National Court Framework (NCF) Reforms

NCF Update

11 October 2016

On Tuesday, 25 October 2016, the Federal Court will implement the following as part of its NCF reforms:

Practice Notes

  • The Court's practice documents have been reviewed and refined from 60 practice documents to 25 new national practice notes. There will no longer be any administrative State-based notices
  • The new national practice notes will be issued on 25 October 2016 and to the extent practicable, apply to proceedings whether filed before, or after, the date of issuing. Although these practice notes will be effective immediately, the Court is aware that, depending on the nature of each case and what stage it may be at, a period of adjustment will be necessary
  • All existing practice documents will be revoked at the same time as the new practice notes are issued.
  • A reference table is attached which describes each of the new national practice notes in the following 3 categories: (1) Central Practice Note; (2) National Practice Area Practice (NPA) Notes; and (3) General Practice Notes
  • The practice notes and information to assist practitioners and Court users regarding the practice note changes including a table that cross-references the old and new practice notes, will be available on the Court's website from 25 October 2016

Consultation Process for General Practice Notes

  • The General Practice Notes (excluding the Class Actions Practice Note, which has undergone extensive external consultation) will be issued on a "12-month review" basis to allow for a comprehensive period of external consultation. Details on how to provide feedback will be available on the Court's website on 25 October 2016

Court's website

  • The Court's website is being updated to provide dedicated webpages for each NPA and other key areas of law, such as class actions and appeals. The NPA and other webpages contain not only a summary of the NPA and sub-areas, but key NPA-specific resources such as relevant forms and rules, legislation, practice notes, latest judgments and speeches
  • The enhanced website will go live on 25 October 2016

Further reforms

  • The area of appeals has undergone considerable reform and the Court is in the process of developing new practice notes for appeals. In the interim, an outline of the new appeals-related procedures will be available on the Court's website from 25 October 2016
  • A number of new forms have been created and some current forms amended as part of the development of the new national practice notes. The Court's eLodgment system is in the process of being updated to allow these new forms and documents to be lodged, using their correct titles, via eLodgment. The changes to eLodgment are expected to be implemented in late November 2016. In the interim, the new forms and documents can be lodged by using the generic non-prescribed lodgement types. Detailed information on the new forms will be available on the Court's website on 25 October 2016

NPA Update

  • There have been some changes to the NPAs: (1) a new NPA – "Other Federal Jurisdiction" has been created and (2) there has been a change to the name and scope of the "Federal Crime and Related Proceedings" NPA - previously known as "Criminal Cartel Trials". Parties can now choose these NPAs in eLodgment when filing a matter

Assistance or further queries

Practice Notes Reference Table

Central Practice Note

CPN-1Central Practice Note: National Court Framework (NCF) and Case Management
  • sets out the fundamental principles concerning the NCF and key principles of case management, including the Court's Case Management Imperatives for consideration prior to the first case management hearing
  • all other practice notes are to be read within the framework established in this practice note and parties should not commence or take steps in proceedings without first considering the principles set out in this practice note
  • refers to new guides: which addresses how to communicate with the Court

National Practice Area (NPA) Practice Notes

ACLHR-1Administrative and Constitutional Law and Human Rights
  • sets out arrangements for the management of administrative law, constitutional law and human rights cases
  • refers to new guides: developed to assist litigants commencing Administrative Law and Constitutional Law Cases or Human Rights Cases
A&M-1Admiralty and Maritime
  • sets out arrangements for the management of Admiralty and maritime cases
  • refers to the use of the flexible and streamlined procedures the commencement of proceedings (Concise Statement), tailored discovery (Redfern Discovery Procedure) and tailored evidence procedures (Memorial Procedure) set out in C&C-1
C&C-1Commercial and Corporations
  • sets out the arrangements for the management of commercial and corporations cases within each of the 6 Sub-areas: Commercial Contracts, Banking, Finance and Insurance; Corporations and Corporate Insolvency*; General and Personal Insolvency*; Economic Regulator, Competition and Access; Regulator and Consumer Protection; and International Commercial Arbitration*
  • incorporates schedules which set out the arrangements for the management of cases within 3 of the Sub-areas (marked * above)
  • sets out the flexible and streamlined procedures for: commencement of proceedings (Concise Statement (new form)); tailored discovery (Redfern Discovery Procedure) and tailored evidence procedures (Memorial Procedure)
  • new form: Concise Statement
E&IR-1Employment and Industrial Relations
  • sets out arrangements for the management of employment and industrial relations cases
IP-1Intellectual Property
  • sets out arrangements for the management of intellectual property cases within each of the 3 Sub-areas: Patents & Associated Statutes; Trade Marks and Copyright & Industrial Design
  • refers to the use of the flexible and streamlined procedures for commencement of proceedings (Concise Statement), tailored discovery (Redfern Discovery Procedure) and tailored evidence procedures (Memorial Procedure) set out in C&C-1
NT-1Native Title
  • sets out arrangements for the management of native title proceedings including matters arising under or in relation to any Indigenous Land Use Agreement (ILUA) or other agreement made under the Native Title Act, or concerning a Prescribed Body Corporate
  • outlines the role of the Native Title Registrar in the case management of native title proceedings
  • sets out arrangements for the management of tax cases including some changes to the arrangements for commencing Part IVC appeals and to the timing for the lodgement of the amended "Taxation NPA – Pro Forma Questionnaire"
CRIME-1Federal Crime and Related Proceedings
  • will be developed following finalisation of the Federal Court (Criminal Proceedings) Rules, it will set out the arrangement for the management of matters in the criminal jurisdiction of the Court. The scope of the NPA will encapsulate any criminal-related proceeding (not merely cartel-related proceedings)

NOTE: There is a 9th NPA – "Other Federal Jurisdiction". This NPA covers cases that fall within the Court's jurisdiction but outside the above NPAs. No practice note is required at this stage and information will be contained on the Court's website.

