Justice Lander Presents the Federal Court Rules

Ladies and gentlemen, thank you very much for coming tonight.  My name is Bruce Lander.  I’m a judge of the Court and the convener of the Rules Revision Committee which is a committee which has been charged with the responsibility of redrawing the Federal Court Rules.  The project has been ongoing for a few years, and the composition of the committee has changed from time to time.  There has been a representative judge from each of the states on the committee and the representatives from Victoria have been Justice Heerey and after his retirement, Justice Jessup. 

On 1 August 2011, the Court will repeal its existing Rules and replace those Rules with what we consider is a modern set of rules more appropriate for 2011 than our current Rules.  The Court is anxious to ensure that the profession is adequately briefed and educated in relation to the changes, and for that reason, the Court is holding sessions of this kind throughout Australia to assist the profession to understand the changes which have been made, and the changes which might impact upon the profession. 

As you will know, the current Rules were adopted by the Court in 1977, and are largely based on the New South Wales Supreme Court Rules which applied at that time.  The Rules were probably not appropriate for a Court which exercises statutory jurisdiction.  They have been drawn for a Court exercising common law jurisdiction.  They have, however, been amended from time to time to try to make them more suitable from the Court’s point of view, but the end result is that the Rules are now somewhat confusing in their layout and in the languages being used.  There is, for example, differences in language in relation to the same concepts, for example, sometime a proceeding is called an action, sometime it’s called a proceeding and sometimes it’s called proceedings.  The rules which we intend to introduce are based on two fundamental premises: the first is the overarching purpose of civil practice and procedure in the Court; the second is the integrity and the maintenance of the docket system. 

Those of you that practice in the Court will recall that on 1 January 2010, the Federal Court Act was amended to adopt an overarching purpose for civil practice and procedure.  That purpose is defined in section 37M of the Act to be the facilitation of the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.  That overarching purpose includes the following statutory objectives which are identified in section 37M.  Section 37M(4) provides that the Rules of Court made under the Federal Court Act are civil practice and procedure provisions, and section 37M(3) provides that any power conferred or duty imposed by the Rules of Court, including the power to make rules, must be exercised in a way that best promotes the overarching purpose.  Because of those provisions, the Court has the responsibility to exercise its rulemaking power so as to achieve the overarching purpose and to provide rules that will facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.  Not only, of course, does the Court have that responsibility, but section 37M imposes a similar responsibility upon the parties, and section 37N also imposes a similar responsibility upon the parties’ legal advisors. 

The second premise, as I’ve said, is the integrity of the docket system, which the judges have resolved, will continue to be the way in which proceedings are to be managed in this Court.  As you know, all proceedings, which are designed to go to trial before a judge of the Court, are assigned to a judge’s docket, and that judge has the responsibility of managing the proceeding from its start to trial, and then, of course, of conducting the trial. 

There are some assumptions in the docket system.  The first is that the Court is better able to manage litigation than if the litigation were left to the parties to manage.  The second is that the individual judge who manages the docket system is educated during the continuance of the interlocutory processes in relation to the issues which may need to be addressed at trial, and therefore, is well educated in advance of the trial of the issues which need to be determined.  An unstated assumption in the 1 August Rules is that in most cases involving claims for damages and money sums, the proceedings settle: 95 per cent of cases which are claims for damages for money sums, settle.  The Court’s procedure, therefore, must recognise that most of the cases which are to be managed in accordance with the provisions which I’ve mentioned will settle before trial. 

The 1 August Rules involve both stylistic and substantive changes.  Stylistic changes are not unimportant.  Firstly, the Rules have been written in plain English.  They have also been written in gender neutral language.  The Rules have used the active voice rather than the passive voice wherever possible, and the Rules have tried to remove all of the archaic terms that presently are stated in the current Rules.  A further stylistic matter is the removal from the Rules of administrative directions.  Our present Rules contain a number of rules which are administrative in nature and are directed to the registrars as to the way in which they will discharge administrative functions.  Those rules have been removed.  The current Rules identify the powers which may be exercised by the Court and the matters which the Court might rely upon for the exercise of those powers.  The 1 August Rules have been written in a different style.  The Rules now empower the parties to make applications to obtain orders so that the parties are educated as to what they need to do to obtain the order which they seek.  They are told the form which they must use, the documents which must accompany the forms, and the processes which must be carried through to obtain the orders which they seek.  An example of how the Rules are now written is in rule 8.01 which is a rule which deals with starting proceedings and it shows:

A person who wants to start a proceeding in the Court’s original jurisdiction must file an originating application in accordance with Form 15.

I’ll come back to this rule, but that shows the form in which these Rules are written.  It educates the party that if a party wants to start a proceeding, they issue an originating application that accords with form 15.  These Rules have made a liberal use of forms.  In each case in which a party is told what application needs to be made for a particular order to be obtained, the party is directed to a form.  The forms are cross-referenced to the Rules and the Rules are cross-referenced to the forms. 

The actor under the Rules is no longer the Court, but the actor is the person who wants the order.  You will notice, also, in terms of stylistic changes, that there is no reference in the Rules to words such as “unless the Court otherwise orders” or words to the effect that the Court may act on its own initiative in any particular rule.  That is because of the way in which the Rules are constructed, and in particular, division 1.3 of Chapter 1 which I will now refer.  Division 1.3 sets out the general powers of the Court, the most important of which are identified in the slide which is before you at the moment.  First, the Court has the power to dispense with compliance with the Rules.  It has the power to make orders inconsistent with the Rules, and it has the ongoing power to make orders on its own initiative.  Other matters which the Court has the power to do is to take into account the complexity of the matter before the Court and the overriding duty of the Court is to make an order which is appropriate in the interest of justice.  The general powers, of course, are designed, as I’ve said earlier, to achieve the overarching purpose in the Federal Court Act. 

