Practice Note CM 19
This Practice Note is REVOKED
On 25 October 2016, as part of the National Court Framework reforms, all existing practice documents were revoked and new national practice notes were issued, effective immediately.
To assist Court users to understand these practice note changes, the Court has prepared:
Appointment of a judge as an examiner to take evidence overseas
1.1 This Practice Note applies to applications for an order to appoint a judge to take evidence out of Australia and should be read in conjunction with Division 29.2 of the Federal Court Rules 2011.
2. Orders and Evidence
2.1 In preparing the application, the draft of the order to be lodged with the application (see subrule 29.11(2)) and the affidavit or other evidence relied on in support, practitioners can expect that:
(a) if an order is made it will provide that:
(i) a judge of the Court is to be appointed an examiner under the Rules;
(ii) witnesses (usually named) be examined before a judge of the Court in a specified place out of Australia; and
(iii) the order will be expressly conditional upon the payment into Court of an amount, to be subsequently determined, as provision for expenses of the examiner and staff in relation to the examination;
(b) the parties (if appropriate) will arrange suitable accommodation for the conduct of each examination and for transcription facilities;
(c) the costs and expenses of, and incidental to, the examinations will be borne in the first instance equally by the parties to the proceedings and, subject to any order of the trial judge, be treated as part of the general costs of the proceeding; and
(d) evidence is to be adduced of whether or not each witness proposed to be examined is an Australian citizen and whether or not each such witness to give evidence voluntarily.
3. Approval to Travel
3.1 Under Government policy, all official overseas travel by judges of the Court must be approved by the Chief Justice. The hearing of any application should be timed to allow the judge hearing it to consult with the Chief Justice and ascertain whether, should an order to appoint a judge to take evidence out of Australia be made in the proceeding, approval to travel will be given.
4.1 Following the making of any order appointing a judge to take evidence out of Australia, the following letters are sent by the Court. Further letters may be necessary to confirm dates and other arrangements.
Counterpart in overseas jurisdiction
To obtain permission for the judicial officer to examine witnesses in that jurisdiction
To comply with Government policy requiring notification, at least three weeks in advance, of any proposed official overseas travel by federal judges
District Registrar of relevant District Registry
Department of Foreign Affairs and Trade
To ensure that the relevant government authorities are informed and all approvals are sought, including approval for the examiner to administer an oath or affirmation.
District Registrar of relevant District Registrar
Relevant court administrator in overseas jurisdiction
To obtain courtroom or chamber accommodation, if required.
5. Calculation of Travel Expenses
5.1 Generally only one member of the judge’s staff will travel with the judge for an examination out of Australia.
5.2 Travel expenses of a judge are determined according to the determination in force from time to time of the Remuneration Tribunal under the Remuneration Tribunal Act 1973. Further information is available on the Remuneration Tribunal website at (http://www.remtribunal.gov.au).
5.3 Travel expenses for Court staff are determined by the Registrar of the Court or delegate. This normally includes accommodation at a standard reasonably equivalent to that provided to court staff in Australia and meal and incidental allowances at the rates determined annually by the Australian Taxation Office in its taxation ruling dealing with reasonable travelling allowance amounts. Further information is available from the District Registrar of the relevant District Registry.
6. Travel Proposal and Payment into Court
6.1 As soon as possible after any order is made for the appointment of a judge to take evidence out of Australia, the parties should prepare and lodge with the District Registrar of the relevant District Registry a travel proposal for the judge and staff member and a projection of costs including:
(a) proposed dates, route, flights, class, carrier and ticketing (fully flexible return tickets must be provided) for travel;
(b) proposed arrangements for ground travel;
(c) three options (if possible) for hotel accommodation;
(d) daily allowance for meals and incidentals; and
(e) any other anticipated expenses.
6.2 The parties will also provide to the District Registrar details of what is proposed for accommodation for the conduct of each examination and for transcript.
7 Payment into Court
7.1 On receiving the proposals and the projection of cost, the District Registrar will liaise with the judge who is to conduct the examination to identify whether the proposal is satisfactory and consider whether the cost projection made is sufficient to provide for the likely expenses of the examination. The District Registrar will, if necessary, liaise with the parties about any possible modifications. If required the District Registrar may seek directions from a judge. Once the amount for the provision for the Court’s expenses of the examination is determined and before the commencement of the examination, the parties will pay that amount in equal shares into Court.
8. Reconciling Expenses
8.1 As soon as possible after the examination, the District Registrar will reconcile and account to the parties for the costs actually incurred by the Court of and incidental to the examination. If the amount paid as a provision for those expenses exceeds those costs, the excess will be refunded to the parties in equal shares. If there is a shortfall in the amount paid as a provision for those expenses against those costs, the parties will pay the amount of the shortfall into Court in equal shares within 7 days of receiving written notification.