Part 13.7—Applications in relation to appeals

## Part 13.1—Introduction #### 13.01 Application of Chapter 13 (1) This Chapter applies to the following appeals: (a) an appeal to a Full Court of the Federal Circuit and Family Court (Division 1) from an order of a Judge or Judges of the Federal Circuit and Family Court (Division 1), a Family Court of a State or a Supreme Court of a State or Territory; (b) an appeal to the Federal Circuit and Family Court (Division 1) from an order of the Federal Circuit and Family Court (Division 2) (whether heard by a Full Court or a single Judge); (c) an appeal to the Federal Circuit and Family Court (Division 1) from an order of a Family Law Magistrate of Western Australia (whether heard by a Full Court or a single Judge); (d) an appeal to a single Judge of the Federal Circuit and Family Court (Division 1) from an order of a court of summary jurisdiction. (2) This Chapter does not apply to: (a) an appeal to the Federal Circuit and Family Court (Division 2) under the Assessment Act or Registration Act; or (b) an application to a Judge for a review of an order of a Judicial Registrar who is not an Appeal Judicial Registrar (see Chapter 14). ## Part 13.2—Starting an appeal #### 13.02 Starting an appeal (1) A person may start an appeal by filing a Notice of Appeal: (a) for an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia—in the registry of a Family Court that is closest to the court of summary jurisdiction that made the order appealed from; or (b) in any other case—in the National Appeal Registry. > Note 1: Leave of the court is needed to appeal from: (a) an interlocutory order, other than an interlocutory order relating to a child welfare matter, of the Federal Circuit and Family Court or a Family Law Magistrate of Western Australia (see section 28 of the Federal Circuit and Family Court Act and the Federal Court and Federal Circuit and Family Court Regulations 2022); or (b) an order, made by a court, referred to in section 28 of the Federal Circuit and Family Court Act, section 101 of the Assessment Act or section 106 of the Registration Act. > Note 2: The Notice of Appeal must be accompanied by the applicable filing fee or an application for a fee exemption or deferral. (2) If an appeal cannot be started without the leave of the court, leave must be sought in the Notice of Appeal. > Note: At the hearing of the appeal, only the grounds stated in the Notice of Appeal (or Notice of Appeal as amended) may be argued except with the court’s permission. A Notice of Appeal may be amended only in accordance with rule 13.10. #### 13.03 Time for appeal (1) A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made. (2) Despite subrule (1), a Notice of Appeal in respect of an appeal from a judgment or decision referred to in paragraph 26(1)(h) of the Federal Circuit and Family Court Act must be filed: (a) if the judgment or decision appealed from was made at an interlocutory stage of a proceeding—within 28 days after the judgment or decision was made; or (b) if the judgment or decision appealed from was made at trial—within 28 days after the final orders were made. (3) If a person makes an application, under subrule 15.06(1), for an extension of time to appeal by filing an Application in an Appeal and affidavit in support, the proposed Notice of Appeal must be annexed to the application. > Note 1: Rule 10.19 sets out when an order is made. > Note 2: See also rules 13.36 and 15.06. #### 13.04 Parties to an appeal Each person who is directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal, must be made a respondent to the appeal or the application for leave to appeal. > Note: An application may be made to have a person joined or removed as a party to an appeal (see paragraph 32(3)(a) of the Federal Circuit and Family Court Act). #### 13.05 Service A copy of a Notice of Appeal must be served on each party to the appeal, by ordinary service, within 14 days after it is filed. #### 13.06 Notice about appeal to other courts (1) If an appeal is from an order of a court (the other court) other than the Federal Circuit and Family Court or a Family Court of a State, the appellant must give a copy of the Notice of Appeal to the Registrar of the other court within 14 days after filing the Notice of Appeal. (2) A party seeking leave to appeal from an order of a court (the other court) other than the Federal Circuit and Family Court or a Family Court of a State must give a copy of the Notice of Appeal in which leave to appeal is sought to: (a) the Registrar of the other court; and (b) for an appeal from a court exercising jurisdiction under the child support legislation—the Child Support Registrar. #### 13.07 Cross‑appeal (1) A respondent to an appeal or an independent children’s lawyer who intends to argue that an order under appeal should be varied or set aside must cross‑appeal by filing a Notice of Appeal endorsed as a cross‑appeal. (2) A Notice of Appeal for a cross‑appeal