FEDERAL COURT OF AUSTRALIA
ANNUAL REPORT 2003-2004
APPENDIX 8
On 26 August 2003, the Chief Justice delivered the annual Lucinda Lecture at Monash University under the title “… such other federal courts as the Parliament creates: 100 years of evolution”.
The Chief Justice was closely involved in the organisation of a conference for judges and scientists entitled “Genetics in the Courtroom” held at the Federal Court in Sydney between 1 and 3 September 2003. The Conference was organised by the Court in collaboration with distinguished Australian medical scientists and with the Washington-based Einstein Institute of Science Health and the Courts (‘EINSHAC’).
On 29 September 2003 the Chief Justice chaired a session titled Ethics, Industry and the Professions, during the pre-conference symposium held in Sydney as part of the 28th International Congress on Law & Mental Health.
The Chief Justice attended functions to mark the Centenary of the High Court of Australia, including the ceremonial sitting in Melbourne on 6 October 2003, and chaired a session at the High Court Centenary Conference in Canberra on 9-11 October 2003.
The Chief Justice attended sessions of the Supreme and Federal Court Judges’ Conference in Auckland, New Zealand from 27 to 29 January 2004.
On 5 February 2004 the Chief Justice and the Melbourne Judges of the Federal Court hosted a reception for women at the Bar in Victoria attended by some 150 women barristers and clerks.
On 20 February 2004 the Chief Justice attended the 2004 Constitutional Law Conference hosted by the Gilbert + Tobin Centre of Public Law at the University of New South Wales. The conference focused on developments in constitutional law in the High Court and other Australian courts in 2003 and beyond.
At a ceremony held in Sydney on Thursday 18 March 2004 on the completion of a judicial training program for members of the Indonesian judiciary, the Chief Justice and Chief Justice of the Supreme Court of the Republic of Indonesia, the Honourable Professor Dr H. Bagir Manan, signed a memorandum of understanding for judicial cooperation between the two Courts. The Chief Justice later hosted a dinner for Chief Justice Bagir Manan and other visiting members of the Indonesian judiciary.
On 25 March 2004, at the invitation of the Rt Hon. Beverly McLachlin, the Chief Justice attended a meeting of the Canadian Judicial Council in Ottawa, Canada, to speak about court governance in Australia and, in particular, the Federal Court of Australia’s model of governance. The Chief Justice was accompanied by the Registrar who gave a presentation about the administration and structure of Australian courts.
Members of the Court frequently act as judges for law student mooting competitions and on 27 April 2004 the Chief Justice presided at the Monash Law Students’ Society 2004 General Moot Grand Final. The Grand Final was held in the No 1 Federal Court in Melbourne.
On 25 May 2004 the Chief Justice hosted a reception in the Supreme Court building in Darwin to celebrate the opening of a new registry of the Federal Court in Darwin, located within the Supreme Court building. He unveiled, in the presence of the artists, two Coats of Arms of the Commonwealth commissioned by the Court, one of them a three dimensional Coat of Arms for permanent installation in the dedicated Federal Court courtroom, Court 9, and the other a screen printed work for use in “on country” hearings in Native Title matters.
The Chief Justice opened the Third Australasian Seminar of the International Association of Refugee Law Judges in Sydney on 9 June 2004 and presented a paper titled “The Federal Court and refugee cases: practical issues”.
On 10 June 2004 the Chief Justice presided at a public lecture delivered at the Court, in Melbourne, by Professor Judith Resnik, Arthur Liman Professor of Law at Yale Law School, titled “Representing Justice: From Renaissance Iconography to the 21st century Courtrooms of the United States”.
The Chief Justice continued to act as Chairman of the Advisory Committee for Melbourne University’s Juris Doctor degree and as Patron of the Fiat Justicia series of lectures at Monash University. He continued to support Bar Reader’s courses in NSW and Victoria.
Justice Beaumont is a member (representing Australia and New Zealand) of the steering committee of the Pacific Judicial Education Program, based at the University of the South Pacific, Suva, Fiji. The Programme, now in its fifth year, services thirteen island nation states in the Pacific. In January 2004, Justice Beaumont attended the Asia Pacific Judicial Educators Forum held in Sydney, attended by office-holders of the Pacific Judicial Education Program and by members of the Philippines Judicial Academy, at which Justice Beaumont has lectured.
