Practice Information Note APP 1: Case Management of Full Court and Appellate Matters

J L B Allsop, Chief Justice 17 November 2020

1. Introduction

1.1 The purpose of this Practice Information Note is to acquaint parties and the profession with the Court's practice and procedure for the case management of its Full Court and appellate workload so that they can better prepare and assist the Court.

1.2 This Practice Information Note deals with:

National Appeals Coordinating Judges
Initial Triage of Full Court and Appellate Matters
Requests for Expedition and Urgent Applications
Challenging a Previous Full Court Decision
When the Court Requires Early Submissions
Consultation
Case Management Referrals
Status Checks and Full Court Listings.

1.3 Any reference in this Practice Information Note to an "appellant" includes an "applicant".

2. Scope

2.1 This Practice Information Note applies to all parties, including parties not represented by a lawyer in relation to:

(a) appeals and applications in the Court's appellate jurisdiction;

(b) any original jurisdiction matters seeking relief in relation to a Tribunal decision, where the decision was given by a Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President or a Judge; and

(c) any original jurisdiction matters seeking relief in relation to a decision of the Full Bench of the Fair Work Commission,

but does not apply to any matters brought under the Migration Act 1958 (Cth) or otherwise relating to migration.

3. National Appeals Coordinating Judges

3.1 The Chief Justice appoints National Appeals Coordinating Judges to assist the Chief Justice in the case management of the Court's Full Court and appellate workload.

3.2 Subject to the discretion of the Chief Justice having regard to the Court's Full Court and appellate workload from time to time, there are four National Appeals Coordinating Judges appointed at any one time. The appointments are not permanent and are periodically reviewed by the Chief Justice.

3.3 The National Appeals Coordinating Judges ordinarily work in pairs, whereby each year is divided into two periods of six months, and a pair of National Appeals Coordinating Judges are in charge of the initial triage of Full Court and appellate matters during their rostered six month period.

4. Initial Triage of Full Court and Appellate Matters

4.1 Upon filing, matters within the scope of this practice information note are placed in the "Full Court and appellate" docket for initial triage.

4.2 The time from filing to initial triage varies on a case by case basis, but ordinarily the initial triage process takes place approximately a month after filing so as to allow time for any interlocutory applications, objections to competency, notices of cross-appeal, notices of contention, etc. to be filed.

4.3 The initial triage process usually takes place wholly on the papers and the Court will not ordinarily contact the parties prior to or during the process.

4.4 During the initial triage process the matter will be reviewed by a National Appeals Coordinating Judge with the assistance of a registrar with a view to considering how the matter can be case managed to finalisation as quickly, inexpensively and efficiently as possible in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).

4.5 During the initial triage process, the National Appeals Coordinating Judge will consider such matters as:

(a) what originating documents have been filed;

(b) whether there have been any interlocutory applications;

(d) whether there are any other matters before the Court, or in other courts, that may be relevant to how the matter should be case managed;

(e) whether the matter must be heard by a Full Court, and, if not, whether a Full Court hearing may in any event be appropriate;

(f) whether further consultation as to the appropriate constitution of the bench is required or appropriate, for example, pursuant to s 44(3)(b)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth);

(g) whether any party seeks to challenge any Full Court authority, such that it may be appropriate for the Court to consider constituting a Full Court of five judges;

(h) whether the matter is suitable for case management by a registrar;

(i) any other issues that may be of relevance to case management, including considerations relating to the Court's workload, availability of facilities and Judges, etc.

4.6 Following the initial triage process, the matter may remain in the “Full Court and appellate” docket for case management by a registrar, or may be allocated to the docket of a Judge, either substantively (if able to be dealt with by a single judge) or for case management.

5. Requests for Expedition and Urgent Applications

5.1 As the initial triage process takes place on the papers and is usually conducted approximately a month after filing, it is important for parties to draw the Court's attention to any requests for expedition and urgent applications.

5.2 Any urgent interlocutory applications, such as stay applications, that require the Court’s consideration within approximately one week of filing should be brought promptly to the attention of the duty judge in accordance with the Court's guidance on urgent (Duty) matters.

5.3 Any interlocutory applications that may not be sufficiently urgent for the duty system, but still require consideration within a month of filing should be brought promptly to the attention of the National Operations Registrar team at NORTeam@fedcourt.gov.au ("NOR team") or the local registry so that an early initial triage process may be initiated, if appropriate.

5.4 Any request for expedition should also be communicated promptly to the NOR team or to local registry. A request for expedition should make plain when the parties expect to be ready for hearing. To the extent possible, the views of all other parties in relation to the expedition request should be sought and communicated to the Court. While it is not always necessary to file a formal interlocutory application seeking expedition and affidavit material in support, any expedition request should clearly explain the reason(s) for making it.

5.5 It is the Court's policy that all requests for expedition are considered by the Chief Justice in consultation with the National Appeals Coordinating Judges. The Chief Justice and the National Appeals Coordinating Judges may also seek the views of the Case Management Judge as to whether expedition is appropriate.

