Part 3: The Work of the Court in 2010-2011

Federal Court of Australia Annual Report 2011-2012

Introduction

The Federal Court has one key outcome identified for its work, which is, through its jurisdiction, to apply and uphold the rule of law to deliver remedies and enforce rights and, in so doing, contribute to the social and economic development and wellbeing of all Australians.

This Part reports on the Court's performance against this objective. In particular, it reports extensively on the Court's workload during the year, as well as its management of cases and performance against its stated workload goals. The Part also reports on aspects of the work undertaken by the Court to improve access to the Court for its users, including changes to its practices and procedures. Information about the Court's work with overseas courts is also covered.

Management of cases and deciding disputes

The following examines the Court's jurisdiction, management of cases, workload and use of assisted dispute resolution.

The Court's jurisdiction

The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. It also has jurisdiction to hear and determine any matter arising under the Constitution through the operation of s 39B of the Judiciary Act 1903.

Central to the Court's civil jurisdiction is s 39B(1A)(c) of the Judiciary Act. This jurisdiction includes cases created by federal statute, and extends to matters in which a federal issue is properly raised as part of a claim or of a defence and to matters where the subject matter in dispute owes its existence to a federal statute.

Cases arising under Part IV (restrictive trade practices) and Schedule 2 (the Australian Consumer Law) of the Competition and Consumer Act 2010 constitute a significant part of the workload of the Court. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. See Figure 6.8 on page 136 for comparative statistics regarding consumer law matters. Since late 2009 the Court has also had jurisdiction in relation to indictable offences for serious cartel conduct.act

In addition, the Court has jurisdiction under the Judiciary Act to hear applications for judicial review of decisions by officers of the Commonwealth. Many cases also arise under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), which provides for judicial review of most administrative decisions made under Commonwealth enactments on grounds relating to the legality, rather than the merits, of the decision. The Court hears appeals on questions of law from the Administrative Appeals Tribunal.

The Court hears taxation matters on appeal from the Administrative Appeals Tribunal. It also exercises a first instance jurisdiction to hear objections to decisions made by the Commissioner of Taxation. Figure 6.13 on page 141 shows the taxation matters filed over the last five years.

The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trademarks, designs and circuit layouts). All appeals in these cases, including appeals from the Supreme Courts, are to a full Federal Court. Figure 6.14 on page 142 shows the intellectual property matters filed over the last five years.

Another significant part of the Court's jurisdiction derives from the Native Title Act 1993. The Court has jurisdiction to hear and determine native title determination applications and to be responsible for their mediation, to hear and determine revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Court also hears appeals from the National Native Title Tribunal (NNTT) and matters filed under the ADJR Act involving native title. The Court's native title jurisdiction is discussed on page 30. Figure 6.11 on page 139 shows native title matters filed over the last five years.

A further important area of jurisdiction for the Court derives from the Admiralty Act 1988. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories to hear maritime claims under this Act. Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. During the reporting year the Court's Admiralty Marshals made nineteen arrests. See Figure 6.10 on page 138 for a comparison of Admiralty Act matters filed over the past five years.

The Court's jurisdiction under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers. The jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. See Figure 6.7 on page 135 for a comparison of corporations matters filed over the last five years.

The Court exercises jurisdiction under the Bankruptcy Act 1966. It has power to make sequestration (bankruptcy) orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. The Court's jurisdiction includes matters arising from the administration of bankrupt estates. See Figure 6.6 on page 134 for a comparison of bankruptcy matters filed over the last five years.

The Court has jurisdiction under the Fair Work Act 2009, Fair Work (Registered Organisations) Act 2009 and related industrial legislation (including matters to be determined under the Workplace Relations Act 1996 in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). Workplace relations and Fair Work matters filed over the last five years are shown in Figure 6.12 on page 140.

The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Magistrates Court in non-family law matters and from other courts exercising certain federal jurisdiction. In recent years a significant component of its appellate work has involved appeals from the Federal Magistrates Court concerning decisions under the Migration Act 1958. The Court's migration jurisdiction is discussed later in this Part on page 30. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island. The Court's appellate jurisdiction is discussed on page 28. Figure 6.15 on page 143 shows the appeals filed in the Court since 2007–08.

This summary refers only to some of the principal areas of the Court's work. Statutes under which the Court exercises jurisdiction in addition to the jurisdiction vested under the Constitution through s 39B of the Judiciary Act are listed in Appendix 5 on page 122.

Changes to the Court's jurisdiction in 2011–12

The Court's jurisdiction during the year was enlarged or otherwise affected by numerous statutes including:

  • Business Names Registration Act 2011
  • Clean Energy Act 2011
  • Coastal Trading (Revitalising Australian Shipping) Act 2012
  • Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012
  • National Vocational Education and Training Regulator Act 2011
  • Product Stewardship Act 2011
  • Tertiary Education Quality and Standards Agency Act 2011
  • Tobacco Plain Packaging Act 2011
  • Work Health and Safety Act 2011

Amendments to the Federal Court of Australia Act

During the reporting year the Federal Court of Australia Act was amended by two statutes.

The Acts Interpretation Amendment Act 2011 removed subsections 18M(2) and (3) of the Federal Court of Australia Act (which made provision about the maximum duration of any appointment of an Acting Registrar of the Court as well as the validity of acts done by a person purporting to act in the office of Registrar) and inserted, at the foot of subsection 18M(1), a note indicating that rules that apply to acting appointments are to be found in section 33A of the Acts Interpretation Act 1901. This amending Act also removed the note at the foot of subsection 23EG(4). That note had referred to subsection 46(3) of the Acts Interpretation Act which was repealed by the amending Act.

The Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 inserted into section 4 of the Federal Court of Australia Act a definition for 'CSC', being short for Commonwealth Superannuation Corporation. The term is defined to have the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. This amending Act also amended subsections 18K(4), (5), (6) and 37I (3), (4), (5) by replacing references to the Boards as defined under the Superannuation Act 1976, Superannuation Act 1990 and Superannuation Act 2005 respectively with references to CSC.

As mentioned in the 2009–10 Annual Report, the Trans-Tasman Proceedings Act 2010 and the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010, will implement the 'Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement' signed on 24 July 2008. The Trans-Tasman Proceedings Act and the Transitional Act have still not yet commenced.

Amendments to the Federal Court of Australia Regulations

During the reporting year there were no amendments to the Federal Court of Australia Regulations 2004. As a result of the Trans-Tasman Proceedings Legislation Amendment Regulation 2012 (No. 1), however, the Federal Court of Australia Regulations will be amended to include in Schedule 1 a new fee for filing an application to register a New Zealand judgment under the Trans-Tasman Proceedings Act 2010. These amendments will take effect only when that latter Act commences (see above).

The filing and other fees set out in Schedule 1 of the Federal Court of Australia Regulations will be increased in accordance with the formula for biennial adjustment set out in Schedule 2 of those Regulations. These changes will take effect from 1 July 2012.

Federal Court Rules and Practice Notes

The judges are responsible for making the Rules of Court under the Federal Court of Australia Act. The Rules provide the procedural framework within which matters are commenced and conducted in the Court. The Rules of Court are made as Commonwealth Statutory Legislative Instruments.

The Rules are kept under review. New and amending rules are made to ensure that the Court's procedures are current and responsive to the needs of modern litigation. They also provide the framework for new jurisdiction conferred upon the Court. A review of the Rules is often undertaken as a consequence of changes to the Court's practice and procedure described elsewhere in this report. Proposed amendments are discussed with the Law Council of Australia and other relevant organisations as considered appropriate.

As discussed in the 2010–11 Annual Report, the former Federal Court Rules were replaced by a modern set of rules written in plain English and gender neutral language, the Federal Court Rules 2011, which commenced on 1 August 2011. 

During the reporting year, no amendments were made to the Federal Court Rules 2011.

The forms under the previous Rules were repealed with the introduction of the Federal Court Rules 2011. Subrule 1.52(2) of the Federal Court Rules 2011 provides for the Chief Justice to approve a form for the purposes of a provision of these Rules. On 1 August 2011 the Chief Justice approved 143 forms for use under the new Rules. 

The Approved Forms are available on the Court's website at:
http://laredef.typepad.com/fedcourt/2011/07/federal-court-rules-summary-of-resources.html.

