Notice of acting - change of lawyer (Form 5)

Rule 4.04(1) of the Federal Court Rules 2011 says that if a party terminates a lawyer's retainer and a new lawyer is appointed to represent the party, the new lawyer must file a notice of acting in accordance with Form 5. Under the Dictionary to the Rules, "file" means file and serve, so the notice also goes to every other party. The notice tells the Court and the other side who now acts and gives the party's new address for service, which must be the new lawyer's address (r 11.01(2)). It is one of a small family of forms in Part 4: Form 4 for a party who was unrepresented and now appoints a lawyer (r 4.03), Form 6 where the party ends the retainer and does not appoint anyone (r 4.04(2)), and Forms 7 and 8 where the lawyer stops acting (rr 4.04(3), 4.05).

When you need it

• A party who already has a lawyer on the record changes to a different lawyer or firm.
• You are the incoming lawyer and need to put your firm on the Court file and become the address for service.
• Not where the party was unrepresented before: use Form 4 (r 4.03).
• Not where the party sacks its lawyer and will act for itself: the party files Form 6 and a notice of address for service (r 4.04(2)).

1. 1

   Copy the heading

   Use the existing file number, District Registry, Division and party names from the originating application (rr 2.13, 2.14).

2. 2

   Name the party and the lawyers

   Insert the party's name and role (for example Applicant), the new lawyer and firm, and the former lawyer and firm being replaced.

3. 3

   Give the new address for service

   The place must be an address in Australia where documents can be left during ordinary business hours and to which they can be posted (r 11.01(1)). For a represented party it must be the lawyer's address (r 11.01(2)).

4. 4

   Add the email address

   Include the lawyer's email address. Where a party is represented, the party agrees that its lawyer can receive documents at the lawyer's email address (r 11.01(4)).

5. 5

   Date and sign

   The new lawyer signs as lawyer for the party (r 2.15). Put the filing details required by rule 2.16 under a line at the foot of the front page: party name and role, who prepared the document, contact numbers and email, and the address for service.

• File Form 5 in the existing proceeding, usually through the Court's eLodgment system using the file number. Rule 2.21 also allows lodging at a Registry, by post and by fax.
• Serve a copy on each other party. Filing under the Rules includes service (Dictionary, "file").
• A filing fee may apply - check the Court's current fee schedule.

• Use the right form for the situation. Form 5 is only for a change from one lawyer to another.
• A corporation must be represented by a lawyer in the Federal Court (r 4.01(2)), so a company changing firms always needs a new notice of acting rather than a notice of termination.
• Update the address for service everywhere. Once Form 5 is filed, documents should go to the new firm, so check that correspondence and email lists are changed on both sides.