Justice Beaumont is also a member of the American Law Institute/UNIDROIT Advisory Committee for its Transnational Commercial Rules Project. In February 2004, Justice Beaumont arranged for Professor Geoffrey Hazard, the Project’s Reporter, to speak on the topic in Sydney.
Justice Wilcox has written and spoken extensively about the Court’s experience in management of representative (class) actions. In 2003 he was one of four international experts who assisted the Chief Justice of Indonesia to formulate Rules that have now introduced this form of procedure into Indonesian law. Justice Wilcox contributed a chapter about the Australian situation in Class Actions in Comparative Perspective that was published (simultaneously in English and Spanish) in September 2003, coinciding with the International Conference on Civil Procedure in Mexico City.
During the same month, Justice Wilcox gave a paper on representative actions at the Europe Asia Legal Conference in Rome.
Justice Wilcox has assisted the National Judicial College of Australia (‘NJC’) by devising and conducting a half-day presentation on litigants in person at training sessions held in Adelaide and Hobart. The presentation included an analysis of the difficulties faced by litigants in person and the challenges these present to the courts in respect of case management and the conduct of trials. Some litigants in person exhibit characteristics that cause them sometimes to be branded as ‘querulous litigants’. With the assistance in each case of an experienced psychiatrist, the NJC presentation examined these characteristics and the preferable way for them to be addressed by judges, magistrates and court officials.
Justice Hill is the Challis Lecturer in Taxation (part-time) at the Faculty of Law, University of Sydney (LLM degree) and Patron of the Tax Law Teachers Association. His Honour is also the Chair of the Faculty Advisory Committee, Faculty of Law, University of Wollongong (appointed May 2003), a member of the Editorial Board of e-Journal of Tax Research and Patron of the University of Western Sydney Law Alumni Association (launched 22 April 2004). He was President of the Sydney International Fiscal Association 2003 Congress.
Justice Hill presented the following papers and lectures during the reporting year:
23-29 May 2004. He also attended the 8th National Court Technology Conference, Kansas City 28 – 30 October 2003.
Justice Heerey’s paper “Aesthetics, Culture and the Whole Damn Thing” appeared in Law and Literature, a publication of the Benjamin N. Cardozo School of Law, New York. His Honour gave a lecture to post graduate students at Melbourne University on “Damages under the Trade Practices Act” and to students at the University of Tasmania on “Section 46 of the Trade Practices Act”. His Honour spoke to the Continuing Legal Education Program of the Victorian Bar on “Misuse of Market Power”. His Honour is Chair of the Advisory Board for the Graduate Program in Intellectual Property Law at the University of Melbourne.
Justice Cooper is a member of the Board of Governors of the United Nations World Maritime University, Malmo Sweden. His Honour is also a Board member of the Bar Practice Centre, a practical legal training program of the Queensland University of Technology and the Bar Association of Queensland. He is a Fellow of Kings College, University of Queensland.
Justice Cooper is also a titulary member of the Comite Maritime International. His Honour was a commentator on the paper of Dr S Girvin of the National University of Singapore entitled “Maritime Security: The National and International Impact of the ISPS Code” given at the International Law Seminar Series of the University of Sydney Law School in May 2004.
In July 2003, Justice Moore prepared and presented (with three other Australian Judges) a course on intellectual property to over 40 judges of the Supreme Peoples’ Court of Vietnam in both Ho Chi Minh City and Hanoi for two days. This course was based on Vietnamese law both substantive and procedural. The program was sponsored by an organisation of Australian businesses operating in Vietnam, Australian Business Group Vietnam. Justice Moore attended an intellectual property workshop in Bangkok between 18 and 21 May 2004. The workshop was for Public Prosecutors and the Judiciary from South East Asia on the enforcement of intellectual property rights. The workshop was organised by the ASEAN working group on intellectual property cooperation, IP Australia and the United States Patent and Trademark Office in partnership with the Japan Patent Office. During this visit Justice Moore met with the judges of the Central Intellectual Property and International Court of Thailand and visited the Court. In June 2004 Justice Moore was retained as an international consultant to collaborate with the International Development Law Organisation to develop a benchbook for the Vietnamese judiciary. This project is funded by AusAID and will take 12 months. His Honour also attended the ACT Human Rights Conference and the Administrative Law Conference presented by the Law Council and Federal Court.
