Recent Developments and Impending Changes in Practice and Procedures in the Federal Court
2017 Bar Association of Queensland Employment and Industrial Relations Conference
1 Good morning everyone – it is great to be here. This morning my colleagues and I have been asked to talk about recent developments and impending changes in practice and procedures in each of our jurisdictions. It is my pleasure and privilege to talk to you for approximately 20 minutes on that topic by reference to the Federal Court of Australia.
2 Many of you practice in the Federal Court, and will know about the relatively recent developments introduced into Court practice and procedure over the past 12 months. In particular, we have introduced National Practice Areas (internally abbreviated as “NPAs”), including an Employment and Industrial Relations National Practice Area. Each of the National Practice Areas has its own revised Practice Note which must be read in conjunction with an overarching Central Practice Note applicable to all. In Brisbane, the Judges hearing cases in this area of practice are Justice Logan, Justice Reeves, Justice Rangiah and myself. Justice Rangiah and I are the Queensland coordinating Judges in this Practice Area in the Federal Court.
3 In the limited time I have, I would like to highlight some of the key points in the Central Practice Note and the Employment Practice Note, and more general issues relevant to this area of practice in the Federal Court.
4 First, the introduction of the Practice Areas does not mean that the Court has abandoned the docket system or the power of the Judge in his or her case to determine the most efficient manner of conduct of a particular case. The docket Judge always has the power to dispense with particular aspects of the Practice Notes, although as a general rule we all need to comply with them because otherwise, what is the point of having them? Further, the Practice Notes have been put together with much thought and consultation, with a view to improving procedure in the Court. If they have that effect, we should comply with them; if practitioners have problems with the Practice Notes; the Court wants to know without delay. I will come back to this issue later.
5 Second, cases are now allocated to Judges in the relevant Practice Area by the National Operations Registrar. Generally, practising in Brisbane, you will get a Brisbane Judge, but not necessarily. Once allocated, the docket Judge has responsibility for case management and trial, as usual in this Court.
6 Third, we have now formalised a national duty Judge system. I know for the remainder of this year when I am the duty Judge for hearing urgent applications in this area of practice in Queensland. For instance, I am still the general duty Judge for what remains of this week, whereas the general duty Judge commencing on Monday morning for the next week ahead is Justice Rangiah. The current duty Judge listings for each State are available on the Court’s website at http://www.fedcourt.gov.au/contact/urgent-duty-contact.
7 Fourth, our Electronic Court File is going strong. As you would be familiar, all Court documents are now lodged electronically through eLodgment, and the sealed documents and orders can be downloaded from the Commonwealth Courts Portal. This allows Judges to access filed materials from their computers at any time and in any place. Don’t be surprised if we still use paper in Court, however. It can be difficult to abandon one’s habits of a lifetime and completely forego paper. We are getting there, albeit gradually. If you want to be electronically creative, do make your suggestions known to the Judge as the Court welcomes the efficient use of technology during proceedings.
8 Fifth, and perhaps most welcomed by our practitioners, the purpose of the NPA Practice Notes is to eliminate local registry idiosyncrasies in practice. As one of the Employment and Industrial Relations Registry Coordinating Judges for Queensland, I would be interested, particularly from those who practice across state borders, to hear if you are continuing to see any local practices which are causing you problems. I invite you to discuss any issues with me or my Associate, Mitchell Hughes (who is also here today) during the next break, or alternatively contact my Chambers at your soonest convenience.
9 Sixth, and with sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) in mind, we are trying to encourage greater efficiency in both the pre-trial period and during trials. So, for example:
(1) It is scarcely novel for me to say that, until closer to the hearing date, the lawyers will know the case much better than the Judge does. To that extent, it is very useful if, in the course of case management, the lawyers are proactive in talking to each other about possible directions, and providing them in draft form to the Judge for his or her consideration (see the Court’s ‘Case Management Imperatives’ in the Central Practice Note at paragraph 8.5 on this point). If both sides consent to directions, the Judge may be prepared to make orders from Chambers without the need for appearances (and the associated costs to clients and time spent by practitioners).
(2) We continue to encourage mediation between the parties, and – at the very least – engagement between the lawyers throughout the pre-trial process (see the Central Practice Note at paragraphs 8.4 and 8.7). I know you are all very busy; however, I can tell you that it is extremely frustrating from the Judge’s perspective to find out that the first time the lawyers have actually engaged with each other is on the morning of the trial. When this occurs in my cases, the first question that always springs to my mind is: what opportunities to either simplify or resolve this litigation have been lost?
Mediation, especially by Registrars of the Court, is a relatively inexpensive but very effective way of narrowing the issues in a proceeding. However – I promise you that if the parties are dead against going to mediation I won’t order it provided the lawyers talk to each other with a view to progress the litigation. I recognise that sometimes the positions of the parties are so far apart that sending them to mediation will be a waste of time and money. But let me say that in this area of practice, I find that such situations are the exception rather than the norm.
