"The Conference - 40 years on" - a paper delivered by Justice JA Dowsett to the Supreme and Federal Courts Judges’
Conference,
Melbourne – 21-2
5 January 2012.
21 December 2011: Federal Court (Bankruptcy) Amendment Rules 2011 (No 1)
The Federal Court (Bankruptcy) Amendment Rules 2011 (No 1) was registered on the Federal Register of Legislative Instruments on 20 December 2011. The Amendment Rules commence on 1 January 2012.
A copy of the Amendment Rules will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au/.
The Amendment Rules which make amendments to the Federal Court (Bankruptcy) Rules 2005 (Bankruptcy Rules) give effect to the recommendations of the Harmonised Bankruptcy Rules Monitoring Committee. They are consequential upon the enactment of the:
amendments to the Bankruptcy Act 1966 (Bankruptcy Act) and Bankruptcy Regulations 1996 (Bankruptcy Regulations) made in 2010 by the Bankruptcy Legislation Amendment Act 2010; and
Federal Court Rules 2011 (FCR 2011) on 1 August 2011.
The Amendment Rules will commence on 1 January 2012 and amend the Bankruptcy Rules by:
1. making changes consequential upon the amendment in 2010 to the Bankruptcy Act and Regulations, including:
(a) making more accurate the rules about entering orders (rules 4.08(2)(b), 4.09(2)(a), 10.05 and 11.04) and the entering or stamping of orders (rules 4.08(c) and 4.09(2)(b)); and
(b) removing references to Bankruptcy Districts (rules 8.02(3)(b), 9.03(b), 9.05(b) and 10.03(c)).
2. replacing references to the former Federal Court Rules and forms in the Bankruptcy Rules and forms with references to the FCR 2011, including:
Bankruptcy Rules
Reference to former Federal Court Rules
Reference to the Federal Court Rules 2011
i
1.04 (2)
Order 1, subrule 4 (2)
Schedule 1
ii
2.05 (2)
Rules 12 and 13 of Order 4
Rule 8.07
iii
13.01 (1), (3) and 13.03(4)
Order 62
Part 40
13.03 (1)
Item 43B of Schedule 2
Item 14.1 of Schedule 3
13.03 (2)
Item 43C of Schedule 2
Item 14.2 of Schedule 3
13.03 (3)(a)
Item 36 or 37
Item 1 of Schedule 3
iv
Form 6 Part 2
Form 20
Form 59
v
Form 7
Order 1, rule 8
Rule 1.34
3. deleting the words ‘or a Judge’ from the term ‘the Court or a Judge’ as the FCR 2011 uses the term ‘the Court’ on all occasions (Rules 2.02, 2.03(1) and the note in Form 7);
4. replacing the words ‘motion on notice’ with ‘interlocutory application’ as the FCR 2011 uses the latter term (Rules 2.03 and note in Form 7);
5. changing the term ‘legal practitioner’ to ‘lawyer’ as a consequence of the insertion in 2010 of this latter term into the Federal Court of Australia Act;
6. amending the format of the prescribed Form 1 – Title so it is similar to that used in the forms approved under the FCR 2011. This also amends the footer in Form 1 which will affect Forms 2-15.
The Federal Magistrates Court of Australia is making similar amendments to their Bankruptcy Rules, where necessary.
Patricia Christie
SA & NT Registrar
15 December 2011: Practice Note CM 20
The Chief Justice has issued the following Practice Note:
Practice Note CM 20 – Ex parte applications for substituted service in Bankruptcy proceedings and applications for examination summonses under section 81 Bankruptcy Act 1966 and sections 596A and 596B Corporations Act 2001
NSW and Victoria District Registries have successfully trialled over extended periods the hearing of ex parte applications in insolvency related matters using the Court’s eCourt facilities. The Court is now implementing arrangements nationally for hearing and deciding these matters using eCourt.
All new applications for orders for substituted service of Bankruptcy Notices or Creditor’s Petitions or for the issue of examinations summons, from the commencement of the Practice Note, will ordinarily be listed to be dealt with online by hearing in eCourtroom. While the use of eCourtroom will be the norm for these mattes, this arrangement will provide flexibility in appropriate matters for a litigant or practitioner to request that the application be listed in some other way or for the registry to decide to do this.
CM 20 sets out the new procedures for any ex parte application for substituted service in bankruptcy proceedings and applications for examination summonses including registration for eCourtroom.
This Practice Note will commence on 6 February 2012.
If you have any queries please contact me on (02) 9230 8336.
John Mathieson
Deputy Registrar
19 October 2011: Federal Court of Australia Case Management Handbook
The Law Council of Australia today published the Federal Court of Australia Case Management Handbook. The Handbook was prepared by members of the Law Council's Federal Litigation Section in conjunction with the Federal Court. It contains information, guidance, ideas and suggestions about the tools and techniques available for use in the Court.
The Handbook was central to discussions between judges and a broad cross-section of members of the legal profession from around Australia held at a workshop sponsored by the Federal Court and the Law Council in Melbourne on 26 and 27 August 2011.