There has been some criticism of the suggestion that the powers given in division 1.3 are too wide.  One body suggested that the power to dispense with compliance with the Rules is too wide a power to give the Court in every case, but I think that’s not so, for two reasons: first, it’s a power that currently exists in the current Rules, and secondly, it’s a power given to the Court by section 37P(3) of the Federal Court Act. 

Now, the 1 August Rules are set out in a logical sequence to follow the course of a proceeding, and they are divided into six separate chapters.  Those various chapters are identified in the slide before you at the moment.  The introductory provisions refer to the general powers of the Court, the functions of the registrars and the registry, the way in which documents are filed and the like, and rules relating to proceedings generally.  Chapter 2 deals with the starting of proceedings, interlocutory proceedings and interlocutory processes.  Chapter 3 deals with the original jurisdiction of the Court insofar as it applies to special Acts.  You will recall that in our current Rules, order 54 and thereabouts, there are a number of specific rules relating to specific Acts; those rules are being repeated in the 1 August Rules.  Chapter 4 deals with the appellate jurisdiction of the Court, Chapter 5 with judgments, and Chapter 6 with, essentially, contempt. 

Each chapter is divided into parts.  The parts are the broad topic headings within each chapter, and each part is divided into divisions, and the divisions are subtopics of the parts, and the divisions include the various rules. 

The Court forms are no longer part of the Rules, but are now to be approved by the Chief Justice and will be, of course, found on the Court’s website and will accompany of course, all of the Rules when they are printed by the publishers. The forms are, for the reasons which I’ve mentioned, important in the structure of the 1 August Rules.  In preparing the Court forms, the primary focus was to develop new forms that would be user-friendly for everyone involved, but at the same time, ensuring that the forms were functional and were true to the language of the Rules which inform the forms.  The forms, like the Rules, have adopted the use of plain language and plain language principles, and they are, we think, logical in their layout, as are the Rules.

Can I now deal with the Rules in some detail.  I’m not addressing, of course, all the Rules; I’ll address those Rules which will change our practices and procedures and those Rules which involve some sort of substantive changes. 

Rule 1.02 addresses the transitional arrangements.  There’s nothing remarkable about that rule.  Any matter which commences after 1 August will be governed by the 1 August Rules.  Any proceeding which is current will be dealt with under the 1 August Rules unless, as the rule shows — 1.04(3) — the Court otherwise directs that the current Rules apply.  There are special transitional provisions relating to the trans-Tasman provisions, but we need not be concerned with those tonight.  It’s important to note, of course, that the 1 August Rules do not replace the Rules which are being made under the Bankruptcy Act, the Corporations Act or the Admiralty Rules.  Those Rules will continue in their same form except for the necessary consequential changes made by the introduction of these Rules. 

The general rules relating to registry practice are found in part 2.  Division 2.2 of the Rules deals with documents and sets out how the documents should look in terms of Court heading and also addresses filing of the documents in accordance with filing of approved forms in accordance with the Rules.  Rule 2.12 requires compliance with the approved forms if a document is to be accepted in the registry and will need to be in the approved form, with only those variations which are necessary as a nature of the case so requires.  Rule 2.16 identifies a new practice: the document must contain a footer.  Every document which is to be filed in the Court must contain a footer which must contain the information which is provided for in rule 2.16.  The purpose of that is to enable anyone looking at that document to know who filed it, who may be contacted in relation to it, and the parties addressed for service. 

The forms also will have a different heading style than they presently do.  Instead of having each of the parties to the proceeding in the heading, the forms will only include in its heading, the first applicant and the first respondent.  The rest of the parties, that is, the further applicants if there be any or the further respondents if there are, will be included in a schedule to the form.  The purpose of that is to allow someone to pick up the document and to read what the document is about without having to go to page 3 or 4 before they can find that information.  So, the document will be simplified and a schedule will be used so as to allow the front page of the document to tell you what the documents are all about, to tell you who has filed it, and to tell you who may be contacted in relation to that document.  If the party is represented by a lawyer, the lawyer must include the lawyer’s telephone number, fax number and email address on that footer so that the contact details of the lawyer and the lawyer’s address for service are contained on every document. 

The Rules perpetuate similar rules to those that presently apply in relation to how documents may be lodged, how they may be filed, and when they may be rejected.  Now, form 15 will show the way in which the first page is to be set out.

You will see, therefore, that the information has been moved to the left-hand side of the document, and that’s because we read from the left-hand side rather than the right-hand side, and it seemed to be the appropriate place to put it.  The only parties which are to be included are, as it shows, the applicant and the respondent, or if there is a cross-claim, the first cross-claimant and the first cross-respondent.  And there is the footer which, as I have said, must be included on every form. 

I should mention that the registrar’s powers and responsibilities are identified in part 3 of chapter 1. 

Part 4 deals with lawyers, and the way in which lawyers retainers may be determined, and the appointment of new lawyers if that occurs.

