Litigation in the Federal Court [1 ed.] 9780409333923, 0409333921

Table of contents :
Full Title
Dedication
Copyright
Foreword
Acknowledgments
Table of Cases
Table of Statutes
Abbreviations and Glossary
Introduction
Table of Contents
Chapter 1 Case Management in the Federal Court: The ‘Overarching Purpose’
Chapter 2 Pre-Litigation Orders
Chapter 3 Commencing Proceedings
Chapter 4 Representation, Parties and Interveners
Chapter 5 Filing and Service of Documents
Chapter 6 Conducting Proceedings
Chapter 7 Court and Registry Transfers
Chapter 8 Concluding Proceedings Early
Chapter 9 Hearings
Chapter 10 Judgments and Orders
Chapter 11 Appeals and Reviews
Chapter 12 Costs Recovery
Appendix Sections 37M and 37N of the FCA Act
Bibliography
Index

Citation preview

LITIGATION IN THE FEDERAL COURT Promoting the overarching purpose

Natalie Cujes LLB/BA (Hons) (ANU), PhD (Law) (UoW) Legal Academic, University of New South Wales, Canberra Principal, Cujes Legal Adjunct Associate Professor (Law), University of Canberra Barrister of the Supreme Court of New South Wales, Barrister and Solicitor of the High Court of Australia and of the Supreme Courts of the Australian Capital Territory and Victoria

LexisNexis Butterworths Australia 2016

Za tebe, Dad

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ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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Cujes, Natalie. Litigation in the Federal Court. 9780409333923 (pbk). 9780409333930 (ebk). Includes bibliographical references and index. Australia. Federal Court. Actions and defenses — Australia. Procedure (Law) — Australia. 347.94035

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

FOREWORD The Federal Court of Australia has, from its very beginning, taken an active case management approach with regards to matters commenced in its jurisdiction, in order to ensure the ‘orderly and expeditious discharge of the business of the Court’. The procedures, rules, and methods which have been developed by the Court over the past, almost forty years demonstrate this central commitment to facilitating the just, quick, cheap and efficient resolution of disputes for all parties. Most recently it has been reflected in the development of the National Court Framework, pursuant to which the work of the Federal Court is to be reorganised according to practice areas and subareas, rather than by registry location. In turn this framework is intended to reflect the truly national nature of the Court, to ensure that greater national consistency, clarity and simplicity is achieved in federal practice, to allow a degree of specialisation to develop amongst practitioners, to develop the confidence of the legal community in areas requiring a degree of specialised skill and knowledge, and for there to be appropriate utilisation of judicial specialisation and expertise. It is vital therefore that legal students, academics, and practitioners, as well as others participating within the federal legal system, understand these overarching purposes of the Federal Court, and how its commitment to such ideas has influenced, in practical terms, its rules and procedures. This research monograph by Dr Natalie Cujes seeks to do just that. In clear and detailed terms it sets out the nature of the Federal Court’s commitment to justice, efficiency, and the minimisation of legal costs, and how this objective has, in turn, been expressed in a number of practical ways, including through the use of pre-litigation orders, establishment of procedures for the filing and

service of documents, and the promotion of methods of alternative dispute resolution. This book is a valuable resource for all persons interested in the conduct of litigation within the Federal Court system and I have no doubt that it will be of considerable assistance to current and future practitioners, academics and students. The Hon. James Leslie Bain Allsop AO Chief Justice of the Federal Court of Australia 29 October 2015

ACKNOWLEDGMENTS A wonderful team at LexisNexis made it possible for me to write this book. Thank you to my commissioning editor, Jennifer Burrows, for her continuous encouragement and good humour. My eternal gratitude goes to Annabel Adair, for all of her diligent editing assistance, patience and wise counsel. I am also grateful to Geraldine MacLurcan for much kindness and support during the production process. Any errors in this book are of course my own. To the Hon James Leslie Bain Allsop AO, Chief Justice of the Federal Court of Australia, I extend my deepest appreciation for providing the Foreword. Thank you also to Fiona Piercy of the Chief Justice’s Chambers for all of her assistance. The author and publisher are grateful to the copyright holders of material contained in this book. In particular, thank you to the Federal Court of Australia for its kind permission to reproduce its various material, and to the High Court of Australia for permission to quote from its published judgments. It is acknowledged that much of the material in this book may be helpfully accessed on the AustLII website at . All legislative material is reproduced by permission of the Commonwealth of Australia (but does not purport to be the official or authorised version). It is subject to Commonwealth of Australia copyright. While care has been taken to ensure proper acknowledgement of any third party’s copyright in material in this book, the publisher tenders its apology for any accidental infringement. The publisher would be pleased to come to a suitable arrangement with the rightful copyright holder in each case.

TABLE OF CASES References are to page numbers 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 …. 10.8

A A on behalf of B v New South Wales (Dept of Education and Training) (No 2) [2013] FCA 551 …. 2.8, 4.12 AAA Embroidery & Screen Printing Pty Ltd v John Dan [2006] FCA 1846 …. 2.26 Accor Australia and New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2013] FCA 379 …. 8.27, 8.28 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 …. 9.5, 10.8 Adamas v The Honourable Brendan O’Connor (No 3) [2012] FCA 365 …. 12.16 Adams v Dickeson [1974] VicRp 10; [1974] VR 77 …. 6.40 Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 …. 10.17 Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 …. 8.19 Ahern v Deputy Commissioner of Taxation [1987] FCA 312 …. 9.5 Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 …. 1.24 Air Pacific Ltd v Transport Workers Union of Australia (1993) 40 FCR 1 …. 6.33

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 …. 6.23, 6.27 Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 …. 10.13 Ali v Collection Point Pty Ltd [2010] FCA 1066 …. 10.17 — v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 …. 9.5 Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29 …. 11.14 — v — (No 4) [2013] FCA 1044 …. 6.23, 6.24 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 13) [1995] FCA 1459 …. 12.23 Alstrom Power Ltd v Eraring Energy [2009] FCA 681 …. 2.17 Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270 …. 7.13 Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 4) [2013] FCA 418 …. 12.8 Amir v Minister for Immigration and Citizenship [2012] FCA 879 …. 4.12 — v — [2012] FCA 1102 …. 4.12 Ammerlaan v The Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164 …. 6.23 AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2006] FCAFC 90 …. 1.17 Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) [2011] FCA 1484 …. 9.19 Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215 …. 9.17 Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 388 …. 1.5 Anglo Coal (Dawson Management) Pty Ltd v Greig [2011] FCA 941 …. 2.13 Ann Street Mezzanine Pty Ltd v Beck [2011] FCA 1328 …. 6.37

— v — [2013] FCA 960 …. 12.24 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55; [1976] 1 All ER 779; [1976] 2 WLR 162 …. 2.24 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 …. 1.5, 1.7, 3.12, 6.9, 6.20, 9.5, 10.7 APC Logistics Pty Ltd v CJ Nutracon Pty Ltd [2007] FCA 136 …. 8.5 Apotex Pty Ltd v AstraZeneca AB [2011] FCA 1520 …. 2.31, 3.6 — v — (No 2) [2012] FCA 142 …. 2.31 — v Les Laboratoires Servier (No 2) [2012] FCA 748 …. 1.20 — v — (No 6) [2012] FCA 745 …. 9.2 — v Pfizer Ireland Pharmaceuticals [2014] FCA 1150 …. 5.42 Arico Trading International Pty Ltd v Kimberley-Clark Aust Pty Ltd [1999] FCA 275 …. 12.6 Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 …. 11.19 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 …. 2.24, 2.26 — v — [2007] FCA 943 …. 9.2 Armit v Jaminex Ltd (No 4) [2013] FCA 889 …. 9.14 Armstrong v Australian Community Pharmacy Authority [2012] FCA 577 …. 8.11 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 3) [2014] FCA 758 …. 1.6 Asden Development Pty Ltd (in liq) v Dinoris [2015] FCA …. 9.7 Ashby v Commonwealth [2012] FCA 640 …. 3.5 — v — (No 3) [2012] FCA 788 …. 8.16, 8.23 — v — (No 4) [2012] FCA 1411 …. 3.5, 3.8 — v Slipper (No 2) [2014] FCAFC 67 …. 10.7, 12.1, 12.2, 12.7

Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR 284 …. 6.42 Assad v Minister for Immigration and Citizenship [2008] FCA 1039 …. 7.6 AstraZeneca AB v Alphapharm Pty Ltd [2014] FCA 9 …. 2.13 Attorney-General v Wentworth (1988) 14 NSWLR 481 …. 8.18 Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 6) [2009] FCA 1465 …. 7.3 Auss Metals Pty Ltd v Express Mobile Services Australia Pty Ltd [2015] FCA 745 …. 1.6, 1.9 Austal Ships Pty Ltd v Incat Australia Pty Ltd [2009] FCA 368 …. 6.27 — v — (No 3) [2010] FCA 795 …. 6.42 — v Stena Rederi Aktiebolag [2004] FCA 302 …. 7.3 — v — [2009] FCAFC 179 …. 10.9 Austcorp Project No 2 Pty Ltd v LM Investment Management Ltd; Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq) [2013] FCA 883 …. 4.9 Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72 …. 10.7 Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) [2012] FCAFC 103 …. 1.2 — v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106; [1986] HCA 46 …. 10.15, 10.17 Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 …. 6.16 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 …. 2.2 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 …. 2.2 Australian Coal and Shale Employees’ Federation v Commonwealth [1953] HCA 25 …. 12.25 Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd

(No 2) [2015] FCA 272 …. 6.13 — v Adepto Publications Pty Ltd [2013] FCA 247 …. 10.2 — v Air New Zealand (No 14) [2015] FCA 378 …. 6.44 — v April International Marketing Services Australia Pty Ltd (No 7) [2010] FCA 902 …. 3.5 — v Australia and New Zealand Banking Group Ltd [2008] FCA 1623 …. 6.16 — v — [2010] FCA 230 …. 6.40, 6.41, 6.42 — v Australian Egg Corporation Ltd [2014] FCA 1010 …. 7.3 — v Australian Safeway Stores Pty Ltd [1998] FCA 237 …. 6.38 — v Baxter Healthcare Pty Ltd [2005] FCA 1109 …. 11.3 — v BMW (Aust) Ltd (No 2) [2003] FCA 864 …. 10.13 — v CG Berbatis Holdings Pty Ltd [1999] FCA 1151 …. 4.16 — v Chaste Corporation Pty Ltd (No 2) [2012] FCA 134 …. 10.14 — v Craftmatic Australia Pty Ltd [2009] FCA 972 …. 6.15 — v Dataline.Net.Au Pty Ltd [2006] FCA 1427 …. 8.17 — v Emerald Ocean Distributors Pty Ltd [2002] FCA 401 …. 8.28 — v FChem (Aust) Ltd [2008] FCA 344 …. 10.2 — v Fila Sport Oceania Pty Ltd [2003] FCA 430 …. 7.3 — v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 …. 6.43 — v Flight Centre Ltd [2012] FCA 1161 …. 4.13 — v — (No 3) [2014] FCA 292 …. 1.20, 5.7, 6.15, 6.16 — v Golden West Network Pty Ltd [1997] FCA 792 …. 6.20 — v Hughes [2001] FCA 38 …. 10.15 — v INFO4PC.com Pty Ltd [2002] FCA 949 …. 10.17 — v Kokos International Pty Ltd [2007] FCA 2035 …. 5.36 — v Leahy Petroleum Pty Ltd [2007] FCA 794 …. 6.43

— v Metcash Trading [2012] FCAFC 55 …. 8.8 — v MSY Technology Pty Ltd [2012] FCAFC 56 …. 4.10 — v Nonchalant Pty Ltd (in liq) [2013] FCA 605 …. 9.14 — v Pacnet Services Ltd [2007] FCA 264 …. 2.13 — v Pauls Ltd [2002] FCA 71 …. 7.3, 7.4 — v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18 …. 10.2 — v Samton Holdings Pty Ltd [2000] FCA 1201 …. 9.7 — v Shell Co of Australia Ltd [1999] FCA 212 …. 6.39 — v Woolworths (South Australia) Pty Ltd (t/as Mac’s Liquor) (2003) 198 ALR 417; [2003] FCA 530 …. 10.2 Australian Consolidated Press Ltd v Morgan (1964-1965) 112 CLR 483 …. 10.15, 10.17 Australian Co-operative Foods Ltd v National Foods Milk Ltd [1998] FCA 376 …. 7.2 Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013 …. 8.28 Australian Equity Investors, An Arizona Ltd Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100 …. 10.8 Australian Federal Police v Carson [2005] FCA 101 …. 9.9 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2003] FCAFC 226 …. 11.12 — v Fair Work Australia (No 2) [2012] FCAFC 138 …. 12.2 Australian Mud Company Pty Ltd v Cortell Pty Ltd (No 3) [2012] FCA 778 …. 6.23, 6.27 — v — (No 4) [2013] FCA 567 …. 10.8, 12.23 Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375 …. 1.24 Australian Prudential Authority v Siminton [2006] FCA 140 …. 2.2 — v — (No 10) [2007] FCA 1814 …. 10.16

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 …. 10.8 — v Australian Property Custodian Holdings Ltd (recs and mgrs apptd) (in liq) (controllers apptd) (No 2) [2013] FCA 409; (2013) 213 FCR 289 …. 3.12, 6.19 — v Citigroup Global Markets Australia Pty Ltd (No 3) [2007] FCA 393 …. 4.13 — v Endresz [2014] FCA 786 …. 4.5 — v Kobelt (No 2) [2014] FCA 1118 …. 6.16, 6.17 — v Matthews [1999] FCA 706 …. 9.4 — v Matthews [1999] FCA 803 …. 10.17 — v P Dawson Nominees Pty Ltd [2009] FCAFC 183 …. 11.7 — v Reid [2005] FCA 1274 …. 10.17 Australian Securities and Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 14) [2007] FCA 310 …. 1.24 Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 …. 6.16 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 …. 9.19, 10.7, 10.8, 11.17 Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 46 …. 4.6 — v — [2014] FCA 314 …. 11.35 — v — (No 2) [2014] FCA 444 …. 12.14 AWB Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 …. 8.28

B Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136; 182 ALR 264; [2001] FCA 60 …. 2.13 — v Marinoff [1971] HCA 49 …. 11.17

Bannister v Victoria [2012] FCA 1341 …. 4.12 Baranski v Comcare [2012] FCA 925 …. 11.26, 11.29 Barnes v Forty Two International Pty Ltd (No 2) [2015] FCAFC 19 …. 8.8 Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429 …. 6.20 Barton v Malcolm Johns Legal Pty Ltd [2014] FCA 1057 …. 10.13 Bass v Permanent Trustee Co Ltd [1999] HCA 9 …. 8.28 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 …. 8.22 Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22 …. 7.3 Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746 …. 2.18, 2.23 Beach Petroleum NL v Johnson (No 2) [1995] FCA 1250 …. 12.14 Beaman v Bond [2013] FCA 534 …. 7.12 Becwell Legal Services Pty Ltd, Re; Griffin Energy Group Pty Ltd (Subject to Deed of Company Arrangement) v McMaster [2011] FCA 1501 …. 6.35 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 …. 2.21 Beling v Sixty International SA (No 2) [2015] FCA 355 …. 12.14 Bell v Steele (No 3) [2012] FCA 246 …. 12.12 Bell Wholesale Co Pty Ltd v Gates Export Corporation [1984] FCA 34 …. 12.11 BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 …. 7.12, 7.13 BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 …. 10.17 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) [2009] FCA 1448 …. 12.10 Bienstein v Beinstein [2003] HCA 7; (2003) 195 ALR 225 …. 10.4

Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No 2) [2008] FCA 1761 …. 9.19 Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217 …. 11.16 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 …. 11.29 Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881 …. 8.8 Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 133 …. 6.7 — v — [2012] FCA 506; (2012) 290 ALR 288 …. 12.14 Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 …. 11.24 BJ International Ltd v Asghar (No 2) [2013] FCA 580 …. 8.17 Black and Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737 …. 12.14 Blues Pty Ltd v Deputy Commissioner of Taxation [2012] FCA 320 …. 8.28 Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd [2014] FCA 637 …. 10.15 — v — [2014] FCA 1066 …. 12.17, 12.18 Bohonko v Sterjov [2007] FCA 1717 …. 10.17 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 …. 8.24, 8.25 Bovis Lend Lease v Construction, Forestry, Mining and Energy Union [2009] FCA 194 …. 10.17 Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 …. 3.12, 4.9 BP Australia Ltd v Amann Aviation Pty Ltd [1996] FCA 491 …. 7.12 Bradken Ltd v Norcast S.ár.L [2013] FCAFC 123 …. 11.18 Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 476 …. 9.7 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 …. 11.13 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 …. 3.12

Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373; [2004] FCAFC 270 …. 2.24 British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065 …. 3.11, 5.33 — v — (No 2) [2013] FCA 34 …. 7.3 — v — (No 4) [2013] FCA 742 …. 4.4 British American Tobacco Australia v Secretary, Department of Health & Ageing [2011] FCA 718 …. 9.6 British Steel Corp v Granada Television Ltd [1981] AC 1096; [1981] 1 All ER 417 …. 2.10 Britten v Western Australia [2001] FCA 1256 …. 9.16 Bromet v Oddie [2002] FCA 1574 …. 12.4 — v — [2003] FCAFC 213 …. 12.4 Brooks on behalf of the Mamu People v Queensland (No 3) [2013] FCA 741 …. 6.18 Brooks Sports Inc v Paul’s International Pty Ltd (No 1) [2011] FCA 999 …. 2.26 Brosnan v Katke (No 2) [2015] FCA 386 …. 1.20 Brown v Health Services Union (No 4) [2012] FCA 1376 …. 5.42 Browne v Dunn (1894) 6 R 67 …. 1.5 Bruce v Odhams Press Ltd [1936] 1 KB 697 …. 6.17 Buchanan v TAL Life Ltd [2015] FCA 42 …. 8.27, 8.28 Buckee v Commonwealth [2014] FCA 242 …. 7.13 Budby on behalf of the Barada Barna People v Queensland (No 2) [2013] FCA 314 …. 8.22 Buggy v Reinisch [2010] FCA 917 …. 1.5 Build-A-Bear Workshop Inc v The Bear Kid’s Workshop Pty Ltd [2002] FCA 1192 …. 7.4 Bullock v London General Omnibus Co [1907] 1 KB 264 …. 12.10

Bupa Australia Pty Ltd v iSelect Ltd (No 1) [2012] FCA 587 …. 6.5, 6.23, 6.26 — v iSelect (No 2) [2012] FCA 1277 …. 4.9 Burke v Comcare [2014] FCA 169 …. 11.30 Burrup Fertilisers Pty Ltd (recs and mgrs apptd) v Oswal (No 7) [2012] FCA 1185 …. 6.38 Button v CSL Ltd [2014] FCA 601 …. 2.7, 2.8 BWK Elders (Aust) Pty Ltd v Westgate Cool Co Pty Ltd [2002] FCA 88 …. 6.16 Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 …. 12.14 — v Jokona Pty Ltd [2002] FCA 41 …. 6.21 Byrns v Davie [1991] VicRp 93 …. 12.5

C C2C Investments Pty Ltd, Re; C2C Investments Pty Ltd v Leigh (No 3) [2012] FCA 680 …. 8.18 C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 …. 2.13, 2.17 Caason Investments Pty Ltd v Cao [2014] FCA 1410 …. 9.2 Caboolture Park Shopping Centre Pty Ltd (in liq) and White Industries (Qld) Pty Ltd v Flower and Hart (A Firm) [1993] FCA 471; (1993) 117 ALR 253 …. 4.2 Cachia v Hanes [1994] HCA 14 …. 12.13 Cahill v Construction Forestry, Mining and Energy Union (2006) 151 IR 41 …. 2.2 Calderbank v Calderbank [1975] All ER 333 …. 8.7, 12.10 Callegher v Australian Securities and Investments Commission [2007] FCA 482 …. 11.24 Cameron v McBain [1948] VLR 245 …. 9.2 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010]

FCA 398 …. 10.8 Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23 …. 12.14 Caporale v Deputy Commissioner of Taxation [2013] FCA 427 …. 8.2 Cappuccio v Australia & New Zealand Banking Group Ltd [1999] FCA 1188 …. 2.17 Carantinos v Magafas [2008] FCA 1107 …. 7.9 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 …. 2.18 Carnegie Corporation Ltd v Pursuit Dynamics Plc (2007) 162 FCR 375; [2007] FCA 1010 …. 2.14, 2.32 Carnell v Mann [1998] FCA 1566 …. 2.15 Carter v Stubbs (1880) 6 QBD 116 …. 5.7 Carter; Re Spec FS NSW Pty Ltd (in liq) [2013] FCA 1027 …. 3.12 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 …. 2.2 Cavanagh v Bank of New Zealand [1990] FCA 125 …. 10.5 CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 …. 8.27 CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 …. 12.11 CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168 …. 10.16 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 …. 6.18 CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279; [2001] FCA 1223 …. 2.13 Change Group International Plc v City Exchange Mart Pty Ltd [2012] FCA 1188 …. 6.35 Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 …. 12.14 Chevron Australia Pty Ltd v The Maritime Union of Australia [2015] FCA

376 …. 6.29 Chien v Minister for Immigration and Citizenship [2013] FCAFC 124 …. 11.14 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 …. 8.6 Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360 …. 11.33 Christodoulou v Disney Enterprises Inc [2006] FCA 902 …. 11.20 Christou v Stantons International Pty Ltd [2010] FCA 1150 …. 6.20 Churche v Australia Prudential Regulation Authority [2006] FCA 613 …. 2.15 Citigroup Pty Ltd v Mason (2008) 171 FCR 96; 250 ALR 7; [2008] FCAFC 151 …. 11.18 Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920 …. 9.5 — v — (No 5) [2006] FCA 1672 …. 12.11 City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271 …. 6.24 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 …. 11.29 Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd [2000] FCA 389; (2000) 97 FCR 313 …. 6.20 Clasul Pty Ltd v Commonwealth Bank of Australia [2014] FCA 1133 …. 3.3 Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 …. 9.14 — v — (No 3) [2013] FCA 1326 …. 12.14 Clement v Comcare [2008] FCA 1780 …. 8.26 Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204 …. 6.24 Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd [2005] FCA 1135 …. 9.2 Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589; 55 ALR 143;

[1984] HCA 44 …. 10.5 Coal of Africa Ltd v Sergeant (No 2) [2012] FCA 1169 …. 2.19 Coca-Cola Company v Pepsico Inc [2011] FCA 1069 …. 6.23 Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 …. 12.15 Collins v Administrative Appeals Tribunal [2007] FCAFC 116 …. 11.29 — v AMP Superannuation Ltd [2000] FCA 1110 …. 9.7 Combis (Trustee) v Spottiswood [2011] FCA 1082 …. 5.33 Comcare v John Holland Rail Pty Ltd [2010] FCA 981 …. 9.4 — v — (No 3) [2001] FCA 164 …. 9.7 — v — (No 5) [2011] FCA 622 …. 1.5, 6.34 — v Simmons (No 2) [2014] FCAFC 44 …. 12.4 Commissioner of Taxation v Crown Insurance Services Ltd (No 2) [2012] FCAFC 182 …. 8.8 — v Edgewater Estates Ltd [2009] FCA 611 …. 2.21 — v Residence Riverside Proprietary Limited (as Trustee for the D & J Discretionary Trust and as Trustee for the D & J Investment Trust) [2013] FCA 720 …. 7.13 — v Resource Capital Fund III LP [2010] FCA 1247 …. 2.22 — v Zeitouni [2013] FCA 1011 …. 3.11, 5.36 Commissioner of the Australian Federal Police v Zhao [2015] HCA 5 …. 10.14 Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453 …. 11.9, 11.12 — v Northern Land Council (1991) 30 FCR 1; 103 ALR 267 …. 6.25 — v Verwayen (1990) 170 CLR …. 9.19 Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 …. 8.25

— v Finance Sector Union of Australia (2003) 124 IR 453 …. 9.2 — v Pattison [2012] FCA 1397 …. 4.9 — v Rigg [2001] FCA 590 …. 9.4 — v Walker [2012] FCAFC 68; (2012) 289 ALR 674 …. 11.18 Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593 …. 6.16 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 …. 6.24 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 …. 6.21 Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 2) [2012] FCA 92 …. 10.8 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 …. 6.23 — v — (No 2) [2012] FA 707 …. 6.35, 6.38, 6.39 — v — (No 3) [2012] FCA 61 …. 6.38 — v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237 …. 11.15 — v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404 …. 10.8, 10.9 — v Orica Australia Pty Ltd [2014] FCA 592 …. 2.13 — v Pilbara Iron Company Services Pty Ltd (No 3) [2012] FCA 697 …. 3.3, 3.5 — v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 …. 6.24, 6.29 Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR 40-887 …. 9.4 Conway v Mercedes-Benz Australia/Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72 …. 6.17 Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 237 ALR 714 …. 11.15

Costin v Duroline Products Pty Ltd [2013] FCA 501 …. 2.10, 2.13, 2.32 Cottrell v Nicholls [2004] FCA 102 …. 10.8 — v Wilcox [2001] FCA 866 …. 11.24 Coutts, Andrew Reid v Ronstan International Pty Ltd [1996] FCA 471 …. 7.12, 7.13 Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 …. 10.17 Cranney v National Australia Bank [2011] FCA 1336 …. 9.5 Cremona v Administrative Appeals Tribunal [2015] FCAFC 72 …. 11.26 Cretazzo v Lomardi (1975) 13 SASR 4 …. 12.5 Cristovao v Registrar Caporale [2012] FCA 1329 …. 3.7, 4.5 — v Scott [2012] FCA 1009 …. 4.6 Croft v Evertop Investments Pty Ltd [2014] FCA 1098 …. 8.11 Croker v Segal [2014] FCA 944 …. 5.21 Crosby v Kelly [2012] FCAFC 96 …. 1.2 CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 …. 10.16 CT Sheet Metal Works Pty Ltd v Hutchinson (2012) 201 FCR 275; [2012] FCA 17 …. 2.29 Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 22 …. 12.5 Curtis v NID Pty Ltd [2010] FCA 1072 …. 2.21 Cusack v Federal Court of Australia [2001] AATA 728 …. 5.27 Cuthbertson v Hobart Corporation [1921] HCA 51; (1921) 30 CLR 16 …. 11.9, 11.12 Cutler v Trustee for McKenzie & Baird Unit Trust [2010] FCA 714 …. 7.7

D Dahler v Australian Capital Territory (No 2) [2014] FCA 1154 …. 12.8 Dallas Buyers Club LLC v iiNet Ltd (No 1) [2014] FCA 1232 …. 2.31, 5.42 — v — (No 2) [2014] FCA 1320

— v — [2015] FCA 317 …. 2.10, 2.12, 2.31 — v — (No 3) [2015] FCA 422 …. 1.8, 1.9, 2.12, 2.17, 2.31, 2.32 — v — (No 4) [2015] FCA 838 …. 2.17, 2.31 Damjanovic v Maley [2002] NSWCA 230 …. 4.5 DampskibsselskabetNorden A/S v Beach Building & Civil Group Pty Ltd [2012] FCA 696 …. 8.5 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 …. 8.25 Dansk Rekylriffel Syndikat Aktieselskab v Snell (1908) 2 Ch 127 …. 12.5 Darbyshire v Leigh [1896] 1 QB 554 …. 6.16 Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562 …. 6.18 — v — (No 2) (2011) 190 FCR 437; [2011] FCAFC 9 …. 10.5 De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 3) [2011] FCA 1059 …. 6.8 — v — (No 4) [2011] FCA 1426 …. 6.8 — v — (No 5) [2012] FCA 1241 …. 6.8 — v — (No 6) [2013] FCA 591 …. 6.8 De L v Director-General, New South Wales Department of Community Services [1997] HCA 14; (1997) 190 CLR 207 …. 10.7 Deckers Outdoor Corp Inc v Farley (No 8) [2010] FCA 657 …. 10.15, 10.17 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 …. 11.7, 11.9 Defence Force Retirement and Deaths Benefit Authority v Lokan [2008] FCAFC 43 …. 10.2 Delta Metallics Pty Ltd v King [2012] FCA 1119 …. 10.8 Denison v Boart Longyear Pty Ltd [2011] FCA 881 …. 6.7, 7.7 Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63 …. 6.23, 6.24, 6.29

— v — (Admins apptd) (No 4) [2014] FCA 784 …. 8.8 Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064 …. 2.21 — v — (No 7) [2012] FCA 1280 …. 6.38 — v Compumark Pty Ltd [2012] FCA 583 …. 4.6 — v Hua Wang Bank Berhad [2010] FCA 1014 …. 2.21 — v Marro (SA) Pty Ltd [2011] FCA 1024 …. 10.8 — v Warrick [2004] FCA 488 …. 7.14 Derrin Brothers Properties Ltd v Deputy Commissioner of Taxation [2013] FCA 571 …. 11.16 Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 …. 10.7 Dick v Pillar (1943) 1 KB 497 …. 9.5 Diddams v Commonwealth Bank of Australia [1998] FCA 9497 …. 6.39 Dimitriou v Curtis [2012] FCA 1347 …. 4.7 Director of the Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522 …. 12.23 — v Adams [2015] FCA 420 …. 1.5, 6.42, 6.44 — v Cartledge [2015] FCA 453 …. 10.16, 10.17 — v Construction, Forestry, Mining and Energy Union [2014] FCA 374 …. 6.32 DJL v The Central Authority [2000] HCA 17 …. 11.17 DP World Sydney Ltd v Maritime Union of Australia (No 1) [2013] FCA 278 …. 6.17 Draper v Official Trustee in Bankruptcy [2006] FCAFC 157 …. 9.4 Dudzinski v Kellow [2000] FCA 740 …. 12.21 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50 …. 12.2, 12.4, 12.7, 12.8

Dunlop v Fishburn (No 2) [2012] FCA 314 …. 4.3 Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 …. 11.17 — v — (No 3) [2006] FCA 916 …. 12.14 Dye v Commonwealth Securities Ltd [2012] FCA 720 …. 6.18 — v — (No 2) [2010] FCAFC 118 …. 5.42 — v — (No 2) [2012] FCA 407 …. 8.8

E E D Oates Pty Ltd v Edgar Edmondson Imports [2012] FCA 356 …. 2.17 Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328 …. 1.5 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 …. 9.11 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 …. 9.7 EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd [2011] FCA 862 …. 2.13 — v — (No 2) [2011] FCA 1004 …. 2.25 — v — (No 3) (2012) 199 FCR 533; [2012] FCA 48 …. 2.13 Edington v Superannuation Complaints Tribunal [2008] FCAFC 78 …. 10.2 Egglishaw v Australian Crime Commission [2007] FCAFC 183 …. 8.23 El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 …. 8.11 El-Masri v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCA 742 …. 11.20 Elecspess Pty Ltd v LED Technologies Pty Ltd [2013] FCAFC 116 …. 1.17 Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 …. 3.11 — v Delap Impex KFT [2015] FCA 62 …. 9.14 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 …. 12.5

Elkateb, Re; Lawindi v Elkateb [2001] FCA 1527 …. 5.32 Elliott v Health Services Union [2014] FCA 296 …. 9.2 Elston v Commonwealth [2013] FCA 108 …. 6.16, 6.20 Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 …. 10.9 Emerald Grain Australia Pty Ltd v Agrocorp International Pty Ltd [2014] FCA 414 …. 3.7 Empire Shipping Company Inc v Owners of the Ship Shin Kobe Maru [1991] FCA 499 …. 6.20 Engineered Thermal Systems Pty Ltd v Salmon; Salmon & Speck Pty Ltd (in liq) [2012] FCA 1159 …. 8.15, 8.17 Enshan Resources Pty Ltd v AIOI Insurance Company Ltd [2011] FCA 1392 …. 6.35 Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 …. 1.20, 4.6 Environinvest Ltd (recs and mgrs apptd) (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newmann, Peters and Miller t/as HLB Mann Judd (Vic Partnership) [2012] FCA 1307 …. 3.12 Eopply New Energy Technology Co Ltd v EP Solar [2013] FCA 356 …. 8.5 Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40–972 …. 12.11 ESCO Corporation v Bradken Resources Pty Ltd [2011] FCA 905 …. 8.5 Essential Beauty Franchising Pty Ltd v Essential Beauty (Qld) Pty Ltd [2012] FCA 12 …. 7.3 Evans v Davies [1893] 2 Ch 216 …. 2.2 — v Secretary, Department of Social Services [2014] FCA 491 …. 11.29 — v Superannuation Complaints Tribunal [2002] FCA 79 …. 4.10, 4.11 Ewin v Vergara (No 4) [2013] FCA 1409 …. 12.16 Expectation Pty Ltd v PRD Realty Pty Ltd [2003] FCA 1086 …. 12.10 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic

Management Marketing Pty Ltd [2013] HCA 46 …. 9.5, 11.7

F Facton Ltd v Redac International Pty Ltd [2014] FCA 586 …. 7.7 FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13 …. 5.7 Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 …. 7.11 — v Offshore Marine Services Pty Ltd (No 3) [2013] FCA 1391 …. 3.12 Farmers Fertilizers Corp Ltd, Ex p (1916) 16 SR (NSW) 645 …. 12.13 Ferguson, Re An Application by v Re A Reference of Such Application by the Industrial Registrar to the Federal Court of Australia [1986] FCA 259 …. 9.19 Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 …. 12.14 Finch v Heat Group Pty Ltd [2014] FCA 236 …. 4.7 — v — [2015] FCA 182 …. 10.13 Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 …. 9.5 Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 4) [2009] FCA 461 …. 6.7 Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 …. 10.13 Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131 …. 10.9 Foggin v Lacey [2003] FCAFC 147 …. 11.22 Foodco Group Pty Ltd v Northgan Pty Ltd [1998] FCA 550 …. 1.24 Foong v Owners of Strata Plan No 54026 [2014] FCA 338 …. 4.5 Forestry Tasmania v Brown (No 2) [2007] FCA 604 …. 11.12 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89 …. 11.9, 11.12 Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] 1401 …. 8.25

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 …. 11.13 FPInnovation Pty Ltd v Registrar of Trade Marks [2013] FCA 826 …. 8.27 Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362 …. 11.30 Franklin v GHF Pty Ltd [2014] FCA 793 …. 7.3 Franklins Ltd v Reject Shop (Aust) Pty Ltd [1999] FCA 1190 …. 10.11 Fraser-Kirk v David Jones Ltd [2010] FCA 1060 …. 5.42 Freehills; New Tel Ltd (in liq) [2008] FCA 762 …. 5.36 Fried v National Australia Bank Ltd [2000] FCA 604 …. 6.16 Frigo v Culhaci [1998] NSWCA 88 …. 2.18 Frugtniet v Tax Practitioners Board [2013] FCA 752 …. 3.12 Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 …. 6.37 Fuller v Toms [2012] FCA 27 …. 3.11, 4.7 — v — [2012] FCAFC 155 …. 6.16 — v — [2013] FCA 1422 …. 8.19, 10.14 — v — [2015] FCAFC 91 …. 6.16 Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 …. 8.8

G Gale v New South Wales Minister for Land and Water Conservation [2001] FCA 1652 …. 9.16 Gao v The Official Trustee in Bankruptcy [2003] FCAFC 84 …. 9.4 Gargan v Commonwealth Bank of Australia [2004] FCA 641 …. 9.4 Garrett v The Chief Executive of Austrade (No 2) [2015] FCA 242 …. 6.10 — v Commissioner of Taxation [2015] FCA 40 …. 11.35 — v Make Wine Pty Ltd [2014] FCA 1258 …. 8.19, 8.22 Gauci v Kennedy [2006] FCA 869 …. 11.10 Gaynor v Chief of the Defence Force [2014] FCA 742 …. 2.2, 2.3

Gebauer; Ex p Millennium Federation Pty Ltd [1998] FCA 1291 …. 11.24 Genworth Financial Mortgage Insurance Pty Ltd v Peter Clisdell Pty Ltd [2009] FCA 1014 …. 6.18 George v Fletcher (Trustee) [2012] FCAFC 148 …. 9.7 — v — (No 2) [2010] FCAFC 71 …. 12.13 Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd [2009] FCA 1370 …. 6.28 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102 …. 11.7 Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238; [2005] FCA 801 …. 2.13 Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 …. 6.17 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16 …. 6.13 — v — [2014] FCA 139 …. 12.4 Gould v Vaggelas [1984] HCA 68 …. 12.10 GP Technology Solutions Pty Ltd v Hughes Trading Solutions Pty Ltd [2012] FCA 1012 …. 4.6 Grabovsky v Secretary, Department of Social Services [2015] FCA 244 …. 11.10 Graeme Allan Green v Atlantic International Entertainment Australia Pty Ltd (ACN 079 475 844) [1998] FCA 1278 …. 7.4 Graham’s Factree Pty Ltd v Oak Enterprises (No 1) [2012] FCA 1033 …. 8.27 Granger v Murdoch Books Pty Ltd [2012] FCA 909 …. 8.7 Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82 …. 9.19 Grant-Taylor v Jamieson [2002] NSWSC 634 …. 10.16 Gravern Holdings Pty Ltd v Yepp Rowing Pty Ltd [2014] FCA 41 …. 10.8 Griffiths v Rose [2010] FCA 964 …. 6.38 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 …. 10.7

Guden v Minister for Immigration and Citizenship [2013] FCA 980 …. 11.30 Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109 …. 8.5 Gunn Capital Management Pty Ltd v Solamind Pty Ltd [2010] FCA 1360 …. 7.3 Guss v Johnstone [2000] FCA 1455 …. 9.5 — v Veenhuizen (No 2) [1976] HCA 57 …. 12.13

H Haile-Michael v Konsrantinidis (No 2) [2012] FCA 167 …. 6.20 — v — (No 3) [2013] FCA 53 …. 6.29 Halal Certification Authority Pty Ltd v Quality Kebabs Wholesalers Pty Ltd (No 3) [2014] FCA 1055 …. 12.16 Halpern v BWA Group Services Pty Ltd [2013] FCA 673 …. 9.5 Halsted (Bankrupt) v The Official Trustee in Bankruptcy, in the matter of Halsted (Bankrupt) (No 2) [2012] FCA 66 …. 12.12 Hamden v Campbell [2012] FCA 65 …. 6.29, 6.29 Hamod v New South Wales [2011] NSWCA 375 …. 9.5 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 …. 12.6 Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd [1996] FCA 1572; (1996) 137 ALR 701 …. 11.15 Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 2) [2014] FCA 107 …. 9.2 Harding v Deputy Commissioner of Taxation [2008] FCA 1403 …. 9.4 Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63 …. 11.12 Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 …. 10.3 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 …. 11.24 Harwood v New South Wales (Department of Education and Training) [2012] FCA 264 …. 4.12 Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010 …. 9.19

HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 …. 11.29 Henderson v Amadio Pty Ltd [1996] FCA 1341 …. 12.5, 12.15 — v McSharer [2013] FCA 414 …. 4.7, 6.20 Herring v Minister for Immigration and Citizenship [2012] FCA 970 …. 11.29 Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 …. 2.2 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [1998] FCA 558 …. 11.4 Hickey v Public Advocate (Vic) [2012] FCA 1203 …. 2.7 Higgins v Hancock as Liquidator of 246 Arabella Investments Pty Ltd (in liq) (2011) 199 FCR 393; 87 ACSR 424; [2011] FCA 1492 Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 …. 9.6 Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 …. 12.5 — v WIN Corporation Pty Ltd (No 2) [2013] FCA 921 …. 8.8 Hodges v Sandhurst Trustees Ltd [2014] FCA 1223 …. 6.20 — v Waters (No 1) [2013] FCA 737 …. 6.37, 6.38 Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 …. 12.4 Hookway v MID Pty Ltd [2012] FCA 1456 …. 1.6, 1.9, 3.8, 3.10, 12.3 Hooper v Kirella Pty Ltd (1999) 96 FCR 1; 167 ALR 358; [1999] FCA 1584 …. 2.10, 2.12 Hopeshore Pty Ltd v Melroad Equipment Pty Ltd [2004] FCA 1445 …. 4.2 Houpapa v Minister for Immigration and Citizenship [2012] FCA 208 …. 8.16 House v R (1936) 55 CLR 499 …. 12.4 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 …. 12.2, 12.4, 12.5 Hoyts Multi-Plex Cinemas Pty Ltd v Fox Entertainment Precinct Pty Ltd

[2003] FCA 1347 …. 2.17 Hua Wang Bank Berhad v Deputy Commissioner of Taxation [2010] FCAFC 140 …. 2.21 — v — (No 1) [2012] FCA 589 …. 6.39 Hua Wei Wang v Anying Group Pty Ltd [2009] FCA 1500 …. 2.2 Huang v University of New South Wales [2014] FCA 1337 …. 9.5 Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319 …. 10.17 — v Western Australia Cricket Association (Inc) [1986] FCA 382; (1986) ATPR 40-748 …. 12.4, 12.5 Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 …. 2.10 Hughes Motor Services Pty Ltd v Wang Computer Pty Ltd [1978] FCA 49; (1978) 35 FLR 346 …. 9.2 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 …. 9.2 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 …. 5.6 Hurd v Zomojo Pty Ltd [2013] FCA 145 …. 4.6 Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 …. 12.4 HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 …. 8.19

I Informax International Pty Ltd v Clarius Group Ltd (No 2) [2011] FCA 934 …. 10.5 Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 …. 9.19 Insulations Inc v Bellis Australia Pty Ltd (ACN 010197 672) [2006] FCA 399 …. 7.3 Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391 …. 9.4

Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCAFC 148 …. 11.18 Inverness Medical Switzerland GMBH v Advanced Clinical Systems Pty Ltd [2002] FCA 126 …. 7.3 Investa Properties Pty Ltd v Nankervis [2012] FCA 743 …. 6.18, 9.5 Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 …. 8.25 Irrewarra Estate Pty Ltd v Telstra Corp Ltd [2010] FCA 1457 …. 2.12 Isaacs on behalf of the Turrbal People v Queensland [2011] FCA 828 …. 8.22

J J & A Vaughan Super Pty Ltd v Becton Property Group Ltd [2013] FCA 340 …. 2.17 Jackson v Conway [2000] FCA 1530 …. 11.22 — v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457 …. 1.2, 2.19 Jacobsen v Rogers (1995) 182 CLR 572 …. 6.25 Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 985 …. 4.12 Jarrett v Secretary, Department of Families, Community Services & Indigenous Affairs [2008] FCA 1043 …. 6.2 — v Westpac Banking Corp [1999] FCA 425 …. 9.5 JC Decaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd [2000] FCA 1118 …. 6.16 Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 …. 12.2 JFTA Pty Ltd (in liq) v John Holland Pty Ltd [2014] FCA 760 …. 8.16, 8.17 Jiangyin Yingying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274 …. 4.4, 10.4 JMK Management Pty Ltd v Range Resources Ltd [2012] FCA 961 …. 2.32, 3.8

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; 266 ALR 462; [2010] HCA 19 …. 10.5 John Baptist Nella v Kingia Pty Ltd [1987] FCA 299 …. 6.42 John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 …. 6.45, 9.7 Johnson v Johnson [2000] HCA 48 …. 9.7 Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 …. 9.2 — v — [2000] FCA 1837 …. 8.28 — v — [2011] FCAFC 69 …. 11.7 — v — (No 3) [2000] FCA 495 …. 6.39 Johnson Tiles Pty Ltd (ACN 004576103) v Esso Australia Ltd [2000] FCA 1572 …. 1.2 Johnsons Tyne Foundry Pty Ltd v Maffra Corporation [1948] HCA 46; (1948) 77 CLR 544 at 566 …. 12.10 Johnston v Cameron [2002] FCA 301 …. 12.6 — v Vintage Developments Pty Ltd [2006] FCAFC 171 …. 5.10 Jones v Dunkel (1958) 101 CLR 298 …. 1.5 JRL, Re; Ex p CJL [1986] HCA 39; (1986) 161 CLR 342 …. 9.7 Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 …. 8.7 Jury, Re; Ashton v Prentice [1999] FCA 671 …. 9.7

K Kassem and Secatore v Commissioner of Taxation (No 2) [2012] FCA 293 …. 1.20, 7.8, 8.8 Kazar, Re; Frontier Architects Pty Ltd (in liq) [2012] FCA 1381 …. 6.43 KC Parksafe (Vic) Pty Ltd v Dallbrook Pty Ltd [1998] FCA 1279 …. 6.20 Kennedy v Anti-Doping Rule Violation Panel [2015] FCA 411 …. 11.36 Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 …. 10.8 KGL Health Pty Ltd v Mechtler [2007] FCA 1410 …. 2.21 — v — [2008] FCA 273 …. 6.27

Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91 …. 5.9 Khalifeh v Rahme [2009] NSWSC 1332 …. 2.21 Kheirs’ Financial Services Pty Ltd v Aussie Home Loans Ltd [2008] FCA 1602 …. 7.7 Khoury v Commonwealth Bank of Australia trading as Bankwest [2013] FCA 304 …. 7.12, 7.13 Kiefel v Victoria [2014] FCA 604 …. 4.12, 12.11 King v Jetstar Pty Ltd [2012] FCA 413 …. 12.12 — v Virgin Australia Airlines Pty Ltd [2014] FCA 36 …. 12.12 King Par LCC v Brosnan Golf Pty Ltd [2013] FCA 640 …. 3.8, 3.10 Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705 …. 7.8, 12.15 KK (decd) v Western Australia [2013] FCA 1234 …. 8.10 Kogolo v Western Australia [2011] FCA 1481 …. 8.12 Kolya v Tax Practitioners Board [2012] FCA 492 …. 4.7 Korner v H Korner & Co Ltd (1951) Ch 10 …. 12.5 Koutouvas v Coca-Cola Amatil (Aust) Pty Ltd [2009] FCA 1125 …. 7.7 KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189 …. 12.11 Krajniw v Newman (No 2) [2015] FCA 673 …. 4.11 Kristoffersen v Superannuation Complaints Tribunal [2013] FCA 951 …. 11.27 Kuek, Re [2012] FCA 494 …. 1.6, 3.6, 6.15 Kurniadi v Loh [2002] FCA 1021 …. 7.7 — v — [2005] FCA 49 …. 9.2 Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242 …. 6.23

L Lahood v Bank of Western Australia Ltd (No 3) [2013] FCA 861 …. 9.5 Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 …. 10.8 Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49 …. 7.3 Lane v Morrison (2009) 239 CLR 230 …. 1.2 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 …. 12.4 Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2) [2014] FCA 1378 …. 8.28 Lawrance v President, Administrative Appeals Tribunal [2005] FCA 204 …. 4.11 Leahy v Commonwealth [2013] FCA 1454 …. 8.25 Leary v Leary [1987] 1 All ER 261 …. 12.14 Leda Holdings Pty Ltd v Securcorp Ltd [2013] FCA 1364 …. 7.3, 7.4 Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 3) [2011] FCA 912 …. 1.24 Lenijimar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 …. 1.11, 6.3 Letten v Templeton [2004] FCAFC 131 …. 11.4, 11.9 Lever v Comcare [2007] FCA 576 …. 11.37 Levinge v Queensland [2012] FCA 1321 …. 8.10 Lifeplan Australia Friendly Society Ltd v Woff [2012] FCA 1415 …. 8.28 — v — [2014] FCA 559 …. 6.29, 7.3, 8.28 Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd (No 2) [2006] FCA 741 …. 6.31 Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd (No 2) [2013] FCA 1220 …. 8.7 Lilienthal v Migration Agents Registration Authority [2002] FCA 93 …. 6.45

Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058 …. 11.29 Lime Gourmet Pizza Bar (Darby Street) Pty Ltd (in liq) v Workers Compensation Nominal Insurer [2014] FCA 567 …. 11.24 Linke v TT Builders Pty Ltd [2014] FCA 672 …. 5.24 — v — [2015] FCA 111 …. 8.7 Lion-Dairy & Drinks Pty Ltd v Sinclair Knight Merz Pty Ltd [2014] FCA 114 …. 6.31 Lipson v Penrice Soda Products Pty Ltd (No 2) [2012] FCA 337 …. 2.13 Livesy v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 …. 9.7 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 …. 5.42 Lo v Australian Community Pharmacy Authority [2013] FCA 639 …. 8.11 Lo Pilato v Barclays Workshop Pty Ltd (in liq) [2013] FCA 729 …. 6.43 — v Giannasca; Re Giannasca [2014] FCA 1108 …. 5.32 Londish v Gulf Pacific Pty Ltd [1993] FCA 470 …. 9.19 Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 …. 10.17 — v Knierum [2004] FCA 1168 …. 7.4 — v Sonya Valentine Pty Ltd [2013] FCA 933 …. 8.16 Loyola v Cryeng Pty Ltd (No 3) [2014] FCAFC 7 …. 10.8, 11.17 Lucas (recs and mgrs), Re; MSI Holdings Pty Ltd (recs and mgrs apptd) (in liq) [2012] FCA 1486 …. 5.32 Lucisano v Westpac Banking Corporation [2015] FCA 243 …. 2.2 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 …. 11.16 — v Secretary, Department of Social Services [2014] FCA 1060 …. 11.35 —, Re [2003] HCA 70 …. 8.23 Lynx Engineering Consultants Pty Ltd v ANI Corp Ltd t/as ANI Bradken Rail

Transportation Group (No 5) [2011] FCA 216 …. 6.41

M McAlister v New South Wales [2014] FCA 702 …. 1.20, 4.9 McCarthy v Commissioner of Taxation [2013] FCA 715 …. 7.13 McColm v Strudwicks Sportsworld Pty Ltd [2006] FCA 961 …. 2.2 McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 87 …. 12.6 McCrae v Reynolds [2015] FCA 529 …. 2.10 McDermott v Collien (1953) 87 CLR 154 …. 9.4 — v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 …. 1.2 McGrath v HNSW Pty Ltd [2014] FCA 165 …. 6.19 — v — (No 2) [2015] FCA 442 …. 6.38 McHugh v Australian Jockey Club Ltd (No 2) [2011] FCA 724 …. 1.5 — v — (No 4) [2011] FCA 1106 …. 6.35 McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 …. 6.34 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 …. 6.16 McLean Technic Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 …. 10.13 Maher v Commonwealth Bank of Australia [2007] FCA 560 …. 10.5 — v — (No 2) [2004] FCA 1398 …. 10.11 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 3) [2015] FCA 200 …. 1.20 Malouf v Malouf (1999) 86 FCR 134; 167 ALR 383; [1999] FCA 284 …. 2.12 Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchens Pty Ltd (No 2) (2012) 203 FCR 283; 289 ALR 275; [2012] FCAFC 92 …. 10.4 Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426 …. 11.24

Marchant v GB Radio [2002] FCA 465 …. 11.19 Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep 509 …. 2.18 Margan v Australian Human Rights Commission [2013] FCA 612 …. 8.27 Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165 …. 9.5 Marley New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851 …. 2.2 Martinek v Evans [2004] FCA 1269 …. 10.11 Mathews v Queensland [2014] FCA 424 …. 6.27, 6.31 Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 …. 2.13 Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145 …. 11.19 Mavra v Logan (1980) 24 SASR 567 …. 5.7 Maxwell-Smith v Donnelly [2012] FCA 154 …. 10.8 May v AAI Insurance formerly known as Vero Insurance [2014] FCAFC 125 …. 11.11 Mayberry v Kijani Investments Pty Ltd as Trustee for The Dawe Investments Trust Subway Wallsend t/as Subway [2011] FCA 1238 …. 9.14 Maylord Equity Management Pty Ltd v Parazelsus Ltd [2014] FCA 979 …. 8.17 MBD Management Pty Ltd v Butcher [2012] FCA 1071 …. 3.11 Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 …. 12.11 Medcalf v Mardell [2002] UKHL 27 …. 12.8 Media, Entertainment and Arts Alliance, Re; Ex p Hoyts Corporation Pty Ltd [1994] HCA 66; (1994) 119 ALR 206 …. 9.7 Melville v Macquarie University [2006] FCA 1761 …. 7.6, 7.7 Mercedes Holdings Pty Ltd v Waters (No 8) [2013] FCA 601 …. 9.2 Merost Pty Ltd v CPT Custodian Pty Ltd (No 2) [2014] FCA 594 …. 8.8

Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 …. 2.24 MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 …. 1.6, 6.28 — v — (2012) 202 FCR 354; 88 ACSR 170; [2012] FCA 383 …. 2.19, 2.23 — v — [2014] FCA 1339 …. 8.7 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 …. 9.7 Mijac Investments Pty Ltd v Graham [2009] FCA 303 …. 9.5 — v — [2010] FCA 896 …. 10.7 — v — [2013] FCA 296 …. 1.6, 12.8 Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 …. 8.11 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 …. 9.7 Minister for the Environment v Ayre Conditioning Pty Ltd [2013] FCA 1408 …. 7.8, 12.16 Mircevski v Pattison [2011] FCAFC 144 …. 11.18 Mitchell v McGillivray [2001] FCA 326 …. 7.5 Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 …. 11.10 Modra v Victoria [2012] FCA 240 …. 1.6, 6.15, 12.8 — v — (Dept of Human Services Victoria & Dept of Education and Early Childhood Development) [2013] FCA 1041 …. 2.7, 4.12 Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367; (1992) 109 ALR 137 …. 10.8 Moore v New South Wales [2014] FCA 477 …. 2.8, 4.12 Moran v Robertson [2012] FCA 371 …. 9.11 Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (admins apptd) (in liq) [2009] FCA 227 …. 7.3 Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 …. 12.18

Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1985) 10 FCR 385 …. 10.17 Mulherin v Commissioner of Taxation [2013] FCAFC 115 …. 11.29 Mulhern v Pearce [2013] FCA 1138 …. 7.3 Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 …. 4.5, 4.6 Mulholland v Australian Electoral Commission (No 2) [2014] FCA 917 …. 10.8, 11.17 Murphy v Australia Shark and Ray Centres Victoria Pty Ltd [2014] FCA 790 …. 4.6 — v Westpac Banking Corporation (No 2) [2015] FCA 266 …. 8.8 Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732 …. 6.43 Musgrave Minerals Ltd, in the matter of Musgrave Minerals Ltd [2014] FCA 1155 …. 2.2, 2.3, 2.5 Muswellbrook Shire Council v Royal Bank of Scotland NV [2013] FCA 616 …. 1.20, 6.34 Mutual Community Ltd v Lorden Holdings Pty Ltd (Unreported, Supreme Court of Victoria, 28 April 1993) …. 12.15 MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428 …. 11.15 MZXRL v Minister for Immigration and Citizenship [2009] FCA 114 …. 11.20 MZZBW v Minister for Immigration and Border Protection [2015] FCA 156 …. 11.10 MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 …. 11.10 MZZKF v Minister for Immigration and Border Protection [2013] FCA 911 …. 11.10

N

Nair-Marshall v Secretary, Department of Family and Community Services [2005] FCA 1341 …. 12.2, 12.4 NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1091 …. 9.16 NAQB v Minister for Immigration and Indigenous Affairs [2003] FCA 562 …. 11.8 National Australia Bank Ltd v Solar (1977) 14 ACTR 1; 28 FLR 372 …. 10.16 National Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 128 FLR 334 …. 2.12 National Heavy Vehicle Regulator v Countrywide Marketing Pty Ltd [2015] FCA 351 …. 6.7 National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 …. 7.3 National Tertiary Education Industry Union v Swinburne University of Technology [2014] FCA 606 …. 4.9 Naxatu Pty Ltd v Perpetual Trustee Company Ltd [2011] FCA 823 …. 5.8 Nazdall Pty Ltd v Herrmann [2012] FCA 994 …. 7.3 Nazdall Pty Ltd, in the matter of Yowdall Pty Ltd (as trustee for the Yowdall Unit Trust) v Herrmann [2013] FCA 94; (2013) 210 FCR 264 …. 6.16 NBLY v Minister for Immigration and Multicultural Affairs [2006] FCA 1051 …. 11.8 Nelson v Commissioner of Taxation [2014] FCAFC 163 …. 11.35 Newark Pty Ltd (recs apptd) (in liq) v Civil & Civic Pty Ltd and Joseph Michael Thorpy [1987] FCA 352 …. 9.16 Newcrest Mining Ltd v Apache Northwest Pty Ltd (No 2) [2008] FCA 1663 …. 2.13 Newman v New Zealand (No 2) (2012) 295 ALR 1 …. 12.6 Nextra Australia Pty Ltd v Fletcher (No 2) [2014] FCA 682 …. 8.8, 12.12 Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135 …. 11.13

Nicolai v Indochina Medical Company Pty Ltd [2013] FCA 180 …. 8.10 Ninan v St George Bank [2012] FCA 905 …. 12.11 NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 …. 12.15 Noel Ling, Ex Parte: Noel Ling v Commonwealth [1995] FCA 1410; (1995) 130 ALR 596 …. 9.2 Novartis AG v Agvantage Pty Ltd [2012] FCA 160 …. 2.17 Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 …. 8.28 Nyoni v Chee Koon Hee (No 2) [2013] FCA 703 …. 3.12 — v Shire of Kellerberrin (No 2) [2012] FCA 1477 …. 8.12

O Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518; 66 ALR 371 …. 6.8 ObjectiVision Pty Ltd v Visionsearch Pty Ltd [2014] FCA 1087 …. 2.13, 2.31 — v — (No 2) [2014] FCA 1146 …. 2.31 — v — (No 3) [2015] FCA 304 …. 2.31 Ogawa v The University of Melbourne [2005] FCA 1139 …. 7.9 Ogden v Commissioner of Taxation [2014] FCA 1111 …. 11.29 Ogenic Ltd v Deloitte Touche Tohmatsu [2000] FCA 894 …. 6.8, 6.9 Olbers v Commonwealth (No 3) [2003] FCA 651 …. 8.28 Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 …. 9.19 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560 …. 2.12 — v — (2007) 247 ALR 199; [2007] FCA 2065 …. 2.13 — v — [2012] FCA 558 …. 8.6 — v — (No 2) [2012] FCA 559 …. 1.5 Oreb v Professional Services Review Committee No 298 [2004] FCA 1408 …. 4.16 Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No 2) [2008] FCA

24 …. 12.23 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 …. 12.2, 12.4 Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320 …. 11.29 Oswal v Apache Corporation (No 3) [2014] FCA 835 …. 6.18 — v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCAFC 117 …. 11.7 Oxygen8 Communications Pty Ltd v Telstra Corp Ltd [2009] FCA 426 …. 2.2

P P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321 …. 12.11 P v Child Support Registrar [2012] FCA 1398 …. 12.13 — v — [2013] FCA 1312 …. 11.29 Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72 …. 1.20 Pacific Composites Pty Ltd v Transpac Container System Ltd (carrying on business as Blue Anchor Line) [1998] FCA 1264 …. 12.10 Pacific Dunlop Ltd v Australian Rubber Gloves Pty Ltd [1992] FCA 231 …. 2.2 Palram Australia Pty Ltd v Rees [2013] FCA 649 …. 6.17 Pamela Ashcroft t/as Fit & Ready for Work v Macquarie Equipment Rentals Pty Ltd [2009] FCA 862 …. 9.2 Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028 …. 7.10 Pantzer v Wenkart [2007] FCAFC 27 …. 11.17 Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287 …. 1.5 Paramasivam v Randwick City Council [2005] FCA 369 …. 11.24

Park v Brothers [2005] HCA 73; (2005) 222 ALR 421 …. 11.15 Parsons v Martin [1984] FCA 408; (1984) FCR 235 …. 1.2 Pasini v Vanstone [1999] FCA 1271 …. 6.39 Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 …. 5.11, 10.7, 10.8 Patrick v Capital Finance Pty Ltd (No 2) [2003] FCA 263 …. 9.19 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 …. 2.18 Patton v Minister for Defence (1987) 13 FCR 476 …. 10.13 Paul’s Retail Pty Ltd v Lonsdale Australia Ltd [2012] FCA 724 …. 9.6 Peacock v Peacock [2000] FCA 857 …. 7.5 Pedra Holdings Pty Ltd v Westfield Shoppingtown Carousel Pty Ltd [2005] FCA 909 …. 7.11 Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 490 …. 9.2 Pei Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2013] FCA 676 …. 6.35 Perre v Apand [2004] FCA 1220 …. 10.8 Petrovic v Taara Formwork [1982] FCA 208 …. 9.5 Pham v Secretary, Department of Employment and Workplace Relations [2007] FCA 2049 …. 11.29 — v University of Queensland [2002] FCA 203 …. 9.14 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 12) [2012] FCA 289 …. 1.20, 4.6 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 …. 1.2 Phillips v Phillips (1878) 4 QBD 127 …. 6.17 Philpott v Foux [2001] FCA 1380; Uen v Honeywell Ltd [2010] FCA 634 …. 7.7 Phone Directories Company Australia Pty Ltd v Telstra Corporation Ltd (No

2) [2014] FCA 418 …. 12.14 Pickering, Re [2009] FCA 809 …. 11.24 Picos v Hyatt Hotel Canberra [2015] FCA 101 …. 5.40 — v — (No 2) [2015] FCA 626 …. 9.7 — v Seven West Media [2015] FCA 660 …. 4.11 — v Servcorp Ltd [2015] FCA 355 …. 9.7 Placitum Pty Ltd v Andreotta [2014] FCA 726 …. 8.16 Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 …. 1.2 Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No 2) [2010] FCA 455 …. 12.14 Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 …. 6.16, 6.20 Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 …. 6.17 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437 …. 8.8 Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 …. 8.12, 12.5 Porter v Australian Prudential Regulation Authority [2009] FCA 1148 …. 6.45 Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211 …. 11.26 Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 …. 6.23, 6.24 Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 …. 10.13 Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573 …. 11.37 Priestley v Godwin (No 3) [2008] FCA 1529 …. 8.24, 8.25

Procter v Kalivis (No 3) [2010] FCA 1194 …. 2.17 Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180 …. 10.8, 11.11 Prosperity Group International Pty Ltd v Queensland Communication Company Pty Ltd [2009] FCA 1361 …. 6.3

Q Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782 …. 1.9 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353 …. 1.7, 5.7, 6.9, 9.5 Queensland Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 …. 12.5 Quin v Buchanan, Re Queensland Roads, Earthmoving and Civil Construction Pty Ltd (in liq) [2015] FCA 722 …. 6.3, 6.13 Quinlan v Safe International Forsakrings AB [2006] FCA 1718 …. 8.22

R R v Australian Broadcasting Authority; Ex p 2HD Pty Ltd (1979) 144 CLR 45 …. 8.6 — v Australian Broadcasting Tribunal; Ex p Hardiman (1980) 144 CLR 13 …. 4.10 Ra v Nationwide News Pty Ltd [2009] FCA 1308 …. 9.4 RAB’s Plumbing Services Pty Ltd, Re; In the matter of Elite Civil Management Pty Ltd v Elite Civil Management Pty Ltd [2014] FCA 264 …. 2.21 Radisich v McDonald [2010] FCA 762 …. 6.16 Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931 …. 2.18 Rahman v Dayeh [2006] FCA 1362 …. 7.6 — v Hedge [2012] FCA 68 …. 5.21 Rainsford v Victoria [2005] FCAFC 163 …. 8.28

Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission [1986] FCA 229 …. 12.25 Ramsey v Skyring [1999] FCA 907 …. 8.19 Rana v Repatriation Commission [2010] FCA 281 …. 11.29 Ranbaxy Laboratories Ltd v AstraZeneca AB [2013] FCA 368 …. 9.17 Randell v Minister for Immigration and Citizenship [2012] FCA 50 …. 9.14 Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168 …. 7.6 Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 …. 8.28 Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161 …. 2.2 Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2012] FCA 1157 …. 6.15 Reeve v Aqualast Pty Ltd [2012] FCA 679 …. 2.13 — v — (No 2) [2012] FCA 791 …. 2.17 Registrar of Aboriginal and Torres Strait Islander Corporations v Kerkhoffs (No 2) [2013] FCA 1446 …. 10.7 Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3) [2013] FCA 42 …. 12.4 Repatriation Commission v Patterson [2006] FCAFC 165 …. 11.28 Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2) [2012] FCA 1138 …. 1.9, 3.8, 6.14, 12.3 Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489 …. 5.42 Richardson v Lo Pilato (liquidator); Re Trojan Hospitality (ACT) Pty Ltd (in liq) [2014] FCA 888 …. 5.41 — v Oracle Corporation Australia Pty Ltd (No 2) [2013] FCA 359 …. 8.7

— v — (No 2) [2014] FCAFC 139 …. 1.17 Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16 …. 8.11 Rinehart v Rinehart (No 2) [2015] FCA 339 …. 6.23, 6.24 Rirratjingu Aboriginal Corporation v Northern Land Council [2014] FCA 1281 …. 6.34 Rita Augustine v Western Australia [2013] FCA 338 …. 1.20 Ritter v Godfrey (1920) 2 KB 47 …. 12.4 Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 …. 7.6 Roadshow Films Pty Ltd v iiNet Ltd (No 2) [2009] FCA 1391 …. 4.13 Roberts v Western Australia [2012] FCA 1483 …. 9.16 Robinson v Kenny (No 2) [2015] FCA 2 …. 8.8 Rocklea Spinning Mills v Anti-Dumping Authority [1995] FCA 1188 …. 8.28 Rogers v R [1994] HCA 42 …. 8.22 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 2) [2014] FCA 526 …. 8.7 Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] FCA 764 …. 9.4 Rossmick No1 Pty Ltd v Bank of Queensland Ltd [2008] FCA 1632 …. 7.13 Rosson v Tesoriero [2011] FCA 449 …. 5.28 Ruddock v Vadarlis (No 2) [2001] 115 FCR 229 …. 12.4 Ryan v Primesafe [2015] FCA 8 …. 1.6, 8.11, 12.8

S S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 …. 9.7 S Hoffnung and Co Ltd v Husky (1977) 2 NSWLR 669 …. 10.16 Sagacious Legal Pty Ltd v Lumley General Insurance Ltd t/as Lumley Special Vehicles [2009] FCA 763 …. 7.7

— v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428 …. 4.16 Salvation Army (New South Wales) Property Trust v Australia [2015] FCA 674 …. 6.20 Salvatore Mercogliano v Tampas Nominees Pty Ltd [1993] FCA 419 …. 10.17 Samootin v Hannigan [2012] FCA 462 …. 5.21 — v Official Trustee in Bankruptcy [2012] FCA 64 …. 8.28 Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 …. 11.7 Samuels v Linzi Dresses Ltd [1981] 1 QB 115 …. 5.7 Sanderson v Blyth Theatre Co (1903) 2 KB 533 …. 12.10 Sankey v Whitlam (1978) 142 CLR 1 …. 6.25 Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No 4) [2011] FCA 1307 …. 9.19 Satchithananthan v National Australia Bank [2009] FCA 1171 …. 11.24 — v — [2010] FCAFC 47; (2010) 268 ALR 222 …. 5.21 Save the Ridge Inc v Commonwealth [2005] FCAFC 203 …. 8.28 Saxon (dec’d), Re; Johnson v Saxton [1962] 2 All ER 618; [1962] 1 WLR 859 …. 2.2 Schnabel v Lui (2002) 56 NSWLR 119 …. 10.17 Schutz Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (No 19) [2013] FCA 408 …. 5.7 Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 16) [2012] FCA 1255 …. 6.35 Schütz GMBH & Co KGAA v VIP Plastic Packaging Pty Ltd [2013] FCA 424 …. 6.5 Scott v Handley [1999] FCA 404 …. 9.5 — v Secretary, Department of Social Security (No 2) [2000] FCA 1450 …. 12.4 Seafolly Pty Ltd v Madden (No 5) [2014] FCA 1413 …. 10.4

Searson v Salmon [2014] FCA 1105 …. 8.17 Sebastian v Strongwall International Ltd (Deregistered) [2011] FCA 1045 …. 2.18 Sedco Forex International Inc v Nexus Energy WA Pty Ltd (No 2) [2013] FCA 216 …. 6.27 Selig v Wealthsure Pty Ltd [2013] FCA 348 …. 9.17 — v — (No 2) [2013] FCA 770 …. 8.8 Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365 …. 4.9 Setka v Gregor [2011] FCAFC 64 …. 9.7 Seven Network Ltd v Australian Competition and Consumer Commission [2007] FCA 1929 …. 11.29 — v News Ltd [2007] FCA 1062 …. 1.7 — v — [2007] FCA 2059 …. 12.14 Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 …. 10.9 Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 …. 9.5, 11.14 Shannon (in his capacity as receiver and manager of North East Wiradjuri Co Ltd) v North East Wiradjuri Co Ltd (No 3) [2012] FCA 106 …. 8.6 Sharpe, Re; Ex Parte: Powell v Donnelly [1996] FCA 896 …. 7.5 Shaw v MAB Corporation Pty Ltd [2014] FCA 62 …. 8.23, 8.24, 8.26 — v Yarranova Pty Ltd [2014] FCAFC 171 …. 9.7 Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd [2013] FCA 505 …. 7.3 — v — (No 2) [2013] FCA 716 …. 6.13 Sheikholeshami v Tolcher (No 2) [2012] FCA 199 …. 12.14 Shelton v National Roads and Motorists Association Ltd [2014] FCA 1090 …. 9.7 — v Repatriation Commission (1999) 85 FCR 587 …. 12.4

Shengli Pty Ltd t/as Duna World (Reg), Re [1989] FCA 442 …. 9.5 Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2013] FCA 1204 …. 6.18 Shurat HaDin, Israel Law Center v Lynch [2014] FCA 226 …. 1.20 — v — (No 4) [2014] FCA 1216 …. 12.17, 12.20, 12.21 Sievwright v Victoria [2013] FCA 964 …. 6.20 — v — (No 3) [2014] FCA 75 …. 4.12 Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 …. 10.16 Sims v Chong [2014] FCA 1069 …. 6.20, 8.22 — v Suda Ltd (No 2) [2015] FCA 281 …. 6.20 Singh v Minister for Immigration and Border Protection [2015] FCA 487 …. 11.6 — v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180 …. 11.18 —, Re [2012] FCA 322 …. 1.20 —, Re Application of [2014] FCA 76 …. 5.21 Skarzynski v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1134 …. 11.29 Skinner v Commonwealth [2012] FCA 1194 …. 1.20, 5.6, 5.7 Sklavos v Australasian College of Dermatologists [2013] FCA 1065 …. 4.11 Skyring, Re [2014] FCA 397 …. 8.20 Slick v Westpac Banking Corp (No 2) [2006] FCA 1712 …. 6.29 Smith v Marriott Support Services [2013] FCA 312 …. 2.7 — v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 …. 10.7 — v The Queen [1985] HCA 62; (1985) 159 CLR 532 …. 4.5 SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271 …. 2.17 Smits v Loel (No 2) [2015] FCA 29 …. 12.15 SMK Pty Ltd (formerly Canberra Roof Trusses Pty Ltd) v Kramer [1995] FCA 1616 …. 10.9

Soames v Secretary, Department of Social Services [2014] FCA 295 …. 11.29 — v Secretary, Department of Social Services (No 2) [2014] FCA 1062 …. 8.19 Soden v Kowalski [2011] FCA 318 …. 8.18 South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 …. 6.39 Southern Equity Pty Ltd v Timevale Pty Ltd [2008] FCA 1395 …. 7.13 Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 …. 10.8 SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (No 3) [2012] FCA 1318 …. 12.15 Specsavers Pty Ltd v The Optical Superstore Pty Ltd (2008) 208 FCR 78; [2012] FCAFC 183 …. 1.6, 8.8 — v — (No 4) [2012] FCA 652 …. 7.8, 12.2, 12.16 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 …. 8.17 Spencer v Commonwealth [2010] HCA 28 …. 8.22, 8.24, 8.25 — v — [2014] FCA 1117 …. 9.5 — v — [2014] FCA 1234 …. 6.34 SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 …. 3.12 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 …. 11.7 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 …. 8.24, 8.25 Squire v Rogers [1979] FCA 48 …. 9.5 Stephens-Sidebottom v Victoria [2011] FCA 893 …. 4.12 Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1) [2010] FCA 785 …. 6.2, 8.16 Stewart v Deputy Commissioner of Taxation [2010] FCA 402 …. 6.15 Stick v Native Title Registrar (No 2) [2014] FCA 202 …. 12.4 Still v Investec Bank (Australia) Ltd [2014] FCA 655 …. 8.12

Stoland Pty Ltd v Peter James Thurn [1997] FCA 557 …. 9.19 STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd [2012] FCA 1508 …. 4.5 Sumitomo Mitsui Banking Corp v Sumitomo Mitsui Financial Group Pty Ltd (No 2) [2009] FCA 496 …. 10.16 Super Pty Ltd (formerly known as Leda Constructions Pty Ltd) v SJP Formwork Pty Ltd (1992) 29 NSWLR 549 …. 8.6 Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 …. 1.6, 1.8, 1.9, 3.10, 6.10, 12.9 — v — (No 2) [2012] FCA 977 …. 1.6, 1.8, 1.9, 3.10, 6.10, 12.9 Survival & Industrial Equipment (Newcastle) Pty Ltd t/as SIE Liferaft Service v Owners of the Vessel ‘Alley Cat’ (1992) 36 FCR 129 …. 2.10 Sutherland v Pascoe [2013] FCAFC 15 …. 11.7 Suzlon Energy Ltd v Bangad [2011] FCA 1152 …. 6.38 — v — (Application of Credit Suisse Group SA) [2011] FCA 921 …. 1.6, 4.11 SZBEW v Minister for Immigration and Multicultural Affairs [2005] FMCA 999 …. 11.37 SZDGC v Minister for Immigration and Citizenship [2007] FCAFC 19 …. 10.2 SZKCC v Minister for Immigration and Citizenship [2007] FCA 1363 …. 11.8 SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486 …. 11.15 SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 …. 12.14 SZQBQ v Minister for Immigration and Citizenship [2011] FCA 885 …. 7.11 SZRMN v Minister for Immigration and Citizenship [2013] FCA 541 …. 5.8 SZRUO v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 777 …. 4.12

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 14305 …. 9.5 SZRZK v Minister for Immigration and Border Protection [2014] FCA 69 …. 11.10 SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 …. 4.7 SZTOV v Minister for Immigration and Border Protection [2014] FCA 942 …. 9.5 SZUHH v Minister for Immigration and Border Protection [2014] 1194 …. 12.19 SZUIE v Minister for Immigration and Border Protection [2014] FCA 1359 …. 9.14

T Tada Constructions Corporation Pty Ltd v JP Dixon Real Estate Pty Ltd (No 3) [2012] FCA 329 …. 6.9 Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 …. 6.15, 6.16 Tamawood Ltd v Habitare Developments Pty Ltd (admin apptd) (recs and mgrs apptd) [2011] FCA 1078 …. 8.17 Taylor v Saloniklis [2013] FCA 679 …. 6.24 — v — (No 2) [2014] FCA 410 …. 9.16 — v — (No 3) [2014] FCA 744 …. 6.24, 6.27 TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 …. 8.5 Telstra Corp Ltd v AAPT Ltd [1999] FCA 1410 …. 6.37, 10.2 — v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; 246 ALR 15; [2008] FCAFC 7 …. 2.13, 11.18 — v Minister for Communications, Information Technology and the Arts (No 3) [2007] FCA 1567 …. 2.13 — v Phone Directories Company Pty (No 3) [2014] FCA 949 …. 12.12

Tepko Pty Ltd v Water Board [2001] HCA 19 …. 8.28 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 …. 4.6 Territory Realty Pty Ltd v Garraway (No 3) [2013] FCA 914 …. 11.24, 12.12, 12.25 Thomas v APL Co Pte Ltd trading as APL Lines (Australia) [2013] FCA 911 …. 11.10 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission [1988] FCA 111 …. 11.4 Thompson v Kane (No 2) [2012] FCA 763 …. 4.7 Thompson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150; 37 ALR 66; [1981] HCA 48 …. 1.24, 10.2, 10.16 Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 …. 10.15, 10.17 TiVo Inc v Vivo International Corporation Pty [2013] FCA 1340 …. 10.17 — v — (No 2) [2012] FCA 336 …. 8.8 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 …. 11.29 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22 …. 11.12 Trade Practices Commission v Arnott’s Ltd; Arnott’s Biscuits Ltd; Fledspac Pty Ltd and the Dickens Corporation Pty Ltd [1989] FCA 440 …. 9.16 Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 …. 6.24, 6.27 — v Manfal Pty Ltd (No 3) [1991] FCA 650 …. 8.10 — v Queensland Aggregates Pty Ltd [1981] FCA 93 …. 6.25 Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Co (No 2) [2011] FCA 1215 …. 1.5 Travaglini v Raccuia [2012] FCA 620 …. 8.11

Travers v New South Wales [2000] FCA 1565 …. 7.6 Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276 …. 8.5, 10.11 Trend Services Pty Ltd v Commissioner of Taxation [2013] FCA 333 …. 10.13 Tropicana Ltd v Australasia Corporate Services Pty Ltd [2011] FCA 684 …. 10.9 Truong Giang Corp v Tung Mau Quach [2014] FCA 447 …. 7.3, 7.4 Tucker v Western Australia [2014] FCA 23 …. 8.10 Turner v State of Victoria (Department of Human Services) (No 2) [2011] FCA 1160 …. 8.8 Tyler v Thomas [2006] FCAFC 6 …. 9.16 Tyne v UBS AG (No 2) [2014] FCA 1228 …. 12.13

U U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd [1995] FCA 1581 …. 10.16 Ualesi t/as Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26 …. 12.14 Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131 …. 8.5 UGL Services Pty Ltd v F1 Solutions Pty Ltd [2012] FCA 245 …. 6.20 Ugur v Australian Federal Police [2011] FCA 15 …. 11.30 United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 50 …. 6.38 — v — [2006] FCA 116 …. 6.23 Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 …. 10.17 University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 …. 8.27 University of Western Australia v Gray (No 6) [2006] FCA 1825 …. 2.2 — v — (No 9) [2007] FCA 111 …. 6.8

University of Wollongong v Merwally (No 2) [1985] HCA 28 …. 9.19 Unpaid Systems Ltd v Telstra Corporation Ltd (No 2) [2014] FCA 1377 …. 6.41 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 …. 9.19 US Shipping Ltd v Leisure Freight & Import Pty Ltd (in liq) (No 2) [2015] FCA 413 …. 1.20 Utex Pty Ltd v Maritime Global Pty Ltd [2010] FCA 1149 …. 6.5 UTSA Pty Ltd (in liq) v Ultra Tune Pty Ltd [2004] VSC 105 …. 12.8 Uyar v Administrative Appeals Tribunal [2011] FCA 623 …. 7.10

V Valcorp Australia Pty Ltd v Angas Securities Ltd (No 2) [2012] FCAFC 52 …. 12.5 Valda Pty Ltd v Macarthur Coal Ltd [2012] 1264 …. 6.18 Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 …. 5.42 Van Aken (as trustee of the Van Aken Family Trust) v Diver Nominees Pty Ltd [2012] FCA 829 …. 6.20 Van Reesema v Giameos (1979) 27 ALR 525 …. 11.22 Vantage Holdings Pty Ltd v Huang (No 2) [2015] FCA 185 …. 12.14 Vaughan v Becton Property Group Ltd (No 2) [2014] FCA 705 …. 12.23 Vaysman v Deckers Outdoor Corp Inc [2011] FCAFC 17 …. 10.17 — v — [2014] FCAFC 60 …. 10.15, 10.17 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41 …. 11.17 Verge (trustee); Underdown (dec’d) (a bankrupt) v Fazio (No 2) [2013] FCA 728 …. 10.13 Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234 …. 9.4 Village Building Company Ltd v Canberra International Airport Pty Ltd

[2003] FCA 1195 …. 8.1, 8.28 — v — [2004] FCAFC 240 …. 8.28 Village Roadshow Corporation Ltd v Sheehan [1987] FCA 348 …. 2.1 Viner v Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 38 ALR 550 …. 10.17 Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 …. 12.13 — v — (No 3) [2014] FCAFC 31 …. 10.8, 11.17 — v — (No 5) [2013] FCA 28 …. 8.7, 8.8 Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231 …. 12.12

W WAAL v Minister for Immigration and Multicultural Affairs [2002] FCA 136 …. 7.7 WABG v Minister for Immigration and Multicultural Affairs [2002] FCA 138 …. 7.7 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 …. 9.5 Wade v Victoria (No 2) [2012] FCA 1080 …. 2.7, 4.12 Wakim, Re; Ex p McNally [1999] HCA 27; (1999) 198 CLR 511; 163 ALR 270 …. 1.2, 7.12 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; 112 ALR 289 …. 5.21, 6.20 Wang v Anying Group Pty Ltd (No 3) [2012] FCA 1380 …. 6.44, 9.14 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 …. 1.2 Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 3) [2012] FCA 819 …. 4.11 Warrell v Fair Work Australia (No 2) [2013] FCA 402 …. 4.11

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 …. 11.29 Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 …. 10.8 Webb v R [1994] HCA 30; (1994) 181 CLR 41 …. 9.7 Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 …. 9.2 Weinmann v Allphones Retail Pty Ltd (No 3) [2009] FCA 1292 …. 9.2 Wenkart v Pantzer [2008] FCA 1387 …. 9.19 — v — (No 3) [2013] FCAFC 162 …. 10.7 Wentworth v Woollahra Municipal Council [1982] HCA 41 …. 11.17 Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 …. 7.3 Western Australia v Ben Ward [1997] FCA 585 …. 1.24 Westpac Banking Corporation v New South Wales [2014] FCA 1368 …. 4.11 — v Paterson [1999] FCA 1254 …. 7.14 Westpoint Management Ltd (in liq) (recs and mgrs apptd) v Theobald; Re Lanepoint Enterprises Pty Ltd (in liq) (recs and mgrs apptd) [2012] FCA 686 …. 4.9 Whirlpool (Australia) Pty Ltd v Castel Electronics Pty Ltd [2015] FCA 906 …. 1.9 White v Overland [2001] FCA 1333 …. 6.13, 6.15 White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 …. 3.6, 12.8 Witham v Holloway (1995) 183 CLR 525 …. 10.17 Wong v Sklavos [2014] FCAFC 120 …. 6.34 — v — [2014] FCA 679 …. 11.9 Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 88 …. 6.15 Woolworths Ltd v BP plc [2006] FCAFC 52 …. 1.24 — v — [2006] FCAFC 132 …. 11.2

Workers Compensation Nominal Insurer v Hollis Demolitions Pty Ltd [2015] FCA 57 …. 10.8 Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447 …. 6.43 Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 …. 7.3 WZAQU v Minister for Immigration and Citizenship (No 2) [2013] FCA 403 …. 10.7

Y Y v University of Western Australia [2006] FCA 466 …. 5.42 Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49 …. 7.12, 7.13 Yarrabee Chicken Company Pty Ltd v Steggles Ltd (No 4) [2013] FCA 604 …. 6.16 Yeo v Damos Earthmoving Pty Ltd; Beachwood Development Pty Ltd (in liq) [2011] FCA 1129 …. 8.17 Yeo (as liquidator), in the matter of Lyco Innovations Pty Ltd (in liq) v Onesteel Trading Pty Ltd [2013] FCA 568 …. 1.6 Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 …. 10.8, 11.17 Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 …. 12.4 York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd [2014] FCA 1422 …. 7.3, 7.12, 7.13 Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 …. 6.17 Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (No 2) [2012] FCA 419 …. 5.7

Z Zaghloul v Woodside Energy Ltd (No 4) [2014] FCA 623 …. 8.28 — v — (No 5) [2014] FCA 1042 …. 3.3

Zarro v Australian Securities Commission (1992) 36 FCR 40 …. 6.25 Zegarac v Dellios [2007] FCAFC 58 …. 11.19 — v Pitcher Partners [2009] FCA 804 …. 9.4 Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385 …. 10.13 Zhu v Tech Universal (HK-Macau) Development Pty Ltd [2005] FCA 256 …. 7.5 Zomojo v Hurd (No 5) [2014] FCA 537 …. 10.14, 10.16, 10.17

TABLE OF STATUTES References are to page numbers

Commonwealth Aboriginal and Torres Strait Islander Act 2005 …. 3.2 Access to Justice (Civil Litigation Reforms) Amendment Act 2009 …. 1.4 Acts Interpretation Act 1901 s 15A …. 5.7 s 25C …. 5.2 s 28A …. 5.30 s 29 …. 5.31, 5.34 s 36(1) …. 5.8 s 36(2) …. 5.9 Administrative Appeals Tribunal Act 1975 …. 11.25 s 43C …. 11.25 s 44 …. 7.10, 11.26 s 44(1) …. 11.26, 11.29 s 44(2A) …. 5.6, 11.27, 11.28 s 44(3)(a) …. 11.26 s 44(3)(b)–(c) …. 11.26 s 44(7) …. 11.29, 11.31 s 44(10) …. 11.29 s 44A …. 11.27

s 44AA(1) …. 7.10 s 44AA(2)(a) …. 7.11 s 44AA(3)(a) …. 7.10 s 44AA(3)(b) …. 7.10 s 44AA(7) …. 7.10 s 44AA(10) …. 7.11 Administrative Decisions (Judicial Review) Act 1977 …. 1.2, 2.2, 5.6, 11.26, 11.27 s 3 …. 7.5 s 5 …. 3.2, 4.10, 5.28 s 11 …. 5.6 s 11(1) …. 3.2 s 11(1)(c) …. 5.6 s 18A …. 7.5 s 18A(1) …. 7.5 s 18A(3)–(4) …. 7.5 s 18A(5) …. 7.5 s 44(2A) …. 3.2 Admiralty Act 1988 …. 12.16 s 4 …. 11.23 Admiralty Rules 1988 …. 1.16, 4.8 Pt IV …. 3.1 r 26 …. 5.18 Archives Act 1983 …. 5.42 Australian Crime Commission Act 2002 s 57 …. 3.2 Australian Human Rights Commission Act 1986 s 46PO(2) …. 3.2

Australian Securities and Investments Commission Act 2001 …. 1.19 s 12GK …. 7.13 Bankruptcy Act 1966 …. 1.19, 10.5, 10.12 s 5 …. 7.5 s 35A …. 7.5 s 40(1)(g) …. 3.9 s 41 …. 5.6 s 43 …. 3.9 s 52(3) …. 10.13 s 81 …. 3.1, 5.18 Child Support (Registration and Collection) Act 1988 s 72Q …. 1.2 Civil Dispute Resolution Act 2011 …. 1.6, 1.8, 1.9, 2.1, 2.32, 3.1, 4.2, 6.10, 6.14, 8.2, 12.2, 12.8 Pt 2 …. 3.8 Pt 4 …. 3.9 s 3 …. 1.8, 3.9, 12.3 s 4 …. 1.8, 12.3 s 4(1)(a) …. 12.3 s 4(1)(b) …. 12.3 s 4(1A) …. 1.8 s 5 …. 1.8 s 6 …. 1.8, 2.32, 3.8 s 6(2)(b) …. 1.8 s 6(2)(b)(i) …. 2.32, 3.8 s 6(2)(b)(ii) …. 2.32 s 7 …. 6.6, 6.10 s 8 …. 1.8

s 9 …. 1.9, 3.10, 4.2, 12.9 s 10(2) …. 1.8, 3.10 s 12 …. 1.8, 3.10, 12.3, 12.9 s 12(1) …. 12.3, 12.9 s 12(1)(a) …. 3.10 s 12(1)(b) …. 3.10 s 12(2)–(3) …. 3.10 s 12(2) …. 1.8, 12.9 s 12(3) …. 1.8, 12.9 ss 15–16 …. 3.9 ss 15–17 …. 1.8 s 15(g) …. 1.8 s 15(h) …. 2.20, 2.32 s 16(c)–(d) …. 1.8 s 17 …. 1.8 s 17(1) …. 1.9 Civil Dispute Resolution Regulations 2011 …. 1.8 reg 4 …. 1.9, 3.9 Commonwealth Electoral Act 1918 …. 3.2 Competition and Consumer Act 2010 s 138C …. 7.12 s 138E …. 7.5 Sch 2 …. 7.5 Constitution Ch III …. 1.2, 5.7 s 51(xxxix) …. 1.8 s 71 …. 1.2 s 77 …. 1.2

Copyright Act 1968 …. 3.2 Corporations Act 2001 …. 1.9, 1.19, 5.23, 10.12 s 109X(1) …. 5.31 s 459A …. 1.9, 3.9 s 459G …. 1.9 s 459P …. 8.10 s 461(1)(a) …. 8.10 s 596A …. 3.1, 5.18 s 596B …. 3.1, 5.18 s 1335 …. 12.11 s 1337H(2) …. 7.12 s 1337L …. 7.12 Corporations (Aboriginal and Torres Strait Islander) Act 2006 …. 5.23 Designs Act 2003 …. 3.2 Evidence Act 1995 Pt 3.1 …. 2.15 Pt 3.3 …. 9.18 s 128A …. 2.23, 2.26 Fair Work Act 2009 …. 1.2, 1.8, 3.2, 3.9, 5.24 s 570 …. 12.2 Fair Work (Registered Organisations) Act 2009 s 6 …. 4.6 s 69(1) …. 3.2 s 177 …. 9.16 s 204 …. 3.2 s 233 …. 5.31 Federal Circuit Court Act 1999

s 39 …. 7.11 s 41 …. 7.11 Federal Court and Federal Circuit Court Regulation 2012 …. 5.22, 9.8, 12.21 Pt 1 …. 5.23 s 1.03 …. 5.23 s 1.04(1)–(2) …. 5.23 s 1.04(1) …. 5.23 s 1.04(2) …. 5.23 s 1.04(3) …. 5.23 s 1.04(4) …. 5.23 s 1.05 …. 5.22 s 2.03(1) …. 5.24 s 2.03(2) …. 5.24 s 2.03(3) …. 9.8 s 2.03(3)(a) …. 9.8 s 2.03(4) …. 9.8 s 2.03(5) …. 9.8 s 2.05 …. 5.27 s 2.06 …. 5.27 s 2.06(2) …. 5.27 s 2.08 …. 5.24 s 2.11(1) …. 5.24 s 2.14 …. 5.28 s 2.14(1) …. 5.24 s 2.14(2)–(5) …. 5.25 s 2.14(2) …. 9.8 s 2.14(3) …. 9.8 s 2.15 …. 5.24

s 2.15(1) …. 5.28 s 2.15(2) …. 5.28 s 2.15(2)(a) …. 5.28 s 2.15(2)(b) …. 5.28 s 2.15(3) …. 5.28 s 2.15(4)–(5) …. 5.28 s 2.16 …. 5.26 s 2.16(2)–(3) …. 5.26 s 2.16(5) …. 5.26 s 2.18(2)–(3) …. 5.25 s 2.18(2) …. 5.24 s 2.18(3) …. 5.24 s 2.18(4) …. 9.8 s 2.19 …. 5.29 s 2.19(1)–(3) …. 5.29 s 2.19(4) …. 5.28, 5.29 s 2.19(5) …. 5.29 s 2.19(6) …. 5.29 s 2.19(7) …. 5.29 s 2.19(9) …. 5.29 s 2.19(10) …. 5.29 s 2.21 …. 5.27, 5.29 s 5.01 …. 5.22 Sch 1 …. 5.23, 5.28, 5.29, 10.12, 12.22 Sch 1, Pt 1 …. 5.23 Federal Court (Bankruptcy) Rules 2005 …. 1.16, 8.16, 10.12 r 2.01 …. 3.1

r 2.02 …. 11.23 r 4.02 …. 3.1 r 6.13 …. 5.18 Sch 2 …. 1.19, 11.23 Federal Court (Corporations) Rules 2000 …. 1.16, 3.11, 4.8, 8.16, 10.12 r 2.2 …. 3.1 r 11.3 …. 5.18 r 16.1 …. 11.23 Sch 2 …. 1.19, 11.23 Federal Court of Australia Act 1976 …. 1.1, 1.4, 1.16, 1.20, 1.21, 1.22, 2.32, 5.6, 6.2, 6.13, 12.1, 12.4, 12.13 Pt III, Div 1A …. 1.2, 9.4 Pt III, Div 2 …. 11.2, 11.21 Pt III, Div 2A …. 1.2 Pt IVA …. 3.2, 4.9, 8.28 Pt VAA …. 5.42, 5.43 Pt VAAA …. 8.19 Pt VAAA, Div 2 …. 8.19 Pt VB …. 1.4, 1.5, 1.6, 1.8, 1.9, 1.17, 1.22, 6.13, 8.16, 12.2, 12.6 Pt VIB …. 1.2 s 4 …. 1.6, 1.23, 3.4, 4.2, 5.4, 7.6, 8.2, 11.24, 12.8 s 5 …. 1.2 s 5(2) …. 1.2, 10.9 s 5(3) …. 1.2 s 12 …. 1.2 s 13 …. 1.2 s 13(5) …. 1.2 s 15(1) …. 1.2

s 17 …. 1.24, 10.2 s 17(1) …. 1.24 s 17(2) …. 1.20, 1.24, 11.3 s 17(4) …. 1.24 s 18A …. 1.2 s 18N …. 11.23 s 18N(1) …. 11.23 s 18N(2) …. 11.23 s 18P …. 10.11, 11.23 s 19 …. 1.2 s 19(2) …. 11.26 ss 20–23 …. 1.2 s 20(1) …. 11.26 s 20(1A) …. 11.26 s 20(2) …. 11.26 s 21 …. 1.24 s 22 …. 1.24, 3.12, 10.8 s 23 …. 1.20, 1.24, 2.1, 2.2, 2.19, 2.21, 2.24, 5.7, 5.21, 6.18, 6.34, 8.17, 8.27, 10.8, 10.13, 11.16 s 24 …. 1.2, 1.23, 6.11, 11.2, 11.4, 11.26 s 24(1) …. 1.2, 11.2, 11.4, 11.20 s 24(1)(a) …. 11.2, 11.24 s 24(1)(b) …. 11.2 s 24(1)(c) …. 11.2 s 24(1)(d)–(e) …. 11.2 s 24(1)(d) …. 1.2 s 24(1A) …. 8.23, 8.26, 9.5, 11.4 s 24(1AA) …. 11.2

s 24(1AA)(b) …. 11.2 s 24(1C) …. 11.4 s 24(1D) …. 11.4 s 24(1D)(b) …. 8.26 ss 25–30 …. 1.2 s 25 …. 11.2, 11.3 s 25(1) …. 7.7 s 25(1AA) …. 7.7, 11.2 s 25(1AA)(b) …. 7.7 s 25(2) …. 11.2, 11.3, 11.4, 11.10 s 25(2)(d) …. 10.13 s 25(2B) …. 11.2, 11.3, 11.18 s 25(2B)(a) …. 11.12 s 25(2B)(ba) …. 11.18 s 25(2B)(bb) …. 11.18 s 25(2B)(c) …. 9.6 s 25(2BB) …. 11.2 s 27 …. 11.14 s 28 …. 1.20, 5.7, 10.13, 11.2 s 28(1) …. 1.24 s 28(1)(b) …. 2.1, 7.2, 11.2, 11.18 s 28(4) …. 2.1 s 29 …. 2.1 s 29(1) …. 11.16 s 31(1) …. 10.15 s 31A …. 3.4, 6.11, 8.19, 8.22, 8.24, 8.25, 8.26, 11.4 s 31A(1) …. 8.24 s 31A(2) …. 4.11, 8.24

s 31A(3) …. 8.25 s 31A(5) …. 8.24 s 32 …. 1.2 s 32A …. 7.9 s 32AA(1) …. 7.9 s 32AA(2) …. 7.9 s 32AB …. 7.7 s 32AB(1) …. 7.6 s 32AB(2)(b) …. 7.6 s 32AB(6) …. 7.7, 7.9, 7.10 s 32AB(6)(b) …. 7.9 s 32AB(8) …. 7.6, 11.2 s 32AB(9A) …. 7.6 s 33H …. 3.2 s 33Z(1)(c) …. 1.24 s 33Z(1)(d) …. 1.24 s 33ZF …. 6.34 s 34 …. 1.2 s 35 …. 11.23 s 35A …. 1.19, 5.21, 12.25 s 35A(1) …. 11.23 s 35A(1)(f) …. 11.23 s 35A(2) …. 1.19, 11.23 s 35A(4) …. 11.24 s 35A(5) …. 11.24 s 35A(6) …. 11.24 s 35A(7) …. 11.24

s 35A(8) …. 11.23 s 37AF …. 5.43 s 37AH …. 5.43 s 37AH(1) …. 5.43 s 37AH(2) …. 5.43 s 37AG …. 5.43 s 37AL …. 5.43 s 37AM(1) …. 8.18 s 37AO …. 8.19, 8.20, 8.21 s 37AO(1) …. 8.19 s 37AO(2) …. 8.19, 8.21, 10.14 s 37AO(3) …. 8.19, 8.21 s 37AO(4) …. 8.19 s 37AO(5) …. 8.21 s 37AO(6) …. 8.19 s 37AP …. 8.19 s 37AQ …. 8.20 s 37AQ(2)–(4) …. 8.20 s 37AR …. 8.21 s 37AR(2) …. 8.20 s 37AR(3) …. 8.20 s 37AR(4) …. 8.20 s 37AS(1) …. 8.20 s 37AS(2) …. 8.20 s 37AT …. 8.20 s 37AT(1)(a) …. 8.20 s 37M …. 1.4, 1.5, 1.6, 1.7, 1.11, 1.22, 2.1, 2.17, 2.31, 3.1, 3.11, 3.12, 4.11, 5.7, 6.1, 6.7, 6.13, 6.14, 6.15, 6.18, 6.20, 6.23, 6.27, 6.29, 6.30, 6.34,

6.35, 6.38, 6.39, 7.3, 7.4, 7.6, 7.11, 8.6, 8.11, 8.28, 9.1, 9.2, 9.5, 9.6, 9.19, 10.1, 10.15, 11.3, 11.6, 11.7, 11.14, 11.18, 11.35, 12.2, 12.3, 12.8, 12.9, 12.14, 12.15, 12.16, 12.17 s 37M(1) …. 1.5, 2.1, 4.16, 8.1, 10.7, 10.11, 12.14 s 37M(1)(a) …. 1.5, 5.7 s 37M(1)(b) …. 1.5 s 37M(2) …. 1.5, 10.11, 11.33 s 37M(2)(b) …. 11.2 s 37M(2)(d) …. 5.42 s 37M(2)(e) …. 12.14 s 37M(3) …. 1.5, 1.16, 8.16 s 37M(4) …. 1.5, 1.16 s 37N …. 1.4, 1.5, 1.6, 1.7, 1.9, 1.22, 2.31, 3.1, 3.10, 4., 4.11, 5.7, 6.1, 6.2, 6.14, 6.18, 6.29, 6.30, 6.38, 6.39, 7.3, 7.4, 7.8, 8.11, 8.22, 9.1, 10.17, 12.2, 12.3, 12.8, 12.15, 12.16, 12.17 s 37N(1)–(2) …. 12.8 s 37N(1) …. 1.6, 6.13, 8.16, 12.2, 12.3 s 37N(2) …. 1.6, 4.2, 12.2 s 37N(2)(b) …. 1.6 s 37N(3) …. 1.6, 12.8 s 37N(4) …. 1.6, 1.8, 12.2, 12.8 s 37N(5) …. 1.6, 1.8, 12.8, 12.9 s 37P …. 1.4, 1.22, 1.23, 6.18, 6.34, 6.38, 12.3 s 37P(2) …. 11.22 s 37P(3) …. 1.23, 11.22 s 37P(3)(a) …. 1.23 s 37P(3)(c) …. 1.23 s 37P(3)(f)–(g) …. 1.23

s 37P(5)–(6) …. 1.23, 12.2 s 37P(6) …. 11.22 s 37P(6)(a) …. 8.17 s 37P(6)(b) …. 6.20 s 37P(6)(e) …. 12.15 s 39 …. 8.6, 9.4 s 40 …. 9.4 s 43 …. 1.6, 2.22, 6.23, 8.4, 11.20, 12.2, 12.3, 12.7 s 43(1)(c) …. 12.2 s 43(1A) …. 12.2 s 43(2) …. 12.2 s 43(2B) …. 11.29 s 43(3) …. 12.2, 12.14 s 43(3)(a) …. 12.6 s 43(3)(b) …. 12.2 s 43(3)(c) …. 12.2 s 43(3)(d) …. 12.2, 12.14 s 43(3)(e) …. 12.2 s 43(3)(f) …. 3.10, 8.11, 12.8, 12.9 s 43(3)(g) …. 12.15 s 43(3)(h) …. 6.24, 12.2 s 43(3)(h)(i) …. 6.24 s 43(3)(h)(ii) …. 6.24 s 43(3)(h)(iii) …. 6.24 s 45 …. 3.7, 6.21 s 47 …. 6.21, 9.18 ss 47A–47F …. 6.4, 9.13 s 48 …. 7.3, 7.4

s 48(1) …. 7.2 s 50 …. 5.43 s 51 …. 1.24, 5.10 s 51A(1) …. 10.4 s 51A(1)(a) …. 10.4 s 51A(1)(b) …. 10.4 s 52 …. 10.4, 12.24 s 52(2) …. 10.4 s 53 …. 10.11 s 53A …. 8.2, 8.4 s 53A(1A) …. 8.2 s 53AA(1) …. 8.4 s 53AA(3) …. 8.4 s 53AB(2) …. 8.4 s 53AB(4) …. 8.4 s 53AB(5)–(6) …. 8.4 s 53B …. 8.3 s 54 …. 8.4 s 54A …. 8.6 s 54A(1)–(2) …. 8.6 s 54A(1) …. 8.6 s 54A(3) …. 8.6 s 56 …. 11.16, 12.11 s 56(2) …. 12.11 s 56(3) …. 12.11 s 56(4) …. 11.16, 12.11 s 58 …. 9.15

s 58(3) …. 9.15 s 59 …. 1.17 s 59(2B) …. 6.19 Federal Court of Australia Regulations 2004 …. 5.22 Federal Court Rules 1979 …. 1.17, 1.18, 4.7, 5.39, 6.1, 6.6, 6.11, 6.39, 11.17, 11.29, 12.12, 12.17 O 4 r 1 …. 3.5 O 4 r 6 …. 3.6 O 4 r 6(1) …. 3.5 O 5 r 8 …. 6.8 O 6 r 17 …. 4.14 O 11 r 13 …. 6.16 O 15 r 8 …. 6.29, 6.31 O 15A r 3(1) …. 2.10 O 15A r 6 …. 2.13 O 25B …. 2.25 O 28 r 3 …. 12.11 O 29 r 2 …. 8.28 O 29 r 5 …. 9.2 O 32 r 2(1)(c) …. 9.14 O 35 …. 10.6 O 35 r 7(3) …. 10.8, 10.9 O 36 …. 10.6 O 43 r 3 …. 4.12 O 45 r 7 …. 4.4 O 51 r 15(2) …. 11.10 O 52 r 18(3) …. 11.19 O 52 r 22 …. 11.15

O 62 r 2 …. 12.18 O 62 r 3(3) …. 12.23 O 62 r 6 …. 12.18 O 62 r 45(3) …. 12.24 Sch 2 …. 12.12 Federal Court Rules 2011 …. 1.1, 1.5, 1.8, 1.13, 1.16, 1.17, 1.18, 1.24, 2.1, 5.6, 5.10, 5.30, 6.2, 6.5, 6.10, 6.13, 10.6, 12.1, 12.8 Ch 2 …. 3.1, 3.2 Ch 3 …. 3.1, 3.2 Pt 2 …. 7.2 Pt 4 …. 4.1 Pt 7 …. 2.1, 2.20, 2.25, 2.32, 4.8, 5.36, 6.21 Pt 8 …. 3.1, 3.5 Pt 9 …. 4.1 Pt 10 …. 3.11, 5.30, 5.36, 5.38 Pt 11 …. 5.39, 6.6 Pt 12 …. 6.6 Pt 17 …. 2.20, 2.25, 6.11, 8.4, 8.6 Pt 19 …. 12.11 Pt 20 …. 6.24, 6.39 Pt 22 …. 6.43 Pt 24 …. 6.33, 6.34 Pt 25 …. 8.7 Pt 27 …. 7.2 Pt 28 …. 8.16 Pt 30 …. 6.32 Pt 32 …. 7.1 Pt 33 …. 11.21

Pt 35 …. 11.6 Pt 36 …. 11.21 Pt 39 …. 10.6 Pt 40 …. 12.16, 12.17, 12.18, 12.19 Pt 41 …. 10.11, 10.12 Pt 42 …. 6.36, 10.15, 10.17 Div 1.3 …. 1.20 Div 2.4 …. 5.42 Div 3.1 …. 1.19, 11.23, 12.25 Div 4.2 …. 4.7 Div 5.2 …. 8.15, 8.17 Div 7.1 …. 2.1, 2.9, 2.32 Div 7.2 …. 2.1, 2.6 Div 7.3 …. 2.1, 2.9, 2.11, 2.15, 2.16, 6.23 Div 7.4 …. 1.18, 2.1, 2.18, 2.19, 2.20, 2.22, 2.26 Div 7.5 …. 1.18, 2.1, 2.24, 2.25 Div 8.2 …. 4.1, 4.14 Div 9.1 …. 4.9 Div 9.2 …. 4.9 Div 9.3 …. 4.9 Div 9.4 …. 4.9 Div 9.5 …. 4.9 Div 9.6 …. 2.6, 4.12 Div 10.1 …. 5.30, 5.31 Div 10.2 …. 5.30 Div 10.3 …. 5.30 Div 10.4 …. 5.30, 5.36 Div 10.5 …. 5.30, 5.36, 5.37

Div 10.6 …. 5.36, 5.38 Div 15.1 …. 6.8 Div 16.1 …. 3.6, 6.16 Div 16.2 …. 6.20 Div 16.4 …. 6.16 Div 16.5 …. 6.18 Div 20.3 …. 2.16 Div 23.2 …. 9.17 Div 26.2 …. 8.9, 8.12 Div 27.1 …. 7.5 Div 28.2 …. 8.4 Div 28.3 …. 8.3 Div 28.4 …. 8.3 Div 28.5 …. 8.5 Div 29.1 …. 2.4, 2.11, 2.14, 2.20, 2.25, 3.7, 6.11, 6.21 Div 29.2 …. 2.7 Div 30.2 …. 9.2 Div 32.1 …. 3.2 Div 32.2 …. 3.2 Div 33.1 …. 3.2 Div 33.2 …. 11.28 Div 33.3 …. 3.2 Div 33.4 …. 3.2 Div 34.2 …. 3.2 Div 34.3 …. 3.2 Div 34.4 …. 3.2, 9.13 Div 34.5 …. 3.2

