During the year under review the Court continued to achieve its objective of promptly, courteously and effectively deciding disputes according to law in order to fulfil its role as a court exercising the judicial power of the Commonwealth under the Constitution. Through its jurisdiction, the Court applied and upheld the rule of law to deliver remedies and enforce rights and in so doing, contributed to the social and economic development and well being of all Australians. The Court’s innovative approach to managing its work brought continuing recognition of its role as a world class civil court.
During the reporting year the Court successfully managed a number of significant issues and developments. These include the following.
The Court continued to use a range of strategies to assist with its management of native title cases. The complexity of managing the hearing of native title cases has required the Court to continue to develop and apply such strategies and to continually monitor their impact.
In particular, the Court was actively engaged in resolving issues within cases in order to expedite and clarify their hearing before the Court. Where appropriate, the Court:
In October 2001 the Chief Justice convened the Court’s first National Native Title User Group consultative meeting in Adelaide. The purpose of the meeting was to enable the Court to explain its procedures and to invite comments or suggestions for improvement. At the conclusion of the meeting, there was general agreement that it had been successful and timely, and an opportunity for frank discussion.
Details of the initiatives mentioned above are set out in Chapter 3 of this report.
During the reporting year, the Court piloted the latest courtroom technology to conduct its first fully electronic trial at first instance in the case of Peter De Rose & ors v State of SA and anor.
Justice O'Loughlin presided over the trial, most of which was heard on-country in a remote location 470 kilometres south of Alice Springs. The case was heard primarily in June-July and September-October 2001. Staff from the Court supervised the majority of the technical aspects of this trial, with technical assistance provided in the initial stages by outside contractors. The pilot was intended to test a number of issues, including the feasibility of conducting substantial cases involving thousands of documents, primarily using information in electronic form.
Although the pilot involved a native title hearing, the results have relevance to other matters involving large numbers of documents. More details of the native title aspects of the pilot are included in Chapter 3.
25th Anniversary Sitting
On 7 February 2002 the Court marked the occasion of the 25th anniversary of the Court’s first sitting in a national ceremonial sitting presided over by the Chief Justice, the Honourable Michael Black, AC. The first sitting of the Court was held in Sydney on 7 February 1977.
In recognition o its national character, the 25th anniversary sitting was held nationally using the Court’s video-conferencing network, which linked the Court in all but one of the state capitals and the ACT. The use of this technology enabled the Court to sit simultaneously in seven cities and for judges, speakers, guests and staff to be present in each location.
Thirty-nine serving judges sat together to mark the occasion, together with 18 former members of the Court, including five foundation members. Addresses to the Court were made by the Attorney-General, the Hon Daryl Williams (in Sydney), the President of the Law Council of Australia, Mr Tony Abbott, (in Adelaide) and the President of the Australian Bar Association, Mr David Curtain QC (in Melbourne). In each location, speeches were given by the president of the local law society and of the bar association.
The technical success of the sitting was the result of detailed planning by court staff to ensure that the technical and logistical demands of the event were met. The Court pioneered the use of video-conferencing in the early 1990s and, at that time, was the first national court in the world to have a national video-conferencing network.
The Court worked extensively and cooperatively with the new Federal Magistrates Court to consolidate and refine the arrangements for the provision of registry services and other assistance to that Court in its non-family law jurisdiction. In particular, the Court worked closely on a joint project to develop harmonised bankruptcy rules and on protocols to help ensure appropriate consistency in practice between the courts.
The registrars of the Federal Court have been appointed registrars of the Federal Magistrates Court and staff of the Federal Court's registries provide counter and other registry services for the Court. The bulk of the Federal Magistrates Court’s bankruptcy work is completed by registrars of the Federal Court, exercising Federal Magistrates Court jurisdiction.
Workload
During the year there were a number of changes to the Court’s jurisdiction, as outlined in Chapter 3 of this report. These changes resulted in the Court losing some work and gaining other work. The time and resources devoted to native title matters increased as the Court managed more cases towards resolution or trial. The Court’s appellate workload also increased and the trend continued for more people to appear without legal representation in appeals before the Full Court. Parties appearing without representation often take more time to present their appeal than those who are represented.
There was a significant reduction in the number of matters commenced in the Court, due primarily to the large number of applications made to the Federal Magistrates Court under the Bankruptcy Act 1966 that would otherwise have been made to the Federal Court. In addition, a number of matters concerning the review of decisions under the Migration Act 1958 were transferred to the Federal Magistrates Court. The movement of these less complex cases to the Federal Magistrates Court is yet to have a significant impact on the workload of the judges, as almost all Bankruptcy Act matters were dealt with by the Court’s registrars. However, the Court’s capacity to focus on the more complex cases has increased.
Notwithstanding the challenges presented by these changes, the Court maintained its performance by disposing of 90.8 per cent of cases in less than 18 months from the date of filing.
Detailed information about the Court's workload can be found in Chapter 3.
Notwithstanding the changes to the Migration Act in October 2001 which were intended to restrict the jurisdiction of the Court to review administrative decisions made under that Act, and the conferral on the Federal Magistrates Court of jurisdiction to review such decisions, the number of migration cases (including appeals) commenced in the Court continued to increase. In 2001-02, 1,355 matters concerning decisions under the Migration Act were filed in the Court, representing a
3.3 per cent increase from the number filed in 2000-01. While there was a small decrease in the number of applications filed in the Court’s original jurisdiction, the number of migration cases proceeding to appeal increased by 78.5 per cent. It is expected that the number of migration matters commenced in the Court will decline further once the effect of the legislative amendments has been determined and understood by those who advise migration applicants, and as a result of the Federal Magistrates Court exercising first instance jurisdiction in this area.