Division 4.2 deals with what is currently in order 80 of our Rules, that is, the appointment of Pro Bono lawyers in relation to any proceeding.  I must say, for myself, I think order 80 and, I think, also this division, is really an administrative matter rather than the exercise by a judge or by the Court of any judicial power, but the purpose of including this division is not so much from the Court’s point of view, but it is to protect any Pro Bono lawyer who accepts an assignment and accepts instructions to act for a person.  This provides a way in which that assignment or referral can be terminated if, in fact, it’s necessary to terminate it from the Pro Bono lawyer’s point of view.  It also protects the Pro Bono lawyer against costs if, in fact, the party who the Pro Bono lawyer represents obtains an order for costs.  We don’t want the party to keep the costs and leave the Pro Bono lawyer out of pocket, so the Rules attempt to protect the lawyers against that happening. 

Part 8 deals with starting proceedings.  The terminology in these Rules is to start a proceeding rather than to commence it, and as already mentioned, rule 8.01 sets out the way proceedings are to be commenced. 

Rule 8.02 addresses a genuine steps statement.  You will all be aware that the Commonwealth Parliament passed the Civil Dispute Resolution Act which, we understand, is to come into force on 1 August 2011. That Act, which, it’s no secret, was passed against the advice of this Court, requires parties to take genuine steps prior to commencing proceedings in this Court.  The Act excludes some proceedings from the terms of the Act, but those proceedings which are not excluded require the parties to file, at the time that they commence their proceedings, a genuine steps statement.  Rule 8.02 of the 1 August Rules addresses that genuine steps statement and requires the parties to file a statement in compliance with section 6 of the Act.  At present, in this draft, is a subrule (3) which identifies the matters to be contained in the genuine steps statement.  It has been put to us that that subrule ought to be deleted because it might be thought to be too prescriptive, and that the genuine steps statement should be no more than that which is contained in rule 8.02(2). So you might understand, when reading these Rules, that subrule (3) might well be not contained in the 1 August version.  We can dispense, of course, with the Rules, as I have said, in division 1.3, but we can’t dispense with the obligation which is contained in the Act, which is to file a genuine steps statement at the time that proceedings are commenced.  We would expect that our registry would not refuse to accept for filing an originating application which was not accompanied by a genuine steps statement, although that would mean that the party who has filed the document might have contravened the Civil Dispute Resolution Act, that will be a matter for the future which should not be, we think, a matter for the registry at the time of filing.

Rule 8.03 sets out the content of an originating application and what must be contained in it, and rule 8.04 refers to the obligations of a migration litigation certificate, which we need not address.  Rule 8.05 perpetuates the current process which allows the originating application to be accompanied either by a statement of claim or by an affidavit, and the Rules also provide for the Court to reverse the decision made by the applicant in that regard, in due course, if it’s considered more appropriate that the proceeding either proceed on pleadings rather than affidavits, or affidavits rather than pleadings.  The originating application must be served five days prior to the directions hearing. 

When the originating application is issued by the Court, the originating application will include a return date and place, which will be the first directions hearing, and that will appear on the first page of the document, and in the middle of the originating application.  Division 8.3 addresses amendments to originating applications.  In our current Rules, there is one rule which deals with the amendments both of originating applications and of pleadings, and the same regime applies to both.  In these Rules, there is a difference: there is a procedure for amending an originating application and a separate procedure for amending a pleading.  That, it’s thought, is necessary because the documents play different parts in the record of the proceedings and in the proceedings themselves.

Leave is, of course, required to amend an originating application.  The procedure, in that regard, is contained in division 8.3.  I will interrupt myself now to mention that these Rules not only provide a course for the process in relation to originating applications, but in these Rules we have included for the first time a notice of cross-claim, so if a party commences a proceeding by way of cross-claim, the party, under these Rules, must file a notice of cross-claim.  We will come to it in a minute – it’s part 15 of the Rules.  But a notice of cross-claim is in much the same form as an originating application, and it needs to be amended in much the same sort of regime as an originating application if an amendment is sought. 

But the effect of all this is that whether the claim is commenced by an originating application or by a notice of cross-claim, there will be a document of that kind in every matter.  So that, for example, if the cross-claim is by a respondent against an applicant, you will no longer be able to include the cross-claim in the defence.  You would have to file a notice of cross-claim and a pleading on the cross-claim.  If the cross-claim is against a co-respondent the same applies, and so also does it apply if the cross-claim is brought against a person, not a party, to the principal proceedings.  I will come to it again in a little more detail, but the idea is to make it clear to the parties that a cross-claim is a freestanding claim which has to be dealt with in the same way as the principal proceeding.

When the originating application issues it will, as I said, be given a date for a directions hearing  — which is called a return date — and directions.  Part 5 deals with the supervision of proceedings in relation to the directions hearing.  Rule 5.01 requires the party or the party’s lawyer to attend on the return date fixed in the originating application.  It was put to us by the New South Wales Law Society that we ought to require the parties themselves to attend on the first directions hearing.  That was rejected by the judges for the practical reason that at the first directions hearing, the respondent, at least, knows very little about the case, usually, and there would be little utility in having the parties attend at that time.  However, it would be understood that as part of a case management tool a judge may require the parties to attend at a later time.

Rule 5.02 requires the respondent to a proceeding to file a notice of address for service before attending on the directions hearing.  There is no longer a form of an appearance:  respondents file notices of address for service rather than appearances.  The respondent must also, because of the provisions of the Civil Dispute Resolution Act, file the respondent’s answering genuine steps statement at the same time as the respondent files the notice of address for service, and that is addressed in rule 5.03.

