Application for extension of time and leave to appeal (Rule 35.14(1)) (Form 118)

Where an Act gives a right of appeal to the Federal Court only with leave, the application for leave is made in Form 117 and must be filed within 14 days after the judgment was pronounced or the order made, or by a date the court below fixes (rr 35.12, 35.13). For example, s 24(1A) of the Federal Court of Australia Act 1976 requires leave to appeal from an interlocutory judgment. If that time has passed, rule 35.14 requires an application for an extension of time to seek leave to appeal in Form 118. It can be made during or after the 14 day period, and it must be accompanied by the judgment, any published reasons, an affidavit explaining the facts relied on and why the application was not filed in time, a draft notice of appeal, and a statement on whether you want the application decided without oral argument (r 35.14(3)). The Court may grant the extension and decide leave at the same time.

When you need it

• You need leave to appeal a judgment or order (for example an interlocutory judgment) and more than 14 days have passed since it was given.
• You expect to be late and want to apply during the 14 days (r 35.14(2)).
• Not if you are still in time: use Form 117 (r 35.12).
• Not for appeals that do not need leave: those start with a notice of appeal under Part 36.

1. 1

   Heading and hearing details

   Copy the file number, Registry, Division and parties, using the schedule for extra parties. Leave the hearing time, date and place blank: the Registry inserts them, and any order shortening time for service.

2. 2

   Extension of time

   The form states that you apply for an extension of time to seek leave to appeal and that the grounds are in the accompanying affidavit. The affidavit must explain briefly but specifically the facts relied on and why you did not file in time (r 35.14(3)(c)).

3. 3

   Leave to appeal

   Identify the court or judge, the date and the place of the judgment you want to appeal, and the legislation that requires leave, then set out the grounds of the application.

4. 4

   Other applications

   Say whether you want the application dealt with without an oral hearing (r 35.14(3)(e)). The form also includes an application for an order dispensing with compliance with rule 35.13.

5. 5

   Accompanying documents, address and service

   Attach the judgment or order, the published reasons, the affidavit and a draft notice of appeal complying with rules 36.01(1) and (2). Give your address for service, say which respondents you intend to serve, and date and sign.

6. 6

   Migration certificate if it applies

   If the case is migration litigation, a lawyer must sign the certificate under s 486I of the Migration Act 1958. Otherwise delete that section.

• File the application with all the accompanying documents, usually through eLodgment. A filing fee applies - check the Court's current fee schedule.
• Within 2 days of filing, serve every document filed on each person who was a party to, or was given leave to intervene in, the proceeding below (r 35.15).
• Serve either personally or by delivering a signed and sealed copy to the party's address for service in the proceeding below (r 35.16).
• Each respondent must file a notice of address for service within 14 days after being served and before taking any step (r 35.17). A single Judge usually hears the application.

• The affidavit explaining the delay matters most. Be specific about dates and the reasons for each period of delay.
• Attach a complete draft notice of appeal. Without it the Court cannot assess the proposed grounds.
• Note the 2 day service deadline in rule 35.15. It is much shorter than most service time limits.