The Federal Court has one key outcome identified for its work, which is, through its jurisdiction, to apply and uphold the rule of law to deliver remedies and enforce rights and in so doing, contribute to the social and economic development and wellbeing of all Australians.
This chapter reports on the Court’s performance against this objective. In particular, it reports extensively on the Court’s workload during the year, as well as its management of cases and performance against its stated workload goals. The chapter also reports on aspects of the work undertaken by the Court to improve access to the Court for its users, including changes to its practices and procedures. Information about the Court’s growing work with overseas courts is also covered.
The following examines the Court’s jurisdiction, management of cases, workload and use of assisted dispute resolution.
As reported in previous annual reports, the Court fully implemented a new case management
system, Casetrack, during 2004-05, which replaced the Court’s existing FEDCAMS system. Casetrack records matters differently to FEDCAMS with matters in the Court classified according to eleven main categories, described as ‘causes of action’ (COA). FEDCAMS categorised according to the legislation a matter was filed under (more than 150 different pieces of legislation make up the Court’s jurisdiction). The effect of the different counting method is that the Court’s annual reports since 2004-05 have reported different figures for earlier years from those recorded in those years.
The Court’s jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary criminal matters. It also has jurisdiction to hear and determine any matter arising under the Constitution.
Cases arising under Part IV (restrictive trade practices) and Part V (consumer protection) of the Trade Practices Act 1974 constitute a significant part of the workload of the Court. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. See Figure 5.8 on page 97 for comparative statistics regarding Trade Practices Act matters.
Many cases also arise under the Administrative Decisions (Judicial Review) Act 1977, which provides for judicial review of most administrative decisions made under Commonwealth enactments on grounds relating to the legality, rather than the merits, of the decision. Under the Act, the Court also hears appeals on questions of law from the Administrative Appeals Tribunal.
The Court has jurisdiction under the Judiciary Act 1903 to hear applications for judicial review of decisions by officers of the Commonwealth. Until 1 December 2005, this jurisdiction included the review of ‘privative clause’ and other decisions by the Migration Review Tribunal and the Refugee Review Tribunal under the Migration Act 1958. The Court’s migration jurisdiction is discussed later in this Chapter on page 22.
The Court hears taxation matters on appeal from the Administrative Appeals Tribunal. It also exercises a first instance jurisdiction to hear objections to decisions made by the Commissioner of Taxation.
The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trademarks and designs). All appeals in these cases, including appeals from the Supreme Courts, are to a Full Federal Court.
A significant part of the Court’s jurisdiction derives from the Native Title Act 1993 . The Court has jurisdiction to hear and determine native title determination applications, revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Court also hears appeals from the National Native Title Tribunal (NNTT) and matters filed under the Administrative Decisions (Judicial Review) Act involving native title. The Court’s native title jurisdiction is discussed on page 23. Figure 5.11 on page 100 shows native title matters filed over the last five years.
Another important part of the Court’s jurisdiction derives from the Admiralty Act 1988. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories to hear maritime claims under this Act. Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. During the reporting year the Court’s Admiralty Marshal made 15 arrests. See Figure 5.10 on page 99 for a comparison of Admiralty Act matters filed in the past five years.
The Court’s jurisdiction under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 (ASIC Act) covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers. The jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. See Figure 5.7 on page 96 for a comparison of corporations matters filed in the last five years.
The Court exercises jurisdiction under the Bankruptcy Act 1966 . It has power to make sequestration (bankruptcy) orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. The Court’s jurisdiction includes matters arising from the administration of bankrupt estates. See Figure 5.6 on page 95 for a comparison of bankruptcy matters filed in the last five years.
The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Magistrates Court in non–family law matters. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island . The Court’s appellate jurisdiction is discussed on page 20. Figure 5.13 on page 102 shows the appeals filed in the Court since 2002–03.
This summary refers only to some of the principal areas of the Court’s work. Statutes under which the Court exercises jurisdiction are listed in Appendix 4 on page 86.
The Court’s jurisdiction during the year was enlarged or otherwise affected by several statutes including:
• Anti–Money Laundering and Counter–Terrorism Financing Act 2006
• Copyright Amendment Act 2006
• Independent Contractors Act 2006
• Medibank Private Sale Act 2006
• Native Title Amendment Act 2007
• Private Health Insurance Act 2007
During the reporting year there were no amendments to the Federal Court of Australia Act.
The Attorney–General’s Department continues to consider proposals by the Court that the Federal Court of Australia Act be amended to:
• empower the Court to refer all or part of a proceeding to a referee for report to the Court;
• allow a single judge to make any interlocutory order in the appellate jurisdiction pending a determination of an appeal to a Full Court; and
• allow for certain types of appeals to be heard and determined by a two judge appeal panel.
On 1 October 2006, the Federal Court of Australia Regulations 2004 was amended to increase the filing and other fees set out in Schedule 1. A minor amendment was made on 2 December 2006 to update references to certain provisions of the Workplace Relations Act 1996.
The judges are responsible for making the Rules of Court under the Federal Court of Australia Act . The Rules provide the procedural framework within which matters are commenced and conducted in the Court. The Rules of Court are made as Commonwealth Statutory Rules.
The Rules are kept under review. New and amending rules are made to ensure that the Court’s procedures are current and responsive to the needs of modern litigation. They also provide the framework for new jurisdiction conferred upon the Court. A review of the Rules is often undertaken as a consequence of changes to the Court’s practice and procedure described elsewhere in this report. Where appropriate, proposed amendments are discussed with the Law Council of Australia and other relevant organisations.
During the reporting year, a number of amendments were made to the Rules. These included amendments to:
• replace Order 8 and the associated forms with a new Order 8 dealing with the rules for service of court documents outside Australia;
• update the provisions for electronic filing in Order 1, including an increase to the limit on the number of pages that may be sent via electronic communication;
• amend Order 33 rule 11 which deals with the giving of evidence or the production of documents that may be the subject of privilege;
• replace Order 46 rule 7A with a new rule 7A which deals with whether certain documents should be accepted for filing;
• amend Order 80 which deals with the referral of litigants to legal practitioners for advice and assistance;
• update Order 48 to reflect the renumbering of provisions of the Workplace Relations Act 1996 as a result of the Workplace Relations Amendment (Work Choices) Act 2005;
• insert new rules in Order 52 to facilitate the determination of certain appellate matters without an oral hearing in accordance with section 25 of the Federal Court of Australia Act;
• clarify the rules in Order 52 dealing with the documents to be provided to the Court on the hearing of an appeal;
• amend Order 27 and Form 41 in relation to the time in which a subpoena must be served, and the disposal of documents or other materials produced to the Court pursuant to a subpoena; and
• update the scale of solicitor’s costs set out in Schedule 2.
