Part 3: The Work of the Court in 2013-2014
Federal Court of Australia Annual Report 2013-2014
The Federal Court has one key outcome identified for its work, which is, through its jurisdiction, to apply and uphold the rule of law to deliver remedies and enforce rights and, in so doing, contribute to the social and economic development and wellbeing of all Australians.
This Part of the Annual Report covers the Court’s performance against this objective. In particular, it reports extensively on the Court’s workload during the year, as well as its management of cases and performance against its stated workload goals. Aspects of the work undertaken by the Court to improve access to the Court for its users, including changes to its practices and procedures, are discussed. Information about the Court’s work with overseas courts is also covered.
MANAGEMENT OF CASES AND DECIDING DISPUTES
The following examines the Court’s jurisdiction, management of cases, workload and use of assisted dispute resolution.
THE COURTS JURISDICTION
The Court’s jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. It also has jurisdiction to hear and determine any matter arising under the Constitution through the operation of s 39B of the Judiciary Act 1903.
Central to the Court’s civil jurisdiction is s 39B(1A)(c) of the Judiciary Act. This jurisdiction includes cases created by federal statute, and extends to matters in which a federal issue is properly raised as part of a claim or of a defence and to matters where the subject matter in dispute owes its existence to a federal statute.
Cases arising under Part IV (restrictive trade practices) and Schedule 2 (the Australian Consumer Law) of the Competition and Consumer Act 2010 constitute a significant part of the workload of the Court. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. See Figure A5.8 on page 147 for comparative statistics regarding consumer law matters. Since late 2009 the Court has also had jurisdiction in relation to indictable offences for serious cartel conduct.
In addition, the court has jurisdiction under the Judiciary Act to hear applications for judicial review of decisions by officers of the Commonwealth. Many cases also arise under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), which provides for judicial review of most administrative decisions made under Commonwealth enactments on grounds relating to the legality, rather than the merits, of the decision. The Court hears appeals on questions of law from the Administrative Appeals Tribunal.
The Court hears taxation matters on appeal from the Administrative Appeals Tribunal. It also exercises a first instance jurisdiction to hear objections to decisions made by the Commissioner of Taxation. Figure A5.13 on page 152 shows the taxation matters filed over the last five years.
The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trademarks, designs and circuit layouts). All appeals in these cases, including appeals from the Supreme Courts, are to a full Federal Court. Figure A5.14 on page 153 shows the intellectual property matters filed over the last five years.
Another significant part of the Court’s jurisdiction derives from the Native Title Act 1993. The Court has jurisdiction to hear and determine native title determination applications and to be responsible for their mediation, to hear and determine revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Court also hears appeals from the National Native Title Tribunal (NNTT) and matters filed under the ADJR Act involving native title. The Court’s native title jurisdiction is discussed on page 26.
A further important area of jurisdiction for the Court derives from the Admiralty Act 1988. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories to hear maritime claims under this Act. Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. During the reporting year the Court’s Admiralty Marshals made twelve arrests. See Figure A5.10 on page 149 for a comparison of Admiralty Act matters filed in the past five years.
The Court’s jurisdiction under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers. The jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. See Figure A5.7 on page 146 for a comparison of corporations matters filed in the last five years.
The Court exercises jurisdiction under the Bankruptcy Act 1966. It has power to make sequestration (bankruptcy) orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. The Court’s jurisdiction includes matters arising from the administration of bankrupt estates. See Figure A5.6 on page 145 for a comparison of bankruptcy matters filed in the last five years.
The Court has jurisdiction under the Fair Work Act 2009, Fair Work (Registered Organisations) Act 2009 and related industrial legislation (including matters to be determined under the Workplace Relations Act 1996 in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). Workplace relations and Fair Work matters filed over the last five years are shown in Figure A5.12 on page 151.
The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Circuit Court (FCC) in non-family law matters and from other courts exercising certain federal jurisdiction. In recent years a significant component of its appellate work has involved appeals from the FCC concerning decisions under the Migration Act 1958. The Court’s migration jurisdiction is discussed later in this Part on page 26. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island.
The Court’s appellate jurisdiction is discussed on page 25. Figure A5.15 on page 154 shows the appeals filed in the Court since 2009–10.
This summary refers only to some of the principal areas of the Court’s work. Statutes under which the Court exercises jurisdiction in addition to the jurisdiction vested under the Constitution through s 39B of the Judiciary Act are listed on the Court’s website at www.fedcourt.gov.au.
CHANGES TO THE COURT’S JURISDICTION IN 2013–14
The Court’s jurisdiction during the year was enlarged or otherwise affected by a number of statutes including:
- Court Security Act 2013
- Major Sporting Events (Indicia and Images) Protection Act 2014
- Public Interest Disclosure Act 2013
AMENDMENTS TO THE FEDERAL COURT OF AUSTRALIA ACT
During the reporting year there were no amendments to the Federal Court Act.
The substantive provisions of the Trans-Tasman Proceedings Act 2010 and the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010, which implement the ‘Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement’ signed on 24 July 2008, commenced on 11 October 2013.
During the reporting period there were no amendments to the Federal Court and Federal Circuit Court Regulation 2012 (the Regulation). However, the items in Schedule 1 of the Regulation relating to the filing of an application under the Trans-Tasman Proceedings Act commenced on 11 October 2013.
Most of the filing and other fees set out in Schedule 1 of the Regulation will be increased from 1 July 2014 in accordance with the formula for biennial adjustment in fees set out in Regulation 2.20.
FEDERAL COURT RULES
The judges are responsible for making the Rules of Court under the Federal Court 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 Legislative Instruments.
The Rules are kept under review. New and amending rules are made to ensure that the Court’s procedures are current and responsive to the needs of modern litigation. They also provide the framework for new jurisdiction conferred upon the Court. A review of the Rules is often undertaken as a consequence of changes to the Court’s practice and procedure described elsewhere in this report. Proposed amendments are discussed with the Law Council of Australia and other relevant organisations as considered appropriate.
During the reporting year two amendments were made to the Federal Court Rules 2011: Federal Court Amendment (Electronic Court File Measures No. 1) Rules 2013, which commenced on 26 November 2013, and Federal Court Amendment (Costs and Other Measures) Rules 2013, which commenced on 3 January 2014.
The first amendment was to support the initial stage of the implementation in the Federal Court of an electronic court file. It is proposed that this implementation will be effected through a gradual transition over several stages. During the transition, the Court’s rules must support both the existing paper based and the new electronic court file. The amendments accommodated changes to such things as the use of stamps and seals; preparing and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.
The second amendment made changes to:
- Sub rules 8.02(3) and 5.03(3) limiting the length of an applicant’s genuine steps statement filed under rule 8.02 and a respondent’s genuine steps statement filed under rule 5.03 to no more than 2 pages.
- Rule 10.04 to correct a grammatical error.
- Schedule 3 to adjust the quantum of costs allowable for work and services provided by lawyers in proceedings in the Court on and from 1 January 2014 to give effect to a recommendation made in the Sixth Report of the Joint Costs Advisory Committee.
Approved Forms are available on the Court’s website. Any document that is filed in a proceeding in the Court must be in accordance with any approved form (see rule 2.11). The Chief Justice may approve a form for the purposes of the Federal Court Rules (see sub rule 1.52(2)).
Two of the Court’s Approved Forms were amended by the Chief Justice during the reporting year.
- Form 21 Opt Out Notice was amended on 28 October 2013 to insert an address to which the completed form should be sent.
- Form 127 Bill of Costs was amended on 9 October 2013 to rectify an error in a column heading in the costs table of the bill so that it correctly makes reference to Schedule 3 of the Federal Court Rules.