Div 34.6 …. 3.2 Div 34.7 …. 3.2 Div 36.3 …. 4.8 Div 36.4 …. 11.18 Div 36.5 …. 11.22 Div 36.6 …. 11.21 Div 39.1 …. 10.6 Div 39.3 …. 10.15 Div 40.2 …. 12.17, 12.18, 12.19, 12.22, 12.25 Div 40.3 …. 12.19 Div 41.4 …. 10.11 Div 41.6 …. 10.10 Div 41.2 …. 10.11 Div 41.3 …. 10.11 Div 42.1 …. 10.17 Div 42.2 …. 10.17 Div 42.3 …. 10.17 r 1.04(1) …. 1.17 r 1.04(2)–(3) …. 1.17 r 1.21 …. 1.17 r 1.31 …. 1.20 r 1.32 …. 1.20, 2.19, 2.21, 2.24, 3.6, 5.7, 5.21, 5.37, 6.18, 6.19, 6.23, 6.24, 6.34, 8.17, 8.27, 10.13, 11.12, 11.32, 12.8 r 1.33 …. 1.20, 2.8, 2.16, 6.19 r 1.34 …. 1.20, 2.11, 2.20, 2.25, 3.13, 4.5, 4.6, 5.2, 5.7, 5.21, 6.24, 6.38, 9.13, 9.18, 10.8, 10.16 r 1.35 …. 1.20, 2.20, 3.13, 5.2, 5.7, 6.19, 8.8, 8.12, 8.17, 12.23 r 1.36 …. 1.20, 11.3

r 1.38 …. 1.20, 2.11, 5.7 r 1.39 …. 1.20, 2.11, 3.11, 5.6, 5.7, 11.10 r 1.40 …. 1.20, 7.6, 7.8, 7.10, 8.27, 10.16, 11.24, 12.8, 12.16 r 1.41 …. 1.20 r 1.42 …. 1.20 r 1.61 …. 5.8 r 1.61(2) …. 5.8 r 1.61(3) …. 5.8 r 1.61(4)(a) …. 5.9 r 1.61(4)(b) …. 5.9 r 1.61(5) …. 5.8 r 2.02 …. 7.2, 7.3, 7.4 r 2.04 …. 5.45 r 2.11 …. 5.2 r 2.12 …. 5.2 r 2.13(1)(a) …. 5.2 r 2.13(1) …. 5.3 r 2.13(2)–(4) …. 5.3 r 2.13(4) …. 5.3 r 2.13(5) …. 5.3 r 2.14 …. 5.3 r 2.15(1) …. 5.4 r 2.15(1)(a) …. 4.3 r 2.15(3) …. 5.4 r 2.16 …. 5.5, 5.39 r 2.21(1) …. 5.19 r 2.21(1)(c) …. 5.13 r 2.21(2) …. 5.3, 5.20

r 2.21(3) …. 5.20 r 2.21(4) …. 5.12 r 2.22 …. 5.13 r 2.22(1)(b) …. 5.13 r 2.22(1)(d) …. 5.16 r 2.22(2) …. 5.13 r 2.22(3) …. 5.13 r 2.23 …. 5.11, 5.16 r 2.23(1) …. 5.16 r 2.23(2) …. 5.18 r 2.23(3) …. 5.20 r 2.23(4)(b) …. 5.16 r 2.24 …. 5.16 r 2.25 …. 5.19, 5.20 r 2.26 …. 5.21 r 2.27 …. 5.21, 5.24 r 2.27(a)–(b) …. 5.21 r 2.27(c) …. 5.21 r 2.27(d) …. 5.21 r 2.27(e) …. 5.21 r 2.27(f) …. 5.21 r 2.28 …. 5.21 r 2.29 …. 5.17, 5.21 r 2.31 …. 5.42 r 2.31(2) …. 5.44 r 2.31(3) …. 5.44 r 2.32 …. 5.42, 5.45

r 2.32(1) …. 5.42 r 2.32(2) …. 5.42 r 2.32(3) …. 5.42 r 2.32(5) …. 5.45, 5.46 r 2.34 …. 5.42 r 2.43 …. 12.21 r 3.01 …. 1.19, 11.23 r 3.03 …. 1.24 r 3.04 …. 11.24, 12.25 r 3.05 …. 1.19, 11.24 r 3.11 …. 11.24, 12.25 r 4.01(1) …. 4.2, 4.5 r 4.01(2) …. 4.6 r 4.02 …. 4.3 r 4.03 …. 4.3 r 4.04(1) …. 4.4 r 4.04(2) …. 4.4 r 4.05(1) …. 4.4 r 4.05(2) …. 4.4 r 4.12 …. 4.7 r 4.12(2) …. 4.7 r 4.12(2)(d) …. 4.7 r 4.13 …. 4.7 r 4.14 …. 4.7 rr 4.15–4.17 …. 4.7 r 4.15 …. 4.7 r 4.18 …. 4.7 r 4.19 …. 4.7

r 5.01 …. 6.2 r 5.02 …. 6.6 r 5.03 …. 1.8 r 5.03(2) …. 6.10 r 5.03(3) …. 6.10 r 5.04 …. 6.3, 6.22, 9.10 r 5.04(2) …. 9.6 r 5.04(2) …. 6.2 r 5.04(3) …. 6.3, 9.6, 9.17 r 5.06(1) …. 6.2 r 5.07 …. 6.11 r 5.08 …. 6.2, 9.6 r 5.21 …. 6.7, 8.15 r 5.22 …. 6.7, 6.38, 8.15, 8.16 r 5.22(a)–(b) …. 8.15 r 5.22(b) …. 8.16 r 5.22(c) …. 6.2, 8.15, 8.16 r 5.22(d) …. 8.15, 8.16 r 5.23 …. 6.2, 6.38, 8.15, 8.17, 8.17 r 5.23(1)(b) …. 6.2 r 5.23(2) …. 6.2, 6.7, 8.17 r 5.23(2)(c) …. 8.17 r 6.01 …. 8.18 r 6.02 …. 8.19 r 6.03 …. 8.18, 8.20 r 6.03(b) …. 8.20 r 6.11 …. 9.13

r 6.11(3) …. 9.13 r 6.11(4)(a)–(b) …. 9.13 r 6.11(4)(c) …. 9.13 r 6.12 …. 9.13 r 7.01 …. 2.2, 2.3, 2.5 r 7.01(1) …. 2.2, 2.3, 2.4 r 7.01(2) …. 2.4 r 7.01(1)(a) …. 2.2 r 7.01(1)(b)(i) …. 2.2 r 7.01(1)(b)(ii) …. 2.2 r 7.01(1)(c) …. 2.2 r 7.01(1)(d) …. 2.2 r 7.01(3) …. 2.5 r 7.11 …. 2.7, 2.8 r 7.11(1) …. 2.6 r 7.11(2) …. 2.7 r 7.11(2)(b) …. 2.7 r 7.11(2)(b)(i) …. 2.7 r 7.11(2)(b)(ii) …. 2.7 r 7.11(2)(b)(iii) …. 2.7 r 7.11(3) …. 2.8 r 7.11(4) …. 2.8 r 7.21 …. 2.9 r 7.22 …. 2.9, 2.10, 2.11, 2.12, 2.17, 2.31, 2.32 r 7.22(1) …. 2.10, 2.12 r 7.22(1)(a) …. 2.10 r 7.22(1)(b) …. 2.10 r 7.22(1)(c) …. 2.10

r 7.22(2) …. 2.12 r 7.22(2)(a) …. 2.12 r 7.22(2)(b) …. 2.12 r 7.22(2)(c) …. 2.12 r 7.22(3) …. 2.12 r 7.23 …. 2.9, 2.10, 2.13, 2.31 r 7.23(1) …. 2.13, 2.14 r 7.23(1)(a) …. 2.13 r 7.23(1)(b) …. 2.13 r 7.23(1)(c) …. 2.13 r 7.23(2) …. 2.13 r 7.24 …. 2.11, 2.14 r 7.24(3) …. 2.11, 2.14 r 7.25 …. 2.12, 2.15 r 7.26 …. 2.15 r 7.27(1) …. 2.16 r 7.27(2) …. 2.16 r 7.28 …. 2.16 r 7.29 …. 2.17 r 7.31 …. 2.18 r 7.32 …. 2.18, 2.20 r 7.32(1) …. 2.18, 2.19 r 7.32(2) …. 2.18 r 7.33 …. 2.18 r 7.34 …. 2.18 r 7.35 …. 2.21 r 7.35(1)–(3) …. 2.21

r 7.35(1)(b) …. 2.21, 2.26 r 7.35(2) …. 2.18 r 7.35(4)–(5) …. 2.21 r 7.35(4)(a) …. 2.21 r 7.35(6) …. 2.19, 2.21 r 7.37 …. 2.18 r 7.38 …. 2.22 r 7.41 …. 2.24 r 7.42 …. 2.24, 2.25 r 7.43 …. 2.26 r 7.43(a) …. 2.26 r 7.43(b) …. 2.26 r 7.43(c) …. 2.26 r 7.45 …. 2.26 r 7.45(1)(e) …. 2.26 r 7.45(3) …. 2.24, 2.26 r 7.45(4) …. 2.24 r 7.46 …. 2.28 r 7.46(2) …. 2.28 r 8.01(1) …. 3.3 r 8.01(2) …. 3.3 r 8.01(3) …. 3.3 r 8.02 …. 1.8, 3.8 r 8.02(1)–(2) …. 3.8 r 8.02(3) …. 3.8 r 8.03 …. 3.3 r 8.03(1) …. 3.3 r 8.03(2) …. 3.3, 6.11

r 8.03(3) …. 3.3 r 8.04 …. 3.4 r 8.04(1) …. 3.4 r 8.04(2) …. 3.4 r 8.05 …. 3.5, 6.21 r 8.05(1) …. 3.5, 3.6 r 8.05(1)(a) …. 3.5 r 8.05(1)(b) …. 3.5 r 8.05(2) …. 3.7 r 8.06 …. 2.11, 2.14, 3.5, 3.11 r 8.07 …. 3.11 r 8.07(3) …. 3.11 r 8.11(1) …. 4.14 r 8.11(2) …. 4.14 r 8.12(1)(a) …. 4.14 r 8.12(1)(a)–(b) …. 4.15 r 8.12(1)(b)–(c) …. 4.15 r 8.12(1)(c) …. 4.14 r 8.12(1)(d) …. 4.14 r 8.12(2) …. 4.15 r 8.21 …. 3.12 r 8.21(1) …. 3.12 r 8.21(1)(a) …. 3.12 r 8.21(1)(b) …. 3.12 r 8.21(1)(c) …. 3.12 r 8.21(1)(d) …. 3.12 r 8.21(1)(e) …. 3.12

r 8.21(1)(f) …. 3.12 r 8.21(1)(g)(i) …. 3.12 r 8.21(1)(g)(ii) …. 3.12 r 8.21(2) …. 3.12 r 8.21(3) …. 3.12 r 8.22 …. 3.12 r 8.23 …. 3.13 r 8.24 …. 3.13 r 8.25 …. 3.13 r 9.02 …. 4.9 r 9.03 …. 4.9 r 9.04(1) …. 4.9 r 9.04(2) …. 4.9 r 9.05 …. 3.12, 4.9 r 9.05(1) …. 4.9 r 9.06(a) …. 9.3 r 9.06(b) …. 9.3 r 9.07 …. 4.11 r 9.08 …. 4.11 r 9.09(1) …. 4.9 r 9.09(2) …. 4.9 r 9.10 …. 4.9 r 9.12 …. 4.13 r 9.12(1) …. 4.13 r 9.12(2) …. 4.13 r 9.12(2)(a) …. 4.13 r 9.12(3) …. 4.13 r 9.32 …. 3.2

r 9.61 …. 4.12 r 9.62 …. 4.12 r 9.63 …. 4.12 r 9.65 …. 4.12 r 9.66 …. 4.12 r 9.70 …. 2.6, 4.12 r 9.70(2) …. 4.12 r 9.71 …. 2.6, 2.8, 4.12 r 9.71(2)(c) …. 2.7 r 10.01 …. 5.31 r 10.02 …. 5.31 r 10.03 …. 5.31 r 10.04 …. 5.31 r 10.05 …. 5.31 r 10.06 …. 5.31 r 10.07 …. 5.31 r 10.08 …. 5.31 rr 10.09–10.10 …. 5.31 r 10.11 …. 5.32 r 10.12 …. 5.32 rr 10.21–10.28 …. 5.33 r 10.22 …. 4.3, 5.33 r 10.23 …. 3.11, 5.33 r 10.24 …. 3.11, 5.33 r 10.25 …. 5.33 r 10.31 …. 5.34 r 10.31(a) …. 5.34

r 10.31(b) …. 5.34 r 10.31(c) …. 5.34 r 10.31(d) …. 5.34 r 10.31(e) …. 5.34 r 10.32 …. 5.34 r 10.41 …. 5.36 r 10.42 …. 5.36 r 10.43 …. 5.37, 5.38 r 10.43(2) …. 5.36 r 10.43(3) …. 5.36 r 10.43(4) …. 5.36 r 10.43(7) …. 5.36 r 10.44 …. 5.36, 5.37, 5.38 r 10.45 …. 5.36 r 10.46 …. 5.36 r 10.47 …. 5.36 r 10.48 …. 5.36 r 10.49 …. 5.36 r 10.51 …. 5.37 r 10.52 …. 5.37 r 10.62 …. 5.38 r 10.64 …. 5.38 r 10.66 …. 5.38 r 10.66(3) …. 5.38 r 10.67 …. 5.38 r 10.68 …. 5.38 r 10.70(2) …. 5.38 r 10.71(2) …. 5.38

r 10.72 …. 5.38 rr 10.73–10.76 …. 5.38 r 11.01 …. 5.5, 5.34, 5.39 r 11.01(1) …. 5.39 r 11.01(2) …. 5.39 r 11.01(3) …. 5.39 r 11.01(4) …. 5.39 r 11.01(5) …. 5.39 r 11.02 …. 5.40 r 11.03 …. 5.40 r 11.04 …. 5.40 r 11.06 …. 5.39, 6.6 r 11.07 …. 5.39 r 11.08 …. 5.39 r 11.09 …. 5.39 r 12.01 …. 4.10 r 12.01(1) …. 5.41 r 12.01(2) …. 5.41 r 12.01(3) …. 5.41 rr 13.03–13.05 …. 12.19 r 13.03 …. 12.19 r 13.03(4) …. 12.19 r 15.01 …. 6.8 r 15.02 …. 6.8 r 15.03(1) …. 6.10 r 15.04 …. 6.8 r 15.05 …. 6.8

r 15.06 …. 6.8, 6.15 r 15.07 …. 6.8 r 15.10(1)(a) …. 6.8 r 15.11(b) …. 6.8 r 15.15 …. 6.9 r 15.15(1) …. 6.9 r 15.15(2) …. 6.9 r 15.15(3) …. 6.9 r 15.17 …. 6.9 r 15.18 …. 6.9 rr 16.01–16.02 …. 3.6, 6.16 r 16.01 …. 6.16 r 16.01(c) …. 3.6 r 16.02(2)–(5) …. 3.6 r 16.02(1) …. 6.16 r 16.02(2) …. 6.20 r 16.02(2)(a)–(b) …. 6.16 r 16.02(2)(c)–(f) …. 6.16 r 16.03 …. 6.16 rr 16.04–16.06 …. 3.6 r 16.05 …. 11.8 r 16.06 …. 6.16 r 16.07(1) …. 6.16 r 16.07(2) …. 6.16 r 16.07(3)–(4) …. 6.16 r 16.11 …. 6.16 r 16.12 …. 8.10 r 16.21 …. 6.20, 8.22

r 16.21(1) …. 6.20, 10.14 r 16.21(1)(d) …. 6.20 r 16.21(1)(f) …. 6.20 r 16.21(2) …. 6.20 r 16.32 …. 6.6, 6.7, 6.16, 6.18 r 16.33 …. 6.16, 6.18 r 16.41 …. 6.17 r 16.42 …. 6.17 r 16.43 …. 6.17 r 16.44 …. 6.17 r 16.45 …. 6.17 r 16.45(1) …. 6.17 r 16.45(2) …. 6.17 r 16.45(3) …. 6.17 r 16.51 …. 6.18 r 16.51(4) …. 6.18 r 16.52 …. 6.18 r 16.53 …. 6.18, 6.19 r 16.55(1) …. 6.18 r 16.55(3) …. 6.18 r 16.55(4) …. 6.18 r 16.56 …. 6.18 r 16.58 …. 6.18 r 16.60 …. 6.18 r 17.01 …. 6.11 r 17.01(1) …. 2.20, 6.11, 6.21 r 17.01(2) …. 6.11

r 17.02 …. 6.11, 6.21 r 17.02(1) …. 6.11 r 17.02(2) …. 6.11 r 17.03 …. 6.11 r 17.04 …. 6.11 r 19.01 …. 12.11 r 19.01(1) …. 12.11 r 19.01(3) …. 12.11 r 20.01 …. 6.25 r 20.02 …. 6.25 r 20.03(1) …. 6.24 r 20.03(2) …. 6.24 r 20.11 …. 6.23, 6.27 r 20.12 …. 6.23 r 20.12(2) …. 6.23 r 20.13 …. 6.23, 6.24 r 20.13(3) …. 6.24 r 20.13(4) …. 6.30 r 20.13(5) …. 6.24 r 20.14 …. 6.24, 6.26, 6.29 r 20.14(1) …. 6.24 r 20.14(1)(a) …. 6.27 r 20.14(1)(b) …. 6.27 r 20.14(2) …. 6.24 r 20.14(2)(a) …. 6.24 r 20.14(2)(b) …. 6.24 r 20.14(2)(c) …. 6.24 r 20.14(2)(d) …. 6.24

r 20.14(3) …. 6.24 r 20.15 …. 6.27, 6.29 r 20.15(1)(d) …. 6.30 r 20.16 …. 6.28 r 20.16(2) …. 6.28 r 20.17 …. 2.15, 6.31 r 20.17(1) …. 6.28 r 20.17(2) …. 6.28 r 20.17(2)(b) …. 6.28 r 20.17(4) …. 6.28 r 20.18 …. 6.28 r 20.19 …. 6.25 r 20.20 …. 6.28 r 20.21 …. 6.29 r 20.22 …. 6.28 r 20.22(1) …. 6.21 r 20.23 …. 6.31 r 20.24 …. 6.31 r 20.25 …. 6.31 r 20.31 …. 6.32 r 20.32 …. 6.32, 6.34 r 20.32(2)–(4) …. 6.32 r 20.33 …. 6.31 r 20.34 …. 6.32 r 20.35 …. 6.32 r 20.35(2) …. 6.32 r 21.01(1) …. 6.40

r 21.01(2) …. 6.40 r 21.02 …. 6.40 r 21.03 …. 6.21, 6.40, 6.42 r 21.03(1) …. 6.40 r 21.03(4) …. 6.42 r 21.04 …. 6.21, 6.40 r 21.05 …. 6.42 r 21.06 …. 6.40 r 21.07 …. 6.42 r 22.01 …. 6.43 r 22.02 …. 6.43 r 22.03 …. 6.44 r 22.04 …. 6.43 r 22.05 …. 6.43 r 22.06 …. 6.43 r 22.07 …. 6.43 r 23.01 …. 9.16 r 23.01(2) …. 9.16 r 23.02 …. 9.16 r 23.03 …. 9.16 r 23.03(2) …. 9.16 r 23.03(2)(b) …. 9.16 r 23.11 …. 9.17 r 23.12 …. 9.17 r 23.13 …. 9.17 r 23.15 …. 9.17 r 24.01 …. 6.34, 9.15 r 24.01(2) …. 9.15

r 24.12 …. 6.34, 9.15 r 24.13 …. 6.33, 9.15 r 24.13(8) …. 6.33, 9.15 r 24.13(9) …. 6.33 r 24.15 …. 6.35, 9.15 r 24.15(1)–(2) …. 6.35 r 24.15(1) …. 6.37 r 24.16 …. 9.15 r 24.16(1) …. 6.36 r 24.17 …. 6.36 r 24.17(1) …. 6.36 r 24.17(2) …. 6.36 r 24.18 …. 6.36 rr 24.19–24.21 …. 5.46, 6.33 r 24.22 …. 6.37, 9.15 r 24.22(1) …. 6.36, 6.37 r 24.22(2) …. 6.37 r 24.22(3)(a) …. 6.36 r 24.23 …. 6.36, 9.15 r 24.23(2) …. 6.36, 9.15 r 24.24 …. 6.33 r 25.01 …. 8.7, 8.8 r 25.01(1) …. 8.7 r 25.01(2) …. 8.7 r 25.02 …. 8.7 r 25.03 …. 8.7 r 25.04 …. 8.7

r 25.05 …. 8.7 r 25.05(3) …. 8.7 r 25.05(4) …. 8.7 r 25.06 …. 8.7 r 25.07 …. 8.7 r 25.08(1)–(2) …. 8.7 r 25.08(3) …. 8.7 r 25.09 …. 8.7 r 25.09(1)(b) …. 8.7 r 25.10 …. 8.7 r 25.11 …. 8.7 r 25.12 …. 8.8 r 25.13 …. 8.7 r 25.14 …. 8.8 r 25.14(1) …. 8.8 r 25.14(1)(b) …. 8.8 r 25.14(2) …. 8.8 r 25.14(2)(b) …. 8.8 r 25.14(3) …. 8.8 r 25.14(3)(b) …. 8.8 r 26.01 …. 8.22, 8.23, 8.24 r 26.01(1) …. 4.11, 8.22 r 26.01(1)(a) …. 8.22 r 26.01(1)(b) …. 8.22 r 26.01(1)(c) …. 8.22 r 26.01(1)(d) …. 8.22 r 26.01(1)(e) …. 8.22 r 26.01(2) …. 8.22

r 26.01(3) …. 8.22 r 26.01(4) …. 8.22 r 26.01(5) …. 8.22 r 26.11(1) …. 8.14 r 26.11(2) …. 8.14 r 26.11(3) …. 8.14 r 26.12 …. 11.20 r 26.12(1) …. 8.9 r 26.12(2)(a) …. 8.10 r 26.12(2)(b) …. 8.10 r 26.12(2)(c) …. 8.10 r 26.12(3) …. 8.9 r 26.12(4) …. 8.10 r 26.12(5) …. 8.10 r 26.12(6) …. 8.12 r 26.12(7) …. 8.11, 8.12 r 26.13 …. 8.9 r 26.15 …. 8.12 r 27.01 …. 7.5 r 27.11 …. 7.6, 7.7 r 27.11(a) …. 7.6 r 27.11(b) …. 7.10 r 27.12 …. 7.7, 7.10 r 27.12(2) …. 7.7 r 27.12(3) …. 7.7 r 27.12(3)(a) …. 7.7 r 27.12(3)(b) …. 7.7

r 27.12(3)(c) …. 7.7 r 27.12(3)(d) …. 7.7 r 27.13 …. 7.11 r 27.21 …. 7.12 r 27.22 …. 7.12 r 27.23 …. 7.14 r 28.01 …. 8.2 r 28.02 …. 8.2, 8.3, 8.4 r 28.02(1)(a) …. 8.2 r 28.02(1)(c) …. 8.2 r 28.02(2) …. 8.2 r 28.04 …. 8.2 r 28.05 …. 8.2 r 28.11 …. 8.4 r 28.11(1) …. 8.4 r 28.11(2) …. 8.4 r 28.12 …. 8.4 r 28.13 …. 8.4 r 28.13(3)(b) …. 8.4 r 28.13(4) …. 8.4 r 28.13(5) …. 8.4 r 28.14 …. 8.4 r 28.14(3)(c) …. 8.4 r 28.14(4) …. 8.4 r 28.21 …. 8.3 r 28.23 …. 8.3 r 28.24 …. 8.3 r 28.25 …. 8.3

r 28.42 …. 8.5 r 28.43 …. 8.5 r 28.44 …. 8.5 r 28.44(2)(b) …. 8.5 r 28.44(3) …. 8.5 r 28.45 …. 8.5 r 28.46 …. 8.5 r 28.46(2) …. 8.5 r 28.46(2)(b) …. 8.5 r 28.46(3) …. 8.5 r 28.46(4)–(5) …. 8.5 r 28.47 …. 8.5 r 28.47(2) …. 8.5 r 28.48 …. 8.5 r 28.48(2) …. 8.5 r 28.49 …. 8.5 r 28.49(2) …. 8.5 r 28.49(3) …. 8.5 r 28.50 …. 8.5 r 28.61 …. 8.6 rr 28.62–28.63 …. 8.6 r 28.64 …. 8.6 r 28.65 …. 8.6 r 28.65(8) …. 8.6 r 28.66 …. 8.6 r 28.67 …. 8.6 r 28.67(1)(a) …. 8.6

r 28.67(1)(d) …. 8.6 r 28.67(1)(e) …. 8.6 r 28.67(2) …. 8.6 rr 29.02–29.03 …. 3.7 r 29.02 …. 6.21 r 29.02(1) …. 3.7 r 29.02(4)–(5) …. 3.7 r 29.02(10) …. 3.7 r 29.03(1) …. 3.7, 6.21 r 29.03(2) …. 6.21 r 29.06 …. 3.7, 6.21 r 29.07 …. 3.7, 6.21 r 29.08 …. 2.11, 2.14, 3.11, 6.21 r 29.09 …. 9.18 r 29.09(3) …. 9.18 r 29.09(4) …. 9.18 r 30.01 …. 8.27, 8.28, 9.3 r 30.02 …. 8.27 r 30.11 …. 9.2 r 30.11(a)–(b) …. 9.2 r 30.11(c) …. 9.2 r 30.11(d) …. 9.2 r 30.11(e) …. 9.2 r 30.11(f) …. 9.2 r 30.21 …. 9.14 r 30.21(1) …. 9.14 r 30.21(1)(a) …. 9.14 r 30.21(1)(a)(i) …. 9.14

r 30.21(1)(b) …. 9.14 r 30.21(1)(b)(i) …. 9.14 r 30.21(2) …. 9.14 r 30.21(2)(a) …. 10.8 r 30.22 …. 9.14 r 30.23 …. 9.10 r 30.25 …. 9.18 r 30.26 …. 9.18 r 30.28 …. 6.38, 6.39 r 30.28(1)(b) …. 6.38 r 30.28(2) …. 6.38 r 30.28(3) …. 6.38 r 30.34(1) …. 9.15 r 30.34(2) …. 9.15 r 31.01 …. 3.2 r 31.01(2) …. 3.2 r 31.01(3) …. 3.2 r 31.02 …. 3.2, 5.6 r 31.03 …. 3.2 r 31.11 …. 3.2 r 31.11(2) …. 3.2 r 31.12(1) …. 3.2 r 31.12(2) …. 3.2 r 31.22 …. 3.2 r 31.23 …. 3.2 r 33.12 …. 3.2, 11.27, 11.29, 11.30 r 33.12(1) …. 11.27

r 33.12(2) …. 11.29 r 33.12(2)(b) …. 11.29 r 33.12(3) …. 11.27 r 33.12(4) …. 11.27 r 33.12(3) …. 3.2 r 33.13 …. 11.27, 11.30 r 33.13(2) …. 3.2, 11.30 r 33.14 …. 11.27 r 33.15 …. 11.27 r 33.16 …. 11.27 r 33.17 …. 11.27 r 33.19 …. 11.27 r 33.20 …. 3.2 r 33.20(1) …. 11.28 r 33.21 …. 11.28 r 33.22 …. 11.32 r 33.23 …. 11.32 r 33.24 …. 11.32 r 33.25 …. 11.32 r 33.26 …. 11.32 r 33.27 …. 11.32 r 33.28 …. 11.32 r 33.29 …. 11.31 r 33.29(1) …. 11.31 r 33.29(2) …. 11.31 r 33.29(4) …. 11.31 r 33.30(1) …. 11.35 r 33.30(2) …. 11.35

r 33.30(3) …. 11.35 r 33.30(4) …. 11.35 r 33.30(5) …. 11.35 r 33.31 …. 11.36 r 33.31(1) …. 11.36 r 33.31(2) …. 11.36 r 33.31(3) …. 11.36 r 33.32(1) …. 11.37 r 33.33 …. 11.37 r 33.33(2) …. 11.37 rr 34.03–34.05 …. 3.2 r 34.03 …. 3.2 r 34.03(2) …. 3.2 r 34.04 …. 3.2 r 34.04(2) …. 3.2 r 34.05 …. 3.2 r 34.05(2) …. 3.2 r 34.06 …. 3.2 r 34.07 …. 3.2 r 34.08 …. 3.2 r 34.134(1) …. 5.18 r 34.163 …. 3.2 r 34.163(2) …. 3.2 r 34.163(3) …. 3.2 r 34.164 …. 3.2 r 35.01 …. 11.4 r 35.11 …. 11.4

r 35.11(b) …. 11.4 r 35.12 …. 11.4, 11.5, 11.6 r 35.12(1) …. 11.4 r 35.12(2) …. 6.21, 11.4 r 35.13 …. 11.4 r 35.14 …. 11.5, 11.6 r 35.14(3) …. 11.5 r 35.15 …. 11.4 r 35.16 …. 11.4 r 35.17 …. 11.4 rr 35.18–35.20 …. 11.5 r 35.22 …. 11.5 r 35.31 …. 11.6 r 35.31(2) …. 11.6 r 35.31(4) …. 11.6 r 35.32 …. 11.6 r 35.33 …. 11.6 r 35.33(1) …. 11.6 r 35.41 …. 11.7 r 35.41(2) …. 11.7 r 36.01 …. 11.11 r 36.01(1) …. 11.11 r 36.01(2) …. 11.11 r 36.01(2)(c) …. 11.11 r 36.02 …. 11.2, 11.11 r 36.03 …. 11.10, 11.11 r 36.04 …. 11.11 r 36.05 …. 11.10

r 36.05(2) …. 11.10 r 36.05(3) …. 11.10 r 36.05(3)(c) …. 11.10 r 36.06 …. 11.10, 11.11 r 36.07 …. 6.6, 11.10, 11.11 r 36.08 …. 2.1, 11.16 r 36.08(1) …. 10.13 r 36.08(2) …. 10.13 r 36.08(3) …. 10.13 r 36.09 …. 12.11 r 36.09(1) …. 11.16 r 36.09(1)(b)–(c) …. 11.16 r 36.09(1)(c) …. 11.16 r 36.10 …. 11.11 r 36.11 …. 9.6, 11.3 r 36.11(2) …. 11.3 r 36.11(2)(b) …. 11.11 r 36.21 …. 11.15 r 36.21(2) …. 11.15 r 36.22 …. 11.15 r 36.23 …. 11.15 r 36.24 …. 11.15 r 36.31(1) …. 11.12 r 36.31(2) …. 11.12 r 36.31(3) …. 11.12 r 36.31(4) …. 11.12 r 36.32 …. 11.12

r 36.32(1) …. 11.12 r 36.32(2) …. 11.12 rr 36.41–36.42 …. 11.3 r 36.41(1) …. 11.3, 11.18 r 36.41(1)(a) …. 11.3 r 36.41(1)(b) …. 11.3 r 36.41(1)(c) …. 11.3 r 36.41(1)(d) …. 11.3 r 36.41(1)(e) …. 11.3, 11.18 r 36.41(1)(f) …. 11.3 r 36.41(1)(g) …. 11.3, 11.18 r 36.42 …. 11.3 r 36.43 …. 11.3 r 36.51 …. 11.22 r 36.51(5) …. 11.22 r 36.51(6) …. 11.22 r 36.52 …. 11.22 r 36.52(1) …. 11.22 r 36.52(4) …. 11.22 r 36.53 …. 11.22 r 36.54 …. 11.22 r 36.55 …. 11.22 r 36.56 …. 11.22 r 36.57 …. 11.14 r 36.57(2) …. 11.14 r 36.57(4) …. 11.14 r 36.71 …. 11.19, 11.21 r 36.72 …. 11.11

r 36.72(1) …. 11.19 r 36.72(1)(b) …. 11.19 r 36.72(2) …. 11.19 r 36.72(3) …. 11.19 r 36.72(4) …. 11.19 r 36.73 …. 11.20 r 36.73(1) …. 11.20 r 36.73(2) …. 8.13, 11.20 r 36.73(4) …. 11.20 r 36.73(5) …. 8.13 r 36.74 …. 11.18 r 36.75(1) …. 11.18 r 36.75(2) …. 11.18 r 39.01 …. 10.5 r 39.02 …. 10.16 r 39.04 …. 10.7, 10.8, 10.14 r 39.05 …. 6.35, 10.7, 10.8, 11.17 r 39.05(a) …. 10.8 r 39.05(e) …. 10.8, 10.10 r 39.05(f) …. 11.18 r 39.05(g) …. 10.8, 10.9 r 39.05(h) …. 10.8, 10.9, 11.17 r 39.06 …. 10.4, 12.24 r 39.11 …. 8.3, 10.2, 11.18 r 39.21 …. 10.15 r 39.21(1) …. 10.16 r 39.31 …. 10.5, 10.17

rr 39.32–39.35 …. 10.5 r 40.01 …. 12.12, 12.13 r 40.02 …. 12.12, 12.14, 12.18 r 40.02(a) …. 12.12, 12.15 r 40.02(b) …. 12.12, 12.14 r 40.02(c) …. 12.12 r 40.03 …. 12.12 r 40.05(a) …. 12.14 r 40.05(b) …. 12.14 r 40.06 …. 12.16 r 40.07 …. 12.8 r 40.07(1) …. 12.8 r 40.07(2) …. 12.8 r 40.08 …. 7.8, 12.16 r 40.08(a) …. 12.16 r 40.08(b) …. 7.8, 12.16 r 40.12 …. 12.17, 12.18 r 40.13 …. 12.23 r 40.14 …. 10.5, 12.17 r 40.15(1) …. 12.16 r 40.16 …. 12.16 r 40.17 …. 12.17 r 40.18 …. 12.17 r 40.19 …. 12.17 r 40.20 …. 12.17, 12.20, 12.24 r 40.20(1) …. 12.20 r 40.20(4) …. 12.20 r 40.21 …. 12.20, 12.24

r 40.21(1) …. 12.21 r 40.21(2) …. 12.21 r 40.21(2)(a) …. 12.21 r 40.21(2)(b) …. 12.21 r 40.21(2)(c) …. 12.21, 12.22 r 40.22(a) …. 12.21 r 40.22(b) …. 12.21 r 40.23 …. 12.20 r 40.23(4) …. 12.22 r 40.24 …. 12.22 r 40.25 …. 12.22 r 40.26(1) …. 12.22 r 40.26(1)(a)–(B) …. 12.22 r 40.26(2) …. 12.22 r 40.27(1)–(2) …. 12.22 r 40.27(3)–(4) …. 12.22 r 40.27(5) …. 12.22 r 40.28 …. 12.22 r 40.29 …. 12.18 r 40.30 …. 12.16, 12.22 r 40.31 …. 1.19, 12.22 r 40.31(a) …. 12.22 r 40.32 …. 12.20, 12.24 r 40.32(1) …. 12.24 r 40.32(2) …. 12.24 r 40.32(3) …. 12.24 r 40.32(4) …. 12.24

r 40.33(1) …. 12.24 r 40.33(2) …. 12.24 r 40.34 …. 10.12, 12.25 r 40.34(1) …. 12.25 r 40.34(2)–(3) …. 12.25 r 40.34(4) …. 12.25 r 40.34(6) …. 12.25 r 40.35 …. 12.25 r 40.42(6) …. 12.19 r 40.44(6) …. 12.19 r 40.51 …. 12.12 r 40.51(2)(d) …. 12.12 r 41.01 …. 10.11 r 41.02 …. 10.11 r 41.03 …. 10.10, 10.13, 11.16 rr 41.04–41.09 …. 10.15 r 41.04 …. 10.16 r 41.04(1) …. 10.17 r 41.05 …. 10.16 r 41.05(1) …. 10.16 r 41.06 …. 2.23, 2.30, 10.16 r 41.07 …. 10.16 r 41.07(1) …. 10.16 r 41.07(2) …. 10.16 r 41.08 …. 10.16 r 41.09 …. 10.16 r 41.10 …. 10.11 r 41.10(1) …. 10.11

r 41.10(2) …. 10.11 r 41.10(3) …. 10.11 r 41.11 …. 10.13, 11.16 r 41.42 …. 10.11 r 41.43 …. 10.11 r 41.51 …. 10.12 r 41.52(1)(a) …. 10.12 r 41.52(1)(b) …. 10.12 r 41.52(2) …. 10.12 r 41.53 …. 10.12 rr 41.54–41.55 …. 10.12 r 41.55(3) …. 10.12 r 41.56 …. 10.12 r 41.66 …. 10.10 r 41.67 …. 10.10 r 41.68 …. 10.10 r 42.11 …. 10.17 r 42.12 …. 10.17 r 42.13 …. 10.17 r 42.14(1) …. 10.17 r 42.14(2) …. 10.17 r 42.14(3) …. 10.17 r 42.15 …. 10.17 r 42.16 …. 10.17 Sch 1 …. 1.17, 2.2, 2.3, 2.6, 2.7, 2.10, 2.11, 2.12, 2.13, 2.19, 2.20, 2.24, 2.25, 3.4, 3.5, 4.3, 4.6, 4.9, 4.12, 4.14, 5.3, 5.8, 5.9, 5.10, 5.33, 5.34, 5.45, 6.11, 6.24, 6.43, 7.2, 7.6, 8.2, 8.4, 8.8, 8.18, 9.8, 9.12, 9.15, 9.16, 10.11, 10.13, 11.21, 11.22, 11.23, 12.8, 12.12, 12.15, 12.17

Sch 2 …. 1.17, 1.19, 11.23 Sch 3 …. 1.17, 12.12, 12.14, 12.19 Federal Magistrates Regulations 2000 …. 5.22 Federal Proceedings (Costs) Act 1981 s 4(1) …. 12.12 s 6 …. 12.12 s 7 …. 12.12 s 7A …. 12.12 s 16 …. 12.12 Foreign Judgments Act 1991 …. 10.10, 12.11 s 7 …. 10.10 s 8 …. 10.10 Income Tax Assessment Act 1936 …. 7.5 International Arbitration Act 1974 …. 8.5 s 7 …. 8.5 s 8(3) …. 8.5 s 9 …. 8.5 s 23(3) …. 8.5 s 23A …. 8.5 s 23F …. 8.5 s 23G …. 8.5 s 35(4) …. 8.5 Judiciary Act 1903 …. 4.1, 11.27 s 24 …. 10.15 s 39B …. 1.2, 3.2, 4.10 s 39B(1A)(c) …. 1.2 s 44 …. 7.1 s 55A …. 4.2

s 55B …. 4.2 s 55C …. 4.2 s 78B …. 4.14, 4.15, 4.16 s 78B(1) …. 4.14, 4.16 s 78B(2)(a) …. 4.16 s 78B(2)(b) …. 4.16 s 78B(2)(c) …. 4.16 s 78B(3)(a) …. 4.15 s 78B(3)(b) …. 4.14 s 78B(5) …. 4.16 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 7.12 s 3(2) …. 7.13 s 5(1) …. 7.1 s 5(4) …. 7.13 s 5(4)(b)(i) …. 7.13 s 5(4)(b)(ii) …. 7.13 s 5(4)(b)(iii) …. 7.13 s 5(7) …. 7.13 s 9(2) …. 1.2 s 10 …. 7.12 Migration Act 1958 …. 3.2, 3.9 Pt 8 …. 11.25 s 5 …. 3.4 s 477A …. 3.2 s 486I …. 3.4, 11.4, 11.11, 11.27 s 486K …. 3.4 Migration Litigation Reform Act 2005 …. 8.24

Native Title Act 1993 …. 3.9 Native Title (Federal Court) Regulations 1998 …. 1.16 reg 5 …. 3.2 Patents Act 1990 …. 3.2 s 221 …. 5.31 Public Interest Disclosure Act 2013 s 18 …. 12.2 Service and Execution of Process Act 1992 …. 5.35 s 13 …. 5.35 Service and Execution of Process Regulations 1993 …. 5.35 Taxation Administration Act 1953 s 14ZZS …. 7.5 Trade Marks Act 1995 …. 3.2 s 215 …. 5.31 Trans-Tasman Proceedings Act 2010 …. 9.13 Pt 2, Div 2 …. 5.36 Pt 6 …. 6.4 Tribunals Amalgamation Act 2015 …. 11.25

Australian Capital Territory Court Procedure Rules 2006 r 21 …. 1.7 Jurisdiction of Courts (Cross-Vesting) Act 1987 s 4(1) …. 1.2

New South Wales Civil Procedure Act 2005 s 56 …. 1.7

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 4(1) …. 1.2

Queensland Jurisdiction of Courts (Cross-Vesting) Act 1987 s 4(1) …. 1.2

South Australia Jurisdiction of Courts (Cross-Vesting) Act 1987 s 4(1) …. 1.2

Victoria Court Procedure Act 2010 s 10 …. 1.7

International Convention on the Settlement of Investment Disputes between States and Nationals of other States …. 8.5 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters …. 5.30, 5.36, 5.38 UNCITRAL Model Law on International Commercial Arbitration art 6 …. 8.5 art 11(3) …. 8.5 art 11(4) …. 8.5 art 13(3) …. 8.5 art 14 …. 8.5 art 16(3) …. 8.5 art 17H(3) …. 8.5

art 17I …. 8.5 art 17J …. 8.5 art 27 …. 8.5 art 34 …. 8.5

ABBREVIATIONS AND GLOSSARY In this book, the following abbreviations and expressions are used: AAT AAT Act

Administrative Appeals Tribunal Administrative Appeals Tribunal Act 1975 (Cth) Bankruptcy Rules Federal Court (Bankruptcy) Rules 2005 (Cth) Civil Dispute Resolution Act Civil Dispute Resolution Act 2011 (Cth) Civil practice and procedure The provisions of the Rules and the FCA provisions Act (and any other Act) relating to the civil practice and procedure of the Court (see s 37M(4) of the FCA Act). In this book, the civil practice and procedure provisions also encompass the various practice notes issued by the Chief Justice of the Court. Cross-vesting Act Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Court Federal Court of Australia ECF Electronic court file Family Court Family Court of Australia Fast Track A case management procedure designed to streamline the conduct of certain Court proceedings and to reduce the cost of litigation.

FCA Act Federal Circuit Court High Court IDS Interim Practice Note NCF 1

International Arbitration Act Judiciary Act Model Law NPAs NCF NAT 1

Overarching purpose

Practice Note APP 1

Practice Note APP 2

Practice Note ARB 1

Federal Court of Australia Act 1976 (Cth) Federal Circuit Court of Australia High Court of Australia Individual docket system Chief Justice JLB Allsop, Interim Practice Note NCF 1 – National Court Framework and Case Management, 16 February 2015 International Arbitration Act 1974 (Cth) Judiciary Act 1903 (Cth) UNCITRAL Model Law on International Commercial Arbitration National Practice Areas National Court Framework Chief Justice JLB Allsop, National Administrative Notice NAT 1 – Commercial and Corporations National Practice Area, 16 February 2015 The overarching purpose of the civil practice and procedure provisions, as mandated by s 37M of the FCA Act. Chief Justice PA Keane, Practice Note APP 1 – Listings for Full Court and Appellate Sittings, 1 August 2011 Chief Justice JLB Allsop, Practice Note APP 2 – Content of Appeal Books and Preparation for Hearing, 22 November 2013 Chief Justice PA Keane, Practice Note ARB 1 – Proceedings under the

Practice Note CM 1

Practice Note CM 2

Practice Note CM 3

Practice Note CM 4

Practice Note CM 5 Practice Note CM 6

Practice Note CM 7

Practice Note CM 8 Practice Note CM 9

International Arbitration Act 1974, 24 May 2012 Chief Justice PA Keane, Practice Note CM 1 – Case Management and the Individual Docket System, 1 August 2011 Chief Justice PA Keane, Practice Note CM 2 – List of Authorities, Citation of Cases and Legislation for Proceedings Generally, 14 August 2012 Chief Justice JLB Allsop, Practice Note CM 3 – Consent Orders in Proceedings Involving a Federal Tribunal, 3 September 2014 Chief Justice PA Keane, Practice Note CM 4 – Costs – Lump Sum Costs Orders under Rule 40.02(b) of the Federal Court Rules, 1 August 2011 Chief Justice PA Keane, Practice Note CM 5 – Discovery, 1 August 2011 Chief Justice PA Keane, Practice Note CM 6 – Electronic Technology in Litigation, 1 August 2011 Chief Justice JLB Allsop, Practice Note CM 7 – Expert Witnesses in Proceedings in the Federal Court of Australia, 4 June 2013 Chief Justice PA Keane, Practice Note CM 8 – Fast Track, 1 August 2011 Chief Justice PA Keane, Practice Note CM 9 – Freezing Orders (also known as ‘Mareva Orders’ or ‘Asset Preservation

Practice Note CM 11

Practice Note CM 12

Practice Note CM 15

Practice Note CM 16 Practice Note CM 18

Practice Note CM 20

Practice Note CM 21

Orders’), 1 August 2011 Chief Justice PA Keane, Practice Note CM 11 – Search Orders (also known as ‘Anton Piller Orders’), 1 August 2011 Chief Justice PA Keane, Practice Note CM 12 – Service of Documents Outside of Australia, 1 August 2011 Chief Justice PA Keane, Practice Note CM 15 – Allocation of Proceedings to Divisions of the Court, 1 August 2011 Chief Justice PA Keane, Pre-judgment Interest, 1 August 2011 Chief Justice JLB Allsop, Practice Note CM 18 – Title of Proceedings for Relief under s 39B of the Judiciary Act 1903 (Cth) against the Fair Work Commission, 4 June 2013 Chief Justice JLB Allsop, Practice Note CM 20 – Ex Parte Applications for Substituted Service in Bankruptcy Proceedings and Applications for Examination Summonses under Section 81 Bankruptcy Act 1966 and Sections 596A and 596B Corporations Act 2001, 3 September 2014 Chief Justice JLB Allsop, Practice Note CM 21 – Title of Proceedings for Relief under Section 39B of the Judiciary Act 1903 (Cth) or Section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) against Commonwealth Tribunals, 4 June

Practice Note CM 22

Practice Note CM 23

Practice Note GEN 1

Practice Note GEN 2 Practice Note GEN 3

Regulations Rules Rules 1979 Section 37M Section 37N

2013 Chief Justice JLB Allsop, Practice Note CM 22 – Video Link Hearing Arrangements, 4 June 2013 Chief Justice JLB Allsop, Practice Note CM 23 – Electronic Court File and Preparation and Lodgment of Documents, 10 July 2014 Chief Justice JLB Allsop, Practice Note GEN 1 – Court Sittings and Registry Hours, 3 September 2014 Chief Justice JLB Allsop, Practice Note GEN 2 – Documents, 3 September 2014 Chief Justice JLB Allsop, Practice Note GEN 3 – Use of Court Forms, 3 September 2014 Federal Court and Federal Circuit Court Regulation 2012 (Cth) Federal Court of Australia Rules 2011 (Cth) Federal Court of Australia Rules 1979 (Cth) Federal Court of Australia Act 1976 (Cth) s 37M Federal Court of Australia Act 1976 (Cth) s 37N

The other Court practice notes referred to in this book are: Chief Justice JLB Allsop, Practice Note ADM 1 – Admiralty and Maritime Work in the Federal Court of Australia, 4 June 2013

Chief Justice PA Keane, Practice Note CM 14 – Usual Undertaking as to Damages, 1 August 2011 Chief Justice PA Keane, Practice Note CM 17 – Representative Proceedings Commenced Under Part IVA of the Federal Court of Australia Act 1976 (Cth), 1 August 2011 Chief Justice PA Keane, Practice Note CORP 1 – Interlocutory Process and Pleadings in Corporations Matters, 1 August 2011 Chief Justice JLB Allsop, Practice Note CORP 2 – Cross-border Insolvency – Cooperation with Foreign Courts or Foreign Representatives, 22 November 2013 Chief Justice PA Keane, Practice Note CORP 3 – Schemes of Arrangement, 1 August 2011 Chief Justice PA Keane, Practice Note IP 1 – Proceedings under the Patents Act 1990 (Cth), 1 August 2011 Chief Justice PA Keane, Practice Note TAX 1 – Tax List, 1 August 2011

INTRODUCTION Litigation is not a game. It is a costly and stressful, though necessary, evil.1 Part VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) came into operation on 1 January 2010. Its provisions govern the case management of civil proceedings in the Federal Court of Australia (the Court). In particular, s 37M requires the promotion of the overarching purpose of the civil practice and procedure provisions2 by facilitating the just resolution of civil disputes ‘according to law and as quickly, inexpensively and efficiently as possible’. The parties to civil proceedings before the Court must act in a manner consistent with the overarching purpose by reason of the duty imposed by s 37N(1). By extension, in the conduct of such proceedings (including any settlement negotiations), a party’s lawyer must take into account both the duty imposed upon their client and the need to assist them to comply with that duty (sub-s (2)). This sentiment is echoed further in the Civil Dispute Resolution Act 2011 (Cth) in relation to the taking of genuine steps to resolve a dispute. There are potential costs implications for parties and lawyers who fail to comply with these statutory duties. The Court’s judgments and case management techniques demonstrate its commitment to the promotion of the overarching purpose. The purpose of this book is to provide a clear understanding of what it means in practice to promote the overarching purpose during the conduct of civil litigation in the Court. It examines how the civil practice and procedure provisions should be interpreted and applied throughout the conduct of a civil proceeding in a manner that best promotes the overarching purpose mandated by Pt VB of the FCA Act and so as to avoid the consequences of a failure to comply with

its provisions. In so doing, the civil practice and procedure provisions and the Court’s case management approaches and philosophies are studied in detail. The book’s underlying tenet is that Court proceedings, from commencement to finalisation, should be conducted with a proper construction and application of the minutiae of practice and procedure, balanced with a broader appreciation of the need to achieve the just resolution of disputes in accordance with the law and as quickly, inexpensively and efficiently as possible. Procedural disputes and unnecessary interlocutory steps during the conduct of litigation do not facilitate this objective. Such matters cause inefficiencies and delays and incur costs, with an adverse impact on the parties, the Court and other litigants in the Court’s system. With the advent of the National Court Framework, it is more important than ever before that parties and the legal profession work closely with the Court in promoting the overarching purpose and enhancing access to justice for all litigants in the legal system. In terms of an overview of the book: Chapter 1 promotes an understanding of how and why the overarching purpose is sought to be achieved in civil proceedings. It also examines the nature of the jurisdiction and powers of the Court and of its sophisticated case management approaches. Chapter 2 demonstrates the need to appreciate the relevant civil practice and procedure provisions that apply to applications made prior to the formal commencement of proceedings. It illustrates the impact such applications may have on case management. In Chapters 3, 4 and 5, the book turns to the topics of how to appropriately commence proceedings, proper legal representation and party joinder and the intricacies of the filing and service of documents (respectively). A precise knowledge of these fundamental facets of civil litigation lays a solid foundation for the conduct of the rest of the

proceeding and helps to avoid inefficiencies and costs caused by procedural defects. The chapter on the conduct of proceedings, Chapter 6, raises (amongst other things) the important issues of the need to: comply with directions, avoid unnecessary interlocutory applications, limit discovery and interrogatories to only appropriate cases and ensure pleadings are drafted correctly. More generally, it considers how lawyers should conduct their clients’ proceedings and themselves. As argued in Chapter 7, choosing the wrong (or a less appropriate) forum for the hearing and determination of a dispute will often have a negative impact in relation to delays, damages recovery and adverse costs orders. Giving consideration to whether and if so, how, proceedings should be brought to an early conclusion and without the need to incur the expense of a trial is clearly in the best interests of the parties, the Court and other litigants who benefit from the availability of judicial resources. Chapter 8 considers in what circumstances proceedings may be ended early. How hearings are to be conducted most efficiently is the subject of Chapter 9 (including in what circumstances the Court will permit the reopening of a hearing). Chapter 10 looks at the desirability of the finality of judgments and orders of the Court, and of the necessity for parties to comply with the decisions of the Court (so that enforcement measures, or even contempt proceedings, do not become necessary). Where a party wishes to appeal or to seek review, Chapter 11 analyses when leave to appeal (or an extension of time) is required, and how to properly conduct appeal proceedings and the review of a decision of a Registrar or of the Administrative Appeals Tribunal. The book concludes the exploration of how best to promote the

overarching purpose of the civil practice and procedure provisions (and to avoid the consequences of a failure to do so) with Chapter 12, dealing with costs orders and their enforcement. The focus is on the Court’s case law based on the Federal Court Rules 2011 (Cth), so that the most current law is addressed wherever possible.3 The book is not intended to provide an exhaustive statement of the law, but rather it seeks to facilitate navigation through the complexities of the most salient civil practice and procedure provisions governing the conduct of many types of civil proceedings. It is unfortunately beyond the scope of this particular edition to examine in greater detail the specific rules pertaining to admiralty, bankruptcy, corporations, representative and native title proceedings. The law discussed is current as at mid-2015. At the time of going to print, the Court has started a lengthy consultation process with the legal profession in relation to its reforms concerning the National Court Framework and the current practice notes. It should be noted that new practice notes are likely to be issued, and that various existing practice notes may be amended or revoked, following that consultation process.4 While care has been taken to ensure the material in this book is accurate, it should not be relied upon as legal advice and readers are encouraged to undertake their own independent inquiries as to its accuracy and currency (particularly given the practice and procedure of the Court is evolving). It is hoped that this book will assist in increasing the level of understanding of this important aspect of the federal civil justice system, and will thereby reduce the need for parties to ‘lock horns’ on procedural aspects of their litigation before the Court. The promotion of the overarching purpose is a commendable goal for all those concerned with the just resolution of disputes. N Cujes November 2015

1 White v Overland [2001] FCA 1333 at [4] (Allsop J). 2 The ‘civil practice and procedure provisions’ are primarily the Federal Court Rules 2011 (Cth) and any

other statutory provisions (including under the FCA Act) made with respect to the practice and procedure of the Court (see s 37M(4) of the FCA Act). In this book, the practice notes issued by the Chief Justice of the Court are also considered. Sections 37M and 37N of the FCA Act are set out in the Appendix. 3 The medium neutral citation of the Court’s judgments is generally provided so that those judgments

may be accessed easily online through the AustLII website at . 4 For more information about the reforms, consult the Court’s website at .

CONTENTS Foreword Contents Acknowledgments Table of Cases Table of Statutes Abbreviations and Glossary Introduction

Chapter 1

Case Management in the Federal Court: The ‘Overarching Purpose’

Chapter 2

Pre-Litigation Orders

Chapter 3

Commencing Proceedings

Chapter 4

Representation, Parties and Interveners

Chapter 5

Filing and Service of Documents

Chapter 6

Conducting Proceedings

Chapter 7

Court and Registry Transfers

Chapter 8

Concluding Proceedings Early

Chapter 9

Hearings

Chapter 10 Judgments and Orders

Chapter 11 Appeals and Reviews Chapter 12 Costs Recovery Appendix Bibliography Index

Sections 37M and 37N of the FCA Act

[page 1]

Chapter 1

CASE MANAGEMENT IN THE FEDERAL COURT: THE ‘OVERARCHING PURPOSE’ This chapter considers: • •

•

•

•

Introduction …. The Federal Court in brief …. Nature and jurisdiction …. An important role in the delivery of justice …. The overarching purpose of civil case management …. Part VB of the FCA Act …. The overarching purpose — s 37M …. Duties of parties and lawyers under s 37N …. The overarching purpose in broader context …. The Civil Dispute Resolution Act …. Taking ‘genuine steps’ towards dispute resolution …. Interrelationship with the overarching purpose …. The Court’s case management system …. A multi-faceted approach …. Individual docket system …. Managerial judging …. National Court Framework …. Fast Track ….

1.1 1.2 1.2 1.3 1.4 1.4 1.5 1.6 1.7 1.8 1.8 1.9 1.10 1.10 1.11 1.12 1.13 1.14

•

An electronic court file …. The civil practice and procedure provisions …. Interpretation and application under s 37M …. Rules of Court …. Powers under the Rules …. Registrars …. The Court’s general powers …. The FCA Act …. Powers under the FCA Act …. Section 37P …. Other case management provisions ….

1.15 1.16 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 [page 2]

Introduction 1.1 This book begins by explaining the ‘overarching purpose’ of case management in civil proceedings before the Federal Court of Australia (the Court), which both governs the conduct of litigation and underlies the interpretation and application of many of the ‘civil practice and procedure provisions’, including the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the Federal Court Rules 2011 (Cth) (Rules). The Court has one of the most sophisticated strategies for case management in the world and the promotion of the overarching purpose is an integral facet of its philosophical and practical approaches to the just resolution of disputes brought before it. The overarching purpose may be viewed also within the broader context of enhancing access to justice, by improving the efficiencies of the federal civil justice system generally, and the ongoing debate about judicial control of proceedings. To appreciate how proceedings should be conducted in the Court in promotion of the overarching purpose and to better navigate the

procedural intricacies of the civil practice and procedure provisions, it is beneficial to first gain an understanding of the nature and jurisdiction of the Court.

The Federal Court in brief Nature and jurisdiction 1.2 The Court was established by s 5 of the FCA Act and formally commenced exercising its jurisdiction on 1 February 1977.1 It is a Chapter III Constitution court,2 a superior court of record and a court of law and equity.3 The Court consists of a Chief Justice and such other Judges as may hold office,4 which in recent times is typically between 45 and 50 Judges. District Registries of the Court are located in all capital cities of Australia5 and the Court may sit elsewhere from time to time.6 In some places the Court’s Registries also serve as the Principal Registry (or a Registry) for the Copyright Tribunal, National Native Title Tribunal, Defence Force Discipline Appeals Tribunal, Australian Competition Tribunal, High Court of Australia (High [page 3] Court) and federal Administrative Appeals Tribunal.7 The Court’s Registries also currently serve as the registries for the Federal Circuit Court of Australia (Federal Circuit Court) for the provision of filing and administrative services in relation to general federal law matters. The Court exercises the federal power of the Commonwealth,8 and since 1997 has been a court of general federal civil jurisdiction consistent with s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act).9 In addition to its original and appellate jurisdiction (considered below), the Court exercises the following types of jurisdiction:

in associated matters (consistent with s 32 of the FCA Act, the authority to deal with any associated matter not otherwise within the Court’s jurisdiction);10 and accrued jurisdiction (where a non-federal claim is joined with a nonseverable and non-colourable federal claim arising out of the same substratum of facts),11 which has been described as discretionary in nature.12 Prior to 17 June 1999, the Court exercised original and appellate jurisdiction in State matters in accordance with the cross-vesting legislation of the States and the Commonwealth.13 Following the judgment of the High Court of Australia (High Court) on that date in Re Wakim; Ex parte McNally,14 which held that the Constitution does not permit a federal court to be vested with State jurisdiction, it has been suggested that now only the Commonwealth [page 4] Parliament can confer jurisdiction upon the Court.15 Although it might be said that the Court’s jurisdiction usually is enlivened by a Commonwealth Act that confers jurisdiction upon it, the cross-vesting legislation may still enable the Court to hear and determine substantive proceedings that otherwise do not raise a federal statute. This was seen, for example, in relation to defamation proceedings brought before the Court in Crosby v Kelly.16 Furthermore, as a court created by statute, the Court has been held not to have any ‘inherent jurisdiction’, but rather implied powers to prevent abuses of its process. That is, it has such powers as are expressly or impliedly conferred by statute, or that are ‘incidental and necessary to the exercise of the jurisdiction or powers so conferred’.17 The original jurisdiction of the Court is provided for in s 19 of the FCA Act as ‘such original jurisdiction as is vested in it by laws made by the Parliament’

and ‘includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than the courts’. Section 19 neither confers nor defines the parameters of the Court’s original jurisdiction. Much of its jurisdiction arises under federal legislation18 in addition to the general jurisdiction vested in it under the Constitution through the operation of s 39B of the Judiciary Act. There are in excess of 150 statutes conferring original jurisdiction upon the Court.19 The more common jurisdictional areas to which the Court devotes the majority of its time are: admiralty and maritime law; human rights; bankruptcy; corporations law; employment and industrial relations law; migration law; native title; administrative law (including appeals from the Administrative Appeals Tribunal and judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)); [page 5] competition and consumer law (commercial disputes, consumer protection and restrictive trade practices); intellectual property; taxation; and constitutional law. The original jurisdiction of the Court in relation to civil proceedings is

exercised principally through the operation of ss 20–23 of the FCA Act. The appellate jurisdiction of the Court in civil cases is conferred by s 24 of the FCA Act and by any other Act, and is to be exercised consistently with ss 25–30 of the FCA Act. By s 24(1), appeals may lie to the Court in relation to civil proceedings from judgments of: a single Judge of the Court exercising the Court’s original jurisdiction; the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory exercising federal jurisdiction; and the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth (other than those outlined in s 24(1)(d) or under s 72Q of the Child Support (Registration and Collection) Act 1988 (Cth)). There are two main divisions of the Court to which all proceedings are allocated. Proceedings commenced after 1 July 2009 relating to the Fair Work Act 2009 (Cth) must be instituted, heard and determined in the Fair Work Division. All other proceedings fall within the General Division.20 Since 2000, the Court has concurrent jurisdiction with the Federal Circuit Court21 in respect of various general federal law matters, including in the following areas: administrative law, admiralty, bankruptcy, child support, trade practices (especially consumer protection law), human rights, employment and industrial law, intellectual property, migration and privacy.22 As discussed in Chapter 7, this is important in the transfer of proceedings between the two courts. By far the majority of the workload of the Court is within the civil law area; however, it should not be overlooked that the Court does exercise criminal jurisdiction,23 including in respect of cartel matters. It may yet come to be more directly involved with military justice matters.24

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An important role in the delivery of justice 1.3 The Court plays a crucial role in the delivery of justice within the federal litigation system in this country. During the period 2013–14, some 4281 new cases alone were commenced in (or transferred to) its original jurisdiction and 1630 judgments were delivered by its Judges in matters at first instance and on appeal.25 As may be gleaned from the discussions in this book, a substantial number of the Court’s judgments concern procedural matters. Such judgments and the delivery of the Court’s services to the public must be viewed within the context of its stated objectives, namely to: decide disputes according to law — promptly, courteously and effectively and, in so doing, to interpret the statutory law and develop the general law of the Commonwealth, so as to fulfil the role of a court exercising the judicial power of the Commonwealth under the Constitution; provide an effective registry service to the community; and manage the resources allotted by Parliament efficiently.26 The Court has a further main objective in respect of the disposition of cases, expressed as time-related goals: eighty-five per cent of cases completed within 18 months of commencement; judgments delivered within three months; and the disposition of migration appeals and related applications within three months of commencement.27 The above objectives of the Court may be viewed within the context of ‘the overarching purpose’ of civil litigation (considered at 1.4) and the implementation of the Court’s various case management strategies (see at 1.10).

The overarching purpose of civil case management Part VB of the FCA Act 1.4 On 1 January 2010, Pt VB of the FCA Act was introduced by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth).28 The Part is [page 7] comprised of only three sections (ss 37M, 37N and 37P),29 yet arguably embodies the most significant statutory provisions governing the case management of all civil proceedings before the Court in both its original and appellate jurisdictions. In particular, the introduction of ss 37M and 37N of the FCA Act reflects a cultural change in the philosophy of the Court in its management of cases individually and collectively and of its formal expectations of parties and their lawyers during proceedings. The Court has long implemented a system of individual management of cases by Judges from commencement to finalisation, known as the individual docket system (see at 1.11), but the enactment of ss 37M and 37N is intended to strengthen the powers of the Court to ensure efficiency in the conduct of litigation and the overall reduction of its workload. These objectives should serve the interests of all users of the federal justice system in the attainment of access to justice.

The overarching purpose — s 37M 1.5 The crux of the procedural reforms made by Pt VB of the FCA Act is that in the conduct of litigation, the Court and the parties and their legal representatives will collectively strive to promote or otherwise act consistently with ‘the overarching purpose of the civil practice and procedure provisions’.

That is to say, to facilitate the ‘just resolution of disputes’ (s 37M(1)) ‘according to law’ (s 37M(1)(a)) ‘and as quickly, inexpensively and efficiently as possible’ (s 37M(1)(b)). Consistent with s 37M(2), other objectives of the overarching purpose include: the just determination of all proceedings before the Court (para (a)); the efficient use of the resources of the Court (para (b)); the efficient disposal of the Court’s overall caseload (para (c)) and of all proceedings in a timely manner (para (d)); and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute (para (e)). The underlying theme in the above objectives is that by focusing attention upon the efficiencies of conducting proceedings, avoiding unnecessary delays and reducing the costs of litigation in individual proceedings, there is a positive flow-on effect to the management of all of the Court’s caseload. This facilitates an effective and accessible federal civil justice system. At the same time, due process occurs in ensuring that justice is done in individual cases.30 Section 37M(3) requires that the civil practice and procedure provisions are to be interpreted and applied, and any power under those provisions must be exercised, in the way that best promotes the overarching purpose. The ‘civil practice and procedure provisions’ are primarily the relevant provisions of the Rules and of the FCA Act, but may extend to other provisions made [page 8] by or under any other Act with respect to the practice and procedure of the Court (s 37M(4)).31 In other words, a fundamental way in which to ensure the achievement of the just determination of disputes in a cost-effective, expeditious and efficient manner is through the proper interpretation and application of the practice and procedure of the Court. In McHugh v

Australian Jockey Club Ltd (No 2),32 Robertson J said that s 37M ‘discourages the use of the Court’s procedures in relation to material of peripheral relevance’. How does the Court tend to approach s 37M of the FCA Act in practice? The answer is two-fold. First, it is clear that the promotion of the overarching purpose forms a significant part of the Court’s judicial decision-making, as evidenced by the volume of judgments referring to this objective of case management.33 Secondly, from those judgments, a number of which are discussed in this book, it is seen that s 37M is being applied as a primary criterion during the interpretation and application of, and the exercise of power under, the Rules and the FCA Act. It was noted, however, in Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Co (No 2),34 that the objectives of the overarching purpose listed in s 37M are stated with such generality that the authorities on that section are of guidance only and each case must be decided on its own facts. In Andrews v Australia and New Zealand Banking Group Ltd,35 Gordon J considered the High Court majority judgment in Aon Risk Services Australia Ltd v Australian National University (Aon).36 Although ‘case management principles should not supplant the objective of doing justice between the parties according to law’, inefficiencies and wastages of public resources, together with the potential loss of public confidence in the legal system, are factors to bear in mind in the exercise of interlocutory discretions. Her Honour (at [27]) went on to suggest that, in keeping with the views of the majority in Aon, above, in appropriate cases an approach that results in a sense of injustice for the sake of doing justice to another litigant is consistent with the overarching purpose in s 37M. Some of the judgments recognise that there may at times in practice exist a tension between the objective of ‘facilitating the just resolution of disputes according to law’ (s 37M(1)(a)) and that of ‘facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible’ (s 37M(1)(b)). For example, it was considered in Director of the Fair Work Building Industry

Inspectorate v Adams37 that a workable balance needs to be struck between the potentially competing goals in sub-paras (a) and (b) of s 37M(1). So, too, it [page 9] was accepted by Flick J in Buggy v Reinisch38 that certain fundamental rules of evidence39 should not be diminished in importance by ss 37M and 37N of the FCA Act. His Honour said (at [59]) that: … no mandate for this Court to act as ‘quickly, inexpensively and efficiently as possible’ could act as a licence to proceed in a procedural (or evidential) manner which is unfair to a witness or a party.

The Court seems to maintain a realistic perspective in appropriate cases, even where delay, inefficiency and the incurring of costs may be caused by an adjournment or the granting of an extension of time for compliance with orders or under the Rules. For instance, it will take into account the unavailability of a party due to ill-health or other genuine grounds when setting the timetable for the conduct of a proceeding, provided any adjournment is not indefinite.40 It will still expect a party who knows that the potential unavailability of a witness will affect the conduct of a trial to give proper notice to the other parties and the Court so that consideration may be given as to the consequences of that impact.41 The overall approach of the Court to the application of s 37M in practice may be said to be a pragmatic and balanced one.

Duties of parties and lawyers under s 37N 1.6 What role do the parties and their legal representatives play in promoting the overarching purpose mandated by s 37M? Section 37N(1) of the FCA Act imposes upon parties a positive duty to act consistently with the overarching

purpose by conducting their civil proceeding in the Court (including any settlement negotiations) in a way that is consistent with s 37M. Moreover, a party’s lawyer42 must in the conduct of any such proceeding (again, including settlement negotiations) on a party’s behalf take into account the existence of their client’s duty to act consistently with the overarching purpose and to assist in the compliance with that duty (s 37N(2)). To further enable a party to comply with the duty, the lawyer may be required by the Court under s 37N(3) to provide the client with an estimate of the likely duration of any part or all of the proceeding and of the likely amount of the costs the client will have to pay (including the costs on a solicitor-client, indemnity or party-party basis). Perhaps most importantly from the perspective of a party, a failure to comply with the duty to act consistently with the overarching purpose may be taken into account by the Court in its exercise of discretion to award costs, such as under s 43 of the FCA Act (see s 37N(4)). The further effect of s 37N(4) is that, in the case of a lawyer, the Court may take into account any failure [page 10] to comply with the duties imposed upon the lawyer by s 37N in determining whether to make a costs order against the lawyer personally. A lawyer required to bear costs personally under this provision is prevented from avoiding personal responsibility for the breach and recovering those costs from his or her client (s 37N(5)). Should a party or lawyer be tempted to assume that s 37N is a provision that is rarely, if ever, considered by the Court in the management of proceedings, there is the stark reminder that on many occasions43 the Court has turned its mind in judgments to the operation of s 37N, and at times to the personal detriment of lawyers in the form of a costs order. These

judgments are broad-ranging in terms of what conduct may arouse the attention of the Court as concerns that provision. They include cases regarding a party’s failure to comply with an order of the Court or with a lawyer’s duty to assist a client to comply with the overarching purpose,44 a perceived failure to comply with the requirements of the Civil Dispute Resolution Act 2011 (Cth)45 and the question of whether a party has acted unreasonably in relation to the unilateral redaction of documents the subject of a discovery order.46 The apparent common thread to the judgments is the recognition by the Court that ss 37M and 37N must be complied with and that the acts or omissions of parties and their lawyers during the conduct of a proceeding have a tangible effect on the efficiency of the litigation and the incurring of costs and delays.47 The Court has held that it should take into account any failure to comply with the duties in s 37M in the exercise of its costs discretion.48 In a few cases, opposing parties have even argued reliance upon s 37N(4) in seeking a costs order against the other side’s lawyer for the fact that there has been noncompliance with the overarching purpose and there has been a failure by the lawyer to properly discharge his or her duties as a legal practitioner. Those cases suggest that a finding of wrongful conduct on the part of a lawyer will not necessarily entitle a party to recover costs against another party’s legal representative.49 [page 11] To quote the observation of Gray J in Modra v Victoria50 in relation to the enactment of Pt VB of the FCA Act, ‘[i]n truth, the impact of those sections on the obligations of legal practitioners practising in this Court is significant’. Notwithstanding the considerable duty imposed upon both lawyers and the parties by s 37N, the Court still recognises that there is a difference, for the purposes of s 37N(1) and the making of adverse costs orders for its breach,

between raising a contention that proves unsuccessful and raising one that is so unreasonable or unnecessary that it should never have been raised.51 The legislature contemplated that conduct that may result in a finding of noncompliance with the duty imposed by s 37N includes the unreasonable rejection of an offer of settlement and the pursuit of issues with no reasonable prospect of success.52

The overarching purpose in broader context 1.7 The enactment of ss 37M and 37N of the FCA Act, and the duty to conduct litigation in the way that best promotes the overarching purpose, may be viewed within the broader context of public debates about the civil justice system in Australia. Those debates concern how the legal system should function most efficiently in regard to the use of public resources and the provision of greater accessibility for all users (not just the wealthy),53 as well as what should be the proper role of the judge in the management of a case.54 There is a general trend towards a less adversarial litigation system. The issues are scrutinised even more intensely in relation to the perceived rise of ‘mega litigation’ in the Court,55 particularly in respect of class action law suits.56 Such litigation, involving multiple and separately represented parties, and which consumes many months of the Court’s time and generates [page 12] voluminous documentation,57 highlights the need to ensure that the cost of conducting litigation is proportionate with the issues in contention and that resolution of the dispute occurs as expeditiously as possible.58 The issues surrounding these debates are multi-faceted and beyond the scope of this chapter to do proper justice. Suffice it to say, the problems of court delays, procedural inefficiencies and escalating legal costs have plagued legal systems for many years. Such problems and the need for reform resulted

in the Woolf Report on access to justice in the civil justice system in England and Wales.59 In Australia, the Australian Law Reform Commission has published detailed findings in relation to a review of the adversarial litigation system, having regard to the need for a simpler, cheaper and more accessible federal civil justice system.60 In the often-cited High Court decision in Aon Risk Services Ltd v Australian National University (Aon),61 the majority remarked that the time has long passed when preparation for trial is to be left largely to the parties, and the court’s assistance is to be sought only as and when required. To the extent that the decision of Queensland v J L Holdings Pty Ltd62 suggested that case management considerations are to be given little weight in the exercise of judicial discretion to amend pleadings, the majority in Aon, above, said (at [92]) that the rules of court concerning civil litigation are no longer to be ‘considered as directed only to the resolution of the dispute between the parties to a proceeding’. Case management, according to their Honours, reflects the achievement of a just but timely and cost-effective resolution of a dispute, which has a flow-on effect upon the court and other litigants. This is consistent with the overarching purpose mandated by s 37M of the FCA Act and by other courts’ practice and procedure legislation that similarly refer to an ‘overarching purpose’ or, as in New South Wales, the ‘overriding purpose’, of civil litigation.63 This imposes a duty upon lawyers to consider the purpose [page 13] of the civil practice and procedure provisions in the performance of their duties for the client and in the exercise of the duty owed to the court in the administration of justice. Indeed, it has been argued that the duty to a court to promote the overarching purpose should be regarded by all participants in litigation as a paramount duty.64 Should we proceed on the assumption that judicial case management is the

one-size-fits-all solution to the ills of the civil justice system? The answer is ‘not necessarily so’. It is true that the active judicial promotion of the overarching purpose assists with defining the real issues in dispute between the parties, reducing the burden of discovery, and redressing other aspects of civil litigation that pose difficulties for the parties and the court system in keeping a check on costs and delays. The literature suggests, however, that judicial case management has the potential to impose upon parties costs that might not otherwise be incurred if they were not required by the judge to be so proactive upfront in defining and narrowing the issues in dispute and preparing for resolution of the dispute.65 Having said that, judicial case management when done properly (that is, with the correct balance of judicial control and flexibility) has the benefits of encouraging early settlements and instilling good habits and practices that are implemented by lawyers in future proceedings.66 The role of the Court is a finely balanced one of seeking to ensure the cost-effective and timely delivery of justice in individual proceedings while maintaining public confidence in its processes.67

The Civil Dispute Resolution Act Taking ‘genuine steps’ towards dispute resolution 1.8 The introduction of Pt VB of the FCA Act in 2010 was soon followed by another important legislative reform aimed at the prompt and efficient resolution of disputes within the federal legal system. The substantive provisions of the Civil Dispute Resolution Act 2011 (Cth) (Civil Dispute Resolution Act) commenced on 1 August 2011 — incidentally the same date as the Rules came [page 14]

into effect. Its underlying purpose is that parties to certain types of disputes68 must take ‘genuine steps’ to resolve a civil dispute before any proceedings are instituted69 in an ‘eligible court’, being the Federal Circuit Court or the Court.70 The Civil Dispute Resolution Act drew on recommendations of the National Alternative Dispute Resolution Advisory Council in its 2009 report,71 and reflects a further step away from a purely adversarial culture in litigation. The taking of ‘genuine’ steps by a person to resolve a dispute will be satisfied where the steps ‘constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the dispute’.72 No light is shed by the Act as to what constitutes sincerity in practice. Section 4 does, however, list a number of examples of genuine steps that could be taken by a person to resolve a dispute. They include informing the other side of the issues in dispute, offering to enter into discussions or settlement negotiations and exploring alternative dispute resolution processes (and where such a process does not achieve a resolution of the dispute, looking for a different process). It may be assumed that only a limited number of such further alternative dispute resolution processes need be considered before it may be reasonably said that ‘genuine’ attempts at dispute resolution were made by a person. This is in keeping with the object of the Act stated in s 3 that parties ‘as far as possible’ take genuine steps to resolve disputes.73 Section 6 of the Civil Dispute Resolution Act mandates that an applicant wishing to institute civil proceedings in the Court must file a genuine steps statement. This should be done even where there are reasons as to why no genuine steps were taken (for example, given the urgency of the matter or where the safety or security of any person or property would have been compromised by taking such steps).74 Upon receipt of a genuine steps statement filed by the applicant, a respondent must file a genuine steps statement stating the matters set out in s 17.75 The Rules provide the

procedures for parties to file a genuine steps statement essentially attesting to what steps were taken to seek to resolve [page 15] the matter.76 Section 8 of the Civil Dispute Resolution Act provides in part that a genuine steps statement must comply with any additional requirements specified in the Rules. These rules are discussed at 3.8 (applicant) and at 6.10 (respondent). A failure on the part of either party to file a genuine steps statement will not prevent the commencement of a proceeding or invalidate an originating application or any defence filed in opposition to it.77 What is of potential concern to a party or their lawyer is the ability of the Court to take into account any failure to file a genuine steps statement when exercising its discretion to award costs.78 Sections 12(2) and (3) of the Civil Dispute Resolution Act essentially mirror ss 37N(4) and (5) of the FCA Act in the ability of the Court to take into account, when exercising the discretion to award costs, any failure by a lawyer to comply with the relevant duty and to order that the lawyer bear costs personally and be prevented from passing on those costs to the client. It may be noted that the constitutional validity of the Civil Dispute Resolution Act has not been tested. In Dallas Buyers Club LLC v iiNet Ltd (No 3),79 the Court observed of the statutory requirement to take genuine steps to resolve a dispute before any litigation that: Whether access to federal courts can be limited in this way without infringing Chapter III of the Constitution is a question which does not presently arise. It is likely, however, that practical fetters on the ability to litigate which are not reasonably and appropriately adapted to the regulation of the judicial power will not be supported by the incidental power in s 51(xxxix) of the Constitution, which is the only head of legislative power upon which the validity of the Civil Dispute Resolution Act rests … [Such a fetter] is likely to involve a comparison between the fetter placed on the right to litigate and some end related to the administration of justice. It may be that

the Civil Dispute Resolution Act satisfies this requirement because the fetter erected serves the end of reducing the amount of litigation the Courts are required to hear.

Interrelationship with the overarching purpose 1.9 How does the operation of the Civil Dispute Resolution Act in practice sit with the promotion of the overarching purpose under Pt VB of the FCA Act? Section 37N of the FCA Act and s 9 of the Civil Dispute Resolution Act are similar in that they outline a mutual duty of lawyers to advise their clients of the statutory requirements imposed upon parties to civil disputes and to assist their clients to comply with these requirements. Both Acts are also similarly broad when describing the nature of what constitutes the taking of genuine steps to resolve a dispute or how to actually promote the overarching purpose. This provides sufficient flexibility to litigants in the discharge of their duties. [page 16] The most appropriate steps to be taken in the discharge of these duties may be tailored for the circumstances of the particular dispute.80 On one level, the Civil Dispute Resolution Act obviates in a constructive way the need for the overarching purpose under the FCA Act; the prompt resolution of disputes avoids the need for civil litigation to be commenced. The taking of genuine steps to resolve a dispute that proves unsuccessful in that goal may nonetheless promote the overarching purpose by helping to define and narrow the real issues in dispute between the parties. The legislative drafters saw the civil dispute resolution reforms as complementing the overarching purpose.81 The above positive, albeit somewhat simplistic, view of the interrelationship between the two Acts in the conduct of civil proceedings belies the fact that there are some real difficulties or complications with the

operation of the Civil Dispute Resolution Act from the perspective of the Court. The most blatant statement of trepidation about the introduction of that Act was expressed in a submission by a former Chief Justice of the Court to the Senate Standing Committee on Legal and Constitutional Affairs in relation to the Inquiry into the Civil Dispute Resolution Bill 2010 (Cth).82 In that submission, concerns were raised that (amongst other things) the then proposed reforms would increase the costs of, and delays in, the conduct of the voluminous civil litigation workload of the Court and have the potential to create tension with the overarching purpose of the civil practice and procedure provisions. Inefficiency and reduced accessibility and equity would be the consequence. These reservations were founded upon two prime concerns about the likely increase of cost and time in litigation resulting from: (a) satellite litigation from arguments about whether genuine steps had been taken prior to the commencement of proceedings; and (b) the requirement for parties to prepare and file genuine steps statements that do not add to the alternative dispute resolution mechanisms already at the disposal of the Court. A few years subsequent to the commencement of the Civil Dispute Resolution Act, the case law in which the Act has been cited83 tends to suggest the general absence of satellite litigation whose exclusive focus is on the question of an alleged failure by one or more parties to a proceeding to take genuine steps to resolve a dispute or to have filed a genuine steps statement. Where such a question is raised in a judgment, it is generally done so in addition or peripherally to other [page 17] issues or contentions in dispute where the Court is called upon to exercise its discretion.84 A notable exception is the case of Auss Metals Pty Ltd v Express

Mobile Services Australia Pty Ltd,85 whose judgment, and the hearing upon which it was based, is devoted to the question of whether an alleged failure to take genuine steps for settlement entitled an opponent to a costs order against the lawyer for the other side. Whether raising the Civil Dispute Resolution Act adds to the costs and time associated with determining the substantive and interlocutory issues before the Court may be another matter. A further perceived problem concerning the operation of the Civil Dispute Resolution Act is worthwhile noting briefly. The general issue was raised originally by the former Chief Justice in the above-mentioned submission in terms of the Court having concerns that the Act may operate in relation to winding up applications under the Corporations Act 2001 (Cth) (Corporations Act). The decision in Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2)86 observed the difficult practical problems that arise between the genuine steps requirements and the statutory time period imposed in applying to set aside a statutory demand under s 459G of the Corporations Act.87 The Commonwealth Attorney-General’s Department, in conjunction with the Australian Survey Research, conducted a practitioner and court user evaluation survey of the Civil Dispute Resolution Act between August 2012 and August 2013. The final evaluation report findings are not currently available publicly.88

The Court’s case management system A multi-faceted approach 1.10 There is no single approach to judicial case management. Different courts embrace different strategies. At the centre of ‘good’ case management is the implementation of a system that allows sufficient flexibility in the application of the practices and procedures of the particular court in striving

to work with the parties and lawyers towards the just resolution of disputes in an efficient [page 18] and cost-effective way. It has been suggested within the context of a study of several European court systems that effective judicial case management is most likely to flourish in an environment where: the practice and procedure rules are flexible for tailoring to individual cases; the judge is left with sufficient discretion in the management of cases in close cooperation with the parties and for the purpose of promoting the goals of efficiency, appropriate speed and moderate cost; the parties and lawyers have a duty and incentive to cooperate (including sanctions for non-cooperation); and courts have adequate resources to manage cases within a system that meets the requirements and standards of the community.89 The above factors would seem to accord with the management of litigation in the Court, through the interpretation and application of the civil practice and procedure provisions in the promotion of the overarching purpose by the Court. There is also the duty of the parties and their lawyers to comply with that purpose in the conduct of their proceeding, with the prospect of an adverse costs order if that duty is overlooked. The Court has adopted a number of practices in relation to efficient case management (see below), including the use of technology in meeting the demands and needs of modern-day litigation. As it is for most federal courts, the subject of continual adequate resourcing is an issue for the Court.90

Individual docket system 1.11 Upon its establishment, the Court introduced a case management system that sought to minimise the delays associated with litigation by issuing procedural directions to the parties and expecting, in turn, full compliance in endeavouring to provide to them an early hearing date.91 Since 1997, the Court has implemented a proactive approach to the management of each individual civil matter within the Court’s original jurisdiction known as the individual docket system (IDS). Under the IDS, a new matter is ordinarily allocated to a specific Judge at the time of filing and generally remains within the docket of that Judge throughout the conduct of the proceeding, including for directions hearings, any interlocutory application hearings and the final trial. Prior to the introduction of the National Court Framework in 2015 (see at 1.13), [page 19] each Registry had its own practice in respect of the allocation of matters to individual dockets. The rationale underlying the use of the IDS is that the time and cost efficiency of the disposition of a matter is promoted by a single judicial officer having continuity over the entire management of the matter, with the issues in dispute narrowed and the prospects for alternative dispute resolution being identified and pursued at an appropriate stage of the proceeding. Furthermore, and as stated in Practice Note CM 1 – Case Management and the Individual Docket System, the principles underpinning the IDS are those identified in s 37M of the FCA Act. The practice note provides (at [3]) that in giving effect to the overarching purpose, the parties and their lawyers are expected to cooperate with, and assist, the Court in achieving that purpose and that, in particular, they may expect the Court to have regard to the desirability of:

the early identification and narrowing of the issues in dispute; ascertaining the degree of complexity of those issues; setting an early trial date; avoiding unnecessary interlocutory steps and permitting only those steps that help to identify, narrow or resolve the real issues in dispute; and exploring options for early alternative dispute resolution.92

Managerial judging 1.12 The concept of ‘managerial judging’ is generally regarded as a feature of the administration of justice in the Australian federal justice system, including in the Court through its use of the IDS and reliance upon judicial control of the management of proceedings.93 As observed by Justice Beaumont writing extra-curially, the Court’s case management philosophies and methods parallel the notion that dealing with a case justly is achieved by managerial procedures that embody the principles of economy, expedition and overall proportionality.94 Managerial judging has its staunch critics. For example, Professor Resnik perceives the problem that judicial management may be instilling a culture of judges putting the quantity of case dispositions above the quality of their [page 20] dispositions.95 The counter-arguments in the literature are to the effect that experienced judges are accustomed to making discretionary decisions ‘in the interests of justice’; they take into account fairness towards a litigant balanced against broader notions of fairness, such as the expeditious delivery of justice to other litigants within the system.96 The IDS itself has been the subject of criticism because of perceived unfairness to the parties and various inefficiencies in the delivery of justice.

The Law Council of Australia conducted a review of the IDS in early 2002. Although supportive of the system in terms of the benefits it produces for the Court, profession and community through promoting greater efficiency in litigation, it did express concerns that there was scope for improvement and indicated that a more properly utilised IDS could achieve the swifter resolution of matters.97 It also expressed (at [93]) disagreement with the practice of Judges significantly delegating powers to the Registrars of a particular Registry, which it saw as adversely affecting the achievement of the objectives of the system. More recently, it was reported in 2006 that members of the legal profession who were interviewed felt the IDS was not being managed by the Court in the manner originally intended — that cost, delay and inconsistency remain for the main part.98 Similarly, the Australian Law Reform Commission has considered whether fairness is enhanced by a large measure of party control over the management of their litigation and whether managerial judging means parties perceive particular practices and procedures employed by the judge as less fair. It has been suggested that a managerial judge amplifies the idiosyncrasies of the Australian legal system and this, in turn, may mean the system operates unfairly for the parties involved.99 [page 21] With the advent of the new National Court Framework many of the above criticisms are less likely to be levelled against the Court’s case management approaches.

National Court Framework 1.13 In February 2015, the Court began its implementation of the National Court Framework (NCF) as a further element of its case management system. As explained in the National Administrative Notice NAT 1 – Commercial

and Corporations National Practice Area issued by the Chief Justice on 16 February 2015 (NAT 1), the NCF represents a realignment of the case management of proceedings along eight specialised National Practice Areas (NPAs). The eight NPAs, comprised of dedicated groups of Judges with relevant expertise, are: Commercial and Corporations, the sub-areas of which are: – Commercial Contracts, Banking, Finance and Insurance; –

Corporations100 and Corporate Insolvency;

–

General and Personal Insolvency;

–

Economic Regulator, Competition and Access;

–

Regulator and Consumer Protection; and

–

International Commercial Arbitration;

Administrative and Constitutional Law and Human Rights; Native Title; Taxation; Intellectual Property; Employment and Industrial Relations; Admiralty and Maritime; and Criminal Cartel Trials. The implementation of the NCF commenced with the Commercial and Corporations NPA, with other NPAs being integrated into the NCF throughout 2015. Until such time as new practice notes are issued, the principles and requirements set out in NAT 1 are to be applied. Existing administrative notices and practice notes are either affected or not affected, as the case may be, in the manner outlined in NAT 1 at [5.1]–[5.3]. In relation to matters in the Commercial and Corporations NPA, specific regard should be had to Interim Practice Note NCF 1 – National Court Framework and Case Management. In due course, that practice note will apply to all NPAs.

The general approach for all NPAs will be that at an initial case management hearing (to be held usually within two to five weeks of the commencement of a proceeding), the most appropriate course for the efficient preparation of the matter and the steps truly required will be addressed. Within six months of that case management hearing the Court will endeavour to set the matter down for [page 22] hearing with a hearing date as early as possible.101 The notion is that this will minimise or avoid the need for multiple directions hearings. The new structure enables the Court to organise and manage its workload and resources along practice area lines instead of along Registry lines.102 This will assist in streamlining the conduct of litigation across different Registries, having regard to the national operation of the Court. It marries the benefits and strengths of the IDS with a case-allocation method that ensures greater consistency in case management approach across the Registries of the Court. At the same time, the Court will be able to provide specialised expertise. In this way, the Court expects to develop the confidence of the profession and the community and to broaden the base of judicial knowledge and experience in the Court.103 The key benefits for litigants are stated by the Court to include simplified practice and procedure, early scheduling conferences and enhanced mediation, hearing dates within six months of the case management hearing, judgment delivered within three to six months of the completion of the trial104 and encouragement of lump sum or apportioned costs orders at the time of judgment.105 It is made clear by the Court106 that case management under the NCF will be governed by the overarching purpose of the civil practice and procedure provisions. The parties and their lawyers are expected to cooperate with, and assist, the Court to identify the real issues in dispute early and so as to deal

with them efficiently, regardless of the level of complexity of the matter. The cooperation will be fostered by dialogue between the Court and the parties and their lawyers, and the Rules will be applied and interpreted with appropriate flexibility. It is still early days in the implementation of the new NCF. Time will reveal the extent to which the goal of reduced directions hearings is achieved and what is the true impact on costs caused by compliance with the procedures requiring parties to narrow the real issues in dispute by the time of the initial case management hearing.

Fast Track 1.14 The ‘Fast Track’ system was launched in the Victoria District Registry of the Court as a pilot program on 1 May 2007 and was then gradually [page 23] implemented across all of the Court’s Registries.107 As a forerunner to the NCF it, too, is designed to ‘streamline court procedures in order to significantly reduce both the time and costs of litigation’.108 The system is used principally for cases relating to commercial matters and provided the trial is not likely to exceed five days. Its main procedures and features are outlined in Practice Note CM 8 – Fast Track. As discussed further in Chapter 6, the key features of Fast Track are: the abolition of pleadings (replaced by a case summary); a scheduling conference approximately six weeks after commencement of the proceeding; the dealing with interlocutory applications on the papers (except in urgent cases);

a reduction in the volume of discovery; a pre-trial conference for outstanding issues to be dealt with; a ‘chess-clock’ style trial; and the delivery of judgment within six weeks of the finalisation of the trial, if not sooner.109 It has been suggested that the ‘Rocket Docket’ has been a success, although not devoid of some problems.110 It is likely that the introduction of the NCF, and the development of new practice notes, will impact on the procedures of the Fast Track system in a practical sense.

An electronic court file 1.15 The Court is recognised for its innovative adoption of the use of technology to achieve improvements in the delivery of services to its users. Several of the online services available are the ‘virtual’ courtroom (eCourtroom),111 being a part of the Commonwealth Courts Portal (incorporating the Federal Law Search engine),112 the use of videoconferencing facilities113 and the electronic filing and management of documents (including the electronic court file [page 24] (ECF) and eLodgment).114 The Court’s eStrategy is described as aiming to use technology to ‘maximise the efficient management of cases, by increasing online accessibility for the legal community and members of the public, as well as assisting judges in their task of deciding cases according to [the overarching purpose]’.115 In particular, since 2014 the ECF has, for the main part, replaced the paper file as the official Court record. The Court sees the NCF as intrinsically linked to the introduction of the ECF in the achievement of its goals, including the promotion of the overarching purpose.116

The use of technology in the conduct of proceedings, including in the management of the discovery process and during directions hearings and trials, is addressed further in Chapters 6 and 9.

The civil practice and procedure provisions Interpretation and application under s 37M 1.16 It was noted earlier that s 37M(3) of the FCA Act requires the promotion of the overarching purpose through the interpretation and application of the ‘civil practice and procedure provisions’, which are defined in sub-s (4) to mean the Rules of Court made under the FCA Act and any other provision made under the FCA Act or any other Act with respect to the practice and procedure of the Court. Before we can start examining how to best promote the overarching purpose through the proper interpretation and application of the civil practice and procedure provisions, as well as the exercise of the powers of the Court under those provisions, it is necessary to obtain an understanding of their purpose and nature. The ‘civil practice and procedure provisions’ are principally the provisions of the Rules and the FCA Act.117 Although not technically part of the Rules, the various practice notes issued by the Chief Justice of the Court from timeto-time will also be included in those provisions, having due regard to the fact the practice notes are issued as part of the Court’s inherent power to control its own processes and that they supplement the Rules.118 As alluded to at 1.13, the practice notes are to become the subject of amendment (or revocation) as a result of the new NCF reforms. [page 25]

Rules of Court

1.17 Section 59 of the FCA Act confers power upon the Judges of the Court or a majority of them to makes rules consistent with that Act for the practice and procedure to be followed in the Court. The current practice and procedure rules came into effect on 1 August 2011 and replaced the repealed Federal Court Rules 1979 (Cth) (Rules 1979). Although the revision of the practice and procedure of the Court commenced prior to the enactment of Pt VB of the FCA Act, the goals of the Rules Revision Project (responsible for the writing of the new rules) are consistent with the overarching purpose of civil litigation. Those goals include the introduction of rules that will promote greater access to, and efficiency in the administration of, federal civil justice and that complement the Court’s case management philosophy and systems.119 The Rules represent a substantial re-drafting of the repealed rules of court, which were characterised by many years of amendments. The stylistic changes to the Rules exhibit a focus upon plain English drafting, including the replacement of archaic terms with more general language (such as ‘interlocutory application’ instead of ‘notice of motion’). The most significant practical change is that the Rules are directed at enabling the parties to make various applications, whereas the Rules 1979 emphasised the powers of the Court to make orders. The costs schedule also has been simplified.120 The structure of the Rules is a significant departure from that of the Rules 1979. Six chapters are divided into parts (42 in total). The parts are further divided into divisions, containing the individual rules. The three schedules at the end of the Rules set out the Dictionary (Sch 1), the powers of Registrars (Sch 2) and party and party costs allowable for legal work done and services performed (Sch 3). Although referred to throughout the Rules, the forms are no longer a part of them, but are approved by the Chief Justice and published on the Court’s website.121 This enables the Court to amend the forms administratively and without the need to formally amend the Rules in the process. The Rules apply to proceedings commenced on or after 1 August 2011 (r

1.04(1)). For proceedings commenced prior to that date, the Rules will apply to a step taken after 1 August 2011 unless the Court orders that the Rules 1979 apply in relation to that step (rr 1.04(2)–(3)).122 A person wanting to start a proceeding or to take a step in an existing proceeding may apply to the Court for an order about the procedures to be followed if that procedure is not [page 26] prescribed by the Rules or any legislation or the person is in doubt about the procedure (r 1.21).

Powers under the Rules 1.18 The specific and general powers of the Court reside, for the main part, in the FCA Act and the Rules. When dealing with the specific powers of a Judge, due attention must be paid to the wording of the Rules in differentiating those rules that merely enable a party to make an application for a specific order and those other rules that enable the Judge to make a specific type of order upon the bringing of an appropriate application. That is to say, proper regard must be had as to whether the Judge’s power to make the relevant order derives from the FCA Act (or some other Act) or from the Rules. This has become more of an issue under the Rules than was the case under the Rules 1979 because of the shift in language from ‘the Court may order’ to ‘a party may apply for an order’. This is less of an issue, however, in those areas of the Rules containing harmonised rules between the Court and Supreme Courts (such as Div 7.4 (freezing orders) and Div 7.5 (search orders)), which retain the former language of ‘the Court may make an order’.

Registrars 1.19 The specific powers of the Court exercisable by Registrars are dealt with

in Div 3.1, and especially by r 3.01. Such powers are also set out in various places in the body of the Rules (the exercise of discretion of the taxing officer under r 40.31 is one such example) and in an extensive list in Sch 2 of the Rules. The other primary source of power of Registrars is s 35A of the FCA Act.123 Not all Registrars may automatically exercise all of the powers referred to in Sch 2 or s 35A. Whether a particular Registrar may exercise a power will depend upon the delegation of powers held by that individual having regard to a separate instrument signed by a Judge (that is, a direction made by a Judge). The powers of Registrars overlap in a number of regards with those of a Judge in relation to the management of a case, although a costs order may only be made by a Registrar in relation to costs in connection with an application heard by the Registrar (s 35A(2)). An application to be heard by a Registrar will be referred for hearing by a Judge where a party makes an application to the Registrar to this effect (r 3.05) or where the Registrar otherwise considers it appropriate. The question of a review of a Registrar’s decision made during the exercise of a power is covered by Chapter 11. [page 27]

The Court’s general powers 1.20 Division 1.3 of the Rules outlines the general powers of Judges (and potentially Registrars) of the Court. These powers are an important means by which the Court can exercise the discretionary powers it requires to achieve the just resolution of disputes according to law. The powers of the Court under Div 1.3 are broad-reaching, yet necessarily flexible, and may be summarised as being: the Court may in making an order have regard to the nature and complexity of the proceeding and may deal with the proceeding in a manner that is proportionate to that nature and complexity (r 1.31);124

the Court may make an order that it considers appropriate in the interests of justice (r 1.32);125 an order made by the Court may be the subject of any conditions the Court considers appropriate (r 1.33);126 the Court may dispense with compliance with any of the Rules at any time (r 1.34);127 an order may be made that is inconsistent with the Rules and that order will prevail (r 1.35);128 the Court may make orders sitting other than in open court (that is, sitting in Chambers) (r 1.36);129 the Court may direct a Registrar to act or refrain from acting (r 1.37);130 where the Rules are silent on the time fixed for the doing of an act or thing in relation to a proceeding, the Court may fix that time (r 1.38); the Court may extend or shorten a time fixed by the Rules or by an order of the Court at any time and whether or not an extension application is made before the time expires (r 1.39);131 at any stage of a proceeding, the Court may exercise a power mentioned in the Rules (but seemingly not one mentioned in the FCA Act) on its own initiative or on the application of a party or a person who has sufficient interest in the proceeding (r 1.40);132 [page 28] if a party makes an application for an order, then the Court may grant or refuse that order or it may make a different order (r 1.41);133 and finally, the Court may specify in an order the consequences of any noncompliance (r 1.42). Lawyers should be aware of the existence of these general powers within the

Rules when making or opposing applications before the Court.

The FCA Act 1.21 The FCA Act is a detailed and key piece of legislation. Apart from creating the Court, the FCA Act addresses the Court’s very nature and the exercise of its jurisdiction, the constitution and management of the Court and case management and other matters relating to the conduct of litigation in both the original and appellate jurisdictions. It embodies a number of the civil practice and procedure provisions studied in this book. The FCA Act is divided into 14 parts, with each part further divided into either divisions with sections or only sections. There is a single schedule to the Act, being the oath or affirmation of office for new Judges.

Powers under the FCA Act 1.22 Several provisions of the FCA Act, pertaining to the powers of the Court, are worth highlighting. They serve to inform the basis upon which the Court may exercise its discretionary powers during the management of proceedings consistent with the overarching purpose. The importance of ss 37M and 37N of the FCA Act in the management of civil proceedings in the Court has already been considered and will not be repeated here. There is a further provision of Pt VB of the FCA Act that has not yet been addressed in detail; namely, s 37P.

Section 37P 1.23 Section 37P empowers the Court or a Judge to give directions about the practice and procedure to be followed in respect of all or part of a civil proceeding. The expression ‘the Court or a Judge’ is defined in s 4 of the FCA Act to mean ‘a Judge sitting in Chambers’, but this should not be construed to mean that the powers in s 37P may only be exercised by the Judge in that setting. The types of directions that may be made are listed in sub-s (3),

including broadly described directions (such as simply requiring things to be done (para (a)) and more specific directions (for instance, limiting the number of witnesses to be called to give evidence (para (c)). A party’s failure to comply with a direction of the Court under this section may result in the making of such order or direction as the Court thinks appropriate, including the dismissal of a proceeding in whole or in part or an award of indemnity costs against a party (ss 37P(5)–(6)). [page 29] The ability of the Court to amend or revoke any earlier direction and to waive or vary any provision of the Rules in their application to the proceeding (ss 37P(3)(f)–(g)) provides the Court with the flexibility to manage a proceeding in the way that is most appropriate for that proceeding.134 Furthermore, a case management direction made under s 37P is likely to be interlocutory in nature and, having regard to s 24 of the FCA Act and the Court’s appellate jurisdiction, will require leave to appeal.135

Other case management provisions 1.24 With respect to the Court’s original jurisdiction, there are a few other provisions conferring power on Judges that are relevant to the management of civil litigation: Section 17: Consistent with the principle of open justice, the business of the Court is ordinarily to be conducted in open court (s 17(1)). Section 17(2) allows the jurisdiction of the Court to be exercised by a Judge sitting in Chambers on an application relating to the conduct of a proceeding or for orders or directions as to any matter authorised by an Act or the Rules to be made by a Judge sitting in Chambers.136 By s 17(4), the Court may order the exclusion of any person from a sitting of the Court where it is satisfied that the presence of that person would be contrary to the interests of justice.137

Section 21: The Court may in civil proceedings, in relation to a matter in which it has original jurisdiction, make binding declarations of right. The discretion to grant declaratory relief forms part of the inherent power held by superior courts.138 Section 22: This section empowers the Court to grant all remedies in respect of an equitable139 or legal claim properly brought forward before the Court so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and so as to avoid the multiplicity of proceedings. The public policy underlying s 22 is that it is in the interests of justice that finality to litigation is achieved.140 As argued in Chapters 8, 9 and 10, the just resolution of disputes in an expeditious manner, which is [page 30] at the heart of the overarching purpose of case management, is dependent upon the notion of finality to litigation. Section 23: The Court has the power, in relation to matters in which it has jurisdiction, to make orders (including interlocutory ones) and to issue (or direct the issue of) writs as it thinks appropriate. It was held in Australian Securities and Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 14),141 that s 23 is not to be relied upon as a source of jurisdiction when it in fact ‘confers power in aid of jurisdiction’. Section 51: A formal defect or an irregularity will not invalidate a proceeding, unless the Court is of the opinion that substantial injustice is caused which cannot be remedied by an order made by the Court. The Court or a Judge may make an order (with or without conditions) declaring the proceeding valid. Finally, in the exercise of the appellate jurisdiction, s 28(1) enables the Court

(amongst other things) to make such order as, in all the circumstances, it thinks fit or to refuse to make an order.142

1

The Court first sat on 7 February 1977. For a history of the Court, see Chief Justice Michael E J Black, ‘The Federal Court of Australia: The First 30 Years – A Survey on the Occasion of Two Anniversaries’ (2007) 31 Melbourne University Law Review 1017; Mary Crock and Ronald McCallum, ‘The Chapter III Courts: The Evolution of Australia’s Federal Judiciary’ (1995) 6 Public Law Review 187. 2 Under s 71 of the Constitution. 3 FCA Act s 5(2). 4

Ibid s 5(3). Under the FCA Act, the Chief Justice has responsibility for ensuring the effective, orderly and expeditious discharge of the business of the Court (s 15(1)) as well as for the management of the administrative affairs of the Court (s 18A). 5

Section 34 of the FCA Act provides (in part) that there will be at least one Registry established in each State and in the Australian Capital Territory and the Northern Territory. For information on Registry hours, refer to Practice Note GEN 1 – Court Sitting and Registry Hours. 6 FCA Act s 12. 7 Federal Court of Australia, Annual Report 2013–2014, ‘Part 1: Overview of the Federal Court of

Australia’ ; Federal Court of Australia, ‘Courts and Tribunals Administered by the Federal Court’ . 8

The judicial power of the Commonwealth is vested in the Court as a federal court created by the federal Parliament in accordance with s 71 of the Constitution. 9 For a detailed explanation of the jurisdiction of the Court, see Justice James Allsop, ‘An Introduction

to the Jurisdiction of the Federal Court of Australia’ (FCA) [2007] Federal Judicial Scholarship 15 ; Justice James Allsop, ‘Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia’ (Paper presented to the New South Wales Bar Association, Sydney, 21 October 2003); Justice James Allsop, ‘Federal Jurisdiction II’ (Lecture given to the New South Wales Bar Association, Sydney, 27 November 2003). 10

Some of the issues raised in practice by the wording and operation of s 32 are discussed in Justice Bruce Lander, ‘Federal Court Jurisdiction and Practice Relating to Contractual Claims’ (Paper presented to the Society of Construction Law Australia, 22 February 2011), 15–21. 11 Justice Susan Kenny, ‘The Evolving Jurisdiction of the Federal Court of Australia Administering

Justice in a Federal System’ (FCA) [2011] Federal Judicial Scholarship 20 . 12

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475 (Barwick CJ); Johnson Tiles Pty Ltd (ACN 004576103) v Esso Australia Ltd [2000] FCA 1572 at [90]–[95] (Beaumont, French and Finkelstein JJ). See also the paper by Justice Bruce Lander, ‘Federal Court Jurisdiction and Practice Relating to Contractual Claims’ (Paper presented to the Society of Construction Law Australia, 22 February 2011); Enid Campbell, ‘The Accrued Jurisdiction of the Federal Court in Administrative Law Matters’ (1998) 17 Australian Bar Review 127.

13

See s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 of the States and s 9(2) of the Commonwealth enactment of that legislation. 14 [1999] HCA 27; (1999) 198 CLR 511. 15 Justice Ronald Sackville, ‘The Re-emergence of Federal Jurisdiction in Australia’ (Paper presented to

the New South Wales Bar Association and the Australian Capital Territory Bar Association Regional Conference, 14–15 July 2001) 8. See also Justice Susan Kenny, ‘The Evolving Jurisdiction of the Federal Court of Australia Administering Justice in a Federal System’ (FCA) [2011] Federal Judicial Scholarship 20 . 16 [2012] FCAFC 96 (Bennett, Perram and Robertson JJ). 17

Parsons v Martin [1984] FCA 408; (1984) FCR 235 at 241. See also Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630; 71 ALR 457; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 561; 109 ALR 247. The Court has, however, referred to its ‘inherent jurisdiction’ in Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 at [1]; McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [24]. 18 Consistent with s 77 of the Constitution. 19 A list of the Acts is available on the Court’s website at

. In 1977, there were only 13 statutes that conferred jurisdiction upon the Court. 20

FCA Act s 13; Practice Note CM 15 – Allocation of Proceedings to Divisions of the Court Direction under s 13(5) of the Federal Court of Australia Act 1976 (Cth). 21 Known formerly as the Federal Magistrates Court (and originally as the Federal Magistrates Service). 22 For further information, consult the Federal Circuit Court website at

. 23

Such as under Div IA of Pt III of the FCA Act within the original jurisdiction and in relation to appeals under Div 2A of Pt III of that Act. Note also the provisions pertaining to bail contained in Pt VIB. 24

See Military Court of Australia Bill 2012 (Cth) and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Cth), flowing on from the High Court decision in Lane v Morrison (2009) 239 CLR 230 (which ruled invalid the establishment of the Australian Military Court). Under the proposed legislation, a new Military Court of Australia would be established consistent with Ch III of the Constitution and that would utilise the administrative and judicial resources of the Court (and the Federal Circuit Court). 25 Federal Court of Australia, Annual Report 2013–2014, 22–3

. 26 Ibid at 2. 27 Ibid at 16–7. 28 For a background discussion on the purpose of the amendments to the FCA Act, refer to Explanatory

Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth). 29 Section 37P is discussed at 1.23. 30

Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth)

[18]. 31 See generally Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328. 32 [2011] FCA 724 at [10]. 33 A search of the AustLII database () in mid-2015 reveals the existence of

in excess of 380 judgments of the Court making mention of s 37M of the FCA Act. 34 [2011] FCA 1215 at [42] (Stone J). 35 [2011] FCA 388 at [26]–[28]. See also Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622. 36 [2009] HCA 27; (2009) 239 CLR 175 at [29], [30], [57]. 37 [2015] FCA 420 (Gilmour J). 38 [2010] FCA 917 at [59]. 39 Such as those in Browne v Dunn (1894) 6 R 67 and Jones v Dunkel (1958) 101 CLR 298. 40 Paone v Wilhelmsen Manufacturing Australia Pty Ltd [2012] FCA 287 at [12] (Bromberg J). 41 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 2) [2012] FCA 559 at [2] (Rares J). 42

A ‘lawyer’ is defined in s 4 of the FCA Act to mean ‘a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory’. 43 A search of the AustLII database () as at mid-2015 reveals close to 100

published Court judgments relating to the subject of s 37N. 44

See, for example, Yeo (as liquidator), in the matter of Lyco Innovations Pty Ltd (in liq) v Onesteel Trading Pty Ltd [2013] FCA 568. In Modra v Victoria [2012] FCA 240, the Court ordered a party’s lawyer to pay costs for a breach of the duty under s 37N(2)(b) of the FCA Act. Personal costs orders against lawyers are considered at 12.8–12.9. 45

Such as in Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282; Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2) [2012] FCA 977 at [11]–[12] (Reeves J); Hookway v M I D Pty Ltd [2012] FCA 1456 at [15] (Middleton J). 46 MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514. 47 See, for example, Suzlon Energy Ltd v Bangad (Application of Credit Suisse Group SA) [2011] FCA 921

at [41] (Rares J). 48

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (2008) 208 FCR 78; [2012] FCAFC 183 at [57]– [58] (Katzmann J), cited in Ryan v Primesafe [2015] FCA 8 at [9] (Mortimer J). 49

See, for example, Auss Metals Pty Ltd v Express Mobile Services Australia Pty Ltd [2015] FCA 745 at [5] (Pagone J) (costs not ordered against the solicitor); Mijac Investments Pty Ltd v Graham [2013] FCA 296 (costs ordered against the solicitor on a party-party basis, but an indemnity costs order had been sought). 50 [2012] FCA 240 at [31]. See also Re Kuek [2012] FCA 494 at [13] (Jessup J). 51 Asahi

Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 3) [2014] FCA 758 at [15]– [16] (Bromberg J). 52

Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) [30].

53

For instance, Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000); Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Final Report (1999). 54

Consider Justice Bryan Beaumont, ‘Managing Litigation in the Federal Court’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 160; Chief Justice James Allsop, ‘Judicial Case Management and the Problem of Costs’ (FCA) [2014] Federal Judicial Scholarship 16; Justice Steven Rares, ‘Judicial Intervention and Caseflow Management’ (FCA) [2011] Federal Judicial Scholarship 12; Peter Sallmann, ‘The Impact of Caseflow Management on the Judicial System’ (1995) 18 University of New South Wales Law Journal 193. 55

Justice Ronald Sackville, ‘The C7 Case: A Chronicle of Death Foretold’ (Paper presented to the New Zealand Bar Association International Conference, Sydney, 15–16 August 2008). 56 Hannah Low, ‘Chief Justice Wants to End Litigation Warfare’, Australian Financial Review, 21

November 2014 . 57 As alluded to in Seven Network Ltd v News Ltd [2007] FCA 1062 at [2] (Sackville J). 58

Note the discussion on the subject of ‘proportionality’ in Justice Ronald Sackville, ‘The C7 Case: A Chronicle of Death Foretold’ (Paper presented to the New Zealand Bar Association International Conference, Sydney, 15–16 August 2008). 59

Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1996. 60

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000). See further Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994); Commonwealth Attorney-General’s Department, The Justice Statement, Office of Legal Information and Publishing, 1995; Commonwealth Attorney-General’s Department, Report on the Review of Scales of Legal Professional Fees in Federal Jurisdictions, 31 March 1998; Justice D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation’ (Pt 1) (1995) 69 Australian Law Journal 705; Justice D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation’ (Pt 2) (1995) 69 Australian Law Journal 790; Law Council of Australia, Federal Court Liaison Committee, Final Report in Relation to Possible Innovations to Case Management (2006). 61 [2009] HCA 27 at [113]; (2009) 239 CLR 175. 62 [1997] HCA 1; (1997) 141 ALR 353. 63 For example, Court Procedure Rules 2006 (ACT) r 21; Civil Procedure Act (2005) (NSW) s 56; Court

Procedure Act 2010 (Vic) s 10. The Aon matter concerned the overarching purpose of the ACT Rules. 64 Chief Justice Marilyn Warren, ‘Speech – The Duty Owed to the Court: The Overarching Purpose of

Dispute Resolution in Australia’ (VSC) [2011] Victorian Judicial Scholarship 7 . 65 Refer to the discussion of the issue and review of the overseas and Australian studies in Chief Justice

James Allsop, ‘Judicial Case Management and the Problem of Costs’ (FCA) [2014] Federal Judicial Scholarship 16 . See also Justice Roger Gyles, ‘Whither Case Management’ (Speech delivered at the New Zealand Bar Association Conference, Sydney, 16 August 2008). 66

Chief Justice James Allsop, ‘Judicial Case Management and the Problem of Costs’ (FCA) [2014]

Federal Judicial Scholarship 16, 8–9. The pros and cons of ‘managerial judging’ are further considered at 1.12 within the context of the individual docket system. 67

Justice Susan Kenny, ‘Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium’ (1995) 25(2) Monash University Law Review 209. 68

The requirements under the Act apply to all federal civil law matters but do not apply to proceedings that are ‘excluded proceedings’, as set out in ss 15–17 of the Act and in the Civil Dispute Resolution Regulations 2011 (Cth). Such proceedings may not lend themselves readily to the procedures of the Act (such as proceedings involving a vexatious litigant (see s 15(g)) or where certain Acts already prescribe their own dispute resolution regimes (for instance, under the Fair Work Act 2009 (Cth) — see ss 16(c)– (d) of the Civil Dispute Resolution Act). 69 Civil Dispute Resolution Act s 3. 70 Ibid s 5. 71

National Alternative Dispute Resolution Advisory Council, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (2009). 72 Civil Dispute Resolution Act s 4(1A). 73 Hookway v M I D Pty Ltd [2012] FCA 1456 at [34] (Middleton J). 74 Civil Dispute Resolution Act s 6(2)(b). 75 Superior

IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 at [33] (Reeves J); Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2) [2012] FCA 977 at [7] (Reeves J) (confirmed that no obligation rests upon the respondent if the applicant has failed to file a genuine steps statement). 76 Rule 8.02 (applicant’s genuine steps statement); r 5.03 (respondent’s genuine steps statement). 77 Civil Dispute Resolution Act s 10(2). 78 Ibid s 12. 79 [2015] FCA 422 at [18] (Perram J). 80 See generally Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth). 81

Ibid. See also Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2) [2012] FCA 1138 at [17] (Collier J). 82

Letter from P A Keane, Chief Justice of the Federal Court of Australia, to Mr Hamish Hansford, Committee Secretary, Senate Standing Committee on Legal and Constitutional Affairs styled ‘Inquiry into the Civil Dispute Resolution Bill 2010’, 22 October 2010. 83 A search of the AustLII database () in mid-2015 reveals just over two

dozen published judgments. 84

For instance, in relation to an award of costs generally (Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782); discovery orders (Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422); the winding up of a company (Hookway v M I D Pty Ltd [2012] FCA 1456; Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282; Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2) [2012] FCA 977); an injunction in restraint of legal proceedings (Whirlpool (Australia) Pty Ltd v Castel Electronics Pty Ltd [2015] FCA 906).

