About the appellate jurisdiction
Appeals and related applications from decisions of courts are heard and determined by the Federal Court in its appellate jurisdiction. The appellate jurisdiction of the Court 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 (or permission) of the Court is required. An application for leave to appeal must 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 (or authority) 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, the Federal Court can hear appeals from a decision of an eligible State or Territory court exercising jurisdiction under that Act.
4. Appeals from a decision of the Federal Circuit and Family Court of Australia (Division 2)
Section 25(1AA) of the Federal Court of Australia Act 1976 requires that a single judge of the Court hear an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) unless a Judge considers that it is appropriate for the appeal to be heard by a Full Court.
Chapter 4 of the Federal Court Rules 2011 applies to these appeals.
Procedure for appeals generally
Chapter 4 of the Federal Court Rules applies to all appeals and related applications from decisions of the Federal Court or other courts. All parties should take some time to become familiar with these Rules.
Practice Note App 2 deals with the conduct and preparation of appeals by parties and lawyers.
Appeals are to be filed in the registry in which the original matter was heard (Rule 36.02). Following the start of an appeal, it is generally assigned a callover date and arrangements are made for the preparation and filing of the appeal books.
How to appeal?
A person or corporation who wishes to appeal a decision must complete a Form 121 (doc - 62 kb) for appeals from the Federal Circuit and Family Court of Australia or Form 122 (doc - 57.5 kb) for an appeal from either the Federal Court or any other court. The person or corporation who files the notice of appeal is called the appellant and each of the other parties is called a respondent.
Appeals from final judgments must be filed and served within 28 days of the decision. If the time to appeal has, or is about to, run out, an extension of time of this period can be made by completing a Form 67 (doc - 67 kb).
Listings for Full Court and appellate sittings
There are four scheduled Full Court and appellate sittings per year. Each sitting is usually four weeks in duration.
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 judicial registrar may be necessary. The judicial registrar may also seek information about the likely duration of the hearing 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 eBooks Practice Note.
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.
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 Federal Court registry of the Federal Court.
Prior to the hearing each party must 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 each party's case.
The appellant argues their case first. The respondent will then be given an opportunity to reply. The appellant will then be given a final opportunity to reply to anything raised by the respondent. All parties are 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 their arguments.
If a party is 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 a party wants the Court or Judge hearing the appeal to consider evidence that was not before the original Judge?
The grounds of appeal must argue that the original Judge that heard the 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 a party wants to end or discontinue an appeal?
An appeal can be discontinued by filing a Form 126 (doc - 44 kb). If the appeal has not yet been heard the permission of the Court is not needed to file a Notice of Discontinuance. If the hearing has begun, or if the hearing has ended but the Court has not yet delivered its judgment, the Court's permission is needed to file a Notice of Discontinuance.
If an appeal is discontinued the appellant will usually be ordered to pay each of 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 section 33 of the Federal Court of Australia Act 1976.
A party may apply to the High Court for permission (called 'special leave') to appeal, but this is only granted in special cases. If an application for special leave is made 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 a party wishes to appeal from was made.
For information of a general nature please contact the Federal Court officer in charge of Full Courts and appeals at any Federal Court registry.