Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia

The College of Law Judges' Series

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Case management in the Federal Court of Australia

1. Modern approaches to case management are driven by the need to reduce delay and contain costs. Modern courts are focussed on delivering justice efficiently. There are many reasons for this, not least the high cost of inefficiency. In civil proceedings there are statutory obligations to do so (in our court in Part VB of the Federal Court of Australia Act 1976 (Cth)).^[2] The obligation is a mutual one. Judges and registrars must exercise their powers and carry out their duties in the way that best promotes the quick, inexpensive and efficient disposition of disputes and parties and their lawyers must conduct themselves in a way which is consistent with that purpose. For parties and their lawyers, that means focussing on the real issues and doing so at a very early stage, putting fewer issues in dispute, undertaking no greater factual investigation than is genuinely required, and keeping interlocutory skirmishes to a minimum. Costs sanctions may be imposed on parties and practitioners who do not do so.

2. Case management is all about fulfilling the objective. Case management in the Federal Court, at least, is about doing so in a cooperative way, in partnership with the profession.

3. So what does this mean in practice? It involves:

• Thinking and planning from the outset;
• Exercising good judgment throughout;
• Always putting yourself in the judge's shoes - thinking about the case from the judge's perspective;
• Asking yourself: how do I present the case in a way that maximises my client's chances of success at the lowest cost to my client and that achieves a speedy outcome? That will include:
  • not pleading every conceivable cause of action or ground of appeal but selecting those which are sure or likely winners;
  • working out at the beginning what you have to prove to win your case or defeat your opponent's and how you can do it and do it most effectively and efficiently;
  • identifying the common ground and the real issues as soon as possible;
  • picking up the telephone and talking with your opponent or meeting face to face,
  • never sending off inflammatory correspondence and always eschewing ad hominem attacks;
  • trying to settle early or, at least to reduce the issues;
  • considering the most economical ways of presenting and managing evidence, including by:
    • agreeing on facts, making use of notices to admit where necessary;
    • considering whether it would be more economical to present the evidence by statement or affidavit than orally or vice versa;
    • instead of tendering voluminous or complex documents, making an application under s 50 of the Evidence Act 1995 (Cth) for the evidence to be given in summary form;
    • exchanging proofs of evidence at an early stage without the risk of them being used against the witness;
    • limiting the numbers of witnesses to a minimum; and
    • using joint reports and concurrent expert evidence.
  • keeping interlocutory disputes to a minimum;
  • where an interlocutory dispute is unavoidable, dispensing with the need for formal or any reasons;
  • presenting the case persuasively and in a way that has the best chance of producing a speedy judgment and reducing the prospect of an appeal. That will involve constantly asking yourself how do I make the judge's task easier. It means:
    • not deluging the judge with reams of unnecessary documents to which you may never refer (asking yourself: do I really need this?);
    • avoiding prolix written submissions, for example, not filing so-called outlines of submissions that run for a 100 or more pages;
    • making sure that the written submissions are presented clearly and succinctly, minimising the use of adjectives and adverbs, and through an agreed template setting out the issues you want the judge to determine and the facts you want her to find.

4. This all starts from the time you take instructions or receive the brief.

5. This sort of approach conforms to the Court's case management imperatives, which include:

• identifying and narrowing the issues in dispute as soon as possible;
• considering the use of, and timing for, alternative dispute resolution with respect to all or some of the issues;
• taking to trial only the critical matters in issue;
• considering how best to manage those issues - whether liability as a whole or particular issues should be determined at a separate hearing; whether some issues should be referred to a referee;
• considering the most suitable and the most efficient way to manage and present the evidence, for example, making or procuring admissions to obviate the need to adduce evidence, limiting the number of witnesses, and thinking about whether evidence should be given orally or by affidavit, or a combination thereof;
• eliminating or reducing the burden of discovery; and
• considering whether it is more appropriate that the case be heard in the Federal Circuit Court or the Full Court.

6. Practitioners are expected to confer before any hearing, including any case management hearing, with a view to reaching agreement on as many issues as possible. Before a case management hearing, the Court expects to receive draft proposed orders, preferably agreed orders, and preferably at the latest by the working day before the hearing, so as to enable, in appropriate cases, the Court to dispense altogether with the hearing.

7. Intensive case management has been a feature of the Federal Court for many years now, starting with the introduction of the docket system in 1997, described in a 2002 study conducted by the NSW Law and Justice Foundation as "one of the most distinctive and significant models of case management to be found in an Australian superior court".^[3] It was modelled on the system in the federal courts of the United States.^[4] Cases are not assigned to judges when they are ready for hearing or the day before the hearing as is commonplace in many other courts. Rather, they are allocated to a particular judge as soon as the originating process is filed.^[5] I will say something more about the docket system later. 