Practice Notes supplement the procedures set out in the Rules of Court and are issued by the Chief Justice upon the advice of the judges of the Court under rules 2.11, 2.12 and 2.21 of the Federal Court Rules and the Court’s inherent power to control its own processes.
The Chief Justice issued the following revised Practice Notes:
- Practice Note ADM1 – Admiralty and Maritime work in the Federal Court of Australia, effective from 1 July 2013
- Practice Note APP 2 – Content of appeal books and preparation for hearing, issued on 22 November 2013
- Practice Note CM 17 – Representative proceedings commenced under Part IVA of the Federal Court of Australia Act 1976, issued on 9 October 2013
- Practice Note CORP 2 – Cross-border Insolvency – Cooperation with Foreign Courts or Foreign Representatives, issued on 9 October 2013.
In addition, Administrative Notices are issued by each District Registrar at the request, or with the agreement, of judges in the District Registry to which the notice relates. These notices deal with local matters, such as arrangements for the duty judge and the listing of particular types of matters (for example in a subpoena or corporations list).
The Victoria District Registrar issued a new Administrative Notice on 11 November 2013, namely:
- Administrative Notice VIC 3 – Allocation of matters in the Victoria District Registry.
The New South Wales District Registrar revised an Administrative Notice on 21 May 2014, namely:
- Administrative Notice NSW 2 – Corporations Matters.
Practice Notes and Administrative Notices are available through District Registries and on the Court’s website. They are also available in loose-leaf legal services.
There was one amendment to the Federal Court (Bankruptcy) Rules 2005 commencing on 19 September 2013 consequential on the enactment of the Federal Circuit Court of Australia Legislation Amendment Act 2013. This Amending Act, amongst other things, changed the name of the Federal Magistrates Court to the Federal Circuit Court of Australia and its judicial officers to Chief Judge and Judges.
There were no amendments to the Federal Court (Corporations) Rules 2000.
WORKLOAD OF THE FEDERAL COURT AND FEDERAL CIRCUIT COURT
The Court has concurrent jurisdiction with the Federal Circuit Court (FCC) in a number of areas of general federal law including bankruptcy, human rights, workplace relations and migration matters. The registries of the Federal Court provide registry services for the FCC in its general federal law jurisdiction.
Figure 3.1 below shows a continued increase in the combined filings of the two courts since 2009–10.
In 2013–14, a total of 13 674 matters were filed in the two courts. In 1999–2000 there were 6276 filings in the two courts. The overall growth in the number of filings since 2000 has had a considerable impact on the Federal Court’s registries, which process the documents filed for both courts and provide the administrative support for each matter to be heard and determined by
the relevant court.
Figure 3.1 – Filings to 30 June 2014 Federal Court of Australia (FCA) and Federal Circuit Court (FCC)
CASE FLOW MANAGEMENT OF THE COURT’S JURISDICTION
As noted in Part 2, the Court has adopted as one of its key case flow management principles the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court’s Individual Docket System, and the implementation of practices and procedures designed to assist with the efficient disposition of cases according to law.
Under the Individual Docket System, a matter will usually stay with the same judge from commencement until disposition. This means a judge has greater familiarity with each case and leads to the more efficient management of the proceeding.
Disposition of matters other than native title
In 1999–2000 the Court set a goal of eighteen months from commencement as the period within which it should dispose of at least eighty-five per cent of its cases (excluding native title cases). The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court’s workload, and a decrease in the number of less complex matters. It is reviewed regularly by the Court in relation to workload and available resources. The Court’s ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.
Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the eighteen-month period, with only particularly large and/or difficult cases requiring more time. Indeed, many cases are urgent and need to be disposed of quickly after commencement. The Court’s practice and procedure facilitates early disposition when necessary.
During the five-year period from 1 July 2009 to 30 June 2014, ninety-two per cent of cases (excluding native title matters) were completed in less than eighteen months, eighty-seven per cent in less than twelve months and seventy-five per cent in less than six months (see Figure A5.4 on page 143). Figure A5.5 on page 144 shows the percentage of cases (excluding native title matters) completed within eighteen months over the last five reporting years. The figure shows that in 2013–14, almost ninety-three per cent of cases were completed within eighteen months.
Delivery of judgments
In the reporting period, 1630 judgments were delivered. Of these, 496 judgments were delivered in appeals (both single judge and full court) and 1134 in first instance cases. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions.
The nature of the Court’s workload means that a substantial proportion of the matters coming before the Court will go to trial and the decision of the trial judge will be reserved at the conclusion of the trial. The judgment is delivered at a later date and is often referred to as a ‘reserved judgment’. The nature of the Court’s appellate work also means a substantial proportion of appeals require reserved judgments.
Appendix 7 on page 159 includes a summary of decisions of interest delivered during the year and illustrates the Court’s varied jurisdiction.
WORKLOAD OF THE COURT IN ITS ORIGINAL JURISDICTION
In the reporting year, 4281 cases were commenced in, or transferred to, the Court’s original jurisdiction. See Table A5.2 on page 139.
Matters transferred to and from the Court
Matters may be remitted or transferred to the Court under:
- Judiciary Act 1903, s 44
- Cross-vesting Scheme Acts
- Corporations Act 2001
- Federal Circuit Court of Australia Act 1999
During the reporting year, twenty-seven matters were remitted or transferred to the Court:
- four from the High Court
- eleven from the Federal Circuit Court
- eight from the Supreme Courts
- four from other courts
Matters may be transferred from the Court under:
- Federal Court of Australia (Consequential Provisions) Act 1976
- Jurisdiction of Courts (Cross-vesting) Act 1987
- Administrative Decisions (Judicial Review) Act 1977
- Bankruptcy Act 1966
- Corporations Act 2001
- Administrative Appeals Tribunal Act 1975
During 2013–14, twenty-three matters were transferred from the Court:
- twenty to the Federal Circuit Court
- two to Supreme Courts
- one to other courts
Table A5.2 on page 139 shows a comparison of the number of matters commenced in the Court’s original jurisdiction and the number completed. The number of matters completed during the reporting year was 4912 against 4905 in the previous reporting year.
The total number of current matters in the Court’s original jurisdiction at the end of the reporting year was 2044 (see Table A5.2), compared with 2675 in 2012–13.
Age of pending workload
The comparative age of matters pending in the Court’s original jurisdiction (against all major causes of action, other than native title matters) at 30 June 2014 is set out in Table 3.1 below.
Native title matters are not included in Table 3.1 because of their complexity, the role of the National Native Title Tribunal and the need to acknowledge regional priorities.
Table 3.1 – Age of current matters (excluding appeals and related actions and native title matters)
|Under 6 months||6–12 |
|12–18 months||18–24 months||Over 24 months||Sub-Total|
|Cause of Action|
|Fair Work/Workplace Relations||154||13||8||–||5||180|
|% of Total||76.8%||6.0%||5.3%||4.0%||7.9%||100.0%|
The Court experienced a fifty-three per cent decrease in the number of matters over eighteen months old in 2013–14. Table 3.1 shows that at 30 June 2014 there were 198 first instance matters over eighteen months old compared with 423 in 2013 (not including native title matters). The large decrease in matters in this category is due to the resolution of a number of lengthy corporations, consumer law (misleading and deceptive conduct), intellectual property and taxation matters. The length of time it takes to finalise these matters is indicative of their complexity both for the parties in preparing the matters for hearing and the judge in hearing and deciding the case.