Rule 5.04 sets out a list of directions which may be made at any directions hearing.  It’s in much the same form as the present Rules, but there are further directions identified in the items under that rule, but of course that list is not meant to be exhaustive, it’s meant to be indicative of what order might be made by way of directions at a directions hearing.  Rule 5.06 makes it clear that the same procedures apply to cross-claims. 

Service is dealt with in detail in the Rules, but there have been no significant changes which need to be addressed, I think, tonight.  The provisions of the Hague Convention haven’t been included and the current Rules generally have been reproduced.

Because there are no longer appearances there’s no longer a procedure for conditional appearances.  That has been addressed by providing for a procedure under part 13 to allow a party to apply to set aside the originating application or set aside service, for the sorts of reasons that would have been available to a party or to a respondent under the process of a conditional appearance.  The application which is to be made must be made at the time that the respondent files the respondent’s notice of address for service, so in that respect is in like form as the procedure for conditional appearances.

Part 12 provides for submitting notices.  There is a procedure now that allows a party in a proceeding or in an appeal to file a submitting notice, and there is a form which the respondent must complete if the respondent wishes to take a position of submission.  The rule also allows for a party to apply to withdraw the submitting notice and become an active party in the proceeding. 

Part 15, as I’ve said, deals with cross-claims and third party claims, and rule 15.01 empowers a party to make a cross-claim and 15.02 shows that a respondent who wants to start a cross-claim must file a notice of cross-claim in accordance with form 31.  You will see in reading rule 15.02 that the requirements which must be met by a respondent on a cross-claim are the same or nearly the same as those that must be met by an applicant on a claim.  The time for bringing a cross-claim is provided for in rule 15.04, which is at the time when the respondent files the respondent’s defence or the respondent’s affidavit in response to the applicant’s affidavit which supported the principal proceeding, but rule 15.05 allows for a respondent to apply for an extension of time if the respondent has not been able to bring that cross-claim in the time prescribed.  Rule 15.07 identifies the relief which must be claimed in the cross-claim, and that again is in similar form to the relief which must be identified in an originating application.  Rule 15.09 requires a cross-respondent to file a notice of address for service as if the cross-respondent were a respondent to the principal proceeding, and then rule 15.10 requires the parties to conduct the cross-claim in the same way as the parties would conduct the principal proceeding.  Division 15.2 deals with an amendment to the cross-claim, and is in similar form to the amendment provisions in relation to the originating application. Part 16 deals with pleadings.  Rule 16.01 requires the formal matters to be addressed and if a lawyer prepares the pleading, requires the lawyer to give a certificate that any factual and legal material available to the lawyer provides a proper basis for the allegations in the pleading or denials or non-admissions in the case of a defence.  The content of a pleading is addressed in rule 16.02.  It’s not so much different to the present Rules as to be remarkable except in one respect: now, when you state the material facts upon which you rely, it is necessary that those material facts give the opposing party fair notice of the case to be made against that party at trial, but still, as in the present Rules, not the evidence by which the material facts have been proved.  So there is a definition, as it were, in rule 16.02(1)(d), that the material facts must be of a kind which give the opposing party fair notice of the case to be made at trial.  Otherwise, the pleading rules are not so much different to the rules as in the current Rules.

Division 16.2 deals with applications to strike out pleadings and is in a similar form to the present order 11 rule 16.  Division 16.3 deals with the progress of pleadings.  There’s one rule to notice there, and that is that rule 16.32 requires the defence to be filed within 28 days after service of the statement of claim.  Now, of course that might be appropriate for an ordinary uncomplicated matter, but in more complex and complicated matters, clearly the judge at the directions hearing would set some different period of time within which the respondent had to file a defence. 

Division 16.4 deals with particulars.  There are two matters to note in relation to particulars:  the first is that 16.43, which addresses conditions of mind, which is  presently addressed in order 12 rule 3 of our current Rules, will now require a party to plead as to knowledge, which is presently accepted from the condition of mind, but more importantly is the rule which now provides for applications for further and better particulars.

Rule 16.45 allows a party to apply for further and better particulars, as it were, but there are two threshold matters the party must make out before the party is entitled to the particulars.  First, as I’ve said, the party must make out that the present — the pleading does not give the party fair notice of the case to be made against that party at trial, so that is it’s deficient in relation to rule 16.02(1)(d), but moreover, the party must establish that the party would be significantly prejudiced in the conduct of its case if an order were not made.  Now, it has been said by some, “Well, if the pleading does not give fair notice of the case to be made against that party at trial, then in all cases the other party must be prejudiced,” but I think that’s not necessarily so; it depends upon how the case is managed by the docket judge.  For example, if a party came to the docket judge saying that the particular pleading did not give fair notice of the case to be made at trial, that seems to me to be able to be remedied in perhaps one of three ways:  first, it might be by making an order for discovery before the pleadings go further and thereby educating the party as to the case which is to be made against that party at trial.  Secondly, the docket judge might require the party about who’s pleading the complaint is made, to provide their evidence at that stage, so that the party who’s complaining about the inadequacy of the pleading knows what the evidence is which is to be brought against them.  In both of those cases you might not make an order for further and better particulars.  However, if, on the other hand, the docket judge thought that neither of those management tools would be effective or fair, then in those circumstances the party might have made out significant prejudice.