During the reporting year the judges also adopted amendment rules in relation to the Federal Court (Corporations) Rules 2000 and the Federal Court (Bankruptcy) Rules 2005.
In early 2007 the Chief Justice and the Chief Federal Magistrate established a Harmonised Bankruptcy Rules Monitoring Committee to regularly review the harmonised bankruptcy rules that have been adopted by the Federal Court and the Federal Magistrates Court so that legislative or procedural issues may be addressed in a consistent manner.
Practice Notes supplement the procedures set out in the Rules of Court. During the reporting year the Chief Justice issued the following practice notes:
• a revised Practice Note No 19 – List of Authorities and Legislation, Proceedings Generally;
• a new Practice Note No 25 – Title of proceedings for relief under section 39B of the Judiciary Act 1903 against the Australian Industrial Relations Commission;
• a new Practice Note No 26 – Consent orders in proceedings involving a federal tribunal.
In June 2007 the Chief Justice issued a revised Practice Direction – Guidelines for Expert Witnesses in Proceedings before the Federal Court. Also in June the Chief Justice issued a Notice to Practitioners on changes in the conduct of native title proceedings in the Court.
Practice Notes and Notices to Practitioners are available through District Registries and on the Court’s Internet home page. The Court has also published various Notices to Practitioners issued by the District Registries. These are available from the Court’s home page, the District Registries and in loose–leaf legal services.
The Court has concurrent jurisdiction with the Federal Magistrates Court in a number of areas of general federal law including bankruptcy, human rights, workplace relations and migration matters. The registries of the Federal Court provide registry services for the Federal Magistrates Court in its general federal law jurisdiction.
As shown in Figure 3.1 below, the combined number of filings in the two courts has been growing since the establishment of the Federal Magistrates Court in mid–2000. In 2006–07, a total of 12,740 matters were filed in the two courts. In 1999–2000 there were 6,276 filings in the two courts.
The growth in the number of filings has had a considerable impact on the Federal Court’s registries, which process the documents filed in these matters for both courts and provide the administrative support for each matter to be heard and determined by the relevant Court.
Figure 3.1 – Filings to 30 June 2007
Federal Court of Australia (FCA) and Federal Magistrates Court (FMC)
The Court has adopted as one of its key case flow management principles the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court’s Individual Docket System, and the implementation of practices and procedures designed to assist with the efficient disposition of cases according to law.
Under the Individual Docket System, a matter will usually stay with the same judge from commencement until disposition. This means a judge has greater familiarity with each case and leads to the more efficient management of the proceeding.
In 1999–2000 the Court set a goal of 18 months from commencement as the period within which it should dispose of at least 85% of its cases (excluding native title cases). The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court’s workload, and a decrease in the number of less complex matters (such as winding up and related applications under the Corporations Law). It is reviewed regularly by the Court in relation to workload and available resources. The Court’s ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.
Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the 18 month period, with only particularly large and/or difficult cases requiring more time. Indeed, many cases are urgent and need to be disposed of quickly after commencement. The Court’s practice and procedure facilitates early disposition when necessary.
During the five year period from 1 July 2002 to 30 June 2007, 89.67% of cases (excluding native title matters) were completed in less than 18 months, 83.8% in less than 12 months and 65% in less than six months (see Figure 5.4 on page 93). Figure 5.5 on page 94 shows the percentage of cases (excluding native title matters) completed within 18 months over the last five reporting years. The figure shows that in 2006–07, 92.2% of cases were completed within 18 months. This compares to 91.1% in the previous reporting year.
Special issues arise in relation to the disposition of native title matters. This is discussed on page 25.
In the reporting period, 2,161 judgments were delivered. Of these, 185 were delivered in Full Court appeals and 1,363 in single judge appeals and 613 were judgments in first instance matters. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions.
The nature of the Court’s workload means that a substantial proportion of the matters coming before the Court will go to trial and the decision of the trial judge will be reserved at the conclusion of the trial. The judgment is delivered at a later date and is often referred to as a ‘reserved judgment’. The nature of the Court’s appellate work also means a substantial proportion of appeals require reserved judgments.
Appendix 7 on page 108 includes a summary of decisions of interest published during the year and illustrates the Court’s varied jurisdiction.
In the reporting year, 3,543 cases were commenced in, or transferred to, the Court’s
original jurisdiction.
Matters may be remitted or transferred to the Court under:
• Judiciary Act 1903, section 44
• Cross–vesting Scheme Acts
• Corporations Act 2001
• Federal Magistrates Act 1999.
During 2006–07, 38 matters were remitted or transferred to the Court:
• 10 from the High Court of Australia
• 11 from the Federal Magistrates Court
• 17 from other courts.
Matters may be transferred from the Court under:
• Federal Court of Australia (Consequential Provisions) Act 1976
• Jurisdiction of Courts (Cross–vesting) Act 1987
• Administrative Decisions (Judicial Review) Act 1977
• Bankruptcy Act 1966
• Trade Practices Act 1974
• Corporations Act 2001
• Administrative Appeals Tribunal Act 1975.
During 2006–07, 73 matters were transferred from the Court:
• 62 to the Federal Magistrates Court
• 11 to other courts.
Table 5.2 on page 90 shows a comparison of the number of matters commenced in the Court’s original jurisdiction and the number completed. The number of matters completed during the reporting year was 3,808 against 4,887 in the previous reporting year. The decline is due to a decrease in the number of corporations law matters filed and completed during the year.
The total number of current matters in the Court’s original jurisdiction at the end of the reporting year was 2,678 (see Table 5.2), compared with 2,943 in 2005–06.
The comparative age of matters pending in the Court’s original jurisdiction (against all major
causes of action, other than native title matters) as at 30 June 2007 is set out in Table 3.1 on
the following page.
