Overview of New National Practice Notes
On 25 October 2016 the Federal Court issued 26 new national practice notes, effective immediately. Any pre-existing practice notes and administrative notices are superseded by these new national practice notes.
The general practice notes (excluding the Class Actions Practice Note) are issued on a "12-month review basis" and the Court welcomes your feedback on these practice notes.
See below further information about the new practice notes and how they take effect.
Practice notes are used to provide information to parties in proceedings in the Court and their lawyers on particular aspects of the Court's practice and procedure. Practice Notes are issued by the Chief Justice upon the advice of the Judges of the Court pursuant to the Court's inherent power to control its own processes. In general, practice notes are issued to:
- complement particular legislative provisions or rules of court
- set out procedures for particular types of proceedings
- notify parties and their lawyers of particular matters which may require their attention.
A key component of the National Court Framework (NCF) reforms has been the review of all the Court's practice documents to ensure nationally consistent and simplified practice. The Court's practice documents have been consolidated and refined from 60 practice notes and administrative notices to 26 national practice notes.
The new practice notes fall into 3 categories:
1. Central Practice Note
The Central Practice Note (CPN-1) is the core practice note for Court users and addresses the guiding NCF case management principles applicable to all National Practice Areas (NPAs). One of its main aims is to ensure that case management is not process-driven or prescriptive, but flexible - with parties and practitioners being encouraged and expected to take a common-sense and co-operative approach to litigation to reduce its time and cost.
2. National Practice Area (NPA) Practice Notes
Interlocking with the Central Practice Note are the new NPA practice notes. Currently each NPAs, excluding Federal Crime and Related Proceedings and Other Federal Jurisdiction, have a NPA practice note.
Amongst other things, the NPA Practice Notes raise NPA-specific case management principles and can allow for expedited or truncated hearing processes and tailored or concise pleading and other processes.
Parties may also seek to adopt the processes set out in one NPA practice note for use in a different NPA. For example, the flexible and streamlined procedures for the commencement of proceedings, use of concise statements and tailored discovery and evidence procedures set out in the Commercial and Corporations Practice Note (C&C-1) may be used in other NPAs.
3. General Practice Notes (GPNs)
Also interlocking with the Central Practice Note and NPA Practice Notes are 17 new or amended General Practice Note (GPNs). These practice notes are intended to apply to all or many cases across NPAs, or otherwise address important administrative matters. A number of GPNs set out new or more comprehensive arrangements in a variety of key areas, such as Class Actions, Expert Evidence, Survey Evidence, Costs, Subpoenas and Notices to Produce and Access to Documents.
4. Appeals Practice Notes (APNs)
The Court has made considerable changes to the management of appeals and related applications and is in the process of preparing comprehensive practice notes outlining the management of, and requirements relating to, such appeals and related applications.
In the interim, the Court has:
- revoked Practice Note APP 1 - Listings for Full Court and appellate sittings; and
- partially amended and reissued Practice Note APP 2 - Content of appeal books and preparation for hearing.
All 26 practice notes take effect on the date they are issued, Tuesday, 25 October 2016, and to the extent practicable, apply to proceedings whether filed before, or after, this date. It is important that all parties and practitioners familiarise themselves with the new practice notes.
Although these practice notes are effective immediately, the Court understands that, depending on the nature of each case and what stage it may be at, a period of adjustment will be necessary.
The Court will take a flexible and common sense approach to the implementation and use of the new practice notes should any difficulties arise with new procedures being applied in any existing cases.
All revoked practice notes and administrative notices will remain accessible on the Court's website for an appropriate period of time.
All the practice notes were developed following extensive internal consultation involving all Judges and Registrars of the Court.
The Central Practice Note, NPA Practice Notes and the Class Actions General Practice Note were also developed following extensive external consultation with the profession, in late 2015 and early 2016. The Court received many submissions from individuals within the profession, representative legal associations and public and private agencies. The feedback was overwhelmingly positive about the NCF generally, as well as the Court's initiatives within the practice notes themselves. This feedback was carefully considered in the further refining of these practice notes.
The GPNs (excluding the Class Actions Practice Note) have not been subject to the same level of external consultation as part of their development.
The Court considers it important to consult with the profession in relation to the operation of these GPNs and therefore is issuing the general practice notes subject to a "12-month review" consultation process. Further information about this process and how to provide feedback is outlined below.
As noted above the new national practice notes are organised into 3 categories: "Central"; "National Practice Area" and "General".
Each new practice note has been given a distinctive title designed to assist users in quickly and intuitively identifying the required practice note and a unique identifier, which varies depending on the category of practice note (ie. TAX-1: is the NPA practice note relating to Taxation; GPN-COSTS: is the general practice note on Costs).
When citing the Court's new national practice notes the rule stated in the Australian Guide to Legal Citation generally applies. The unique Identifier becomes the practice note "Number".
If the practice note is reproduced in a report series:
Court, Practice Note Number/Unique Identifier - Title of Practice Note, Citation of Report Series, Pinpoint.
If the practice note is not published in a report series:
Court, Practice Note Number/Unique Identifier - Title of Practice Note, Full Date, Pinpoint.
Example: Federal Court of Australia, Practice Note CPN-1 – Central Practice Note: National Court Framework and Case Management, 25 October 2016, para 8.5.
The GPNs are effective from 25 October 2016 but each of them (excluding the Class Actions Practice Note) are issued on a "12-month review" basis to allow for a comprehensive period of external consultation.
The Court is therefore seeking your feedback on the content of the general practice notes. The practice notes will be open for consultation until October 2017 and any appropriate amendments will be made during or following the review period.
Please provide your feedback addressed to the Deputy National Operations Registrar, David Pringle, via email to email@example.com including a short summary of key issues you wish to bring to the Court's attention and relevant contact details. The Court will consider all feedback and acknowledge receipt of all feedback provided.
Given the extent of the reforms to the Court's practice documents, every element of every previous document and where that maybe directly or indirectly contained in the new practice notes cannot be addressed.
However, the most significant areas of revocation and the significant components of practice documents carried over into the new national practice notes have been identified. A significant portion of the pre-existing practice documentation has also been deemed appropriate to be accessible on the updated Court website and therefore may not be contained in any formal practice note of the Court.
The following cross-reference tables have been developed to assist court users with the relevant changes to the Court's practice documents:
- Cross-reference table – new to old: New National Practice Notes and relevant revoked Practice Notes or Administrative Notices
- Cross-reference tables – old to new: