Originating application for an order for evidence of a future right or claim (Form 60)

Rule 29.23 of the Federal Court Rules 2011 deals with a person who claims to be entitled to property or an office when a future event happens. Because witnesses or documents may not be available by the time the right arises, the person may apply to the Court for an order that evidence that may be material to establishing the right or claim be taken and preserved now. The application must be made by originating application in Form 60 (r 29.23(2)). The respondent is the person against whom the right is alleged or the claim is made (r 29.23(3)). If the Crown may have an interest, the Attorney-General may be made a respondent (r 29.23(4)). The Court can take the evidence itself or appoint an examiner (r 29.23(6)).

When you need it

• You claim you will be entitled to property or an office when a future event happens, and the claim falls within the Federal Court's jurisdiction.
• Evidence that could prove the claim (for example, from an elderly witness) may be lost before the event happens.
• You want that evidence recorded under the Court's supervision so it can be used later.

1. 1

   Complete the heading

   Insert the District Registry, Division and the applicant and respondent names. The respondent is the person against whom the right is alleged or the claim made. Delete the 'To the Respondent' section if there is no respondent.

2. 2

   Leave the hearing details to the Registry

   The Registry inserts the time, date and place, and any order abridging time for service.

3. 3

   Set out the orders sought

   Under 'Details of claim', specify the orders for taking and preserving evidence, such as identifying the witnesses or documents and how the evidence is to be taken (by the Court or an examiner).

4. 4

   Interlocutory relief

   If you also seek interlocutory orders, list them in numbered paragraphs, or delete that section.

5. 5

   Address and service

   Give your address for service, email and residential or business address, and choose whether you intend to serve all, some or none of the respondents.

6. 6

   Date and sign

   Sign as the Applicant or the Applicant's lawyer.

• File the application with an accompanying statement of claim or affidavit setting out the material facts (r 8.05). eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• A Registrar fixes the return date and place and endorses them on the application (r 8.05, note 2).
• Serve the application and accompanying documents personally on each respondent as soon as practicable and at least 5 days before the first hearing (r 8.06).
• If the Attorney-General is made a respondent, a deposition taken in the proceeding may be admissible in later proceedings even though the Crown was not a party (r 29.23(5)).

• Explain clearly in the affidavit what the future event is, why the evidence is at risk and why it is material.
• Think about whether to ask for an examiner (r 29.11), which can be more practical for witnesses who cannot come to court.
• This procedure preserves evidence; it does not decide the right or claim itself.