Application for leave to appeal (Rule 35.12(1)) (Form 117)

Division 35.2 of the Federal Court Rules 2011 applies where an Act gives a right of appeal to the Court subject to leave (r 35.11). One common case is section 24(1A) of the Federal Court of Australia Act 1976: no appeal lies from an interlocutory judgment unless the Court or a Judge gives leave. Rule 35.12 requires the application to be in accordance with Form 117 with the judgment, any published reasons, a supporting affidavit and a draft notice of appeal. It must be filed within 14 days after the judgment or order, or by a date fixed by the court below (r 35.13), and served within 2 days of filing (r 35.15).

When you need it

• You want to appeal an interlocutory judgment of a single Judge of the Federal Court, or another judgment for which an Act requires leave.
• You did not make an oral application for leave when the interlocutory judgment was given (r 35.11(b)).
• You are still within 14 days of the judgment or order (r 35.13). If not, use Form 118 for an extension of time (r 35.14).

1. 1

   Heading

   Complete the District Registry and Division. If there are more than two parties on a side, add 'and others named in the schedule' and complete the Schedule.

2. 2

   Hearing details

   Leave the time, date and place blank for the Registry.

3. 3

   The judgment and the source of the leave requirement

   Identify the court or Judge, the date and place of the judgment, and the legislation requiring leave, for example section 24(1A) of the Federal Court of Australia Act 1976.

4. 4

   Grounds and other applications

   Set out the grounds. Say whether you want the application dealt with without an oral hearing, and if rule 35.14 applies, include the application to dispense with rule 35.13.

5. 5

   Address, service and signature

   Give your address for service, choose the service option, and sign. In migration litigation, a lawyer completes the section 486I certificate.

• File within 14 days after the judgment was pronounced or the order made, or by a date fixed by the court below (r 35.13).
• Attach the judgment or order, the reasons if published, an affidavit of the facts supporting the application, a draft notice of appeal complying with rule 36.01(1) and (2), and any statement that you want it decided without oral argument (r 35.12(2)).
• Within 2 days of filing, serve each document on every party to the proceeding below and anyone given leave to intervene (r 35.15).
• File through eLodgment. A filing fee may apply; check the fee schedule.

• The 14-day limit is half the usual 28-day appeal period. Diarise it on the day the interlocutory judgment is given.
• Applications for leave are usually heard by a single Judge unless a Judge directs otherwise (r 35.11, Note).
• Some decisions, such as decisions on summary judgment under section 31A, are taken to be interlocutory (s 24(1D)), so check whether leave is needed.