Guide to Communications with Chambers Staff

1. Introduction

1.1 This guide addresses when it may be appropriate to communicate with the Court's chambers staff and should be read subject to any relevant order or direction given by the Court. To the extent applicable, this guide should also be read together with the Central Practice Note (CPN-1) and the practice notes for each National Practice Area ("NPA").

1.2 This guide does not comprehensively address how to communicate with registry staff, which is instead covered by the Guide to Communications with Registry Staff. That guide also contains a variety of information about communicating with the Court that parties should familiarise themselves with.

1.3 Where applicable, and where the context allows, references in this guide to a "party" or "parties" should be read to include:

  • any person communicating with the Court (or with others) on behalf of a party, including a party's legal representatives; and
  • a non-party (or someone communicating on a non-party's behalf) where the non-party has become involved or concerned in a proceeding or process within the Court.

"Chambers"

1.4 Within chambers (ie. the judge's official working area) is the judge, who is the independent decision-maker, and the staff assisting the judge. Such staff include: a judge's associate, executive assistant and any other person who may work with the judge in chambers from time to time. A judge's associate assists the judge in court and in chambers on legal matters and case management by acting as an intermediary between parties and the judge.

Communications involving Registrars

1.5 While this guide refers only to judges and their chambers staff, the same principles set out in this guide apply to communications with registrars and the staff who assist them in relation to matters that are managed in registrars' dockets (ie. where the registrar is performing a judicial function). However, this guide is not intended to apply to communications with a registrar acting in an administrative capacity (for example, in their role as a Duty Registrar) or in the context of alternative dispute resolution processes (for example, in their role as a mediator).

Self-represented litigants

1.6 Prior to approaching chambers, self-represented litigants should first liaise with registry staff (including the self-represented litigant coordinator or National Court Framework coordinator) for additional assistance and support.

2. Guidance on communications

2.1 The guiding principle for any communications with chambers staff is set out in paragraphs 15.1 and 15.2 of the Central Practice Note, which provides that all communications with chambers staff should:

(a) be made courteously; and

(b) unless in the nature of an ex parte application,[1] should:

(i) only occur where it is necessary and appropriate to do so;

(ii) be uncontroversial; and

(iii) be "open" (ie. communicated to all parties to the litigation).

2.2 Effective communication between the parties, their legal representatives and the Court is fundamental for the efficient case management of a proceeding.[2] The Court encourages the use of technology, including email, to facilitate quick and efficient communication. Efficiency, however, should not compromise the just resolution of disputes and parties are encouraged to follow the communication protocols outlined in this guide so as to avoid compromising the impartiality and integrity of the Court.

2.3 Parties are expected to be courteous and respectful in all communications with chambers and with each other.

2.4 Where contact with chambers is necessary and appropriate, the Court encourages parties to, having first appropriately discussed and attempted to resolve the matter between them, communicate any outstanding issues to chambers in a timely manner, so as to avoid disruption or delay to the case management process.

3. Appropriate communications with Chambers

3.1 Parties should only communicate with chambers where it is necessary and appropriate to do so in the circumstances. Whether the proposed communication is appropriate depends on the relevant circumstances, including the subject-matter or nature of the communication, the sequence of events surrounding the communication, who may be affected by the communication and how, and who may or should participate in the communication.

3.2 In deciding whether a communication is necessary and appropriate, parties should consider whether the communication is consistent with:

(a) the "overarching purpose" – ie. facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see s 37M(1) of the Federal Court of Australia Act 1976); and

(b) the aim of eliminating any unnecessary "process-driven" costs – a key objective of the court's approach to case management.

3.3 Parties should be mindful that the proceeding is the parties' proceeding and they are the primary actors responsible in the litigation. Where necessary, parties should attempt to engage in meaningful dialogue between each other before any matter is raised with chambers. The Court expects that parties will have conferred in good faith to resolve any issues of controversy to minimise interlocutory disputes and the need for the Court's involvement in the dispute.

Uncontroversial communications

3.4 Communications with a judge's associate should generally be confined to matters concerning procedural, administrative or practical matters that are not controversial.

3.5 The Court recognises that there is no clear division between matters of a purely administrative or procedural nature and matters of substance. For example, a request for an adjournment of a hearing may be considered administrative in some circumstances, but contentious in others.

