Internal Policy Paper
A ‘friend of the court’ is someone who is not a party to a case, and is not asked by any party to the case to assist the court, but who offers information that bears on the case.
The evidence may take the form of legal opinion, testimony or learned treatise (the amicus brief). The points made generally relate to effects of a court decision that appear unlikely to be raised by the parties themselves. In general, the argument must concern legal implications, not pubic policy implications per se. It is at the court’s discretion as to whether they permit an applicant to provide amicus curiae evidence.
From time to time, APF considers whether it should invest the considerable effort involved in applying for recognition in a particular case, and preparing the evidence. This Policy Paper outlines the factors that need to be taken into account when making the decision.
A court generally wants an amicus applicant to bring a different perspective on a relevant matter before it grants leave. Put another way, it does not want to just have someone cheering on the Privacy Commissioner. Courts are not keen on Greek choruses. Saying the same thing slightly differently is also not enough though sometimes it will get through as long as the emphasis is distinguishable.
It is necessary to first carefully read relevant materials. It will often be the case that the application will be made during an appeals process, and hence the materials will include the decision at first instance and in any previous appeal.
The next step is to work out what legal policy or technical legal point the APF can make to assist the court.
The application needs to be made to the relevant Court. It should be accompanied by an affidavit setting out the basis upon which the APF claims an interest and qualifications to assist the court. It may outline how the amicus brief will assist. The deponent would most likely be a board member of the APF who is prepared to attend court at least when the application is being made.
The best time to make the application is the first or second directions hearing. At least the higher courts publish the dates of such hearings.
A solicitor needs to be on the record on the APF’s behalf. A fee has to be paid when making the application. An application may be made to waive the fee.
If amicus status is granted, it would be prudent to have someone appear and make the application. That is usually a barrister. The APF would need to seek a barrister to appear pro bono on its behalf. (Just rolling up on the day of the hearing and making a vaguely worded amicus application looks good in the movies but will be met with, at best, stony faced silence and possibly worse. Dramatic gestures go nowhere).
It is highly unlikely that an amicus application, even if unsuccessful, will attract an adverse cost order.
A few High Court judgments discuss the principles, notably:
- Project Blue Sky v ABA  HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998)
- Levy v Victoria (“Duck shooting case”)  HCA 31; (1997) 189 CLR 579; (1997) 146 ALR 248; (1997) 71 ALJR 837 (31 July 1997)
See also Justice Susan Kenny’s ‘Interveners and amici curiae in the High Court’ (FCA)  FedJSchol 1