In the foreword to the Handbook the Chief Justice commended the work to all legal practitioners who practise in the Federal Court and encouraged them to make full use of this valuable resource.
'An International Convention On Off-Shore Hydrocarbon Leaks?': paper presented by Justice Rares at the International Conference on Liability and Compensation Regime for Transboundary Oil Damage resulting from Offshore Exporation and Exploitation Activities, hosted by the Government of the Republic of Indonesia in Bali on 21-23 September 2011.
22 September 2011: Practice Notes - CM 18 & CM 19
The Chief Justice has issued the following revised Practice Notes:
CM 18 applies to any proceeding in which relief is claimed in the nature of a constitutional writ under section 39B of the Judiciary Act 1903 against Fair Work Australia, whether constituted by a single or more Fair Work Australia members, a Full Bench or a person holding a delegation from the President or the General Manager of Fair Work Australia to perform the relevant act or function. This Practice Note is to clarify the appropriate title of proceedings against Fair Work Australia (FWA) and was the subject of consultation with FWA. It is in similar terms to Practice Note 25 which was repealed on 25 September 2009 following the abolition of the Australian Industrial Commission.
CM 19 applies to applications for an order to appoint a judge to take evidence out of Australian and should be read in conjunction with Division 29.2 of the Federal Court Rules 2011. This Practice Note was developed in light of the decision in Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 and similar to a practice note which has operated in the NSW Supreme Court since 2005.
A copy of the Practice Notes are available from the Federal Court’s web site at http://www.fedcourt.gov.au.
If you have any queries please contact me on (02) 9230 8336.
John Mathieson
Deputy Registrar
14 September 2011: Federal Court (Corporations) Amendment Rules 2011 (No. 1)1
A copy of the Amendment Rules will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au/.
The Amendment Rules, arising from the introduction of the Federal Court Rules 2011 on 1 August 2011, only affect the Federal Court and not other jurisdictions and will not alter the harmonisation of the Corporations Rules.
These Amendment Rules will amend the Federal Court (Corporations) Rules 2000 by:
1. amending rules 12.1A and 15.1 to replace the reference to 'Order 50; with a reference to 'Part 38; being the equivalent in the Federal Court Rules 2011; and
2. amending Form 1, Document title, so that it will be in a format similar to the one used in the forms approved under the Federal Court Rules 2011.
Patricia Christie
SA & NT District Registrar
3 August 2011: Approved Forms and Revised Practice Notes
Consequential to the implementation of the Federal Court Rules 2011, the Court has approved Forms and completed a review of its current Practice Notes.
The Federal Court Rules 2011, which started on 1 August 2011, provide for the Court to approve forms. On 1 August 2011 the Chief Justice, under Rule 1.52 (2), approved a number of forms to take effected from that date. The Approved Forms are essentially the same as the forms that were circulated during July 2011 with only a number of minor changes. An explanation of these changes made to the draft forms (and the draft Rules) is on the Court’s website.
Practice Notes 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 the references to relevant rules in the Federal Court Rules 2011. In addition, the Chief Justice has issued three new Practice Notes:
GEN 1 – Court sittings and registry hours
GEN 2 – Documents
GEN 3 – Use of Court forms
GEN 1 sets out general information about the Court’s sittings and the hours of District Registries.
GEN 2 sets out the requirements for a document prepared by a party for use in the Court that is not in an approved form. This exception is for documents where compliance with the approved forms is impracticable or is otherwise permitted by the Court or a Registrar.
GEN 3 sets out detailed information about the use of the Court’s Approved Forms. This Practice Note provides information about and examples for court headers, the format for parties, cross-claims (headers, schedules and parties), the front-page footer, service, abridgment of service, address for service, draft orders, affidavit and bill of costs.
If you have any queries please contact me on (02) 9230 8336.
John Mathieson
Deputy Registrar
29 July 2011: Federal Court Rules 2011
The legislative instrument Federal Court Rules 2011 was registered on the Federal Register of Legislative Instruments on 28 July 2011. The Rules will start on 1 August 2011.
A copy of the Rules is now available on the Internet from the ComLaw site at http://www.comlaw.gov.au/ (SLI 2011 No 134). The associated forms will be available on the Court’s website from 1 August 2011.
Patricia Christie
SA & NT District Registrar
26 July 2011: Federal Court Rules Comparative Tables
Two comparative tables have been published to aid navigation between the old and new rules. The tables can be found on the Federal Court Rules 2011 page.
The proposed revised Rules are still to be signed by the Judges of the Court and registered on the Federal Register of Legislative Instruments and the proposed approved forms are still to be formally approved by the Chief Justice.
Rules
Since the earlier version of the draft Federal Court Rules 2011 were put up on the Federal Court website on 3 June 2011, the following amendments have been made:
Rules 11.01(4) and (5) have been amended to delete references to fax numbers. As a result, a party’s address for service no longer includes a fax number.