must be filed within the later of the following: (a) 14 days after the Notice of Appeal for the appeal was served on the cross‑appellant; (b) 28 days after the date the order appealed from was made. #### 13.08 Notice of Contention (1) A respondent to an appeal or an independent children’s lawyer who does not want to cross‑appeal from any part of an order under appeal, but contends that the order should be affirmed on grounds other than those relied on by the court appealed from, must file a Notice of Contention. (2) A Notice of Contention must be filed within 28 days after the Notice of Appeal was served on the respondent or the independent children’s lawyer. #### 13.09 Submitting notice (1) A respondent who does not want to contest the relief sought in the Notice of Appeal may file a submitting notice under rule 2.22. (2) A submitting notice for a respondent served with a Notice of Appeal must be filed within 14 days after the procedural hearing. #### 13.10 Amendment of Notice of Appeal (1) The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant. (2) If a Notice of Appeal is amended, the grounds of appeal and the orders sought in a Notice of Appeal endorsed as a cross‑appeal may be amended without permission at any time within 7 days after service of the amended Notice of Appeal. > Note: Rule 2.52 provides for how to amend a document. #### 13.12 Stay (1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. (2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates. (3) An application for a stay must: (a) be filed in the registry in which the order under appeal was made; and (b) be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable. > Note: Under subsection 55(3) of the Family Law Act, a divorce order is stayed until after an appeal against it is determined or discontinued. #### 13.13 Procedural orders in relation to an application for leave to appeal In relation to an application for leave to appeal from an order, the court may make procedural orders, including the following: (a) an order requiring the applicant to file a written undertaking to pay any filing fee; (b) an order that the proposed appeal be argued at the same time as the application for leave to appeal; (c) an order that the application be dealt with by the court without an oral hearing and orders in relation to the conduct of the application, including the filing of written submissions. > Note: Subsection 32(7) of the Federal Circuit and Family Court Act provides for these Rules to permit the court to determine some applications relating to an appeal without an oral hearing. The court may decide to deal with an application without an oral hearing on its own initiative or on application. #### 13.14 Filing draft index to appeal book (1) This rule applies to an appeal from an order of: (a) the Federal Circuit and Family Court (Division 1); or (b) the Federal Circuit and Family Court (Division 2); or (c) a Family Court of a State; or (d) the Supreme Court of a State or Territory; or (e) a Family Law Magistrate of Western Australia. (2) The appellant must file a draft index to the appeal book within: (a) 28 days after: (i) filing the Notice of Appeal; or (ii) the date when the reasons for judgment that relate to the order the subject of the appeal were issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or (b) if the court extends the period referred to in paragraph (a)—the period ordered by the court. (3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned. ## Part 13.3—Appeals to Full Court or single Judge #### 13.15 Application of Part 13.3 This Part applies to the following appeals: (a) an appeal to a Full Court of the Federal Circuit and Family Court (Division 1) from an order of: (i) the Federal Circuit and Family Court (Division 1); or (ii) a Family Court of a State; or (iii) a single Judge of a Supreme Court of a State or Territory; (b) an appeal to the Federal Circuit and Family Court (Division 1) from an order of: (i) the Federal Circuit and Family Court (Division 2); or (ii) a Family Law Magistrate of Western Australia; whether the jurisdiction of the court in relation to the appeal is to be exercised by a single Judge or a Full Court. > Note: An appeal from an order of the Federal Circuit and Family Court (Division 2) or a Family Law Magistrate of Western Australia is to be heard by a single Judge of the Federal Circuit and Family Court (Division 1) unless the Chief Justice decides that the appeal is to be heard by a Full Court (see subsection 32(1) of the Federal Circuit and Family Court Act). There is no right to appeal against this decision. #### 13.16 Procedural hearing As soon as reasonably practicable after the filing of a draft index to the appeal book, the Appeal Judicial Registrar must: (a) fix a date for a procedural hearing for the appeal before an Appeal Judicial Registrar or other Judicial Registrar or, if the Appeal Judicial Registrar considers it appropriate, a Judge of the Federal Circuit and