Peter A Clarke

The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.

The amendments include a new paragraph, para 5.2(d) which makes it clear that all outlines of submissions must be at least of a font size of 12 points and one and a half line spacing throughout. This includes any footnotes and annexures and that italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.  While such amendments may seem to take detail to a new level there is a substantial point to the amendment.  With page limitation on submissions there has been a tendency to drop the font, push out the margins and generally get as much onto a page as possible. It can lead to ridiculous outcomes.

It provides:

1. Introduction

1.1 This Practice Note deals with:

• Appeal Books
• Submissions
• Abandoning Grounds of Appeal
• Lists of Authorities
• Electronic Solutions.

1.2 Any reference in this Practice Note to an “appellant” includes an “applicant”.

1.3 This Practice Note applies to all parties, including parties not represented by a lawyer in relation to:

(a) appeals from the Administrative Appeals Tribunal, the Superannuation Complaints Tribunal and the National Native Title Tribunal (‘Tribunal appeals’);

(b) appeals or applications to be heard by a Full Court; and

(c) appeals to be heard by a single judge in the Court’s appellate jurisdiction pursuant to sections 24 and 25 of the Federal Court of Australia Act 1976 (Cth) excluding appeals brought under the Migration Act 1958 (Cth).

(Appeals and applications in (b) and (c) are referred to as ‘appeals’)

1.4 An applicant to a Tribunal appeal to be heard by a single Judge must, within 7 days after the notice of appeal has been served, apply in writing to the Registrar for a direction as to whether Rules 33.23 to 33.28 apply to the appeal – see Rules 33.24(1) and 1.34 and 1.35.

2. Default

2.1. Where a party is in default of any of the requirements of this Practice Note, the party or parties not in default must bring this matter to the attention of the Chambers of the judge hearing the appeal (or the Chambers of the presiding judge if there is more than one judge) who will then give appropriate directions. At the same time, that party will also notify the other parties to the appeal.

3. Appeal Books

3.1 Appeal books must be prepared strictly in accordance with:

(a) for appeals – Division 36.5 of the Rules; and

(b) for Tribunal appeals – Division 33.2 of the Rules.

3.2 An appeal book must comprise 3 parts – A, B and C (Rule 36.51 for appeals and Rule 33.23 for Tribunal appeals).

3.3 Each item in the appeal book should be copied on both sides of the page. Each new document should commence on a fresh page.

3.4 There is no requirement for any part of the appeal book to be paginated or re-paginated if the original document is paginated.

3.5 Part A will consist of a Core Set of Standard Items indexed and prepared strictly in accordance with Rules 36.51 to 36.54 for appeals and Rules 33.23 to 33.26 for Tribunal appeals. Each item in Part A will have a unique Tab number. Part A will consist of one or more ring or lever arch folders with the contents behind numbered Tabs.

3.6 Part B will consist only of a Comprehensive Reference Index (‘Part B Index’) of all the evidence below.  

(a) The front page will include the following wording:

“Note: The exhibits, affidavits, annexures and transcript referred to in the Comprehensive Reference Index are taken to form part of the appeal book for the appeal but will not be reproduced in hard-copy unless required.”;

(Rule 36.54(b)(i) for appeals and Rule 33.26(b)(i) for Tribunal appeals)

(b) Each exhibit, affidavit, annexure or transcript should have a unique Tab number and the index should be arranged in the order prescribed by Rule 36.54(b) for appeals or Rule 33.26(b) for Tribunal appeals. If any part of the evidence includes, for example, a bundle of emails, each page of a new document in that bundle should be ascribed a unique Tab number and be indexed separately.

4. Timetable for Preparation and Filing of Parts A and B

4.1 Within 7 days after the service of the notice of appeal, a party who requires the Registrar to settle the Part A index and the Part B Index must apply in writing to the Registrar – Rule 36.52 for appeals and Rule 33.24 for Tribunal appeals.

4.2 Where no application has been made for assistance, within 28 days after the service of the notice of appeal the appellant should submit drafts of the Part A index and the Part B Index for the Registrar’s approval.  The front page of the draft indexes must state that the drafts are agreed by all parties.

4.3 Within 14 days after the Registrar approves the draft indexes,the appellant should file and serve on each respondent:

(a) the complete Part A with each document indexed and ordered behind a unique Tab; and

(b) a copy of the Part B Index.

4.4 The appellant should file four copies of Part A and the Part B Index (for appeals or any matter to be heard by a Full Court) and two copies (for appeals to be heard by a single judge) – Rules 36.51 for appeals and Rule 33.23 for Tribunal appeals. The appellant must also prepare an appropriate number of copies for service on the respondent(s).

5. Outlines of Submissions and Chronology – Rule 36.55 for appeals and Rule 33.27 for Tribunal appeals

5.1 Each party must prepare an outline of that party’s submissions.

5.2 The outline of submissions must:

(a) contain a concise statement of the issues on appeal;

(b) contain 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;

(c) not exceed 10 pages, including any annexures, unless leave has been given; and

(d) be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

5.3 Where a party intends to challenge any of the primary Judge’s findings of fact, the outline must:

(a) identify the error (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; and

(d) referto the evidence to be relied upon in support of the argument.

5.4 The outline of submissions must be accompanied by a chronology – Rule 36.55(1)(b) for appeals and Rule 33.27(1)(b) for Tribunal appeals.