Practice Notes supplement the procedures set out in the Rules of Court and are issued by the Chief Justice upon the advice of the judges of the Court under the Court's inherent power to control its own processes. All Practice Notes in force before the commencement of the Federal Court Rules 2011 were revoked and re-issued on 1 August 2011. These re-issued Practice Notes reflect changes introduced by the new Rules as well as updated references to relevant rules in the Federal Court Rules 2011.

At the same time, the Chief Justice issued three new Practice Notes:

  • GEN 1 – Court sittings and registry hours
  • GEN 2 – Documents
  • GEN 3 – Use of Court forms.

Since the commencement of the Federal Court Rules 2011, the Chief Justice issued the following new or revised Practice Notes:

  • a revised Practice Note ARB 1 – Proceedings under the International Arbitration Act 1974. Issued on 24 May 2012.
  • a new Practice Note CM 18 – Title of proceedings for relief under section 39B of the Judiciary Act against Fair Work Australia. Issued on 21 September 2011.
  • a new Practice Note CM 19 – Appointment of a judge as an examiner to take evidence overseas. Issued on 21 September 2011.
  • a new Practice Note CM 20 – Ex parte applications for substituted service in bankruptcy proceedings and applications for summonses under s 81 Bankruptcy Act and ss 596BA and 596B Corporations Act. Issued on 9 December 2011.
  • a new Practice Note CM 21 – Title of proceedings for relief under s 39B of the Judiciary Act or s 5 Administrative Decisions (Judicial Review) Act against Commonwealth Tribunals. Issued on 17 February 2012.

In addition, Administrative Notices are issued by each District Registrar at the request, or with the agreement, of judges in the District Registry to which the notice relates. These notices deal with local matters, such as arrangements for the duty judge and the listing of particular types of matters (for example in a subpoena or corporations list).

All but two Administrative Notices (VIC 1 and WA 1) in force before the commencement of the Federal Court Rules 2011 were revoked and re-issued on 1 and 2 August 2011. These re-issued Administrative Notices reflect changes introduced by the new Rules as well as updated references to relevant rules in the Federal Court Rules 2011. 

The ACT District Registrar revised Administrative Notice ACT 1 – Administrative Arrangements. It was issued on 1 April 2012.

Practice Notes and Administrative Notices are available through District Registries and on the Court's website. They are also available in loose-leaf legal services.

There was one amendment to the Federal Court (Corporations) Rules 2000 commencing on
14 September 2011. It made minor changes as a consequence to the introduction of the Federal Court Rules 2011.

There was also one amendment to the Federal Court (Bankruptcy) Rules 2005 commencing on 1 January 2012. It made changes consequential upon the 2010 amendments to the Bankruptcy Act and Regulations as well as the introduction of the Federal Court Rules 2011.

Workload of the Federal Court and Federal Magistrates Court

The Court has concurrent jurisdiction with the Federal Magistrates Court in a number of areas of general federal law including bankruptcy, human rights, workplace relations and migration matters. The registries of the Federal Court provide registry services for the Federal Magistrates Court in its general federal law jurisdiction.

Figure 3.1 below shows a continued increase in the combined filings of the two courts since 2007–08.

In 2011–12, a total of 12 270 matters were filed in the two courts. In 1999–2000 there were 6276 filings in the two courts. The overall growth in the number of filings since 2000 has had a considerable impact on the Federal Court's registries, which process the documents filed for both courts and provide the administrative support for each matter to be heard and determined by the relevant Court

Figure 3.1 – Filings to 30 June 2012
Federal Court of Australia (FCA) and Federal Magistrates Court (FMC)

Line graph version:

Figure 3.1 - Filings to 30 June 2012 Federal Court of Australia (FCA) and Federal Magistrates Court (FMC)

Table version:

Court Year
07-08 08-09 09-10 10-11 11-12
FCA 4428 3862 3646 4942 5277
FMC 7003 6541 6908 6614 6993
FCA & FMC 11431 10403 10554 11556 12270

Case flow management of the Court's jurisdiction

The Court has adopted as one of its key case flow management principles the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court's Individual Docket System, and the implementation of practices and procedures designed to assist with the efficient disposition of cases according to law.

Under the Individual Docket System, a matter will usually stay with the same judge from commencement until disposition. This means a judge has greater familiarity with each case and leads to more efficient management of the proceeding.

Disposition of matters other than native title

In 1999–2000 the Court set a goal of eighteen months from commencement as the period within which it should dispose of at least eighty-five per cent of its cases (excluding native title cases). The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court's workload, and a decrease in the number of less complex matters. It is reviewed regularly by the Court in relation to workload and available resources. The Court's ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.

Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the eighteen month period, with only particularly large and/or difficult cases requiring more time. Indeed, many cases are urgent and need to be disposed of quickly after commencement. The Court's practice and procedure facilitates early disposition when necessary.

During the five year period from 1 July 2007 to 30 June 2012, ninety-one per cent of cases (excluding native title matters) were completed in less than eighteen months, eighty-six per cent in less than twelve months and seventy-three per cent in less than six months (see Figure 6.4 on page 132). Figure 6.5 on page 133 shows the percentage of cases (excluding native title matters) completed within eighteen months over the last five reporting years. The figure shows that in 2011–12, ninety-four per cent of cases were completed within eighteen months.

Delivery of judgments

In the reporting period, 2158 judgments were delivered. Of these, 740 judgments were delivered in appeals (both single judge and full court) and 1418 in first instance cases. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions. The nature of the Court's workload means that a substantial proportion of the matters coming before the Court will go to trial and the decision of the trial judge will be reserved at the conclusion of the trial. The judgment is delivered at a later date and is often referred to as a 'reserved judgment'. The nature of the Court's appellate work also means a substantial proportion of appeals require reserved judgments.

Appendix 8 on page 149 includes a summary of decisions of interest delivered during the year and illustrates the Court's varied jurisdiction.

The workload of the Court in its original jurisdiction

Incoming work

In the reporting year, 4663 cases were commenced in, or transferred to, the Court's original jurisdiction. See Table 6.2 on page 127.

Matters transferred to and from the Court

Matters may be remitted or transferred to the Court under:

  • Judiciary Act 1903, s 44
  • Cross-vesting Scheme Acts
  • Corporations Act 2001
  • Federal Magistrates Act 1999

During the reporting year, twenty-nine matters were remitted or transferred to the Court:

  • four from the High Court
  • eleven from the Federal Magistrates Court
  • twelve from the Supreme Courts
  • two from other courts

Matters may be transferred from the Court under:

  • Federal Court of Australia (Consequential Provisions) Act 1976
  • Jurisdiction of Courts (Cross-vesting) Act 1987
  • Administrative Decisions (Judicial Review) Act 1977
  • Bankruptcy Act 1966
  • Corporations Act 2001
  • Administrative Appeals Tribunal Act 1975

During 2011–12, sixteen matters were transferred from the Court:

  • fourteen to the Federal Magistrates Court
  • two to the Supreme Courts

Matters completed

Table 6.2 on page 127 shows a comparison of the number of matters commenced in the Court's original jurisdiction and the number completed. The number of matters completed during the reporting year was 5113 against 4019 in the previous reporting year. The increase in the number of matters completed during the year correlates to the increase in filings.

Current matters

The total number of current matters in the Court's original jurisdiction at the end of the reporting year was 2337 (see Table 6.2), compared with 2787 in 2010–11.

Age of pending workload

The comparative age of matters pending in the Court's original jurisdiction (against all major causes of action, other than native title matters) at 30 June 2012 is set out in Table 3.1 below.

Native title matters are not included in Table 3.1 because of their complexity, the role of the National Native Title Tribunal and the need to acknowledge regional priorities.