Family Court (Division 1); and (b) give the parties to the appeal written notice of the date fixed for the procedural hearing. > Note: An application or appeal will usually be listed before an Appeal Judicial Registrar but may be listed before a Judge of the Federal Circuit and Family Court (Division 1). #### 13.17 Attendance at first procedural hearing (1) The appellant or the appellant’s lawyer must attend the first procedural hearing for the appellant’s appeal. (2) Any of the following persons may also attend the first procedural hearing: (a) a respondent in the appeal; (b) a lawyer for a respondent in the appeal; (c) an independent children’s lawyer in the appeal. #### 13.18 Orders to be made at procedural hearing (1) An Appeal Judicial Registrar or other Judicial Registrar conducting a procedural hearing may, if the Registrar considers it appropriate, adjourn the hearing to a Judge at any time. (2) Orders about the following matters may be made at a procedural hearing: (a) the documents that are to be included in the appeal book; (b) the part or parts of a transcript of the hearing relevant to the appeal; (c) the preparation of the appeal book and the format in which it is prepared; (d) the date by which the appeal book must be filed and served; (e) the dates by which the transcript, summaries of argument, lists of authorities, and costs schedules must be filed and served; (f) the conduct of the appeal (including the likely duration of the appeal); (g) any other matter that the Registrar or Judge considers necessary. (3) The Appeal Judicial Registrar or other Judicial Registrar conducting a procedural hearing may make procedural orders in chambers, in the absence of the parties, on the documents filed. #### 13.19 Preparation of appeal book and obtaining transcript (1) The appellant or, if so ordered, the cross‑appellant is responsible for preparing and filing the appeal book. (2) If a Judge or Appeal Judicial Registrar is satisfied that preparing the appeal book would impose exceptional hardship on the appellant, the Judge or Appeal Judicial Registrar may order that either of the following are to prepare and file the appeal book: (a) a respondent; (b) the Appeal Judicial Registrar. (3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal book. (4) The appellant, or if so ordered the cross‑appellant, is responsible for obtaining any transcript of the hearing relevant to the appeal or cross‑appeal. #### 13.20 Contents of appeal book (1) Unless otherwise ordered under paragraph 13.18(2)(a), the appeal book must contain only: (a) the documents put in evidence at the hearing or trial to which the appeal relates, including the orders, applications, affidavits and exhibits relevant to the grounds of appeal or contention and necessary to enable the court hearing the appeal to reach its decision; and (b) if the appeal involves a challenge to the exclusion of evidence—the document: (i) that is the subject of the challenge; and (ii) that was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates. (2) The appeal book must not mention any offer to settle that has been made, or the terms of the offer unless the terms of the offer are relevant to the appeal. (3) Before the appellant’s summary of argument is filed, the parties must file a schedule that identifies any material in the appeal book that was not relied on at trial or was struck out. If there is disagreement, the parties must be able, at the start of the hearing, to direct the court to the relevant transcript. #### 13.21 Form of appeal book (1) The appeal book must have: (a) a title page stating: (i) the names of the parties to the appeal; and (ii) the court in which the order appealed from was made; and (iii) the address for service of each party; and (b) an index stating the documents included in the appeal book, and the date and page number of each document. (2) The appeal book must include a certificate signed by the person who prepared it, certifying that the book has been prepared in accordance with these Rules and the orders made at the procedural hearing. (3) The documents in the appeal book must be arranged in the following order: (a) the Notice of Appeal; (b) the order appealed from; (c) reasons for judgment; (d) any relevant previous or subsequent order; (e) each relevant application; (f) any relevant response; (g) any notice of contention; (h) any submitting notice; (i) relevant affidavits; (j) any family or expert’s report received in evidence in the proceeding that is relevant to the appeal; (k) a list of exhibits and each relevant exhibit (if practicable); (l) if the appeal involves a challenge to the exclusion of evidence—the document that is the subject of the challenge. (4) The pages of the appeal book must be numbered consecutively. (5) Each page in the appeal book must comply with the requirements for documents referred to in rule 2.14. > Note 1: The appeal book must be filed electronically as permitted by the court, unless it