The Court has concurrent jurisdiction with the Federal Circuit Court in a number of areas of general federal law including bankruptcy, human rights, workplace relations and migration matters. The registries of the Federal Court provide registry services for the Federal Circuit Court in its general federal law jurisdiction.

In 2018–19, a total of 16,125 matters were filed in the two courts. Any growth in filings has an impact on the Federal Court’s registries, as they process the documents filed for both courts. The registries also provide the administrative support for each matter to be heard and determined by the relevant court. The Court was able to accommodate this increase easily due to the technology and systems it has set up, most notably electronic court files for all files and lodgment, to aid efficient case processing.

Case flow management of the Court's jurisdiction

The Court has adopted as one of its key case flow management principles, the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court’s individual docket system and the implementation of practice and procedure designed to assist with the efficient disposition of cases according to law. This is further enhanced by the reforms of the National Court Framework.

Under the individual docket system, a matter will usually stay with the same judge from commencement until disposition. This means a judge has greater familiarity with each case and leads to the more efficient management of the proceeding.

Figure 3.1: Filings to 30 June 2019 – Federal Court of Australia and Federal Circuit Court of Australia

Disposition of matters other than native title

In 1999–2000, the Court set a goal of 18 months from commencement as the period within which it should dispose of at least 85 per cent of its cases (excluding native title cases). The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court’s workload and a decrease in the number of less complex matters. It is reviewed regularly by the Court in relation to workload and available resources. The Court’s ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.

Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the 18-month period, with only particularly large and/or difficult cases requiring more time. Indeed, many cases are urgent and need to be disposed of quickly after commencement. The Court’s practice and procedure facilitates early disposition when necessary.

During the five-year period from 1 July 2014 to 30 June 2019, 93 per cent of cases (excluding native title matters) were completed in less than 18 months; 88 per cent in less than 12 months; and 75 per cent in less than six months. See Figure A5.4 in Appendix 5 (Workload statistics). Figure A5.5 on page 139 shows the percentage of cases (excluding native title matters) completed within 18 months over the last five reporting years.

Delivery of judgments

In the reporting period, the Court handed down 2267 judgments for 2128 court files. Of these, 1006 judgments were delivered in appeals (both single judge and Full Court) and 1261 in first instance cases. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions. This was a slight increase from the number of judgments delivered in 2017–18.

The nature of the Court’s workload means that a substantial proportion of the decisions in the matters that proceed to trial in the Court will be reserved by the trial judge at the conclusion of the trial.

The judgment is delivered at a later date and is often referred to as a ‘reserved judgment’. The nature of the Court’s appellate work also means a substantial proportion of appeals require reserved judgments.

Appendix 7: Decisions of interest includes a summary of decisions of interest delivered during the reporting year and illustrates the Court’s varied jurisdiction.

Workload of the Court in its original jurisdiction

Incoming work

In the reporting year, 6029 cases were commenced in, or transferred to, the Court’s original jurisdiction. See Table A5.1 on page 134.

Matters transferred to and from the court

Matters may be remitted or transferred to the Court under:

• Judiciary Act 1903, s 44
• Cross-vesting Scheme Acts
• Corporations Act 2001, and
• Federal Circuit Court of Australia Act 1999.

During the reporting year, 163 matters were remitted or transferred to the Court:

• 10 from the High Court
• 35 from the Federal Circuit Court
• 39 from the Supreme Courts, and
• 79 from other courts.

Matters may be transferred from the Court under:

• Federal Court of Australia Act 1976
• Jurisdiction of Courts (Cross-vesting) Act 1987
• Administrative Decisions (Judicial Review) Act 1977
• Bankruptcy Act 1966
• Corporations Act 2001, and
• Administrative Appeals Tribunal Act 1975.

During 2018–19, no matters were transferred from the Court.

Matters completed

Figure A5.2 in Appendix 5 (Workload statistics) shows a comparison of the number of matters commenced in the Court’s original jurisdiction and the number completed. The number of matters completed during the reporting year was 5680.

Current matters

The total number of current matters in the Court’s original jurisdiction at the end of the reporting year was 3863 (see Table A5.1).

Age of pending workload

The comparative age of matters pending in the Court’s original jurisdiction (against all major causes of action, other than native title matters) at 30 June 2019 is set out in Table 3.1.

Native title matters are not included in Table 3.1 because of their complexity, the role of the National Native Title Tribunal and the need to acknowledge regional priorities.