Table 3.1 – Age of current matters (excluding appeals and related actions and native title matters) by Cause of Action (CoA)

CoA

Under 6 months

6–12
months

12–18 months

18–24 
months

Over 24 months

Sub-Total

Administrative law

54

22

11

12

10

109

Admiralty

35

12

3

5

10

65

Bankruptcy

30

21

11

8

10

80

Competition law

2

3

1

3

14

23

Trade Practices

97

72

34

48

55

306

Corporations

368

96

32

47

55

598

Human rights

19

23

11

6

11

70

Workplace relations

2

5

3

1

10

21

Intellectual property

58

49

24

21

47

199

Migration

12

6

2

0

1

21

Miscellaneous

22

12

11

11

5

61

Taxation

54

27

38

43

34

196

Fair Work

64

31

23

4

4

126

Total

817

379

204

209

266

1875

% of Total

43.6%

20.2%

10.9%

11.1%

14.2%

100.0%

Running Total

817

1196

1400

1609

1875

Running %

43.6%

63.8%

74.7%

85.8%

100.0%

The Court experienced a thirty-six per cent increase in the number of matters over eighteen months old in 2011–12. Table 3.1 shows that at 30 June 2012 there were 475 first instance matters over 18 months old compared with 348 in 2011 (not including native title matters). Corporations, Consumer Law (misleading and deceptive conduct) and Intellectual Property make up a high proportion of the matters over twenty-four months old. The length of time it takes to finalise these matters is indicative of their complexity both for the parties in preparing the matters for hearing and the judge in hearing and deciding the case.

Table 3.2 – Age of current native title matters (excluding appeals)

Under 6 months

6–12
months

12–18 months

18–24 
months

Over 24 months

Sub-Total

Native title action

30

55

16

16

345

462

% of Total

6.5%

11.9%

3.5%

3.5%

74.7%

100.0%

Running Total

30

85

101

117

462

Running %

6.5%

18.4%

21.9%

25.3%

100.0%

There were 361 native title matters over eighteen months old at 30 June 2012 compared with 384 in 2011.

The Court will continue to focus on reducing its pending caseload and the number of matters over eighteen months old. A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 6 commencing on page 125.

The Court's appellate jurisdiction

The appellate workload of the Court constitutes a significant part of its overall workload. While most of the appeals arise from decisions of single judges of the Court or the Federal Magistrates Court, some are in relation to decisions by State and Territory courts exercising certain federal jurisdiction.

The number of appellate proceedings commenced in the Court is dependent on many factors including the number of first instance matters disposed of in a reporting year, the nature of matters filed in the Court and whether the jurisdiction of the Court is enhanced or reduced by legislative changes or decisions of the High Court of Australia on the constitutionality of legislation.

Subject to ss 25(1), (1AA) and (5) of the Federal Court Act, appeals from the Federal Magistrates Court, and courts of summary jurisdiction exercising federal jurisdiction, may be heard by a Full Court of the Federal Court or by a single judge in certain circumstances. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges.

The Court publishes details of the four scheduled Full Court and appellate sitting periods to be held in February, May, August and November of each year. Each sitting period is up to four weeks in duration. In the 2012 calendar year, Full Court and appellate sitting periods have been scheduled for Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart and Darwin. Once an appeal is ready to be heard, it can usually be listed for the next scheduled Full Court and appellate sittings in the capital city where the matter was heard at first instance.

When appeals are considered to be sufficiently urgent, the Court will convene a special sitting of a Full Court which may, if necessary and appropriate, use video conferencing facilities or hear the appeal in a capital city other than that in which the case was originally heard.

During the reporting year a Full Court was specially convened to enable the early hearing and disposition of urgent appeals on eleven occasions outside of the Full Court and appellate sitting periods. Hearing these appeals involved a total of sixteen days with three judges sitting on each day.

The appellate workload

During the reporting year 797 appellate proceedings were filed in the Court. They include appeals and related actions (614), cross appeals (11) or interlocutory applications made by notice of motion such as applications for security for costs in relation to an appeal, for a stay of an appeal, to vary or set aside orders or various other applications (172).

The Federal Magistrates Court is a significant source of appellate work accounting for forty-six per cent (449) of the total number of appeals and related actions, cross appeals and other appellate motions filed in 2011–12. The majority of these proceedings continue to be heard and determined by single judges exercising the Court's appellate jurisdiction. Further information on the source of appeals and related actions is set out in Figure 6.16 on page 144.

The above figures indicate that the Court's appellate workload in 2011–12 (797) decreased marginally, by approximately five per cent, when compared with 2010–11 (837).

During the reporting year the number of migration appeals and applications filed Increased by twenty-six per cent from 269 matters filed in 2010–11 to 338 in 2011–12. As shown by Table 3.4, this workload is subject to fluctuation due to changes that may occur in government policy or the impact of decisions of the High Court.

In the reporting year 914 appeals, cross appeals and appellate applications were finalised, including 378 interlocutory applications.

At 30 June 2012, 328 appeals, cross appeals and appellate applications were current including ninety-eight interlocutory applications. The comparative age of matters pending in the Court's appellate jurisdiction (including native title appeals) at 30 June 2012 is set out in Table 3.3 below.

At 30 June 2012 there were seven sets of appellate proceedings (involving fourteen cases) that are eighteen months or older. These cases are awaiting either the outcome of decisions in the High Court or the Federal Court, further action on the part of the parties or a negotiated outcome is being pursued in a number of cases including native title.

Table 3.3 – Age of current appeals, cross appeals and interlocutory appellate applications at 30 June 2012

Current Age

Under 6 months

6–12
months

12–18 months

18–24 
months

Over 24 months

Total

Appeals, cross appeals and interlocutory appellate applications

231

65

18

8

6

328

% of Total

70%

20%

6%

2%

2%

100.0%

Managing migration appeals

In 2011–12 twelve migration cases filed in the Court's appellate jurisdiction related to judgments of single judges of the Court exercising the Court's original jurisdiction and 326 migration cases related to judgments of the Federal Magistrates Court.

Table 3.4 below shows the number of appellate proceedings involving the Migration Act as a proportion of the Court's overall appellate workload since 2007–08. The Court continues to apply a number of procedures to streamline the preparation and conduct of these appeals and applications and to facilitate the expeditious management of the migration workload.

Initially, the Court applies systems to assist with identifying matters raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting in more timely and efficient disposal of matters. Then, all migration related appellate proceedings (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court and appellate sitting period. Fixing migration related appellate proceedings for hearing in the four scheduled sitting periods has provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same sitting period.

Where any migration related appellate proceeding requires an expedited hearing, the matter is allocated to a docket judge or duty judge (in accordance with local practice) or referred to a specially convened Full Court.

Table 3.4 – Appellate proceedings concerning decisions under the Migration Act as a proportion of all appellate proceedings (including cross appeals and interlocutory applications)

Appellate Proceedings

2007–08

2008–09

2009–10

2010–11

2011–12

Migration jurisdiction

1020

530

392

269

338

Per cent

67%

50%

46%

32%

43%

Total Appellate Proceedings

1526

1067

860

837

797

Information about the Court's time goal for the disposition of migration appeals can be found in Part 2 at page 16.

The Court's native title jurisdiction

Current and Future Workload

During the reporting period the Federal Court finalised seventy-nine native title determination applications (claimant). Of these thirty-seven were determined by consent after all parties reached agreement as to the existence of native title and forty-two claimant applications were otherwise finalised. The finalisations, other than determinations, are often by way of discontinuance and reflect agreements that have been reached as part of a non native title settlement. Sixty-five claimant applications were filed during the period.

The number of determinations has risen considerably since the introduction of the 2009 amendments increasing from eleven in 2008–09, to thirty-seven in 2011–12.

The creation of the Native Title Priority List is one example of the Court's response to its reinforced role arising from the 2009 amendments. At 1 July 2011 there were ninety-seven claimant applications on the priority list of which forty-four were finalised during the reporting period. A further seventy-two matters were added to the list and, as at 30 June 2012, it contained 123 current priority matters.

On 8 May 2012 the Commonwealth Attorney-General announced further institutional reforms affecting the administration and mediation of native title claims which will be introduced from 1 July 2012.

The effect of these reforms is that, from 1 July 2012, the Court will be wholly responsible for native title mediation. This includes mediation of native title claims as well as mediation of Indigenous Land Use Agreements (ILUA) related to the resolution of native title matters.

The stated intent of the mediation reform is to support the resolution of native title claims in a timely and effective way. The Government has made clear its expectation that most native title matters will cease to be mediated in the National Native Title Tribunal (NNTT) as of 1 July 2012; however, some matters, for example those that are close to resolution, may remain with the NNTT for mediation and related ILUA negotiations until finalised.

Following the Government's announcement the Court commenced a review of all matters in mediation, either through scheduled review hearings or case management conferences in particular matters or for particular regions, to ensure that the progress of existing mediations is maintained and where possible increased. The outcomes of these reviews will be actively monitored by the Court and reported on in future Annual Reports.