Native title matters are not included in Table 3.1 because of their complexity, the role of the National Native Title Tribunal and the need to acknowledge regional priorities. The age of pending native title matters is set out in Table 3.4 on page 25.
Table 3.1 – Age of current matters
(excluding appeals and related actions and native title matters)
Age at 30 June 2007
|
Under 6 mths
|
6 – 12 mths
|
12 – 18 mths
|
18 – 24 mths
|
Over 24 mths
|
Sub–Total
|
Cause of Action
|
|
|
|
|
|
|
Administrative law
|
73
|
43
|
10
|
4
|
11
|
141
|
Admiralty
|
16
|
17
|
9
|
16
|
5
|
63
|
Bankruptcy
|
63
|
7
|
3
|
5
|
7
|
85
|
Competition law
|
16
|
7
|
4
|
3
|
15
|
45
|
Consumer protection
|
69
|
82
|
26
|
46
|
79
|
302
|
Corporations
|
346
|
52
|
28
|
26
|
42
|
494
|
Human rights
|
10
|
6
|
2
|
5
|
7
|
30
|
Industrial
|
63
|
21
|
18
|
4
|
6
|
112
|
Intellectual property
|
87
|
65
|
28
|
24
|
38
|
242
|
Migration
|
12
|
2
|
2
|
1
|
6
|
23
|
Miscellaneous
|
22
|
6
|
7
|
7
|
9
|
51
|
Taxation
|
115
|
90
|
64
|
37
|
204
|
510
|
Total
|
892
|
398
|
201
|
178
|
429
|
2098
|
% of Total
|
42.5%
|
19.0%
|
9.6%
|
8.5%
|
20.4%
|
100.0%
|
Running Total
|
892
|
1290
|
1491
|
1669
|
2098
|
|
Running %
|
42.5%
|
61.5%
|
71.1%
|
79.6%
|
100.0%
|
|
Table 3.1 shows that as at 30 June 2007 there were 607 matters over 18 months old compared to 660 in 2006 (not including native title matters). Taxation and trade practices make up a high proportion of the matters over 24 months old.
The Court will continue to focus on reducing its pending caseload and the number of matters over 18 months old. A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 5 to this report commencing on page 89.
The appellate workload of the Court continues to be substantial. While most of the appeals arise from decisions of single judges of the Court or the Federal Magistrates Court , some are in relation to decisions by State and Territory courts exercising certain federal jurisdiction.
The number of appeals and related actions are dependent on many factors including the number of first instance matters disposed of in a reporting year, the nature of matters filed in the Court, and whether the jurisdiction of the Court is enhanced or reduced by legislative changes or decisions of the High Court of Australia on the constitutionality of legislation.
The Migration Litigation Reform Act 2005 (Cth) (“the Act”), which commenced on 1 December 2005, amended legislation affecting the Court’s original and appellate jurisdiction. The Court’s original jurisdiction for the judicial review of decisions under the Migration Act 1958 (Cth) is now exercisable in only limited circumstances as the Act, in effect, gave the Federal Magistrates Court exclusive first instance jurisdiction in migration cases.
The Act also amended the Federal Court of Australia Act 1976 (Cth) to provide that the appellate jurisdiction of the Court in relation to an appeal from a migration judgment of the Federal Magistrates Court is to be exercised by: a single judge; or if a judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court
– a Full Court.
The Court monitors the effects on its workload of increases in the number of appeals and, as necessary or relevant, will introduce changes to appellate practice and procedure to ameliorate or limit these effects so that the Court continues to deal with its appellate and first instance work in an efficient, effective and timely manner.
Towards the end of each calendar year, the Court publishes its schedule of Full Court sittings for the following year . In the 2007 calendar year, four Full Court sittings have been scheduled for Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart and Darwin. Once an appeal is ready to be heard, it can usually be listed for the next scheduled Full Court sitting in the capital city where the matter was heard at first instance.
When appeals are considered to be sufficiently urgent, the Court will convene a special sitting of a Full Court which may, if necessary and appropriate, hear the appeal in a capital city other than that in which the case was originally heard or use video conferencing facilities. During the reporting year, 15 special hearings of the Full Court (totalling 17 hearing days) were held to enable the early disposition of urgent appeals.
In 2006–07, 1,520 appeals and related actions were filed in the Court (see Table 5.3 on page 91). An “Appeal or Related Action” includes any appeal or interlocutory application filed in the Court’s appellate jurisdiction in relation to a decision of a court exercising federal jurisdiction. The related actions include, for example, applications to the Court for leave or special leave to appeal, an extension of time within which to institute an appeal, security for costs in relation to an appeal or a stay of an appeal.
The Federal Magistrates Court continues to be the most significant source of appeals and related actions accounting for 76.3% (1,160) of the total number of appeals and related actions filed in the Court in 2006–07. Further information on the source of appeals and related actions is set out in Figure 5.14 on page 103.
In the reporting year 1,530 appeals and related actions were completed. This number is attributable to the large number of appeals and related actions, particularly migration cases, from the Federal Magistrates Court.
The majority of appeals and related actions from the Federal Magistrates Court were heard and determined by single judges exercising the appellate jurisdiction of the Court. Over the four Full Court sitting periods during the reporting year, only 34 appeals from the Federal Magistrates Court were fixed for hearing before a Full Court, comprising three judges.
As at 30 June 2007 there were 534 pending appeals and related actions.
The comparative age of matters pending in the Court’s appellate jurisdiction (including native title appeals) as at 30 June 2007 is set out in Table 3.2 on the following page.
At 30 June 2007 there were 32 appeals and related actions over 18 months old – 27 of these involve associated appeals and related actions that arise out of the same or related proceedings at first instance. A number of cases are awaiting resolution of proceedings in a tribunal or other court or have been remitted back to the Court from the High Court following successful appeals. The age of these appeals and related actions generally reflects the nature and complexity of these cases.