The number of native title matters over 18 months old increased. The number of native title matters between 12–18 months and 18–24 months old increased. Further information about the Court’s native title workload can be found on page 29.

The Court will continue to focus on reducing its pending caseload and the number of matters over 18 months old. A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 5.

The Court's appellate jurisdiction

The appellate workload of the Court constitutes a significant part of its overall workload. While most appellate matters arise from decisions of single judges of the Court or the Federal Circuit Court, some are in relation to decisions by state and territory courts exercising certain federal jurisdiction. For reporting purposes, matters filed in the original jurisdiction of the Court but referred to a Full Court for hearing are treated as appellate matters.

The number of appellate proceedings commenced in the Court is dependent on many factors, including the number of first instance matters disposed of in a reporting year, the nature and complexity of such matters, the nature and complexity of issues raised on appeal, legislative changes increasing or reducing the jurisdiction of the Court and decisions of the Full Court or High Court (for example, regarding the interpretation or constitutionality of legislative provisions).

Subject to ss 25(1), (1AA) and (5) of the Federal Court Act, appeals from the Federal Circuit Court and courts of summary jurisdiction exercising federal jurisdiction, may be heard by a Full Court of the Federal Court or by a single judge in certain circumstances. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges.

The Court publishes details of the four scheduled Full Court and appellate sitting periods to be held in February, May, August and November of each year. Each sitting period is up to four weeks in duration. Appellate matters will generally be listed in the next available Full Court and appellate sitting in the capital city where the matter was heard at first instance.

In the reporting year, Full Court and appellate matters were scheduled for hearing in all eight capital cities. When appeals are considered to be sufficiently urgent, the Chief Justice will convene a special sitting of a Full Court outside of the four scheduled sitting periods.

In 2018–19, the Chief Justice specially fixed eight Full Court or appellate matters for hearing outside of the four scheduled sitting periods, involving eight sitting days or part thereof.

The appellate workload

During the reporting year, 1658 appellate proceedings were filed in the Court. They include 1466 appeals and related actions (1412 filed in the appellate jurisdiction and 54 matters filed in the original jurisdiction), 26 cross appeals and 166 interlocutory applications such as applications for security for costs in relation to an appeal, a stay, an injunction, expedition or various other applications.

The Federal Circuit Court is a significant source of appellate work accounting for 74 per cent (1085 of the 1466) of the appeals and related actions filed in 2018–19. The majority of these proceedings continue to be heard and determined by single judges exercising the Court’s appellate jurisdiction.

Further information on the source of appeals and related actions is set out in Table A5.3 in Appendix 5 (Workload statistics). The number of migration appeals and related actions filed in 2018–19 increased by 11 per cent, from 1022 in 2017–18 to 1136 for the current reporting year.

In the reporting year, 1404 appeals and related actions were finalised. Of these, 673 matters were filed and finalised in the reporting year. At 30 June 2019, there were 945 appeals (comprising 901 filed in the appellate jurisdiction and 44 matters filed in the original jurisdiction) currently before the Court.

The comparative age of matters pending in the Court’s appellate jurisdiction (including native title appeals) at 30 June 2019 is set out in Table 3.3.

Of the appellate and related matters pending at present, 57 per cent are less than six months old and 84 per cent are less than 12 months old. At 30 June 2019, there were 154 matters that were over 12 months old, 143 filed in the appellate jurisdiction (see Table 3.3) and 11 matters filed in the original jurisdiction. A higher number of migration appeals and applications have been held in abeyance pending the outcomes of decisions of the Full Court of the Federal Court and the High Court. These matters are being actively identified and collectively managed by the Court until the legal issues underlying them are determined.

Managing migration appeals

In 2018–19, 63 migration appeals were filed in the Court’s appellate jurisdiction related to judgments of single judges of the Court exercising the Court’s original jurisdiction. A further 1069 migration matters were filed in relation to judgments of the Federal Circuit Court and four from another source.

Table 3.4 shows the number of appellate proceedings involving the Migration Act as a proportion of the Court’s overall appellate workload since 2014–15.

Approximately 80 per cent of the Court’s appellate workload concerned decisions made under the Migration Act 1958. Although the number of migration appellate filings has increased by 11 per cent since the last reporting year, migration as a proportion of the Court’s overall appellate workload has remained steady.

