OVERVIEW OF THE FEDERAL COURT OF AUSTRALIA 1

Establishment 1

Functions and powers 1

Objectives 1

The Court 2

Judges 2

Appointments and retirements 7

Judicial Registrars 7

Registries 7

Registrar 7

Principal and District Registries 7

Officers of the Court 8

Staff of the Court 9

Management 9

Management of the administrative affairs 9

of the Court Judges' Committees 10

Judges' Meetings 10

Principal Registry 10

District Registries 10

Access to justice 11

Practice and procedure reforms 11

Gender issues 14

Disability, race and sex discrimination 14

Accessibility - facilities and registry services 14

Remission or waiver of court and registry fees 15

Public information and legal education programs 15

Searches 16

Visitors to the Court 16

Twelfth South Pacific Judicial Conference 17

General 18

Jurisdiction 18

New jurisdiction 19

Federal Court Rules and Practice Notes 20

Decisions of interest 21

Management of the workload of the Court 36

Caseflow management 36

Appellate jurisdiction 37

Allocation of hearing dates 37

Delivery of judgments 38

Workload Trends 39

General trends 39

Age of pending caseload 40

Native title matters 41

Matters transferred to and from the Court 42

Assisted Dispute Resolution (ADR) 42

MANAGEMENT OF THE ADMINISTRATIVE AFFAIRS OF THE COURT 44

Equal Employment Opportunity 44

Industrial Democracy 44

Occupational Health and Safety 45

Workplace bargaining 46

Training and development 46

Staffing overview 47

Performance management 51

Performance pay 51

Internal and external scrutiny 52

Audit and fraud control 52

Internal and external audit 52

Property management 52

Information technology developments 53

Information technology strategy 53

Computer equipment 54

Windows and network project 54

Client service 54

Video-conferencing 54

Library and information services 55

Internet home page 55

CD-Rom network 55

Judgments template 56

Library databases 56

Library collections 56

Records management 56

Library assistance to the South Pacific 56

Judgment distribution and storage 57

Library subscriptions 57

Advertising and market survey services 57

Consultancy services 58

Financial management services 58

Financial management systems 59

Program budgeting 59

APPENDICES

Financial Statements 1996-97 63

Management Structure 86

Judicial Registrars of the Court 88

Registrars of the Court 89

Statutes under which the Federal Court of Australia may exercise jurisdiction 92

Workload Statistics 95

Equal Employment Opportunity Statistics 118

Statement under section 8 of the Freedom of Information Act 1982 119

Compliance with guidelines for Annual Reports -Summary 122

Index 124

OVERVIEW OF THE FEDERAL COURT OF AUSTRALIA

1.1 ESTABLISHMENT

The Federal Court of Australia, created by the Federal Court of Australia Act 1976, began to exercise its jurisdiction on 1 February 1977. It assumed jurisdiction formerly exercised in part by the High Court of Australia and the whole of the jurisdiction of the Australian Industrial Court and of the Federal Court of Bankruptcy.

The Court is a superior court of record and a court of law and equity. It sits in all capital cities and elsewhere in Australia from time to time.

1.2 FUNCTIONS AND POWERS

The Court's original jurisdiction is conferred by over 100 statutes of the Parliament. A list of these Acts appears in Appendix 5 to this report on pages 91 to 94.

The Court exercises appellate jurisdiction over decisions of single judges of the Court, decisions of the Supreme Courts of the Australian Capital Territory and Norfolk Island and certain decisions of State Supreme Courts exercising federal jurisdiction. The Court's jurisdiction is more fully described in Chapter 2.

1.3 OBJECTIVES

The objectives of the Court are to:

• decide disputes according to law - promptly, courteously and effectively; and in so doing to interpret the statutory law and develop the general law of the Commonwealth, so as to fulfil the role of a court exercising the judicial power of the Commonwealth under the Constitution;
• provide an effective registry service to the community; and
• manage the resources allotted by Parliament efficiently.

1.4 THE COURT

Judges

The Federal Court of Australia Act provides that the Court consists of a Chief Justice and such other judges as are appointed. The Chief Justice is the senior judge of the Court and is responsible for ensuring the orderly and expeditious discharge of the business of the Court.

Judges of the Court are appointed by the Governor-General, by commission. Judges may not be removed except by the Governor-General on an address from both Houses of Parliament, in the same session, praying for the judge's removal on the ground of proved misbehaviour or incapacity. This requirement is contained in s 72 of the Commonwealth of Australia Constitution Act 1901 and Part II of the Federal Court of Australia Act.

Until 1977 judges were appointed for life. As a consequence of the constitutional referendum in that year, all judges appointed after 1977 must retire at the age of 70. There is presently one judge of the Court with a life appointment, the Hon Justice Northrop.

Judges, other than the Chief Justice, may hold more than one judicial office at the one time. Most judges have other commissions and appointments.

As at 30 June 1997 there were 46 judges of the Court. They are listed on pages 3 to 5 in order of seniority. The list gives details about each judge and any other commissions or appointments held on courts or tribunals. Of the 46 judges, there were 8 whose work as members of other courts or tribunals occupied all or most of their time. Last year it was reported that there were 13 judges whose work as members of other courts or tribunals occupied all or most of there time. The reason for the difference is that on 26 May 1997 the jurisdiction of the Industrial Relations Court of Australia was vested in the Federal Court. Accordingly, the judges who had in previous years mostly heard matters in the Industrial Relations Court now undertake that work as part of the jurisdiction of the Federal Court.

The judges of the Court must devote time to other courts and tribunals on which they hold commissions or appointments. During 1996-97 judges whose main duties were as Federal Court judges sat for a total of 315 days as members of other courts or tribunals. In addition to the time spent hearing cases, time was necessarily devoted to other work related to those commissions or appointments, such as writing reserved judgments.

Members of the Court also spend a significant amount of time on other activities related to the law. In particular:

Justice Gallop is Chairman of the Steering Committee of the Supreme Court and Federal Court Judicial Conference and Chairman of the Steering Committee of the Australian Judicial Conference.

Justice Lockhart is the President of the Australian Judicial Conference.