5.5 The appeal books will be separated and arranged behind labelled or numbered Tabs.Therefore, all references in the outlines of submissions must be to the relevant Tab.

5.6 All references to documents in Part A must refer to (i) the relevant unique Tab number and (ii) the relevant internal page number and the relevant part of the internal page number of the original document (e.g. Pt A Tab 10, 10 – 15.2).

5.7 All references to exhibits, affidavits, annexures or transcript listed in the Part B Index must refer to (i) the unique Tab number from the Part B Index and (ii) the relevant internal page number and the relevant part of the internal page number of the original exhibits, affidavits, annexures or transcript (e.g. Part B CRI Tab 10, 10 – 15.2).

5.8 All references to authority must give the case name and citation and refer to the relevant page and the relevant part of the page [e.g. A v B 112 CLR 210 from 212.5 to 212.7].

5.9 It is expected that oral arguments will follow the outline of submissions. New issues, not included in the outline, may not be advanced on the hearing except with the leave of the Court.

6. Contents of Part C – Rule 36.54 for appeals and Rule 33.26 for Tribunal appeals

6.1 Part C will consist of one or more ring or lever arch folders with the contents separated and arranged behind labelled or numbered Tabs in the following order:

(a) Each party’s outlines of submissions behind a labelled Tab in “date filed” order. The chronology may be inserted behind a separately labelled Tab;

(b) An abridged Part B Index that lists, by unique Tab number, only those exhibits, affidavits, annexures and transcript referred to in an outline of submissions of any party (the abridged Part B Index);

(c) One hard copy of the exhibits, affidavits, annexures and transcript listed in the abridged Part B Index behind individual Tabs and ordered sequentially in accordance with the unique Tab number; and

(d)Where an exhibit, affidavit, annexure or transcript is referred to by more than one party, it should only be reproduced in hard-copy once.

6.2 Only exhibits, affidavits, annexures or transcript to which outlines of submissions specifically refer should be reproduced in hard-copy. The exhibits, affidavits, annexures or transcript must be relevant to the issues on appeal and necessary for the consideration and determination of the issues and arguments raised by the outline of submissions.  Where the Court will be asked to read a document, complete documents should be included in Part C only where that is necessary for a proper understanding of the parts of the document relied upon.  No other additional material should be reproduced in hard-copy for the Court. If unnecessary material is included, there is a risk that the costs occasioned by the unnecessary material will be borne by the party responsible for its inclusion – Rule 36.51 for appeals and Rule 33.23 for Tribunal appeals.

7. Additional Material

7.1 During the course of argument, or after the hearing, an issue may be raised or identified that relates to material not reproduced in hard-copy in Part C. Where it is necessary to refer to additional exhibits, affidavits, annexures or transcript listed in the Part B Index, copies of the relevant material may be handed up, if available, or made as soon as practicable. Where a party wishes to refer to additional material not listed in the Part B Index, the party may, by leave, hand copies of the additional material to the Court.

7.2 In the majority of cases, the Court will have access to an electronic version of the transcript below, the first instance file (in hard copy) and any exhibits, affidavits, annexures eLodged.

8. Timetable for Filing of Outlines of Submissions, the Chronology and Part C – Rules 36.55 and 36.56 for appeals and Rules 33.27 and 33.28 for Tribunal appeals

8.1 Not later than 20 business days before the hearing of the appeal, the appellant must file and serve a copy of its outline of submissions and chronology on each respondent.

8.2 Not later than 15 business days before the hearing of the appeal, each respondent must file and serve a copy of its outline of submissions and chronology on the appellant together with a list of materials it requires to be included in Part C. The respondent’s list must identify exhibits, affidavits, annexures and transcript contained in the Part B Index by reference to the name and to the unique Tab number from the Part B Index.

8.3 Not later than 10 business days before the hearing of the appeal, the appellant must file and serve a copy of any submissions in reply on each respondent.

8.4 Not later than 5 business days before the hearing of the appeal, the appellant must file and serve Part C on each respondent. The appellant should file four copies of Part C Book (for appeals or any matter to be heard by Full Court) and two copies (for appeals to be heard by a single judge). The appellant must also prepare an appropriate number of copies for service on the respondent(s).

9. Notice of Grounds of Appeal Abandoned

9.1 Within a reasonable time before the hearing of an appeal, notice must be given to the Court and to the other parties:

(a) by the appellant, of any abandoned grounds of appeal; and

(b) by the respondent, of any abandoned grounds in a notice of contention.

9.2 Counsel should also be ready to indicate, at the conclusion of oral argument, whether any, and if so which, grounds of appeal are no longer pressed.

10. Lists of Authorities – Rule 36.55 for appeals and Rule 33.27 for Tribunal appeals and Practice Note CM 2

10.1 Each party must file and serve a list of authorities and legislation:

(a) for an appellant – not later than 5 business days before the appeal; and

(b) for a respondent – not later than 4 business days before the appeal.

11. Electronic Appeal

11.1 A party should not commence to prepare an appeal electronically before obtaining advice from the National Appeals Registrar.

11.2 Any request to conduct any part of an appeal electronically must be in writing. The request must specifically outline the proposal. The National Appeals Registrar will liaise, as appropriate, with the local eRegistrar, the Court’s Courtroom Technology Manager and the relevant judge or members of the Full Court. The IT infrastructure, functionality and capabilities of the Federal Court’s courtrooms vary. The appropriateness of an electronic appeal is a matter for the Court.