Justice Branson was invited by the Fiji Law Society to present a paper on “Judicial Independence and the Rule of Law” at its 2003 Convention Facing the Challenges held in August 2003.
In October 2003 her Honour attended the High Court Centenary Conference in Canberra. In the same month Justice Branson contributed to the National Judicial Orientation Programme as a presenter on the topic “Court Craft”. Justice Branson was invited by the Human Rights and Equal Opportunity Commission (‘HREOC’) to participate in an activity of the China-Australia Human Rights Technical Cooperation Program at the National Judicial College, Beijing, China on 8-14 November 2003. The program, an initiative of AusAID, was jointly implemented by HREOC and partner organisations in China with the aim of strengthening the administration, promotion and protection of human rights in China. Her Honour presented a paper on “Judicial Reasoning and Judgement Writing”.
Her Honour is a Board Member of the International Development Law Organisation and attended the Annual Board meeting in Rome in March 2004.
Justice Lindgren continues to chair the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee and its Subpoena Rules Harmonisation Committee. As a member of the Committee of the Sydney Chapter of the Alumni of the University of Newcastle, his Honour hosted a function at which final year students and recent graduates of the University’s Law School were able to meet senior members of the Sydney legal profession. Justice Lindgren chaired a session at the International Conference on National Copyright Administrative Institutions held in Ottawa, Canada, and spoke at the associated foundation meeting of the International Association of Copyright Administrative Institutions. At the annual conference of the Australian Institute of Judicial Administration held in Fremantle, his Honour spoke as a member of the panel at the workshop on “The Courts and Corporate Conduct – how effective are we?”. His Honour again organised, and spoke at, the biennial College of Law series of five seminars for the legal profession (“the Judges’ Series”), at each of which one Federal Court judge and one Supreme Court judge speak. Justice Lindgren chaired a seminar for post-graduate students and members of the legal profession at the Sydney Law School on Contractual Good Faith, at which local and visiting international contract scholars were the speakers. His Honour spoke at a seminar organised for the legal profession by the College of Law on “The New Subpoena Rules”. His Honour was the commentator on “Investor Class Actions – Problems from the Plaintiff’s Perspective” at the 2004 Corporations Workshop organised by the Business Law Section of the Law Council of Australia.
Justice Sackville delivered a paper entitled “Some Thoughts on Access to Justice” at the First Annual Conference on the Primary Functions of Government held at the Faculty of Law, Victoria University of Wellington, New Zealand, on 28 and 29 November 2003. On 20 February 2004 Justice Sackville delivered the keynote address entitled “The 2003 Term: The Inaccessible Constitution” at the 2004 Constitutional Law Conference of the University of New South Wales, Sydney. His Honour also delivered the keynote address entitled “Homelessness, Human Rights and the Law” at the Homelessness Symposium of the Victorian Council to Homeless Persons, Melbourne, 10 March 2004. Each of these papers is to be published in journals.
Justice Sackville gave the address at the Annual High School Prize Giving of the Emanuel School on 11 December 2003. His Honour also gave the Welcome Address at the University of New South Wales Faculty of Law Prize Ceremony 2004 on 10 March 2004.
Justice Sackville is the Deputy Chair of the Judicial Conference of Australia. In that capacity he prepared a Discussion Paper on Judicial Appointments in Australia and contributed to the preparation of a Media Handbook for distribution to judicial officers. In addition, his Honour drafted the Preliminary Response of the Judicial Conference of Australia to a proposal by the federal leader of the Opposition for a change in the arrangements for judicial pensions.
Justice Kiefel took part in moot competitions at Bond University in July 2003 and at the University of Queensland in October. On 23 June 2004 her Honour was made a life member of the Bar Association of Queensland. Justice Kiefel attended the EINSHAC – “Genetics in the Courtroom” conference in September 2003 and the Administrative Law Conference presented by the Law Council and Federal Court.
