Appeals are a niche area with specific requirements at each stage and many litigators will go through their career without working on one. This article outlines the procedure for general matters for the Federal Court. Separate rules and a more streamlined process exist for immigration matters.
There is a generic process and the Federal Court website provides a helpful template and sample indexes that help break down the structuring of the index.
There are three parts to Appeal Books in the Federal Court. The first stage of the process is preparing the Part A and B indexes which need to be settled by the Registrar. Ideally, they should be submitted with agreement between the parties, otherwise the Registrar will defer to the parties to iron out any differences and ensure only correct and relevant documents are reproduced in the Appeal Book.
Once the indexes have been settled and agreed between parties, Part A and Part B need to be prepared. The submissions and chronology are finalised further down the track. Once these have been written, it's possible to get an understanding of what will be relevant to the Appeal. These documents will shape Part C.
In the Federal Court, the Appeal Books are finished in folders with each document behind a divider according to the index. The Appeal Book is reproduced double-sided with no requirement for pagination where there is no pre-existing pagination on the document. The approach is meant to be common sense with ease of navigation and reference when using the Appeal Book.
Part A is the first section to be prepared for the Federal Court. It contains what is referred to as a Core Set of Standard Items consisting of, the process and pleadings, orders and reasons from which the appeal arises, and the notice of appeal and any other formal documents filed in the appeal.
Until now, it has been relatively straightforward. Part B is the comprehensive reference index (CRI) and does get more complex.
In Part B, the comprehensive index of all evidence from the Court below, detail is important. It's necessary to include a breakdown of all the documents with a specific and individual tab number, which will become the CRI reference number. The documents referenced in the index are not reproduced in Part B, rather the index provides a context for the documents. Only the relevant material is reproduced later, in Part C.
As an example, where an exhibit to an affidavit has been filed, each document that makes up that exhibit should be referenced in Part B, and allocated a unique CRI number. The index provides context as to where that annexure has come from, but it can be reproduced on its own as evidence, in Part C.
This context, and these CRI references will be used in finalizing the submissions, and so it is important to focus on detail and accuracy at this stage, to avoid issues down the track.
Part B is a separate document as it may only be a few pages. It can be filed separately as a stapled document, or as it is usually required to be filed with Part A, it can be included in the same folder with a custom divider separating each section.
The next and final stage is Part C. The submissions and chronologies will go in the order that they've been filed behind the custom labeled dividers. They are then followed by an Abridged Part B, referencing only those documents which are relevant to the appeal, as referenced in the submissions and chronology. These documents are reproduced here, in Part C.
Regarding the number of copies to be filed, this will depend on whether the matter is being heard before a single judge or before the full Court. For a single judge, only two copies are needed – one for the Registry and one for the judge. For the full Court, a copy for the Registry and three copies for the judges is required.
There are no specific directions as to how electronic Appeal Book should be submitted and it will usually be the judge's discretion as to how they wish to use the Appeal Book. They may want it in pdf format and if they need hyperlinks, it will need to be text searchable. The judge may simply want the document book marked. Many practitioners are opting to prepare an electronic copy to utilise at the hearing for ease of navigation. It's important to keep this in mind during the process that this may be a requirement.
Our Appeals Book team is more than happy to talk you through the process and address any questions that you might have generally or specifically as to how we can assist.