Rule 10.31 has been amended to remove any ambiguity.
Rule 11.01 has been amended to include a note to the effect that parties can agree upon a method of service. See also rule 10.28.
Rule 8.02, in relation to the Civil Dispute Resolution Act, has been amended to delete sub-rules (3), (4) and (5). The effect of this amendment is that the rule now provides simply that the applicant’s genuine steps statement must comply with section 6 of the Civil Dispute Resolution Act. A corresponding amendment has been made to rule 5.03(2) which provides that a respondent must comply with s 7 of the Civil Dispute Resolution Act.
“Significantly” has been removed from rule 16.45(1).
The discovery rules in Part 20 have been tightened in two respects. Rule 20.11 has been redrawn to provide that an application for discovery should not be made unless an order is necessary for the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. The discovery rules make it clear that the test for discovery is directly relevant and the Peruvian Guano test has no role to play. Lastly, Division 20.2 has been amended to make it clear that it applies to a proceeding which is proceeding on affidavits not pleadings.
The rules relating to International Arbitration in Division 28.5 have undergone some minor amendments but their substantive effect has not changed.
Two new rules have been inserted in relation to applications for leave to appeal, at 35.18 and 35.19. These new rules relate to applications which may be dealt with without an oral hearing, and the filing of submissions. A new rule has also been inserted at 36.43. This rule relates to an objection to an application being dealt with without an oral hearing.
Rules relating to Trans-Tasman proceedings have been inserted in Divisions 34.4 and 34.5. Note that these rules do not come into effect until the Trans-Tasman Proceedings Act 2010 has come into operation which will not be until later this year.
When the Rules require a document to be served on the same day as it is filed, they have been amended to provide for service “as soon as practicable”.
Rule 40.29 has been redrawn to make it clear that Schedule 3 only applies after 1 August 2011 and the previous Schedule 2 to the old Rules apply to that date.
A number of other typographical and drafting anomalies have been corrected. These have not altered the substantive effect of the Rules.
It is not anticipated that any further amendments will be made to the Rules prior to their implementation on 1 August 2011.
Forms
Since the earlier version of the draft proposed approved forms were put up on the Federal Court website there have been an extensive number of forms amended (although the changes made are only in a limited number of areas in those forms) and a number of new forms (Forms 96 to 102, including 98A to 98C) have been added for Trans-Tasman proceedings.
Forms which have been changed or added are shown in the “Updated after 3 June 2011” column of the table below as ‘edited’ or ‘new’. The areas where changes have been made to the ‘edited’ forms since 3 June 2011 include:
Provision for inclusion of fax numbers have been removed consequential to the changes to Rules 11.01(4) and (5) mentioned above
Form 16 (Applicant’s genuine steps statement) has been altered consequential to the changes to Rule 8.02 mentioned above
Forms 17 (Statement of claim), 33 (Defence) and 34 (Reply) have been changed by replacing the reference to “solicitor/counsel” with “lawyer”. This is consistent with the terminology in the revised rules.
Form 31 (Notice of cross-claim) now includes provision for all parties in other cross-claims to be identified in the schedule. Also a further notice has been added for the information of a cross-respondent who is a new party.
All subpoenas for production (Forms 43B, 43C, 55B, 55C, 98B and 98C) have been amended following rule changes. The reference in note 9A to “PDF format on a CD rom” has been removed. A similar change has been made to form 44.
Form 59 (Affidavit) has been amended. A new instruction has been added that the table of contents should be used only if the affidavit (including annexures) exceeds 10 pages. The footer was missing on the earlier published version and this has been restored.
The migration certificate was removed from Forms 51, 52, 53, 56 and 57. This certificate was unnecessary in IAA forms.
The IAA subpoenas (Forms 55A, 55B and 55C) have been changed to permit parties as well as non parties to apply to the Court for expenses.
Form 119 has been amended for use under Rule 35.20 (previously numbered 35.18) and Rule 36.43
Form 127 (Bill of costs) has a new section for Lawyers’ hourly rates. Note 20.2 in Schedule 3 of the revised rules requires the bill of costs to include the hourly rate actually charged by the lawyer.
Consequential amendments have been made as a result of a small number of rules being renumbered and to correct typographical and drafting anomalies. . Also some text changes to various forms have been made to correspond with other minor rule changes
All of the changes to the forms previously published on 3 June 2011 are shown on Track Change versions of the relevant forms. For the convenience of users, these are contained in the zipped file also on the Court’s website, named “New and edited forms since 3 June 2011”
It is not anticipated that any further modification will be made to the draft proposed approved forms prior to their implementation on 1 August 2011.
7 July 2011: Transcript
Transcript of proceedings: Ceremonial Sitting of the Full Court for the Swearing In and Welcome of the Honourable Justice Murphy, Melbourne, 14 June 2011.
5 July 2011: Federal Court Rules 2011 - FAQs
A list of frequently asked questions on the Federal Court Rules 2011 has been compiled and are available here.
The new Rules commence on August 1.