Justice RD Nicholson delivered papers “Judicial Independence and Judicial Corruption: Further Developments” and “Publication of Judicial Decisions and Availability of Law Reports in the Asia/Pacific Region” to the 10th Conference of Chief Justices of Asia and the Pacific Conference, Tokyo. The first paper will be published in the 2003 ICJ Yearbook and the second paper has been published in (2004) 13(4) Journal of Judicial Administration. His Honour also presented a paper “Self Represented Litigants” as part of the Australian Legal Resources International, Indonesian Judicial Training Program in Makassar and Batam Island during the week of 8-12 December 2003; a paper “Litigants in Person” to the 21st AIJA Conference 2003; a paper “Can courts cope with self-represented litigants?” as the Public Lecture for the 2003 Federal Court Visiting Judicial Fellow at Flinders University Law School on 16 September 2003 (which will be published in the Flinders Law Journal); and a paper “The Use of History in Proving Native Title: A Judge’s Perspective” to the Royal Western Australian Historical Society on 15 October 2003 and the Federal Court Judges’ Workshop, Sydney on 1 April 2004.
Justice RD Nicholson continues to Chair the International Advisory Board of the International Judicial Academy. In December 2003 Justice Nicholson accepted an invitation to join the Advisory Board of the Centre for United Nations Management and Accountability, based in Geneva.
Justice RD Nicholson continues to be a member of both the Board and Council of the AIJA and Chair of the Projects and Research Committee of the AIJA. His Honour is also Secretary of the LAWASIA Judicial Section. He is Deputy Convenor of the Trustees of the Francis Burt Education Centre.
Justice RD Nicholson accepted an invitation from the Law School at Flinders University to be the Federal Court Visiting Judicial Fellow from 15-19 September 2003. This involved participation in the work of the Law Faculty, delivering a public lecture, a staff seminar and participation in several courses.
Justice Finn continued as a member of the UNIDROIT Working Group revising the Unidroit Principles of International Commercial Contracts. His Honour gave occasional lectures on “Statutes and the Common Law” at the Australian National University and on “The Difficulty with Statutes, Contract Damages” and “Federal Court Procedure” at the University of Tasmania Law School. Justice Finn was a Visiting Fellow at the University of Tasmania for three weeks in September 2003, a member of the Chair Selection Committee for the University of Melbourne Law School and was appointed to the Advisory Council of the Centre for Public, International and Comparative Law at the University of Queensland.
In May and June 2004 Justice Marshall travelled to East Timor on a project developed by Australian Legal Resource International (‘ALRI’). His Honour held meetings with several key figures in the East Timorese justice system and observed re-enactment of hearings in traditional systems of justice in regional areas of East Timor. His Honour will contribute to the preparation of a report by ALRI to East Timorese authorities on the continued use of traditionalist systems and their relationship with the justice system in East Timor. Justice Marshall presented a paper held by the Australian Industry Group on labour law and the Federal Court in Canberra in May 2004.
On February 9 2004 Justice North presided at the Exhibition Moot for the Law Faculty of the University of Melbourne’s Jessup Moot team, before the team went on to the national rounds in Canberra. On 24 March 2004 his Honour gave a presentation to the Institute of Post Colonial Studies entitled “When Two Worlds Meet – A Journey Through a Native Title Hearing”. His Honour also gave a similar presentation on 20 April 2004 to post graduate Native Title students at the University of Melbourne. In April 2004 his Honour spoke on “Building Judicial Expertise and Independence” at the APEC Seminar on Enforcement in Corporate Governance in Kuala Lumpur, Malaysia. In June 2004 his Honour participated in a presentation in Adelaide given to the Native Title Representative Body Conference along with Justices French and Mansfield, Registrar Warwick Soden, Deputy Registrar David Robson, District Registrar Caroline Edwards and Deputy Registrar John Efthim.