The Court continues to apply a number of procedures to streamline the preparation and conduct of these appeals and applications and to facilitate the expeditious management of the migration workload. The Court reviews all migration matters to identify cases raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting in more timely and efficient disposal of matters. Then, all migration-related appellate proceedings (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court and appellate sitting period. The exceptions to this are where expedition of an appeal may be necessary or where a judge’s commitments preclude listing allocated matters during the sitting period. Where any migration-related appellate proceeding requires an expedited hearing, the matter is allocated to a single judge or referred to a specially convened Full Court. Fixing migration-related appellate proceedings for hearing in the four scheduled sitting periods has provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same sitting period.

The Court's native title jurisdiction

Statistics and trends

In 2018–19, the Court resolved a total of 72 native title applications (commenced under s 61 of the Native Title Act 1993), consisting of 49 native title applications and 23 non-claimant applications.

Of the finalised applications, 33 were resolved by consent of the parties or were unopposed, two were finalised following litigation and 37 applications were either discontinued or dismissed. There are several other matters in which a consent determination was made, however the file remains on foot due to the determination being conditional on a subsequent event or further issues such as costs which remain to be disposed of.

A total of 33 native title determinations were made in the reporting year, consisting of 29 claim applications and four non-claimant applications. A total of 27 determinations were made by consent, two were as a result of litigation, and a further four were unopposed non-claimant applications.

Fifty-two new applications were filed under s 61 of the Native Title Act during the reporting period. Of these, 33 are native title determination applications, 13 are non-claimant applications and six were applications to revise existing determinations. Five of the revision applications were brought in the Northern Territory relating to a common issue regarding the effect of pastoral improvements on native title.

No additional compensation applications have been filed over the past reporting year subsequent to the precedent High Court decision in Griffiths on 13 March 2019. The pre-existing three compensation applications filed in Queensland are being actively case managed and the three in Western Australia are awaiting resolution of the appeals against the registration of the South-West Noongar Indigenous Land Use Agreements (ILUAs) before further case management.

At the end of the reporting year, there were 267 current native title applications, comprising 216 determination applications, 38 non-claimant applications, six compensation applications, and seven variation applications. This is a downward trend from the 289 extant at the end of the previous financial year and reflects some intensive case management by the Court to resolve aging claims and groups of matters.

There were a number of additional applications managed by the native title practice area not brought under s 61 of the Native Title Act. In total, there were 88 native title related matters disposed of (including 14 appeals and two non s 61 applications) with 82 new matters filed and a pending caseload at the end of the reporting year of 281 files. These total figures are reflected in Appendix 5 (Workload statistics).

There are 44 consent determinations and 14 native title claim hearings of either the substantive matter or separate questions currently forecast for the 2019–20 financial year. Many of those hearings will be conducted on-country, although the Court is generally adopting the practice of only one on-country determination per claim group.

The Court continues to focus on directed case management by specialist registrars and judges and on mediation of whole or part matters, predominantly conducted by registrars. The objective of both processes is to identify the genuine issues in dispute between the parties and the most effective means of resolving those disputes. This process accords with the Court’s responsibilities under the Native Title Act 1993 and the overarching purpose under sections 37M and 37N of the Federal Court of Australia Act 1976 to facilitate the just resolution of disputes according to the law as quickly, inexpensively and efficiently as possible.

While full native title trials are reducing in number, there remain a significant number of litigated separate questions and interlocutory proceedings.

Mediation may be conducted on-country, including with large groups to deal with intra and inter-Indigenous disputes, between claimant and non-claimant applicants and between applicant and regional agencies of a state government. The complexity of disputes is increasing in nature and the increased intensity of current court facilitation is demonstrated by the increase of listings from 120 mediations and 554 case management hearings in 2016–17; to 148 mediations and 789 case management hearings in 2017–18; to 316 mediations, 983 case management hearings and a further 90 regional case management conferences held during 2018–19.

Stakeholder engagement

The Court discontinued the Priority List that was previously published to the Court website as it was no longer utilised in a uniform manner and native title stakeholders indicated that they therefore no longer relied upon it. It was decided that systemic issues on a regional or state-wide basis were better identified and addressed through regular user group forums.

In Queensland, a forum involving practice area judges and registrars was convened in June 2019. As a result, a Standing Native Title User Group was established to meet with the registrars every six months, with the 12 monthly meeting including the judges and a broader group of attendees to exchange information and provide a forum to identify systemic issues relevant to Queensland native title applications.

A similar forum involving practice area judges and registrars was convened in Western Australia in June 2019 adopting a workshop model. A user group and forum structure mirroring the Queensland model was agreed to be established for future stakeholder engagement in Western Australia.