85 [2015] FCA 745. 86 [2012] FCA 977 (Reeves J). 87

Note that proceedings for an order under s 459A of the Corporations Act are excluded proceedings for the purposes of s 17(1) of the Civil Dispute Resolution Act: see Civil Dispute Resolution Regulations 2011 (Cth) reg 4. 88

See discussion about the survey on the Department’s website . 89 C H van Rhee, Judicial Case Management and Efficiency in Civil Litigation (Intersentia, Belgium,

2008) . 90 See generally Tyler Fox, ‘Federal Courts Funding’ ; Commonwealth of Australia, Department of Finance and Deregulation, Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio (2012). 91 Lenijimar

Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 at [31] (Wilcox, Pincus and Gummow JJ). 92 Refer also to Federal Court of Australia, ‘Guide to Individual Docket System’ . 93

See Justice Robert French, ‘Managerial Judging in the Federal Court’ (2005) 32(8) Brief 5; Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20 (1997) 39; Peter A Sallmann, ‘Managing the Business of Australian Higher Courts’ (1992) 2 Journal of Judicial Administration 80. The concept of managerial judging was originally described in the 1980s in the United States — see Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374. 94

Justice Bryan Beaumont, ‘Managing Litigation in the Federal Court’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 160, 168. 95 Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374, 380. See also the potential

problems of active judicial case management canvassed in the paper by Chief Justice James Allsop, ‘Judicial Case Management and the Problem of Costs’ (FCA) [2014] Federal Judicial Scholarship 16 . 96 E D Elliott, ‘Managerial Judging and the Evolution of Procedure’ (1986) 53 University of Chicago Law

Review 306; Steven Flanders, ‘Blind Umpires – A Response to Professor Resnik’ (1984) 35 Hastings Law Journal 505. See also Rebecca Love Kourlis and Jordan M Singer, ‘Managing Towards the Goals of Rule 1’ (2009) Federal Courts Law Review 1; Justice D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation’ (Pt 1) (1995) 69 Australian Law Journal 705, 720. 97

Law Council of Australia, Federal Litigation Section, Submission to Federal Court Liaison Committee, Review of the Individual Docket System (2002). See also Caroline Sage, Ted Wright and Carolyn Morris, ‘Case Management: An Evaluation of the Federal Court’s Individual Docket System’ (Report, Law and Justice Foundation of New South Wales, 2002) 1; Justice Ronald Sackville, ‘Courts in

Transition: An Australian View’ (Paper presented at the New Zealand Court of Appeal/High Court Judges’ and Masters’ Conference, New Zealand, 20–23 March 2003) 15. 98

Law Council of Australia, Federal Court Liaison Committee, Final Report in Relation to Possible Innovations to Case Management (2006); Justice Michelle Gordon, ‘Evaluation of the Docket System with Particular Emphasis on Case Preparation and Early Identification of Issues’ (Speech delivered at the Federal Court Law Council Seminar, 14 March 2008). 99

Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20 (1997) 24. 100 For the meaning of ‘corporations matters’, see NAT 1 at [3.1]. 101 Interim Practice Note NCF 1 – National Court Framework and Case Management at [5]. 102 Federal Court of Australia, ‘Introducing the National Court Framework’

. 103 Ibid. 104

It may be recalled that the Court’s stated goal in its annual reports is for the delivery of judgments within three months of judgment being reserved: see at 1.3. 105 Federal Court of Australia, ‘Introducing the National Court Framework’

. 106 Interim Practice Note NCF 1 – National Court Framework and Case Management at [5]; Federal

Court of Australia, ‘Commencement of Commercial & Corporations National Practice Area (NPA)’ . 107 Each Registry has an administrative notice concerning Fast Track arrangements in that particular

Registry . 108 Federal Court of Australia, Annual Report 2007–2008, 13. 109 Federal Court of Australia, ‘Fast Track System’ . 110 See the insightful views of Justice Michelle Gordon, ‘Benefits and Burdens of Case Management:

The Victorian Experience with the “Rocket Docket”’ (Address to the Annual Conference of the Bar Association of Queensland, 2009), reproduced in Hearsay, Journal of the Bar Association of Queensland, Issue 34 (April 2009) . See also Chief Justice Michael Black, ‘The Role of the Judge in Attacking Endemic Delays – Some Lessons from Fast Track’ (Address to the 18th Pacific Judicial Conference, Papeete, French Polynesia, 18 June 2009). 111 Federal Court of Australia, ‘eCourtroom’ (access available through

). 112 Access available through . 113 See Federal Court of Australia, ‘Videoconferencing Guide’ . 114 Access available through . 115 Federal Court of Australia, Annual Report 2013–2014,

32. See also Philip Kellow, ‘The Federal Court

of Australia: Electronic Filing and the eCourt Online Forum’ (2002) 4 University of Technology Sydney Law Review 123. 116 Federal Court of Australia, ‘Introducing the National Court Framework’

. 117

There are also the Federal Court (Corporations) Rules 2000 (Cth), Federal Court (Bankruptcy) Rules 2005 (Cth), Admiralty Rules 1988 (Cth) and the Native Title (Federal Court) Regulations 1998 (Cth), which are beyond the scope of this book to examine in detail. 118 See generally the description of the practice notes by the Court on its website at

. 119 Explanatory Statement, Federal Court Rules 2011 (Cth). 120

Justice Bruce Lander, ‘Federal Court Rules 2011’ (Presentation to the Legal Profession, Canberra, 15 November 2011). 121 Available at . 122

See generally Richardson v Oracle Corporation Australia Pty Ltd (No 2) [2014] FCAFC 139 at [5] (Kenny, Besanko and Perram JJ), citing Elecspess Pty Ltd v LED Technologies Pty Ltd [2013] FCAFC 116 at [11]. 123

See further Sch 2 to both of the Federal Court (Corporations) Rules 2000 (Cth) and the Federal Court (Bankruptcy) Rules 2005 (Cth). A Registrar may also potentially exercise certain powers under the Bankruptcy Act 1966 (Cth), the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth). 124 Shurat

HaDin, Israel Law Center v Lynch [2014] FCA 226 at [9] (Robertson J); Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748. 125

Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72; McAlister v New South Wales [2014] FCA 702; Muswellbrook Shire Council v Royal Bank of Scotland NV [2013] FCA 616. See also ss 23 and 28 of the FCA Act, discussed at 1.24. 126 Rita Augustine v Western Australia [2013] FCA 338 at [10] (Gilmour J). 127

Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292 at [19] (Logan J); Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 12) [2012] FCA 289; Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306. 128

Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292 at [19] (Logan J); Kassem and Secatore v Commissioner of Taxation (No 2) [2012] FCA 293. 129 US

Shipping Ltd v Leisure Freight & Import Pty Ltd (in liq) (No 2) [2015] FCA 413; Brosnan v Katke (No 2) [2015] FCA 386. See also discussion on s 17(2) of the FCA Act at 1.24. 130 Re Singh [2012] FCA 322. 131 Skinner v Commonwealth [2012] FCA 1194. 132

Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 3) [2015] FCA 200 at [7] (Buchanan J). 133 McAlister v New South Wales [2014] FCA 702. 134

See generally Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) [35].

135 Ibid at [38]. 136 Rule 3.03 provides that ‘[a] Registrar may make an order other than in open court’. 137 See, for example, Western Australia v Ben Ward [1997] FCA 585. 138

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, discussed in Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375 at [82] (Ryan J). The Court has the power to make declarations of liability in representative proceedings under s 33Z(1)(c) of the FCA Act. 139 In relation to the power of the Court to grant equitable relief in representative proceedings, consult s

33Z(1)(d) of the FCA Act. 140

Foodco Group Pty Ltd v Northgan Pty Ltd [1998] FCA 550; Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 3) [2011] FCA 912; Thompson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150. 141 [2007] FCA 310 at [7] (French J). 142 See generally Woolworths Ltd v BP plc [2006] FCAFC 52.

[page 31]

Chapter 2

PRE-LITIGATION ORDERS This chapter covers: • •

•

•

Part 7 of the Rules …. Injunctions, preservation of property and receivers …. Urgent orders …. Parties …. Required documents …. Undertaking to the Court …. Approval of agreement — persons under a legal incapacity …. Compromise or settlement prior to proceedings …. Form of application …. Effect of r 7.11 …. Preliminary discovery …. Orders for preliminary discovery …. Ascertaining description of prospective respondent (r 7.22) …. Rule 7.22 application documents …. Orders made under r 7.22(2) …. Application for discovery from a prospective respondent (r 7.23) …. Rule 7.23 application documents …. Lists of documents and privilege …. Inspection and copying of documents …. Costs under Div 7.3 ….

2.1 2.2 2.2 2.3 2.4 2.5 2.6 2.6 2.7 2.8 2.9 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17

•

•

•

Freezing orders …. Nature of freezing orders …. Application for freezing or ancillary orders …. Form of application …. Test to be satisfied under r 7.35 …. Costs, security and undertakings …. Additional issues …. Search orders …. The nature of search orders …. Form of application for search order …. The granting of the order …. Search party …. Independent lawyer …. Undertakings, costs and security …. Service of order …. Pre-litigation orders and case management …. The overarching purpose …. Dispute resolution ….

2.18 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.24 2.25 2.26 2.27 2.28 2.29 2.30 2.31 2.31 2.32 [page 32]

Part 7 of the Rules 2.1 This chapter examines the civil practice and procedure provisions governing applications for pre-litigation orders to gain an understanding of their proper interpretation and application when facilitating the just resolution of disputes ‘according to law and as quickly, inexpensively and efficiently as possible’.1 The Rules contemplate the scenario where a party requires an order of an urgent nature (usually) prior to the formal commencement of a substantive proceeding in the Court. The five main types

of pre-litigation orders that may be sought within the Court’s original jurisdiction2 under Pt 7 are: injunctions, orders for the preservation of property and appointment of receivers (Div 7.1); the approval of an agreement for persons under a legal incapacity (Div 7.2); preliminary discovery (Div 7.3); freezing orders (Div 7.4); and search orders (Div 7.5). The grant of such orders in the early stages of a dispute may well determine whether a substantive proceeding is to be commenced and may serve to formulate the issues in contention between the parties. Although the procedures of Pt 7 can potentially play a crucial role in litigation, caution must be exercised when seeking urgent relief from the Court. It was held by Einfeld J in Re Village Roadshow Corporation Ltd v Sheehan3 to be ‘a misuse of the Court’s process to seek urgent relief where no effort has been made to secure the same result by negotiation or agreement between the parties’. This sentiment is nowadays in keeping with the overarching purpose of civil litigation mandated by s 37M of the FCA Act and the intent of the Civil Dispute Resolution Act to take genuine steps to resolve disputes, as both described in Chapter 1. The Rules recognise, however, that on occasion it may not be possible for a person to apprise another of the need for a court order and that instead urgent relief will be sought directly from the Court on an ex parte basis. [page 33]

Injunctions, preservation of property and

receivers Civil practice and procedure provisions Division 7.1 of the Rules

Urgent orders 2.2 Where a person has indicated their unwillingness to comply with a demand to act or refrain from acting in the absence of an order of the Court and the matter is one of urgency, a prospective applicant may apply to the Court under r 7.01(1) of the Rules for an order before the start of a proceeding. These orders may relate to: the granting of an injunction (para (1)(a)); the detention, preservation or inspection of property (para (1)(b)(i)); authorising any person to enter land (and to the giving of effect to any such order) (para (1)(b)(ii)); an amount in a fund being paid into the Court or otherwise secured (para (1)(c)); and the appointment of a receiver (with the power of a receiver and manager) (para (1)(d)). The ability of the Court to make orders of the nature outlined in r 7.01 within the original jurisdiction is to be found in s 23 of the FCA Act, which confers power upon the Court, in relation to matters in which it has jurisdiction, to make (amongst other things) interlocutory orders.4 The urgent nature of the above pre-litigation orders is reflected by the fact that they are generally made ‘without notice’ to another person of the application to be made to the Court. The relevant application form (Form 12) also stresses the urgency of the application by referring to the prospective applicant applying to the Court ‘as a matter of urgency’. The fact the

application may be made without notice is explained by the mischief sought to be circumvented by the application; namely, the prospective applicant has reasonable grounds to fear the person is about to do an act or thing that will render any relief to be sought in the proposed substantive proceeding nugatory, and by providing notice of the application the person will be more likely to perform that act or thing. An order made by the Court without notice under r 7.01 (such as an injunction or for the preservation of property) will ordinarily apply for only a short period, as specified by the order, and will be designed to maintain the status quo until substantive proceedings are commenced and the matter is brought [page 34] properly before the Court.5 As observed by White J in Musgrave Minerals Ltd, in the matter of Musgrave Minerals Ltd,6 r 7.01 vests a discretionary power in the Court, which may be exercised on the Court’s satisfaction of the circumstances specified in that rule, including that the matter is urgent. The order must be sought in anticipation of proceedings being brought in the Court; to do otherwise may be an abuse of process (see at [21]). In that case, the Court was satisfied (at [14]) that the matter was urgent, given the distinct possibility of certain moneys being withdrawn from an account and dissipated or otherwise put beyond the reach of the prospective applicant. In the grant of an urgent or interim injunction, the authorities speak of several elements to be established, although they seem to differ at times as to which of the elements are required. Generally, the Court must be satisfied that there is a serious question to be determined by the Court and that the balance of convenience favours the grant of an injunction.7 As to the latter element, it has been said that the threshold of proof is ‘not particularly onerous’,8 and that it is adequate that the applicant can ‘show a sufficient

likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’.9 A third element, stated on occasion, is that unless an injunction is granted, the applicant will suffer irreparable harm that cannot be adequately compensated by damages.10 Finally, the notions of ‘the balance of justice’11 and whether the grant of an injunction would ‘otherwise be just in all the circumstances’12 are other elements raised in a few decisions of the Court. Having said that the threshold of proof is not particularly onerous, the Court will not make an interim injunction simply because a degree of urgency surrounds the matter. In Lucisano v Westpac Banking Corporation,13 the applicant to a proceeding before the Court made an application for an urgent injunction purportedly under r 7.01(1)(a) (as well as other provisions) to prevent the respondent from taking any further steps to take possession of the applicant’s property pending the hearing of the substantive application. [page 35] An interim injunction was refused on the basis the applicant was unable to show that there was a serious question to be tried (no cause of action was identified) and the balance of convenience did not favour the making of the interim order (although eviction is prejudicial in one sense, the applicant had expected to receive a notice to vacate, albeit later rather than sooner). So, too, there was no grant of urgent relief under r 7.01 in Gaynor v Chief of the Defence Force14 since it was held that the relevant legislation (the Administrative Decisions (Judicial Review) Act 1977 (Cth)) provides the basis for the Court to potentially quash or set aside the particular employer’s decision, the subject of the claim for urgent injunctive relief to prevent the termination of the prospective applicant’s employment. Where the urgent order concerns property, r 7.01(1)(b)(i) enables a prospective applicant to apply for an order that will seek to preserve the

property or its value pending the final determination of a substantive proceeding so that the Court’s role and function is not frustrated by the disposal or disposition of that property. As regards the specific wording in that rule, the term ‘property’ is not defined in the Dictionary,15 but it includes a document16 and company shares.17 The reference to ‘detention’ reflects the ability of the Court to make an order that the property in dispute be held by the Court pending the outcome of the substantive hearing. An order may also be made by the Court relating to the necessary repair of the property; that is, its ‘preservation’. The ‘inspection of property’ may extend to a manufacturing machine.18 Where there is property in dispute and the prospective applicant can establish both a prima facie right to it and that there is a real danger the property may be injuriously affected, the Court may appoint a receiver to preserve the property while the matter is being finally determined (r 7.01(1) (d)). A receiver will usually be appointed as both receiver and manager, and must provide consent.

Parties 2.3 The person making the application is referred to in r 7.01 as the ‘prospective applicant’. There may be more than one prospective applicant to an application for an order under r 7.01(1), as suggested by the wording of Form 12. There is no express mention, however, of the correlating phrase ‘prospective respondent’ in either the rule or Form 12, but it may be noted that there was a prospective respondent named in Gaynor v Chief of the Defence Force.19 It has been held that an order may be made both against a non-party and a prospective respondent [page 36] under r 7.01, and that it authorises the making of orders against persons who

may never be before the Court.20 As mentioned previously, the application is to be made ‘without notice’. This expression is defined in the Dictionary21 to mean ‘without serving or advising another party or other person of an application to be made to the Court’.

Required documents 2.4 An application for an urgent order made under r 7.01(1) must be in accordance with approved Form 12 and be accompanied by a supporting affidavit (r 7.01(2)). The affidavit should accord with Form 59 and the rules governing affidavits under Div 29.1.22

Undertaking to the Court 2.5 The Court will usually decline to grant an urgent interlocutory order, especially an injunction, in the absence of the applicant providing an undertaking as to damages.23 What this means is that the applicant undertakes to be liable for any loss suffered by the person by reason of the operation of the urgent order should the applicant ultimately be unsuccessful in the substantive proceeding. More specifically, a prospective applicant applying for a pre-litigation order under r 7.01 must give an undertaking to the Court to the effect he or she will commence proceedings in respect of the subject matter of that application within a period of 14 days of the determination of the application by the Court (r 7.01(3)). The wording of the undertaking is contained within Form 12. The Rules are silent on the requirements of a prospective applicant in the contingency of the matter between them and the ‘other side’ being resolved during that period and without the need for actual legal proceedings to be commenced. In Musgrave Minerals Ltd, in the matter of Musgrave Minerals Ltd,24 the Court considered carefully the nature of an undertaking required by r 7.01(3) and concluded that it is ‘a serious commitment and is not lightly to be given’

for it goes to both the very jurisdiction of, and exercise of discretion by, the Court. The Court stressed (at [18]–[20]) that the exercise of power by the Court as regards r 7.01 is one that can be exercised only in relation to a ‘matter’ of which it is constitutionally or otherwise seized of jurisdiction. Prospective applicants and their lawyers should be ‘conscious of these matters and accordingly of the solemn and serious nature of the undertaking they give’. A prospective applicant will only be released from their undertaking [page 37] in rare and exceptional circumstances; a mere change of mind will not suffice (at [22]). Having said that, the Court did recognise (at [26]–[28]) that if it were to refuse to grant the release of undertaking sought in that case, it would be compelling a person to commence legal proceedings. It is neither in the public interest that parties pursue unnecessary proceedings nor desirable that they incur the costs in doing so. It may be added to the Court’s reasoning that it would be blatantly inconsistent with the overarching purpose of civil litigation for the Court to compel the bringing and conduct of such unnecessary proceedings and for the civil practice and procedure provisions (specifically, r 7.01(3)) to be interpreted and applied in a manner that caused this to occur.

Approval of agreement — persons under a legal incapacity Civil practice and procedure provisions Division 7.2 of the Rules

Compromise or settlement prior to proceedings

2.6 Where an enforceable claim in the Court involves a person under a legal incapacity, an interested person may apply to the Court for an order that approves an agreement made for compromise or settlement of that claim before the commencement of any proceeding and that enforces the claim (r 7.11(1)). A person under a legal incapacity, known previously as a person under a legal disability, is defined in the Dictionary25 to mean a minor or a mentally disabled person. The Dictionary further defines a ‘minor’ as a person under the age of 18 years and a ‘mentally disabled person’ means a person, who, because of a mental disability or illness, is not capable of managing their own affairs in a proceeding. The parent or guardian of the minor and the guardian of the mentally disabled person are regarded as an ‘interested person’ for the purposes of Div 7.2.26 In respect of proceedings by or against a person under a legal incapacity, regard may be had to the provisions of Div 9.6 of the Rules. Applications by litigation representatives for approval of an agreement of compromise or settlement of any matter in dispute in a proceeding are covered by rr 9.70 and 9.71 within that division. [page 38]

Form of application 2.7 To seek an order under r 7.11, the interested person must file the necessary application form (Form 13), accompanied by the following material required under r 7.11(2)(b): an affidavit stating the material facts relied upon in support of the application (sub-para (i));27 the agreement that is sought to be approved by the Court (sub-para (ii)); and an independent lawyer’s opinion that the agreement is in the best

interests of the person under a legal incapacity (sub-para (iii)). It is unclear from the wording of r 7.11(2) as to whether the original of the agreement is required, or a copy will suffice. The meaning of the phrase ‘independent lawyer’ is not addressed by the Dictionary.28 Within the context of r 9.71(2)(c), it was held by Bromberg J in Wade v Victoria (No 2)29 that ‘the opinion prepared by the lawyer be provided in furtherance of the lawyer’s duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding’.30 Even where the independent lawyer has a prior association with the proceeding, the Court may, in the exercise of its discretion under r 1.34, dispense with the requirement of r 7.11(2)(b)(iii).31

Effect of r 7.11 2.8 The agreement for compromise or settlement will not be legally binding upon the person under a legal incapacity unless it is approved by the Court (r 7.11(4)). Once so approved, it becomes binding on the person as though they were not under any legal incapacity and the litigation representative has made the agreement as their agent.32 In granting approval, the Court may impose conditions (consistent with the general power under r 1.33), including that any money or other property payable for the benefit of the person under a legal incapacity be dealt with by way of a settlement or in some other manner deemed appropriate by the Court (r 7.11(3)). Reference may be had, by analogy, to Moore v New South Wales33 for the types of factors considered by the Court when determining whether to [page 39] approve a compromise or settlement under r 9.71. The critical consideration is whether the proposed settlement is for the benefit of the person under a legal incapacity.34 Another question is whether the settlement is a reasonable

one, but not whether the amount of damages would have been awarded if the matter had gone to trial.35

Preliminary discovery Civil practice and procedure provisions Division 7.3 of the Rules

Orders for preliminary discovery 2.9 Under Div 7.3 of the Rules, a prospective applicant may apply to the Court for an order for preliminary discovery so as to ascertain the identity or description of a ‘prospective respondent’ (r 7.22) or, in cases where the identity is known, to decide whether to commence proceedings against that person (r 7.23). The definition of ‘prospective applicant’ under this division differs from that under Div 7.1 (see at 2.3). In relation to preliminary discovery, the term means ‘a person who reasonably believes that there may be a right for the person to obtain relief against another person who is not presently a party to the proceeding’ (r 7.21). A ‘prospective respondent’ is effectively a person who is the counterpart to the prospective applicant in the above scenario (see r 7.21).

Ascertaining description of prospective respondent (r 7.22) 2.10 A prospective applicant may apply for an order for discovery of the description (or identity) of the prospective respondent under r 7.22(1). The rule supplements the power under the general law to order the disclosure of a wrongdoer’s identity.36 As confirmed in Dallas Buyers Club LLC v iiNet Ltd,37 the following three matters must be established under r 7.22(1): the prospective applicant may have a right to obtain relief against a

prospective respondent (para (a)); they are otherwise unable to ascertain the description of that individual (para (b)); and [page 40] a person, known as the ‘other person’, knows (or is likely to know) the description of the prospective respondent or has currently (or has had in the past) or is likely to have (or is likely to have had) control of a document that would assist in that regard (para (c)). The term ‘description’ is defined in the Dictionary38 to mean: In relation to an individual: ‘the person’s name, residential or business address and occupation’; and Where the prospective respondent is not an individual: its name and the address of its registered office, principal office or principal place of business.

The notion of ‘control’ of a document is addressed by the Dictionary as its ‘possession, custody or power’. Discovery under this rule, to ascertain the description of a person against whom the prospective applicant may have a right to obtain relief, is not as wide in scope as that under r 7.23 to ascertain discovery from a prospective respondent for the purpose of determining whether to bring a proceeding against that person.39 Moreover, r 7.22 is directed primarily to ascertaining the description of the prospective respondent for the purpose of starting a proceeding in the Court (and no other) and should not be employed as a means for ascertaining the whereabouts of a respondent in an extant proceeding.40 Rule 7.22(1) does not state a prospective applicant must have first made reasonable inquiries to ascertain the description of the prospective respondent prior to making the application, or that there exists a prima facie

case against the latter. It is an express requirement that the prospective applicant can demonstrate they were unable to ascertain the description of the prospective respondent. This implies that some (reasonable) steps or inquiries were taken to achieve this goal, albeit unsuccessfully. On this general point, consider Hooper v Kirella Pty Ltd,41 which dealt with the predecessor rule to r 7.22(1) (namely, O 15A r 3(1) of the Rules 1979) and an express requirement to make reasonable inquiries prior to bringing an application before the Court. What will constitute the making of reasonable inquiries in practice will depend on the nature of the information sought. The mere potential availability of the information through means separate to the making of an application for preliminary discovery will not necessarily defeat an application.42 Should the above three elements of r 7.22(1) be established, the Court will then turn to the issue of discretion; that is, whether the power to order [page 41] preliminary discovery should be exercised.43 This will be flavoured by the individual circumstances of each case.

Rule 7.22 application documents 2.11 An application under r 7.22 is to be made in accordance with Form 14, and must be accompanied by a supporting affidavit (r 7.24). The affidavit should state the facts relied upon by the prospective applicant and identify the documents (or their categories) the subject of the application (r 7.24(2)).44 Form 14 is broad in its potential use insofar as it applies in respect of all applications made under Div 7.3 of the Rules. Presumably, in the case of an application made under r 7.22, a prospective applicant is not expected to provide in the title of the relevant form the details of the prospective respondent, given the very purpose of the application is to ascertain the

description of that person. It is more likely that the name of the ‘other person’ is to be inserted instead as ‘a respondent’. A copy of the application and supporting affidavit must be served personally on each ‘other person’, as referred to at 2.10 (r 7.24(3)). It is not clear when such service is required to take place. To the extent Form 14 is titled an originating application, it may be queried whether service of the Form (and any supporting affidavit) is required to be done consistently with r 8.06 (that is, service on the ‘respondent’ is to occur within a period of at least five days before the return date fixed by the Registrar). Does the term ‘respondent’ in that rule extend to the ‘other person’? Furthermore, it may be noted that r 29.08 deals generally with the service of affidavits upon each ‘interested party’, as distinct from an ‘interested person’.45 In either event, the Court may dispense with compliance with the Rules (r 1.34), fix a time within which an act or thing is to be done (r 1.38) or it may extend or shorten a time fixed by the Rules (r 1.39).

Orders made under r 7.22(2) 2.12 Upon the Court being satisfied that an order for preliminary discovery should be made under r 7.22(1), it may proceed to order under r 7.22(2) that the ‘other person’: attend the Court for an oral examination about the description of the prospective respondent (para (a)); produce at that examination any document or thing in their control relating to that description (para (b)); and give discovery to the prospective applicant of present and past documents within their control relating to that description (para (c)). [page 42]

Any discovery to be made by the ‘other person’ in compliance with an order made by the Court under para (c) should be done so in accordance with r 7.25.46 Where the ‘other person’ is ordered to attend the Court under r 7.22(2), sufficient ‘conduct money’ (as defined in the Dictionary)47 must be provided to that person to meet their reasonable expenses in enabling them to travel to the Court (r 7.22(3)). It should be noted that sub-rule does not expressly provide the payment of conduct money is dependent upon the existence of an order to attend Court made under sub-r (2), but this may be inferred in the circumstances. An examination is, in any event, unlikely to be ordered where a prospective applicant believes he or she has a cause of action against one of many dozens of individuals and seeks to ascertain which one it is through the process of an oral examination.48 The Rules do not authorise the Court to make an order compelling the production of email addresses of third parties and it will not generally order the production of such an address.49 In Dallas Buyers Club LLC v iiNet Ltd,50 the Court held that it was not prepared to interpret or apply the Rules so as to achieve this outcome. It was, however, prepared to order that the respondents discover to the prospective applicant a verified list of each IP address of their many account holders that had allegedly infringed the applicant’s copyright by the unlawful downloading of its film.51 In Irrewarra Estate Pty Ltd v Telstra Corp Ltd,52 the Court went somewhat further in making an order for preliminary discovery (under the predecessor rule to r 7.22) that related to the account through which the internet was accessed on a particular date via a specified IP address, the identity of the person who accessed it and the location of the computer and/or modem through which this access took place. An order for preliminary discovery arguably should be regarded as interlocutory in nature for the purposes of seeking leave to appeal.53

Application for discovery from a prospective respondent (r 7.23) 2.13 A prospective applicant may seek an order from the Court for discovery of documents by a prospective respondent in circumstances where the prospective applicant knows the latter’s description, but further information is still required to determine whether to commence proceedings against that [page 43] individual in the Court. In such circumstances, an application may be brought under r 7.23(1) on the basis that the prospective applicant: reasonably believes they may have the right to obtain relief in the Court from the prospective respondent (para (a)); has made reasonable inquiries but still does not have sufficient information to make their decision about commencing proceedings (para (b)); and reasonably believes the prospective respondent has (or has had) or is likely to have (or is likely to have had) in their control54 documents directly relevant to this decision and inspection of the documents by the prospective applicant would assist in making the decision (para (c)). Rule 7.23(1) contains a number of expressions, the meaning of which need to be discerned primarily from the case law. The judgment in ObjectiVision Pty Ltd v Visionsearch Pty Ltd55 contains a detailed examination of the principles of what constitutes a ‘reasonable belief’ for the purposes of rr 7.23(1)(a) and (c). It was held that a mere assertion or conjecture will not suffice. The test is an objective one, and it has not been significantly altered by the introduction of the Rules. Any subjective state of belief of the prospective applicant must be reasonable and some minor uncertainty in their mind of

the necessary elements of the right to obtain relief in the Court from the prospective respondent is acceptable.56 As for the wording of r 7.23(1)(b), the case of Matrix Film Investment One Pty Ltd v Alameda Films LLC57 expresses the view that the notion of ‘sufficient information’ in the context of preliminary discovery does not extend to the prospective applicant having access to every piece of material that will ‘strengthen or enhance a decision to commence proceedings but rather to provide what is reasonably necessary to enable the decision to be made’. The prospective applicant is entitled, on an objective test, to that extent of information that: … is necessary, but no more than that which is reasonably necessary, in order to overcome the insufficiency of information already possessed by the applicant after it has made all reasonable inquiries to enable it to make a decision as to whether to commence proceedings.58

The above sentiment, of not permitting an endless search for documents or information, resonates in the rules and philosophies of the Court concerning discovery from a party to a proceeding, as discussed in depth in Chapter 6. [page 44] Nonetheless, a certain degree of ‘fishing’ (but not ‘trawling’)59 appears to be allowed in the case of preliminary discovery60 that is not otherwise tolerated by the Court in relation to discovery involving an actual party. Given the invasive nature of preliminary discovery, the Court will insist on the requirements of r 7.23 being satisfied before it will be prepared to make the order. What will constitute the making of ‘reasonable inquiries’ in relation to the issue of the sufficiency of information to make a decision about commencing proceedings?61 The wording of r 7.23(1)(b) does not qualify the expression by stating the required degree of the reasonable inquiries conducted by the prospective applicant, but it may be assumed that the making of ‘some’

general inquiries will not satisfy this limb of the overall test for preliminary discovery. The inquiries made by the prospective applicant must be reasonable (or sufficient) in nature and extent, on an objective basis. Inquiries that are relevant and ‘exhaustive’ are likely to meet the test.62 Particularly where the prospective respondent is refusing or failing to produce relevant documents, it may be necessary to show that inquiries have been made to see whether the information can be obtained from another potential source.63 The Court is unlikely to be satisfied that reasonable inquiries have been made in the absence of sufficient (‘quality’) affidavit evidence being put before it,64 or where the application for preliminary discovery is premature.65 It has been noted by the Court that the threshold to meet the test for preliminary discovery is not very high.66 The same principles applicable to the grant of an order for preliminary discovery made under O 15A r 6 of the Rules 1979 apply generally to r 7.23.67 The judgment in Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd)68 provides a comprehensive statement of the principles that applied under former O 15A r 6. In Reeve v Aqualast Pty Ltd,69 Yates J considered the relevant principles and authorities [page 45] in relation to an application for preliminary discovery of this particular nature, both under the current and former rules of court. Those principles include, in addition to the elements of the test stated in r 7.23(1), the following: Although the test of reasonable belief of the right to obtain relief in the Court from the prospective respondent is an objective one, there must be some tangible evidence that takes the existence of the right to relief beyond that of a mere belief or assertion. The provision should not be used as a means of third party discovery.

The measure of any preliminary discovery to be ordered is limited to the extent of information that is necessary to overcome the insufficiency of information in the possession of the prospective applicant after making all reasonable inquiries, to enable the making of a decision of whether to commence a proceeding.70 The stronger the evidence already available to the prospective applicant, the weaker his or her position is in relation to an application under r 7.23. The prospective applicant must be forthcoming to the Court about what information he or she already has available. Even where the requirements of r 7.23(1) are met, the Court retains a broad discretion to determine whether, and the extent to which, discovery should be granted,71 having regard to the interests of justice and the circumstances of the matter. If those express requirements are satisfied, and the Court is prepared to exercise its discretion in favour of the prospective applicant, then sub-r (2) enables the Court to make an order for the prospective respondent to give discovery to the prospective applicant of the required documents. For an example of a confidentiality regime that may attach to an order for preliminary discovery, see Newcrest Mining Ltd v Apache Northwest Pty Ltd (No 2).72 An order for preliminary discovery can be set aside by the Court in the exercise of its discretion and in the interests of justice.73

Rule 7.23 application documents 2.14 An application brought under r 7.23(1) must be in accordance with Form 14, and be supported by an affidavit that both states the facts relied upon and identifies the relevant documents (or categories of documents) sought by the prospective applicant (r 7.24). The general form and content of the affidavit is governed by Div 29.1 of the Rules and Form 59. The prospective

[page 46] applicant must serve personally upon the prospective respondent the application and affidavit (r 7.24(3)). As to whether the Court has the power to grant leave to serve the application for preliminary discovery outside of the jurisdiction, it was held in Carnegie Corporation Ltd v Pursuit Dynamics Plc74 that an application for preliminary discovery is an application commencing a ‘proceeding’ for the purposes of the rules on service outside of the jurisdiction. The application was not permitted to be served overseas in the circumstances of that particular case. Rule 7.24 does not expressly provide for the time in which service of these documents must occur. Similar issues arise here as considered at 2.11. Is the service of the documents upon a ‘prospective respondent’ to be effected in accordance with r 8.06, as though an originating application and any supporting affidavit is being served upon a ‘respondent’ to newly commenced proceedings? Conversely, is that person covered by r 29.08 (concerning service of affidavits) as an ‘interested party’? Presumably, it is intended that he or she is to be treated under the Rules as a party to the proceeding, notwithstanding their current status as a ‘prospective respondent’.

Lists of documents and privilege 2.15 An order for preliminary discovery under Div 7.3 requires the person in respect of whom the order is made to file a list of documents in accordance with r 20.17 (see r 7.25).75 Rule 7.26 makes it clear that the person need not produce any document in respect of which they hold a claim for privilege (including client legal privilege).76 For a detailed overview of the legal principles relating to client legal privilege under Pt 3.1 of the Evidence Act 1995 (Cth) and of the authorities on legal professional privilege under common law generally, see the decision of the Full Court in Carnell v Mann.77 In that case, the Full Court held that the appellant was entitled to resist an

application for inspection, in relation to an application for preliminary discovery, on the basis of client legal privilege. It alluded to, but was not required to decide, the possibility of a public interest claim associated with the appellant not producing the documents sought by the respondent. In Churche v Australia Prudential Regulation Authority,78 the Court held that there was insufficient evidence to satisfy it that the public interest immunity should apply to a number of draft reports sought (irregularly) to be produced by way of a notice to produce served in an application for preliminary discovery. [page 47]

Inspection and copying of documents 2.16 Once a document is discovered under Div 7.3, a prospective applicant may apply to the Court under r 7.27(1) for an order enabling its production for inspection. The inspection of documents is governed by the rules contained in Div 20.3, as applicable (r 7.27(2)). Rule 7.28 provides a prospective applicant may, at their own expense, copy a document produced for inspection. Interestingly, that rule allows the person producing the document to impose ‘reasonable conditions’ upon the copying, rather than leaving that task to the Court. Of course, in the making of an order for production for inspection, the Court may impose any condition it considers appropriate in the exercise of its general power under r 1.33.

Costs under Div 7.3 2.17 A person required to give preliminary discovery may apply to the Court for an order under r 7.29, as against the prospective applicant: granting security for the person’s costs and expenses, including the costs

of discovery and production of documents and the compliance costs with the Court’s order(s); and paying the person’s costs and expenses.79 The question of the award of costs in respect of a preliminary discovery application is not as straightforward a matter as a cursory glance at r 7.29 might otherwise suggest. The authorities reveal a tension as to whether the prospective applicant should pay the costs associated with the preliminary discovery application immediately,80 or whether such costs should ultimately be a part of the costs of the substantive action (if commenced).81 In other cases, it has been suggested that where the application is resolved consensually without either side acting unreasonably, this may vitiate the need for a costs order.82 For a robust overview of the various positions expressed in the authorities on the subject, refer to J & A Vaughan Super Pty Ltd v Becton Property Group Ltd,83 in which costs were ordered immediately, as they were in Reeve v Aqualast Pty Ltd (No 2).84 It was observed in the former case (at [16]) that there is no [page 48] conventional rule when speaking of costs in such cases and that the question of costs will ultimately: … depend on the circumstances of the case, including the conduct of the parties, the likely nature of any prospective cause of action and the likely passage of time before any such matter would be resolved at trial. Section 37M of the Federal Court Act should also be borne in mind.

The approach to an award of costs taken by Perram J in Dallas Buyers Club LLC v iiNet Ltd (No 3) (Dallas Buyers Club)85 was to consider whether the respondents to the application for preliminary discovery under r 7.22 had taken an adversarial position, even where the prospective applicant was, for the main part, successful in obtaining the orders sought. His Honour said (at [4]) that, in determining whether the respondents had adopted an adversarial

position, the question of degree arises. In that case, it was held that they had ‘put nearly everything in issue’ and had therefore adopted an adversarial stance that warranted the making of a costs order in favour of the prospective applicant. The prospective applicant’s costs were reduced, however, to take into account it had not succeeded on an issue, but that issue had only consumed a modest amount of the Court’s time. In an interesting development, the Court in the Dallas Buyers Club proceeding then imposed a stay on its preliminary discovery orders on condition that the prospective applicant provide to the Court a copy of the correspondence it was proposing to engage in with the account holders of the respondents (against whom it was alleged a right to obtain relief exists). This was to ensure it did not engage in conduct that sought to exact settlement from those individuals. The Court was, however, prepared to lift the stay upon the prospective applicant providing a written undertaking that it would only use the information obtained under the preliminary discovery order for certain purposes. If such an undertaking were given, the Court would require a bond to be given in the sum of $600,000 lodged by bank guarantee with the Registrar. This is in recognition of the fact that the prospective applicant has no presence in Australia and is unable to be punished for contempt should it fail to honour the undertaking.86

Freezing orders Civil practice and procedure provisions Division 7.4 of the Rules Practice Note CM 9 – Freezing Orders (also known as ‘Mareva Orders’ or ‘Asset Preservation Orders’) (Practice Note CM 9) [page 49]

Nature of freezing orders 2.18 A ‘freezing order’, also known as an ‘asset preservation order’ or a ‘Mareva order’87 is covered by the rules within Div 7.4. These rules are harmonised as between the Court and the Supreme Courts of the States and Territories.88 Consistent with r 7.32, the Court may make a freezing order so as to: prevent ‘the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied’ by a person against whom an order is sought or made (sub-r (1)); and restrain a respondent from dealing adversely with assets located in or outside of Australia, such as by removing, disposing of, dealing with or diminishing in value, those assets (sub-r (2)). A freezing order is a discretionary remedy and is not a form of anticipatory execution or of security for any judgment that may be awarded.89 It may be made by the Court in furtherance of foreign proceedings, as contemplated by r 7.35(2) and Practice Note CM 9 at [15]. In addition, under r 7.33, an ancillary order may be made by the Court, as it considers appropriate, where a party seeks to: (a) elicit information relating to assets relevant to the freezing order; or (b) determine whether it is appropriate the freezing order be made. It may typically involve an order for the disclosure of assets or information (such as from a bank or the respondent), the appointment of a receiver to the assets of the respondent or a prohibition on the respondent leaving the jurisdiction of the Court. A ‘respondent’ is defined simply in r 7.31 as ‘a person against whom a freezing order or an ancillary order is sought or made’. In practice, the respondent in an application for a freezing or ancillary order will often be the person against whom the applicant claims to have a cause of action. By r 7.34, the respondent may also be a third party, particularly one who has possession,

custody or control or ownership of assets that may be the subject of the order.90 As stated in Sebastian v Strongwall International Ltd (Deregistered),91 [page 50] a freezing order against a third party raises unique considerations and will not be made where: … there is no basis for the making of an order against a non-party which is not answerable or liable in some way to a party (applicant or respondent) in a proceeding where judgment has not been obtained or execution recovered, or not holding, controlling or capable of disposing of the property of a party in that proceeding.

Provided the assets, the subject of the order, are within the jurisdiction of the Court, an application for a freezing or ancillary order may be served upon a person outside of Australia (r 7.37). Where the freezing order covers assets outside of the jurisdiction, the order will normally provide for the protection of persons outside of Australia and third parties, as noted by Practice Note CM 9 at [13].

Application for freezing or ancillary orders 2.19 The requirements for the making of an application for a freezing order are explained in the informative Practice Note CM 9. It includes an example of a freezing order made without notice, which may be modified to suit the circumstances of the matter.92 The application may be made with or without notice (r 7.32(1)); that is, with or without serving or advising the other party or person of the application to be made to the Court.93 Where the application is made without notice, the applicant has a duty to make full and frank disclosure to the Court of all the material facts, including of any potential defences available to the respondent within the knowledge of the applicant.94 By reason of the rules in Div 7.4 being part of harmonised rules with all of

the Supreme Courts in Australia, the language used in the division departs from that adopted elsewhere in the Rules flowing on from the Federal Court Rules Revision Project. The rules speak, therefore, of the power of the Court to make freezing and other orders, rather than the ability of a party to make an application for such orders. In addition, the Court may exercise its discretion to make whatever order it deems appropriate in the interests of justice, including so as to prevent the abuse or frustration of court process.95

Form of application 2.20 Although technically Div 7.4 is found in Pt 7 of the Rules dealing with orders that may be sought and made before the start of a proceeding, the wording of Div 7.4 and r 7.32 suggests a party may make an application for [page 51] a freezing order either prior to, or following, commencement of a proceeding in the Court. In the case of the latter, it is suggested the appropriate form is an interlocutory application in accordance with Form 35 and Pt 17. If a substantive proceeding is yet to be commenced, then an ‘interlocutory application’ would not, having regard to the definition of that term in the Dictionary96 and the reference to ‘in a proceeding that has already started’ in r 17.01(1), appear to be appropriate and there may be scope to include the application for such relief within an originating application. The Court may, however, potentially permit the filing of an interlocutory application where no substantive proceeding is on foot by dispensing with the need for strict compliance with the Rules (r 1.34) or by making an order inconsistent with the Rules (r 1.35). Further, a Judge may potentially allow the hearing of an interlocutory application on the basis of an undertaking from the applicant that substantive proceedings will be commenced shortly by the filing of an originating application. While, in light of the Harmonised Rules, it is

understandable that Div 7.4 of the Rules is silent on the appropriate form to adopt in the making of an application for a freezing order, it is suggested this is a matter that could be addressed by way of the relevant practice note. An application for a freezing order or ancillary order should be accompanied by affidavit evidence (in accordance with Form 59 and Div 29.1 of the Rules) and, to the extent possible, should address the matters outlined at [20] of Practice Note CM 9. Where the application is made without notice, there is arguably no requirement for the applicant to file a genuine steps statement by reason of the exclusion contained in s 15(h) of the Civil Dispute Resolution Act.

Test to be satisfied under r 7.35 2.21 Rule 7.35 of the Rules provides the circumstances in which the Court may make a freezing or ancillary order against an actual or potential judgment debtor or a third party, noting that the judgment or prospective judgment may be that of the Court or another court and provided there is ‘sufficient prospect’ the judgment will be registered in or enforced by the Court. Where a judgment is yet to be given, a freezing order may be sought by an applicant who has a ‘good arguable case’ on an accrued or prospective cause of action that is justiciable in the Court or in another court where there is a sufficient prospect that both judgment will be granted in favour of the applicant by that other court and such judgment will be registered in or enforced by the Court (rr 7.35(1)–(3)). An order may also be made under r 7.35 in circumstances where the Court is satisfied there is a ‘danger’ that a judgment or prospective judgment will be wholly or partially unsatisfied because of the conduct of the actual or potential judgment debtor or of a third party (rr 7.35(4)–(5)). Rules 7.35(6) and 1.32, [page 52]

as well as s 23 of the FCA Act, make it clear the Court may make any order it considers to be in the interests of justice (or appropriate).97 A good summary of the legal test for the grant of a freezing order is found in Deputy Commissioner of Taxation v Hua Wang Bank Berhad.98 In that case, the primary Judge approached the making of a freezing order from the perspective that the applicant must establish both a prima facie cause of action exists against the defendant (to use the wording of r 7.35(1)(b), ‘a good arguable case’) and that there is a ‘danger’ a judgment debt will go unsatisfied due to assets being removed from the jurisdiction or otherwise dealt with adversely (such as by disposal). Further, the judgment debt may go unsatisfied due to the respondent absconding from the jurisdiction (r 7.35(4) (a)). As to what constitutes an ‘arguable case’, it was observed by Tamberlin J in KGL Health Pty Ltd v Mechtler99 that ‘[t]he mere making of allegation in correspondence or the assertion of a case in a Statement of Claim is not of itself … sufficient to make out a good arguable case’. Rather, a prima facie case will be established ‘where, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will succeed’.100 The term ‘danger’ denotes the existence of solid evidence of a risk of dissipation or disposal of the assets required to be produced. This has been described in terms of there being a ‘real risk’ the prospective judgment will go unsatisfied, ‘a sufficient likelihood of risk which in the circumstances of a particular case justifies an asset preservation order’ or ‘a sufficient apprehension of dissipation of the … assets’.101 There is neither a need for the Court to be satisfied that risk of dissipation of the assets is more probable than not, nor a requirement for evidence of any intention to dissipate.102 The Court will only exercise its discretion to make a freezing order in exceptional cases having regard to the extraordinary nature of such orders.103 An application for a freezing order failed in Curtis v NID Pty Ltd104 because the Court had regard to discretionary factors which included: the lack of vigour or urgency with which the application was brought, the fact the grant

of the order would damage a respondent’s business, the invasion of liberty for other respondents and the strength of the potential defence available to the respondents. [page 53]

Costs, security and undertakings 2.22 A costs order may be made by the Court under r 7.38 as it deems appropriate, which may include an order relating to the costs of any person (such as a bank) affected by either a freezing order or an ancillary order made under Div 7.4.105 The Court will ordinarily require the applicant to provide various undertakings to the Court, such as the usual undertaking as to damages106 and, where the applicant does not have sufficient assets within the jurisdiction to satisfy such an undertaking, the applicant may be ordered to provide security.107 For a list of potential undertakings an applicant may be required to provide to the Court, see Sch A to the example form of a freezing order made without notice included with Practice Note CM 9. The first such undertaking listed in the schedule is that the applicant will submit to such order (if any) as the Court considers just for the payment of compensation (as assessed by the Court) to any person affected by the operation of the freezing order.108

Additional issues 2.23 There are several other matters worth noting when considering freezing orders. To begin with, the value of the assets the subject of a freezing order should not exceed the likely quantum of the applicant’s claim (including costs and interest).109 The order also should exclude dealings by the respondent with the assets for a ‘legitimate purpose’, which is described by Practice Note CM 9 at [12] to extend to the payment of ordinary living expenses and

reasonable legal expenses, and to dealings and dispositions in the ordinary and proper course of the respondent’s business or the discharge of bona fide pre-existing contractual obligations.110 The duration of a freezing order made without notice usually will be limited to the time of the return date of the application, at which time the onus is on the applicant to satisfy the Court that the freezing order should be extended or renewed.111 As suggested by Practice Note CM 9 at [10], the order will normally reserve liberty for the respondent to apply to the Court on short notice for the freezing order to be varied or discharged. A respondent may object to compliance with the freezing order on the grounds of the privilege against self-incrimination.112 [page 54] Finally, the requirements of r 41.06 of the Rules, concerning the endorsement of the order to be served with an appropriate notice, should be observed. This is confirmed by Practice Notice CM 9 at [18].

Search orders Civil practice and procedure provisions Division 7.5 of the Rules Practice Note CM 11 – Search Orders (also known as ‘Anton Piller Orders’) (Practice Note CM 11)

The nature of search orders 2.24 A ‘search order, also known as an ‘Anton Piller order’,113 may be made by the Court under r 7.42 for the securing or preservation of evidence relevant to an issue in an actual or pending proceeding in the Court. Under

that rule, the order may require a respondent (defined broadly in r 7.41 to mean ‘a person against whom a search order is sought or made’) to permit specified persons, known as a ‘search party’, to enter premises for the purposes of the search order. While the search party is on the premises, it may search for, inspect, remove or make a record of the things (including documents and computer hard drives) described in the search order. A ‘record’ includes a copy, photograph, film or sample (having regard to the definition in r 7.45(4)). The term ‘premises’ is defined in r 7.41 to include ‘a vehicle or vessel of any kind’. That the regime on search orders extends to both hard copy documents and electronic documents was confirmed in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd.114 The circumstances in which the Court may regard the making of a search order to be justified was summarised by Emmett J in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (Brilliant Digital Entertainment)115 in the following terms: Orders in the nature of Anton Piller orders are a severe interference with the rights of citizens. Such orders should be made only in exceptional circumstances. Apart from the question of whether or not the applicant for such orders should be able to demonstrate a strong prima facie case against the object of the orders, something more must normally be demonstrated. That is to say, it must be shown that the rights of the applicant might be frustrated by the

[page 55] pursuit of ordinary interlocutory proceedings inter partes for the gathering and preservation of evidence … The justification for orders in the nature of Anton Piller orders is the possibility that, once the object of the orders is alerted to the fact that the applicant is seeking relief …, such a claim may be frustrated by the destruction of evidence.

A search order may be made by the Court either with or without notice to the respondent (r 7.42). The term ‘without notice’ is defined in the Dictionary116 to mean ‘without serving or advising another party or other person of an application to be made to the Court’. In reality, an applicant is most likely to make an application for a search order without notice to the

respondent to the application for the types of reasons alluded to by Emmett J in Brilliant Digital Entertainment, as quoted above. Practice Note CM 11 is a wealth of information about, and supplements the rules on, search orders contained in Div 7.5 of the Rules. The practice note reflects the Court’s usual practice in relation to the granting of such orders, but noting that the Court may exercise discretion as it deems appropriate.117 The extraordinary relief permitted by the making of a search order and the limits of the discretion conferred upon the Court were considered by Flick J in Metso Minerals (Australia) Ltd v Kalra (No 3).118

Form of application for search order 2.25 Division 7.5 reflects the wording and effect of O 25B of the Rules 1979 because, as the Note to the Division states, the rules within the Division are part of harmonised rules of court between the Court and the Supreme Courts of the States and Territories. Accordingly, and as seen in respect of freezing orders at 2.19, the language remains couched in terms of the power of the Court to make a search order, rather than the ability of a party to make an application for one. Although Pt 7 deals with orders before the start of a proceeding, r 7.42 provides that the Court may make a search order ‘in any proceeding or in anticipation of any proceeding in the Court’. In the former scenario, the procedures under Pt 17 relating to interlocutory applications (including Form 35) apply by reason of the definition of ‘interlocutory application’ in the Dictionary.119 What is more ambiguous is whether the procedures contained in Div 7.5 of the Rules and Practice Note CM 11 automatically apply to an application for a search order made when substantive proceedings are on foot. This uncertainty arises because the rules pertaining to search orders are contained only in Pt 7 of the Rules and the Practice Note CM 11 itself expressly states at [1] that it supplements Div 7.5.

[page 56] For the reasons canvassed in relation to freezing order applications at 2.20, there does not appear to be a prescribed form for the making of the application under Div 7.5 itself; that is, for an application for a search order prior to the commencement of a proceeding in the Court. As seen previously, the definition of ‘interlocutory application’ in the Rules120 potentially precludes the use of Form 35 (interlocutory application) because of the reference therein to the application being in a proceeding already started. In practice, the Court may allow dispensation with the Rules under r 1.34 and so allow the filing of an interlocutory application (Form 35) for a search order under Div 7.5, either on its own or accompanying an originating application. The supporting affidavit121 to an application for a search order should include the information outlined in [8] of Practice Note CM 11. Apart from addressing information of a basic nature, such as a description of the things or categories of things to be searched for and the location and nature of the premises at which those things are to be found, any supporting affidavit must also address why there is a real possibility that the things will be destroyed or made unavailable in the absence of the search order being made. Where the premises to be searched are residential in nature, the affidavit must also state the belief of the applicant as to whether the only occupant of those premises is likely to be a female, child or any other ‘vulnerable person’. An application made without notice requires the applicant to make full and frank disclosure to the Court of all material facts within the knowledge of the applicant, including of possible defences and any financial information that may impact upon the applicant’s ability to fulfil the usual undertaking as to damages from assets within Australia.122 It was held in EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 2)123 that the applicant to an application for an ex parte order has a duty of a high standard of candour and responsibility. It is no excuse to fail to fulfil that duty on the basis the applicant was unaware of the importance of some material facts.

The granting of the order 2.26 Under r 7.43, the Court may grant a search order upon being satisfied of all three of the following: the person seeking the order has a strong prima facie case on an accrued cause of action (para (a)); if the search order is not made, then the actual or potential loss or damage to the applicant will be serious (para (b)); and there is sufficient evidence that both the respondent possesses important evidentiary material and there is a real possibility the respondent might [page 57] destroy this material or cause it to be unavailable for use in a proceeding or anticipated proceeding before the Court (para (c)). To the extent the Court requires there to be a ‘strong prima facie case’ on an accrued cause of action, the requirements for the granting of a search order are seemingly more onerous than the granting of a freezing order, which requires merely that there be a ‘good arguable case’.124 Before the Court is prepared to exercise its discretion to grant a search order, there needs to be a ‘real possibility’ that the respondent might cause important evidentiary material to become unavailable. The applicant was able to satisfy the Court of both a strong prima facie case and of a real possibility of the destruction or unavailability of evidentiary material by the respondents in Brooks Sports Inc v Paul’s International Pty Ltd (No 1).125 An application for a search order failed, however, in AAA Embroidery & Screen Printing Pty Ltd v John Dan126 on the basis the Court was not satisfied of there being any evidence of a real possibility that the respondents would destroy the material before any inter partes application could be brought. The Court also was not satisfied the damage was very serious for the applicant given the passage of

time in taking action against the respondents since its first becoming aware of the causes of action. The possible terms of the search order are outlined in r 7.45 and further regard may be had to the example form of search order annexed to Practice Note CM 11, which is adaptable to the circumstances of the individual matter. Apart from the directions contained in the rule, the Court may direct each person named or described in the order to do or refrain from doing any act deemed appropriate by the Court (r 7.45(1)(e)). Rule 7.45(3) confirms that the search order may contain such other provisions as the Court considers appropriate. At the hearing of the application, when all parties are present before the Court, issues may be raised concerning (amongst other things) claims for commercial confidentiality and privilege.127 Similar to the situation with freezing orders made under Div 7.4, a person served with a search order may object to compliance with the order on the ground of self-incrimination.128

Search party 2.27 The search order will permit specified persons to enter the respondent’s premises for the purpose of the execution of the order. A search party will ordinarily be limited to a supervising independent lawyer and the legal representative(s) of the applicant, and may include appropriate third parties [page 58] (such as an independent computer expert or person able to identify the subject matter of the search) who are in a position to facilitate the search.129 As to the role of a specialised computer expert involved in the search, refer to [9] of Practice Note CM 11. The size of the search party is to be as small as reasonably practicable and the search order should specify the maximum

number of persons comprising the search party, including their names or, if that is not possible, a description of the class of persons (for example, the lawyer of the applicant).130 Unless ordered by the Court, the applicant is not permitted to receive access to, or information about, the things removed from the searched premises by members of the search party, as confirmed by Practice Note CM 11 at [12].

Independent lawyer 2.28 The information to be provided in a supporting affidavit to the application for a search order relates to the identity, address, firm and commercial litigation experience of an independent lawyer who consents to being the person who serves, supervises the execution of, and otherwise does such other things as required by the Court in respect of the search order.131 The independent lawyer must be independent of the applicant’s lawyer; that is, he or she must not be a member or employee of the applicant’s firm of lawyers.132 More than one independent lawyer may be appointed, so that there are different independent lawyers supervising execution of the search order at multiple premises (r 7.46(2)). If the premises to be searched are residential and the applicant is aware that an occupant present at those premises is a female or a child, then the Court will consider whether the independent lawyer (or a member of the search party) should be a woman. This issue is covered by Practice Note CM 11 at [15], which addresses also the situation concerning vulnerable persons present at the premises during the execution of the search order. The independent lawyer becomes the interim custodian of the things removed from the respondent’s premises and is required to attend the hearing of the application to release the things in his or her custody or to provide information to the Court.133 A detailed list of typical responsibilities of the independent lawyer is provided in Practice Note CM 11 at [11].

Undertakings, costs and security 2.29 The applicant’s lawyer must provide an undertaking to the Court to pay the reasonable costs and disbursements of the independent lawyer and of any [page 59] independent expert (such as a computer expert).134 A further undertaking will be required not to disclose to the applicant any information acquired by the lawyer through the execution of the search order, except with leave of the Court.135 The undertakings to be given to the Court by the applicant, the applicant’s lawyer, the independent lawyer and the independent computer expert are contained in Sch B of the example form of a search order annexed to Practice Note CM 11. The applicant will ordinarily be required to provide the usual undertaking as to damages.136 Where the applicant has insufficient assets within the jurisdiction of the Court to satisfy this undertaking, there may be a further requirement to provide security for the performance of the undertaking as to damages.137 Breach of an undertaking given to the Court may constitute a contempt of court. In CT Sheet Metal Works Pty Ltd v Hutchinson,138 the applicant’s solicitor, acting contrary to an undertaking given to the Court not to disclose any information obtained through the execution of a search order, voluntarily disclosed the possible breach to the Court on his own initiative and where no affected party chose to pursue the matter. The Court exercised its discretion not to refer the matter to the Registrar for potential contempt proceedings.

Service of order 2.30 The search order to be served upon the respondent should be endorsed with a notice satisfying the requirements of r 41.06.139 The order should be

served at the times specified in Practice Note CM 11 at [13], and not at the same time as the execution of another search warrant, such as by the police or a regulatory authority.140

Pre-litigation orders and case management The overarching purpose 2.31 A number of judgments illustrate the fact that an application for prelitigation orders, particularly for preliminary discovery, has the potential to utilise the Court’s resources over a period of time and to incur significant costs. The first judgment in ObjectiVision Pty Ltd v Visionsearch Pty Ltd,141 regarding an application under r 7.23, is 143 paragraphs in length and the hearing on which it is based occupied two days. The Court then published several weeks [page 60] later a second, briefer, judgment142 on an additional issue and further to the findings reached in its first judgment in the case. The hearing preceding that judgment was set down for one day. The third judgment143 (39 paragraphs) was delivered some five months later and was on the subject of costs and was done on the papers following the filing of written submissions. The task was complicated somewhat by the need to apportion the costs to reflect the preliminary discovery application was successful only in part. Similarly, in the Dallas Buyers Club LLC v iiNet Ltd proceeding there were five judgments concerning the preliminary discovery application under r 7.22 and related matters.144 In respect of both of the above cases it must be appreciated that all of this occurred prior to any substantive litigation. The applications were merely so as to ascertain the description of a prospective respondent or whether

substantive proceedings would be commenced against that person. The ‘real’ litigation may yet occur. It follows that parties and their lawyers should not underestimate the significance of pre-litigation order applications, for they themselves have the potential to be protracted, costly and complex. In conducting such matters, due consideration must at all times be given to the requirements of ss 37M and 37N of the FCA Act.145

Dispute resolution 2.32 The general operation of the Civil Dispute Resolution Act was considered in some detail in Chapter 1, where it was seen that the interpretation and application of the Act is now mainly well-settled. Its specific operation in relation to applications brought under Pt 7 of the Rules is not unequivocal. On the one hand, it may be argued that such ‘prelitigation’ applications occur prior to any substantive proceedings are commenced and so, technically, do not fall within the scope of s 6 of that Act requiring ‘an applicant who institutes civil proceedings’ in the Court to file a genuine steps statement ‘at the time of filing the application’. On the other hand, and probably the preferable view, it may be argued that the mechanisms under the Civil Dispute Resolution Act do apply to applications for pre-litigation orders, subject to the express exclusions contained in that Act. In other words, the prospective applicant would be required to file a genuine steps statement unless, for example, the application is an application brought without notice146 (such as for certain urgent orders sought under Div 7.1). [page 61] This interpretation is consistent with the view of the Court that an application for preliminary discovery is ‘an application commencing a proceeding’ for the purposes of the FCA Act and the rules of court.147

Where an order under Pt 7 is sought as part of a substantive proceeding, as may occur where a freezing order or search order is sought, presumably the applicant has already filed a genuine steps statement at the time of starting the substantive proceeding. Further, in bringing an application with notice it may be necessary for an applicant to file a genuine steps statement and explain why no steps were taken to try to resolve the issues in dispute with the ‘respondent’; for example, due to reasons of urgency (s 6(2)(b)(i)) or because the safety or security of any property would have been compromised by taking such steps (s 6(2)(b)(ii)). There is scant authority providing direct guidance on this specific subject. In JMK Management Pty Ltd v Range Resources Ltd,148 a matter involving an application for preliminary discovery under r 7.23, Barker J noted that the prospective applicant had failed to file a genuine steps statement. In Dallas Buyers Club LLC v iiNet Ltd (No 3),149 Perram J remarked that the Civil Dispute Resolution Act would apply to any dispute the prospective applicant was minded to bring as a consequence of the orders made in the application for preliminary discovery under r 7.22.150

1 FCA Act s 37M(1). 2

Regarding claims for injunctive relief and other interlocutory orders in respect of matters within the appellate jurisdiction, refer to ss 28(1)(b) and (4) of the FCA Act. See also s 29 of the FCA Act and r 36.08 (stay of execution of a judgment the subject of an appeal). Where an appeal is yet to be commenced, the application may be made in anticipation of an exercise of power under s 23 of the FCA Act. 3 [1987] FCA 348 at [5]. 4

University of Western Australia v Gray (No 6) [2006] FCA 1825 confirm that the power to appoint a receiver is found in s 23 of the FCA Act. 5

See generally Musgrave Minerals Ltd, in the matter of Musgrave Minerals Ltd [2014] FCA 1155 at [10] (White J). 6 Ibid at [10], [14]. 7

Australian Prudential Authority v Siminton [2006] FCA 140 at [9] (Gray J); Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161 at [19] (Barker J); Lucisano v Westpac Banking Corporation [2015] FCA 243 at [7] (Gordon J). 8

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy

Union [2009] FCA 1092 at [39] (Gilmour J), citing Cahill v Construction Forestry, Mining and Energy Union (2006) 151 IR 41 at [22]. 9

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 at [65] (Gummow and Hayne JJ). 10

See, for example, Oxygen8 Communications Pty Ltd v Telstra Corp Ltd [2009] FCA 426 at [20] (Flick J), citing Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 (Mason A-CJ); McColm v Strudwicks Sportsworld Pty Ltd [2006] FCA 961 at [20] (Collier J), quoting Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 at [17] (Stone J). 11 Hua Wei Wang v Anying Group Pty Ltd [2009] FCA 1500 at [88] (Foster J). 12 Marley New Zealand Ltd v Icon Plastics Pty Ltd [2007] FCA 851 at [3] (Gordon J). 13 [2015] FCA 243. 14 [2014] FCA 742. 15 Rules Sch 1. 16 Re Saxon (dec’d); Johnson v Saxton [1962] 2 All ER 618; [1962] 1 WLR 859. 17 Evans v Davies [1893] 2 Ch 216 at 220. 18 Re Pacific Dunlop Ltd v Australian Rubber Gloves Pty Ltd [1992] FCA 231. 19 [2014] FCA 742. 20 Musgrave Minerals Ltd, in the matter of Musgrave Minerals Ltd [2014] FCA 1155 at [11] (White J). 21 Rules Sch 1. 22 See generally the discussion on affidavits at 3.7. 23 Consistent with the terms of Practice Note CM 14 – Usual Undertaking as to Damages. 24 [2014] FCA 1155 at [18] (White J). 25 Rules Sch 1. 26 See the definition of ‘interested person, for a person under a legal incapacity’ in the Dictionary (Sch 1

of the Rules). 27 Refer also to Form 59 and Div 29.2 for the general form and content of the affidavit. 28 Rules Sch 1. 29 [2012] FCA 1080 at [9]. 30

See also Hickey v Public Advocate (Vic) [2012] FCA 1203 at [10]–[11] (Gray J); Modra v Victoria (Dept of Human Services Victoria & Dept of Education and Early Childhood Development) [2013] FCA 1041 at [9] (Tracey J); Button v CSL Ltd [2014] FCA 601 at [10] (Barker J); Smith v Marriott Support Services [2013] FCA 312 at [12] (Tracey J). 31

See generally Wade v Victoria (No 2) [2012] FCA 1080 at [10]; Modra v Victoria (Dept of Human Services Victoria & Dept of Education and Early Childhood Development) [2013] FCA 1041 at [11]. 32 Button v CSL Ltd [2014] FCA 601 at [8] (Barker J). 33 [2014] FCA 477. 34 Button v CSL Ltd [2014] FCA 601 at [3]. 35 A

on behalf of B v New South Wales (Dept of Education and Training) (No 2) [2013] FCA 551 at [5] (Griffiths J). For consideration of some of the limitations and other difficult questions raised by the

operation of r 7.11, see Natalie Cujes and Imtiaz Ahmed, Annotated Federal Court Legislation and Rules (LexisNexis Butterworths, 2013) [r 7.11.15]. 36 See generally British Steel Corp v Granada Television Ltd [1981] AC 1096; [1981] 1 All ER 417. 37 [2015] FCA 317 at [52] (Perram J). See also McCrae v Reynolds [2015] FCA 529 at [7] (Greenwood J). 38 Rules Sch 1. 39 Costin v Duroline Products Pty Ltd [2013] FCA 501 at [32] (Yates J). 40 See generally Survival & Industrial Equipment (Newcastle) Pty Ltd t/as SIE Liferaft Service v Owners of

the Vessel ‘Alley Cat’ (1992) 36 FCR 129. 41 (1999) 96 FCR 1; 167 ALR 358; [1999] FCA 1584. 42

See, for example, Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 at 307 (held not reasonable to make slow and lengthy freedom of information legislation application to access records of the Authority). 43 See generally Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317. 44 For the form of the affidavit, refer to Form 59 and Div 29.1. 45 See the definition of ‘interested person’ in the Dictionary (Sch 1 of the Rules), which encompasses the

‘other person’. 46 Note discussion at 2.15. 47 Rules Sch 1. 48 National

Education Advancement Programs (NEAP) Pty Ltd v Ashton (1995) 128 FLR 334 at 343; 14

ACLC 30. 49 See, for example, Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 at [92] (Perram J). 50 Ibid. 51 Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422. 52 [2010] FCA 1457. 53 Malouf v Malouf

(1999) 86 FCR 134; 167 ALR 383; [1999] FCA 284, cited in Hooper v Kirella Pty Ltd (1999) 96 FCR 1; 167 ALR 358; [1999] FCA 1584. See also discussion of the issue in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560 at [10]–[20] (Tamberlin J). 54

Relevant documents will be in the ‘control’ of the prospective respondent when the documents are in that person’s ‘possession, custody or power’: see Dictionary (Sch 1 of the Rules). 55 [2014] FCA 1087 at [31]–[38] (Perry J). 56

See also Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2007) 247 ALR 199; [2007] FCA 2065 in relation to the concept of ‘reasonable cause to believe’ under O 15A r 6 of the Rules 1979. 57 [2006] FCA 591 at [19] (Tamberlin J). 58

See Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 (Lindgren J), quoted in Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [16]. 59 CGU

Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279; [2001] FCA

1223. 60 See, for example, Bailey

v Beagle Management Pty Ltd (2001) 105 FCR 136; 182 ALR 264; [2001] FCA

60; Australian Competition and Consumer Commission v Pacnet Services Ltd [2007] FCA 264 at [8] (Collier J). 61 See generally AstraZeneca AB v Alphapharm Pty Ltd [2014] FCA 9. 62 Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [24] (Tamberlin J). 63 CGU

Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279; [2001] FCA

1223. 64 Telstra

Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 3) [2007] FCA 1567. 65 CGU

Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279; [2001] FCA 1223 at [34]. 66

C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [50] (Gyles J); Lipson v Penrice Soda Products Pty Ltd (No 2) [2012] FCA 337 at [4] (Mansfield J). 67

EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd [2011] FCA 862 at [19], cited in Higgins v Hancock as Liquidator of 246 Arabella Investments Pty Ltd (in liq) (2011) 199 FCR 393; 87 ACSR 424; [2011] FCA 1492 at [55]; EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) (2012) 199 FCR 533; [2012] FCA 48 at [15]–[32]. 68 (2005) 223 ALR 238; [2005] FCA 801 at [8]–[16] (Lindgren J). 69

[2012] FCA 679 at [61]–[66]. See also Costin v Duroline Products Pty Ltd [2013] FCA 501 at [35] (Yates J); Construction, Forestry, Mining and Energy Union v Orica Australia Pty Ltd [2014] FCA 592. 70

See also Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; 246 ALR 15; [2008] FCAFC 7, cited in Anglo Coal (Dawson Management) Pty Ltd v Greig [2011] FCA 941 at [40] (Collier J). 71

Costin v Duroline Products Pty Ltd [2013] FCA 501 at [35] (Yates J); Construction, Forestry, Mining and Energy Union v Orica [2014] FCA 592 at [11] (Collier J). 72 [2008] FCA 1663. 73 CGU

Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279; [2001] FCA

1223. 74 (2007) 162 FCR 375; [2007] FCA 1010. 75 See further discussion on discovery in Chapter 6. 76 See also references to privilege within the context of discovery at 6.25. 77 [1998] FCA 1566. 78 [2006] FCA 613. 79 On costs generally, consult Chapter 12. 80 See, for example, Hoyts

Multi-Plex Cinemas Pty Ltd v Fox Entertainment Precinct Pty Ltd [2003] FCA 1347 at [15]; C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864. 81

See, for example, Cappuccio v Australia & New Zealand Banking Group Ltd [1999] FCA 1188; E D Oates Pty Ltd v Edgar Edmondson Imports [2012] FCA 356; SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271 at [32]; Alstrom Power Ltd v Eraring Energy [2009] FCA 681. 82 Such as in Novartis AG v Agvantage Pty Ltd [2012] FCA 160 at [7] (Jagot J); cf Procter

v Kalivis (No 3)

[2010] FCA 1194 at [17] (Besanko J). 83 [2013] FCA 340 at [12]–[15] (Kenny J). 84 [2012] FCA 791. 85 [2015] FCA 422 at [2]–[7]. 86 Dallas Buyers Club LLC v iiNet Ltd (No 4) [2015] FCA 838 at [33]–[35]. 87

Named after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep 509. For further reading, see P Biscoe, Mareva and Anton Piller Orders: Freezing and Search Orders (LexisNexis Butterworths, 2nd ed, 2008); D Ong, ‘Unsatisfactory Aspects of the Mareva Order and the Anton Piller Order’ (2005) 17(1) Bond Law Review 92. 88 See the Note to Div 7.4. 89

Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746 at [32], discussing Frigo v Culhaci [1998] NSWCA 88. See also Practice Note CM 9 at [5]. 90

See generally Practice Note CM 9 at [7]; Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325. 91

[2011] FCA 1045 at [66] (McKerracher J), quoting Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931 at [14]–[15] (Besanko J) (with reference to Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 401–2). 92 Practice Note CM 9 at [4]. 93 Refer to the definition of ‘without notice’ in the Dictionary (Sch 1 of the Rules). 94 Practice Note CM 9 at [19]; Coal of Africa Ltd v Sergeant (No 2) [2012] FCA 1169. 95

Rules 1.32, 7.35(6); FCA Act s 23; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457; [1987] HCA 23, cited in MG Corrosion Consultants Pty Ltd v Gilmour (2012) 202 FCR 354; 88 ACSR 170; [2012] FCA 383 at [31] (Barker J). 96 Rules Sch 1. 97 See further Practice Note CM 9 at [15]. 98

[2010] FCA 1014 (on appeal, Hua Wang Bank Berhad v Deputy Commissioner of Taxation [2010] FCAFC 140). 99 [2007] FCA 1410 at [12]. See also Commissioner of Taxation v Edgewater Estates Ltd [2009] FCA 611. 100

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622, considered in KGL Health Pty Ltd v Mechtler [2007] FCA 1410 at [11] (Tamberlin J). 101 Curtis v NID Pty Ltd [2010] FCA 1072 at [9]–[10] (Edmonds J). 102 Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064 at [23] (Perram J)

(a case in which his Honour held there was a danger of dissipation of assets). As to the latter point, see also Re RAB’s Plumbing Services Pty Ltd; in the matter of Elite Civil Management Pty Ltd v Elite Civil Management Pty Ltd [2014] FCA 264 at [10] (Flick J). 103

Khalifeh v Rahme [2009] NSWSC 1332 at [20(f)] (Slattery J), cited in Curtis v NID Pty Ltd [2010] FCA 1072 at [16] (Edmonds J); Practice Note CM 9 at [6]. 104 [2010] FCA 1072 at [27]–[33] (Edmonds J). 105 See also generally s 43 of the FCA Act.

106 Consistent with Practice Note CM 14 – Usual Undertaking as to Damages. 107 Practice Note CM 9 at [16]–[17]. 108 See also Commissioner of Taxation v Resource Capital Fund III LP [2010] FCA 1247. 109 Practice Note CM 9 at [11]. 110

See generally MG Corrosion Consultants Pty Ltd v Gilmour (2012) 202 FCR 354; 88 ACSR 170; [2012] FCA 383; Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746. 111 Practice Note CM 9 at [9]. 112 Ibid at [14]. See also Evidence Act 1995 (Cth) s 128A. 113

Named after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55; [1976] 1 All ER 779; [1976] 2 WLR 162. For further reading, see P Biscoe, Mareva and Anton Piller Orders: Freezing and Search Orders (LexisNexis Butterworths, 2nd ed, 2008); M Dockray and H Laddie, ‘Piller Problems’ (1990) 106 Law Quarterly Review 601; D Ong, ‘Unsatisfactory Aspects of the Mareva Order and the Anton Piller Order’ (2005) 17(1) Bond Law Review 92. 114 [2006] FCA 1707. 115 (2004) 63 IPR 373; [2004] FCAFC 270 at [67]. 116 Rules Sch 1. 117 Practice Note CM 11 at [2]; rr 1.32, 7.45(3); FCA Act s 23. 118

[2008] FCA 1201. On the relationship between a search order and discovery, see at [34], [87] of that judgment. 119 Rules Sch 1. 120 See the Dictionary (Sch 1 of the Rules). 121 See generally Div 29.1 and Form 59. 122 Practice Note CM 11 at [20]. See also at 2.29. 123 [2011] FCA 1004 at [12]–[13] (Rares J). 124 See r 7.35(1)(b) and discussion at 2.21. 125 [2011] FCA 999. 126 [2006] FCA 1846. 127

Practice Note CM 11 at [17]; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [24] (Jacobson J). 128

See Practice Note CM 11 at [22]; the example form of search order annexed to Practice Note CM 11 at [21]–[22]; Evidence Act 1995 (Cth) s 128A. 129 Practice Note CM 11 at [6]. 130 Ibid at [7]. 131 Ibid at [8(e)]; r 7.46. 132 Practice Note CM 11 at [11]. 133 Ibid. 134 Ibid at [10]. 135 Ibid at [18].

136 Ibid. See also Practice Note CM 14 – Usual Undertaking as to Damages. 137 Practice Note CM 11 at [19]. 138 (2012) 201 FCR 275; [2012] FCA 17. 139 Practice Note CM 11 at [21]. 140 Ibid at [14]. 141 [2014] FCA 1087. 142 ObjectiVision Pty Ltd v Visionsearch Pty Ltd (No 2) [2014] FCA 1146. 143 ObjectiVision Pty Ltd v Visionsearch Pty Ltd (No 3) [2015] FCA 304. 144 Dallas

Buyers Club LLC v iiNet Ltd (No 1) [2014] FCA 1232; Dallas Buyers Club LLC v iiNet Ltd (No 2) [2014] FCA 1320; Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317; Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422; Dallas Buyers Club LLC v iiNet Ltd (No 4) [2015] FCA 838. 145 See generally Apotex

Pty Ltd v AstraZeneca AB [2011] FCA 1520 at [59]–[63] (Rares J) (Pt VB of the FCA Act discussed within the context of the duration of the interlocutory application); Apotex Pty Ltd v AstraZeneca AB (No 2) [2012] FCA 142 (s 37M raised in submission opposing the varying of injunctive orders). 146 Civil Dispute Resolution Act s 15(h). 147 Carnegie Corporation Ltd v Pursuit Dynamics Plc [2007] FCA 1010 at [53] (French J). 148 [2012] FCA 961 at [14]. 149 [2015] FCA 422 at [19]. 150 Note also Costin v Duroline Products Pty Ltd [2013] FCA 501.

[page 63]

Chapter 3

COMMENCING PROCEEDINGS This chapter covers: • • •

•

•

• •

Requirements for starting civil proceedings …. Special classes of proceedings …. Procedures for commencement …. Originating application …. Process and relief claimed …. Certification …. Accompanying documents …. Required documents …. Statement of claim …. Affidavit …. Genuine steps statement …. Applicant’s statement …. Excluded proceedings …. Failure to file statement …. Service of originating application …. Five-day rule …. Amendment of originating application …. Leave to amend …. Procedure for amendment and service ….

3.1 3.2 3.2 3.3 3.3 3.4 3.5 3.5 3.6 3.7 3.8 3.8 3.9 3.10 3.11 3.11 3.12 3.12 3.13

Requirements for starting civil proceedings 3.1 One of the most important aspects of conducting a civil proceeding in the Court is its proper commencement having regard to the Court’s jurisdiction and, more intrinsically, the correct practices and procedures relating to this process. A weak foundation laid at the start of a proceeding will tend to cause interlocutory issues along the way, thereby adding to the overall costs and delays of litigation. This may result in an adverse costs order against the applicant or their lawyer personally. This chapter canvasses the civil practice and procedure provisions governing the bringing of civil proceedings in the original jurisdiction of the Court, and how they should be construed in accordance with the law so as to avoid inefficiencies in the conduct of proceedings. [page 64] The starting point is to identify the type of proceeding being contemplated. Chapter 3 of the Rules prescribes the form of originating process (and any accompanying documents) for a broad range of special classes of proceedings within the Court’s original jurisdiction, such as matters involving appeals from the Administrative Appeals Tribunal,1 human rights and judicial review. Admiralty,2 bankruptcy3 and corporations4 matters have dedicated or additional rules and practice notes. For most other civil proceedings, an originating application (and a statement of claim or affidavit) should be filed in accordance with Pt 8 within Ch 2 of the Rules. Part 8 provides further the rules on service of an originating application5 and any sought amendment of that document. Unless the contemplated proceeding is an ‘excluded proceeding’ for the purposes of the Civil Dispute Resolution Act, an applicant is required also to file a genuine steps statement. The influential role of ss 37M and 37N of the FCA Act is evident in the case law in relation to a number of issues examined in this chapter. This is seen, in

particular, in respect of applications for the short service or amendment of an originating application and the applicant’s filing of a genuine steps statement.

Special classes of proceedings Civil practice and procedure provisions See rules, legislation and practice notes referred to in Table 3.1

Procedures for commencement 3.2 Various types of proceedings within the Court’s original jurisdiction have specific forms and rules for the filing of an originating application and accompanying documents. Some of these proceedings may also require the filing of a statement of claim or an affidavit, depending upon the nature of the matter and whether damages are sought as part of the claim.6 The applicant must also file a genuine steps statement, if appropriate for the reasons outlined at 3.8–3.10. [page 65] These special classes of proceedings are dealt with primarily in Ch 3 of the Rules. The most common types of such proceedings, and their relevant procedures for commencement, are set out in Table 3.1. Table 3.1: Procedures for special classes of proceedings Proceedings Rule(s) Form/Documents type Representative 9.32 proceedings under Pt IVA of the FCA Act

Form 19

Comments Rule 9.32 is actually located within Ch 2 of the Rules. See s 33H of the FCA Act as to the necessary content of the application or any document filed in support. Such proceedings are governed also by Practice Note

CM 17 – Representative Proceedings Commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth). Judicial review 31.01 (order under s 11(1) of the Administrative Decisions (Judicial Review) Act (Cth))

Form 66 and documents listed in r 31.03

An application may be joined with an application for relief under s 39B of the Judiciary Act 1903 (Cth) (r 31.01(3)). Any allegations of fraud or bad faith must be included in the originating application (r 31.01(2)). An applicant may make an application for an extension of time under r 31.02 (Form 67 accompanied by an affidavit in support and draft application/Form 66). The relevant practice note is Practice Note CM 21 – Title of Proceedings for Relief under Section 39B of the Judiciary Act 1903 (Cth) or Section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) against Commonwealth Tribunals (Practice Note CM 21).

Judiciary Act 1903 (Cth) (claim for relief under s 39B)

31.11

Form 69

An application may be joined with an application made for judicial review (rr 31.11(2) and 31.12(1)) or with an appropriate claim for relief (r 31.12(2)). In proceedings involving a constitutional writ against the Fair Work Commission, refer to Practice Note CM 18 – Title of Proceedings for Relief under s 39B

[page 66] Proceedings Rule(s) Form/Documents type

Comments of the Judiciary Act 1903 (Cth) against Fair Work Commission. See also Practice Note CM 21.

Migration

31.22

Form 70

See Notes to r 31.22 relating to certification and disclosure requirements under the Migration Act 1958 (Cth). The application must be filed within 35 days of the migration decision (Migration Act 1958 (Cth) s 477A).

An application for extension of time may be made under r 31.23 (Form 67 accompanied by an affidavit in support and draft application/Form 70). Administrative 33.12 Appeals Tribunal appeals

Form 75

The notice of appeal (Form 75) should be filed no later than 28 days after the decision document is given to the person (Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A)). The appropriate place in which to file the notice of appeal is the State or Territory where the Tribunal heard the matter (r 33.12(3)). The applicant may apply for an extension of time (Form 67 accompanied by the documents set out in r 33.13(2)). Any notice of cross-appeal filed must satisfy the requirements of r 33.20.

Fair Work Act 2009 (Cth): Dismissal Unlawful termination Discrimination Rule to show cause

34.03 34.04

Form 79 Form 80

34.05 34.06

Form 81 Form 82 (and affidavit)

Any application for an order under the Fair Work Act 2009 (Cth), brought under rr 34.03–34.05, must be accompanied by a certificate issued by the Fair Work Commission to the effect it is satisfied all reasonable attempts to resolve the dispute have (or are likely to be) unsuccessful. Under those rules, the need for such a certificate does not apply to proceedings brought by a Fair Work Inspector. Any applications alleging dismissal, unlawful termination or discrimination must include any other claim for relief the applicant seeks to make (see sub-r (2) of each of the above rules).

[page 67] Proceedings Rule(s) Form/Documents type

Comments Note that for claims of less than $20,000, the Federal Circuit Court has a small claims jurisdiction.

Human rights 34.163 Form 116 and documents listed in r 34.163(2)

The application must include any other claim for relief the applicant seeks to make (r 34.163(3)).

The application should be made within 60 days after the date of issue of the notice of termination by the President of the Australian Human Rights Commission (Australian Human Rights Commission Act 1986 (Cth) s 46PO(2)). The applicant should serve the Australian Human Rights Commission with the filed documentation at least five days before the return date fixed for the hearing of the proceeding (r 34.164).

Chapter 3 of the Rules deals with the processes for other types of special classes of proceedings, including: applications made under s 57 of the Australian Crime Commission Act 2002 (Cth) (Div 31.4); matters remitted from the High Court (Div 32.1); referral of a petition under the Commonwealth Electoral Act 1918 (Cth) (Div 32.2); taxation appeals (Div 33.1);7 appeals from the Superannuation Complaints Tribunal (Div 33.3); appeals from the National Native Title Tribunal (Div 33.4); application for an inquiry or ballot under s 69(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (r 34.07); application for interim orders under s 204 of the Fair Work (Registered Organisations) Act 2009 (Cth) (r 34.08); proceedings for an offence — prosecution (Div 34.2); intellectual property proceedings — including appeals and applications under the Designs Act 2003 (Cth), Patents Act 1990 (Cth),8 Trade Marks Act 1995 (Cth) and Copyright Act 1968 (Cth) (Div 34.3); trans-Tasman proceedings (Div 34.4);

[page 68] trans-Tasman market proceedings (Div 34.5); proceedings in relation to the Aboriginal and Torres Strait Islander Act 2005 (Cth) (Div 34.6); and native title proceedings (Div 34.7).9

Originating application Civil practice and procedure provisions Division 8.1 of the Rules

Process and relief claimed 3.3 Unless dealing with a proceeding that is governed by specific rules (including those outlined above at 3.2), a civil proceeding within the Court’s original jurisdiction is commenced ordinarily by filing an originating application in accordance with Form 15 (r 8.01(1)). It must include the applicant’s name, address (residential or business) and address for service and, if applicable, a statement to the effect the applicant sues in a representative capacity (r 8.01(2)). Where the originating application states the applicant is legally represented, the lawyer must when requested in writing by the respondent declare in writing whether he or she filed the application on behalf of the applicant. If the lawyer declares they did not file the application, then the respondent may apply to the Court for an order to stay the proceedings (r 8.01(3)). The originating application must state the relief claimed and any statutory provision under which the relief is claimed (r 8.03(1)), as well as details of the relief sought as outlined in the table in r 8.03(2). The types of relief listed in

that table are: interlocutory relief, an injunction, exemplary damages10 and a declaration. The specific allegations against the respondent supporting the claim for relief should not be contained in the originating application.11 As held by Gleeson J in Clasul Pty Ltd v Commonwealth Bank of Australia,12 under r 8.03 the claims for relief to be included in an originating application are generally comprised of the orders and remedies sought by the applicant, including any declarations. The claims do not include the causes of action relied upon by the applicant unless that is specifically required by the Rules. It is not necessary to include a claim for costs in the application (r 8.03(3)).

Certification 3.4 Migration proceedings require certification by the applicant’s lawyer that there are reasonable grounds for believing that this ‘migration litigation’, [page 69] within the meaning of s 486K of the Migration Act 1958 (Cth) (Migration Act),13 has a reasonable prospect of success.14 Indeed, Note 2 of r 8.04(1) states that the Court will refuse to accept an originating application in the absence of such certification. The ‘reasonable grounds’ requirement imposes on migration proceedings a burden that does not otherwise apply in respect of the commencement of other types of proceedings in the Court. All proceedings are, however, subject to a potential application for summary judgment under s 31A of the FCA Act if they disclose no reasonable prospect of success.15 For the purposes of r 8.04, the term ‘lawyer’ has the meaning given by s 5 of the Migration Act, rather than s 4 of the FCA Act (r 8.04(2)). The Migration Act defines a ‘lawyer’ to mean a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

Accompanying documents Civil practice and procedure provisions Rule 8.05; Div 29.1 (Affidavits) and Div 16.1 (Pleadings – General) of the Rules

Required documents 3.5 An originating application16 must be accompanied by either a statement of claim or an affidavit, depending upon the circumstances outlined in r 8.05. To quote Katzmann J in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company Services Pty Ltd (No 3),17 ‘[i]t is there that one would expect to find the allegations supporting the claim for relief’. A statement of claim is required where the applicant seeks damages as relief, and it must be in accordance with Form 17 (r 8.05(1)(a)). So it is, for example, that a statement of claim is required where there is a claim for damages for breach of contract.18 An affidavit or a statement of claim may be filed in any other case (r 8.05(1)(b)). The expression ‘accompanied by’ is not defined in the Rules. Former O 4 r 6(1) of the Rules 1979 prescribed ‘the applicant shall file and serve with the application either an affidavit … or a statement of claim …’. It is not clear from the wording of r 8.05 of the Rules, however, whether the required affidavit or statement of claim to ‘accompany’ the originating application must be filed with (that is, at the same time as) the originating application. Strictly speaking, the commencement of a civil proceeding under Pt 8 is by [page 70] the filing of an originating application alone.19 This suggests a proceeding may be commenced without the accompanying documentation being filed at the same time as the filing of the originating application, but at some time

shortly thereafter. In practice, however, it is prudent to file all necessary documents together with the originating application for several reasons supported by the Rules, and so as to avoid the sorts of problems encountered in Ashby v Commonwealth.20 The first such reason is that the originating application (Form 15) itself refers to the grounds of the claim being stated in the statement of claim or affidavit, although the form somewhat confusingly refers to ‘the statement of claim, accompanying affidavit or other document prescribed by the Rules’ (emphasis added) and thereby implying any affidavit may accompany the originating application at some subsequent time. Secondly, the wording of Note 1 to r 8.05(1) states a return date for the proceeding is fixed when the originating application and its accompanying document have been filed. Finally, the applicant must serve these documents at least five days prior to the first return date (r 8.06). The applicant must also in certain circumstances file with the originating application a genuine steps statement, as addressed later in this chapter.

Statement of claim 3.6 When preparing and filing a statement of claim in support of an originating application regard should be had to Div 16.1 of the Rules and Form 17, relating to pleadings in general. In particular, rr 16.01–16.02 list the requirements for the structure and content of a statement of claim. Of specific note is the requirement in r 16.01(c) (and Form 17) that the lawyer preparing the pleading gives signed certification that the factual and legal material available to them provides a ‘proper basis’ for each allegation made in the statement of claim.21 A solicitor who signs the certificate to a pleading will not be absolved of responsibility on the basis the pleading had been settled by counsel.22 Although based on O 4 r 6 of the Rules 1979, surprisingly, r 8.05(1) does not expressly require that there be a statement of claim filed with the

originating application where there is an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence. The Court may, in the exercise of its power under r 1.32, order the filing of a statement of claim in such a case. The other matters that may, and may not, be raised in a statement of claim are addressed in rr 16.02(2)–(5) and rr 16.04–16.06. Consult also, [page 71] generally, the discussion on the proper content and amendment of pleadings in Chapter 6.

Affidavit 3.7 An affidavit filed in support of an originating application must state the material facts upon which the applicant relies, in order to give the respondent sufficient notice of the case to be made against them (r 8.05(2)). As observed by Pagone J in Emerald Grain Australia Pty Ltd v Agrocorp International Pty Ltd:23 The precise and careful articulation of any grounds to be relied upon in an affidavit accompanying an application is essential. An affidavit may accompany the application instead of a statement of claim but its contents must have the material facts relied upon by the applicant.

For the purposes of commencing and conducting proceedings, the relevant rules regarding affidavits are set out in Div 29.1. The affidavit itself must be in accordance with Form 59 (r 29.02(1)) and its form and content must also comply with rr 29.02–29.03. For example, the affidavit must not contain any material of a scandalous, frivolous or vexatious nature, be evasive or ambiguous or otherwise be an abuse of the process of the Court (r 29.03(1)). Many of those requirements are conveniently summarised at the end of Form 59 in the instructions for completion of an affidavit. An affidavit in irregular

form may still be accepted for filing (r 29.06); however, the party seeking to use such affidavit (or one that has not been filed) must apply for leave of the Court to do so (r 29.07).24 If the affidavit in its entirety exceeds 10 pages in length, then a table of contents should be included on the first page of the affidavit. Another particular requirement to bear in mind is that contained in r 29.02(10) that precludes the duplication in a subsequent affidavit of any annexure or exhibit number previously used in an affidavit sworn by the same deponent. The need for the affidavit to have been properly witnessed and sworn should also be observed.25 The distinction between affidavit annexures and exhibits has the potential to cause confusion in practice, especially as to whether a particular document should be treated as an annexure or an exhibit. A document accompanying an affidavit should be treated as an exhibit when it is either an original or is of such dimensions that it cannot be physically annexed. In other cases, the document should be annexed (rr 29.02(4)–(5)).26 [page 72]

Genuine steps statement Civil practice and procedure rules Rule 8.02 of the Rules

Applicant’s statement 3.8 Since 1 August 2011, a further requirement of commencing a proceeding in the Court (or the Federal Circuit Court) is the filing of a genuine steps statement by the applicant in cases where Pt 2 of the Civil Dispute Resolution Act applies (r 8.02). Any genuine steps statement filed by the applicant must

not exceed two pages in length (r 8.02(3)).27 It must be in accordance with Form 16 of the Rules and comply with s 6 of that Act (rr 8.02(1)–(2)). The statement should be filed contemporaneously with the originating application.28 Consistent with s 6 of the Civil Dispute Resolution Act, the statement must specify the steps that have been taken to seek to resolve the dispute between the parties or the reasons for no such steps being taken. If urgency is claimed in the statement as the reason for there being no attempt to resolve the dispute prior to starting proceedings (see s 6(2)(b)(i)), then the statement should carefully explain the basis for such an assertion.29 As noted in Chapter 1, the underlying purpose of the Civil Dispute Resolution Act is to seek to ensure that parties to a dispute talk settlement before they resort to litigation, and so as to prevent the wastage of time and money.30 The Act only requires that genuine steps be taken ‘as far as possible’.31 There is no express requirement under the Act that the dispute itself be ‘genuine’.

Excluded proceedings 3.9 Part 4 of the Civil Dispute Resolution Act sets out ‘excluded proceedings’ to which the requirement of a genuine steps statement does not apply (see, in particular, ss 15–16). The long list of excluded proceedings includes proceedings: in the Court’s appellate jurisdiction; relating to a decision of various federal tribunals (including the Administrative Appeals Tribunal); instituted by the Commonwealth in connection with a criminal offence or contravention of a civil penalty provision; [page 73]

brought under the Migration Act 1958 (Cth), the Native Title Act 1993 (Cth) or the Fair Work Act 2009 (Cth); involving a party that has been declared a vexatious litigant; and that are brought ex parte. Other excluded proceedings, under reg 4 of the Civil Dispute Resolution Regulations 2011 (Cth), are those for: a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth), where the act of bankruptcy arises under s 40(1)(g) of that Act; an order under s 459A of the Corporations Act 2001 (Cth) for the winding up of a company in insolvency following a failure to comply with a statutory demand; and a review of a decision of a Registrar of the Court.

Failure to file statement 3.10 An applicant’s failure to file a genuine steps statement does not invalidate the originating application or the proceedings.32 There are, however, some potential consequences of such a failure. Under s 12 of the Civil Dispute Resolution Act, the Court may, when exercising its discretion to award costs in a civil proceeding, take into account whether a person who was required to file a genuine steps statement actually did so and whether he or she took genuine steps to resolve the dispute. It was held in Hookway v MID Pty Ltd33 that even though the plaintiff had not filed a genuine steps statement for the purposes of s 12(1)(a), she had taken genuine steps to resolve the dispute in accordance with s 12(1)(b) of that Act and s 37N(1) of the FCA Act. A costs order was made in her favour, accordingly. In determining whether to award costs on an indemnity basis for an applicant’s failure to file a genuine steps statement, there are several factors the Court will take into account in the exercise of its discretion. The Court

may, for example, consider whether the proceeding was misconceived, hopeless or had no proper grounds for being pursued.34 Moreover, a costs order may be made against a lawyer personally for a failure to comply with the requirements under s 9 of the Civil Dispute Resolution Act to advise and assist the client in relation to the need to file a genuine steps statement, and such costs must not be sought to be recovered from the client.35 The judgment in Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Marks Attorneys (No 2)36 attests to the need for legal practitioners to comply with the Civil Dispute Resolution Act and with s 37N of the FCA Act. [page 74] Section 43(3)(f) of the FCA Act also deals with the power of the Court or a Judge to order a party’s lawyer to bear costs personally.37 The requirements of a respondent to file a genuine steps statement are addressed in Chapter 7.

Service of originating application Civil practice and procedure provisions Rules 8.06 and 8.07 of the Rules

Five-day rule 3.11 The applicant is required to serve a copy of the originating application and any accompanying documents personally on each respondent at least five days prior to the return date fixed by the Registrar (usually) on the originating application (r 8.06).38 The return date is ordinarily the first directions hearing in the proceeding.39

The fact that personal service is required was affirmed by Katzmann J in Commissioner of Taxation v Zeitouni40 and Electrolux Home Products Pty Ltd v Delap Impex Ltd.41 For the manner of serving an originating application personally upon an individual, corporation, association, partnership and business name, see Pt 10 of the Rules (discussed in Chapter 5). Where personal service is ‘not practicable’, an application may be made for an order for either deemed service (r 10.23) or substituted service (r 10.24).42 An order for substituted service will not be made where the applicant has made no attempt to effect personal service.43 The Rules recognise that it is sometimes necessary for a party to seek a change of the return date fixed by the Registrar. In these circumstances, a party may make an (informal) application to the Registrar under r 8.07.44 If the date is changed by the Registrar, then the applicant must change the return date endorsed on the service copy of the originating application prior to service upon the respondent(s). The Rules do not specify what is to occur if service of the originating application has occurred prior to the change of date by the Registrar. Presumably, where the respondent has filed a notice of address for [page 75] service, the Court may send a notice of change of listing advising the parties of the change of return date. Where the respondent is yet to file a notice of address for service, it may be incumbent upon the applicant to ensure the other side is duly notified of the change of return date and to be in a position to provide evidence of this notification if required by the Court. The Court has the power to extend or shorten the time for service of an originating application or any accompanying documents in the exercise of its discretion under r 1.39.45 In MBD Management Pty Ltd v Butcher (MBD Management),46 the question arose as to the proper application of the

predecessor rules to rr 8.06 and 8.07 and whether the Court should exercise its discretion to regularise short service of an originating application. The Court held (at [72]) that the purpose of such rules is to ensure that a respondent is provided with adequate notice of the directions hearing and to avoid unnecessary court hearings by providing for a ‘simple, cheap means of altering the first directions hearing’. The discretion of the Court to regularise short service of an originating process, it said (at [39] and [42]), should be exercised having regard to the overarch0ing purpose contained in s 37M of the FCA Act. The provisions relating to the five-day rule and the ability of a Registrar to alter the return date are to be interpreted and applied as ‘“case management tools” designed to enable the Court to manage and control a proceeding from the time it is commenced’ in furtherance of that purpose. In MBD Management, above, the Court accepted (at [82]) the applicant’s submissions that the primary question is whether the respondent has suffered prejudice by the late service of the originating application. Where no relevant prejudice is shown, it is appropriate for an order to be made dispensing with the requirement to serve the originating application five days before the first directions hearing.

Amendment of originating application Civil practice and procedure provisions Division 8.3 of the Rules

Leave to amend 3.12 An originating application may be amended ‘for any reason’ with the leave of the Court (r 8.21). An application for such leave may be made for the types of reasons contemplated in r 8.21(1), including to: correct a defect or error (that would prevent the Court from determining the real questions raised by the proceeding) (para (a));

avoid the multiplicity of proceedings (para (b));47 [page 76] correct a mistake in the name of a party (para (c)) or the identity of a party to the proceeding (para (d)); change the capacity in which the party is suing (para (e)); substitute a person for a party (para (f));48 and add or substitute a new claim for relief arising out of the same facts as those already pleaded to support an existing claim (para (g)(i)) or out of facts that have arisen since the start of the proceeding (para (g)(ii)). The effect of r 8.21(2) is that it enables an applicant to apply for leave to amend an originating application in accordance with rr 8.21(1)(c), (d), (e) or (g)(i) even if the application is made after any relevant period of limitation applying at the date of commencement of the proceeding has since expired.49 In particular, for r 8.21(1)(g)(i) to apply, there is no need for the applicant to show that the new claim arises from the same facts as those pleaded in the originating application; it is only necessary to show the new claim for relief arises out of ‘substantially’ the same facts.50 The ability to make an application for amendment after the expiration of a relevant limitation period does not, however, apply to an application under r 8.21(1)(g)(ii) (see r 8.21(3)). The Court’s basic position regarding the amendment of an originating application was articulated concisely by Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4).51 It will allow the making of all such amendments ‘as are necessary to enable the real questions in controversy between the parties to be decided’. Moreover, it was observed in Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 3)52 that this discretion is broad, but that the power must be exercised so as to ‘facilitate the just

resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’ under s 37M of the FCA Act.53 A similar conclusion was reached by Wigney J in Carter; in the matter of Spec FS NSW Pty Ltd (in liq).54 The manner in which the ‘substitution’ of a party is addressed by r 8.21 was considered by Gordon J in Environinvest Ltd (recs and mgrs apptd) (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newmann, Peters and Miller t/as HLB Mann Judd (Vic Partnership).55 Her Honour noted (at [21]– [22]) that the principles espoused by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA56 are applicable to an exercise of discretion under rr 8.21(1)(c) and [page 77] (d), and that one way of determining whether those rules are satisfied is to ask two questions. First, did the applicant intend to sue the party it now seeks to join? Secondly, if so, did it mistakenly believe that the entity of that party was the party it did name to the proceeding? If the result of the amendment to the originating application is to substitute another person as a party to the proceeding, then by reason of r 8.22 the proceeding is deemed to have started for that person on the date of the amendment.

Procedure for amendment and service 3.13 Although the Rules are silent on the subject, any formal application for leave to amend an originating application would presumably be made by way of an interlocutory application (in accordance with Form 35) and accompanied by a supporting affidavit (Form 59) outlining the reasons the applicant seeks the amendment. The Court may dispense with the need to

comply with these formal requirements (r 1.34) or may make an order inconsistent with the Rules (r 1.35). Once leave to amend is granted, the applicant must make the alterations in the manner prescribed by r 8.23 and within the time frame permitted by r 8.24 (namely, by the time specified in the order granting leave to amend or, if no time is specified, within 14 days after the making of the order). Service of a copy of the amended originating application upon the parties already served with the original originating application must take place as soon as practicable after the amendment is made (r 8.25).

1 Appeals from the Administrative Appeals Tribunal are considered also in Chapter 11. 2

See Admiralty Rules 1988 (Cth) Pt IV; Practice Note ADM 1 – Admiralty and Maritime Work in the Federal Court of Australia. 3

See Federal Court (Bankruptcy) Rules 2005 (Cth) r 2.01 (general) and r 4.02 (creditor’s petition); Practice Note CM 20 – Ex Parte Applications for Substituted Service in Bankruptcy Proceedings and Applications for Examination Summonses under section 81 Bankruptcy Act 1966 and sections 596A and 596B Corporations Act 2001. 4 See Federal Court (Corporations) Rules 2000 (Cth) r 2.2; Practice Note CM 20 – Ex Parte Applications

for Substituted Service in Bankruptcy Proceedings and Applications for Examination Summonses under section 81 Bankruptcy Act 1966 and sections 596A and 596B Corporations Act 2001; Practice Note CORP 1 – Interlocutory Process and Pleadings in Corporations Matters; Practice Note CORP 2 – Cross-Border Insolvency Cooperation with Foreign Courts or Foreign Representatives; Practice Note CORP 3 – Schemes of Arrangement. 5 For the practice and procedure on the filing and service of documents generally, see Chapter 5. 6 See discussion at 3.5–3.7. 7 The relevant practice note to consult is Practice Note TAX 1 – Tax List. 8

The relevant practice note for such proceedings is Practice Note IP 1 – Proceedings Under the Patents Act 1990 (Cth). 9 See also Native Title (Federal Court) Regulations 1998 (Cth) reg 5. 10 See generally Zaghloul v Woodside Energy Ltd (No 5) [2014] FCA 1042 at [66] (Gilmour J). 11

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company Services Pty Ltd (No 3) [2012] FCA 697 at [33] (Katzmann J). 12 [2014] FCA 1133 at [36]. 13 See also the definition of ‘migration litigation’ in the Dictionary (Sch 1 of the Rules). 14 See r 8.04(1); Form 15; Migration Act s 486I.

15 As considered in Chapter 8. 16

Defined in the Dictionary (Sch 1 of the Rules) to mean ‘an application starting a proceeding, including a cross-claim … but not a notice of appeal’. 17 [2012] FCA 697 at [33]. 18 Ashby

v Commonwealth [2012] FCA 640 at [2]–[3] (Rares J); Ashby v Commonwealth (No 4) [2012] FCA 1411 at [6] (Rares J). 19

See Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 7) [2010] FCA 902 at [5] (Bennett J) in relation to former O 4 r 1 of the Rules 1979. 20 [2012] FCA 640. 21 See generally Apotex Pty Ltd v AstraZeneca AB [2011] FCA 1520. 22

Kuek [2012] FCA 494 at [23] (Jessup J), citing White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169. 23 [2014] FCA 414 at [7]. 24 Cristovao v Registrar Caporale [2012] FCA 1329 at [47]–[48] (Murphy J). 25 Ibid at [48]. Refer also to s 45 of the FCA Act regarding the making of affidavits. 26

See further Practice Note CM 23 – Electronic Court File and Preparation and Lodgement of Documents at [6.11]–[6.16]. 27

The limit on the length of the statement only applies to proceedings commenced on or after 1 February 2014. 28

Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2) [2012] FCA 1138 at [26] (Collier J). 29 See generally Ashby v Commonwealth (No 4) [2012] FCA 1411. 30 See JMK

Management Pty Ltd v Range Resources Ltd [2012] FCA 961 at [14] (Barker J), cited in King Par LCC v Brosnan Golf Pty Ltd [2013] FCA 640 at [17] (Gordon J). 31 Hookway v MID Pty Ltd [2012] FCA 1456 at [34] (Middleton J); Civil Dispute Resolution Act s 3. 32 Civil Dispute Resolution Act s 10(2). 33 [2012] FCA 1456. 34 King Par LCC v Brosnan Golf Pty Ltd [2013] FCA 640 at [17]. 35 Civil Dispute Resolution Act ss 12(2)–(3). 36

[2012] FCA 977. See also Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Marks Attorneys [2012] FCA 282. 37 See further discussion on costs orders made personally against lawyers at 12.8–12.9. 38

Rule r 29.08 requires a party intending to use an affidavit to serve it upon their opponent at least three days before ‘the occasion for using it arises’. 39 Directions hearings are addressed in Chapter 6. 40 [2013] FCA 1011. 41 [2013] FCA 600. 42 See generally British American Tobacco Australasian Ltd v Taleb (No 1) [2012] FCA 1065.

43 Fuller v Toms [2012] FCA 27. 44

Rule 8.07 does not apply to a corporations law proceeding brought under the Federal Court (Corporations) Rules 2000 (Cth) where there is a requirement for a public notice or advertisement (r 8.07(3)). 45 See Note 1 to r 8.06. 46 [2012] FCA 1071 (Edmonds J). 47 This is consistent with the object underlying s 22 of the FCA Act. 48 See also r 9.05. 49 Australian Securities

and Investments Commission v Australian Property Custodian Holdings Ltd (recs and mgrs apptd) (in liq) (controllers apptd) (No 2) [2013] FCA 409 at [19] (Murphy J). 50 Carter; Re Spec FS NSW Pty Ltd (in liq) [2013] FCA 1027 at [40] (Wigney J). 51 [2007] FCA 1035 at [14]. 52 [2013] FCA 1391 at [3]–[4] (Gilmour J). 53

See also Nyoni v Chee Koon Hee (No 2) [2013] FCA 703 at [9] (Gilmour J); Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8] (Katzmann J). 54

[2013] FCA 1027 at [56]. See also Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [98] (Gummow, Hayne, Crennan, Keifel and Bell JJ), quoted in Frugtniet v Tax Practitioners Board [2013] FCA 752 at [30] (Murphy J). 55 [2012] FCA 1307 at [31]. 56 [1991] HCA 45; (1991) 173 CLR 231.

[page 79]

Chapter 4

REPRESENTATION, PARTIES AND INTERVENERS This chapter covers: • •

•

•

Persons involved in proceedings …. Legal representation …. Lawyers …. Appointment of lawyer …. Termination of retainer …. Non-lawyers …. Corporations …. Court referral for legal assistance …. Parties …. Description of parties …. Joinder of parties …. Joinder of tribunals …. Improper joinder …. Legal incapacity …. Intervener and amicus curiae …. Notice of a constitutional matter …. Notice …. Service …. Powers of the Court and effect of lack of notice ….

4.1 4.2 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.14 4.15 4.16

Persons involved in proceedings 4.1 Lawyers play an integral role in the conduct of proceedings before the Court and in the promotion of the overarching purpose of civil litigation. This is reflected in 37N of the FCA Act by the fact a lawyer must assist their client to act consistently with the overarching purpose and may incur a costs order personally if this does not occur. This is a significant burden for a lawyer to bear. It is, therefore, important that the basic requirements for legal representation under the civil practice and procedure provisions are understood properly. Part 4 of the Rules concerns the manner by which a party may conduct a proceeding before the Court, be it by way of a lawyer, self-representation or, in exceptional cases, a non-lawyer. It deals with the general requirements [page 80] for representation of a party, including the appointment of the lawyer and termination of the retainer, as well as the specific situation of a non-lawyer seeking leave to represent a corporation. In appropriate circumstances, the Court may refer a party to a lawyer for pro bono legal assistance or a nonlawyer may be permitted to assist a party. The improper joinder of parties may lead to an unsuccessful claim for relief and resulting costs order against an applicant. The practice and procedure on the joinder and removal of parties is outlined in Pt 9 of the Rules. Those provisions also deal with the appointment or removal of a legal representative of a person under a legal disability, as well as an application for leave to intervene in a proceeding and the appointment of an amicus curiae. The Rules (in Div 8.2), in addition to the Judiciary Act 1903 (Cth) (Judiciary Act), furthermore provide the mechanisms by which an AttorneyGeneral of the Commonwealth or a State or Territory may intervene in a

proceeding brought in the Court concerning a constitutional matter. This may be considered appropriate where the proceeding involves a broader issue of public policy or a challenge to the validity of legislation.

Legal representation Civil practice and procedure provisions Part 4 of the Rules

Lawyers 4.2 In the course of a proceeding before the Court, a person may be either represented by a lawyer or unrepresented (r 4.01(1)). A ‘lawyer’ is defined in s 4 of the FCA Act to mean ‘a person enrolled as a practitioner of a federal court or the Supreme Court of a State or Territory’. This definition should be read in conjunction with ss 55A, 55B and 55C of the Judiciary Act. In light of those provisions, a practitioner wishing to represent a person before a federal court should have their name entered on the Register of Practitioners of the High Court.1 A lawyer representing a party should be cognisant of his or her duties as a legal practitioner to act with honesty and candour and in the interests of the administration of justice, and to avoid abusing the Court’s process.2 The need to assist the Court in promoting the efficiency of its workload is reflected in the duty of a lawyer to cooperate with the Court during case management.3 This duty is nowadays embodied within statutory provisions. First, the lawyer must under s 37N(2) of the FCA Act assist the client to act consistently with [page 81] the overarching purpose of civil practice and procedure during the conduct of

a proceeding. Secondly, the Civil Dispute Resolution Act requires the parties to attempt resolution of their dispute prior to the commencement of proceedings in the Court, and it is the duty of the lawyer under s 9 of that Act to advise the client of the need to file a genuine steps statement reflecting these efforts.

Appointment of lawyer 4.3 Once a lawyer is appointed and ‘is on the record’ for a party, the Rules regard him or her as being capable of doing any relevant act or thing that party is permitted or required to do, unless the context indicates otherwise (r 4.02). The practical effect of this rule is that the address of the lawyer’s firm will ordinarily be the address for service of documents in the proceeding,4 and the lawyer will be responsible for the filing and service of documents on behalf of the client. In certain circumstances, a lawyer may be liable personally for the costs incurred in a proceeding.5 How is it known whether a particular lawyer is on the record in relation to the conduct of a proceeding? The lawyer on the record for an applicant is the legal representative named in the application instituting the proceeding. For a respondent, such a person is the lawyer named in a notice of address for service (Form 10) or in any submitting notice (Form 29). Any notice of appointment of lawyer (Form 4) or a notice of change of lawyer (Form 5) will also shed light on the identity of the lawyer currently on the record for the relevant party. It should be noted that the Rules technically require a document (other than affidavit material) to be signed by a party’s lawyer, rather than (arguably) in the capacity of that lawyer’s firm.6 In practice, it is often the firm that is treated as being on the record. Where a party is unrepresented at the start of a proceeding and subsequently appoints a lawyer to act on their behalf, the lawyer must file and serve a notice of appointment of lawyer in accordance with Form 4 (r 4.03).7 The Rules do not prescribe a time limit for the filing of such a document, but

common sense would dictate it be filed and served as soon as possible after the appointment of the lawyer.

Termination of retainer 4.4 The termination of a lawyer’s retainer in a matter is approached by the Rules from two perspectives depending upon whether it is the client or lawyer who has instigated the termination of the retainer. Where the client (party) terminates the retainer and a new lawyer is appointed to represent them in the [page 82] proceeding, the new lawyer must file a notice of change of lawyer consistent with r 4.04(1) and Form 5. In the event the party decides not to proceed to appoint a new lawyer in the proceeding, they should file a notice of termination of a lawyer’s retainer (Form 6) and a notice of address for service (Form 10) (see r 4.04(2)). If, after a reasonable period of time, the party does not file these documents, then the former lawyer may file a notice of ceasing to act (Form 8) for their removal from the record. Where it is the lawyer who has instigated the termination of the retainer, r 4.05(1) requires the lawyer to do the following: serve on the party a notice of intention to cease to act (Form 7); and at least seven days after serving that notice, file a notice of ceasing to act (Form 8).8 It is then the responsibility of the party to file a notice of address for service within five days of the notice of ceasing to act was filed (r 4.05(2)).9 The requirement under the former O 45 r 7 of the Rules 1979, of the lawyer being required to file an affidavit attesting to the service of a notice of intention to cease to act upon the client, has been dispensed with under the Rules.