Justice Beaumont is Convenor of the Council of Chief Justices Committee on Harmonisation of Appellate Practice and Procedure and a member of the Judicial Conference of the South Pacific Committee to Establish A South Pacific Institute of Judicial Administration.

Justice Burchett is a judge of the Court of Appeal of Tonga and is a Privy Councillor of Tonga.

Justice Ryan is a consultant to the Australian Law Reform Commission for the Choice of Law

Reference.

Justice French is the Chairman of the Australian Institute of Judicial Administration Research

Committee.

Justice von Doussa is a part-time Commissioner of the Australian Law Reform Commission.

Justice O'Loughlin is the Chairman of the Law Foundation of South Australia, Inc.

Justice Cooper is the presiding member of the Admiralty Rules Committee for rules made under the Admiralty Act 1988.

Justice Branson is the Deputy President of the Australian Institute of Judicial Administration.

Justice R D Nicholson is a member of the Australian Institute of Judicial Administration, Chairman of the Advisory Committee on the AIJA Project on Courts and the Public, Secretary of the LAWASIA Judicial Section and Deputy Convenor of the Trustees of the Francis Burt Law Education Centre.

Justice Lindgren is Chairman of the Legal Education Committee of the New South Wales Bar

Association and Convenor of the Council of Chief Justices Committee on Harmonisation of

Practice and Procedure of Corporations Law.

Many judges are designated persons under various Acts and, as such, may issue warrants authorising telephone interceptions and the use of listening devices. These functions add to their workload.

During the year three Judges were appointed to the Court:

The Hon John Ronald Mansfield (resident in Adelaide) appointed on 2 September 1996; The Hon Alan Henry Goldberg (resident in Melbourne) appointed 3 February 1997; The Hon Arthur Robert Emmett (resident in Sydney) appointed on 3 February 1997.

The Hon Ian Fitzhardinge Sheppard retired as a judge of the Court on 23 May 1997 on attaining the age of 70 years. Justice Sheppard was subsequently appointed as an Acting Judge of the New South Wales Court of Appeal. The Hon Kenneth Joseph Jenkinson retired as a judge of the Court on 5 June 1997.

1.5 JUDICIAL REGISTRARS

During the year the jurisdiction of the Industrial Relations Court of Australia was vested in the Federal Court by the Workplace Relations and Other Legislation Amendment Act 1996. That Act appointed the Judicial Registrars of the Industrial Relations Court of Australia as Judicial Registrars of the Federal Court pursuant to s 18AA of the Federal Court of Australia Act. The appointments are to continue for the balance of the term of each Judicial Registrar’s appointment as a Judicial Registrar of the Industrial Relations Court. A list of the Judicial Registrars of the Court as at 30 June 1997 appears in Appendix 3 at page 87.

1.6 REGISTRIES

Registrar

Mr Warwick Soden is the Registrar of the Court. The Registrar is appointed by the Governor-General on the nomination of the Chief Justice. The Registrar has the same powers as a Secretary of a Department of the Australian Public Service in respect of the officers and staff of the Court employed under the Public Service Act 1922 (s 18Q of the Federal Court of Australia Act).

Principal and District Registries

The Principal Registry of the Court, located in Sydney, is responsible for the overall administrative policies and functions of the Court's registries.

There are District Registries in each State capital city, in Canberra and in Darwin. The New South Wales District Registry operated a sub-registry in Parramatta until October 1996.

The District Registries provide operational support for the Court as well as an information service to legal practitioners and members of the public. The registries also receive court and related documents, assist with the arrangement of court sittings and facilitate the enforcement of orders made by the Court.

Legal staff of the registries perform statutory functions assigned to them by the Federal Court of Australia Act and Rules. These include issuing process, taxing costs and settling appeal indexes. They also conduct examinations of bankrupt individuals and associated persons under the Bankruptcy Act 1966, and examinations of company officers and others under the Corporations Law. The power to conduct examinations under the Corporations Law and the Bankruptcy Act is delegated by judges. Senior legal staff exercise additional powers delegated by judges. These include the power to make sequestration (bankruptcy) orders, orders for the winding up of companies and the setting aside of statutory demands.

During the reporting period the District Registries ceased to be Bankruptcy Registries for the purposes of the Bankruptcy Act following the commencement of the Bankruptcy Legislation Amendment Act 1996. This Act transferred many of the administrative functions previously performed by the District Registries to Insolvency and Trustee Service, Australia.

Most District Registries are also registries for the following federal tribunals: the Australian Competition Tribunal, the Defence Force Discipline Appeal Tribunal and the Federal Police Disciplinary Tribunal. The Tasmania District Registry is a joint registry for the Administrative Appeals Tribunal and the National Native Title Tribunal. The Registry of the Copyright Tribunal is located in the New South Wales District Registry of the Court.

On 30 March 1994 all registries were given the additional function of registries of the Industrial Relations Court of Australia. Separate registries for the Industrial Relations Court were opened in Sydney and Melbourne during the 1994-95 year and in Perth during the 1995-96 year, but all other registries continued to provide a joint registry facility for that Court. Following the commencement of the Workplace Relations and Other Legislation Amendment Act the jurisdiction of the Industrial Relations Court was vested in the Federal Court. The registries of the Federal Court will continue to be registries for the Industrial Relations Court until the work of that Court is completed.

During the reporting year the Northern Territory District Registry ceased to be administered by the Federal Court. That Registry is now administered by the Family Court of Australia which provides registry services to the Federal Court, Administrative Appeals Tribunal and National Native Title Tribunal under service contracts.

Officers of the Court

Officers of the Court are appointed by the Registrar under s 18N of the Federal Court of Australia Act. The officers of the Court are:

(a)

a District Registrar for each District Registry; (b)Deputy Registrars and Deputy District Registrars;

(c)

a Sheriff and Deputy Sheriffs; and

(d)

Marshals under the Admiralty Act 1988.

The office of Marshal was created during the year by an amendment to the Federal Court of Australia Act contained in the Law and Justice Legislation Amendment Act 1997.