Significant litigation and developments

Queensland

Regional call overs continue to be a key feature of the Court’s approach to the management and progression of native title claims in Queensland. Call overs have been convened in Cairns with regard to the Northern Region, and in Brisbane with regard to the Southern Region. The case management landscape in Queensland has also involved regional approaches in a number of instances. Notably:

• In the Cape York, Torres Strait and Carpentaria Region, the ‘Torres Strait cluster’ of overlapping claims has been the subject of intensive case management and mediation. This cluster has otherwise been marked by significant progress in that a new applicant for the Torres Strait Regional Seas Claim Part B was authorised by the claim group in February, with orders replacing the previous applicant with the new applicant being made by the Court in April.
• In the Northern Region, the ‘Cairns cluster’ of overlapping claims was referred by the Court under s 54A of the Federal Court Act 1976 (Cth) and rule 28.61 of the Federal Court Rules 2011 (Cth) to two independent referees – the President of the National Native Title Tribunal, the Honourable John Dowsett AM QC, and the anthropologist Dr Paul Burke for inquiry and report. This is the first time a referral under s 54A and rule 28.61 has been made in the context of native title proceedings. The final report of the referees is due to be provided to the Court in December 2019.
• In the Southern Region, the ‘GNP cluster’, or ‘Gangulu cluster’ as it is also known, of overlapping claims has been the subject of intensive case management, expert conferencing and mediation. Separate question hearings are likely to take place in these matters in 2020.

A number of other claims have been the subject of intensive case management and mediation, including the Quandamooka People #4 claim, which concerns the land and waters of Moreton Island; and the overlapping matters of Koa People, which is a claimant application, and Robyn Kennedy, which is a non-claimant application. These claims concern land and waters in the vicinity of Winton in central western Queensland.

In contrast to previous years, there were no on-country hearings held during the reporting period. However, a number of on-country hearings are programmed to occur in 2020 including the Kurtijar People, Wangan and Jagalingou People and the ‘Wakaman cluster’ applications.

Two non-claimant matters from Queensland and New South Wales respectively, have been programmed for hearing by the Full Federal Court at first instance in the next reporting period to consider the power of the Court to make a negative determination in circumstances that the applicant has the benefit of s 24FA of the Native Title Act 1993 following the decision of Reeves J in the decision of Pate v State of Queensland (2019) FCA 25.

South Australia

There have been two significant consent determinations made in South Australia, with both matters having had a long history in the Court. The Adnyamathanha, Ngadjuri and Wilyakali overlap proceedings (SAD6001/1998) was determined on 14 December 2018 by Justice White at Orroroo, South Australia. This application was made in respect of extensive areas of land in the north and east of South Australia.

The Nukunu (Area 1) claim (SAD6012/1998) was determined on 17 June 2019 by Justice Charlesworth at Port Germein, South Australia. There was an agreement reached between parties for a determination of native title in relation to part of the land to which the Nukunu claim relates, with the remaining portion of the claim to be determined separately. The determination area covers an area of approximately 15,000km2 in the mid north of South Australia.

Two on-country hearings are forecast for the second half of 2019 including the Oodnadatta Common Overlap proceedings and Wirangu #2 (Part A), being a 1998 matter.

New South Wales

The Bundjalung People of Byron Bay’s application filed in 2001 was determined by consent in April 2019 at Brunswick Heads following an extensive period of negotiation and mediation, resulting in an ILUA which underpinned the determination.

Significant tenure work in the Ngemba Ngiyampaa and Widjabal Wia-bal matters during the reporting period has resulted in a series of separate questions regarding the effect of many New South Wales tenures on native title being heard by the Court or programmed for hearing.

The Court has engaged an independent expert, funded by the representative body NTSCORP, as a consequence of a mediation between overlapping applicants and indigenous respondents in the Hunter Valley region. The final report will be filed and inform next steps for management of a regional case management approach.

Western Australia

Following the most recent consent determinations in the East Kimberley and intensive efforts to finalise aged matters in the region, 93.5 per cent of the Kimberley is now determined native title.

Intensive case management of claims in the Pilbara region has resulted in an increase in on-country mediation to narrow issues in dispute. In some matters, aspects of unresolved disputes are programmed for hearing in the next financial year. In relation to the Geraldton region, significant progress has been made in mediation to finalise a comprehensive regional agreement between the Applicant and State of Western Australia to settle four previous overlapping native title claims in the Geraldton region. This progress follows on from significant consent determinations made in November and December 2018 following mediation and intensive case management.

Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 concerned whether native title existed over an area of 32,630 square kilometres in the Goldfields Region of Western Australia. Justice Bromberg found that not all of those in the native title group had authorised the claim as the applicant contended that there were ‘multiple pathways’ (including non-descent based pathways) available to a person to acquire or possess native title rights in the claim area, however had limited the native title claim group to persons who had acquired or possessed native title rights by means of a single descent-based pathway. His Honour concluded that by limiting the authorising group to only one of the multiple pathways, there was the possibility that only a sub-set of all of the actual native title holders had authorised the claim. In light of this, Justice Bromberg declined to exercise his discretion to hear and determine the claim despite the defect in authorisation as it would prejudice the interests of persons who were not included in the claim group but may be a native title holder. Following judgment, orders were made dismissing the application.

Northern Territory

In the Northern region, on 24 October 2018, the Court made a determination of native title by consent over the town of Larrimah. This is the first time the right to take resources for any purpose (including commercial purposes) has been recognised by consent in the Northern Territory.

In the Central region, various prescribed bodies corporate have filed five revised native title determination applications seeking to amend previous determinations. These previous determinations contain ‘pastoral improvement’ clauses that reflect De Rose v State of South Australia (No 2) [2005] FCAFC 110. This was overturned by the High Court in Western Australia v Brown (2014) HCA 8 and the applications seek to reflect his change in law.

In Northern Land Council v Quall [2019] FCAFC 77, the Full Court found that a representative body cannot delegate its certification function under s 203BE(1)(b) of the Native Title Act 1993. Here, the Chief Executive Officer had signed the certificate for registration of an ILUA between the Northern Land Council and the Northern Territory of Australia. The Full Court stated that an important consideration was whether or not the power or function to be delegated involves the formation of an opinion. In this case, it did, as the representative body is required, by s 203BE(5) of the Native Title Act to include an express statement that the body holds the opinion that all reasonable efforts have been made to ensure those who may, or do, hold native title in the ILUA area have been identified and that such identified persons agree to the making of the agreement.

Assisted dispute resolution

Assisted dispute resolution (ADR) is an important part of the efficient resolution of litigation in the Court context, with cases now almost routinely referred to some form of ADR. In addition to providing a forum for potential settlement, mediation is an integral part of the Court’s case management.

In recognition of the Court’s unique model of mediation and commitment to a quality professional development program, the Court became a Recognised Mediator Accreditation Body in September 2015 and implemented the Federal Court Mediator Accreditation Scheme (FCMAS). The FCMAS incorporates the National Mediator Accreditation Standards and the majority of court-ordered mediations are conducted by registrars who are trained and accredited by the Court under the FCMAS.

In the native title jurisdiction, while native title registrars now conduct most mediations of native title matters, the Court maintains a list on its website of appropriately qualified professionals if there is a need to engage an external mediator or co-facilitate mediation.

Since the 2010–11 reporting period, the Court has provided comprehensive statistical information about referrals to ADR and the outcomes of ADR processes held during the relevant reporting period. In doing so, the Court is best able to assess the performance of its ADR program across years and to provide academics and policy makers with data upon which they may base their work.

Mediation referrals are summarised in Table 3.5. As in previous years, the data should be considered in light of various factors. Firstly, referrals to mediation or other types of ADR may occur in a different reporting period to the conduct of that mediation or ADR process. Secondly, not all referrals to mediation or the conduct of mediation occur in the same reporting period as a matter was filed. This means that comparisons of mediation referrals or mediations conducted as a proportion of the number of matters filed in the Court during the reporting period are indicative only. Thirdly, the data presented on referrals to ADR during the reporting period does not include information about ADR processes that may have been engaged in by parties before the matter is filed in the Court, or where a private mediator is used during the course of the litigation. Similarly, the statistics provided in Table 3.5 do not include instances where judges of the Court order experts to confer with each other to identify areas where their opinions are in agreement and disagreement without the supervision of a Registrar.

As shown in Table 3.5, the main practice areas where mediation referrals are made are commercial and corporations, and employment and industrial relations. Although the reporting of these statistics is by reference to NPA rather than cause of action, as in past years, the mediation referrals by matter type is broadly consistent with past years.

A collection of statistics concerning the workload of the Court by NPA is contained in Appendix 5 (Workload statistics).