The Court is confident that its enhanced case management powers and the expertise of its judges and native title registrars will continue to contribute to the increase in the resolution of these claims and to achieving quality outcomes for all involved in native title in a timely manner. In addition, and in support of these reforms, a number of NNTT staff have transferred to the Court to assist with the mediation function.

It is recognised that native title matters are complex and fact intensive cases which raise novel questions of fact and, at times, law. However, this complexity cannot be permitted to be a reason for delay. The Court continues to apply its usual case management strategies to progress these cases. It has also developed a specialist practice based upon assisting the parties to clearly identify what is in dispute between them and why; to identify and creatively resolve blockages; and, most importantly, to work with the parties to create momentum in developing consent determinations that contain broad and effective solutions.

Although there continues to be some debate, the overriding view of the Court is that mediated outcomes are much more successful in the context of a case management timetable. Such a timetable, when well managed, does not divert resources from the capacity to mediate successfully. The benefit of such an approach is the resolution of the native title claim without the need for a hearing.

Assisted Dispute Resolution (ADR)

Referrals to ADR and Mediation

Assisted Dispute Resolution continues to be an important aspect of the work undertaken by the Court. Parties to civil proceedings must conduct those proceedings in a way that allows a just resolution of the dispute to be achieved as quickly, inexpensively and efficiently as possible (ss 37M and 37N of the Federal Court Act). ADR plays an essential role in assisting parties, consistent with that statutory obligation, in exploring resolution of the dispute in a timely manner. As part of its case management of any proceeding, the Court will examine the conduct of that proceeding and where it is appropriate, it will refer a dispute to a suitable ADR process, including an ADR process conducted by a registrar.

The ADR options currently available to the Court under the Federal Court Act and Federal Court Rules which are complemented by established case management practices of the Court include:

  • Mediation
  • Arbitration
  • Early neutral evaluation (ENE)
  • Experts' conferences
  • Court appointed experts
  • Case management conferences
  • Referral to a referee

Table 3.5 shows the numbers of ADR referrals across the Court by ADR type and registry. Mediation continues to be the most frequently used ADR referral made by judges of the Court. While referrals to mediation have decreased nationally by approximately four and half per cent from the previous reporting period, this trend is not uniform across the Court. Referrals to mediation have significantly increased in both Western Australia and Queensland.

It is important to note that the data collected does not reflect the full extent of ADR activities carried out as part of the Court's general case management. It is now common for parties to have engaged in private ADR processes either prior to filing in the Court or during the course of preparing a matter for hearing. Also, a judge may order that the experts proposed to be called in a matter confer to clarify areas of agreement and disagreement but may not require that process to take place under the supervision of a registrar. None of these activities are comprehensively captured by the statistics presented in this report.

Table 3.5 – ADR referrals in 2011–12 by type and Registry

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Mediation

163

247

86

50

18

11

8

583

Arbitration

ENE

Conference
of experts

3

5

1

1

10

Court appointed experts

Referee

TOTAL

163

247

89

55

1

19

11

8

593

Table 3.6 shows the referrals to mediation by matter type and registry. The information suggests that on a national basis consumer protection, corporations, intellectual property and industrial matters are the most frequently referred matters. This trend, however, is not reflected in every registry, eg In Western Australia, administrative law matters were the most frequently referred type of matter and industrial matters in Victoria.

Table 3.6 – Mediation referrals in 2011–12 by Cause of Action (CoA) and Registry

CoA

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Administrative law

2

18

2

1

23

Admiralty

6

2

8

Appeals

5

1

6

Bankruptcy

4

2

2

1

9

Corporations

16

38

14

4

3

4

3

82

Costs

29

29

Human rights

6

24

5

3

1

1

40

Industrial

20

77

10

15

3

2

127

Intellectual property

32

41

8

6

2

89

Migration

2

1

3

Native title

1

1

13

10

1

26

Tax

2

6

1

6

15

Consumer law

43

49

12

3

8

7

1

123

Competition law

2

1

3

TOTAL

163

247

86

50

18

11

8

583

Table 3.7 shows referrals to mediation as a percentage of total filings for each of the last five reporting years. The percentage of referrals has averaged twelve per cent for the last three reporting years. Total filings may, however, not give the clearest representation of the rate of referral to mediation. While all matters are capable under the Act and Rules of being referred to mediation, there are categories of matters whose features mean that it is generally accepted that ADR may not be appropriate. This is not to say that these matter types are never referred to mediation but rather that referral of these types of matters to mediation is very infrequent. These categories include migration appeals and company winding up applications dealt with by registrars. The term 'applicable filings' is used to refer to matters commonly considered for referral to mediation.

Table 3.7 – Mediation referrals as a proportion of total filings by financial year

2007–08

2008–09

2009–10

2010–11

2011–12

Referrals

379

522

476

610

583

Total filings

4428

3862

3646

4941

5277

Proportion (%)

9%

14%

13%

12%

11%

Table 3.8 shows the total matters filed and the number of filings once matters not commonly referred to mediation are excluded. While figures vary from registry to registry, applicable filings make up forty-six per cent of total filings nationally.

Table 3.8 – Total filings and suitable filings (excluding non-mediation CoAs, eg migration appeals) by Registry in 2011–12

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Applicable filings

1022

680

177

238

60

143

24

84

2428

Total filings

2217

1241

407

833

64

349

61

105

5277

Proportion (%)

46%

55%

43%

29%

94%

41%

39%

80%

46%

When considered as a proportion of applicable filings, the percentage of matters referred by judges to mediation nationally in the reporting year was twenty-four per cent (see Table 3.9). This figure is consistent with that recorded in the last reporting period. The real figure is likely to be higher as some registries only record referrals to mediation when the parties request that the mediation be conducted by a registrar. As not all parties seek a referral to mediation where they intend to use a private mediator, the percentage of applicable matters that have some form of ADR process applied is likely to be considerably higher than twenty-four per cent.

Table 3.9 – Mediation referrals as a proportion of applicable filings, by Registry in 2011–12

 

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Total referrals

163

247

86

50

18

11

8

583

Applicable filings

1022

680

177

238

60

143

24

84

2428

Proportion (%)

16%

35%

45%

17%

0%

13%

46%

9%

24%

Table 3.10 shows a breakdown of internal and external referrals to mediation by matter type. Internal and external referrals to mediation are presented as percentages of applicable matters in Table 3.11.

Table 3.10 – Internal and external mediation referrals by CoA in 2011–12

CoA

Internal

External

Administrative law

22

1

Admiralty

5

3

Appeals

6

Bankruptcy

8

1

Corporations

75

7

Costs

29

Human rights

40

Industrial

127

Intellectual property

77

12

Migration

2

1

Native title

17

9

Tax

13

2

Consumer law

103

20

Competition law

2

1

TOTAL

526

57

Table 3.11 – Internal and external mediation referrals as a proportion of applicable filings in 2011–12

 

Internal

External

Total referrals

526

57

Applicable filings

2428

2428

Percentage

22%

2%

Mediations held in the reporting period

Table 3.12 shows the outcomes of mediations conducted by Federal Court registrars by matter type during the reporting period. The percentage of these matters that are resolved either in full or in part is also shown. The overall percentage of matters referred to mediation by a registrar that are resolved either in full or in part is sixty-one per cent and is consistent with that reported for the 2010–11 period of fifty-nine per cent.

The figures in Table 3.12 do not necessarily reflect the outcomes of matters referred in the reporting period at Table 3.10. While a number of matters will have been referred to mediation and mediated during the same reporting period others referred late in the reporting period may be the subject of ongoing mediation. In addition, some matters mediated in this reporting period may have been referred in the previous reporting period.

Table 3.12 – Mediation outcomes by CoA in 2011–12

CoA

Resolved

Resolved
in part

Not
Resolved

TOTAL

Proportion resolved/in part (%)

Administrative law

5

2

7

71%

Admiralty

2

1

3

67%

Appeals

5

5

100%

Bankruptcy

2

4

6

33%

Corporations

29

3

21

53

60%

Costs

17

1

9

27

67%

Human rights

20

1

11

32

66%

Industrial

45

3

43

91

53%

Intellectual property

31

1

20

52

62%

Migration

5

1

6

83%

Native title

1

1

100%

Tax

13

4

17

76%

Consumer law

42

1

30

73

59%

Competition law

1

1

100%

TOTAL

218

10

146

374

61%

Table 3.13 shows the outcome of mediated matters by registry including the percentage of mediated matters resolved either in full or part.