Upon a lawyer ceasing to represent a party in a proceeding, it is imperative that they seek to ensure their formal removal from the record as soon as practicable. This will serve to avoid the incurring of further costs in relation to the receipt of communications from the Court and service of documents by another party. Until such time as they are so removed, the lawyer is regarded as remaining on the record and may be expected to appear before the Court.

Non-lawyers 4.5 On occasion, an unrepresented party will seek to have a non-legally qualified person represent them in the course of a proceeding. A ‘McKenzie friend’ is a person not licensed to practise law to whom a court grants leave to assist an unrepresented party in a proceeding.10 This scenario is not addressed directly by the Rules. It was noted by Pagone J in Australian Securities and Investments Commission v Endresz11 that the effect of r 4.01(1) is that a non-lawyer cannot represent a party in a proceeding before the Court, but that r 1.34 potentially permits dispensation with the operation of this sub-rule. In that case, leave was granted for a son to represent his parents in their proceedings. There are a number of factors the Court may take into account in the exercise of its discretion to grant dispensation with the requirement of r 4.01(1), [page 83] including the complexity of the case, the genuine difficulties experienced by the unrepresented party and the interests of justice.12 Leave will not be granted casually, having regard to ‘important public policies of access to justice and of ensuring the proper administration of justice’, and to the fact that a legally unqualified person lacks the necessary experience or skills to

conduct proceedings, is not subject to professional standards and regulatory control and does not owe the duties of a lawyer to the Court.13 In determining whether the McKenzie friend should be allowed to act as an advocate in the proceeding, the Court in Cristovao v Registrar Caporale14 considered that the unrepresented applicant had previously demonstrated an ability to coherently present his own case, with a satisfactory command of the English language and a detailed knowledge of the facts of the matter. Balanced with such considerations was the fact that the ‘friend’, although trained in the law, was a disqualified lawyer and so no longer able to be dealt with in a disciplinary manner should the need arise. Accordingly, he was permitted to act as a McKenzie friend, but to provide only advice and assistance at the bar table.

Corporations 4.6 The term ‘corporation’ is defined in the Dictionary15 as ‘any artificial person other than an organisation’. In turn, the Dictionary defines the word ‘organisation’ to have the same meaning as that in s 6 of the Fair Work (Registered Organisations) Act 2009 (Cth); namely, an organisation registered under that Act. These meanings were considered and affirmed by Flick J in Mulhern’s Properties Inc v Bank of Queensland (Mulhern’s Properties Inc).16 The Rules expressly provide that ‘[a] corporation must not proceed in the Court other than by a lawyer’ (r 4.01(2)). The Court may, however, dispense with the need for compliance with the Rules under r 1.34, and thereby allow a corporation to be represented before the Court by a non-lawyer (such as a director or other officer of the corporation). The leading authority on the applicable factors considered by the Court when exercising its discretion to dispense with the requirement of r 4.01(2) (or its predecessor rule) is TermiMesh Australia Pty Ltd v Josu Manufacturing Pty Ltd.17 In that case, the Court held (at [12]–[13]) that such relevant factors include:

the corporation’s financial capacity or incapacity and of those standing behind it; [page 84] what effect diverting company resources to paying legal expenses will have and associated issues; and the capacity of the proposed representative to conduct the case effectively having regard to its complexities. Unsurprisingly, the principles relevant to the dispensation of the ordinary requirement for legal representation for a corporation have been considered by the Court on a number of occasions.18 An application for dispensation was refused in Hurd v Zomojo Pty Ltd19 on the basis that insufficient reason was provided to persuade the Court to exercise its discretion. Similarly, in Mulhern’s Properties Inc, above, no dispensation was granted because the Court held that only a lawyer could properly assist it with the issues raised by the statement of claim and there was no evidence that the corporation could not afford the services of a lawyer. A further factor militating against dispensation with the rule is where the person seeking leave to represent the corporation has demonstrated no or little proper understanding of the need for compliance with the orders of the Court.20 The Court may be more likely to grant leave where the corporation is the respondent to the proceeding21 or where the matter is urgent.22 Leave to dispense with the requirement to comply with r 4.01(2) may be granted on a limited basis, as occurred in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority.23

Court referral for legal assistance 4.7 In appropriate situations, the Court may under r 4.12 refer an

unrepresented party in a proceeding to a lawyer for the purposes of obtaining pro bono legal assistance (including legal advice or representation). In doing so, the Court has a broad discretion and may take into account factors such as the nature and complexity of the proceeding and the ability and means of the party to obtain independent legal assistance.24 The factor of the referral being in the ‘interests of the administration of justice’, as appeared previously under the similar provisions of the Rules 1979, no longer appears under the Rules.25 [page 85] It may be argued, however, that this factor is now subsumed under the factor in r 4.12(2)(d) of ‘any other matters the Court considers appropriate’. The decision to refer a matter should not be taken lightly, taking into account the impact on the prospective lawyer and public resources. More sufficient evidence of the appropriateness of the exercise of discretion has been required in some cases.26 The grant of a referral certificate for assistance, at public expense, was held not to be appropriate in all the circumstances of the case in Fuller v Toms.27 By contrast, the Court was more readily prepared to grant a certificate in SZTGS v Minister for Immigration and Border Protection,28 Henderson v McSharer29 and Dimitriou v Curtis.30 A referral certificate (Form 9) usually will be issued by the Court only in respect of an actual party, suggesting a proceeding must already be on foot and that a referral will not be made for the assistance of a person contemplating the bringing of proceedings before the Court. Furthermore, r 4.13 prevents a party from making an application for the issue of a referral certificate. This does not preclude a party from raising the matter with the Court.31 The language of r 4.14 suggests the lawyer to whom a referral certificate is sent may elect whether to accept the referral. Once accepted, however, the lawyer may only cease to provide the legal assistance in the manner outlined

by r 4.15. Division 4.2 of the Rules deals with various other aspects of the referral, such as the cessation of the provision of the legal assistance (rr 4.15– 4.17) and the payment of disbursements (r 4.18) or professional fees (r 4.19).

Parties Civil practice and procedure provisions Part 9 of the Rules Practice Note CM 21 – Title of Proceedings for Relief under Section 39B of the Judiciary Act 1903 (Cth) or Section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) against Commonwealth Tribunals (Practice Note CM 21)

Description of parties 4.8 Each court has an established practice on how the parties are to be properly addressed for the purposes of the preparation of documents for, and the general conduct of, proceedings before the court. The Court adopts the description ‘applicant and respondent’ in respect of most types of proceedings [page 86] within its original jurisdiction. For cross-claims, the appropriate terms to use are ‘cross-claimant’ and ‘cross-respondent’.32 In relation to pre-litigation orders under Pt 7, the appropriate description of the parties is that of ‘prospective applicant’ and ‘prospective respondent’ (see Chapter 2). By contrast, references to ‘plaintiff’ and ‘defendant’ (and ‘applicant’ in relation to certain (interlocutory) applications) should be used in respect of proceedings brought under the Federal Court (Corporations)

Rules 2000 (Cth). The ‘plaintiff’ and ‘defendant’ nomenclature is also appropriate for proceedings where the Admiralty Rules 1988 (Cth) apply. Matters within the appellate jurisdiction refer to the ‘appellant’ and ‘respondent’ (and, if applicable, the ‘cross-appellant’ and ‘cross-respondent’). Regarding parties and interveners in appeal proceedings, consult Div 36.3 and the discussion at 11.12.

Joinder of parties 4.9 The issue of the joinder of parties is addressed generally by Div 9.1. Representative proceedings (Div 9.2), grouped proceedings under Pt IVA of the FCA Act (Div 9.3), and partnership (Div 9.4) and business name proceedings (Div 9.5) have specific rules in relation to the joinder of parties and how parties are to be named or proceedings started. By r 9.01, relief may be sought in a single proceeding in respect of multiple causes of action against a respondent, regardless of whether the applicant is claiming the relief in the same capacity. An application for joinder of parties by or against two or more persons may be made in the circumstances outlined in r 9.02. That is, where a separate proceeding could be made by or against each person in which a legal or factual question arises for decision (para (a)), and where all rights to relief claimed arise out of the same event or series of events (para (b)). In Austcorp Project No 2 Pty Ltd v LM Investment Management Ltd; Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq),33 it was noted that the effect of granting the application for joinder is the avoidance of multiplicity of proceedings. Rule 9.02 does not, however, seem to extend to non-parties seeking leave to become a party to an extant proceeding.34 Persons with joint entitlements to claims for relief must be joined as a party to the proceeding, and any person who does not consent to being an applicant must be made a respondent (r 9.03). Where relief is claimed against a respondent who is both jointly and severally liable with a third party, r 9.04(1) provides that the latter need not be joined to the proceeding. In the

case of proceedings commenced against any person who has joint (and not several) liability with other persons, but not against all persons sharing that liability, [page 87] the respondent(s) may apply for a stay until each person who is jointly liable is joined as a respondent (r 9.04(2)). An application to the Court for the joinder of a person to the proceeding as a party may be brought in accordance with r 9.05 where the person ‘ought to have been joined’. Specifically, the application may be made where the person is someone whose cooperation may be required or their joinder ensures that each issue in dispute is able to be determined or avoids the multiplicity of proceedings (r 9.05(1)). An example of a case in which the Court ordered the grant of a joinder application is Bupa Australia Pty Ltd v iSelect (No 2).35 By contrast, in Westpoint Management Ltd (in liq) (recs and mgrs apptd) v Theobald; Re Lanepoint Enterprises Pty Ltd (in liq) (recs and mgrs apptd),36 a company was denied leave to be joined as a party on the grounds that (amongst other things) the involvement of the company in the conduct of the proceeding (as either a party or an intervener) could constitute an abuse of process. As held by Katzmann J in Bowen Energy Ltd v 2KD Drilling Pty Ltd,37 ultimately, the grant of leave to join a party should be exercised in a way that best facilitates the overarching purpose of civil litigation in the Court. It should also be noted that a proceeding may survive the death or bankruptcy of a party where the cause of action in the proceeding survives (r 9.09(1)). Where an interest or liability of a party passes to another person (by way of assignment, transmission or other means), an application may be made for joinder or removal, as appropriate (r 9.09(2)).38 On the issue of substitution after the death of a party, see r 9.10.

Joinder of tribunals 4.10 In relation to a proceeding involving judicial review of a decision of a tribunal, the question arises as to whether the tribunal should be joined formally as a party. On this subject, Practice Note CM 21 addresses the title of proceedings for relief under s 39B of the Judiciary Act and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) against Commonwealth tribunals; namely, the Administrative Appeals Tribunal (encompassing the work of the former Migration Review Tribunal and Refugee Review Tribunal) and the Superannuation Complaints Tribunal. The practice note makes it clear that the relevant tribunal should be named as a party and prescribes further the appropriate description of each party to the proceeding, including the fact that the name of the tribunal decision-maker (member) should not appear in the title. While a tribunal is made a party to the proceeding, in reality it plays no active role in the conduct of the proceeding. The tribunal may submit to the jurisdiction of the Court (potentially, ‘save as to costs’) by filing a submitting notice under r 12.01. In matters where the tribunal might make appropriate [page 88] submissions on the nature and extent of its powers and procedures, the need for its more active involvement in the proceeding may arise, but the presentation of a case by a tribunal is otherwise regarded as exceptional.39 When seeking judicial review or other relief in relation to a decision of a tribunal, the Court will often require, in the interests of justice, that there be a proper contradictor (or adversarial party). This is so that submissions may be made by parties on ‘both sides of the argument’.40 Joinder of a particular party will also be appropriate where the party has a ‘vital interest in the matter which bears directly on its discharge of its statutory responsibilities’.41 As to whether a proper contradictor is required for the Court to grant declaratory

relief, however, refer to Australian Competition and Consumer Commission v MSY Technology Pty Ltd42 and the consideration by the Full Court of the authorities on this subject. The Full Court held (at [34]) that the Court is not bound to refuse to grant any declaratory relief sought by an applicant on the basis of the absence of a proper contradictor.

Improper joinder 4.11 Rule 9.07 provides that an improper or unnecessary joinder of a party, or the failure to join a necessary party, will not on its own defeat a proceeding.43 As illustrated by Evans v Superannuation Complaints Tribunal,44 such an act or omission does, however, expose the applicant to the risk of a costs order. In that case, a costs order was imposed for the non-joinder of a necessary party in circumstances where ironically the intent of the applicant was to avoid the risk of a potential costs order by joining the party and ultimately failing in the action against it. An application may be made under r 9.08 for the removal of a party who was joined improperly or unnecessarily or who has subsequently become an unnecessary or improper party. Proceedings were dismissed against a number of respondents on the former basis in Sklavos v Australasian College of Dermatologists.45 Although there were issues about the utility of the claims against a number of remaining respondents, Jagot J permitted the proceeding to continue. Her Honour was quick to point out (at [32]) that this ‘should not be seen as any form of encouragement to the joinder of every possible party to a proceeding irrespective of the utility of any relief that might be obtained against them’. The applicant was allowed the [page 89] opportunity to fully plead his damages claim against all of the respondents to

ascertain whether there was truly any utility, but mindful of ss 37M and 37N of the FCA Act. In some cases a removal application is accompanied by an application, in the alternative, for summary judgment under s 31A(2) of the FCA Act and r 26.01(1).46 Whether it is appropriate for a party to be removed from a proceeding or for the proceeding to be dismissed will depend upon the particular circumstances of the matter. In Westpac Banking Corporation v New South Wales,47 the Court ordered the removal of an undischarged bankrupt as a respondent in a proceeding concerning property rights. Their removal as a party was ordered because the property rights were vested in the Official Trustee in Bankruptcy, who was already a respondent in the proceeding. The proceeding continued in the absence of the bankrupt party.

Legal incapacity 4.12 Proceedings by or against a person under a legal incapacity are governed by Div 9.6. The Rules regard a ‘person under a legal incapacity’ as a person who is a minor or mentally disabled.48 In accordance with r 9.61, a person under a legal incapacity may only commence or defend a proceeding through a litigation representative of the nature identified by r 9.62.49 Anything to be done in relation to a proceeding under the Rules by a person with a legal disability must be done by their legal representative, who in turn must be a lawyer or be represented by one (r 9.66). For a helpful précis on the fiduciary role and functions of a litigation representative, refer to Kiefel v Victoria.50 Such a person may be exposed to an order for costs, as occurred in Amir v Minister for Immigration and Citizenship.51 The appointment of a legal representative by the Court is dealt with by r 9.63. Under that rule, a party or an interested person52 may make an application (with an accompanying affidavit) for the appointment of a litigation representative. It was held in Harwood v New South Wales (Department of Education and Training)53 that it was not appropriate to

dispense with the formal requirements for appointment under r 9.63 in the circumstances of that case. Any order for [page 90] appointment should be made ideally when the proceedings are instituted or, potentially, at a later time with the consent of the respondent.54 As regards the removal of a legal representative, this is addressed by r 9.65. The rule sets out the persons eligible to make an application for removal of an existing litigation representative, and allows for the potential stay of the proceeding until a replacement litigation representative has been appointed. It otherwise provides limited guidance, as does the case law (including in respect of the predecessor rule, O 43 r 3 of the Rules 1979), on the grounds for a removal.55 The compromise or settlement of a matter in a proceeding by the litigation representative requires the prior approval of the Court through the making of an application (r 9.70). Under r 9.71, an application for approval of an agreement must be made by filing: an interlocutory application; a supporting affidavit; the agreement sought to be approved; and an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.56 The rule permits reliance upon the opinion of a solicitor or counsel acting for the applicant, given that such opinion is provided in the lawyer’s capacity as an officer of the Court and so as to inform the Court of the adequacy of the compromise or settlement.57 If approval is given to the agreement by the Court, then the terms of the

agreement become binding on the person by or for whom it was made as though that person was not under a legal incapacity and the litigation representation is acting as the person’s agent (r 9.70(2)).58 In determining whether approval of a compromise or settlement should be granted, the Court will consider whether such approval is in the best interests of the applicant.59

Intervener and amicus curiae 4.13 A person may apply for leave to intervene in a proceeding according to r 9.12(1). In deciding whether to grant leave, the Court may have regard to the factors in r 9.12(2), including ‘whether the intervener’s contribution will be useful and different’ from that of the other parties to the proceeding (see subpara (a)). The meaning of this phrase was considered by Cowdroy J in [page 91] Roadshow Films Pty Ltd v iiNet Ltd (No 2).60 His Honour refused to grant leave to intervene to a third party entity under former O 6 r 17 of the Rules 1979 (the predecessor to r 9.12), notwithstanding that the entity was not impartial to the outcome of the proceeding. Similarly, a ‘lobby group’ sought unsuccessfully to intervene in Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 3).61 Leave may be granted with conditions and the Court may determine the nature and manner of participation of the intervener (r 9.12(3)). Alternatively, the Court may appoint a person as an amicus curiae (a friend of the court).62 Unlike an intervener, who has a vested interest in the outcome of the proceeding and attains such rights, privileges and liabilities (including for costs) as the Court determines under r 9.12(1), an amicus curiae has a more limited role of assisting the Court through the making of submissions. In Australian Competition and Consumer Commission v Flight Centre Ltd,63

the Court refused leave to an entity to appear in either the role of an intervener or an amicus curiae. In relation to an Attorney-General intervening in a proceeding, see the following discussion on constitutional matter notices.

Notice of a constitutional matter Civil practice and procedure provisions Division 8.2 of the Rules

Notice 4.14 Division 8.2 relates to constitutional matters. A constitutional matter is ‘a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act’ (r 8.11(1)). Any party raising a constitutional matter within a proceeding must under r 8.11(2) file a notice, in accordance with Form 18, in the proper Registry.64 The notice of a constitutional matter must state specifically and briefly the nature of the matter and facts supporting that it is in fact a constitutional matter (r 8.11(2)). It must be served upon the Attorneys-General of the Commonwealth and States and Territories, as well as the other parties to the proceeding (r 8.12(1)(a)). By reason of s 78B(3)(b) of the Judiciary Act, there is no need to provide notice to an Attorney-General already involved as a party to the proceeding. [page 92] The purpose of a ‘s 78B notice’ is to notify the Attorneys-General that a constitutional issue arises in a proceeding before the Court and to accord them the opportunity to intervene in the proceeding, should they see fit.

Alternatively, the matter may be removed to the High Court of Australia for determination, consistent with s 78B(1) of the Judiciary Act.

Service 4.15 Rule 8.12(2) sets out the time frames for the service of any notice under s 78B of the Judiciary Act. Such service should occur: within seven days after the filing of an originating application or pleading in which the matter arises (paras (a)–(b)); no later than 14 days before the hearing date where the matter does not arise in those documents (para (c)); and in any other case, within the time directed by the Court (para (d)). As to the manner of service, s 78B(3)(a) of the Judiciary Act provides broadly that notice shall be deemed to have been given to an Attorney-General if the Court regards that steps have been taken that could reasonably be expected to bring the notice to the attention of that Attorney-General. The party filing the notice should ‘as soon as practicable’ after service of the notice upon an Attorney-General, file an affidavit of service and provide a copy of all documents filed in the proceeding to any Attorney-General who has intervened (rr 8.12(1)(b)–(c)).

Powers of the Court and effect of lack of notice 4.16 It is for the Court to determine whether in fact a constitutional matter arises.65 Once the Court is satisfied of the existence of the matter, it has a duty not to proceed to deal with the matter until such time as it is satisfied the Attorneys-General have been given the relevant notice and a reasonable time has elapsed for consideration by them of the matter.66 Section 78B of the Judiciary Act provides that the Court may exercise the following powers:

adjourn the proceeding (including making orders as to the costs of the adjournment) (sub-s (2)(a)); direct a party to give notice of a constitutional matter (sub-s (2)(b)); continue to hear matters arising in the proceeding that are severable from the constitutional matter (sub-s (2)(c)); or [page 93] proceed to hear and determine the proceeding as it relates to the granting of urgent interlocutory relief, where the Court considers it to be in the interests of justice to do so (sub-s (5)). The reference to ‘continue’ in s 78B(2)(c) does not necessarily connote that the hearing of the proceeding has already commenced.67 The hearing of the severable matters within a proceeding without further delay has been held to promote the public interest.68 In doing so, the Court is likely to consider its duty under s 37M(1) of the FCA Act in facilitating the prompt and efficient resolution of disputes brought before the Court.69

1 See the High Court of Australia website at . Search under ‘Registry’. 2 Caboolture Park Shopping Centre Pty Ltd (in liq) and White Industries (Qld) Pty Ltd v Flower and Hart

(A Firm) [1993] FCA 471; (1993) 117 ALR 253; BC9305024 at [44] (Lee, Hill and Cooper JJ). 3 Hopeshore Pty Ltd v Melroad Equipment Pty Ltd [2004] FCA 1445. 4 See also r 10.22. 5 See discussion at 12.8–12.9. 6 See, for example, r 2.15(1)(a) and the definition of ‘lawyer’ in the Dictionary (Sch 1 of the Rules). 7 Dunlop v Fishburn (No 2) [2012] FCA 314 at [13] (Katzmann J). 8 Jiangyin

Yingying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274 at [8] (Gray J). 9 British

American Tobacco Australasia Ltd v Taleb (No 4) [2013] FCA 742 at [32] (Dodds-Streeton J); STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd [2012] FCA 1508 at [11] (Rares J). 10 Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532.

11 [2014] FCA 786 at [2]. 12 Foong v Owners of Strata Plan No 54026 [2014] FCA 338 at [3] (Perram J), citing Damjanovic v Maley

[2002] NSWCA 230; Cristovao v Registrar Caporale [2012] FCA 1329 at [28] (Murphy J). 13

Australian Securities and Investments Commission v Endresz [2014] FCA 786 at [2] (Pagone J). See also Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 at [33] (Flick J). 14 [2012] FCA 1329 at [29]. 15 Rules Sch 1. 16 [2013] FCA 401 at [31]. 17 [1999] FCA 1241 (French J). 18

For instance, Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 12) [2012] FCA 289 at [13]– [21] (Flick J); GP Technology Solutions Pty Ltd v Hughes Trading Solutions Pty Ltd [2012] FCA 1012 at [12]–[18] (Yates J); Murphy v Australia Shark and Ray Centres Victoria Pty Ltd [2014] FCA 790 at [7] (Mortimer J); Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 46 at [11] (Mortimer J), quoting Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [12]–[13] (French J); Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 at [18]–[26] (Griffiths J). 19 [2013] FCA 145. 20 Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583 at [30] (Murphy J). 21 Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306. 22 Cristovao v Scott [2012] FCA 1009. 23 [2014] FCA 46. 24

See r 4.12(2); Thompson v Kane (No 2) [2012] FCA 763 (in which the Court ordered the issue of a referral certificate). 25 Fuller v Toms [2012] FCA 27 at [92]. 26 See, for example, Finch v Heat Group Pty Ltd [2014] FCA 236; Kolya

v Tax Practitioners Board [2012]

FCA 492. 27 [2012] FCA 27. 28 [2014] FCA 676. 29 [2013] FCA 414. 30 [2012] FCA 1347. 31 Fuller v Toms [2012] FCA 27 at [94]. 32 See further the definitions of those terms in the Dictionary (Sch 1 of the Rules). 33

[2013] FCA 883 at [11] (Jacobson J). See also National Tertiary Education Industry Union v Swinburne University of Technology [2014] FCA 606 at [38] (Mortimer J). 34 McAlister v New South Wales [2014] FCA 702; cf Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365. 35 [2012] FCA 1277. 36 [2012] FCA 686. 37 [2012] FCA 275 at [8]. 38 Commonwealth Bank of Australia v Pattison [2012] FCA 1397.

39 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. 40 Evans v Superannuation Complaints Tribunal [2002] FCA 79 at [6] (Finn J). 41 Ibid. 42 [2012] FCAFC 56. 43

Warrell v Fair Work Australia (No 2) [2013] FCA 402 at [4] (Flick J); Suzlon Energy Ltd v Bangad (Application of Credit Suisse Group SA) [2011] FCA 921 at [18] (Rares J); Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 3) [2012] FCA 819 at [22] (Emmett J). 44 [2002] FCA 79. See also generally Lawrance v President, Administrative Appeals Tribunal

[2005] FCA

204 at [14] (Jacobson J). 45 [2013] FCA 1065. 46

See, for example, Krajniw v Newman (No 2) [2015] FCA 673; Picos v Seven West Media [2015] FCA 660. 47 [2014] FCA 1368. 48 See the Dictionary (Sch 1 of the Rules). 49

Amir v Minister for Immigration and Citizenship [2012] FCA 879 at [2] per Jacobson J, citing Stephens-Sidebottom v Victoria [2011] FCA 893 and Harwood v New South Wales (Department of Education and Training) [2012] FCA 264. 50 [2014] FCA 604 at [16]–[24] (Mortimer J). 51 [2012] FCA 1102. 52

For a minor, this is the person’s parent or guardian. For a mentally disabled person, this is the person’s guardian. See the definition of ‘interested person, for a person under a legal incapacity’ in the Dictionary (Sch 1 of the Rules). 53 [2012] FCA 264. 54

SZRUO v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 777 at [2] (Cowdroy J). 55

See generally Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 985 regarding O 43 r 3. 56 A

on behalf of B v New South Wales (Department of Education and Training) (No 2) [2013] FCA 551 at [4] (Griffiths J). 57

Bannister v Victoria [2012] FCA 1341; Wade v Victoria (No 2) [2012] FCA 1080; Modra v Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041. 58 Moore v New South Wales [2014] FCA 477 at [7] (Yates J). 59 Sievwright v Victoria (No 3) [2014] FCA 75. 60 [2009] FCA 1391 at [16]–[23]. 61 [2007] FCA 393. 62 See Note 2 to r 9.12. 63 [2012] FCA 1161. 64

That is, the place where the proceeding was commenced or to where it was transferred (as

applicable). See the definition of ‘proper Registry’ in the Dictionary (Sch 1 of the Rules). 65

Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428 at [12]–[13] (Rares J); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151. 66 Judiciary Act s 78B(1). 67 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428 at [15]. 68 Oreb v Professional Services Review Committee No 298 [2004] FCA 1408 at [21] (Jacobson J). 69 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428 at [18].

[page 95]

Chapter 5

FILING AND SERVICE OF DOCUMENTS This chapter covers: • •

•

•

Dealing with court documents …. Form of documents …. Approved forms and compliance …. Headings …. Signature …. Footer …. Time limits and calculations …. Time fixed by statute …. Time fixed by the Rules or Court order …. Calculating time …. Registry closed for business …. How documents may be filed …. ‘Lodgement’ versus ‘filing’ …. Modes of lodgement …. Filing in person or by post …. Filing by fax …. Filing in the courtroom …. Electronic court file …. The rules on electronic filing ….

5.1 5.2 5.2 5.3 5.4 5.5 5.6 5.6 5.7 5.8 5.9 5.10 5.10 5.11 5.12 5.13 5.14 5.15 5.16

• •

Redacted documents …. Particular types of documents …. When is a document filed? …. The proper place of filing …. Rejection of documents …. Refusal to accept for filing …. Fees and exemptions …. The Regulations …. Fees generally …. Filing fees …. Other fees …. Approved users …. Exemptions …. Deferral of payment of fee …. Refund of fees ….

5.17 5.18 5.19 5.20 5.21 5.21 5.22 5.22 5.23 5.24 5.25 5.26 5.27 5.28 5.29 [page 96]

•

•

Service …. Effecting service of documents …. Personal service …. Deemed acceptance of personal service …. ‘Non-personal’ service …. Ordinary service …. Service and Execution of Process Act notice …. Service overseas generally …. Service through diplomatic channels etc …. Service under the Hague Convention …. Notice of address for service and submitting notices ….

5.30 5.30 5.31 5.32 5.33 5.34 5.35 5.36 5.37 5.38 5.39

•

Address for service …. Corporations, partnerships etc …. Submitting notice …. Access to Court documents …. Access and inspection …. Suppression of confidential and sensitive information …. Removal …. Copying …. Other documents — transcripts and subpoenaed material …. Online files …. Commonwealth Courts Portal ….

5.39 5.40 5.41 5.42 5.42 5.43 5.44 5.45 5.46 5.47 5.48

Dealing with court documents 5.1 The filing and service of court documents underpins the conduct of any litigation. It is clearly essential that such tasks are performed in compliance with the Court’s practices and procedures if they are to be regarded as valid and therefore capable of both advancing a party’s case and promoting the overarching purpose of civil litigation in the Court. To save the expense and time of preparing documents that are rejected for filing or otherwise challenged on a procedural basis, the rules on the preparation and filing of documents must be followed as to form, method and place of filing and prescribed time limits. With the Court’s implementation of eLodgment and electronic court files as its preferred methods for filing and document management (as seen at 1.15), knowledge and the correct application of the specific rules on filing is more vital than ever. So, too, care must be taken to ensure that the service of documents is effected in a precise manner, depending upon the nature of the party to be served, the type of service and whether service is to occur within or outside of Australia. Once served, a party to a proceeding is required to provide a notice

of address for service so as to indicate formally an intention to participate in the proceedings and to facilitate the service of all documents. The relevant regulations concerning the payment of Court fees are also examined in this chapter because a practitioner will be aware that, in the absence of some other arrangement, payment of the appropriate fee will be [page 97] required at the time of filing. The absence of payment of the correct fee may cause a party to miss a filing deadline or delay a trial, undermining the efficient conduct, and swift finalisation, of a matter. This chapter also looks at the rules on access to filed and other documents constituting the ‘Court file’. These rules are important to note from the perspective of what material a party may access in respect of their own proceeding, as well as that of third parties (including the media) potentially gaining access to a party’s confidential or sensitive material on the Court file.

Form of documents Civil practice and procedure provisions Part 2 of the Rules Practice Note GEN 2 – Documents (Practice Note GEN 2) Practice Note GEN 3 – Use of Court Forms (Practice Note GEN 3) Practice Note CM 15 – Allocation of Proceedings to Divisions of the Court (Practice Note CM 15) Practice Note CM 18 – Title of Proceedings for Relief under s 39B of the Judiciary Act 1903 (Cth) against the Fair Work Commission (Practice Note CM 18) Practice Note CM 21 – Title of Proceedings for Relief under Section 39B of the

Judiciary Act 1903 (Cth) or Section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) against Commonwealth Tribunals (Practice Note CM 21) Practice Note CM 23 – Electronic Court File and Preparation and Lodgment of Documents (Practice Note CM 23)

Approved forms and compliance 5.2 Any document sought to be filed in the Court must be in accordance with the appropriate forms and practice notes as prescribed by the Chief Justice from time to time (r 2.11). Practice Note GEN 2 sets out various formal requirements for documents, including the technicalities of margin width and spacing. A document need not be typed but, if handwritten, should be clear and legible. Documents may be either single-sided or double-sided, but not partly both. It is also prudent to consider Practice Note GEN 3 when preparing documents as it contains many helpful tips and instructions by the Court as to how to complete the prescribed forms. As seen below at 5.16, there are also specific requirements in respect of the lodgement of documents electronically. Substantial compliance with the forms and requirements will be generally sufficient, and there will be compliance where any variation to an approved form is such as required by the nature of the matter (r 2.12).1 In any event, the Court has the power in r 1.34 to dispense with compliance with any of the Rules. The Court may also make an order that is inconsistent with the Rules (r 1.35). [page 98]

Headings 5.3 Each document filed with the Court must contain in the heading a

reference to the District Registry in which it is filed, as well as the relevant Division of the Court (that is, General or Fair Work).2 Rule 2.13(1)(a) provides that a document to be filed must refer to the ‘District Registry where the document is filed’. This phrase should be construed narrowly as a reference to the ‘proper place’ (being the place where the proceeding was commenced or to which it has been subsequently transferred (if applicable)), or the ‘proper Registry’ (meaning the Registry at the proper place for the proceeding).3 Rule 2.21(2) further provides documents lodged in a proceeding must be sent to the proper Registry. The title of a document must be sufficient to identify properly the proceeding (r 2.13(5)). The Court’s various approved forms prescribe the appropriate wording of a title generally, whether there is to be a respondent and whether there is an abbreviated title to be used.4 An abbreviated title may not be used if the document is an originating application, notice of appeal, a document to be served upon a non-party or an order (r 2.13(4)). Once the originating document is accepted for filing, the new proceeding will be assigned a matter number by the Registry. The matter number should appear on all subsequent documents filed in the proceeding (r 2.14).

Signature 5.4 A document (other than an affidavit, annexure or exhibit to another document) to be filed by a party should be signed by that party’s ‘lawyer’ or otherwise by the party if unrepresented.5 Section 4 of the FCA Act defines the word ‘lawyer’ to simply mean ‘a person enrolled as a legal practitioner …’; however, in practice a lawyer signing a document in a proceeding ideally should be the practitioner with conduct, or at least sufficient knowledge, of the matter. The name of the relevant law firm on record should not be used as a signature. At best, the name of the firm might appear in the signature block or in the footer of the document. A signature may be affixed to the document electronically (r 2.15(2)).

Footer 5.5 A footer is required on only the first page of a filed document. Beneath a horizontal line at the bottom of that page should appear the following details: the name and role of the party (for example, applicant or respondent); the name of the individual who prepared the document and the name of the law firm on record; [page 99] telephone/facsimile/email details (DX details might also be included); and the party’s address for service of documents in the proceeding.6 A party’s address for service must be a physical address, and not a postal address (r 11.01). See further at 5.39.

Time limits and calculations Civil practice and procedure provisions Part 1 of the Rules Practice Note GEN 1 – Court Sittings and Registry Hours (Practice Note GEN 1)

Time fixed by statute 5.6 Prior to lodging any document with the Court, it is prudent to consider whether a statutory time limit applies for the filing of the document or the doing of any act or thing. A federal statute may prescribe the time in which certain types of proceedings may be instituted or legal steps taken in relation

to a proceeding within the original jurisdiction of the Court. For example, s 41 of the Bankruptcy Act 1966 (Cth) effectively provides any application for an extension of time for compliance with a bankruptcy notice must be made within 21 days of the date of service of the bankruptcy notice. Similarly, an appeal from a decision of the Administrative Appeals Tribunal must be brought within 28 days of being given the Tribunal’s decision.7 Applications for judicial review of an administrative decision must comply with the similar time limit imposed by s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court may have the power to extend a time limit imposed by a statute, but it should not be assumed that it has the power to do so in all cases. The Court’s power in r 1.39 to extend or shorten a time applies with respect to times fixed by the Rules or by order of the Court in the exercise of its discretion. Whether it has the power to extend the time for compliance in other situations will depend primarily upon the wording of any relevant statute conferring jurisdiction upon the Court to hear and determine a matter and, to a somewhat more limited extent, on the Rules or the FCA Act. Thus, r 31.02 enables a party to make an application for an extension of time in which to apply for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth); however, the primary statutory power for it to do so is contained within s 11(1)(c) of that Act.8 [page 100]

Time fixed by the Rules or Court order 5.7 Where the Rules are silent on the time limit for the doing of an act or thing in a proceeding, the Court may fix the time (r 1.38). It also has the power to extend or shorten a time fixed by the Rules or an order of the Court, either before or after the time expires and regardless of whether an application for extension of time was made beforehand (r 1.39). Such a

discretionary power will be exercised to provide relief against any injustice.9 As recognised by Flick J in Skinner v Commonwealth,10 the discretion should be exercised having regard to the circumstances of each case, but including the statutory requirements imposed upon the Court and the parties by ss 37M and 37N of the FCA Act to ensure that each proceeding is determined as ‘quickly, inexpensively and efficiently as possible’. In addition, his Honour (at [11]) summarised a number of other discretionary factors to which the Court may have regard in respect of the power in r 1.39, including the reason for the non-compliance and the potential prejudice to either party if an indulgence is granted or refused. Consideration may be given generally to the notion of justice as the paramount consideration in determining an application for an indulgence of the Court.11 In Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (No 2),12 the Court was prepared to extend the time under a previously made order in which a party could bring its application for costs, but otherwise accepted the proposition that the discretion to extend time should be granted with due regard to the fact that orders should be complied with and not ignored.13 The respondents to the application for an extension of time could not point to any specific prejudice caused by the non-extensive delay, and an appeal was pending. Moreover, where delay is caused by the conduct of the lawyers, the Court may be disinclined to apportion blame for any default upon the client litigant.14 Under r 1.32 and ss 23 and 28 of the FCA Act, the Court may make any order it considers appropriate in the interests of justice. It may dispense with the need for compliance with any of the Rules at any stage (r 1.34), or make an order that is inconsistent with the Rules (r 1.35). It was held by Logan J in ACCC v Flight Centre Ltd (No 3)15 that the power of the Court to act under rr 1.32, 1.34 and 1.35 is ‘always subject to an obligation to observe procedural [page 101]

fairness in those circumstances where such an obligation arises’. Indeed, this obligation is implicit in the requirement to comply with s 37M(1)(a) of the FCA Act (that is, the requirement to ‘facilitate the just resolution of disputes according to law’), as well as in the requirements for the construction of statutes under s 15A of the Acts Interpretation Act 1901 (Cth) and Ch III of the Constitution.16

Calculating time 5.8 Care should be taken when calculating time periods for the doing of an act or thing according to the Rules or an order of the Court, including in relation to the filing of documents. In such circumstances, the relevant rule to consider is r 1.61. Generally, where a party is required to file a document (or do an act or thing) in a time frame that is fixed at five days or less, days when the proper Registry is closed should not be counted (r 1.61(3)). In other words, it is only ‘business days’, as defined in the Dictionary,17 otherwise known as ‘clear working days’, that are included in time calculations for time fixed at five days or less. Thus, if a party is required to file a document within four days of Thursday, then the document must be filed on or by the following Wednesday (the Saturday and Sunday are excluded). On the other hand, days when the proper Registry is closed (because it is a Saturday, Sunday, public holiday or for some other reason) are not taken into consideration when calculating time periods exceeding five days.18 For instance, if an event occurred on 23 April and an act or thing may be done in relation to that event within a period of 21 days, then the last day for the doing of that act or thing is 14 May, despite one of the days within that period (25 April) being a public holiday on a weekday. In other words, the public holiday falling during the period does not affect the calculation of time. A slightly different scenario applies in relation to the end of year ‘shutdown period’; that is, the period 24 December in a year to 14 January the following year. That entire period (both dates inclusive) is to be excluded from any

calculation of time for the filing of a document under the Rules (r 1.61(5)).19 The effect of this sub-rule is that appeals arising from judgments handed down shortly before the end of the Court term gain effectively an extended period in which to file any notice of appeal. Regard must still be had, however, to any required time limits applying for the doing of any act or thing under an Act. Finally, if the time fixed is to be calculated by reference to the date of a specific day or event, and the time fixed is at least one day, then that particular date should not be counted (r 1.61(2)).20 [page 102]

Registry closed for business 5.9 Where the last day for the filing of a document or the doing of an act or thing falls on a day when the proper Registry is not open for business, the act or thing may be done the next day the place is open for business (r 1.61(4) (a)).21 This is the case under the Rules provided ‘the act or thing may only be done on a day that is a business day in the place’ (r 1.61(4)(b)). The Dictionary22 defines a ‘business day’ to be a day that is not a Saturday or Sunday, a public holiday in the place or any other day on which the Registry in the place is closed. It is wise to err on the side of caution and seek to file documents ahead of time, especially when dealing with periods around public holidays. When conducting a proceeding from interstate, it may be useful to obtain a list of public holidays for the proper Registry of the proceeding.

How documents may be filed Civil practice and procedure provisions

Division 2.3 of the Rules Practice Note GEN 1 – Court Sittings and Registry Hours (Practice Note GEN 1) Practice Note CM 23 – Electronic Court File and Preparation and Lodgment of Documents (Practice Note CM 23)

‘Lodgement’ versus ‘filing’ 5.10 Technically, a party ‘lodges’ a document when they present it to the Registry for the purpose of having the document filed. The process of ‘filing’ the document is performed by the Registry when it accepts the document, ordinarily by stamping it or affixing the Court seal.23 The distinction may be of significance where a party has ‘filed’ a document in circumstances they should not, such as where leave to file is required but has not been first sought and obtained. The act of accepting the document by the Registry may serve to cause a mere ‘irregularity’ capable of being cured.24 Section 51 of the FCA Act similarly provides that a formal defect or an irregularity does not invalidate a proceeding, unless the Court is of the view that substantial injustice has been caused by it. Under the Rules, to ‘file’ a document means to both file and serve that document.25 [page 103]

Modes of lodgement 5.11 There are a number of ways by which a document may be lodged with the Court under r 2.21, namely by being: presented to a Registry when it is open for business; posted to a Registry with a written request for certain action in relation

to the document; faxed to a Registry; or sent by electronic communication (known as ‘eLodgment’) to a Registry. As discussed at 1.15 and 5.16, the preference of the Court, as expressed in Practice Note CM 23 at [4.7], is for the filing of documents to occur by way of eLodgment. Unless directed or approved by the Court, it is inherently risky to lodge documents (including submissions) by email, particularly if there is a danger the document may not reach the attention of the docket Judge within sufficient time. Furthermore, emailing a document to the Court has been held not to satisfy the requirements of r 2.23 (sending a document by electronic communication).26

Filing in person or by post 5.12 Sufficient copies must be provided when a document is either presented or posted to a Registry and it requires sealing, signing or stamping by the Court (r 2.21(4)). The general rule of thumb is to provide the original (for the Court file), one copy for each party to be served (and sometimes also a copy for any affidavit of service required by the Rules) and a file copy to be retained by the party lodging the document. A Registry is ‘open for business’ at the times set out on the Court’s website.27 A Registry may be opened at other times for urgent business at the direction of the Court, as outlined in Practice Note GEN 1.

Filing by fax 5.13 A document may be filed at a Registry by fax consistent with r 2.21(1)(c) and the procedures set out in r 2.22. This does not apply, however, where the document exceeds 20 pages in length (r 2.22(2)). A faxed document exceeding that length may be rejected for filing.

The fax should have a cover sheet containing the details required by r 2.22(1)(b) and the sender must keep the original document and successful transmission report, to be produced in the event the Court requires verification (r 2.22(3)). A document faxed to the Registry for filing ordinarily will be returned by similar means once accepted by the Registry. Individual Registry fax numbers are listed on the Court’s website.28 [page 104]

Filing in the courtroom 5.14 A document may be filed in the courtroom with the leave of the Court. A party or lawyer seeking leave to so file may give an undertaking that any filing fee payable will be paid within a specified period of time. Where no electronic court file exists in a proceeding (see at 5.15), it may be raised also whether a hard copy of the document will be handed up in Court or filed in the proper Registry within a specified period. Alternatively, in a proceeding with an electronic court file, it should be addressed with the Court when seeking leave to file in the courtroom as to whether the document will be scanned by Court staff or the practitioner will be required to eLodge the document as soon as possible.29

Electronic court file 5.15 The Court has had a system for the electronic filing of documents (that is, documents sent by electronic communication) for several years, but it has only been since 2014 that it has progressively established a policy of becoming effectively a paperless court. This has been achieved through the gradual implementation across all Registries during 2014 of an electronic court file (ECF) as the official record for proceedings in the Court. Generally, proceedings commenced prior to the date of implementation of the ECF in a

given Registry will, unless ordered otherwise by the Court, continue to be managed as a paper file. All matters commenced after that date will be managed as an electronic file, and regardless of whether the parties concerned are legally represented. The current system is, therefore, a combination of paper files for older proceedings and the ECF for more recent cases. As the older matters are ultimately finalised, all official Court files will be created and managed as an electronic file only. It seems that, at least for now, the Court permits the lodgement of documents and things in a proceeding in person, by post or by facsimile transmission.30 In the long run, it is foreseeable that the Court will limit or remove these current methods of lodgement in its desire to streamline the management of documents in all proceedings. Registration for eLodgment of documents is a requirement. The Court’s website provides guided instructions for new users. This includes information on applications for registration and to establish a credit facility for the payment of filing fees, as well as a suggested pre-lodgement checklist.31 Practitioners should seek to familiarise themselves with the new protocols and applications for registration and online payment well prior to the institution of proceedings in an attempt to reduce delays and confusion at the time of initial document lodgement. It should be borne in mind that approval for eLodgment registration may take up to one business day and the application for the credit facility may take up to two weeks to process. [page 105]

The rules on electronic filing 5.16 Filing by electronic communication is possible by the operation of rr 2.21(1)(d) and 2.23. Nowadays, this is the preference of the Court, as expressed in Practice Note CM 23. Since 29 June 2015, the Court also requires the lodgement of documents electronically to specify the appropriate

National Practice Area relating to the matter, so as to accord with the case management reforms pertaining to the National Court Framework considered at 1.13. As just observed at 5.15, electronic filing must be done by way of the Court’s eLodgment facility located on the Court’s website. The document must be in a format approved by the Registrar and be in an approved form (r 2.23(1)). The approved formats are listed in Practice Note CM 23 at [4.2], and include the ‘.doc’, ‘.docx’, ‘.pdf’ and ‘.rtf’ formats. A document with an electronic file size of at least 30 megabytes cannot be uploaded on the system, but can be uploaded on a memory card or stick (subject to the advice of the proper Registry concerned).32 The Court suggests in Practice Note CM 23 (at [6.3]) that a simple way of reducing the electronic file size of a document is to use colour only where there is some evidential significance. The Registry will examine: all initiating documents, documents attracting a fee, documents requiring a listing or other specified action to be taken, where leave is required for filing, where the filing party is self-represented and documents the subject of a particular request. In other cases, eLodged documents are automatically accepted by the system.33 Once accepted for filing, the document is stored in the ECF for the particular proceeding and the ‘.pdf’ version of the document is (subject to any order made under r 2.23(4)(b) for production of a hard copy) regarded as the formal filed document.34 If no ECF exists for a proceeding, but a document is eLodged, then the proper Registry will print out the document and place it on the paper file for the proceeding.35 Hard copy documents lodged where an ECF does exist for a proceeding will similarly be placed on the paper file.36 If an electronic document is accepted for filing by the Registry, then it will insert a notice of filing or of hearing (as necessary) and will return the document to the sender electronically (r 2.24). Where the lodger of a document wishes to claim confidentiality or that any information contained in the document should be suppressed, the attention of the proper Registry may be drawn by ticking the relevant box on the

eLodgment system (for example, the ‘confidential’ or ‘suppressed’ box) and by way of an accompanying letter (uploaded in eLodgment) setting out the basis of the claim. This will alert the Registry to action the request appropriately, [page 106] such as by referring the matter to the appropriate Judge or to a Registrar for consideration.37 Similarly, a lawyer or party may alert the Court to the request for an urgent hearing, ex parte hearing, a hearing on a particular date or a request for leave by clicking the relevant box on eLodgment, and then await the decision of the relevant Judge or Registrar.38 Whenever in doubt about the eLodgment process or the best manner for the lodgement of a document electronically, it is best to consult the proper Registry prior to lodging.

Redacted documents 5.17 On occasion, the Court may order that a redacted copy of a document be lodged as a replacement for an existing filed document in the circumstances set out in r 2.29. Such circumstances include where the document should not have been accepted for filing, it is an abuse of process or it contains privileged or confidential information. The parts of a document removed in this way must be totally incapable of being read (including all metadata relating to that removed material being purged).39 A guide on the redaction of filed documents is available on the Court’s website.40

Particular types of documents 5.18 An affidavit lodged via the eLodgment facility must be sent as an image.41 Other rules pertaining to the lodgement of affidavits are outlined in

Practice Note CM 23 at [6.11]–[6.16], including the rules on when a document or thing should be annexed or exhibited. Some rules of court require documents to be lodged in a particular manner, such as for confidentiality reasons. This may arise in relation to the issue of a summons for examination under s 81 of the Bankruptcy Act 1966 (Cth) or s 596A or s 596B of the Corporations Act 2001 (Cth),42 a preliminary act admiralty claim,43 and cultural or customary material that is confidential or secretive in a native title proceeding document.44 The topic is addressed in Practice Note CM 23 at [7.6]. Appeal books cannot be eLodged or lodged by fax, and court books must be lodged in accordance with any Court order.45 Draft orders, correspondence [page 107] and other documents in a proceeding may be lodged via eLodgment, and this is encouraged by the Court.46

When is a document filed? 5.19 As noted at 5.10, there is a distinction between the lodgement and filing of a document. The time a document is filed may not necessarily be the same time as when it is lodged. Under r 2.25, a document in an existing proceeding is filed if it is lodged with the Court in the manner contemplated by r 2.21(1) and is accepted by the proper Registry by being stamped as ‘filed’. In a new proceeding, filing occurs when a Registry does the same. When lodging a document by fax or electronic communication, the ‘4.30 pm rule’ applies. Where a document is accepted by a Registry after being lodged by one of these means prior to this time (on a business day for the Registry), it is taken to have been filed on that day. If the document is sent

after that time of day, then it is deemed to be filed (if accepted) on the next business day for the Registry.47 For example, a Perth solicitor on record in an ACT District Registry proceeding faxes a document to this (proper) Registry at 12.30 pm Perth time on a Friday. The document is immediately accepted for filing by the Registry, and the day of filing is regarded as being that same day. By contrast, if the document were faxed at 4.00 pm Perth time on a Friday, then this would be received at the Registry after 4.30 pm Canberra time and the day of filing would be taken as the following Monday (that is, the next business day for that Registry). As noted previously, the term ‘business day’ is defined in the Dictionary48 and essentially refers to weekdays or days when the relevant Registry is open for business.

The proper place of filing 5.20 A document in an existing proceeding that is lodged by post, fax or eLodgment must be sent to the ‘proper Registry’; that is, the Registry at the place where the proceeding is started or, if applicable, has been transferred (rr 2.21(2) and 2.23(3)). If, however, a document in an existing proceeding is lodged with a Registry that is not the proper Registry, then the document should be accompanied by a letter that: identifies the proper place; and requests the document be sent to the Registry in that place (r 2.21(3)). Although theoretically possible under r 2.21(3), it is unlikely that the above mechanism will be adopted by a party using the eLodgment facility when it [page 108] is easier to simply lodge the document with the proper Registry online (by providing the correct data) in the first place.

When lodging an initiating document electronically in a new proceeding, the relevant District Registry will determine whether it is appropriate for the proceeding to be commenced in that place (for example, in appeal proceedings). If it is not appropriate, then the document will be rejected for filing. In relation to an existing proceeding, the eLodgment system is able to discern whether a document is being lodged in the proper place and ensure that the document is forwarded to the proper Registry. In either event, only the proper Registry is able to accept for filing a document in a proceeding. If the document is in order and is ultimately accepted for filing by the proper Registry, then the document is deemed to be filed on the date it was received by the Registry that is not the proper Registry (r 2.25). A degree of caution should be exercised when lodging documents at a Registry that is not the proper place for an existing proceeding. Where a document is lodged close to the expiry of a time limit (or deadline) and the document is not in order for whatever reason, it may be rejected by the proper Registry with insufficient time to remedy the problem within the remaining time available. It is, therefore, prudent to factor in such a contingency when choosing to lodge documents at a Registry that is not the proper Registry for the proceeding.

Rejection of documents Civil practice and procedure provisions Rules 2.26–2.27 of the Rules Practice Note CM 23 – Electronic Court File and Preparation and Lodgment of Documents (Practice Note CM 23)

Refusal to accept for filing 5.21 A Registry may choose not to accept a document for filing in the following circumstances:

A Registrar has refused to accept the document (r 2.27(d)). This may occur, for example, where the Registrar is satisfied the document is an abuse of Court process or is frivolous or vexatious, either on the face of the document or by reference to any document filed or submitted for filing (r 2.26). Generally speaking, proceedings will be regarded by the Court as constituting an abuse of process where they are ‘doomed to fail’.49 The document is not signed properly (r 2.27(c)). [page 109] The Court has made a direction the document not be accepted (r 2.27(e)),50 or not be accepted without the leave of the Court and such leave has not been granted (r 2.27(f)). The document is not sufficiently complete or in compliance with the Rules (rr 2.27(a)–(b)). The Court may dispense with compliance with any of the rules of court in accordance with r 1.34, particularly where it is in the interests of justice to do so.51 A requisite filing fee has not been paid, or alternative arrangements made, in the manner discussed at 5.24. If a document lodged for filing is rejected by a Registrar, then the sender must be notified of the rejection by the Registrar by post, fax or email.52 A person who disagrees with the decision of a Registrar, made under r 2.26 and in exercise of the power in s 35A of the FCA Act, may apply to the Court for judicial review of the decision on the grounds that there is some error on the part of the Registrar in the exercise of discretion to reject the particular document for filing.53 A document that has been accepted for filing by the Court may be removed entirely from the Court’s file in accordance with r 2.28. This may occur where

the document is ultimately found to be an abuse of process or should not have been accepted for filing under r 2.27. Alternatively, the document may be removed and replaced with a redacted copy omitting a part or parts as allowed by r 2.29.54

Fees and exemptions Civil practice and procedure provisions Federal Court and Federal Magistrates Court Regulation 2012 (Cth)

The Regulations 5.22 The Federal Court and Federal Circuit Court Regulation 2012 (Cth) (Regulations) commenced operation on 1 January 2013 and repealed the Federal Court of Australia Regulations 2004 (Cth) and the Federal Magistrates Regulations 2000 (Cth). The new Regulations apply to the filing of any document or any court service requested as and from that date in relation to a [page 110] general federal law proceeding conducted in the Court or the Federal Circuit Court. The former regulations continue to apply to: any setting down fee requested before the commencement date where that fee remained unpaid as at that date; and any fee for a service requested under the old regulations before the commencement date.55

Fees generally

5.23 The Regulations introduced a sharp increase in the fees payable by users of the Court and the Federal Circuit Court.56 The cost-effectiveness of conducting litigation in the Court is not merely confined to the issue of legal costs, but encompasses the significant expenses associated with filing and other fees payable by a party throughout the litigation. Schedule 1 Pt 1 of the Regulations sets out the filing and service fees payable by users for proceedings in the two courts. The Regulations distinguish, for all but some bankruptcy fees specified in Pt 1, between fees payable by a ‘corporation’ and ‘other’. In most circumstances, the fees payable by the first type of entity are significantly higher than those payable by the ‘other’ type of Court user. A ‘corporation’ is defined in s 1.04(1) to include: a company, body corporate, certain unincorporated bodies, a public authority, a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and a trade union. There is no need for the relevant corporation to be subject to the Corporations Act 2001 (Cth) for the purposes of the Regulations (s 1.04(3)). Unincorporated not-for-profit associations, a corporation sole that is not a public authority and small businesses are not regarded as a ‘corporation’ according to s 1.04(2). The category of ‘other’ is not defined in the Regulations, but seemingly includes natural persons (individuals), small businesses and unincorporated not-for-profit associations. A ‘small business’ is a business with no more than 19 employees and a total annual turnover of less than $2 million (s 1.04(4)). By virtue of that provision, societies, clubs and the like ‘not formed for the purpose of trading or securing pecuniary profit from its transactions for its members’ are regarded as not-for-profit associations. An incorporated notfor-profit association, however, is a ‘corporation’ (ss 1.04(1)–(2)). Since 1 July 2015, public authorities are to be included in the ‘other’ category (except for bankruptcy matters). In relation to bankruptcy matters, the fees payable are categorised (in items 112, 113, 121A and 127 of Sch 1) as between ‘publicly listed company’, ‘corporation/public authority’ and ‘other’. A ‘publicly listed company’ is

defined in s 103 of the Regulations to mean ‘a company that is listed on a stock exchange [page 111] or financial market in any country’. A ‘public authority’ includes a government department or other body or authority of the Commonwealth or of a State or Territory (s 1.04(4)).

Filing fees 5.24 While r 2.27 of the Rules (relating to situations when documents will not be accepted in a Registry) does not refer to the requirement of payment prior to a document being accepted for filing by a Registry, the Regulations do make it clear that where a person is required to pay a filing fee, the document must not be filed until the whole fee is paid (s 2.18(2)). Sections 2.03(2) and 2.14(1) provide further that ‘a filing fee is payable by the person for whom the document is filed’, and that this is to occur before the document is filed. The document may be filed, notwithstanding the absence of full payment at the time of filing, if the Court or a Registrar has allowed it to be filed (s 2.18(3)) or the payment of the fee is deferred under s 2.15.57 A filing fee is not, in any event, payable in relation to certain types of proceedings (such as various unlawful discrimination, Fair Work Act and taxation appeals, and an application for extension of time in which to commence a proceeding).58 Furthermore, the Court in Linke v TT Builders Pty Ltd59 considered it did have the power to reduce the fees payable by a litigant (in essence, a partial waiver), by reason of the wording in s 2.03(1): A fee in relation to a proceeding is payable as set out in this section, unless the relevant court for a proceeding, or a Judge … or Registrar of that court, directs otherwise.

In the circumstances of that case, including the fact that no evidence was

adduced to the effect the applicant had an inability to pay the applicable fees, the Court chose not to exercise its discretion in favour of a fee reduction. The Court also considered (at [27]–[29]) the relevant factors bearing upon the exercise of discretion to reduce fees payable where a proceeding has been transferred to the Court by the Federal Circuit Court. Consider also ‘approved users’ (at 5.26), ‘exemptions’ (at 5.27) and ‘deferral of payment of fee’ (at 5.28).

Other fees 5.25 All ‘non-filing’ fees (including setting down and hearing fees)60 required to be paid in accordance with Sch 1 of the Regulations must be paid within the period approved by the Registrar or before the service is provided (ss 2.14(4)–(5)). Non-payment of the required fee for the provision of a Court [page 112] service will result in the service not being provided until the whole fee is paid, unless allowed otherwise by the Court or a Registrar (ss 2.18(2)–(3)).

Approved users 5.26 The time limits imposed for the payment of filing and other fees mentioned in Sch 1 of the Regulations may be varied where the liable person, or his or her lawyer, is determined by a Registrar to be an ‘approved user of Court services’ under s 2.16 of the Regulations. In deciding whether a person falls within this category, the Registrar must consider the factors set out in s 2.16(5), such as the financial situation or history of the relevant person. In such circumstances, the approved user may be invoiced for the fee, with a period of 30 days after its receipt in which to pay the invoice (ss 2.16(2)–(3)).

Exemptions 5.27 There are two main approaches under the Regulations to dealing with the exemption of payment of fees. The first approach is to determine whether the person otherwise liable to pay a relevant fee falls within the list of persons set out in s 2.05. The most common basis for claiming exemption in accordance with that provision is where the person is the holder of a Commonwealth issued health-related concessions card. Where an exemption is claimed on such a basis, the Registry will usually require production of the original card. A dependant of a card holder is not eligible for a fee exemption under s 2.05. Other examples under the section include persons who have been granted legal aid assistance or who are imprisoned or detained in a public institution. The second approach to finding a person exempt from paying a fee is on the grounds of financial hardship. Unlike the scenarios under s 2.05, which provide an automatic basis for exemption (provided the Registry is satisfied the person falls within the category claimed), exemption under s 2.06 involves the exercise of discretion by a Registrar or authorised officer of the Court. The Registry will usually require the person claiming exemption to complete a signed declaration setting out their income, daily living expenses, liabilities and assets (consistent with s 2.06(2)). A Registrar’s decision in relation to a fee exemption is reviewable by the Administrative Appeals Tribunal in accordance with s 2.21.61

Deferral of payment of fee 5.28 The payment of any fee under s 2.14 of the Regulations may be deferred (potentially more than once) by a Registrar or an authorised officer of the Court (the decision-maker), with or without the imposition of conditions.62 [page 113]

Deferral may occur under s 2.15(2) where the decision-maker is of the opinion that the need to file the relevant document is of such urgency as to override the general requirement of payment prior to filing, or for financial reasons it would be unreasonable or oppressive to require immediate payment (s 2.15(2)(a)). Alternatively, deferral may arise where the person liable to pay the fee is represented by a lawyer acting pro bono (s 2.15(2)(b)). In either scenario, deferred payment is required within a period of 28 days or such other time approved in writing by the relevant decision-maker (s 2.15(3)). A deferred setting down fee is still payable if the hearing does not proceed.63 Deferral of payment of a fee does not extend to the following items in Sch 1 of the Regulations: a request for production of a file or the copying of a document (item 123); any actual or attempted service or execution of process by an officer of the Court (item 124); and the seizure and sale of goods by an officer of the Court in the execution of a process, except in relation to an admiralty matter (item 125). A Registrar’s decision not to accept for filing a document without payment of the relevant (reduced) fee, based upon an erroneous decision not to allow deferral of payment of the fee, was set aside in Rosson v Tesoriero.64 The Court noted (at [54], [56]) that the (new) Regulations make express provision enabling a Registrar to grant the deferral of a reduced fee. Decisions of a Registrar made under the Regulations are of an administrative nature and therefore potentially reviewable under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Refund of fees 5.29 The Court will refund a fee paid in a proceeding in the limited

circumstances of s 2.19 of the Regulations. The first such circumstance is where a person has been effectively over-charged or charged incorrectly (ss 2.19(1)–(3)). A paid setting down fee will not be refunded even if the first hearing day set down for the case does not proceed (s 2.19(4)). A mediation fee may be refunded if the mediation does not proceed and a Judge or a Registrar orders a refund of the fee (s 2.19(10)). The rules on the refund of hearing fees are more convoluted. Hearing fees paid for commenced hearings attract a potential refund of the amount paid for a hearing day where the proceeding settles or discontinues before that day, or where the hearing does not proceed on that day for some other reason (s 2.19(9)). Where a hearing fee is paid but the hearing has not commenced, a refund is permitted if the person who paid the fee notifies that the hearing [page 114] will not commence (or will commence only for the purpose of making formal orders to finalise the proceeding) and it does not actually commence (s 2.19(5)). Under s 2.19(6), the relevant time frame for such written notification to the Registrar or an authorised officer is: if the hearing day was fixed less than 10 business days65 before the listed hearing day, then at least two business day before the hearing day (para (a)); and in any other case, at least 10 business days before the hearing day (para (b)). The Registrar has a broad discretion to allow a refund even where the person who paid the hearing fee has not made the notification in accordance with s 2.19 (see s 2.19(7)). Any such decision is reviewable by the Administrative Appeals Tribunal (s 2.21).

Service Civil practice and procedure provisions Part 10 of the Rules Practice Note CM 12 – Service of Documents Outside of Australia (Practice Note CM 12) Practice Note CM 20 – Ex Parte Applications for Substituted Service in Bankruptcy Proceedings and Applications for Examination Summonses under Section 81 Bankruptcy Act 1966 and Sections 596A and 596B Corporations Act 2001 (Practice Note CM 20)

Effecting service of documents 5.30 The Rules specify the manner by which different types of entities or parties may be served with documents within a proceeding. Part 10 is divided into several divisions relating to different manners of service: personal (Div 10.1), non-personal (Div 10.2), ordinary (Div 10.3), outside of Australia (Div 10.4), through diplomatic channels etc. (Div 10.5) and under the Hague Convention (Div 10.6).66

Personal service 5.31 Table 5.1 outlines the main practices and procedures regarding the personal service of documents in accordance with Div 10.1 of the Rules. [page 115] Table 5.1: Personal service of documents Party to be served/How service is to be effected Individual

Rule r 10.01

Leave document with the person to be served. Corporation (including liquidator or administrator) Serve document in accordance with s 109X(1) of the Corporations Act 2001 (Cth). In relation to a corporation, leave the document at, or post it67 to, the registered office. Alternatively, deliver a copy personally to a director of the corporation residing in Australia.

r 10.02 (s 109X(1) of the Corporations Act 2001 (Cth) is reproduced in the Note to the rule).

Unincorporated association Leave document at the association’s principal place of business or office with a person apparently of adult age and who appears to be employed by the association.

r 10.03

Organisation Leave document at the office of the organisation shown in records lodged with the Fair Work Commission (under s 233 of the Fair Work (Registered Organisations) Act 2009 (Cth)) with a person apparently of adult age and who appears to be employed by the organisation.

r 10.04

Partnership Serve document on any one partner (or partners), or at the place of business of the partnership by leaving it with a person apparently of adult age and who appears to be employed by the partnership. See various scenarios within relevant rule (eg where partnership already has been dissolved).

r 10.05

Business name proceedings Leave document at place of business with the relevant person or with another person apparently of adult age and who appears to be employed by the business.

r 10.06

Patents Act proceedings Document may be left at the address for service of the respondent under s 221 of the Patents Act 1990 (Cth) (if

r 10.07

it exists) with a person apparently of adult age. Trade Marks Act proceedings Document may be left at the address for service of the respondent under s 215 of the Trade Marks Act 1995 (Cth) (if it exists) with a person apparently of adult age.

r 10.08

Person under a legal incapacity Different rules apply depending on whether the person under a legal incapacity has a legal representative, they are a minor or a mentally disabled person or various other factors.

rr 10.09–10.10

[page 116]

Deemed acceptance of personal service 5.32 Where a person refuses to accept a document served personally under the rules outlined in Table 5.1, service will be deemed to have occurred where, in accordance with r 10.12, the person effecting service puts the document down in the individual’s presence and advises them of the nature of the document.68 It has been held that the rule is not demanding as to what constitutes informing the person served as to the ‘nature’ of the document. The critical thing is that the person is either so informed orally or it is clear on the face of the document, there being no concealment (such as by the document being placed in an envelope).69 Service of an originating application will be deemed where the respondent has filed a notice of address for service, defence or affidavit or has appeared before the Court in response to the originating application. This is provided the respondent has not made an application for the originating application to be set aside under r 13.01 (see r 10.11).

‘Non-personal’ service 5.33 Rules 10.21–10.28 address the issue of the service of documents without the need for personal service. Under r 10.22, a lawyer may accept service of an originating application on behalf of a respondent client where they have authority to do so and the lawyer endorses a note on a copy of the document that they accept service on behalf of the respondent. Once so endorsed by the lawyer, the document is taken to have been served personally. Deemed service may arise in several contexts. First, a party may apply to the Court for an order that a document is taken to be served on a person where it is not practicable to serve it in the manner prescribed by the Rules, and there is evidence the document has been brought to the attention of the person (r 10.23). Secondly, the filing of a document may have the effect of service in cases where: personal service of a document is not required under the Rules; the person to be served has not filed a (current) notice of address for service; and there is evidence there was non-delivery of the document when it was sent to the person’s usual or last known business or residential address (or their address for service).70 Thirdly, a substituted service order may be sought by a party where it is ‘not practicable’ to serve a document on a person in the manner prescribed by the Rules (r 10.24). In such circumstances, that rule permits the Court to order that another method of service be used, certain steps may be taken to give [page 117] notice of the document to the relevant person or that the document is taken to be served on the passing of a particular event or time.

Both rr 10.23 and 10.24 refer to scenarios where personal service upon a person is ‘not practicable’. For a consideration of the authorities on the meaning of that phrase within the context of personal service, see British American Tobacco Australasia Limited v Taleb (No 1).71 This was a case in which the Court, under r 10.23, permitted service of documents to be effected by the applicant leaving a copy of the documents at one respondent’s home address (with a person apparently over the age of 16 years residing there) and at another respondent’s principal place of business. The Court held further that, in accordance with r 10.24, until such time as the relevant respondents filed and served a notice of address for service, any further service of documents may be effected by the applicant sending the documents by registered post or by leaving the documents with a person apparently over the age of 16 years residing or working at the relevant address.72 For the practice and procedure for ex parte applications for substituted service orders in relation to certain bankruptcy and corporations proceedings, refer to Practice Note CM 20.

Ordinary service 5.34 Where personal service of a document in a proceeding is not required, r 10.31 enables service of the document to occur by the following means: sending the document by pre-paid post to the party at their address for service or, where there is no address for service, their usual or last known residential or business address (para (b));73 if service by fax or by electronic communication has been authorised by the party to be served, by faxing it to the fax number or email address (paras (c) and (d)); or sending the document to the email address of a party’s lawyer where the lawyer has filed a notice of address for service in accordance with r 11.01 (para (e)).74

Personal service will also constitute proper service under r 10.31(a). Rule 10.32 sets out the deemed time of service for each of the above listed modes of service, if used. In the case of instantaneous modes of communication (such as fax and email), the Rules do not take service to occur instantaneously, but rather on the next business day after transmission. A document sent by pre-paid post is taken, under that rule, to be served on the fourth business day after mailing, irrespective of the location of the person to whom the document is sent. [page 118]

Service and Execution of Process Act notice 5.35 The Service and Execution of Process Act 1992 (Cth) (SEPA) governs (amongst other things) the service of an initiating process in civil proceedings across State and Territory borders. There is no requirement, under the Service and Execution of Process Regulations 1993 (Cth), to attach any SEPA notice to a document (such as an originating application) served by a party on another party located interstate (or outside of the proper place of the proceeding) in the conduct of a proceeding in the Court. An originating application filed in the Court does not pertain to a civil proceeding in a State or Territory court.75

Service overseas generally 5.36 The service of documents outside of Australia is covered by Div 10.4 of the Rules. Specific types of such service are covered also under Div 10.5 (‘Service through Diplomatic Channel or by Transmission to Foreign Government’) and Div 10.6 (‘Service under Hague Convention’).76 Whether an originating application in a proceeding (or an application brought under Pt 7 of the Rules for pre-litigation orders) may be served on a respondent

located overseas depends upon whether the proceeding is of a type outlined in the list in r 10.42. The items in the list are extensive and have a connection to Australia, thus bringing the potential proceeding within the jurisdiction of the Court. For service of an originating process in New Zealand, refer to Div 2 of Pt 2 of the Trans-Tasman Proceedings Act 2010 (Cth).77 Prior to service of an originating application being effected on an overseas respondent, the applicant may apply to the Court for leave to serve the document on a person in a foreign country in accordance with a convention (including the Hague Convention) or the law of the relevant foreign country (r 10.43(2)). The applicant must satisfy the Court that it has jurisdiction, the proceeding is covered by r 10.42 and that there is a prima facie case for some or all of the relief claimed in the proceeding (r 10.43(4)). The applicant must also file an affidavit in support of the application for leave, addressing the matters outlined in r 10.43(3). In the event of an applicant not obtaining leave of the Court prior to effecting service overseas, an application may be made to the Court for an order confirming the service, subject to the matters in r 10.43(7) being established by the applicant. Similar rules to those just canvassed in relation to the overseas service of an originating application apply with regards to the service of other types of documents in a proceeding upon a person in a foreign country (see r 10.44). [page 119] An application for leave to serve an originating process or other Court document on a person in a foreign country under Div 10.4 of the Rules must also comply with Practice Note CM 12. The application for leave should be supported with evidence of information obtained from the Private International Law Section of the Commonwealth Attorney-General’s Department regarding the most appropriate method of document service in

the relevant country. Practice Note CM 12 provides internet and contact details for the Department. The rules on service of documents generally under Pt 10 of the Rules apply to the service of a document under Div 10.4, except to the extent of any inconsistency with the rules of that division or with any convention or the law of the foreign country (r 10.45). Service of a document in a foreign country need only be effected according to the law of that country, and not necessarily by way of personal service (r 10.46). Except in the case of documents served in accordance with the Hague Convention, an official certificate or declaration stating that service has been effected personally or in accordance with the law of the foreign country will be sufficient proof of service, and there is no need to file an affidavit of service (r 10.47). Service of a document on a person in a foreign country may be deemed in the circumstances outlined by r 10.48. Where attempted service of a document on a person located overseas was unsuccessful, an application for an order for substituted service may be made consistent with r 10.49. The Court will need to be satisfied that leave had been granted to serve outside the jurisdiction.78 Leave was granted, on a nunc pro tunc basis, to serve an originating application and accompanying documents on two respondents in the Republic of Indonesia in Commissioner of Taxation v Zeitouni.79 Leave had not been sought and obtained prior to effecting service. The Court held (at [49]) that such an order should be made under r 1.32, for to require the applicant to apply for leave and to then make a fresh application for substituted service if he was unable to effect personal service upon the respondents in Indonesia would be inconsistent with the overarching purpose of the civil practice and procedure provisions.

Service through diplomatic channels etc. 5.37 Service of documents through diplomatic channels or by transmission to a foreign government in accordance with a relevant convention (other than

the Hague Convention) is dealt with by the provisions of Div 10.5 of the Rules. Where a party has been granted leave to effect service of a document outside of the jurisdiction through such means (see rr 10.43 and 10.44), the party must lodge with the proper Registry the items listed in r 10.51. The party or their lawyer must provide also a written undertaking [page 120] to pay the Court’s expenses incurred in giving effect to the party’s request for service (r 10.52). If the Court’s account for those expenses is not paid within a period of 14 days, then the proceeding may be stayed until it is paid (r 10.52).

Service under the Hague Convention 5.38 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention)80 enables signatory countries to serve documents relating to civil proceedings in an Australian court (known as ‘local judicial documents’) in other signatory countries without the need to go through diplomatic channels. A list of Hague Convention countries and other important details is maintained by the Commonwealth Attorney-General’s Department.81 Division 10.6 of the Rules deals with service of Court documents under the Hague Convention and those provisions prevail over other provisions under Pt 10 to the extent of any inconsistency (r 10.62). When dealing with service under the Hague Convention, the first step is to seek leave for service of a local judicial document in accordance with r 10.43 or r 10.44. Once leave has been granted, a person may then under r 10.64 apply to the Registrar, in his or her capacity as a ‘forwarding authority’ under the Convention. Various supporting documentation must support the request for service abroad, as specified in that rule. A failure by a person to pay the statement of service costs issued by the Registrar under r 10.66(3) within the time prescribed, may

result in the proceeding being effectively stayed and the Registrar taking enforcement steps for payment of those costs (r 10.67). Provided the costs have been paid, upon receipt of a certificate of service, the Registrar must arrange the filing of the certificate and send a copy to the party or their lawyer (r 10.66). The certificate of service certifying that service was effected on a specified date constitutes, in the absence of evidence to the contrary, sufficient proof of service (r 10.68). If such a certificate has been filed in a proceeding and the respondent has not filed a notice of address for service or appeared before the Court, then the Court will need to be satisfied of the matters outlined in r 10.70(2) before it will exercise its power to enter default judgment against the respondent. Default judgment may be entered against a respondent who has not appeared or filed a notice of address for service even if a certificate of service has not been filed or it has been filed but states service was not effected. This may occur where the Court is satisfied of the matters in r 10.71(2). Bearing in mind, however, that default judgment entered against a respondent [page 121] under Div 10.6 may be set aside upon application of the respondent made in accordance with r 10.72. Rules 10.73–10.76 address the situation of a request for service of a foreign judicial document within Australia.

Notice of address for service and submitting notices Civil practice and procedure provisions

Parts 11 and 12 of the Rules Practice Note GEN 3 – Use of Court Forms (Practice Note GEN 3)

Address for service 5.39 By reason of Pt 11 of the Rules, all parties to a proceeding must provide an address for service of documents. The address for service of the applicant is provided within the originating application (Form 15). A respondent is required to file their address for service by way of a notice of address for service (Form 10) (see r 11.07), which replaces the previous requirement under the Rules 1979 that a respondent wishing to defend the matter enter an appearance. The notice is to be filed prior to the first return date (specified in the originating application) and the filing of any document in the proceeding (r 11.06). It must be served upon all of the other parties to the proceeding ‘as soon as practicable’ after it has been filed (r 11.08). Any change to a party’s address for service requires the filing of a Form 28 and service of that form on the other parties ‘as soon as reasonably practicable’ (r 11.09). The address for service must contain the information in r 2.16; namely, the details for the footer of each document filed with the Court (r 11.01(3)).82 An address for service must be a place within Australia at which a document may be left for the party during normal business hours, or a place to which the document may be posted to that party (r 11.01(1)). In the case of a party being represented by a lawyer, the address for service must be the lawyer’s address and the party is deemed to agree that documents may be received at their lawyer’s email address (rr 11.01(2) and (4)). Consistent with r 11.01(5), an unrepresented party agrees to receive documents by way of email where they have provided an email address. The relevant rules do not specify how a party’s agreement to receiving documents by way of email (or by other means, such as by fax, as alluded to by the Note to r 11.01) is to be communicated between the parties or the Court (if it does not otherwise appear on any Court form).

[page 122]

Corporations, partnerships etc. 5.40 A corporation must file its notice of address for service through a lawyer representing the corporation (r 11.02). Respondents who are sued as partners must each serve a notice of address for service in their own name, although the proceeding continues in the name of the partnership (r 11.04). Where a proceeding is commenced by way of an originating application brought against a business name, the person served must file an address for service in their own name, as well as provide a statement setting out the details of any person who carried on the business at the time of the start of the proceeding or when the cause of action arose (r 11.03). An interlocutory application that a filed address for service be struck out as ‘fraudulent’ was refused in Picos v Hyatt Hotel Canberra.83

Submitting notice 5.41 Where a party served with either an originating application or a notice of appeal does not contest the relief sought by the applicant or appellant, then the party may file a submitting notice in accordance with r 12.01(1) and Form 29, stating the following: the party submits to any order made by the Court; whether the party wishes to be heard on the question of costs (which is usually in the affirmative); and an address for service of documents (r 12.01(2)). The submitting notice must be filed, in the case of an originating application, before the return date and in the case of an appeal, within 14 days of service of the notice of appeal (r 12.01(2)). The notice may be withdrawn by leave of the Court (r 12.01(3)). Where a person has a legitimate interest in

advancing arguments in a proceeding (such as where, for instance, the person is a liquidator acting on behalf of creditors), the Court may be inclined to grant the person latitude in making submissions in opposition (or support) of orders being sought by a party, notwithstanding the person filed a submitting notice.84

Access to Court documents Civil practice and procedure provisions Division 2.4 of the Rules Practice Note CM 23 – Electronic Court File and Preparation and Lodgment of Documents (Practice Note CM 23) Federal Court and Federal Circuit Court Regulation 2012 (Cth) (Regulations) [page 123]

Access and inspection 5.42 Once a document is accepted for filing, it becomes part of the formal Court record and the District Registrar of the proper Registry has custody of, and control over, the document and the records of the Registry (r 2.31).85 Rule 2.32 sets out the circumstances in which inspection of documents in a proceeding (that is, of the Court file) may occur. The rule distinguishes between the ability of a party and non-party to a proceeding to conduct an inspection, and also contains general provisions about the actual inspection of documents by these persons. A party can inspect any document other than a document decided by the Court as privileged (or which status is yet to be decided) or a document that has been ordered confidential by the Court (r 2.32(1)). By contrast, a non-party may inspect only those documents listed in

r 2.32(2), and is not entitled to inspect a document that has been ordered confidential or restricted from publication (r 2.32(3)).86 By r 2.32(4), a person may apply for leave of the Court to inspect a document they are not otherwise entitled to inspect. In deciding whether to grant leave under this rule, the Court will seek to balance the competing interests of protecting the confidentiality of an individual and the principle of open justice,87 particularly in proceedings with a broad public interest.88 Indeed, in Valentine v Fremantlemedia Australia Pty Ltd,89 the Court observed that the timely and effective resolution (or disposal) of the case, in accordance with s 37M(2)(d) of the FCA Act, was facilitated by the Court refusing third parties access to documents that revealed the substance of the applicant’s allegations. Such refusal of leave enhanced the successful outcome of the parties’ settlement negotiations and preserved their ‘settlement privilege for so long as those negotiations were being undertaken in good faith and in a timely manner’.90 Affidavit material is not generally included in the list of documents set out in r 2.32(2) to which a non-party may have access for the purposes of inspection. When dealing with requests for access to affidavit and witness statements material, the Court will consider whether the interests of open justice are engaged by the material being admitted into evidence.91 If read into open court, then the material ‘should be available for inspection unless the interests of justice require otherwise’.92 [page 124]

Suppression of confidential and sensitive information 5.43 It is recommended by the Court that the risk of possible infringement of an individual’s privacy, identity theft and of the need for frequent applications for suppression and non-publication orders be avoided by every

effort being taken to eliminate from filed documents all unnecessary personal or sensitive information about an individual.93 Practice Note CM 23 at [6.4]– [6.7] provides a number of helpful suggestions on how this may be achieved in practice. If such steps have not been taken prior to the filing of the document, or there is any concern about the confidentiality or sensitivity of material on the Court file, then it is advisable that consideration be given to the provisions of Pt VAA of the FCA Act.94 Specifically, an application may be made under s 37AH of the Act for a suppression or non-publication order. Such an order may be made on the Court’s own initiative or by the bringing of an application by a party to the proceeding or by any other person with a sufficient interest in the making of the order (see s 37AH(1)). Grounds for the making of a suppression or non-publication order are contained in s 37AG. A number of listed persons (including a news publisher) is entitled to appear and be heard by the Court on the application (s 37AH(2)). It is an offence to contravene a suppression or non-publication order made by the Court under s 37AF (see s 37AL).

Removal 5.44 A person may remove a document from a Registry where: the removal of the document is necessary so as to transfer it to another Registry and a Registrar has given written permission for the removal; or the Court has granted leave to the person to remove the document (r 2.31(2)). Conditions may attach to any such removal and must be observed by the person to whom permission for removal has been granted by a Registrar or the Court (r 2.31(3)).

Copying 5.45 Under r 2.32(5), a person may receive a copy of a document if they are

entitled to inspect the document (in accordance with r 2.32) and they have paid the prescribed fee required by the Regulations. Subject to any exemption of liability to pay fees (see s 2.04 of the Regulations), this fee under Sch 1 [page 125] ordinarily includes both a fee for the production of the file and a charge for each page copied in accordance with the request for copying of a document.

Other documents — transcripts and subpoenaed material 5.46 A party or non-party is not entitled to obtain a copy of any transcript in the proceeding directly from the Court (r 2.32(5)). They may, however, obtain a copy of a transcript (in the absence of a confidentiality order) from the relevant transcript service provider upon payment of the applicable charge.95 The removal, inspection and copying (amongst other things) of documents produced in answer to a subpoena are dealt with under rr 24.19–24.21.96

Online files 5.47 For cases attracting a high volume of media requests for access to Court documents, the Court provides the public electronic access to various documents filed with the Court, including affidavits (once read into evidence). This is done through its website,97 under ‘Case Management Services’.

Commonwealth Courts Portal 5.48 The Commonwealth Courts Portal98 provides access to parties and

nonparties to information about cases in the Court, the Family Court and the Federal Circuit Court. The level of access to case information varies between registered users and non-parties. Parties (primarily through their lawyers) may register on the website so as to view and organise their case files in real time, to view Court listings and orders and the like. For non-registered users, more limited access to information is still available via the Portal by clicking on ‘Federal law search’ in the top, right-hand corner of the homepage screen and then following the prompts. Matters may be searched by name or file number, with access to details such as the parties involved and their legal representation, a list of documents filed (but not actual access to the documents), all listings for the proceedings and to copies of orders made by the Court.

1 See also Acts Interpretation Act 1901 (Cth) s 25C. 2 Practice Note CM 15. 3 See the Dictionary (Sch 1 of the Rules). 4 See rr 2.13(2)–(4) and Forms 1–3. See also generally Practice Note CM 18 and Practice Note CM 21. 5 Rule 2.15(1); Practice Note CM 23 at [7.17]. 6 Rule 2.16; Form 1. 7 Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A). See also at 11.30. 8 Hunter

Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–9 (Wilcox J); Skinner v Commonwealth [2012] FCA 1194 at [12] (Flick J). 9

Skinner v Commonwealth [2012] FCA 1194 at [10] (Flick J); FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13 at [23] (Wilson J), quoting Carter v Stubbs (1880) 6 QBD 116 at 120 (Baggallay LJ). 10 [2012] FCA 1194 at [11]. 11

Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146 (Dawson, Gaudron and McHugh JJ); Schutz Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (No 19) [2013] FCA 408 at [21] (McKerracher J). 12 [2012] FCA 419 (Cowdroy J). 13 Ibid at [10], quoting Samuels v Linzi Dresses Ltd [1981] 1 QB 115 at 126–7 (Roskill LJ). 14

Mavra v Logan (1980) 24 SASR 567; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (No 2) [2012] FCA 419 at [12] (Cowdroy J). 15 [2014] FCA 292 at [19]. 16 Ibid at [20].

17 Rules Sch 1. 18 Naxatu Pty Ltd v Perpetual Trustee Company Ltd [2011] FCA 823 at [5] (Robertson J). 19 SZRMN v Minister for Immigration and Citizenship [2013] FCA 541 at [8] (Flick J). 20 See further the Acts Interpretation Act 1901 (Cth) s 36(1). 21

See also Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91 at [8] (Ross J); Acts Interpretation Act 1901 (Cth) s 36(2). 22 Rules Sch 1. 23 See generally Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171. 24 Ibid. 25 See the definition of ‘file’ in the Dictionary (Sch 1 of the Rules). 26 Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [25]–[26] (Collier J). 27 See . 28 See . 29 Practice Note CM 23 at [7.18]–[7.19]. 30 Practice Note CM 23 at [5.1]. 31 Available at . 32 Practice Note CM 23 at [4.3]. 33 Ibid at [8.3] and see the discussion on the proper place of filing at 5.20. 34 Practice Note CM 23 at [4.4]. See also Federal Court of Australia, ‘Changes to eLodgment’

. 35 Practice Note CM 23 at [4.5]. 36 Ibid at [5.3]. 37 Ibid at [7.3]–[7.5]. 38 Ibid at [7.7]–[7.15]. 39 Ibid at [6.8]. 40 Federal Court of Australia, ‘Guide to Redacting Documents in Electronic Form’

. 41 Rule 2.23(2); Practice Note CM 23 at [4.2]. 42

Federal Court (Bankruptcy) Rules 2005 (Cth) r 6.13 and Federal Court (Corporations) Rules 2000 (Cth) r 11.3, respectively. 43 Admiralty Rules 1988 (Cth) r 26. 44 Rule 34.124(1). 45 Practice Note CM 23 at [6.17]–[6.18]. 46 Ibid at [4.1], [4.7], [7.16]. 47 Ibid at [8.5]. 48 Rules Sch 1. 49

See, for example, Samootin v Hannigan [2012] FCA 462 at [4] (Bennett J), citing Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393.

50 See, for example, Re Application of Mohinder Singh [2014] FCA 76. 51 Rule 1.32; FCA Act s 23. 52 Practice Note CM 23 at [8.4]; the Note to r 2.27. 53

See, for example, Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222 at 230 [49] (Marshall, Cowdroy and Buchanan JJ); Croker v Segal [2014] FCA 944 at [20] (Rares J); Rahman v Hedge [2012] FCA 68 at [5] (Perram J). The review of a Registrar’s decision is addressed in Chapter 11. 54 Practice Note CM 23 at [8.2]. See also discussion at 5.17. 55 Regulations ss 1.05, 5.01. 56

See generally Law Council of Australia, ‘Law Council Welcomes Inquiry into Federal Court Filing Fees’ (Media Release, 27 February 2013). 57 See also at 5.28. 58 Consult the full list in Regulations ss 2.08, 2.11(1). 59 [2014] FCA 672 at [8]–[11] (White J). 60 The payment of setting down and hearing fees is examined more fully at 9.8. 61 See generally Cusack v Federal Court of Australia [2001] AATA 728. 62 Sections 2.15 (1), (2), (4)–(5). 63 See the Note to s 2.15(3) and s 2.19(4). 64 [2011] FCA 449 (Yates J). 65

A ‘business day’ is essentially a day when the proper Registry for the proceeding is open for business. See the definition of ‘business day’ in the Dictionary (Sch 1 of the Rules). 66 See further Acts Interpretation Act 1901 (Cth) s 28A regarding how service may be effected. 67 See ibid s 29 for the meaning of ‘service by post’. 68 See generally Lo Pilato v Giannasca; Re Giannasca [2014] FCA 1108. 69 Re Lucas (recs and mgrs); MSI Holdings Pty Ltd (recs and mgrs apptd) (in liq) [2012] FCA 1486 at [20]

(Logan J); Re Elkateb; Lawindi v Elkateb [2001] FCA 1527 at [12]–[13] (Stone J). 70

See r 10.25. The Dictionary (Sch 1 of the Rules) defines an ‘address for service’ for a person in a proceeding by reference to r 11.01. 71 [2012] FCA 1065 at [24]–[30] (Dodds-Streeton J). 72 See also Combis (Trustee) v Spottiswood [2011] FCA 1082. 73

See the definition of the expression ‘proper address’ in the Dictionary (Sch 1 of the Rules) and the meaning of ‘service by post’ in the Acts Interpretation Act 1901 (Cth) s 29. 74 Regarding a notice of address for service under r 11.01, see discussion at 5.39. 75 See, for example, SEPA s 13. 76 See at 5.37 and 5.38. 77 Note 2 to r 10.41. 78

Re Freehills; New Tel Ltd (in liq) [2008] FCA 762; cf Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035.

79 [2013] FCA 1011. 80 A copy of the Hague Convention is available at . 81 Consult the Department’s website at . Search for ‘Serving a Legal Document

across International Borders’. 82 Practice Note GEN 3 at [5]. See also discussion at 5.5 relating to ‘footers’. 83 [2015] FCA 101. 84

See, for example, Richardson v Lo Pilato (liquidator); Re Trojan Hospitality (ACT) Pty Ltd (in liq) [2014] FCA 888. 85 See further Archives Act 1983 (Cth). 86 See also FCA Act Pt VAA, discussed at 5.43. 87

See, for example, Dallas Buyers Club LLC v iiNet Ltd (No 1) [2014] FCA 1232; Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; Fraser-Kirk v David Jones Ltd [2010] FCA 1060; Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; Y v University of Western Australia [2006] FCA 466. 88 Brown v Health Services Union (No 4) [2012] FCA 1376. 89 [2013] FCA 1293. 90

Ibid at [4] (Mortimer J). See also Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489 at [30] (Rares J). 91 Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals [2014] FCA 1150. 92

Ibid at [14] (Beach J). See also Brown v Health Services Union (No 4) [2012] FCA 1376 at [44] (Flick

J). 93 Practice Note CM 23 at [6.4]. 94

Part VAA replaced s 50 of the FCA Act dealing with suppression and non-publication orders. The changes came into effect on 12 December 2012. 95 Note 2 to r 2.32(5); Federal Court of Australia, ‘Party, Non-party and Media Access to Transcript’

. 96 See also Federal Court of Australia, ‘Access to Court Files & Transcript: Subpoenas & Exhibits’

. 97 See at . 98 Available at .

[page 127]

Chapter 6

CONDUCTING PROCEEDINGS This chapter considers: • •

•

•

•

Streamlining litigation …. Directions hearings and case management …. What to expect at directions and similar hearings …. Compliance with directions, orders and timetables …. Electronic aids to litigation …. Fast Track …. Respondent’s case …. Notice of address for service and submitting notice …. Defence …. Cross-claims …. Amendment of cross-claim …. Genuine steps statement …. Interlocutory applications …. The requirements as to form and service …. Urgent and other hearing dates …. Avoiding unnecessary applications …. Is compliance with the Civil Dispute Resolution Act necessary? …. Pleadings …. The importance of pleadings …. The formal requirements ….

6.1 6.2 6.2 6.3 6.4 6.5 6.6 6.6 6.7 6.8 6.9 6.10 6.11 6.11 6.12 6.13 6.14 6.15 6.15 6.16

•

•

Particulars …. Application to amend …. Time-barred causes of action …. Application to strike out …. Affidavits …. Requirements for affidavit material …. Witness statements and outlines of evidence …. Discovery of documents …. The benefits and limitations of discovery …. Standard discovery under the new regime …. Claims of public interest and privilege …. ‘Fast Track’ discovery …. Non-standard discovery …. How discovery is given …. Particular discovery ….

6.17 6.18 6.19 6.20 6.21 6.21 6.22 6.23 6.23 6.24 6.25 6.26 6.27 6.28 6.29 [page 128]

•

Electronic discovery …. Discovery from a non-party …. Production for inspection by parties …. Subpoenas and notices to produce …. Issuing a subpoena for production of documents …. Leave is necessary …. Setting aside a subpoena …. Failure to comply …. Costs and expenses of compliance …. Dealing with a notice to produce …. Circumventing the discovery procedures ….

6.30 6.31 6.32 6.33 6.33 6.34 6.35 6.36 6.37 6.38 6.39

•

•

•

Interrogatories …. Administering interrogatories under the Rules …. The futility of interrogatories? …. Objections to answering any interrogatory …. Admissions …. Admission of facts or documents …. Costs …. Good etiquette and behaviour …. Communicating as an officer of the Court …. Etiquette ….

6.40 6.40 6.41 6.42 6.43 6.43 6.44 6.45 6.45 6.46

Streamlining litigation 6.1 The conduct of proceedings requires specific knowledge of not only the relevant civil practice and procedure provisions but, as importantly, of the case management practices and philosophies of the Court. It was explained in Chapter 1 that the Court has adopted an innovative stance in relation to case management, partly in response to calls for reform of the high costs and inefficiencies of protracted federal litigation. Certain types of proceedings are appropriate for the Fast Track List, one of the strongest advances of the Court in recent years for the streamlining of litigation brought before it. Since 2010, there is also of course the requirement to promote the overarching purpose of civil litigation contained in ss 37M and 37N of the FCA Act, the spirit of which permeates the Rules. This chapter examines how proceedings are conducted most efficiently, expeditiously and cost-effectively in accordance with the law and the Court’s approaches to case management. Thus, for example, there should be attention paid to the need to comply diligently with directions and timetables set down by the Court. It is argued that interlocutory applications should only be made when necessary for the just disposition of a dispute. Discovery and interrogatories will only be permitted in appropriate cases, and the use of

subpoenas and notices to produce as alternatives to discovery is to be discouraged. Pleadings must be drafted in a manner that most succinctly, yet with sufficient particularity, encapsulates the case of the pleading party so that [page 129] the other side may understand what case is to be answered. Regardless of what path the proceedings take, and no two proceedings will be identical, as officers of the Court lawyers must always be mindful of how they conduct their client’s case and themselves.1

Directions hearings and case management Civil practice and procedure provisions Part 5 of the Rules Practice Note CM 1 – Case Management and the Individual Docket System (Practice Note CM 1) Practice Note CM 22 – Video Link Hearing Arrangements (Practice Note CM 22) Practice Note GEN 3 – Use of Court Forms (Practice Note GEN 3) Practice Note CM 8 – Fast Track (Practice Note CM 8)

What to expect at directions and similar hearings 6.2 Upon the filing of an originating application within the original jurisdiction of the Court,2 the Registrar will endorse on the document a date and place for the first return date for the proceeding. It is incumbent upon the parties, either personally or through a lawyer, to attend the Court on that occasion and at any hearing (or conference) for the proceeding.3 A failure to

so attend may result in the absent party being in default under r 5.22(c). Where the applicant is in default, the respondent may apply to the Court for an order that (amongst other things) the proceeding be stayed or dismissed (r 5.23(1)(b)). If the respondent is in default on this ground, the applicant may apply for various orders, including for judgment against the respondent (r 5.23(2)). Arguably, though, the exercise of discretion under r 5.23 would be harsh where the proceeding is at an early stage, there is no history of noncompliance and the party clearly wishes to be heard.4 Conversely, an applicant with a history of non-attendance at directions hearings on two occasions might be regarded as failing to prosecute the proceeding and face a dismissal order.5 Under r 5.08, a party also may apply to the Court at a directions hearing to hear and determine the proceeding then and there, or to dispose of an [page 130] originating application or cross-claim. The Court will consider the prejudice caused to the other side should this occur. The approach to conducting directions hearings is different in the Court compared to many other courts insofar as the Judge will often, as part of the individual docket system,6 have the matter allocated to their docket from an early stage of the proceeding. He or she will acquire an intimate knowledge of the matter and expect the parties to conduct the proceedings in the manner that best promotes efficiency based on the specific complexities of the issues in dispute. Additionally, some Judges have their own set of preferred standard directions and ways of conducting proceedings, with which the parties and their lawyers are expected to be familiar and to adhere. A lawyer should not assume that the first return date is a mere formality and at which the Judge will not expect any real progress to be made for the setting down of a timetable for the conduct of the proceeding. Rather, he or

she should always be fully prepared when appearing before the Court, including being across the facts and legal issues of the matter, both agreed and in dispute, so as to be able to answer any questions from the Bench as directly and competently as possible. In particular, a solicitor appearing before the Court should be able to represent their client on that occasion and not hide behind the fact that ‘I do not have the daily conduct of this matter’ or ‘counsel has been briefed’. While the Court will seek to do justice as between all the parties wherever possible, an adjournment will not be granted necessarily because one party’s lawyer is ill-prepared to proceed. It is also sensible to adopt the practice of being physically prepared for directions and other case management hearings, such as by bringing along a copy of the Rules and the FCA Act (or other rules or legislation pertinent to the matter), the lawyer’s file (or at least relevant segments of it), the lawyer’s diary and, when a hearing date is required, the available dates of counsel briefed in the matter. At any return date, including the first directions hearing, the parties should be prepared to address with the docket Judge any or all of the principles outlined in [3.2] of Practice Note CM 1.7 In particular, issues may arise in respect of identifying, and ascertaining the degree of complexity of, the real issues in dispute, which may require the narrowing of the scope of those issues. This may be achieved by the Judge allowing only necessary and appropriate interlocutory steps in the proceeding. Generally, the proceeding will be approached from the perspective of setting a hearing date as early as possible and, in the interim, exploring early options for alternative dispute resolution (such as mediation before a Registrar of the Court). To this end, the parties and their respective legal representatives have an obligation to [page 131] facilitate the overarching purpose of the conduct of civil proceedings before

the Court in accordance with s 37N of the FCA Act.

Compliance with directions, orders and timetables 6.3 The Court may make any directions for the management, conduct and hearing of a proceeding (r 5.04). This includes an array of directions on the matters listed in the table in r 5.04(3), and ranging from pleadings to the attendance of the parties at a case management conference with a Judge or Registrar to consider the most economic and efficient means of bringing the proceeding to trial. Short minutes of consent orders, whether provided to the Judge in Chambers or handed up in court, are always the most cost-effective and time-saving means of setting down a timetable for the management of the proceeding.8 When setting down a timetable for compliance with directions and orders, it is beneficial for directions to refer to specific dates for the doing of acts and things, rather than to use more ambiguous terminology such as ‘file and serve within seven days’. The goal of a party and its lawyer should be to seek to comply with formal time limits under the Rules and timetables set by the Court whenever possible and to only depart from the Rules and directions in exceptional or unavoidable circumstances. Undeniably, a lawyer should not assume that the consent of the other side will serve as an automatic justification for any noncompliance with a direction, as this ignores the fact that the direction was made by the Court. To quote Logan J in Prosperity Group International Pty Ltd v Queensland Communication Company Pty Ltd,9 ‘directions in respect of interlocutory steps in a case given by a judge are not aspirational statements’. In Quin v Buchanan, Re Queensland Roads, Earthmoving and Civil Construction Pty Ltd (in liq),10 the Court noted that lawyers must act in a cooperative manner and communicate promptly to each other and to the Court concerns about significant non-compliance with the Court’s orders. Ideally, any envisaged non-compliance with the timetable directed or ordered by the Court in a proceeding should be notified to the Court prior to the

expiry of the relevant time period and, as appropriate, the matter sought to be re-listed for directions to explain the non-compliance, short minutes of consent orders prepared (if the other side consents) or a formal application for extension of time made (with supporting affidavit) if the other side does not consent to a variation of the timetable and the Court regards a formal application as appropriate. When exercising its discretion to extend the time for compliance, the Court will want to be satisfied that there is adequate explanation for the delay or non-compliance, the other side will not suffer any prejudice and that there is an arguable case. It was held by the Full Court in Lenijamar Pty Ltd v AGC [page 132] (Advances) Ltd11 that even where the most recent non-compliance by an applicant is minor, the cumulative effect of their defaults may be sufficient to satisfy the Court that the party is either unwilling to cooperate or is unable to do so. Where this conclusion is reached, fairness to the respondent would require the summary dismissal of the proceeding. So, too, a respondent may face default orders where it does not ignore the Court’s orders outright but there is a delayed compliance of sorts. In that situation, and in recognition of the inability to make efficient use of limited time in court as a result of the ‘casual non-compliance’, indemnity costs may be awarded against the respondent to be taxed and paid forthwith.12

Electronic aids to litigation 6.4 There are two notable ways in which the Court uses technology in appropriate cases during directions (and other) hearings to ensure that there is a just, timely and efficient use of the resources of the Court and the parties to promote dispute resolution. The first way is the use of a video link hearing (or video-conference facilities) and the other way is the online eCourtroom.

Both methods are reflective of the fact the Court is a national court and that the parties, lawyers, witnesses and Judge at times may be in separate geographical locations. The eCourtroom facility is also a part of the evolution of the use of online technology in the conduct of litigation.13 The procedures for use of a video link are highly detailed in Practice Note CM 22 and in the videoconferencing guide published by the Court on its website.14 These procedures complement the statutory provisions on the use of video and audio link during the conduct of proceedings contained in ss 47A–47F of the FCA Act.15 Practice Note CM 22 deals with the nature of the facilities and equipment and with the procedures for requesting and arranging the use of a video link for the conduct of a proceeding, including the ‘attendance’ of witnesses or making of submissions. A direction or order from the Court must be obtained before the arrangements can be put in place. While it may be a pragmatic approach to enabling an attendance or appearance during a directions hearing or at trial, there are a number of practical considerations that apply (such as the administering of the oath for a witness, the need for other equipment such as a document camera and the like). Other than where the use of the video link facilities is solely for the convenience of the Court, which occurs for instance when a Judge located interstate wishes to preside [page 133] over a directions hearing remotely, the party who requested the video link will be responsible for the cost associated with its arrangement.16 The Court may be prepared to allow attendance during a directions or other procedurally minor hearing by way of audio link (telephone), but this will usually only be as a last resort if another avenue for the more direct involvement of the witness, party or lawyer is not available. As explained by the Court on its website,17 the virtual eCourtroom is an

online courtroom used by the Court in certain types of matters, including ex parte applications for substituted service in bankruptcy proceedings and for examination summonses, and in the giving of directions and orders in other types of general federal law matters. There is integration between eCourtroom and eLodgment that facilitates the electronic filing of documents. Users must be registered to use the facility, and this also enables access to the transcript facility of all messages posted by the presiding judicial officer and parties. Members of the public may view the transcript, but not the documents posted or filed during the conduct of the matter through eCourtroom.

Fast Track 6.5 Since May 2007, the Court has sought to streamline its procedures in certain types of proceedings with the motivation of significantly reducing the costs and delays of litigation. It has done so by the gradual implementation and use of the Fast Track List across all of its Registries. The underlying purpose of this approach to case management is summarised well in the following statement by the Court: Cases cannot be made less complex, but judges can control the conduct of a case to a much greater extent thereby ensuring efficiency.18

Although the Fast Track procedure has been around for several years and the Rules were revamped in 2011, surprisingly they are silent on it.19 For guidance on the proper procedures to follow, recourse must be had to Practice Note CM 8 and to a series of administrative notices issued by each of the Registries of the Court.20 Practice Note CM 8 is referred to as the ‘Fast Track Directions’. An order may be made at the first directions hearing (described by the practice note as the ‘Scheduling Conference’) to the effect that compliance with the requirements of the Rules is dispensed with to the extent they are inconsistent with the Fast Track Directions as they apply to that proceeding.21

[page 134] The Fast Track Directions themselves are detailed and extensive. They address most facets of the conduct of the proceeding, including discovery (Pt 7)22 and interrogatories (Pt 8). According to Pt 2 of Practice Note CM 8, the Fast Track Directions will generally apply to commercial-related proceedings (with the exception of proceedings that would be allocated to admiralty, corporations or taxation panels of the Court), the trial of which is not likely to exceed five days. A new Fast Track proceeding when commenced will be clearly marked ‘FAST TRACK APPLICATION’ in the manner prescribed by the Fast Track Directions. An existing proceeding may be transferred from a current docket Judge into the Fast Track List by order of the Court, either of the Court’s own motion or where the parties are in agreement.23 By the same token, a matter in the Fast Track system can be removed and continue on the pleadings by Court order.24 The Scheduling Conference occurs some six weeks into the proceeding, or earlier in urgent cases. It is conducted in a less formal manner than a typical directions hearing, but the parties are required to be prepared to identify the issues in dispute. A timetable is set for the conduct of the proceeding and a date for mediation is likely to be allocated. As the Fast Track Directions are concerned with the streamlining and expedition of procedural steps in litigation, it is understandable that pleadings are abolished in favour of a ‘case summary’, interlocutory applications are usually dealt with on the papers, there is a substantial reduction in any permitted discovery and interrogatories are not permitted except in exceptional cases. A hearing date will be set between two to five months from the date of the Scheduling Conference, if not sooner (Pt 6 of the Fast Track Directions). A pre-trial conference is held some three weeks prior to the scheduled trial date as a means of resolving any outstanding matters in preparation for trial (Pt 10). Fixed blocks of time are allowed to each party for oral submissions and dealing with witnesses (Pt 10).

The Court endeavours to deliver its judgment no longer than six weeks after the end of the trial (Pt 12).

Respondent’s case Civil practice and procedure provisions Rule 5.02 and Pts 11 and 12 of the Rules – Address for Service/Submitting Notice Rule 16.32 of the Rules – Defence Part 15 of the Rules – Cross-claims and Third Party Claims Section 7 of the Civil Dispute Resolution Act [page 135]

Notice of address for service and submitting notice 6.6 When a respondent is served with an originating application in the proceeding, r 5.02 requires that party to file a notice of address for service (Form 10) before the first return date fixed in the originating application. The rule does not expressly state that the notice must be filed prior to any other step being taken by the respondent in the proceeding, but see r 11.06. This requirement is seen in other provisions of the Rules, such as in r 36.07 in relation to appeals. Alternatively, a respondent who does not seek to contest the relief sought in the originating application (or a notice of appeal) may file a submitting notice (Form 29). Under the Rules 1979, a respondent was required to enter an appearance, but this has been replaced under the Rules by a notice of address for service. Regarding the nature and other requirements of a notice of address for service and a submitting notice, see the discussion on Pts 11 and 12 of the Rules at 5.39–5.41.

Defence 6.7 By virtue of r 16.32, a respondent is entitled to file a defence (Form 33) within 28 days of being served with a statement of claim. This is a departure from the regime under the Rules 1979, where the relevant period was much shorter (namely, seven days after the first directions hearing). A failure to file a defence, particularly where the Court has directed that one be filed within a specified period, will be regarded as a default for the purposes of r 5.22 (a failure to defend the proceeding with due diligence) and r 5.23(2) (orders where respondent is in default). Rule 5.21 provides for the seeking of selfexecuting (or ‘guillotine’) orders by a party to the Court, including that the respondent’s defence be struck out or that judgment be given against the other party unless that party does an act or thing within a certain time. A mere technical omission will not usually activate a self-executing order,25 but caution should be exercised by a respondent that a series of omissions and non-compliances do not add up to a serious transgression. In Bitek Pty Ltd v IConnect Pty Ltd,26 the respondents’ failure to take any step in the proceeding (including the filing of a defence) was regarded by the Court as indicating they did not intend to cooperate and participate in the future. This the Court regarded as having put the applicant to unnecessary expense, costly for the public purse and prejudicial to the administration of justice. Default judgment was entered against the respondents. It therefore behoves a respondent to ensure that proper steps are taken at every stage of the proceeding to avoid a perception that it is failing to defend the claims made against it. [page 136] It must also be remembered that a respondent has the right to defend vigorously a claim brought against it irrespective of the quantum of the claim or the overarching purpose under s 37M of the FCA Act. This point was

made by Flick J in Denison v Boart Longyear Pty Ltd,27 when his Honour mused that ‘capitulation, because it is less expensive than litigation, is far removed from “the just resolution” of the dispute’. Consult also the material on pleadings at 6.15–6.20.

Cross-claims 6.8 A respondent may under r 15.01 file a cross-claim either against the applicant (for relief to which the respondent would be entitled in a separate proceeding against the applicant) or another respondent or person (for relief, including contribution or indemnity, related to the subject matter of the proceeding). The cross-claim must be of a nature and seek relief that could be brought in the Court in a separate proceeding;28 that is, the Court must be seized of jurisdiction to hear and determine the cross-claim. Division 15.1 spells out the practice and procedure for the making of a cross-claim, including its filing and service. Essentially, a respondent wishing to cross-claim against a party or person must file a notice of cross-claim (Form 31) in compliance with the requirements of r 15.02. The notice must be accompanied by a statement of cross-claim or affidavit (r 15.06) and state the relief claimed in accordance with r 15.07. In University of Western Australia v Gray (No 9),29 an application for leave to cross-claim against a non-party to the proceeding (that is, a ‘person’) was dismissed because of the stage of the proceeding and the fact the joinder of a new party would be ‘likely to unduly complicate and extend the trial’. It would add to the costs of the proceeding and potentially to the duration of the trial. Any cross-claim should be filed by the respondent at the same time as the filing of the respondent’s defence or affidavit in reply in the principal proceeding (r 15.04). An extension of time for filing may be made under r 15.05 by applying to the Court for leave and providing an affidavit in support with a draft notice of cross-claim. One case in particular illustrates the procedural challenges that a proceeding may encounter when dealing with

extensions of time to file a cross-claim. In De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 3),30 Tracey J granted leave to three respondents for the filing of a cross-claim against another respondent seeking contribution or indemnity. His Honour said (at [20]):31 [page 137] The applications … were made at a time which will allow the proposed cross-claims to be accommodated with minimal difficulty within the existing pretrial arrangements. The efficient and just conduct of the proceeding will not be impeded by grants of leave. The further the case proceeds towards trial the less will be the weight that this consideration will bear. It cannot, therefore, be assumed that any future applications by the respondents to file cross-claims … will be treated in the same manner.

Three months later, further applications were made for an extension of time in which to file notices of cross-claim.32 The Court again granted leave because it was held (at [17]–[19]) that this did not impede the efficient and just conduct of the proceedings, yet it repeated the warning that the closer the proceeding approaches to trial, the more difficult it will be for a respondent to succeed in any belated application for leave to cross-claim. The relevant respondents were, however, ordered to pay each proposed cross-respondent’s costs of the leave applications because of the unexplained delay in bringing them (a delay which caused unnecessary expense to the proposed crossrespondents). The question of leave to file further cross-claims continued in that proceeding and raised more procedural issues for the management of the case, as seen in two subsequent judgments of the Court in this matter.33 To the extent possible, a cross-claim is to be conducted in the same way as the principal proceeding (r 15.10(1)(a)). It may proceed even when the principal proceeding is stayed, dismissed or discontinued (r 15.11(b)).

Amendment of cross-claim 6.9 As with any other pleading, the Rules contemplate that a cross-claimant may on occasion seek to amend the cross-claim. An application may be made

to the Court for leave to amend a notice of cross-claim for any reason (r 15.15). A number of such possible reasons are listed in r 15.15(1), including so as to correct a defect or error that would otherwise prevent the Court from determining the real issues raised, and so as to add or substitute a new claim for relief. Rules 15.15(2) and (3) outline the specific circumstances in which leave may or may not be sought if the application is made after the end of a relevant period of limitation applying at the date the proceeding was commenced. If leave is granted to amend, then the procedure for making the amendment is prescribed in r 15.17. The amendment must occur within the period specified by the order of the Court or 14 days after the date on which the leave order was made (r 15.18). Leave to amend a cross-claim was granted in Tada Constructions Corporation Pty Ltd v JP Dixon Real Estate Pty Ltd (No 3)34 so as to permit the respondent to [page 138] accurately put its case. In Ogenic Ltd v Deloitte Touche Tohmatsu,35 French J (as his Honour then was) remarked on the need to ensure that case management principles do not dominate the ultimate objective of proceedings to decide cases according to law (including to ensure that an entire dispute is able to be dealt with). At the same time, consideration should be given to what impact or prejudice a proposed amendment to a pleading will have on other parties. In many cases, it may be easy to make the order granting leave to amend, with any prejudice suffered being remedied by an appropriate costs order. The principles regarding the amendment of pleadings generally are examined further at 6.18.