4 July 2011: NSW Registry
From Monday, 4 July 2011 the NSW Registry is extending its public enquiry counter opening times. The public enquiry counter will be open from 9.00am to 4.30pm.
22 June 2011: Speech
'Secrecy provisions: Policy and practice': speech delivered at the National Information Law Conference 2011, National Museum of Australia, Canberra, on 24 March 2011, by Justice Kenny.
21 June 2011: Rules Revision 2011 - Podcast
Justice Lander provides an introduction to the new Rules in a presentation to the Melbourne legal profession on June 9.
15 June 2011: Invitation to Admiralty & Martime Users' Group Meeting - 5 July
The Federal Court of Australia with the Federal Magistrates Court will hold a Users’ Group meeting for Admiralty and Maritime jurisdiction on Tuesday, 5 July 2011 at 5.00 pm in Conference Room 18.01, Level 18, Law Courts Building, Queens Square, Sydney for interested practitioners to come and express their views or simply listen.
15 June 2011: National Notification to Practitioners & Litigants
Implementation of new Federal Court Rules - * updated with new session/s for NSW, Victoria & Tasmania Registries
The Federal Court Rules 2011 will commence on 1 August 2011. These Rules are an extensive revision of the current Rules.
The Federal Court Rules 2011 will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au once registered on the Federal Register of Legislative Instruments. However, in order to give practitioners an opportunity to become familiar with the Rules before they commence, a copy of these Rules is available on the Court’s website from early June 2011. In addition, the associated Court forms, which will now be authorised by the Chief Justice rather than being prescribed in a schedule to the Rules, will also be available on the Court’s website during June 2011
Throughout June and July 2011 the Court will hold presentations aimed at assisting the legal profession to become familiar with the new Rules. Below is the proposed timetable for the presentations.
Fair Work Australia has advised that, with effect from 1 July 2011, the application fee for filing applications made under sections 365, 372, 394 and 773 of the Fair Work Act 2009 will increase to $62.40.
Under items 3 and 4 of Schedule 1 to the Federal Court of Australia Regulations 2004 the fees payable to the Federal Court for filing applications under section 539 of the Fair Work Act 2009 are linked directly to the fee payable to Fair Work Australia as above, so a similar increase will apply.
The next biennial increase in other fees in Schedule 1 is not due until 1 July 2012.
3 June 2011: Implementation of new Federal Court Rules - draft Federal Court Rules 2011
The Federal Court Rules 2011 will commence on 1 August 2011. These Rules are an extensive revision of the current Rules. The Federal Court Rules 2011 will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au once registered on the Federal Register of Legislative Instruments.
In order to give practitioners an opportunity to become familiar with the Rules before they commence, copies of the draft Rules and the associated Court Forms are now available. These draft documents are available for access until 31 July 2011.
The draft Rules and forms should not be relied upon, other than to obtain a familiarity with the new approach and structure of the Rules. Only the Federal Court Rules 2011 when available from the ComLaw website should be accepted as the official version of the Rules. Likewise only the approved forms when published on the Court's website should be accepted as the official version of the Court forms.
31 May 2011: Full Court and Appellate sittings for 2012
Subject to there being sufficient business, the Full Court and Appellate sittings of the Federal Court of Australia during 2012 will be held in all capital cities within the periods indicated below:
13 February - 9 March 2012
30 April- 25 May 2012
30 July - 22 August 2012
5 - 30 November 2012
Any urgent matter may be transferred to a place of sitting other than that at which the matter was heard at first instance.
If the circumstances require it, the Court may sit to hear matters on dates other than those listed.
PA Keane
Chief Justice
Monday, 30 May 2011
12 May 2011: New version of Administrative Notice NSW 2 - Corporations Matters
Thursday, 16 June 2011
Session 1: from 11am to 12.30pm, or Session 2: from 2pm to 3.30pm
Law Courts Building, Queens Square, Sydney (court room to be advised on the day)
Presenters:
Presentations by a Judge and senior NSW Registrar/Mediators
Topics:
The session will be interactive and examine how a matter travels through the court from filing, to directions hearings, interlocutory hearings, mediation, case conferences, hearing and judgment.
Other topics which will be covered include:
Courtroom etiquette, whether before a judge, registrar or full court, in a physical courtroom or eCourt
Procedure for issuing and accessing subpoenaed documents and discovery orders
Numbers are limited for this free seminar and will be
accepted in order of receipt.
Enquiries:
(02) 9230 8567
21 April 2011: Transcript
Transcript of proceedings: Ceremonial Sitting of the Full Court for the Swearing In and Welcome of the Honourable Justice Robertson, Sydney, 18 April 2011.
23 December 2010: Federal Court Amendment Rules 2010 (No 2)
The Federal Court Amendment Rules 2010 (No 2) was registered on the Federal Register of Legislative Instruments on 22 December 2010. The amendments will commence on 1 January 2011.
A copy of the Amendment Rules is now available on the Internet from the ComLaw site at http://www.comlaw.gov.au/ (SLI 2010 No.338).