Division 16.5 deals with amendments to pleadings, and a party is still entitled to amend a pleading once, at any time before the pleadings close, without the leave of the Court, and of course the parties can amend at any time with the leave of the Court, or with the consent of all of the parties and, again, the leave of the Court.  The Rules also provide for consequential amendments if leave is granted. 

Part 17 deals with interlocutory applications.  These Rules recognise interlocutory applications are not notices of motion, and rule 17.01 provides the procedure whereby a party makes an interlocutory application.  The party makes that application by the use of form 35, in which that party must state briefly but specifically each order that is sought, and if appropriate, be accompanied by an affidavit.  Ordinarily it would be appropriate that an interlocutory application were accompanied by an affidavit, but there are circumstances where an affidavit would be unnecessary.  Rule 17.02 recognises those circumstances which are, where the evidence which is relied upon in support of the application for the interlocutory order, is simply correspondence between the parties.  Often on pleading applications and on discovery applications the evidence is contained in the exchange of letters between the lawyers.  In those circumstances, the rule allows the parties simply to file the documents, but not to have to file an affidavit exhibiting those documents.  Although the rule applies for an interlocutory application in accordance with the form, it also recognises that a party may make an oral application for an interlocutory order at a hearing and in particular at a directions hearing.

I think we can easily pass over interpleader proceedings, and in particular sheriff’s interpleader proceedings.  Can we move to discovery?  Part 20 deals with discovery and inspection.  Division 20.1 deals with the general Rules relating to discovery including privilege and the implied undertaking that a party will not use the documents other than in the proceedings.  Division 20.2 deals with discovery in particular.  20.11 provides that:

A party must give discovery only if it’s necessary for the determination of issues in the proceeding.

And 20.12 provides that:

A Party must not give discovery unless the Court has made an order for discovery and the sanction for giving discovery without a Court order is that the party is not entitled to recover costs.  The purpose of these two Rules is to ensure that the Court has at all time control over the discovery process which we recognise as probably the most costly, that, with expert evidence in the interlocutory processes in the Court.  For those circumstances, these Rules ensure that the Court has control over the discovery process from the very start, and if the parties don’t wish to have the Court control the discovery process, they will not be entitled to claim costs. 

Now, rule 20.13 provides for how discovery might be sought.  There are two forms of discovery recognised in the Rules:  standard discovery and non-standard discovery.  Rule 20.13 requires a party to identify the discovery which the party seeks in the proceeding.  Standard discovery is defined in rule 20.14 and is appropriate, we think, for the ordinary, uncomplicated matter in which there are not a large number of documents and not a large number of documents in electronic form. Rule 20.15 allows a party to apply for non-standard discovery, and if that party wishes to obtain non-standard discovery, the party must identify the criteria in rule 20.14 that should not apply, and the criteria that the party says should apply in lieu of that other criteria.  The party also must, if seeking non-standard discovery, state whether the party wants categories of documents, whether the party wants discovery in electronic format or whether the party wants discovery in accordance with a discovery plan, and if the party wants discovery in either of those formats the party must identify the list of proposed categories, the proposed electronic format or a draft of the discovery plan.

These Rules are somewhat different to our existing Rules but not so much different to the Practice Notes relating to the use of discovery plans, and what these Rules do is lift out of the Practice Notes some of the rules relating to discovery plans.  The Rules then provide for discovery in the same form as the current Rules by a list of documents verified by affidavit.  The Rules also provide for continuing discovery so that any document which comes into the party’s possession after the list of documents is filed or after the proceeding is commenced must be discovered, except the Rules recognise that the parties should not have to discover any document which has been created since the proceeding has been commenced and for which that party seeks would claim legal professional privilege.  We recognise that most of the documents created after the proceeding has commenced, are documents which the party can claim legal professional privilege.  In those circumstances, it seems inappropriate to require the party to file a list of documents and make the claim.  It just adds an unnecessary expense to the proceeding.  The Rules also deal with discovery against non-parties and for the non-parties costs and expenses. 

Division 20.3 deals with inspection and we don’t need to stay there because there has been no changes of any real consequence in relation to inspection of documents.  Part 21 addresses interrogatories, which need not be addressed here because they are so infrequently used, but they have been maintained in case there is a need in any particular case for interrogatories.  Part 22 deals with admissions and notices to admit and is not so much different from the present Rules as to require mention. 

Part 23 deals with the other expensive process and that is experts.  Division 23.1 deals with Court experts.  Division 23.2 deals with the parties’ experts.  Division 23.01 allows a party to apply to the Court for an order that an expert be appointed.  The rule doesn’t indicate that the Court may of its own motion make such an order but, of course, as I have said, the general powers of the Court would allow the Court to make that order of its own motion and without any prompting from any party.

Rule 23.02 identifies the matters which should be identified in an expert’s report, and in particular the rule requires the expert, after identifying their qualifications in accordance with the Evidence Act, set out separately the factual findings or assumptions on which the Court expert’s opinion is based, and set out separately from those findings each of the Court expert’s opinions.  So the idea is to ensure that the expert’s report identifies precisely the assumptions upon which the expert has proceeded and separately identifies the opinions which are offered by the expert upon those assumptions.  Rule 23.03 says that the report is admissible if it complies with rule 23.02.  Again I point out, because of the way in which these Rules are structured, if in fact a Court expert’s report did not comply with rule 23.02 one would ask the Court, if one wanted the Court to receive the document, to dispense with the rules in relation to that report.  Rule 23.04 allows the parties to provide their own experts’ reports even if there is a Court expert’s report with the leave of the Court. 

