Federal Court User Group Liaison
Committee - NSW - Minutes
05 September 2002
Present: Justice Branson, Federal Court
of Australia (Convenor)
Justice Tamberlin, Federal Court of Australia
Justice Emmett, Federal Court of Australia
John Mathieson, (District Registrar), Federal Court of
Australia
Malcolm Oakes SC, (Representative), NSW Bar Association
Anne Sullivan, (alternate for Peter Johnston) (Representative),
Law Society of NSW
Pieter Oomens, (Representative), Law Society of NSW
Ian Tunstall, (Representative), Law Society of NSW
Sylvia Fernandez, (Representative), Law Society of NSW
1. Minutes
of meeting of 6 June 2002
The minutes, incorporating changes as suggested, circulated
prior to the meeting were adopted.
Justice Branson noted that Justice Tamberlin and John
Mathieson had made several presentations of the Court's
electronic filing and on-line directions hearing forum
to the members of the Law Society. John Mathieson agreed
to follow up with Malcolm Oakes in early July about arranging
a demonstration to members of the Bar.
Anne Sullivan reported that she and Peter Johnston have
had discussions with litigation law firms across Sydney
and asked practitioners to contact Mr Johnston or herself
in regard to any issues, concerns or suggestions they
have relevant to the Federal Court which can be then referred
to the Liaison Committee for discussion.
Pieter Oomens said the position continued that the procedures
in arranging examinations in the Supreme Court were more
friendly than those which applied in the Federal Court
and, as a result, practitioners were much more comfortable
in issuing examination summonses there. Malcolm Oakes
and Pieter Oomens noted that the profession were happy
with the quality of service provided by the Supreme Court
in Corporations matters.
Justice Branson reported that a memorandum had been sent
to the Chief Justice in regard to interest rates following
the last meeting recommending that the Chief Justice raise
the desirability of all Australian jurisdictions adopting
uniform interest rates for interest up to, and on, judgment
at the Council of Chief Justices
Ian Tunstall said that he had made some enquiries amongst
the profession about whether costs in the Federal Magistrates
Court were, as had been assumed, cheaper than in the Federal
Court but without obtaining anything definitive so far.
He said that he would be making some further enquiries
and would email details of what he had found to members
of the Committee.
2. Duty/Corporations
Judge Arrangements
It was noted that these appeared to be working well.
3. Individual
Docket System
Justice Branson noted that this had been discussed at
some length at a Judges' workshop held in Brisbane on
29 August 2002 and Peter Johnston had attended as a representative
of the profession. She said that some of the issues which
were discussed were the need for greater consistency,
better identification of issues and the preference of
the profession for general discovery rather than discovery
by categories.
The Bar Association and Law Society
members agreed that the general preference of the profession
was for general discovery. Sylvia Fernandez said that
she had been involved in two matter recently both where
informal discovery had been agreed but in which it had
taken some seven months to be able to resolve disputes
about categories. It was suggested that one workable way
of reducing discovery and its cost was to have general
discovery except for
nominated categories (i.e. everything except nominated
classes of documents). Sylvia Fernandez also said that
the Rules Committee of the New Zealand High Court was
currently looking at discovery and had sought comment
from a number of experienced Australian litigators including
herself.
There was discussion about whether
the preparation of the list of documents simply added
to the cost of discovery or was useful is focussing the
minds of those involved. There was discussion about whether
there was merit in considering the US system of oral depositions,
that is cross-examining witnesses away from the Court
with objections able to be made but all questions having
to be answered and with the whole process usually videotaped.
US lawyers claim that this system often results in earlier
settlements and limits what is an issue. Justice Branson
suggested that the Federal Court Rules might currently
provide enough flexibility to allow such a process to
be ordered in an appropriate case if sought.
Justice Branson noted that there had
been discussion at the Brisbane workshop about ways to
deal jammed dockets. It was agreed that this was not a
major issue in Sydney.
There was discussion about the benefit
of using a "conference" rather than a directions
hearing to identify the real issues. It was suggest that
if this was to be fully effective it would be essential
that counsel who will appear at trial be briefed early
and attend the conference. Justice Tamberlin suggested
that such conferences might be able to be made more efficient
in combination with use of the eCourt Forum.
Justice Branson said that overall the
view which emerged from the Brisbane workshop was that
there was a need for the Court to manage small cases less
and big cases more and in a better and more focussed way.
4. Issues/Concerns/Suggestions
Malcolm Oakes said that he was concerned that the certification
which was now required as a result of the NSW Civil Liability
Act 2002 is likely to lead to practitioners being unable
to file pleadings quickly. That legislation introduced
amendments to the Legal Profession Act imposing a duty
on legal practitioners not to provide legal services in
any claim for monetary compensation unless they reasonably
believed that the claim or defence has reasonable prospects
of success. Further the legislation prevents the filing
of originating process or a defence unless a legal practitioner
certifies that the claim or defence has reasonable prospects
of success. Failure to comply with these requirements
can be professional misconduct or unsatisfactory professional
conduct. It was suggested that legal practitioners will
be placed in a very difficult situation in a case which
might change the law.
5. Other
Business
It was agreed that at the next meeting on 5 December 2002
the frequency of future meetings should be discussed.