The Amendment Rules make the following amendments to the Federal Court Rules:
1. amend Order 78 consequential upon the amendments to the Native Title Act 1993by the Native Title Amendment Act 2009 (the NTA Act) relating to mediation;
2. Amend Orders 62 and 80 and Form 15B to replace the term ‘legal practitioner’ with the term ‘lawyer’ overlooked in the changes adopted in the Federal Court Amendment Rules 2010 (No 1);
3. amend Schedule 2 to adjust the quantum of prescribed costs in accordance with the recommendations of the Joint Costs Advisory Committee.
John Mathieson
Deputy Registrar
23 December 2010
9 December 2010: Guidelines for offshore arrests issued by the Admiralty Committee
The protocol has been developed to manage issues that may arise in cases where a ship is to be arrested or held in custody at anchor. The Admiralty Committee consulted extensively with the Australian Maritime Safety Authority, Ports Australia and MLAANZ, as well as the legal profession.
If you have any queries please contact Tony Tesoriero in the NSW Registry on (02) 9230 8250 or Rainer Gilich in the WA Registry on (08) 9268 7122.
Tony Tesoriero & Rainer Gilich
Deputy District Registrars (Admiralty and Maritime)
6 December 2010: New Administrative Notice - NSW4: Related Proceedings
On 6 December 2010, the NSW District Registrar issued a new Administrative Notice - NSW 4: Related proceedings. The purpose of the notice is to set out arrangements to assist with allocation of related proceedings to the same docket judge.
29 October 2010: Changes to filing and other fees in the Federal Court
These Amending Regulations, commencing on 1 November 2010, implement further changes to the Federal Court of Australia Regulations 2004 (the Regulations) concerning fee exemptions and waivers in the Federal Court. Similar changes are being implemented in the Family Court, Federal Magistrates Court and Administrative Appeals Tribunal from that date.
The Amending Regulations introduce a new flat fee of $100 for certain applications (and other items) replacing fee waivers and certain fee exemptions.
All existing ‘subject’ exemptions currently in clauses 1(2), 1(3), 2, 3, and 4 of Schedule 3 to the Regulations (ie Human Rights and Fair Work proceedings [other than the reduced filing fees on the initiating application under items 2 ($54), 3 ($60.60) and 4 ($60.60) of Schedule 1] and appeals from these; applications to set aside a subpoena by an applicant who is not a party to the proceedings; tax appeals involving the same issue across multiple years; criminal matters; remittals from the High Court; cases stated or questions of law reserved or referred; proceedings in respect of which an international conventions provides no fee is payable; references by the Commissioner of Taxation; applications for an extension of time; interlocutory applications [setting-down fees only]; bankruptcy [setting-down and hearing fees only]; and delivery of reserved judgments [hearing fees only]) continue. Likewise the existing provisions for deferral of payment of a fee continue.
The transitional provisions in the Amending Regulations provide that the existing regime for ‘party’ exemptions currently in paragraphs 1(1) (a) to (c) of Schedule 3 to the Regulations (see the first dot point below for more detail) will continue to apply for all matters commenced on or before 31 October 2010. Those transitional provisions do not, however, apply to persons and corporations who had previously been granted a waiver of fees because of financial hardship.
For all matters commenced on or after 1 November 2010 (and, for persons and corporations in matters commenced on or before 31 October 2010 who previously had been granted a fee waiver because of financial hardship):
persons who are in receipt of legal aid; assistance under Part 11 of the Native Title Act 1993 for the proceeding from a representative body or funding under s 203FE of that Act to enable them to perform the functions of a representative body; hold a health care card, pensioner concession card or equivalent; receive youth allowance, Austudy or ABSTUDY; are under 18 years of age; or are in prison or in detention in a public institution will pay 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 and then pay no further fee – whether for filing, setting-down or hearing.
persons or corporations who satisfy a registrar or authorised officer that payment of the full fees would cause them or it financial hardship (having regard to income, day to day expenses, liabilities and assets) will pay a reduced flat fee of $100 on each occasion that a full fee would otherwise be payable (or the full fee if it is less than $100) for filing and setting-down but no hearing fees.
For the first category (ie those entitled to pay only the ‘one off’ flat fee), a registrar or authorised officer will have a discretion to waive payment of the ‘one off’ flat fee payable on any further proceeding commenced by that person if satisfied that the further proceeding is closely connected to the proceeding on which a fee has been paid and waiver of the fee on the closely related proceeding is appropriate.
A party who is exempt from payment of fees or liable to pay only a reduced fee is also entitled to obtain from the Court, without fee, one copy of any court document or a copy of court documents required for the preparation of appeal papers.
The changes also clarify that a party who has paid more than that party was required to pay under the Regulations is entitled to a refund for the amount overpaid.
If you have any queries please contact me on 02 9230 8336.
