Federal Court User Group Liaison
Committee - NSW - Minutes
06 June 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
Peter Johnstone, (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. Welcome
and introduction
Justice Branson welcomed Sylvia Fernandez and Ms Fernandez
gave a brief outline of her professional experience.
2. Minutes of meeting of 8 March 2002
The minutes, incorporating changes as suggested, circulated
prior to the meeting were adopted. Mr Mathieson and Mr
Johnstone reported that Mr Mathieson had been invited
to present a demonstration of the Court's electronic filing
and on-line directions hearing forum to the members of
the Law Society's Litigation Law and Practice Committee
at its next meeting. However, as it was hoped that Justice
Tamberlin might also participate in that demonstration
and he will be overseas on that date, it was agreed that
the presentation should be deferred until that Committee's
July meeting. Mr Johnstone also said it was proposed that
a similar demonstration be arranged for the Regional Presidents
of the Law Society as it is likely that these facilities
will be of interest to country practitioners. The possibility
of demonstrations for interested members of the Bar, the
large solicitor firms and practitioners in general was
also discussed. Mr Oakes agreed to contact Mr Mathieson
with suggestions for a demonstration to members of the
Bar.
3. Standing agenda items for
2002
No additional suggestions were received for standing agenda
items.
4. Duty/Corporations Judge
Arrangements
Mr Mathieson gave an overview of the discussion at the
meeting with the profession on 27 May 2002 in regard to
the new Duty/Corporations Judge Arrangements. He also
reported that earlier in the day the Court's District
Registrars had discussed the procedures adopted in each
District Registry for the issue of a Corporations Summons
for Examination compared to those procedures adopted in
the relevant Supreme Courts and it had been agreed to
propose to the Court's Practice and Procedure Committee
that the "delegation" of powers to Registrars
be amended to give Registrars additional procedural discretions.
If agreed to it is anticipated that greater consistency
can be achieved. There was discussion about the convenience
and efficiencies which could be achieved if practitioners
could communicate direct with Judges' Chambers by email,
but concerns were expressed that Judges' decision making
communication with a party via email would need to be
open and public and that there was also the potential
for abuse of ready email contact with chambers.
5. Individual Docket System
Justice Branson reported that Professor Kathy Mack of
Flinders University had been retained by the Court to
assist it in its review of the Individual Docket System.
There was brief discussion of the Law Council's Submission
to the Court of its views and experience about the operation
of the Individual Docket System and that the only significant
criticisms made related to Registries other than NSW.
6. Issues/Concerns/Suggestions
Mr Johnstone said that despite having made a broad enquiry
amongst litigation practitioners that he was in contact
with he had been unable to obtain any suggestions of issues
or concerns to raise at the meeting. Mr Oakes said he
was not aware of any issues or concerns to raise on behalf
of the Bar. Mr Johnstone said that he and one of his partners,
Mrs Anne Sullivan, are proposing to hold over coming months
discussions with litigation law firms across Sydney about
issues concerns and suggestions they have, not only in
relation to the Federal Court, but in respect of the courts
generally. This is hoped to better equip Law Society representatives
on the "user groups" now in place in all courts
to raise and discuss any issues identified authoritatively.
7. Interest Rates
Mr Johnstone said that he had been prompted to suggest
this item as a result of Chief Justice Spigelman having
written to the Law Society asking for its views on the
level of interest rates determined under the NSW
Supreme Court Act 1970 and the Law Society's concern
that there should be uniformity in interest rates across
all jurisdictions. There was consensus amongst all of
the participants that uniformity was desirable. The Judges
agreed to suggest to the Court's Chief Justice that he
raise the issue of achieving uniformity across the jurisdictions
at the Council of Chief Justices. The Judges also agreed
that they would try and exercise influence to keep rates
fixed by the Federal Court in line with those adopted
by the Supreme Court.
8. Feedback to the profession from the Court
Mr Johnstone said that the profession was anxious to receive
any feedback that the Court could provide on any practices
of concern to Judges.
Justice Branson asked for any feedback
which the profession could provide to the Judges on whether
costs in the Federal Magistrates Court were, as had been
assumed, cheaper than in the Federal Court. She noted
that in considering whether cases should be transferred
to the Federal Magistrates Court, Federal Court Judges
must take into account whether the case can be determined
at less costs. However, in a recent decision of the Federal
Magistrates Court (Pratt & Ors v Latta & Anor
[2002] FMCA 43), which considered the quantum of costs
to be allowed in a Trade Practices Act claim, the party
and party costs ordered to be paid were almost as much
as the judgment itself. Judges are anxious to obtain a
better idea as to the comparative costs between the two
courts.
Justice Branson suggested that as she
and other Judges had experienced situations where witnesses
had sworn affidavits but when being called to give oral
evidence had indicated that they would not take an oath
but rather that they should be affirmed. She referred
to Practice Notes 15 and 16 and suggested that practitioners
may need to be reminded of the content of these practice
notes. Justice Tamberlin referred to the information that
is on the Court's homepage under 'Community Information'
written specifically to assist witnesses as well as the
"virtual tour" of a courtroom which is also
available on the Court's website. He suggested that practitioners
might refer prospective witnesses to these as a way of
assisting them to prepare to give their evidence.
There was general discussion about
the information available on the Court's website. It was
suggest that it might be of assistance to practitioners
if there was information about the requirements of individual
Judges for cases in their dockets.
Justice Branson mentioned that there
was concern amongst some Judges in NSW that notices of
motion were being filed unnecessarily. She indicated that
most, if not all, NSW Judges took the view that ordinarily
a matter that could be dealt with on a directions hearing
(see Order 10 r1 of the FCRs) did not call for the filing
and serving of a notice of motion - provided that the
opposing party had been provided with proper notice, usually
by letter, of the order to be sought and the basis upon
which that order would be sought.
9. Other business
No other business was raised
10. Further
Meetings in 2002
The next meetings will be held on 5 September 2002 and
5 December 2002 at 4.30 pm on each occasion.