is not reasonably practicable to do so (see rule 2.23). > Note 2: The Appeal Judicial Registrar may refuse to accept the appeal book for filing if it does not comply with these Rules or an order. #### 13.22 Failure to file appeal book or transcript by due date (1) If the appellant fails to file the appeal book by the date ordered, the appeal is taken to be abandoned. (2) If the appellant fails to file the transcript by the date ordered, the appeal is taken to be abandoned. > Note: A party may apply for an extension of time to file the appeal book or transcript (see rule 15.06). #### 13.23 Summary of argument and list of authorities (1) Each party must file and serve a summary of argument and a list of authorities to be relied on: (a) for the appellant—at least 28 days before the first day of the sittings in which the appeal is listed for hearing; or (b) for the respondent and any independent children’s lawyer—at least 7 days before the first day of the sittings in which the appeal is listed for hearing. (2) For the purposes of subrule (1), a summary of argument must: (a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and (b) set out the orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal); and (c) not exceed 15 pages, unless leave to exceed that number has been given; and (d) be easily legible, using a font size of at least 12 points and 1.5 line spacing; and (e) have all paragraphs numbered consecutively; and (f) be signed by the person who prepared the summary of argument; and (g) include the signatory’s name, email address, telephone number and document exchange number (if any) at which the signatory may be contacted. (3) If a party intends to challenge any findings of fact, the summary of argument must: (a) identify the error (including any failure to make a finding of fact); and (b) identify the finding that the party contends should have been made; and (c) state concisely why the finding, or failure to make a finding, is erroneous; and (d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript). (4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court. (5) For the purposes of subrule (1), a list of authorities must: (a) be divided into 2 parts as follows: (i) Part 1 must contain only those authorities that will be cited during the appeal; (ii) Part 2 must contain those authorities that might be called for during the appeal, but that it is not intended to cite; and (b) in relation to reported judgments: (i) if the judgment is available in an authorised report series—cite the judgment as reported in that series; and (ii) if the judgment is not available in an authorised report series—cite the judgment as reported where it is available; and (iii) in any case—identify the relevant page or pages in the report; and (c) in relation to unreported judgments: (i) if a medium neutral citation is available—provide that citation and identify the relevant paragraph or paragraphs; and (ii) if a medium neutral citation is not available—be accompanied by a copy of the judgment and identify, by page or paragraph number or numbers as appropriate, the relevant passage or passages. ## Part 13.5—Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia #### 13.29 Application of Part 13.5 This Part applies to an appeal from an order of a court of summary jurisdiction other than a Family Law Magistrate of Western Australia. #### 13.30 Fixing of hearing date On the filing of a Notice of Appeal, the Registry Manager must fix a date for the hearing of the appeal that is as near as practicable to 56 days after the Notice of Appeal was filed. > Note: The appellant must give a copy of the Notice of Appeal to the Registrar of the court of summary jurisdiction within 14 days after filing the Notice of Appeal (see rule 13.06). ## Part 13.6—Powers of appeal courts and conduct of appeal Note 1: The following provisions set out the powers of the appeal court. See also paragraph 35(b) and subsection 36(1) of the Federal Circuit and Family Court Act and subsection 47A(6) of the Family Law Act. Note 2: Oral argument will ordinarily be restricted to issues raised by the Notice of Appeal and the summary of argument. The appeal court may restrict the time allowed for oral argument. #### 13.31 Non‑attendance by party If a party does not attend, in person or by lawyer, when an appeal is called on for hearing, the court may: (a) if the appellant does not attend—dismiss the appeal; or (b) if the respondent does not attend—proceed with the appeal. #### 13.32 Attendance by electronic communication (1) A party may request permission from the court to attend the hearing of an appeal, an application for leave to appeal or any other application in relation to an appeal, or a procedural hearing, by electronic communication. (2) The request must: (a) be in writing; and (b) for an application in relation to an appeal or a procedural hearing—be made at least 14 days before the date fixed for the hearing of the application or the procedural