Table 3.2 – Age of current native title matters (excluding appeals)
|Under 6 months|| 6–12 |
|12–18 months||18–24 months||Over 24 months||Sub-Total|
|Native Title Action||55||21||11||34||257||378|
|% of Total||14.6%||5.6%||2.9%||9.0%||68.0%||100.0%|
The number of native title matters over eighteen months old decreased by twenty per cent from 368 in 2013 to 291 at 30 June 2014. The number of native title matters over two years old decreased from 320 at 30 June 2013 to 257 at 30 June 2014, a clear indication that the innovative case management strategies being employed in this area are working. Further information about the Court’s native title workload can be found on page 26.
The Court will continue to focus on reducing its pending caseload and the number of matters over eighteen months old. A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 5 commencing on page 137.
THE COURT’S APPELLATE JURISDICTION
The appellate workload of the Court constitutes a significant part of its overall workload. While most of the appeals arise from decisions of single judges of the Court or the FCC, some are in relation to decisions by State and Territory courts exercising certain federal jurisdiction.
The number of appellate proceedings commenced in the Court is dependent on many factors including the number of first instance matters disposed of in a reporting year, the nature of matters filed in the Court and whether the jurisdiction of the Court is enhanced or reduced by legislative changes or decisions of the High Court of Australia on the constitutionality of legislation.
Subject to ss 25(1), (1AA) and (5) of the Federal Court Act, appeals from the FCC, and courts of summary jurisdiction exercising federal jurisdiction, may be heard by a Full Court of the Federal Court or by a single judge in certain circumstances. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges.
The Court publishes details of the four scheduled Full Court and appellate sitting periods to be held in February, May, August and November of each year. Each sitting period is up to four weeks in duration.
In the 2014 calendar year, Full Court and appellate sitting periods have been scheduled for Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra and Darwin. Once an appeal is ready to be heard, it can usually be listed for the next scheduled Full Court and appellate sittings in the capital city where the matter was heard at first instance.
When appeals are considered to be sufficiently urgent, the Court will convene a special sitting of a Full Court which may, if necessary and appropriate, use videoconferencing facilities or hear the appeal in a capital city other than that in which the case was originally heard.
In 2013–14 the Court specially fixed 32 Full Court or appellate matters for early hearing outside of the four scheduled sitting periods compared with 15 matters in the previous reporting year. Hearing these matters involved a total of 31 sitting days.
THE APPELLATE WORKLOAD
During the reporting year 890 appellate proceedings were filed in the Court. They include appeals and related actions (728), cross appeals (25) and interlocutory applications such as applications for security for costs in relation to an appeal, for a stay of an appeal, to vary or set aside orders or various other applications (137).
The FCC is a significant source of appellate work accounting for fifty-six per cent (501) of the total number of appeals and related actions, cross appeals and other interlocutory applications (890) filed in 2013–14. The majority of these proceedings continue to be heard and determined by single judges exercising the Court’s appellate jurisdiction. Further information on the source of appeals
and related actions is set out in Figure A5.16 on page 155.
The above figures indicate that there was an overall increase of thirteen per cent in the Court’s appellate workload in 2013–14 (890) compared with 2012–13 (787). During the reporting year the number of appellate migration matters filed increased by eighteen per cent from 333 in 2012–13 to 393 in 2013–14 and the number of appellate non-migration matters filed increased by nine per cent from 454 in 2012–13 to 496.
As shown by Table 3.4, this workload is subject to fluctuation due to changes that may occur in government policy or the impact of decisions of the Full Court of the Federal Court or the High Court.
In the reporting year 699 appeals and related actions, 24 cross appeals and 135 interlocutory applications were finalised. At 30 June 2014, there were 401 current matters including appeals and related actions (317), cross appeals (20) and interlocutory applications (64). The comparative age of matters pending in the Court’s appellate jurisdiction (including native title appeals) at 30 June 2014 is set out in Table 3.3 below.
At 30 June 2014 there were four matters that are eighteen months or older. These matters are either awaiting the outcome of decisions in the Federal Court (e.g. following the conclusion of High Court proceedings in one matter) or the matter involves the pursuit of a negotiated outcome in a complex native title appeal.
Table 3.3 – Age of current appeals and related actions, cross appeals and interlocutory appellate applications as at 30 June 2014.
|CURRENT AGE||Under 6 months|| 6–12 |
|12–18 months||18–24 months||Over 24 months||Sub-Total|
| Appeals and related actions, |
cross appeals and interlocutory appellate applications
|% of Total||73.3%||19.7%||6.0%||0.5%||0.5%||100%|
MANAGING MIGRATION APPEALS
In 2013–14 twenty-three migration cases filed in the Court’s appellate jurisdiction related to judgments of single judges of the Court exercising the Court’s original jurisdiction and 370 migration cases related to judgments of the FCC. These 393 cases include 378 appeals, cross appeals and related actions and fifteen interlocutory applications.
Table 3.4 shows the number of appellate proceedings involving the Migration Act as a proportion of the Court’s overall appellate workload since 2009–10. The Court continues to apply a number of procedures to streamline the preparation and conduct of these appeals and applications and to facilitate the expeditious management of the migration workload.
Initially, the Court applies systems to assist with identifying matters raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting in more timely and efficient disposal of matters. Then, all migration related appellate proceedings (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court and appellate sitting period. Fixing migration related appellate proceedings for hearing in the four scheduled sitting periods has provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same sitting period.
Where any migration related appellate proceeding requires an expedited hearing, the matter is allocated to a docket judge or duty judge (in accordance with local practice) or referred to a specially convened Full Court.
Table 3.4 – Appellate proceedings concerning decisions under the Migration Act as a proportion of all appellate proceedings (including appeals and related actions, cross appeals and interlocutory applications)
|APPELLATE PROCEEDINGS|| 2009 |
| 2010 |
| 2011 |
| 2012 |
| 2013 |
|% of total||46%||32%||43%||42%||44%|
|Total Appellate Proceedings||860||837||797||787||890|
Information about the Court’s time goal for the disposition of migration appeals can be found in Part 2 at page 14.
THE COURT’S NATIVE TITLE JURISDICTION
The reporting period saw significant inroads being made into the Court’s outstanding native title caseload. At the commencement of 2013–14 there were 410 native title determination, non claimant and compensation applications. During the course of the year forty new applications were filed while the overall number of applications was reduced to 368.
In 2013–14 there were sixty consent determinations of which, fifty-two finally resolved the particular application. Seven matters were finalised through determinations made by the Court following a litigated hearing. A further fifty-three applications were otherwise resolved including by discontinuance or dismissal. In many instances matters are discontinued or dismissed by consent following the agreement of the parties to resolve the application by means other than a determination of native title.
A number of significant outcomes were achieved in native title matters in the reporting year. The De Rose compensation application in South Australia became the first compensation application in Australia to be resolved by consent. The parties in that matter were able to reach agreement following Court referral of the matter to a specialist mediator from the Court’s native title mediator list. The Goldfields region of Western Australia saw its first positive determination of native title in the Esperance Nyungars matter. This consent determination was made by the Court and gave effect to the agreement of the parties reached at mediation conducted by the Court’s specialist native title registrars. In New South Wales the resolution of the Bandjalang matters following intensive case management by the Court’s native title registrars marked the first consent determinations in that State in six years. In the Bularnu, Waluwarra and Wangkayujuru Peoples claims in Queensland, intensive case management was employed to resolve all issues but one which was subsequently resolved following a short targeted hearing. Focused case management by the Court in the Northern Territory saw continued strong progress of the resolution of all claims over the northern pastoral estate.
