Notice of objection to competency (Rule 36.72(1)) (Form 125)

Division 36.6 of the Federal Court Rules 2011 deals with ending appeals to the Federal Court from a judgment of the Court or another court. Under rule 36.72, a respondent who says the appeal is not competent, for example because leave to appeal was needed and not obtained, or the appeal was filed out of time, must file a notice of objection to competency in accordance with Form 125 within 14 days after being served with the notice of appeal, stating the grounds briefly but specifically. The appellant carries the burden of establishing competency (r 36.72(2)). For this Division, "appeal" includes a cross-appeal and "respondent" includes a cross-respondent (r 36.71).

When you need it

• You are a respondent (or cross-respondent) to an appeal in the Federal Court from a single judge or another court, and you say the appeal is not competent.
• You want competency decided before the appeal hearing. Form 125 includes an optional application for that (r 36.72(3)).
• Not for tribunal appeals or first-instance review applications: those use Form 68.

1. 1

   Heading

   Copy the appeal file number, Registry and Division, choose "On appeal from the Federal Court" or name the other court, and list the appellants and respondents.

2. 2

   Objection

   Insert your role, for example First Respondent. The form states that you object to the competency of the appeal.

3. 3

   Grounds

   State the grounds briefly but specifically in numbered paragraphs (r 36.72(1)(b)).

4. 4

   Early determination (optional)

   Keep the paragraph applying for competency to be heard and determined before the appeal if you want that; otherwise delete it.

5. 5

   Date and sign

   Sign as the respondent or the respondent's lawyer.

• File within 14 days after being served with the notice of appeal (r 36.72(1)).
• File it in the appeal proceeding, usually through eLodgment using the appeal file number.
• Serve it on the appellant and other parties. Under the Rules "file" means file and serve (Dictionary).

• If you do not file a notice and the appeal is later dismissed as incompetent, you are not entitled to any costs of the appeal (r 36.72(4)).
• Under Practice Note APP 1 (which does not cover migration matters), initial triage usually happens about a month after filing, partly to allow objections to competency to be filed, and a case management judge may consider hearing an objection before or together with the appeal.
• If the Court decides the appeal is not competent, it is dismissed (r 36.72(5)).