3.6 Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications regarding administrative and procedural matters which may be uncontroversial include:

(a) providing consent orders for the judge's consideration and approval;

(b) providing chambers with agreed dates about when legal counsel for all parties are mutually available;

(c) clarifying that you cannot attend court for a listed hearing due to a serious personal circumstance (such as a serious illness);

(d) explaining that there will be an unavoidable and unexpected delay in your attendance at a hearing in court;

(e) in relation to an upcoming trial:

(i) arrangements for the display of physical exhibits (especially if they are large and bulky) in the courtroom;

(ii) arrangements for video or sound recordings to be played;

(iii) arrangements for approved video or telephone conference links (noting that whether or not video or telephone conference links are appropriate of themselves may be matters of controversy);

(iv) arrangements for court attendees who have special needs (eg. a witness who has a hearing impairment and requires an interpreter or a hearing loop);

(v) arrangements regarding bundles of authorities for trial;

(vi) arrangements for leaving the parties' court books and files in the courtroom overnight;

(f) communicating with chambers in accordance with an order/direction from the Court to do so.

3.7 Communications (including emails) containing allegations or matters of substance should not be forwarded to chambers without the parties' collective agreement (save for ex parte applications).[3] If an unresolved issue arises between the parties (and they agree in advance that the court's involvement is needed and the manner and nature in which the Court should be advised), it would be uncontroversial if one party sends an email to chambers on behalf of the parties (and copied to all parties) explaining the factual circumstances and requesting a listing. It is generally not appropriate for that email to stray into argument or submissions unless all parties have agreed in advance that all competing views should be (briefly and accurately) clarified to the Court.

Open communications

3.8 Communication with the Court should generally be in writing. It is preferable that communications with chambers are made to the generic email address of the judge's associate (and copied to the judge's executive assistant and all other parties). Communications should not be made with the judge directly. To minimise the risk of controversy, it is best practice for all parties to be notified about a proposed communication with the Court a reasonable time before it is made, and to be included in the communication when it is made. Ideally the content of the communication should be agreed by all parties before it is made. Unilateral communications should only occur in exceptional circumstances (see below).

3.9 Communication by telephone should be avoided in all but purely administrative matters. For example, a party (having already checked with the registry) might contact chambers to enquire whether a personal item left behind in Court has been collected by chambers staff. However, other than in exceptional circumstances, it is preferable that even purely administrative communications be made by email with all parties copied in.

3.10 Depending on the circumstances, a sustained sequence of communications not circulated to the other parties (even in relation to administrative or procedural matters) could, at a certain point, become unprofessional or improper in the absence of some good reason.[4]

3.11 Ordinarily, there are only two exceptions to the general rule that communications with chambers should be open. Unilateral communication directly with chambers may be appropriate in relation to:

(a) an ex parte application; or

(b) an urgent originating application. Under the Court's "direct-to-chambers" duty system, the applicant can liaise with the relevant duty judge's chambers directly before formally filing an urgent originating application with the Court. This ensures that genuinely urgent matters are heard as soon as practicable with a view to addressing the special issues arising in each matter and the needs of the parties.

4. Inappropriate communications with Chambers

4.1 Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications with chambers which are, or may be, inappropriate include:

(a) attempting to contact a judge directly about a matter for which the judge is responsible outside of a court hearing, or otherwise attempting to gain an unfair advantage or inappropriately influence the conduct of the proceeding;

(b) seeking advice on matters relating to the Court's rules or whether a certain court document will be accepted for filing. Such enquiries should be directed to registry staff, noting that court staff cannot provide legal advice. The guide to communications with Registry staff can be found here;

(c) approaching chambers for allocation or duty judge rostering information or making decisions to approach chambers for a duty matter based on a specific judges' rostering arrangements. The relevant duty judge information is posted daily on the Court's website. The court also has specific arrangements in place for expediting matters (see the Central Practice Note) and specific list arrangements for various types of matters including, admiralty matters, corporations list matters and insurance list matters.

(d) unilateral communications, other than in relation to ex parte and urgent originating applications, particularly in relation to substantive issues in the litigation;

(e) irrelevant or unnecessarily burdensome communications, for example, copying chambers into email correspondence between the parties which does not require the Court's knowledge or involvement;

(f) communications that are scandalous or vexatious;

(g) sending to chambers, or copying chambers into, emails that disclose "without prejudice" communications (see also section 5 of the Guide to Communications with Registry Staff); and

(h) approaching chambers directly about the timing of the delivery of a reserved judgment. Any enquiries about reserved judgments are best directed to the Law Society or Bar Association in the relevant State or Territory or to the chambers of the Chief Justice (see the Central Practice Note paragraph 16.2).