The significant results that continued to be achieved through the year can be attributed to numerous initiatives. In 2009 the Native Title Act 1993 was amended to expand the mediation referral options available to the Court from only the National Native Title Tribunal (NNTT) to also include registrars of the Court and other suitably qualified mediators. This amendment was followed in 2010 by the creation of the Court’s list of specialist native title mediators and the Court’s priority list of native title claims for resolution, both of which continue to be updated and published on the Court’s website. In 2012 the government introduced institutional reforms which included the transfer of responsibility for the mediation of claims and associated resources from the NNTT to the Federal Court.
Since the institutional reforms the Court has reviewed all claims in intensive case management processes to identify outstanding issues and explore options, including but not limited to mediation, for the resolution of those issues.
In 2013–14 the Court continued to work with the parties to identify priority claims for resolution in the coming twelve to eighteen months. The identification and publication of these claims
on the Court’s website allows the resources and coordinated efforts of all parties to be appropriately focused on the resolution of identified outstanding issues in these claims. There are currently 180 matters on the Court’s priority list. It is anticipated that approximately half of these matters will be resolved in 2014–15.
This year the Court continued to identify systemic issues affecting the timely resolution of native title applications. The significant resources and time expended by the parties to identify, collate and analyse tenure documents formed the particular focus of discussions with parties at regional user group forums and at regional directions hearings held during the reporting period. The Court continues to encourage the parties to formulate flexible and innovative approaches to tenure analysis and is working closely with the NNTT on a pilot project in a New South Wales matter that aims to significantly streamline current processes.
ASSISTED DISPUTE RESOLUTION (ADR)
Since its establishment in 1987, the Court’s ADR programme has expanded from a small number of referrals to mediation to a routine way in which the Court facilitates the quick, inexpensive and efficient resolution of disputes. The capacity for a judge to refer a matter to arbitration, mediation or another ADR process is enshrined in the Federal Court of Australia Act, supplemented by the Rules of the Court. In practice, parties to matters before the Court are required to give consideration to possible referral to mediation as part of their preparation of a matter for hearing.
The majority of court ordered mediations are conducted by registrars who are all trained and accredited under the National Mediator Accreditation Scheme. In the native title jurisdiction the Court maintains a list, available on its website, of specialist mediators who have current experience in the resolution of complex Indigenous land management disputes. In some circumstances the parties may employ the services of a private mediator following a Court ordered referral to mediation.
Since the 2010–11 reporting period the Court has provided comprehensive statistical information about referrals to ADR and the outcomes of ADR processes held during the relevant reporting period. In doing so the Court is best able to assess the performance of its ADR programme across years and to provide academics and policy makers with data upon which they may base their work. As in previous years the data below should be considered in light of a number of factors. Firstly, referrals to mediation or other types of ADR may occur in a different reporting period to the conduct of that mediation or ADR process. Secondly, not all referrals to mediation or the conduct of mediation occur in the same reporting period as a matter was filed. This means that comparisons of mediation referrals or mediations conducted as a proportion of the number of matters filed in the Court during the reporting period are indicative only. Thirdly, the data presented on referrals to ADR and outcomes of mediations conducted during the reporting period does not include information about ADR processes that may have been engaged in by parties before the matter is filed in the Court, or all of the matters where a private mediator is used during the course of the litigation. Similarly, the statistics provided below do not include instances where judges of the Court order experts to confer with each other to identify areas where their opinions are in agreement and disagreement without the supervision of a registrar.
Table 3.5 – ADR referrals in 2013–14 by type and Registry
|Early neutral evaluation||–||–||–||–||–||–||–||–||–|
|Conference of experts||–||–||–||5||–||–||–||–||5|
|Court appointed experts||–||–||–||–||–||–||–||–||–|
Table 3.6 shows the referrals to mediation by matter type and registry. Consistent with previous years corporations law, industrial, consumer law and intellectual property are the most frequently referred matter types nationally; however, variation exists across registries as to the types of matters most frequently referred. As in previous years industrial matters continue to be the most usual type of matter referred to mediation in Victoria followed by consumer law matters. In New South Wales intellectual property and corporations law matters were the matter types most frequently referred to mediation.
Table 3.6 – Mediation referrals in 2013–14 by Cause of Action (CoA) and Registry
Table 3.7 shows the number of mediation referrals during the reporting period as a proportion of the total filings in the Court. The proportion of total filings that are referred to mediation remains consistent with previous years. When the total filings figures are adjusted to remove those matter types whose characteristics mean that referrals to mediation are rare, e.g. migration appeals and applications to wind up corporations that are dealt with by registrars of the Court, a truer illustration of referral rates is possible. While only 11% of total filings were referred to mediation, the rate of referral of applicable filings is actually 23% (see Table 3.9).
The term ‘applicable filings’ has been used to refer to matter types that are more commonly referred to mediation notwithstanding that the Federal Court Act and the Rules do not exclude any matter type from potential referral.
Table 3.7 – Mediation referrals as a proportion of total filings by financial year
|2009 –10||2010 –11||2011 –12||2012 –13||2013 –14|
Table 3.8 shows the applicable filings as a proportion of the total filings in the Court by registry during the reporting period.
Table 3.8 – Total filings and suitable filings (excluding non-mediation CoAs, e.g. migration appeals) by Registry in 2013–14
Table 3.9 – Mediation referrals as a proportion of applicable filings, by Registry in 2013–14
Table 3.10 shows mediation referrals by matter type to both internal and external mediators. Consistent with previous years, referrals to internal mediation conducted by registrar mediators were made significantly more frequently than referrals to external mediators. Table 3.11 shows internal and external referrals to mediation as a percentage of applicable filings.
Table 3.10 – Internal and external mediation referrals by CoA in 2013–14
Table 3.11 – Internal and external mediation referrals as a proportion of applicable filings in 2013–14
MEDIATIONS HELD IN 2013–14
Table 3.12 shows the outcomes of mediations conducted during the reporting period by registrars of the Court by matter type. The percentage of matters mediated by a registrar of the Court that either settled in full or in part was sixty-seven per cent, an increase of six per cent on the previous reporting period. Table 3.13 shows the outcome of mediations held during the reporting period by registry. Table 3.14 shows mediations held as a proportion of applicable filings. The proportion of seventeen per cent for this reporting period is consistent with the previous reporting period.
Table 3.12 – Mediation Outcomes by CoA in 2013–14
|CoA||RESOLVED|| RESOLVED |
|NOT RESOLVED||TOTAL||PROPORTION RESOLVED/IN PART (%)|
Table 3.13 – Mediation outcomes by Registry in 2013–14
|Resolved in part||1||7||1||5||2||1||–||2||19|
| Proportion Resolved/ |
in part (%)
Table 3.14 – Mediations held as a proportion of applicable filings, by Registry in 2013–14
MANAGEMENT OF CASES AND DECIDING DISPUTES BY TRIBUNALS
The Court provides operational support to the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal. This support includes the provision of registry services to accept and process documents, collect fees, list matters for hearings and otherwise assist the management and determination of proceedings. The Court also provides the infrastructure for tribunal hearings including hearing rooms, furniture, equipment and transcript services.
A summary of the functions of each tribunal and the work undertaken by it during the reporting year is set out in Appendix 6 on page 156.
IMPROVING ACCESS TO THE COURT AND CONTRIBUTING TO THE AUSTRALIAN LEGAL SYSTEM
The following section reports on the Court’s work during the year to improve the operation and accessibility of the Court, including reforms to its practices and procedures, enhancements in the use of technology and improvements to the information about the Court and its work.
This section also reports on the Court’s work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including the participation of judges in bodies such as the Australian Law Reform Commission, the Australian Institute of Judicial Administration and in other law reform and educational activities.
