Changes to Commercial and Corporations Practice in the Federal Court of Australia
In 2016, the Federal Court established a National Court Framework (‘NCF’) to fundamentally reform and govern how the Court operates. The Court is now organised and managed nationally with nine key National Practice Areas (‘NPAs’) created. All of the Court’s practice notes have accordingly been revised and reissued. The Court still employs the individual docket system (‘IDS’). The general principle underlying an individual docket system is that each case commenced in a court is randomly or sequentially allocated to a judge of the court at the time of filing, who then supervises all pre-trial steps and hears the case when it is ready for trial. The idea is that by giving a judge ‘ownership’ of a case the judge then has the ability and incentive to exercise control.
Under the NCF, matters are now centrally allocated to judges based on the availability of judges with expertise in the relevant NPA and the needs of the case. However, once allocated to a judge it will remain with that judge for case management and disposition. The NPAs of the Court are: • Administrative and Constitutional Law and Human Rights; • Native Title; • Employment and Industrial Relations; • Commercial and Corporations; • Taxation; • Intellectual Property; • Admiralty and Maritime; • Federal Crime and Related Proceedings; and • Other Federal Jurisdiction.
Federal Court Practice Notes To give effect to the NCF and NPAs the Federal Court has reissued all practice notes. There are three broad categories of Practice Note. The Central Practice Note (CPN-1) is the core practice note for Court users and addresses the guiding NCF case management principles applicable to all National Practice Areas (‘NPAs’). Each NPA may have its own practice note that contains NPA-specific case management principles and requirements. General Practice Note (‘GPNs’) are intended to apply to all or many cases across NPAs, or otherwise address important administrative matters. GPNs address such matters as Class Actions, Expert Evidence, Survey Evidence, Costs, Subpoenas and Notices to Produce and Access to Documents. All 26 practice notes took effect on 25 October 2016.
Central Practice Note (CPN-1) CPN-1 explains the NCF and NPAs. It also addresses the individual docket system and allocation principles as explained above. The practice note recites the overarching purpose of civil practice and procedure, namely ‘to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible’ and emphasises the statutory duty on the parties and their lawyers to co-operate with the Court and among themselves to assist in achieving the overarching purpose. CPN-1 also provides a slight change of emphasis from the view that effective case management requires court control. The practice note states: ‘While the Court will manage the issues in dispute, the proceeding is always the parties’ proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute and in ascertaining the most efficient, including cost efficient, method of its resolution’. This is not a return to the days of party control which the High Court in Aon Risk described as ‘long gone’ (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at ). Rather it is a recognition of the need for parties to comply with the overarching purpose and to be actively involved in running their cases efficiently. The Court, the parties and their legal representatives all have roles and responsibilities for the effective conduct of litigation. Readers would be well served by reviewing Chief Justice Allsop’s remarks in ‘Judicial Case Management and the Problem of Costs’, UNSW Law Civil Justice Reform Seminar, 9 September 2014 (see: www.fedcourt.gov.au/digitallaw-library/judges-speeches/chiefjustice-alls... and (2015) 39(3) Australian Bar Review 228). The practice note also sets out the Federal Court’s approach to case management which may be summarised as the early identification and narrowing of the issues in dispute, determining the necessary procedures or steps that will be required, such as discovery, lay and expert evidence, but minimising their scope to what is needed for the just determination of the dispute.
Interlocutory applications and hearings are to be minimised. The trial is to be set down as early as appropriate and judgment delivered expeditiously. The practice note highlights a number of facilitators of case management such as technology, alternative dispute resolution, preliminary issues of fact or law, agreed statements of facts or law,and capping of costs.
CPN-1 also addresses: the process to bring on urgent applications, including injunctions and the roles of the docket judge and duty judge;commencement of proceedings,including innovative pleadings processes where appropriate; alternative dispute resolution, including mediation and referees; discovery and the manner in which the Court expects parties to approach it – only seeking discovery when it is necessary, minimising the burden and acting cooperatively. The Court expects that any discovery request will be justified and proportionate to the nature, size and complexity of the case. Any search for documents will be comprehensive but proportionate. A party providing discovery must, if requested, explain the search steps