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Improving access to the Court and contributing to the Australian legal system

The following section reports on the Court’s work during the year to improve the operation and accessibility of the Court, including reforms to its practice and procedure. This section also reports on the Court’s work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including the participation of judges in bodies such as the Australian Law Reform Commission and the Australian Institute of Judicial Administration, and in other law reform, community and educational activities.

An outline of the judges’ work in this area is included in Appendix 8: Judges' activities 2019-20.

Support for litigants impacted by bushfires

The Court acknowledges the devastating impact of the bushfires on communities and families across Australia, and offered support to those who had been affected and had a current or prospective matter before the Court. A national bushfire relief coordinator was appointed as a contact point for affected litigants to coordinate any requests for assistance.

Special measures relating to COVID-19

In March 2020, in response to the COVID-19 pandemic, the Court modified its practices in order to minimise in-person attendance on court premises, with the Court’s priority being the health and safety of the community, including parties, practitioners, judges and staff, and the families of all of these groups.

The Court quickly transitioned to online hearings by use of remote access technology such as Microsoft Teams. The Court upgraded its information technology infrastructure, internet bandwidth and video conference enabled courtrooms in order to hold online hearings with the necessary transcript support. Knowledge, issues and practices were shared by the judges of the Court, as they trialled online hearings, and guidance was given to litigants and the profession through various guides and communications.

The Court issued the following special measures information notes:

  • Special measures in response to COVID-19 (SMIN-1)
  • Special measures in Admiralty and Maritime: Warrants for the arrest of ships (SMIN-2)
  • Special measures in Appeals and Full Court hearings (SMIN-3), and
  • Special measures in relation to Court Attendance (SMIN-4).

From mid-April 2020, the Court was operating at 80 per cent of its courtroom capacity. The Court’s practice and procedure in relation to online hearings and its various processes, such as viewing subpoena material without the requirement for in-person attendance, continues to develop during the COVID-19 pandemic.

Hearings for detainees

For litigants in immigration detention, the prospect of conducting online hearings by remote access technology presented particular challenges. The Court worked with national and state Bar Associations to arrange pro bono referrals to counsel where a litigant did not already have representation.

eLodgment process improvements

The Court has implemented improvements to its lodgment process for the application of pseudonyms to certain protection visa proceedings. Legal representatives are encouraged to contact Registry to obtain a pseudonym before filing, which can then be used in the eLodgment system. Similar measures are being developed in relation to self-represented litigants seeking to register as a user of eLodgment in order to file proceedings.

Practice and procedure reforms

The National Practice Committee is responsible for developing and refining policy and significant principles regarding the Court’s practice and procedure. It is comprised of the Chief Justice, NPA coordinating judges and the national appeals coordinating judges, and is supported by a number of registrars of the Court.

During the reporting year, the committee met and dealt with a range of matters including:

  • considering feedback received in respect of its national practice notes, and
  • managing responsibilities and support for each NPA, including enhancing and developing national arrangements for liaison with the profession (including through court user-groups and forums in key practice areas), and developing a framework for skilled and experienced Judicial Registrar support for each NPA (including in class actions, migration and intellectual property).

Liaison with the Law Council of Australia

Members of the National Practice Committee meet with the Law Council’s Federal Court Liaison Committee to discuss matters concerning the Court’s practice and procedure, as required. The available members of the two committees met on 25 September 2019 to discuss a range of matters, including information regarding the workload of the Court and the disposition of proceedings, case management procedure, the national court framework, digital hearings, representative proceedings and policy and practice (including practice notes).

Representatives of the Court and representatives of the Law Council’s Federal Court Liaison Committee also discussed updates to the Case Management Handbook and the possible extension of the Court’s criminal jurisdiction.

Assistance for self-represented litigants

The Court delivers a wide range of services to self-represented litigants (SRLs). These services have been developed to meet the needs of SRLs for information and assistance concerning the Court’s practice and procedure.

During the reporting year, the Attorney-General’s Department continued to provide funding to LawRight, Justice Connect, JusticeNet SA and Legal Aid Western Australia to provide basic legal information and advice to SRLs in the Federal Court and the Federal Circuit Court.

