and Transcript Practice Note (GPN-ACCS) and on the Court's website. Generally with the permission of the Docket Judge or Duty Registrar, you may be permitted to 'inspect' a copy of the transcript at the registry, at no cost. The registry may require you to provide an undertaking to the Court that you will not make a copy of the transcript.

11. The Court's decision

  • The Court may make an immediate decision on your case when the case finishes and give oral reasons for the decision in open court. If this happens you will subsequently receive a copy of the transcript of those reasons and a copy of the orders made.
  • Alternatively, the judge may "reserve" the decision to think about what is the correct decision and to take some time to read and consider all the evidence, and to write reasons for the decision (judgment). 
  • You will be notified when the Court is ready to hand down its decision in your case. Usually this will be done in open court. The Court will pronounce its orders and give written reasons for its decision. You will get a copy of those orders and reasons.
  • Although it is not always possible or achievable, the Court's policy is that it attempts to hand down decisions within 3 months of the final submissions being made.
  • If your case is unsuccessful you may be able to apply to the court to appeal the decision. More information regarding the Appeals process is available on the court's website, including information relating to the time limits that apply to starting an appeal.

12. Costs

  • The Court has wide powers about costs. The orders the Court might make include:
     making an order that the unsuccessful party pay the successful party's costs (this is the most common costs order), possibly as a lump sum costs order;
     making an order that the unsuccessful party pay some but not all of the successful party's costs; 
     in appropriate cases, not ordering costs even if a party loses, because for example the case was about a matter of public interest, or important legal principle;
     at the start of the proceeding, placing limits on the costs which can be ordered - sometimes called "cost capping orders". Cost capping orders can be made at the start of a proceeding and limit (or 'cap') the maximum amount of costs that the successful party (whoever that is) can recover. If you want the Court to consider a costs capping order you should raise this with the Judge, i.e. at the first case management hearing.
  • In most cases in the Federal Court, the unsuccessful party is ordered to pay part of the legal costs of the successful party. The amounts involved can be many thousands of dollars, sometimes tens of thousands or more. 
  • Costs orders are enforceable and bankruptcy proceedings can be taken if orders are not complied with. For further information regarding costs, refer to the Difference between fees and costs and the Court's Costs Practice Note (GPN-COSTS).

 

D.  What happens if a matter is commenced against you?

If you want to defend yourself against the complaint, you need to take the following steps:

1. Prepare for Court

  • Complete the following forms:
    • Form 10 - Notice of Address for service;
    • Form 11 - Respondent's genuine steps statement (if necessary).
  • Once the forms have been filled out you need to lodge the forms, together with any accompanying documents. For further information about lodging and filing documents, refer to Part C.

2. Attend Court

  • On the day of your hearing you should check the Court List which is available in each registry, for the courtroom and time. You should aim to get to Court with enough time to allow you to find the courtroom and make sure you are in Court on time.
  • You should make sure that you bring a copy of all the documents that you have filed at the Court or have been served with and be prepared with any relevant material that you might need for your case.
  • This hearing is called the first case management hearing. If you or your representative do not come to Court at that time, the Court may still make orders which affect you. 

 

E. Further information

The Court's website contains useful information to assist litigants including, attending court, how to address the judge and a courtroom layout.

 

Date of Guide: 25 October 2016