Federal Court and Supreme Court
Admiralty Users' Group Meeting - NSW - Minutes
29 June 2004
Present Tamberlin, Emmett and Allsop JJ, John Mathieson, Philip Kellow, Lance Grant, Gregory Nell, Michael McGrowdie, Jeremy Colville, Peter Mannion, Stewart Hetherington, Alex Baykitch, Danella Wilmshurst, Craig Carter, Frazer Hunt, John Levingston, Peter McQueen, Stephen D'Emilie, James Harb, Douglas Coleman, Alexander Street and Joe Hurley.
Welcome
Allsop J welcomed all participants to the meeting.
Rule Reform
Allsop J drew practitioners attention to the letter sent by Philip Kellow to the Assistant Secretary, Public International Law Branch, Attorney-General's Department on 2 April 2004 included with the papers for the meeting distributed on 4 May 2004 and advised that Cooper J, who is a member of the statutory Admiralty Rules Committee, is trying to arrange for the statutory committee to meet in July or August 2004 to discuss the proposal and invited any practitioner with further comment to send it to Philip Kellow so it might be passed on to Cooper J. Allsop J also noted that a rewrite of the Federal Court Regulations was nearing completion and it was hoped that under the new regulations poundage would be abolished.
Scope of Admiralty Panel Work
Allsop J drew practitioner's attention to the Notice to Practitioners in relation to Admiralty and Maritime matters in the NSW District Registry issued by the District Registrar on 9 June 2004. He asked them to note that the notice attaches a list of enactments which relate to the Admiralty and Maritime power under the Constitution and which are within the scope of the Admiralty and Maritime Panel's work. He also drew practitioners attention to the very broad jurisdictional base provided to the Federal Court under Section 39B of the Judiciary Act allowing it deal with any matter "arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter" which he had discussed at length in his recent paper "Federal Jurisdiction of the Federal Court" a copy of which was circulated with the papers distributed at the meeting.
Procedural Approach
Allsop J noted that the new procedure where all direction hearings and interlocutory issues and hearings involved in bringing matters on for trial in the Admiralty and Maritime Panel are now being dealt with by the Admiralty and Maritime Procedure Judge and urgent Admiralty or Maritime applications can be made direct to Allsop or Tamberlin JJ or via the Duty Judge have now been in operation for some time. He drew practitioners attention to the paper outlining the procedural approach followed by him as procedure juge included with the papers distributed at the meeting.
Mediation
Allsop J noted that included with the papers distributed for the meeting was an extract of mediation and arbitration provisions contained in the Federal Court of Australia Act (ss53A, 53AA, 53AB, 53B, 53C and 54). He noted that the Court has power to refer suitable matters to mediation and arbitration whether conducted by an internal or an external, of choice, mediator. There was discussion of whether it might be desirable for the Court to establish panels of mediators and arbitrators for Admiralty and Maritime matters. Practitioners were invited to make suggestions on how this might be approached and who might be suitable for appointment.
There was discussion about whether it might be appropriate for a judge to undertake some form of early neutral evaluation on mediation. Some practitioners raised concern about the perception that this would be a way of obtaining an advisory opinion from a judge. It was suggested that the model used under the franchise code of conduct where each party set out the issues it believed to be in dispute and the outcomes sought following which they were allowed three weeks to try and achieve a negotiated outcome themselves but, if unresolved, the matter was referred to a mediator and a short mediation held. There was also discussion about whether it might be appropriate for MLAANZ to establish a standard mediation referral clause and a panel of mediators.
Allsop J noted that some discussions had been held with New Zealand Judges about the possibility of cross-Tasman mediations.
Overseas Video Link Evidence
Allsop J drew practitioner's attention to the paper included in the material distributed at the meeting on taking of evidence abroad. He suggested that in any matter in which there was overseas evidence involved it is important to think about how that evidence might be taken as early as possible and to get relevant enquiries underway immediately. He encouraged practitioners to use alternative approaches to try to avoid the necessity of taking of evidence formally, unless this was genuinely required.
There was discussion of some of the difficulties associated with taking of evidence by video link. It was suggested that might be useful if the Court could issue a more detailed practice note.
Other Business
Allsop J noted that there had been 18 filings of Admiralty and Maritime matter is the NSW Registry so far in 2004.
It was suggested by Alex Baykitch that the Court might want to consider establishing a transport panel to include aviation work. There was discussion of the use of Section 39B of the Judiciary Act to enable such claims to be brought in the Federal Court. Some practitioners, however, suggested that as many of those claims dealt with issues such as nervous shock they might be better dealt with in the Common Law Division or District Court.
Allsop J noted that the Court had redeveloped the Admiralty pages of its website and that it now provided an excellent research tool in Admiralty and Maritime matters. He invited practitioners to visit.