Table 3.2 – Age of current appeals and related actions
Current Age
|
Less than 6mths
|
6–12 mths
|
12–18 mths
|
18–24 mths
|
Over 24 mths
|
Total
|
Appeals and related actions
|
420 |
69
|
13
|
0
|
32
|
534
|
% of total
|
78.65%
|
12.92%
|
2.43%
|
0%
|
6%
|
100.0%
|
Running total
|
420
|
489
|
502
|
502
|
534
|
|
Running %
|
78.65%
|
91.57%
|
94%
|
94%
|
100%
|
|
In recent years the Court has had to deal with a significant number of migration matters at first instance. In 2003–04 there were over 2,590 migration matters filed in, or remitted to, the Court in its original jurisdiction. This included 1,716 matters remitted by the High Court. However, in 2006–07, only 46 migration matters were commenced in the Court’s original jurisdiction. The change in workload reflects the fact that most migration applications are now commenced in the Federal Magistrates Court in accordance with the Migration Litigation Reform Act.
Migration Act matters are a substantial and increasing proportion of the Court’s appellate jurisdiction. In 2006–2007, 71.8% of appeals and related actions concerned decisions under the Migration Act. Table 3.3 below shows how the number of appeals involving the Migration Act has increased as a proportion of the appellate workload since 2002–03. The Court has introduced a number of procedures to streamline the preparation and conduct of these appeals and applications, most of which are heard by a single judge rather than a Full Court. It is important to note that rather than seeking additional judicial resources, the Court has implemented structural and procedural changes to facilitate the expeditious management of the migration workload.
Initially, the Court applies systems to assist with identifying matters raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting in more timely and efficient disposal of matters. Then, all migration appeals and related applications (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court sitting period. Fixing appeals and applications for hearing in the four, four–week, scheduled Full Court siting periods has, to date, provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same four-week sitting period.
Where any migration appeal or application requires an expedited hearing, the matter is allocated
to a docket judge or duty judge, in accordance with local practice, or referred to a specially convened Full Court.
Table 3.3 –
Migration Act appeals and related actions as a proportion of all appeals
and related actions
Appeals and related actions
|
2002–03
|
2003–04
|
2004–05
|
2005–06
|
2006–07
|
Migration Jurisdiction
|
437
|
663
|
1050
|
1052
|
1092
|
%
|
61.8%
|
73.4%
|
75.8%
|
78.9%
|
71.8%
|
Total Appeals & RA
|
707
|
903
|
1385
|
1334
|
1520
|
Note. Migration appeals and related actions finalised in the reporting year was 1,124 and still pending in the reporting year was 331.
The Native Title Act 1993 (Cth) (NTA) confers jurisdiction on the Court to decide applications for the recognition of native title and various other proceedings in relation to native title. The original legislation enacted in 1993 provided for applications to be lodged with the National Native Title Tribunal (referred to as ‘the Tribunal’ below) and then be referred to the Court only in relation to particular questions of law or in the event that mediation failed to produce a result. The Act was substantially amended in 1998.
The 1998 amendments substantially increased the Court’s jurisdiction. In effect, all native title applications are filed in the Court and the Court has a wide range of powers under the Native Title Act in relation to the management and resolution of native title applications.
During the reporting period the Act was further amended by the Native Title Amendment Act 2007. The amendments represent the Government’s response to the report of the Native Title Claims Resolution Review which was undertaken by Mr Graham Hiley QC and Dr Ken Levy in 2005 and 2006. In relation to the Court, particular amendments are designed to promote better communication and coordination and remove duplication of functions between the Court and the Tribunal.
Overall, the amendments are designed to ensure that effective outcomes are delivered more expeditiously for all parties and agreement–making, in preference to litigation, is encouraged. This has been achieved by a number of means including conferring more mediation powers on the Tribunal.
In this context, during the year the Court has reviewed its management of native title proceedings, which is discussed in more detail below.
In general, the Court has adopted an active approach to the management of native title cases, which aims to create and support a culture of activity and progress. The Court uses a range of innovative strategies to assist with the management of native title cases. These are also discussed below, as is the native title workload for the year and native title decisions of interest.
In 1999 the Court implemented a national system of case allocation, whereby cases are allocated to a ‘provisional docket judge’ upon filing and are monitored by the Court. All matters in mediation in a particular State or Territory are generally allocated to a Provisional Docket Judge who reviews them from time to time and receives reports from the Tribunal about the progress of mediation. Where the case requires close case management or the hearing of a substantive issue, the matter may be referred to a judge to manage the matter through to trial.
At 30 June 2007, 374 native title matters had been substantively allocated, of which 112 remain active and are managed by judges of the Court. The Court’s allocation system has been recently reviewed and is referred to below.
The Court has developed case management strategies for native title cases which are appropriately responsive, but also mindful of the general practice and procedure of the Court. As with other litigation, native title cases are subject to intensive case management and there is extensive judicial involvement in the supervision and monitoring of a case in progress. The Court encourages innovative approaches to the settling of a claim, and during the reporting period used a number of different mechanisms to progress matters, including:
• making orders requiring a high level of specificity in the timetabling of mediation,
• the use of pre–mediation conferences or regional case conferences,
• referral of a matter or specific issue to mediation by an officer of the Court, and
• the appointment of Court experts and/or the convening of conferences of experts.
Regional case conferences
The Court has developed a practice for the regional management of claims which allows claims from the same region in a State or Territory to be reviewed at the same time in the light of work plans and priorities proposed by the applicants, their representative body and the State or Territory Government.
Through convening regional case conferences, the judge or judges (sometimes sitting together) examine priorities and timeframes for mediation, negotiation and litigation on a regional basis, with regard to regional priorities, interrelated claims and resource considerations. The regional case conferences provide a forum by which parties inform the Court of their priorities on a regional, rather than case–by–case basis. In support of this process the Tribunal produces regional reports so that the judge/s may order appropriate timetables if necessary.
This approach is used consistently and most effectively in Queensland, Western Australia and the Northern Territory and is now reflected to a lesser or greater degree in all States and Territories, with some variation in the approach taken.
Court annexed mediation
During the reporting period, the role of the Court in relation to the Tribunal’s mediation has been to impose a timetable on matters referred to the Tribunal for mediation and set various deadlines by which progress should be shown. Alternatively the Court will set the matter down for trial and may order that mediation cease.
Although mediation is primarily conducted by the Tribunal, the Court has used its own mediation process from time to time, in particular following a decision of the Court, a case management conference, or having regard to the particular circumstances of the matter or of the parties.
