Commencing an action in the Federal Court of Australia
A Procedural Guide for Litigants
This
guide contains basic information on how to commence an application in the Federal
Court of Australia.
Preparing and conducting litigation is difficult. If you are unsuccessful,
the normal rule is that you will be ordered to pay the other party's legal
costs. It is therefore strongly recommended that you obtain legal
advice or 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 the Court's
website.
Court staff cannot give you legal advice.
When can you apply to the Federal Court?
You can apply to the Federal Court if it has jurisdiction to hear your case.
The Court has jurisdiction in relation to almost all civil (that is, non-criminal)
matters arising under Australian federal law. The Court is able to hear cases
in relation to human rights, bankruptcy, native title, workplace relations,
trade practices, intellectual property and consumer protection.
It also has the power to review some Federal Government decisions in areas
such as social security, immigration and taxation.
The Federal Magistrates Court may also have jurisdiction to hear your case
and the fees in that Court are considerably lower than those in the Federal
Court. You can find out more information about the Federal Magistrates Court
by:
Where can I get information about Court procedures?
The Federal Court Rules set out the procedures that need to be followed in
the Court. They also direct you to the appropriate forms to be used when preparing
documents for use in the Court. The Rules are divided into chapters called
orders and the forms can be found at the end of the Rules in Schedule 1.
A copy of the Rules can be inspected without charge:
To commence a case you need to prepare an application. The rules relating
to the form and content of the application can be found in Order
4 of the Rules.
Most applications are commenced using Form 5. You can get a copy of Form 5
and instructions on how to fill it out from the Registry or download
a copy from the Court's website. If you are not sure which form to use,
you should contact the Registry.
You can complete forms by:
• filling in the blank spaces in handwriting
• retyping the form to include your details; or
• downloading a copy from the Court's website and typing in your
details.
If you are commencing the application you will be called the applicant. The
other party is called the respondent. There can be more than one respondent.
If the applicant is a corporation it must be represented by a lawyer unless
the Court gives you leave (permission) to represent the corporation.
Supporting documents
You will need to prepare documents that support your claim for the Court.
This can be done by making an affidavit using Form 20 or by preparing a statement
of claim using Form 7. Y ou can get a copy of these forms and instructions
on how to fill them out from the Registry or download
copies from the Court's website.
The supporting documents must describe the nature of your claim and the facts
upon which it is based.
How do I get my documents to the Court?
After preparing your documents you need to deliver the originals and a copy
of each document for each other party to the 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 the Court's
website.
Registry staff will check that the documents are in the correct form and that
you have referred to the legislation under which you are commencing your application.
They will also ask you to pay the filing fee (see below). If the documents
are in the correct form, Registry staff will stamp the original and the copies
of each document.
What are the fees?
Certain steps in your case, such as filing the application, require a fee
to be paid. A list of fees is available from the Registry and the Court's
website.
Fees can be paid by cash, cheque, credit card or EFTPOS.
As your case progresses, the Federal Court of Australia Regulations 2004 require
other fees to be paid. When all of the evidence and pleadings have been filed
and served and the parties are ready for a hearing, a Judge may direct that
the case be given a hearing date. At this point you will need to pay a setting
down fee which includes the first day hearing fee. A hearing fee is then payable
for each day or part day after the first day.
If you cannot afford a 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.
You may also be ordered to provide security for costs before the case is heard.
This arises if the Court is satisfied that you may not be able to pay the other
party's costs if you lose the case. The Court may order that you deposit funds
with the Court or provide security such as a bank guarantee. You cannot get
a waiver or exemption in relation to security for costs.
How do I get my documents to the other party?
Once the documents have been filed the copies will be returned to you. You
must then serve a copy of the documents on each respondent by:
• personally delivering the documents to the person; or
• arranging for someone else to personally deliver the documents
to the person.
This is called personal service. Personal service is necessary as you may
need to prove to the Court that the respondent received the documents.
You must do this at least 5 days before the date of the directions hearing.
Sending documents in the mail is not personal service.
When do I have to come to Court?
Registry staff will write on the application form the time date and place
when the parties need to come to the Court for a directions hearing. This is
the date on which the application will first be considered by the Court.
On that day you should check the Court list for the room number and go to
that room at the specified time. The Court list is published in the daily newspaper
on the date of the hearing. It is also available on the Court's
website.
When you hear your case called you should walk to the large table at the front
of the courtroom and tell the Judge or Registrar your name. You should stand
up when you are speaking to the Judge or Registrar. You should also stand up
when the Judge or Registrar is speaking to you.
The Judge or Registrar will usually ask you about the type of claim you are
making and after discussion with both parties, will set a timetable for the
preparation and filing of evidence and pleadings. The Judge or Registrar will
also set a date for the next directions hearing. You may wish to contact the
other party or their solicitor to discuss a timetable prior to the directions
hearing date.
A list of some of the directions that a Judge may make can be found in Order
10.
What documents will be served on me by the respondent?
The Rules require the respondent to file certain documents and you will be
served with a copy of these documents at your address for service. These will
include:
• a Notice of Appearance stating that the respondent is taking
part in the proceeding and giving their address for service (see
Order 9);
• a Defence which sets out the facts that support the respondent's
view of the situation (see Order
5).
The respondent may also serve a Cross-Claim which is a claim by the respondent
against you.
What if I need the Court to make an order other than at a directions
hearing?
As far as possible you should ask the Court to make any orders that you need
at a directions hearing. This will save you time and money.
If you want to request that the Court make an order other than at a directions
hearing you will need to file and serve a notice of motion using Form 27. Y
ou can get a copy of Form 27 and instructions on how to fill it out from the
Registry or download a copy from the Court's
website. You will also need to
make an affidavit using Form
20. These documents need to be filed and served
on the respondent at least 3 days prior to the date set for the hearing of
your motion.
Filing and hearing fees apply.
Is mediation available?
A Judge may order that the people involved in the case meet in a mediation.
Usually, but not always, everyone agrees to this. Any party can also ask the
Judge to refer the case to a mediation. It is a good idea to discuss this with
the other parties first.
A mediation is usually conducted by a Registrar of the Court and will involve
all parties meeting in a conference room to discuss ways of settling the case.
Mediation can result in a speedy resolution of a dispute at minimum cost to
the parties.
If you need an interpreter to communicate with Registry staff you can call
131 450 (the Translating & Interpreting Service) and speak to an interpreter.
Ask them to set up a three-way conversation between you, an interpreter and
your nearest Federal Court of Australia District Registry [in Western Australia,
you may contact the Registry staff who will arrange a telephone interpreter
for you].
If you need an interpreter to understand what is being said at a court hearing,
you will need to arrange for any interpreter that you or your witnesses may
require. If you can not afford to pay for an interpreter the Court may arrange
one for you. If you want the Court to arrange an interpreter you must contact
the Registry at least one week before the hearing date. If you do not contact
the Registry then they may not be able to get an interpreter and the hearing
will be delayed.
It is your responsibility to arrange and pay for the cost of a translator
to translate documents sent to you by the Court or the respondent.