The Registrar, District Registrars, Deputy Registrars and Deputy District Registrars must take an oath or make an affirmation of office before undertaking the duties of registrar (s 18Y of the Federal Court of Australia Act). A schedule of the registrars appears in Appendix 4 on pages 88 to 90 and a list of District Registrars appears in Table 1a. During the year the office of Registrar in Bankruptcy was abolished by the Bankruptcy Legislation Amendment Act.

Table 1a District Registrars

Staff of the Court

The officers and staff of the Court (other than the Registrar and some Deputy Sheriffs) are appointed or employed under the Public Service Act. On 30 June 1997 there were 327 persons employed Australia-wide as registry staff or as judges' personal staff. Generally, judges have two personal staff members. Details of staffing are set out in Tables 3a to 3c in Chapter 3 on pages 48 to 50.

1.7 MANAGEMENT

Management of the administrative affairs of the Court

The Chief Justice is responsible for managing the administrative affairs of the Court. He is assisted by the Registrar (Part IIA ss 18A-18Y of the Federal Court of Australia Act).

The Chief Justice may delegate any of his administrative powers to judges. The Registrar may assist the Chief Justice by exercising powers on his behalf in relation to the Court's administrative affairs. The Chief Justice may give directions to the Registrar about the exercise of these powers.

An ad hoc Enterprise Bargaining Steering Committee has been convened to assist in the development of a Workplace Agreement for the Court under the Workplace Relations Act 1996. The Committee will play a role in endorsing the parameters of the negotiations, considering implications of proposals for the Agreement and endorsing the fairness of the process being followed.

Each committee is supported by staff of the Court and its role is defined by its terms of reference.

Judges' Meetings

There were two meetings of the whole Court during the year. The matters dealt with included reforms to the Court's practice and procedure and amendments to the Rules.

Principal Registry

The Principal Registry, headed by the Registrar, has overall responsibility for the management of the Court's registries. The Principal Registry also provides various services to the Court including personnel services, financial management, computing support, library services and property management.

District Registries

To facilitate access to the Court and to enable the Court to exercise its jurisdiction nationally there is a District Registry in each of the States and mainland Territories of Australia. These are managed by a District Registrar supported by legal and administrative staff.

District Registrars and Deputy District Registrars also perform important legal functions including the exercise of judge-delegated functions and statutory functions under the Federal Court of Australia Act and Rules and the Bankruptcy Act. District Registrars and their staff are a first point of contact for the community and the legal profession in seeking advice on court procedures and in the processing of documents for those using the Court.

1.8 ACCESS TO JUSTICE

Practice and procedure reforms

During the reporting year the Court’s Practice and Procedure Committee continued the work of developing changes to the practice and procedure issues set out in the 1995-96 Annual Report. In particular, although not limited to these issues, the Practice and Procedure Committee refined procedures to enable the implementation of the Individual Docket System and made recommendations as to the role and purpose of experts.

The Individual Docket System involves each case being allocated to an individual judge who will ordinarily be responsible for that case from its commencement until its disposition. The disposition could, for example, occur by the parties settling the matter among themselves or alternatively by the matter proceeding to trial and being disposed of by judgment.

The system envisages a time standard of no more than 18 months for the disposition of most cases. It is recognised, however, that the majority of cases will be disposed of well within this period and that some cases by their nature and complexity will require more time.

After consultation with representative members of the legal profession nationally and after giving consideration to developments in case management and listing techniques in Australia and overseas, the Court decided to adopt the Individual Docket System as the basis of its case management throughout Australia.

To that end a pilot scheme of individual docketing commenced in Melbourne on 1 January 1997. The system will be fully implemented in Melbourne on 1 July 1997 and throughout the Court by the end of September 1997.

The proposals of the Court with regard to the role and purpose of experts have been the subject of correspondence between the Chief Justice, the Law Council of Australia and various professional associations.

The Court’s proposals have a number of elements, some of which are:

• although the Court will be concerned that experts be used quickly and efficiently in a case, the calling of expert evidence would usually be subject to the control of the parties. The Court, however, would take some control in exceptional cases. Such control could extend, for instance, to limiting the number of experts called in a field of speciality;
• experts should be given clear guidance that, when preparing or giving evidence, their first responsibility is to be open and truthful to the Court;
• to reinforce the element immediately above, any report or draft report prepared for the purpose of giving evidence to a court and delivered to a client will be addressed to the Court;
• such a report should end with a declaration by the expert that the expert has made enquiries which the expert believes are appropriate and that the matters of significance
• if experts instructed by the parties meet at the direction of the Court, it would be improper conduct for an expert to be given or accept instructions not to reach agreement. If the experts cannot reach agreement on matters of expert opinion they should specify their reasons for being unable to do so;
• codes of practice providing guidance as to the practice in relation to experts should be drawn up firstly by the appropriate professional bodies representing the expert and the legal profession (the Law Council of Australia) and the expert(s) should state whether their report(s) have been prepared in accordance with a relevant code of practice;
• • often the evidence of experts will be given at the conclusion of all other evidence in the case; and
• the Court would, in appropriate cases, empanel experts in the manner successfully trialed by the Australian Competition Tribunal.

The practice of the Australian Competition Tribunal is set out below.

“Reception and Role of Expert Evidence from Economists in the Australian

Competition Tribunal

The practice, which has now become the usual practice in the Australian Competition

Tribunal concerning the reception of evidence from expert economists is as follows:

1. Economists submit written statements prior to the oral proceedings, but after the reception of written non-expert evidence and documentary material.
2. The witness box is, of course, too limited a space for all experts to be in at the one time, so they usually sit at one end of the bar table.
3. The Tribunal informs the experts before they give evidence that they should feel free to modify the views expressed by them in their reports as little or as much as they wish, because the Tribunal wishes to receive the benefit of their present views, having had access to all of the evidence. It is the experience of the Tribunal that some experts modify their views in varying degrees.
4. At the conclusion of all the evidence (other than evidence of the experts) and before the commencement of addresses, each expert is sworn immediately after the other.
5. Each expert in turn gives an oral exposition of his or her opinion with respect to the relevant issues arising from the evidence.
6. Each expert then in turn expresses his or her opinion about the opinions expressed by the other experts.
1. Counsel then cross examines the experts, being at liberty to cross examine on the basis:
1. either that questions could be put to each expert in the customary fashion, one after the other, completing the cross examination of one before proceeding to the next, or
2. that questions may be put to all or any of the experts, one after the other in respect of a particular subject, then proceeding to the next subject.
7. Re-examination is conducted on the same basis.
8. Members of the Tribunal sometimes intervene with their questions.