These services involved providing assistance to draft or amend pleadings or prepare affidavits, giving advice on how to prepare for a hearing, advising on how to enforce a court order and dissuading parties from commencing or continuing unmeritorious proceedings. While the services are independent of the courts, facilities are provided within court buildings to enable meetings to be held with clients.

Tables 3.6, 3.7 and 3.8 provide broad statistics about the number of SRLs appearing in the Court as applicants in a matter (respondents are not recorded). As the recording of SRLs is not a mandatory field in the Court’s case management system, and the representation status of a party during the course of a proceeding may vary from time to time, statistics shown in the tables are indicative only. In the reporting year, 587 people who commenced proceedings in the Court were identified as self-represented. The majority were appellants in migration appeals.

Table 3.6: Actions commenced by SRLs during 2019–20 by registry

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

Total

SRLs

2

415

2

53

10

0

9

96

587

Percentage of total

0%

71%

0%

9%

2%

0%

2%

16%

100%

Due to rounding, percentages may not always appear to add up to 100 per cent.

Table 3.7: Proceedings commenced by SRLs in 2019–20 by cause of action

Cause of action

Total actions

% of total

Administrative law

19

3%

Admiralty

0

0%

Appeals and related actions

438

77%

Bankruptcy

19

3%

Competition law

0

0%

Consumer protection

1

0%

Corporations

8

1%

Fair work

9

2%

Human rights

7

1%

Industrial

0

0%

Intellectual property

1

0%

Migration

47

8%

Miscellaneous

20

3%

Native title

0

0%

Taxation

3

1%

Total

572

~100%

Due to rounding, percentages may not always appear to add up to 100 per cent.

Table 3.8: Appeals commenced by self-represented litigants in 2019–20 by cause of action

Cause of action

Total actions

% of total

Administrative law

8

2%

Admiralty

0

0%

Bankruptcy

18

4%

Competition law

0

0%

Consumer protection

5

1%

Corporations

2

0%

Fair work

7

2%

Human rights

9

2%

Industrial

0

0%

Intellectual property

1

0%

Migration

384

88%

Miscellaneous

4

1%

Native title

0

0%

Taxation

0

0%

Total

438

100%

Due to rounding, percentages may not always appear to add up to 100 per cent.

Direct financial counselling project in bankruptcy proceedings

With the assistance of Consumer Action in Melbourne and Uniting Communities in Adelaide, the Court has, in conjunction with the Federal Circuit Court, been able to maintain a program of targeted financial counselling assistance to SRLs in bankruptcy proceedings. Since the latter part of 2014 in Melbourne and 2018 in Adelaide, a financial counsellor sits in the courtroom in every bankruptcy list. During the COVID-19 pandemic, a financial counsellor has been available over the telephone. The registrar presiding is able to refer a SRL to the financial counsellor for an immediate confidential discussion so that the SRL better understands his or her options when faced with the prospect and consequences of bankruptcy.

In Melbourne, during the reporting year, there were 41 referrals of debtors in proceedings to financial counsellors, 38 of which have been determined. In 24 of those proceedings (63 per cent), they were resolved by consent either with the dismissal of the petition or with the making of a sequestration order. While statistics are not available from Adelaide, registrars have reported favourably about the program.

Interpreters

The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person’s inability to secure the services of an interpreter. It has therefore put in place a system to provide professional interpreter services to people who need those services but cannot afford to pay for them.

In general, the Court’s policy is to provide these services for litigants who are self-represented and who do not have the financial means to purchase the services, and for litigants who are represented but are entitled to an exemption from payment of court fees, under the Federal Court and Federal Circuit Court fees regulation (see below).

Court fees and exemption

Fees are charged under the Federal Court and Federal Circuit Court Regulation 2012 for filing documents; setting a matter down for hearing; hearings and mediations; taxation of bills of costs; and for some other services in proceedings in the Court.

During the reporting year, the rate of the fee that was payable depended on whether the party liable to pay was a publicly listed company (for bankruptcy filing and examination fees only); a corporation; a public authority (for bankruptcy filing and examination fees only); a person; a small business; or a not-for-profit association.

