Changes to the Court’s jurisdiction in 2018–19
The Court’s jurisdiction during the year was enlarged or otherwise affected by a number of statutes including the following:
- Counter-Terrorism Legislation Amendment Act (No. 1) 2018
- Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019
- Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018
- Foreign Influence Transparency Scheme Act 2018
- Government Procurement (Judicial Review) Act 2018
- Health Legislation (Improved Medicare Compliance and Other Measures) Act 2018
- Home Affairs and Integrity Agencies Legislation Amendment Act 2018
- Imported Food Control Amendment Act 2018
- Industrial Chemicals Act 2019
- Office of National Intelligence (Consequential and Transitional Provisions) Act 2018
- Road Vehicle Standards Act 2018
- Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
- Treasury Laws Amendment (2018 Measures No. 4) Act 2019
- Treasury Laws Amendment (2018 Measures No. 5) Act 2019
- Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019
- Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019
- Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Act 2019
- Treasury Laws Amendment (Protecting Your Superannuation Package) Act 2019
- Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019, and
- Underwater Cultural Heritage Act 2018.
Amendments to the Federal Court of Australia Act
During the reporting year, the Federal Court of Australia Act was amended by the Legislation Amendment (Sunsetting Review and Other Measures) Act 2018. This gave effect to recommendations contained in the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003, to ensure that Rules made by the judges of the Federal Court would not be subject to the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act 2003.
The operation of the Federal Court and Federal Circuit Court Regulation 2012 remained unchanged in the reporting year.
The fee for filing applications under s 539 of the Fair Work Act 2009 in certain circumstances is fixed at the same rate as prescribed under subsection 395(2) of the Fair Work Act 2009. That fee is adjusted on 1 July of each year for changes in the consumer price index by regulation 3.07 of the Fair Work Regulations 2009.
Federal Court Rules
The judges are responsible for making the Rules of Court under the Federal Court Act. The Rules provide the procedural framework within which matters are commenced and conducted in the Court. The Rules of Court are made as Commonwealth Statutory Legislative Instruments.
The Rules are kept under review. New and amending rules are made to ensure that the Court’s procedures are responsive to the needs of modern litigation. A review of the Rules is often undertaken as a consequence of changes to the Court’s practice and procedure described elsewhere in this report. Proposed amendments are discussed with the Law Council of Australia and other relevant organisations, as considered appropriate.
During the reporting year, the Federal Court Rules 2011 were amended by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 to, among other things:
- update references to the Court’s CEO and Principal Registrar, as well as references to the Court’s other registrars as a consequence of changes to the titles of the offices of court officials brought about by the Courts Administration Legislation Amendment Act 2016
- update references to regulations, including the Federal Court and Federal Circuit Court Regulation 2012
- ensure rules 8.05 and 8.06 reflect practices instituted following the implementation of the Court’s National Court Framework
- clarify the appropriate practice for changing the return date of an electronically filed application
- clarify the requirements for amending an electronically submitted notice of cross-claim
- update Division 33.3 to reflect changes instituted by the Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018, specifically in respect of appeals from the Australian Financial Complaints Authority
- ensure references to renumbered sections of the Fair Work Act 2009 were accurately reflected in rules 34.03, 34.04 and 34.05
- extend the time available for the filing and service of a notice of appeal, under rule 36.03, to 28 days, to standardise the time period with other superior courts of record in Australia
- clarify the operation of rules 40.43 and 40.44 and item 15 of Schedule 3, and
- increase the rates of costs recoverable in Schedule 3 for work done to give effect to the recommendations made in the seventh, eighth, ninth, tenth and eleventh reports of the Joint Costs Advisory Committee.
In some specialised areas of the Federal Court’s jurisdiction, the judges have made rules that govern relevant proceedings in the Court; however, in each of those areas, the Federal Court Rules continue to apply where they are relevant and not inconsistent with the specialised rules.
The Federal Court (Corporations) Rules 2000 govern proceedings in the Federal Court under the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001, as well as proceedings under the Cross-Border Insolvency Act 2008 which involve a corporate debtor. There were no changes to the Federal Court (Corporations) Rules 2000 in the reporting year.
The Federal Court (Bankruptcy) Rules 2016 govern proceedings in the Federal Court under the Bankruptcy Act 1966, as well as proceedings under the Cross-Border Insolvency Act 2008 involving a debtor who is an individual. There were no changes to the Federal Court (Bankruptcy) Rules 2016 in the reporting year.
The Federal Court (Criminal Proceedings) Rules 2016 govern all criminal proceedings in the Federal Court, including summary criminal proceedings, indictable primary proceedings and criminal appeal proceedings. There were no changes to the Federal Court (Criminal Proceedings) Rules 2016 in the reporting year.
The Admiralty Rules 1988 govern proceedings in the Federal Court under the Admiralty Act 1988. There were no changes to the Admiralty Rules 1988 in the reporting year.
Approved forms are available on the Court’s website. Any document that is filed in a proceeding in the Court must be in accordance with any approved form. The Chief Justice may approve a form for the purposes of the Federal Court Rules 2011, the Federal Court (Bankruptcy) Rules 2016 and the Federal Court (Criminal Proceedings) Rules 2016.