8. In the last twelve months there have been two significant developments in case management in the court.

9. The first is the full implementation nationally of the Court's Electronic Court File (ECF) system, which completely replaces the paper court files. The Court is the first in Australia to implement an ECF system. It is a global leader in the practice of managing electronic court documents.^[6]

10. The second significant development is the introduction of the National Court Framework - the NCF. The objects of the NCF are to organise and manage all the Court's work on a national basis, to organise its resources accordingly, to develop the confidence of the profession and the community, and to broaden the base of judicial knowledge and experience in the Court.

11. The key features of the NCF are:

• consistency and coherence in the Court's practices across the country in all areas of the Court's work;
• flexibility in the management of individual cases;
• greater efficiency in the processing of cases by more effective use of the Court's resources;
• better utilisation of specialised judicial and registrar skills; and
• enhancement of judicial skills.

12. The NCF replaces the former system of panels with eight national practice areas reflecting the bulk of the work that comes before the Court in its original jurisdiction.^[7]

• Administrative and Constitutional Law and Human Rights;
• Admiralty and Maritime;
• Commercial and Corporations;
• Criminal Cartel Trials;
• Employment and Industrial Relations;
• Intellectual Property;
• Native Title; and
• Taxation.

13. Each of these areas is managed by national co-ordinating judges, assisted by one or more co-ordinating judges for each registry.

14. The initiating party is to nominate the relevant NPA and, if relevant, sub-area.

15. There will be an initial case management hearing and a pre-trial case management hearing about three weeks before the scheduled trial date.

16. All of the current practice notes will be replaced. New practice notes have been prepared and a consultation process has been instituted. The Court has invited feedback from practitioners and the public on the content of the practice notes. Details of how you can get involved in the process are available on the Court's website. 

17. There will be a Central Practice Note, which sets out the basic principles of the NCF and case management in the Court under the NCF, specific practice notes for each NPA, and general practice notes for generic matters such as expert evidence, undertakings as to damages, and representative proceedings. It is envisaged that all other practice notes are to be read against this central practice note and no-one should start a case in the Court or take any step in a proceeding without first considering the principles set out in the Central Practice Note.

18. A National Operations Registrar has been appointed along with five other staff. The National Operations Manager is currently based in Melbourne. She assigns all new matters to judges when they are filed. She also oversees the workload and, after consultation, will transfer matters to the dockets of other judges to assist judges to manage their workloads. A central feature of the national allocation system is that every new matter to be heard by a judge is assessed before allocation according to its character or defining features. That includes its subject matter, complexity, and urgency.

19. There is a new duty system. Any matter which falls within the Commercial and Corporations National Practice Area goes to the Commercial and Corporations Duty Judge in that State. Urgent originating applications in the Admiralty and Maritime NPA will be heard by a judge in that NPA. All other matters are considered general duty matters and will be heard by the General Duty Judge in the relevant registry. If that judge is not a judge within the relevant NPA, the Court will arrange, where appropriate, to have the application referred to one who is.

20. The docket system, however, remains in place and is an integral feature of the management of work under the NCF. Cases will therefore be allocated in rotation, as before, but subject to matters such as availability of judges in the NPA in the registry where the originating application is filed, workload and other judicial commitments, or where the character of the matter calls for a different approach.

21. Before the introduction of the NCF, there was a fast-track procedure for commercial and intellectual property matters. With the NCF, procedures of this kind may be sought and invoked in any matter. Speaking of the obligations imposed by Pt IVB of the FCA Act, the draft Central Practice Note states that the parties and their lawyers have a statutory duty to co-operate with each other and the Court to identify the real issues in dispute early and to deal with those issues efficiently. To that end:

This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases conformably with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court Rules should never be viewed as inflexible. The overarching purpose includes the elimination of unnecessary "process-driven" costs. The Court expects parties and their lawyers to have in mind at all times the cost of each step in the proceeding, and whether it is necessary.

22. In other words, the Court will encourage innovative approaches to case management. One good example is provided in the draft Commercial and Corporations Practice Note which envisages the use in suitable cases of a so-called memorial style procedure similar to that used in international commercial arbitrations but managed within the framework of the FCA Act and Rules. That involves the parties filing their pleading-related material together with key documents and evidence at an early stage of the proceeding. There is no apparent reason why this kind of procedure could not be invoked in other cases where the evidence is readily available early in the litigation.

23. Despite the drive towards consistency in practice behind the NCF, it is inevitable that there will be some differences in individual practices of judges. A good practitioner will find out in advance what the docket judge's practices and preferences are. Some judges distribute advice to practitioners once the case comes into the judges' dockets. As soon as your case is allocated to a docket you should make it your business to find out what the judge requires.

24. Most judges encourage practitioners to contact their chambers when issues need to be ventilated in court for which no provision has been made or when the case has settled or is likely to. It is important to remember two things, however. First, communications with judges' chambers should be confined to routine procedural, administrative or practical matters and be uncontroversial. Second, save in the case of a proposed ex parte application, ex parte communications with a judge's chambers are improper;^[8] any approach to chambers can only be made after the other parties have been notified and all emails and letters to chambers must be copied to all other parties. Griffiths J presented an excellent paper in 2012 to the Law Society's Ethics Forum which referred to this and some other ethical issues which can arise from the operation of the docket system. I commend it to you. A copy may be found on the Court's website.^[9]

25. One of the issues his Honour referred to was the problem of dealing with self-represented litigants. In those cases, it is desirable that all communications be made through the registry and not with the judge's chambers. The judge's chambers should not be copied in. The registry will notify chambers.

