Federal Court Corporations Law
Users' Group Meeting - NSW - Minutes
15 April 2003
Level 17 Conference Room
Federal
Court Judges present: Lindgren, Emmett, Hely, Gyles,
Conti and Stone JJ
Hely J, the Coordinator of the Corporations
Panel, asked Lindgren J to speak first.
Lindgren J welcomed all participants
to the meeting. and outlined the background to the calling
of the meeting. He invited participants to put forward
issues for discussion and to ask questions.
Lindgren J spoke about his experience
in the development of the harmonised Corporations rules
of court. He gave some examples of compromises in terminology
which had had to be made, and of inconsistencies which
have crept in and how these are now being eliminated.
Lindgren J announced that at the Federal
Court Judges national meeting on 28 March 20903 it was
agreed to amend the Federal Court Rules to allow applications
for ss.596A and 596B summonses to be made to a Registrar
in Chambers. The amendments are presently being drafted
by the Office of Legislative Drafting and are expected
to take effect in the near future.
Lindgren J spoke about a number of
matters of general practice:
Consent orders can be used to avoid
the costs and delay associated with a court appearance.
Consent orders must be signed by all solicitors on the
record. If a party is unrepresented a Judge might have
concerns about that party's understanding of what is
being agreed to. In these circumstances a Judge might
want to deal with the order in a directions hearing.
There are slightly different procedures depending on
whether a consent order is dealt with under rules 10
or 10A of Order 35. If the consent orders are complex,
it might be a good idea to send an advanced copy to
the Judge's Associate and to ask whether the orders
are in a form which the Judge would be prepared to make
in chambers, or whether the Judge would prefer the form
of orders to be debated in court.
Subpoenas are returnable every Wednesday
before Registrars. Leave must be granted by the Court
to issue subpoenas, but may be given generally at the
first directions hearing. It is a good idea to ask for
general leave at the first directions hearing. Although
the parties may ask the Judge for a specific Wednesday
so that, conveniently, they will attend at the same
time, subpoenas may be made returnable on any Wednesday
of a party's choice without the necessity of having
a particular Wednesday allocated by the Registry or
by a Judge.
Video and telephone conferencing
are available where interstate practitioners are involved
and use of these can save travel and agency costs, particularly
for directions hearings or if evidence is uncontroversial.
This possibility might be of particular interest to
NSW practitioners where the proceeding's "proper
place" is another District, such as Victoria.
Ms Nash raised a difficulty she had
experienced with a Corporations matter in Victoria. She
said the Victoria Registry would not accept the affidavits,
as they were not in the Victorian form. Ms Nash asked
for leniency for interstate practitioners, commented that
the "culture" differed between Sydney and Melbourne,
and suggested a similar approach should be taken in each
state. Lindgren J noted that harmonisation was intended
to overcome this type of difficulty as between courts,
that it was particularly unfortunate that such a difference
should arise between different Registries within the same
court, and that any such inconsistency would appear to
be simply inadequacy in training of counter staff. He
said he would ask the NSW District Registrar to raise
this with other District Registrars. Ms Nash said the
difficulties with the documents appeared to concern the
setting out of the names of the deponents on the first
page footer and the swearing jurat.
Lindgren and Gyles JJ invited comment
from the meeting on the Duty Judge and Corporations Judge
protocols, as they had been operational for some time.
Hely J suggested that practitioners could send copies
of the affidavit material and outline of submissions to
the Duty Judge's chambers the day before. This would give
the Duty Judge the opportunity to read the documents in
advance and reduce hearing time.
John Mathieson advised that documents
filed through electronic filing could be turned around
in half an hour, although if a critical deadline was involved
it would not be wise to rely on the technology alone,
and it would be prudent either file to over the counter
or to make contact with the Duty Registrar about fax or
electronic filing. John Mathieson then explained the use
of eCourt to the meeting.
Gyles J raised the difficulty of verifying
signatures of unrepresented litigants who sign consent
orders. Some Judges insist that practitioners file an
affidavit to prove the signature of the litigant.
Ms Nash suggested consideration might
be given to establishing a Bankruptcy Panel.
Lindgren J noted that with the Court's
individual docket system and the new Duty Judge Protocol,
associates have a much greater involvement in dealing
with practitioners in cases in their Judge's docket. He
encouraged practitioners to contact associates if in doubt
about any procedural matter and enquire what the particular
Judge's preferred practice is.
Conti J reminded practitioners that
it is necessary to identify the Acts and sections under
which applications are brought to ensure it is allocated
to the correct panel. It was suggested that an article
reminding practitioners of this might be published in
Bar News and the Law Society Journal.
It was also asked if the Court's fee
structure could be reviewed. It was suggested that the
setting down and hearing fees payable in the Federal Court
were considerably greater than in the Supreme Court. Concern
was also raised about difficulties with the mechanics
of the issue of invoices.
There was then discussion of the frequency
of future meetings. It was suggested every 6 or 12 months
would be appropriate unless special circumstances arise.
The consensus was to have one meeting towards the end
of the Law Term. Practitioners were invited to raise any
issues, concerns or suggestions they might have at any
time with the District Registrar or the Associate to Hely
J as Coordinator of the Corporations Panel. These could
also be brought forward through any on the Bar Association
or Law Society representatives of the NSW User Group Liaison
Committee. That committee, chaired by Branson J, meets
regularly.
The meeting closed at 6.10pm
and was followed by refreshments