Division 23.2 addresses expert witnesses, the parties’ experts’ witnesses and the experts’ reports that the parties would have the experts compile.  Like division 23.1, 23.13 addresses the content of an expert’s report, which must contain the matters to which I have already referred.  Rule 23.15 provides powers for the Court to receive the expert’s evidence in particular ways and really addresses the “hot tub” style of giving evidence but you will see that rule 23.15 allows the Court to require the experts to give evidence together, apart, in different orders, in a way which is most conducive in the particular matter to the reception of that evidence.  Those powers must be read also in accordance with rule 5.04, which is the general powers which are given at directions hearings, and items 14 to 20 of those powers relate to the way in which expert evidence may be directed to be given.

Part 24 deals with subpoenas.  Subpoenas, like freezing orders, Anton Piller Orders and the like, which I have not mentioned, are harmonised rules in accordance with the agreement between the jurisdictions, so the subpoenas have not been addressed separately and are in the same form as our current Rules.  In those circumstances, the language in part 24 is somewhat different to the language in the rest of the Rules but we were not allowed to change the language because it is harmonised.  What we have done, though, is to, instead of having one form of subpoena, now have three forms of subpoena.  The present subpoena is used for both ad testificandum and duces tecum and for both.  What we have done is identify three separate forms:  one for giving evidence, one for producing documents and one for doing both.  We were told by — I think it was the New South Wales Law Society — that our form, which tried to cover everything for every circumstance, was difficult to understand and for that purpose we think we have developed a form of subpoena which is easier to understand than in the present Rules.

Part 25 deals with offers and part 26 with ending proceedings early, including applications for summary judgment, withdrawal of proceedings and discontinuance, and part 27 deals with transfer of proceedings to and from the Court, which need not be addressed tonight. 

Part 28 deals with alternative dispute resolution.  Part 28 recognises three forms of alternative dispute resolution, which are those forms which are recognised in the Federal Court Act itself: mediation, what the Federal Court Act calls “an alternative dispute resolution process by a suitable person” and arbitration.  It’s not easy to understand how the second process differs from the first, unless it’s supposed to address early neutral evaluation but, in any event, the Rules recognise the three forms of alternative dispute resolution because the Act does recognise them. 

Arbitration is dealt with separately.  There’s one significant difference in relation to arbitration: these Rules empower a party to apply to the Court for an order terminating the appointment of a mediator or suitable person who is conducting an ADR process but they do not empower a person to apply to the Court for the purpose of terminating the appointment of an arbitrator.  We think that is consistent with the arbitration principles.  The Rules also now recognise the registration of awards made by an arbitrator and, in particular, the sections 53AA and 53AB of the Federal Court Act insofar as they relate to arbitrations.  The Rules relating to mediators and suitable persons conducting an ADR process are not much different.  The Rules, rather, recognise that an appointment of a mediator by the Court would ordinarily be a registrar of the Court, but if no person is nominated in the order made by the judge, then the registrar may identify the registrar who is to conduct the mediation.

Division 28.5 deals with international arbitration under the International Arbitration Act and those Rules are new.  They identify the particular processes under the International Arbitration Act which require Rules to be made, and division 28.6 relate to a referral by the Court to a referee.  Whilst I think a referral by the Court to a referee is hardly alternative dispute resolution, it has been recognised as such in that part. 

Evidence is dealt with in part 29 and, in particular, affidavits in division 29.1.  Again, there are not many changes in relation to the manner in which an affidavit must be constructed.  There is one of some importance: that’s contained in rule 29.02(4), and that provides that:

 A document that accompanies an affidavit must be annexed to the affidavit unless the document is: (a) an original, or (b) of such dimensions that it cannot be annexed. 

So, prima facie, any document that is referred to in an affidavit which the party wishes to bring to the Court’s attention must be annexed to the affidavit unless it falls within the description in paragraphs (a) and (b) of subrule 4.

The rest of the Rules are not substantially different to the Rules that presently prevail.  Subrule 4 has been included because there is not a uniform practice throughout Australia in relation to the filing of exhibits to affidavits.  In the New South Wales Registry, a party does not file the exhibits to an affidavit; in New South Wales exhibits are not filed and may be handed up during a hearing if they become relevant.  Because of the form of this rule, those exhibits will be annexures so it might be, unless the New South Wales judges determine otherwise, [that those documents] would have to be filed.  The Rules provide for the way in which the affidavit must be sworn and they also provide, as they presently do, that an affidavit may be accepted despite an irregularity and for the party to apply for leave to use an irregular affidavit.

Division 29.2 deals with evidence on commission outside Australia.  I think it probably need not be addressed.  Yes, Daniel reminds me that the present Rules do not require the party’s lawyers to give a certificate that they comply with the Rules.  It was thought by the committee that the certificate was an added expense which did not provide any real benefit in the process.  That really completes the more relevant matters in chapter 2 relating to the interlocutory processes up to the date of hearing. 