Pleadings

26. And now to pleadings. What I am about to say relates to the general run of proceedings and not to special classes such as applications for judicial review, applications for native title, fair work, human rights or intellectual property matters and, with one exception, appeals heard in the original jurisdiction of the Court. Those matters are dealt with separately in Chapter 3 of the Federal Court Rules 2011 (Cth). The pleading requirements in the original jurisdiction are contained in Chapter 2 and on appeal in Chapter 4.

27. I will examine pleadings at both trial and on appeal. I will deal with matters of general principle as well as the Court rules. I aim to provide some practical assistance.

28. In the Federal Court a civil proceeding does not start with the filing of a statement of claim. The Rules require that an originating application be filed which must state the relief claimed, where appropriate the Act and the provision under which the relief is claimed, and, in certain cases, precise details of the orders sought.^[10] The originating application must be accompanied by a statement of claim only where the relief sought includes damages. Otherwise, an affidavit will suffice, but the affidavit must state the material facts necessary to give the respondent fair notice of the case the respondent will be asked to meet.^[11]

29. The Court has power to dispense with pleadings, indeed to dispense with compliance with any of the rules^[12] and will happily do so in an appropriate case. The draft Commercial and Corporations NCF Practice Note, for example, envisages that in most matters in this area a concise statement will be filed in support of an originating application in lieu of an affidavit or statement of claim. The concise statement must not exceed five pages and will summarise:

• the important facts giving rise to the claim;
• the relief sought and from whom;
• the primary legal grounds (causes of action) for the relief sought;
• the alleged harm suffered by the applicant, including where possible, a conservative and realistic estimate or range of the loss and damage.

30. I expect, however, that in many cases pleadings will continue to be necessary.

General observations

31. Let me make some general observations.

32. First, take nothing for granted. Before drafting any document, read the relevant rules and the practice notes and before finalising it, make sure that it complies with what is required. Even if you think you know the relevant rules or are familiar with the practice notes, they might have been amended since you last had occasion to look at them. If you have never picked up a pleading textbook starting with Bullen & Leake (now Bullen & Leake & Jacob's Precedents of Pleadings), you had better start now.

33. Second, be mindful of your professional obligations.

34. You should only plead an allegation which has reasonable prospects of success. If you do not, not only do you leave your client vulnerable to a strike out application or, worse still, an application for summary judgment, but costs penalties are likely to be imposed and you may have to pay them personally. If the action includes a claim for damages, providing legal services on a claim or defence which does not have reasonable prospects of success may contravene the Legal Profession Uniform Law Application Act 2015 (NSW) and amount to unsatisfactory professional conduct or professional misconduct.^[13]

35. Furthermore, you must make sure that the allegations you plead are reasonably justified by the available material, are appropriate for the robust advancement of the client's case on its merits, and are not made principally in order to harass or embarrass a person or to gain some collateral advantage.^[14] You may not allege any matter of fact amounting to criminality, fraud or other serious misconduct unless the available material by which the allegation could be supported provides a proper basis for it, the client is informed of the seriousness of such an allegation and the possible consequences if it is not made out AND yet, knowing that, has given you instructions to make it.^[15] You might also poison the well.

36. Third, if you have to amend, apply sooner rather than later. It may also cost you (and in more ways than one). Remember what happened to the ANU in Aon Risk Services Australia Limited v Australian National University?^[16] If your case turns on expert evidence, confer with the expert before - not after - your client's pleading has been filed. Otherwise, you may find that the case you have pleaded is a loser or you have missed the best point.

37. Nothing that I say, however, should be taken as an indication that strict compliance with the pleading rules will invariably lead to a successful strike out or summary dismissal application. These days the courts do not generally take an unduly technical approach to pleadings. As Martin CJ observed in Barclay v Mowlem Construction Ltd v Dampier Port Authority:^[17]

6 [Contemporary case management techniques including preparation and exchange of witness statements and trial bundles] leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and appraising the parties to the proceedings of the case that has to be met.