The Court’s eServices strategy aims to utilise technology to maximise the efficient management of cases, by increasing online accessibility for the legal community and members of the public, as well as assisting judges in their task of deciding cases according to law quickly, inexpensively and as efficiently as possible.
The Court has been progressively implementing a series of electronic initiatives to make use of technological opportunities to improve our services to Court users. The primary objective of the Court’s eServices strategy is to create an environment where actions are commenced, case managed and heard by filing documents electronically. The result will be that the Court’s official record will be an electronic court file.
Paper documents may be relied upon during case management, trials or appeals. But these documents will emanate from an electronic file and they will not form part of the Court Record. Over time it is likely that the extent of paper documents will reduce, with people becoming accustomed to relying on the information in electronic form.
During the reporting period the Court completed development of the document management system which forms the basis of the electronic court file (ECF). Work on the ECF Project moved to the implementation phase with an emphasis on development of training materials (both for Court personnel and Court users).
Over a period of six weeks the Court offered an extensive training and education programme for Court users called ‘Working with the Court electronically’. The programme had two elements, hands-on training with the eLodgment system and information sessions about the changes to the Court’s eServices. Over 650 Court users nationally took up this opportunity to learn more about the Court’s electronic services with most of the sixty-five hands-on training sessions being booked out. In response to the success of this programme, additional sessions will be run through the rest of 2014.
A staged rollout of the ECF will take place in the second half of 2014 commencing in South Australia on 14 July. More information about this project can be found in Part 2 of this Report at page 12.
As noted above, while developing the ECF, the Court has continued to promote the use of its electronic filing application, eLodgment. eLodgment was significantly enhanced during the reporting year in response to feedback from Court users and in preparation for the ECF. The enhancements included:
- Increasing the size limit for documents from 10mb to 30mb.
- Reducing the ‘lock-out’ period for forgotten passwords from 30 minutes to 5 minutes.
- Development of information for users of eLodgment about the most effective ways to prepare their documents for electronic lodgment, including information about reducing the size of large documents without compromising quality.
In 2013–14 the number of active users of eLodgment increased by thirty-five per cent to 7412 and over 64 000 documents were electronically lodged. This equates to forty-eight per cent of all documents filed during the year in both the Federal Circuit Court and the Federal Court. Over fifty-six per cent of Federal Court documents are now filed electronically.
During the reporting year 765 matters were commenced in eCourtroom. The majority of these were applications for sub service heard by the Court’s registrars. These matters are ordinarily dealt with entirely in eCourtroom saving the parties time and cost in attending Court and the Court costs in setting up courtrooms. Most matters in eCourtroom are completed within two weeks of the eCourtroom commencing.
PRACTICE AND PROCEDURE REFORMS
The National Practice Committee is responsible for developing and refining the Court’s practice and procedure. During the reporting year the Committee dealt with a range of matters including:
- The Productivity Commission’s Inquiry into access to justice arrangements.
- Considering the 2013 Joint Costs Advisory Committee recommendation to increase the quantum of costs for work done and services provided by lawyers.
- Assistance available for self represented litigants.
- Differences in approach adopted by court users in exhibiting rather than annexing documents to affidavits.
- Lengthy genuine steps statements.
- Preparation of a guide for court users to the operation of the Court’s Individual Docket System.
- Class actions.
- Ongoing monitoring of the impact of increased filing, setting down and hearing fees, particularly following the introduction of structural and other changes in fees from 1 January 2013.
- Legislative changes to improve court efficiency.
The Committee also considered proposed legislative changes and reform in the areas of intellectual property, establishment of a framework of standard regulatory powers and civil penalties enforcement provisions, migration and the establishment of an independent statutory agency to investigate misconduct and corruption in Commonwealth departments.
Liaison with the Law Council of Australia
Members of the National Practice Committee met during the reporting year with the Law Council’s Federal Court Liaison Committee to discuss matters concerning the Court’s practice and procedure. These included:
- the electronic court file
- specialist panels and guide to the individual docket system
- impact of fee increases/changes in the Federal Court
- Case Management Handbook
- developments with arrangements for providing assistance to self represented litigants in the Court
- performance and funding review of the federal courts
- consistency in Federal Court practice.
ASSISTANCE FOR SELF REPRESENTED LITIGANTS
The Court delivers a wide range of services to self represented litigants. These services have been developed to meet the needs of self represented litigants for information and assistance concerning the Court’s practice and procedure.
During the reporting year the Government provided funding to Queensland Public Interest Law Clearing House (QPILCH), Justice Connect, JusticeNet SA and Legal Aid Western Australia to provide basic legal information and advice to self represented litigants in the Federal Court and Federal Circuit Court. The service began in Queensland in March 2014 and is expected to commence progressively in all other Federal Court registries, to be operating nationally by late 2014. While the service is independent of the courts, facilities are provided within court buildings to enable meetings to be held with clients.
Tables 3.15, 3.16 and 3.17 below provide some broad statistics about the number of self represented litigants appearing in the Court as applicants in a matter (respondents are not recorded). As the recording of self represented litigants is not a mandatory field in the Court’s case management system statistics shown in the Tables are indicative only. In the reporting year, 408 people who commenced proceedings in the Court were identified as self represented. The majority were appellants in migration appeals.
Table 3.15 – Actions commenced by Self Represented Litigants (SRLs) during 2013–14 by Registry
The 408 SRLs in 2013–14 were applicants in 406 proceedings, as a proceeding can have more than one applicant. The following table breaks down these proceedings by major CoA.
Table 3.16 – Proceedings commenced by SRLs in 2013–14 by CoA
|CoA||Total Actions||% of Total|
|Appeals and related actions||254||63%|
|Bills of Costs||–||–|
|Fair Work/Workplace Relations||10||2%|
Table 3.17 – Appeals commenced by SRLs in 2013–14 by type of appeal
|CoA||Total Actions||% of Total|
|Fair Work/Workplace Relations||7||3%|
The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person’s inability to secure the services of an interpreter. It has therefore put in place a system to provide professional interpreter services to people who need those services but cannot afford to pay for them. In general, the Court’s policy is to provide these services for litigants who are unrepresented and who do not have the financial means to purchase the services, and for litigants who are represented but are entitled to an exemption from payment of court fees, under the Federal Court and Federal Circuit Court Regulation (see below).
COURT FEES AND EXEMPTION
Under the Federal Court and Federal Circuit Court Regulation 2012 fees are charged for filing documents; setting a matter down for hearing; hearings and mediations; taxation of bills of costs; and for some other services in proceedings in the Court. The rate of the fee that is payable depends on whether the party liable to pay is a publicly listed company; a corporation or public authority; or a person, small business or not-for-profit association.
Some specific proceedings are exempt from all or some fees. These include:
- Human Rights applications (other than an initial filing fee of $55)
- some Fair Work applications (other than an initial filing fee of $67.20 [with effect from 1 July 2014])
- appeals from a single judge to a Full Court in Human Rights and some Fair Work applications
- an application by a person to set aside a subpoena
- an application for an extension of time
- a proceeding in relation to a case stated or a question reserved for the consideration or opinion of the Court
- a proceeding in relation to a criminal matter
- setting-down and hearing fees in proceedings under the Bankruptcy Act
- setting-down fees for an interlocutory application.
A person is entitled to apply for a general exemption from paying court fees in a proceeding if that person:
- has been granted Legal Aid
- has been granted assistance by a registered body to bring proceedings in the Federal Court under Part 11 of the Native Title Act or has been granted funding to perform some functions of a representative body under section 203FE of that Act
- is the holder of a health care card, a pensioner concession card, a Commonwealth seniors health card or another card certifying entitlement to Commonwealth health concessions
- is serving a sentence of imprisonment or is otherwise detained in a public institution
- is younger than 18 years
- is receiving youth allowance, Austudy or ABSTUDY benefits.