Table 3.13 – Mediation outcomes by Registry in 2011–12

 

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Resolved

72

102

15

12

1

7

4

5

218

Resolved in part

1

5

2

1

1

10

Not resolved

36

79

8

12

3

5

3

146

TOTAL

109

186

23

26

1

10

10

9

374

Proportion resolved/in part (%)

67%

58%

65%

54%

100%

70%

50%

67%

61%

For the purposes of reporting, the Court records the number and outcome of mediations regardless of whether a matter is mediated over one or more days. Particularly complex matters may be mediated over more than one day.

Table 3.14 shows the number of mediations conducted by a registrar of the Court during the reporting year as a percentage of the applicable filings. The total percentage of mediations held as a proportion of applicable filings (fifteen per cent) is consistent with that of the previous reporting period. Again, the proportion of applicable filings mediated is less than the proportion of applicable filings referred to mediation (see Table 3.11). This may reflect the time difference between a referral and the mediation or the use by the parties of private mediators in respect of some referrals.

Table 3.14 – Mediations held as a proportion of applicable filings, by Registry in 2011–12

 

NSW

VIC

WA

QLD

NT

SA

TAS

ACT

TOTAL

Total held

109

186

23

26

1

10

10

9

374

Applicable filings

1022

680

177

238

60

143

24

84

2428

Proportion (%)

11%

27%

13%

11%

2%

7%

42%

11%

15%

Management of cases and deciding disputes by Tribunals

The Court provides operational support to the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal. This support includes the provision of registry services to accept and process documents, collect fees, list matters for hearings and otherwise assist the management and determination of proceedings. The Court also provides the infrastructure for tribunal hearings, including hearing rooms, furniture, equipment and transcript services.

A summary of the functions of each tribunal and the work undertaken by it during the reporting year is set out in Appendix 7 on page 145.

 

Improving access to the Court and contributing to the Australian Legal System

Introduction

The following section reports on the Court's work during the year to improve the operation and accessibility of the Court, including reforms to its practices and procedures, enhancements in the use of technology and improvements to the information about the Court and its work.

This section also reports on the Court's work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including the participation of judges in bodies such as the Australian Law Reform Commission, the Australian Institute of Judicial Administration and in other law reform and educational activities.

eServices strategy

The Court's eServices strategy aims to utilise technology to maximise the efficient management of cases, by increasing on-line accessibility for the legal community and members of the public, as well as assisting judges in their task of deciding cases according to law quickly, inexpensively and as efficiently as possible.

The Court has been progressively implementing a series of electronic initiatives to make use of technological opportunities to improve our services to Court users. The primary objective of the Court's eServices strategy is to create an environment where actions are commenced, case managed and heard by filing documents electronically. The result will be that the Court's official record will be an electronic court file.

Paper documents may be relied upon during case management, trials or appeals. But these documents will emanate from an electronic file and they will not form part of the Court Record. Over time it is likely that the extent of paper documents will reduce, with people becoming accustomed to relying on the information in electronic form.

During the reporting period the Court commenced development of a document management system which will form the basis of the electronic court file enabling the various electronic 'documents' to be stored and retrieved quickly. Extensive consultation about the electronic court file will be undertaken in the next reporting year.

Once the electronic court file is in place and the Court is satisfied that it is working as expected for the Court and the legal profession, the Court will move towards mandating the use of eLodgment (compulsory electronic filing). Measures will be put in place to ensure court users who may not have access to computers or the Internet are not disadvantaged by electronic filing. The Court will announce the date for the implementation of mandatory electronic filing with a reasonable lead time to enable everybody to be ready to participate.

While developing the electronic court file, the Court has continued to promote the use of its electronic filing application, eLodgment. There are currently over 3000 active users of eLodgment and over 38 000 documents were eLodged during the reporting period, equating to approximately thirty-five per cent of all documents filed in both the Federal Magistrates Court and the Federal Court.

In line with the take up of eLodgment, the year also saw increased activity on eCourtroom, resulting in 700 matters being commenced in eCourtroom during 2011–12. The Court has continued to enhance both eLodgment and eCourtroom. During the year eCourtroom version 2 was developed and implemented. It involved integration of eCourtroom with eLodgment to enable users to access both systems through a single sign on facility and navigate seamlessly between the different applications as required. Parties in eCourtroom now have a link to eLodgment to file documents. Additionally, eCourtroom includes a facility where parties can exchange correspondence and draft documents through a supplementary eCase Administration application.

The Court issued a Practice Note (CM 20) indicating that some matters dealt with by the Court's registrars such as new applications for orders for substituted service of bankruptcy notices or creditor's petitions or for issue of examination summonses under s 81 of the Bankruptcy Act or ss 596A and 596B of the Corporations Act will ordinarily be dealt with on-line by hearings in eCourtroom. It is expected that the use of eCourtroom for these matters will save time and money for all concerned as there will no longer be a requirement for attendance in a physical courtroom.

From 30 June 2012 parties to a matter who are registered users of the Commonwealth Courts Portal (CCP) have been able to use the CCP to view documents that have been eLodged in that matter. Confidential documents are not viewable and access is restricted to parties (or their legal representatives).

eCourtroom has also been integrated with the Court's case management system which has reduced data entry requirements and improved data integrity.

Practice and procedure reforms

The National Practice Committee is responsible for developing and refining the Court's practice and procedure. During the reporting year the Committee dealt with a range of matters including:

  • ongoing monitoring of the impact of increased filing, setting down and hearing fees introduced on 1 July 2010 and the consequences of changes to the fee waivers and exemptions and deferral of fees as well as the introduction of reduced fees which took effect from 1 November 2010
  • refinement of procedures for dealing with ex parte applications for substituted service in bankruptcy proceedings and applications for summonses under s 81 Bankruptcy Act and ss 596A and 596B Corporations Act
  • representative proceedings
  • enhancement of Australia's role in international arbitration
  • monitoring of the impact of changes to costs for work done and services provided by lawyers after 1 August 2011 implemented by the Federal Court Rules 2011
  • procedures for the appointment of a judge as examiner to take evidence overseas
  • monitoring of the impact of the Civil Dispute Resolution Act 2011
  • titles of proceedings for relief under s 39B Judiciary Act (or s 5 Administrative Decisions (Judicial Review) Act where relevant) against Fair Work Australia and Commonwealth Tribunals
  • taking of evidence abroad by video link
  • mediation and confidentiality
  • a Commonwealth statutory cause of action for serious invasion of privacy
  • consolidation of Commonwealth anti-discrimination laws
  • use of live text-based forms of communication from courtrooms
  • review of the Court's video link hearing arrangement guidelines.

The Committee also considered proposed legislative changes in the areas of national legal profession reform; implementation in the federal courts of the Standing Committee on Law and Justice (formerly Standing Committee of Attorneys-General) model laws for suppression and non-publication orders and for vexatious proceedings; and enhancing the Court's powers concerning discovery following the Australian Law Reform Commission's March 2011 report, 'Managing Discovery: Discovery of Documents in Federal Courts'.

Liaison with the Law Council of Australia

Members of the National Practice Committee met during the reporting year with the Law Council's Federal Court Liaison Committee to discuss matters concerning the Court's practice and procedure. These included:

  • impact of the Civil Dispute Resolution Act 2011
  • 2011 Case Management workshop and Handbook
  • Australian Law Reform Commission report, 'Managing Discovery: Discovery of Documents in Federal Courts'
  • impact of the 2010 fee increases/changes in the Federal Court
  • Federal Court Rules 2011, new forms and costs provisions
  • Joint Costs Advisory Committee 4th Inquiry report
  • changes to the structure of the federal courts and the creation of a new Military Court
  • representative proceedings
  • implementation of an electronic court file for Federal Court proceedings
  • developments with arrangements for providing assistance to self represented litigants in the Court
  • pilot in the Queensland District Registry of new case management arrangements for administrative law
  • mediation.

Assistance for self represented litigants

The Court delivers a wide range of services to self represented litigants. These services have been developed to meet the needs of self represented litigants for information and assistance concerning the Court's practice and procedure.