John Mathieson
Deputy Registrar
19 October 2010: Copyright Tribunal user group meeting (NSW Registry)
*** PLEASE NOTE THIS MEETING HAS BEEN CANCELLED.
User group meeting 8 November 2010, from 5.30 - 6.30pm in Room 18.47
18 October 2010: List of priority native title cases
The Federal Court recognises that it is not possible for all pending native title cases to be intensively managed at the same time by the Court and the parties. It is therefore necessary for the Court to determine priorities within the pending native title case load so that cases are properly resourced and efficiently progressed to trial or mediated outcomes. Cases that, for a variety of reasons, may never result in a native title or related outcome can also be identified and managed appropriately.
The process of making decisions about the order in which a Court will deal with pending cases involves numerous factors to be taken into account. This process is complicated by the need to consider cases on a State, Territory or regional basis.
The Federal Court approaches this difficult and important issue by reviewing each case, either through directions hearings, regional case management conferences, State or region based callovers and State based users’ forums. The views of the applicants and all parties are relevant.
The criteria the Court refers to when determining priorities includes:
1. whether the case involves a matter of the public interest;
2. whether the resolution of the case will impact on other cases or the attitudes of the parties and in turn speed up the resolution of other related cases;
3. the level of future act activity;
4. the views of the parties;
5. the level of preparedness of the Applicant (that is, the extent of evidence gathered and issues identified); and
6. the age of the case.
Importantly, in publishing the list the Court acknowledges that it will evolve and change for a variety of reasons. Some may think their cases should be included and others may think their cases should be excluded. As such the list may change, as matters are resolved, removed or included and a current and interactive list will be maintained on the Court’s website. Cases not mentioned on the list are also important and the Court will maintain an oversight of all pending cases through the Court’s usual case conferences, directions hearings or callovers. It may also be assumed that the Court or the National Native Title Tribunal will actively manage other cases not on the list.
Practice Note CORP 3 requires that orders for the convening of a meeting of members/creditors under s 411(1) of the Corporations Act 2001 (Cth) contain a statement to the effect that the fact the Court has ordered a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting is no indication that the Court has a view as to the merits of the scheme or as to how members/creditors should vote or has prepared, or is responsible for the content of, the explanatory statement.
This Practice Note has been issued in response to a recommendation by the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee. It was considered by that Committee to be necessary to address any concern that the Court’s orders for the convening of a meeting of members/creditors under s 411(1) may give the impression of endorsement by the Court of the scheme of arrangement proposed.
If you have any queries please contact me on (02) 9230 8336.
John Mathieson
Deputy Registrar
23 September 2010: Judicial appointments
The Attorney General invites expressions of interest, or nominations from suitable persons, for appointment as a Federal Court Judge.
21 September 2010: Robing of Counsel in the Federal Court of Australia
The following robing practices apply in the Federal Court, unless a judge otherwise orders, having regard to the nature or circumstances of a particular matter:
Robing of Counsel in the Federal Court of Australia
Wigs, full-bottomed or otherwise, are not worn on any occasion.
Robes, and any related attire, are worn for:
trials
appeals
all other final hearings, including the final hearing of a separate issue
and for delivery of judgment after all such hearings.
Robes are not worn for any other hearing, including the hearing of an interlocutory issue and matters before a Federal Court Registrar.
In the event of doubt, enquiry should be made of the associate to the presiding judge.
If you have any queries, please contact me on (02) 9230 8720.
Elizabeth Connolly
Manager, Policy & Planning
24 August 2010: Admiralty and Maritime Law Seminar scheduled Nov 2010
'Current issues in Admiralty' Date: 9 November 2010 Time: 5.15-7.00 pm AEDT
Topics: Is it time to consider reform of the Admiralty Act 1988?
Alexander Street SC and Edward Cox
Demystifying the Personal Property Securities Act 2009 in Admiralty Law
Gregory Nell SC
Andrew Boxall & Frazer Hunt: Co-authors of: Ship Finance & Maritime Law [a chapter in forthcoming publication, 'Personal Property Securities Law in Australia', Lexis Nexis]
Dr James O’Donovan: Author of: 'Personal Property Securities Law in Australia', Lawbook Co. 2009
Chairs:
The Honourable Justice D M Ryan & the Honourable Justice S D Rares
Welcome:
The Honourable Chief Justice Keane
Note:
Audience contributions and questions at the end of the seminar
RSVP:
5 November 2010.
Note that booking is essential. Please complete the registration form and return.
Venues:
Law Courts Building, Queens Square, Sydney.