Such a person can also receive, without paying a fee, the first copy of any document in the court file or a copy required for the preparation of appeal papers.
A corporation which had been granted Legal Aid or funding under the Native Title Act had the same entitlements.
A person (but not a corporation) is exempt from paying a court fee that otherwise is payable if a registrar or an authorised officer is satisfied that payment of that fee at that time would cause the person financial hardship. In deciding this, the registrar or authorised officer must consider the person’s income, day-to-day living expenses, liabilities and assets. Even if an earlier fee has been exempted, eligibility for this exemption must be considered afresh on each occasion a fee is payable in any proceeding.
More comprehensive information about filing and other fees that are payable, how these are calculated (including definitions used, for example ‘not-for-profit association’, ‘public authority’, ‘publicly listed company’ and ‘small business’)
and the operation of the exemption from paying the fee is available on the Court’s website www.fedcourt.gov.au. Details of the fee exemptions during the reporting year are set out in Appendix 1 on page 129.
The Federal Court website is the main source of public information and a gateway to the Court’s suite of online services such as eLodgment, eCourtroom and the Commonwealth Courts Portal. It provides access to a range of information including court forms and fees, guides for court users, daily court listings and judgments. In recent years it has also been used to publish selected court documents in representative proceedings and cases of high public interest; these were previously only available to interested parties by visiting the registry in which the matter was filed.
There are two subscription services offered on the Court website: Practice News, which communicates changes to the Court’s practice and procedure and the Daily Court Lists, which provides details of hearings listed the next business day. There are currently 4644 subscribers to these services. RSS feeds (Rich Site Summary feeds) have also been implemented for judgments and news items.
A redesigned website was launched in 2012 and continues to generate positive feedback from the legal profession, the general public as well as other courts locally and internationally. The website generated close to 2.5 million hits during the reporting period.
REQUESTS FOR INFORMATION
In 2013–14 approximately 400 emails were received by the Court through the website’s email account: email@example.com. Frequent questions are received from students, researchers and members of the public who are interested in the role of the Court, its jurisdiction, practice and procedure and at times particular cases of interest. Staff ensure they respond to the queries in a comprehensive and timely fashion.
Some enquiries concern legal advice. Whilst court staff cannot provide legal advice, they endeavour to assist all enquirers by referring them to reliable sources of information on the internet or to community organisations such as legal aid agencies and libraries.
The number of queries received dropped by almost twenty per cent compared with the 2012–13 financial year. Anecdotal evidence suggests that the redesign of the website has led to a drop in general queries. The information being sought is easier to locate on the website and thus there is no longer any need to contact the Court directly.
The Court publishes a range of information on aspects of its work including: a guide for witnesses appearing in the Court; information on procedures in appeals, bankruptcy, native title and human rights cases; and information on the Court’s use of mediation. In addition, during the reporting year the Court developed comprehensive information about changes to the eLodgment system and the introduction of the electronic court file. This information is downloadable from the Court’s website, www.fedcourt.gov.au.
FREEDOM OF INFORMATION
Information Publication Scheme
Agencies subject to the Freedom of Information Act 1982 (FOI Act) are required to publish information to the public as part of the Information Publication Scheme (IPS). This requirement is in Part II of the FOI Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements. The Court’s plan is accessible from the Court’s website at http://www.fedcourt.gov.au/ips. The NNTT’s plan can be found at http://www.nntt.gov.au/News-and-Communications/Freedom-of-Information/Pages/Informationpublicationscheme.aspx.
The availability of some documents under the FOI Act will be affected by s 5 of that Act, which states that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature. Documents filed in Court proceedings are not of an administrative nature; however, they may be accessible by way of the Federal Court Rules.
ACCESS TO JUDGMENTS
When a decision of the Court is delivered, a copy is made available to the parties and published on the Federal Court and AustLII websites for access by the media and the public. Judgments of public interest are published within an hour of delivery and other judgments within a few days. The Court also provides copies of judgments to legal publishers and other subscribers.
INFORMATION FOR THE MEDIA AND TELEVISED JUDGMENTS
The Court’s Director Public Information responds to enquiries regarding cases from journalists throughout Australia and, on occasion, from overseas. These often relate to how to access files and judgments.
For matters of particularly high public interest the Court may establish an online file to enable easy access to publicly available documents. Just before the conclusion of the reporting year an online file was created for Essendon v Australian Sports Anti–Doping Authority (ASADA) and Hird v ASADA.
In the first fourteen days of the file’s existence (corresponding with the end of the reporting year) it had been accessed more than 4000 times. The Court also allowed ABC Television to feed a live televised broadcast of the first directions hearing for this matter which was shared by other major media outlets. This drew a very positive response.
During the reporting year the Director of Public Information oversaw the production of two DVDs: the first concerned the electronic court file and is available on the Court’s website. The second DVD is a training video about mediation which was prepared to assist the Indonesian judiciary as part of the Australian Indonesia Judicial Partnership.
The Court engages in a wide range of activities with the legal profession, including regular user group meetings. The aim of user groups is to provide a forum for Court representatives and the legal profession to discuss existing and emerging issues, provide feedback to the Court and act as a reference group. Seminars and workshops on issues of practice and procedure in particular areas of the Court’s jurisdiction are also regularly held.
In 2013–14 members of the Court were involved in:
- Organising the International Commercial
Law and Arbitration Conference. Sponsored by the Court and the Federal Litigation and Business Law Sections of the Law Council of Australia, the conference featured speakers from around Australia and internationally.
The keynote address International Commercial Dispute Resolution and the Place of Judicial Power was given by the Hon Robert French AC, Chief Justice of the High Court of Australia. The focus of the Conference was on international aspects of commercial law and arbitration, with particular reference to the Australasian/Asia/Pacific region.
- Presenting seminars which were viewed simultaneously via videoconference in each of the Court’s registries. Two seminars covering Commercial Law and Taxation were organised and hosted by judges in the Court’s registry in Victoria.
- Giving presentations and hands-on training to court users about working with the Court electronically.
The Court also engages in a range of strategies to enhance public understanding of its work, and the Court’s registries are involved in educational activities with schools and universities and, on occasion, with community organisations which have an interest in the Court’s work. The following highlights some of these activities during the year.
In 2013–14 judges and registrars in the New South Wales Registry hosted an admiralty user group meeting along with user groups focusing on general Federal Court practice and procedure. Senior registry staff participated in user group meetings hosted by the Federal Circuit Court on the migration jurisdiction and FCC practice and procedure. The Registry also held a number of seminars and lectures on constitutional law, practice and procedure, arbitration, and hosted law moots and bar reader courses. The District Registrar delivered an information session about working with the Court electronically and hands-on training on the Court’s eLodgment system was provided to court users. Information sessions were conducted for lawyers new to practice and presentations about mediation in the Federal Court were given to a range of organisations. Numerous high school work experience students and two students from the University of Wollongong were hosted by the Registry through the year. In December 2014 the Principal Registrar hosted a connections event for the Australian Government Leadership Network on The electronic court file – a quiet revolution.