Chapter 3, as I have said, deals with the present Rules, which are identified in or about order 54 and following, and contains rules relating to application for judicial review under the Administrative Decisions Judicial Review Act or under the Judiciary Act, applications under the Migration Act, the Australian Crime Commission Act, proceedings which have been referred by the High Court, proceedings under the Commonwealth Electoral Act.  Chapter 3 also deals with appeals from decisions of bodies other than Courts, including taxation appeals, Administrative Appeals Tribunal Act appeals, Superannuation Complaints Tribunal appeals and a new division, appeals from the National Native Title Tribunal, which are contained in division 33.4.  Chapter 3 also deals with fair work proceedings, intellectual property cases and cases under the Aboriginal and Torres Strait Islander Act and native title proceedings and also human rights proceedings.  I don’t think there’s any need, notwithstanding the number of different Acts which are addressed in chapter 3, to take you through chapter 3 in any detail because there has not been any substantive changes to the way in which a proceeding must be conducted in relation to those separate Acts.  There have been a number of stylistic changes of the kind to which I have already referred and there are a number of changes in relation to the way in which proceedings are brought to an end under these separate proceedings.  What we have attempted to do throughout chapter 3 is to make the language consistent under the separate statutes.  But, as I have said, I think, with the time available tonight, there’s no need to examine each of the Rules in any detail.

Can I then go over, therefore, to the appellate jurisdiction.  Chapter 4 deals with the appellate jurisdiction, including, of course, the applications for leave to appeal.  Division 35.1 recognises the current procedure for an oral application for leave to appeal.  As you all know, at present a party may apply orally for leave to appeal from interlocutory judgment at the time that the judgment is handed down, to the judge who pronounced the judgment.  That procedure is preserved.  As well, the procedure whereby a party may make a written application for leave to appeal if the party has not made the oral application, is also preserved.  This part of the appellate jurisdiction recognises that there might be an application for leave to appeal from an interlocutory judgment or there might be an application for leave to appeal from a judgment which requires leave to appeal because of statute.  The application in both cases is the same and it’s provided in form 117, which is a form that rule 35.12 requires a party who is seeking leave to appeal to file.  Rule 35.12 requires the party to provide the documents identified in rule 35.12(2) at the time the application is made.

The important point to be made in relation to application for leave to appeal, now, is that, whether it’s an appeal from an interlocutory judgment or whether it’s an appeal from a judgment which requires leave to appeal, the time for the bringing of the application, if it’s to be a written application, is the same and it is within 14 days after the judgment has been pronounced or the order made.  Now, that’s a matter of compromise: under the present Rules, an application for leave to appeal from interlocutory judgment must be brought within seven days and an application for leave to appeal from any other judgment which requires leave to appeal must be brought within 21 days.  The 14 days is a compromise between those two dates and what we have attempted to do is standardise the procedure, whatever the reason for the application for leave, to 14 days.  It is of course recognised that the purpose of an application for leave to appeal from interlocutory judgment within seven days is to ensure that the matter is disposed of as soon as possible so that the principle proceeding is not delayed.  Having recognised that, we think there is probably some greater benefit in just having the one form of process for applications for leave to appeal and that’s why we have taken that view.

Rule 35.14 provides for an extension of time to seek leave to appeal, and there are provisions which allows parties to end those applications early.  Division 35.4 provides a procedure for the revocation of leave to appeal.  Division 36.1 deals with the institution of appeals and provides for the different forms depending upon whether the appeal is brought from the Federal Magistrates Court, some other Court or a judge of the Court.  The notice of appeal in all cases must state the matters referred to in 36.01(2), and if the appeal is brought within leave, the notice of appeal must identify the leave and must attach the order which gave leave.  The notice of appeal must be filed in the various registries identified in rule 36.02 but usually dependent upon where the matter from which the appeal is brought was heard.  The time for filing a notice of appeal remains under rule 36.03, 21 days.

Rule 36.05 allows for a party to apply for an extension of time within which to appeal and identifies in subrule (3) the documents which must accompany such an application.  Rule 36.08 provides that an appeal does not operate as a stay but that an appellant or interested person may apply to the Court for a stay.  Rule 36.09 empowers a party to apply for an order that the appellant give security for costs.  Rule 36.11 sets out the directions which a single judge may make in relation to the conduct, management and hearing of an appeal and those directions are largely those contained in section 25 of the Federal Court Act.  Division 36.2 addresses cross-appeals.  A cross-appeal may be brought by way of notice of cross-appeal within 21 days after being served with the notice of appeal.  Again, the Rules provide for an extension of time if the cross-appeal was not brought within the time prescribed.

Division 36.2 also deals with a notice of contention.  The Rules do not provide for an extension of time with which to file a notice of contention, it being thought that if a party cannot or has not filed a notice of contention in the time prescribed, the party ought to make that application to the Full Court hearing the appeal.  Division 36.4 deals with applications which may be heard on the papers. 

Division 36.5 now deals with the preparation of appeals and brings into the Rules what is now contained largely in practice directions.  You will remember I think, it was about September last year, the procedures in the Court were changed to take out of the registrar’s hands the settling of the index of the appeal books and to provide a regime whereby there were three parts to an appeal book:  part A, B and C.  Part A had standard documents, part B has an index and part C is informed by the submissions which are made by the parties.  That regime has been taken up in the Rules and the content of the appeal books is provided for in rule 36.54 and we have perpetuated now what is in the Practice Note, which is that there are the three parts. Part A contains the standard documents, being the originating application, the reasons for decision, the judgment, the notice of appeal,  — the core documents as they are called.  Part B is the comprehensive reference index, which sets out all of the documents which were before the judge from whom the appeal is brought,  and part C contains those documents which are informed by the submissions which the parties have made and those submissions must be, in the case of an appellant, must be filed not later than 20 days before the hearing of the appeal;  for a respondent, not later than 15 days;  for the appellant in reply, not later than 10.  And after those submissions are provided, the appellant has the obligation of providing the part C documents which are those documents which have been referred to in the submissions.  The Rules do provide that if the parties require assistance from the registrar, they may apply to the registrar for assistance, but that application to the registrar must be brought within seven days after the notice of appeal has been served so that the parties cannot sit upon the appeal and not progress it.