The advantages of this system are as follows:

(a)

Experts are required to prepare written submissions which are set down as a connected argument and, when giving oral evidence, the same connected thread runs through it, rather than being a series of disconnected responses to questions by counsel.

(b)

It achieves the result of the experts defining for their purposes points of agreement and disagreement.

(c)

It takes the expert as far away from the adversarial field as possible.

The above practice is recorded generally in QIW (re Queensland Independent Wholesalers Ltd (1995) ATPR 41-438 at 40,925) and in other decisions of the Tribunal. In QIW, four economists appeared. The total time required for their evidence was only 3½ hours.”

The Court has received wide and supportive media coverage and professional approval with regard to the proposal to review the role and purpose of experts. The views of the Law Council of Australia and the professional associations will be considered and the proposals further refined and developed as necessary by the Court’s Practice and Procedure Committee.

The Practice and Procedure Committee has also developed a new Full Court rostering system which will commence operation in 1998.

Unlike previous years when Full Court Sittings commenced in Sydney in February and were held consecutively around Australia, and in a number of capital cities more than once, the Full Court Sittings for 1998 and future years will be held on a national basis with the Full Court One of the purposes of the new system is to provide greater uninterrupted periods of time for individual docket work for judges allocated to Full Courts and also to enable judges not required for Full Courts to list individual docket cases during the Full Court Sittings periods.

Gender issues

In 1993 the Court established a Gender Issues Committee. The terms of reference of the Committee include advising the Chief Justice and judges about gender issues as they may affect the Court and making recommendations about judicial studies concerning such issues.

As in previous years, the Chief Justice continued the practice of arranging meetings between judges and women legal practitioners. These meetings provide valuable insight into the operation of the court system as it affects women and related issues.

During the year many of the Court's staff attended programs on eliminating harassment in the workplace and gender awareness.

Disability, race and sex discrimination

During the year the Registrar and a group of officers from the Principal Registry met with the Executive Director and officers from the Human Rights and Equal Opportunity Commission to consider issues affecting the Court arising from the amendments contemplated by the Human Rights Legislation Amendment Bill 1997. The Registrar and officers paid particular attention to the expectations of the likely clients in this new jurisdiction. If passed in its current form the Bill will transfer to the Court the jurisdiction to hear cases under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

Accessibility - facilities and registry services

The Federal Court registries are centrally located in each of the State and Territory capital cities. In several cities pamphlets are available for distribution to litigants and witnesses showing the location of the Court buildings, public transport access, nearby car parking facilities and containing other helpful information. Pamphlets of this type are being prepared for all the Court's registries.

The locations and business hours of the registries are set out in the front of this report. During the reporting period the Court met all requests to open a registry for urgent business outside normal office hours.

The Court is conscious of the need to ensure physical access to its registries and courtrooms and is committed to ensuring that there are no barriers to access for people with disabilities. During the year Works Australia were engaged to undertake an audit of each registry to identify deficiencies in the provision of access and facilities for disabled persons. The audit was partially complete at the end of the reporting period. Preliminary reports indicate that areas requiring attention include upgrading of building access with ramps, handrails and tactile indicators (for example, special tiles To assist people with hearing difficulties the Court has installed electronic hearing loops and amplifiers in a number of its courtrooms.

The Court has in place a system to provide access to professional interpreter services for people who need those services.

Remission or waiver of court and registry fees

During the year the Federal Court of Australia Regulations were amended changing some fees and introducing new fees to be taken in the registry. The new fees are required to be paid when matters are set down for hearing and a daily hearing fee is payable. 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 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 pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card; or
• is an inmate of a prison or one who is otherwise lawfully detained in a public institution; or
• is a child under the age of 18 years; or
• is in receipt of AUSTUDY allowance; or
• is in receipt of ABSTUDY allowance.

Registrars also have a discretion to waive or remit a fee where a 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. The Administrative Appeals Tribunal did not receive any applications to review any such decisions during the reporting period.

Public information and legal education programs

A series of brochures detailing services and facilities provided by District Registries has been completed. A brochure on bankruptcy, for litigants who are not legally represented, is being updated following amendments to the Bankruptcy Act and the introduction of the Court’s The Court has continued to cooperate with the media particularly in some cases of public importance by allowing television cameras to record briefly in the court room. On several occasions judges have permitted sound and visual recording of the handing down of their judgments. As reported last year judges have, in some circumstances, prepared summaries of judgments to assist the media.

The Court is active in the support of legal education programs. During the reporting year the Chief Justice and many judges and registrars presented papers, gave lectures and chaired sessions at judicial conferences, judicial administration meetings, continuing legal education courses, university law schools, Bar reading courses and Law Society meetings.

Searches

Following commencement of the Bankruptcy Legislation Amendment Act on 16 December 1996, the bankruptcy database known as BIOS ceased to be updated. This Act transferred many of the administrative functions formerly performed by Registrars in Bankruptcy to Insolvency and Trustee Service, Australia (ITSA). Members of the public may search BIOS, which is now a historical record, for no fee. Searches for the purposes of bankruptcy matters must now be carried out at ITSA.

Public access is also available to FEDCAMS (the Court's case management system). The public may search the database at registry computer terminals. Anyone may inspect initiating documents filed with the Court, subject to any order of a judge to the contrary or to any limitation or fee imposed by the Federal Court Rules or Regulations.

Fees for copying documents are prescribed by the Federal Court of Australia Regulations.

1.9 VISITORS TO THE COURT

Sweden

Messrs Ulf Melin and Kent Olsson, of the Parliament of Sweden.