Some specific proceedings are exempt from all or some fees. These include:

  • human rights applications (other than an initial filing fee of $55)
  • some fair work applications (other than an initial filing fee of $74.50)
  • appeals from a single judge to a Full Court in human rights and some fair work applications
  • an application by a person to set aside a subpoena
  • an application under s 23 of the International Arbitration Act 1974 for the issue of a subpoena requiring the attendance before or production of documents to an arbitrator (or both)
  • an application for an extension of time
  • a proceeding in relation to a case stated or a question reserved for the consideration or opinion of the Court
  • a proceeding in relation to a criminal matter, and
  • setting-down fees for an interlocutory application.

A person is entitled to apply for a general exemption from paying court fees in a proceeding if that person:

  • has been granted Legal Aid
  • has been granted assistance by a registered body to bring proceedings in the Federal Court under Part 11 of the Native Title Act 1993 or has been granted funding to perform some functions of a representative body under s 203FE of that Act
  • is the holder of a health care card, a pensioner concession card, a Commonwealth seniors health card or another card certifying entitlement to Commonwealth health concessions
  • is serving a sentence of imprisonment or is otherwise detained in a public institution
  • is younger than 18 years, or
  • is receiving youth allowance, Austudy or ABSTUDY benefits.

A person who has a general exemption from paying a fee can also receive, without paying a fee, the first copy of any document in the court file or a copy required for the preparation of appeal papers.

A corporation that had been granted Legal Aid or funding under the Native Title Act 1993 has the same entitlements.

A person (but not a corporation) is exempt from paying a court fee that otherwise is payable if a registrar or an authorised officer is satisfied that payment of that fee at that time would cause the person financial hardship. In deciding this, the Registrar or authorised officer must consider the person’s income, day-to-day living expenses, liabilities and assets. Even if an earlier fee has been exempted, eligibility for this exemption must be considered afresh on each occasion a fee is payable in any proceeding.

More comprehensive information about filing and other fees that are payable, how these are calculated (including definitions used e.g. ‘not-for-profit association’, ‘public authority’, ‘publicly listed company’ and ‘small business’) and the operation of the exemption from paying the fee is available on the Court’s website. Details of the fee exemptions during the reporting year are set out in Appendix 1: Financial Statements.

Freedom of information

Information Publication Scheme

As required by subsection 8(2) of the Freedom of Information Act 1982 (FOI Act), the Federal Court has published, on its website at www.fedcourt.gov.au/ips, materials relating to the Information Publication Scheme. This includes the Court’s current Information Publication Scheme plan as well as information about the Court’s organisational structure, functions, appointments, annual reports, consultation arrangements and FOI contact officer as well as information routinely provided to the Australian Parliament.

The availability of some documents under the FOI Act will be affected by section 5 of that Act, which states that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature. Documents filed in court proceedings are not of an administrative nature; they may, however, be accessible by way of an application for inspection of court documents under the Federal Court Rules.

Information for the media and televised judgments

The Director, Public Information (DPI) is responsible for dealing with all media inquiries. These mainly relate to how to access files and requests for judgments, however duties also involve dealing with issues that can require high-level contact and coordination.

The DPI’s work requires close liaison with, and the support of, registries and judges’ chambers. The role also entails briefing associates about how the Court deals with the media, arranging camera access in cases of public interest, and contacting journalists when mistakes have been made.

In matters of extensive public interest, the Court has established online files where all documents deemed accessible are placed. This removes the need for individual applications to registry and makes it easier for journalists and court staff.

In the reporting year, such files were created for the following:

  • ABC v Kane and others, and
  • Application in the matter of Virgin Australia Holdings (Administrators Appointed).

Early in the reporting year it was revealed the Geoffrey Rush v Nationwide News online file had resulted in just under 37,000 hits from around the world, making it the most accessed online file to date.

Mainstream television coverage was permitted in the following matters:

  • Gill v Ethicon Sarl
  • Application in the matter of Virgin Australia Holdings (Administrators Appointed), and
  • Brett Cattle v Minister for Agriculture.

The DPI was also responsible for the production of an instructional video in anticipation of the Court’s first jury trial.

Community relations

The Court engages in a wide range of activities with the legal profession, including regular user group meetings. The aim of user groups is to provide a forum for court representatives and the legal profession to discuss existing and emerging issues, provide feedback to the Court and act as a reference group.