Genuine steps statement

6.10 Where an applicant has filed a genuine steps statement in accordance with the requirements of both the Rules and the Civil Dispute Resolution Act,36 the respondent must file a genuine steps statement (Form 11) before the first return date for the proceeding (r 5.03(1)). The electronic filing mechanisms of the Court may mean that this date is not strictly fixed in the originating application and so the operation of that rule is not triggered.37 In Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2),38 the Court ultimately accepted the defendant’s submission that there is no statutory obligation upon the defendant (or respondent) to file a genuine steps statement if the plaintiff (or applicant) has failed to comply with its obligations to do so first. The genuine steps statement must comply with s 7 of that Act and include the reasons for any claim of the respondent that the applicant’s steps to resolve the dispute were not genuine (r 5.03(2)). The statement must not exceed two pages in length (r 5.03(3)).39

Interlocutory applications Civil practice and procedure provisions Part 17 of the Rules

The requirements as to form and service 6.11 Under the Rules 1979, the making of an application during the conduct of a proceeding occurred by the filing of a ‘notice of motion’. That [page 139] language has changed under the Rules to a party making an ‘interlocutory application’. As the name suggests, an interlocutory application is the

mechanism by which a party in an existing proceeding may apply to the Court for orders of an interlocutory nature, such as for an extension of time in which to file a document, for an adjournment or to do an act or thing. It may also be used by an opponent, as in where a respondent seeks the summary dismissal of an applicant’s proceeding under s 31A of the FCA Act. The Dictionary40 defines an interlocutory application to be ‘an application, other than a cross-claim, in a proceeding already started’. Applications brought prior to the commencement of a proceeding in the Court are examined in detail in Chapter 2.41 A party seeking an interlocutory order must make an application in accordance with r 17.01 (see r 5.07). The full requirements for an interlocutory application are set out primarily in Pt 17. Under r 17.01, an application may be brought either in writing (Form 35) or orally at a hearing. If made in writing, the application must state each order that is sought and ‘if appropriate’ be accompanied by an affidavit.42 It is not explained in that rule when an affidavit will be regarded as ‘appropriate’, but it may be assumed that an affidavit will be required in all cases of a written application other than if a party wants to rely on correspondence or other documents, the authenticity of which is not in dispute between the parties.43 The interlocutory application and affidavit must be served on any other party at least three days before the return date for the hearing of the application (r 17.01(2)). A party may apply to the Court under r 17.03 for an order that the interlocutory application be served on a non-party or on a party who has so far failed to file a notice of address for service. By the same token, an interlocutory application may be heard and determined in the absence of a party in the situations canvassed in r 17.04; namely, where service is not required or has been dispensed with by the Court or service was actually effected but the served party does not appear. In avoiding the expense and delay of bringing a separate interlocutory application, a party might seek orally directions or orders from the Judge or Registrar at a directions hearing. If this is considered unacceptable for

whatever reason, such as where contested issues are raised, then the judicial officer will indicate whether something more formal is required to be filed before the Court will be prepared to consider the orders sought. An applicant may also include a claim for interlocutory relief within an originating application for final orders (see r 8.03(2)). [page 140]

Urgent and other hearing dates 6.12 When filing an interlocutory application, a party may expect to provide to the Court the following information to aid the listing of the hearing of the application: whether it is contested or ex parte; the urgency or otherwise of the matter (can the matter await the next scheduled directions hearing?); an estimate of the duration of the hearing; and counsel’s available hearing dates. The Court is mindful of the need to set down interlocutory applications for hearing as soon as practicable, but the hearing date will often be dependent upon the availability and convenience of the docket Judge. If the matter is urgent and either has not as yet been allocated to a specific docket Judge or that Judge is unavailable, then the hearing of the application may be set down before another Judge for prompt hearing and determination. Genuinely urgent commercial and corporations matters are listed before a Commercial and Corporations Duty Judge based on a regular roster system. As the National Court Framework evolves, similar listing arrangements will apply under new and revised practice notes pertaining to the other National Practice Areas.44

Avoiding unnecessary applications 6.13 Throughout the Rules and in some places within the FCA Act, references are made expressly or by implication to an interlocutory application being the appropriate way by which a party or person may apply for various orders. As seen later in this chapter, applications for leave in relation to discovery, the administering of interrogatories and for the amendment or striking out of pleadings are all reliant upon the bringing of an appropriate interlocutory application. Indeed, some interlocutory applications, primarily those designed to narrow the issues in dispute or for the early finalisation of the proceedings, are to be encouraged for promoting the overarching purpose of civil litigation by saving unnecessary expenses and hastening the just resolution of disputes. Even so, care must be exercised when deciding whether to make an interlocutory application to the Court, in preference to simply requesting the re-listing of the proceeding for further directions. A number of questions arise when contemplating the bringing of an interlocutory application. Is the interlocutory application truly necessary (what is the position of the other side)? Is it the most efficient way to deal with an issue? Will it add unnecessary expense and delay to the finalisation of the substantive proceeding? It should be appreciated that an interlocutory [page 141] application has the potential to create ancillary proceedings. At worst, an interlocutory application may result in an application for leave to appeal an interlocutory judgment, an appeal if leave is granted and the taxation of costs (with the potential for a review and appeal flowing from that process). The risk that the Court will regard an interlocutory application as hindering, rather than facilitating, the process of dispute resolution, is seen in the following case example. In Quin v Buchanan, Re Queensland Roads, Earthmoving and Civil Construction Pty Ltd (in liq) (Quin),45 a plaintiff, faced

with a delay on the part of the defendant to file and serve a defence, made an interlocutory application for default judgment under r 5.23(2). Although the application was dismissed by consent because a defence was filed subsequent to the filing of the interlocutory application, Edelman J expressed concern (at [1]) about the conduct of the litigation on the part of both sides. Specifically, his Honour perceived (at [13]) that, although the bringing of the application was understandable, the proper and efficient course for the plaintiff to have taken should have been to request the Court to re-list the matter for directions, which could have occurred within a few days and would have informed the Judge early of the reasons for non-compliance. This preferable approach to litigation would lead to less time being wasted, less expense incurred and ‘an unnecessary interlocutory application would have been avoided’ (at [13]). The Court in Quin, above, also regarded (at [14]) that the approach taken by the lawyers for the defendant was not devoid of blame insofar as it was premised on the notion that it was up to the plaintiff to consent to an extension of time for compliance with the timetable, rather than to communicate with the Court the reasons for the delay or to propose consent orders to vary the time for compliance. The outcome (at [15]) was that each party was ordered to bear its own costs of the interlocutory application and that the (originally defaulting) defendant pay the plaintiff’s costs of the directions hearing. Although speculation has been raised during submissions in some proceedings, there is no doubt that interlocutory applications must be conducted, heard and determined in accordance with the overarching purpose of the civil practice and procedure provisions as expressed in Pt VB of the FCA Act.46 In Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs,47 and contrary to the submissions of one party, the Court made it clear that the introduction of s 37M of the FCA Act has not served to shift emphasis away from the justice of the case and that, moreover, the need to conduct civil litigation (including interlocutory

applications) quickly, inexpensively and efficiently ‘remains subject to the paramount importance of the “just resolution of disputes”’. [page 142] Once it becomes apparent to a party that another party to the proceeding is acting under a misapprehension in respect of an important question but they choose not to inform the misguided party, such conduct may be held, as it was in Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd (No 2),48 to be inconsistent with the achievement of the overarching purpose in s 37M of the FCA Act and with the obligations of that party under s 37N(1) of that Act. This was the philosophy of the Court even prior to the introduction of those provisions, as reflected in the judgment of Allsop J (as his Honour then was) in White v Overland.49 In that case, his Honour (at [4]) counselled that: [W]here it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said.50

In such circumstances, the making of an interlocutory application for orders against the misguided opponent may have a tendency to ‘back-fire’.

Is compliance with the Civil Dispute Resolution Act necessary? 6.14 It was noted earlier in this chapter (at 6.10) that the Civil Dispute Resolution Act requires parties to certain proceedings in the Court to each file a genuine steps statement outlining the sincere steps taken by that party to attempt to resolve the dispute before proceedings are instituted. In Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v

Returned & Services League of Australia (Queensland Branch) (No 2),51 the question arose whether the Civil Dispute Resolution Act or ss 37M and 37N of the FCA Act require the filing of a genuine steps statement or evidence of a genuine attempt by the parties to resolve contentious issues prior to the filing of an interlocutory application in an existing proceeding. Justice Collier held (at [11]–[27]) that based upon considerations of (amongst things) statutory interpretation, any such obligations arise under the Civil Dispute Resolution Act prior to the commencement of proceedings in the Court, and not afterwards. To require the applicant to an interlocutory application to file a genuine steps statement prior to bringing the application, said her Honour (at [24]), would have the negative effect of potentially delaying progress of the commenced proceedings, which is contrary to the principles of efficiency in s 37M and would result in increased costs for the parties. [page 143]

Pleadings Civil practice and procedure provisions Part 16 of the Rules – Pleadings Part 15 of the Rules – Cross-claims and Third Party Claims

The importance of pleadings 6.15 Pleadings are a series of documents filed in a proceeding designed to set out the issues of claim and contention between the parties. Such documents typically include a statement of claim, a defence and a reply (and including any proper amendments to those documents). Where a cross-claim has been filed, and a statement of claim accompanied the originating application filed

by the applicant, a statement of cross-claim also will be filed by the crossclaimant (r 15.06). The importance of well-drafted pleadings should not be underestimated. As pointed out by Justice Rares in a paper expressing the judicial perspective on the subject,52 a precise formulation of the issues in the statement of claim forms the source from which the rest of the litigation will flow, including the obtaining of an order for discovery and the issue of subpoenas. The other benefits of a properly drafted pleading, as identified by his Honour, are that: it meets the requirement of procedural fairness by not ambushing an opponent; it identifies and refines the issues for determination such that the relevance and admissibility of evidence may be determined early in the proceedings; the expense and delay of proceedings will be diminished; and the Court is assisted (at first instance and on any appeal) in being informed of what issues are involved in the case; for example, the Full Court may take the view that an issue not pleaded in the case below may not be raised on appeal.53 Clearly, the overarching purpose of litigation in the Court is best served by the prompt identification and refinement of complex and competing issues between the parties. The Court is cognisant of this in its approach of requiring the parties to identify the real issues in dispute as quickly as possible. This was noted by Siopis J in Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd,54 to be so that ‘litigation is conducted speedily and inexpensively; and also, by reducing interlocutory disputes and adjournments, to assist the Court in disposing of matters as efficiently as possible’.55 Furthermore, the significance [page 144]

of pleadings to the achievement of the overarching purpose of civil litigation in the Court was identified by Perram J in Stewart v Deputy Commissioner of Taxation56 in terms of a pleading that departs from its ‘principal purpose of procedural fairness’ will engender ‘expense, delay and the wastage of public resources’. Such a pleading will not be countenanced by the Court. Of particular concern to the Court in Modra v Victoria57 was the potential for an imprecise pleading to cause the Court to fall into error when attempting to ascertain whether there are issues on which the party can rely lawfully. It was also cognisant of the fact that an imprecise pleading will require an opposing party to do considerably more work than normally required to determine whether to gain evidence to meet all that is pleaded in the deficient pleading. The end result is that ‘a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense’.58 The practice of parties leaving a ‘footprint in correspondence’, as a means of identifying the issues in dispute, is a practice ‘firmly discouraged’ by the Court.59 It will step in to perform its duty whenever necessary,60 whether to strike out a pleading or allow for further particularisation or amendment. As seen at 6.18 and 6.20, however, there is a certain degree of flexibility in the approach of the Court to the issue of ‘inadequate’ pleadings.

The formal requirements 6.16 Having regard to the above function and benefits of properly drafted pleadings, how is it known whether a set of pleadings meets this measure? The procedural requirements for pleadings are addressed primarily in Div 16.1.61 The most salient of those requirements may be summarised as being: The pleading is to state the name of the person who prepared it and, if that person is a lawyer, a signed certificate is to be included (within the relevant Court form for the pleading)62 certifying the proper basis for the pleading (r 16.01).

Each paragraph of the pleading must deal with a separate matter, be brief, identify the issues the party wants resolved, state the material facts on which the party relies and state the relevant provisions of any statute relied upon and the specific relief sought or claimed (r 16.02(1)). In Polar [page 145] Aviation Pty Ltd v Civil Aviation Safety Authority,63 the Full Court held that the pleadings in that case had failed to disclose a cause of action in negligence (the appellants had not adequately pleaded the alleged duty and were not entitled to rely on an anticipated defence to possibly perfect a deficient pleading). All the facts which give rise to the complete cause of action or defence are regarded as ‘material’.64 Particulars are not strictly statements of material facts and cannot ‘countenance the omission of material facts from a statement of claim regarded as a whole’.65 It must not contain any material that is scandalous, frivolous or vexatious (rr 16.02(2)(a)–(b)). The pleading must not be evasive or ambiguous, likely to cause prejudice, embarrassment or delay, fail to disclose a reasonable case or be an abuse of process (rr 16.02(2)(c)–(f)). A pleading that is evasive or ambiguous would have a tendency to cause prejudice, embarrassment or delay in a proceeding.66 A party must plead a fact if it is necessary to meet an express denial of a fact pleaded by another party or where its absence may take another party by surprise, but not if the burden of proving the fact does not lie with that party (r 16.03).67 A pleading must not contain inconsistent allegations of fact or grounds of claims except as alternatives (r 16.06). This is intended to avoid

embarrassment.68 Alternative and inconsistent material facts must be pleaded separately and distinctly and those facts must not be commingled.69 Each allegation of fact in a pleading must be specifically admitted or denied (r 16.07(1)), and those allegations that are not specifically denied will be taken to be admitted (r 16.07(2)).70 If a party does not know any allegation and states as much, then the particular fact is taken to [page 146] be denied (rr 16.07(3)–(4)). A ‘denial’ is usually employed where the alleged fact is within the knowledge of the party. A party should admit facts to which there is no real dispute and not insist dogmatically that the other side be put to the onerous task of proving each and every material fact where it is not necessary in the interests of a speedy and just resolution of the dispute. A party who nonetheless insists on such a course of action may be exposed to a costs order. In a defence, or other pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that raises a new issue or that might otherwise take a party by surprise if not expressly pleaded or that the party alleges makes another party’s claim or defence not maintainable (r 16.08).71 A failure to comply with r 16.02(1) can lead to a strike out order, although the Court will generally only exercise that power in a clear case.72 In particular, it was held by Flick J in Takemoto v Moody’s Investors Service Pty Ltd73 that a pleading may be struck out which sets forth mere assertions or conclusions or pleads facts at too great a level of generality. Consistent with the views expressed earlier in this chapter, the Court regards a failure to identify with sufficient clarity the issues to be resolved to occasion ‘confusion

and is productive of a waste of the time of the parties and the court, and is a waste of private and public resources’.74 Nonetheless, the Court does not seem to take ‘an unduly technical view’ in relation to pleadings so long as they state sufficient material facts to allow the other side fair notice of the case to be met at trial and they avoid prejudice, embarrassment or delay (otherwise caused by being evasive or ambiguous).75

Particulars 6.17 In short, particulars of a pleading provide details of a claim or defence. Their function is to limit the generality of a pleading.76 It is not to fill gaps in, or to expand the issues defined by, the pleading. They are used to ‘fill in the picture’ with factual information sufficiently detailed to guard an opponent [page 147] with knowledge of what case is to be met so as to prevent that party being taken by surprise at trial.77 They serve also to show the opponent what evidence should be collected,78 and to tie the hands of the party giving particulars so that there may not be a departure at trial from the matters included in those particulars.79 The provisions of Div 16.4 shed some, albeit minimal, light on how the matter of particulars is to be addressed in practice. The starting point is that r 16.41 requires a party to state in a pleading (or an accompanying document) the necessary particulars of each claim, defence or other matter pleaded. Note 4 to that rule envisages that the particulars should, if they are necessary, be contained in the pleading but may be provided in a separate document further to a request of the opponent or an order of the Court. Certain types of allegations contained in a pleading must be particularised in the pleading; namely, those of fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence (r 16.42). This is to be expected given

the seriousness of such allegations, particularly as to any suggestion of fraudulent conduct on the part of an opponent party. Other matters that must be particularised in the pleading are those pertaining to the ‘condition of mind’80 of a person (r 16.43) and the claiming of damages and exemplary damages (r 16.44). Where a party is of the firm opinion that they are prejudiced because a pleading of another party does not give fair notice of the case to be made against them at trial, recourse may be had to the procedure in r 16.45. Under r 16.45(1), an application may be made to the Court that the party be served with particulars of the claim or defence (or other matter) stated in the pleading, a statement of the nature of the case relied on or, if applicable, particulars of damages claimed. For the Court to consider such an application, the particulars in the relevant pleading must be inadequate and it must be established that the party seeking the particulars cannot conduct its case without them (r 16.45(2)). A respondent seeking an order under this rule before filing a defence must also satisfy the Court that an order is necessary or desirable to enable the respondent to file a defence (r 16.45(3)). Thus, r 16.45 may be viewed as discouraging disputes concerning the inadequacy of pleadings, especially if a defence is yet to be filed, but it allows for the making of an order for further particulars in proper cases.81 The heart of the task, when considering the adequacy of a party’s pleading under r 16.45, is to determine whether further and better particulars of the pleading are warranted. The degree of precision required in drafting particulars will depend upon the particular circumstances of each case, so no hard and fast [page 148] rule may be applied. Whether the particulars of the pleading are inadequate is

a question of substance and may be answered by asking ‘are the particulars necessary in order for the [party] properly to run its case’?82 The fact that interlocutory applications of this kind, with their associated costs, do not advance the progress of the proceeding is a point not overlooked by the Court.83 To use the metaphor of Katzmann J in Conway v MercedesBenz Australia/Pacific Pty Ltd ACN 004 411 410,84 there is a fine balancing act between whether one is being forced to make assumptions about the other party’s case because of an insufficiency of particulars in pleading and whether the parties are in actual fact ‘engaged in a cat and mouse game which does not assist in the expeditious resolution of the matter’. Hence, unnecessary requests for particulars of a claim, defence or any other matter pleaded will not be encouraged by the Court, as held in Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd.85 In that case, French J (as his Honour then was) (at [17]) explained that what are necessary particulars is a matter of judgment and that balance must be maintained between the particulars sought and those ordered. Given the fact that in contemporary commercial litigation in the Court there will be reliance upon witness statements or affidavits as an early exchange of evidence, the need for elaborate particulars is questionable and should not be allowed unduly to increase the cost and delay of litigation. His Honour (at [18]) displayed resistance to requests for particulars that commence with the phrase ‘… specify every fact, matter, reason, inference and thing relied upon …’.

Application to amend 6.18 Pleadings are able to be amended in the circumstances and manner prescribed by Div 16.5. A pleading may be amended once at any time before the close of pleadings without the need to seek and obtain the leave of the Court; however, any further amendment may only be made with the leave of the Court or the consent of each other party to the proceeding (rr 16.51 and 16.53).86 Any proposed amendment after the pleadings have closed requires

the Court’s leave (r 16.53).87 By r 16.12, the ‘close of pleadings’ occurs at the end of the latest of the times prescribed by the Rules for the filing of a defence (filed by the respondent 28 days after the filing of a statement of claim),88 a reply (filed by the applicant 14 days after being served with the defence)89 or [page 149] any other pleadings between the applicant and respondent. Whether leave should be granted after the close of pleadings will involve consideration of the prejudice to the other parties, concerns of case management and whether an adequate explanation for the delay has been furnished. In particular, a defence may be amended, without the need to seek leave of the Court, where the applicant has amended the statement of claim and the respondent has already filed a defence prior to being served with that amended document (r 16.55(1)). This rule supplements the general right to amend a pleading contained in r 16.51 (see r 16.55(3)). Any amended defence must be filed within 28 days of service of the amended statement of claim (r 16.55(4)). Rule 16.56 outlines a similar scenario and set of procedures in relation to the consequential amendment of a reply. An amended pleading must be served as soon as practicable (r 16.60). An opponent may apply to the Court, by way of an interlocutory application filed within 14 days after the service of the amended pleading, for an order disallowing an amendment made by the other side to its pleading in the circumstances set out in r 16.52; that is, where a party amends a pleading without the leave of the Court or the consent of the other parties. Such an order will be made where the Court is satisfied that leave would not have been granted on the date on which the amendment was made.90 The Court’s power to grant leave to amend a pleading may be drawn from s 37P of the FCA Act (to amend or limit any part of a party’s claim or defence), s 23 of the FCA Act (to make any order it thinks appropriate in

matters within its jurisdiction) and r 1.32 (to make any order it considers appropriate in the interests of justice). Leave to amend is ordinarily given unless the party making the application was acting in bad faith, the amendment is so futile that it would be struck out if it appeared in the original pleading or it would be ‘bound to fail’.91 Where a pleading is amendment by way of a Court order, r 16.58 requires the amendment to occur within the time specified in the order or otherwise within 14 days of the date of the order. If there is non-compliance with this relevant time frame, then the rule states that the order for amendment will cease to have effect. As seen by Note 1 to r 16.51, the Court is keen to ensure through the procedural mechanisms for the amendment of pleadings that the real questions in issue are able to be decided and the multiplicity of proceedings is avoided. This sits alongside the notion that parties have the right to make choices as to what claims and defences are made and that they will be provided sufficient opportunity to identify the issues being agitated. Their ability to effect changes to the pleadings, however, will not be left unfettered, particularly if the litigation is advanced.92 Limits are placed on re-pleading when the factors of delay and [page 150] cost are taken into account, and the just resolution of a dispute will not be achieved by permitting a party to raise any case at any point in the proceeding on the premise that an order for costs (even on an indemnity basis) will always provide sufficient compensation.93 In Aon Risk Services Australia Ltd v Australian National University,94 the plaintiff, on day three of a four-week hearing in an already protracted proceeding, applied for leave to amend its statement of claim to add a substantial fresh claim and to adjourn the hearing. The plurality commented (at [111]) that ‘the fact of substantial delay and wasted costs, the concerns of

case management, will assume importance on an application for leave to amend’. This, they said, will result in the court considering the effect of any delay caused by the proposed amendment to the pleadings to not only the parties, but to the court and to other litigants. Nonetheless, it has been held in a number of subsequent cases before the Court that ‘Aon is not a one size fits all case’ and that the particular facts and circumstances of each case will need to be balanced with ss 37M and 37N of the FCA Act in the exercise of the Court’s discretion.95 Hence, in Genworth Financial Mortgage Insurance Pty Ltd v Peter Clisdell Pty Ltd,96 on the first day of a six-day hearing, an application to amend defence pleadings arising from subpoenaed documents was granted because of the nature and importance of the amendments and that it would be unjust to deny the respondent the opportunity to run a new ground of defence.

Time-barred causes of action 6.19 It was seen at 3.12 that, when seeking leave to amend an originating application to add a new cause of action or grounds for relief, the issue may arise as to whether any proposed amendment is statute-barred due to the expiry of a limitation period. The same argument might be raised by an opponent within the context of the amendment of pleadings sought by another party. In McGrath v HNSW Pty Ltd,97 Cowdroy J considered this very issue. His Honour interpreted the Rules98 and s 59(2B) of the FCA Act to allow [page 151] amendments to a statement of claim to add a new cause of action that would otherwise be out of time. This, his Honour viewed, is in keeping with the changing philosophy of the Court and the legislature to ensure that justice is done and with the flexible approach under the Rules. A party seeking leave to

amend a pleading must of course still satisfy the Court in the exercise of its discretion.

Application to strike out 6.20 Division 16.2 is dedicated to the vital subject of striking out pleadings, yet somewhat surprisingly contains only one rule. Rule 16.21(1) enables a party to apply for a pleading to be struck out, in whole or in part, on certain grounds; namely, that it: contains scandalous, frivolous or vexatious material; is evasive or ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or is an abuse of process. The sub-rule largely mirrors r 16.02(2) concerning the required content of pleadings. The source of the Court’s power to order that any part of a party’s claim or defence be struck out, amended or limited lies in s 37P(6)(b) of the FCA Act.99 A party may further apply that any pleading containing material of a scandalous, frivolous, vexatious, evasive or ambiguous nature or that is otherwise an abuse of process be removed from the Court file (r 16.21(2)). For a pleading to be ‘embarrassing’ it must, for example, be susceptible to various meanings or contain inconsistent or irrelevant allegations.100 An abuse of process arises where a party maintains a claim or defence that is doomed to fail.101 So, too, bringing or maintaining litigation in order to achieve a collateral purpose to that of pursuing a genuine objective of obtaining relief will amount to an abuse of process.102 The onus of proof, that a pleading is an abuse of process, is a heavy one and rests upon the party alleging it.103

The Court will be circumspect in proceeding to strike out an entire claim or defence for not disclosing any reasonable cause of action. In the exercise of its discretion, it will require a firm conclusion that ‘no reasonable amendment [can] cure the alleged defect and there [is] no reasonable question to be tried’, [page 152] and that there is no reasonable basis upon which the case should proceed to trial.104 The applicant’s case must be so untenable that it cannot succeed.105 When will the Court be prepared to strike out a pleading on the basis of overall inadequacy? There is no clear answer to this question. It was held by Marshall J in Haile-Michael v Konsrantinidis (No 2)106 that disputes about the adequacy of pleadings are ‘frequently sterile debates which do not advance the resolution of matters before the Court in the manner suggested by s 37M [of the FCA Act]’. Similarly, and taking into account the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University,107 Lockhart J in Australian Competition and Consumer Competition v Golden West Network Pty Ltd108 observed that on some occasions it is better for the Court to direct the furnishing of particulars or the filing of affidavits, not so as to excuse defective pleadings, but in recognition that ‘case management is a sensible and flexible thing’. The flexibility suggested in the above quote of Lockhart J is demonstrated in the case law on r 16.21 applications. In Henderson v McSharer,109 the Court held that the pleadings in question were lengthy, but found them sufficiently clear in their identification of the issues that it was not appropriate to order that the pleadings be struck out. Claims have been struck out as an abuse of process under r 16.21(1)(f) in Sims v Suda Ltd (No 2)110 and in Sims v Chong,111 but not in Van Aken (as Trustee of the Van Aken Family Trust) v Diver Nominees Pty Ltd.112 Only parts of a statement of claim were struck out pursuant to r 16.21(1)(d) in Sievwright v Victoria.113 Furthermore, the power

to strike out a pleading might not be exercised in some cases notwithstanding a failure to plead all material facts, provided the deficiency causes no confusion and raises no issues of substantive principle.114 It is important that case management flexibility does exist when the Court is considering any application under r 16.21, as the entire basis for the existence of a claim or defence may rise or fall upon that single exercise of discretion. There is a fine balancing act to be performed between the exercise of sufficient flexibility to enable a party to plead its claim and the need to maximise efficiency in the conduct of litigation. [page 153]

Affidavits Civil practice and procedure provisions Division 29.1 of the Rules Sections 45 and 47 of the FCA Act

Requirements for affidavit material 6.21 Affidavits, or written sworn (or affirmed) statements of witnesses, are used in civil proceedings before the Court within a number of contexts prescribed or allowed by the Rules. For example, an affidavit may or must, depending upon the wording of the applicable rule: accompany an originating application under r 8.05;115 support an application for an order (such as an injunction or for preliminary discovery) before the start of proceedings under Pt 7; be used to verify written answers to interrogatories (rr 21.03 and 21.04)

or to verify a list of documents the subject of a discovery order (r 20.22(1)); be filed in support of an interlocutory application in accordance with r 17.01(1) (and subject to r 17.02); and be filed in support of an application for leave to appeal (r 35.12(2)). The making of an affidavit generally is governed by s 45 of the FCA Act and Div 29.1 of the Rules. In particular, r 29.02 must be followed to ensure that the affidavit is in compliance with the Rules, including that it be in accordance with Form 59, made in the first person and divided into numbered and separate subject paragraphs. Each page should be numbered consecutively. A document accompanying the affidavit must be annexed, although originals or large documents not capable of annexure should be exhibited. Regard may be had generally, too, to the rules of evidence. The affidavit must not contain any scandalous, frivolous or vexatious material and must not be evasive, ambiguous or an abuse of the process of the Court (r 29.03(1)). If it is, a party may apply for the removal of all or a part of the affidavit from the Court file (r 29.03(2)). An affidavit that is irregular in form may still be accepted for filing; however, the party wishing to rely upon it must apply for leave to do so (rr 29.06 and 29.07). Each other interested party should be served with a copy of the affidavit at least three days before the occasion for using it arises (r 29.08). There are advantages and disadvantages of the use of affidavits in the conduct of civil litigation. On the one hand, they serve the interests of justice by ensuring that a party is apprised of the opponent’s case and is not ambushed or taken by surprise at the trial. They may serve to promote early [page 154] settlement.116 On the other hand, the provision of written sworn statements

affords an opponent the opportunity to rehearse in some detail a legally polished response, and adds to time and expense by requiring the Judge to read all of the evidence in advance and to then have to go through it all again at the trial.117 As affidavits are prevalent throughout the Rules, and are used at virtually every stage of a proceeding, they are an integral part of litigation. Nonetheless, they should be used sparingly, unless required by the Rules or the Court. An affidavit is not strictly evidence unless or until it is read into evidence. It is incumbent upon a party’s lawyer to ensure that as much as possible of the witness’s affidavit is accepted into evidence and not read down or struck out on the grounds of inadmissibility, including irrelevance. Dealing with lengthy affidavits containing inappropriate and inadmissible material that leads to multiple or lengthy submissions arising from objections by an opponent will add to the delays and expense of the litigation. It will lead also to the incurring of much cost in the preparation of the affidavit in the first place, which will need to be absorbed by the client or the opponent in due course. It must be remembered that the Court will treat affidavit material that appears ‘overly-drafted’ by the lawyer, rather than expressing the deponent’s own language and recollections (and particularly where the deponent is barely literate), with great caution.118 The affidavit should embody the deponent’s recollections of a matter, and not be the forum for the ventilation of arguments or conclusions. For the ‘dos and don’ts’ of preparing affidavit material, every lawyer should consider the excellent synopsis by Justice Robertson, writing extra-curially.119 Section 47 of the FCA Act speaks within the context of civil proceedings of the circumstances in which the Court will allow or expect testimony to be given by affidavit, as opposed to orally in court. This topic is addressed at 9.18.

Witness statements and outlines of evidence 6.22 It is open to the Court to make directions about the filing and exchange of signed statements and outlines of evidence of potential witnesses and their use in evidence at the trial.120 Whether such a direction is made is of course a matter at the discretion of the docket Judge. [page 155]

Discovery of documents Civil practice and procedure provisions Part 20 of the Rules Practice Note CM 5 – Discovery (Practice Note CM 5) Practice Note CM 6 – Electronic Technology in Litigation (Practice Note CM 6) Practice Note CM 8 – Fast Track (Practice Note CM 8)

The benefits and limitations of discovery 6.23 The discovery process is one of the most important procedures utilised by a party in facilitating proof of the facts in issue and revealing the strengths and weaknesses of both its own case and that of an opponent, thereby enhancing prospects for early settlement. It serves to ensure that ‘cases are not decided by ambush and surprise’.121 On the other hand, probably no other procedure in civil litigation has the potential to be as burdensome, susceptible to abuse and to incur as much expense and delay if left unfettered in the absence of judicial control.122 For this reason the Court has issued Practice Note CM 5 on discovery and has adopted the restrictive stance that the parties to litigation do not possess an unqualified right to general discovery under the Rules. Accordingly, leave of the Court to undertake discovery is required. It may be noted in passing that, although the Rules

prescribe that a party must not give discovery unless the Court has made an order for it to be given (r 20.12),123 they do not state expressly that a party must not request discovery of documents unless leave has been obtained from the Court. At best, r 20.13 says that a party may apply to the Court for an order that another party give discovery. Unnecessary or wasteful discovery is not permitted. Discovery must not be sought by a party unless the making of the order will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11). This proviso of course echoes the overarching purpose of the civil practice and procedure provisions (as mandated by s 37M of the FCA Act), and is a recurring theme in many of the judgments on applications for discovery.124 [page 156] For instance, in United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC,125 Tamberlin J recognised that the Court has a broad discretion in determining a discovery application and that it must act fairly in the interests of both parties. His Honour went on to note (at [3]) that the Court must engage in a fine balancing act between the need to avoid unnecessary costs and time and the potential oppression to be caused to the producing party, versus the likely benefits to the party seeking discovery from the production of documents. The exercise of discretion may be influenced by the nature of the case and the stage at which the discovery is sought.126 The Court is quite explicit about what lawyers should expect on an application for discovery. From Practice Note CM 5 it is seen that the Court will not order discovery simply because the parties consent, unless discovery would assist in the determination of the issues.127 In particular, Practice Note CM 5 states at [3]: In determining whether to make any order for discovery, the Court will have regard to the issues

in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding.

The practice note lists (at [2]) a number of questions that lawyers are expected to answer when discovery is proposed by a party. At the heart of those questions is the consideration of whether discovery is truly necessary in achieving the overarching purpose or whether there is a less expensive alternative or a way in which discovery can be given on a more limited basis. The Court will ordinarily limit discovery to ‘standard discovery’ so as to prevent the production of more documents than is absolutely necessary for the fair conduct of the case.128 An application for preliminary or pre-litigation discovery is dealt with in Div 7.3 of the Rules, as explained in detail in Chapter 2.

Standard discovery under the new regime 6.24 Under the discovery regime in Pt 20 of the Rules, a party applying for discovery must state in the application whether it is seeking standard discovery or the proposed scope of (more extensive) discovery (r 20.13). Such an application must be timed to accord with the period in r 20.13(3); namely, [page 157] at least 14 days after all respondents have filed a defence or an affidavit in response to the applicant’s affidavit filed with the originating application. It was held in Rinehart v Rinehart (No 2)129 that a party may apply for a discovery order, even though the time for making the application under this rule has not as yet arrived, by reason of the operation of r 1.32 (the Court may make any order it considers appropriate in the interests of justice). It was held further (at [33]) that r 1.34 (the Court may dispense with compliance with

any of the Rules) does not apply when dispensing with the operation of r 20.13(3). So-called ‘standard discovery’ is described in r 20.14(1) as concerning documents that are directly relevant to the issues raised by the pleadings or in the affidavits of which the party ordered to give discovery is aware after a reasonable search130 and that are currently (or have been) in the control of the party. This narrower test under r 20.14, that the documents must be ‘directly relevant’ to the issues raised in the proceeding, represents a departure from the approach taken previously and derived from Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co.131 It merely required the disclosure of documents that may be relevant to the extent they lead to a train of inquiry. Under r 20.14(2), documents will be directly relevant to the issues in a proceeding if they: are documents on which the discovering party intends to rely (para (a)); adversely affect the party’s own case (para (b)); support another party’s case (para (c)); or adversely affect another party’s case (para (d)). The documents must prove or disprove a matter actually in issue.132 The party seeking an order for discovery bears the onus of establishing their necessity.133 It may be ‘necessary’ that discovery be ordered where one party holds documents relating to a matter in question that are not available to the other party.134 Ultimately, and to paraphrase Katzmann J in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4),135 the task of the party seeking the order is to establish that the documents satisfy the test for standard discovery and also whether the ordering of discovery of those documents would best promote the overarching purpose and the particular purpose of [page 158]

the discovery rules. Even if the order for discovery is made, the Court will formulate it to suit the particular circumstances of the case.136 Standard discovery will also only be ordered where the relevant documents are in the party’s control. The term ‘control’ in reference to a document is defined in the Dictionary137 to mean ‘possession, custody or power’. Thus, for example, it will be sufficient for the purpose of giving discovery that a person has a document in their possession or custody as a partner in a firm of solicitors or that a bank holding documents in a safe deposit box has custody or control of those documents.138 The situation is more problematic when a person holds documents produced in the course of separate court proceedings. Notwithstanding an implied obligation of a party not to disclose the contents of the documents without leave for any purpose other than that for which the documents were obtained originally, the operation of r 20.14 means that such documents are within the control of that party and therefore potentially discoverable in proceedings in the Court.139 It has been held that the implied undertaking does not prevent disclosure of the existence of the documents in a different proceeding.140 When a document is read or referred to in open court in a proceeding in a way that discloses its contents, any express order or implied undertaking not to use the document outside of that proceeding is extinguished (r 20.03(1)). Under r 20.03(2), however, a person or party to whom the document in question belongs may apply for an order that the earlier order or undertaking continues to apply to the document. This rule would not seem to extend to persons or parties who merely are in possession of the document and do not have ownership of it. Section 43(3)(h) of the FCA Act empowers the Court to make the following costs orders in relation to discovery: the party requesting discovery pay in advance for some or all of the estimated costs of this process (sub-para (i)); the requesting party give security for the payment of the costs (sub-para

(ii)); or the maximum cost that may be recovered for giving discovery or taking inspection (sub-para (iii)).141 A party required to give discovery who seeks an order under s 43(3)(h) must file an affidavit stating the orders sought, the calculation of the cost of making discovery and the reason the order should be made (r 20.13(5)). [page 159]

Claims of public interest and privilege 6.25 A document may be withheld from the discovery process to varying extents on the grounds that its disclosure is injurious to the public interest (r 20.01)142 or where the document is ‘privileged’ (r 20.02). In the former situation, the relevant document may be withheld from disclosure and in the latter scenario the existence of the document must still be discovered but need not be produced. Of course, in contentious cases the Court is required to determine the existence of either ground. It should be noted that the term ‘privilege’ is not defined in the Rules. Presumably, it extends to legal professional privilege (also known as client legal privilege),143 the privilege against self-incrimination, penalty privilege and the privilege against exposure to forfeiture.144 Rule 20.19 excludes certain claims of privilege. In particular, a party may not claim a document is privileged from production simply because it does not undermine that party’s own case or where the document does not relate to or tend to support an opponent’s case.

‘Fast Track’ discovery 6.26 Practice Note CM 8 (in Pt 7) addresses the subject of discovery within the context of proceedings that fall under the ‘Fast Track’ approach to case

management in the Court. As observed by Dodds-Streeton J in Bupa Australia Pty Ltd v iSelect Ltd (No 1),145 discovery is expressed in this practice note in similar but not identical terms to r 20.14.146 Under Pt 7, any discovery ordered by the Court is confined to documents on which a party intends to rely and that have a significant probative value adverse to a party’s case. The discovery process also must occur in accordance with the requirements set out at [7.2]. Additional discovery is possible (see [7.3]) as a separate order for a specific purpose (such as in relation to the discrete issue of the quantification of damages), and may be given by inspection alone.

Non-standard discovery 6.27 The predilection of the Court against the ordering of discovery, other than in the most necessary of cases, might suggest that the more extensive discovery of documents will never be permitted. Rule 20.15, however, introduces a new [page 160] concept of non-standard and more extensive discovery not seen under the repealed rules on discovery. That procedure may take into account the criteria for standard discovery, including the ‘direct relevance to the issues raised’ test under r 20.14(1)(a) and the ‘reasonable search’ test under r 20.14(1)(b). Both of these tests, though, require the party giving discovery to make a somewhat subjective assessment of what documents within its control are discoverable. This might be unacceptable to the party requiring the discovery and may result in that party making an application under r 20.15 for certain categories of documents to be discovered, which may be regarded as a more objective approach to the matter. The regular risk with this approach is that disputes arise about the scope of the discovery and the description of the categories of documents to be discovered. Proposed

categories of documents must be framed with sufficient specificity.147 If proposed categories of documents are not described with precision, then the party required to give discovery will again be making a subjective evaluation whether particular documents are to be included within the categories. At the same time, an application made under r 20.15 must be considered within the context of r 20.11 and the need to facilitate the overarching purpose (s 37M of the FCA Act).148 Hence, in Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 3),149 the Court refused an application for nonstandard discovery because there was perceived to be no particular need for discovery more elaborate than standard discovery. To do otherwise would simply add unnecessary complexity and delay to the proceeding and cause the discovering party unnecessary costs without proper reason. Standard discovery was ordered as sufficient at this stage to advance the proceeding. By contrast, the Court in Taylor v Saloniklis (No 3)150 allowed for more extensive discovery of certain documents because it was of the opinion that such discovery would facilitate the just resolution of the proceeding. As pointed out by Barker J in Sedco Forex International Inc v Nexus Energy WA Pty Ltd (No 2),151 discovery has been rejected in a number of cases where it amounts to a fishing expedition. Discovery should not be used as a means to ascertain whether a case exists, as distinct from compelling the discovery of documents in furtherance of a case that is already supported by evidence to exist.152 Although acknowledging that identifying a fishing expedition is a difficult exercise at the best of times, his Honour found (at [39]–[41]) that the respondent’s desire to undertake a comprehensive search of the applicant’s documents, to simply find out whether any other ‘defects’ exist in addition to [page 161] those of which it was aware (there being no evidence to suggest they did exist), was a fishing expedition. Furthermore, Barker J (at [42]) was not

prepared to accede to the respondent’s request that discovery be provided electronically so that it could search the applicant’s database, as discovery should be a much more targeted exercise and broad access to irrelevant business documents is inappropriate. The discovery process proposed by the respondent was held (at [43]) to be ‘unduly complex, lengthy and expensive’.

How discovery is given 6.28 Discovery is ordinarily given by a party serving all parties to the proceeding with a list of documents (Form 38), and verified by an affidavit sworn in accordance with r 20.22,153 within the time for compliance ordered by the Court.154 The list must specify any category of documents for which no search was made and the reason (r 20.16(2)). The list must also describe the categories and documents required by r 20.17(2), including each document that was (but is no longer) in the party’s ‘control’,155 a statement of when it was last in the party’s control and what became of it (r 20.17(2)(b)). This requirement for disclosure of documents no longer in a party’s control has been said to be ‘too often forgotten in practice both by solicitors advising parties and the parties themselves’.156 There is no need to discover copies of original documents already discovered (r 20.18), although the question may arise as to whether a document is truly a copy of an original or rather a discrete document in its own right and therefore discoverable.157 The list of documents must not be filed with the Court.158 Subject to any claim for privilege, a party required to give discovery has a continuing obligation to discover any document not previously, but that should have been, discovered (r 20.20). This is a ‘key obligation of a party during the course of litigation’, but there may be scope for indulgence by the Court in appropriate circumstances.159 This might occur, for instance, where it is difficult to identify any particular fault of the party within the context of complex and ongoing litigation and that warrants the making of a costs order against that party.160

Particular discovery 6.29 It may arise in the course of the discovery process that a party claims a document or category of documents is in another party’s control and that insufficient discovery has occurred under the discovery process of either r 20.14 [page 162] or r 20.15. An application may be made to the Court for an order that the latter file an affidavit stating whether the relevant document is, or has been, in that party’s control or when it was last in their control (as applicable). This procedure is known under r 20.21 of the Rules as an order for particular discovery, or otherwise as an order for ‘further and better discovery’.161 Rule 20.21 does not provide any real guidance on the relevant test required to satisfy the Court in making an order for particular discovery. Furthermore, the case law recognises that the wording of the current rule on particular discovery does differ from that of the predecessor rule, O 15 r 8 of the Rules 1979.162 Be that as it may, it was suggested by Barker J in Dennis v Chambers Investment Planners Pty Ltd163 that the party seeking particular discovery under r 20.21 must satisfy the Court of certain factors, including: the specific document should be discovered in the circumstances of the case; the document or category of documents must be directly or indirectly relevant;164 discovery of the document will facilitate the efficient conduct of the proceeding (for example, where a document is likely to be relied upon at trial, and if not provided now would likely result in adjournment of the trial); and each application will depend upon its own facts and circumstances and

will be affected by the policy of the Rules to limit the scope of discovery and to advance the overarching purpose of civil procedure, as required by s 37M of the FCA Act. To the above list may be added the factors that the Court must be satisfied that the particular document is likely to exist and that it is likely to be in the other party’s control.165 An order for particular discovery also may be refused where compliance would be oppressive, having regard to the value of the discovery to the party seeking it and the burden imposed on the party giving it.166 This is in keeping with the philosophy underlying ss 37M and 37N of the FCA Act. [page 163]

Electronic discovery 6.30 In affinity with the Court’s embrace of technology as a cost-effective and efficient device in the conduct and management of litigation, discovery may be ordered to be given by electronic means.167 The Court will ask of the party seeking discovery whether it should be given by electronic format or in accordance with a discovery plan.168 Practice Note CM 6 deals with the use of electronic technology in litigation before the Court.169 It applies to any proceeding in which an order has been made that (amongst other things) discovery be given in an electronic format. Such an order is likely to occur where a significant number (usually 200 or more) documents relevant to the proceeding have been created or stored in an electronic format and the use of technology in document management would help facilitate the overarching purpose, consistent with ss 37M and 37N of the FCA Act.170 Legal practitioners should consider the use of technology for the management of documents (including the process of discovery) and the conduct of the proceeding at as early a stage in the proceeding as practicable.171 Before the Court will be prepared to make an order that

discovery be given using electronic documents, it requires the parties to have agreed upon a practical and cost-effective ‘discovery plan’ having regard to the number and nature of the documents and the issues in dispute.172 Practice Note CM 6 provides detailed guidelines on document management and document management protocols. For example, where the number of discoverable documents is to exceed 5000 documents, the parties should agree to an ‘Advanced Document Management Protocol’ in consultation with the Court (see at [8]).

Discovery from a non-party 6.31 In addition to discovery from a party to the proceeding, the Rules permit discovery from a non-party (such as a bank). This is in the circumstances allowed, and in the manner prescribed, by r 20.23. Where a party believes that a non-party has or is likely to have (or has or is likely to have had) in their control documents that are directly relevant to an issue raised on the pleadings or affidavits, then the party may apply for an order that the nonparty make discovery of those documents.173 If so ordered, the non-party must file a list of documents in accordance with rr 20.24 and 20.17. The safeguard for the non-party in this situation is that they may apply under r 20.25 for an order that their costs and expenses be paid for by the party who applied for discovery. It may be appropriate for the party seeking [page 164] discovery to undertake to pay the reasonable costs of the non-party for discovery and of producing the documents for inspection.174 It may be noted that r 20.23 provides that the discovery of documents by a non-party must be ‘directly relevant’ to an issue raised, as distinct from merely relating to any question in the proceeding, as required by former O 15A r 8 of the Rules 1979. The factors that may inform the Court’s decision

on whether to order non-party discovery is whether the party seeking such discovery has exhausted other available avenues to obtain the sought material, as well as that party’s attitude as to costs.175 If a non-party who is ordered to give discovery refuses or neglects to allow inspection of the documents, then under r 20.33 an order may be sought for production for inspection.

Production for inspection by parties 6.32 Once discovery has occurred, a party seeking access to documents may apply under r 20.32 for an order that the party giving discovery produce for inspection (including by electronic means) any document included in their list of documents and that is within their control.176 Rule 20.35 provides a further mechanism by which a party may seek an order that another party produce to the Court a document in their control relating to an issue in the proceeding. The Court may inspect the document to decide the validity of any objection to its production, such as on the ground of privilege (r 20.35(2)).177 The party permitted to inspect a discovered document is entitled to copy or make an electronic image of it subject to any reasonable conditions imposed by the person producing the document (r 20.34). If the document sought to be inspected by a party is a document mentioned in a pleading or affidavit filed by another party to the proceeding, then the party seeking its inspection may serve upon the other party a notice to produce (Form 39) and the requirements of r 20.31 will apply. This procedure is not to be confused with a notice to produce served under Pt 30 of the Rules, considered later in this chapter.

Subpoenas and notices to produce Civil practice and procedure provisions Part 24 of the Rules – Subpoenas Rule 30.28 of the Rules – Notices to Produce

[page 165]

Issuing a subpoena for production of documents 6.33 Part 24 of the Rules deals with the subject of subpoenas, comprising a subpoena to give evidence, to give evidence and to produce documents and purely to produce documents.178 A subpoena to produce documents (Form 43B) must comply with the requirements of r 24.13, including as to the details of the addressee of the subpoena. Where the addressee of a subpoena is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer (r 24.13(9)). It is, however, incorrect to address the subpoena to the proper officer of the corporation, although to do so is unlikely of itself to result in the setting aside of the subpoena.179 The last date for service of a subpoena for production is the date five days before the earliest date the addressee is required to comply with the subpoena or a date fixed by the Court (r 24.13(8)). The return of the subpoena is ordinarily listed before a Registrar, at which time standard directions may be sought regarding each party’s access to the documents for inspection (including potential uplift) and for any copying purposes. Regard should be had to rr 24.19–24.21 and 24.24 concerning dealings with documents once produced. In particular, r 24.20 sets out the procedure for when an addressee produces a document to the Court but objects to its inspection, such as may occur when a claim of client legal privilege arises.

Leave is necessary 6.34 Irrespective of the type involved, a party seeking the issue of a subpoena addressed to another party or a person needs to obtain the leave of the Court (r 24.01). Leave is ordinarily sought without notice (that is, ex parte) and may be granted subject to any conditions considered appropriate by the Judge.180 The usual practice for the consideration of an application for leave to issue a subpoena for production is for the party seeking its issue to lodge with the Court a draft of the proposed subpoena and an affidavit in support, which is

then dealt with ‘on the papers’ by the Judge sitting in Chambers. Leave may also be sought in open court during a directions hearing, which is more efficient in cases where the subpoena is, or is likely to be, contested by another party. The issues in contention may be addressed openly at an early stage, instead of more formally following the service of the subpoena. Similarly, the Judge may be inclined to list the matter in open court, so that the other side is granted an opportunity to be heard on the subject of whether leave should be granted, in situations where the case has unusual circumstances, there are tight time frames for the management of the case for hearing or there is an apprehension [page 166] that a party may seek to issue a large number of subpoenas to a wide range of people.181 Since most applications for leave to issue a subpoena to produce documents are considered in the privacy of a Judge’s Chambers, there are only a relative handful of authorities on what factors will inform the Judge’s exercise of discretion. Guidance may be taken from the authorities pertaining to the setting aside of subpoenas.182 Generally speaking, leave will not be granted where the subpoena to produce does not substantially comply with the requirements for a subpoena of that kind under Pt 24 of the Rules (both as to form and content), compliance with the subpoena will impose an oppressive burden on the addressee, the documents required to be produced are clearly irrelevant and the subpoena is a fishing expedition or is otherwise an abuse of process. The applicable principles were reviewed by Mortimer J in Spencer v Commonwealth;183 namely: the subpoena must have a ‘legitimate forensic purpose’, and the documents sought to be produced must have ‘apparent relevance’, in relation to the issues in the proceeding;

the documents sought will materially assist the party requesting the issue of the subpoena; the test here is less stringent than that of relevance in the admissibility of evidence, but at a level that justifies in the judgment of the Court the use of coercive powers against a person; even where a legitimate forensic purpose is identified, the Court will weigh up the importance of that purpose against the extent of the burden likely to be caused to the addressee of the subpoena; and there are case management considerations, consistent with s 37M of the FCA Act, relevant to the Court’s exercise of discretion, particularly where the issuing of the subpoena would cause unreasonable delay to the trial or impose excessive burden on the other parties by way of preparation. In Rirratjingu Aboriginal Corporation v Northern Land Council,184 and despite being prepared to assume that the documents sought to be subpoenaed had a legitimate forensic purpose, White J was not prepared to grant leave to issue on the basis that the affidavit filed in support of the application for leave neither addressed the necessity for the issue of a subpoena nor provided [page 167] evidence of other attempts to seek alternative means of production of the documents. His Honour also regarded that the Court deprecates the use of subpoenas as an alternative to discovery, and that the Rules provide a regime for obtaining non-party discovery in a way that has built-in protections for the non-party. Finally, his Honour was cognisant of the relatively late stage of the proceeding and the fact that the issue of subpoenas could have been raised at a multitude of earlier directions hearings.

For an alternative approach to the granting of leave to issue a subpoena within the context of representative proceedings, and where the Court considers ss 23, 33ZF and 37P of the FCA Act and r 1.32 to be a more appropriate procedure than that under r 24.12, refer to Muswellbrook Shire Council v Royal Bank of Scotland NV.185

Setting aside a subpoena 6.35 A subpoena once issued is an order of the Court and, as such, may be set aside and is subject to the rules on the setting aside of entered orders.186 The specific rules on the setting aside of a subpoena are set out in r 24.15. A party or any person having a sufficient interest may apply (on notice to the issuing party) to the Court for an order that the subpoena be set aside in whole or in part, or that other relief be granted in relation to it (rr 24.15(1)–(2)). That r 24.15 should be read in light of s 37M of the FCA Act was affirmed by Robertson J in McHugh v Australian Jockey Club Ltd (No 4).187 As helpfully summarised by Yates J in Re Becwell Legal Services Pty Ltd; Griffin Energy Group Pty Ltd (Subject to Deed of Company Arrangement) v McMaster,188 the factors to which the Court might have regard in an application to set aside a subpoena include the following: A subpoena will be set aside to prevent an abuse of process of the Court and injustice. The issue of a subpoena will be an abuse of process where the subpoena calls for documents that have no apparent relevance or legitimate forensic purpose to the issues in the proceeding having regard to the pleadings. A subpoena may not be used for the purpose of a fishing expedition. In other words, it may not be used in an endeavour to discover information that may enable the party to advance a case of which it presently has no knowledge. It is impermissible to attempt to achieve discovery by resort to the

process of issuing a subpoena on either a party or a non-party. [page 168] Three subpoenas issued to non-parties were set aside in that case, but applications to set aside a subpoena do not always meet with success.189

Failure to comply 6.36 The manner by which the addressee is to comply with a subpoena to produce documents is covered by rr 24.17 and 24.18. A failure to comply with a subpoena without lawful excuse is a contempt of Court (r 24.23). This is because, as mentioned previously, a subpoena has the same legal effect as an order of the Court. The lawful excuse is provided for by r 24.17(2); an addressee need not comply with the requirements of a subpoena if it is not served on or before the date specified in the subpoena as the last day for service. The lawful excuse, that an addressee need not comply with a subpoena unless conduct money is tendered a reasonable time before the return date, seems to apply only to subpoenas to give evidence (see r 24.17(1)). The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena (r 24.22(1)), and which r 24.22(3)(a) says is to be distinguished from conduct money. Even if a subpoena has not been served personally on the addressee, as required by r 24.16(1), that person may be dealt with for contempt if it is proven that they had, by the last date for service of the subpoena, actual knowledge of the subpoena and its requirements (r 24.23(2)). The primary rules on contempt of court are contained in Pt 42, as considered in Chapter 10.

Costs and expenses of compliance 6.37 As just alluded to, r 24.22 contemplates the making of an order that the

issuing party pay the amount of any reasonable loss or expense incurred by an addressee of a subpoena in its compliance. The underlying rationale for this rule is that an addressee is entitled to protection from harassment and burden in relation to a subpoena in a matter in which he or she is not involved.190 The existence of such a rule is particularly fortuitous for an addressee in matters, such as Hodges v Waters (No 1),191 where full compliance with a subpoena to produce documents involves a great amount of time and money (up to $300,000 in that case), and thereby requires close management of the process by the Court. In Ann Street Mezzanine Pty Ltd v Beck,192 an addressee unsuccessfully applied to set aside a subpoena. In response to the issuing party relying upon [page 169] the ‘loser pays’ principle, the addressee counter-relied upon r 24.22(1). Kenny J rejected this argument on the basis that provision refers to losses and expenses associated with ‘complying’ with a subpoena, and not for seeking to have one set aside. Any costs and expenses ordered to be compensated by the issuing party may be in an amount fixed by the Court or determined in accordance with a taxation of costs (r 24.22(2)). There is authority that the legal costs of a nonparty associated with complying with a subpoena and preparing a bill for taxation should be taxed on a solicitor and client basis.193 An addressee may also consider seeking security for costs in advance of compliance with a subpoena where the subpoena imposes onerous demands and the party issuing it has since left the jurisdiction.194

Dealing with a notice to produce 6.38 Unlike a subpoena, a notice to produce documents does not require the leave of the Court to be served upon another party to the proceeding. A party

may simply serve on another party such a notice in accordance with Form 61 and r 30.28. There is also no formal requirement under the Rules that the notice be filed with the Court prior to service, although in practice a copy may be provided for the record. The purpose of a notice to produce is to require the party served to produce any document or thing in the party’s control at any trial or hearing in the proceeding (amongst other hearings outlined in r 30.28(1)(b)). It is not open to a party to nominate its own return date outside of these stated options or to be vague about the return date; for example, by stating the served party is to produce the documents ‘before a Registrar’ by ‘no later than’ a certain date but otherwise with no specified date, time or place. The notice will have no effect under r 30.28 in these circumstances.195 If the notice to produce specifies a date for production and is served at least five days prior to that date, then the notice operates similarly to a subpoena for production insofar as compliance is required.196 The served party is exposed to the liability of paying the costs incurred if there is a failure to comply on their part.197 By virtue of r 30.28(2), if a served party fails to produce the required document or thing, then the party serving the notice is also entitled to lead secondary evidence of the contents or nature of the document or thing.198 Unless excused by the Court, a party served with a notice to produce must [page 170] comply with the notice. As noted by Rares J in Suzlon Energy Ltd v Bangad,199 a failure to comply may be treated as a default for the purposes of rr 5.22 and 5.23 of the Rules and s 37P of the FCA Act, which ‘can attract significant forensic and procedural detriment’. How should a party served with a notice to produce most appropriately contest the need for its compliance? There appear to be two approaches in the

authorities. First, it has been held in some cases200 that, as a notice to produce is not an order of the Court (unlike a subpoena) but rather a creature created by the terms of r 30.28, the obligation it creates upon the served party is purely from the operation of that rule. The effect is that if the obligation is to be negatived, this must come from the Court’s power under r 1.34 to order that a party may dispense with the need to comply with an obligation under the Rules, and not from the purported ‘setting aside’ of the notice. By contrast, a number of cases have involved an interlocutory application for the setting aside of a notice to produce, and with a mixture of results in the applications being successful201 or dismissed.202 From the judgment in Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 3),203 the principles relevant to the setting aside of a notice to produce may be summarised as follows: the party issuing the notice bears the onus of establishing that the documents sought under the notice are sufficiently relevant to justify production; the timing of the service of the notice — if too close to the hearing date this may be unreasonable and disruptive to the party immersed in preparation for trial; a notice to produce must not be used as an alternative to an application for discovery or for further and better discovery; the material sought must be apparently relevant to the issues in the proceeding in that it is reasonably likely to add in some way to the relevant evidence in the case; the notice must not be used as a fishing expedition; and the notice may be set aside on the basis that it is unduly burdensome if the categories requested are too broad or they are not described with adequate specificity.

[page 171] Finally, and as illustrated by the outcome of the interlocutory application in Griffiths v Rose,204 the requirement by a party (or non-party) to produce documents pursuant to a notice to produce is also subject to any claim for client legal privilege which, if established, will relieve the party from producing the documents sought and entitle that party to a costs order for the costs incurred in bringing an application to claim privilege. The same applies in respect of a subpoena for production,205 and nothing contained in s 37M or s 37N of the FCA Act operates to override this.206

Circumventing the discovery procedures 6.39 The use of a subpoena for production or a notice to produce documents or things (under r 30.28) as a ‘back door’ means of effectively obtaining discovery from another party, without the requirement to undergo the procedures in Pt 20, in many cases will be regarded as an abuse of process, or at the very least inappropriate.207 Technically, there is nothing in the Rules preventing a party from seeking, for example, the issue of a subpoena to another party in a proceeding for a legitimate forensic purpose, but to do so must be considered carefully. To cite Jessup J in Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2),208 the indiscriminate recourse to the procedure of a notice to produce has the very real potential to frustrate the achievement of the objects set out in ss 37M and 37N of the FCA Act and to undermine the refinement of the discovery rules. This, his Honour recognised, imposes upon the party served with the notice the onus of persuading the Court that it need not comply with it when it should be the other party who bears the onus of persuading the Court that leave should be granted for discovery. In Diddams v Commonwealth Bank of Australia,209 the Court set aside a subpoena for the production of documents addressed to a party in the

proceeding as an abuse of process given the very existence of the discovery procedure available to the parties under the (then) Rules 1979. Justice Branson observed (at [6]) that where a party seeks documents by way of a subpoena or a notice to produce issued close to trial, this subverts the Court’s endeavours to manage the process of the preparation of the matter for trial and to ensure that no interlocutory issues are outstanding at the date of hearing. The rationale of [page 172] the Court on this subject was also summarised aptly by Cooper J in Australian Competition & Consumer Commission v Shell Co of Australia Ltd:210 [W]here a particular method has been prescribed by the rules for the achievement of the particular objective, such as the obtaining of further discovery conformably with the rules relating to discovery of documents espoused in Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, it is impermissible to attempt to achieve that objective through the subpoena process.

A subpoena or notice to produce should not be used to facilitate a fishing expedition, for it has been shown that the Court has a firm preference for the orderly management of the discovery process in proceedings.211 The above views regarding the improper use of a subpoena need to be tempered somewhat in light of the fact that, as seen earlier, leave of the Court is required for the issue of a subpoena in any event. Presumably, any abuse of process will be detected by the Judge when determining whether to grant leave to issue and dealt with appropriately at that stage. Furthermore, in the exercise of its discretion the Court has in some instances, and for pragmatic reasons, treated a contested subpoena as instead an application for discovery. This occurred in South Sydney District Rugby League Football Club Ltd v News Ltd212 in the interests of ensuring the matter would be ready for the imminent trial.

Interrogatories Civil practice and procedure provisions Part 21 of the Rules

Administering interrogatories under the Rules 6.40 The administration of interrogatories in civil proceedings involves one party serving upon another party a number of specific written questions for the purpose of seeking to elicit answers or admissions that will assist the case of the interrogating party and damage the case of the party providing the answers.213 It is designed to narrow the necessary proof of the issues raised in the pleadings, with the ultimate aim to shorten the trial and save costs.214 The Rules require the leave of the Court to administer interrogatories or, more precisely, for an order [page 173] that another party provide written answers to interrogatories (r 21.01(1)). The application must not be made until 14 days after the close of pleadings and, if applicable, the parties have served any list of documents under an order for discovery (r 21.02). The proposed interrogatories must be annexed to an affidavit accompanying the application (r 21.01(2)). The party ordered to answer interrogatories must then provide written answers in accordance with r 21.03, as well as provide an affidavit verifying the answers (rr 21.03(1) and 21.04). The manner in which the answers to interrogatories may be used in evidence is addressed by r 21.06.

The futility of interrogatories? 6.41 The Rules permit, with leave, the administering of interrogatories, but is

this practice embraced or encouraged by the Court? The authorities on the subject of interrogatories in proceedings before the Court do not seem to favour the practice in the conduct of civil litigation. It is particularly worthwhile examining in detail the views of Greenwood J in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd.215 In that case, his Honour considered (at [14]) an address by the Chief Justice of Australia,216 in which the Chief Justice was highly sceptical of the utility of interrogatories in civil proceedings before the Court, and was himself satisfied that ‘no good purpose is served either in a case management sense or as a vehicle for serving the public interest by granting general leave to administer interrogatories’. His Honour went on to say (at [14]) that for the main part: [I]nterrogatories in my experience in the conduct of commercial litigation over approximately 30 years have rarely resulted in a party tendering an answer. More rarely has such an answer shortened the trial or reduced costs and even more rarely has the answer proved to be decisive on any central question of fact or issue in the litigation. The time, energy, effort and cost dedicated to addressing interrogatories and the inevitable challenge to them, is the true measure of the limited utility and lack of usefulness of interrogatories.

Where, however, a party wishes to seek leave under the Rules then, and as a matter of best practice, Greenwood J (at [14]) advocated the following occur. The party seeking leave should first formulate the precise questions and serve the draft questions on the other party prior to formally seeking leave of the Court. This will facilitate sensible discussions between the parties before the matter is raised with the Court and potentially obviates the need for a contested hearing on the issue. [page 174] Despite the above reservations, clearly the Court has over the years granted leave for the administering of interrogatories. Some of the key factors in the exercise of that discretion to be gleaned from the authorities are:

The interrogatory must relate to a matter in question framed by the pleadings, which tends to support that party’s case or damages the opponent’s pleaded case (but not as to facts supporting the opponent’s case).217 Accordingly, an interrogatory should not be used to obtain access to the other side’s evidence or to cross-examine.218 As the administering and answering of interrogatories is essentially a form of discovery of documents, interrogatories will not usually be permitted as a substitute for discovery.219 Interrogatories must be expressed with clear precision and must not be prolix.220 The three-pronged approach adopted by Greenwood J in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd,221 in dealing with the question whether each and every interrogatory is proper, is to ask the questions: – Is the interrogatory directed to a matter pleaded in the statement of claim but not admitted in the defence? –

If not, is each interrogatory otherwise directed to a denial or nonadmission which is claimed to be unclear? and

–

If so, is the interrogatory vexatious or oppressive?

Objections to answering any interrogatory 6.42 Under the Rules, a party may object to answering an interrogatory only on the following grounds specified in r 21.03(4): the interrogatory does not relate to any issue raised on the pleadings and in issue in the proceeding; it is vexatious or oppressive; or a claim of privilege arises. To the above list in r 21.03 may be added the point that the Rules do not

affect any rule of law authorising or requiring the withholding of any matter on the grounds that its disclosure is injurious to the public interest (r 21.07). [page 175] A vexatious interrogatory is one that is administered without sufficient ground and for the purpose of causing trouble or annoyance to another party.222 Furthermore, the Court will not permit an interrogatory that is too wide, a fishing exercise or immaterial.223 It is vexatious to administer an interrogatory for a purpose foreign to the proceeding.224 A fishing exercise, which seeks information on which to base claims not yet made, will be regarded as vexatious, and interrogatories directed at ascertaining the contents of documents or that are designed to interrogate mere suspicions may be regarded as fishing and therefore generally impermissible.225 Interrogatories will be regarded as oppressive where, for example, they are: unfair or unreasonable (such as where many hours of work would be required to answer the interrogatories relevant to only some peripheral issue in the proceedings); too ambiguous; going towards credit or motive; seeking to discover trade secrets; or requiring the interrogated party to form opinions or to make judgments.226 A party who unreasonably fails to answer an interrogatory sufficiently may face an order to remedy the matter, including in writing or, rarely, that the party attend before the Court or a Registrar to be interrogated orally (r 21.05).

Admissions

Civil practice and procedure provisions Part 22 of the Rules

Admission of facts or documents 6.43 A notice to admit (Form 41) enables a party to require another party, for the purposes of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in that notice (r 22.01). An admission made under this rule may be used at trial and on appeal, but will not be [page 176] admissible in evidence in any subsequent or other proceedings. The term ‘authenticity of a document’ is defined in the Dictionary227 to mean: (a) if the document is an original — it was created, printed, written, signed and executed as it purports to have been; or (b) if the document is a copy — it is a true copy. There is no formal requirement in r 22.01 that the notice served on a party be filed with the Court. The benefit of a notice to admit facts or documents is that it saves time and expense in the litigation by having the other side either admit matters or face an order to pay the costs of proof of those matters. It also has the benefit of not requiring the leave of the Court, unlike interrogatories. Where a party has been served with a notice to admit and disputes the truth of any fact or the authenticity of any document specified in that notice, the party may serve within 14 days of having been served with the notice a notice of dispute in accordance with Form 42 (r 22.02).228 There is no obligation for a party served with a notice to admit to either admit or deny the truth of the relevant matter or the authenticity of the document, but if it does not serve a notice of dispute within the prescribed 14-day period, it will

be deemed to have admitted by reason of the operation of r 22.04.229 Rule 22.05 deals with the deemed admission of the authenticity of a document.230 An admission made under Pt 22 may be withdrawn with the leave of the Court (r 22.06). In considering an application for the withdrawal of an admission, the Court may consider the principles outlined in Lo Pilato (liquidator) v Barclays Workshop Pty Ltd (in liq).231 An admission in the applicants’ pleading was permitted to be withdrawn in Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd232 because it was based on a misunderstanding and no prejudice was caused to the respondent in allowing the admission to be withdrawn.233 As noted in Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd,234 once an admission has been made by a party, another party may under r 22.07 make an application for any judgment or order to which that party is entitled. It was observed in Worldwide Timber Traders Pty Ltd v Brouwer (No 2)235 that such a judgment should only be given where a ‘clear and unanswerable case’ is made out. This means that a judgment [page 177] or an order will not be made under this rule if it is apparent to the Court that the admission of fact is contrary to the true facts.236

Costs 6.44 If a notice of dispute has been served and the truth of the matter or authenticity of the document is ultimately proven, then the party who served it is liable for the costs of the proof (r 22.03). The question of whether this may be applied in a no-costs jurisdiction such as under the Fair Work Act 2009 (Cth) was held (for the main part) to be answered in the negative by

Gilmour J in Director of the Fair Work Building Industry Inspectorate v Adams.237 It would seem that even where the Court finds understandable the reason for the non-admission of a fact by a party served with a notice to admit, it still may be inclined to the view that the costs given by r 22.03 should not be denied to the party who served the notice. This occurred in Australian Competition and Consumer Commission v Air New Zealand (No 14).238

Good etiquette and behaviour Civil practice and procedure provisions Interim Practice Note NCF 1 – National Court Framework and Case Management (Interim Practice Note NCF 1) Practice Note GEN 1 – Court Sittings and Registry Hours (Practice Note GEN 1)

Communicating as an officer of the Court 6.45 Proper etiquette and behaviour by lawyers, as officers of the Court, during the conduct of a proceeding is always expected and conspicuous when absent. It is made clear by the Court in its Interim Practice Note NCF 1239 that courteous communications between the parties and with the Court is expected at all times. The need to fulfil the lawyer’s duty as an officer of the Court is arguably even more important when dealing with a self-represented litigant.240 Furthermore, a lawyer appearing before the Court has a dual responsibility, as identified by Wilcox J in Lilienthal v Migration Agents Registration Authority241 in the following way: Lawyers are allowed to appear in court because of the desirability of litigants being represented by people trained in the law. Rules governing the conduct of

[page 178]

lawyers are premised on that rationale. However, it is well understood that, in representing clients, a lawyer also owes duties to the court: to be frank, to avoid misleading the court and to assist in the efficient and expeditious disposal of the case. There is not thought to be any inconsistency between giving assistance to the court, in its carrying out its functions, and the primary obligation of the lawyer to represent the client.

In practice, the parties and their lawyers will usually utilise the opportunity of a directions hearing to raise issues and matters with the Judge in the presence of the other parties, but occasionally the dilemma will arise of the need or desire to raise something with the Judge outside of the courtroom environment. The Court generally takes a dim view of parties engaging in certain ex parte communications with the Judge’s Chambers (or with a Registrar presiding over a proceeding) without the knowledge or consent of the other parties to the proceeding. Parties or their lawyers should never seek to make direct contact with the Judge. The Court’s Guide to the Individual Docket System242 states that where necessary and appropriate, contact is to be made with the Judge’s Chambers preferably by email to the Judge’s associate,243 and as early as possible. Communications with Chambers should be confined to routine and uncontroversial matters. Other than in connection with an urgent ex parte application, it says that telephone contact should generally not be made without the prior knowledge and consent of the other party, as the Court views this as otherwise tending to undermine the integrity of the Court. In Practice Note GEN 1244 the Court explains that the proper procedure for a party wishing to communicate with the Court in writing is to copy the communication to all other parties and that the Court will not act upon the communication unless this has occurred or there are otherwise special reasons for the other parties not being copied in on the communication. In the more recent practice direction from the Court, Interim Practice Note NCF 1, the Court now speaks245 of the need to limit ex parte communications with Chambers to circumstances like the making of an ex parte application, or where it is appropriate to have an ex parte communication and where what is being raised cannot be done by way of a formal application. In the latter

situation, the prior knowledge or consent of all of the parties is required and Interim Practice Note NCF 1 stresses that this requirement is not satisfied by merely copying in those other parties in the communication to the Court. This sentiment accords to some extent with existing legal authority, including Porter v Australian Prudential Regulation Authority,246 in which Perram J held, within the context of that case, that communications with Chambers [page 179] without the prior knowledge or approval of the other parties are improper and should not occur. On the other hand, there is Full Court authority to support the proposition that impropriety does not occur merely because a party or their lawyer communicates unilaterally with Chambers. According to the Full Court in John Holland Rail Pty Ltd v Comcare (John Holland Rail),247 whether impropriety occurs is dependent upon ‘all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent’. Impropriety will not arise usually where the lawyer’s ex parte communication with Chambers pertains to purely procedural, administrative or practical matters although, as noted by the Full Court (at [22]), repeated such ex parte communications could potentially be regarded as improper or unprofessional. The Full Court (at [23]) went on to isolate the circumstances in which it will be improper to engage in unilateral communications with Chambers; namely, where the communication is in relation to the substantive issues in dispute between the parties and the other parties have not previously consented to the communication. Even so, such conduct does not raise a presumption of impropriety casting upon the party making the ex parte communication an onus of proving the absence of any impropriety (see at [23]). The Full Court also recognised (at [25]–[28]) the practical realities of case management by the Court and particularly by Chambers staff.

In the end, it should be borne in mind that one of the underlying rationales for parties not engaging in ex parte communications with Chambers is the need to avoid allegations of actual or apprehended bias on the part of the Judge arising from these communications. Apart from potentially denying procedural fairness to one or more parties, such accusations have the tendency to lead to increased cost, delay and the proliferation of litigation incidental to the main proceeding. This arguably occurred in John Holland Rail, above, and notwithstanding that the ex parte communication in that case was ultimately held by the Full Court not to support an inference of impropriety by the relevant lawyer or judicial bias on the part of the docket Judge arising from it. If a legal practitioner is ever in doubt about whether and if so, how, a Judge expects parties to communicate with Chambers, prior guidance from the Court should be sought as a matter of precaution. Notwithstanding any Court-issued guides or practice notes on the subject, each Judge may have a personal preference and specific protocols regarding communications with their Chambers.

Etiquette 6.46 When addressing a Judge (including the Chief Justice of the Court) in open court, the appropriate title to use is ‘Your Honour’. It is incorrect to refer to a Judge in oral submissions as ‘The Honourable Justice …’ or ‘Mr Justice …’. [page 180] A Registrar is generally addressed as ‘Registrar’ during proceedings and as ‘Registrar’, or as instructed otherwise, at other times. In written correspondence, a Judge or former Judge should be styled ‘The

Honourable’,248 with any post-nominal stated after the surname. This translates into ‘The Hon. Justice …’ and ‘Dear Judge …’ when writing to a current Judge.249 Robing is only required for final hearings and trials, as well as the delivery of a resulting judgment. It is not required for directions hearings, case management conferences or hearings, interlocutory hearings and proceedings before a Registrar. When in doubt about whether to robe, inquiries may be made of the associate of the relevant Judge (or of the presiding Judge in Full Court appeals). Wigs are not worn.250 Mobile phones should always be switched off in court. Many a lawyer has discovered the hard way that Judges understandably are not agreeable to the sound of a ringing phone in their courtroom. Appearing counsel should also remember to announce their appearances fully and clearly, particularly so as to assist accurate transcription of the court proceedings.

1 For further reading on a practical guide to managing cases, consult Law Council of Australia (Federal

Litigation and Dispute Resolution Section), Federal Court Case Management Handbook . 2 As considered in Chapter 3. 3 See rr 5.01, 5.04(2), 5.06(1). 4

See generally Jarrett v Secretary, Department of Families, Community Services & Indigenous Affairs [2008] FCA 1043 at [7] (Flick J). 5

Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangements) (No 1) [2010] FCA 785 at [3] (Perram J). 6 The individual docket system is studied in Chapter 1. 7

See also what is said at 1.13 regarding case management under the new National Court Framework and at 6.5 in relation to Fast Track matters. 8 See also discussion on consent orders at 10.2. 9 [2009] FCA 1361 at [1]. 10 [2015] FCA 722 at [12] (Edelman J). 11 [1990] FCA 520 at [36]. 12 Prosperity

Group International Pty Ltd v Queensland Communication Company Pty Ltd [2009] FCA

1361. 13

An eTrial may be conducted online with all relevant documents available in electronic format: see

generally Practice Note CM 6 – Electronic Technology in Litigation (including the Pre-Trial Checklist). See also at 6.30 concerning electronic discovery and at 9.13 in relation to hearings generally. 14 Federal Court of Australia, ‘Videoconferencing Guide’ . 15

Regarding the use of video link in relation to remote appearances between New Zealand and the Court, see Pt 6 of the Trans-Tasman Proceedings Act 2010 (Cth). 16 For the appropriate booking form and schedule of charges, refer to Federal Court of Australia,

‘Videoconferencing Guide’ . 17 See at . 18 Federal Court of Australia, ‘Fast Track System’ . 19 As confirmed by Practice Note GEN 3 at [12]. 20

Administrative Notice: ACT 2; NSW 3; NT 1; QLD 4; SA 1; TAS 1; VIC 2; WA 2, and all styled ‘Proceedings Conducted in Accordance with the Fast Track Directions’. 21 Ibid at [4] of each respective Administrative Notice. 22 See generally Bupa Australia Pty Ltd v iSelect Ltd (No 1) [2012] FCA 587. 23

A proceeding was ordered not to be conducted in the Fast Track list in Utex Pty Ltd v Maritime Global Pty Ltd [2010] FCA 1149. 24 As occurred in Schütz GMBH & Co KGAA v VIP Plastic Packaging Pty Ltd [2013] FCA 424. 25 Flashback

Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 4) [2009] FCA 461 at [7] (Perram

J). 26

[2012] FCA 133 at [24] (Kenny J). See also National Heavy Vehicle Regulator v Countrywide Marketing Pty Ltd [2015] FCA 351 (Greenwood J). 27 [2011] FCA 881 at [3]. 28 See generally Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518; 66 ALR 371. 29

[2007] FCA 111 at [50], [52] (French J). Leave to cross-claim against a non-party was necessary in that case because of the wording of former O 5 r 8 of the Rules 1979. Leave in this regard is no longer required under the Rules, except where an extension of time to file a cross-claim is involved. 30 [2011] FCA 1059. 31

Reiterated in De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 4) [2011] FCA 1426 at [14] (Tracey J); De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 5) [2012] FCA 1241 at [29] (Tracey J). 32 De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 4) [2011] FCA 1426 (Tracey J). 33

De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 5) [2012] FCA 1241; De Brett Seafood Pty Ltd v Qantas Airways Ltd (No 6) [2013] FCA 591. See also Ogenic Ltd v Deloitte Touche Tohmatsu [2000] FCA 894 at [15] (French J) regarding the difficulty of predicting the impact of a late joinder of persons in contribution claims on the parties in complex proceedings. 34 [2012] FCA 329 per Dodds-Streeton J. See particularly at [79]. 35

[2000] FCA 894 at [14], citing Queensland v JL Holdings Pty Ltd (1996-97) 188 CLR 146; cf Aon Risk

Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (discussed at 1.7). 36 See discussion at 3.8–3.10. 37 Garrett v The Chief Executive of Austrade (No 2) [2015] FCA 242 at [9] (Jessup J). 38

[2012] FCA 977 at [7] (Reeves J). See also Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282. 39 This limit applies only to proceedings commenced on or after 1 February 2014. 40 Rules Sch 1. 41

Regarding interlocutory judgments and appeals, see s 24 of the FCA Act, discussed at 11.4. Whether an interlocutory order may be ‘re-visited’ is considered in Chapter 10. 42 See r 17.01(1) and Div 29.1 on affidavits, generally. 43 Refer to r 17.02(1) and the requirements of r 17.02(2). 44 See Interim Practice Note NCF 1 – National Court Framework and Case Management at [4.3] and

Federal Court of Australia, ‘Commencement of Commercial & Corporations National Practice Area (NPA)’ . 45 [2015] FCA 722 (Edelman J). 46

See, for example, Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 at [44] (Reeves J); Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16 at [41]–[42] (Kenny J). 47 [2014] FCA 16 at [42] (Kenny J). 48 [2013] FCA 716 at [19] (Jessup J). 49 [2001] FCA 1333 (emphasis in original). 50

Quoted with approval in Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd (No 2) [2013] FCA 716 at [19] (Jessup J). 51 [2012] FCA 1138. 52 Justice Steven Rares, ‘A Judge’s Viewpoint: the Role of Pleading’ (FCA) [2012] Federal Judicial

Scholarship 25 (A paper by the Hon Justice Tamberlin and updated by the Hon Justice Rares) . 53 Ibid at 3–4. 54 [2012] FCA 1157 at [5]. 55

See also Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] (Logan J). 56 [2010] FCA 402 at [35], quoted in Kuek [2012] FCA 494 at [22]. 57 [2012] FCA 240 at [32] (Gray J). 58 Ibid. 59

Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [23] (Flick J), quoting White v Overland [2001] FCA 1333 at [4] (Allsop J). 60

Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883 at

[3]–[5] (Finkelstein J). On the interpretation of s 37M of the FCA Act within the context of pleadings and procedural fairness, see Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292 at [20] (Logan J). 61

Regarding the specific requirements for a statement of claim, see rr 16.01–16.02. Defences are dealt with under r 16.32 and the requirements for the filing of a reply are set out in r 16.33. 62 Statement of claim (Form 17); Defence (Form 33); Reply (Form 34). 63 [2012] FCAFC 97 at [89]–[90] (Perram, Dodds-Streeton and Griffiths JJ). 64 Darbyshire v Leigh

[1896] 1 QB 554; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [23] (Weinberg J). 65 Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd

[2002] FCA 1568 (Lindgren J), quoted with approval in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [22] (Hely J) and Takemoto v Moody’s Investors Service Pty Ltd [2010] FCA 407 at [12] (Flick J). 66 Elston v Commonwealth [2013] FCA 108 at [30] (Logan J). 67 Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292 at [19]

(Logan J). 68 Yarrabee Chicken Company Pty Ltd v Steggles Ltd (No 4) [2013] FCA 604 at [48] (Jagot J). 69

BWK Elders (Aust) Pty Ltd v Westgate Cool Co Pty Ltd [2002] FCA 88 at [12] (Mansfield J), citing with approval JC Decaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd [2000] FCA 1118 at [19] (Weinberg J). 70

Under the predecessor rule, O 11 r 13 of the Rules 1979, a traverse could be made either by a specific denial or a specific non-admission. There is no longer mention of the latter in the new rules on pleadings. There is little practical difference in effect between a denial and a non-admission. See generally Australian Competition and Consumer Commission v Flight Centre Ltd (No 3) [2014] FCA 292 at [31] (Logan J). 71

See Fried v National Australia Bank Ltd [2000] FCA 604 at [42]–[47] (Weinberg J) and specifically the precedents discussed at [44]. 72

See, for example, Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593 at [10] (Collier J). 73

[2014] FCA 1081 at [23], citing Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [24] (Hely J); Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2008] FCA 1623 at [2] (Greenwood J). 74

Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [24] (Flick J), citing Radisich v McDonald [2010] FCA 762 (Gilmour J). See also Nazdall Pty Ltd, in the matter of Yowdall Pty Ltd (as trustee for the Yowdall Unit Trust) v Herrmann [2013] FCA 94 at [33]; (2013) 210 FCR 264 at 273–4 (Reeves J); Fuller v Toms [2012] FCAFC 155 at [18] (Siopis, Gilmour and McKerracher JJ); Fuller v Toms [2015] FCAFC 91. 75 Australian Securities and Investments Commission v Kobelt (No 2) [2014] FCA 1118 at [7] (White J). 76 Note 1 to r 16.41. 77

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 at 371 (Gleeson CJ), citing Bruce v

Odhams Press Ltd [1936] 1 KB 697 at 712–13. See also Notes 1 and 2 of r 16.41. 78 Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712–13; Note 1 of r 16.41. 79 Phillips v Phillips (1878) 4 QBD 127; Note to r 16.45. 80

Regarding pleading ‘knowledge’, see Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; Palram Australia Pty Ltd v Rees [2013] FCA 649. 81 Australian Securities and Investments Commission v Kobelt (No 2) [2014] FCA 1118 at [8] (White J). 82 DP World Sydney Ltd v Maritime Union of Australia (No 1) [2013] FCA 278 at [6] (Perram J). 83 Ibid. 84 [2010] FCA 72 at [2]. 85 [2006] FCA 1395. 86 Valda

Pty Ltd v Macarthur Coal Ltd [2012] 1264 at [9] (Kenny J). The amendment may be to plead a fact or matter that occurred or arose after the proceeding commenced: see r 16.51(4). 87 Oswal v Apache Corporation (No 3) [2014] FCA 835 at [3] (Gilmour J). 88 Rule 16.32. 89 Rule r 16.33. A reply must be in accordance with Form 34. Refer to r 16.11 in relation to the matter of

a joinder of issue in situations where a reply is, or is not, filed. 90 Note to r 16.52. 91 Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562 at [51] (Foster J). 92 Aon Risk Services Australia Ltd v Australian National University

[2009] HCA 27; (2009) 239 CLR 175 at [112]–[113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), cited in Brooks on behalf of the Mamu People v Queensland (No 3) [2013] FCA 741 at [155] (Dowsett J). 93

Dye v Commonwealth Securities Ltd [2012] FCA 720 at [22] (Katzmann J), citing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [98]. See also Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2013] FCA 1204 at [21]–[29] (Edmonds J); Investa Properties Pty Ltd v Nankervis [2012] FCA 743 at [13] (Collier J); Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101. 94 [2009] HCA 27; (2009) 239 CLR 175. 95

See, for example, Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 at [51] (Keane CJ, Gilmour and Logan JJ) (the question arose whether the primary Judge erred in granting the applicant leave to amend its statement of claim on the first day of a twoweek hearing and resulting in the adjournment of the trial). See also Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2013] FCA 1204 at [27]–[29] (Edmonds J). 96 [2009] FCA 1014. 97

[2014] FCA 165 at [50]–[51]. See also Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (No 2) [2013] FCA 409; (2013) 213 FCR 289 (Murphy J). 98 See r 16.53 or, alternatively, rr 1.32, 1.33, 1.35. 99 UGL Services Pty Ltd v F1 Solutions Pty Ltd [2012] FCA 245 at [5] (Jagot J). 100 Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 1429 at [25] (Carr J). 101 See generally Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289.

102

Van Aken (as trustee of the Van Aken Family Trust) v Diver Nominees Pty Ltd [2012] FCA 829 at [76] (Dodds-Streeton J). 103 KC

Parksafe (Vic) Pty Ltd v Dallbrook Pty Ltd [1998] FCA 1279. See also Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd [2000] FCA 389; (2000) 97 FCR 313 at [39] (Gallop J) in relation to the burden of proof in strike out applications generally. 104

Elston v Commonwealth [2013] FCA 108 at [32] (Logan J), quoting Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [42]. 105

Salvation Army (New South Wales) Property Trust v Australia [2015] FCA 674 at [28] (Jagot J), citing Hodges v Sandhurst Trustees Ltd [2014] FCA 1223 at [7], in turn citing Empire Shipping Company Inc v Owners of the Ship Shin Kobe Maru [1991] FCA 499. 106 [2012] FCA 167 at [5]. 107 [2009] HCA 27; (2009) 239 CLR 175. 108 [1997] FCA 792, quoted in Haile-Michael v Konsrantinidis (No 2) [2012] FCA 167 at [7]. 109 [2013] FCA 414 at [13] (Barker J). 110 [2015] FCA 281. 111 [2014] FCA 1069. 112 [2012] FCA 829. 113 [2013] FCA 964. 114

Christou v Stantons International Pty Ltd [2010] FCA 1150. See other principles discussed in that case at [2] (McKerracher J). 115 See discussion at 3.7. 116

Alan Sullivan QC, ‘Preparing Affidavits and Evidentiary Statements’ (Paper presented to the New South Wales Bar Association Bar Practice Course, Sydney, May 2011). 117 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 at [175] (Callinan J). 118 Byrnes v Jokona Pty Ltd [2002] FCA 41 at [14] (Allsop J). 119 Justice Alan Robertson, ‘Affidavit Evidence’ (FCA) [2014] Federal Judicial Scholarship 3

. In particular, note the discussion on whether it is a requirement that the witness use direct speech. 120 See r 5.04 (item 21). 121

Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242 at [5] (Stone J), citing Ammerlaan v The Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164 at 173 (Olsson J). See also Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14] (Katzmann J). 122

See generally Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report No 89 (2000) [6.67]; Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115 (2011). 123

If a party gives discovery in the absence of a Court order, any entitlement to the costs of the discovery is lost (r 20.12(2)). Bearing in mind, however, the Court has a discretion in relation to costs (FCA Act s 43) and a general power to make any order it considers appropriate in the interests of justice (r 1.32).

124

See, for example, Rinehart v Rinehart (No 2) [2015] FCA 339 at [30] (Gleeson J); Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14], [17] (Katzmann J); Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] (Mansfield J); Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] (McKerracher J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 at [44] (Collier J); Australian Mud Company Pty Ltd v Cortell Pty Ltd (No 3) [2012] FCA 778 at [20] (Barker J); Bupa Australia Pty Ltd v iSelect Ltd (No 1) [2012] FCA 587 at [6] (Dodds-Streeton J), quoting Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63 at [14] (Barker J); Coca-Cola Company v Pepsico Inc [2011] FCA 1069 at [34] (Dodds-Streeton J). 125 [2006] FCA 116 at [3]. 126 See Pasini v Vanstone [1999] FCA 1271 at [30] (Finn J) and the cases cited therein. 127

Practice Note CM 5 at [2(a)]; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] (Mansfield J). 128 Practice Note CM 5 at [4]. 129 [2015] FCA 339 at [32]–[34] (Gleeson J). 130 Regarding the factors a party may take into account in making a reasonable search, see r 20.14(3). 131

(1882) 11 QBD 55. See generally Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [17] (Katzmann J); Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63 at [20]–[24] (Barker J); Taylor v Saloniklis (No 3) [2014] FCA 744 at [30] (Besanko J). 132

Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [18]. 133

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] (Mansfield J); Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 at [92] (Flick J), citing Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 (Lindgren J). 134 Rinehart

v Rinehart (No 2) [2015] FCA 339 at [37] (Gleeson J), citing Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436–7 (Lindgren J). 135 [2012] FCA 143 at [20]. 136 Taylor v Saloniklis [2013] FCA 679 at [7] (Besanko J). 137 Rules Sch 1. 138 City of Swan v McGraw-Hill Companies Inc [2014] FCA 1271 at [7] (Rares J). 139 Ibid at [10]–[13]. 140 Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204 at [28] (Barker J). 141

Section 43(3)(h) of the FCA Act was enacted further to a recommendation of the Australian Law Reform Commission in its report on discovery. See Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115 (2011). 142

See generally Sankey v Whitlam (1978) 142 CLR 1; Commonwealth v Northern Land Council (1991) 30 FCR 1; 103 ALR 267; Zarro v Australian Securities Commission (1992) 36 FCR 40 (public interest immunity); Jacobsen v Rogers (1995) 182 CLR 572; Trade Practices Commission v Queensland Aggregates Pty Ltd [1981] FCA 93 (public interest immunity and confidentiality).

143 Consult also the discussion on privilege at 2.15. 144 See also Evidence Act 1995 (Cth) Pt 3.10. 145 [2012] FCA 587 at [9]. 146

For her Honour’s discussion of the key differences between the wording of Practice Note CM 5 and r 20.14, see at [10] of the judgment. 147 Austal

Ships Pty Ltd v Incat Australia Pty Ltd [2009] FCA 368 at [150] (McKerracher J), citing KGL Health Pty Ltd v Mechtler [2008] FCA 273 at [9] (Tamberlin J). 148 Mathews

v Queensland [2014] FCA 424 at [14] (Rangiah J); Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [9] (McKerracher J). 149 [2012] FCA 778 at [20]–[21] (Barker J). 150 [2014] FCA 744 at [35] (Besanko J). 151 [2013] FCA 216 at [35]. 152 Ibid at [37], citing Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4)

(1995) 58 FCR 426 at 438. 153 Rules 20.16, 20.17(1), (4). 154 Note 2 to r 20.16. 155 See generally at 6.24. 156 MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 at [60] (Barker J). 157 Ibid at [63]. 158 Note 1 to r 20.16. 159 Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd [2009] FCA 1370 at [7] (Collier J). 160 Ibid. 161 Hamden v Campbell [2012] FCA 65 at [10] (Lander J). 162

See, for example, Lifeplan Australia Friendly Society Ltd v Woff [2014] FCA 559 at [15]–[18] (Besanko J); Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 at [97]–[99] (Flick J). 163

[2012] FCA 63 at [39], quoted in Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 at [99] (Flick J). See also Chevron Australia Pty Ltd v The Maritime Union of Australia [2015] FCA 376 at [2] (Gilmour J). 164

Haile-Michael v Konstantinidis (No 3) [2013] FCA 53 at [12] (Jessup J) (application for particular discovery refused because the particular documents had a ‘rather indirect point of anchorage … in the issues relevant in the case …’). 165 Hamden v Campbell [2012] FCA 65 at [10] (Lander J). 166 Slick v Westpac Banking Corp (No 2) [2006] FCA 1712 at [43] (Jacobson J). 167 See, for example, rr 20.13(4), 20.15(1)(d). 168 Practice Note CM 5 at [2(c)(v)]. 169 For assistance regarding the operation of Practice Note CM 6, see the information provided by the

Court at . 170 Practice Note CM 6 at [1.2], [3].

171 Ibid at [4]. 172 Ibid at [6]. 173 Mathews v Queensland [2014] FCA 424 at [15] (Rangiah J). 174

Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd (No 2) [2006] FCA 741. 175 Lion-Dairy

& Drinks Pty Ltd v Sinclair Knight Merz Pty Ltd [2014] FCA 114 at [11]–[13] (Griffiths

J). 176

Regarding the requirement of ‘control’, see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 374 at [7] (Jessup J). For the procedures governing the making and service of an application under r 20.32, see rr 20.32(2)–(4). 177 Consult discussion at 6.25. 178 Only subpoenas for production are examined here. The other two types of subpoenas are considered

within the context of hearings at 9.15. 179 Air Pacific Ltd v Transport Workers Union of Australia (1993) 40 FCR 1. 180 Note 2 to r 24.01. 181 This occurred in Spencer v Commonwealth [2014] FCA 1234. For other potential reasons for a Judge

deciding to list the matter in open court when considering whether to grant leave to issue a subpoena for production, see Rirratjingu Aboriginal Corporation v Northern Land Council [2014] FCA 1281 at [2]–[4] (White J). 182

See, for example, Spencer v Commonwealth [2014] FCA 1234 at [13]–[14] (Mortimer J), citing Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 at [28] (Bromberg J) and McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 at [35] (Greenwood J). See also at 6.35. 183

[2014] FCA 1234 at [16]–[20] and see the cases cited therein, particularly Wong v Sklavos [2014] FCAFC 120 at [12] (Jacobson, White and Gleeson JJ). 184 [2014] FCA 1281 at [16]–[21]. 185 [2013] FCA 616. 186

Rule 39.05. See also Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707 at [10] (Jessup J). 187 [2011] FCA 1106 at [3]. 188 [2011] FCA 1501 at [25]–[28]. 189

For example, in Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 16) [2012] FCA 1255 (ground of irrelevance); The Change Group International Plc v City Exchange Mart Pty Ltd [2012] FCA 1188 (grounds of irrelevance, scope of subpoena too broad and oppressive); Enshan Resources Pty Ltd v AIOI Insurance Company Ltd [2011] FCA 1392 (grounds of subpoenas oppressive, an abuse of process and too broad and that improper language used in the subpoenas); Pei Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2013] FCA 676 (many grounds raised and subpoena set aside only in part). 190 Telstra Corp Ltd v AAPT Ltd [1999] FCA 1410 at [10] (Einfeld J). 191 [2013] FCA 737. 192 [2011] FCA 1328.

193 See, for example, Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284. 194

Burrup Fertilisers Pty Ltd (recs and mgrs apptd) v Oswal (No 6) [2012] FCA 590. Consider also the operation of r 24.15(1): ‘The Court may … grant other relief in relation to …’ a subpoena. 195

Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707 at [4] (Jessup J). 196 See Construction,

Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6] (Collier J) and the cases cited therein. 197 Rule 30.28(1); the Note to r 30.28. 198 United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 50. 199 [2011] FCA 1152 at [14]. 200

For example, in Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707 at [11] (Jessup J); Suzlon Energy Ltd v Bangad [2011] FCA 1152 at [12]–[13] (Rares J). 201

Notice to produce set aside in Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 7) [2012] FCA 1280 (Perram J) (certain parts of the notice set aside for being akin to discovery or too broad in scope) and in Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 (Collier J) (timing of notice to produce was unreasonable and disruptive to trial, as well as the fact that discovery already ordered and the documents now sought were not sufficiently relevant to justify their production). 202 Such as in McGrath v HNSW Pty Ltd (No 2) [2015] FCA 442 (Gleeson J) (notice to produce held not

to be an abuse of process). 203 [2012] FCA 61 at [6]–[7] (Collier J) and see the cases cited therein. 204

[2010] FCA 964 (Stone J). See also Burrup Fertilisers Pty Ltd (recs and mgrs apptd) v Oswal (No 7) [2012] FCA 1185 (Barker J). 205

See, for example, Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 237 (Goldberg J). 206 Hodges v Waters (No 1) [2013] FCA 737 at [12] (Perram J). 207

See, for example, Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707 at [5] (Jessup J); Hua Wang Bank Berhad v Commissioner of Taxation (No 1) [2012] FCA 589 at [9]–[10] (Perram J); Pasini v Vanstone [1999] FCA 1271 at [30] (Finn J). 208 [2012] FCA 707 at [6]. 209 [1998] FCA 9497. 210 [1999] FCA 212 at [50]. 211

Regarding a notice to produce, see Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707 at [5] (Jessup J). The Court similarly will wish to intervene to protect its processes where a party has obtained an order for discovery from a government party while simultaneously making a freedom of information request directed at that party: see Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) [2000] FCA 495 at [51] (Merkel J). 212 [2000] FCA 519 at [3] (Finn J). 213

See generally Adams v Dickeson [1974] VicRp 10; [1974] VR 77 at 79 (Winneke CJ, Gillard and Nelson JJ).

214

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [97] (Greenwood J). 215 [2010] FCA 230 at [7]–[17]. 216 Chief Justice Robert French, ‘The Future of Litigation: Dispute Resolution in Jurassic Park?’

(Address delivered at the Annual Conference of the Bar Association of Queensland, 7 March 2000) . 217

Unpaid Systems Ltd v Telstra Corporation Ltd (No 2) [2014] FCA 1377 at [47] (Yates J); Lynx Engineering Consultants Pty Ltd v ANI Corp Ltd t/as ANI Bradken Rail Transportation Group (No 5) [2011] FCA 216 at [12] (McKerracher J). For other objectives of interrogatories, see Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [92] (Greenwood J) and the cases cited therein. 218 Unpaid Systems Ltd v Telstra Corporation Ltd (No 2) [2014] FCA 1377 at [47] (Yates J). 219 Lynx

Engineering Consultants Pty Ltd v ANI Corp Ltd t/as ANI Bradken Rail Transportation Group (No 5) [2011] FCA 216 at [7] (McKerracher J). 220

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [98]. 221 Ibid at [91]. 222

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [99], citing Aspar Autobarn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR 284 (Woodward J). 223 Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795 at [6] (McKerracher J). 224

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [99]. 225 Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795 at [8], [10]. 226 John

Baptist Nella v Kingia Pty Ltd [1987] FCA 299 at [16] (French J); Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2010] FCA 230 at [99]–[100]. 227 Rules Sch 1. 228 Director

of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 420 at [17] (Gilmour

J). 229 Lo

Pilato (liquidator) v Barclays Workshop Pty Ltd (in liq) [2013] FCA 729 at [11] (Foster J); Smits v Loel [2014] FCA 1341 at [53] (Rangiah J). 230 See generally Wang v Anying Group Pty Ltd (No 3) [2012] FCA 1380 at [15] (Foster J). 231 [2013] FCA 729 at [12] (Foster J). 232 [2000] FCA 1732. 233

See also Kazar, Re; Frontier Architects Pty Ltd (in liq) [2012] FCA 1381 at [162] (Flick J) (regarding the withdrawal of a statement of ‘does not plead’ in a defence). 234 [2014] FCA 1393 at [3] (Wigney J). 235 [2009] FCA 447 at [13] (McKerracher J). 236

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 at

[49] (Gray J). 237 [2015] FCA 420, see especially at [22]–[23]. 238 [2015] FCA 378 at [13] (Perram J). 239 See at [5.4.1]. 240 See Justice John Griffiths, ‘Some Ethical Issues for Legal Practitioners’ (FCA) [2014] Federal Judicial

Scholarship 4 . 241 [2002] FCA 93 at [24]. 242 Available at . 243 The email addresses of associates may be obtained from the Court’s website at

under the ‘Contact Us’ details for each District Registry. 244 See at [8]. 245 See at [5.4.2]. 246 [2009] FCA 1148 at [20]. 247 [2011] FCAFC 34 at [22] (North, Kenny and Dodds-Streeton JJ). 248 Abbreviated to ‘The Hon’. See FCA Act s 6(6). 249 See the Court’s website at . 250 For further guidance, consult the Court’s website at .

[page 181]

Chapter 7

COURT AND REGISTRY TRANSFERS This chapter covers: • •

• •

•

Choice of place for the proceeding …. Change of venue …. Registry transfers …. In what circumstances will a transfer be ordered? …. Costs of transfer application …. Transfers to the Family Court …. When will a proceeding be transferred to the Family Court? …. Transfers to the Federal Circuit Court …. The application for transfer …. Discretionary factors …. Costs implications …. Associated matters …. AAT appeal transfers …. Transfers from the Federal Circuit Court …. Cross-vesting legislation …. Transfers to State and Territory courts …. In the ‘interests of justice’ and other factors …. Transfers to the Court ….

Choice of place for the proceeding

7.1 7.2 7.2 7.3 7.4 7.5 7.5 7.6 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.12 7.13 7.14

7.1 A proceeding that is not brought in the most appropriate forum (court) or venue (Registry of the Court) for its conduct may result in an order for transfer of the proceeding to another forum or venue for the hearing and determination of the dispute. Another court or Registry may need to be substituted in a proceeding by reason of the location of witnesses, jurisdictional factors, contractual terms agreed to by the parties, statutory provisions or other legal considerations. Such an inter-Registry or inter-court transfer may come about on the application of a party (by the applicant, due to a change of mind or by a respondent for a tactical advantage) or by the Court’s own initiative. Sometimes the original choice of forum will not be the most prudent choice from the outset, and at other times a change in the nature or complexities of a matter may call for a sudden transfer of the proceeding. Regardless of the [page 182] reason for a transfer order, a lawyer must be alive to the need to first choose the most appropriate forum or venue when instituting a proceeding in the Court and secondly, to be prepared for the possibility of a transfer at any stage of the proceeding leading up to the trial. To avoid the delay and expense, not to mention potential exposure to an adverse costs order, occasioned by a transfer of proceedings, a clear understanding is required of the circumstances in which a transfer order may be made by the Court. There are four main transfer scenarios envisaged by the civil practice and procedure provisions that may impact upon an applicant’s initial choice of the Court or of a particular Registry for the resolution of a dispute. These scenarios are: a change of Registry and a transfer from the Court to the Family Court of Australia, the Federal Circuit Court of Australia and a State or Territory court. Mechanisms exist, of course,

for transfers by such courts to the Court,1 and remittals by the High Court to the Court may also occur.2 Both of these scenarios are beyond the scope of this chapter to consider in any detail.

Change of venue Civil practice and procedure provisions Rule 2.02 of the Rules Section 48 of the FCA Act

Registry transfers 7.2 One might expect to find within Pt 27 of the Rules, dealing with the ‘Transfer of Proceedings’, a rule governing the transfer of a proceeding commenced in one Registry of the Court to another Registry, but that is not the case. Instead, r 2.02 within Pt 2 (dealing with ‘Registry and Documents’) enables a party to apply at the ‘proper place’ for an order that a proceeding be transferred to another place. The term ‘proper place’ is defined in the Dictionary3 to mean: (a) The place where the proceeding is started; or (b) If the proceeding is transferred to another place — the other place, from the date of transfer.

The ‘proper place’ of a proceeding is to be distinguished from its ‘place of trial’.4 A proceeding may remain at the ‘proper place’ (or with the ‘proper Registry’),5 yet be heard at a different place for the practical convenience of the Court or [page 183] parties. Unless a proceeding has been formally transferred to another Registry

(or court), it remains a proceeding of the proper Registry at the proper place. The power of the Court to order a transfer of civil proceedings resides in s 48(1) of the FCA Act. Notably under that provision, a transfer order may be made at any stage of a proceeding in the Court, the whole or a part of the proceeding may be transferred and the Court may impose conditions upon the transfer. The Court also has, as expressed in s 23 of the FCA Act, a general power, in relation to matters in which it has jurisdiction, to make (interlocutory) orders of such kinds as it thinks appropriate. So, too, within its appellate jurisdiction, the Court may, under s 28(1)(b) of the FCA Act, make (or refuse to make) any such orders as ‘in all the circumstances it thinks fit’.

In what circumstances will a transfer be ordered? 7.3 There is no strict burden of proof on a party seeking a transfer of a proceeding under s 48 of the FCA Act.6 Unless the applicant’s choice of venue is capricious, the Court will need to be satisfied that there is a sound reason to order that the proceeding should be conducted elsewhere.7 No single factor is likely to be determinative and the Court will weigh a number of factors.8 The broad range of potential variables enables the Court proper and sufficient flexibility in the exercise of its discretion, having regard to the circumstances of each case. In Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd,9 Jessup J remarked that the broad discretion under s 48 must be exercised ‘conformably with the purposes referred to in ss 37M and 37N of [the FCA Act]’, and which provisions are not ‘antagonistic’ with the traditional discretionary considerations for the transfer of proceedings. In general, the Court will consider ‘where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them; and the most efficient administration of the Court’.10 So, too, French J (as his Honour then was) in Lamb v Hog’s Breath Company Pty Ltd (No 1)11 observed that:

The question of the Registry from which the proceedings should be conducted does not raise matters of high principle. It is essentially a matter of case management and proper recognition of the legitimate interests of each of the

[page 184] parties reflected, in part, in the balance of convenience as between them and, of course, the convenience of the Court and any economies and efficiencies that may attach to one choice or another.

The fact that the Court is a national court, with all of the case management flexibility this brings, has been duly recognised in the case law. Thus, in considering a number of authorities in Mulhern v Pearce,12 Robertson J observed that the Court has the capacity to make flexible arrangements for the taking of evidence and that one Registry can conduct pre-trial management while allocating the trial to a Judge in a different Registry. Where the litigation raises important matters of public interest for the community of the proper place, the Court may prefer for the proceeding to be determined within that place, although it has recognised that other factors may outweigh the public interest and justify a change of forum.13 In cases of the relative inconvenience to the parties being finely balanced, the Court may choose to exercise its discretion against granting a transfer.14 Even the apparent silence on the topic of transfer of some parties to a proceeding has constituted a ground for the Court refusing a transfer application, as occurred in Australian Competition and Consumer Commission v Pauls Ltd.15 A transfer under r 2.02 and s 48 of the FCA Act would appear to be more likely to occur where, as in Truong Giang Corp v Tung Mau Quach (Truong Giang Corp),16 the following factors apply: the party applying for transfer has a real connection with the proposed place of transfer, whereas the applicant does not (apart from the location of its legal representatives); the cause of action arose solely or substantially in the proposed place of

transfer; the majority of the witnesses are based in the proposed place of transfer as distinct from the place where the proceeding is brought; the transfer to another venue would not adversely affect the applicant, apart from requiring legal representatives to travel interstate, which the Court described as a ‘neutral factor’; and the proceeding is at an early stage, such that a transfer would, as a matter of case management, not disrupt the progress of the case in any significant way or require the duplication of work. [page 185] Although the location of the witnesses will be a key factor in the decision to transfer, it is not necessarily determinative of the matter.17 In Leda Holdings Pty Ltd v Securcorp Ltd,18 the Court held that the ‘economical and efficient conduct of the proceeding’ would be best promoted by a transfer order because the case substantially relied upon evidence and witnesses from interstate. On the other hand, similar considerations of efficiency weighed on the mind of the Court in British American Tobacco Australasia Ltd v Taleb (No 2),19 but resulted in the refusal of a transfer application. In that case, the Court (at [25]) considered that ‘a transfer of the proceeding at this stage would result in delay, disruption, duplication of work and inconvenience and inefficiency from the perspective of the [C]ourt, for no obvious substantial gain’. This supports the notion expressed in Truong Giang Corp, above, that the timing of a proposed transfer is an important factor and that any application for transfer is more likely to be successful the earlier it is brought in the conduct of a proceeding. In Nazdall Pty Ltd v Herrmann,20 Marshall J similarly noted that where a matter is well advanced, the Court may be reluctant to transfer a proceeding. Where there have been limited preparatory

steps taken by the parties towards preparation for trial, his Honour suggested that the Court will be less reluctant to make a transfer order. Other relevant factors include the location or residence of the parties and the expense to the parties.21 Whether a particular jurisdiction has been agreed to in advance by the parties as the governing law of their legal transaction or relationship may also be weighed up with all other relevant factors.22 As suggested by Truong Giang Corp, above, the location of the parties’ legal advisers is generally accorded little weight because it has been said that the selection of counsel and solicitors is a matter for the parties.23 By contrast, in Austal Ships Pty Ltd v Stena Rederi Aktiebolag,24 Crennan J viewed the location of the legal representatives as having an important bearing on the transportation and related costs of a change of venue. Needless to say, a party making an application for the transfer of a proceeding should avoid the impression of ‘Judge shopping’. The Court is unlikely to be persuaded to transfer a proceeding for the sole reason of reallocating it to the docket of a specific judicial officer preferred by a party.25 As seen in Chapter 1, [page 186] docket allocation is a matter for the Court having regard to the individual docket system and the National Court Framework.

Costs of transfer application 7.4 As with any interlocutory application made to the Court, the unsuccessful party to a transfer application may be exposed to an adverse costs order. A review of the authorities on applications made under r 2.02 and s 48 of the FCA Act suggests, however, that the Court has no standard costs orders in these matters. On occasion, the Court has reserved the question of costs26 or

has deferred the issue to the (new) trial judge.27 Some judgments do not appear to address the question of costs at all or, as occurred in Louis Vuitton Malletier SA v Knierum,28 contain a direction that there be ‘no order as to costs’. In Build-A-Bear Workshop Inc v The Bear Kid’s Workshop Pty Ltd,29 a successful transfer application resulted in an order that the costs of the interlocutory application be the costs of the parties in the proceeding. The Court in Leda Holdings Pty Ltd v Securcorp Ltd30 ordered the costs of the successful interlocutory application for transfer to be the relevant respondents’ costs in the cause. A similar costs order was made in Truong Giang Corp v Tung Mau Quach,31 although the successful respondent had sought indemnity costs. Such costs were sought by him on the basis the applicant should have consented to the transfer, bearing in mind its obligations under ss 37M and 37N of the FCA Act. The Court found (at [14]) that there was no evidence before it to support a breach of those provisions or the argument that the applicant’s opposition to the transfer lacked merit.

Transfers to the Family Court Civil practice and procedure provisions Division 27.1 of the Rules See legislation referred to in Table 7.1

When will a proceeding be transferred to the Family Court? 7.5 Although at first glance general federal law and family law proceedings seem to have nothing in common, the Rules do provide a mechanism for seeking [page 187]

the transfer of certain types of proceedings from the Court to the Family Court of Australia (Family Court). Under r 27.01, the sole provision in Div 27.1, a party may make an application to the Court to transfer a whole proceeding (or part thereof) to the Family Court in accordance with the ‘transfer legislation’ outlined in Table 7.1. Table 7.1: Legislation governing transfer of proceedings to Family Court Legislation Section (Cth) Administrative 18A Decisions (Judicial Review) Act 1977 (Cth)

Scope of provision A party may apply for a transfer order or the Court may make such an order of its own motion (s 18A(1)). The jurisdiction and powers of the Family Court (and other matters) in relation to the transferred proceeding are dealt with in ss 18A(3)–(4). No appeal lies from a transfer decision (s 18A(5)).