7 In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

8 Most pleadings in complex cases … can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

The importance of good pleadings

38. That does not mean that good pleadings do not matter.

39. Pleadings are the primary means by which the parties advocate their cases. A good advocate should therefore be a good pleader. The first documents the judge will read when she or he opens the file are the originating application and the pleadings. First impressions count. Well drafted pleadings will immediately dispose the judge towards your case. Badly drafted pleadings will have the opposite effect. In his customarily eloquent way, Perram J once described both the existing and the proposed forms of pleading as "well below the Plimsoll line of competence which [the] Court is entitled to expect of parties with representation".^[18] His Honour continued:

The pleading, in particular, is filled with irrelevancies and allegations which reveal the absence either of comprehension or application or both. The task of identifying what, if any, case the applicants have has been very much hampered by the pleadings put forward on their behalf, which is, of course, precisely the opposite effect which pleadings are intended to achieve … Anyone who seeks to wrestle with the mysteries of the proposed further amended statement of claim will see that it is more akin to a Chinese puzzle box than a succinct statement of the applicants' cases.^[19]

40. In that case his Honour said that, despite his general reluctance to order the lawyers pay the costs, "[t]here are cases … where what is done constitutes such a forensic escapade that the interests of justice require a more severe approach".^[20]

The role of pleadings

41. In brief, the purpose of pleadings is to set the agenda - to define the issues so that the opposing parties can know the case they have to meet and the issues the court will be required to decide. As Perram J put it:

Pleadings are succinct statements of a case designed to inform court and foe alike of what is said and how it will be put. Properly done, they promote the identification of the issues in dispute and, by so doing, their more prompt and efficient resolution. So much has always been so. The enactment of provisions such as s 37M of the Federal Court of Australia Act 1976 (Cth) with its injunction to the expeditious and inexpensive resolution of proceedings gives added impetus to these considerations. It follows that a pleading which departs from its principal purpose of affording procedural fairness to the opposing party is a pleading which confounds the ends of justice. It engenders expense, delay and the wastage of public resources; it is not to be countenanced.^[21] 

42. Pleadings define the issues and narrow the scope of any appeal. They affect the evidence that may be adduced. They also affect discovery, interrogatories, and the issue of subpoenas.

Starting a case in the Federal Court

43. Now let me turn to pleading in the Federal Court. For the most part, the pleading rules in the Federal Court are the same as in the State courts, but there are some differences.

44. Cases in the Federal Court are begun by filing an originating application.^[22] The originating application is to contain the precise relief sought and, if the relief is conferred by statute, the provision under which the relief is claimed.^[23] Strictly speaking, an originating application is not a pleading.

45. If the applicant claims damages, then the originating application must be accompanied by a statement of claim. Otherwise it may be accompanied either by a statement of claim or an affidavit. Even if the rules do not require a statement of claim to be filed, the Court may direct that it be done.

46. Pleadings are covered by Pt 16 of the Rules. Time does not permit me to deal at any length with the requirements. I want to emphasise, however, a number of key features.

47. First, brevity. A pleading must be as brief as the nature of the case permits.^[24]

48. Second, it must identify the issues the party wants the Court to resolve.^[25]

49. Third, it must state the material facts necessary to give the opposing party fair notice of the case against it but not the evidence by which those facts are to be proved.^[26]

50. Fourth, it must state the provisions of any statute relied on.^[27]

51. And fifth, it must state the specific relief sought.^[28]

52. A pleading may raise a point of law,^[29] but, generally speaking questions of law or legal conclusions should not be pleaded. The prohibition on pleading matters of law is designed to stop parties pleading legal conclusions without also pleading the facts that give rise to those conclusions,^[30] a principle all too often honoured in the breach.

53. If an affidavit is filed, it must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.^[31]

54. I am often struck by the apparent ignorance of the basic principle that the pleading must state the material facts and not the evidence by which those facts are to be proved. As Rares and White JJ put it in their 2012 paper in this series, the term "material facts" is not synonymous with "all the circumstances".^[32] A fact is material if it is essential to the cause of action. The expression refers to the fact or combination of facts that give rise to a right to sue.^[33] If a material fact is omitted, then the pleading is bad and is liable to be struck out.^[34] A pleading that omits a material fact cannot be cured by the provision of particulars.

55. For this reason it is critical to work out what are the elements of the cause of action and make sure they are pleaded.

56. I also want to emphasise the importance of brevity. In the same way that a succinct argument is always better than a long-winded one, brevity is critical. Surprising though this may be to some, pleading a case involves exercising judgement. It is not good pleading to think of every conceivable cause of action that could arise from the facts and plead it. If, however, the pleading is necessarily lengthy, make it easier to navigate by using headings.

57. And another thing. Try to avoid spelling and grammatical errors. They are distracting.

What should be excluded from a pleading?

58. First, evidence. In contrast to the UCPR,^[35] the Federal Court Rules do not contain an express prohibition on pleading evidence. But the law is that it is facts and not evidence that must be pleaded.