People’s Republic of China

A delegation headed by Mr Xiao Yang, Minister of Justice and including His Excellency Mr Hua Junduo, Ambassador from the People’s Republic of China.

United States of America

Judge Ellen Burns of the United States District Court, Southern District of New York.

A delegation from Indonesia including Judges Rita Herlena Pakpahan, Pak Arifin, Pak Ridwan, Amin Sutikano Soedjono and Widyo Suwidya.

Philippines

Judge Christine Ascaranga-Jacob, the presiding Judge of the Municipal Trial Court, Naga City, Philippines.

1.10 TWELFTH SOUTH PACIFIC JUDICIAL CONFERENCE

The Twelfth South Pacific Judicial Conference, which was organised by the High Court of Australia and the Federal Court, was held in Sydney from 13 to 18 April 1997. Justice Sheppard was the Chairman of the management committee for the Conference.

The Conference was attended by Judges and academics from the South Pacific including Sir Gerard Brennan (High Court of Australia), Judge Clifford Wallace (United States Court of Appeals, 9th Circuit), Dr C Guy Powles (Faculty of Law, Monash University), Chief Justice Andon Amaraich (Supreme Court of the Federated States of Micronesia), Sir Arnold Amet (Chief Justice of the Supreme Court of Papua New Guinea), Justice Daniel Fatiaki (High Court of Fiji), Chief Justice Nigel Hampton (Supreme Court of the Kingdom of Tonga), Chief Justice Tiavaasu’e Falefotu M Sapolu (Supreme Court of Western Samoa), Sir John Muria (Chief Justice of the High Court and Court of Appeal of the Solomon Islands), Chief Justice Marty Taylor (Commonwealth of the Northern Mariana Islands), Chief Judge Young (District Court of New Zealand), Chief Justice Lussick (Kiribati), Monsieur Olivier Aimot (President of the Court of Appeal, Noumea, New Caledonia) and Madame Andree Gervais de Lafond (President of the Court of Appeal of Papeete, French Polynesia).

The Conference included a reception by their Excellencies, the Governor-General of Australia and Lady Deane. Papers were presented on topics including the United States experience of administrative law remedies as it may assist the courts of the South Pacific, customary law, sentencing options available to judges sentencing prisoners in criminal matters, domestic violence, and the French judicial system in the jurisdictions of the Court of Appeal of Noumea and Papeete.

THE WORK OF THE COURT

2.1 GENERAL

Jurisdiction

The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary criminal matters. Cases arising under Part IV (restrictive trade practices) and Part V (consumer protection) of the Trade Practices Act 1974 still constitute a significant part of the workload of the Court. These cases may raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. Other cases may only concern the immediate parties.

The Court's jurisdiction under the Corporations Law covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for the orders available in relation to fundraising, corporate management and misconduct by company officers. This jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. Amendments to the Federal Court of Australia Regulations changing fees and introducing a number of new fees have had an impact on the number of Corporations Law matters commenced in the Court, and in particular, matters relating to the winding up of companies.

The Court exercises jurisdiction under the Bankruptcy Act. 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 extends to matters arising from the administration of bankrupt estates. The Bankruptcy Legislation Amendment Act, which amended the Bankruptcy Act, commenced on 16 December 1996. The effect of the amendment was to transfer many of the administrative functions performed by the Registrars in Bankruptcy to Insolvency and Trustee Service, Australia. The functions transferred included the acceptance of debtors’ petitions and the issuing of bankruptcy notices. The office of Registrar in Bankruptcy was abolished upon the commencement of the Bankruptcy Legislation Amendment Act.

Administrative law is another important area of jurisdiction. Many cases arise under the Administrative Decisions (Judicial Review) Act 1977. This Act 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 (see Table 6.4 on pages 113 to 116 for a list of some of the enactments under which decisions have been made). Many cases also arise under the Administrative Appeals Tribunal Act 1975 which provides for a review on the merits by the Administrative Appeals Tribunal of many Commonwealth administrative decisions, and which also provides for a right of appeal from the Tribunal to the Court on questions of law. The Court has jurisdiction under the Migration Act 1958 to hear appeals for judicial review of decisions of the Immigration Review Tribunal and the Refugee Review Tribunal.

The Court hears taxation matters on appeal from the Administrative Appeals Tribunal, mostly concerning income tax and sales tax. It 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, trade marks and designs). All appeals in these cases, including appeals from the Supreme Courts, lie to a Full Federal Court.

The Court also has jurisdiction under the Native Title Act 1993. It may hear contested applications to determine native title, claims by native title holders for compensation for certain acts which have affected their rights and ancillary matters and other matters arising under the Act. During the year the Native Title Amendment Bill 1997 was introduced into the Parliament. The Bill proposes amendments to the Native Title Act and if passed in its current form will require parties to commence native title matters in the Federal Court. Under the current legislative scheme matters are required to be commenced in the National Native Title Tribunal. The new scheme will require the Court to refer matters to the National Native Title Tribunal for mediation.

Another important part of the Court's jurisdiction derives from the Admiralty Act. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories under this Act to hear maritime claims and 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 ordered the judicial sale of two ships (one in Perth and one in Brisbane) subsequent to their arrest by the Admiralty Marshal. The Admiralty Marshal also paid out part of the proceeds of sale to creditors of three vessels arrested and sold during the last two reporting years.

The Court has a diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court and also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of the Australian Capital Territory and the Supreme Court of Norfolk Island. Appeals on points of law from the Administrative Appeals Tribunal are within the original jurisdiction of the Court.

This summary refers only to some of the principal sources of the Court's work. Other matters heard by the Court range from cases involving anti-dumping notices, tariff concession orders, to cases arising under Commonwealth anti-discrimination legislation. Statutes under which the Court exercises jurisdiction are listed in Appendix 5 on pages 91 to 94.

New jurisdiction

The Court's jurisdiction during the year was enlarged or otherwise affected by several statutes including:

• Bankruptcy Legislation Amendment Act 1996;
• Workplace Relations and Other Legislation Amendment Act 1996;
• Aviation Legislation Amendment Act (No 1) 1997;
• Law and Justice Legislation Amendment Act 1997;
• Telecommunications Act 1997;
• Trade Practices Amendment (Telecommunications) Act 1997;
• Export Markets Development Grants Act 1997;
• Private Health Insurance Incentives Act 1997;
• Retirement Savings Account Act 1997;
• Australian National Railways Commission Sale Act 1997.