4.2 Parties should bear in mind that, in certain circumstances, inappropriate conduct towards the court which disrupts the court from carrying out the administration of justice may constitute a contempt of court (see Parts 5 – 8 of the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF).

5. Further information and contact details

5.1 The following resources complement the information in this guide and may be of assistance in considering whether to, and how best to, communicate with the Court:

(a) Hypothetical case studies that may help to clarify principles outlined in this guide are included in the attached "Appendix A – Case Studies";

(b) Guide to Communications with Registry Staff;

(c) Commonwealth Courts Portal / Federal Law Search;

(d) The "I am a Party (Information for litigants)" section of the Court's Website, including information to assist self-represented litigants;

5.2 Where, as outlined in this guide, it is appropriate to contact Chambers staff, the contact details for Chambers staff may be used as available on the Court's website.

5.3 Where website information or other Court resources may be insufficient to answer an enquiry, parties may contact their local registry.

 

Date of Guide:
25 October 2016


Appendix A

Hypothetical Case Studies

The following case studies, and names referred to, are provided as illustrative examples only, and are not derived from any actual case filed in the Court. They are intended to be a practical illustration of a number of the concepts addressed in this guide.

Case Study 1: Application for Discovery

Luke, the lawyer acting for the applicant, intends to seek leave from the Court for the respondent to make discovery. The parties agree that discovery is needed, but are unable to agree on appropriate categories of discovery. Luke has prepared the applicant's proposed categories of discovery, which are resisted by the respondent.

What Luke did: Luke phones the docket judge's associate, explains that his client wishes to make an application seeking leave to make discovery based on the proposed categories of discovery, and requests a listing date for the proposed discovery application.

Was this appropriate? No. Luke's communication was not open. Luke's communication was not of a purely administrative nature and so should not have been made by telephone.

What should have happened? Luke contacts Ken, the lawyer acting for the respondent, and tells him that he intends to file a discovery application seeking an order for proposed categories of discovery. Ken accepts that the parties cannot agree on the categories of discovery and that the Court's involvement is required. Luke and Ken work out mutually convenient listing dates based on their respective counsel's availability. Luke prepares a draft email to chambers explaining the circumstances and requesting a listing on one of the mutually available dates. Ken agrees that the draft email is uncontroversial and can be sent to chambers. Luke sends the email to the judge's associate with Ken and the judge's executive assistant copied in.

Case Study 2: Adjournment Application

Mary, the lawyer acting for the respondent, is informed that her client's barrister is now unable to attend a hearing for a summary judgment application occurring in two days' time. Mary decides to request an alternative date for the application, so that the same barrister can be retained for the application. It is unknown to Mary that the applicant's legal team are only available on the day the hearing is scheduled.

What Mary did: Mary emails the judge's associate to inform her that the hearing date for the summary judgment application needs to be adjourned to an alternative date. She copies in Jamal, the lawyer acting for the applicant.

Was this appropriate? No. Mary had not checked with Jamal whether the request for an adjournment would be opposed by the respondent. Therefore, her communication was not uncontroversial.

What should have happened? Mary calls or emails Jamal, the lawyer acting for the applicant, explaining the situation and seeking consent from Jamal's client to adjourn the summary judgment application to another date. Jamal's client refuses to consent to an adjournment of the application. Mary explains to Jamal that if the parties cannot agree on an adjournment, her client will file an application seeking an adjournment of the application. Mary prepares a draft email to the judge's associate explaining the situation in a balanced way, the fact that the parties could not agree on an adjournment, and that her client will soon file an application for an adjournment. Jamal agrees that the draft email is uncontroversial and can be sent to chambers. Mary sends the email to the judge's associate with Jamal and the judge's executive assistant copied in.

Case Study 3: Consent Orders

The applicant has been ordered to file its expert evidence by a certain date. Wei, the lawyer acting for the applicant, informs Rami, the lawyer acting for the respondent, that the applicant's expert evidence is likely to be three weeks late.