59. It follows that, unless the words of a conversation are material to the pleading, a pleading that refers to spoken words need only state the effect of words, rather than the words themselves. Similarly, a pleading that refers to a document need only state the effect of the document.^[36]

60. Second, a pleading must not plead inconsistent allegations of fact or inconsistent grounds or claims except as alternatives.^[37] 

61. Third, a pleading must not ask for relief that is not claimed in the originating application.^[38]

62. Fourth, and importantly, a pleading must not:

• contain any scandalous, frivolous or vexatious material;
• be evasive or ambiguous;
• be likely to cause prejudice, embarrassment or delay in the proceeding;
• fail to disclose a reasonable cause of action, or defence or other case appropriate to the nature of the pleading;
• otherwise be an abuse of process of the Court.^[39]

63. A pleading which answers any of these descriptions is liable to be struck out on the application of a party or at the initiative of the Court.^[40] It might provoke an application for summary judgment.^[41] It might also expose the lawyer who drafted or settled the pleading to professional embarrassment, a personal costs order, and professional disciplinary action. One recent example of this can be found in Rares J's judgment in the Ashby v Slipper case.^[42] In that case, the Commonwealth and Mr Slipper applied for summary judgment or a permanent stay. One of the difficulties for Mr Ashby and his solicitor was that allegations were made of impropriety for which the Court found there was no evidence and which were then abandoned. One of those allegations charged that the Commonwealth became aware that Mr Slipper had formed a sexual relationship with a young male member of staff (not Mr Ashby) because another member of staff had reported seeing a video of certain sexual activities between them (described in the originating application). There was no dispute that the relationship was consensual.

64. Quite apart from the peculiarity that the allegations were made in the originating application, which is meant to include only the relief sought, it should be readily apparent that they were not material facts. At best they might have been a summary of evidence of a circumstantial nature that Mr Ashby intended to call.

65. The making of those allegations was found to be baseless, lacking any legitimate forensic purpose, scandalous, oppressive, vexatious, and an abuse of the solicitor's professional obligations to the Court. Whether or not the Full Court finds error, the decision is likely to have caused Mr Ashby's solicitor a great deal of professional embarrassment, so much so that he sought leave to appeal the decision himself.

Responding to a pleading

66. Plainly these rules apply to all parties but there are additional obligations on those responding to a pleading.

67. First, every allegation of fact must be specifically admitted or denied. If not denied, the allegation is taken to be admitted unless the party states that the party does not know and therefore cannot admit the fact, in which case the fact is taken to be denied.^[43]

68. Second, some matters must be expressly pleaded. Some of them are expressly referred to in r 16.08.

69. Some of the matters not specifically mentioned in the rules which should be specifically pleaded are matters upon which the pleading party bears the onus of proof, such as fraud, contributory negligence, a failure to mitigate damages,^[44] an allegation of fundamental breach^[45] and foreign law.^[46]

Particulars

70. Time does not permit me to deal with particulars in any detail. It is sufficient for me to stress a few points.

71. First, the purpose of particulars is to control the generality of the pleadings and to limit the scope of the evidence that can be led,^[47] not to expand the case.

72. Second, particulars are no substitute for, and cannot cure, a failure to plead a material fact.

73. Third, mere statements of evidence have no place in particulars.^[48] There seems to be a fashion for listing as a particular the document in which the evidence to support the pleaded allegation can be found. It is a practice I would generally deprecate. The particulars should provide information, not the source of the information or, at least, not just the source.

74. Fourth, you do not plead to particulars. The particulars are taken to be covered by implication.^[49]

75. Fifth, particulars are not always required but in some cases they must be given. Particulars must be given, for example, of the facts underpinning allegations of fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default, undue influence^[50] or a condition of mind (including knowledge and fraudulent intent)^[51] and the facts upon which a party relies to claim exemplary damages.^[52]

The notice of appeal 

76. Everything I have said to date is concerned with pleading cases at first instance. The final subject I want to cover is pleading in appeals.

77. Two matters arise here.

78. The first is to identify the scope of the appeal. Is the appeal in the nature of a rehearing where error must be shown or is it a hearing de novo? Is the appeal confined to a question or error of law? If so, what is a question of law? What distinguishes an error of law from an error of fact? 

79. The second is what should go into a notice of appeal.

80. I will begin with the second.

81. Rule 36.01(2) of the Federal Court Rules stipulates what must be included in the notice of appeal. One of the requirements is that the appellant state "briefly, but specifically, the grounds relied on in support of the appeal". It is not uncommon for a notice of appeal to fail to meet this requirement.

82. From time to time this deficiency has been the focus of adverse judicial comment. In Dynasty Pty Ltd v Coombs (1995) 59 FCR 122, for example, the Full Federal Court described as "inappropriate" and "unhelpful" a notice of appeal that extended to over 40 pages containing 127 paragraphs and multiple subparagraphs.^[53] In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, Weinberg and Dowsett JJ, with whom Branson J agreed, were very critical of the notice of appeal, describing it as "discursive (to say the least) and argumentative".^[54] At the court's request further, more limited grounds were submitted and 16 grounds were abandoned. Still, their Honours remained critical of the appellants (and by inference their lawyers), saying:

Notwithstanding the appellants' very welcome abandonment of at least some of the grounds contained in the notice of appeal, it remains very difficult to identify the discrete issues which arise for determination. The so-called grounds remain a confused mixture of challenges to ultimate findings of fact and to intermediate findings, arguments as to whether or not there is evidence to support particular findings and disputes about the weight allegedly attributed by his Honour to various aspects of the evidence. Some of the grounds of appeal purport to refer to findings which his Honour may or may not have made, using the formula "if his Honour did so find". This approach to the drafting of a notice of appeal is quite unsatisfactory. It creates the impression that the appellants are, in reality, inviting the court to rehear the matter ab initio. Indeed, much of what was said in oral argument suggested as much. It is unrealistic to expect an appellate court to revisit the evidence at large as is invited by the grounds of appeal, even in their ultimate, narrower form.^[55]

83. In the same case Branson J observed that "[a] useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions…is almost certainly a notice of appeal which fails to comply with [the equivalent of r 36.01(2)(c) of the Federal Court Rules 2011 (Cth)]".^[56]

84. Similar deprecatory comments were made in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd.^[57]

85. Remember this. A judge will not look at a prolix notice of appeal and think the primary judge stuffed up the case. Rather, generally speaking the judge's instinctive reaction will be that the practitioner who drafted or settled the document and the one who failed to jettison it is incompetent and/or lacks judgment. That might give the judge the impression that the appeal is without merit. That is not a good start.

86. Problems of pleading are commonplace in appeals confined to questions of law. In such a case, where a notice of appeal does not raise a question of law the proceeding will be liable to be struck out as not being competent, either on the application of the respondent or at the initiative of the judge.

87. Appeals from the Administrative Appeals Tribunal come to the Federal Court in its original, not appellate, jurisdiction. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a party may appeal to the Federal Court on a question of law.^[58] Gummow J observed in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation that "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself".^[59]  For this reason it is very important that the question or questions of law be stated with precision. Indeed, the rules require it.^[60] To state, for example, that the tribunal has erred in law in making a particular finding of fact is not to state a question of law.^[61] Nor is it good enough to state the question as "whether the tribunal erred in law". As Ryan J said in Australian Telecommunications Corporation v Lambroglou,^[62] in a passage approved by the Full Court in Birdseye v Australian Securities and Investments Commission,^[63]and again by a 5-member Full Court in Haritos v Commissioner of Taxation[64] that is merely question-begging. Form will not prevail over substance.^[65] That said, if there is a question of law raised by the notice of appeal, the Court will have jurisdiction, though it may require, where it is in the interests of justice to do so, to permit or direct the notice of appeal to be amended. Furthermore, the Full Court said in Haritos that this may be done by the appellate court even if the question of law was not identified before the primary judge.^[66]

88. But to ask merely whether the tribunal erred in law in coming to a particular conclusion will not usually be a question of law. For example, in an appeal from a decision of the AAT to refuse a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), a question framed in these terms: - did the tribunal err in law in finding that the injury was not suffered in the course of the applicant's employment? - is not a question of law. The question of law might be "what are the legal limits of the course of the employment as that expression is used in the Safety, Rehabilitation and Compensation Act 1988 (Cth)?" Or it might be "was it was reasonably open to the tribunal to find on the facts that the applicant's injury was not suffered in the course of her employment".^[67] Alternatively, the question might be drafted more specifically as it was in PVYW v Comcare (No 2) (2012) 291 ALR 302; [2012] FCA 395:

2.1 On the correct construction of section 5A of the Act, is an injury suffered by an employee properly found to arise "in the course of the employee's employment" where the following three criteria are satisfied:

(a) the injury occurs during the course of a business trip involving an overnight stay in a motel room which is properly described as "an interval or interlude within an overall period or episode of work";

(b) the activity giving rise to the injury suffered by the employee is not intentionally self-inflicted, and does not otherwise involve serious or wilful misconduct on the part of the employee; and

(c) the employee is, at the time of the injury, spending time at "a particular place" (namely the motel room booked by the employer), at which the employee has been induced or encouraged by his or her employer to spend time during the interval or interlude?

2.2 If the three criteria in paragraph 2.1 are satisfied, is it also necessary that the employee should be engaged, at the precise time of the injury, in a specific activity which is

(a) related to the general nature, terms and circumstances of the employee's employment; or

(b) expressly or impliedly induced or encouraged by the employer; or

(c) known to, or reasonably expected by, the employer, and not objected to?

2.3 If satisfaction of the criteria in paragraph 2.1 is not sufficient in itself to enable finding that an injury arises "in the course of the employee's employment", but additional satisfaction of the criterion in paragraph 2.2(c) would properly result in a finding that an injury arises "in the course of the employee's employment", is it sufficient to satisfy the criterion in paragraph 2.2(c) if –

(a) the employee was engaged at the time of the injury in an ordinary incident of life commonly undertaken in a motel room at night, namely lawful sexual activity; and

(b) the employee had not been specifically warned beforehand by the employer that engaging in lawful sexual activity during the interval or interlude in the period of employment was not sanctioned by the employer?