Federal Court Rules and Practice Notes

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 and are published by the Australian Government Publishing Service. The Rules are drafted by the Judges' Rules Committee with the assistance of a Deputy Registrar. An officer of the Office of Legislative Drafting within the Attorney-General's Department assists with the form and publication of the new Rules.

The Rules are kept under review. New and amending rules are made when needed to ensure that the Court's procedures are up to date 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 will be undertaken as a consequence of the changes to the Court's practice and procedure described elsewhere in this report.

During the reporting year new Rules were introduced to deal with the Bankruptcy Act, Evidence Act 1995, inspection of documents in the registry and leave to serve court documents outside the Commonwealth of Australia. The Court also made new Native Title Rules following the cessation of the original Rules as a result of the operation of a sunset clause. New rules to coincide with the vesting of the jurisdiction of the Industrial Relations Court in the Federal Court pursuant to the Workplace Relations and Other Legislation Amendment Act were drafted during the year.

The Court has previously reported on the consultative process with interested parties before important rule changes are made. During the year important new Bankruptcy Rules were drafted in consultation with members of the legal profession practising in that area. The new Rules coincided with the commencement of the Bankruptcy Legislation Amendment Act which amended the Bankruptcy Act and gave the Court power to make Rules of Court in relation to the practice of bankruptcy pursuant to the Federal Court of Australia Act. Previously the Bankruptcy Rules had been made by the Governor-General pursuant to the Bankruptcy Act. Practice Notes supplement the procedures established in the Rules of Court. The Practice Notes were revised and reissued during the 1993-94 reporting year. They are available without charge through District Registries. They have been reproduced in looseleaf services by law publishers. In April 1997 the Chief Justice issued a Practice Note dealing with the service of court documents outside the Commonwealth of Australia under Order 8 of the Rules of Court. The Court has also published a guide to instituting appeals to the Federal Court of Australia and various notices to practitioners issued by the District Registries. These are also available from the District Registries and in looseleaf legal services.

2.2 DECISIONS OF INTEREST

During the reporting year the judges published over 1,200 decisions. To give some illustration of the Court's work, a few of these decisions are summarised below. The range of the decisions highlights the varied jurisdiction of the Court.

Income tax and bankruptcy law - additional tax for late payment

Deputy Commissioner of Taxation v Kavich (8 August 1996, Justices Lockhart, Lee and Tamberlin)

The question in this appeal was whether, in the particular circumstances of the case, additional tax under s 207 (penalty for unpaid tax) of the Income Tax Assessment Act 1936, was a debt provable in the bankruptcy of the first respondent, Mrs Kavich.

The judge at first instance had held that the Australian Taxation Office could not claim for the late lodgement penalty as a creditor in the bankruptcy and could not recover the penalty out of the surplus of the estate after distribution to creditors.

The facts of the case were as follows. On 28 February 1978 Mrs Kavich was made bankrupt (sequestrated). As a result of the bankruptcy there vested in the second respondent, the Official Trustee, shares in a company called Antlers Pty Ltd which was being wound up (liquidated). The shares were not disclosed by Mrs Kavich to the trustee.

On 27 November 1978, the Commissioner of Taxation issued amended assessments to Mrs Kavich for the 1972 to 1974 years of income and notices of assessment in respect of 1975 and 1976, with tax payable totalling $102,054. The Commissioner lodged a proof of debt for tax in the amount of $99,620 against Mrs Kavich’s estate. No part of this sum was paid from the bankrupt estate.

Mrs Kavich was discharged from bankruptcy on 1 March 1981 under the automatic discharge provisions of the Bankruptcy Act. In August 1992 the Deputy Commissioner lodged a further proof of debt in the amount of $338,448. This proof included an amount of $239,916 claimed under s 207 of the Income Tax Assessment Act, as additional tax for late payment. By this time it had become known that Mrs Kavich would be entitled to a substantial distribution from Antlers Pty Ltd.

Both Mrs Kavich and the Deputy Commissioner of Taxation applied to the Court to have the status of the proof of debt determined.

The Court had to determine whether the late payment penalties satisfied s 82(1) of the Bankruptcy Act which provides that: “... all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of bankruptcy ... are provable in his bankruptcy.”

The Full Court held that the late payment penalty did not satisfy the requirements of s 82 of the Bankruptcy Act. There was no debt or liability of the relevant kind as at the date of bankruptcy or one to which Mrs Kavich may have become subject to prior to her discharge from bankruptcy.

While amended assessments and the notices of assessment were served upon Mrs Kavich after the date of bankruptcy, the primary tax was a provable debt in the bankruptcy, as it was a debt which arose by reason of an obligation arising under the Income Tax Assessment Act.

There was, however, no obligation which made the penalty tax due and payable as the penalty tax did not arise until the due date for payment of the primary tax had passed (this was after the date of bankruptcy). The penalty tax could also not be classed as a contingent liability until the assessments were served, and again, this occurred after the date of bankruptcy.

In addition, as the primary tax had been converted into a right to prove in bankruptcy upon service of the assessments, there was no longer a debt which Mrs Kavich was personally liable to pay. As there was no primary tax debt, there was no failure to pay and hence no late payment penalty could arise.

The Court also held that there was no liability on the trustee of Mrs Kavich’s estate to pay any amount to the Commissioner as tax.

Bankruptcy - “All moneys” clause in a mortgage document

In the bankrupt estate of Murphy; Donnelly v Commonwealth Bank of Australia

(26 September 1996, Justice Hill)

The question for determination by the Court in this matter was the construction of a mortgage document.

The facts of the case were as follows. On 19 December 1988 Ms Murphy, an employee of the Commonwealth Bank of Australia Ltd (the Bank), executed a mortgage over a property owned by her and her husband, in favour of the Bank. The mortgage to the Bank contained an “all moneys” clause.