hearing; and (c) for an application for leave to appeal or an appeal—be made at least 14 days before the date fixed for the hearing of the application for leave to appeal or the appeal; and (d) address all of the matters referred to in subrule 15.16(4) that are applicable; and (e) set out the notice given of the request to any other party and whether there is any objection to the request. (3) The request may be determined, in chambers, in the absence of the parties by: (a) for an appeal or application to be heard by a Full Court—a Judge of the Federal Circuit and Family Court (Division 1); or (b) for an appeal or application to be heard by a single Judge—the Judge hearing the appeal or application; or (c) for a procedural hearing—the Judicial Registrar or Judge who is to conduct the procedural hearing. (4) The court may take the following matters into account when considering the request: (a) the party’s distance from the place where the event is to be held; (b) any physical difficulty the party has in attending because of illness, disability or concerns about security. (5) The court may: (a) order a party to pay the expenses of attending by electronic communication; or (b) apportion the expenses between the parties; or (c) make no order about the expenses. (6) This rule does not apply if the court, on its own initiative, decides to hear an appeal, an application for leave to appeal, or any other application in relation to an appeal, or a procedural hearing, by electronic communication. #### 13.33 Attendance by party in prison (1) A party who is in prison must attend the hearing of an appeal, an application for leave to appeal, or any other application in relation to an appeal, or a procedural hearing, by electronic communication, if practicable. (2) A party may request permission from the court to attend a hearing referred to in subrule (1) in person. (3) A request under subrule (2) must: (a) be in writing; and (b) be made at least 14 days before the date fixed for the relevant hearing; and (c) set out the reasons why permission should be granted; and (d) set out the notice given of the request to any other party and whether there is any objection to the request. #### 13.34 Subpoenas (1) A subpoena may be issued in an appeal only if leave to issue the subpoena has been given by: (a) for an appeal heard by a Full Court—that Full Court; or (b) for an appeal heard by a single Judge—that Judge. (2) A document produced in compliance with a subpoena issued in accordance with subrule (1) may be inspected only with the leave of the Full Court referred to in paragraph (1)(a) or the Judge referred to in paragraph (1)(b). ## Part 13.7—Applications in relation to appeals ### Division 13.7.1—How to make an application #### 13.35 Application of Part 13.7 This Part applies if a party seeks to make an application in relation to an appeal (other than an application for leave to appeal). #### 13.36 Application in relation to appeal A party may make an application in relation to an appeal by filing an Application in an Appeal and, except as provided by subrule 13.40(3), an affidavit stating the facts relied on in support of the application. #### 13.37 Hearing date for application On the filing of an Application in an Appeal, the Appeal Judicial Registrar must: (a) fix a date for a hearing of the application; or (b) refer the application to a Judge in chambers if: (i) the parties to the application consent to the making of the decision in the absence of the parties without an oral hearing and the court considers it appropriate to make the decision in the absence of the parties without an oral hearing (see Part 5.3); or (ii) the Appeal Judicial Registrar considers it appropriate. #### 13.38 Decision in the absence of parties without oral hearing (1) Part 5.3 applies to an application in relation to an appeal as if a reference in that Part to an application for an interlocutory order were a reference to an application in relation to an appeal. (2) If an application is referred to a Judge in chambers in accordance with paragraph 13.37(b), the Judge may: (a) order that the application be dealt with by the court in the absence of the parties without an oral hearing and: (i) make procedural orders in relation to the conduct of the application, including the filing of written submissions; or (ii) determine the application; or (b) direct that a date for hearing be fixed for the application and require the parties to attend. > Note 1: Subsection 32(7) of the Federal Circuit and Family Court Act provides for these Rules to permit the court to determine some applications relating to an appeal without an oral hearing. The court may decide to deal with an application without an oral hearing on its own initiative or on application. > Note 2: For the requirements for withdrawing or discontinuing an application, see Part 10.1. ### Division 13.7.2—Specific applications relating to appeals #### 13.39 Further evidence on appeal (1) A