Seminars and workshops on issues of practice and procedure in particular areas of the Court’s jurisdiction are also regularly held.

In 2019–20, members of the Court were involved in seminars relating to arbitration, employment and industrial relations, commercial law, admiralty and maritime, tax, and class actions.

The Canberra registry hosted a biannual stakeholder meeting for legal stakeholders, including the ACT Bar Association, ACT Law Society, Canberra region legal practitioners, Legal Aid ACT, ACT Women’s Legal Services and Child Youth Protection Services. Weekly meetings with this stakeholder group (moving to fortnightly throughout the COVID-19 period) continued.

Working with the Bar

Registries across the country hosted advocacy sessions and a number of bar moot courts and moot competitions and assisted with readers’ courses during the year. The South Australian registry hosted Bar Readers courses in October, November and December 2019. The New South Wales registry hosted a silks ceremony on 28 October 2019. The Queensland registry hosted a silks ceremony in December 2019.

User groups

User groups have been formed along NPA lines to discuss issues related to the operation of the Court, its practice and procedure, to act as a reference group for discussion of developments and proposals, and as a channel to provide feedback to the Court on particular areas of shared interest. During the reporting year, user groups met both nationally and locally in a number of practice areas.

Legal community

During the year, the Court’s facilities were made available for numerous events for the legal community including:

  • Brisbane – the Professor Michael Whincop Memorial Lecture, the International Humanitarian Law Committee of the Red Cross, the UN Day Lecture, the Richard Cooper Memorial Lecture, and the international arbitration lecture.
  • Canberra – co-location of Child and Youth Protection Services and the AFP commenced, however was postponed due to COVID-19. Employees have been appointed and inducted and will commence as soon as face-to-face services re-commence.
  • Darwin – a Federal Court mediation suite was utilised for a Family Court pilot program (July 2019 until March 2020) for parties to attempt to negotiate orders rather than a child being placed in care in the Youth Court.
  • Hobart – the UN Day Lecture.
  • Melbourne – the Australian Academy of Law seminar, the UNCCA UN Day Lecture, a National Commercial Seminar ‘Recent Developments in Misleading and Unconscionable Conduct’, National Seminar ‘The Boundaries of Refugee Protection: A Comparative View’, and Judges in Conversation ‘Limitations on Judicial Review: Where To From Here?’.
  • Perth – the national AMTAC address, the Richard Cooper Memorial Lecture, the John Emerson AM oration, an online web conference ‘Cruise ships, COVID-19 and Consumers’, CIArb Australia seminars, a national VCF seminar on parentage, parenthood and parental responsibility and UN Day, which was chaired by McKerracher J.
  • Sydney – the Richard Cooper Memorial Lecture, CIArb seminar, the Australian Law Reform Commission Corporate Crime Seminar, the University of Sydney Jessup Team Moots, Minds Count Lecture, the Australian Association of Constitutional Law lecture, the AMTAC address, and the Australian Academy of Law joint symposium.

Complaints

During the reporting year, complaints in relation to registry services were made to the Court regarding its procedures, rules, forms, timeliness or courtesy to users. For the purpose of collecting data about complaints, several discrete reports made by a complainant about a single issue or a set of related issues were recorded as a single complaint.

There were five complaints in the reporting year. This figure is down from 12 complaints recorded last year. This figure does not include complaints about the merits of a decision by a judge, which may only be dealt with by way of appeal, or complaints about the merits of a decision of a registrar, which may only be dealt with by way of review.

Information about the Court’s feedback and complaints processes can be found at www.fedcourt.gov.au/feedback-and-complaints.

Involvement in legal education programs and legal reform activities (contribution to the legal system)

The Court is an active supporter of legal education programs, both in Australia and overseas. During the reporting year, the Chief Justice and many judges:

  • presented papers, gave lectures and chaired sessions at judicial and other conferences, judicial administration meetings, continuing legal education courses and university law schools
  • participated in Bar reading courses, Law Society meetings and other public meetings, and
  • held positions on advisory boards or councils or committees.

An outline of the judges’ work in this area is included in Appendix 8: Judges' activities 2019-20.

