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The Court's appellate jurisdiction

The appellate workload of the Court constitutes a significant part of its overall workload. While most appellate matters arise from decisions of single judges of the Court or the Federal Circuit Court, some are in relation to decisions by state and territory courts exercising certain federal jurisdiction. For reporting purposes, matters filed in the original jurisdiction of the Court but referred to a Full Court for hearing are treated as appellate matters.

The number of appellate proceedings commenced in the Court is dependent on many factors, including the number of first instance matters disposed of in a reporting year, the nature and complexity of such matters, the nature and complexity of issues raised on appeal, legislative changes increasing or reducing the jurisdiction of the Court and decisions of the Full Court or High Court (for example, regarding the interpretation or constitutionality of legislative provisions).

Subject to ss 25(1), (1AA) and (5) of the Federal Court Act, appeals from the Federal Circuit Court and courts of summary jurisdiction exercising federal jurisdiction, may be heard by a Full Court of the Federal Court or by a single judge in certain circumstances. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges.

The Court publishes details of the four scheduled Full Court and appellate sitting periods to be held in February, May, August and November of each year. Each sitting period is up to four weeks in duration. Appellate matters will generally be listed in the next available Full Court and appellate sitting in the capital city where the matter was heard at first instance.

In the reporting year, Full Court and appellate matters were scheduled for hearing in all eight capital cities. When appeals are considered to be sufficiently urgent, the Chief Justice will convene a special sitting of a Full Court outside of the four scheduled sitting periods.

In 2019–20, the Chief Justice specially fixed 20 Full Court or appellate matters for hearing outside of the four scheduled sitting periods, involving 20 sitting days or part thereof.

The appellate workload

During the reporting year, 1,263 appellate proceedings were filed in the Court. They include 1,071 appeals and related actions (1,026 filed in the appellate jurisdiction and 45 matters filed in the original jurisdiction), 15 cross appeals and 177 interlocutory applications such as applications for security for costs in relation to an appeal, a stay, an injunction, expedition or various other applications.

The Federal Circuit Court is a significant source of appellate work accounting for 70 per cent (725 of the 1,071) of the appeals and related actions filed in 2019–20. The majority of these proceedings continue to be heard and determined by single judges exercising the Court’s appellate jurisdiction.

Further information on the source of appeals and related actions is set out in Table A5.3 in Appendix 5: Workload statistics. There was an overall decrease in the total number of appeals and related actions filed in 2019–20, from 1,415 in 2018–19 to 1,026 for the current reporting year. This decrease can be largely attributed to a 35 per cent decrease in the number of migration appeals and related actions filed, from 1,139 in 2018–19, to 742 for the current reporting year.

However, there has been an increase in the Court’s non-migration appeals and related actions since the 2018–19 fiscal year, particularly in the areas of taxation, administrative and constitutional law and human rights, and commercial and corporations (commercial contracts, banking, finance and insurance and regulator and consumer protection).

In the reporting year, 1,168 appeals and related actions were finalised. Of these, 335 matters were filed and finalised in the reporting year. At 30 June 2020, there were 834 appeals currently before the Court, with 571 of these being migration appeals and related actions.

The comparative age of matters pending in the Court’s appellate jurisdiction (including native title appeals) at 30 June 2020 is set out in Table 3.3.

Of the appellate and related matters pending at present, 54 per cent are less than six months old and 87 per cent are less than 12 months old. At 30 June 2020, there were 103 matters that were over 12 months old (see Table 3.3).

Table 3.3: Age of current appeals, cross appeals and interlocutory appellate applications at 30 June 2020

Cause of action

Under 6 months

6–12 months

12–18 months

18–24 months

Over 24 months

Total

Appeals and related actions

510

221

55

22

26

834

Percentage of total

61.2%

26.5%

6.6%

2.6%

3.1%

100.0%

Running total

510

731

786

808

834

54%

87%

94%

97%

100.0%

Managing migration appeals

In 2019–20, 66 migration appeals were filed in the Court’s appellate jurisdiction related to judgments of single judges of the Court exercising the Court’s original jurisdiction. A further 680 migration matters were filed in relation to judgments of the Federal Circuit Court and four from another source.

Table 3.4 shows the number of appellate proceedings involving the Migration Act as a proportion of the Court’s overall appellate workload since 2015–16.

Table 3.4: Appellate proceedings concerning decisions under the Migration Act as a proportion of all appellate proceedings (including cross appeals and interlocutory applications)

Appeals and related actions

2015–16

2016–17

2017–18

2018–19

2019–20

Migration jurisdiction

653

764

1,022

1,139

742

Percentage

65.8%

73.0%

80.9%

80.5%

72.3%

Total appeals and related actions

993

1,046

1,263

1,415

1,026

Although the number of migration appellate filings has decreased by 35 percent since the last reporting year, approximately 70 per cent of the Court’s total appellate workload concerned decisions made under the Migration Act 1958.

The Court continues to apply a number of procedures to streamline the preparation and conduct of these appeals and applications and to facilitate the expeditious management of the migration workload. The Court reviews all migration matters to identify cases raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting in more timely and efficient disposal of matters. Then, all migration-related appellate proceedings (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court and appellate sitting period. The exceptions to this are where expedition of an appeal may be necessary or where a judge’s commitments preclude listing allocated matters during the sitting period. Where any migration-related appellate proceeding requires an expedited hearing, the matter is allocated to a single judge or referred to a specially convened Full Court. Fixing migration-related appellate proceedings for hearing in the four scheduled sitting periods has provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same sitting period.