General Practice Notes

GPN-CAClass Actions
  • applies to all class action matters, regardless of the NPA and sets out arrangements for the conduct of class actions. Key features include:
  • the introduction (for appropriate cases) of a flexible dual-judge system, with a "case Management Judge" and "Trial Judge"
  • the introduction of a "Class Actions Registrar" where judges consider that such support may be required
  • moderate reforms to the requirement to disclosure of certain information to class members and/or the Court
  • clarification of the content and timing of the first and subsequent case management hearings
  • updates to the arrangements in respect of communicating with class members
  • amendments to the draft Opt Out Notice attached to the practice note
  • settlement approval modifications and changes to the arrangements for the Court supervising deductions for legal costs and funding charges
  • new form: Litigation Funding Agreement Disclosure Notice
GPN-EXPTExpert Evidence
  • applies to any proceeding involving the use of expert evidence and incorporates the: Harmonised Expert Witness Code of Conduct and the Concurrent Expert Evidence Guidelines
  • sets out the approach to expert evidence and provides guidance on the use of expert witnesses in proceedings and the requirements for the contents of an expert's report
  • provides a practical guide on how concurrent evidence may be run, if it is used
GPN-SURVSurvey Evidence
  • provides guidance for the preparation and use of survey evidence and sets out:
  • how a case should be managed if survey evidence is proposed, including the requirement to file a notice of intention to conduct a survey
  • admissibility of survey evidence and dangers of improperly prepared survey evidence
  • how survey evidence may be considered and guidance on avoiding problems with a survey
  • new practice note which sets out the Court's approach to Costs, including the case management of costs, GST, lump-sum costs orders soon after final hearings and the utilisation of consolidated costs orders
  • includes guides for: Preparing a Costs Summary (supporting a lump-sum costs order request) and Preparing a Bill of Costs
  • updated form: Form 127 – Bill of Costs
GPN-FRZGFreezing Orders
  • harmonised practice note which addresses the procedure for making a freezing order application (or Mareva order), including the usual terms of such an order
GPN-SRCHSearch Orders
  • harmonised practice note which sets out information and procedure for applying for search orders and content of related orders
GPN-UNDRUsual Undertaking as to Damages
  • relates to any proceeding (or prospective proceeding) where the usual undertaking as to damages is given to the Court and sets out the wording of the "usual undertaking as to damages"
GPN-SUBPSubpoenas and Notices to Produce
  • new practice note which sets out a consistent national procedure for subpoena requests and leave to issue a subpoena
  • raises key issues concerning different types of subpoenas, addresses other subpoena arrangements including:
  • how to comply with a subpoena, return of subpoena and production of documents
  • applications to set aside a subpoena
  • inspection
  • expenses
  • Notices to Produce
  • new forms: Request for Leave to Issue Subpoena Form and Uplift Form
GPN-ENFEnforcement, Endorsement and Contempt
  • provides guidance on 3 procedures:
  • enforcement of Federal Court orders
  • endorsement of orders that are penal in nature
  • guidance on contempt of court generally
  • new form: Request for Enforcement
GPN-XBDRCross-Border Insolvency: Cooperation With Foreign Courts or Foreign Representatives
  • applies to any proceeding in the Court which involves cross-border insolvency including:
  • how the Court's cooperation with foreign courts and representatives in the area of cross-border insolvency matters in accordance with the Cross-Border Insolvency Act 2008 (the Act) and the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law
  • guidance on applications under the Act relating to a shop owner
  • Part 2 is harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee
GPN-OSEOverseas Service and Evidence
  • provides guidance on:
  • service of originating process and other documents outside Australia
  • the taking of evidence overseas, including how to apply for an order to examine a witness outside Australia, notification requirements, travel expenses and proposal and evidence by video link
GPN-FRGNForeign Judgments
  • provides guidance for applications:
  • for registration of certain judgments of New Zealand courts and tribunals under the Trans-Tasman Proceedings Act 2010
  • for registration of certain foreign judgments of various countries under the Foreign Judgments Act 1991
  • to enforce a money judgment of the Dubai International Financial Centre Courts, in the Federal Court
GPN-AUTHAuthorities and Citations
  • provides guidance for the use of Lists of Authorities in all final hearings (including appeals), unless the Court otherwise orders
  • sets out the procedure for citing cases and legislation
GPN-ACCSAccess to Documents and Transcripts
  • sets out a nationally consistent approach to access Court documents including the procedure for access by parties and non-parties (including media) and access to transcript
  • new forms: Party Access Request Form and Non-Party Access Request Form
GPN-TECHTechnology and the Court
  • covers all aspects of use of technology in the court, including electronic discovery, eTrials, eCourtroom etc.
  • contains broad information and refers to various guides or information on the Court's website (which will set out relevant technology information and procedures in greater detail)
GPN-INTInterest on Judgments
  • provides guidance on both pre and post judgment interest
  • the formula and rate of pre-judgment is harmonised
GPN-TRIBConsent Orders Involving a Federal Tribunal
  • addresses the required steps of the parties when a remittal from the Court to a Federal Tribunal occurs by way of consent orders