National standard on judicial education

In 2010 a report entitled ‘Review of the National Standard for Professional Development for Australian Judicial Officers’ was prepared for the National Judicial College of Australia. The Court was invited and agreed to adopt a recommendation from that report to include information in the Court’s annual report about:

  • participation by members of the Court in judicial professional development activities
  • whether the proposed standard for professional development was met during the year by the Court, and
  • if applicable, what prevented the Court meeting the standard (such as judicial officers being unable to be released from court, lack of funding etc.).

The standard provides that judicial officers identify up to five days a year on which they could participate in professional development activities.

During 2019–20 the Court offered the following activities:

  • eleven education sessions were scheduled at the judges’ meeting on 27–29 November 2019 (in Melbourne)
  • judges were offered the opportunity to attend the Supreme Court and Federal Court judges’ conference.

The judges’ meeting scheduled for April–May 2020 in Adelaide did not proceed, in light of the COVID-19 pandemic.

Education sessions offered at the judges’ meetings in 2019–20 included:

  • workshop with the profession on case management of regulatory civil litigation
  • session for judges under three years
  • introduction to judicial registrars
  • the Federal Court’s work in the Pacific: the Court’s international programs
  • judicial management of emotion
  • sleep: the new health frontier
  • recent developments in constitutional law
  • Federal Court and Law Council of Australia joint conference on competition law, including sessions on:
    • Current perspective on the role of patent law in stimulating innovation
    • What does an IP regime need to be useful? Legal and economic perspectives from Europe, the United States and the Asia Pacific region
    • Trade marks, designs and patent oppositions: new technologies and areas of emerging interest
    • Copyright authorisation, safe harbour regimes; Hot topics in trade marks; Enforcement of foreign IP rights in Australia.

In addition to the above, judges undertook other education activities through participation in seminars and conferences. Some of these are set out in Appendix 8: Judges' activities 2019-20.

In 2019–20, due to the COVID-19 pandemic, the Federal Court was unable to provide five days of professional development activities for its judicial officers.

Work with international jurisdictions

The Federal Court has continued to collaborate with a number of courts in Asia and the Pacific this year. We have been able to support local reform and development objectives through a number of activities involving courts in the Asia–Pacific region.

As a result of COVID-19, a number of projects and activities to support governance, access to justice and the rule of law within neighbouring judiciaries have been postponed. However, by collaborating with courts, across the Asia–Pacific region, the Court was able to contribute to a number of our partners’ important reform and development priorities.

National and Supreme Court of Papua New Guinea

In December 2019, the Chief Justices of Papua New Guinea and the Federal Court signed a third, five-year Memorandum of Understanding (MOU). The MOU aims to facilitate further understanding of each nation’s laws and commonalities of international legal standards, as well enhancing the capacity of the Supreme and National Courts of Papua New Guinea to fulfil their mandate.

The Court’s Executive Director of Service Reform visited Port Moresby in July 2019 to conduct training to assist senior managers to understand the complexities of organisational change, to prepare for, and to lead that change. The leadership group is now in the process of implementing the changes they have responsibility for, with follow-up support anticipated in the second half of the calendar year.

In October 2019, Papua New Guinea’s Efficiency Task Force visited Sydney. The Task Force discussed the findings of a Judicial Workload Survey against their current case management system and capacity. The visit closed with an interim report and recommendations for case management and efficiency reforms.

High Court of the Solomon Islands

In March, the National Judicial and District Registrar visited Munda in the Western Province of the Solomon Islands. The visit was part of the Court’s Australian Government-funded project (Department of Foreign Affairs and Trade) to support the Magistracy. Based on the priority needs identified by the Chief Magistrate, the activities for the remainder of the project were agreed. They will be implemented in the second half of the calendar year.

Regional collaborations

The Court has continued to manage the New Zealand government-funded Pacific Judicial Strengthening Initiative (PJSI). The program aims to build fairer societies by enabling the provision of more accessible, just, efficient and responsive justice services across 15 Pacific Island Courts. PJSI supports five thematic areas:

  1. improved capacity of judicial leadership
  2. marginalised and vulnerable groups are better able to access justice in and through courts
  3. partner courts operate with a higher level of professionalism
  4. partner courts exhibit more responsive, just behaviour and treatment that is fair and reasonable, and
  5. cases are disposed of more efficiently.

