Originating application for relief under section 39B Judiciary Act 1903 (Form 69)

Section 39B of the Judiciary Act 1903 gives the Federal Court original jurisdiction in any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, and in matters arising under the Constitution or Commonwealth laws, subject to exceptions (for example for some decisions to prosecute). Rule 31.11 of the Federal Court Rules 2011 requires an application for relief under s 39B to be made by originating application in Form 69. A claim under the ADJR Act about the same matter must be made in the same application (r 31.12(1)), and other claims within jurisdiction that arise out of the same subject matter may be joined (r 31.12(2)). For migration decisions, the Federal Court's jurisdiction is limited by section 476A of the Migration Act 1958.

When you need it

• You seek mandamus, prohibition or an injunction against a Commonwealth officer, for example where a decision is outside power or a duty has not been performed.
• The ADJR Act does not cover the decision (for example it is not made under an enactment), but s 39B jurisdiction is available.
• You want to bring s 39B and ADJR claims together in one application (r 31.12).

1. 1

   Heading and parties

   Insert the District Registry, Division and the parties. Follow ACLHR-1: applicants first, other parties next, the tribunal or decision-maker body last, without naming individual tribunal members.

2. 2

   Leave the hearing details to the Registry

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

3. 3

   Final relief

   Under 'Details of claim', list in numbered paragraphs each order sought under s 39B, such as a writ of mandamus or prohibition, or an injunction, against the named officer.

4. 4

   Interlocutory relief and representative action

   List any interlocutory relief, and give details if suing in a representative capacity. Delete these sections if not needed.

5. 5

   Address and service

   Give your address for service, email and residential or business address, and choose the service option.

6. 6

   Migration certificate

   If the proceeding is migration litigation and a lawyer files it, the lawyer must sign the s 486I certificate (r 8.04). Delete it otherwise.

• File with a statement of claim or affidavit setting out the material facts (r 8.05). ACLHR-1 says reasons for the decision under review should be filed with the application if the applicant has them. A filing fee applies - check the Court's current fee schedule.
• eLodgment is the Court's electronic filing system. A Registrar fixes the return date and place (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, unless the Court shortens time (r 8.06).
• If the matter arises under the Constitution or involves its interpretation, s 78B Judiciary Act notices must be given promptly (ACLHR-1).

• The Court will refuse to accept migration litigation filed by a lawyer without the s 486I certificate (r 8.04, note 2).
• For migration decisions, check that the Federal Court has jurisdiction under s 476A of the Migration Act before filing; many matters belong in the Federal Circuit and Family Court of Australia (Division 2).
• Expect a case management hearing soon after filing. ACLHR-1 lists what parties must be ready to discuss, including any concise statement.