party to an appeal (other than an appeal that is a hearing de novo) who seeks to apply for an order that the court receive further evidence on the hearing of the appeal must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing. (2) The affidavit filed with the application must state: (a) briefly but specifically, the facts on which the application relies; and (b) the grounds of appeal to which the application relates; and (c) the evidence that the applicant wants the appeal court to receive, or at least the nature of the further evidence; and (d) the reason why the evidence was not adduced at the hearing. (3) Any other party to the appeal may file an affidavit in response to the application at least 7 days before the date of commencement of the sittings in which the appeal is listed for hearing. (4) The hearing date for an application to adduce further evidence is the same as the date fixed for the hearing of the appeal or the application for leave to appeal. > Note: Documents relating to further evidence should not be included in the appeal book. #### 13.40 Review of Appeal Judicial Registrar’s order (1) A party may apply for a review of: (a) an Appeal Judicial Registrar’s order relating to the conduct of an appeal; or (b) the rejection of a document by an Appeal Judicial Registrar. > Note: Rule 2.24 sets out the grounds on which a document may be rejected. (2) An application under subrule (1) may be made by filing an Application in an Appeal in the National Appeal Registry, within 21 days after the order is made or the document is rejected. > Note: The Appeal Judicial Registrar must list the application for review for hearing by a Judge of the Federal Circuit and Family Court (Division 1) (see section 100 of the Federal Circuit and Family Court Act). (3) An application under subrule (1) does not need to be supported by an affidavit. ## Part 13.8—Concluding an appeal, an application for leave to appeal or any other application in relation to an appeal #### 13.41 Consent orders on appeal (1) This rule applies if the parties to an appeal agree about the orders the court will be asked to make on appeal. (2) The parties may file a draft consent order, setting out the terms of their agreement. (3) If the parties: (a) agree about the orders the court will be asked to make on appeal; and (b) disagree about the order for costs; the Appeal Judicial Registrar may fix a date for hearing for the argument about costs, without requiring an appeal book to be prepared or a procedural hearing to be held. #### 13.42 Discontinuance of appeal or application (1) A party may discontinue an appeal, an application for leave to appeal or any other application in relation to an appeal by filing a notice of discontinuance. (2) The party may be ordered to pay the costs of all other parties. (3) An application for costs must be filed within 28 days after the notice of discontinuance is filed. #### 13.43 Abandoning an appeal (1) If an appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties. (2) An application for costs of an abandoned appeal must be filed within 28 days after the date the appeal is taken to have been abandoned. #### 13.44 Application for reinstatement of appeal A party may apply to have an appeal taken to be abandoned under this Chapter reinstated. #### 13.45 Dismissal of appeal and applications for non‑compliance or delay (1) This rule applies if: (a) an appeal is not taken to have been abandoned; and (b) a party (the defaulting party) has not: (i) met a requirement under these Rules or the Family Law Regulations; or (ii) complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or (iii) shown reasonable diligence in proceeding with an appeal or application. (2) A court having jurisdiction in the appeal or application may: (a) if the defaulting party is the appellant or the applicant: (i) dismiss the appeal or application; or (ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or (b) if the defaulting party is the respondent: (i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or (ii) proceed to hear the appeal or application. (3) The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order. (4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal. ## Part 13.9—Case stated #### 13.46 Application of Part 13.9 This Part applies to a proceeding (a case stated) in relation to which the court and a party want the Federal Circuit and Family Court (Division 1) to determine a question of law arising in the proceeding under section 34 of the Federal Circuit and Family Court Act. #### 13.47 Case stated (1) If a Judge orders a party to prepare a case stated for the consideration of the Federal Circuit and Family Court (Division 1), the party must: (a) confer with each other party about the terms of a draft case stated; and (b) prepare the draft case stated based on the agreed terms. (2) The draft case stated must concisely state the facts and the question of law to be determined. (3) When the draft of the