So, for example, in two recent cases I made orders referring the matters to mediation before a Registrar of the Court. When drafting consent orders, the parties may specify a preferred date by which the mediation should occur to assist with the progress of the litigation, or more simply, elect to have the listing advised by the Registrar. It is customary to list matters for a further case management hearing should the matters not settle.
(3) I also find it very useful to order the parties to file a joint statement of facts and issues for decision. It is usually one of the last things I require the parties to do before trial. I admit to despairing when the lawyers say solemnly that they can’t agree on anything in the case. How can that be? Either someone is way off the beam in their understanding of the law and facts in dispute, or someone is being contrary. Either way is counterproductive for your own case, can unnecessarily prolong the trial and, frankly, can make the Judge annoyed with you (which is never good).
I currently have before me an Employment and Industrial Relations case set down for a five-day hearing next month. Earlier this month, I ordered the parties to file a joint statement of facts and issues for decision to assist with the conduct of the trial. I am expecting that this will sharpen the issues before me, and possibly shorten the length of the trial (for the benefit of all involved).
(4) An important aspect of the Employment and Industrial Relations Practice Note can be found in paragraph 9.1 – namely that the default position in relation to the giving of evidence in employment law trials is that it be oral evidence, not affidavit.
I admit that I am truly in two minds about this, and indeed we have had many discussions among ourselves about it. Some of my colleagues laud the advantages of having the witness give evidence in chief in the witness box in his or her own words, unsullied by the polish (or rewriting) of the lawyers. They say it can only shorten and focus evidence in proceedings.
Yes, I see the advantages of oral evidence in chief. But I also see the problems of a nervous and not terribly articulate witness, the occasional inexpert Counsel, the real prospect that in fact we don’t get the best from the witness in such circumstances, and – selfishly from my perspective – the dread of trawling through lengthy transcripts to try and make sense of slightly garbled evidence of witnesses.
A particular benefit of evidence in chief being by way of affidavit is that objections to evidence can be addressed (and sometimes resolved) before trial. Indeed, my own preference is still to order evidence in chief to be by affidavit and to require the parties to endeavour to resolve objections to evidence before the hearing.
I would be interested to hear your views on the giving of evidence in employment cases in the Federal Court (and will not hold it against you if you don't agree with me).
(5) A final point from me in relation to efficiency – those of you who have appeared before me will know that it is my practice to, if possible, adjourn the trial for a brief period after the evidence is completed, to allow the lawyers to have regard to the transcript for the purposes of preparing closing submissions. By “a brief period” I mean a few days to a week or so, depending on my availability and the commitments of the lawyers involved. This is a luxury for all parties, I admit, and is not always possible (particularly in cases where a decision is urgent). However I find it effective, and consider that it allows the lawyers the opportunity to put their best cases forward at the end of the trial. This practice is not specifically referred to in the Practice Note, and I would be interested in any feedback from the practitioner’s perspective (for example, if you think it unduly prolongs the trial and that this outweighs any benefits, please let me know).
10 All new Practice Notes, including the Central Practice Note(CPN-1) and the Employment and Industrial Relations Practice Note (E&IR-1),were released on 25 October 2016. The new Practice Notes put the onus on you, as practitioners, to take charge of the litigation. Generally, they are still bedding down and will remain open for consultation until October 2017. Any amendments will be made during or following that 12-month review period. After October 2017 however we will expect the profession to be across the Practice Notes and to comply with them.
11 During the next few months we would be very interested to receive feedback from the profession on these Practice Notes, and indeed any other aspect of practice and procedure in the Federal Court. You can provide your feedback addressed to the Deputy National Operations Registrar via email to firstname.lastname@example.org.You should include a brief summary of the key issues you wish to bring to the Court’s attention and, of course, your relevant contact details.
12 Further, we are also interested in ongoing feedback – I’ve asked both the Bar Association and the Queensland Law Society to nominate a person to join a national Employment and Industrial Relations user group which will meet a few times each year.
13 In closing, I would like to remind you of the helpful websites dedicated to each of the Practice Areas, and in particular that for Employment and Industrial Relations at http://www.fedcourt.gov.au/law-and-practice/national-practice-areas/employment. I n this section of the Court’s website you will find further information about what types of matters are covered by the Practice Area, as well as links to the relevant Practice Notes, court forms, rules and legislation. You can view the list of the National Coordinating Judges and review the procedures for commencing urgent applications. Additionally, you can browse the latest employment judgments and subscribe to the Court’s new email subscription service to receive daily notifications of judgments published within your own areas of interest.
14 I look forward to any questions you may have later in this session or afterwards during the break. My Associate, Mitchell Hughes, who has helped me put this presentation together, is also attending this conference, so please feel free to speak with him as well about any issues you would like to raise with the Court concerning this area of practice and he will pass on your feedback to me.