Competition and Consumer Act 2010 (Cth)

138E

Strictly speaking, r 27.01 refers to the ‘Australian Consumer Law’ (that is, Sch 2 of the Competition and Consumer Act 2010 (Cth)), but the transfer section is found within the body of that Act. The wording and content of s 138E is similar to that of s 18A of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see generally comments above).

Bankruptcy Act 1966 (Cth)

35A

The wording and content of s 35A is similar to

that of s 18A of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see generally comments above). Taxation 14ZZS Administration Act 1953 (Cth)

Rule 27.01 refers to the ‘Income Tax Assessment Act 1936’, but the relevant transfer provision is located in the tax administration legislation. The wording and content of s 14ZZS is similar to that of s 18A of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see generally comments above).

A lawyer acting for a party in a proceeding before the Court should be aware of the existence of any current or pending family law proceeding involving the same or related parties. If so, regard should be had to whether those family law proceedings involve a question relating to judicial review, consumer law, bankruptcy or income tax legislation, which can potentially result in the proceeding in the Court becoming the subject of a transfer to the Family Court. [page 188] It should be noted that Div 27.1 is titled ‘Family Court of Australia’ and r 27.01 refers explicitly to that court. Accordingly, that rule does not extend to any application for an order to transfer proceedings to the Family Court of Western Australia.32 Moreover, the transfer legislation defines ‘the Family Court’ to mean the Family Court of Australia, such as in s 5 of the Bankruptcy Act 1966 (Cth) and s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Given the relative dearth of case law on Court-to-Family Court transfers, it is difficult to know the precise circumstances in which the Court is most likely to make an order under the above statutory mechanisms. The limited authorities do point generally, however, to a transfer being in the ‘interests of justice’.33 In Re John Lawrence Sharpe; Ex Parte: Powell v Donnelly (Re John Lawrence Sharpe),34 a bankruptcy matter involving (in part) an application for annulment of a bankruptcy, Lindgren J balanced considerations of efficiency and economy of judicial administration with those of what the justice of the case requires. His Honour was cognisant that to avoid the duplication caused by the substantial overlap of matters before the two courts, it was more efficient and cost-effective for all the issues to be resolved in the one court. His Honour was not persuaded by submissions to the effect that the transfer should not occur by reason of: the Court being more experienced than the Family Court in the bankruptcy jurisdiction; the legal representatives of the Trustee and bankrupt party would be more comfortable litigating in the Court; the Trustee would become needlessly immersed in protracted family law proceedings; and the fact that most creditors were opposed to the transfer. The above notions of efficiency and the interests of justice considered in Re John Lawrence Sharpe, above, were adopted with approval by Carr J in Mitchell v McGillivray,35 also a bankruptcy proceeding.

Transfers to the Federal Circuit Court Civil practice and procedure provisions Division 27.2 of the Rules Rule 40.08 of the Rules – Costs

Sections 32AA and 32AB of the FCA Act Section s 44AA of the Administrative Appeals Tribunal Act 1975 (Cth) [page 189]

The application for transfer 7.6 The Federal Circuit Court of Australia (Federal Circuit Court) commenced sitting in mid-2000 as a ‘cheaper, simpler and quicker’ court of general federal law, as well as family law, jurisdiction. As seen at 1.2, it shares jurisdiction with the Court in a number of general federal law areas, including bankruptcy, administrative law and human rights.36 The intention of the legislature in creating the Federal Circuit Court with such concurrent jurisdiction is that, generally speaking, more complex matters are to be litigated in the Court (or Family Court) and less complex matters should be litigated in the Federal Circuit Court.37 Given s 37M of the FCA Act requires the Court to promote the resolution of disputes ‘according to law and as quickly, inexpensively and efficiently as possible’, it follows that the transfer of civil proceedings by the Court to the Federal Circuit Court may, in appropriate cases, serve to promote both the object of the establishment of the Federal Circuit Court and the overarching purpose of the civil practice provisions of the Court. Indeed, a review of the annual reports of the Court reveals that the majority of all inter-court transfers made by the Court each year since 2000–01 involve the Federal Circuit Court.38 A party may, under r 27.11 of the Rules, make an application for an order transferring a ‘proceeding’ to the Federal Circuit Court, and the Court may make such an order in accordance with s 32AB(1) of the FCA Act. A matter within the appellate jurisdiction of the Court, however, may not be the subject of an application under r 27.11.39 The phrase ‘proceeding’ means ‘a proceeding in a court, whether between parties or not, and includes an

incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal’.40 By reason of the expression ‘if a proceeding is pending in the Court’ contained in s 32AB(1), it has been held that the Court has the power to order a transfer of a pending proceeding even when it otherwise has no jurisdiction to hear and determine the dispute.41 The Court may make a transfer order of its own motion in accordance with the express power conferred by s 32AB(2)(b) of the FCA Act, as well as under the general power in r 1.40.42 This power has been recognised in both cases where the parties are amenable to the prospect of transfer (as, for example, in Travers v New South Wales43 and in Rixon v Business Parcel Express Pty Ltd,44 [page 190] in which Jacobson J regarded such consent as being ‘decisive’ of the order to transfer) and in cases where one or more of the parties is opposed to the transfer.45 Similar to the situation observed in respect of the other transfer legislation considered in this chapter, no appeal lies from a transfer decision of the Court made under s 32AB(1).46

Discretionary factors 7.7 The transfer of a civil proceeding by the Court to the Federal Circuit Court will be the result of an exercise of discretion, having regard to a number of factors outlined in both the Rules and the FCA Act. As noted by Flick J in Sagacious Legal Pty Ltd v Lumley General Insurance Ltd t/as Lumley Special Vehicles (Sagacious):47 The discretion is otherwise unconfined, although it remains a discretionary power to be exercised judicially and by reference to the facts and circumstances of each individual case which comes before the Court.

With regard to the Rules, r 27.12(2) expressly requires the parties to

address the matters set out in s 32AB(6) of the FCA Act. This is in addition to the matters mentioned in r 27.12(3); namely, whether: the proceeding is likely to involve questions of general importance (para (a)); it would be less expensive and more convenient to the parties if the proceeding were transferred (para (b)); the proceeding would be determined more quickly if transferred (para (c)); and a transfer would accord with the wishes of the parties (para (d)). The transfer factors addressed by s 32AB(6) are those matters to which the Court must have regard when deciding whether to transfer a proceeding to the Federal Circuit Court, being: the Rules and, specifically, r 27.12(3) (para (a)); whether there is any proceeding in respect of an associated matter pending in the Federal Circuit Court (para (b));48 whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding (that is, the availability of a Federal Circuit Court judge in the near future means that the proceeding will be heard in that court sooner than if it were to remain in the Court) (para (c)); and the interests of the administration of justice (para (d)). [page 191] When determining whether a proceeding should more appropriately be dealt with by the Federal Circuit Court, the Court will perform a balancing act in weighing up all of the above factors. Some of the different contexts in which the discretion has been exercised were considered by Flick J in

Sagacious, above (at [6]), and in Denison v Boart Longyear Pty Ltd.49 No single factor would appear to sway the Court in deciding to transfer, although emphasis does seem to be placed in the authorities upon the ability of the Federal Circuit Court to hear the matter sooner (or at least not later) than the Court and the expectation that less legal costs will be incurred in the Federal Circuit Court.50 A proceeding may be retained in the Court because of a docket Judge’s existing familiarity with the claims, resulting in the proceeding being capable of more expeditious resolution and cost-effective case management if not transferred to the other court.51 In granting the applicants’ application for a transfer order under r 27.11 in Facton Ltd v Redac International Pty Ltd,52 the Court accepted that party’s submissions that the hearing would take no longer than three days, the quantum of the claim (if successful) would not exceed $150,000 and that the Federal Circuit Court could hear the matter sooner than if it were to remain in the Court. By contrast, the respondent’s application for transfer in Koutouvas v Coca-Cola Amatil (Aust) Pty Ltd53 was dismissed because it was held that the questions raised by the proceeding were of such general importance that the interests of the administration of justice did not dictate that the proceeding should be transferred. A factor not mentioned in r 27.12 or s 32AB, but one to which reference has been made in a number of judgments of the Court, is that of the savings in judicial resources within the context of potential appeals from the Federal Circuit Court or, to use the words of Carr J in WAAL v Minister for Immigration and Multicultural Affairs (WAAL),54 ‘one aspect of the administration of justice is the efficiency of the allocation of resources’. A proceeding that is not transferred to the Federal Circuit Court would ordinarily be heard and determined by a single Judge. Any appeal from that decision would be heard by a Full Court of (usually) three Judges sitting within the Court’s appellate jurisdiction, in accordance with s 25(1) of the FCA Act. By contrast, a proceeding that has been transferred to the Federal Circuit

Court would most likely, in the event of an appeal to the Court from a decision of the Federal Circuit Court, be heard by a single Judge sitting within the [page 192] appellate jurisdiction under s 25(1AA) of the FCA Act.55 Again, in considering the words of Carr J in WAAL, above (at [17]): In my view, the administration of justice includes not only the giving of a fair hearing to the parties in this matter and a right of appeal, but also the expeditious hearing and determination of other matters awaiting hearing in this Court.56

The above sentiment expressed by his Honour was echoed by Jagot J in Kheir’s Financial Services Pty Ltd v Aussie Home Loans Ltd.57

Costs implications 7.8 An applicant who decides to oppose a proposed transfer of their proceeding to the Federal Circuit Court ought to consider the potential costs implications in the event the proceeding is ultimately heard by the Court and the applicant does not recover damages in excess of $100,000. Rule 40.08 provides that a party in a proceeding, other than in an admiralty matter, may apply to the Court for an order that any costs or disbursements payable to another (successful) party be reduced by an amount specified by the Court. This occurs if, under para (a) of that rule, the applicant has claimed damages and has been awarded a sum of less than $100,000. Under r 40.08(b), a party may also make a similar application where ‘the proceeding (including a cross-claim) could more suitably have been brought in another court or tribunal’. The policy rationale for this rule was noted in Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) (Kismet)58 to be to dissuade the instituting of proceedings in the Court that

may more appropriately be brought elsewhere. The operation of this rule is arguably somewhat unclear. For example, does it effectively place an onus upon a cross-claimant to apply for a transfer of forum at an early stage of the proceeding, or risk a reduction of the amount of the costs and disbursements payable to that party in the event the Court were to be persuaded the Federal Circuit Court is a more suitable forum for the hearing of the cross-claim? An argument relying upon r 40.08(b) was described by the Court as having ‘real force’ in Minister for the Environment v Ayre Conditioning Pty Ltd.59 In Kismet, above, the Court thought it inappropriate to reduce the respondents’ costs under r 40.08 because they were not responsible for the choice of forum in which the proceeding was commenced. It does not automatically follow that the Court will make an order under r 40.08 simply because the damages recovered by an applicant are less than the sum of $100,000.60 [page 193] The Court may apply r 40.08 of its own initiative, consistent with the general power in r 1.40.61 In Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4),62 the Court exercised the discretion to award costs by taking into consideration the relevant respondent’s failure to comply with the duty imposed by s 37N of the FCA Act by not responding to the other side’s overtures of settlement. Accordingly, the award of costs was reduced by 35 per cent to reflect this perceived omission on its part.

Associated matters 7.9 As referred to previously (at 7.7), one of the transfer factors mentioned in s 32AB(6) of the FCA Act is whether there are proceedings in respect of an associated matter pending in the Federal Circuit Court.63 This factor should be read in conjunction with s 32AA(1) of the FCA Act, which provides that proceedings must not be instituted in the Court if the Federal Circuit Court

has jurisdiction in the matter and proceedings in respect of an associated matter are pending in that court. This provision will not invalidate any contravening proceeding instituted in the Court that is subsequently transferred.64 A party who institutes proceedings in the Court while there is a proceeding already on foot in the Federal Circuit Court in respect of an associated matter, and thereby not giving due regard to s 32AA, may lead to the dismissal of the action brought (or sought to be brought) in the Court and the award of an indemnity costs order against that party.65 Alternatively, the Court may order that the proceeding brought within its jurisdiction be stayed.66

AAT appeal transfers 7.10 An appeal from a decision of the Administrative Appeals Tribunal (AAT) lies to the Court in accordance with s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). For such an appeal to be heard and determined in the Federal Circuit Court, it first must be brought in the Court, and then transferred to the Federal Circuit Court by order of the Court made under s 44AA(1) of the AAT Act. A party may apply for a transfer order in accordance with r 27.11(b) and s 44AA(3)(a) of that Act, or the Court may make an order of its own initiative under r 1.40 and s 44AA(3) (b).67 The Court may not, [page 194] however, transfer an appeal relating to (amongst other things) a decision given by the AAT constituted by a Presidential member.68 An appeal from a transfer decision made by the Court is not permitted.69 The discretionary factors that must be addressed by the parties in the course of a transfer application are set out in s 44AA(7) of the AAT Act, and

as required by r 27.12. Those factors are essentially identical to those contained in s 32AB(6) of the FCA Act, as discussed at 7.7.

Transfers from the Federal Circuit Court 7.11 The Federal Circuit Court may transfer a proceeding to the Court in accordance with ss 39 and 41 of the Federal Circuit Court Act 1999 (Cth). For the civil practice and procedure provisions that apply following the transfer of a proceeding by the Federal Circuit Court to the Court, consult r 27.13 of the Rules. The Court has demonstrated its preparedness to ‘re-transfer’ a proceeding to the Federal Circuit Court when in doubt of the appropriateness of the original transfer decision.70 A re-transfer of a proceeding by the Court, on the application of a party, is unlikely to be ordered where, as in Pedra Holdings Pty Ltd v Westfield Shoppingtown Carousel Pty Ltd,71 the Court regards such an application to be not competent as an abuse of process. In Fair Work Ombudsman v Ecosway Pty Ltd,72 the Court was not prepared to exercise its discretion to re-transfer the proceeding to the Federal Circuit Court. Nonetheless, it made a number of key observations regarding the efficiency of the management of a proceeding. In particular, the Court held (at [38]) that, having regard to s 37M of the FCA Act, the overarching purpose includes the objectives of the Court’s efficient use of judicial resources and disposal of its overall caseload. The Court went on to say (at [39]): The conduct of proceedings in this Court which were commenced in the [Federal Circuit Court], have been case managed in that Court, and which may be appropriately continued in that Court is not consistent with that overarching purpose … Given the allocation of the [Federal Circuit Court’s] resources to the present parties, neither this Court nor the [Federal Circuit Court] should readily condone conduct which leads to the resources of a court, once allocated to a matter, not being properly utilised. It is not in the public interest that a second judicial officer should have to familiarise himself or herself with the matter when there is already a judge with an advanced degree of familiarity who is able to conduct the trial.

[page 195]

Cross-vesting legislation Civil practice and procedure provisions Division 27.3 of the Rules Sections 5 and 10 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Sections 1337H(2) and 1337L of the Corporations Act 2001 (Cth) Section 138C of the Competition and Consumer Act 2010 (Cth) Section 12GK of the Australian Securities and Investments Commission Act 2001 (Cth)

Transfers to State and Territory courts 7.12 The primary object of the cross-vesting scheme, created by the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act) and reciprocal State and Territory legislation, is to overcome problems recognised by litigants in relation to uncertainties about particular jurisdictional limits of courts and their powers that resulted in the incurring of unnecessary expense and inconvenience.73 The scheme has had a convoluted history,74 but for our purposes it may be noted that the cross-vesting legislation enables the Court to transfer proceedings brought before it to the Supreme Courts of the States or Territories and for those courts to refer certain matters to the Court. The scheme (and specifically former related legislation, the Corporations Law) has been the focus of a number of constitutional challenges, the most notable case being Re Wakim; Ex parte McNally.75 Rule 27.21 of the Rules broadly states that ‘a party may apply to the Court for an order that a proceeding be transferred to another court’ and, by reason of the mention of the Cross-vesting Act in Note 1 to that rule, it may be taken that the reference to ‘another court’ means a court within the scope of the cross-vesting scheme, being a Supreme Court (and including a State Family Court).76 An Attorney-General may make a transfer application, but in so doing does not become a party to the proceeding (r 27.22).77

Certain types of proceedings have specific statutory provisions, outside of the Rules and the Cross-vesting Act, which apply to the making of a transfer decision. As explained by McKerracher J in Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8),78 corporations [page 196] law proceedings may be transferred under s 1337H(2) of the Corporations Act 2001 (Cth) in accordance with the transfer factors listed in ss 1337H(2) and 1337L of that Act. The transfer of matters arising under the Australian Consumer Law is addressed by s 138C of the Competition and Consumer Act 2010 (Cth)79 and s 10 of the Cross-vesting Act. Finally, for various matters falling within the scope of the Australian Securities and Investments Commission Act 2001 (Cth), regard should be had to s 12GK of that Act.80

In the ‘interests of justice’ and other factors 7.13 Section 5(4) of the Cross-vesting Act provides the key mechanism for a transfer of a pending proceeding from the Court to a Supreme Court of a State or Territory. It sets out the transfer criteria, which may be paraphrased as follows: the proceeding arises out of, or is related to, a pending proceeding in a Supreme Court and it is more appropriate that the relevant proceeding be determined by that court (para (b)(i)); having regard to whether the relevant proceeding would have been incapable of being instituted in the Court apart from this Act and was capable of being instituted in a Supreme Court, the matters for determination arise under or involve questions as to the application, interpretation or validity of a law of the relevant State or Territory and having regard to the interests of justice (para (b)(ii)); and

it is otherwise in the interests of justice that the proceeding be determined by the Supreme Court (para (b)(iii)). For the meaning of the phrases ‘a pending proceeding’, ‘a relevant proceeding arises out of another proceeding’ and ‘a proceeding related to another proceeding’, consult Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (Amalia Investments)81 and the authorities cited. It was observed in that case (at [40]) that the crux of the exercise of the discretion whether to transfer is the question of which court will best serve the interests of justice from a case management perspective, with no party carrying any onus of proof.82 The discretion has been described as being ‘a very wide one’ and the phrase ‘in the interests of justice’ will be given a wide meaning.83 A transfer will be in the interests of justice where it ‘is likely to lead to the most expeditious resolution’ of the proceeding.84 It will be sufficient if potential savings in cost, time and [page 197] resources exist at the time the Court is called upon to make an assessment of whether a proceeding should be transferred to another court.85 The applicant’s choice of forum is a ‘neutral factor’.86 Indeed, where there are evenly matched conflicting interests, as between the interests of the parties, ‘justice may not dictate a preference for the interests of either party’.87 Some other factors relevant to the transfer decision, based upon what is in the interests of justice for the proceeding, were summarised by McKerracher J in Commissioner of Taxation v Residence Riverside Proprietary Limited (as Trustee for the D & J Discretionary Trust and as Trustee for the D & J Investment Trust)88 as including: the stage of the proceeding; any commonality of the parties and issues;

the nature of the case; the risk of conflicting findings of fact or orders; a ‘costs benefit analysis’; any unnecessary drain on judicial and other resources; and the existence of judicial expertise residing in one court or the other. The Court may express a reluctance to order a transfer having regard to the amount of money spent in the preparation of the proceeding for trial already in the Court and the need to potentially start afresh with pleadings in the relevant Supreme Court.89 Indeed, the Court may, on occasion, be faced with an application to either cross-vest a proceeding to an interstate court or to transfer it to another Registry. This occurred in York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd,90 in which the Court ordered the proceeding remain with the Court in the interests of justice, albeit at a different Registry. In so ordering, the Court balanced submissions made about the cheaper hearing fees in the interstate court and those made about the disadvantages of the other court not having an electronic filing system like that of the Court. Jurisdictional issues also may arise in the course of a transfer application. A transfer was not ordered in Buckee v Commonwealth91 because it was determined that the Court did not have jurisdiction in relation to the matter the subject of the proceeding. In Amalia Investments, above, the question arose whether the ‘pending proceeding’, referred to in s 5(4) of the Crossvesting Act, must regularly invoke the Court’s jurisdiction before a transfer order will be made under that provision. The analysis of the law and authorities by [page 198] Greenwood J led his Honour to the conclusion that the jurisdiction does need to be regularly invoked and, since the proceeding in that case did not

regularly invoke the jurisdiction of the Court because it raised no element of federal jurisdiction, it follows that s 5(4) of the Cross-vesting Act was not engaged. In these circumstances, the proceeding was held to be an abuse of process and was struck out, with an order for costs against the applicants. When exercising the discretion to make an application of its own motion under s 5(7) of the Cross-vesting Act, the Court will most likely do so at an early stage of the proceeding.92

Transfers to the Court 7.14 The procedures for dealing with a matter transferred to the Court under cross-vesting legislation are addressed in r 27.23. On the question of the Court’s position in cases where a proceeding arguably has been inappropriately referred to it under the cross-vesting scheme, see, for instance, Westpac Banking Corp v Paterson.93 In that case, it was held that the Court did not have jurisdiction to hear the proceeding. Further, in Deputy Commissioner of Taxation v Warrick,94 the Court declared that the proceeding had been validly cross-vested to it by a consent order made by a Supreme Court Registrar, rather than a judge of that court.

1

For example, from State and Territory Supreme Courts under s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). 2 Under s 44 of the Judiciary Act 1903 (Cth) and Pt 32 of the Rules. 3 Rules Sch 1. 4 See generally Australian Co-operative Foods Ltd v National Foods Milk Ltd [1998] FCA 376. 5 The Dictionary (Sch 1 of the

Rules) defines the ‘proper Registry’ to be the ‘Registry at the proper place

for the proceeding’. 6 Mulhern v Pearce [2013] FCA 1138 at [14] (Robertson J). 7 Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [7]. 8 Mulhern v Pearce [2013] FCA 1138 at [14] (Robertson J), citing Australian

Competition and Consumer

Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [19]. 9 [2013] FCA 505 at [1]. 10 Mulhern

v Pearce [2013] FCA 1138 at [14] (Robertson J). See also Lifeplan Australia Friendly Society

Ltd v Woff [2013] FCA 906 at [14]; Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [7] (Besanko J), quoting the Full Court in National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162; Franklin v GHF Pty Ltd [2014] FCA 793 at [2] (Davies J) and the authorities cited therein. 11

[2007] FCA 49 at [7]. Refer also to Essential Beauty Franchising Pty Ltd v Essential Beauty (Qld) Pty Ltd [2012] FCA 12 at [3] (Mansfield J); Mulhern v Pearce [2013] FCA 1138 at [14] (Robertson J); Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [11] (Besanko J). 12

[2013] FCA 1138 at [14]. See also Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (admins apptd) (in liq) [2009] FCA 227; Leda Holdings Pty Ltd v Securcorp Ltd [2013] FCA 1364 at [27] (Yates J); Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2014] FCA 1010. 13

Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 at [20]–[21] (O’Loughlin J). 14

See, for example, Inverness Medical Switzerland GMBH v Advanced Clinical Systems Pty Ltd [2002] FCA 126; Insulations Inc v Bellis Australia Pty Ltd (ACN 010197 672) [2006] FCA 399. 15 [2002] FCA 71. 16

[2014] FCA 447 at [8]–[13] (Davies J). See also Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2014] FCA 1010 at [6] (White J); York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd [2014] FCA 1422 at [16]–[31] (Besanko J). 17

Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 906 at [14] (Besanko J), citing National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155. 18 [2013] FCA 1364 at [34] (Yates J). 19 [2013] FCA 34 (Dodds-Streeton J). 20

[2012] FCA 994 at [11], citing Gunn Capital Management Pty Ltd v Solamind Pty Ltd [2010] FCA 1360 at [16] (Siopis J). 21 Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [8]. 22 Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 at [29]. 23

Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [12] (Besanko J), quoting Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22 at [29] (Mansfield J). 24 [2004] FCA 302 at [11]. 25 Auskay

International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 6) [2009] FCA 1465 at [24] (Tracey J). See also generally Justice R S French, ‘Legal Retail Therapy – Is Forum Shopping a Necessary Evil?’ (Paper delivered at the Australian Legal Convention, Canberra, 11–14 October 2001). 26

See, for example, Graeme Allan Green v Atlantic International Entertainment Australia Pty Ltd (ACN 079 475 844) [1998] FCA 1278. 27 Such as in Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71. 28 [2004] FCA 1168. 29 [2002] FCA 1192. 30 [2013] FCA 1364. 31 [2014] FCA 447 at [14] (Davies J).

32 Peacock v Peacock [2000] FCA 857; Mitchell v McGillivray [2001] FCA 326. 33 See Re

John Lawrence Sharpe; Ex Parte: Powell v Donnelly [1996] FCA 896, and, more broadly, Zhu v Tech Universal (HK-Macau) Development Pty Ltd [2005] FCA 256 (a case not directly on point under r 27.01, but involving a transfer of a winding up proceeding from the Court to the Family Court of Western Australia). 34 [1996] FCA 896. 35 [2001] FCA 326. 36 For a list of the areas of (concurrent) general federal law jurisdiction of the Federal Circuit Court,

consult that court’s website at . 37 See generally Explanatory Memorandum, Federal Magistrates Bill 1999 (Cth). 38 For example, in 2013–14 the Court transferred 23 matters to other courts; 20 of those transfers were

to the Federal Circuit Court (see Federal Court of Australia, Annual Report 2013–2014 ). 39 Rule 27.11(a). Criminal proceedings are excluded by the operation of s 32AB(9A) of the FCA Act. 40 See FCA Act s 4 and the Dictionary (Sch 1 of the Rules). 41

Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168; Assad v Minister for Immigration and Citizenship [2008] FCA 1039. 42 Note 2 to r 27.11. 43 [2000] FCA 1565. 44 [2006] FCA 969 at [4]. 45

See, for example, Melville v Macquarie University [2006] FCA 1761; Rahman v Dayeh [2006] FCA 1362. 46 FCA Act s 32AB(8). 47 [2009] FCA 763 at [7]. 48 See further discussion at 7.9. 49 [2011] FCA 881 at [11]. 50

See, for example, Philpott v Foux [2001] FCA 1380; Uen v Honeywell Ltd [2010] FCA 634; Kheirs’ Financial Services Pty Ltd v Aussie Home Loans Ltd [2008] FCA 1602; Melville v Macquarie University [2006] FCA 1761. 51 Cutler v Trustee for McKenzie & Baird Unit Trust [2010] FCA 714 at [48] (Kenny J). 52 [2014] FCA 586. 53 [2009] FCA 1125. 54 [2002] FCA 136 at [16]. 55

By s 25(1AA)(b) of the FCA Act, a Full Court may hear the appeal if the single Judge considers it appropriate. 56 See also Carr J in WABG v Minister for Immigration and Multicultural Affairs [2002] FCA 138 at [16]

and Kurniadi v Loh [2002] FCA 1021 at [21]. 57 [2008] FCA 1602 at [5]. 58 [2013] FCA 705 at [33] (Murphy J).

59 [2013] FCA 1408 at [99] (Mortimer J). 60 Kassem and Secatore v Commissioner of Taxation (No 2) [2012] FCA 293. 61 Kismet

International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705 at [32] (Murphy J); Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [30] (Katzmann J). 62 [2012] FCA 652. 63 Section 32AB(6)(b). 64 Section 32AA(2). 65 Carantinos v Magafas [2008] FCA 1107. 66 Ogawa v The University of Melbourne [2005] FCA 1139. 67

Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028; Uyar v Administrative Appeals Tribunal [2011] FCA 623. 68 AAT Act s 44AA(2)(a). 69 Ibid s 44AA(10). 70 See, for example, SZQBQ v Minister for Immigration and Citizenship [2011] FCA 885. 71 [2005] FCA 909. 72 [2015] FCA 102 (White J). 73

Explanatory Memorandum, Jurisdiction of Courts (Cross-vesting) Bill 1986 (Cth) [4]–[5]; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; Coutts, Andrew Reid v Ronstan International Pty Ltd [1996] FCA 471. 74 See generally Judicial Commission of New South Wales, ‘Cross-vesting Legislation’ . 75

[1999] HCA 27; (1999) 163 ALR 270. This case was preceded by a failed appeal to the High Court from the decision in BP Australia Ltd v Amann Aviation Pty Ltd [1996] FCA 491. 76 See also Cross-vesting Act s 3(2); Beaman v Bond [2013] FCA 534. 77 See further Cross-vesting Act s 5(7). 78 [2015] FCA 49 at [22]–[23]. 79 See generally York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd [2014] FCA 1422. 80 See, for example, Khoury v Commonwealth Bank of Australia trading as Bankwest [2013] FCA 304. 81 [2011] FCA 1270 at [41] (Greenwood J). 82

See also Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49 at [24]; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] (Gleeson CJ, McHugh and Heydon JJ). 83

See, for example, Coutts, Andrew Reid v Ronstan International Pty Ltd [1996] FCA 471 (Northrop J); BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [15] (Gleeson CJ, McHugh and Heydon JJ). 84 Khoury v Commonwealth Bank of Australia [2013] FCA 304 at [14] (Farrell J). 85 Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCA 1632 at [117] (Edmonds J). 86 Yara

Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015]

FCA 49 at [25], citing BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [168] (Kirby J), [77] (Gummow J). 87

BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [16] (Gleeson CJ, McHugh and Heydon JJ). 88 [2013] FCA 720 at [17]. 89 Southern Equity Pty Ltd v Timevale Pty Ltd [2008] FCA 1395 at [7] (Gray J). 90 [2014] FCA 1422. 91

[2014] FCA 242. See also McCarthy v Commissioner of Taxation [2013] FCA 715 at [59] (Robertson

J). 92 Coutts, Andrew Reid v Ronstan International Pty Ltd [1996] FCA 471. 93 [1999] FCA 1254. 94 [2004] FCA 488.

[page 199]

Chapter 8

CONCLUDING PROCEEDINGS EARLY This chapter covers: • •

•

•

•

Resolution of disputes without trial …. Alternative dispute resolution …. Dispute resolution under the Rules and FCA Act …. Mediation …. Arbitration …. International arbitration …. Referral to a referee …. Offers of compromise …. Making and accepting an offer to settle proceedings …. Costs implications …. Discontinuance and withdrawal …. Notice of discontinuance …. Issues arising from discontinuance …. Obtaining leave …. A presumption of costs? …. The legal effect of discontinuance …. Appeal proceedings …. Withdrawal of pleadings …. Default judgment …. Orders on default ….

8.1 8.2 8.2 8.3 8.4 8.5 8.6 8.7 8.7 8.8 8.9 8.9 8.10 8.10 8.11 8.12 8.13 8.14 8.15 8.15

•

•

Failure to attend a hearing and act with due diligence …. Discretionary power …. Vexatious proceedings …. Vexatious proceedings and the Rules …. Vexatious proceedings orders under the FCA Act …. Matters flowing from a vexatious proceedings order …. Appealing a vexatious proceedings order …. Summary judgment …. Application for summary judgment under the Rules …. Leave to appeal? …. Section 31A summary judgment …. ‘No reasonable prospect of success’ …. Final or interlocutory decision? ….

8.16 8.17 8.18 8.18 8.19 8.20 8.21 8.22 8.22 8.23 8.24 8.25 8.26 [page 200]

•

Preliminary questions …. Applications for a separate trial …. The exercise of discretion ….

8.27 8.27 8.28

Resolution of disputes without trial 8.1 As discussed in Chapter 1, s 37M(1) of the FCA Act requires each civil proceeding in the Court to be conducted in a manner that facilitates the resolution of the dispute as ‘quickly as possible’ and ‘according to law’. The prompt finalisation of a proceeding is not limited to the expeditious hearing and determination of a claim for relief. In the promotion of the overarching purpose, it is more important that the parties and the Court have the ability to bring a proceeding to an end without the need to resort to a potentially

lengthy and expensive trial. This chapter explores the various avenues available under the civil practice and procedure provisions for resolving disputes early.1 Settlement of the matter, through acceptance of an offer of compromise or an alternative dispute resolution process, is one of the most cost-effective and efficient means of promoting the overarching purpose through prompt dispute resolution. An applicant may choose, either unilaterally or following settlement, to formally discontinue proceedings. Alternatively, a claim or defence that is doomed to fail, or a party that has not complied with the Rules or orders of the Court, may face an order for summary judgment or default judgment. In situations involving vexatious persons and unmeritorious claims, the Court may order that an existing proceeding be struck out or that the applicant not be permitted to institute any new proceeding without leave of the Court. On occasion, the Court may consider it appropriate for a matter to proceed to a hearing on a preliminary question. The findings on this question may have the effect of obviating the need for a full hearing, as occurred in Village Building Company Ltd v Canberra International Airport Pty Ltd.2 In other suitable cases, the proceeding or one or more questions may be referred by the Court to a referee for opinion on the matter. The expert input of the referee may serve to narrow the issues in contention between the parties or even lead to settlement. As seen in this chapter, the potential avenues of dispute resolution will not necessarily lead to greater efficiencies and savings of costs and time. Furthermore, the Court will need to be satisfied that it is appropriate for it to exercise its discretion to make the orders sought. By whichever means a dispute before the Court may be resolved, the astute lawyer invariably will consider the questions of how the proceeding may be concluded swiftly, with finality, in accordance with the civil practice and procedure provisions and in such a manner so as not to expose their client to an adverse costs order or unnecessary expense.

[page 201]

Alternative dispute resolution Civil practice and procedure provisions Part 28 of the Rules Sections 53A, 53AA, 53AB, 54, 54A of the FCA Act Practice Note ARB 1 – Proceedings under the International Arbitration Act 1974 (Practice Note ARB 1)

Dispute resolution under the Rules and FCA Act 8.2 There are a number of reasons a party to a civil proceeding in the Court must have regard to alternative dispute resolution (ADR). The object and requirements of the Civil Dispute Resolution Act3 mean that the parties have (usually) taken genuine steps to resolve a dispute before litigation is brought before the Court. Similarly, as a ‘model litigant’, the Commonwealth must give due regard to options for ADR when initiating proceedings.4 Once a proceeding is on foot, r 28.01 of the Rules expressly requires the Court and the parties to consider (further) options for ADR as early as is reasonably practicable and for the Court to assist the parties with their implementation, as appropriate. To facilitate dispute resolution, a party may make an application under r 28.02 for an order to the effect that the proceeding (or part thereof) be stayed or adjourned for the purpose of referral to an arbitrator, mediator or other suitably qualified person to conduct an ‘ADR process’. That expression is defined somewhat unhelpfully in the Dictionary5 to mean ‘an alternative dispute resolution process conducted by a suitable person’.6 The ‘suitable person’ is the arbitrator, mediator or person appointed to conduct an ADR process report.7 If ordered under r 28.02(1)(c), then the suitable person must provide to the Court an ADR process report.

The Court may make the orders referred to in r 28.02 by application of a party or of its own motion.8 The Court, however, may make an arbitration referral only with the consent of the parties.9 Rule 28.04 enables a party to apply to the Court for an order terminating a mediation or ADR process or the appointment of the person conducting that process (r 28.04). Where an order referring a proceeding to an ADR process does not nominate a suitable person to conduct the process, the Registrar will nominate [page 202] a Registrar or some other person to conduct the ADR process.10 Nothing under the Rules prevents the parties from referring the matter to ADR generally, but the applicant must be careful to apply to the Court within 14 days of such referral for directions on the future management and conduct of the proceeding (r 28.05).

Mediation 8.3 Division 28.3 deals with the civil practice and procedure provisions regarding mediation. Further to an order made under r 28.02 (considered at 8.2), the Registrar will, as appropriate and in accordance with r 28.21, nominate a Registrar or other suitable person to act as mediator in the proceeding. Most mediation conferences ordered by the Court are conducted by Registrars, with often beneficial results. Where the mediation does not progress satisfactorily and the mediator considers it appropriate to discontinue it, he or she must terminate the mediation and report this outcome to the Court (r 28.24). Alternatively, a successful outcome to the mediation enables the parties to file consent orders in accordance with r 39.11 (see r 28.25). The mediator may report to the

Court on any terms agreed to between the parties if part of the proceeding was mediated (r 28.23). Evidence of anything said or admitted at a mediation conference is generally not admissible.11

Arbitration 8.4 Domestic arbitration is addressed in the Rules by the provisions of Div 28.2.12 The Court may make an order for arbitration as a result of an application brought under r 28.02.13 A party also may apply to the Court for further orders in relation to that arbitration (r 28.11(1)). Such potential orders range from the nomination of the arbitrator to the timing, manner and fees of the arbitration. Any order referring a proceeding to an arbitrator requires the consent of all the parties.14 The nomination of a particular arbitrator requires that person’s prior written consent (r 28.11(2)). There are also various types of applications that may be made by a party under the FCA Act, further to the Court making an order under s 53A referring the proceeding to arbitration. The applications are to be made by way of an interlocutory application (r 28.12).15 The first is an application by an arbitrator under s 53AA(1), where the arbitrator has not made an award in respect of the [page 203] arbitration and a request has been made by a party to the arbitrator to apply to the Court for leave to refer a question of law arising from the arbitration. The Court must not grant such leave unless satisfied that the determination of the question of law by it might result in substantial savings in costs to the parties.16 The second type of application is that made by a party under s 53AB(2) of the FCA Act following the making of an award in respect of the arbitration

and where the award has been registered with the Court. Under that subsection, a party to the award may apply for a review of the award on a question of law. The Court has the power to affirm, vary, set aside, remit the award to the arbitrator or determine the matter to which the award related (s 53AB(4)). The Court also has the power, consistent with s 54, to make an enforceable order in the terms of the award if the award has been registered with the Court. The question of costs of the arbitration is dealt with under ss 53AB(5)–(6) and 43 of the FCA Act. Under r 28.13, a party may make an application to the Court for an order to register an award, resulting from a Court-referred arbitration, by filing an interlocutory application, a copy of the award and a supporting affidavit addressing the matters outlined in r 28.13(3)(b). The application may be made without notice17 (r 28.13(5)). Upon the making of an order under this rule, the award has the force and effect of an order of the Court and accrues interest (r 28.13(4)). For situations where non-referred arbitration has occurred and the matter is one in which the Court has original jurisdiction, r 28.14 permits a party to apply for an order in the terms of an award. The party should file an originating application (in accordance with Form 50), along with a copy of the arbitration agreement, a copy of the award and an affidavit stating the matters in r 28.14(3)(c). The application may be made without notice (r 28.14(4)).

International arbitration 8.5 International arbitration involves the parties to an international commercial agreement contractually agreeing to submit future disputes to a determined arbitrator (or arbitrators). This is ordinarily achieved by the parties including an international arbitration clause in their written contract.18 One of the benefits of this method of ADR is that any dispute that arises may be resolved on more ‘neutral’ grounds, rather than becoming the

subject of formal legal proceedings in one party’s domestic court system. Moreover, as the decision of the arbitrator is (usually) final, no appeal lies and this serves to reduce the cost and time taken to resolve the dispute. International arbitration and domestic arbitration are dealt with differently by the civil practice and procedure provisions. [page 204] The primary legislation on the subject of international arbitration is the International Arbitration Act 1974 (Cth) (International Arbitration Act), which confers jurisdiction upon the Court in respect of: applications for an order to stay a Court proceeding (or part thereof) that may be settled by arbitration under an arbitration agreement between the parties; the enforcement of a foreign award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; applications under art 6 of the UNICITRAL Model Law on International Commercial Arbitration (Model Law) for a variety of orders (including the appointment of an arbitrator or the setting aside of an award); and the enforcement of an award under the Convention on the Settlement of Investment Disputes between States and Nationals of other States.19 A party to an arbitral proceeding to which the International Arbitration Act applies must comply with the Rules, including those contained in Div 28.5 (see r 28.42). Table 8.1 sets out the applications that a party may bring before the Court under those rules.20 Table 8.1: Division 28.5 applications Rule

Nature of application

Section of International

Relevant documents

Additional comments

Arbitration Act 28.43 Application 7 Originating for stay of application (Form whole or a 51), with a copy of part of an the arbitration arbitration agreement and an affidavit (Form 59) stating material facts on which claim for relief is based. 28.44 Application 8(3) Originating to enforce a application (Form foreign 52), with the award documents referred to in the International Arbitration Act s 9 and an affidavit (Form 59) stating the matters outlined in r 28.44(2)(b).

The application may be made (with or) without notice (r 28.44(3)). A party wishing to rely upon a document that is not in the English language must provide the Court and any other party with a certified English translation of the [page 205]

Rule

Nature of

Section of

Relevant

Additional

application

International Arbitration Act

28.45 Application for relief under the Model Law

28.46 Application for issue of a subpoena

23(3)

documents

comments

document (see r 28.50; Practice Note ARB 1 at [5]; International Arbitration Act s 9). For an example of an application brought under r 28.44, see Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276. Originating Relevant application (Form provisions of the 53), with an Model Law are affidavit (Form arts 11(3), 11(4), 59) stating the 13(3), 14, 16(3), material facts in 17H(3), 17I, 17J, support of the 27 and 34. claim for relief. Application The Court may fix (Form 54), with a an amount of draft subpoena (in money, in accordance with addition to any Form 55A, 55B or conduct money or 55C as witness expenses, appropriate – see that represents the

r 28.46(3)) and an affidavit (Form 59) stating the matters in r 28.46(2)(b). 28.47 Application for an order concerning a failure to assist the arbitral tribunal

23A

reasonable loss and expenses of the addressee to comply with the subpoena (rr 28.46(4)–(5)).

Where proceedings not commenced – originating application (Form 56) and an affidavit (Form 59) stating the matters in r 28.47(2). Where proceedings already started – an interlocutory application (Form 35) with an affidavit (Form 59) stating the matters in r 28.47(2). [page 206]

Rule

Nature of application

Section of International

Relevant documents

Additional comments

Arbitration Act 28.48 Applications 23F or 23G Where for certain proceedings not other orders commenced – in relation originating to disclosure application (Form 57) and an affidavit (Form 59) in accordance with r 28.48(2). Where proceedings already started – an interlocutory application (Form 35) with an affidavit (Form 59) in accordance with r 28.48(2). 28.49 Application 35(4) Originating for application (Form recognition 58), with an of an award affidavit (Form 59) stating the matters in r 28.49(2).

The application may be made (with or) without notice (r 28.49(3)).

It has been suggested by Chief Justice Allsop writing extra-curially that the Court, similar to Australian courts generally, has a pro-enforcement approach to dealing with foreign awards.21 The position of Australia (including of the Court) as a pro-arbitration jurisdiction has been reinforced

by the decision of the High Court in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia,22 which affirmed the validity of the legislative measures governing international arbitration in Australia (as well as domestic arbitration).23 Even when a matter involves the International Arbitration Act, the Court encourages the parties to undertake mediation and expects them to discuss the benefits of undertaking this or other ADR mechanisms. As noted in Practice Note ARB 1 at [6]: Mediation can be used to help identify and reduce issues in dispute, or to eliminate procedural arguments, as well as for the purposes of resolving the whole matter.

[page 207]

Referral to a referee 8.6 In some cases it may be appropriate for the docket Judge not to deal with all facets of a proceeding. Instead, the Judge may choose to refer the proceeding (or a legal or factual question arising in it) to another person for a report on that person’s expert opinion on the matter (r 28.61). Section 54A of the FCA Act, relating to such referrals, was enacted in 2009 and is an important tool for Judges to utilise during a complex or protracted proceeding. The introduction of the section was stated by the Commonwealth Attorney-General, during the second reading speech of the Federal Justice System Amendment (Efficiency Measures) Act 2009 (Cth), as enhancing the Court’s ability to manage and resolve complex commercial litigation more efficiently and economically by referring technical issues to referees with relevant expertise.24 Consistent with ss 54A(1)–(2), the Court may refer a proceeding (or one or more questions arising in a proceeding) to a referee for inquiry and report at any stage of a proceeding. The referral of a matter to a referee has the potential to be of great significance to the outcome of a proceeding, as the

Court may ultimately give judgment or make an order based upon the contents of the report (r 28.67(1)(e)). The referral may be to one or more referees, including to a senior referee (rr 28.62–28.63). Upon receipt of a referee’s report, the Court may adopt, vary or reject the report or it may make such orders as it considers fit.25 The referee should comply with r 28.66 as to the requirements of the report. It was held by Rares J in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd26 that ‘the discretion in s 54A(1) must be exercised judicially, having regard to the subject matter, scope and purpose of the [FCA] Act itself’. The relevant factors applicable to the exercise of discretion under s 54A were said by his Honour (at [35]) to include: the policy underlying s 39 of the FCA Act that a trial is usually conducted by a Judge alone; the overarching purpose of the civil practice and procedure provisions and s 37M of the FCA Act; and the underlying purpose of the legislature for the introduction of the additional mode of trial allowed by s 54A (as stated above).27 His Honour noted also (at [41]) that the Court is likely to be cautious in making an order for a referral to a referee based on the wishes of one party in the face of the opposition of all other parties. The notion that a litigant is entitled to expect [page 208] a Judge will at all times be the sole decider of all facts and law was rejected by his Honour (at [48]). The order for referral may come about as the result of an application made by a party to the proceeding under r 28.61. The rule does not specify which prescribed form is to be used to make the application; however, it is most

likely to be an interlocutory application within an existing proceeding in accordance with Form 35 and Pt 17 of the Rules. The inquiry should be conducted consistently with the requirements of r 28.65. A party may apply to the Court, either prior to or after the inquiry has commenced, for directions about how the inquiry should be conducted or any matter arising in it. Rule r 28.65(8) imposes an onus on the parties to an inquiry to do all things required of them by the referee (so as to enable the latter to form an opinion about the matter) and without wilfully causing delay or interference with the referee forming an opinion. Once the report has been provided by the referee to the Court, r 28.67 enables a party to make an application (again presumably by way of an interlocutory application) for an order that the Court (amongst other things) adopt, vary or reject the report in whole or in part (see r 28.67(1)(a)).28 When considering the question of how the Court should deal with any evidence taken before the referee, a party may seek an order that the Court decide any matter arising from the evidence taken before the referee either with or without adducing additional evidence (r 28.67(1)(d)).29 The Court has the power to make directions in relation to the remuneration of the referee.30 A party may potentially be ordered to provide security for that remuneration (r 28.64).

Offers of compromise Civil practice and procedure provisions Part 25 of the Rules

Making and accepting an offer to settle proceedings 8.7 During a proceeding, a party may make one or more offers of settlement (or compromise) to another party at any time prior to judgment being

handed down (rr 25.01 and 25.05).31 Offers of compromise are encouraged by the Court [page 209] for, as recognised by Katzmann J in Visscher v Teekay Shipping (Australia) Pty Ltd (No 5),32 ‘the sooner a dispute is resolved, the greater the benefits in cost and efficiency’. Parties dealing with such offers should be aware of the rules contained in Pt 25, which are specific in relation to content and form and as to necessary time limits for the making and acceptance of offers. An offer to settle a matter may also be accompanied by a Calderbank letter.33 It is a matter for the Court to determine whether indemnity costs will be awarded following a rejection of the offer and having regard to the principles in Calderbank v Calderbank.34 The fact a Calderbank offer is made outside the operation of the Rules, and as such has a different status to that of an offer of compromise when dealing with the question of costs, was considered in Richardson v Oracle Corporation Australia Pty Ltd (No 2).35 In that case, Buchanan J noted (at [31]) the former must be explicit on the question of costs, whereas the latter type of offer will be subject to the operation of Pt 25 of the Rules. An offer to compromise is made by serving a signed notice in accordance with Form 45 which, unless stated otherwise, is deemed to be made on a without prejudice basis.36 The notice should address the matter of costs and interest as prescribed by r 25.03 (including whether the offer is inclusive of costs). Time limits for the offer remaining open and for the payment of a sum of money following the acceptance of the offer are addressed by rr 25.05(3) and 25.04, respectively. An offer may not be withdrawn within a period less than 14 days after it was made unless the Court has granted leave or the fresh offer is more favourable to the offeree (r 25.07). Although the offer is made using an approved Court form, it is important that the notice itself must not

be filed in the Court (r 25.01(2)) and no communication about the existence of an offer may be made to the Court unless the offer is accepted, judgment is given or an application is made under certain rules within Pt 25 (see r 25.06). The acceptance of an offer to compromise may occur by filing a Form 46 (r 25.08(3)). Such acceptance may occur within any time stated in the notice of compromise or, if no time is stated, at any time before judgment is given (rr 25.08(1)–(2)). By r 25.09, a party may withdraw an acceptance of an offer to compromise if the money is not paid within 28 days of the acceptance (or within the time provided by the offer). The leave of the Court is required, on the application of the party who accepted the offer (r 25.09(1)(b)). An offeror who fails to comply with the terms of an offer after it has been accepted may face the offeree making an application to the Court under [page 210] r 25.10 for an order that may give effect to the accepted offer37 or result in the dissolution of the proceeding against the offeror. When considering whether r 25.10 applies within the context of multiple respondents, refer to the scenarios outlined in r 25.11.38

Costs implications 8.8 A party making an offer to compromise should be mindful of the following fact. If the terms of the offer do not include the offeree’s costs of the proceeding, then any acceptance of the offer may expose the offeror to the costs being taxed on a party and party basis against the offeror up to and including 14 days after the offer was made (r 25.12). An offeree applicant must exercise caution when determining whether to reject an offer made under r 25.01 because they may, in the event of obtaining judgment that is ‘less favourable’ than the terms of the offer, be exposed to (amongst other

things) an indemnity costs order.39 A similar outcome may arise if the applicant unreasonably fails to accept the offer and the proceeding is dismissed (r 25.14(2)).40 By the same token, if it is the applicant’s offer to compromise that is not accepted by the respondent then, under r 25.14(3), the respondent will be exposed to similar costs consequences. The judgment in Selig v Wealthsure Pty Ltd (No 2)41 offers a good illustration of the Court’s approach to determining whether an obtained judgment is more (or less) favourable than the terms of an offer to compromise. Any indemnity costs payable under r 25.14 apply from 11.00 am on the second business day after the offer was served.42 Up until that time, the other party is liable to pay the costs on a party and party basis, as alluded to by Robertson J in Hockey v WIN Corporation Pty Ltd (No 2).43 In Nextra Australia Pty Ltd v Fletcher (No 2),44 the Court was not satisfied that the applicant was entitled to an order for costs to be assessed on an indemnity basis because of doubt that the offers made were genuine offers of compromise. So, too, the Full Court in Australian Competition and Consumer Commission v Metcash Trading45 declined to make an order for indemnity costs because it was not satisfied that [page 211] the appellant’s rejection of an offer to compromise was unreasonable in all the circumstances. It was accepted in Robinson v Kenny (No 2)46 that r 25.14(3): … creates a rebuttable presumption in favour of an award of indemnity costs where the applicant receives a judgment more favourable than an offer of compromise, whether or not it was reasonable for the respondents to refuse that offer of compromise.

In Dennis v Chambers Investment Planners Pty Ltd (Admins apptd) (No 4),47 Barker J regarded that r 25.14(2) is explicit about the ‘unreasonable failure to accept’ requirement, whereas r 25.14(1) (and r 25.14(3)) creates ‘a

presumptive entitlement to indemnity costs where the relevant circumstances exist and the failure to accept the offer was unreasonable’. The issue of whether the criterion of ‘reasonableness’ expressly contained in r 25.14(2) constitutes a change to the law would appear to be somewhat unresolved.48 The Court may make an order inconsistent with r 25.14 by reason of the operation of r 1.35; however, it has been held that it should only do so for ‘proper reasons, which will generally only arise in exceptional circumstances’.49 The onus is upon the party who is prima facie responsible to pay costs under r 25.14 to persuade the Court that an order inconsistent with that rule should be made.50

Discontinuance and withdrawal Civil practice and procedure provisions Division 26.2 of the Rules

Notice of discontinuance 8.9 All proceedings before the Court must be properly concluded, either by way of judgment being entered, summary dismissal, the Court formally regarding (in appropriate circumstances) the proceeding as abandoned or by the applicant discontinuing the proceeding. The discontinuance of the whole or part of a proceeding by a party claiming relief is covered by Div 26.2 of the Rules. It is achieved by the party filing a notice of discontinuance in [page 212] accordance with Form 48 (r 26.12(1)). The notice must state the extent of the discontinuance and, if it is by consent, be signed by each consenting party (r 26.12(3)). Once filed, the notice must be served on each other party to the proceeding ‘as soon as reasonably practicable’ (r 26.13).

Issues arising from discontinuance Obtaining leave 8.10 Three important issues arise from the Rules in respect of the discontinuance of a proceeding. The first issue relates to whether leave of the Court must be first sought and obtained, or the other party’s consent is required, in order to file the notice of discontinuance. Such preconditions are not required where the notice is filed at any time before the first return date or before the pleadings have closed (r 26.12(2)(a)). As to the meaning of the expression ‘close of pleadings’, r 16.12 provides that the pleadings close at the latest of the times for filing a defence or reply or other pleading (as fixed by the Rules).51 Where the pleadings have closed, the consent of the other party is required if the notice is to be filed before the entry of judgment (r 26.12(2)(b)). Not surprisingly, r 26.12(2)(c) provides that the Court may grant leave to file the notice at any stage of the proceeding. It should be noted, though, that leave of the Court will always be required in proceedings involving: a litigation representative or a representative party;52 and an application for a winding up order under s 459P or s 461(1)(a) of the Corporations Act 2001 (Cth).53 What principles inform the Court’s exercise of discretion to grant leave? Those principles were originally stated by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3),54 and subsequently considered by Barker J in KK (decd) v Western Australia55 to include the following: the Court’s discretion to grant leave for an applicant to discontinue a proceeding is unfettered and will normally be granted, although not necessarily as a matter of course; a party should not be compelled to litigate against its will, but that is

weighed up with any injustice imposed by the discontinuance on the other party; the reason for the application to discontinue (whether it results from a conclusion that litigation cannot succeed); [page 213] what conditions, if any, should be imposed upon the grant of leave to discontinue; and in a rare case, the most appropriate order may be to refuse to grant leave. In that case, Barker J granted leave to the applicant to discontinue the proceeding.

A presumption of costs? 8.11 The next key issue arising in relation to a discontinuance of proceedings concerns something easily overlooked in the parties’ desire to finalise a dispute quickly; namely, the question of costs. Rule 26.12(7) addresses the subject of costs within the specific context of the filing of a notice of discontinuance. It provides that, subject to the terms of any agreement between the parties or where ‘an order of the Court provides otherwise’, the party filing a notice of discontinuance is liable to pay the costs of each other party in respect of the claim (or part thereof) that is discontinued.56 It is therefore crucial to the interests of the discontinuing party that the question of costs be addressed expressly by the parties prior to the filing of the notice of discontinuance. It is of course open to the parties to agree to a proceeding being discontinued on the basis that each party bear its own costs. In circumstances where the parties either have not addressed the matter of costs or they are unable to reach agreement, the discontinuing party will need to apply to the Court for an order that is inconsistent with the requirement to otherwise pay costs under r 26.12(7). It was recognised by Barker J in Croft v

Evertop Investments Pty Ltd57 that the power to award costs generally is different from the power to award costs upon the discontinuance of a proceeding. His Honour held (at [144]) that there is a presumption arising from the wording of r 26.12(7) that the party who has the benefit of the discontinuance should have their costs. That presumption can be rebutted if the circumstances surrounding the discontinuance support that the liability of the discontinuing party to pay the costs of the other party should be altered. By contrast, in Lo v Australian Community Pharmacy Authority,58 Katzmann J spoke slightly differently of r 26.12(7). Her Honour suggested (at [60]) that the rule establishes a ‘default or prima facie position’, rather than creating a presumption that costs will necessarily be awarded against the discontinuing party. Further, the rule places an onus on that party to make an application where it seeks to avoid paying the costs of the other parties. The Court will require a sound reason for departing from the ordinary course that a discontinuing party will pay the costs of the other parties (absent agreement to the contrary). What is clear from the authorities is that the Court is generally reluctant to consider the issue of costs based on a prediction of the outcome of the case [page 214] should it have proceeded to a hearing.59 As a final point, and as recognised by Rares J in Armstrong v Australian Community Pharmacy Authority,60 the intention behind r 26.12(7) is that parties can avoid making an application in respect of costs where a discontinuance occurs by leave of the Court. This will, in the process, save expense and gives due regard to the overarching purpose of the civil practice and procedure provisions.

The legal effect of discontinuance

8.12 The third issue concerning Div 26.2 of the Rules relates to the legal effect of the filing of a notice of discontinuance. Once discontinued, a proceeding may not be revived by the party seeking to withdraw the discontinuance. A new claim for relief would need to be made. The Rules provide that a notice filed by one party does not affect any other party to the proceeding (r 26.12(6)). Hence, to operate as a discontinuance of an entire proceeding, the notice of discontinuance must address the entire proceeding and each party. Perhaps more importantly, unless the Court permits a party to discontinue on terms inconsistent with the Rules (under r 1.35), discontinuance cannot be pleaded as a defence to a subsequent proceeding that is the same, or substantially the same, as the discontinued proceeding.61 What this means in effect is that, subject to the terms of any agreement between the parties or an order of the Court, the act of filing a notice of discontinuance does not serve as an estoppel (such as, for example, in accordance with Port of Melbourne Authority v Anshun)62 or bar on the discontinuing party from commencing fresh proceedings of the same or substantially similar nature in the future. If the discontinuing party has failed to pay the costs of the opposing party in respect of the earlier discontinued proceeding,63 then the latter may apply to the Court for an order that the new proceeding be stayed until the costs are paid (r 26.15). With the above in mind, it may be prudent for the opposing party to either seek that judgment be entered against it (as potentially unpalatable as this may first appear), or for a properly worded deed of release to be entered into with the discontinuing party. Either of these steps may serve to avoid the commencement and conduct of essentially the same proceeding in the future.64 The finality of proceedings is fundamental to the promotion of the overarching purpose of the civil practice and procedure provisions. [page 215]

A filed notice of discontinuance may be set aside. The Court has the power to do so where it is in the interests of justice.65 In Nyoni v Shire of Kellerberrin (No 2),66 the applicant had failed to establish a claim against the relevant respondent because the pleading had been struck out. The Court did not consider it to be in the interests of justice that the applicant’s notice of discontinuance be set aside in those circumstances.

Appeal proceedings 8.13 A different scenario to that outlined at 8.9 applies in relation to the discontinuance of an appeal. Under r 36.73(1), a notice of discontinuance (Form 126) may be filed to discontinue a proceeding in the appellate jurisdiction of the Court at any time before the hearing without the Court’s leave, or with leave at the hearing or during the period in between the hearing and the handing down of judgment. Once filed, the notice of discontinuance has the effect of an order made by the Court dismissing the appeal (r 36.73(2)). See also at 11.20.

Withdrawal of pleadings 8.14 Under r 26.11(1), a party may at any stage of a proceeding withdraw a plea raised in a filed pleading (including a defence) by filing a notice of withdrawal in accordance with Form 47. An admission or any other plea that benefits another party must not be withdrawn except with the consent of the other party or the leave of the Court (r 26.11(2)). Consistent with r 26.11(3), the notice must state the extent of the withdrawal, and be signed by any consenting party.

Default judgment Civil practice and procedure provisions Division 5.2 of the Rules

Orders on default 8.15 It is essential for the cost-effective, efficient and expeditious conduct of a proceeding that each party do all acts and things required of them in a timely manner. Consequences will naturally flow for a party found to be in default. By r 5.22, a party will be in default in the following circumstances: where there is a failure to do an act required to be done at all or in the allocated time, either by the Rules or by an order of the Court (paras (a)– (b)); [page 216] non-attendance at a hearing (para (c)); or the party does not prosecute or defend the matter with due diligence (para (d)). Such default under r 5.22 may result in another party to the proceeding applying to the Court under r 5.21 for an order to the effect that, unless the defaulting party does something to rectify the default within a prescribed time, the proceeding (as appropriate) be: dismissed (or at the least, the applicant’s statement of claim be struck out); the respondent’s defence be struck out; or the party have judgment against the defaulting party. Rule 5.23 addresses the more specific types of orders that may be applied for, depending upon whether the party in default is the applicant or the respondent. In dealing with specific kinds of proceedings, such as corporations law and bankruptcy matters, the Rules will apply (including Div 5.2) to the extent that

they are relevant and not inconsistent with the specific rules governing such types of matters.67

Failure to attend a hearing and act with due diligence 8.16 As just seen, r 5.22(c) refers to a default being caused by a party’s failure to attend a hearing in the proceeding and r 5.22(d) contemplates a failure to prosecute or defend a proceeding with due diligence. The question arose in Louis Vuitton Malletier v Sonya Valentine Pty Ltd68 as to whether the respondent’s failure to attend a scheduled mediation conference amounted to a default on the above two grounds under r 5.22. It was held by the Court (at [7]) that a mediation conference cannot properly be regarded as a hearing under r 5.22(c). Having regard to s 37M(3) of the FCA Act69 and the rules under Pt 28 on alternative dispute resolution, the unexplained failure of the respondent to attend the mediation conference was held to fall within the notion of a failure to defend the proceeding with due diligence under r 5.22(d). It would seem, however, that Scheduling Conferences and directions hearings are to be regarded as hearings for the purpose of r 5.22(c). In Placitum Pty Ltd v Andreotta,70 the respondent was found to be in default under r 5.22(c) for having failed to attend a Scheduling Conference. He was found also to be in default under r 5.22(b) for failing to comply with an order of the Court to file and serve a notice of address for service and a Fast Track response by [page 217] specified dates, and was in default under r 5.22(d) generally. More evidently, a party’s failure to attend a hearing in a proceeding was held to constitute clear

default conduct in Houpapa v Minister for Immigration and Citizenship71 (applicant’s proceeding dismissed), and a failure to attend a directions hearing on two separate occasions resulted in the Court dismissing the proceeding for a failure to prosecute in Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1).72 In somewhat stronger terms than expressed in the above authorities, the Court in Ashby v Commonwealth (No 3)73 viewed a failure to prosecute proceedings with due diligence as both an abuse of the process of the Court and contrary to s 37N(1) of the FCA Act. The requirements of Pt VB of the FCA Act were similarly a factor in the mind of the Court in JFTA Pty Ltd (in liq) v John Holland Pty Ltd74 when considering an argument for default arising under r 5.22(d).

Discretionary power 8.17 When presented with an application for default orders under r 5.23, the Court will consider two primary issues: first, whether there has been a default; and secondly, whether it should exercise its discretion to make the orders sought.75 In Re Engineered Thermal Systems Pty Ltd v Salmon; Salmon & Speck Pty Ltd (in liq),76 Foster J noted that the Court’s discretion is enlivened by the making of an application under r 5.23(2)(c). When considering the power of the Court to make default orders, regard may also be had to the general powers of the Court to make any order that it considers appropriate in the interests of justice,77 and to make an order that is inconsistent with the Rules (r 1.35). Section 23 of the FCA Act further confers upon the Court the power to make such orders as it thinks appropriate.78 More specifically, the Court has the power under s 37P(6)(a) of the FCA Act to dismiss a part or the whole of a proceeding where a party fails to comply with a direction. Regardless of the legal basis for the exercise of discretion by the Court

under r 5.23, the authorities make it clear that it is a discretion that ought to be exercised cautiously, regardless of whether it is the applicant or the respondent who is acting in default. The Court will be reluctant to deny a party [page 218] the opportunity to present their case,79 particularly where the default may be remedied with a costs order against the defaulting party. An order or judgment entered against a party under r 5.23 (or another rule in Div 5.2) may be set aside or varied.80 How far the defaulting party must go with their non-compliance before the Court will be prepared to exercise its discretion is not clear. For example, it was said in BJ International Ltd v Asghar (No 2)81 that a single act of default may or may not be sufficient for an order to be made under r 5.23(2). It will depend on the circumstances of the matter whether a sufficiently serious default is held to have occurred. In Tamawood Ltd v Habitare Developments Pty Ltd (admin apptd) (recs and mgrs apptd),82 Collier J suggested that it may be appropriate for the Court to make an order under r 5.23 where the defaulting party’s ‘non-compliance is continuing and occasioning unnecessary delay, expense of [sic] other prejudice to the other party or parties’. Under r 5.23(2), an applicant seeking relief in a proceeding commenced by an originating application and supported by a statement of claim (that is, by a pleading) is entitled upon a default by a respondent to seek judgment based on the statement of claim without the need to adduce evidence in support of that claim for relief. Judgment may be given in the applicant’s favour if the pleading makes that claim and it is within the jurisdiction of the Court.83

Vexatious proceedings

Civil practice and procedure provisions Division 6.1 of the Rules Part VAAA of the FCA Act

Vexatious proceedings and the Rules 8.18 Vexatious proceedings have the potential to cause the protraction and proliferation of litigation involving the same or different parties. Where an applicant commences a vexatious proceeding, an Attorney-General, the Registrar, the respondent or a person with sufficient interest in the matter, may apply to the Court for an order that the applicant cannot continue that proceeding (or commence or continue any other proceeding in the Court) without the leave of the Court (see further 8.19–8.20). The fact the person [page 219] against whom such an order is made cannot start any proceeding in the Court without leave is reiterated in r 6.03. The term ‘a person with sufficient interest’ is not defined in the Rules or the FCA Act.84 It was observed by Stone J in Soden v Kowalski85 that proceedings will be vexatious where they are instituted for the purpose of annoying or embarrassing the respondent or for a collateral purpose other than that of having the matter adjudicated properly by the Court. Vexatious proceedings will also tend to be so clearly unmeritorious that they are doomed to fail. The Rules86 define a ‘vexatious proceeding’ to mean a proceeding: (a) that is an abuse of process of the Court; or (b) started or conducted in a way to harass or annoy, cause delay or detriment, or for any other wrongful purpose; or (c) started or pursued without any reasonable ground; or (d) of the kind mentioned in paragraph (a), (b) or (c) that has been started in any other Australian court.

The corresponding definition in s 37AM(1) of the FCA Act has some minor differences, but is otherwise substantially similar to that of the Rules. In more general terms, where a document filed in a proceeding contains a matter that is scandalous, vexatious or oppressive, a party to the proceeding may apply to the Court for an order that the document be removed from the Court file or that the matter be struck out of the document (r 6.01). A matter may be characterised objectively as ‘scandalous’ where ‘it would be perceived to be such according to generally recognised and accepted community standards at the time of the application’.87 A matter will be ‘oppressive’ for the purposes of the Rules ‘if it would tend to prejudice, embarrass or delay the fair trial of an action or cause an abuse of the Court’s process’.88

Vexatious proceedings orders under the FCA Act 8.19 Part VAAA of the FCA Act is a relatively new set of provisions, having commenced operation on 11 June 2013. In addition to the statutory powers in the Act, the Court has an implied power to protect its own processes from abuse.89 Under Div 2 of that part, the Court may make a vexatious proceedings order of its own motion90 or on the application of an AttorneyGeneral, the Registrar, a person against whom a vexatious proceeding has been instituted or conducted or a person who has a sufficient interest in the matter.91 [page 220] The Court may order (amongst other things) a stay or dismissal of all or part of any proceeding in the Court commenced by the relevant person or prohibiting the person (or causing others) from instituting proceedings (including of a particular type) in the Court.92 Such an order may only be made if the Court is satisfied under s 37AO(1) of the FCA Act that the person, acting alone or in concert with another individual, has ‘frequently

instituted’ or conducted vexatious proceedings in Australian courts or tribunals (that is, the conduct is not restricted to the filing of proceedings in the Court). Whether a person has instituted proceedings ‘frequently’ is a relative concept and must be answered having regard to the individual circumstances of each case. For example, vexatious proceedings may be conducted frequently where, although few proceedings in number are brought by the applicant, he or she insists on re-litigating an issue already determined by a court against them.93 In deciding whether to make an order under s 37AO(1), the Court may have regard to the factors listed in s 37AO(6). The test is not whether the person has acted with malice or believes genuinely in the merits of the claim.94 In the interests of natural justice, the legislature has made it clear that an order may not be made without the relevant person first having an opportunity to be heard (s 37AO(4)). An exercise of the Court’s discretion involves the balancing of two competing considerations. First, there is the notion of the need to curtail the cost of vexatious proceedings. It was observed by Sackville J in Ramsey v Skyring95 that: The cost to the court system and the community of litigants who refuse to accept that a point has been decided authoritatively against them, or who are otherwise determined to pursue hopeless courses in the courts, can be very high. Such litigants are often immune to costs orders and exempt from paying the court fees which other litigants must meet.

The competing consideration is that it is a fundamental right to have access to justice in a court of law in the pursuit of remedies to redress a grievance. As reflected in Soames v Secretary, Department of Social Services (No 2),96 an order that has the effect of denying a person access to such a forum is a serious matter and the Court should exercise its discretion to make an order under s 37AO very carefully. Once the order has been made, a person may ask the Registrar for a certificate stating whether a particular person is or has been the subject of an order under s 37AO.97

[page 221] See also the discussion on summary judgments under s 31A of the FCA Act at 8.24.

Matters flowing from a vexatious proceedings order 8.20 The effect of a vexatious proceedings order, made under s 37AO of the FCA Act, is that the relevant person is prevented from instituting proceedings in the Court except with the leave of the Court granted under s 37AT.98 If, for some reason, a proceeding is still instituted without leave having been first obtained, then the proceeding will be stayed by the operation of ss 37AQ(2)– (4). The person may apply for leave to institute a proceeding in accordance with s 37AR(2), with a supporting affidavit addressing the matters outlined in s 37AR(3). The application must be made in accordance with r 6.03 and Form 2. The documents must not be served on an affected party unless or until the Court has made an order under s 37AT(1)(a).99 This presumably is intended to spare another party the inconvenience and expense of being involved in a proceeding if it is not absolutely necessary. Where the Court is minded to grant the application for leave, then that other party must be first served with a copy of the application and affidavit and with a notice that they are entitled to be heard on the application (s 37AT(1)(a)). In considering an application for leave to institute a proceeding, the Court may dismiss the application if it considers the affidavit in support does not substantially comply with the requirements under s 37AR(3).100 The Court otherwise must dismiss the application, potentially without an oral hearing, if it considers that application to itself be vexatious in nature (s 37AS(2)).101

Appealing a vexatious proceedings order

8.21 Despite any application brought under s 37AO(3) being (presumably) made by way of filing an interlocutory application (Form 35), an order under s 37AO(2) staying or dismissing all or part of a proceeding or prohibiting the person from instituting proceedings is deemed to be a final order.102 This has the consequence that no leave to appeal is required and so any appeal from a decision made under s 37AO would proceed to hearing and determination by a Full Court of the Court. In any event, a person in relation to whom a vexatious proceedings order applies will first be required to apply for and be granted leave to institute the appeal proceeding, in accordance with s 37AR of the FCA Act. [page 222]

Summary judgment Civil practice and procedure provisions Division 26.1 of the Rules Section 31A of the FCA Act

Application for summary judgment under the Rules 8.22 The Rules recognise that sometimes a proceeding should not be permitted to continue to hearing in the interests of justice because the claim for relief or defence filed within the proceeding has no reasonable prospects of success, is an abuse of process or the proceeding is otherwise vexatious. In such circumstances, an opponent party may choose to make an application under r 26.01(1) for an order that judgment be given against the other party. Any application for summary dismissal should be brought as soon as possible so that costs are prevented from escalating.103 The application and accompanying affidavit, stating the relevant grounds and facts required by r

26.01(2), must be served on the other party at least 14 days prior to the date set for the hearing of the application (r 26.01(3)). The stated grounds for entering summary judgment in r 26.01(1) are, as regards the applicant: the applicant has no reasonable prospects of successfully prosecuting all or part of the proceeding (para (a)), including that no reasonable cause of action is disclosed (para (c)); the proceeding is frivolous or vexatious in nature (para (b)); and the proceeding is an abuse of process of the Court (para (d)). As regards the respondent: there is no reasonable prospect of successfully defending the whole or part of the proceeding (para (e)). If only part of a proceeding is dismissed, then the rest of the applicant’s claim for relief may continue under r 26.01(4), and any surviving cross-claim similarly may continue to be prosecuted by the respondent (r 26.01(5)). It is open to the respondent to apply to the Court for an order staying execution on, or enforcement of, the judgment pending determination of the crossclaim (r 26.01(5)). An abuse of process, contemplated by r 26.01(1)(d), may occur in the circumstances suggested by McHugh J in Rogers v R;104 namely, that court procedures are being invoked for an improper purpose. This may be for an illegitimate purpose, in a manner that is oppressive or that brings the administration of justice into disrepute. His Honour observed (at [16]) that perhaps most of the cases of abuse of process occur from the institution of [page 223] proceedings, but that any procedural step in the conduct of a proceeding is

capable of being an abuse of process.105 Regarding the meaning of ‘no reasonable prospect of success’, as appears in rr 26.01(1)(a) and (e), see discussion at 8.25. The meaning of ‘vexatious’ is considered at 8.18. The very nature of a proceeding may lend itself to slow finalisation due to protracted negotiations and the need for appropriate research and evidencegathering, such as in native title proceedings. Nonetheless, the Court has pointed out that this does not derogate from the obligation of an applicant to prosecute its claim diligently and to act consistently with the duty in s 37N and the overarching purpose of the civil practice and procedure provisions.106 The Court is unlikely to dismiss a proceeding under r 26.01 if it is ‘required to determine contested issues of fact or engage in significant fact finding, given the evidence is invariably incomplete and untested’.107 As alluded to in the Note to r 26.01, regard may be given to the operation of s 31A of the FCA Act, dealing also with the subject of summary judgments.108 It is common for an application for summary judgment to be based upon a combination of r 26.01 and s 31A. An application to strike out pleadings on the grounds set out in r 16.21 (including for an abuse of process) may also potentially result in an order for summary judgment, as occurred in Sims v Chong.109

Leave to appeal? 8.23 A decision of the Court may be interlocutory or final in nature. The former type of decision requires leave to appeal and the latter type may be appealed as of right. It was held by Rares J in Ashby v Commonwealth (No 3)110 that a summary judgment or order made under r 26.01 is interlocutory in nature. As such, leave to appeal is required under s 24(1A) of the FCA Act. By contrast, the judgment of Mortimer J in Shaw v MAB Corporation Pty Ltd (Shaw)111 suggests that the issue of whether leave to appeal is required in respect of a judgment arising under r 26.01 is somewhat less straightforward. Her Honour considered that such a judgment may or may not be

interlocutory in nature depending upon whether the findings of the Court finally determine the parties’ rights.112 Hence, in Egglishaw v Australian Crime Commission,113 [page 224] the Full Court held that in circumstances where the judgment concerns a finding of estoppel (including Anshun estoppel) or res judicata, there is no scope for a further judgment or proceeding in relation to the same matter. An abuse of process finding is different because an applicant, in the absence of a vexatious proceedings order, retains a right to commence fresh (appropriately instituted) proceedings. On the facts in Shaw, above, it was held that, to the extent the judgment of the primary Judge made under r 26.01 did not finally dispose of the claims as against all of the respondents, the decision was consequently interlocutory and so required leave.

Section 31A summary judgment 8.24 The question of summary judgment is not confined to the Rules. Section 31A of the FCA Act came into operation on 1 December 2005, as a result of the Migration Litigation Reform Act 2005 (Cth). Its constitutional validity was upheld in Priestley v Godwin (No 3).114 The section is similar in wording to r 26.01 insofar as they both refer to the scenario of judgment being given against a party in relation to the whole or part of a civil proceeding (see s 31A(5)) where there are no reasonable prospects of successfully prosecuting (s 31A(2)) or defending (s 32A(1)) the proceeding, as the case may be. The nature of s 31A was summarised succinctly by French CJ and Gummow J in Spencer v Commonwealth115 in these terms: This section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or

unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’. The application of s 31A is not, in terms, limited to those categories.

It has been held that the section is a significant departure from previous versions of the provision allowing summary judgment to be ordered in a proceeding, and is a widening of that power.116 Although the barrier to obtaining judgment under s 31A has been lowered, it has been said that the onus on the party seeking summary judgment is heavy.117 [page 225]

‘No reasonable prospect of success’ 8.25 Section 31A(3) of the FCA Act explicitly provides that a defence or proceeding (or part thereof) need not be hopeless or bound to fail for it to have no reasonable prospects of success. This notion accords with the views expressed by both High Court and Court authorities.118 In the leading authority on the subject, Spencer v Commonwealth,119 the majority considered the scope and application of the phrase ‘no reasonable prospects of success’ but expressed caution in judges seeking to capture the meaning of such a statutory phrase. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd,120 Rares J, in determining whether a proceeding has no reasonable prospects of success, favoured an approach that is careful not to cause an injustice by ordering summary dismissal. His Honour said: Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages.

The approach of Rares J in the above case was adopted by Jacobson J in

Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers).121 In Priestley v Godwin (No 3),122 Bennett J noted that the exercise of judicial discretion under s 31A necessarily involves an assessment of the case and the evidence, even though there is not a full fact-finding exercise. Where the amendment of a pleading has the potential to remedy any issue regarding the ability of a party to prosecute or defend the whole or a part of a proceeding, the Court may be inclined to allow such amendment in preference to ordering summary dismissal.123 To obtain summary judgment under s 31A, the Court must be satisfied that the party prosecuting or defending the proceeding (or a part thereof) clearly has no reasonable prospect of success. This is done by reference to either a defective pleading that cannot be cured or to evidence adduced in support of the s 31A application that reasonably excludes the possibility that essential facts needed in support of the claim or defence will be able to be established.124 The party making the application will not discharge its onus to enliven the Court’s discretion to order summary dismissal unless [page 226] only one conclusion of the prospects of success of a proceeding can be said to be reasonable.125

Final or interlocutory decision? 8.26 It was seen at 8.23 that any appeal from a summary judgment arising under the Rules potentially may require leave to appeal. In the case of s 31A, it is deemed statutorily that any decision granting or refusing summary judgment under that provision is interlocutory in nature and that therefore leave to appeal is required.126 The interlocutory nature of a decision made

under s 31A was confirmed by the Court in Clement v Comcare127 and more recently in Shaw v MAB Corporation Pty Ltd.128

Preliminary questions Civil practice and procedure provisions Division 30.1 of the Rules

Applications for a separate trial 8.27 Prior to a date being fixed for trial, a party may apply to the Court under r 30.01 for an order that a question arising in the proceeding be heard as a preliminary issue to be determined separately from, and prior to, the other questions in the proceeding. The Court may make such an order of its own motion (r 1.40).129 The early determination of a preliminary question may result in the finalisation of the entire proceeding or, at the very least, serve to clarify and narrow the issues in dispute between the parties.130 As referred to in r 30.02, a decision on a question that substantially disposes of the proceeding or obviates the need for a substantive hearing enables a party to apply for judgment or an order dismissing the whole or any part of the proceeding. An application under r 30.01 or r 30.02 presumably is made by way of an interlocutory application in accordance with Form 35,131 although these rules are silent on this. It follows that any decision made by the Court (at first instance) [page 227] as a result of an application brought under either of the rules is interlocutory in nature and thus requires leave of the Court for an appeal to be instituted.132

The exercise of discretion 8.28 The Court appears, for the main part, to have adopted a cautious approach to ordering separate trials on preliminary questions. It was suggested by Reeves J in Accor Australia and New Zealand Hospitality Pty Ltd v Liv Pty Ltd133 that this caution most likely stems to some extent from the comments of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board.134 In that case, their Honours opined that practical experience demonstrates that time and expense is not necessarily saved because the parties must still prepare fully, there is the risk of an appeal on the separate issue135 and that, accordingly, preliminary question trials should only occur when their benefits are beyond question. Furthermore, the procedure of separate trials has been perceived to be one that can be fraught with difficulties.136 The starting premise for the Court has tended to be that issues of fact and law in a proceeding should be determined at the same time.137 Whether the Court will be prepared to make the order for a preliminary hearing of a separate question will depend upon the exercise of broad discretion and the extent to which the Court thinks the case will be managed more efficiently and inexpensively if there is a separate determination of the relevant question, with specific regard to s 37M of the FCA Act.138 The Court was persuaded to order a separate hearing in Zaghloul v Woodside Energy Ltd (No 4),139 noting that the preliminary issue would avoid a very lengthy and expensive trial for both the parties and the public. In Reading Australia Pty Ltd v Australian Mutual Provident Society,140 Branson J outlined a number of relevant factors in determining whether separate trials should be ordered. Such factors may be paraphrased as including whether they will: [page 228] contribute to the saving of time and cost by substantially narrowing the

issues for trial or even lead to the disposal of the action; contribute to the settlement of the litigation; give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial; provide any significant overlap between the evidence adduced on the hearing of the separate question and at trial; or prolong rather than shorten the litigation? Ultimately, a party seeking an order under r 30.01 must show that it is ‘just and convenient’ for the Court to make the order.141 The separate question must be capable of permitting a final judicial decision resting upon a conclusive factual foundation, as the ‘efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties’.142 The factual foundation for the determination of the separate trial issue must be resolved by either the parties agreeing on the relevant facts or the Court reaching its own determination of the facts before deciding the question, and there must be precision in the formulation of the question.143 The Court will be reluctant to order a separate trial where it would result in the fragmentation of the proceedings, resulting in delay, expense and hardship.144 In Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd,145 the Court regarded that the nature of the claim and cross-claim would, if separate trials were ordered, result in ‘problems of overlapping issues, repetition of evidence and the possibility of inconsistent findings on the same or different evidence’. An issue may not be appropriate for separate determination in all of the circumstances outlined in Australian Energy Regulator v Snowy Hydro Ltd146 and in Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2).147 So, too, applications for an order under r 30.01 were unsuccessful in Lifeplan Australia Friendly Society Ltd v Woff148 and Blues Pty Ltd v Deputy Commissioner of Taxation.149

[page 229] An order for separate trials was made in Johnson Tiles Pty Ltd v Esso Australia Ltd150 because it was regarded to be expedient and in the interests of the administration of justice. That case concerned what the Court described (at [18]) as probably the largest representative proceeding before the courts in Australia. Although noting the authorities that warn about exercising caution in separating the hearing of a claim and cross-claim in such proceedings, and doing so only in ‘exceptional circumstances’, the Court was of the view that the circumstances of the case were sufficiently exceptional to warrant separate trials. Indeed, it was suggested (at [18]) that Pt IVA of the FCA Act anticipates the possibility of separate trials and that representative proceedings, by their very nature, ‘call for special management’.

1 Consult also generally the Hon Kevin Lindgren et al, ‘Alternative Dispute Resolution’ in Law Council

of Australia (Federal Litigation and Dispute Resolution Section), Case Management Handbook, 34 . 2 [2003] FCA 1195. 3 As discussed at 1.8. 4 Commonwealth

of Australia, ‘The Commonwealth’s Obligation to Act as a Model Litigant’, Appendix B to Schedule 1 of the Legal Services Directions 2005 (Cth). See also Caporale v Deputy Commissioner of Taxation [2013] FCA 427 at [42] (Robertson J). 5 Rules Sch 1. 6

The expression ‘alternative dispute resolution process’ is defined differently in s 4 of the FCA Act; namely, ‘a procedure or service for the resolution of disputes (other than arbitration or mediation) not involving the exercise of judicial power of the Commonwealth’. 7 See definition of ‘suitable person’ in r 28.02(2) and the wording of r 28.02(1)(a). 8 See generally Note 2 to r 28.02 and s 53A of the FCA Act. 9 FCA Act s 53A(1A). 10 Rule 28.31 and refer to Div 28.4 on the ADR process. 11 FCA Act s 53B. 12

There is also a commercial arbitration Act in each State and Territory governing the conduct of domestic commercial arbitration within the relevant jurisdiction.

13 See discussion at 8.2. 14 FCA Act s 53A; Note to r 28.11(1). 15 The interlocutory application is to be in accordance with Pt 17 and Form 35. 16

FCA Act s 53AA(3). The reference to ‘might’ suggests this test arguably has a relatively low threshold to be satisfied. 17

The term ‘without notice’ is defined in the Dictionary (Sch 1 of the Rules) to mean ‘without advising another party or other person of an application to be made to the Court’. 18

As to whether an agreement to arbitrate may be reached between the parties through the exchange of email correspondence, see APC Logistics Pty Ltd v CJ Nutracon Pty Ltd [2007] FCA 136. 19 Practice Note ARB 1 at [2]. 20

A newly commenced matter will be listed before the relevant Registry’s Arbitration Coordinating Judge: see Practice Note ARB 1 at [3]–[4]. 21 Chief Justice James Allsop, ‘Judicial Support of Arbitration’ (FCA) [2014] Federal Judicial Scholarship

5 , discussing judgments of the Court including Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109 (Allsop CJ, Besanko and Middleton JJ); ESCO Corporation v Bradken Resources Pty Ltd [2011] FCA 905 (Foster J); Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131 (Foster J); DampskibsselskabetNorden A/S v Beach Building & Civil Group Pty Ltd [2012] FCA 696 (Foster J); Eopply New Energy Technology Co Ltd v EP Solar [2013] FCA 356 (Foster J). 22 [2013] HCA 5. 23 Chief Justice James Allsop, ‘Judicial Support of Arbitration’ (FCA) [2014] Federal Judicial Scholarship

5, 4–6 . 24

Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12296 (Robert McClelland, Attorney-General), quoted in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 at [16] (Rares J). 25 FCA Act s 54A(3). 26

[2012] FCA 558 at [35], citing R v Australian Broadcasting Authority; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49–50 (Stephen, Mason, Murphy, Aickin and Wilson JJ). 27 See also the other principles discussed by his Honour at [36]–[41]. 28 As to the principles governing the exercise of discretion, refer generally to Shannon

(in his capacity as receiver and manager of North East Wiradjuri Co Ltd) v North East Wiradjuri Co Ltd (No 3) [2012] FCA 106 (Jacobson J), citing Ritchies Uniform Civil Procedure NSW (LexisNexis) at [20.24.5]; Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 (McDougall J); Super Pty Ltd (formerly known as Leda Constructions Pty Ltd) v SJP Formwork Pty Ltd (1992) 29 NSWLR 549 at 563–4 (Gleeson CJ). 29 Evidence given before an inquiry must not be adduced in the Court by a party: see r 28.67(2). See also

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 at [41] (Rares J). 30 See the Note to r 28.61. 31 See generally Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 at [64] (Greenwood J). 32 [2013] FCA 28 at [30], quoted in Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 at [27]. 33 See further discussion at 12.10.

34

[1975] All ER 333. See, for example, Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd (No 2) [2013] FCA 1220; MG Corrosion Consultants Pty Ltd v Gilmour [2014] FCA 1339 at [21] (Barker J). 35 [2013] FCA 359. 36

Rules 25.01(1), 25.02, 25.05(4). See generally Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 2) [2014] FCA 526. 37

See, for example, Granger v Murdoch Books Pty Ltd [2012] FCA 909; Linke v TT Builders Pty Ltd [2015] FCA 111. 38 The situation regarding contributor parties is addressed by r 25.13. 39

Rule 25.14(1) and see the definition of ‘costs on an indemnity basis’ in the Dictionary (Sch 1 of the Rules). See also Turner v State of Victoria (Department of Human Services) (No 2) [2011] FCA 1160 at [8] (Bromberg J). 40

See generally Commissioner of Taxation v Crown Insurance Services Ltd (No 2) [2012] FCAFC 182; Barnes v Forty Two International Pty Ltd (No 2) [2015] FCAFC 19. 41 [2013] FCA 770. 42

Rules 25.14(1)(b), (2)(b), (3)(b). See generally Tivo Inc v Vivo International Corporation Pty Ltd (No 2) [2012] FCA 336 at [12] (Dodds-Streeton J). 43 [2013] FCA 921 at [24]. 44 [2014] FCA 682. 45 [2012] FCAFC 55 (Finn, Buchanan and Yates JJ). 46

[2015] FCA 2 at [16] (Farrell J). See also Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881 at [30], citing Specsavers Pty Ltd v The Optical Superstore Pty Ltd [2012] FCAFC 183; Dye v Commonwealth Securities Ltd (No 2) [2012] FCA 407 at [6] (Buchanan J). 47 [2014] FCA 784 at [10]. 48

See exploration of the issue by Katzmann J in Visscher v Teekay Shipping (Australia) Pty Ltd (No 5) [2013] FCA 28 at [14]–[17]. 49

Robinson v Kenny (No 2) [2015] FCA 2 at [18] (Farrell J), citing Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437 at [17] (Hely J) and Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 at [10] (Tamberlin, Finn and Sundberg JJ); Merost Pty Ltd v CPT Custodian Pty Ltd (No 2) [2014] FCA 594 at [11]; Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266 at [12]–[32] (Griffiths J). See also Note 2 to r 25.14. 50 Kassem and Secatore v Commissioner of Taxation (No 2) [2012] FCA 293 at [11] (Nicholas J). 51 Refer to discussion relating to the ‘close of pleadings’ at 6.18. 52

Rule 26.12(4); KK (decd) v Western Australia [2013] FCA 1234; Tucker v Western Australia [2014] FCA 23. 53 Rule r 26.12(5); Nicolai v Indochina Medical Company Pty Ltd [2013] FCA 180. 54 [1991] FCA 650 at [7]–[9]. 55 [2013] FCA 1234 at [29], citing Levinge v Queensland [2012] FCA 1321 at [37]–[38]. 56

The Court may order that the costs be paid by the applicant’s solicitor personally, having regard to

the legislative intent of ss 37M, 37N and s 43(3)(f) of the FCA Act: Ryan v Primesafe [2015] FCA 8 (a Fair Work Act matter). 57 [2014] FCA 1098 at [144]. 58 [2013] FCA 639. 59

Travaglini v Raccuia [2012] FCA 620 at [20] (McKerracher J), citing Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 at [118]; El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 at [18] (Foster J). 60 [2012] FCA 577 at [14]. 61 See r 26.14 and the Note to that rule. 62 [1981] HCA 45. 63 In accordance with r 26.12(7). 64 See generally Still v Investec Bank (Australia) Ltd [2014] FCA 655. 65

Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477 at [77] (Siopis J), citing Kogolo v Western Australia [2011] FCA 1481. 66 [2012] FCA 1477. 67

Such as the provisions of the Federal Court (Bankruptcy) Rules 2005 (Cth) and the Federal Court (Corporations) Rules 2000 (Cth). See generally Re Engineered Thermal Systems Pty Ltd v Salmon; Salmon & Speck Pty Ltd (in liq) [2012] FCA 1159. 68 [2013] FCA 933. 69

Namely, the civil practice and procedure provisions must be interpreted and applied in the way that best promotes the overarching purpose. 70 [2014] FCA 726. 71 [2012] FCA 208. 72 [2010] FCA 785. 73 [2012] FCA 788 at [9] (Rares J). 74 [2014] FCA 760 at [8] (Katzmann J). 75

Re Yeo v Damos Earthmoving Pty Ltd; Beachwood Development Pty Ltd (in liq) [2011] FCA 1129 at [10] (Gordon J); JFTA Pty Ltd (in liq) v John Holland Pty Ltd [2014] FCA 760 at [8] (Katzmann J). 76 [2012] FCA 1159 at [36]. 77 Rule 1.32 and see Note 1 to r 5.23. 78 See generally Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [17], [20] (Flick J); JFTA Pty Ltd

(in liq) v John Holland Pty Ltd [2014] FCA 760 at [8] (Katzmann J). 79

Tamawood Ltd v Habitare Developments Pty Ltd (admin apptd) (recs and mgrs apptd) [2011] FCA 1078 at [25] (Collier J). 80 As recognised by Note 2 to r 5.23. 81 [2013] FCA 580 at [14] (Flick J). 82 [2011] FCA 1078 at [25]. 83

See the consideration of the authorities on the subject in Searson v Salmon [2014] FCA 1105 at [6]

(Rares J), including the views of Kiefel J in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427. See also Maylord Equity Management Pty Ltd v Parazelsus Ltd [2014] FCA 979 at [9]–[14] (Gleeson J). 84 See the definition of ‘interested person’ in the Dictionary (Sch 1 of the Rules). 85 [2011] FCA 318 at [46], citing Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. 86 In the Dictionary (Sch 1 of the Rules). 87 Re C2C Investments Pty Ltd; C2C Investments Pty Ltd v Leigh (No 3) [2012] FCA 680 at [6] (Yates J). 88 Ibid at [7]. 89 HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [98] (Perry J). 90 Ibid at [14]. 91 FCA Act s 37AO(3). 92 Ibid s 37AO(2). See, for example, Garrett v Make Wine Pty Ltd [2014] FCA 1258. 93

Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [49]–[50] (Gilmour J), citing HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [114] (Perry J); Fuller v Toms [2013] FCA 1422 at [77] (Barker J). 94 Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [17] (Gilmour J). 95 [1999] FCA 907 at [67]. 96 [2014] FCA 1062 at [14] (Jagot J). 97 FCA Act s 37AP; r 6.02. 98 FCA Act s 37AQ. 99 Ibid s 37AR(4); r 6.03(b). 100 FCA Act s 37AS(1). 101 Re Skyring [2014] FCA 397 at [15] (Rangiah J). 102 FCA Act s 37AO(5). 103 Quinlan v Safe International Forsakrings AB [2006] FCA 1718 at [47] (Nicholson J). 104 [1994] HCA 42 at [16]. 105

See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; Budby on behalf of the Barada Barna People v Queensland (No 2) [2013] FCA 314 at [31]–[33]. 106

Budby on behalf of the Barada Barna People v Queensland (No 2) [2013] FCA 314 at [35], [38] (Collier J), citing Isaacs on behalf of the Turrbal People v Queensland [2011] FCA 828 at [10] (Reeves J). 107

Garrett v Make Wine Pty Ltd [2014] FCA 1258 at [84] (Mortiner J), citing authorities including Spencer v Commonwealth [2010] HCA 28 at [21], [24] (French CJ and Gummow J). 108 See 8.24. 109 [2014] FCA 1069. 110 [2012] FCA 788 at [7]–[8], citing Re Luck [2003] HCA 70. 111 [2014] FCA 62 at [46]–[49]. 112

Citing Egglishaw v Australian Crime Commission [2007] FCAFC 183 at [38]–[45] (Finn, Kenny and Edmonds JJ).

113 Ibid at [44]. 114 [2008] FCA 1529. 115 [2010] HCA 28 at [22]. 116

Shaw v MAB Corporation Pty Ltd [2014] FCA 62 at [42] (Mortimer J), citing Spencer v Commonwealth [2010] HCA 28; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [27], [45]. 117 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [10] (Edmonds J). 118

See, for example, Spencer v Commonwealth [2010] HCA 28 at [52] (Hayne, Crennan, Kiefel and Bell JJ); Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at [34] (McKerracher J). 119 [2010] HCA 28 at [58]–[60] (Hayne, Crennan, Kiefel and Bell JJ). 120 [2006] FCA 1352 at [48]. 121

[2006] FCA 1416 at [30]–[33]. See further the relevant principles summarised in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J) and in Leahy v Commonwealth [2013] FCA 1454 at [24] (Foster J). 122

[2008] FCA 1529 at [35]. See also Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [48]. 123 Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] 1401 at [19] (French J). 124 Ibid at [20]. See also Spencer v Commonwealth [2010] HCA 28 at [22] (French CJ and Gummow J). 125 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [7] (Edmonds J). 126 FCA Act ss 24(1A), 24(1D)(b). 127 [2008] FCA 1780 at [3] (Stone J). 128 [2014] FCA 62 at [20], [39] (Mortimer J). 129 See also the powers in r 1.32 and FCA Act s 23. 130

Buchanan v TAL Life Ltd [2015] FCA 42 at [28] (Edmonds J), quoting University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [41] (Stone J) and the authorities cited therein. See also CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 606 (Kirby J), quoted in FPInnovation Pty Ltd v Registrar of Trade Marks [2013] FCA 826 at [30] (Cowdroy J). 131

See, for example, Graham’s Factree Pty Ltd v Oak Enterprises (No 1) [2012] FCA 1033; Accor Australia and New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2013] FCA 379. 132 See generally Margan v Australian Human Rights Commission [2013] FCA 612. 133 [2013] FCA 379 at [16]–[17]. 134 [2001] HCA 19 at [168]–[170]. 135

In support of their Honours’ view on the risk of appeals, it may be noted that an (unsuccessful) appeal did result from the hearing of the preliminary issue in Village Building Company Ltd v Canberra International Airport Pty Ltd [2003] FCA 1195: see Village Building Company Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240. 136 Save the Ridge Inc v Commonwealth [2005] FCAFC 203 at [15] (Black CJ, Moore and Emmett JJ). 137

AWB Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 at [29] (Young J),

citing Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [7] (Branson J). 138 Buchanan

v TAL Life Ltd [2015] FCA 42 at [29] (Edmonds J); Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013 at [39] (Beach J); Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2) [2014] FCA 1378; Samootin v Official Trustee in Bankruptcy [2012] FCA 64 at [13] (Katzmann J). See also Olbers v Commonwealth (No 3) [2003] FCA 651 at [8] (French J). 139 [2014] FCA 623 at [4]. 140

[1999] FCA 718 at [8] (Branson J), a case involving the predecessor rule to r 30.01 (O 29 r 2 of the Rules 1979). See also Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2) [2014] FCA 1378 at [38] (Mortimer J). 141

AWB Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 at [30] (Young J), citing Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [9]–[10] (Branson J). 142 Bass

v Permanent Trustee Co Ltd [1999] HCA 9 at [49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also AWB Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 at [31]. 143 AWB

Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 at [32]–[36], citing Rainsford v Victoria [2005] FCAFC 163 at [36] and Rocklea Spinning Mills v Anti-Dumping Authority [1995] FCA 1188. 144 Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] (Stone

J), cited in AWB Ltd v Honourable Terence Rhoderick Hudson Cole (No 2) [2006] FCA 913 at [38]. 145 [2002] FCA 401 at [17] (RD Nicholson J). 146 [2014] FCA 1013 at [40]. 147 [2014] FCA 1378 at [38]. 148 [2012] FCA 1415. 149 [2012] FCA 320. 150 [2000] FCA 1837 (Merkel J).

[page 231]

Chapter 9

HEARINGS This chapter covers: • •

•

•

The efficient hearing of disputes …. Trial management …. Stay and consolidation of proceedings …. Separate trials …. Jury trials …. Adjournments …. Expedited hearings …. Judge disqualification …. Setting down and hearing fees …. Presenting the case …. Hearing periods …. Directions for trial …. Further written submissions …. Filing of list of authorities …. Use of technology in courtroom …. Absences and non-appearances by parties …. Evidence …. Witnesses …. Court experts …. Parties’ expert witnesses …. Affidavit and other evidence ….

9.1 9.2 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.9 9.10 9.11 9.12 9.13 9.14 9.15 9.15 9.16 9.17 9.18

•

Application to re-open case ….

9.19

The efficient hearing of disputes 9.1 This chapter recognises that, for a party to comply with the duty in s 37N of the FCA Act that a civil proceeding is to be conducted consistently with the overarching purpose contained in s 37M, hearings must run efficiently in order to keep costs and delays to an absolute minimum. Time and cost inefficiencies will be caused, for example, by unreasonable requests for adjournments, which can impact on the ability of other Court users to have their matters heard and determined in a timely fashion. Expedited hearings may be appropriate in certain circumstances, bearing in mind that they, too, will affect other litigants awaiting hearing within the system. Delays and unnecessary costs also will be caused by a multiplicity of related proceedings, requiring consolidation for the more efficient use of resources. [page 232] The preparation for, and presentation of, a party’s case in the courtroom (including dealing with evidence) should reflect clear compliance with the civil practice and procedure provisions and the case management practices of the Court. In the prosecution or defence of a case, a party or lawyer should not overlook the potentially serious repercussions of an absence or nonappearance at any hearing in the proceeding. Rarely is an application for a jury trial in a civil case allowed by the Court. Similarly, any application for the disqualification of a trial Judge should be approached cautiously and will only succeed in limited and appropriate circumstances. Finally, a case should only be sought to be re-opened by a party after a judgment is reserved in the interests of justice.

Trial management Civil practice and procedure provisions Part 30 of the Rules – Hearings Rule 9.06 of the Rules – Separate Trials Rule 5.04 of the Rules – Directions Rule 5.08 of the Rules – Hearing and Determination of Matter at Directions Hearing Sections 39–40 of the FCA Act – Jury Trials Federal Court and Federal Circuit Court Regulation 2012 (Cth)

Stay and consolidation of proceedings 9.2 Division 30.2 of the Rules recognises that there may be instances of several proceedings pending in the Court that involve a common question of law or fact or that are the subject of claims arising from the same transaction or series of transactions (rr 30.11(a)–(b)). Under r 30.11, a party to these proceedings may make an application for an order that the proceedings be: the subject of consolidation (para (c)); heard together (para (d)); heard immediately after one another (para (e)); or stayed until one or more of the proceedings is determined (para (f)). A proceeding may be stayed in circumstances where the Court regards it sensible to avoid potential disparate findings of law or fact made in relation to common issues that could occur if one proceeding is not stayed so as to await the outcome in another proceeding (either in the Court or another forum).1 In Apotex Pty Ltd v Les Laboratories Servier (No 6),2 Bennett J observed that [page 233]

the parties to the application for a stay of proceeding each sought to invoke s 37M in support of their respective positions. After reviewing the relevant authorities concerning such applications, her Honour considered that the Court has a duty to hear and determine a claim for relief brought before it and an applicant has a right to have his or her action tried as soon as possible in the ordinary course of the Court’s business. The onus is on the respondent to show why it is proper that there should be an interference with this normal course of events. Ultimately, the discretion of the Court involves the exercise of balancing the interests of justice between the parties, and each application for a stay of proceedings will be assessed on its own merits. In the circumstances of the case, Bennett J declined the application for a stay order. The Court was prepared to order a stay of a representative proceeding under the predecessor rule to r 30.11(f) (namely, O 29 r 5 of the Rules 1979) in Johnson Tiles Pty Ltd v Esso Australia Ltd3 because it was of the view that multiple proceedings should not be prosecuted against the respondent. The consolidation of proceedings is not the same thing as proceedings being heard together. The former results in there being a single proceeding and, following a substantive hearing, there is usually the delivery of a single judgment. Any appeal arising from a hearing of consolidated proceedings should be treated as a single proceeding appeal, whereas an appeal from a hearing of proceedings heard together may still require the bringing of individual appeals in respect of each proceeding involved (which, in turn, may then be sought to be consolidated into a single appeal proceeding). In determining whether it is appropriate for proceedings to be tried together, the Court in Humphries v Newport Quays Stage 2A Pty Ltd4 provided a helpful list of relevant factors in the exercise of the Court’s discretion. Some of those factors are whether the proceedings are similar in nature, there is a sharing of witnesses across the proceedings, the stage of each proceeding and whether there will be a substantial saving of time by hearing the proceedings at the same time? The Court also referred (at [11]) to the questions of whether an order for proceedings to be heard simultaneously will

‘create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence’, and whether multiple appeals with substantial delays will eventuate if the proceedings are not tried at the same time? The Court’s discretion in relation to applications made under r 30.11 is broad. Ultimately, the making of an order under the rule is predicated on the main consideration of what will be in the interests of justice.5 Relevant considerations in the exercise of that discretion have been described as ‘the desirability of avoiding multiple actions, saving time and expense, and whether any party [page 234] would be prejudiced’.6 Balanced with these considerations is the timing of the application having regard to any already scheduled hearing date. Thus in Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 2),7 it was held by McKerracher J that the (unsuccessful) interlocutory application for proceedings to be heard together had the capacity to cause considerable prejudice in light of the trial being listed to commence in only a few business days. In Elliott v Health Services Union,8 the Court effectively granted an application for two proceedings, involving common issues of fact and law, to be consolidated (or heard together, depending upon which option proves to be the most cost-effective) within the docket of another Judge. Katzmann J noted (at [7]–[8]) that it would be inefficient for the separate proceedings to be conducted before two different dockets Judges in different locations, and that the promotion of the overarching purpose would be best promoted by the making of an order of this kind. Her Honour also expressed concern (at [6]–[7]) at the possibility of separate hearings resulting in different findings of fact or law being made, and of an overlap of witnesses. Similarly, an order

was made in Mercedes Holdings Pty Ltd v Waters (No 8)9 for proceedings to be heard together, with evidence in one proceeding being evidence in the other. Where the Court has expressed some reservation in connection with the making of a consolidation order, it has provided the parties with liberty to apply for deconsolidation for good cause should it, for instance, emerge that any anticipated overlap of fact (or law) appears unlikely to crystallise.10 The Court does not, however, have the power to make an order for the consolidation of proceedings that are not currently before it.11 A deconsolidation order was made in respect of the Kurniadi v Loh group of proceedings.12 In so ordering, the Court demonstrated its flexible approach to case management when it decided (at [18]–[19]) that its consolidation order had not led to ‘a more efficient and expeditious process of these matters to trial’ having regard to the different applicants (both legally represented and unrepresented) and the level of progress in their individual matters. Once some of the matters are ready to go to trial, the Court expressed its willingness to consider directions that some matters be heard together or that other matters be heard concurrently or consecutively (with evidence in one being evidence in all). [page 235]

Separate trials 9.3 An application may be made by a party for an order that separate trials be held because a joinder of parties or causes of action in a proceeding may complicate or delay the hearing (r 9.06(a)) or cause any other inconvenience (r 9.06(b)). The Court has a wide discretion when considering applications under these provisions. The issue of a separate trial to determine a preliminary question, consistent with r 30.01, is addressed in detail at 8.27–8.28.

Jury trials 9.4 On occasion, a party to a civil proceeding before the Court may decide that their prospects of success are best achieved by a jury trial. The guarantee to a trial by jury in s 80 of the Constitution does not apply to civil proceedings, but rather to trials for indictable Commonwealth offences.13 As a matter of ‘general policy’, the Court in a civil trial will usually be constituted by a Judge sitting without a jury (unless the Court otherwise orders).14 The power to order a jury trial in a civil proceeding is found in s 40 of the FCA Act. That section provides that (amongst other things) ‘[t]he Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact …’. The onus is on the party applying for a jury trial to convince the Court of the need to depart from the norm.15 A ‘substantial’ or ‘special’ reason for the departure must be shown.16 It has been suggested that this is not necessarily an onerous burden for the applicant to discharge.17 Indeed, the Court may have regard to contemporary community moral and social values in determining whether a jury trial is appropriate in all the circumstances, as occurred in Ra v Nationwide News Pty Ltd (Ra)18 (a case involving the publication of allegedly defamatory imputations of a brothel owner keeping sex slaves). The Court does not have the power to order a jury trial within its appellate jurisdiction.19 [page 236] Applications for trial by jury in the Court, for the main part, have not met with success.20 The notable exceptions are Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2),21 in which the Court considered favourably a potential trial by jury, and in Ra, above, where an order for a jury trial was made but the matter settled prior to reaching trial.

Adjournments 9.5 In seeking to ensure proceedings are heard and determined as expeditiously as possible, it is understandable that the Court generally is reluctant to exercise its discretion to grant an application for adjournment of the trial other than in exceptional circumstances. This is so even where the other party consents to an adjournment.22 As observed by Heerey J in Jarrett v Westpac Banking Corp (Jarrett):23 The vacating of a trial date which has been fixed, by consent of the parties, well in advance, is a serious step. Parties and their witnesses, solicitors and counsel and the Court itself make important commitments based on the assumption that the trial date will be honoured.

The above sentiment was echoed by Besanko J in Halpern v BWA Group Services Pty Ltd,24 when his Honour noted the stress on litigants and witnesses caused by a delayed hearing. The need to provide natural justice to a party requesting an adjournment must be balanced with the requirement of s 37M of the FCA Act to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.25 In the exercise of its discretion, the Court will determine the grant or refusal of an application for adjournment according to the overall requirements of justice. The question often arises in the authorities as to whether a refusal of an adjournment means that the relevant party will not receive a fair hearing, particularly where the effect of the denial is that the litigant is left without [page 237] legal representation at the trial.26 It was held by Heerey J (in the minority) in Jarrett, above (at [6]), that a party to civil litigation does not have an absolute right to legal representation, such that an adjournment of the trial must be granted if the party is found to be without a lawyer. A denial of procedural

fairness to the appellants in the circumstances of that case was, however, found by the majority of the Full Court (Carr and Mansfield JJ). Nevertheless, where a litigant is capable of conducting the case satisfactorily without the assistance of legal representation, the Court may be less likely to find that the litigant was denied an adequate opportunity to present a case. This occurred, for example, in Fiorentino v Companies Auditors and Liquidators Disciplinary Board.27 Competing factors seem to apply, including consideration of ‘the rights of the other parties to reasonably prompt disposition of their litigation and the need to maintain public confidence in a fair and efficient system of civil justice’.28 As observed in Re Shengli Pty Ltd t/as Duna World (Reg),29 it must be appreciated that the vacating of scheduled trial dates (especially in lengthy cases) will prevent other litigants in the system from being able to have their matters dealt with on those dates. Consequently, the Court is left without a listing where there is a practical inability to list another case at such short notice.30 The Court (at [40]) reflected also upon the potential tension between the notion of ‘the speedy and efficient administration of justice’ and the duties of counsel. The timing of the application for an adjournment will have a bearing on whether it will be granted. Leaving the application until the eleventh hour, resulting in disruption and prejudice to the other side, has been noted to be a relevant consideration in the exercise of the discretion against the granting of an adjournment.31 In Cranney v National Australia Bank,32 however, an adjournment was granted despite the application being made on the morning of the trial on the grounds that the Court believed there were extenuating circumstances (including that it would be unfair to hold the appellants responsible for the want of prosecution of the appeal), the interests of justice would be more efficiently served if the appellants were legally represented, it was possible to re-list the appeals within a short period of time and the [page 238]

adjournment would not cause any obvious prejudice to the respondents. So, too, it has been held that late adjournments are potentially appropriate in cases where an important witness is unable to be present at the hearing because of the sudden death of a family member,33 and where the witness has been taken ill and any injustice done to the other party can be reduced by costs.34 It should be noted, however, that a party will not be assured of the grant of an adjournment simply because the other party is compensated with an award of costs.35 Another scenario in which the Court may be persuaded to exercise its discretion in favour of an adjournment is where a party is served on the eve of the trial with thousands of pages of evidence, and in circumstances where that party could not reasonably be expected to have read all the documents or be satisfied that discovery had been completed properly by the other party.36 A somewhat pragmatic approach was demonstrated by the Court in Investa Properties Pty Ltd v Nankervis.37 In that case, the applicant sought that a scheduled hearing date be vacated (adjourned) on the grounds of not being ready to proceed due to the personal difficulties of former counsel, who had recently withdrawn from the case. Collier J (at [15]–[20]) outlined her Honour’s view on why it is appropriate to exercise the discretion in favour of the trial dates being vacated. In accepting the applicant’s argument that they had a satisfactory explanation, her Honour noted (at [16]) the observation of French CJ in Aon Risk Services Australia Ltd v Australian National University38 to the effect that a party should not be punished for its delays in litigation preparation or for the delays of its lawyers. Foremost, it was considered (at [19]) that the overarching purpose of the civil practice and procedure provisions is the just resolution of proceedings. Any harm or inconvenience suffered by the other side could be compensated adequately with an award of costs thrown away, payable on an indemnity basis. An application for an adjournment application is interlocutory in nature.39 Consequently, leave to appeal is required, should an appeal be instituted, in accordance with s 24(1A) of the FCA Act.40 Where an appellate proceeding

involves an appeal from both final orders and a decision not to grant an adjournment, then an appeal (without the seeking of leave) will be competent.41 [page 239] A refusal to grant an adjournment, causing the appellant injustice, may justify the setting aside of final orders.42 An appeal court, however, will be generally reluctant to interfere with a discretionary judgment concerning matters of practice and procedure.43

Expedited hearings 9.6 At the opposite end of the spectrum to an adjournment is an application for the expedition of a trial. Such an application may be made in either the appellate or original jurisdiction of the Court. An expedited appeal hearing application may be brought under r 36.11 within the context of a party applying for directions in relation to the management, conduct and hearing of an appeal. Section 25(2B)(c) of the FCA Act further confers power upon the Court to give directions about the conduct of an appeal. Similar to r 36.11, r 5.04(1) enables the Court, at any hearing conducted within its original jurisdiction, to make directions for the management, conduct and hearing of a proceeding. Rule 5.04(3) at item (2) refers to a direction concerning the proceeding continuing or becoming an expedited proceeding, and item (33) further refers to a possible direction in relation to the ‘place, time and mode of hearing’. A party may apply to the Court during a directions hearing that the hearing and determination of the proceeding occur on that occasion or that there be disposal of the originating application or a cross-claim then (r 5.08). As with an application for adjournment, the Court has a broad discretion as to whether an application for expedition should be granted in the interests

of justice and in accordance with s 37M of the FCA Act.44 In Paul’s Retail Pty Ltd v Lonsdale Australia Ltd,45 the Court allowed an expedited hearing because there was urgency and the need arose to minimise the severe financial impact on the appellant if there were not a prompt resolution of the dispute. In so ordering, the Court noted (at [38]) the obiter dictum of North J in British American Tobacco Australia v Secretary, Department of Health & Ageing,46 that it is necessary ‘to balance the consequences of refusing an order for expedition against the effect on other litigants waiting in the appeal list’. A similar factor was raised by Kenny J in Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority.47 Another question is whether a failure to expedite a hearing would have a ‘serious detriment to good public administration or the interests of others not party to the [matter]’.48 The parties’ conduct and the [page 240] consent of the other party to the expedition of the hearing were other factors mentioned by her Honour (at [20]).