In November 1995 Ms Murphy was dismissed by the Bank after she withdrew $57,952 from customers’ accounts with forged signatures. This money was not recovered.

On 15 December 1995 Ms Murphy became bankrupt on the presentation of her own petition to the Court and in the same month contracts were exchanged for the sale of the property the subject of the Bank’s mortgage. Notwithstanding the bankruptcy, the contracts were executed by Ms Murphy and her husband. The trustee of Ms Murphy’s bankrupt estate, Mr Donnelly, permitting this transaction to proceed to settlement.

On settlement the Bank claimed not only moneys owing on the loan transaction but also the $57,952 misappropriated. Mr Donnelly sought a declaration from the Court that the $57,952 was not a sum due to the bank under the mortgage.

After reviewing a number of decisions of the Supreme Court of New South Wales dealing with the construction of “all moneys” clauses, Justice Hill proceeded upon the principles which he felt were accepted law in New South Wales. Some of those principles were as follows:

• No principle of law that an “all moneys” clause should be read down because it is prepared by a bank.
• A bank mortgage is traditionally drawn to secure the bank in a multitude of possible situations.
• An “all moneys” clause is to be construed in the context in which it came to be executed and by reference to its commercial purpose.

Justice Hill found that Ms Murphy’s obligation to repay the $57,952 she had misappropriated from the Bank fell within the “all moneys” clause of the mortgage. The Court made declarations accordingly.

The Rugby League case

News Ltd v Australian Rugby Football League Ltd (4 October 1996, Justices Lockhart, von Doussa and Sackville)

This well-known case involved a challenge by News Ltd to “commitment” and “loyalty” agreements between the Australian Rugby League (the ARL), the New South Wales Rugby League Ltd (the League) and the twenty clubs that comprised the national rugby league football competition. News Ltd was attempting to establish a new rugby league competition known as “Super League”. Agreements between some 300 players and coaches to participate in the Super League were signed after the commitment and loyalty agreements with the ARL and the League. The commitment and loyalty agreements precluded the clubs participating in a competition other than one organised by the League or the ARL. The League also relied on contracts with the clubs to compete in the 1995 competition.

The League and ARL had also claimed that the clubs were parties to a joint venture with the League and ARL, and that each club owed fiduciary duties to the other participants in the joint venture.

The trial judge found that some of the clubs participating in the national competition breached fiduciary and contractual obligations owed to the League, the ARL and other clubs, and that News Ltd and associated Super League companies induced or encouraged those breaches. Orders were made which had the effect of preventing the Super League interests from organising or participating in a rugby league competition, other than one authorised by the League or the ARL, until the year 2000.

News Ltd and related companies and clubs appealed. They sought orders that the commitment and loyalty agreements were void and restraining the League and the ARL from requiring compliance with the agreements. A large number of players and coaches were affected by the trial judge’s orders and they intervened to argue that as they had not been joined as parties, certain of the orders should be set aside.

1. The evidence showed that the conduct of the “rebel” Super League clubs destabilised the conducting of the 1995 season and this action breached an implied term of the contract with the League in doing all that was necessary to allow the League to have the benefit of the 1995 season.
2. The making of the commitment and loyalty agreements contravened s 45(2) of the Trade Practices Act because they included “exclusionary provisions” and the League and ARL were to be precluded from giving effect to any such provisions in the agreements.
3. That as there were too many indicators that the clubs were entitled to act in accordance with their own interests where to do so involved conflicts with the interests of the other participants. Accordingly the trial judge had made an error in concluding that the League, the ARL and “loyal clubs” had established the fiduciary duties associated with the League Joint Venture.

As it was not possible to sever the terms of the commitment and loyalty agreements which prohibited the participation of the clubs and the players in a competition not conducted by the League or the ARL, the agreements as a whole could no be enforced.

The Full Court declared that the commitment and loyalty agreements were void and each of the respondents were restrained from requiring compliance or otherwise enforcing the agreements.

Administrative law - Natural justice - appearance of bias

Gaisford v Hunt (6 December 1996, Justices Beaumont, O’Loughlin and Lehane)

In this appeal Mr Gaisford applied to the Court for judicial review of the conduct of the first respondent, Mr Hunt.

In essence Mr Gaisford sought an order that Mr Hunt not proceed with a statutory inquiry. Mr Gaisford alleged that he had been denied natural justice by Mr Hunt by virtue of there being a reasonable apprehension of bias by Mr Hunt in carrying out his Inquiry.

At first instance a judge of the Court had dismissed Mr Gaisford’s application.

The events that led to the appeal concerned an Inquiry, conducted by Mr Hunt, into alleged paedophile activity by officers and former offices of the Department of Foreign Affairs and Trade (DFAT).

At the time of the Inquiry an article detailing preliminary findings from a source close to the Inquiry, appeared in the Canberra Times. The judge at first instance had found that Mr Hunt had been the person who had had discussions with the Canberra Times journalist. The purpose of these discussions, according to Mr Hunt, was to obtain publicity for the Inquiry and to stimulate further information or submissions to it. Mr Gaisford was a DFAT officer who at the time when the article appeared in the Canberra Times, had not given evidence to the Inquiry.

At an Inquiry hearing and in correspondence, Mr Hunt sought to dispel any view that he had reached conclusions on any issues, and that he was the source of the information in the newspaper article.

When Mr Gaisford was to give evidence to the Inquiry, his solicitor raised concerns about the newspaper article. Mr Hunt then modified his position, indicating that he had had discussions with a journalist from the Canberra Times. Mr Gaisford’s solicitor requested that Mr Hunt disqualify himself from the Inquiry.

The Full Court held that there was an appearance of bias and that the appearance of bias was made worse by the additional circumstances of the uncertainty as to whether the comments were actually made by Mr Hunt. He had not given evidence but asked the Court to assume that they could be attributed to him.

The appeal was allowed, the orders made at first instance set aside and in place of those orders it was ordered that Mr Hunt not proceed with the Inquiry.