What Wei and Rami did: Rami tells Wei he is tardy and incompetent because he has already had three months to file the expert evidence, he then emails the judge's associate (copying in Wei) informing the Court that the applicant's expert evidence will not be filed in time, and that the respondent is disappointed with the delay as it would push out the Court ordered timetable. Wei and Rami subsequently send multiple emails to each other (copying in the judge's associate), discussing an updated timetable of next steps.

Was this appropriate? No. Parties are expected to be courteous in their communications with each other. Parties should not copy chambers in on correspondence that does not require involvement of the Court or that is unnecessarily burdensome on the Court.

What should have happened? Rami respectfully tells Wei that the respondent is disappointed with the applicant's failure to file evidence within the Court ordered timeframes. Wei clarifies any reasons for the delay, and Rami explains what prejudice his client may suffer. Rami and Wei discuss an updated timetable of next steps given the likely delay in the applicant's expert evidence. Rami and Wei incorporate the agreed timetable into draft consent orders (including the question of costs). Wei emails the judge's associate, copying in Rami and the judge's executive assistant, briefly informing the Court of relevant matters and that the applicant's expert evidence will not be filed in time, and attaches signed consent orders for the judge's consideration and approval.

Case Study 4: Urgent Contact with Chambers

Larissa, a self-represented applicant, while travelling to Court is involved in a car accident shortly before a hearing listed for 9.30 am that day. Larissa is not injured but her car is damaged and she knows that she will be unable to make it to the 9.30 am hearing.

What Larissa did: Larissa decides to wait until she gets home to inform the Court of her non-attendance and why she was unable to attend.

Was this appropriate? No. Unless it is not possible to do so, chambers should be notified as early as possible if a party unavoidably cannot attend a hearing.

What should have happened? Larissa calls the respondent's lawyer on her mobile to advise of her situation, is unable to reach the lawyer (who has already left for Court) and leaves an urgent message with reception. Larissa then calls the registry and is transferred to the judge's associate or executive assistant so that she can inform them of her circumstances. If the judge's chambers are not contactable, registry will get a message to them. Larissa speaks with the associate of the judge and clarifies the situation and her general availability to attend at short notice. In this case, the judge is able, after the associate ascertains the whereabouts and position of the respondent's lawyer, to shift the hearing by two hours to allow the hearing to proceed that day.

Case Study 5: Civil Procedure

Nadir, a self-represented applicant, wishes to apply for a subpoena to produce documents.

What Nadir did: Nadir calls the judge's associate to ask if she has used the correct court form and for advice on the content of the application that she has drafted.

Was this appropriate? No. Court staff cannot provide parties with legal advice. (Parties are encouraged to seek independent legal advice about their case.) Questions about court forms and the filing of documents are more appropriately directed to registry staff.

What should have happened? Nadir phones the registry to ask what form she should use to apply for a subpoena to produce documents. Nadir is transferred to the Self-Represented Litigant Coordinator, who clarifies which form Nadir should use, provides guidance on where Nadir can find information about subpoenas and filing on the Court's website, and clarifies to Nadir how to file the relevant form. Nadir uses eLodgment to submit her application and it is accepted for filing.

Case Study 6: Emailing Chambers "Evidence"

Angela, the lawyer acting for the prospective applicant, intends to file an urgent application for an injunction to stop her client's ex-employee from continuing to use her client's trade secrets.

What Angela did: Angela phones the duty judge's associate, informing her that she will shortly send her an email with an application for an interlocutory injunction. After emailing the application, Angela sends the associate a series of further emails, attaching evidence of correspondence between her client and her client's ex-employee which demonstrates the use of trade secrets.

Was this appropriate? No. It is not appropriate to send chambers staff material that does not comply with the procedural rules and the rules of evidence, or which has the potential to inappropriately influence the independent decision maker.

What should have happened? Angela asks her client to prepare an affidavit in support of the application. The affidavit annexes the correspondence that demonstrates the use of her client's trade secrets. Angela then files the application and affidavit using eLodgment and, due to the urgency of the situation, also emails the application and affidavit to the associate and executive assistant of the duty judge.



[1] An "ex parte" application is an application brought by a party in the absence of, or without notification to other parties. An example of an application that may initially occur ex parte is an application for a search and seizure order. Certain procedures may also commence ex parte, such as the issuing of a subpoena.

[2] John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [26].

[3] R v Fisher (2009) 22 VR 343 at [38].

[4] John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [22].