During the year, the Court revised its approach to the national allocation and management of native title cases in light of the legislative amendments arising out of the Native Title Claims Resolution Review mentioned above.
On 8 June 2007 the Chief Justice issued a Notice to Practitioners relating to changes in the conduct of native title proceedings in the Federal Court. The approach outlined in the Notice builds on the regional case management already in place and reflects a change to the provisional docket/substantive docket system.
Cases in mediation will generally be managed by a Native Title List Judge assigned to a particular region. Matters referred for trial after mediation has been terminated will be allocated to a trial judge. In each Registry one or more judges, referred to as the Native Title List Judges, will manage first instance native title matters. They will be assisted by Native Title Registrars.
The new arrangements encourage a greater emphasis on the regional management of native title cases with a view to allowing their progress to be coordinated and streamlined across a region or regions. The Native Title List Judge may conduct regional case management conferences in conjunction with any trial judges with allocated native title cases in the region. The object of the management of the list by the Native Title List Judge is to ensure that groups of applications within a particular region can be reviewed together regularly and that there is a specific and credible mediation timetable on a case specific and/or regional basis prepared and complied with. The objective of the Native Title List Judge will also be to pursue the timely resolution of cases which
are in mediation.
The Native Title List Judges and Court’s Native Title Registrars may conduct case management conferences with the Tribunal and the parties to applications within a particular region to identify cases that should proceed to trial with priority. Cases may be given priority if they can function as lead cases within a group of claims or for a region. By resolving legal or factual questions of general application, such matters may provide a basis for consent determinations or negotiated agreements in other matters within the region. As a general rule, a case will be allocated to a trial judge only once it has actively progressed into trial.
When mediation before the Tribunal has ceased, a trial judge may give consideration to case management measures to assist in the progress of the case. These may include the appointment of an expert to assist the Court, the referral of a case to a form of ADR such as mediation or a compulsory conference of experts.
During the reporting year, the Court made 15 determinations in respect of the existence of native title. One of these determinations was made after contested hearings, six were achieved through mediation and negotiation and eight of the determinations were made in respect of non–claimant applications.
At 30 June 2007 there were 580 current native title cases. Table 3.4 below shows the age of these cases.
Table 3.4 – Age of current native title matters
Age at 30 June 2007
|
Under 6 months
|
6–12 months
|
12–18 months
|
18–24 months
|
Over 24 months
|
Total
|
Native Title Action
|
14
|
28
|
21
|
17
|
500
|
580
|
% of Total
|
2.4%
|
4.8%
|
3.6%
|
2.9%
|
86.2%
|
100.0%
|
Running Total
|
14
|
42
|
63
|
80
|
580
|
|
Running %
|
2.4%
|
7.2%
|
10.9%
|
13.8%
|
100.0%
|
|
It is important to note that the figures set out in Table 3.4 are based on all applications under the Native Title Act (NTA) that have been filed in the Court and which remain open on Casetrack. However, a large number of cases have been effectively closed as a result of being combined or consolidated with one or more cases, but remain open on Casetrack. The consolidation and streamlining of native title cases often means that applications are dealt with as a single ‘active claimant application’ with the consolidated or subsidiary files remaining open for practical purposes until the lead matter has been determined or finalised. In effect, this means that as at 30 June 2007 there were, in practical terms, 522 active native title claimant applications of which the NNTT is mediating 287. There were also 11 compensation claims and 33 non–claimant applications.
Of the 522 active claimant applications before the Court, 484 have been notified. The notifications that occurred in 2006–07 resulted in the Court processing and finalising 89 joinder of party applications.
Figure 5.11 on page 100 provides more information on native title act filings.
During the reporting year, a number of decisions of the Court clarified the following issues under the Native Title Act (NTA).
• Whether the Court can be satisfied of the appropriateness of an agreement under s87 of the NTA where the parties to the agreement establish that there is an agreement and whether it was freely entered into on an informed basis. In considering this approach the Court said that the NTA does not intend to substitute a trial conducted by State parties for a trial before the Court, it contemplates a more flexible process than is undertaken in some cases. Lovett on behalf of the Gunditjmara People v Victoria
• Reaffirmed the view of the full court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya that, in recognising the existence of native title, the native title right to live on the land and erect structures could include the right to permanently live on the land, subject to the inconsistency principle. King v Northern Territory of Australia (Newcastle Waters)
• Whether references in the NTA to ‘the applicant’ prevent the authorisation of persons as applicant being viewed individually and the resulting applicability of O 6 r 9 of the Federal Court Rules being applied to remove members of the group no longer authorised.
Chapman v Queensland
• Gave further consideration to the meaning of interest under s84 of the NTA and ultimately refused to join a local government authority as a respondent party. Akiba v Queensland (No.1)
• Whether a grant of fee simple under the Aboriginal Land Rights (NT) Act extended to the low water mark confers an exclusive right over the inter tidal zone. Gumana v Northern Territory
The Court has provided a court–annexed mediation scheme (where judges make orders that the parties attend mediation before a registrar, or someone agreed upon by the parties and then formally appointed by the District Registrar) since 1987. In 1997 the Federal Court of Australia Act 1976 (Cth) was amended with the result that a case can be referred to mediation with or without the consent of the parties.
Since the introduction of the Court’s Individual Docket System there has been a greater emphasis on the early identification of cases suitable for ADR and court-ordered mediation is increasingly viewed by the Court and by the profession as an integral and valuable part of the judicial case management process. The Court continues to encourage the parties to any litigation to adopt more efficient ways of managing a case and reducing the costs associated with litigating and mediation is one response to this issue.
While parties have the option of selecting their own external mediator the majority of Court–ordered mediations are conducted by Court registrars who have been trained as mediators and are required to continually improve their skills. Since the last report the Court has made considerable progress towards the introduction of a program for the accreditation of the Court’s Mediators. Whilst a National Mediator Accreditation scheme is yet to be introduced, the Court is developing its own scheme with reference to proposed national standards.
Figure 3.2 on page 27 sets out the number of matters referred to mediators during the five year period to 2006–07. The program has proved popular, with a total of 4,358 matters referred to mediation since its commencement in 1987. In the last five years, an average of 317 matters has been referred each reporting year. In the reporting year 332 matters were referred to ADR.