The Court’s facilities in Sydney were made available for many events during the reporting year including: the Council of Australasian Tribunal’s annual Whitmore lecture Forewarned and Four-Armed – Administrative Law Values and the Fourth Arm of Government; the 2013 Australian Maritime and Transport Arbitration Commission (AMTAC) Annual Address The elusive Panacea of uniformity: Is It worth Pursuing?; the 2013 Tristan Jepson Memorial Foundation Annual Lecture Leading Change in the Legal Profession; the 12th Annual International Arbitration Lecture delivered by Chief Justice Allsop The authority of the arbitrator – its sources, limits and importance; the Third Mahla Pearlman Oration delivered by Adjunct Professor Rob Fowler; and a function to honour the late Professor Leslie Zines AO.
The Queensland Registry hosted the following events for the legal profession during the reporting period: the 2013 Richard Cooper Memorial Lecture, Indigenous sea rights – the Grotius heritage, presented by Ms Raelene Webb QC President of the NNTT and the launch of the Self Representation Service Queensland by the Commonwealth Attorney-General. In addition, an admiralty practitioners forum was held and consultations, information and training sessions were run about the Court’s eServices.
The Registry’s work with schools and universities continued through the year: six schools visited the Court for educational tours; work experience students were hosted and two university moot competitions were held at the Court.
On 23 December 2013 facilities in Queensland were provided to the Royal Commission into the Home Insulation Programme for its first public hearing.
The Victorian Registry hosts, on a quarterly basis, a Federal Court Users’ Committee meeting chaired by Justice Tracey. The National Commercial Law Seminar Series is a joint initiative of the Federal Court, Monash University and the Victorian Bar. Four seminars were held in 2013–14 including: ‘Current issues in the interpretation of Federal Legislation’; ‘Unconscionability and good faith in business transactions’; ‘Personal Property Securities Act: Beyond the Transitional Period’; and ‘Things every commercial lawyer should know about judicial review’.
On 22 October 2013, the Victoria Registry Class Action Users’ Group, together with the Commercial Bar Association, hosted a seminar given by Professor Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law on Class definition issues and a comparison of Australian developments to US developments in class action jurisprudence.
On 13 February 2014, the Victoria Registry held an information session for members of the profession to provide an overview and update on the Court’s electronic court file and a practical presentation on how to lodge documents electronically.
On 2 August 2013, a group of students undertaking architecture studies at the University of Melbourne visited the Victoria Registry.
On 16 September 2013 and 10 April 2014, the Victoria Registry hosted a group of practitioners undertaking the Bar Readers course. The Victorian Registry hosted a number of Moot Courts for the Melbourne, LaTrobe, Deakin, Monash and Victoria Universities. It also hosted Moot Court Competitions for the Victorian Bar Readers.
The Victorian Registry offered two internships as part of the Stepping into Law Programme and participated in the Indigenous Clerkship Programme run by the Victorian Bar. Three clerks participated in the programme with each clerk spending one week with each of the participating institutions: The Federal Court of Australia, The Supreme Court of Victoria and the Victorian Bar.
Several work experience students were hosted through the year and a two-week full-time professional placement provided to a library technician student from Swinburne University of Technology.
In 2013–14 the Western Australia Registry hosted four intellectual property seminars. A Deputy Registrar gave a presentation on the Court’s use of assisted dispute resolution to the Institute of Arbitrators and Mediators Australia. Law students from Curtin University were provided with a presentation about the Court followed by a talk on taxation law by Justice McKerracher.
The grand final of the Murdoch Student Law Society Junior Trial Advocacy Competition was held in Courtroom 1 in Perth.
Judges and staff in South Australia hosted a new legal practitioners’ information session and a presentation about working with the Court electronically. Three federal court liaison committee meetings were held during the year along with two bankruptcy user group meetings.
The District Registrar presented a course on bankruptcy for the South Australia Bar Readers programme.
In Tasmania the District Registrar participated in a court exercise for the University of Tasmania Centre for Legal Studies. Justice Kerr and the District Registrar hosted an information session on working with the Court electronically.
On 28 May 2014, in the Northern Territory, Justice Mansfield and District Registrar Bochner convened a biannual Native Title Planning Day involving the major native title stakeholders to map and plan progress of Native Title matters.
COMPLAINTS ABOUT THE COURT’S PROCESSES
During the reporting year, eleven complaints were made to the Court in relation to its procedures, rules, forms, timeliness or courtesy to users. This figure does not include complaints about the merits of a decision by a judge, which may only be dealt with by way of appeal.
Information about the Court’s feedback and complaints processes can be found at www.fedcourt.gov.au/feedback-and-complaints.
INVOLVEMENT IN LEGAL EDUCATION PROGRAMMES AND LEGAL REFORM ACTIVITIES
The Court is an active supporter of legal education programmes, both in Australia and overseas. During the reporting year the Chief Justice and many judges:
- presented papers, gave lectures and chaired sessions at judicial and other conferences, judicial administration meetings, continuing legal education courses and university law schools
- participated in Bar reading courses, Law Society meetings and other public meetings.
An outline of the judges’ work in this area is included in Appendix 8 on page 178.
NATIONAL STANDARD ON JUDICIAL EDUCATION
In accordance with the National Judicial College of Australia’s Report ‘Review of the National Standard for Professional Development for Australian Judicial Officers’, the following information is provided about participation by members of the Court in judicial professional development activities.
The national standard provides that each Judicial Officer should be able to spend at least five days each year on judicial professional development. Professional development has been defined to include participation in seminars, workshops, distance programmes, sessions at court and other conferences on judicial education topics as well as self-directed professional activities.
During 2013–14 the Court offered the following activities:
- A three-day criminal procedure workshop.
- Two education events were scheduled in August 2013 and March 2014 to coincide with the Court’s biannual judges’ meetings. Education sessions included a workshop on assisting self represented litigants in the courtroom; native title and corporations law; concurrent and expert evidence; and use of the electronic court file.
- Following the August 2013 Judges’ meeting in Sydney, Judges were offered the opportunity to attend the International and Commercial Law and Arbitration conference hosted by the Court.
In addition to the above, judges undertook other education activities through participation in seminars and conferences, details of which can be found in Appendix 8 on page 178. In the period 1 July 2013 to 30 June 2014 on average the Standard was met. Seven judges were appointed during the course of the year such that it was not practical for the Standard to be met within the reporting period for those judges.
WORK WITH INTERNATIONAL JURISDICTIONS
The International Programs Unit manages the Court’s international development and cooperation programmes which partner with judiciaries around the world, with a focus on neighbouring judiciaries in the Asia-Pacific region. The Court’s international engagement is based on the understanding that long-term links between the Court and the judicial systems in other countries are beneficial to the development of governance, access to justice mechanisms and the rule of law both in Australia and overseas. In 2013–14 the Court coordinated a number of international programmes, activities and visits.
MEMORANDUM OF UNDERSTANDING WITH THE SUPREME COURT OF INDONESIA
A five-year Memorandum of Understanding was first signed as a partnership between the Mahkamah Agung Republik Indonesia (Supreme Court of Indonesia) and the Federal Court in 2004. The longstanding relationship between the Courts has been extremely rewarding for those involved and has produced a number of tangible reforms and progress in many areas central to the Mahkamah Agung reform agenda.
During 2013, activities included a visiting delegation to the Victoria Registry in October to conduct a study of alternative dispute resolution processes in Australia, and, in particular, to acquire a better understanding of court-annexed alternative dispute resolution and its role within the Australian legal system. In December, Justice Murphy, Registrar Soden and District Registrar Lagos met with Mahkamah Agung representatives in Jakarta to discuss alternative dispute resolution, class actions and business process re-engineering.
On 24 June 2014 a new Memorandum of Understanding between the Courts was signed in Jakarta, as part of a five-day visit attended by Chief Justice Allsop, Registrar Soden and District Registrar Lagos. It was the tenth anniversary of
the signing of the original Memorandum between the Courts.