89. Unfortunately, despite numerous attempts to do so, "no satisfactory test of universal application" for distinguishing between questions of fact and law has yet been devised. ^[68] Whether a particular alleged error in fact-finding, the exercise of a discretion or a process of evaluation raises a question of law will depend on the subject-matter, scope and purpose of the legislation and the nature of the decision-making body.^[69]

90. The following questions will also be questions of law:

• Is [a particular word or phrase used] in a statute to be given its ordinary meaning or some technical or other meaning?^[70]
• What is the meaning of a word or expression in a statute?^[71]
• Was there any (or no) evidence of, or to support a finding of fact?^[72]
• Was it open to the tribunal to draw a particular inference from the agreed facts or the facts as found?^[73]
• On the facts as found, were the criteria fixed by the statute satisfied?^[74]
• Was the decision-maker bound to take into account a particular consideration?
• Was the decision-maker bound to disregard a particular consideration?
• Does a duty to afford procedural fairness to a person directly affected by a decision-maker's decision to be found by implication in a particular statute?
• What is the content of the duty to afford procedural fairness in a particular statutory context?
• Did the tribunal have jurisdiction to hear the application?
• Did the tribunal misconceive its function?
• Is something a jurisdictional fact?
• Is there an implication to be found in a statute that a particular power be exercised reasonably?
• Was the decision-maker obliged to give reasons?
• What is the content of the duty to give reasons under a particular statute?
• What, if any, fetters or limits are there on the decision-maker's discretion?

91. Nevertheless, an inelegantly drafted question may not be fatal. If, for example, it is clear from the context that there is a question of law and the question of law the applicant intends to raise is "tolerably clear", then the appeal will be competent. This was the position taken by Sundberg and Kenny JJ in Ergon Energy Corp Ltd v Commissioner of Taxation (Cth) (2006) 153 FCR 551 at [51] and approved by the 5-member Full Court in Haritos. In an appropriate case the Court itself may be willing to frame questions in order to found its jurisdiction, especially where an applicant is unrepresented.^[75]  

92. In Birdseye the Full Court held that a mixed question of law was not a question of law for the purpose of s 44 of the AAT Act.^[76] In this respect it was overruled by the Full Court in Haritos in June this year, in which it was held that "question of law" did not mean a pure question of law or a question of law only and that not all so-called mixed questions of law are outside the scope of s 44.^[77]

Conclusion

93. In this area of the law, no less than any other, careful analysis and attention to detail promote success and, ultimately, minimise costs.

94. It is as well to think and plan from the outset, as it is to look before you leap.

^[1] Judge of the Federal Court of Australia and additional judge of the Supreme Court of the ACT

^[2] Cf. Civil Procedure Act 2005 (NSW) Pt 6

^[3] Caroline Sage, Ted Wright & Carolyn Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System, June 2002, Law and Justice Foundation of New South Wales, 169 <http://www.lawfoundation.net.au/ljf/site/templates/reports/$file/CaseManagementReform.pdf>.

^[4] Modifications include a system of panels in some specialist areas. Currently, panels operate only in NSW and Queensland. In NSW those panels are currently admiralty and maritime, competition, corporations, industrial, patents and taxation. In Queensland they are admiralty, competition and industrial.

^[5] Urgent cases are generally heard by the duty judge but may be heard by the docket judge.

^[6] In May 2015 the Court was recognised for this innovation when it received one of the inaugural National Archives Awards for Digital Excellence.

^[7] In addition, for example, the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers jurisdiction on the Court in all civil matters in which a Territory Supreme Court has jurisdiction: s 4(2). It also provides for the transfer from a Supreme Court of a State or Territory of proceedings that appear to arise out of, or are related to, pending proceedings in the Federal Court: s 5. Recent legislation enlarging the Court's jurisdiction is listed in the Court's latest annual report (at p 22)

^[8] Porter v Australian Prudential Regulation Authority [2009] FCA 1148 at [20]; John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221; [2011] FCAFC 34 at [22]–[23]

^[9] The Hon Justice John Griffiths, Some Ethical Issues: A View from the Bench (Law Society of New South Wales Ethics Forum, 13 August 2012) <http://www.fedcourt.gov.au/publications/judges-speeches/justice-griffiths/Griffiths-J-20120813.rtf>.

^[10] FCR r 8.03

^[11] FCR r 8.05

^[12] FCR r 1.34 (and also to make orders that are inconsistent with the Rules: r 1.35)

^[13] See Schedule 2 cll 2, 4 (formerly s 347 of the Legal Profession Act 2004 (NSW)).

^[14] See, for example, r 59 of the NSW Barristers' Rules ("Bar Rules") and r 21 of the New South Wales Professional Conduct and Practice Rules 2013 ("Solicitors' Rules").

^[15] Bar Rules, r 64; Solicitors' Rules, r 21.4

^[16] (2009) 239 CLR 175

^[17] (2006) 33 WAR at [4]‑[8], cited by the Full Court in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] and more recently by Edelman J in Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [44]

^[18] Stewart v Deputy Commissioner of Taxation [2010] FCA 402; (2010) 76 ATR 66 at [33]

^[19] Ibid.

^[20] Ibid at [34]

^[21] Ibid at [35]

^[22] FCR r 8.01(1)

^[23] FCR r 8.03

^[24] FCR r 16.02(1)(b).