case stated is completed, the party who prepared it must: (a) ask the Appeal Judicial Registrar to list the proceeding for a procedural hearing to have the draft case stated settled by the Judge; and (b) serve the draft case stated and a notice of the date fixed for the procedural hearing on each other party and any other person the Judge directs. #### 13.48 Objection to draft case stated (1) A party served with a draft case stated under paragraph 13.47(3)(b) may object to its terms, or seek an amendment of it, by giving written notice to the party who prepared the draft of: (a) any objections; or (b) any amendments sought to be made when the draft is settled by the Judge. (2) The party must give the notice within 7 days after the draft case stated was served on the party. #### 13.49 Settlement and signing (1) The party who prepared the draft case stated must lodge: (a) the draft case stated; and (b) any objections or amendments sought by the other party; and (c) a request that the Judge settle the draft case stated. (2) The party who prepared the draft case stated must, within 3 days after it has been settled, file the case stated, as settled, for signature by the Judge. #### 13.50 Filing of case stated A party who prepares a draft case stated must, within 7 days after it has been signed under rule 13.49: (a) file the case stated in the National Appeal Registry; and (b) serve the case stated on each other party and any other person the Judge directs. #### 13.51 Fixing of hearing date On the filing of the signed case stated under rule 13.50, the Appeal Judicial Registrar must: (a) fix a date for the hearing of the case stated; and (b) give each party written notice about the hearing. #### 13.52 Summary of argument and list of authorities (1) A summary of argument to be presented and a list of authorities to be relied on at the hearing of a case stated must be filed and served: (a) by the party who prepares the draft case stated—at least 21 days before the commencement of the sittings in which the case stated is listed for hearing; and (b) by each other party—at least 14 days before the commencement of the sittings in which the case stated is listed for hearing; and (c) by a child representative (if any)—at least 7 days before the commencement of the sittings in which the case stated is listed for hearing. (2) The summary of argument must be in accordance with subrule 13.23(2). ## Part 13.10—Costs orders #### 13.53 Filing of costs schedule in certain appeals (1) This rule applies to an appeal to which Part 13.3 or 13.4 applies. (2) A party who intends to seek costs at the conclusion of the hearing of the appeal, subject to the outcome of the appeal, must: (a) file and serve, no later than 7 days before the first day of the sittings in which the appeal is listed for hearing, a schedule of the costs to be sought at the scale prescribed by these Rules; and (b) be in a position to address the court as to costs (including quantum), whether sought by or against that party, at the conclusion of the hearing. (3) If a party files a schedule of costs under subrule (2), all parties must be in a position to address the court on the question of costs (including quantum) at the conclusion of the hearing. > Note: A party may include indemnity costs in a costs schedule as well as costs to be sought at the scale prescribed by these Rules. #### 13.54 Order for costs (1) A party to an appeal or an application for leave to appeal may apply for an order that another person pay costs. (2) An application for costs may be made: (a) at any stage during an appeal or an application for leave to appeal; or (b) by filing an application in relation to an appeal within 28 days after the court makes an order disposing of the appeal or an application for leave to appeal. > Note: A party may apply for an order for costs within 28 days after: (a) a notice of discontinuance is filed by the other party (see rule 13.42); or (b) an appeal is taken to be abandoned (see rule 13.43); or (c) an appeal is dismissed (see rule 13.45); or (d) an application in relation to an appeal is dismissed (see rule 13.45). (3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement. (4) In making an order for costs, the court may set a time for payment of the costs that may be before the appeal is finished. Chapter 14—Registrars and delegated powers ## Part 14.1—Introduction #### 14.01 Definitions for Chapter 14 In this Chapter, unless the context otherwise requires: > Judicial Registrar means a Registrar of the Federal Circuit and Family Court (Division 1). > Senior Judicial Registrar means: (a) the Chief Executive Officer; or (b) a Senior Registrar of the Federal Circuit and Family Court (Division 1). ## Part 14.2—Delegation of powers to Senior Judicial Registrars and Judicial Registrars #### 14.02 Application of Part 14.2 (1) This Part applies to a Senior Judicial Registrar or Judicial Registrar who is enrolled as a lawyer of the High Court or of the