PJSI has this year delivered the following activities:

  • assessment and Support Design Visit, Fiji
  • 7th, 8th and 9th Initiative Executive Committee Meetings
  • human rights visit, Solomon Islands
  • regional court data management workshop, Vanuatu
  • ICT visit, Nauru
  • gender and family violence visit, Vanuatu
  • career pathway visit, Papua New Guinea (PNG)
  • court data management follow-up webinar
  • access to justice visit, Kiribati
  • local efficiency visit, Nauru
  • lay judicial officers webinar
  • COVID-19 webinar, and
  • opening the Courts’ safely webinar.

PJSI has also approved 28 Leadership Incentive Fund grants for locally led activities, and commenced several remote engagements. This brings the total of activities delivered since its commencement in 2017 to 77, plus 61 locally delivered activities supported by PJSI. Activities have involved and benefited over 3,000 people.

To ensure PJSI remains responsive to partner courts’ priority needs, particularly those emerging as a result of the pandemic, the Court re-designed the remaining year of PJSI. With the re-design approved by PJSI’s governance committee, a number of remote support activities have commenced.

Australian Competition and Consumer Commission

The Court and the ACCC entered into an MOU in June 2020, to add to a series of ‘Judicial Primers’. The Primers will be published by the Organisation for Economic Co-operation and Development for the benefit of competition law judges across Association of South Asian Nations (ASEAN) member states.

Seminars and visitors to the Court

During the year, the Court hosted the following seminar and visitors:

  • The Court arranged for Dr Livingston Armytage AM (Centre for Judicial Studies) and Dr Anna Dziedzic (University of Hong Kong) to attend the 2019 Federal Court Judges’ Meeting in November to speak at a session entitled ‘The Federal Court’s Work in the Pacific: the Court’s International Programs’.
  • In July 2019, the Court hosted a delegation of judges from Thailand with focus on intellectual property law. The judges had been attending a workshop on intellectual property law at the University of Melbourne Law School. The delegation included the Hon Mr Nopporn Bhotirung-Siyakorn, Vice-President of the Supreme Court; the Hon Mr Nipan Chuysakul, Presiding Justice of the Supreme Court; the Hon Mr Chalit Katinasmit, Justice of the Supreme Court; the Hon Ms Sicha Nagavajra, Chief Justice of the Central Intellectual Property and International Trade Court; the Hon Mr Rukgiat Wattanapong, Justice of the Supreme Court; the Hon Ms Benjamas Punyadilok, Justice of the Supreme Court; the Hon Mr Sophon Rojanonth, Senior Justice of the Supreme Court; and a number of other senior Thai judges. The delegation discussed the Court’s conduct of intellectual property cases with Justices Kenny and Moshinsky and District Registrar Luxton and Registrar Gitsham.
  • In August 2019, the Court hosted 33 delegates from Thailand. The delegation comprised three justices of the Constitutional Court, including HE Mr Nurak Marpraneet, President, along with high-ranking executives from the Office of the Constitutional Court and other Thai institutions and companies. This visit was part of Thailand’s ‘Rule of Law Democracy Class No 7’. The delegation discussed the Court’s roles and responsibilities and met with Justice Robertson.
  • On 12 September 2019, the Court hosted a 35-person delegation of Thai judges, which included two judges from the Supreme Court of the Kingdom of Thailand. The delegation was hosted by Judicial Registrar Ryan and the Melbourne Law School and was given an overview of bankruptcy by Judicial Registrar Ryan and a demonstration of the Digital Court File.
  • In September 2019, the Court hosted a visiting Austrian judge through the International Association of Supreme Administrative Jurisdiction’s Judicial Exchange Program. Dr Markus Thoma of the Supreme Administrative Court visited the Court in Sydney from 9 to 13 September. Dr Thoma met with Justice Griffiths and Justice Driver for an overview of jurisdiction and court process.
  • In February 2020, a Japanese delegation comprising Justice Yuko Myazaki and two other judges of the Supreme Court, visited the Court. The purpose of the visit was to gain a deeper understanding of Australia’s judicial system and build relationships with Australian courts. The delegation met with Chief Justice Allsop and Justice Rares and were shown and discussed the operation of an electronic courtroom.