The types of matters referred can relate to most matters in the Court’s jurisdiction. However, the majority of referrals have been in matters concerning trade practices, intellectual property, taxation, workplace relations, and bankruptcy.
The settlement rates of cases referred to mediation since the commencement of the program in 1987 has averaged 55 per cent. Settlement rates at mediation should not, however, be the sole criteria by which the program is evaluated. Many matters which do not settle proceed to trial with issues better defined, or on the basis of agreed facts settled by the parties with the assistance of the mediator. In some instances the parties also agree that the Court should only be asked to determine liability or quantum. These types of results mean savings in costs to the parties and the Court.
Figure 3.2 – Assisted Dispute Resolution (ADR) 2002–03 to 2006–07
Matters referred for mediation
Management of cases and deciding disputes by Tribunals
The Court provides operational support to the Australian Competition Tribunal, Copyright Tribunal and the Defence Force Discipline Appeal Tribunal. This support includes the provision of registry services to accept and process documents, collect fees, list matters for hearings, and to otherwise assist the management and determination of proceedings. The Court also provides the infrastructure for tribunal hearings, including hearing rooms, furniture, equipment and transcript services.
The Court also provided support to the Federal Police Disciplinary Tribunal which ceased to exist during the year with the enactment of the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006.
A summary of the functions of each tribunal and the work undertaken by it during the reporting year is set out in Appendix 6 on page 104.
The following section reports on the Court’s work during the year to improve the operation and accessibility of the Court, including reforms to its practices and procedures, enhancements in the use of technology and improvements to the information about the Court and its work.
This section also reports on the Court’s work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including the participation of judges in bodies such as the Australian Law Reform Commission, the Judicial Conference of Australia and in other law reform and educational activities.
The Practice Committee is responsible for developing and refining the Court’s practice and procedure. During the reporting year the Committee considered a range of issues, including:
• issues arising from the Law Council’s paper on case management in the Court;
• the implementation of a proposed new ‘fair and reasonable’ test for the fixing of party and party costs in lieu of the current ‘necessary and proper’ test;
• current registry Individual Docket System practices;
• the operation of the Court’s legal assistance scheme under Order 80 of the Federal Court Rules;
• the powers of the Court that may be exercised by Registrars pursuant to a delegation under section 35A of the Federal Court of Australia Act;
• a review of the Practice Direction – Guidelines for Expert Witnesses to provide for expert evidence which is ‘argumentative’ and which might be accepted as submissions rather than evidence;
• procedures for dealing with certain applications ‘on the papers’;
• the exercise of appellate jurisdiction by a single judge;
• representative proceedings;
• the review of advocates’ immunity by the Standing Committee of Attorneys–General;
• the development of a new Practice Note dealing with the title of proceedings for relief under section 39B of the Judiciary Act 1903 against the Australian Industrial Relations Commission;
• the establishment of a joint courts committee to replace the Federal Costs Advisory Committee which is to be abolished; and
• the structure and content of appeal books.
The Committee met during the reporting year with the Law Council’s Federal Court Practice Committee to discuss matters concerning the Court’s practice and procedure, including:
• the rules revision project;
• the Law Council’s paper on case management issues;
• the Court’s review of how party and party costs should be determined;
• abolition of the Federal Costs Advisory Committee; and
• electronic trials, discovery of electronic records and related issues.
In recent years the Court has undertaken a range of activities in response to the challenges raised by self represented litigants. A number of these activities were identified in the Court’s Self Represented Litigants Management Plan which was adopted in late 2002. The Court continues to develop and implement strategies in relation to self represented litigants, and is compiling a new Management Plan.
During the year the Court has developed new functions to enable Casetrack to produce a range of statistical reports which will allow the Court to more closely monitor the impact that self represented litigants have on the litigation process and to measure the effectiveness of initiatives to assist them. These reports are expected to be available from August 2007 and will enable the Court to report more comprehensively next year. In the meantime, it is not possible to provide definitive information on the number of self represented litigants in the Court. Anecdotal evidence suggests that the number is decreasing, probably as an outcome of the Federal Magistrates Court hearing most of the first instance bankruptcy and migration cases, which historically involve a very high number of self represented litigants.
The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person’s inability to secure the services of an interpreter. It has therefore put in place a system to provide professional interpreter services to people who need those services but cannot afford to pay for them. In general, the Court’s policy is to provide these services for litigants who are unrepresented and who do not have the financial means to purchase the services, and for litigants who are represented but have exemption from, or have been granted a waiver of fees under the Federal Court of Australia Regulations.
Under the Federal Court of Australia Regulations, fees are charged for commencing a proceeding and for setting a matter down for hearing (including a daily hearing fee). A setting down fee is not payable on all matters and the amount of the daily hearing fee will vary depending on the nature of the hearing. The court fees increased on 1 July 2006 in accordance with regulation 8, which provides a formula for increasing specific court fees every two years from 1 July 2004.
The Federal Court of Australia Regulations authorise registrars to remit or waive fees payable where a person:
• has been granted legal aid by a body approved by the Attorney–General; or
• is the holder of a health care card, a pensioner concession card or a Commonwealth seniors health card; or
• is the holder of any other card issued by the Department of Families, Community Services and Indigenous Affairs or the Department of Veterans Affairs certifying entitlement to Commonwealth health concessions; or
• is an inmate of a prison or is otherwise lawfully detained in a public institution; or
• is a child under the age of 18 years; or
• is in receipt of a youth or AUSTUDY allowance; or
• is in receipt of an ABSTUDY allowance.
Registrars also have discretion to waive or remit a fee where payment would cause financial hardship to a person, taking into account the person’s assets, day–to–day living expenses, income and liabilities. A registrar’s decision to refuse an application to waive a fee is reviewable by the Administrative Appeals Tribunal. There were no applications to the Tribunal during the reporting period.
Details of the fees exempted or waived during the reporting year are set out in Appendix 1 on page 81.
Where appropriate, the Court will conduct hearings in remote locations. For example, in a number of native title cases the Court has travelled to remote areas of Western Australia, Queensland and the Northern Territory to take evidence from witnesses who may not otherwise be able to attend the Court.
The website is integral to the Court’s business and contains useful information about the Court and its work including full text judgments, daily court lists, practice and procedure guides, forms and fees, information for litigants and legal practitioners. It also provides access to electronic filing, eCourt online forum and eSearch for selected case information.
