Notice of appeal (Rules 36.01(1)(b); 36.01(1)(c)) (Form 122)

Section 24(1) of the Federal Court of Australia Act 1976 gives the Court jurisdiction to hear appeals from a single judge of the Court exercising original jurisdiction, and from certain other courts, including State and Territory courts exercising federal jurisdiction where another Act provides for it. Rule 36.01(1)(b) and (c) of the Federal Court Rules 2011 require those appeals to be started with a notice of appeal in Form 122. (Appeals from the Federal Circuit and Family Court use Form 121.) The notice must state what is appealed from, the grounds, briefly but specifically, the orders sought instead, and the appellant's address for service (r 36.01(2), (4)). An appeal from an interlocutory judgment needs leave (s 24(1A)).

When you need it

• You want to appeal to a Full Court from a final judgment of a single Federal Court judge.
• You are appealing from a State or Territory court exercising federal jurisdiction, where an Act gives a right of appeal to the Federal Court.
• You have been granted leave to appeal an interlocutory judgment (leave is sought first by application in Form 117 within 14 days, r 35.13).

1. 1

   Heading and parties

   Insert Federal Court, or the name of the other court in the 'On appeal from' line. Name every party below who may be affected by the appeal or interested in keeping the judgment, as appellant or respondent (r 36.31(1)); nobody can be named as an appellant without their consent (r 36.31(2)). Use the schedule for extra parties.

2. 2

   Registry details

   Leave the hearing time, date and place for the Registry to insert. In a migration appeal, delete the paragraphs about Division 36.5 and the hearing as the form directs.

3. 3

   What you appeal from

   State whether you appeal from the whole judgment, all of the orders, or only part of the judgment or particular orders, and give the date and place of the judgment (r 36.01(2)(a), (b)).

4. 4

   Leave (if needed)

   If the appeal needs leave, say so and attach a copy of the order granting leave (r 36.01(3)). Otherwise delete that paragraph.

5. 5

   Grounds and orders sought

   Set out, briefly but specifically, each ground of appeal, then the judgment or orders you want instead (r 36.01(2)(c), (d)).

6. 6

   Address, service and certificate

   Give your address for service (r 36.01(4)) and residential or business address, choose the service option, then date and sign. In migration litigation a lawyer must also sign the section 486I certificate.

• File within 28 days after the judgment or order, or after leave was granted, or by a date fixed by the court appealed from (r 36.03). Out of time, apply in Form 67 (r 36.05).
• File in the District Registry where the proceeding was last heard (appeal from a single judge) or in the State or Territory of the court appealed from (r 36.02).
• Serve each party to the proceeding below and any intervener (r 36.04(1)), personally or at their address for service below (r 36.06). From a State or Territory court, also lodge a copy with that court's registrar within 7 days after filing (r 36.04(2)).
• A filing fee applies - check the current fee schedule. Respondents file an address for service within 14 days (r 36.07).

• Appeals are generally heard by a Full Court (s 25(1)); the Appeals Practice Note explains the Court's initial triage, which usually happens about a month after filing.
• A respondent who objects to the competency of the appeal must file a notice within 14 days of service (r 36.72), so check early that the appeal is competent and, if needed, that leave was obtained.
• Filing an appeal does not stay the judgment (r 36.08).