Notice of objection to competency (Form 68)

An objection to competency says that an application or appeal is not properly before the Court at all, for example because the decision is not one the Court can review or the proceeding was brought out of time. The Federal Court Rules 2011 require a respondent who objects to file a notice in accordance with Form 68, briefly but specifically stating the grounds, within 14 days after being served. That applies to applications under the Administrative Decisions (Judicial Review) Act 1977 (r 31.05), migration applications (r 31.24) and appeals from tribunals under Division 33.2 (r 33.30). The applicant carries the burden of establishing competency, and if the Court finds the application or appeal is not competent it is dismissed.

When you need it

• You are the respondent to an AD(JR) Act application, a migration application under Division 31.3 or a tribunal appeal under Division 33.2, and you say it is incompetent.
• You want the costs protection of a filed objection: if no notice is filed and the matter is later dismissed as incompetent, the respondent is not entitled to costs (rr 31.05(4), 31.24(4), 33.30(4)).
• Not for appeals from a court: those use Form 125 under rule 36.72.

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names exactly as they appear on the originating application or notice of appeal (rr 2.13, 2.14). If there are two or more applicants or respondents, add "and another" or "and others" after the first name, as the form prompts.

2. 2

   What is objected to

   Keep application, appeal or cross-appeal, delete the others, and specify the proceeding.

3. 3

   Grounds of objection

   State the grounds briefly but specifically, as each rule requires, in numbered paragraphs. Identify the statutory provision or fact that makes the proceeding incompetent.

4. 4

   Date and sign

   Sign as the respondent or the respondent's lawyer and delete the inapplicable prompts.

• File within 14 days after you were served with the application or notice of appeal (rr 31.05(1), 31.24(1), 33.30(1)). For a review under section 57 of the Australian Crime Commission Act 2002 the time is 5 days (r 31.31(b)).
• File it in the existing proceeding, usually through eLodgment using the file number. Rule 2.21 also allows lodging at a Registry, by post or by fax.
• Serve it on the applicant and the other parties. Under the Rules "file" means file and serve (Dictionary).

• You may apply for the question of competency to be heard and determined before the main hearing (rr 31.05(3), 31.24(3), 33.30(3)).
• Keep the grounds tight and specific. The rule asks for the grounds "briefly but specifically", not argument.
• Check you have the right form: Form 68 for these first-instance applications and tribunal appeals, Form 125 for appeals from a court.