During the last reporting year the Court developed a proposal, in consultation with the Queensland Public Interest Law Clearing House (QPILCH), to pilot a program for self represented litigants in the Queensland District Registry. That consists of two elements:

1. The provision of legal advice and procedural assistance to self represented litigants in a range of matters in the Federal Court and bankruptcy proceedings in the Federal Magistrates Court. The advice will be provided by experienced volunteer lawyers.

2. Court Network volunteers – to provide emotional support for people attending court.

The pilot, run by QPILCH, commenced in July 2011 for an initial six month period but was extended for a further six months with funding provided by the Attorney-General's Department. An independent evaluation of the pilot is being carried out.

Tables 3.15, 3.16 and 3.17 provide some broad statistics about the number of self represented litigants appearing in the Court as applicants in a matter (respondents are not recorded). As the recording of self represented litigants is not a mandatory field in the Court's case management system statistics shown in the tables are indicative only.

In the reporting year, 314 people who commenced proceedings in the Court were identified as self represented. The majority were appellants in migration appeals.

The following tables provide some further information.

Table 3.15 – Actions commenced by Self Represented Litigants (SRLs) during 2011–12 by Registry

 

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

TOTAL

SRLs

8

174

1

27

13

0

61

30

314

%Total

3%

55%

0%

9%

4%

0%

19%

10%

100%

The 314 SRLs were applicants in 273 proceedings, as a proceeding can have more than one applicant. The following table breaks down these proceedings by major CoA.

Table 3.16 – Proceedings commenced by SRLs in 2011–12 by CoA

CoA 

Total Actions

% of Total

Administrative law

29

11%

 Admiralty

0

0%

Appeals and related actions

165

60%

Bankruptcy

13

5%

Bills of costs

0

0%

Competition law

0

0%

Consumer protection

8

3%

Corporations

16

6%

Cross claim

0

0%

Fair Work

11

4%

Human rights

13

5%

Industrial

1

0%

Intellectual property

1

0%

Migration

8

3%

Miscellaneous

3

1%

Native title

2

1%

Taxation

3

1%

Total

273

100%

Table 3.17 – Appeals commenced by SRLs in 2011–12 by type of appeal

CoA

Total Actions

% of Total

Administrative law

10

6%

Admiralty

1

1%

Bankruptcy

15

9%

Competition law

0

0%

Consumer protection

2

1%

Corporations

2

1%

Fair Work

5

3%

Human rights

1

1%

Industrial

0

0%

Intellectual property

1

1%

Migration

125

76%

Miscellaneous

2

1%

Taxation

1

1%

Totals

165

100%


Interpreters

The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person's inability to secure the services of an interpreter. It has therefore put in place a system to provide professional interpreter services to people who need those services but cannot afford to pay for them. In general, the Court's policy is to provide these services for litigants who are unrepresented and who do not have the financial means to purchase the services, and for litigants who are represented but are entitled to a reduction of payment of court fees, under the Federal Court of Australia Regulations (see below).

Reduced court fees

Under the Federal Court of Australia Regulations, fees are charged for commencing a proceeding and for setting a matter down for hearing (including a daily hearing fee). A setting down fee is also payable on some matters and the amount of the daily hearing fee will vary depending on the length of the hearing.

Some specific proceedings are exempt from all or some fees. These include:

  • human rights applications (other than the initial filing fee of $54)
  • some Fair Work applications (other than the initial filing fee of $64.20 [with effect from 1 July 2012])
  • appeals from a single judge to a Full Court in human rights and some Fair Work applications
  • setting-down and hearing fees in proceedings under the Bankruptcy Act 1966.

A person is entitled to apply for a 'reduction of payment of court fees – general' and pay only a 'one off' flat fee of $100 (or the full fee if it is less than $100) on the first occasion a full fee would otherwise be payable in a proceeding if that person:

  • has been granted Legal Aid
  • has been granted assistance by a registered body to bring proceedings in the Federal Court under Part 11 of the Native Title Act or have been granted funding to perform some functions of a representative body under section 203FE of that Act
  • is the holder of a health care card, a pensioner concession card or a Commonwealth seniors health card
  • is the holder of another card issued by the Department of Families, Housing, Community Services and Indigenous Affairs or the Department of Veterans' Affairs entitling them to Commonwealth health concessions
  • is an inmate of a prison or are otherwise lawfully detained
  • is under the age of 18 years
  • is in receipt of youth allowance or Austudy or is receiving a benefit under ABSTUDY.

Such a person, however, must pay fees for copying any court document other than for a first copy of the document or for a copy required for the preparation of appeal papers.

For proceedings commenced on or before 31 October 2010, if a person had been granted an exemption from payment of fees because that person fitted one of the categories mentioned above then that exemption continues and no further filing, setting down or hearing fees in those proceedings have to be paid unless that person's circumstances change, although fees for copying as above are payable.

A corporation which has been granted Legal Aid or similar assistance or funding under the Native Title Act has the same entitlements.

In addition, a Registrar or an authorised officer may approve payment of a minimum fee of $100 instead of the full fee which would otherwise be payable if, having regard to the income, day-to-day living expenses, liabilities and assets of the person or corporation, the Registrar or authorised person is satisfied that payment of the fee would cause financial hardship to the person or corporation liable for the fee.

More detailed information about the operation of the fee reductions is available on the Court's website www.fedcourt.gov.au.

Website

The website is integral to the Court's business and contains useful information about the Court and its work including practice and procedure guides, daily court lists, forms and fees and information for litigants and legal practitioners. The website is also a gateway to the Court's eServices.

A project to redesign the Court's website which commenced in 2010–11 has now progressed into the final phase, with delivery of a new site expected during the second half of 2012.

During the reporting year, the website was used extensively to communicate significant changes and events within the Court. This included:

  • Federal Court Rules revision: A presentation to the legal profession by Justice Lander was recorded and published on the website in the form of a podcast for the benefit of those unable to attend presentations. Additional material such as FAQs, and 'old-to new-Rules' navigational aids were also published within a sub-section of the site devoted to Rules updates.
  • New forms: As part of the Rules Revision project, 137 new forms were drafted. The forms were posted on the website prior to commencement, providing an opportunity for the legal profession to become familiar with the new forms, and also to update in-house precedents databases.
  • Court documents on-line: In June 2012, following an unprecedented number of public requests, the Court created an on-line file in Ashby v Commonwealth of Australia & Anor which contained all publicly available documents filed by the parties. This was the first time the Court had made available a Court file through its website.

Requests for information

Every year approximately 500 emails are received by the Court through the website's email account 'query@fedcourt.gov.au'. Frequent questions are received from students, researchers and members of the public who are interested in the role of the Court, its jurisdiction, practice and procedure and at times particular cases of interest. Staff ensure they respond to the queries in a comprehensive and timely fashion.

Some enquiries concern legal advice. Whilst court staff cannot provide legal advice, they endeavour to assist all enquirers by referring them to reliable sources of information on the Internet or to community organisations such as legal aid agencies and libraries.

Published information

The Court publishes a number of brochures on aspects of its work including: a guide for witnesses appearing in the Court; information on procedures in appeals, bankruptcy, native title and human rights cases; and information on the Court's use of mediation. These brochures are available from any of the Court's registries and are downloadable from the Court's website, www.fedcourt.gov.au.

Freedom of Information

Information Publication Scheme

Agencies subject to the Freedom of Information Act 1982 (FOI Act) are required to publish information to the public as part of the Information Publication Scheme (IPS). This requirement is in Part II of the FOI Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements. The Court's plan showing what information is published in accordance with the IPS requirements is accessible from the Court's website at http://www.fedcourt.gov.au/courtdocuments/foi.html.

The availability of some documents under the FOI Act will be affected by s 5 of that Act, which states that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature. Documents filed in Court proceedings are not of an administrative nature; however, they may be accessible by way of the Federal Court Rules.

Access to judgments

When a decision of the Court is delivered, a copy is made available to the parties as well as being published on the Internet at the AustLII website and therefore available to the media and the public. A link to this site is provided on the Court's website. Judgments of public interest are usually made available at the AustLII site within an hour of delivery and other judgments within a few days. The Court also provides electronic copies of judgments to legal publishers and other subscribers.