This year, at judges’ discretion, papers delivered by judges of the Court have been added to the website. Two educational DVDs, The role of judicial officers and How a case travels through the Federal Court, were also added to the site.
The Court publishes a number of brochures on aspects of its work including: a guide for witnesses appearing in the Court; information on procedures in bankruptcy, native title and human rights cases; information on the Court’s use of mediation. These brochures are available from any of the Court’s registries and are downloadable from the website.
When a decision of the Court is delivered, a copy of it is immediately made available to the parties and the media. The Court also provides electronic copies of judgments to legal publishers and
other subscribers.
Judgments are also made available in full text on the Internet at the Australasian Legal Information Institute (“AustLII”) site. A link to this site is provided on the Court’s web site. High profile judgments usually are made available at the AustLII site within a few hours of publication and other judgments within a few days.
The rapid availability of judgments electronically assists their speedy dissemination to the legal and wider community.
During the reporting year the Court’s Director Public Information provided a range of assistance to journalists covering Federal Court cases and issues related to the Court’s work. This included managing access to court proceedings by television and radio news outlets in matters of public interest. In 2006–07 this included the following cases:
• New Zealand v Moloney – a case in which the New Zealand Government sought the extradition of two members of a religious order who were alleged to have committed sexual offences. Television New Zealand was allowed to record vision of a five–judge appeal court sitting in Sydney.
• Bennell v State of Western Australia & Ors – cases involving six native title claims concerning land and waters in, or near to, the Perth metropolitan area. The ABC were permitted to record Justice Wilcox reading a summary of judgment that was shared with all major Perth outlets.
• Gunditjmara People’s application for native title determination – delivered by Justice North at Mt Eccles (near Portland) and covering lands in Victoria’s south west. Covered by ABC’s “Stateline” program.
• Yungngora People’s application for native title determination – delivered by Justice French at remote Noonkanbah Station in far north Western Australia. Covered by ABC, WIN, and Golden West.
A number of educational and training DVDs were also produced on: “The Role of Judicial Officers”, “How a Case Travels through the Federal Court”, “Working in the Federal Court”, “The Court Room”, and “Pre–Trial Judicial Management in the Federal Court”. Some of these are now viewable on the Court’s website.
The Court is actively engaged in a program of national strategies to enhance public understanding of the Court and its work, as well as confidence in the justice system and courts more generally. These strategies include ongoing initiatives such as regular meetings at a national and local level with different users of the Court, as well as a program of engagement with schools and other educational and community organisations. The following highlights some of the activities during the year.
The Court continued its involvement in user groups to provide an opportunity for information exchange with practitioners and other people with an interest in particular areas of its jurisdiction. During the year meetings were held with local law societies and bar associations in the states and territories and regular liaison meetings were held between the Practice Committee and the Law Council of Australia. In the course of the Rules Revision Project Justice Lander met with the Law Council and other representative bodies in each State and Territory. More detailed consultation will be held when the draft rules are finalised.
User group meetings for general Court users, as well as in specific areas of the Court’s jurisdiction, such as migration, corporations (including bankruptcy), admiralty, intellectual property and trade practices were also held. In Victoria in particular prior to the implementation of the ‘Fast Track List’, an extensive consultation program was undertaken with the legal profession. The ‘Fast Track List’ Practice Directions were circulated to the Federal Court Users Committee Group and Litigation Partners of several law firms to seek their feedback. The Law Institute of Victoria hosted a meeting with representatives from the Victorian Registry and several law firms to review the ‘Fast Track List’. A meeting was also held with representatives of the Victorian Bar and the Victorian Registry to review the ‘Fast Track List’.
During the year the Court undertook the following activities with the legal profession, schools, students and community organisations.
The NSW registry presented a paper at the Australian Legal Education Council National Conference in November 2006 and adjudicated a semi–final of SCRAM (Schools Conflict Resolution and Mediation) – a competition for year 9 and 10 students organised by the various State Law Societies. The registry also gave presentations to new litigation solicitors on practising in the Federal Court and the Federal Magistrates Court. The Registry hosted seven school students undertaking work experience placements during the year.
The ‘Fast Track List’ came into effect from 1 May 2007 in the Victorian Registry. The Victorian Registry hosted a number of Moot courts for the LaTrobe, Deakin and Monash Universities. On two occasions staff presented to the Victorian Bar Readers course providing an overview of the Federal Court, the Victorian Registry and federal jurisdiction. The registry hosted a delegation of Japanese students from the Chuo Law School and gave a presentation on the Court’s role, powers and procedure with respect to corporate governance issues. The Registry also has hosted five work experience students. Students have undertaken various duties in the Registry.
In Queensland, judges of the Court hosted a Practice Moot for the University of Queensland and Queensland University of Technology Maritime Moot Teams. The Practice Moot was held with a view to assisting the team participants in their preparation for the National Moot Competition held later in June. The adjudication panel comprised Justice Kirby of the High Court of Australia, Justice Kiefel of the Federal Court of Australia and Dr M White QC Adjunct Professor, Centre for Marine Studies, Marine and Shipping Law Unit, University of Queensland. There were also visits to the Court by law students of Bond University, Gold Coast. The Queensland District Registry continued its association with the Faculty of Law, Queensland University of Technology in conducting practice court sessions for students in bankruptcy matters.
The West Australian registry ran two comprehensive information sessions on Court and registry processes for junior solicitors and paralegals. A handbook covering information during the session was provided on a CD. The registry also ran information sessions and tours of Court facilities for various groups, including summer clerks and articled clerks. The registry hosted the grand finals of the Australian Law Students Association Humanitarian Law Moot and the Murdoch Law Society Trial Advocacy competition and an event for the University of Western Australia moot team. Justices French and Lee chaired an admiralty colloquia. The registry also delivered a talk on mediation as part of the Law Week activities and participated in a panel session on mediation for final year law students at the University of Western Australia.
The South Australian registry presented information sessions for practitioners and contributed to the SA Bar Readers Course. It also gave a presentation to the Insolvency Practitioners Association of Australia. There was a presentation on the Court for secondary school children during Law Week and presentations and building tours for Probus and other community groups during the year.