^[25] FCR r 16.02(1)(c).

^[26] FCR

^[27] FCR

^[28] FCR

^[29] FCR r 16.02(3)

^[30] See Bernard Cairns, Australian Civil Procedure (Law Book Company, 7^th edition, 2007), p 163.

^[31] See FCR r 8.05.

^[32] Hon Justice Steven Rares and Hon Justice Richard White, "A Judge's Viewpoint: the Role of Pleading" (2012 Judges' Series, 16 June 2012) <http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/Rares-J-20120616.rtf>.

^[33] Do Carmo v Ford Excavation Proprietary Limited (1984) 154 CLR 234 at 245.

^[34] Bruce v Odhams Press Limited [1936] 1 KB 697 at 712

^[35] Uniform Civil Procedure Rules 2005 (NSW), r 14.7.

^[36] See FCR r 16.04.

^[37] FCR r 16.06

^[38] FCR r 16.02(4)

^[39] See FCR r 16.02(2).

^[40] See FCR rr 16.21, 1.40.

^[41] See FCR r 26.01.

^[42] Ashby v Commonwealth (No 4) (2012) 209 FCR 65

^[43] See FCR r 16.07.

^[44] Plato Films Ltd v Speidel [1961] AC 1090 at 1104–5

^[45] Hunt & Winterbotham (West of England) Ltd v BRS (Parcels) Ltd [1962] 1 QB 617

^[46] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [70]–[72]

^[47] Pilato v Metropolitan Water Sewerage & Drainage Board (1959) 76 WN (NSW) 364 at 365

^[48] Pinson v Lloyds and National Provincial Foreign Bank, Limited [1941] 2 KB 72 at 75

^[49] P W Young, K F O'Leary and A E Hogan, Supreme Court Civil Procedure: New South Wales (Butterworths, 2^nd edition, 1987), p 147 [13.308].

^[50] FCR r 16.42

^[51] FCR r 16.43

^[52] FCR r 16.44(2)

^[53] Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 128

^[54] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at 368 [48]

^[55] Ibid at 368 [49]

^[56] Ibid at 356 [5]

^[57] (2003) 133 FCR 290

^[58] Compare Superannuation (Resolution of Complaints) Act 1993 (Cth), s 46. Of course, appeals on questions of law are not a peculiar feature of the federal jurisdiction. See, for example, Land and Environment Court Act 1979 (NSW), s 57(1) and the Civil and Administrative Tribunal Act 2013 (NSW), s 83. Section 32 of the Dust Diseases Tribunal Act 1989 (NSW) limits appeals (other than on evidentiary issues) to dissatisfaction with decisions of the tribunal "in point of law". In Attorney-General (NSW) v X (2000) 49 NSWLR 653 at [124], Spigelman CJ does not appear to have drawn a distinction between an appeal on a question of law or an appeal on a point of law but considered that the expression "question" or "point of law" was wider than "error of law". A useful discussion of the problem of identifying a point of law appears in the dissenting judgment of Basten JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.

^[59] TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178

^[60] See, for example, FCR r 33.12 (b).

^[61] Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524

^[62] Ibid at 527

^[63] (2003) 76 ALD 321 ("Birdseye") at [16]

^[64] [2015] FCAFC 92, 66 AAR 403 at [92]

^[65] Haritos at [94]

^[66] Haritos at [107]

^[67] See Comcare v PVYW (2013) 303 ALR 1; [2013] HCA 41 at [142] per Gageler J.

^[68] Collector of Customs v Agfa-Gevaert at 394.

^[69] Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 at [28], noted in Haritos at [112]

^[70] See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 and Aronson, M & Groves, M, Judicial Review of Administrative Action (5^th ed), 2013

^[71] Ibid

^[72] McPhee v. S. Bennett Ltd. (1934) 52 W.N. (N.S.W.) 8, at p. 9; Australian Gas Light Co. v. Valuer-General (1940) 40 S.R. (N.S.W.) 126, at pp. 137-138; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑356. As Branson and Stone JJ pointed out in Birdseye, however (at [29]), if the tribunal's decision is not based on a finding as to a particular fact, an appeal under s 44 of the AAT Act cannot be founded on an assertion that there was no evidence to support that fact because no answer to the question of law could justify the grant of any relief.

^[73] Australian Gas Light Co. v. Valuer-General; Hope v. Bathurst City Council (1980) 144 C.L.R. 1 at 8-9 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑356 (Mason CJ)

^[74] Ergon Energy Corp Ltd v Commissioner of Taxation (Cth) (2006) 153 FCR 551 at [51](Sundberg and Kenny JJ)

^[75] See P v Child Support Registrar [2013] FCA 1312; 138 ALD 563 at [53](Wigney J) and the cases referred to there, cited with approval by the Full Court in Haritos at [103]. See also Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]‑[77] (Mortimer J), also approved in Haritos at [104]

^[76] At [18]

^[77] See especially [62](8).