Information for the media and televised judgments

The Court's Director Public Information assists journalists throughout Australia covering cases and issues relating to its work. A priority is the timely provision of judgments and guidance on access to public material on court files.

During the reporting year mainstream television access was facilitated in Singtel Optus v National Rugby League and in the related appeal, National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd.

Justice Rares permitted a pool camera to record delivery of his judgment on 2 February 2012 while the Full Court – comprising Justices Finn, Emmett and Bennett – allowed a live feed of their judgment on 27 April 2012. Both cases prompted widespread coverage.

Just before the conclusion of the reporting period, the Court established an on-line file for access to publicly available documents in the matter of Ashby v Commonwealth of Australia & Anor in view of the widespread media and public interest.

Community relations

The Court engages in a wide range of activities with the legal profession, including regular user group meetings, as well as seminars and workshops on issues of practice and procedure in particular areas of the Court's jurisdiction. The aim of user groups is to provide a forum for Court representatives and the legal profession to discuss existing and emerging issues, provide feedback to the Court and act as a reference group.

The Court also engages in a range of strategies to enhance public understanding of its work, and the Court's registries are involved in educational activities with schools and universities and, on occasion, with community organisations which have an interest in the Court's work. The following highlights some of these activities during the year.

In 2011–12 judges and registrars in the New South Wales Registry hosted local user group meetings covering general Federal Court practice and procedure and the admiralty jurisdiction. A national tax user group chaired by Justice Edmonds was hosted by the New South Wales Registry and transmitted by videolink to user group meetings in the Court's other Registries. 

The Registry also held a number of seminars and lectures on constitutional law, practice and procedure, arbitration, and hosted law moots and bar reader courses. The District Registrar and Deputy District Registrars hosted an information session for lawyers new to practice and gave presentations to bankruptcy practitioners and the Maritime Law Association of Australia and New Zealand. 

The Court's facilities in Sydney were made available for a number of events during the reporting year including: the Society of Trust and Estate Practitioners Lecture; the University of New England Moot; the final of the Sydney University Public International Law Moot; the 2011 Tristan Jepson Memorial Foundation Annual Lecture; and the 2012 Whitmore Lecture.

The Victorian Registry hosted a Federal Court user group meeting and held an information session for the legal profession about the Federal Court Rules. The Court's facilities in Victoria were used for a Cartel Criminalisation lecture and a number of Moot Courts for the Melbourne, LaTrobe, Deakin, Monash and Victoria Universities and Moot Court Competitions for the Victorian Bar Readers.

During the reporting year the Victoria Registry participated in the Indigenous Clerkship Program run by the Victorian Bar and hosted a group of students undertaking architecture studies at the University of Melbourne. Activities with school students included a meeting between Justice Marshall and a group of secondary students and the placement of several work experience students in the Registry through the year.

The Queensland Registry hosted the following events for the legal profession during the reporting period: a native title forum chaired by Justice Dowsett; an administration law liaison meeting and the national tax user forum via video conference from New South Wales. 

The District Registrar gave a number of presentations including the 'Civil Dispute Resolution Act 2011 – how it impacts you?'; a presentation on ADR to the Joint Law Council of Australia/ATO Dispute Resolution Workshop; and a presentation on practice and procedure in the Federal Court. The District Registrar also attended the Queensland Insolvency Law Practitioners meetings.

In addition, the Queensland Registry hosted visits from Bond University and various secondary schools.

The Western Australian Registry hosted four intellectual property seminars and provided two information sessions for junior solicitors, para-legals and clerks. 

It hosted the grand final of the Murdoch Student Law Society Trial Advocacy Competition which was adjudicated by Justice Barker. The grand final of the University of Western Australia's International Humanitarian Law Mooting Competition was held in the Court and was adjudicated by Justice Gilmour. 

The Registry hosted a native title forum to mark the 20th Anniversary of the handing down of the Mabo judgment, which was organised by the Law Society of Western Australia. 

Judges and staff in South Australia hosted an information session for new legal practitioners, and Justice Besanko gave seminars on the corporations jurisdiction of the Court, and also participated in the South Australia Bar Readers course. Work experience was provided, there was an 'Open House' weekend of the Court building for the public to visit and the courtrooms were used for training of legal graduates for the Graduate Diploma of Legal Practice.

Judges and staff in the Australian Capital Territory held a general user group meeting for the profession. A Deputy District Registrar, presented at the Joint Law Council of Australia/ATO Dispute Resolution Workshop on ADR in the Court. The Tasmania Registry presented a seminar on the work of the Federal Court to the Young Lawyers committee and the District Registrar, on ADR in the Court at the Joint Law Council of Australia/ATO Dispute Resolution Workshop. The Registry held two general user group meetings and the Tasmanian Women's Lawyers committee attended a function at the Court hosted by Justice Marshall.

Complaints about the Court's processes

During the reporting year, ten complaints were made to the Court in relation to its procedures, rules, forms, timeliness or courtesy to users. This figure does not include complaints about the merits of a decision by a judge, which may only be dealt with by way of appeal.

Involvement in legal education programs and legal reform activities

The Court is an active supporter of legal education programs, both in Australia and overseas. The Court hosted in Sydney on 7 September 2011 the '17th Australasian Institute of Judicial Administration Oration in Judicial Administration' which was given by the Lord Chief Justice of England and Wales,
the Rt Hon the Lord Igor Judge.

During the reporting year the Chief Justice and many judges:

  • Presented papers, gave lectures and chaired sessions at judicial and other conferences, judicial administration meetings, continuing legal education courses and university law schools.
  • Participated in Bar reading courses, Law Society meetings and other public meetings.

An outline of the judges' work in this area is included in Appendix 9 on page 168.

National Standard on Judicial Education

In late 2010 a report entitled 'Review of the National Standard for Professional Development for Australian Judicial Officers' was prepared for the National Judicial College of Australia. The Court was invited and agreed to adopt a recommendation from that Report to include in the Court's Annual Report some information as to:

  • participation by members of the Court in judicial professional development activities
  • whether the proposed Standard for Professional Development was met during the year by the Court
  • if applicable, what prevented the Court meeting the Standard (such as judicial officers being unable to be released from court, lack of funding etc).

The Standard provides that judicial officers identify up to five days a year on which they could participate in professional development activities. During 2011–12 the Court offered the following activities:

  • Criminal Procedure Workshop from 29 June to 1 July 2011
  • a Judicial Education Day on Admiralty which included members of the Federal Magistrates Court and Federal Court Registrars on 25 August 2011
  • a half day education day on judgment writing and the 'Differences in Trial Approaches' was held on 29 March 2012. A further judicial education day on 'Personal Property Securities Reform' was held on 30 March 2012. Both events were scheduled to coincide with the Court's biannual judges' meeting.
  • judges were offered the opportunity to attend the Supreme Court and Federal Court Judges' Conference held in Melbourne on 21–25 January 2012.

In addition to the above, judges undertook other education activities through participation in seminars and conferences, details of which can be found in Appendix 9 on page 168. In the period 1 July 2011 to 30 June 2012 on average the Standard was met. There were a number of judges appointed during the course of the year such that it was not practical for the Standard to be met within the reporting period for those judges.

Work with international jurisdictions

Introduction

Through its International Programs Office, the Court collaborates with many neighbouring judiciaries across the Asia-Pacific region. In 2011–12, the Court coordinated a number of programs and hosted official visits from judicial and senior administrative staff from other countries.

Pacific Judicial Development Program

The Pacific Judicial Development Program is designed to strengthen governance and the rule of law across the Pacific region by enhancing the professional competence of judicial and court officers along with the processes and systems they use. To achieve this, the Court is consolidating and extending the delivery of high quality and practical judicial training and court development services, while enhancing the establishment, localisation and sustainability of those services across the region. The participating judiciaries are: Cook Islands, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu.

Following a needs assessment process the Court designed an eighteen month program of assistance focussing on the four pillars of justice: access to justice, governance, systems and processes and professional development projects. With the assistance of senior judges, staff, the program team and a number of external technical advisers engaged by the Court, the activities were implemented across all participating countries. 

Under each pillar, the following projects were completed.