Justice Mansfield is Chair of the Graduate Diploma and Legal Practice Course Committee of the Law Society of South Australia and was until September 2003 Chair of the Continuing Legal Education Committee of the Law Society. He presented a paper on “Past, Present and Future of s 46 of the Trade Practices Act” to the Conference on Trade Practices Law and Economics, University of South Australia on 12 September 2003. He spoke at a Forum of the Australian Refugee Association on 11 November 2003. He chaired the session on “Obligations and Liabilities of Fiduciaries” at the Law Society of South Australia on 25 February 2004. He participated in the Federal Court of Australia presentation “Native Title (Building Relationships)” at the Native Title Conference on 18 May 2004. He presented a paper on “Practice and Procedure in the Federal Court” to the Australian Taxation Office/Australian Government Solicitor Legal Services Forum on 21 May 2004. He presented a paper on “How to be Economically Rational – Economics for Litigators” at the Law Society of South Australia on 10 June 2004. He attended the Trade Practices Workshop conducted by the Law Council of Australia from 21-24 August 2003.
Justice Emmett is the Challis Lecturer in Roman Law at the University of Sydney. His Honour is a member of the Co-ordination Committee for EINSHAC which organised the “Genetics in the Courtroom” Conference in Sydney in September 2003. Justice Emmett wrote an article entitled “Towards the Civil Law?: The Loss of ‘Orality’ in Civil Litigation in Australia” which was published in UNSW Law Journal Volume 26(2).
Justice Emmett continues to participate in the co-ordination of the ‘Courtwatch’ program in which students from the University of Sydney and the University of New South Wales are invited to observe Court proceedings for a day. Justice Emmett is Consultant Editor and Contributor to Butterworths Australian Legal Dictionary.
In November 2003 Justice Finkelstein was invited by HREOC to participate in the China-Australia Human Rights Technical Cooperation Program which was held at the National Judges’ College in Beijing, China. His Honour conducted a workshop and presented a paper entitled “Judgment Writing in Practice” to judges of the Supreme People’s Court. In April 2004 Justice Finkelstein gave a talk on copyright law to a group of students from the IDEA Institute, a private media/arts training organisation in Melbourne, and in June 2004 he presented a course entitled “Comparative Competition Law” to undergraduate students at the Faculty of Law, Monash University Campus in Prato, Italy.
Throughout the reporting period Justice Finkelstein regularly held informal meetings with a small group of young lawyers participating in the Law Institute of Victoria – ‘Life in the Law’ Discussion Program. The program allows a judge to share his or her experiences in the law with junior practitioners and aims to inspire and motivate young lawyers to remain in the profession and pursue fulfilling careers in the law.
Justice Finkelstein along with Justices Hayne and Kenny conducted the judging in the Melbourne University Senior Mooting competition held in August 2003.
Justice Weinberg, as a Part-time Commissioner of Australian Law Reform Commission, was a member of the Division constituted under the Australian Law Reform Commission Act 1996 for the purposes of the reference on “Keeping Secrets: The Protection of Classified and Security Sensitive Information”. His Honour has been Chairman of the Leo Cussen Institute of Victoria since October 2000, and a Board Member of the Monash University Faculty of Law since 1998.
Justice Dowsett is a member of the Council of the National Judicial College of Australia and chairs the Continuing Professional Development Committee of the Queensland Bar Association. In September 2003 he attended the annual ceremonial opening of the Courts of Malta and was presented by the Chief Justice to the President of the Republic. In November 2003 Justice Dowsett attended the annual conference of the International Association of Judges in Vienna.
Justice Kenny is a Board Member of the Centre for International and Public Law, Australian National University; a Board Member of Monash University Law Faculty; an Advisory Board Member of the Federal Law Review; a member of the Scholarship Committee of the Menzies Foundation; and Patron of the Australia-Indonesia Legal Development Foundation Inc.
Justice Kenny was a judge of the Deacons Senior Mooting Grand Final held at The University of Melbourne Law School in August 2003. She also participated in the Monash Law Students’ Society 2004 General Moot Semi-Final in April 2004. In August 2003 Justice Kenny presented a paper entitled “Women’s Law Collective: Experiences of Women in the Courtroom” at the University of Melbourne Law School. Justice Kenny also presented a paper “Concepts of Judicial Responsibility: The Contribution of the ‘One in Seven’” at a Conference honouring Mary Gaudron’s contribution to Australian Law at the University of Melbourne Law School in March 2004 and a paper entitled “The Legislative Response to Terrorism and the Rule of Law” at the National Security Law Course at the University of Melbourne Law School in May 2004. Justice Kenny wrote a chapter entitled “The Loss of Talent: Australian Lawyers and the Australian Community Today” for a publication dedicated to Enid Campbell.