In May 2007 the Northern Territory Registry arranged a seminar for Justices French, Branson and Sundberg while their Honours were involved in Full Court sittings in Darwin. The function commenced with a presentation by Branson J on “Understanding the jurisdiction of the Federal Court – It’s easier than you think”. The presentation was very well received by a broad cross–section of practitioners. In addition, French J gave a presentation to the Law Society of the Northern Territory entitled: “Stopping the Train after the Wreck – Corporate Group Collapse and Protective Orders under Section 1323 of the Corporations Act” which was also well received. The registry also facilitated seminars by Justice Mansfield to the NT Law Society on a number of topics.
In the ACT, a reception was held on 8 February 2007 to mark the 30th Anniversary of the Federal Court in Canberra and the opening of a new entrance to the Nigel Bowen Commonwealth Courts Building where the ACT registry is situated. The Chief Justice addressed the gathering of distinguished guests including members of Canberra’s legal and political community. The Attorney- General, Philip Ruddock MP, also spoke about the history of the Court in Canberra.
During the reporting year 21 complaints were made to the Court in relation to its procedures, rules, forms, timeliness or courtesy to users. This figure does not include complaints about the merits of a decision by a judge or the Court, which may only be dealt with by way of appeal.
The Court is an active supporter of legal education programs, both in Australia and overseas. Information about the Court’s engagement with legal education programs for international jurisdictions is described below. During the reporting year, the Chief Justice and many judges:
• presented papers, gave lectures and chaired sessions at judicial and other conferences, judicial administration meetings, continuing legal education courses, university law schools; and
• participated in Bar reading courses, Law Society meetings and other public meetings.
An outline of the judges’ work in this area is included in Appendix 8 on page 120.
The Federal Court of Australia provides development assistance to neighbouring judiciaries across the Asia–Pacific Region. The Court is involved in numerous large programs and also coordinates official visits of judges and Court staff to and from Australia.
The Court is part of the Secretariat for the Asia Pacific Judicial Reform Forum (APJRF), (also including the High Court of Australia, the Supreme Court of NSW, Judicial Commission of NSW, the Supreme Court of the Philippines and the United Nations Development Program) which is a network of superior courts and justice sector agencies from 49 countries across the Asia Pacific region. The official APJRF website was launched in May 2007 at the second Round Table Discussion
held in Putrajaya, Malaysia. Work has begun on the APJRF Handbook, which will be a tool for
judicial reform targeting developing and transitional countries and supporting successful judicial reform programs.
During the year, the Court focused on building a new institutional relationship with the Supreme People’s Court of China which is intended to build the capacity of the Court in a number of technical legal areas. Several of the Court’s judges travelled to Beijing in June 2007 to deliver presentations and hold discussions with their counterparts with the intention of discussing areas of mutual interest and establishing a long–term cooperation relationship between the two courts.
The Federal Court has worked with the Supreme Court of Indonesia to strengthen the capacity of the Court and its officers for over 15 years. In November 2006, the Court hosted the annual meeting between Chief Justice Bagir Manan of the Supreme Court of Indonesia and Chief Justice Black. The purpose of the visit was to review the progress of current development programs between the courts and discuss potential assistance programs. As part of their visit, the Indonesian delegates visited both the Melbourne and Sydney registries of the Court, as well as the Family Court of Australia which is working with the Religious Courts of Indonesia.
In April 2007, the Court delivered a Budgeting and Financial Management Program to officials from the Supreme Court of Indonesia, which was designed to assist the Supreme Court with their financial management. The goal of the Program was to assist the delegates with the development of a transparent, accountable and consultative budgeting process for all jurisdictions managed by the Supreme Court.
During the year significant progress was made in reducing the backlog of cases in the Supreme Court of Indonesia, as part of the Backlog Reduction Program being conducted under the Memorandum of Understanding between the Supreme Court and the Federal Court of Australia. In addition, as part of this agreement, Federal Court judges in Sydney and Melbourne have been taking Indonesian language lessons, in an effort to improve the cultural awareness between the two courts.
In June 2007 delegates from the Supreme Court participated in a Leadership and Change Management Program in Sydney to provide selected judges and senior managers with the skills to assist them in implementing the Blueprint for Reform within the Supreme Court.
In January 2007, the Court commenced the Pacific Judicial Development Program to strengthen governance and the rule of law in 15 participating Pacific Island countries. This will be achieved through a range of activities which will enhance the competence of judicial and court officers and improve the systems and processes they use. The Program will run for at least five years, and is jointly supported by AusAID and NZAID. It has a number of key focus areas, including:
• Orientation and Refresher Programs to enhance skills, knowledge and professionalism in key competencies associated with the roles of judicial and court officers within the particular courts they serve.
• Community and Social Context for Justice which informs and empowers Pacific judiciaries to contend with issues of national and regional importance, including traditional and innovative systems of dispute resolution, the rights of women and children, family and sexual violence, and HIV/AIDS.
• Judicial Independence to bolster the strength of the judiciary as an unfettered branch of government able to uphold the rule of law particularly in the face of national and regional instability.
• Sustainable Systems and Processes to enable Pacific judiciaries to function efficiently and effectively.
• Information and Communication to ensure Pacific judiciaries remain abreast of national and regional legal, policy and systemic developments. This will include providing access to regional and national information databases, publications, law reports, precedents, legislative and policy instruments.
During the year, the Court continued its support to Tonga under the Pacific Governance Support Program. Several expert exchanges occurred between the Federal Court and the Supreme Court of Tonga, with the objective of improving judicial and court administration systems. The Court has also been instrumental in the re–design of the Supreme Court’s workflow and case management and a network of computers has been installed along with a file room. Most recently a mediator was trained and accredited by LEADR 1 and is now conducting mediations in Tonga.
The Federal Court has been asked to manage the revision of the first Vietnamese Benchbook. Justice Moore was integral to the development of the Benchbook and the Court is looking forward to working with the Supreme People’s Court in ensuring their Benchbook remains up to date.
In addition to the aforementioned, the Court has hosted visits from more than 90 overseas visitors, including delegations from:
• Supreme Court of Korea
• Courts Service Ireland
• Thailand Supreme Administrative Court
• Supreme People’s Court, People’s Republic of China.