Video link will be available at the following locations:
Adelaide:
Roma Mitchell Commonwealth Law Courts Building,
3 Angas Street.
Brisbane:
Harry Gibbs Commonwealth Law Courts Building,
119 North Quay
Canberra:
Nigel Bowen Commonwealth Law Courts Building,
Childers Street
Darwin:
Level 3, Supreme Court Building, State Square
Hobart:
Edward Braddon Commonwealth Law Courts Building,
39-41 Davey Street
Melbourne:
Owen Dixon Commonwealth Law Courts Building,
305 William Street
Perth:
Peter Durack Commonwealth Law Courts Building,
1 Victoria Avenue
Enquiries:
Tony Tesoriero (02) 9230 8250 or Rainer Gilich (08) 9268 7122
3 August 2010: Invitation to Patent & Intellectual Property Users' Group Meeting NSW District Registry
The Federal Court of Australia, NSW Registry, invites practitioners interested in Intellectual Property and Patent Law to attend a professional liaison meeting to discuss current issues relating to patents and intellectual property litigation. The Meeting will be chaired by the Honourable Justice Annabelle Bennett, convener of the Patent Panel in the NSW Registry. Please feel free to circulate this invitation to interested members of your firm or chambers.
Date: Monday 30 August 2010 Time: 5.00pm until 6.30pm
Place: Federal Court of Australia,
NSW Registry, Conference Room 18.47,
Level 18, Law Courts Building,
Queens Square, Sydney NSW
During the first half of 2010 the Court wrote to a number of people and organisations to advise them of the Court’s intention to compile a list of mediators to be available to parties in the proceedings and the Court, to assist in the management of native title work.
By way of background, in September 2009 the Parliament’s amendments to the Native Title Act 1993 placed with the Court a clear responsibility for managing all aspects of native title proceedings, including the opportunity to refer a matter to mediation before a person or body other than the National Native Title Tribunal (the Tribunal) or a Registrar of the Court.
The Court welcomed this opportunity and has given careful consideration to the practicalities of the process to be used to identify, select and appoint an appropriate mediator.
In this context the Court called for expressions of interest from people who asserted suitable qualifications and experience as a mediator so that a list of names could be compiled and made available by the Court for reference when considering the referral of a matter or part of a matter to a mediator (other than a member of the Tribunal or a Registrar). This list might also be supplemented by the Court’s or the parties’ own consultation to identify other persons suitable for appointment.
Potentially interested people were provided with an Expression of Interest document which set out the process for inclusion on the list.
the selection of a mediator for inclusion on the list does not create a contract between the mediator and the Court; and
inclusion on the list does not necessarily mean that the mediator will be appointed to a matter, nor can the mediator rely on their inclusion for the purpose of self promotion.
To ensure the currency of the names on the list it will be reviewed every twelve months and updated having regard to the persons’ availability, interest in the area, skills and capacity.
Referral process
The referral and appointment process in any matter will be ultimately a matter for the Court. A matter or part of a matter may be referred by order of the Court to a mediator other than a member of the Tribunal or a Registrar the Court following the request of a party to a proceeding or at the Court's own initiative. The Court will invite the parties to view the list and nominate a preferred mediator. Careful consideration will be given to the views of the parties as it is preferable for the parties to agree that a particular person is the appropriate person to assist them to resolve their dispute. In a situation where the parties cannot agree on a person to be appointed as the mediator the Court may nominate three mediators from who the parties could select. Alternatively the Court may decide which person from amongst the nominations is to be appointed.
Fees
In general the approach to payment of fees will be as follows:
fee rates will be contained in the written contract entered into between the Court and Mediator;
where the Court orders that a mediator be appointed for the management and resolution of a matter that will require an ongoing and long term commitment, the mediator will generally be appointed as an acting Registrar of the Court and paid at that rate by the Court via an intermittent contract;
where the Court orders that a mediator be appointed for a particular issue or event, the Court will generally appoint the mediator and pay them at a rate referable to the per diem rate of a member of the National Native Title Tribunal fixed by the Federal Remuneration Tribunal; and
where the Court wishes to appoint a prominent person for the purpose of, for example, an evaluation of a claim or a particular legal or factual issue, the Court will generally appoint the person and pay them at a fee no more than the daily fee of an acting Supreme Court Judge, as set by the NSW Statutory and Other Offices Remuneration Tribunal.
Subject to there being sufficient business, sittings of a Full Court of the Federal Court of Australia during 2011 will be held in all capital cities within the periods indicated below:
7 February - 4 March 2011
2 - 27 May 2011
1 - 24 August 2011
31 October - 25 November 2011
Any urgent matter may be transferred to a place of sitting other than that at which the matter was heard at first instance.
If the circumstances require it, a Full Court may sit to hear appeals on dates other than those listed.
P A Keane
Chief Justice
30 June 2010
30 June 2010: New version of Practice Note IP 1 – Proceedings under the Patents Act 1990 (Cth)
This Practice Note replaces the version of Practice Note IP 1 issued on 25 September 2010.
In the new version, paragraph 1.4 no longer provides that all new proceedings under the Patents Act will be listed before a nominated Patents List Judge for the first directions hearing. It acknowledges that in some registries this practice may not be followed. This change reflects new arrangements in the NSW Registry whereby new proceedings will now be listed before the Judge on the Patents Panel to whom the proceeding has been allocated.
If you have any queries please contact me on (02) 9230 8336.