6. Challenging a Previous Full Court Decision

6.1 A party intending to challenge the correctness of a previous Full Court decision should write to the NOR team or to local registry at the time of filing, or as soon as is reasonably practicable after filing:

(a) identifying the previous Full Court decision that is, or that may be, the subject of a challenge; and

(b) briefly explaining the reason(s) why a Full Court should be convinced or persuaded of an error in the previous Full Court decision which would be perpetuated if that decision were followed.

6.2 In matters where a party communicates its intention to challenge the correctness of a previous Full Court decision in accordance with paragraph 6.1 above:

(a) the Court may require early submissions;

(b) a National Appeals Coordinating Judge will consider what, if any, recommendation should be made to the Chief Justice about the manner in which the Court may be constituted in accordance with s 14 of the Federal Court of Australia Act 1976 (Cth); and

7. When the Court Requires Early Submissions

7.1 In some matters, to consider how the matter can be case managed in accordance with the overarching purpose, it may assist the National Appeals Coordinating Judge to read the parties' outlines of submissions.

7.2 If a National Appeals Coordinating Judge requests this during the initial triage process, a registrar will contact the parties about the early filing of submissions and timetabling orders will be made accordingly.

7.3 Outlines of submissions should be prepared in accordance with the Court rules and Practice Note APP 2. Where submissions are required to be filed early, it is not expected that any further submissions will be filed before the hearing.

8. Consultation

8.1 The initial triage process may include any consultation that is required by law or that the National Appeals Coordinating Judge considers to be appropriate.

8.2 Consultation with the President of the Administrative Appeals Tribunal will take place in relation to any appeals from a decision of the Administrative Appeals Tribunal given by a Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President: see s 44(3)(b)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

8.3 It is the Court's practice to consult with the President of the Fair Work Commission in relation to the constitution of the Court in any original jurisdiction matters seeking relief in relation to a decision of the Full Bench of the Fair Work Commission.

8.4 It is also the Court's practice for the Chief Justice to make a determination pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) in relation to appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 2). The Chief Justice will make the determination on the recommendation of the National Appeals Coordinating Judges. National Appeals Coordinating Judges may seek the views of the Case Management Judge as to whether an appeal is more appropriately heard by a single judge or by a Full Court.

8.5 There are other circumstances when the National Appeals Coordinating Judge may seek the views of the Case Management Judge, for example, where the Chief Justice is considering constituting a five member Full Court.

9. Case Management Referrals

9.1 Following the initial triage process, a matter may be:

(a) allocated to a judge's docket, such as when it is determined that an appeal from the Administrative Appeals Tribunal may appropriately be heard and determined by a single judge;

(b) allocated to a judge's case management docket, for example when the parties have filed an interlocutory application which is required to be heard and determined prior to the final hearing; or

(c) referred to a registrar for case management, for example where the parties are represented and no case management issues that require the attention of a judge have been flagged.

9.2 A Case Management Judge may be asked by the National Appeals Coordinating Judge to undertake tasks such as the following:

(a) consider whether it may be appropriate for certain applications or objections to competency to be heard and determined immediately prior to, or concurrently with, the hearing of any appeal;

(b) hear and determine certain applications or objections to competency, if that course is considered to be appropriate;

(c) make recommendations to the National Appeals Coordinating Judge about matters such as expedition, adjournment and appropriate constitution of the bench;

(d) consider the grounds of appeal, for example, where the appellant is a self-represented litigant and the grounds of appeal are extensive;

(e) make timetabling orders for the case management of the matter in accordance with the overarching purpose;

(f) ascertain various information, for example, the estimated duration of the hearing; and

(g) deal with any other case management issues that may arise.

9.3 Where it is determined by the Chief Justice that a matter which has previously been referred to a Case Management Judge may be appropriately heard and determined by a single judge, it is likely that the Chief Justice will substantively allocate the matter to the docket of the Case Management Judge for hearing.

10. Status Checks and Full Court Listings

10.1 During each of the Court's Full Court and appellate sitting periods, a registrar reviews all open Full Court and appellate matters in the Court with a view to determining which matters may be appropriate for inclusion in the list of matters to be heard by a Full Court during the immediately following Full Court and appellate sitting period.

10.2 Where the registrar considers that a particular matter may be appropriate for inclusion in the list of matters to be heard by a Full Court during the immediately following Full Court and appellate sitting period, the registrar may send the parties a status check email, making enquiries in relation to various case management issues and availability. A status check email will not be required in matters where the parties have already addressed all relevant case management issues and where availability has already been provided.

10.3 Status checks may also be conducted by a registrar outside of the Full Court and appellate sitting periods for Full Court matters requiring expedition and for those Full Court matters that are proposed to be heard outside of the Full Court and appellate sitting periods by way of a special fixture.

10.4 Replies received in relation to status check emails are compiled by a registrar together with other relevant information relating to party availability and case management. This information is then provided to the National Appeals Coordinating Judges and the Chief Justice for their consideration.

10.5 All decisions in relation to listing matters before a Full Court, whether within the Full Court and appellate sitting periods or by special fixture, are made by the Chief Justice, in consultation with the National Appeals Coordinating Judges.

J L B ALLSOP
Chief Justice
17 November 2020

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