The new Memorandum anticipates support for institutional developments to increase access to justice and strengthen the rule of law. The areas on which the Courts will continue to focus and to strengthen are: class actions; court-annexed alternative dispute resolution; business process re-engineering; and change management.
MEMORANDUM OF UNDERSTANDING WITH THE SUPREME AND NATIONAL COURTS OF PAPUA NEW GUINEA (PNG)
Pursuant to the Memorandum of Understanding between the Court and the Supreme and National Courts of PNG signed in 2009, the Courts have continued to work closely this year, particularly in areas associated with case management.
In September 2013 judges and staff from the Supreme and National Courts visited the New South Wales and Principal Registries to participate in discussions and to observe the judicial, administrative and information technology processes associated with the management of cases. Registry staff responsible for the human resource and financial management processes used by the Supreme and National Courts accompanied the delegation.
In November District Registrar Wall visited PNG to review case management processes and provide recommendations for strengthening related systems, processes and local capacity. In April 2014 a technical audit of the case management and data systems was completed and a report prepared.
The Court was honoured to host Chief Justice Sir Salamo Injia in February and May 2014. During both visits discussions took place to confirm current and planned activities and how they will contribute to realising the goals of the Memorandum of Understanding.
The steps to be taken to implement the recommendations in District Registrar Wall’s report were also discussed. In June 2014 a delegation of judges and administrative staff visited the New South Wales and Principal Registries to build their knowledge and skills around implementing systems and processes to strengthen case management in line with the recommendations in the PNG Case Management Report.
MEMORANDUM OF UNDERSTANDING WITH THE SUPREME COURT OF VANUATU
A Memorandum of Understanding (MOU) on Judicial Cooperation with the Supreme Court of Vanuatu was signed at the end of 2012–13. This MOU establishes the foundation for ongoing cooperation between the two courts for the next five years. An Annex to the Memorandum set out the areas on which the Courts will collaborate, with a focus on case management.
During the reporting year, in accordance with the MOU, Deputy Registrar Mathieson led three exchanges with the Supreme Court in August, September and November 2013 to work with judges and staff to assess and strengthen case management processes and procedures. The Deputy Registrar was joined by Justice Buchanan during the November visit, to conduct workshops with members of Vanuatu’s judiciary and
legal profession to discuss a roadmap for procedural reform.
MEMORANDUM OF GUIDANCE WITH THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
On 28 March a Memorandum of Guidance with the Dubai International Financial Centre Courts (DIFC) was signed by Chief Justice Allsop and Chief Justice Michael Hwang SC of the DIFC in a ceremony held at the Court in Melbourne. The ceremony was also attended by Registrar Soden, former Federal Court Judge the Hon Roger Gyles AO QC of the DIFC and Mr Faisal Saif Salem Al Mazrouei, Third Secretary to the Ambassador for the United Arab Emirates. The Memorandum articulates the Courts’ shared intention to promote mutual understanding about each Court’s jurisdiction and judicial processes.
PACIFIC JUDICIAL DEVELOPMENT PROGRAM
Since mid-2010, the Court has managed Phase 2 of the Pacific Judicial Development Program funded by the New Zealand Ministry of Foreign Affairs and Trade. Currently mid-way through its 24-month extension which will end on 30 June 2015, the Program is designed to strengthen governance and the rule of law across fourteen Pacific countries by enhancing the professional competence of judicial and court officers along with the processes and systems that they use. The participating judiciaries are: Cook Islands, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu.
The Program delivers support through four thematic pillars: access to justice; governance; systems
and processes; and professional development. Training workshops, meetings, and technical advice/assistance provided this year has
aimed to strengthen judicial leadership along with the capacity of local administrative and managerial staff.
The Court has continued to actively engage with the region’s judicial leadership through regular meetings of the Chief Justices. In October 2013 Chief Justice Allsop and Registrar Soden hosted a Chief Justices’ Leadership Workshop at the Queensland Registry. The workshop was one of a series of regional governance and leadership workshops held in October, attended by judicial
and administrative officers.
In July, the 2012 Court Performance Trend Report was published which, for the first time, provides court performance data against key indicators, enabling improvements to be measured in significant areas such as case management, cost, accessibility and complaint handling. The Program has also assisted with the collection, collation and presentation of data for seven Annual Reports from courts that have not previously published performance data.
The Program launched and began putting seven toolkits into practice and piloted a further six toolkits. The toolkits aim to provide partner courts with the resources and guidance required to achieve judicial development goals locally with minimal external support. The new toolkits focus on delay reduction, enabling rights, project management, complaint handling, decision making and judicial orientation training. The launched toolkits are available on the Court’s website: http://www.fedcourt.gov.au/pjdp/pjdp-toolkits.
A series of other regional and national training activities have also been delivered including; judicial decision making, judicial orientation, training-trainers, domestic violence and juvenile justice. The Program’s small-grants fund has also supported eighteen activities in partner courts to respond to local priority development needs.
All of the Program’s activities are designed and delivered by senior experts, from within and beyond the Court. In addition to the aforementioned Chief Justices’ Leadership Workshop, judicial and senior administrative officers involved in this year’s activities from within the Court are:
- Justice Barker who co-facilitated the Regional Decision-Making workshops in February 2014 in Vanuatu.
- Deputy District Registrar Ng visited Palau in January 2014 to conduct repeat mediation training for the judiciary and legal profession and to conduct co-mediations with local lawyer-mediators to help build on experience.
- Manager, Policy and Planning, Ms Connolly, visited the Republic of the Marshall Islands in May 2014 to assist the High Court to implement and measure its performance against the International Framework for Court Excellence.
VISITORS TO THE COURT
In addition to the aforementioned visits, the Court facilitated a number of visits over the year from international delegations and individuals interested in learning about the role of the Court and its systems and processes. The Court hosted delegations from:
Bangladesh: In August 2013 Justice Bennett and Registrar Soden hosted a six-member delegation of the Supreme Court of Bangladesh headed by Chief Justice Hossain. The delegation observed and discussed the Court’s case management and administration systems.
Vietnam: The Victorian Registry hosted a five-member delegation from the Supreme People’s Court of Vietnam, headed by Deputy Chief Justice Bui Ngoc Ho in August 2013. The visit featured discussion about procedural laws, regulations and practices particularly related to workloads, appeals and financial management. In September 2013 a delegation from the Judicial Reform Steering Committee of Vietnam led by Her Excellency Ms Le Thi Thu Ba, Minister, Deputy Permanent President of the Reform Committee visited the Victorian Registry to discuss the Court’s jurisdiction, case management, structure and governance.
Cambodia: The Principal and New South Wales Registries hosted a delegation of fifteen judges and prosecutors from Cambodia in October 2013. The delegation attended Court, toured the Registry and discussed a variety of procedural elements related to both.
Kenya: Justice Wigney hosted a delegation of ten judicial officers from Kenya in May 2014. The delegation toured the Court and discussed the Australian legal system and the Court’s case management practices.
Hong Kong: Judicial officers from the Hong Kong judiciary were hosted by Justices Jacobson, Perram, Foster, Yates and Farrell in May 2014. The meeting with judges of the Federal Court was requested
by the Chief Judge of the High Court of Hong Kong to enable the Hong Kong delegation to learn
from Australia’s experience in the area of competition law.
United States of America: In June 2014, the New South Wales Registry hosted a group of law students from Santa Clara to discuss the division between state and federal jurisdiction.
India: Justice Bennett hosted a judge from the Supreme Court of India in June 2014 to discuss the Court’s jurisdiction and facilities.