Philip Kellow
Deputy Registrar
30 June 2010: Changes to filing and other fees in the Federal Court
The Federal Court of Australia Amendment Regulations 2010 (No 1) (the Amendment Regulations) will commence on 1 July 2010.
The Amendment Regulations make a number of changes to the item numbers and quantum of the filing and other fees set out in Schedule 1 to the Federal Court of Australia Regulations 2004 (the Regulations).
A summary of the new fees and other information on the new fees is available here.
As previously advised, the Attorney-General’s Department has indicated that further changes will be made to the Regulations to introduce a new flat fee of $100 for certain applications (and other items) that are currently eligible for fee waivers and exemptions. It is proposed that these changes will commence on 1 September 2010. The Court will provide further details of these changes as they become available.
If you have any queries please contact me on (02) 9230 8336.
Federal Court Amendment Rules 2010 (No 1)
Practice Note CM 16 – Pre-judgment Interest
Practice Note CM 17 – Representative Proceedings Commenced under Part IVA of the Federal Court of Australia Act 1976
Federal Court Amendment Rules 2010 (No 1)
The Federal Court Amendment Rules 2010 (No 1) will be registered on the Federal Register of Legislative Instruments on 2 July 2010. The Amendment Rules commence on 5 July 2010.
A copy of the Amendment Rules will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au/.
2. omit Order 1 subrule 5AC (5A) so that subpoenas lodged electronically are dealt with in the same manner as other court documents lodged electronically;
3. amend Order 8 paragraph 3 (2) (c) to clarify that an applicant need establish a prima facie case for only one of the grounds of relief mentioned in an application for the purpose of obtaining leave to serve the application outside Australia;
4. amend Order 13 rules 2 and 3 to clarify certain rules dealing with the amendment of court documents and pleadings;
5. amend Order 35 subrule 7 (2) to make it clear that the Court may set aside an order that an application in the appellate jurisdiction be dismissed for failure of the applicant to attend a hearing relating to the application;
6. amend Order 37 rule 9 and Schedule 1 to prescribe a form for a warrant of committal in relation to a contempt and a form for a warrant of committal for an offence;
7. amend Order 63 rules 2 and 3 and subrule 5 (2) to provide that a single account is to be used by the Court for the Litigants’ Fund;
8. amend the prescribed form for an application to commence a proceeding (Form 5) to remove the words ‘The statement is not taken to be part of the pleading’ and to require an applicant to include details of any Act upon which the relief claimed may depend;
9. amend Form 129 to correct a typographical error;
10. omit Order 35 rule 7A and replacing Order 35 rule 8 to adopt the harmonised rules on interest rates on judgment as recommended by the Council of the Chief Justices’ Discount and Interest Rate Harmonisation Committee.
Practice Note CM 16
Practice Note CM 16 sets out the approach that parties may expect the Court to adopt when determining the rate of pre-judgment interest. This was previously dealt with by Order 35 rule 7A of the Federal Court Rules that will be omitted by the Federal Court Amendment Rules 2010 (No 1).
This is a ‘harmonised’ practice note prepared by the Council of the Chief Justices’ Discount and Interest Rate Harmonisation Committee.
A copy of the Practice Note is available from the Court’s web site at www.fedcourt.gov.au.
The Practice Note will commence on 5 July 2010.
Practice Note CM 17
This practice note sets out the procedures and arrangements for the conduct of representative proceedings under Part IVA of the Federal Court of Australia Act.
A copy of the Practice Note is available from the Court’s web site at www.fedcourt.gov.au.
The Practice Note will commence on 5 July 2010.
Philip Kellow
Deputy Registrar
25 June 2010: Changes to filing and other fees in the Federal Court
The Attorney-General’s Department has provided details of the filing and other fees that will apply to proceedings in the Federal Court from 1 July 2010.
A summary of the new fees prepared by the Department is available below. The changes described in the document are subject to the approval of the Governor-General in Council and will be implemented by amendments to the Federal Court of Australia Regulations 2004 (the Regulations).
In addition to the changes announced by the Department, the fee for:
filing of an application under section 539 of the Fair Work Act 2009 in either of the following circumstances:
(a) the applicant has been dismissed from employment in alleged contravention of Part 3-1 of that Act;
(b) the applicant alleges a breach of section 351 of that Act.
filing of an application under section 539 of the Fair Work Act 2009 if the applicant has been dismissed from employment in alleged contravention of section 772 of that Act
will increase to $60.60 from 1 July 2010. These fees are currently items 3 and 3A in Schedule 1 to the Regulations.
As noted in the Department’s paper, the numbering of the fee items in Schedule 1 to the Regulations may change when the Regulations are amended on 1 July 2010.
The Court will publish further information about the new fees (including the new item numbers) on 1 July 2010.
The Department has also advised that a new flat fee of $100 will be introduced to replace certain applications (and other items) that were previously eligible for fee waivers and exemptions. It is proposed that these changes will commence on 1 September 2010. The Court will provide further details of these changes as they become available.
If you have any queries please contact me on (02) 9230 8336.
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