Division 36.6 deals with ending appeals early.  Part 37 deals with the extensive jurisdiction this Court has in relation to criminal cases from Supreme Courts.  There is only one Court from which a criminal appeal can be brought to the Court – that’s the Supreme Court of Norfolk Island, but part 37 addresses that. 

Part 38 deals with cases stated and questions reserved, and is not so much different from the present Rules. 

Chapter 5 deals with judgment costs and other general provisions, and provides — importantly, I think — two circumstances in which a judgment or order which has been made may be set aside.  In rule 39.04, the Court is empowered to set aside a judgment before it has been entered; now that is in the same form as the present Rules.  And in rule 39.05, the Court is empowered to set aside a judgment after it has been entered, if one of the matters in the paragraphs of rule 39.05 is made out, which include, effectively, a slip rule.  But not only slip rules, but where, for example, the judgment was obtained by fraud or something of the kind.

Now we think, because of the practice of the Court, that in most cases, a party who wants to set aside or vary a judgment for any reason will be able to rely upon rule 39.04 because it would be unlikely, in most cases, that the judgment or order would have been entered.  The new Rules provide, as the present Rules do, the circumstances where the judgment or order is entered, and a judgment or order only needs be entered if required under rule 39.31, which is in similar form to the present Rule, and is only entered in a formal way by way of authentication of the orders.  In fact, our practice is [always] to enter judgments and orders of that kind.  We “enter” orders into Casetrack;  we don’t enter them in accordance with the formal provisions of the Rules, [in many  cases], so a person who wants to set aside or vary an order will be entitled to rely on that rule which says that the Court may do it at any time before the order is entered.

Can I deal with costs.  There are some important differences in costs, certainly important from the profession’s point of view.  Costs as between party and party has been redefined to mean costs that have been fairly and reasonably incurred.  We think that definition would be likely to give a successful party a greater return against the costs which have actually been incurred than under the present rule.  Secondly, and I’ll come to this in more detail, schedule 3 has been included in the Rules which sets out a different way in which [lawyers’ charges to their clients for proceedings in the Federal Court may be recovered.] It is in much simpler form than the present schedule; it consists of only two or three pages, but it recognises that a lawyer with skill and experience involved in a complex matter can charge up to $550 an hour, and a law graduate or article clerk $200 an hour, and a paralegal or clerk $100 an hour.  The schedule does address some items but, at the same time, does allow the lawyer to charge on a time-costing basis, and so, there has been a significant change, both in the way in which the lawyers may charge and the amount which a lawyer may charge. 

Part 40 deals with — if I can go back to part 40 — deals with the general rules relating to costs and what an order for costs might mean in any particular case, which are not so much different to the present Rules, but introduces a new regime in relation to taxation of costs.  A party must, of course, still file a bill.  If a party files a bill, in all cases the registrar or taxing officer will make an estimate of the bill in every case where a bill is presented.  If the parties are satisfied with the estimate then a certificate of taxation will issue for the amount of the estimate.  If, on the other hand, the parties, or either of the parties, or any of the parties, are not satisfied with the estimate, the parties may object, and if the parties object, the registrar can direct one of three things: first, that it be sent to a confidential conference to reach a resolution of the dispute; secondly, that it be sent to provisional taxation; or thirdly, that the taxation of the bill proceed.  If the matter achieves a resolution at the confidential conference, the sealed certificate of taxation will issue for the amount agreed upon.  If, on the other hand, it goes to a provisional taxation, the registrar or taxing officer will provisionally tax the bill but will still allow a party to [seek a full] taxation.  The Rules provide for the way in which objections are to be made, the detail which has to be provided and the submissions which have to be made in any provisional taxation or taxation.  The Rules no longer allow for the review by the registrar or the taxing officer of the registrar or taxing officer’s own taxation, but if the parties continue to be dissatisfied by the taxation, the parties can apply to the Court for a review of the taxation.  The Rules also provide for short-form bills in relation to Corporations Act and Migration Act.

Part 41 deals with enforcement and, of course, continues the limitations on enforcement of judgments in the Federal Court, which to a certain extent relies upon the state Courts if necessary and need not be further addressed.  Chapter 6 deals with contempt, both in the face of the Court and otherwise. 

Ladies and gentlemen, in the time available, I have tried to address the matters of substance which have changed or which might affect you in your practice.  The Rules, of course, need careful reading for a complete understanding of them.  We hope that the next six or seven weeks is sufficient time for you to do that, so that those of you who practice in the jurisdiction will be familiar with the Rules prior to the 1st of August.  I have said that I will come back here again on 7 July to conduct another session of this kind.  I’m also open to questions, both now and later, in relation to the content of the Rules. 

Justice Lander

The podcast of this presentation is available at http://laredef.typepad.com/fedcourt/ .