The appellate work of the Court continues to be substantial. In 2001-02, 603 appeals were filed in the Court – an increase of 189 or 45.6 per cent from the number filed in 2000-01. The matters brought to the Court in its appellate jurisdiction range from long and complex native title claims through to the high number of Migration Act cases noted above. The Court’s Management of Appeals Committee is continuing to identify and implement solutions to the management issues related to the Court’s heavy appellate workload.
The Court has two key standards, referred to as time goals. The first concerns the time cases should take from filing to completion. The second concerns the time within which reserved judgments are delivered. The time goals are intended to assist the Court’s performance, however, they do not determine the time all cases take, as some long and complex cases will necessarily take longer than 18 months. As well, many cases need to be dealt with promptly (in a few months) and the Court identifies these matters and attempts to resolve them quickly. The Court’s Individual Docket System, (where a case is allocated to a judge when it is commenced and is managed by that judge), helps the priority-setting process.
The Court has set a time goal of 85 per cent of cases (excluding native title matters) to be disposed within eighteen months from commencement. This percentage is regularly reviewed by the Court.
In 2001-02 the Court completed 90.8 per cent of cases in its original and appellate jurisdictions within eighteen months. Further details about the completion of cases are set out in Chapter 3.
The Court has set the period of three months as the goal within which reserved judgments will be delivered. The degree to which the Court meets this goal is dependent upon the complexity of the case and the pressure of other business upon the Court. During 2001-02 the Court handed down 1,209 reserved judgments, with almost 78 per cent of them delivered in less than three months from the date of being reserved.
As a result of careful management the Court achieved a surplus for the reporting year. The surplus (or more accurately, the accumulated deferred expenditure) mainly comprises unexpended native title funding which will be used in the next financial year and 2003-04 as more native title matters come before the Court for intensive case management and determination.
Maintaining a lead in Practice and Procedure
During 2002-03 the Court will continue to develop and implement practices and procedures for ensuring that cases coming before it are dealt with efficiently. The following will be priority projects for the year.
When the Court introduced the Individual Docket System (IDS) in 1997 it resolved that after a number of years of operation an outside organisation would be engaged to evaluate the effectiveness of the IDS. The Justice Research Centre, now the Law and Justice Foundation of New South Wales, was asked to conduct the IDS study. In April 2002 the Foundation presented a draft document titled “The Federal Court Individual Docket System - A Post Implementation Evaluation”. In addition, in March 2002, the Law Council of Australia provided the Court with its review of the IDS.
Both the study and the review are supportive of the IDS. However, both recognise that the IDS can be further developed to improve the benefits to the Court and litigants. The Court will consider both documents in its own internal review of the IDS, which commenced this reporting year and which will continue in 2002-03.
In 2001-02 the Court decided to review its practice direction and guidelines for expert witnesses.
Following extensive consultation with professions across Australia, including the Council of the Professions and the Law Council of Australia, the Court introduced new guidelines for expert witnesses in September 1998. It was the first Court in Australia to do so, and the initiative has been copied in many jurisdictions around the world. When introducing the new guidelines, the Court indicated that they would be reviewed after a period of operation.
As part of its review, the Court again sought the views of the bodies originally consulted and received submissions in the latter part of the reporting year. The submissions are being considered by the Court’s Practice and Procedure Committee and it is likely that refinements and improvements will be introduced during 2002-03.
During 2001-02, a committee of the Court comprising judges and Court staff gave detailed consideration to the issues raised by the increasing number of self-represented litigants in the Court and the impact of the time and resources needed to resolve the matters in which such litigants are involved. As well, the Court has identified that other parties in matters involving self represented litigants are likely to incur unnecessary costs unless better management practices are implemented. The committee’s work will continue in 2002-03, focussing on the development of a management plan to enable the Court to balance an appropriate response to the persistently meritless or vexatious litigants and the needs of self-represented litigants who would, by choice, wish to be represented, by applying better management practices to ensure the effective use of the Court’s resources.
During 2002-03 the Court expects that the number of cases filed at first instance will continue to decline, primarily as a result of the changes in the migration jurisdiction noted above. Any reduction in the number of migration cases at first instance may, however, be offset by further increases in the number of appeals filed in the Court – particularly from decisions of the Federal Magistrates Court. These changes will lead to the Court focussing its judicial resources on the efficient disposition of more complex cases and appeals. The Court will closely monitor the changing nature and complexity of the matters coming before it, and will develop and implement practices and procedures to meet any challenges they present.
In recent years, the Court has been increasingly involved in working with overseas judiciaries to provide a range of assistance. In particular, the Court has taken a key role in judicial education programs, many of which are funded by the Australian Agency for International Development (AusAID). The Court’s major program for the last three years has been to run a judicial training program for the Supreme Court of Indonesia. Following a very positive review of this program, which identified real and tangible benefits from the program, the Court expects that in 2002-03 its work with the Supreme Court to continue and grow, with further support from AusAID, and importantly, with strong support from the Supreme Court. The Court’s work with this program is important in the context of the Australian Government’s priority to provide assistance to legal reform in Indonesia. The Court has been involved in a similar program conducted with judges from the Supreme Court of the Philippines.
The Court’s activities also range from the provision of library assistance to courts in the South Pacific to hosting and arranging visits to the Court by many delegations of judges and court officials.
Judges of the Court are very enthusiastic about their role in these activities and appreciate their value in economic and social terms to developing judiciaries and to Australia. They welcome opportunities to be involved in this work and their involvement is undertaken in addition to their normal judicial workload and, often, in their own time.
The Court’s increased commitment to these activities provides a challenge for the Court to manage the considerable time and resources devoted to this important work.