1. Access to Justice – Customary Dispute Resolution Research Project: Research was undertaken in Samoa, the Federated States of Micronesia, and the Marshall Islands to learn about in/formal systems of justice, and how the two types of systems might interrelate. With this representative research an evidence-based strategy was developed which articulates the benefits to governance and the rule of law through stronger linkages between in/formal justice systems in the region. The strategy will be transposed into a plan and a suite of tools participating countries can use to promote synergy and harmony between in/formal systems of justice.

2. Governance – Leadership Project: The Court has worked closely with Chief Justices and other senior judicial stakeholders across the region, providing opportunities to meet to discuss experiences, common challenges and solutions. On behalf of Chief Justice Keane, Justice Mansfield attended the most recent meeting of Chief Justices in Apia, Samoa in March. The Codes of Judicial Conduct Project was also implemented under this pillar. Under this project, the Court worked with the judiciaries of Niue, Tuvalu and Kiribati to assist them to develop and promulgate Codes of Judicial Conduct based on internationally recognised principles. Also under this pillar, the Court undertook a Project to Institutionalise Regional Judicial Development. This comprised consulting stakeholders across Australia, New Zealand and the Pacific to develop appropriate options and strategies to sustainably program judicial reform and development in the future. 

3. Systems and Processes – Judicial Administration Diagnostic Project: Diagnoses of court administration needs were completed in the Solomon Islands, Vanuatu and Tonga to inform a regional strategy which identifies common areas for improvement. Based thereon, local development plans were devised and approved including strategies to address identified shortcomings. Also under this pillar the Court implemented a Judicial Monitoring and Evaluation Project. A framework and series of relevant indicators were developed and each participating country measured its performance. The regional report will be published in the coming months.

4. Professional Development – Significant resources have been dedicated to addressing the Pacific-perceived need for professional development opportunities. Given the majority of judicial officers across the region are lay, their need for substantive legal training is real, as is an ability to assess training needs and design and deliver training without waiting for external assistance. As a result, four 'orientation train-the-trainer' and two refresher 'train-the-trainer' programs have been conducted for sixty-five people, many using a Pacific-specific train-the-trainer program which the Court commissioned. To date, twenty-two participants have been certified competent to train anywhere in the Pacific and nineteen have been certified competent to deliver training locally. In addition thirty-one judicial and court officers have received orientation training which was co-facilitated by Justice Gray; and thirty-three have undertaken decision-making training. Finally, twelve of the fourteen participating countries applied for the small grant scheme managed by the Court to implement twenty-two local priority activities. 

Based on its performance and the achievement of positive outcomes for its counterparts, the donor, the New Zealand Ministry of Foreign Affairs and Trade, has extended the Program and the Court's management of it to 30 June 2013. The Court looks forward to continuing to work closely with its regional colleagues.

Pacific Judicial Capacity Building Program

In May 2012, representatives from eight Pacific Island Courts attended a three-day Commercial Case Management Workshop at the Court's Queensland Registry. The workshop was conducted by Justice Logan with contributions from Justice Barker. The workshop focussed on a range of difficulties identified by participating courts including; pre-trial management, case management techniques, and issues in evidence. Several legal and judicial experts from outside the Court also generously lent their time and expertise to the workshop.

In June 2012, the New South Wales Registry hosted judicial and court officers from nine Pacific courts at a three day Court Annexed Mediation Workshop. The workshop provided skills training, discussion and simulated scenarios and was led by Justice Jacobson, District Registrar Michael Wall and Deputy District Registrars, Jenny Hedge, Paddy Hannigan and Chuan Ng.

Importantly, both workshops provided the opportunity to network, discuss issues relevant to the Pacific region, share the lessons learnt and develop plans to strengthen the management of commercial cases and alternatives to litigation at home.

Supreme People's Court of Vietnam

The Supreme People's Court hosted Justices Lander and Gilmour in Hanoi during April 2012 to discuss the development of a system of precedent appropriate for a civil law tradition. A delegation from Vietnam will reciprocate with a visit to the Federal Court later this year to further those discussions. In addition, in collaboration with the Supreme People's Court, Justice Cowdroy conducted environmental law workshops in May 2012. The workshops were attended by 120 judges in Hanoi, Da Nang and Vung Tau where issues including treaty obligations, class actions and the enforcement of environmental regulations were discussed.

Supreme Court of Indonesia

As part of the ongoing relationship with the Supreme Court of Indonesia under the Memorandum of Understanding between the Courts, significant planning and other activities took place this year. In September 2011 a new tripartite Annex to the Memorandum was signed by the Supreme Court of Indonesia, the Federal Court and the Family Court of Australia. The Annex sets out five key areas of cooperation between the three Courts during 2011 and 2012 which are; access to justice, enhancing judicial capacity, business process re-engineering, public trust and confidence, court to court engagement, and court proceedings.

In May 2012, the Victorian Registry hosted three judges from the Supreme Court of Indonesia as part of an Internship Program. The judges who are involved in the judicial reform program of the Supreme Court, met with various members of the Victorian Registry to discuss docket and case management, appeals, registry structure and workload, courtroom technology, library and eServices. The judges also spent time in judges' chambers to understand case management processes at both trial and appellate levels. Both the visiting judges and those involved from the Court reported that the program was a valuable experience and provided them with the opportunity to learn more about each other's Courts. The Victorian Registry will host the judges again in October 2012 when they participate in the second part of the program.

Library Services to the South Pacific

The Federal Court continues to provide assistance to law libraries in the South Pacific with library staff coordinating shipments of books and law reports. The libraries assisted are the Supreme Court of Tonga including the Vava'u Court House, the Supreme Court of Vanuatu and the High Court of Kiribati. The Court periodically sends law librarians to these countries to assist with library maintenance, training and advice. A librarian visited Kiribati for this purpose for one week in May 2012.

Visitors to the Court

The Court facilitated a number of visits from international delegations or individuals interested in learning about the role of the Court and its systems and processes. During the year, the Court welcomed visitors from:

1. Hong Kong: thirty-six students from the Chinese University of Hong Kong visited the Court to gain knowledge and insight into Australia's legal system and its approach to international law.

2. Nigeria: Justice Adejumo, President of the Industrial Court of Nigeria, visited the Victorian Registry to meet other judges and accompany Justice North to a native title determination in western Victoria. In addition, a delegation of seventeen judges and four staff members of the National Judicial Council of Nigeria visited the Court as part of its research into performance management models.

3. New Caledonia: The Noumean Bar Association visited the New South Wales Registry to learn about the individual docket system, use of technology and to attend a hearing.

4. Papua New Guinea: The Solicitor-General and staff visited the Court to discuss methods of dealing with case backlog and the integration of alternative dispute resolution. 

5. China: The New South Wales and Victorian Registries hosted a delegation of six judges from various courts across China who preside over maritime law disputes. The purpose of the visit was to build on exchanges between the courts to date in relation to the interpretation of domestic and international maritime law and the management of maritime disputes. 

6. Japan: Two judges from the Supreme Court of Japan and the Tokyo District Court visited the New South Wales Registry under a partnership with the University of Sydney. The purpose of the visit was to provide an opportunity for the judges to observe proceedings. They met with Justices Emmett and Yates and with Registrars of the Court. In addition, two judges from the Tokyo High Court and an assistant judge from the Tokyo District Court visited the New South Wales Registry and met with Justice Jagot.

7. United States of America: Law students from the Santa Clara University School of Law visited the New South Wales Registry to learn more about Australia's legal system.

8. United Kingdom: On 7 September 2011, Chief Justice Keane welcomed the Lord Chief Justice of England and Wales, Lord Igor Judge who was giving the 2011 AIJA Oration 'Vulnerable Witnesses in the Administration of Criminal Justice' in the Court's facilities in Sydney.

9. New Zealand: Chief Justice Keane met with Dame Sian Elias, Chief Justice of New Zealand.

10. Timor-Leste: A delegation of five academics from the National University of Timor Lorosa'e (UNTL) visited the Victorian Registry. The delegation was hosted by Justice Marshall and was provided with an overview of the Court's role and jurisdiction.

11. Vietnam: A delegation, led by Chief Justice Binh, of seven judges and registrars from the Supreme People's Court of Vietnam visited the Court in Melbourne and Sydney. The delegation met with Chief Justice Keane and Justices Marshall, Jessup, Bromberg and Murphy and Registrar Soden and District Registrar Lagos. The discussion focused on how courts (including specialist courts) are structured and organised, how judges are selected, appointed and trained and how common law is developed.

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