On 1 May 2019, the Chief Justice approved the revocation and reissuance of the following forms, with effect from 2 May 2019, for the purposes of the Federal Court Rules 2011:
- Form 23: Request for service in a foreign country
- Form 27: Request for local service of foreign judicial documents
- Form 43B: Subpoena to produce documents
- Form 43C: Subpoena to give evidence and produce documents
- Form 44: Subpoena – Declaration by addressee Notice to addressee
- Form 59: Affidavit
- Form 79: Originating application under the Fair Work Act 2009 alleging dismissal in contravention of a general protection
- Form 80: Originating application under the Fair Work Act 2009 alleging unlawful termination of employment
- Form 81: Originating application under the Fair Work Act 2009 alleging discrimination
- Form 98A: Subpoena to give evidence (New Zealand)
- Form 98B: Subpoena to produce documents (New Zealand)
- Form 98C: Subpoena to give evidence and produce documents (New Zealand)
- Form 103: Election petition (ATSI Act)
- Form 123: Notice of cross-appeal, and
- Form 130: Notice of objection to bill of costs.
On 1 May 2019, the Chief Justice also revoked the following forms, with effect from 2 May 2019, for the purposes of the Federal Court Rules 2011:
- Form 88: Information, and
- Form 89: Summons.
On 1 May 2019, the Chief Justice approved the revocation and reissuance of the following forms, with effect from 2 May 2019, for the purposes of the Federal Court (Criminal Proceedings) Rules 2016:
- Form CP9: Affidavit
- Form CP42: Subpoena to produce a document or thing
- Form CP43: Subpoena to attend to give evidence and to produce a document or thing, and
- Form CP44: Subpoena – Notice and declaration by addressee.
No new forms were approved by the Chief Justice for the purposes of the Federal Court (Bankruptcy) Rules 2016 during the reporting year.
Practice notes are used to provide information to parties and their lawyers involved in proceedings in the Court on particular aspects of the Court’s practice and procedure.
Practice notes supplement the procedures set out in the Rules of Court and are issued by the Chief Justice upon the advice of the judges of the Court under rules 2.11, 2.12 and 2.21 of the Federal Court Rules 2011, rule 1.07 of the Federal Court (Bankruptcy) Rules 2016, rule 1.14, 1.15 and 4.20 of the Federal Court (Criminal Proceedings) Rules 2016 and the Court’s inherent power to control its own processes. All practice notes are available on the Court’s website.
In general, practice notes are issued to:
- complement particular legislative provisions or rules of court
- set out procedures for particular types of proceedings, and
- notify parties and their lawyers of particular matters that may require their attention.
A key component of the National Court Framework reforms has been the review of all of the Court’s practice documents to ensure nationally consistent and simplified practice. Under the National Court Framework, the Court’s practice documents have been consolidated and refined from 60 practice notes and administrative notices to a coherent suite of national practice notes.
The Court’s practice notes fall into four primary categories:
Central Practice Note: This is the core practice note for court users and addresses the guiding National Court Framework case management principles applicable to all NPAs.
NPA Practice Notes: Interlocking with the Central Practice Note, these practice notes raise NPA-specific case management principles and are an essential guide to practice in an NPA.
General Practice Notes: These apply to all or many cases across NPAs, or otherwise address important administrative matters. A number of General Practice Notes set out particular arrangements or information concerning a variety of key areas, such as class actions, expert evidence, survey evidence, costs, subpoenas and accessing court documents.
Appeals Practice Note: The Court has made considerable changes to the management of appeals and related applications and has commenced work on developing the key features of a comprehensive Appeals Practice Note. The Court will continue that work, including undertaking external consultation and, in the interim, Appeals Practice Note APP 2 (Content of Appeal Books and Preparation for Hearing) continues to apply.
Since the issuing of the Court’s national practice notes, the 12-month review period applicable to the General Practice Notes concluded in October 2017. The Court, through its National Practice Committee, has considered the feedback received and prepared amendments to nine of its national practice notes, which will be issued early in the next reporting year. The amendments cover a number of topics, including incorporating the concise statement method into the Central Practice Note, with correlative amendments to certain NPA Practice Notes, updating the Commercial and Corporations Practice Note following changes to insolvency law with the commencement of the Insolvency Law Reform Act 2016, and updating the Class Actions Practice Note.
In addition, following internal and external consultation, a new Defamation Practice Note has been developed within the Defamation sub-area of the Other Federal Jurisdiction NPA. The Court will continue to review its practice and procedure and welcomes feedback in respect of its practice notes and policy and practice generally.
The Federal Court also issues national guides. These guides cover a variety of subject areas, such as appeals, migration, human rights and insolvency matters. Other guides cover a range of practical and procedural matters, such as communicating with chambers and registry staff, clarifying the role and duties of expert witnesses, and providing guidance on the preparation of costs summaries and bills of costs. All guides are available on the Court’s website.