Supreme Court of a State or Territory. (2) This Part applies in the Federal Circuit and Family Court (Division 1), subject to any arrangement made by the Chief Executive Officer as to the Senior Judicial Registrars and Judicial Registrars of the Federal Circuit and Family Court (Division 1) who are to perform any of the functions or exercise any of the powers of the Federal Circuit and Family Court (Division 1), delegated by these Rules under subsection 98(1) of the Federal Circuit and Family Court Act, in particular matters or classes of matters. Any such arrangement made by the Chief Executive Officer is subject to any directions of the Chief Justice. > Note: See section 85 of the Federal Circuit and Family Court Act. #### 14.03 Delegation of powers to Senior Judicial Registrars and Judicial Registrars (1) Each power of the Federal Circuit and Family Court (Division 1) referred to in column 1 of an item of the table in clause 2 of Schedule 4 and marked with a tick () in column 3 of that item is delegated to each Senior Judicial Registrar of the Court. (2) Each power of the Federal Circuit and Family Court (Division 1) referred to in column 1 of an item of the table in clause 2 of Schedule 4 and marked with a tick () in column 4 of that item is delegated to each Judicial Registrar of the Court. > Note: If a power of a court is delegated to a Senior Judicial Registrar or a Judicial Registrar under this rule: (a) the Senior Judicial Registrar or Judicial Registrar has, in exercising the power, the same protection and immunity as a Judge has in performing the functions of a Judge (see sections 101 and 257 of the Federal Circuit and Family Court Act); and (b) a party, legal practitioner or witness appearing before the Senior Judicial Registrar or Judicial Registrar on the hearing of an application or matter, or on the conducting of any conference or inquiry, has the same protection and immunity as if appearing in a proceeding in the relevant court (see subsections 98(4) and 254(4) of the Federal Circuit and Family Court Act). ## Part 14.3—Review of exercise of power by Senior Judicial Registrar or Judicial Registrar #### 14.04 Application of Part 14.3 This Part: (a) applies to an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar; and (b) does not apply to an application for a review of an order made by an Appeal Judicial Registrar. > Note 1: A party may apply for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar (see sections 100 and 256 of the Federal Circuit and Family Court Act and section 60I of the Family Law Act). > Note 2: A party seeking a review of an Appeal Judicial Registrar’s order relating to the conduct of an appeal or the rejection of a document for filing by an Appeal Judicial Registrar may file an Application in an Appeal in the National Appeal Registry within 21 days after the order is made or the document is rejected (see rule 13.40). #### 14.05 Application for review of order or decision (1) A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made. (2) A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made. (3) The applicant must serve a sealed copy of the application on each other party to the proceeding as soon as practicable and in any event not later than 7 days after it is filed. (4) An Application for Review must be listed for a hearing as soon as possible and, unless it is not practicable to do so, within 28 days after the date of filing. > Note 1: An Application for Review does not need to be supported by an affidavit stating the facts relied on in support of the orders sought (see subrule 5.04(2)). > Note 2: A person may apply for an extension of time in which an application must be made (see rule 15.06). #### 14.06 Stay (1) Subject to subrule (3), the filing of an application for review of an exercise of power does not operate as a stay of any order. (2) A party may apply for a stay of an order in whole or in part by filing an Application in a Proceeding. (3) If a divorce order has been granted by a Senior Judicial Registrar or Judicial Registrar, an application for review of that exercise of power is taken to be an appeal within the meaning of subsection 55(3) of the Family Law Act. #### 14.07 Procedure for review (1) A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing. > Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court. (2) The court may receive as evidence: (a) any affidavit or exhibit tendered in the first hearing; or (b) with the leave of the court, any further affidavit or exhibit; or (c) the transcript (if any) of the first hearing; or (d) if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing. (3) The court may determine an application for review in the absence of the parties without an oral hearing if: (a) the parties to the application consent to the making of the decision in their absence without an oral hearing; and (b) the court considers it appropriate to make the decision in the absence of the parties without an oral hearing.