Judge disqualification 9.7 It was observed in Chapter 1 that the individual docket system of the Court entails that ordinarily the docket Judge with responsibility for the case management of a proceeding will also be the determiner of the dispute at trial. The parties to the proceeding will, as a result, usually be aware of the likely identity of the trial Judge well in advance of the trial. It is incumbent upon the parties to raise any issues pertaining to allegations of actual or apprehended bias on the part of the docket Judge as soon as possible and only with sound basis for the making of an application for recusal. As observed by Tamberlin J in Shelton v National Roads and Motorists Association Ltd:49

The disqualification of a judge from proceedings which are being case-managed by that judge, and in respect of which an important application is listed for hearing in the immediate future, can cause disruption, incur expense, and result in delays to the resolution of the dispute. It is not a step to be taken lightly. There must be some real and substantial basis for making the application …

A Judge will not automatically disqualify himself or herself at the behest of a party or the slight hint of an allegation of bias. At one level, it has been said to be an abdication of judicial function and an encouragement of procedural abuse if he or she were to do so.50 The act of ‘Judge shopping’ must not be perceived as encouraged.51 The allegation of actual or apprehended bias against a Judge clearly is a serious matter, but a litigant should not be deterred from advancing such an allegation in an appropriate case.52 Parties to litigation and the general public must have full confidence in the integrity and impartiality of the judiciary in the administration of justice.53 The test to establish actual or apprehended bias, and thus grounds for disqualification, is whether a fair-minded lay observer might reasonably apprehend that there is a possibility the particular Judge will not bring an impartial mind to the resolution of the questions in dispute between the parties.54 What is ‘reasonable’ is to be considered in the context of ordinary [page 241] judicial practice.55 The test is an objective one, with (as just alluded to) the standard being that of a ‘hypothetical, fair-minded and informed lay observer’.56 It was suggested by the Full Court in George v Fletcher (Trustee)57 that the application of the test requires a two-step approach. First, it must be clearly identified what is alleged might lead the Judge to determine the matter other than on its actual merits. Secondly, there must be shown a ‘logical connection between the suggested reason and the feared deviation’. As to what may

constitute grounds for apprehended bias varies according to the circumstances. For instance, an isolated episode of temper or remarks within the conduct of the proceeding taken out of context should not form the basis for a hasty conclusion of apprehended bias on the part of the Judge.58 To the extent any bias is alleged to arise from a relationship between the Judge and any of the parties, the Court in Bragg v Secretary, Department of Employment Education and Training (Federal)59 suggested it is relevant to know: the nature, intensity and duration of the relationship; and the time that has elapsed since that relationship. Some cases have concerned an allegation of the Judge having a pecuniary interest in the outcome of proceedings which, if a reasonable apprehension of bias were established, would require disqualification by the Judge.60 No disqualification should arise simply because a Judge has some pecuniary interest in the outcome of the proceeding.61 Where a Judge, however, has a substantial and direct pecuniary, economic or proprietary interest in the outcome, this will ordinarily result in disqualification.62 Any requirement of disclosure by the relevant judicial officer in these types of situations was considered by the majority of the High Court in Ebner v Official Trustee in Bankruptcy (Ebner).63 Another potential scenario gleaned from the case law on judicial disqualification is where it is alleged that the Judge, by reason of past conduct, might be inclined to predetermine issues in a current dispute before them.64 [page 242] In Sekta v Gregor,65 the trial Judge previously, in his capacity as counsel assisting a Royal Commission, had put a series of questions to one of the parties to a current proceeding before the Court. His Honour declined to disqualify himself on the basis that there was no proper ground shown to

support an allegation of prejudgment of the discrete legal issues arising in the proceeding. Whatever belief or opinion of the relevant person held by his Honour almost a decade previously had no bearing on the manner in which the legal issues would be dealt with now. His Honour noted also (at [10]) the description of the relevant state of mind for bias by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng66 as ‘one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’. As alluded to in Chapter 6, in Comcare v John Holland Rail Pty Ltd (No one of the parties sought the recusal of the docket Judge because, it was alleged, the Judge had received ex parte communications from the other side through contact with his Honour’s associate. There apparently had been no discussion of the substance of one party’s request for a listing of the matter and so no such content had been conveyed to the Judge by the associate. In considering the authorities,68 it was held that no information or knowledge was acquired out of court that would support an argument that a reasonable apprehension of bias existed. This ruling was upheld on appeal.69 Due regard should be given to the matters outlined at 6.45 concerning the civil practice and procedure provisions governing communications with Judges and their Chambers. 3)67

Finally, from a case management perspective it is appropriate for any disqualification application to be heard and determined by the judicial officer the subject of the application, rather than by another Judge. This practice was approved by the majority of the High Court in Ebner, above (at [74]).

Setting down and hearing fees 9.8 A fundamental aspect of the conduct of litigation to the stage of a trial is the requirement of the applicant or appellant to pay to the Court any necessary fees associated with that hearing. As seen at 5.22, the relevant regulations, pertaining to the subject of the payment of fees in respect of

proceedings and processes in the Court, is the Federal Court and Federal Circuit Court Regulation 2012 (Cth) (Regulations). Generally speaking, the applicant to a proceeding or an interlocutory application is liable to pay the setting down [page 243] and hearing fees.70 Where the hearing is for a cross-claim or cross-appeal only, then the cross-claimant or cross-appellant (as applicable) will be liable to pay the fees (s 2.03(3)(a)). The applicant is also the party liable for payment of any mediation fee payable in relation to a proceeding (s 2.03(5)). Two or more proceedings set for hearing together, even when not formally consolidated, will attract only one set of setting down and hearing fees and the cost of the fees is apportioned equally between the liable persons for the fees across all of the proceedings (s 2.03(4)). A setting down fee is due and payable no later than 28 days before the date of hearing and otherwise within the time fixed or approved by the Registrar (or authorised officer) in the case of hearings occurring within a period of less than 28 days from the date the hearing is fixed (s 2.14(2)). A hearing fee is due and payable no later than close of business for the Court on the day that is two business days71 before the hearing date, where the hearing date has been set down for a period of at least two business days. In other cases, the hearing fee must be paid by 9.30 am on the day of the hearing (s 2.14(3)). Failure to pay the whole or a part of a setting down or hearing fee may result in the Court or Registrar vacating the hearing date or ordering that a proceeding may only take place with leave. Alternatively, another person may pay the fee and the Court can make an order for costs for the fee (s 2.18(4)). For the circumstance in which payment of a setting down or hearing fee may be exempted or waived (or payment deferred), or a paid fee might be refunded by the Court, consult the material (as appropriate) at 5.27–5.29.

Presenting the case Civil practice and procedure provisions Division 6.2 of the Rules – Use of Communication and Recording Devices in Court Division 30.3 of the Rules – Trials Sections 47A–47F of the FCA Act – Video and Audio Links Practice Note CM 2 – List of Authorities, Citation of Cases and Legislation for Proceedings Generally (Practice Note CM 2) Practice Note CM 6 – Electronic Technology in Litigation (Practice Note CM 6) Practice Note CM 22 – Video Link Hearing Arrangements (Practice Note CM 22) Practice Note GEN 1 – Court Sittings and Registry Hours (Practice Note GEN 1)

Hearing periods 9.9 Hearings are conducted in the Court during a set period of the calendar year, and a hearing will not be set down outside of that period except with the [page 244] leave of the Court. The Court will list original jurisdiction proceedings during the period commencing on the first Monday in February and ending on the last Friday before 23 December of that year.72 Urgent hearings outside of this period may be sought by a party by filing an interlocutory application accompanied by: an affidavit setting out why a hearing is sought outside of the usual hearing period; and

draft orders sought for the requested hearing.73 It is not indicated in the relevant practice note, Practice Note GEN 1, whether the draft orders must be lodged with the Registry as a separate document. In practice, it may be convenient to simply annex them to the affidavit. Given the cost associated with the bringing of an urgent hearing outside of the Court’s usual term, parties should be certain of the true urgency of the matter. Such a hearing was denied in Australian Federal Police v Carson74 because the Court was not satisfied of the purported extreme urgency of the matter and was of the view it could instead be listed for disposition in accordance with the usual processes of the Court. In relation to hearing dates for appeal proceedings, consult at 11.3. Consider also the hearing arrangements under the National Court Framework mentioned at 1.13.

Directions for trial 9.10 At or prior to a trial, a party may, under r 30.23, apply to the Court for an order seeking to limit a host of things in connection with the conduct of the hearing. These things range from the time spent with witnesses to the length of any written submissions. Although r 30.23 expressly allows such orders to be sought at the trial itself, it is prudent practice wherever possible to have any such orders or directions sought and, if made, in place prior to the trial. This will enable the hearing to be conducted with minimum disruption on the day. The list in that rule is not exhaustive. Other directions relevant to the conduct of the trial may be made ‘at any hearing’ (which includes a directions hearing) in accordance with r 5.04, including: the number of expert witnesses and witnesses to be called (items 16 and 22); the giving of evidence at the hearing (item 20); and the providing and limiting of written submissions (item 26).

Further written submissions 9.11 It was just seen that the trial Judge may direct the length and due date of any written submissions to be filed by the parties in relation to the trial. The [page 245] parties and their lawyers should be particularly mindful of the need to comply strictly with any such directions. The question arises as to when it will be appropriate for any further written submissions to be filed in the proceeding, including after the hearing has concluded. In Moran v Robertson,75 the trial Judge granted leave to the parties to file further ‘short’ submissions in respect of three discrete issues that had emerged during the course of the hearing. The respondents filed further written submissions of more than 91 pages (11 pages of which were submissions and the rest annexures). Flick J noted (at [90]–[93]) that what was filed was well in excess of that envisaged by the Court and that it should not have been filed. His Honour (at [91]) reflected further that: A balance must always be exercised to ensure that the Court receives the assistance thought desirable as opposed to the day set aside for a hearing being treated as but a preliminary skirmish with submissions being deferred to another date. It may well be easier for a party to discern what is of concern to the Court as a result of exchanges that occur during the course of oral submissions. But the time when those concerns are to be addressed is the time set aside for the hearing. If an opportunity or an indulgence is extended to a party to file ‘short submissions’ after a hearing, that is an opportunity not to be abused.76

The observations of McHugh J in Eastman v Director of Public Prosecutions (ACT)77 were also noted by Flick J (at [92]–[93]) as being applicable to proceedings in the Court. In particular, it was held that the Court should only give leave to a party to supplement submissions in very exceptional circumstances. There is no legal right for a party to continue to put submissions to the Court after a hearing and any natural justice required to

be afforded a party is limited to being given an opportunity to put their case at the hearing.

Filing of list of authorities 9.12 Practice Note CM 2, dealing with the list of authorities and citations (case law and legislation), applies to all final hearings within the Court’s original and appellate jurisdiction, unless ordered otherwise by the Court. It may be applied also in an interlocutory hearing.78 In accordance with that practice note (at [4]–[5]), the applicant must file and serve on each party its list of authorities and legislation by 4.00 pm five business days79 before the hearing date, and the respondent must do likewise by four business days before the hearing date. In relation to the list filed with the Court, there must be sufficient copies for each Judge involved with the hearing and a copy for the Court file.80 Practice [page 246] Note CM 2 provides detailed instructions on how the list of authorities and legislation is to be set out, as well as explaining when parties are required to hand up copies of materials relied upon in submissions and when instead the Court will supply its own copies. Perhaps one of the most important aspects of Practice Note CM 2, and one easily overlooked, is the requirement for the non-defaulting party (or parties) to inform the relevant Chambers of the trial Judge of the non-filing or nonservice by the other side of its list of authorities. This party must also notify the other parties to the proceeding.81 The precise consequences of not notifying the relevant Chambers or other parties are not clear, given that both sides in this scenario are in non-compliance of this practice note, albeit for different reasons.

For appeal proceedings, see further at 11.22.

Use of technology in courtroom 9.13 The civil practice and procedure provisions recognise that the use of technology may potentially hinder or facilitate the efficient administration of justice. As to the former situation, r 6.11 provides that a person must not use a recording device in a manner that records or makes a transcript of evidence or submissions in a hearing in the Court (sub-r (3)) and must not use a communication device (or a recording device) that disturbs a hearing or causes any concern to a witness or participant in the hearing (sub-rr 4(a)– (b)). By the same token, such devices must not convey information about the proceeding or hearing to an absent person who is not entitled to receive it (sub-r 4(c)). The Court may dispense with compliance with r 6.11.82 Rule 6.12 alludes to the potential contumacious nature of the conduct prohibited by r 6.11, and expressly does not limit the powers of the Court to punish for contempt.83 On the other hand, the Court clearly recognises the benefits of the use of modern technology in the conduct of proceedings and hearings, and it does so primarily in two practice notes. First, Practice Note CM 22 outlines in considerable detail the practices and procedures concerning video conference facilities (VCF) hearing arrangements. That practice note should be read in conjunction with other information on the Court’s website84 (concerning administrative arrangements, charges, forms and the like), and also ss 47A– 47F of the FCA Act (the procedures that apply for the giving of testimony, appearances and the making of submissions by VCF from within and outside of Australia).85 As recognised by Practice Note CM 22 (at [3.2]), the use of VCF [page 247]

when hearing participants are in different locations provides obvious benefits, including the ‘saving of costs and reduction in travel and organisational time’. Consideration will be given to every VCF proposal as to ‘whether this will provide a just, timely, economic and efficient use of the Court’s and the parties [sic] resources and aid the resolution of the litigation’.86 Before a party makes any VCF arrangements through the proper Registry for the proceeding (and with the trial Judge’s Registry, if different to that of the proper Registry), he or she must obtain a direction or order of the Court, and after having first discussed the proposal with the other side.87 The party should do so as soon as possible, and in accordance with the Rules.88 The manner of seeking the direction or order appears to be flexible from a case management perspective, with Practice Note CM 22 envisaging (at [3.7]) the application being made in open court or in Chambers, with supporting information being provided by correspondence (particularly in urgent cases) or by affidavit or oral submissions in open court. Practice Note CM 22 further outlines (at [4]) the specific arrangements to be made for requesting a VCF, as well as the manner of conducting the hearing by VCF (see at [5]). Other relevant matters to note from this practice note when conducting a hearing involving the use of a video link include: if participants to the hearing are at various locations, any documents to be viewed by them should be made available prior to the hearing ([2.3]); consideration of time zone differences between the different locations and the availability of necessary equipment at the relevant locations ([3.2]); the requirement to obtain the consent of a foreign witness ([3.5]); whether appropriate arrangements with any suitable interpreter are in place ([3.4]); whether the party requesting the VCF is aware of, and has covered, all necessary expenses associated with the use of the VCF (such expenses

may be recoverable as a disbursement in the event of a successful costs order) ([3.6]); and the need for all parties to be notified of the relevant details of the VCF arrangements ([4.6]). Secondly, and as outlined at 6.30, Practice Note CM 6 applies to proceedings (including hearings) where it has been ordered by the Court that discovery will be given of documents in an electronic format (or in accordance with an electronic plan) or where the hearing itself will be conducted using electronic documents. Such an order may be expected where 200 or more of the relevant documents exist in electronic format and ‘the use of technology in the management of documents and conduct of the proceedings will help [page 248] facilitate the quick, inexpensive and efficient resolution of the matter’ (see at [1.2]). Indeed, Practice Note CM 6 (at [3.1]–[3.2]) expressly refers to the fact that this practice note is to be applied in a manner that best facilitates the overarching purpose in accordance with ss 37M and 37N of the FCA Act. As regards the use of technology in the conduct of the hearing, the Court has developed a ‘Pre-trial checklist’ available on its website as an attachment to Practice Note CM 6.89

Absences and non-appearances by parties 9.14 The inexcusable absence or non-appearance by a party at a scheduled hearing of the Court is, apart from constituting poor conduct, a waste of the Court’s and other affected persons’ time and resources. It goes directly against the spirit of the overarching purpose of how civil litigation is to be conducted in the Court.

A party (or lawyer) should not therefore assume that a failure to attend a scheduled hearing (including a directions hearing) will automatically lead to the Court adjourning the matter. The party’s absence may instead result in the other side applying to the Court for an order to be made under r 30.21(1), with an adjournment being only one type of possible order. In the case of the absence of the applicant, the order made may be that the application is dismissed or the trial proceed only if specified steps are taken (r 30.21(1)(a)). If the absent party is the respondent, then an order may be made that the hearing proceed or that it proceed only if specified steps are taken (r 30.21(1) (b)). Where a party is absent due to medical reasons, it is prudent for the party to make a formal application for an adjournment and provide the Court with appropriate medical evidence in support of that application. A failure to do so may result in a dismissal order under r 30.21 with costs, as occurred in Armit v Jaminex Ltd (No 4).90 The non-appearance of the respondents at the hearing in Electrolux Home Products Pty Ltd v Delap Impex KFT91 resulted in the Court directing under r 30.21(1)(b)(i) that the hearing proceed and for the applicant to be granted leave to apply for default judgment. Judgment was given against both respondents. A similar situation occurred in Australian Competition and Consumer Commission v Nonchalant Pty Ltd (in liq),92 in which Gordon J held (at [6]) that the fact the respondent did not intend to defend, or participate in, the proceeding operated as no preclusion to the applicant applying to the Court for an order that the hearing proceed under r 30.21.93 [page 249] A different approach was taken in relation to a respondent’s application to dismiss an application under r 30.21(1)(a)(i) in SZUIE v Minister for Immigration and Border Protection.94 In that case, the Court (at [9]) regarded it more prudent to resolve the application for extension of time and leave to

appeal on its merits so that the applicant could ‘have some satisfaction that his case has been properly considered’. The outcome was ultimately the same as in the above cases; the applicant’s application was dismissed. In Pham v University of Queensland (Pham),95 however, Drummond J made the following observations concerning the predecessor rule to r 30.21: But O 32 r 2(1)(c) [of the Rules 1979] does not require the trial judge, confronted with a nonappearance of an applicant, to embark upon any investigation of the merits of the absent applicant’s claim. The procedure for dismissing an action under that particular rule is available only when the trial is called on, ie, only at the point in time when all of the preliminary steps, including finalisation of pleadings and marshalling of evidence, have been completed.

The approach outlined in Pham, above, was followed by Collier J in Randell v Minister for Immigration and Citizenship.96 Her Honour noted (at [10]) that the avenue open to the applicant is to apply to set aside the order dismissing the substantive application. Where a trial does proceed in a party’s absence, that party may make an application for the varying or setting aside of the order made in their absence (or for the further conduct of the matter), consistent with r 30.21(2).97 In the relatively rare situation of there being no appearance by any of the parties to the proceeding when it is called on for trial, the Court may under r 30.22 either dismiss the proceeding or adjourn it to a specific date or generally. The absence of a party at a hearing in relation to an appeal is considered at 11.18.

Evidence Civil practice and procedure provisions Part 23 of the Rules – Experts Part 24 of the Rules – Subpoenas Division 29.1 of the Rules – Affidavits Section 47 of the FCA Act – Affidavit Evidence

Section 58 of the FCA Act – Offences by Witness Practice Note CM 7 – Expert Witnesses in Proceedings in the Federal Court of Australia (Practice Note CM 7) [page 250]

Witnesses 9.15 The evidence adduced on behalf of a party naturally plays a critical role in that party proving its case. Witnesses are an integral part of this process. A subpoena for a witness to give evidence or to give evidence and produce documents at a hearing requires the leave of the Court to issue (rr 24.01 and 24.12).98 Leave may be sought without notice to any other party (r 24.01(2)) and the Court may attach such conditions to the grant of leave as it sees fit.99 It is only with the leave of the Court that the subpoena will then be issued by the Registrar.100 Most commonly, applications for leave to issue a subpoena are dealt with on the papers by the docket Judge in Chambers. The subpoena should be in accordance with Form 43A (subpoena to give evidence) or Form 43C (subpoena to give evidence and produce documents). The form of the subpoena must also comply with the requirements of r 24.13 (including as to the time for service in sub-r(8)). It must be served personally on the addressee (r 24.16). In addition to the payment of conduct money101 and witness expenses to the addressee of the subpoena, the Court may order the issuing party to pay a reasonable amount to cover any loss or expense incurred in complying with the subpoena (r 24.22). An issuing party should be mindful, therefore, of the potential for the costs of compliance with an onerous or broadly worded subpoena (involving the production of voluminous material) to be significant.102 Indeed, where an addressee is subpoenaed to give evidence and to produce documents, there is also the potential for the addressee to claim the loss or expense associated with the obtaining of legal advice on issues such

as claims for privilege. A party or any person having a sufficient interest may apply to the Court, on notice to the issuing party (and to other persons if so ordered by the Court), to have the subpoena set aside in whole or in part or for the grant of other relief in relation to it (r 24.15). An addressee who fails to comply with a subpoena without a lawful excuse may be found to be in contempt of court (r 24.23). This may be so under that rule even where the addressee was not served personally, provided that he or she had actual knowledge of the subpoena and of its requirements as at the time prescribed by the Rules as the last date for service (r 24.23(2)). Furthermore, s 58 of the FCA Act provides that, unless excused by the Court or where there is a reasonable excuse, a witness who, after having been duly served with a ‘summons’: [page 251] fails to attend; refuses to be sworn or make an affirmation; refuses or fails to answer a question required to be answered; or refuses or fails to produce a book or document required pursuant to the subpoena, may be strictly liable to imprisonment for six months. The witness may not, however, be punished under s 58 and for contempt in respect of the same act or omission.103 Finally, the efficient conduct of a hearing is facilitated by each witness being properly ‘instructed’ in advance of the hearing by the party who issued the subpoena as to the following matters: whether the witness prefers to have an oath or affirmation administered; whether the witness requires the assistance of the court officer to read

out the wording of the oath or affirmation (for example, due to poor vision or difficulties with the English language); whether an interpreter is required; and if a holy book, rather than the Christian Bible, is required by the witness to take the oath or affirmation, then at least 24 hours’ notice to the Court is required for arrangements to be made.104

Court experts 9.16 The Court may appoint an expert, known in the Rules as a ‘Court expert’, to inquire into and report on any question or fact relevant to a matter arising in a proceeding. It may occur in accordance with r 23.01 by an application of a party or of the Court’s own motion.105 The phrase ‘expert’ is defined in the Dictionary106 to mean ‘a person who has specialised knowledge based on the person’s training, study or experience’. The Court expert’s report must comply with the requirements of r 23.02 and, if so, will then be admissible at trial as the evidence of the Court expert.107 Under r 23.03(2), a party may apply to the Court for an order to cross-examine a Court expert either before or at trial. If the former, the order may specify that the crossexamination take place before a Registrar or an examiner (r 23.03(2)(b)). The Court’s power to appoint a Court expert is designed to assist the Court with having ‘all the necessary technical information it needs, so as to minimise the prospect of any miscarriage of justice’; it is not designed to assist any particular party to the proceeding, although unintended assistance may [page 252] be a consequence of the exercise of that power.108 Similarly, it was considered by Branson J in Tyler v Thomas109 that the power to appoint a Court expert is

‘part of the armoury made available to courts for the purpose of ensuring the just, efficient and cost-effective management of litigation’ and that the appointment of an expert may have the effect of assisting an impecunious party to gather evidence. By contrast, in Taylor v Saloniklis (No 2),110 Besanko J was not satisfied that an appointed expert would contribute to the ‘just, efficient and cost-effective management’ of the proceeding and that, rather, the more efficient course was to make orders for the exchange of experts’ reports and to then list the matter for trial. The Court will be reluctant to engage an expert where it would have the effect of denying a party the opportunity of calling that expert as a witness in support of its case at trial, and it is important that the Court expert be perceived by all of the parties as being totally independent.111 The Court in Re Newark Pty Ltd (recs apptd) (in liq) v Civil & Civic Pty Ltd and Joseph Michael Thorpy112 balanced several factors in deciding whether an expert should be appointed. On the one hand, it noted that the expert’s report may not resolve the matter in dispute. The fact that the cost of obtaining the report was relatively inexpensive and the report could assist the Court to resolve the issues or potentially assist towards settlement of the matter made it worthwhile to engage the assistance of an impartial Court expert. By reason of r 23.01(2), the remuneration of an appointed Court expert is payable jointly and severally by the parties to the proceeding, although the Court may be prepared to consider a proposal that it bear the costs of that remuneration. Given the relatively limited resources of the Court, it was held in Roberts v Western Australia113 that the Court ‘would only entertain such an application if the case was of sufficient importance for it to do so’. The case was regarded to be of such importance that the Court was prepared to devote its resources to meet the reasonable costs of an independent anthropological expert.114 Conversely, in NAPS v Minister for Immigration and Multicultural and Indigenous Affairs,115 the Court noted it was already bearing the costs associated with engaging an interpreter and did not think it appropriate in

the circumstances of the case that it (or the respondent) should bear the further cost of appointing an expert. [page 253]

Parties’ expert witnesses 9.17 Division 23.2 of the Rules deals with the engagement of expert witnesses by the parties to a proceeding and with expert reports.116 A party may call an expert to give evidence on its behalf at trial provided that the expert has produced a report that complies with the matters in r 23.13 and Practice Note CM 7,117 and the party has ‘delivered’ that report to the other parties to the proceeding (r 23.11). Before the expert is retained by a party, the party must give to that expert a copy of Practice Note CM 7 (r 23.12).118 In some circumstances, the fact that an expert witness has not been aware of the matters within r 23.13 or Practice Note CM 7 may be irrelevant to the Court accepting that person as an expert witness at trial, as occurred in Selig v Wealthsure Pty Ltd.119 The Court may make directions about a variety of things pertaining to expert witnesses.120 Practice Note CM 7 confirms (at [1]) that the overriding general duty of the expert witness is to assist the Court on matters relevant to the expert’s area of expertise, and not to act as an advocate for a particular party. In this way, the admission of the expert’s opinion evidence is facilitated.121 In the event of two or more expert reports existing on a similar question, any of the parties intending to call the experts may apply for an order for any of the matters set out in r 23.15, including that the experts confer with one another before or after preparing their respective reports or that they produce a joint document identifying where their opinions converge or differ. Practice Note CM 7 (at [3]) makes it clear that if the experts are directed by the Court to confer with one another, then it would be improper for them to be given (or to accept) instructions not to reach agreement. Where there is a lack of

agreement between the experts in such a situation, they should specify their reasons for being unable to agree.

Affidavit and other evidence 9.18 Section 47(1) of the FCA Act provides that in a civil proceeding in the Court (not being a civil trial of causes), testimony is to be given by affidavit or as otherwise directed by the Court or a Judge. Under r 29.09, a party may give notice, to the party filing an affidavit or proposing to rely upon it, requiring the deponent of the affidavit to attend the listed hearing for crossexamination. [page 254] A deponent’s failure to attend the hearing in accordance with the notice is that the affidavit may not be used as evidence (r 29.09(3)). The Court may dispense with this requirement consistent with r 1.34.122 By r 29.09(4), the act of cross-examination by an opponent party invokes the right of reexamination. If a party wishes to read evidence (including affidavit) taken in another proceeding, then the party should make an application under r 30.25. Regarding the form and content of affidavits generally, refer to what is said at 6.21. For the situation regarding the tendering of plans, photographs and models, see the pre-trial requirements of r 30.26.

Application to re-open case 9.19 The overarching purpose mandated by s 37M of the FCA Act and the proper administration of justice favour that a hearing be conducted as expeditiously as possible and that, subject to any right of appeal, the hearing be final.123 The Court might, however, in exceptional circumstances exercise its discretion to allow a party to re-open its case while judgment is reserved.

That discretion will generally be exercised only where it is in the interests of justice to do so, and it will not usually be exercised where a party intends to merely re-agitate arguments already considered by the Court or where the party has failed to take the particular point of argument during the original hearing.124 In Inspector General in Bankruptcy v Bradshaw,125 the categories of circumstances in which the Court will usually permit further evidence to be given were identified as follows: fresh evidence is to be adduced; inadvertent error; and mistaken apprehension of the facts or of the law. The matter of Re An Application by Glenn William Ferguson v Re A Reference of Such Application by the Industrial Registrar to the Federal Court of Australia126 sheds light on the approach of the Court in relation to a party seeking leave to re-open a hearing on the grounds of fresh evidence. In that case, the Court held that fresh evidence should be admitted only when the evidence is material in the interests of justice, it could not have reasonably been obtained before the trial, it is of such a nature that it would probably affect the result and that no prejudice is suffered by the other party if the evidence were to be introduced so late. [page 255] Where the application to re-open is founded upon some tactical reason for not advancing a particular case during the original hearing, the Court is likely to find that the interests of justice are better served by refusing to re-open the case.127 Conversely, where a mistaken apprehension of the law or of the facts may be more appropriately considered to be a result of error by counsel, the Court may be more likely to be swayed in the exercise of its discretion in favour of the application being granted.128

A simple failure on more than one occasion to make out a case or where clear prejudice is caused to the other side by postponement of the matter (particularly where no fault lies with that party) are factors weighing against the grant of leave to re-open, as observed in Stoland Pty Ltd v Peter James Thurn.129 The prejudice to the other side was a factor also considered relevant by the Court in Patrick v Capital Finance Pty Ltd (No 2),130 as were the factors of the reason for the evidence not having been led in the first place and whether the interests of justice are better served by the rejection of the application to re-open.131 The question of setting aside and varying orders is addressed in the next chapter.

1 See generally Weinmann v Allphones Retail Pty Ltd (No 3) [2009] FCA 1292 at [29] (Barker J). 2

[2012] FCA 745 at [6]–[16], citing authorities including Commonwealth Bank of Australia v Finance Sector Union of Australia (2003) 124 IR 453; Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [62] (Dodds-Streeton J); Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd [2005] FCA 1135; Hughes Motor Services Pty Ltd v Wang Computer Pty Ltd [1978] FCA 49; (1978) 35 FLR 346 at 351–3 (Bowen CJ). 3 [1999] FCA 56 at [74] (Merkel J). 4 [2009] FCA 699 at [11] (Besanko J). 5

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2007] FCA 943 at [35] (Jacobson J). 6

Caason Investments Pty Ltd v Cao [2014] FCA 1410 at [14] (Farrell J), citing Cameron v McBain [1948] VLR 245 at 247. See also Re Noel Ling Ex Parte: Noel Ling v Commonwealth [1995] FCA 1410; (1995) 130 ALR 596 at [18] (Hill J). 7 [2014] FCA 107 at [35]. 8 [2014] FCA 296. 9 [2013] FCA 601. 10 See, for example, Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 490. 11 Pamela Ashcroft t/as Fit & Ready for Work v Macquarie Equipment Rentals Pty Ltd [2009] FCA 862 at

[21] (Graham J). 12 Kurniadi v Loh [2005] FCA 49 (Carr J). 13 See, for example, Harding v Deputy Commissioner of Taxation [2008] FCA 1403. Division 1A of Pt III

of the FCA Act deals with (in part) jury trials in relation to criminal proceedings (including cartel conduct prosecutions) in the original jurisdiction of the Court.

14

FCA Act s 39; Ra v Nationwide News Pty Ltd [2009] FCA 1308; Comcare v John Holland Rail Pty Ltd [2010] FCA 981. 15

Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [14] (Rares J); Comcare v John Holland Rail Pty Ltd [2010] FCA 981 at [22] (Bromberg J). 16 Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391; McDermott v

Collien (1953) 87 CLR 154; Gargan v Commonwealth Bank of Australia [2004] FCA 641. 17 Comcare v John Holland Rail Pty Ltd [2010] FCA 981 at [22], [27]. 18 [2009] FCA 1308. 19 Draper

v Official Trustee in Bankruptcy [2006] FCAFC 157; Gao v The Official Trustee in Bankruptcy [2003] FCAFC 84. 20

See, for example, Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] FCA 764 (defamation); Australian Securities Commission v Matthews [1999] FCA 706 (contempt); Commonwealth Bank of Australia v Rigg [2001] FCA 590 (bankruptcy); Harding v Deputy Commissioner of Taxation [2008] FCA 1403 (bankruptcy); Zegarac v Pitcher Partners [2009] FCA 804 (bankruptcy). See also Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234 (consumer protection matter in which trial by jury initially suggested by Judge, but opposed by parties). 21 (1988) ATPR 40-887. 22 Re Shengli Pty Ltd t/as Duna World (Reg) [1989] FCA 442 at [36] (O’Loughlin J). 23 [1999] FCA 425 at [6]. 24 [2013] FCA 673 at [19]. 25

Ibid at [28] (Besanko J); Spencer v Commonwealth [2014] FCA 1117 at [28]–[32] (Mortimer J); Huang v University of New South Wales [2014] FCA 1337 at [27] (Perry J); Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 at [39] (Logan, Flick and Perry JJ), citing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Marketing Pty Ltd [2013] HCA 46. 26

Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 at [55]–[56] (Wigney J); Mijac Investments Pty Ltd v Graham [2009] FCA 303 at [23] (Gordon J); Shannon v Commonwealth Bank of Australia [2014] FCAFC 108. 27

[2014] FCA 641. For consideration of whether a decision to effectively deny legal representation in a civil proceeding constitutes a denial of procedural fairness, see that case at [59]–[60] and the Full Court decisions in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 and Jarrett v Westpac Banking Corp [1999] FCA 425 (Carr and Mansfield JJ). 28 Jarrett

v Westpac Banking Corp [1999] FCA 425 at [6] (Heerey J). See also Huang v University of New South Wales [2014] FCA 1337 at [27] (Perry J); Hamod v New South Wales [2011] NSWCA 375; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 14305 at [37]; Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 at [29] (Lindgren J). 29 [1989] FCA 442 at [36] (O’Loughlin J). 30 Ibid. 31 Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 at [89]. 32 [2011] FCA 1336.

33 Petrovic v Taara Formwork [1982] FCA 208. 34 Dick

v Pillar (1943) 1 KB 497. See also Squire v Rogers [1979] FCA 48; Re Shengli Pty Ltd t/as Duna World (Reg) [1989] FCA 442 at [37]. 35

Mijac Investments Pty Ltd v Graham [2009] FCA 303 at [23] (Gordon J), and see authorities cited therein regarding the importance of the ‘attainment of justice’ (including Queensland v JL Holdings Pty Ltd [1997] HCA 1; cf Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, discussed at 1.7). 36

Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920, cited in Mijac Investments Pty Ltd v Graham [2009] FCA 303 at [27]. 37 [2012] FCA 743. 38 [2009] HCA 27 at [35]. 39

Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165; John Waymouth Ahern v Deputy Commissioner of Taxation [1987] FCA 312; Scott v Handley [1999] FCA 404. 40 SZTOV v Minister for Immigration and Border Protection [2014] FCA 942. 41 Lahood v Bank of Western Australia Ltd (No 3) [2013] FCA 861. 42

Guss v Johnstone [2000] FCA 1455, cited in Lahood v Bank of Western Australia Ltd (No 3) [2013] FCA 861 at [5]. 43 Jarrett v Westpac Banking Corp [1999] FCA 425 at [78] (Mansfield J); at [4] (Heerey J), citing Adam P

Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39. 44

Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18], [21] (Kenny J). 45 [2012] FCA 724 (Dodds-Streeton J). 46 [2011] FCA 718 at [7]. 47 [2014] FCA 1090 at [21]. 48 Ibid at [19]. 49 [2004] FCA 977 at [4]. 50 Livesy v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294. 51 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J). 52 Shaw v Yarranova Pty Ltd [2014] FCAFC 171 at [40] (Bennett, Flick and Yates JJ). 53

Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 68 (Deane J); Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 476 (Madwick J). 54 Michael

Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [31]; Asden Development Pty Ltd (in liq) v Dinoris [2015] FCA at [1] (Reeves J); Picos v Servcorp Ltd [2015] FCA 355 at [15] (Perry J); Picos v Hyatt Hotel Canberra (No 2) [2015] FCA 626 at [37] (Yates J) (and the authorities cited therein); Livesy v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294, cited in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2000] FCA 1201 at [8] (Carr J). See also Setka v Gregor [2011] FCAFC 64 at [8] (Tracey J); George v Fletcher (Trustee) [2012] FCAFC 148 at [72]; Johnson v Johnson [2000] HCA 48; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (a joint judgment with the matter of Clenae Pty Ltd v ANZ Banking Group).

55

George v Fletcher (Trustee) [2012] FCAFC 148 at [72] (Siopis, Jessup and Katzmann JJ), citing Johnson v Johnson [2000] HCA 48 at [13], [53], [80]. 56 Webb v R

[1994] HCA 30; (1994) 181 CLR 41 at 68 (Deane J), cited in Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 476 at [2] (Madgwick J). 57

[2012] FCAFC 148 at [73]. See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 58 Johnson

v Johnson [2000] HCA 48 at [53] (Kirby J); George v Fletcher (Trustee) [2012] FCAFC 148 at

[72]. 59

[1996] FCA 476 (Madwick J), citing S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 368–9 (Kirby P). 60

See, for example, Collins v AMP Superannuation Ltd [2000] FCA 1110 at [30] (Sackville, Katz and Kenny JJ); Re Jury; Ashton v Prentice [1999] FCA 671. 61 Ebner v Official Trustee in Bankruptcy [2000] HCA 63. 62 Ibid at [58]. 63 Ibid at [66]–[73] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 64

See, for example, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Setka v Gregor [2011] FCAFC 64 at [9]. In Asden Development Pty Ltd (in liq) v Dinoris [2015] FCA, Reeves J refused an application that he recuse himself based on certain statements said to have been made by his Honour at a pre-trial case management hearing. 65 [2011] FCAFC 64. 66 (2001) 205 CLR 507 at 532. 67 [2001] FCA 164. 68

Including Ebner v Official Trustee in Bankruptcy [2000] HCA 63 and Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; (1994) 119 ALR 206. 69 John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34. 70 Regulations s 2.03(3). 71 The term ‘business day’ is defined in the Dictionary (Sch 1 of the Rules). 72 Practice Note GEN 1 at [1]. 73 Ibid at [3]. 74 [2005] FCA 101. 75 [2012] FCA 371. 76 Emphasis in original. 77 [2003] HCA 28 at [29]. 78 Practice Note CM 2 at [2]. 79 See the definition of ‘business days’ in the Dictionary (Sch 1 of the Rules). 80

Practice Note CM 2 at [3]. Practice Note CM 2 does not seem to have been amended in light of the introduction of Practice Note CM 23 dealing with the electronic court file. 81 Practice Note CM 2 at [6]. 82 Note 2 to r 6.11; r 1.34.

83 Regarding contempt of Court orders generally, see Chapter 10. 84 See at . See also the

discussion on electronic aids to litigation at 6.4. 85

In respect of hearings by VCF from New Zealand, the provisions of Div 34.4 of the Rules apply if the hearing is conducted under the Trans-Tasman Proceedings Act 2010 (Cth). 86 Practice Note CM 22 at [3.2]. 87 Ibid at [3.1]. 88 Ibid at [3.7]. 89 Available at . 90 [2013] FCA 889. 91 [2015] FCA 62. 92 [2013] FCA 605. 93

See also Wang v Anying Group Pty Ltd (No 3) [2012] FCA 1380; Mayberry v Kijani Investments Pty Ltd as Trustee for The Dawe Investments Trust Subway Wallsend t/as Subway [2011] FCA 1238; Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205. 94 [2014] FCA 1359. 95 [2002] FCA 203 at [26] (Marshall and Finkelstein JJ concurring). 96 [2012] FCA 50 at [8]–[9]. 97 On the setting aside of judgments and orders generally, see Chapter 10. 98

A party may also apply at any hearing for an order that a person attend before the Court (or certain other persons) for examination or production of a specified document or thing (r 30.34(1)). This may occur even where that person has already been subpoenaed to attend (r 30.34(2)). 99 Note 2 to r 24.01. 100 Note 3 to r 24.01. 101

The expression ‘conduct money’ is defined in the Dictionary (Sch 1 of the Rules) to mean ‘a sum of money or its equivalent, sufficient to meet the reasonable expenses of a person required by subpoena or order to attend Court’. 102 Consider the discussion at 6.37. 103 FCA Act s 58(3). 104 See generally Federal Court of Australia, ‘Being a Witness’ . 105

For an example of the wording of an order appointing a Court expert and of the letter authored by the parties to that person explaining the nature of the task at hand, refer to Re Trade Practices Commission v Arnott’s Ltd; Arnott’s Biscuits Ltd; Fledspac Pty Ltd and the Dickens Corporation Pty Ltd [1989] FCA 440. 106 Rules Sch 1. 107 Rule r 23.03; Evidence Act 1995 (Cth) s 177. 108

Gale v New South Wales Minister for Land and Water Conservation [2001] FCA 1652 at [5]

(Madgwick J). 109 [2006] FCAFC 6 at [29]. 110 [2014] FCA 410 at [11]. 111 Britten v Western Australia [2001] FCA 1256 at [17] (Gray J). 112 [1987] FCA 352 at [6]–[7] (Pincus J). 113 [2012] FCA 1483 at [3] (North J). 114 Ibid at [8]. 115 [2003] FCA 1091 at [10] (Allsop J). 116 For an analysis of the issues presented by the use of expert evidence in litigation (including mega-

litigation), see Justice Ronald Sackville, ‘Expert Evidence in the Managerial Age’ (FCA) [2008] Federal Judicial Scholarship 4 . 117 See specifically at [2]. 118 Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National

Native Title Tribunal [2012] FCA 1215 at [12] (Cowdroy J). 119

[2013] FCA 348 at [591] (Lander J). See also Ranbaxy Laboratories Ltd v AstraZeneca AB [2013] FCA 368. 120 Rule 5.04(3) (items 14–19). 121 See further Evidence Act 1995 (Cth) Pt 3.3. 122 See the Note to r 29.09. 123

Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010 at [48] (Goldberg J); Wenkart v Pantzer [2008] FCA 1387. 124

University of Wollongong v Merwally (No 2) [1985] HCA 28; Autodesk Inc v Dyason (No 2) [1993] HCA 6 and Commonwealth v Verwayen (1990) 170 CLR, cited in Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No 4) [2011] FCA 1307 at [7] (Jagot J). 125

[2006] FCA 22 at [24] (Kenny J), quoted in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82 at [9] (Logan J). 126 [1986] FCA 259 at [9] (Toohey J). 127 See, for example, Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No 2) [2008] FCA 1761. 128

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478. See also Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572 and Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82, in which leave to re-open was granted. 129 [1997] FCA 557 (Lehane J). 130 [2003] FCA 263 at [5] (Tamberlin J). 131 See also Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) [2011] FCA 1484 at

[355] (Robertson J), citing the Full Court decision in Londish v Gulf Pacific Pty Ltd [1993] FCA 470.

[page 257]

Chapter 10

JUDGMENTS AND ORDERS This chapter covers: • •

•

•

Compliance with Court decisions …. Dealing with judgments and orders …. Consent orders …. The delivery of judgments …. Interest …. Entry of orders and judgments …. Varying and setting aside judgments or orders …. Before entry of orders …. After entry of orders …. The slip rule …. Setting aside registration of a foreign judgment …. Enforcement …. Enforcement processes …. The expense of enforcement …. Application for stay of judgment or order …. Stay of further proceedings …. Contempt …. The importance of compliance with orders …. Failure to comply with orders and fulfil undertakings …. Punishment for non-compliance with orders ….

10.1 10.2 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 10.10 10.11 10.11 10.12 10.13 10.14 10.15 10.15 10.16 10.17

Compliance with Court decisions 10.1 The just and efficient resolution of civil disputes according to law, as mandated by s 37M of the FCA Act, requires the timely delivery of judgments and making of orders as an integral part of the litigation process. Consistent with that section, the Court must also seek the efficient disposal of its overall caseload. The finality and enforceability of the Court’s decisions assists in this process. Non-compliance with an order of the Court can result in enforcement action and, in serious cases, proceedings for contempt. In appropriate circumstances, a judgment or order may be stayed, set aside or varied in the interests of justice. This chapter examines the civil practice and procedure provisions that play a role in ensuring that the orders of the Court are made and dealt with as expeditiously, efficiently and cost-effectively as possible and that there is compliance with them by the parties. [page 258]

Dealing with judgments and orders Civil practice and procedure provisions Part 39 of the Rules – Orders Division 41.6 of the Rules – Enforcement of Foreign Judgments Sections 51A and 52 of the FCA Act – Interest Practice Note CM 3 – Consent Orders in Proceedings Involving a Federal Tribunal (Practice Note CM 3) Practice Note CM 16 – Pre-judgment Interest (Practice Note CM 16)

Consent orders 10.2 Probably the most time-efficient and cost-effective means of seeking

orders from the Court is through the lodging or handing up in open court of short minutes of consent orders agreed to and signed by the parties to the proceedings. Such orders may be considered and made by a Judge sitting in open court or in Chambers.1 In accordance with r 39.11, the order must state it is made by consent and it is made by the Judge initialling or annotating the consent and placing it on the Court file for the proceeding. The greatest benefit of consent orders is that the lodging of short minutes may obviate the need to attend court, subject to the wishes of the relevant Judge. Alternatively, they save time during a court attendance (such as during a busy directions hearing list) by encouraging the Court to deal with consent matters first in the list and by it having a convenient written expression of the terms of the consent of the parties which, as noted above, the Judge may then simply initial or annotate. Consent orders concerning proceedings that involve a challenge to a decision of a federal tribunal (including the Commonwealth Administrative Appeals Tribunal) are dealt with in the specific manner contemplated by Practice Note CM 3. Where the parties propose consent orders be made that will set aside or vary an order of the relevant tribunal, they must file with the short minutes of consent order a separate document that contains a concise statement of the matters justifying the making of the orders and referring to applicable law. They should also comply with the filing and service requirements set out by this practice note. In other words, the parties in such proceedings should not assume they may unilaterally determine the appropriateness of the tribunal’s decision. Rather, this is a matter for the Court.2 The tribunal must be adequately apprised in the wording of the consent order of the basis for its decision being set aside and remitted back to it for proper determination in accordance with the law.3 [page 259]

A similar position to that just outlined above applies in relation to consent orders proposed in other proceedings. As noted by the Full Court in Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (Telstra Corporation):4 In making any consent order the Court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the Court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge … There is long established authority that the Court cannot be given power, by consent of the parties, to make an order that it would not have the power to make without their consent.5

In relation to proposed settlement consent orders, the approach of the Court appears to be that ‘there is a public interest in the Court encouraging appropriate settlements to avoid long and costly litigation’.6 Nonetheless, it was held in Telstra Corporation, above (at [47]), that the requirement that the consent order be ‘appropriate’ does not mandate close scrutiny of the merits of the proposed order as ‘there is a principle of judicial restraint in the scrutiny of settlements between legally represented parties of full capacity which applies to consent orders’.7

The delivery of judgments 10.3 A timely hearing of the issues in dispute between parties in a proceeding equally requires the timely delivery of judgment on those issues. Delay in the delivery of reserved judgments potentially causes undue hardship, expense and anxiety to the parties awaiting final determination of their dispute. As seen in Chapter 1, the Court has a goal of delivering each judgment within three months of the date of reserved judgment (and even sooner in Fast Track matters). The Court’s website explains the avenues through which a practitioner may express concern about a delayed judgment.8 Notwithstanding any understandable concerns that may attend a delayed judgment, it was held in Haros v Linfox Australia Pty Ltd9 that caution should be exercised in finding that a Judge has denied fairness to a party by reason

[page 260] of delay and that the length of the delay is only one factor when considering a denial of fairness. Furthermore, the draft of the facts of the case prepared soon after the completion of the trial and the transcript will assist the Judge in refreshing and supplementing memory.

Interest 10.4 Delay in bringing or finalising a proceeding to the point of delivery of judgment will have an impact on the amount of the pre-judgment interest payable on the judgment, as will delay in the enforcement of an order affect the post-judgment interest that accrues if a judgment debt remains outstanding. Pre-judgment interest is addressed by s 51A(1)(a) of the FCA Act, which enables the making of an order for the inclusion of interest in judgments, including pre-judgment interest, where the proceeding is for the recovery of any money in respect of a cause of action. The applicable interest rate is set out in Practice Note CM 16; namely, the rate that is 4 per cent above the cash rate last published by the Reserve Bank of Australia (the Reserve Bank) (immediately prior to the relevant periods mentioned in that practice note). In light of the introduction of Practice Note CM 16 on 1 August 2011, authorities suggesting that the applicable interest rate is that as would be applied in proceedings litigated in the State or Territory in which the case is being heard, are no longer to be followed.10 The Court has a discretion under s 51A(1) of the FCA Act as to the award of pre-judgment interest, including as to whether there should be incorporated in the judgment sum a lump sum in lieu of interest.11 Unless good cause is shown to the contrary, an award of pre-judgment interest should be awarded. The Full Court held in Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchens Pty Ltd (No 2)12 that, without seeking to limit the potential scope of the section, there are at least three situations in

which the Court may think good cause has been established. The first such circumstance is where the applicant has been guilty of delay of a kind that makes it unjust for interest to be awarded on the judgment during the period of that delay (except where the respondent has continued to have the benefit of the use of the money during that period). The second circumstance is where the applicant has already been sufficiently compensated or indemnified for the damage so as not to have been deprived of his or her money. The final situation noted by the Full Court is where the applicant would, if in receipt of an award of interest, end up being compensated twice because he or she has already received damages for the loss of the use of the money. A judgment debtor should act quickly in dealing with a judgment debt, as s 52 of the FCA Act provides that a judgment debt under a judgment of [page 261] the Court accrues interest calculated from the date on which the judgment is entered. The applicable interest rate is fixed by the Rules or may, in the interests of justice, be fixed at a lower rate determined by the Court (s 52(2)). As to the former scenario, r 39.06 provides that the applicable interest rate is 6 per cent above the cash rate last published by the Reserve Bank (and having regard to the relevant periods specified in that rule).13

Entry of orders and judgments 10.5 Confusion may arise in practice as to when precisely an order or judgment takes legal effect and in what circumstances an order must be formally entered. Rule 39.01 clarifies that an order of the Court takes effect on the date on which the order is made, as opposed to the date of its formal entry by the Court. Similarly, under that rule a judgment takes effect on the date on which the judgment is pronounced. A sequestration order made in accordance with the Bankruptcy Act 1966 (Cth) will take effect as at the time

when the order is pronounced by the Court.14 By contrast, it is implicit in the wording of a costs order, such as one worded to the effect that ‘a party pay the other party’s costs as taxed’, that the order will not take effect until such time as those costs have been taxed by a taxing officer.15 An order must be entered, or alternatively need not be entered, in the circumstances outlined in r 39.31. It must be entered if, for example, it is to be served, enforced or any other action is to be taken under the order. No legal consequences will flow, however, if steps are taken pursuant to an order prior to its entry.16 The various ways in which orders may be entered and authenticated are outlined in rr 39.32–39.35. The practice of the Court for a number of years has been to produce all orders of the Court electronically (via Casetrack) and to formally enter each order upon the request of a party or as is otherwise required. This has led to increased efficiency in the parties no longer being primarily responsible for generating draft orders for settlement and entry by the proper Registry. It should be noted also that the electronic recording of a judgment or order is not tantamount to entry under the Rules.17 The Court may vary or set aside a judgment or order prior to or after entry, as discussed immediately below. [page 262]

Varying and setting aside judgments or orders 10.6 Where a judgment or order of the Court contains an error, omission or is otherwise founded upon any basis that, in the interests of justice, requires its rectification or setting aside, Div 39.1 of the Rules provides the mechanisms by which this may most efficiently be facilitated. This avoids the need to resort to the burden and expense of an appeal. The provisions of Pt 39 (including Div 39.1) are intended to simplify and strengthen the practices and procedures that operated under the predecessor provisions (OO 35 and 36) of

the Rules 1979.18 Interestingly, the relevant rules refer to the power of the Court to vary or set aside a judgment or order, which appears somewhat contrary to the approach adopted throughout much of the revised Rules that a party may apply to the Court for an order.

Before entry of orders 10.7 A judgment or order of the Court may be varied or set aside before it has been formally entered in accordance with r 39.04. It was held in Patel v Minister for Immigration and Citizenship (No 4)19 that this rule is of no application where the relevant order has been entered. There has, however, been suggestion that it is possible to rely upon such a rule after entry of the order where the interlocutory application under r 39.04 was filed prior to entry of the order and provided the application of that rule is consistent with the requirements of s 37M(1) of the FCA Act and the notions expressed in Aon Risk Services Australia Ltd v Australian National University20 concerning proper case management.21 Alternatively, regard may be had to r 39.05 for variation or setting aside of an order after its entry, as considered later in this chapter. In the interests of the proper administration of justice, the discretion to vary or set aside a judgment or order under r 39.04 will be exercised if the Court is satisfied that a refusal to re-open the matter would be unjust, but it will be exercised sparingly.22 The Court will not allow the procedures under r 39.04 to be exploited by a party. As held in Grimaldi v Chameleon Mining NL (No 2):23 The procedure contemplated by r 39.04 (and indeed the undoubted inherent power of a superior court of record to do the same thing) must not be permitted to become an avenue whereby disappointed litigants (or their advisers) are

[page 263] permitted, in effect, a second chance before the trial judge. This is not only because it is contrary

to the principle of finality of litigation; not only because it causes the successful party to incur costs which it has some expectation it ought not to have to incur having regard to its success in the suit; and not only because it ties up valuable court resources. It is also for the good reason that the civil litigation system does generally afford the class of disappointed litigants a second chance in the form of an appeal.

The Court may regard it appropriate to make a variation of an order under r 39.04 where, as in WZAQU v Minister for Immigration and Citizenship (No 2),24 the new proposed orders are by consent and better reflect the reasons for the decision of the Court and of relevant authorities. A variation may also occur where some matter calls for review,25 or where the Judge realises that there has been an error, oversight or a misapprehension on his or her part in relation to the facts or law and now seeks to prevent or cure a miscarriage of justice in the furtherance of the administration of justice.26 The general attitude of the Court in relation to the re-opening of a case prior to the delivery of judgment (as discussed at 9.19) is reflected in the authorities on the exercise of discretion under r 39.04.

After entry of orders 10.8 As mentioned previously, a judgment or order of the Court may be varied or set aside after it has been entered. The grounds on which this may occur are specified within the paragraphs of r 39.05 as: (a) it was made in the absence of a party;27 (b) it was obtained by fraud;28 (c) it is interlocutory;29 [page 264] (d) it is an injunction or for the appointment of a receiver;30 (e) it does not reflect the intention of the Court;31 (f)

the party in whose favour it was made consents;32

(g) there is a clerical mistake in a judgment or order;33 or

(h) there is an error arising in a judgment or order from an accidental slip or omission.34 The cases of Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 4)35 and Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) (ActiveSuper)36 provide two illustrations of how the Court has approached the varying or setting aside of orders through consideration of r 39.05 and reveal that more than one ground may be invoked. Where the Court has expressed potential uncertainty regarding the proper application of r 39.05 in a proceeding, it has indicated alternative grounds for the making of the variation, such as under r 1.34 (the power to dispense with compliance with the Rules) and s 22 of the FCA Act (regarding the determination of each matter completely and finally).37 The Court also has an express power in s 23 of the FCA Act to make such orders within its jurisdiction as it thinks appropriate and, with this, an implied power to correct the abuse of its processes.38 As to whether the application of the rule extends to judgments and orders within the appellate jurisdiction, regard should be had to the detailed analysis of Mortimer J in Mulholland v Australian Electoral Commission (No 2),39 and to [page 265] the fact that r 39.05(h) was applied by a Full Court in both Visscher v Teekay Shipping (Australia) Pty Ltd (No 3)40 and Loyola v Cryeng Pty Ltd (No 3).41 Irrespective of which ground forms the basis for an application brought under r 39.05, the discretionary power of the Court under the rule is, similar to the discretion under r 39.04,42 to be exercised cautiously and only in ‘exceptional circumstances’.43 As observed by Yates J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4),44 the overarching purpose of the civil practice and procedure provisions ‘will not be achieved, but will be subverted, by a too-ready resort to, or incautious application of, the power to

vary or set aside orders that have been made and entered, even where the orders are of a procedural nature’. The Court is perhaps even more cautious to vary or set aside a judgment or order after entry than it is before entry. It was considered in ActiveSuper,45 above (at [7]), that exceptional circumstances for the variation or setting aside of an order may arise where a party has failed to disclose material facts to the Court in the making of an application for orders. The Court will, in deciding whether to recall a judgment, ‘weigh injustice against the public interest in maintaining the finality of litigation’.46 It would appear that, in appropriate cases, the scope of r 39.05 extends to non-parties, being any person whose interests are affected by the order.47

The slip rule 10.9 Rule 39.05(h), in combination with r 39.05(g), is known as the ‘slip rule’. In its current form, it is broader than former O 35 r 7(3) of the Rules 1979, which only allowed for the ‘correction’ of a judgment or order. Nonetheless, it was suggested by Gilmour J in Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2)48 that the principles raised by earlier authorities on O 35 r 7(3) are applicable to the new rule despite its broader scope. Without the benefit of the application of the slip rule to rectify an accidental slip or omission, the unfortunate result would be that any remedy could be provided only by an appellate bench.49 It does not form the basis, however, for reviewing the correctness of the reasoning process of a judgment [page 266] or order, for such an error does not constitute a mere clerical error and so is potentially appealable.50 The slip rule reflects the fact that the Court is a superior court of record51 and thereby has the inherent or implied jurisdiction to correct an error in a

judgment or order arising from an accidental slip or omission.52 As noted by Lockhart J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd,53 the slip rule is intended to be applied to avoid injustice and it may be invoked at any stage, but only where the proposed variation to (or setting aside of) the orders is one upon which no matter of controversy arises. His Honour observed further that the slip rule extends to the intention that the Judge would have had but for the error causing the accidental slip or omission,54 as well as to the correction of errors resulting from the inadvertence of a legal representative. The Court may invoke the slip rule of its own motion.55 Moreover, a Full Court may use the slip rule to correct a judgment or order of a differently constituted Full Court, provided there has been no delay affecting its exercise of discretion.56 The improper application of the slip rule may arguably delay finalisation of a proceeding and increase the costs of a dispute in some cases, as demonstrated by Flint v Richard Busuttil & Co Pty Ltd.57 In that case, the question arose as to whether the initial failure to extend the life of a creditor’s petition within the relevant statutory period could be remedied by the application of the slip rule, as had been sought to be done by the Federal Magistrate after the expiry of the creditor’s petition. On appeal, a single Judge of the Court ordered the sequestration of the appellant’s estate and in so doing essentially upheld the Federal Magistrate’s invocation of the slip rule. On further appeal to a Full Court, it was held that the slip rule could not be invoked as a retrospective tool for the purpose of extending the life of the creditor’s petition because its purported application did not technically vary or set aside the original order made by the lower court. As the Full Court commented (at [35]), ‘[f]or the slip rule to apply there must be an order in need of correction’. Consequently, the sequestration order was set aside, but the appellant and the respondent were ordered to pay the fair and reasonable remuneration and costs of the Trustee in Bankruptcy in respect of the administration of the bankrupt estate.

[page 267]

Setting aside registration of a foreign judgment 10.10 The Rules in Div 41.6 recognise the reciprocal enforcement of judgments by the Court under the Foreign Judgments Act 1991 (Cth). Rule 41.66 provides the procedures for a respondent to apply for an order to set aside the registration of a foreign judgment (or to stay enforcement of the judgment).58 Further, r 41.67 enables a party to apply for an order setting aside a registered foreign judgment and, more broadly, for directions for the hearing and determination of any issue arising in the application. Regard may be had to s 7 of the above Act for the grounds on which the registration may be set aside.59 A security for costs order may be sought by a party in relation to an application for registration of a foreign judgment and for an application to set aside the registration of the judgment (r 41.68).

Enforcement Civil practice and procedure provisions Part 41 of the Rules Section 53 of the FCA Act

Enforcement processes 10.11 The efficient disposal of the Court’s workload required by s 37M(2)(c) of the FCA Act and the just resolution of disputes under s 37M(1) are dependent upon the ability of the Court to finalise its proceedings, including ensuring that its judgments and orders may be enforced appropriately and definitively (subject to the proper exercise of review and appeal rights). Such enforcement mechanisms are found primarily in Pt 41 of the Rules and in s 53 of the FCA Act. The Rules also provide the means by which a party or

interested person against whom a judgment or order is to be executed may seek a stay of execution in the interests of justice. The Rules do not provide for any unique means of enforcement of a judgment or order of the Court, but instead allow a party to make an application for the Court to issue a writ, order or any other enforcement process that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order of the Court was made as though it were a judgment or order of that Supreme Court.60 This procedure under r 41.10, the general execution rule, should not be used to seek to ascertain the existence or location of assets, and the applicant should present evidence in support of the application of [page 268] the likelihood of assets existing in the relevant place and of attempts to find them (for example, by conducting land title searches).61 Section 53 of the FCA Act confirms that a person in whose favour a judgment is given by the Court is entitled to the same remedies for enforcement of the judgment as would otherwise be given to a successful party in the Supreme Court of the same State or Territory in which the judgment is made.62 When executing the orders of the Court, the Sheriff of the Court acts in a manner similar to that of a comparable officer of the relevant Supreme Court (r 41.10(2)). The Sheriff is authorised to perform the service and execution of all processes of the Court directed to the Sheriff.63 Enforcement of an order may not occur where a condition attached to the order has not as yet been fulfilled, unless a party has successfully applied for an order revoking the condition or seeking variation of the order (r 41.02). The execution of orders against a partnership or an individual partner, or against a person in their business name, must occur in accordance with the specific practices and procedures contained in Divs 41.2 and 41.3 of the Rules, respectively.

A party or an interested person may make an ex parte (without notice) application for directions about the enforcement or execution of an order of the Court under r 41.01. An ‘interested person’ is defined in the Dictionary64 to mean ‘a person affected: (a) by an order of the Court; or (b) any act or thing done by another person’. So, too, the Sheriff may apply to the Court, with or without notice, for directions about whether (and if so, how) an execution of process is to be carried out (r 41.43). Where the Sheriff is derelict in the duty to execute a process according to its terms, the party who applied for the issue of the process may make an application in accordance with r 41.42 for an order directing the Sheriff to do so.

The expense of enforcement 10.12 A party should be mindful of the fact that enforcement processes undertaken through the Court under Pt 41 add to the overall expense and complexities of the litigation and so should only be pursued when appropriate and necessary. The party’s lawyer may also be exposed to the payment of fees. Consideration might be given to alternative mechanisms for judgment enforcement, such as insolvency procedures under the Bankruptcy Act 1966 (Cth) or the Corporations Act 2001 (Cth) and the applicable rules of court.65 [page 269] One such cost under Pt 41 is that, upon lodgement and from time to time, the Sheriff may require the party who has lodged an enforcement process with the Court to deposit with the Sheriff security (being an amount fixed by the Sheriff) for the whole or part of the fees66 for the service or execution of the process.67 Alternatively, the Sheriff may accept an undertaking by the party’s lawyer to pay such fees, noting, however, that the lawyer will be liable

to pay the Sheriff’s fees regardless of whether an undertaking has been provided.68 The Rules provide that where there is an objection by the party (but seemingly not by the party’s lawyer) to the amount required to be paid to the Sheriff, the party may apply to the Court for an order that the amount of the fees be fixed (r 41.52(2)). An ‘interested person’, who arguably includes the party’s lawyer, may seek from the Sheriff a bill of costs. The amount of the bill becomes immediately binding as between the Sheriff and the interested person, unless the latter has sought and has obtained from the Court an order for taxation and the taxation of the bill has taken place.69 The taxation of the bill is itself potentially subject to alteration or review under the procedures contained in r 40.34 (see r 41.55(3)). In the case of the lawyer failing to pay the fees within the period of seven days after the fees become binding, the Sheriff may apply to the Court for an order compelling payment by the lawyer (r 41.56). In the meantime, while the above steps are all occurring, the Rules may be interpreted as allowing the Sheriff to suspend the service or execution process until payment, or the lawyer’s undertaking for payment, is received by the Sheriff.70

Application for stay of judgment or order 10.13 Rule 41.03 provides that a party bound by a judgment or order may make an application for an order that the execution of such judgment or order be stayed. In doing so, the party may rely upon events occurring after the judgment or order takes effect.71 Similarly, r 41.11 enables a party to apply to the Court for a stay of execution of a judgment or order. The power of the Court to grant a stay order resides within provisions such as the following: r 1.32 (the Court may make any order it considers appropriate in the interests of justice); s 52(3) of the Bankruptcy Act 1966 (Cth) (order for stay of all

proceedings under sequestration order for a period not exceeding 21 days);72 [page 270] s 23 of the FCA Act (the power to make orders as the Court thinks appropriate); s 28 of the FCA Act (the power within the appellate jurisdiction to make such orders as the Court thinks fit); and s 25(2)(d) of the FCA Act (the manner in which the power to hear and determine an application to stay an order of a Full Court is to be exercised). The relevant principles governing the exercise of discretion by the Court in this area were considered by the Court in Finch v The Heat Group Pty Ltd73 and in Flight Centre Ltd v Australian Competition and Consumer Commission (Flight Centre).74 In those cases, it was noted that the onus is upon the applicant to demonstrate a proper basis for a stay order to be granted; it must be fair to all parties. To quote Rangiah J in Flight Centre, above (at [9]), ‘[t]here is a prima facie assumption that the Court should not deprive a litigant of the benefit of a judgment in its favour’. A stay of a judgment or order will be ordered where, in weighing the balance of convenience and the competing rights of the parties, the Court is satisfied that the applicant demonstrates an appropriate basis to justify the exercise of discretion in that party’s favour. No exceptional circumstances are warranted, but there must be shown a real risk that the applicant will suffer detriment if a stay is not granted (and in the absence of a successful appeal). An application for stay was dismissed in Re Verge (trustee); Underdown (dec’d) (a bankrupt) v Fazio (No 2)75 because it was held that the original judgment was entered regularly despite the absence of the applicant.76

Consistent with r 36.08(1), the filing of a notice of appeal does not act as an automatic stay of execution of the orders of the original trial Judge, the subject of the appeal.77 This rule is arguably founded upon the presumption of the correctness of the judgment being appealed.78 The appellant or an ‘interested person’79 may apply to the Court for an order to stay the execution of the proceeding until the hearing and determination of the appeal (r 36.08(2)). A previously unsuccessful stay application brought before the original Judge does not serve as a bar against the making of a fresh stay application in the appeal proceeding (r 36.08(3)). As held in Barton v Malcolm Johns Legal Pty Ltd,80 a stay will not be ordered unless the applicant can ‘demonstrate an appropriate [page 271] case to warrant a favourable exercise of the Court’s broad discretion’. The Court may make a preliminary assessment of whether the applicant has an arguable case, but it will not generally speculate about the appellant’s prospects of success on appeal.81 A stay will be appropriate where an appeal otherwise would be rendered irrelevant without it.82 A single Judge does have the power to make a stay order pending the hearing of an appeal, although the preference of the Court will be for the matter to be dealt with by the Full Court.83 Indeed, applications for the stay of a Full Court order must, in accordance with s 25(2)(d) of the FCA Act, be heard and determined by a single Judge, unless directed to be heard by a Full Court or the stay application is made in a current appeal proceeding already assigned to a Full Court that considers it appropriate for it to deal with the application.84

Stay of further proceedings 10.14 Where the Court has dismissed the whole or a part of a proceeding, the

applicant can apply for an order that he or she be permitted to institute a fresh proceeding, including the ability to claim the same relief in the new proceeding as claimed in the dismissed proceeding (r 39.03). That rule also provides that where the Court has dismissed a proceeding and ordered the applicant to pay another party’s costs, the second party may apply for an order staying any further fresh proceedings against it contemplated by the applicant until those outstanding costs have been paid. Such an order was made in Fuller v Toms,85 during which proceeding the Court struck out in its entirety the statement of claim in the exercise of its discretion under r 16.21(1). In relation to vexatious proceedings, the Court may, under s 37AO(2) of the FCA Act, order the stay of all or part of a proceeding. The question might arise in matters involving both a criminal law and civil law dimension as to whether the institution of civil proceedings serves as an impediment to criminal proceedings. In Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 2),86 the Court refused an application for an adjournment of a criminal contempt charge pending the outcome of a civil penalty proceeding. By contrast, in Commissioner of the Australian Federal Police v Zhao,87 the High Court held that the interests of justice were not served where the respondent was required to defend civil (proceeds of crime forfeiture) proceedings before the finalisation of his criminal proceedings and was therefore put at the risk of prejudice in his criminal trial. [page 272] This was particularly so as the Police Commissioner would suffer no relevant prejudice from a delay in the continuation of the civil proceedings. The decision of the relevant Court of Appeal to stay the civil proceedings pending determination of the criminal proceedings was upheld.

Contempt Civil practice and procedure provisions Rule 39.02 (Time for Compliance) and Div 39.3 (Undertakings) of the Rules Rules 41.04–41.09 of the Rules – Compliance with Orders Part 42 of the Rules – Contempt Section 31 of the FCA Act – Contempt

The importance of compliance with orders 10.15 The just resolution of disputes according to law (s 37M of the FCA Act), through the effective enforcement of judgments and orders of the Court, is dependent (in part) upon willing compliance by the persons concerned. At the same time, the Court must possess the power to compel compliance, or to deter non-compliance, through appropriate means of punishment. When the Court exercises its power to punish a blatant disregard of its orders, it preserves respect for its authority and the rule of law. This was described by Tamberlin J in Australian Competition and Consumer Commission v Hughes88 in the following terms: Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.

It has been held that punishment for contempt following disobedience of a court order serves the purposes of preserving the position of the party entitled to the benefit of the order, coercion to secure future compliance with the order and demonstration of the court’s disapproval of the disobedience.89 For a detailed analysis of the public and private interests dichotomy in litigation

within the context of contempt, regard may be had to Vaysman v Deckers Outdoor [page 273] Corporation Inc.90 In that case, Dowsett J held (at [14]) that the contemnor should be fined due to the clear public interest in maintaining honesty in advertising. The rules governing compliance with orders of the Court are located in different parts of the Rules, such as in r 39.21 (undertakings), rr 41.04–41.09 (compliance with orders) and Pt 42 (contempt). By virtue of s 31(1) of the FCA Act, the Court has the same power as that of the High Court under s 24 of the Judiciary Act 1903 (Cth) to punish for contempt of its power and authority.91

Failure to comply with orders and fulfil undertakings 10.16 Rule 41.04 requires a person (and not merely a party) who is ordered to comply with an order of the Court, or who has provided an undertaking to the Court,92 to comply with that order or undertaking. A person ordered to do any act (including the payment of money into Court) must comply with the order in the time specified therein or otherwise within 14 days after the date of service of the order on that person (r 39.02). Non-compliance with an order may result in the Registrar drawing the failure to the attention of the Court, or the Court may act on its own initiative.93 A party may make an application to the Court for an order requiring a person to do any act where the person has given the Court an undertaking to do, or refrain from doing, the act and they have failed to fulfil that undertaking (r 39.21(1)). An undertaking given to the Court has the same

legal effect as an injunction ordered by the Court, and may constitute a contempt of court if it is not fulfilled.94 The Court does not have the power, however, to deal with an undertaking that it lacks the capacity to enforce.95 It also lacks the power to punish as contempt a breach of an undertaking given by one party to another in a proceeding.96 It has been held not to be contempt to disclose the terms of settlement where the court had merely noted the terms were not to be disclosed.97 A third party may be punished for contempt, and have a warrant issued for their arrest and detention in custody98 until they are brought before the Court, as a consequence of their having failed to attend Court in response to a [page 274] subpoena or order (r 41.05). Under r 41.05(1), a party may make an application for an order that the person be produced before the Court and for their arrest and detention in custody until this occurs. Moreover, a third party may be guilty of contempt if it can be established beyond reasonable doubt that the person intended to frustrate the purpose of the undertaking provided by another from being achieved.99 An order requiring a person to do or refrain from doing a certain act that carries a potential punishment relating to committal, sequestration or contempt for non-compliance with the order must, in accordance with r 41.06, bear on the document an endorsement (or notice) that the person will be liable to ‘imprisonment, sequestration of property or punishment for contempt’ if there is non-compliance or disobedience with the order. It was held by a Full Court in Siminton v Australian Prudential Regulation Authority100 that the power of the Court to fine for contempt for noncompliance with an order may be exercised even if the order served on the person fails to bear the endorsement required by the rule. Rule 41.07(1) requires that the order must be served personally on the

person who is bound to act or refrain from acting within the time specified in the order or otherwise within sufficient time that would allow the person to comply with the order. Service may be deemed if the person was present at the time judgment was pronounced or the order was made, or at the time of notification (orally, by telephone or electronically) of the terms of the order (r 41.07(2)). The requirements of this rule may be dispensed with in accordance with the Court’s power in r 1.34, but this power will be exercised only if there are strong grounds to do so.101 The Court has indicated that where the alleged contempt is serious and the relevant person has deemed knowledge of the orders, the rules of service may be dispensed with.102 When dealing with an order that is in the form of an injunction (or that is an actual injunction) or in the nature of mandamus or prohibition, r 41.08 enables a party to apply to the Court in relation to a person’s non-compliance with an order for the committal of the person or the sequestration of their property. If such an application is being made against a corporation or an organisation, then the application may be made only if service has been effected in accordance with r 41.07 and the order bears the necessary endorsement under r 41.06. Pragmatically, the Rules provide that an order may be sought for substituted performance of an order that is in default of compliance by a person.103 This may apply where, for example, the solicitor of a party is appointed to perform an action when the client fails to comply with the Court’s order. In Sumitomo Mitsui Banking Corp v Sumitomo Mitsui Financial Group Pty Ltd (No 2),104 [page 275] Foster J made such an appointment for the purpose of executing specific instruments as a means to ‘satisfactorily deal with the matter in order to save time and avoid the expenditure of unnecessary costs’. Similarly, the Registrar

may be appointed to sign necessary documents to effect the orders of the Court on behalf of a party.105

Punishment for non-compliance with orders 10.17 The procedures for dealing with contempt of court are set out in Pt 42 of the Rules. Division 42.1 deals with contempt in the face or hearing of the Court. Division 42.2 relates to applications for contempt in other situations, including for non-compliance with the judgments and orders of the Court.106 As seen previously, an order must first be entered if it is to be enforced,107 and r 41.04(1) requires compliance by a person who is ordered by the Court to act or refrain from acting in a particular manner. Where a party alleges contempt has been committed by a person in connection with a proceeding in the Court, r 42.11 states that the party must make an interlocutory application for punishment for the alleged contempt. Despite the reference to ‘must’ in that rule, r 42.16 provides that a party may apply to the Court for an order directing the Registrar to make an application for punishment of the contempt. The interlocutory application brought under r 42.11 must be accompanied by a statement of charge (Form 137) specifying the alleged contempt with sufficient particularity to allow the person (the alleged contemnor) to answer the charge, as well as an affidavit in support of the allegations relating to the charge.108 The alleged contemnor should be provided with ‘the acts, matters and things alleged as the foundation of the charge, and be given an opportunity to answer the charge’.109 While the interlocutory application is on foot, the party making the charge may apply for an order that the alleged contemnor give security for his or her appearance in court to answer the charge or for a warrant for their arrest and detention in custody until they are brought before the Court.110 In doing so, the party making the charge must satisfy the Court that the alleged contemnor is likely to abscond or otherwise withdraw from the jurisdiction of

the Court.111 A warrant was issued in Australian Securities and Investments Commission [page 276] v Reid112 on this basis. The alleged contemnor may apply to the Court for procedural orders under r 42.15, such as to the nature of the giving of evidence. Although proceedings for contempt for non-compliance with Court orders are characterised as criminal in nature for the purposes of the charge being proven beyond a reasonable doubt, they are not akin to a criminal prosecution.113 Failure to comply with Court orders, or undertakings given to the Court, will not ordinarily constitute a criminal contempt (which consists of the wrongful interference with the due administration of justice), but deliberate defiance of an order, or contumacious conduct, may manifest as such.114 Casual, accidental or unintentional conduct will not ordinarily amount to contempt.115 A failure to comply with an order based on a purported forgetfulness will be regarded as contempt through carelessness, neglect or dereliction of duty. This occurred in TiVo Inc v Vivo International Corporation Pty Ltd,116 in which Pagone J held that such conduct on the part of one of the parties also constituted a failure by a party to comply with the duty under s 37N of the FCA Act. His Honour ordered indemnity costs against the contemnor. As summarised by Besanko J in Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd,117 for a civil contempt of court involving a breach of court order to be proven, it must be shown that: (i)

an order was made by the court;

(ii) the terms of the order are clear, unambiguous and capable of compliance; (iii) the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) the alleged contemnor has knowledge of the terms of the order; and

(v) the alleged contemnor has breached the terms of the order.118

In proving element (v), the act or omission constituting the breach of the order must be shown to be deliberate and voluntary.119 The ‘facts in issue’ in all [page 277] charges of contempt must be proved beyond reasonable doubt.120 A finding of contempt should not be made if the order, the subject of the noncompliance, is ambiguous or vague.121 The imposition of a penalty for contempt should reflect the need to protect the interests of the applicant and the administration of justice.122 Where the issue of a warning is deemed inadequate to deal with an incident of contempt,123 the Court may resort to more severe measures to deal with the conduct of the contemnor. The Court has a wide range of penalties at its disposal.124 In Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd,125 Nicholson J outlined the potential penalties appropriate to punish contempt as being committal of the contemnor to prison, the imposition of a fine, sequestration of the assets of the contemnor or the suspension (on condition) of any sentence of imprisonment imposed. There are a number of considerations the Court may be prepared to take into account in determining the appropriate penalty. In Vaysman v Deckers Outdoor Corporation Inc,126 after considering Louis Vuitton Malletier SA v Design Elegance Pty Ltd,127 the Full Court listed those considerations as including the circumstances (personal and financial) of the contemnor and of the contempt, the nature and effect of the contempt, the need for deterrence, the absence or presence of genuine contrition and whether the contemnor has made a full apology. The intent of the contemnor is also an important factor in determining the appropriate penalty.128 While the absence of an apology or signs of remorse might not increase the penalty, the making of an apology can

operate to reduce a penalty, particularly if it renders it unlikely the conduct will be repeated in the future.129

1 FCA Act s 17. 2

See generally Defence Force Retirement and Deaths Benefit Authority v Lokan [2008] FCAFC 43; Edington v Superannuation Complaints Tribunal [2008] FCAFC 78. 3

See generally SZDGC v Minister for Immigration and Citizenship [2007] FCAFC 19. An appeal from the Administrative Appeals Tribunal must in any event state a question of law on which an appeal from the Tribunal’s decision could potentially succeed: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232. See also discussion on appeals from the Administrative Appeals Tribunal in Chapter 11. 4 [2008] FCAFC 7 at [43], [47] (French, Weinberg and Greenwood JJ). 5

Citing Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; 37 ALR 66; [1981] HCA 48 at 163. 6 Australian

Competition and Consumer Commission v Adepto Publications Pty Ltd [2013] FCA 247 at [31] (Cowdroy J), quoting Australian Competition and Consumer Commission v FChem (Aust) Ltd [2008] FCA 344 at [23]. See also Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd (t/as Mac’s Liquor) (2003) 198 ALR 417; [2003] FCA 530 at [20]–[22] (Mansfield J). 7

See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18. 8 See at . 9 [2012] FCAFC 42 at [30] (Gray, Marshall and Bromberg JJ). 10

See Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchens Pty Ltd (No 2) (2012) 203 FCR 283; 289 ALR 275; [2012] FCAFC 92 at [29] and the cases cited therein. 11 Section 51A(1)(b). See generally Seafolly Pty Ltd v Madden (No 5) [2014] FCA 1413 at [57] (Tracey J). 12 [2012] FCAFC 92 at [32]–[35] (Lander, Gilmour and Gordon JJ). 13 See generally Jiangyin

Yinying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274 at [18] (Gray J). 14

Re Barry Cavanagh v Bank of New Zealand [1990] FCA 125; Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589; 55 ALR 143; [1984] HCA 44. 15

Rule 40.14 provides that if the Rules or a Court order entitles a party to costs, then taxation may occur without the need for a formal order directing taxation. 16 Maher v Commonwealth Bank of Australia [2007] FCA 560 at [8] (Tracey J). 17 Informax

International Pty Ltd v Clarius Group Ltd (No 2) [2011] FCA 934 at [11] (Perram J), citing Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437; [2011] FCAFC 9 at [5] and John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; 266 ALR 462; [2010] HCA 19 at [152].

18 Explanatory Statement, Federal Court Rules 2011 (Cth). 19 [2012] FCA 1170. 20 [2009] HCA 27. 21 Mijac Investments Pty Ltd v Graham [2010] FCA 896. 22

WZAQU v Minister for Immigration and Citizenship (No 2) [2013] FCA 403 at [4] (Flick J), citing Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 at [772] (Finn, Stone and Perram JJ) (citing Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303); Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72 at [6]–[7] (Jacobson, Yates and Katzmann JJ); Wenkart v Pantzer (No 3) [2013] FCAFC 162; Registrar of Aboriginal and Torres Strait Islander Corporations v Kerkhoffs (No 2) [2013] FCA 1446 at [5] (Logan J). 23 [2012] FCAFC 6 at [772] (Finn, Stone and Perram JJ). 24 [2013] FCA 403. 25 Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265. 26 Dib

Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [83] (Gray, Lander and Katzmann JJ); Ashby v Slipper (No 2) [2014] FCAFC 67 at 14 (Mansfield, Siopis and Gilmour JJ), citing De L v Director-General, New South Wales Department of Community Services [1997] HCA 14; (1997) 190 CLR 207 at 215. 27

The Court will consider the explanation, if any, provided for the absence and whether the absent party’s case is of sufficient merit: 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407. Applications brought under r 39.05(a) appear generally to meet with limited success: see, for example, 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407; Deputy Commissioner of Taxation v Marro (SA) Pty Ltd [2011] FCA 1024; Maxwell-Smith v Donnelly [2012] FCA 154; Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892; Delta Metallics Pty Ltd v King [2012] FCA 1119; cf Workers Compensation Nominal Insurer v Hollis Demolitions Pty Ltd [2015] FCA 57. Refer also to r 30.21(2)(a) concerning the absence of a party at the trial and see discussion on absent parties at trial at 9.14. 28

For the principles concerning the Court’s exercise of equitable jurisdiction on this ground, see Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262, citing the Full Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367; (1992) 109 ALR 137. 29

See, for example, Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180 (exceptional circumstances must exist for the discretion to be exercised, and with caution); Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 (genuine discovery of new evidence may justify reconsideration of orders made in some interlocutory situations); Australian Equity Investors, An Arizona Ltd Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100 (regard must be given to s 37M(1) of the FCA Act); Adam P Brown Male Fashion Pty Ltd v Philip Morris Inc [1981] HCA 39 (a court must retain control of its interlocutory order except where new facts render its enforcement unjust). 30

See, for example, Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (application dismissed). 31

Orders that are ambiguous or contain an oversight, and therefore do not reflect the true intention of the Court, may invoke the application of r 39.05(e): see generally Cottrell v Nicholls [2004] FCA 102. An

accidental slip or omission may enliven the operation of this rule: see Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404 and discussion of the ‘slip rule’ below at 10.9. 32

See Perre v Apand [2004] FCA 1220 (even where all parties consent to the order being set aside, the Court will exercise the discretion only where it is just and appropriate to do so because of the exceptional circumstances of the case (such as evidence of a mutual mistake)). 33

Rules 39.05(g) and (h) are the equivalent of O 35 r 7(3) of the Rules 1979 and are known as the ‘slip rule’. See analysis at 10.9. 34 See Construction,

Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404, as well as discussion on the ‘slip rule’ at 10.9. 35 [2013] FCA 567. 36 [2013] FCA 318 at [5] (Gordon J). 37 See, for example, Gravern Holdings Pty Ltd v Yepp Rowing Pty Ltd [2014] FCA 41 at [19] (Murphy J). 38

Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263 at [25]–[33] (Nicholson, Finkelstein and Jacobson JJ). 39 [2014] FCA 917 at [23]–[25]. 40 [2014] FCAFC 31. 41 [2014] FCAFC 7. 42 Considered at 10.7. 43 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6]

(Gordon J), quoting Young J in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549–52. 44 [2010] FCA 398 at [69]. 45 Citing Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 2) [2012] FCA 92 at [8]. 46

Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [44] (Collier J), citing Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. 47 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398. 48 [2012] FCA 1404 at [3]–[4], [8]. 49 Ibid at [9]. 50 Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179 at [25] (Finn and Dowsett JJ). 51 FCA Act s 5(2). 52

Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404 at [6] (Gilmour J), quoting Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 389. 53 (1995) 61 FCR 385 at 389–92. 54

See further the discussion concerning r 39.05(e) in Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404 at [10]. 55

Tropicana Ltd v Australasia Corporate Services Pty Ltd [2011] FCA 684 at [16] (Gordon J), citing L

Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 597. 56 SMK Pty Ltd (formerly Canberra Roof Trusses Pty Ltd) v Kramer [1995] FCA 1616. 57 [2013] FCAFC 131. 58

Regarding the stay of enforcement of a foreign judgment, see s 8 of the Foreign Judgments Act 1991 (Cth). 59 See also r 41.03 of the Rules in general terms, discussed at 10.13. 60

Rule 41.10(1). The Note to r 41.10(3) makes it clear that it is not necessary to adopt additional enforcement processes when seeking to execute the order in more than one place. 61 Martinek v Evans [2004] FCA 1269 at [12], [16] (Gray J). 62

See generally Franklins Ltd v Reject Shop (Aust) Pty Ltd [1999] FCA 1190; Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398; Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276. 63 See s 18P of the FCA Act and Note to Div 41.4 of the Rules. Regarding the nature of the office of

sheriff generally, see J M Bennett, ‘The Office of Sheriff’ (1975-76) 7 Sydney Law Review 360 . 64 Rules Sch 1. 65

Federal Court (Bankruptcy) Rules 2005 (Cth) and the Federal Court (Corporations) Rules 2000 (Cth). 66 Defined in r 41.51 to include charges and commission. 67

Rule 41.52(1)(a). See also the fees set out in Sch 1 (items 124–125) of the Federal Court and Federal Circuit Court Regulation 2012 (Cth). 68 Rules 41.52(1)(b), 41.53. 69 Rules 41.54–41.55. 70 See, in particular, r 41.52(2). 71 Note to r 41.03. 72 See generally Barton v Malcolm Johns Legal Pty Ltd [2014] FCA 1057. 73 [2015] FCA 182 at [7] (Murphy J). 74 [2014] FCA 658 at [9] (Rangiah J). 75 [2013] FCA 728. 76

See also Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66; Australian Competition and Consumer Commission v BMW (Aust) Ltd (No 2) [2003] FCA 864 at [5]; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694; McLean Technic Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. 77

Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9] (Rangiah J); Finch v The Heat Group Pty Ltd [2015] FCA 182 at [7] (Murphy J). 78 Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9]. 79 As defined in the Dictionary (Sch 1 of the Rules). 80

[2014] FCA 1057 at [13] (Gleeson J), citing Powerflex Services Pty Ltd v Data Access Corp (1996) 67

FCR 65. 81 Finch v The Heat Group Pty Ltd [2015] FCA 182 at [7] (Murphy J). 82 Ibid. 83

See Patton v Minister for Defence (1987) 13 FCR 476 and other authorities discussed in Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385; Unit Trend Services Pty Ltd v Commissioner of Taxation [2013] FCA 333. 84 See also discussion at 11.16. 85 [2013] FCA 1422. 86 [2012] FCA 134. 87 [2015] HCA 5 at [49]–[50]. 88 [2001] FCA 38 at [15]. See also Zomojo v Hurd (No 5) [2014] FCA 537 at [53] (Tracey J). 89

Vaysman v Deckers Outdoor Corp Inc [2014] FCAFC 60 at [8] (Dowsett J), citing Australian Consolidated Press Ltd v Morgan (1964-1965) 112 CLR 483 at 488–9 (Barwick CJ). See also Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106; [1986] HCA 46. 90 [2014] FCAFC 60 at [8]–[14]. 91 Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [7] (Mansfield

J); Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [11] (Murphy J); Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd [2014] FCA 637 at [8] (Besanko J); Deckers Outdoor Corp Inc v Farley (No 8) [2010] FCA 657 at [6] (Tracey J). 92 Such as under Practice Note CM 14 – Usual Undertaking as to Damages. 93 See Note to r 41.04 and r 1.40. 94 Zomojo v Hurd (No 5) [2014] FCA 537 at [52] (Tracey J). 95

Thompson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150. 96 U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd [1995] FCA 1581. 97 S

Hoffnung and Co Ltd v Husky (1977) 2 NSWLR 669; cf National Australia Bank Ltd v Solar (1977) 14 ACTR 1; 28 FLR 372. 98 In accordance with Form 90 (Warrant for Arrest). 99 CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168; Grant-Taylor v Jamieson [2002] NSWSC 634. 100 [2006] FCAFC 118 at [70] (North, Goldberg and Weinberg JJ). 101 Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 at [75]. 102

Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [17]–[19] (Tracey J). 103 See, in particular, r 41.09. 104 [2009] FCA 496 at [10]. 105 CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279. 106

See also Div 42.3 regarding general provisions concerning warrants for imprisonment (in accordance with Form 91) and the discharge of a prisoner before the end of the prison term.

107 See discussion on r 39.31 at 10.5. 108 Rule 42.12. Personal service of all these documents upon the person is required by r 42.13. 109

Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [22] (Murphy J), citing authorities including Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 581; Ali v Collection Point Pty Ltd [2010] FCA 1066 at [16] (Gordon J). 110

Rule 42.14(1). If the person fails to comply with an order to give security, then they risk that a warrant may issue for their arrest and detention in custody: r 42.14(3). 111

Rule 42.14(2). For the distinction between ‘abscond’ and ‘withdraw from the jurisdiction’, see Schnabel v Lui (2002) 56 NSWLR 119. 112 [2005] FCA 1274. 113

Witham v Holloway (1995) 183 CLR 525 at 534 (Brennan, Deane, Toohey and Gaudron JJ); 548 (McHugh J), cited in Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [9] (Mansfield J). See also Zomojo v Hurd (No 5) [2014] FCA 537 at [54] (Tracey J); Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No 4) [2012] FCA 657 at [5] (Logan J). 114 Titan

Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [13] (Murphy J), citing Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1985) 10 FCR 385 and Viner v Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 38 ALR 550; Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [9] (Mansfield J); Zomojo v Hurd (No 5) [2014] FCA 537 at [50] (Tracey J), citing Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 (Merkel J). 115

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [9]. 116 [2013] FCA 1340 at [37]. 117 [2014] FCA 637 at [12], citing Advan Investments

Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003]

VSC 201 at [31]. 118

See also Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [9]; Bovis Lend Lease v Construction, Forestry, Mining and Energy Union [2009] FCA 194 at [47]. 119 Zomojo

v Hurd (No 5) [2014] FCA 537 at [51] (Tracey J), citing Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [32] (Gillard J). 120

Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 at [15] (Branson J) (with whom Lindgren and Finkelstein JJ agreed). 121

Salvatore Mercogliano v Tampas Nominees Pty Ltd [1993] FCA 419; Australian Consolidated Press Ltd v Morgan (1964-1965) 112 CLR 483. 122

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; Vaysman v Deckers Outdoor Corp Inc [2011] FCAFC 17; Deckers Outdoor Corp Inc v Farley (No 8) [2010] FCA 657. 123 See generally Bohonko v Sterjov [2007] FCA 1717 at [75] (Lander J). 124

See, for example, Australian Securities and Investments Commission v Matthews [1999] FCA 803 at [29] (Sackville J). 125

[2002] FCA 949 at [138], citing Hughes v Australian Competition and Consumer Commission [2004]

FCAFC 319 at [55]. See also Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [12] (Murphy J). 126 [2011] FCAFC 17 at [8]. 127 [2006] FCA 83 at [25]–[29] (Merkel J). 128

Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 at [140] (Nicholson J). 129 BHP

Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] (Kiefel J).

[page 279]

Chapter 11

APPEALS AND REVIEWS This chapter considers: • •

•

•

•

Case management of appeals and reviews …. The exercise of jurisdiction …. The nature of the jurisdiction …. Managing appeals …. Appeal-related applications …. Leave to appeal …. Extension of time to seek leave to appeal …. Ending the application early …. Discretion to grant leave …. Leave to appeal certain Federal Circuit Court decisions …. Leave to appeal by a non-party …. Extension of time to appeal …. Appeal proceedings …. Instituting an appeal …. Parties and interveners …. The nature of an appeal …. Adducing fresh evidence …. Cross-appeals and notices of contention …. Stay and security for costs applications …. Application to re-open an appeal …. Ending appeals early ….

11.1 11.2 11.2 11.3 11.4 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11 11.11 11.12 11.13 11.14 11.15 11.16 11.17 11.18

• •

•

Application to allow appeal by consent or for dismissal …. Objection to competency …. Discontinuance of an appeal …. Applications for extension of time to appeal …. Preparation of appeal documents …. Appeal book, submissions, chronology and authorities list …. Review of a Registrar’s decision …. The powers of a ‘Registrar’ …. Formal review …. AAT appeals …. A ‘Super Tribunal’ …. The Court’s jurisdiction …. Notice of appeal …. Cross-appeals and notices of contention …. Appeal on a question of law …. Extension of time of AAT appeal ….

11.18 11.19 11.20 11.21 11.22 11.22 11.23 11.23 11.24 11.25 11.25 11.26 11.27 11.28 11.29 11.30 [page 280]

Further evidence …. AAT appeal case management …. Ending an AAT appeal early …. By consent …. Competency of the appeal …. Discontinuance …. Dismissal of appeal ….

11.31 11.32 11.33 11.34 11.35 11.36 11.37

Case management of appeals and reviews

11.1 As with civil proceedings within the original jurisdiction of the Court, it is beneficial that the conduct of an appeal or the review of certain types of decisions is approached from the perspective of maximising efficiency and reducing costs and delays. This chapter looks at appeal and appeal-related proceedings to gain an understanding of the nature of the appellate jurisdiction of the Court, including when a decision will require leave to appeal. It should be borne in mind that strict time limits apply for the bringing of appeal proceedings and an extension of time will be required when an appeal is sought to be brought outside of those time limits. This chapter also considers the review of decisions of Registrars and ‘appeals’ from the Commonwealth Administrative Appeals Tribunal, which technically occur within the Court’s original jurisdiction.

The exercise of jurisdiction Civil practice and procedure provisions Sections 24, 25 and 28 of the FCA Act Practice Note GEN 1 – Court Sittings and Registry Hours (Practice Note GEN 1) Practice Note APP 1 – Listings for Full Court and Appellate Sittings (Practice Note APP 1)

The nature of the jurisdiction 11.2 The subject of the Court’s civil appeals and appeals-related1 jurisdiction is governed by Div 2 of Pt III of the FCA Act. Specifically, s 24(1) outlines the appellate jurisdiction of the Court and provides that the Court has the jurisdiction to hear and determine appeals from (amongst other things) judgments of: single Judges of the Court exercising original jurisdiction (para (a));

appeals from judgments of a Territory Supreme Court (excluding of the Australian Capital Territory (ACT) or the Northern Territory (NT)) [page 281] (para (b)) and, as provided for by statute, appeals from a Supreme Court of a State or of the ACT or NT (excluding a Full Court) exercising federal jurisdiction (para (c)); and non-family law judgments of the Federal Circuit Court (paras (d)–(e)). Section 24(1AA) precludes appeals to be brought from various types of judgments, including a decision to adjourn or expedite a hearing or to vacate a hearing date (para (b)). Prior to commencing any appeal or appeal-related proceeding, it is prudent to check s 24 (and other statutory provisions)2 to confirm that a right to bring the proceeding exists and has not been excluded by Parliament. The exercise of the appellate jurisdiction of the Court is dealt with by s 25 of the FCA Act. Certain types of applications, such as those for leave or an extension of time to appeal, must be heard and determined by a single Judge unless a Judge directs that this be done by a Full Court or where the application is made in a proceeding that has already been assigned to a Full Court (s 25(2)). A single Judge (sitting in open court or in Chambers) or a Full Court may make orders relating to applications of the type outlined in s 25(2B), including an order for summary judgment (para (aa)) or dismissal of a proceeding for want of prosecution (para (ba)). The emphasis in s 25(2BB) is that such applications are heard and determined by a single Judge, unless it is appropriate for this to be done by a Full Court for the reasons specified in that sub-section. This is presumably so as to allocate the resources of the Court more efficiently in line with s 37M(2)(b) of the FCA Act. A similar approach is seen in s 25(1AA) in relation to appeals from a judgment of the Federal Circuit Court.

In the exercise of its appellate jurisdiction, the Court may make orders in accordance with the powers prescribed in s 28 of the FCA Act. Such power includes to ‘give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order’ (s 28(1)(b)). The Full Court in Woolworths Ltd v BP plc3 viewed s 28 as enabling the Court in the exercise of its appellate jurisdiction to give any judgment or make any order that the primary judge could have made.

Managing appeals 11.3 The sittings of the Full Court (in either the Court’s original or appellate jurisdiction) and for a single Judge exercising the appellate jurisdiction of the Court are held as directed by the Chief Justice.4 The sittings are ordinarily held in February, May, August and November of each year, or at such other time as the Chief Justice directs.5 The Court conducts a call-over by notice to lawyers on the [page 282] record and self-represented parties, at which it is expected that the Court will be advised on the matters contained in Practice Note APP 1 at [2]. Applications for an expedited hearing outside of the usual appeals sittings period should comply with the requirements of [2.7]–[2.8] of that practice note. In migration appeals, necessary directions are made by the Registrar in Chambers.6 There is likely to be a preference by the Court for listing an appeal for hearing as soon as practicable in furtherance of the duty under s 37M that civil cases be heard and determined expeditiously. To this end, the unavailability of counsel who conducted the original hearing may not be regarded as sufficient justification to change a hearing date.7 A time- and cost-saving mechanism utilised by the Court in the exercise of its appellate jurisdiction is the hearing of certain applications, usually by a

single Judge,8 on the papers in Chambers and without the need for the parties to attend an oral hearing before the Court.9 Rule 36.41(1) sets out the circumstances in which this may occur as being an application for: an extension of time within which to commence an appeal (para (a)); joinder or removal of a party (para (b)); leave to amend the grounds of appeal in the notice of appeal (para (c)); summary judgment (para (d)); dismissal of an appeal (para (e)); directions (para (f)); and disposal of an appeal by consent (para (g)). In such applications, the parties are simply required to file submissions in accordance with r 36.42. A new aspect of the Rules is the ability of a respondent to formally object to an application being considered on the papers by the Court (r 36.43). Under r 36.11, a party may apply to a single Judge for directions in relation to the management, conduct and hearing of an appeal, or for the orders set out in r 36.11(2). Those orders reflect the powers of a single Judge sitting within the appellate jurisdiction under s 25 of the FCA Act, including an order for summary judgment and the stay of an order of the Full Court.

Appeal-related applications Civil practice and procedure provisions Part 35 of the Rules – Leave to Appeal Rules 36.05–36.07 of the Rules – Extension of Time Application Section 24 of the FCA Act [page 283]

Leave to appeal 11.4 When deciding whether to institute an appeal to the Court it is imperative to consider the nature of the judgment or order sought to be appealed. As seen previously in this chapter, the Court has jurisdiction to hear and determine judgments from the courts mentioned in s 24(1) of the FCA Act. The question arises whether the relevant judgment or order is final or interlocutory in nature. The test for establishing whether a judgment or order is final or interlocutory is whether it finally determines the rights of the parties in respect of the substantive matter pending between them.10 If so, it will be regarded as final and an appeal lies to the Court as of right, subject to any reason for the appeal being not competent. If the judgment or order does not finally determine the issues between the parties, then it will be interlocutory in nature. Leave to appeal may be required where a statute grants a party a right of appeal subject to the obtaining of leave. Although an interlocutory judgment is a judgment for the purposes of s 24 of the FCA Act,11 s 24(1A) provides that any appeal from an interlocutory judgment brought within the Court’s appellate jurisdiction requires leave to appeal.12 An interlocutory judgment includes a judgment by consent or a decision granting or refusing summary judgment under s 31A.13 Leave to appeal is not required, however, where the interlocutory judgment affects the liberty of a person or relates to contempt of court.14 There are two primary ways in which a party may make an application to the Court for leave to appeal. The first, and most cost and time efficient, way is to simply make an oral application at the time of the pronouncement of the judgment or the making of the order by the relevant Judge (r 35.01). Alternatively, an application can be made in writing (r 35.11) by filing, within 14 days of the date on which the judgment was pronounced or the order was made or by such other time as fixed by the Court (r 35.13), a written application in accordance with Form 117 (r 35.12(1)). The application must be accompanied by the documents specified in r 35.12(2) (including a draft notice of appeal).15 The question of service of the application and related

issues are dealt with by r 35.15 (time for service), r 35.16 (method of service) and r 35.17 (address for service of respondent). It is not permitted for a party to make both an oral and written application for leave to be granted (r 35.11(b)). An application for leave to appeal must be heard and determined by a single Judge unless the Judge [page 284] directs it be done by a Full Court or the application is made in the course of a proceeding already docketed to a Full Court.16

Extension of time to seek leave to appeal 11.5 If an application for leave to appeal is made out of time (that is, outside of the above-mentioned 14-day period), then an application for an extension of time in which to seek leave to appeal is required to be filed and served in accordance with r 35.14 (and Form 118). Similar to the application for leave to appeal, there are a number of documents that must accompany the application for an extension of time, as outlined in r 35.14(3). An application for leave to appeal or for an extension of time to seek leave to appeal brought under r 35.12 or r 35.14 may be dealt with on the papers and without the need for an oral hearing (rr 35.18–35.20). Directions may be sought from a single Judge in relation to the management, conduct and hearing of the application (r 35.22).

Ending the application early 11.6 A party who has filed an application for leave to appeal (under r 35.12) or for an extension of time in which to seek leave to appeal (under r 35.14) may withdraw the application in accordance with r 35.31. This will result in a requirement that the applicant pay the costs of each other party to the

application (r 35.31(4)) and the withdrawal will have the effect of an order of the Court dismissing the application (r 35.31(2)). Alternatively, such an application may end by reason of a respondent applying for an order that the application be dismissed for the reasons outlined in r 35.32. Those reasons relate to the applicant’s failure to comply with a direction or the Rules or to attend a hearing, or for want of prosecution of the application. Where a party is absent at the hearing of an application brought under Pt 35, the other party may take the steps mentioned in r 35.33 for an appropriate order from the Court. In Singh v Minister for Immigration and Border Protection,17 the applicant’s failure to attend the hearing of the application for leave to appeal from a judgment of the Federal Circuit Court resulted in the dismissal of the application under r 35.33(1). In so ordering, Kenny J (at [21]) concluded that the decision of the Federal Circuit Court was not ‘apparently attended by sufficient doubt to justify the grant of leave to appeal’ and that regard should be had to s 37M of the FCA Act in facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. Consult also the more detailed analysis of the above types of procedures within the context of appeals found later in this chapter and at 9.14 in respect of the absence of a party at a hearing. [page 285]

Discretion to grant leave 11.7 When determining whether leave to appeal should be granted, the Court will ordinarily apply the often cited principles from the decision of the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc.18 Those principles were summarised in Sutherland v Pascoe19 as including: (a) whether, in all the circumstances, the primary judge’s decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) if leave were refused, would substantial injustice occur supposing the decision to be wrong.

As pointed out by Foster J in Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport,20 the above test should not be applied inflexibly and each case must be considered on its merits. In particular, his Honour noted (at [165]) the caution of French J (as his Honour then was) expressed in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd21 (and to be gleaned from other authorities) that the Court must be careful when reviewing decisions concerning matters of practice and procedure where no question of legal principle is involved. In Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd),22 it was held by Mansfield and Foster JJ that there must be shown some error of the primary judge such as acting upon an incorrect principle, taking into account irrelevant factors or failing to take into account relevant considerations or by being mistaken as to the true facts. The rationale for the Court taking such a cautious approach was aptly described by their Honours (at [8]) as having these benefits for case management and the proper administration of justice: It avoids the risk of the pre-trial processes becoming fragmented, and so causing lengthier and more expensive litigation than is necessary. It avoids the risk of deferring or delaying the postponement of the final decision of the dispute between the parties. It avoids inappropriate intrusion into appropriate case management of cases by the primary judge, with a view to bringing the matter to a speedy, efficient, effective and just resolution. More generally, therefore, it may interfere with the proper administration of justice, as now reflected in s 37M of the FCA Act.

This sentiment was seen also in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd23 in recognition of [page 286] the fact that the achievement of timely and cost-effective dispute resolution affects the parties, the Court and other litigants. Even when leave to appeal has been granted by the Court, r 35.41 enables a respondent to make an application to the Full Court for an order to revoke

the leave (either wholly or in part), or imposing or varying any conditions on the leave to appeal. This may be done before a single Judge if the appeal is from a proceeding of the Federal Circuit Court (r 35.41(2)).

Leave to appeal certain Federal Circuit Court decisions 11.8 In a number of cases the Court has denied applications for leave to appeal interlocutory decisions of the Federal Circuit Court,24 on the basis that the applicant has failed to make an application to set aside the original decision under r 16.05 of the Federal Circuit Court Rules 2001 (Cth). Those decisions involved default judgments or cases dismissed for failure by a party to attend a hearing. Such cases have typically been migration matters and include SZKCC v Minister for Immigration and Citizenship,25 NBLY v Minister for Immigration and Multicultural Affairs26 and NAQB v Minister for Immigration and Indigenous Affairs.27 The Court seemingly has preferred that the applicant exhaust all avenues for setting aside the original decision in the lower court before seeking to invoke the jurisdiction of the Court and the utilisation of its time and resources.

Leave to appeal by a non-party 11.9 The authorities make it clear that a non-party may appeal from a judgment with the leave of the Court, provided they are ‘aggrieved’ by the order to be appealed or they are ‘sufficiently interested’ in it.28 The fact that the orders made by the primary judge have facilitated the bringing of a suit against a non-party means that person has sufficient standing to bring an application for leave to appeal.29 In a similar light, Farrell J in Wong v Sklavos (Wong)30 observed that leave is given to a non-party as a general rule if that person might properly have been made a party. In determining whether leave to appeal should be granted to a non-party who has established standing to

make such an application, the test in Décor Corporation Pty Ltd v Dart Industries Inc31 may be applied (in the [page 287] terms discussed above at 11.7).32 For a list of other factors that may be regarded by the Court as relevant for the exercise of discretion in determining whether a non-party should be granted leave to appeal, refer to the consideration of the relevant authorities by Farrell J in Wong, above (at [20]).

Extension of time to appeal 11.10 A party generally has 21 days from the date the relevant judgment was pronounced or the order was made in which to file any notice of appeal (r 36.03). It is obviously in the best interests of the parties, as well as the Court, that disputes are brought to a conclusion upon the pronouncement of final judgment and that they do not ‘linger’ for an extended period, during which time there is no certainty that the matter is finalised. There is, however, scope in appropriate cases for matters to proceed to an appeal even though the formal period in which to institute appeal proceedings has lapsed. When a party seeks an extension of time within which to file a notice of appeal, an application (Form 67) must be filed under r 36.05. The application may be filed either prior to or after the expiration of the 21-day time period (r 36.05(2)). Similar to an application for leave to appeal, the application for an extension of time to file a notice of appeal must be accompanied by the documents specified in r 36.05(3), including a draft notice of appeal. The method of service of the application is addressed by r 36.06 and the respondent must either file a notice of address for service within 14 days of being served with the application or file a submitting notice (r 36.07). The Court has the general power to extend (or shorten) a time fixed by the Rules

under r 1.39. The application is to be heard by a single Judge, unless a Judge directs otherwise or the matter is already assigned to a Full Court.33 In Thomas v APL Co Pte Ltd trading as APL Lines (Australia),34 Rares J compared the wording of r 36.05 with the predecessor rule (O 51 r 15(2) of the Rules 1979) and noted that r 36.05 does not contain the expression ‘for special reasons’ previously required for the exercise of discretion in granting an extension of time to commence an appeal in the Court. Nonetheless, his Honour held that it is still necessary for the applicant to satisfy the Court why the discretion should be actuated in his or her favour. This is supported by the requirement of r 36.05(3)(c) for an affidavit stating the facts on which the application relies and the reason for the failure to file the notice of appeal within time. In that case, the applicant had failed to persuade the Court that there was an adequate explanation for his lack of attention to ascertaining what had occurred before the primary judge and the failure to protect his rights and [page 288] interests in a timely manner. In the view of the Court, the failure should not be excused and the extension of time application was dismissed with costs. A similar finding was reached in MZZKF v Minister for Immigration and Border Protection.35 It was held that the application for an extension of time should be dismissed because r 36.05(3)(c) was not complied with, no adequate explanation was provided by the applicant for the lengthy delay (nine months) in bringing the application and there was a lack of any arguable grounds of appeal. Davies J (at [5]) summarised the principles guiding the exercise of discretion as being the following three main factors: the explanation for the delay; any prejudice to the respondents, including any prejudice to them in defending the proceedings occasioned by the delay; and

whether the applicant has an arguable case. The above principles were also applied by Gilmour J in MZZBW v Minister for Immigration and Border Protection.36 In that case, too, the application for an extension of time to appeal was dismissed. A survey of the authorities in this area suggests an extension of time application seldom succeeds. In SZRZK v Minister for Immigration and Border Protection,37 the application did succeed, but this was mainly due to the respondent not opposing it. The appeal itself was then immediately dismissed. By contrast, in MZZJY v Minister for Immigration and Border Protection,38 both the application for an extension of time to appeal and the appeal were granted. The appellant was able to provide adequate explanation for the delay (on health grounds) and to establish jurisdictional error on the part of the Tribunal. In Gauci v Kennedy,39 both an extension of time for leave to appeal and leave to appeal from an interlocutory decision of the (then) Federal Magistrates Court were granted. Ultimately, the Court has a broad discretion that, like any power conferred upon it, must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions.40 As explained by Mortimer J in Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:41 To extend time in an appeal which has no realistic prospects is to involve the court and the parties, and many public resources, in a process which is not quick, inexpensive or efficient. Unless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow a matter, not

[page 289] commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success.

Appeal proceedings Civil practice and procedure provisions Part 36 of the Rules Sections 27, 29 and 56 of the FCA Act

Instituting an appeal 11.11 To commence an appeal, the appellant must file a notice of appeal in accordance with the appropriate form specified by r 36.01(1), depending upon the court from which the appeal lies. In migration matters, a lawyer may only file a notice of appeal if it is accompanied by a certificate under s 486I of the Migration Act 1958 (Cth), signed by the lawyer.42 The notice of appeal must be filed within 21 days after the date of pronouncement of the judgment being appealed or the grant of leave to appeal (or by the date otherwise fixed by the court appealed from) (r 36.03). The notice of appeal is to be filed in the Registry of the place where the hearing occurred or otherwise in ‘the appropriate Registry’ (r 36.02). Service must be effected on each party who was a party or an intervener in the original proceeding in accordance with rr 36.04 and 36.06. In turn, the respondent must file a notice of address for service within 14 days after being served with the notice of appeal and before taking a step in the proceeding (r 36.07). Alternatively, the respondent may choose not to contest any relief sought in the notice of appeal and instead file a submitting notice consistent with r 12.01.43 If applicable, a copy of the notice of appeal must also be lodged within seven days of its filing with the State or Territory court appealed from (r 36.04(2)). The notice of appeal must state the matters specified in r 36.01(2), including the grounds relied on in support of the appeal (r 36.01(2)(c)). The need for particularity in the grounds of appeal was emphasised by the Full Court in May v AAI Insurance formerly known as Vero Insurance44 when it

was held that, due to the absence of any meaningful grounds of appeal as required by the Rules, there was a failure to both invoke the appellate jurisdiction of the Court and to provide procedural fairness so that the respondent knows the case it is required to answer. A respondent may object to the competency of the appeal within 14 days of being served with the notice of appeal.45 [page 290] A notice of appeal may be amended by the appellant without the leave of the Court by filing a supplementary notice of appeal within the period of 28 days after the filing of the notice of appeal (r 36.10).46 After the expiry of that period, or in general terms, the appellant may apply to the Court (constituted by a single Judge) for an order granting leave to amend the grounds of appeal (r 36.11(2)(b)).