Justice Kenny spoke at a dinner in Honour of the Right Hon Sir Ninian Stephen at the Melbourne University in July 2003. She also addressed young lawyers at a meeting organised by the Victorian Women Lawyers in November 2003.
Justice Conti was invited by the Sydney University Law School to preside over several Law Moots, and also presided over mock trials convened by the New South Wales Bar Association. He was a member of the Appeals Committee of the New South Wales Rugby Union for the Super Twelve Series during 2003-04.
Justice Allsop gave lectures on “Federal Jurisdiction”, “Admiralty” and “Expert Evidence” to the New South Wales Bar Association. His Honour gave a lecture on “Evidence” to solicitors as part of the Judges’ Series arranged by the College of Law. His Honour lectured at the University of Sydney post-graduate class in “Company” Law as an adjunct member of staff. Justice Allsop presided in mock trails run by the NSW Bar Association for its Practice Course. Justice Allsop attended conferences conducted by the Maritime Law Association of Australia and New Zealand, and chaired a session of the Law Council of Australia and Federal Court Seminar on Administrative Law. His Honour attended the Law Council of Australia’s Trade Practices and Competition Law Conference.
Justice Jacobson delivered a paper to the Eastern Hemisphere Colloquium on the Preliminary Draft Protocol to the Cape Town Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets held on 22-23 April 2004. The Colloquium was organised by UNIDROIT, in cooperation with the Malaysian National Space Agency and the Space Working Group and was held in Kuala Lumpur, Malaysia.
Justice Bennett attended a number of conferences including the Annual Competition Law Conference, EINSHAC Conference, High Court Centenary Conference in Canberra, National Judicial Orientation Programme, Supreme and Federal Court Judges’ Conference in New Zealand, Administrative Law Seminar and ACT Human Rights Act Seminar in Canberra. Justice Bennett is also an Advisory Committee member of the Australian Law Reform Commission on the Gene Patenting & Human Health Reference.
Her Honour was invited to speak at The Institute of Patent and Trade Mark Attorneys of Australia in Canberra on the subject of “Patent Litigation” and has presented papers to the Women Lawyers’ Association of NSW on “Law & Science”; Mallesons Stephen Jaques on “Ethics and Legal Excellence”; the graduating Law Class of the University of New South Wales; the launch of University of New South Wales Law Journal on “The Common Law” and “Genetics and the Law”; and the Melbourne launch of Proof & Truth: The Humanist as Expert for the Australian Academy of the Humanities. Her Honour also gave a talk to overseas postgraduate students at the Federal Court in November 2003.
Justice Bennett is also involved in a number of extra-judicial commitments including positions as Pro-Chancellor of the Australian National University; Director of the Sydney Children’s Hospital Foundation; member of the Board of the Centennial Park and Moore Park Trust; member of Chief Executive Women; and in November 2003 was appointed President of the Australian Academy of Forensic Sciences.
Justice Selway is Adjunct Professor of Law at the University of Adelaide. He is Secretary of the Australian Association of Constitutional Law. A number of his papers were published in 2003/2004: “Constitutional Interpretation in the High Court of Australia” in White & Rahemtula Queensland Judges on the High Court (2003); “Methodologies of Constitutional Interpretation in the High Court of Australia” in (2003) 14 Public Law Review 234; “All at Sea – Constitutional Assumptions and the Executive Power of the Commonwealth” in (2003) 31 Federal Law Review 495 and “The Australian Single Law Area” in (2003) 29 Monash Law Review 30. His Honour gave papers at the University of Adelaide on various topics. In September, 2003 he gave a paper at the Calgary Law School on the topic “Native Title in Australia”. Justice Selway was an invitee at Conferences arranged by the Forum on Federations in Adelaide, New Delhi and Melbourne. He attended the Annual Public Law Weekend in Canberra in November 2003 and at the Constitutional Law Conference in Sydney in February 2004.
Justice Lander delivered a paper to the Law Society of South Australia in November 2003 entitled “The Nature and Scope of the Jurisdiction of the Federal Court of Australia”.
Appendix 8 – Judges’ Activities