Foreign Relations and Media and Communication Law - Australian content on commercial television

Australian Broadcasting Authority v Project Blue Sky Inc (12 December 1996, Justices Northrop, Wilcox and Finn)

The question that arose in this appeal was the validity of a standard, relating to the Australian content of programs, that was made by the Australian Broadcasting Authority (the ABA) on 15 December 1995.

The ABA is under a duty pursuant to various sections of the Broadcasting Services Act 1922 (the Act), and in particular, s 122 of the Act, to determine standards with respect to specified programs. Section 160 requires the ABA to perform its function, including the making of standards in a manner consistent with Australia’s obligations under the CER Agreement (Australia New Zealand Closer Economic Relations Trade Agreement of 1983).

The purpose of the CER Agreement was to expand free trade between Australia and New Zealand; it also envisaged the gradual elimination of all trade barriers between the two countries and the creation of a free trade area. The practical effect of the Australian Content Standard is that each commercial television broadcasting licensee must each day broadcast Australian programs for a minimum time. The Standard identifies Australian programs by reference to the citizenship or residence of the producers, directors and actors involved in a program. The Standard therefore confers a benefit on Australians at the expense of non-Australians.

On the day the Standard was determined Project Blue Sky Inc and the other respondents initiated proceedings by filing a Writ in the High Court of Australia. By consent of the parties, the High Court remitted the matter for determination to the Federal Court of Australia.

When the case came on for hearing at first instance, the issue before the Court, was whether the Standard was invalid because it failed to impose the same requirement of preferential treatment of New Zealand programs that it imposed for Australian programs.

The Court declared that the Standard was invalid for failure to comply with the CER Agreement and ordered that unless it was revoked or varied by the ABA on or before 31 December 1996 the Standard would be set aside with effect from that date.

The ABA appealed against the declaration and orders of the judge at first instance.

The Full Court concluded that if the ABA specified the Australian content of television programs in such a way as to allow any of that required content to be satisfied by New Zealand programs, however that might be defined, it would fail to carry out its statutory task. It would not then be specifying the (minimum) Australian content of each licensee’s program time, but rather the minimum Australian-New Zealand content, in whatever proportion the licensees thought fit.

The only standard consistent with the CER Agreement which the ABA could set, would be one which allowed for no Australian content programs at all, provided that New Zealand programs were broadcast in lieu of Australian content programs. While this would be a standard it would be inconsistent with the ABA’s statutory obligation.

A majority of the Court held that there was an irreconcilable conflict between the special provision (the Australian content of programs) constituted by paragraph 122(2)(b) of the Act and the general provision of subsection 160(d), as it applied to the CER Agreement, and that paragraph 122(2)(b) must prevail. The appeal accordingly was allowed.

The High Court of Australia has granted Special Leave to Appeal from the Full Court’s judgment. The appeal has been heard and judgment reserved.

Copyright in the design of the Aboriginal Flag

Thomas v Brown (9 April 1997, Justice Sheppard)

The application to the Court in this matter concerned the ownership of the copyright in the design of the flag known as the Aboriginal Flag. The flag is divided into two sections. The upper half is black and the lower half is red. In the centre of the flag is a large yellow circle which, in present representations of the flag, has half its area in the black upper part of the flag and the other half in the red lower part of it.

The applicant, Mr Thomas, a professional artist who resides at Humpty Doo, 60 miles south of Darwin, claimed to have designed the flag in 1971 while living in Adelaide.

In his application Mr Thomas sought a declaration to the effect that he was the author of the artistic work being the design for the flag described in a schedule to a proclamation dated 27 June 1995 under s 5 of the Flags Act 1953 (that is, the flag had become an official flag of Australia). He also sought a declaration that he was the owner of the copyright comprised in the flag.

The application was commenced in the Copyright Tribunal pursuant to s 183 of the Copyright Act 1968 and asserted that the Commonwealth was making copyright usage of the flag design for the purposes of the Crown without entering into any appropriate agreement with the applicant for the use of the flag design. During the hearings in July 1996 there were discussions concerning the suitability of the Tribunal as an appropriate forum for the determination of the question of the ownership of the copyright in the flag. The Tribunal and the parties therefore decided that it was a safer course for Mr Thomas to file an application for declaratory relief in the Court.

As the matter proceeded, the question was raised as to whether Mr Thomas was entitled to claim copyright in the flag design, as it was stated that over the years a number of persons had claimed that they were the creators of the flag.

Justice Sheppard therefore arranged for the publication of advertisements in newspapers calling upon anybody who claimed ownership of the flag design to apply to the Court to have their claim determined. The advertisements led to two claims to ownership, namely from Messrs Brown and Tennant, the respondents to the application.

The Court rejected the claims of Messrs Brown and Tennant. Justice Sheppard noted the strength of Mr Thomas’s claim and corroborating evidence concerning events in 1971 when, according to Mr Thomas, he had created the flag design. That evidence included the production (in evidence) of a black and red round centrepiece retained from the first flag, the centrepiece being cut out to allow for the stitching in of the central sun emblem.

Justice Sheppard considered that copyright in the design had not been lost by reason of “industrial application” (pursuant to the design/copyright overlap provisions in s 77 of the Copyright Act), accepting that Mr Thomas had never authorised any mass reproduction of the flag design for any commercial purpose.

On 9 April 1997 the Court declared that Mr Thomas was the author of the artistic work being the design, known as the Aboriginal Flag, and that he was also the owner of the copyright subsisting in that artistic work.

Extradition

Papazoglou v The Republic of the Philippines (17 April 1997, Justices Wilcox, Tamberlin and Sackville)

This was an appeal from a decision of a single judge of the Supreme Court of Victoria relating to a request from the Republic of the Philippines for the extradition of the appellant, Mr Papazoglou, to that country. The Supreme Court of Victoria had confirmed the order of a magistrate that Mr Papazoglou was eligible for surrender for the purposes of the Extradition Act 1988. The jurisdiction of the Federal Court in this type of matter is set out in s 21(3) of the Extradition Act which provides for an appeal to the Full Court of the Federal Court.

Mr Papazoglou was the principal of a company which promoted the services of Philippines Airlines in return for commissions. It was alleged that between 1984 and 1988 he had falsely cla