Parties and interveners 11.12 Care must be exercised in instituting an appeal that all necessary parties are joined to the proceeding. There is a requirement that each party to the original proceeding who may be affected by the relief sought in the notice of appeal, or who might otherwise be interested in maintaining the judgment under appeal, be joined as a party (r 36.31(1)). A person must not be joined as an appellant without that person’s consent (r 36.31(2)). Similarly, any person affected by the relief sought in a cross-appeal, who is not already a party to the appeal, must be joined as a respondent to the cross-appeal (r 36.31(3)). In addition to the Court’s power to add or remove any person as a party to the appeal,47 a person not joined in the above circumstances may apply to the Court under r 36.31(4) to be joined as a party. The authorities suggest that such a person will need to demonstrate they are ‘bound by the order’, ‘aggrieved’, ‘prejudicially affected’ or ‘sufficiently interested’ in the orders

made.48 It was suggested in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher49 that leave to appeal is given as a rule to such a person if they might properly have been made a party to the original proceeding. By contrast, an intervener is not regarded as a party and so intervener status in the original proceeding does not confer a right to be joined as a party on appeal.50 A person who wishes to be involved in the appeal may apply to the Court for leave to intervene under r 36.32(1) by satisfying the Court of the usefulness of the intervener’s unique contribution to the appeal, as well as the other matters specified in r 36.32(2). The Court may impose conditions on the grant of intervener status in the appeal and determine the intervener will have the potential liability for costs.51 No order as to costs was made in respect of the intervener in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority52 or in Australian Industry Group v Automotive, Food, [page 291] Metals, Engineering, Printing & Kindred Industries Union53 (the public interest nature of the Commonwealth’s intervention in the appeal vitiated the making of an adverse costs order against it).

The nature of an appeal 11.13 As a matter of general practice, an appellant should avoid challenging every important finding of fact made at first instance and re-arguing the case again simply by reason of the appeal being by way of a re-hearing.54 What needs to be demonstrated is an error on the part of the trial judge.55 In considering whether he or she has erred, the appellate court will exercise caution in reversing the judge’s evaluation of the facts based upon intimate knowledge of the primary evidence, but will not shy from deciding what proper inference is to be drawn from that evidence.56 It was held in Nexus

Adhesives Pty Ltd v RLA Polymers Pty Ltd57 that a judge has not erred by choosing not to refer specifically to every piece of evidence relied upon by an appellant at the trial or by providing a succinct expression of the reasons for judgment. A failure to refer to critical evidence regarding an issue, however, may constitute an error.

Adducing fresh evidence 11.14 During an appeal, the Court will have regard to the evidence given before the primary judge and will draw inferences of fact from that evidence.58 It does, however, have discretion to receive such further evidence on affidavit or by oral examination (including by video link) as it considers appropriate.59 A party wishing to adduce fresh evidence at the hearing of an appeal must be careful not to do so without leave of the Court being properly sought and obtained. In Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd,60 it was observed by the Full Court that the appellant had neither advanced reasons to explain the late tender of fresh evidence on appeal nor had it raised the matter before the primary judge or in the grounds of appeal. The Full Court held (at [43]) that if leave were to be granted to adduce the evidence at this late stage, this would fail to further the overarching purpose of the civil practice and procedure provisions, as required by s 37M. [page 292] Rule 36.57 sets out the procedure for a party to apply to the Court for the adducing of fresh evidence on appeal. The application must be filed at least 21 days prior to the scheduled hearing date. It should be accompanied by an affidavit stating the facts on which the application is based and the grounds of appeal to which it relates, as well as the nature of the fresh evidence sought to be adduced and the reasons it was not adduced during the original hearing (r

36.57(2)).61 Another party also seeking to adduce fresh evidence must file an affidavit at least 14 days prior to the hearing of the appeal (r 36.57(4)). In Chien v Minister for Immigration and Citizenship,62 a fresh evidence application was met with refusal because, in the opinion of the Full Court, no satisfactory explanation was provided by the appellant as to why the particular evidence had not been put by him before the primary judge. Further, it was said (at [37]) that the cogency of the fresh evidence was in issue and it did not satisfy the test that the ‘proffered evidence would be likely to have produced a different result had it been available at the trial’.

Cross-appeals and notices of contention 11.15 A respondent to an appeal may choose to appeal from part of the primary judgment or order. In such instance, a notice of cross-appeal should be filed (Form 123) in accordance with r 36.21 and stating the matters in subr (2). These matters generally reflect those required to be addressed in a notice of appeal. The reference to ‘part of a judgment’ in that rule should not be read as meaning ‘the whole of a judgment’.63 Under the predecessor rule (O 52 r 22 of the Rules 1979), a respondent could also seek a variation of a part of the judgment, but this is no longer the case under the Rules. Any notice of cross-appeal should be filed within 21 days of the respondent being served with a notice of appeal (r 36.22). An extension of time to file the notice of cross-appeal may be brought in accordance with r 36.23. Such an application will be unsuccessful where the delay is not explained satisfactorily or the cross-appeal is itself not competent.64 Where a respondent does not wish to cross-appeal, but nonetheless contends that the primary judgment should be affirmed on grounds other than those relied upon by the primary judge, the respondent must file a notice of contention (Form 124) within 21 days of service of the notice of appeal (r 36.24). The effect may be that an otherwise successfully argued ground of appeal may not lead to the order of the primary judge being set aside or

[page 293] varied.65 The grounds of the notice of contention generally should be confined to issues that were raised at the trial, although new points may be considered where the interests of justice require it.66 Similarly, a notice of contention filed out of time, even as late as after the hearing, may be considered by the Court in furtherance of the proper administration of justice and the assurance of procedural fairness.67

Stay and security for costs applications 11.16 Where an appeal has been instituted in the Court from the judgment of another court, s 29(1) of the FCA Act provides that the Court (or a judge of the other court, excluding the Federal Circuit Court or a court of summary jurisdiction) may order a stay of all or any proceedings under the judgment appealed from. In Luck v Chief Executive Officer of Centrelink,68 the Full Court considered that the power to grant a stay (as with any exercise of its powers) is to be exercised in a way that promotes the efficient and effective use of judicial resources and those of the parties, with ‘some proportionality being maintained between what is at stake in the proceeding and the cost and time taken to resolve it’. As observed by Katzmann J in Derrin Brothers Properties Ltd v Deputy Commissioner of Taxation,69 the power of the Court to grant a stay pending an appeal (or an application for leave to appeal) is found in s 23 of the FCA Act and r 36.08.70 The Court’s exercise of discretion will be based upon consideration of whether the applicant has ‘an arguable case on appeal and, if so, whether the balance of convenience favours the grant of a stay’ (at [29]). Both the leave to appeal application and the interlocutory application for a stay of the primary judge’s orders were dismissed with costs in that case. The stay of proceedings generally is addressed at 9.2 and 10.14. For discussion on the stay of judgments and orders, consult 10.13.

Further to an application made under r 36.09(1), the Court may order that an appellant give security for the payment of costs that may be awarded against that party under s 56 of the FCA Act. If security is not given in accordance with that order, then the appeal may be dismissed.71 Rules 36.09(1)(b)–(c) go one step further by providing that the appeal proceeding may be stayed until the security is given or it may be stayed (indefinitely) or dismissed if there has been non-compliance with the order that security be given by the appellant. The topic of security for costs applications is covered in more detail at 12.11. [page 294]

Application to re-open an appeal 11.17 It was held by Black CJ in Pantzer v Wenkart72 that a Full Court sitting within the appellate jurisdiction does not have the power to re-open final orders duly entered. His Honour observed (at [7])73 that, even if such a power were to exist, it should only be exercised in exceptional circumstances. A similar conclusion was reached by Gyles J in Dunstan v Human Rights and Equal Opportunity Commission.74 It was mentioned at 10.8 that regard should be had to the analysis of Mortimer J on the subject in Mulholland v Australian Electoral Commission (No 2).75 As indicated by her Honour (at [23]), and without determining the matter conclusively, r 39.05 arguably does not expressly exclude the appellate jurisdiction of the Court. This is contrary to the situation under the Rules 1979. Her Honour therefore proceeded on the assumption that an order made within the appellate jurisdiction may be varied after entry. Moreover, it would seem that the ‘slip rule’ under r 39.05(h), relating to an error arising in a judgment or order from an accidental slip or omission, has been applied categorically in recent Full Court cases.76

Ending appeals early Civil practice and procedure provisions Division 36.6 of the Rules – Ending Appeals Division 36.4 of the Rules – Applications on the Papers Section 25(2B) of the FCA Act

Application to allow appeal by consent or for dismissal 11.18 As noted previously at 11.3, r 36.41(1)77 enables a party to apply to the Court for an order that certain applications be dealt with in Chambers without the need for an oral hearing. Two such applications contemplated by that rule are those to dismiss an appeal for a failure to comply with the Court’s directions, to attend a hearing or for want of prosecution of the appeal (para (e)) and, with the consent of the parties, an application to dispose of an appeal (para (g)). In respect of an application to dispose of an appeal by consent, [page 295] s 25(2B)(b) of the FCA Act empowers a single Judge (sitting in Chambers or in open court) or a Full Court to make a consent order disposing of an appeal (including an order for costs). The Full Court in Bradken Ltd v Norcast S.ár L78 observed that while there is scope for debate about the circumstances in which the Court’s power under that section is enlivened, it should proceed on the basis that the Court must be satisfied there is an appealable error. The Full Court also pointed out the other, perhaps more desirable, approaches available to the parties instead of establishing the existence of an appealable error on the part of the primary judge. Those approaches involve reliance on r

39.05(f) (in relation to the varying or setting aside of an order after its entry where the party in whose favour it was made consents)79 or on r 39.11 (dealing with consent orders).80 Section 25(2B) of the FCA Act further provides for an exercise of power by the Court to make an order that an appeal be dismissed for want of prosecution (para (ba)) or for failure to comply with a direction of the Court or for the appellant’s failure to attend a hearing relating to the appeal (para (bb)). Rule 36.74 enables a party to make an application to the Court for an order that the appeal be dismissed on those grounds, as well as for a failure to comply with the Rules. It was held in Mircevski v Pattison81 that r 36.74 allows the Court to dismiss an appeal for failure to comply with the Rules. The contrary view was expressed in Intellec Development Group Pty Ltd v 3D Funtimes Ltd (Intellec Development Group)82 when the Court held that r 36.74 is not the source of the Court’s power, but merely permits a party to apply for a dismissal order. The latter view is supported further by the fact that the ground of a failure to comply with the Rules is not mentioned in s 25(2B), although it may be noted that s 28(1)(b) of the FCA Act confers power on the Court, in the exercise of its appellate jurisdiction, to make such order as it thinks fit. In determining whether to make an order under para (ba) or para (bb) of s 25(2B), the Full Court in Intellec Development Group, above (at [2], [17]), was cognisant of its requirement to take into account s 37M and that the exercise of power to dismiss an appeal summarily is not to be exercised lightly.83 The Full Court held (at [17]) that inexcusable prejudice was caused to the respondent by the delay of the appellant and that the interests of justice and the mandate of s 37M supported the grant of the dismissal order sought by the respondent. If an appellant is absent from the hearing of the appeal, then the opposing party may make an application under r 36.75(1) for an order that (amongst [page 296]

other things) the appeal be dismissed. Where it is the respondent who is absent when the hearing is called, the appellant may similarly make an application under that rule, including for an order that the hearing proceed generally. It is possible, however, for the absent party to make an application under r 36.75(2) for any order made in their absence to be set aside or varied or regarding the further conduct of the matter. The issue of how the Court generally deals with the absence of a party at a hearing is considered also at 9.14.

Objection to competency 11.19 The competency of an appeal is a matter to which a respondent should have regard at the early stages of an appeal, as it may avoid the need for a hearing of the appeal and will have a bearing on any costs order. Within this context, an ‘appeal’ includes reference to a cross-appeal (r 36.71). If grounds exist, the respondent may file a notice of objection to competency (Form 125) within 14 days after service of the notice of appeal (r 36.72(1)). The burden of establishing the competency of the appeal lies with the appellant (r 36.72(2)). A notice of appeal is not competent where it is incomprehensible or far removed from the issues in the primary judgment being appealed.84 Where the Court determines that the appeal is not competent, the appeal will be dismissed (r 36.72(5)). If this occurs and the respondent has failed to challenge the competency of the appeal, then that party will not be entitled to any of its costs of the appeal (r 36.72(4)). In Maughan Thiem Auto Sales Pty Ltd v Cooper,85 Katzmann J (with whom Greenwood and Besanko JJ agreed) held that despite no notice of objection to competency having been filed, the appeal was deemed to be not competent. The parties were ordered to make any application for costs in writing, and to be determined on the papers. In the absence of any such application, the order would be that there is no order as to costs. The policy underlying r 36.72(4) (and its predecessor, O 52 r 18(3) of the

Rules 1979) was examined by North J in Marchant v GB Radio86 as being: The focus of the scheme is that objections will be taken early, and taken as a discrete application. The purpose, no doubt, is to relieve parties of the expense of the preparation of an appeal which is incompetent. It also allows the appellant to consider withdrawing the appeal without incurring further expense. Finally, it prevents inconvenience to the Court which would otherwise be composed of three judges. The starting point of the rule is that both parties share the responsibility for failing to prevent an incompetent appeal from reaching a hearing; the appellant for commencing it and the respondent for failing to object early.

Following on from the above sentiment, and as a pragmatic and cost-saving measure, the Court may consider it appropriate for the question of competency [page 297] to be addressed prior to the hearing of the appeal, consistent with r 36.72(3). In Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,87 however, the Full Court proceeded to deal with the appeal despite a notice of objection to competency having been filed. The appeal was dismissed, followed by dismissal of the objection to competency for a failure to properly specify the grounds of the objection (as required by r 36.72(1)(b)). It was noted (at [6]) that it was unclear whether the respondent was arguing an objection to the competency of the appeal from the decision of the Tribunal or to the appeal from the decision of the primary judge. The appellant was ordered to pay the respondent’s costs.

Discontinuance of an appeal 11.20 An appellant may discontinue an appeal in respect of one or more respondents at any stage of a proceeding by filing a notice of discontinuance in accordance with r 36.73 and Form 126. Unlike a discontinuance of a proceeding in the original jurisdiction under r 26.12, a discontinuance of an

appeal has the effect of an order of the Court dismissing the appeal (r 36.73(2)). Section 24(1) of the FCA Act, in any event, does not enable an appellant to ‘re-enliven’ the jurisdiction of the Court with a second appeal from the same judgment provided the notice of discontinuance filed was valid and effective.88 The appellant will be liable to pay the costs of each relevant respondent (r 36.73(4)), but it should be noted that the Court does have the power to make such costs orders as it considers appropriate, consistent with its power under s 43 of the FCA Act.89 An appeal may be discontinued without leave of the Court up until the time of the hearing or following the hearing but before the judgment is pronounced or the order is made (r 36.73(1)).

Applications for extension of time to appeal 11.21 Although an application for an extension of time in which to file a notice of appeal is included within Pt 36 of the Rules dealing with appeals, there surprisingly appears to be no reference to such an application in Div 36.6 in relation to the early ending of appeals. That division speaks of ‘the appellant’, rather than of ‘the appellant or applicant’. Furthermore, the definition of ‘appeal’ in r 36.71 does not mention an application for an extension of time. The term ‘appeal’ is not defined in s 4, the interpretation provision for the FCA Act. So, too, the definition of ‘appeal’ in the Dictionary90 refers to an ‘appeal brought in the appellate jurisdiction of the Court under Div 2 of Part III of the Act, but does not include an appeal under Part 33 of these Rules’. [page 298]

Preparation of appeal documents Rules and practice notes

Division 36.5 of the Rules Practice Note APP 2 – Content of Appeal Books and Preparation for Hearing (Practice Note APP 2) Practice Note CM 2 – List of Authorities, Citation of Cases and Legislation for Proceedings Generally (Practice Note CM 2)

Appeal book, submissions, chronology and authorities list 11.22 Preparation for the conduct of the appeal must occur having regard to the requirements of r 36.51 (appeal books generally), r 36.53 (title of appeal books), r 36.54 (content of appeal books), r 36.55 (written submissions, chronology and lists of authorities) and r 36.56 (filing of Part C appeal book documents). In addition, there should also be compliance with Practice Note APP 2. To this end, r 36.51, dealing with the preparation and filing of the requisite number of appeal books for the appeal, provides in sub-r (5) that if material is included in the appeal book that departs from that mentioned in Div 36.5, then the party who requested or decided on its inclusion will not be entitled to any costs relating to the inclusion of the material and must pay any costs incurred by any other party as a result of the material’s inclusion. As far as the lawyer responsible for the inclusion of the inappropriate material is concerned, there will be no right to recover from the client any costs incurred by the inclusion of the material (r 36.51(6)). The appellant must ordinarily, within 28 days of the service of the notice of appeal, submit to the Registrar a draft of the index to Part A of the appeal book (being the ‘Core Set of Standard Items’) and Part B of the appeal book (the ‘Comprehensive Reference List’), as described in r 36.54 and Practice Note APP 2 at [3]. A party who requires assistance from the Registrar to settle the index to Part A or Part B of the appeal book should apply in writing to the Registrar within seven days of service of the notice of appeal (r 36.52(1)). Once the Registrar has notified the appellant that he or she has settled the

draft index to Part A and Part B of the appeal book, the appellant must file those parts within 14 days (r 36.52(4)). Part C of the appeal book (the exhibits and evidence to which the parties will refer in submissions) must be filed no later than five business days91 before the hearing of the appeal. That the Court expects the parties to an appeal to comply strictly with the requirements in Div 36.5 and Practice Note APP 2 for the preparation of appeal books may be gleaned from the Notes to r 36.52 (the parties should have regard to the appeals practice note) and r 36.55 (‘[t]he Court expects the [page 299] parties and their lawyers to comply with the Practice Note’). Indeed, in Practice Note APP 2 at [2] the Court states that, where a party is in default of any of the requirements of the practice note, the non-faulting party (or parties) must bring the matter to the attention of the hearing Judge or the presiding Judge (as relevant) and notify the other parties to the appeal. Furthermore, a failure to attend any scheduled index settlement appointment may be a factor in favour of the granting of an order dismissing an appeal for want of prosecution.92 Each party to the appeal should file an outline of their submissions, a chronology of the relevant events in the matter, a list of authorities to which the party will refer in submissions and also a list of any legislation to which it intends to refer within the prescribed time limits.93 Specifically, written submissions must not exceed 10 pages (including any annexures) unless leave of the Court has first been sought and obtained.94 New issues, not addressed by the outline of submissions, must not be advanced at the hearing without the leave of the Court.95 A further practice note issued by the Court, Practice Note CM 2, applies to all final hearings, including appeals (unless ordered otherwise) and it is to be complied with by all parties when preparing, filing

and serving a list of authorities and legislation for the hearing and when citing cases and legislation. As is the case with appeal books, the Rules state96 the Court’s expectation that the parties and their lawyers will comply with the ‘Practice Note for Appeals’ (presumably, this is a reference to Practice Note APP 2). All submission and filing dates therefore must be strictly adhered to and should not be regarded as a mere guide. A party who anticipates being late should seek an extension of time prior to the expiry of the due date. The Court has the general power to give directions about the nature and length of submissions consistent with s 37P(3) of the FCA Act. If a party fails to comply with a direction made under s 37P(2) about the practice and procedure to be followed in relation to the proceeding, then the Court may (amongst other things) dismiss the proceeding (in whole or in part) or award costs against a party, including on an indemnity basis (s 37P(6)). In the situation of the Court granting leave to allow the filing of supplementary submissions following the hearing of the appeal, Foggin v Lacey97 confirms that there must be strict compliance with any directions made by the Court in that regard. The Court has the discretion to ignore submissions made post-hearing where they have not been authorised by the Court and where a public perception of unfairness may arise and the Court’s management of the appeal is thus compromised.98 [page 300]

Review of a Registrar’s decision Civil practice and procedure provisions Part 3 of the Rules Schedule 2 of the Rules Sections 18N(2), 35 and 35A of the FCA Act

The powers of a ‘Registrar’ 11.23 It was mentioned at 1.19 that the Registrars of the Court possess a range of powers conferred by the FCA Act and the Rules. A reference to ‘a Registrar’ in the civil practice and procedure provisions means, unless the context suggests otherwise, the Registrar, Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court, and may include an officer authorised to perform the duties of those officers of the Court from time to time.99 The effect of s 18N(2) of the FCA Act is that the Registrars (excluding the Registrar of the Court) have the duties, powers and functions given to them by the Act or by the Chief Justice (in practice, by Judges of the Court). A Marshal of the Court is a Registrar appointed under s 4 of the Admiralty Act 1988 (Cth) for the purposes of admiralty proceedings before the Court. A Sheriff or Deputy Sheriff is also an officer of the Court and may exercise or perform the powers and functions referred to directly or indirectly in ss 18N and 18P of the FCA Act. By s 35, the officers of the Court have the duties, powers and functions provided by the FCA Act or the Rules or by the Chief Justice. Section 35A(1) of the FCA Act sets out the powers that a Registrar may exercise if directed to do so by the Court or a Judge in the form of an instrument of delegation. The powers pertain to case management practices and procedures, including the power to make orders in relation to substituted service, interrogatories, the adjournment of a hearing, the power to make an order exempting compliance with a rule of court and the exercise of a power of the Court prescribed by the Rules. To the extent a Registrar may make an order as to costs under s 35A(1)(f), that power may only be exercised in connection with an application heard by the Registrar (s 35A(2)). Division 3.1 of the Rules addresses the powers of Registrars by prescribing, and in places qualifying, the powers of the Court and with reference to the items contained in Sch 2 of the Rules.100

Formal review 11.24 In accordance with r 3.11 and s 35A(5) of the FCA Act, a party may apply to the Court for review of the exercise of a power of the Court by a Registrar [page 301] within 21 days after the date of the exercise of that power. The Court may review such an exercise of power either upon the bringing of an application by a party or of its own motion.101 Consistent with s 35A(6), the Court may make such order as it thinks fit with respect to the matter the subject of a Registrar’s exercise of power. A ‘person’, which may be broader in scope than a ‘party’, may apply to the Court under r 3.04 without notice for an order that a Registrar do any act or thing that the person alleges the Registrar is required or entitled to do, but has refused to do. An application made under r 3.04 failed in Territory Realty Pty Ltd v Garraway (No 3)102 on the basis that the Court was not satisfied that the rule (and Div 3.1 in general) was available to challenge determinations by the taxing officer in the course of the taxation process. In reviewing the decision of a Registrar, the Court will be mindful that such an officer is not subject to the direction or control of any person in relation to the manner of the exercise of the powers provided for by the FCA Act.103 A decision of a Registrar is potentially subject to ‘review’, rather than ‘appeal’, by reason of the wording in s 24(1)(a) of the FCA Act which, in relation to proceedings involving a decision of the Court within its original jurisdiction, requires an appeal to involve a ‘judgment of the Court constituted by a single Judge’. Furthermore, an administrative decision made by a Registrar, such as whether to reject a document for filing further to a direction made by a Judge, is not a ‘judgment’ for the purposes of s 4 of the FCA Act and so no appeal

lies from such a decision. The rejection of the document for filing may, however, be the subject of judicial review.104 In Callegher v Australian Securities and Investments Commission,105 Lander J described a review of a Registrar’s decision, in that case being one to reregister a corporation, as involving a hearing de novo. This contemplates a complete re-hearing and for which the parties may adduce further evidence before the Court. A Judge’s review of a Registrar’s decision under s 35A(6) is itself a judgment that may be appealed before a Full Court, as occurred in Cottrell v Wilcox.106 Rather than wait for the exercise of a power by a Registrar and then seek review of the decision by the Court, a Registrar may grant an oral request that the proceeding be referred to a Judge for determination.107 At that point, the Registrar should, under s 35A(7), adjourn the hearing of the matter and arrange for the application for the exercise of power to be heard by the Court. [page 302] What a lawyer ought not do is to await the precise moment of the Registrar handing down the decision and then interrupt proceedings by invoking the procedure in s 35A(7). As warned by Drummond J in Phillip Gebauer; Ex parte Millennium Federation Pty Ltd,108 ‘unless there is some good reason justifying such a course, a solicitor who engages in that kind of manoeuvring should know that he runs the risk of having to pay some of the costs of the proceedings personally’. In that case, the practitioner concerned was ordered to pay the costs of the application before the Judge on an indemnity basis. Concerning the review of a decision of a Registrar in their capacity as a taxing officer, see at 12.25.

AAT appeals

Civil practice and procedure provisions Division 33.2 of the Rules Sections 19 and 20 of the FCA Act Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) Practice Note APP 2 – Content of Appeal Books and Preparation for Hearing (Practice Note APP 2) Practice Note CM 2 – List of Authorities, Citation of Cases and Legislation for Proceedings Generally (Practice Note CM 2) Practice Note CM 3 – Consent Orders in Proceedings Involving a Federal Tribunal (Practice Note CM 3)

A ‘Super Tribunal’ 11.25 On 1 July 2015, the Administrative Appeals Tribunal amalgamated with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal, creating a single merits review body known collectively as the ‘Administrative Appeals Tribunal’ (AAT). The Tribunals Amalgamation Act 2015 (Cth) appears to have largely preserved the traditional avenues for appeal to the Court under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Consistent with Pt 8 of the Migration Act 1958 (Cth),109 proceedings for review of certain migration decisions are not appealable to the Court, as are not proceedings where a person may apply to the AAT for a ‘second review’. Child support first review decisions under the AAT Act may now be the subject of judicial review by the Federal Circuit Court or by the Court.110 [page 303]

The Court’s jurisdiction

11.26 Subject to the matters outlined at 11.29, an appeal from the AAT lies to the Court by operation of s 44 of the AAT Act. Although referred to as an ‘appeal’, the proceeding brought in the Court from a decision of the AAT is within the Court’s original jurisdiction and so is ordinarily heard and determined by a single Judge pursuant to ss 19(2) and 20(1) of the FCA Act. The exception is where, under ss 44(3)(b)–(c) of the AAT Act: the AAT’s decision was given by the Tribunal constituted by at least one member who is a Presidential member; the Chief Justice of the Court, following consultation with the President of the AAT, considers it appropriate for the appeal to be heard and determined by a Full Court; or the AAT was constituted by at least one member who is a Judge.111 In such an event, the appeal will be heard and determined by a Full Court of the Court. In other cases, the power to hear the appeal may be exercised by the Court constituted as a Full Court as provided for by s 44(3)(a) of the AAT Act and s 20(1A) of the FCA Act (generally). It was observed by Yates J in Baranski v Comcare112 that the nature of an appeal under s 44(1) of the AAT Act differs from an appeal from a court under s 24 of the FCA Act insofar as it involves a limitation of the capacity to review factual findings of the AAT, whereas an appeal under s 24 is an appeal by way of a re-hearing.113 As to the question of an election between bringing an appeal under s 44 of the AAT Act or seeking judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), consider the decision of the Full Court in Cremona v Administrative Appeals Tribunal.114

Notice of appeal 11.27 An appeal to the Court from a decision of the AAT is instituted by the applicant filing a notice of appeal (Form 75) (see r 33.12(1)). The appeal must be brought no later than the 28th day after the AAT gives the decision to the

relevant person115 in the District Registry in the State or Territory in which the hearing took place before the AAT (r 33.12(3)).116 The applicant must serve a copy of the notice of appeal on each party to the proceeding and the Registrar of the AAT (r 33.12(4)). The Rules do not appear to impose any requirement [page 304] that the AAT itself be joined as a party to the appeal proceeding.117 In migration matters, the necessary certificate under s 486I of the Migration Act 1958 (Cth) signed by the applicant’s lawyer is also required at the time of commencing the appeal.118 Each respondent to the appeal must file an address for service within 14 days of being served with a notice of appeal (or an application for an extension of time to start an appeal under r 33.13) or prior to taking any step in the proceeding (r 33.16). Prior to the first return date in the proceeding, the applicant may amend the notice of appeal by filing a supplementary notice of appeal (r 33.14). After that date, any additional question of law not stated in the notice of appeal, but which the applicant seeks to be raised at the hearing of the appeal, will require the leave of the Court by way of an application made under r 33.15. An application for a stay order, brought under s 44A of the AAT Act, may be made by filing an interlocutory application (r 33.17). In urgent cases, this may be done without notice to the other side.

Cross-appeals and notices of contention 11.28 A respondent may wish to appeal a decision (or part thereof), which is also the subject of the applicant’s appeal, by filing a notice of cross-appeal (Form 76) within 21 days of the date of service of the notice of appeal.119 The rules of Div 33.2, concerning AAT appeals, apply to cross-appeals as though

they were appeals (r 33.20(1)). A similar time frame for filing applies where the respondent files a notice of contention (Form 77), whereby it is contended that the AAT’s decision should be affirmed on grounds other than those relied on by the AAT (r 33.21). The Court has made it clear that when drafting a notice of contention, particular attention needs to be given to the appropriateness of the wording.120

Appeal on a question of law 11.29 For the reasons elaborated below, it is well-settled law that s 44(1) of the AAT Act requires an appeal to the Court from a decision of the AAT to be on a question of law and an applicant must take particular care in the formulation of the grounds of appeal. This point is reflected in r 33.12(2), which provides that a notice of appeal must state: the part of the decision appealed from; each precise question of law raised on appeal; [page 305] the findings of fact the Court is asked to make, which may occur only in the circumstances outlined in s 44(7) of the AAT Act;121 the relief sought or the variation of the decision that is sought; and briefly, but specifically, the grounds relied on in support of the relief or variation sought by the applicant. What, then, is a question of law for the purposes of s 44(1) of the AAT Act and r 33.12? As acknowledged by the Court in Rana v Repatriation Commission,122 it is often a very difficult task to distinguish between a question of fact and a question of law in this context. It was held by Brennan J in Waterford v Commonwealth123 that an error of law does not arise from the

AAT making a wrong finding of fact. Rather, the error of law must arise on the facts as found by the AAT or it must vitiate the findings which have been made or which have led to the AAT failing to make a finding it was legally required to make. An appeal ‘on’ a question of law is more confined than an appeal ‘involving’ a question of law.124 It should be noted, however, that s 44(7) of the AAT Act does permit the Court to make findings of fact in the circumstances mentioned in that provision.125 It was held by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation126 that the existence of a question of law is the subject matter of the appeal, instead of being a mere qualifying condition to ground the appeal. In this regard, an appeal will not succeed where the applicant has sought to specify a question of law by doing no more than itemising under the heading ‘grounds of appeal’ a series of alleged errors of law, fact and of mixed law and fact in the reasons for the AAT’s decision.127 It is essential that, as required by r 33.12(2)(b) and as held in Birdseye v Australian Securities and Investments Commission,128 there be precision in the statement of the question or questions of law raised by the appeal. The supporting grounds relied upon for the relief claimed are to provide the ‘links between the question(s) of law, the circumstances of the particular case and the orders sought on appeal’.129 A denial of procedural fairness may amount to an error of law, as may an erroneous construction of a relevant statutory provision or the erroneous [page 306] application of a statutory test to established facts.130 The question as to whether the AAT has complied with s 43(2B) of the AAT Act, including the requirement to provide findings on material questions of fact to be included in the written reasons for decision, has been held to be a question of law.131 Further examples of a question or error of law were suggested by Perry J in

Evans v Secretary, Department of Social Services.132 If the appeal is allowed for an error of law, then the Court is likely to order that the original decision of the AAT be set aside.133 Finally, where a self-represented litigant has failed to identify a question of law in the appeal, but the Court is satisfied there is an arguable question of law, the notice of appeal will generally not be struck out.134 In Herring v Minister for Immigration and Citizenship,135 Flick J suggested that any question of law that could be framed in such a self-represented litigant’s case would need to have real prospects of success.

Extension of time of AAT appeal 11.30 If an applicant is already, or anticipates will soon be, out of time for the filing of a notice of appeal,136 then an application may be made under r 33.13 for an extension of time within which to institute an appeal (by filing a Form 67). The application must be accompanied by the documents listed in r 33.13(2), and noting that a draft notice of appeal is required that complies with r 33.12 and thus with the need that the question or questions of law to be raised on the appeal are specified with precision. The extension will be refused where the Court is of the view that there is no point in granting an extension because the appeal is doomed to fail.137 The discretion should also be exercised having regard to the overarching purpose of civil litigation expressed in s 37M of the FCA Act, as recognised by Katzmann J in Ugur v Australian Federal Police.138 In Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,139 McKerracher J reviewed a number of key authorities on the exercise of the Court’s broad discretion in this area. Those relevant principles may be paraphrased to include: [page 307]

The application will not be granted unless the Court is satisfied that it is proper to do so and whilst not ignoring the prescribed period. It is usually expected the applicant will normally provide an adequate explanation for the delay, although it is not an essential precondition for a favourable exercise of discretion. It will be considered whether the applicant has ‘rested on his rights’ or has taken any steps to protect his or her rights and position. This may be relevant to the consideration of whether an adequate explanation for the delay exists. What, if any, prejudice is caused to the respondent by the delayed bringing of the application. The absence of prejudice is insufficient to justify the grant of an extension; there may be a wider prejudice to the public to consider. The merits of the substantial application are to be considered. Notions of fairness as between the applicants and other persons in a similar position are relevant when exercising the discretion.

Further evidence 11.31 It was observed at 11.29 that s 44(7) of the AAT Act enables the Court to make findings of fact in certain circumstances. To this end, the Court may receive further evidence during an appeal.140 A party may make an application for the Court to receive further evidence at the hearing of the appeal from the AAT (r 33.29(1)). The affidavit required to be filed in support of the application must comply with r 33.29(2). Any other party also wanting to adduce fresh evidence must similarly file an affidavit at least 14 days prior to the hearing date for the appeal (r 33.29(4)).

AAT appeal case management 11.32 A party to an appeal from the AAT may apply to the Court for the

purpose of obtaining orders concerning the management of the appeal. Rule 33.22 sets out the specific directions a party may seek in relation to an AAT appeal. Of particular note are the directions pertaining to the giving of further evidence, for the joinder or removal of a party, for summary judgment, disposing of the appeal by consent, dismissal of the appeal for failure to comply with a direction of the Court or a failure of the appellant to attend a hearing relating to the appeal, and to determine any other matter for the purpose of hearing preparation. The Court may otherwise make any order it considers appropriate (r 1.32). The requirements for the preparation of appeal books are addressed by r 33.23, as well as Practice Note APP 2. There are a number of other applicable rules; specifically, r 33.24 (assistance from Registrar), r 33.25 (title of appeal [page 308] books), r 33.26 (content of appeal books), r 33.27 (written submissions, chronology and lists of authorities) and r 33.28 (filing of Part C documents). AAT appeals are also governed by Practice Note CM 2. Consult also what is said at 11.22 about the preparation of appeals, generally.

Ending an AAT appeal early 11.33 An appeal from the AAT may be concluded early by reason of the consent of the parties, the appeal being found to be not competent, by discontinuance or by summary dismissal on a number of grounds. There is a clear case management benefit in the proceeding being ended as soon as possible if any of these bases for early finalisation under the Rules arise. Furthermore, the Court will have regard, when exercising its discretion whether to give summary judgment due to the appeal appearing to have no

reasonable prospects of success should it be allowed to continue, as to whether the overarching purpose under s 37M of the FCA Act is being promoted. To quote Katzmann J in Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,141 ‘[h]aving regard, in particular, to the objectives listed in s 37M(2) of the FCA Act, dismissing the appeal at this point would be the optimum way to promote the overarching purpose’.

By consent 11.34 Where a consent order is made in relation to a proceeding that involves a challenge to a decision of the AAT, the parties must ensure they comply with the requirements of Practice Note CM 3, as applicable. The consideration of those requirements at 10.2 may be revisited.

Competency of the appeal 11.35 A respondent may object to the competency of an AAT appeal by filing, within 14 days of service of the notice of appeal,142 a notice of objection to competency (Form 68) in accordance with r 33.30(1). In Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority,143 the respondent had filed a notice of objection to competency out of time and had failed to provide to the Court an adequate explanation for the delay. Nonetheless, the Court was satisfied that no real prejudice was caused to the applicant in the granting of an extension of time. The Court (at [48]) was mindful of the fact that: … dealing with the matter separately and in advance of preparation for final hearing is a costeffective and efficient way in which to deal with a threshold

[page 309] question such as jurisdiction, and in that sense advances the objectives set out in s 37M of the [FCA Act].

It is prudent for the respondent to also seek that the question of competency

be heard and determined prior to the substantive hearing of the appeal (r 33.30(3)). As with appeals generally, the burden of establishing the competency of the appeal is carried by the applicant (r 33.30(2)) and the respondent risks an adverse costs order if no notice of objection has been filed and the appeal is dismissed as not competent (r 33.30(4)). If an appeal is found to be not competent, then it will be dismissed by the Court (r 33.30(5)). Appeals were dismissed as not competent, in failing to raise any question of law to properly enliven the Court’s jurisdiction under s 44 of the AAT Act, by the Court in Garrett v Commissioner of Taxation144 and by the Full Court in Nelson v Commissioner of Taxation145 (in which there was no objection to competency raised until the hearing of the appeal from the decision of the primary judge).

Discontinuance 11.36 An AAT appeal may also come to an early end by the applicant filing a notice of discontinuance of the appeal (Form 78) (see r 33.31). This may be done without the leave of the Court at any stage prior to the hearing of the appeal, and otherwise with the leave of the Court (r 33.31(1)). The filing of such a notice will have the same effect as an order of the Court dismissing the appeal (r 33.31(2)), which is a potentially effective means of ensuring applicants do not re-institute the same appeal. Discontinuance does expose the applicant to liability to pay the costs of each other party to the appeal, unless the parties have reached an agreement (r 33.31(4)). The above construction of the rule was affirmed by Robertson J in Kennedy v AntiDoping Rule Violation Panel.146

Dismissal of appeal 11.37 Where the applicant to an AAT appeal has failed to comply with a direction of the Court or with the Rules, or has failed to prosecute the appeal or to attend a hearing relating to the appeal, the respondent may apply to the Court under r 33.32(1) for an order that the appeal be dismissed. An appeal was dismissed for want of prosecution in Lever v Comcare147 because the

applicant, without any adequate explanation, had failed to prosecute his appeal (despite being given adequate opportunity to do so) and to file an amended notice of appeal by a directed date. [page 310] Moreover, r 33.33 deals specifically with the situation of a party’s failure to attend an appeal when it is called on for hearing. The rule covers the potential consequences for both parties to the appeal; however, as far as the applicant is concerned, the failure to attend may have more serious consequences than for the respondent insofar as the appeal may be dismissed. Being an interlocutory decision, the rule enables the applicant to apply to the Court, presumably constituted by the same Judge who dismissed the appeal, for an order to set aside the dismissal and for the future conduct of the appeal (r 33.33(2)). An appeal ordinarily will only be re-opened after dismissal in exceptional cases. It will need to be shown that there is an acceptable explanation for the applicant’s absence from the hearing and that there is strength to the appeal.148

1

For the purposes of this chapter, an ‘appeal-related’ proceeding is one involving a leave to appeal application or an application for an extension of time in which to commence appeal proceedings. 2

For instance, s 32AB(8) of the FCA Act states that an appeal does not lie from a decision of the Court regarding the transfer of a proceeding to the Federal Circuit Court. 3 [2006] FCAFC 132 at [149] (Heerey, Allsop and Young JJ). 4 Practice Note GEN 1 at [4]. 5 Ibid at [5]. 6 See Note (b) to r 36.02. 7 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 1109. 8 See FCA Act ss 25(2), (2B) and the Notes to rr 36.41–36.42. 9

See also r 1.36 and s 17(2) of the FCA Act in relation to the powers of the Court or a Judge sitting in Chambers to make orders other than in open court. 10

Bienstein v Beinstein [2003] HCA 7; (2003) 195 ALR 225 at [25] (McHugh, Kirby and Callinan JJ);

Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [1998] FCA 558. 11 Letten v Templeton [2004] FCAFC 131 at [17] (Davies J) (with whom Besanko and White JJ agreed). 12

For consideration of the delay-saving rationale for the legislature’s enactment of s 24(1A), see Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission [1988] FCA 111 at [32] (Bowen CJ, Lockhart and Sheppard JJ); (1988) 18 FCR 424 at 429–30. 13 FCA Act s 24(1D). 14 Ibid s 24(1C). 15 In relation to migration litigation, refer to the requirements of s 486I of the Migration Act 1958 (Cth)

and Note 1 to r 35.12. 16 FCA Act s 25(2). 17 [2015] FCA 487. 18

[1991] FCA 655 at [2]–[6] (Sheppard, Burchett and Heerey JJ); (1991) 33 FCR 397, as applied, for example, in Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69; Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183; GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102. 19 [2013] FCAFC 15 at [41] (Jagot, Griffiths and Farrell JJ). 20 [2011] FCAFC 69 at [164]. 21 [2000] FCA 1572 at [42]–[44]; (2000) 104 FCR 564. 22 [2011] FCAFC 117 at [8]. 23

[2013] HCA 46 at [51] (French CJ, Kiefel, Bell, Gageler and Keane JJ), quoted in Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [48] (Jacobson, Flick and Griffiths JJ). 24 Known previously as the Federal Magistrates Court of Australia. 25 [2007] FCA 1363. 26 [2006] FCA 1051. 27 [2003] FCA 562. 28

See, for example, Letten v Templeton [2014] FCAFC 131 at [13] (Davies J) and the authorities cited therein. 29 Ibid at [14] (Davies J). 30

[2014] FCA 679 at [17], citing Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89 at [32] and Cuthbertson v Hobart Corporation [1921] HCA 51; (1921) 30 CLR 16 at 25. 31 [1991] FCA 655; (1991) 33 FCR 397. 32

See also Letten v Templeton [2014] FCAFC 131 at [21] (Davies J); Wong v Sklavos [2014] FCA 679 at [13] (Farrell J), citing Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453 at [17]–[18]. 33 FCA Act s 25(2). 34 [2013] FCA 911 at [34]. 35 [2014] FCA 1362 at [5]–[25] (Davies J). 36 [2015] FCA 156 at [32]–[39].

37 [2014] FCA 69. 38 [2014] FCA 1394. 39 [2006] FCA 869. 40 Grabovsky v Secretary, Department of Social Services [2015] FCA 244 at [21] (Katzmann J). 41

[2014] FCA 12 at [26], quoted in Grabovsky v Secretary, Department of Social Services [2015] FCA 244 at [21]. 42 Note 1 to r 36.01. 43 See also the Note to r 36.07. 44 [2014] FCAFC 125 at [3]–[4] (Logan, Pagone and Perry JJ). 45 Rule 36.72 and Note 5 to r 36.01. 46

See generally Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180. 47 For example, under r 1.32 or s 25(2B)(a) of the FCA Act. 48

Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63 at [34] (Allsop CJ, Kenny and Perram JJ); Cuthbertson v City of Hobart (1921) 30 CLR 16; Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; (2000) 98 FCR 31. 49 [2011] FCAFC 89 at [32] (Emmett, Nicholas and Robertson JJ). 50

Forestry Tasmania v Brown (No 2) [2007] FCA 604 at [10]. See also generally the discussion on interveners at 4.13. 51 Note 2 to r 36.32. 52 [2014] FCAFC 22. 53 [2003] FCAFC 226. 54 Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135 at [6]–[16] (North, Jacobson and

Foster JJ). 55

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21] (Allsop J) (with whom Drummond and Mansfield JJ agreed) and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, considered in Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135 at [6] and [8], respectively. 56 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]. 57 [2012] FCAFC 135 at [12]–[13]. 58 See generally FCA Act s 27. 59 Ibid. 60 [2013] FCAFC 29 at [43] (North, Cowdroy and Katzmann JJ). 61 Shannon

v Commonwealth Bank of Australia [2014] FCAFC 108 at [80] (Logan, Flick and Perry JJ); Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29 at [42] (North, Cowdroy and Katzmann JJ). 62 [2013] FCAFC 124 at [37] (Collier, Logan and Rangiah JJ). 63 Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd [1996] FCA 1572; (1996) 137 ALR 701. 64

Construction, Forestry, Mining and Energy Union v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174

FCR 237. 65 Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 237 ALR 714. 66 Park v Brothers [2005] HCA 73; (2005) 222 ALR 421. 67 MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428 at [13]

(Heerey J); SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486 at [17]–[19] (Flick J). 68

[2015] FCAFC 75 at [33] (Collier, Griffiths and Mortimer JJ), citing Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217 at [11] (Rares J). 69 [2013] FCA 571 at [28]–[31]. 70 See also rr 41.11, 41.03. 71 Section 56(4) and r 36.09(1)(c). 72 [2007] FCAFC 27 at [4]–[8], citing DJL v The Central Authority [2000] HCA 17 and Bailey v Marinoff

[1971] HCA 49. 73 Citing Wentworth

v Woollahra Municipal Council [1982] HCA 41 and Autodesk Inc v Dyason [No 2]

[1993] HCA 6. 74 [2007] FCA 1326. 75 [2014] FCA 917 at [23]–[25]. 76

See, for example, Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2014] FCAFC 31; Loyola v Cryeng Pty Ltd (No 3) [2014] FCAFC 7. In respect of some of the earlier authorities, see Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2006] FCAFC 90; Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41. 77 Located within Div 36.4 of the Rules. 78

[2013] FCAFC 123 at [19]–[37] (Allsop CJ, Mansfield and Jacobson JJ), citing the Full Court authorities of Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64; Commonwealth Bank of Australia v Walker [2012] FCAFC 68; (2012) 289 ALR 674 and Citigroup Pty Ltd v Mason (2008) 171 FCR 96; 250 ALR 7; [2008] FCAFC 151. 79 See what is said on the provision generally at 10.8. 80 See generally discussion at 10.2. 81 [2011] FCAFC 144 at [17] (Lander, Gilmour and Gordon JJ). 82 [2011] FCAFC 148 at [1] (Stone, Collier and Gilmour JJ). 83

See also Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180 at [40] (Griffiths J) and the cases cited therein. 84 Zegarac v Dellios [2007] FCAFC 58 at [7] (North, Weinberg and Jessup JJ). 85 [2013] FCAFC 145 at [11], [49]. 86 [2002] FCA 465 at [5]–[6]. 87 [2014] FCAFC 61 (North, Flick and Jagot JJ). 88 MZXRL

v Minister for Immigration and Citizenship [2009] FCA 114 at [8]–[9] (Tamberlin J), citing El-Masri v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCA 742. 89 See generally Christodoulou v Disney Enterprises Inc [2006] FCA 902.

90 Rules Sch 1. 91 The term ‘business days’ is defined in the Dictionary (Sch 1 of the Rules). 92 Van Reesema v Giameos (1979) 27 ALR 525. 93 See r 36.55 and Practice Note APP 2 at [5], [8]. 94 Practice Note APP 2 at [5.3]. 95 Ibid at [5.9]. 96 See the Note to r 36.55. 97 [2003] FCAFC 147 at [38] (Moore, Emmett and Bennett JJ). 98 Jackson v Conway [2000] FCA 1530 at [29] (Branson J). 99

See ss 18N(1) and 35A(8) of the FCA Act and the meaning of ‘Registrar’ in the Dictionary (Sch 1 of the Rules). 100

See also r 16.1 and Sch 2 of the Federal Court (Corporations) Rules 2000 (Cth) and r 2.02 and Sch 2 of the Federal Court (Bankruptcy) Rules 2005 (Cth), referred to in Note 3 to r 3.01 of the Rules. 101 FCA Act s 35A(6); r 1.40. 102 [2013] FCA 914 at [19] (Mansfield J). 103 FCA Act s 35A(4). 104 Satchithananthan

v National Australia Bank [2009] FCA 1171; Re Pickering [2009] FCA 809 at [7]– [19] (Barker J), discussing Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353; Paramasivam v Randwick City Council [2005] FCA 369; Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426. 105 [2007] FCA 482 at [46], citing Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84. 106 [2001] FCA 866. 107

Rule 3.05; FCA Act s 35A(7). See, for example, Lime Gourmet Pizza Bar (Darby Street) Pty Ltd (in liq) v Workers Compensation Nominal Insurer [2014] FCA 567. 108 [1998] FCA 1291. 109 See also s 43C of the AAT Act. 110 See further Commonwealth Attorney-General’s Department, ‘Tribunals Amalgamation –

Frequently Asked Questions’ . 111 See also s 20(2) of the FCA Act. 112 [2012] FCA 925 at [71]. 113 Poulet

Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211 at [35]–

[47]. 114 [2015] FCAFC 72 (Tracey, Griffiths and Mortimer JJ). 115 AAT Act s 44(2A). 116

If the AAT did not give written reasons for its decision, then the applicant must also comply with the requirements of r 33.19. 117

See generally Kristoffersen v Superannuation Complaints Tribunal [2013] FCA 951 at [12] (Logan J).

A different situation applies in relation to proceedings for judicial review under the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth): see at 4.10. 118 See Note 2 to r 33.12. 119 Note also the time frame prescribed by s 44(2A) of the AAT Act. 120 Repatriation Commission v Patterson [2006] FCAFC 165 at [51] (Kiefel, Sundberg and Edmonds JJ). 121 See also Note to r 33.12(2). 122 [2010] FCA 281 at [35] (Lander J). 123 [1987] HCA 25; (1987) 163 CLR 54 at 77. 124 See Baranski v Comcare [2012] FCA 925 at [71] (Yates J) and the cases cited therein. 125 See also s 44(10) of the AAT Act regarding the jurisdiction of the Court, including the jurisdiction to

make findings of fact under s 44(7). 126

[1988] FCA 119; (1988) 82 ALR 175 at 178, cited with approval in Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320; Mulherin v Commissioner of Taxation [2013] FCAFC 115 at [7] and Ogden v Commissioner of Taxation [2014] FCA 1111 at [13] (Edmonds J). 127

HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 at [6]; (2006) 149 FCR 291, cited in Baranski v Comcare [2012] FCA 925 at [75]. 128

[2003] FCAFC 232 at [6]–[31] (Branson and Stone JJ) (with whom Marshall J agreed at [61]). This case concerned the Rules 1979, but the principles may be applied to the Rules. 129 Baranski v Comcare [2012] FCA 925 at [74] (Yates J). 130

Pham v Secretary, Department of Employment and Workplace Relations [2007] FCA 2049 at [13] (Gray J); Seven Network Ltd v Australian Competition and Consumer Commission [2007] FCA 1929 at [73] (Buchanan J). 131 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; Skarzynski v Secretary,

Department of Education, Employment and Workplace Relations [2009] FCA 1134 at [37] (Besanko J). 132 [2014] FCA 491 at [18]. 133 See, for example, Collins v Administrative Appeals Tribunal [2007] FCAFC 116. 134

Soames v Secretary, Department of Social Services [2014] FCA 295 at [22] (Flick J), citing Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058; P v Child Support Registrar [2013] FCA 1312 at [54] (Wigney J). 135 [2012] FCA 970 at [17]. 136 See discussion on relevant time limits at 11.27. 137

See, for example, Burke v Comcare [2014] FCA 169 at [53] (Greenwood J); Guden v Minister for Immigration and Citizenship [2013] FCA 980. 138 [2011] FCA 15 at [25]. 139 [2011] FCA 1362 at [20]. 140 See the Note to r 33.29. 141 [2012] FCA 1360 at [17]. 142 See generally Luck v Secretary, Department of Social Services [2014] FCA 1060 at [22] (Mortimer J). 143 [2014] FCA 314 at [45]–[48] (Mortimer J).

144 [2015] FCA 40. 145 [2014] FCAFC 163. 146 [2015] FCA 411. 147 [2007] FCA 576. 148

Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573 at [11]; SZBEW v Minister for Immigration and Multicultural Affairs [2005] FMCA 999 at [6].

[page 311]

Chapter 12

COSTS RECOVERY This chapter covers: • •

•

• •

The importance of understanding costs …. The discretion to award costs …. The powers of the Court …. Costs under the Civil Dispute Resolution Act …. The ‘usual order as to costs’ …. Apportionment of costs …. The timing of costs applications …. Costs orders against non-parties …. Costs orders against lawyers …. Liability under the Civil Dispute Resolution Act …. Sanderson and Bullock orders …. Security for costs …. Costs orders under the Rules …. Party and party costs …. Self-represented litigants …. Lump sum costs orders …. Indemnity costs …. Disallowing and reducing costs …. Under the Rules …. Taxation process …. Bills of costs ….

12.1 12.2 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10 12.11 12.12 12.12 12.13 12.14 12.15 12.16 12.16 12.17 12.17

Indemnity costs …. Short form bills …. Estimates and objections …. Objection …. Taxations …. Interlocutory applications …. Certificate of taxation and enforcement …. Review of taxing officer’s decision ….

12.18 12.19 12.20 12.21 12.22 12.23 12.24 12.25

The importance of understanding costs 12.1 A failure by a party to conduct litigation before the Court in a manner that is consistent with the overarching purpose of the civil practice and procedure provisions has potential adverse costs consequences under the FCA Act, the Rules and the Civil Dispute Resolution Act. Such costs orders may be [page 312] awarded on an indemnity basis, or even against the party’s lawyer personally. Alternatively, the costs to which a party would otherwise be entitled may be reduced or disallowed, such as where there is an issue about the quantum of the amount of the damages awarded or the choice of forum for the resolution of the dispute. A lawyer may be unable to recover fully solicitor-client costs from a client where the lawyer is found to have engaged in misconduct. Even during the taxation process, a party must be cognisant of the need to adopt practices that lead to efficiencies. The purpose of this chapter is to explore the relationship between the requirement of parties and lawyers to resolve civil disputes inexpensively,

efficiently and quickly and the costs implications for those who fail in this task. Regarding the enforcement or setting aside1 of costs orders, refer generally to Chapter 10.

The discretion to award costs Civil practice and procedure provisions Part 19 of the Rules – Security for Costs Rule 40.07 of the Rules – Liability of Lawyer for Misconduct Sections 37N(4)–(5), 37P(6)(d)–(e), 43 and 56 of the FCA Act Section 12 of the Civil Dispute Resolution Act

The powers of the Court 12.2 Section 43 is the primary provision in the FCA Act that deals with the question of costs.2 It confers power upon the Court or a Judge to award costs in all proceedings within the original and appellate jurisdictions of the Court, except where legislation otherwise provides that costs must not be awarded.3 The statutory basis for the exercise of discretion by the Court when awarding costs is found in s 43(2) of the FCA Act, and is limited by anything provided by any other Act. In exercising the discretion to award costs, the Court may make a wide range of orders under s 43(3), including awarding costs in relation to different parts of the proceedings (para (b)), in specified proportions or sums (paras (c) and (d)), in favour or against a party regardless of whether that party is successful in the proceeding (para (e)) and in relation to discovery (para (h)). As recognised by the Full Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait [page 313]

Islander Corporations (No 4),4 s 43(3) was introduced in the FCA Act at the same time as Pt VB of the Act (including ss 37M and 37N). This was done as a way of reinforcing the powers conferred upon the Court by Pt VB by granting it explicit powers to make costs orders both following a verdict in a trial and during the management of the proceeding before the trial. In addition to the costs jurisdiction set out in s 43, the Court or a Judge must, by reason of s 37N(4), take into account when exercising the discretion to award costs in a civil proceeding any failure of a party (or of that party’s lawyer) to comply with the duty to conduct proceedings before the Court in a way that is consistent with the overarching purpose of the civil practice and procedure provisions. Similarly, under ss 37P(5)–(6), the Court or a Judge may award costs against a party (including on an indemnity basis) where the party has failed to comply with a direction given by the Court about the practice and procedure to be followed in respect of the proceeding. The underlying purpose of a costs order is to indemnify or compensate a successful party. Fairness dictates that the unsuccessful party should bear the liability for the costs of the unsuccessful litigation, which the successful party would not have been required to endure if it had not been for the litigation.5 The policy rationale for the ability of a court to order costs in legal proceedings was discussed by McHugh J in Oshlack v Richmond River Council6 in the following way: As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

This sentiment was expressed also by Hayne J in Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd7 and by Edmonds J in Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd.8 Consistent with the above notion of the just resolution of disputes, in Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4),9 Katzmann J

viewed the Court’s discretionary power to award costs in that case should be exercised in the manner that best promoted the overarching purpose and so as to take into account any failure to comply with the duty imposed by ss 37N(1) or (2) of the FCA Act. In that case, the respondent was held to be entitled to a recovery of costs, but there was imposed a reduction to reflect, in part, its failure to fulfil the duty under s 37N. Her Honour observed (at [28]– [29]) [page 314] that it had failed to respond to the other side’s offers of settlement, thereby causing increased expense and protraction of the proceedings. Accordingly, the otherwise successful respondent was entitled to recovery of 65 per cent of its costs and disbursements. This result demonstrates the Court’s recognition of the importance of the parties being willing to engage in dispute resolution and to comply with the intent of ss 37M and 37N.

Costs under the Civil Dispute Resolution Act 12.3 The Civil Dispute Resolution Act has the primary object, as stated in s 3, of seeking to ‘ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted’. The obligations of parties to a dispute before the Court to take genuine steps to resolve the dispute and to file a genuine steps statement were addressed in Chapters 1, 3 and 6, and so will not be repeated here. The important provision for present purposes is s 12 of the Act, which deals with the Court’s exercise of discretion to award costs. It has been seen that the Court has the power to award costs in the circumstances of ss 43, 37N and 37P of the FCA Act. Section 12(1) of the Civil Dispute Resolution Act provides that in exercising such discretionary power in a civil proceeding, the Court may take into account whether the party has complied with the requirement to file a genuine steps statement and whether they took genuine steps to resolve the

dispute. The latter requirement is explained in s 4 of the Act, and includes notifying the other side of the issues in dispute and offering to discuss them with a view towards resolution (s 4(1)(a)). As mentioned in Chapter 1, the successful plaintiff in Hookway v MID Pty Ltd,10 a corporations law proceeding before the Court, succeeded in having the costs follow the event despite some issues being raised about her compliance with the Civil Dispute Resolution Act. It was held (at [34]) that even if the plaintiff did not comply precisely with the requirement to file a genuine steps statement (as per s 12(1)(a) of that Act), she did comply with the requirement to take genuine steps to resolve the dispute (s 12(1)(b)). It also assisted the plaintiff’s position that she had complied with s 37N(1) of the FCA Act. The fact the relevant party had acted in a manner consistent with the overarching purpose of the civil practice and procedure provisions also served to ensure that the Court could make an appropriate award of costs in Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2).11 It was observed at 6.14 that in this case Collier J held (at [11]) that the obligations contained in the Civil Dispute Resolution Act do not extend to the parties in connection with the filing of any interlocutory application in an extant civil proceeding before the Court. There was found in that case to be no failure to [page 315] comply with the Act. The question still arose, though, whether the successful respondent had acted unreasonably or contrary to the principles set out in ss 37M and 37N of the FCA Act. Her Honour found (at [31]–[34]) that she was not persuaded that it had acted in such a manner and that, accordingly, the appropriate order to make was that costs should follow the event of the

successful interlocutory application. In the course of the judgment, her Honour remarked (at [31]): [C]ommunications between the parties to resolve interlocutory issues are to be encouraged. An unreasonable attitude by one party to engage in dialogue is to be discouraged as increasing costs in litigation, obstructing the progress of proceedings, and potentially clogging the Court lists.

The ‘usual order as to costs’ 12.4 It has been held in cases such as Hurst and Devlin v Education Queensland (No 2) (Hurst)12 that ‘the usual order as to costs’ reflects that costs will ordinarily follow the event, but this is not automatically so.13 As observed by Lander J in that case, while the purpose of an order for costs is to compensate or indemnify the successful party rather than to punish the unsuccessful opponent, there is no absolute rule to that effect. The discretion may be unfettered but it is to be exercised judicially on grounds connected with the case.14 In Hurst, above (at [11]), there was found to be no conduct on the part of the successful party that should disentitle him to an order for costs. So, too, it was said in Stick v Native Title Registrar (No 2)15 that a successful party will ordinarily be entitled to an award of costs ‘in the absence of special circumstances justifying some other order’.16 Gray J counselled in Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd17 that the discretion of the Court on the question of costs should not be applied mechanically and that the aim is to do ‘substantial justice in relation to costs, based on the outcome [page 316] of the various issues in the proceeding’ and according to the circumstances of the individual case. The financial difficulties and personal circumstances of the unsuccessful self-represented applicant in Nair-Marshall v Secretary, Department of Family and Community Services (Nair-Marshall)18 were held not to constitute special

circumstances to convince the Court that its discretion to award costs to the successful party should not be exercised. In so determining, the Court considered (at [10]) the view expressed by Beaumont and French JJ in Scott v Secretary, Department of Social Security (No 2)19 that, regardless of how sympathetic the Court may be to the impecuniosity of a litigant facing a potential costs order, the inability to satisfy the costs order is insufficient reason to deny a successful party the benefit of such an order.20 The pragmatic suggestion made by Spender J in Nair-Marshall, above (at [12]), was that in such circumstances it was a matter for the Commonwealth respondent to decide whether the costs order would be enforced by it against the other side. On occasion, the Court may exercise its discretion by declining to make any order as to costs in favour of the successful party, as occurred in Bromet v Oddie (Bromet).21 This case illustrates the point that the bringing of (unsuccessful) judicial review proceedings may serve a higher purpose in the public interest by clarifying the law in a broader context and recognising the importance of administrative decisions being open to accessible review. As quoted in Bromet, above (at [6]): Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion give to the Court by the [FCA Act] should not be automatically exercised adversely to the losing party.22

An appellate court is generally reluctant to overturn the discretionary costs decision of the trial judge, who had the benefit of intimate knowledge of the entire proceeding and what constituted additional costs to its conduct.23 It will only interfere with the original costs decision where there is the identification of an error of the nature outlined by the majority of the High Court in House v R.24 That is, it appears that the trial judge has made an error of principle in exercising the discretion, has allowed extraneous or irrelevant matters to affect the decision, was mistaken as to the correct facts or failed to take into account a material consideration. In addition, where the facts suggest that the

[page 317] costs decision is plainly unreasonable or unjust, the appellate court may infer that there has been a failure to properly exercise the discretion and be more inclined to interfere with the trial judge’s exercise of discretion.

Apportionment of costs 12.5 It is a straightforward concept that an entirely successful party to a civil proceeding may ordinarily expect to receive an award of costs in its favour. The task of determining the award of costs, however, becomes more complicated when a party is successful overall, but has failed on one or more issues. In such cases, the Court may engage in the potentially delicate process of apportioning the costs as between the parties by exercising its power to make a reduction of the costs otherwise payable to one party to account for the costs taken up by the failed issues.25 An ‘issue’ in this context was described by Toohey J in Hughes v Western Australian Cricket Association26 to mean ‘any disputed question of fact or law’ and not strictly an issue in a pleading sense. There is, however, a caveat expressed in the case law to the effect that it should not be assumed that the Court will necessarily apportion the costs according to the successes and failures of the parties regarding their respective issues of fact and law. As commented by Jacobs J in Cretazzo v Lomardi,27 a party should not, in the interests of justice, be dissuaded by the risks of costs from canvassing even doubtful issues that may prove material to the final outcome of the case. In the end, the question to answer is whether the discretion of the Court to award costs should be exercised on the facts of the individual case. This includes consideration of the extent to which a party multiplied issues unreasonably, while acknowledging at the same time the wisdom in the words of Heerey J in Russell Fraser Henderson v Amadio Pty Ltd:28

It can also be said that both the law itself and the culture of adversarial litigation encourages, indeed almost compels, the raising of every possible issue which might achieve success. A litigant cannot keep a point in reserve to raise at a later time: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. Many of the notable cases of modern times which have changed the law fundamentally from that learned in law school days by present members of the Bench were cases in which very competent lawyers could have advised at the outset that the claim was unlikely to succeed, or even hopeless.

[page 318] It may be appropriate to reduce, in respect of a successful party, a portion of its costs if the issues it raised unsuccessfully at trial assumed a significant part of the proceeding, and thereby increased the time and expense of the proceeding.29 In Valcorp Australia Pty Ltd v Angas Securities Ltd (No 2),30 the appellant had succeeded on one issue, but not in relation to another issue. The balancing act in apportioning costs was addressed by the Full Court by taking into account the fact the appellant had succeeded in reducing the damages awarded against it at trial by an amount exceeding $500,000 yet it had also failed in relation to its challenge to the award of loss of opportunity damages, which took up a significant part of the appeal proceeding. The award of costs of the appeal against the respondent was determined at 60 per cent of the appellant’s overall costs of the appeal in order not to detract entirely from its success in reducing the damages by a substantial amount. How do the above principles governing the exercise of discretion operate when there are multiple applicants or respondents who are, to varying extents, successful and unsuccessful in the proceeding? This scenario and the principle of taxation known as the ‘rule of thumb’ were examined by Edmonds J in Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (Howards Storage World).31 The rule was described by his Honour as providing that, where a practitioner acts for multiple respondents, each respondent (if successful) is entitled to only its proportion of the costs jointly and solely incurred.

As discussed by Edmonds J in Howards Storage World, above (at [63]),32 two cases illustrate that there may be situations where the application of the rule of thumb would be inappropriate because of the potential for an injustice to occur in the apportionment of costs. In Korner v H Korner & Co Ltd,33 the applicant was successful on the primary issue but succeeded as against only one of the eight defendants. The court found that it would be unjust to apportion the costs equally in relation to all eight defendants. In the other case, Dansk Rekylriffel Syndikat Aktieselskab v Snell,34 the plaintiff succeeded in the summary dismissal of the case against one defendant and succeeded against a second defendant at trial. It was held to be unjust to require the firstmentioned defendant to bear the burden of sharing equally the costs of the hearing.

The timing of costs applications 12.6 Section 43(3)(a) enables the Court or a Judge to make an award of costs at any stage of a proceeding, including after a hearing or trial. This does not mean, however, that a party is encouraged to seek a costs order after judgment [page 319] has been handed down in a proceeding, unless expressly invited by the Court to make submissions on the subject. In McCracken v Phoenix Constructions (Queensland) Pty Ltd (McCracken),35 the Full Court was presented with an application for costs by the respondent after the hearing of the appeal. The respondent had referred to the question of costs in its written submissions in terms of ‘the parties make written submissions as to orders as to costs’, but nothing further was said on the subject in its oral submissions before the Full Court. Their Honours observed (at [12]–[20]) that the Court should not permit parties to incur further expense where it can be avoided since the time

to make a costs application is at the hearing of the appeal and not, as had been sought to be done, at the conclusion of the hearing of the appeal. Their Honours observed (at [13]–[17])36 that the practice of the Court, since prior to the introduction of Pt VB of the FCA Act, is that any application for costs (other than that the costs should follow the event) should be addressed at the time of the hearing. The respondent was held not to have given adequate reason for its non-compliance with that usual practice. The Full Court went on to explain in McCracken, above (at [18]), that, in the absence of a good reason to the contrary, the parties should address any costs orders in their filed written submissions and in their oral submissions at the hearing. A legitimate reason for a party not doing so is where one party has made an offer to the other party and it would be inappropriate for the Court to be alerted to the making of that offer prior to the determination of the matter.

Costs orders against non-parties 12.7 Despite its silence on the matter, s 43 has been considered to empower the Court to make costs orders against a non-party to a proceeding (who is not the lawyer of one of the parties), and this power pre-dates the enactment of the section.37 Following an extensive review of the authorities, the Full Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4)38 concluded that the precondition to the exercise of power to award costs against a non-party is that the person has a sufficient connection with the unsuccessful party and the litigation in a way that is material to the question of costs in the proceeding. If the unsuccessful party is in a position to meet an order for costs, then according to their Honours (at [91]) a costs order against a non-party is less likely to occur and would only be made in exceptional circumstances.

[page 320]

Costs orders against lawyers 12.8 The Rules and the FCA Act provide for the costs liability of a ‘lawyer’, as defined in the Dictionary39 and s 4 of that Act,40 arising from acts and omissions of the lawyer that result in the protraction or delay of the proceeding and the incurring of additional expenses. It is seen from the orders made in Dahler v Australian Capital Territory (No 2)41 that this liability extends to barristers. As considered more fully at 1.6 and 12.9, the Civil Dispute Resolution Act also penalises a lawyer for a breach of duty under that Act. In determining whether a costs order should be made against a lawyer personally in a proceeding, Gray J in Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services)42 held that it was necessary to examine the effect of the overarching purpose of the civil practice and procedure provisions and how this relates to the earlier authorities on the liability of a lawyer for legal costs. Those authorities, including White Industries (Qld) Pty Ltd v Flower & Hart (a firm),43 pointed out that a serious dereliction of duty or serious misconduct on the part of the lawyer is required before the Court will be prepared to make the order. A serious dereliction of duty will arise from gross negligence or a serious failure to give reasonable attention to the relevant law and facts, but other misconduct may also amount to a serious dereliction of duty. Reliance on the advice of counsel briefed in the proceeding will not absolve the solicitor from liability; however, an order might not be made where the lawyer is unable to reveal instructions or material because of legal professional privilege (unless the Court is satisfied there is nothing in that information that would absolve the practitioner).44 As far as the Rules are concerned, r 40.07 enables a party, who has reasonable cause to believe that additional costs were incurred because of

their lawyer’s misconduct, to make an application to the Court for an order of the nature set out in sub-r (1). This includes that the whole or part of the solicitor-client costs between the lawyer and party be disallowed or that the lawyer indemnify another party against any costs payable by the client party. A lawyer is deemed under sub-r (2) to have ‘engaged in misconduct’ for the purposes of the rule if (amongst other things): [page 321] (a) a proceeding or an application is delayed, adjourned or abandoned because of the lawyer’s failure to (for instance) file or serve a relevant document or to comply with the Rules or an order of the Court; or (b) the lawyer incurs unnecessary or wasteful costs or the costs are incurred improperly or without reasonable cause, or where the lawyer is responsible for undue delay. The Court may make an order under r 40.07 of its own motion, consistent with r 1.40 and the power under r 1.32 to make any order it considers appropriate in the interests of justice. In Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 4),45 the Court regarded the adjournment of a trial to have been caused by the conduct of a party’s lawyer and, with such conduct falling within the scope of r 40.07(2), it ordered the lawyer to pay costs in the sum of $6000 within a relatively brief period of time. Under s 43(3)(f) of the FCA Act, the Court may generally award costs against a party’s lawyer personally. More specifically, under s 37N(4), the Court may exercise its discretion to award costs in a civil proceeding by taking into account any failure by a party or lawyer to comply with the duties imposed by ss 37N(1)–(2). That is, the duty of the party to conduct the proceeding in a way that is consistent with the overarching purpose and the

party’s lawyer’s corresponding duty to take that duty into account and to assist the party to comply with the duty. Section 37N(3) contemplates the Court or a Judge requiring a lawyer to assist his or her client in conducting a proceeding in a manner consistent with the overarching purpose by providing the client with an estimate of the duration of the proceeding and the likely amount of costs (both on a solicitor and client basis and on a party and party basis). It has been said that there is a link between s 43(3)(f) and ss 37M and 37N in terms of legislative policy.46 In Mijac Investments Pty Ltd v Graham (Mijac Investments),47 the applicant’s lawyer was ordered under s 37N(4) to pay the respondents’ costs of the applications. The Court held (at [50]) that the lawyer had failed to advise his client about the legal merits of the relevant application or the fact two affidavits contained scandalous and unsubstantiated allegations against individuals, resulting in the applicant bringing a number of unmeritorious applications before the Court. Tracey J remarked (at [49]) that: The achievement of the overarching purpose of the civil practice and procedure depends in part on a practitioner offering objective and considered advice to a client. This includes advice as to matters such as whether a proper basis in law exists for the making and pursuit of a particular application and the contents of any affidavits sworn in support of such an application. Without such advice, the

[page 322] just resolution of disputes according to law and as quickly and inexpensively as possible may well be hampered, if not frustrated.

The object of the Court’s exercise of power is to reimburse a party for the costs incurred because of the conduct of a lawyer, rather than to be disciplinary and punitive.48 The lawyer in these circumstances faces the risk of an indemnity costs order unless, as in Mijac Investments, above, the Court is satisfied that it is more appropriate for the lawyer to be liable for costs on a

party-party basis. As alluded to in that case (at [54]), s 37N(5) prevents the lawyer from seeking to recover the costs from his or her client.

Liability under the Civil Dispute Resolution Act 12.9 As just seen, s 9 of the Civil Dispute Resolution Act requires a lawyer acting for a party involved in civil proceedings before the Court to advise their client of the requirement to file a genuine steps statement and to assist them with this requirement. A breach of this duty potentially renders the lawyer liable to pay costs personally under s 12(2) of that Act if the Court exercises its discretion under s 12(1) to award costs against a party for failing to file a genuine steps statement or for a failure to take genuine steps to resolve the dispute. Similar to the position under the FCA Act just considered, s 12(3) prevents the lawyer from seeking to recover costs from the lawyer’s client where a costs order has been made against the lawyer. In Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys,49 Reeves J was critical of the conduct of the lawyers during the winding up proceedings before the Court. His Honour noted that in excess of 400 pages of affidavit material (some of which was irrelevant) was filed in a dispute involving in total some $10,000, and described (at [9]) the hearing of the dispute as the ‘absolute antithesis of the overarching purpose of civil practice and procedure set out in s 37M of the FCA Act’ that ‘significantly undermines the efficient disposal of civil litigation and that has the potential to erode public confidence in the administration of justice’. The judgment spoke (at [5]–[8]) of the perceived failure to conduct the litigation having regard to relevant practice and procedure and that the legal fees had exceeded the amount of the claim. Of further concern to his Honour (at [4], [31]–[41]) was the apparent absence of the parties having taken genuine steps to resolve the dispute and the failure to file the appropriate genuine steps statements, as required by the Civil Dispute Resolution Act. Although the applicant, as the successful party, would otherwise ordinarily be entitled to an award of costs, Reeves J directed that the lawyers be joined as parties to the proceeding for the purpose of determining whether they should be liable to pay costs having

[page 323] regard to s 12 of the Civil Dispute Resolution Act and ss 37N(5) and 43(3)(f) of the FCA Act. In the subsequent judgment, Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (No 2),50 the eventual costs order made by Reeves J was that the defendant pay the plaintiff the cost of the filing fee for the winding up application, but that otherwise there be no order as to costs. His Honour (at [7]) accepted the defendant’s submissions that it had no obligation to file a genuine steps statement in circumstances where the plaintiff had not filed its statement. The lawyers avoided a personal costs order under s 37N(5) of the FCA Act on the basis that neither party sought any order for costs against either lawyer. His Honour did, however, comment (at [13]) that if it were not for this fact, he would have been minded to award costs under the relevant provisions of the Civil Dispute Resolution Act or the FCA Act in an attempt to deter lawyers engaging in the conduct that originally attracted the Court’s condemnation.

Sanderson and Bullock orders 12.10 A ‘Sanderson order’ (from the 1903 decision of Sanderson v Blyth Theatre Co)51 is an order that requires the unsuccessful respondent to pay the costs of a successful respondent to a proceeding. By the same token, a ‘Bullock order’ (from Bullock v London General Omnibus Co)52 requires the unsuccessful respondent to indemnify the applicant against costs payable by the applicant to a successful respondent. A relevant factor in the Court exercising its discretion to make either type of order may be the existence and terms of an offer of settlement contained in a ‘Calderbank letter’ (after Calderbank v Calderbank),53 as illustrated by Pacific Composites Pty Ltd v Transpac Container System Ltd (carrying on business as Blue Anchor Line).54 In more general terms, the applicable

principles may be drawn from the High Court case of Gould v Vaggelas,55 in which Brennan J held (at [24]): A judicial discretion can be exercised to make a Bullock Order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiff’s claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought (cf. Johnsons Tyne Foundry Pty. Ltd. v Maffra Corporation [1948] HCA 46; (1948) 77 CLR 544 at 566).

Similarly, it was affirmed in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4),56 that a Sanderson or Bullock order will be justified where the [page 324] applicant has reasonably and properly incurred the cost of joining the successful respondent to establish the claim and it is just that the unsuccessful respondent should bear the costs of the joinder. In that case, the applicant was held to have been justified in having inevitably joined the successful respondent after the unsuccessful respondent had filed a defence denying responsibility for the applicant’s losses and attributing blame to the other party who was joined as a respondent.

Security for costs 12.11 Arguably one of the strongest tools at the disposal of the Court, in seeking to ensure that justice is done if an innocent respondent is forced to endure the financial burden of defending an unmeritorious claim brought by an impecunious applicant, is its power under s 56 of the FCA Act to order an applicant (or appellant) in civil proceedings to give security for the payment of costs that ultimately may be awarded against them. The jurisdiction under s 56 is seen to protect the efficacy of the jurisdiction to award costs in

general.57 The Court’s exercise of discretion is broad and unfettered58 and extends to determining the amount, timing, manner and form of the payment of the security for costs (s 56(2)). The Court may alter those variables as the proceeding progresses (s 56(3)). A party who fails to give the security ordered by the Court faces dismissal of the application or appeal (s 56(4)). Under r 19.01, the respondent may make an application for security for costs, and seek an order that the applicant’s (or cross-claimant’s) proceedings be stayed until security is given or that they be stayed or dismissed if that party fails to comply with a security for costs order. As noted at 11.16, the situation is similar under r 36.09 in relation to a security for costs application in respect of an appeal proceeding. The affidavit accompanying the application made under r 19.01(1) must address the factors under r 19.01(3); namely, whether the applicant: (a) will be unable to pay a costs order in favour of the respondent; (b) is ordinarily resident outside Australia; (c) is suing for someone else’s benefit; (d) is impecunious; and (e) whether there are any other relevant matters. Part 19 of the Rules was held by Griffiths J in Ninan v St George Bank (Ninan)59 to supplement the primary power conferred by s 56 and without limiting the exercise of the broad discretion which arises under the section. His Honour noted (at [34]) the fact that the Rules currently address the factor of whether the applicant is ordinarily resident outside Australia in a less direct [page 325] manner than did O 28 r 3 of the Rules 1979, but that this change does not

preclude the earlier authorities (decided primarily upon s 56 of the FCA Act) from still applying to security for costs applications nowadays. As with most exercises of discretion with which the Court is vested, the discretion must be exercised judicially.60 The onus is upon the respondent to satisfy the Court that it is a proper exercise of its discretion to make a security for costs order against the applicant.61 A number of circumstances must be properly weighted, depending upon the circumstances of the case.62 The following guidelines, usefully described by Collier J in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 5) (Citrus Queensland)63 and by Griffiths J in Ninan, above (at [29]–[42]), after considering the plethora of relevant authorities, potentially assist the Court with the formulation of the decision as to whether a security for costs order should be made: 1.

The security for costs application should be made promptly.

2.

The strength and bona fides of the applicant’s case.

3.

Whether the applicant is impecunious and, if so, whether such impecuniosity was caused by the respondent’s conduct. An applicant wishing to establish this causal connection must substantiate that claim by appropriate evidentiary material.

4.

Whether the applicant is an individual or a corporation. It is often suggested that the Court is reluctant to order security for costs be paid by a natural person regardless of their impecuniosity; however, the mere fact the applicant is a natural person and is impecunious is not determinative of the matter. Some additional circumstance in combination with the fact the applicant is impecunious may warrant the ordering of security for costs, such as the fact the applicant is ordinarily resident outside Australia.

5.

The weight of authority suggests there is no automatic entitlement to security for costs where the applicant is an impecunious company, and regard may be had to s 1335 of the Corporations Act 2001 (Cth).

6.

A foreign-based applicant (that is, one who is usually resident outside Australia) may be more likely to be ordered to pay security for costs in recognition of the fact the respondent who succeeds in obtaining judgment will need to enforce it in the applicant’s foreign country of residence. If that foreign country is not a country to which the Foreign Judgments Act 1991 (Cth) applies, then that is a factor weighing in favour of ordering a foreign-based applicant to pay security [page 326] for costs commensurate with the reasonable costs of preparing and conducting the proceeding.

7.

Whether the application for security is oppressive.

8.

Whether the party against whom security is sought is in substance a plaintiff.

9.

Where the applicant is a company, whether there is any person standing behind it who is likely to benefit from the litigation and who offered any personal undertaking to be liable for the costs.

10. Whether the making of the order will have the effect of bringing the proceeding to a premature end because of the applicant’s impecuniosity, which is of particular concern where public interest issues arise in the proceeding. 11. Some weight may be given to the fact the applicant is self-represented and the pleadings were not drafted by a legal representative. It must be remembered that litigants will not be permitted to prosecute claims unfairly to the other side and in a manner that prevents the Court from achieving a just, cost-effective and expeditious resolution of the real issues in dispute. 12. The parties’ respective prospects of success may be a relevant consideration; however, there should not be a major hearing on that

issue during an interlocutory application for security for costs. 13. The existence of any other discretionary matters specific to the circumstances of the case. In Ninan, above, the Court applied the above principles in deciding that a security for costs order should be made against the applicants, despite their being natural persons. The key factors underlying the exercise of discretion were that the applicants were ordinarily resident overseas in a country that is not covered by the Foreign Judgments Act 1991 (Cth). Their pleadings contained deficiencies that cast a shadow of doubt about the prospects of success. The Court attached no weight to the applicants’ claim that their case would die prematurely, that their impecuniosity was caused by the conduct of the respondents the subject of the proceeding or that the matters pleaded by the applicants raised sufficient public interest to favour the dismissal of the interlocutory application for security of costs (such application having been brought without any evidence of delay). The Court was not, however, prepared to make a guillotine order (for dismissal of the proceedings) in the event that the applicants failed to comply with the security for costs order. Rather, it was considered more appropriate that, in the event of this contingency, the affected respondent make an application for dismissal of the proceeding as it affects that party. Once the Court has determined it is proper for a security for costs order to be made, the next step is for it to determine the appropriate quantum of those costs. In Citrus Queensland, above, the Court analysed this task before it by noting (at [53]) that the Court neither sets out to give a complete indemnity to a respondent nor assumes the applicant will fail in the proceeding. The estimate at which the Court arrives is to be reasonable having regard to the circumstances. [page 327]

An application for security for costs against a litigation representative was dismissed in Kiefel v Victoria.64 In so deciding, Mortimer J considered the proper purpose of security for costs within this context when stating (at [87]): Nevertheless, an order for security is not made as a mechanism for coercing a litigant into conducting a more efficient and focused proceeding. Nor is it not intended to operate as some kind of additional assurance by the person subject to the order that she has the requisite degree of seriousness concerning the appeal, or the proceeding. It is not a mechanism by which a litigant can be forced to ‘think twice’ about whether to continue a proceeding or an appeal. The sole purpose is to provide access to a fund for a respondent in the event that respondent secures a costs order at the conclusion of the proceedings.

Having regard to the vulnerability of the applicant child, it was considered inappropriate to erect a hurdle to his right of appeal.

Costs orders under the Rules Civil practice and procedure provisions Practice Note CM 4 – Costs – Lump Sum Costs Orders under Rule 40.02(b) of the Federal Court Rules (Practice Note CM 4) Divisions 40.1 and 40.4 of the Rules Sections 43(3)(d), 43(3)(g) and 37P(6)(e) of the FCA Act

Party and party costs 12.12 Where a costs order provides no description of the nature of the costs ordered to be paid by one party to another party, the costs are deemed by reason of r 40.01 to be the costs of the proceeding as between party and party.65 The Dictionary66 defines ‘costs as between party and party’ to mean ‘only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation’. This definition differs to the approach under the Rules 1979 of costs being allowable on a ‘necessary or proper’ basis, which Mansfield J suggested in Territory Realty Pty Ltd v Garraway (No 3)67 resulted in the recovery of lesser costs than the current approach under the Rules. The

costs potentially allowable by the taxing officer on a party and party basis are set out in Sch 3 of the Rules in respect of legal work done and services performed after 1 August 2011, and in Sch 2 of the Rules 1979 for work done before that date (r 40.29). As explored more fully later in this chapter, a party who is entitled to costs may make an application under r 40.02(a) for an order that awarded costs be [page 328] paid other than as between party and party. An application may also be made under r 40.02 for an order that costs be paid as a lump sum (para (b)) or that costs be determined in a manner other than by taxation (para (c)).68 The Court may also order that costs be paid on an indemnity basis, or by reference to a costs assessment scheme.69 Rule 40.03 provides that where the Court’s order is that the question of costs be reserved, the costs will be deemed to follow the event.70 An application may be made by a party under r 40.51 for an order that sets the maximum costs as between party and party that may be recovered for the proceeding.71 Any such order made is not, however, permitted to include an amount that a party is ordered to pay because (amongst other things) the party had ‘not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result’ (r 40.51(2)(d)). Finally, it is worthwhile noting that the ‘usual position’, that costs are to be awarded on a party and party basis unless ordered otherwise, is seen also under the Federal Proceedings (Costs) Act 1981 (Cth). In the scenario of a federal appeal succeeding on a question of law, and the Court having granted a costs certificate to a respondent under s 6 or to an appellant under s 7 or s 7A of that Act, the costs incurred by the relevant party are to be regarded as

costs as between party and party (s 4(1)). A person granted a costs certificate may then apply to the Attorney-General for payment (s 16).

Self-represented litigants 12.13 The question arises whether a successful self-represented litigant should be entitled to costs on a party and party basis? The term ‘costs’ is not defined in the FCA Act, but the common law recognises that ‘costs include the remuneration and disbursements incurred in relation to legal work’.72 In P v Child Support Registrar,73 Buchanan J suggested that r 40.01 and the definition of ‘costs as between party and party’ in the Dictionary to the Rules lent scope for the successful applicant in that case to make a legitimate claim for recovery of some of his disbursements, but that the recovery of (professional) costs would be more problematic given his status as a selfrepresented litigant. The Court did not appear to rule out the possibility of such costs being claimed and regarded that a costs order in the terms of r 40.01 should be made in that case, at least in principle. [page 329] More recently, and seemingly more in keeping with the prevailing line of authorities, in Tyne v UBS AG (No 2) (Tyne),74 Greenwood J held that the Court lacked the power to award ‘costs’ to a self-represented litigant and emphasised that ‘costs’ for the purposes of the Rules and the FCA Act ‘are confined to money paid or liabilities incurred for professional legal services’ and cannot extend to compensation for the loss of time of a self-represented litigant. This, his Honour stated (at [23]), is entirely in keeping with the longstanding principle, espoused by High Court authorities such as Cachia v Hanes (Cachia).75 The High Court held that party-party costs were never intended to be comprehensive compensation for all loss suffered by a litigant, but rather are awarded as partial indemnity for professional legal costs actually incurred by a successful party. The recognised exception to this

principle is where the successful self-represented litigant is himself or herself a ‘legal practitioner’, which Greenwood J in Tyne, above, regarded as consistent with the approach taken under the Rules.76 Similarly, in Visscher v Teekay Shipping (Australia) Pty Ltd (No 3),77 Katzmann J observed that, in considering Cachia, above, and George v Fletcher (Trustee) (No 2),78 a selfrepresented litigant is not entitled to recover costs as compensation for loss of time or inconvenience, but that disbursements (such as filing fees or appeal book photocopying expenses) may be recoverable.

Lump sum costs orders 12.14 It was foreshadowed at 12.12 that r 40.02(b) allows a person entitled to costs (including a party) to make an application to the Court for an order that costs be awarded in a ‘lump sum’ rather than, or in addition to, the costs being taxed. Costs may be awarded also as a lump sum in lieu of taxation under r 40.05(b) for the portion of costs incurred in another court from where a proceeding was transferred to the Court (alternatively, such costs may be taxed in accordance with r 40.05(a)).79 The power of the Court to make an award of costs in a lump sum (or, to use the statutory phrase, ‘a specified sum’) is found in s 43(3)(d) of the FCA Act. Arguably, the wording in s 43(3), to the effect that the provision does not limit the discretion of the Court or a Judge in relation to costs, would enable a specified sum costs order to extend in favour of a non-party. A lump sum or specified sum costs order is also referred to at times in the case law as a ‘gross sum’ costs order. [page 330] It has long been recognised that the benefit of making a lump sum costs order, particularly in already lengthy cases, is so that the expense, delay and aggravation of protracted litigation arising from the taxation of a bill of costs is avoided.80 This sentiment was echoed by Conti J in Ualesi t/as Australian

Empire Imports v Expeditors International Pty Ltd81 to the effect that the making of a lump sum order may achieve ‘finality, subject always to the need to ensure that unreasonable amounts of costs are not pursued and awarded’. In Clean Energy Regulator v MT Solar Pty Ltd (No 3) (Clean Energy Regulator),82 the Court went so far as to state that the imposition of an additional burden on the successful party by taxing a bill may provide a strong reason for making a lump sum costs order. With any proceeding there is a real risk that the taxation process may itself assume a burdensome role in the dispute between the parties, accompanied by the bringing of interlocutory applications, a review of the taxing officer’s decision and subsequent appeals. The making of a lump sum costs order means that the successful party is also spared the potentially expensive and time-consuming task of preparing a fully itemised bill of costs in accordance with Sch 3 of the Rules, or the engaging of the services of a costs consultant to do so. An estimate of costs may still need to be prepared for the assistance of the Court in determining the appropriate amount of the lump sum award of costs, but this is likely to be much less arduous than the preparation of an itemised bill of costs in accordance with the scale of costs under the Rules. It is well-established principle that the exercise of the Court’s power in making a lump sum order is a broad discretion, but one that must be exercised judicially after the parties have been provided with adequate opportunity to make submissions on the matter.83 The Court demonstrates a flexible and pragmatic attitude towards the question of whether to make a lump sum order. It has said the order may be made whenever the circumstances warrant it,84 and irrespective of whether the proceeding involved a complex or relatively simple case.85 In arriving at the appropriate amount of the order, the Court is reluctant to conduct a detailed taxation process, which it sees as being the role of the taxing officer under the Rules.86 In Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) (Avetmiss),87 it was noted that the task

[page 331] of quantifying the lump sum is to be approached more broadly than it would be on taxation and is not one of any arithmetic calculation or precision, but it must still be done in a way that provides an estimate that is ‘logical, fair and reasonable’ based upon sufficient evidence before the Court.88 For an example of how the Court performed the lump sum costs exercise in regard to the individual components of the successful party’s claim for costs and disbursements, reference may be had to Charlick Trading Pty Ltd v Australian National Railways Commission.89 The principles contained in s 37M of the FCA Act are a key consideration in the exercise of discretion, as espoused by Mortimer J in Beling v Sixty International SA (No 2)90 and Avetmiss, above.91 In the latter case, her Honour observed: To proceed to a taxation of costs even though the proceeding itself has not involved complex issues or many stages would nevertheless involve significant further time, trouble, delay, expense and aggravation, disproportionate to the complexity of the proceeding and inconsistent with the overarching purpose set out in s 37M(1) of the [FCA Act].

The above was quoted with approval by Collier J in Vantage Holdings Pty Ltd v Huang (No 2) (Vantage Holdings),92 and in Clean Energy Regulator, above, Foster J (at [29]) similarly recognised the need for the question of lump sum orders to be considered within the context of the overarching purpose of the civil practice and procedure provisions. In Vantage Holdings, above, the Court (at [11]–[15]) regarded the vehemently contested interlocutory application to have been sufficiently simple so as to make it expedient to make an order that the costs be fixed. There was adequate affidavit material before the Court to assist it to arrive at an appropriate costs sum, including the following information: a description of the professional fees of the successful party’s solicitors’

firm, sufficiently detailed as to relevant periods of time, tasks, charge out rates, position of the practitioners involved, and the like; counsel’s fees, by reference to time and tasks performed; the costs incurred by the successful party in relation to the interlocutory application by reference to the costs scale in Sch 3 of the Rules; and an explanation of discounts applied to particular costs claimed. The Court in that case was also satisfied (at [15]) that the amount of the lump sum costs was proportionate to the nature, complexity and importance of the interlocutory application.93 As seen above, this is consistent with the [page 332] underlying rationale of s 37M(1) generally, as well as s 37M(2)(e), that disputes be resolved ‘at a cost that is proportionate to the importance and complexity of the matters in dispute’. In Vantage Holdings, above, there was held to be no need for the input of an independent costs assessor in determining whether to award fixed costs, and if so, in what quantum. This may be contrasted to Clean Energy Regulator, above, where (at [29]) it was said as a basic principle that the evidence of an expert costs assessor is both relevant to, and probative of, these questions. By contrast, in Phone Directories Company Australia Pty Ltd v Telstra Corporation Ltd (No 2) (Phone Directories Company),94 it was held that a lump sum order was not appropriate in all the circumstances of that case for reasons including that: the relevant party did not make an application under r 40.02 in a timely fashion; its submissions were limited in nature and scope; the trial was in separate parts, making it straightforward to attribute

specific costs towards the work done; this was not such a complex case or one where a taxation would be so complicated or protracted that a lump sum costs order was preferable; there would be no cost efficiencies or savings by the Court hearing an application for a lump sum order, compared with a normal taxation that would result in a more efficient use of resources of the parties and the Court; and the taxing officer’s estimate of approximate costs upon the filing of a bill of costs could then form the basis of negotiations between the parties, including through Court-assisted mediation. The message to glean from cases such as Vantage Holdings, above, and Phone Directories Company, above, is that the better prepared a party is when seeking a lump sum costs order, so as to reduce the Court’s time and effort required to determine the quantum of the lump sum, the greater the prospects of the party having costs fixed in its favour by the Court.

Indemnity costs 12.15 A party who causes proceedings to be delayed or unnecessary expenses to be incurred by the Court or other parties will face a potential adverse indemnity costs order. A party entitled to a costs order may apply to the Court under r 40.02(a) that the costs be paid other than on a party and party basis, including (as confirmed in Note 1 of the rule) on an indemnity basis. The Dictionary95 defines the expression ‘costs on an indemnity basis’ to mean ‘costs as a complete indemnity against the costs incurred by the party in the [page 333] proceeding, provided that they do not include any amount shown by the party liable to pay them to have been incurred unreasonably in the interests of

the party incurring them’. The discretionary power of the Court or a Judge to order that the costs awarded against a party are to be assessed on an indemnity basis is found in s 43(3)(g) of the FCA Act. Section 37P(6)(e) also outlines that an indemnity costs order is one of the consequences of a party failing to comply with a direction given by the Court or a Judge. In Smits v Loel (No 2) (Smits),96 Rangiah J succinctly stated the premise underlying the making of a costs order in the following terms: They are awarded to compensate a party fully for costs which the usual party-party order does not cover when there are special or unusual circumstances.

While heeding the warning of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 11)97 of the importance not to treat past cases where indemnity costs were ordered as if they mandate the making of an order in any future similar case, it is worthwhile considering the reason for costs being awarded on an indemnity basis in Smits, above. This occurred as a consequence of the Court finding (at [4]) that the principal proceeding lacked any reasonable prospect of success and was an abuse of process, and the fact the applicant had failed to accept a reasonable offer made by the successful respondents that the proceeding be discontinued with no order as to costs. On this latter point, an imprudent refusal of an offer of compromise was held in Colgate-Palmolive Company v Cussons Pty Ltd98 to justify an indemnity costs order. In Russell Fraser Henderson v Amadio Pty Ltd,99 Heerey J adopted the words of Byrne J in Mutual Community Ltd v Lorden Holdings Pty Ltd100 to the effect that, as a matter of policy, parties should be encouraged by the Court to undertake genuine settlement negotiations and the possibility of an indemnity costs penalty may serve as a strong inducement for a party to face up to a reasonable offer. Other principles relevant to the Court’s exercise of discretion on this subject derived from past authorities were helpfully outlined by Griffiths J in SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (No 3)101 as including: the question is whether the circumstances of the case warrant a

departure from the normal course that costs are awarded on a party and party basis; the fact a case is ultimately found to lack merit of its own is not sufficient justification for the making of an indemnity costs order; the level of difficulty of the litigation is not itself a relevant factor; [page 334] the presence of some delinquency on the part of the unsuccessful party may warrant a costs order, but ethical or moral delinquency is not a condition of the Court’s exercise of power; the Court will measure the unsuccessful party’s conduct as against what facts were known or ought to have been known and what legal advice ought reasonably to have been obtained; and the making of knowingly false allegations of fraud, acts of misconduct causing loss of time to the Court and to other parties, the commencement or continuation of proceedings for an ulterior motive and the wilful disregard of known facts or clearly established legal principle are examples of conduct warranting the making of an indemnity costs order. His Honour pointed out also (at [7]) that ‘the mere fact a party fights the proceedings vigorously and leaves no stone unturned is not a basis for an indemnity costs order’, although noting that ss 37M and 37N of the FCA Act must be taken into account.

Disallowing and reducing costs Civil practice and procedure provisions Rules 40.06, 40.08, 40.16 and 40.30 of the Rules

Under the Rules 12.16 The Rules provide in several places within Pt 40, dealing with the question of costs, the basis upon which a party may apply to the Court for an order that the costs of a party be disallowed or reduced. These provisions are in addition to the rule enabling a party to apply to the Court for an order that the costs of a party as between it and its lawyer be disallowed on the grounds of misconduct.102 Although the potential reduction or disallowance of fees that might otherwise be payable in respect of a proceeding (or part of one) under the rules of court pre-dates the introduction of ss 37M and 37N of the FCA Act, the underlying theme of the provisions on this subject is consistent with the notion that a party should not benefit from conducting proceedings in an unnecessarily expensive, delayed or inefficient manner. A party may make an application for a costs disallowance or reduction order or the Court may do so on its own motion in accordance with the power in r 1.40.103 The first rule to consider is r 40.06. It provides that a party may apply to the Court for an order that there be a disallowance of any costs in the proceeding that have been improperly, unreasonably or negligently incurred (or that there [page 335] otherwise be held an inquiry into whether any such costs have been incurred). Such an issue may arise, as occurred in Ewin v Vergara (No 4),104 where one party disputes the payment of the other party’s travel expenses in respect of interstate legal representatives. In Adamas v The Honourable Brendan O’Connor (No 3),105 Gilmour J relied upon r 40.06 in apportioning costs as between the parties. Note 1 to r 40.06 affirms that it is the responsibility of the taxing officer on a taxation to disallow any costs that have been incurred improperly (and the like) under r 40.06 (as elaborated further below). Secondly, r 40.08 allows for a potential reduction in costs otherwise payable

due to the quantum of the damages awarded by the Court or the choice of forum for the proceeding. As to the former scenario, the rule provides that a party to a proceeding (other than in one under the Admiralty Act 1988 (Cth)) may make an application under para (a) of the rule for an order that any costs and disbursements payable to a successful party be reduced by a specified amount if the applicant has claimed monetary compensation or damages and has been awarded a sum of less than $100,000. The Court will not automatically make an order under r 40.08 based upon the quantum of the award of damages alone. So it was seen in Halal Certification Authority Pty Ltd v Quality Kebabs Wholesalers Pty Ltd (No 3)106 that the Court declined to make the order under r 40.08, despite the award of some $91,000, because of the fact it was an intellectual property case involving a novel issue and the case took a relatively brief period of time at hearing. A reduction of 35 per cent of the costs was ordered in Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4)107 as a reflection of both the low quantum of the award, but also the fact the costs incurred were out of proportion to the amount recovered and that therefore there was a failure to fulfil the duty under s 37N of the FCA Act. The pecuniary consequence in r 40.08(a) is presumably designed as a matter of policy to discourage the bringing of ‘less complex’ matters before the Court, and to encourage the proceeding to be brought instead in a forum such as the Federal Circuit Court (which, as seen in Chapter 7 in relation to case transfers, has concurrent jurisdiction with the Court). This supposition is lent support by the wording of r 40.08(b), concerning the bringing of an application for an order reducing the payment of costs and disbursements where the proceeding itself (including a cross-claim) could more suitably have been conducted in another court or tribunal. It may be reasoned that this consequence is potentially appropriate where costs have been incurred in a proceeding in the Court prior to the Court ordering its transfer to another court, but is arguably draconian if a proceeding has been allowed to run to a

final hearing without the issue of the appropriateness of another forum being raised until the making of an application under r 40.08. [page 336] In Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2),108 the Court expressed a further viewpoint on this matter. It held (at [33]–[34]) that the successful applicants in that case should have their costs paid on a party and party basis under the Court scale up to a particular date and thereafter the applicants should pay the respondents’ costs on an indemnity basis. It held this because it was considered reasonable for the applicants to have chosen the Court as their forum, in light of its experience in case management and the resolution of intellectual property disputes,109 rather than the Federal Circuit Court, which on the surface represented the more appropriate forum having regard to the relatively low quantum of the claim. The applicants were also unaware of the ultimately low quantum of their claim until they were a substantial way into the proceeding. The Court also rejected (at [32]) the applicants’ argument that r 40.08 allowed them to seek a costs reduction, although it felt it unnecessary to finally determine the question. The practical difficulty of determining, during the hearing of submissions regarding the application of r 40.08(b) at the late stages of a proceeding, as to whether another forum would have been a more appropriate forum for the resolution of the case is also illustrated by the judgment in Minister for the Environment v Ayre Conditioning Pty Ltd.110 A fine balancing act may come into play when, on the one hand, a matter involves a provision that is not particularly complex yet, on the other hand, its enforcement represents a new and relatively untested jurisdiction. In this situation, the Court may be forced to grapple with the dilemma of whether the case properly belongs in the Court or in another forum.

The taxing officer during the taxation process also has a role to play in disallowing costs that are unnecessarily and improperly incurred. It was mentioned previously that Note 1 to r 40.06 recognises that it is the responsibility of the taxing officer to disallow costs that have been incurred in an improper, unreasonable or negligent manner. This duty has foundations in rr 40.16 and 40.30. The former rule permits the taxing officer to exercise the powers in r 40.15(1); namely, to certify the costs or to allow a nominal or other sum by way of costs. Rule 40.30 prohibits the taxing officer from allowing on taxation (amongst other things) costs that have been incurred or increased through impropriety, unreasonableness or negligence, through over-caution or by other unnecessary expense.

Taxation process Civil practice and procedure provisions Divisions 40.2 and 40.3 of the Rules [page 337] Rules 13.03–13.05 of the Federal Court (Bankruptcy) Rules 2005 (Cth) (Bankruptcy Rules) Practice Note GEN 3 – Use of Court Forms (Practice Note GEN 3)

Bills of costs 12.17 Plainly, the quickest and most efficient way for a party to recover an award of costs made in its favour and against another party is by way of agreement between the parties and without needing to utilise the resources of the Court. The Rules in Div 40.2 address the processes for when the parties are unable to agree on the amount of the costs ordered in favour of a party. Rule 40.12 provides that in such circumstances the costs must be taxed in

accordance with Pt 40,111 and there is no requirement for an express order directing taxation (r 40.14). To maximise the recovery of costs and to keep the expense of that goal to an absolute minimum, the party seeking taxation should ensure that the procedures of Pt 40 are adhered to. First of all, a party seeking to have its costs taxed must file a bill of costs for taxation by a ‘taxing officer’ (in practice, a Registrar) of the Court.112 Under the Rules 1979, there was no prescribed form of the bill; however, r 40.18 of the Rules now requires the bill (other than a short form bill) to be in accordance with an approved form (Form 127). The bill must satisfy the matters set out in r 40.18 (such as attaching receipts), as well as the other requirements for the preparation of the bill contained in Practice Note GEN 3 at [11]. The party filing the bill must, under r 40.19, serve a copy of the bill and other necessary documents on each ‘party interested in the bill’113 at least seven days before the date endorsed on the bill by the taxing officer for the making of an estimate under r 40.20. Although seemingly not addressed in the Rules, practice notes or administrative notices of the Court, some taxing officers of the Court have seemingly followed an informal practice of requesting an affidavit be filed with the bill that explains whether the party filing the bill is entitled to claim an input tax credit in respect of any of the disbursements in the bill. The purpose of this is to avoid a party effectively recovering in the taxation process an amount that they have recovered, or are otherwise entitled to recover, through the Australian taxation system. A practitioner preparing a bill of costs for a party may wish to check with the Registry where the bill is to be filed as to whether an affidavit is required, or to at least be in a position to advise the Registry as to whether their client has an entitlement to claim an input tax credit. [page 338]

When preparing a bill of costs, it is worthwhile having regard to the Court’s National Guide to Counsel’s Fees.114 The Guide is periodically updated by the Court to provide guidelines as to the amounts that may be applied by taxing officers in making estimates and conducting provisional and full taxations. The Court further provides on its website the Guide to Discretionary Items in Bills of Costs (the Guide),115 which emphasises the requirements of ss 37M and 37N and explains the basis for a taxing officer’s exercise of discretion inherent in the ‘fair and reasonable’ test for determining costs. Generally, a taxing officer will exercise his or her discretion in a way that considers the cost-effectiveness of the approaches adopted by the party (and lawyer) in conducting the litigation. The Guide foreshadows that the less efficient practice of a clerk attending a Registry to file documents, rather than lodging the document through eLodgment, may result in a reduction in the amount allowed for the relevant item and for any loading for skill, care and responsibility.

Indemnity costs 12.18 It was submitted by one of the respondents in Bob Jane Corporation Pty Ltd v ACN 149801141 Pty Ltd116 that Div 40.2 precludes an assessment of costs awarded on an indemnity basis by reference to a time costs agreement. This argument was rejected by Besanko J (at [31]–[32]) when his Honour noted that r 40.12 requires costs to be taxed in accordance with all of Pt 40, which includes r 40.02. Furthermore, r 40.12 reflects the former O 62 rr 2 and 6 of the Rules 1979 and those provisions had never been held to preclude an assessment of costs awarded on an indemnity basis by reference to a time costs agreement. The transition from the former rules to the Rules is reflected in r 40.29. Another case to consider is Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus,117 decided under the former rules of court, in which a party was awarded costs on an indemnity basis and to be taxed forthwith.

Short form bills

12.19 Certain types of proceedings of an essentially ‘standard’ nature, such as corporation winding up applications, migration appeals and bankruptcy (creditors’ petitions) matters, do not require the filing of a fully itemised bill of costs in accordance with Div 40.2 of the Rules. Instead, Div 40.3 allows for the filing in winding up and migration appeal matters118 of a short form bill of costs, claiming a specific amount in accordance with Sch 3 of the Rules. Rules 40.42(6) and 40.44(6), however, preserve a party’s right to claim taxed [page 339] costs under Div 40.2. In bankruptcy matters, the preparation and filing of short form bills is dealt with under rr 13.03–13.05 of the Bankruptcy Rules, with r 13.03(4) providing that if a lawyer claims costs under r 13.03, then Pt 40 of the Rules does not apply to a bill of costs except in relation to the issue of a certificate of taxation. The benefit of utilising these streamlined mechanisms under the respective rules is that a party entitled to costs will not in the recovery of costs be required to expend resources greater than that of the monetary value of the claim. Having said this, it was noted above that Div 40.3 allows a party to exercise a choice as to whether a short form bill is filed. Practice Note GEN 3 allows Form 127 (the approved form for long form bills of costs) to be used for claiming short form bill costs.

Estimates and objections 12.20 The process for the determination of the amount of costs payable by one party to another who has filed a bill of costs is greatly simplified and made cost-effective by the Rules enabling that amount to be estimated by a Registrar (taxing officer) in the absence of the parties (r 40.20). The Registrar’s estimate of the approximate total for which, if there were a taxation of the bill, the certificate of taxation is likely to issue must occur

before a bill is taxed (r 40.20(1)). The estimate of the bill is notified to the parties interested in the bill in the form of a letter from the Registrar. An interested party may object to the estimate in accordance with r 40.21. Unless there is such an objection, the amount of the estimate is the amount for which the certificate of taxation under r 40.32 will issue (r 40.20(4)). Alternatively, but rarely done, the Registrar may, in the absence of the interested parties, conduct a provisional taxation of the bill consistent with r 40.23.119

Objection 12.21 Any party interested in the bill who objects to the amount of the estimate must, within 21 days after the issue of the notice of estimate, file a notice of objection (Form 128) and pay into the Litigants’ Fund an amount of $2000 as security for costs of any potential taxation of the bill (r 40.21(1)). It was held in Shurat HaDin, Israel Law Centre v Lynch (No 4)120 that only one objection to the estimate is required and that not all interested parties who dispute the amount of the estimate must object. Since the requirement for the payment of the security for costs is found within the Rules, it is not subject to any grounds of exemption or waiver that may otherwise apply to the relevant party under the Federal Court and Federal Circuit Court Regulation 2012 (Cth). Accordingly, a party seeking exemption from payment is required to make an interlocutory [page 340] application to the Court.121 At the conclusion of the estimate or taxation process, the parties should take appropriate steps to seek an order for the payment of the moneys out of the Litigants’ Fund in accordance with r 2.43 of the Rules. Upon the filing of a notice of objection and the payment of the security for costs, the Registrar may direct under r 40.21(2) that:

the parties attend before a designated Registrar (different to the person who provided the estimate) for a confidential conference to identify the real issues in dispute or to resolve the dispute (para (a)); there be a provisional taxation (para (b)); or taxation of the bill occur (para (c)). The parties and the Court benefit from resolution of the costs dispute occurring at a confidential conference, or shortly afterwards, by avoiding the need to proceed to a full taxation. Such resolution results in the issue of a sealed certificate of taxation for the amount agreed by the parties (r 40.22(a)) and the moneys paid into the Litigants’ Fund as security for costs will be released in terms of the process in r 40.22(b).

Taxations 12.22 The Registrar will give notice under r 40.24 that a bill is to proceed to a full taxation where the parties do not resolve the costs dispute in the manner described at 12.21, the Registrar has directed under r 40.21(2)(c) that there be a taxation or a party has requested a full taxation under r 40.23(4) following a provisional taxation. The fees payable for the conducting of a taxation are set out in Sch 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth) (items 128–131) and are based upon the quantum claimed in the bill of costs. Any party wishing to object to any item of the bill must file and serve on all interested parties a notice of objection in accordance with Form 130 in a way that complies with the requirements of r 40.25. A notice of response (Form 131) must be filed by the party who filed the bill and any party who might be affected by any objection to the bill (r 40.26(1)). The notice of response should address the matters set out in rr 40.26(1)(a)–(b) and comply with the time limit for service in r 40.26(2). A failure to file a notice of objection or notice of response (where the former notice has been filed) prevents the relevant party from attending the taxation (rr 40.27(1)–(2)). It is important

for the notices of objection and response to set out accurately the position of the filing party because rr 40.27(3)–(4) affect what amount may be allowed or disallowed. A party may apply to the taxing officer for leave to make an oral submission that clarifies or explains an objection or response in the filed notices (r 40.27(5)). In determining the amount of the costs to be allowed, the taxing officer may exercise his or her discretion and have regard to the matters outlined in [page 341] r 40.31, such as the nature and importance of the proceeding (r 40.31(a)). That exercise of discretion does not extend to allowing the costs specified in r 40.30, including costs incurred or increased through impropriety, unreasonableness or negligence. The taxing officer also has the power under r 40.28 to (amongst other things) summon and examine witnesses (orally or on affidavit), to issue subpoenas and to direct the production of documents. While the taxing officer is exercising any of the powers and discretions contained in Div 40.2, the Judge is not functus officio.122

Interlocutory applications 12.23 The usual rule is that the taxation of costs occurs at the completion of a proceeding. So it is that r 40.13 provides that a costs order made in relation to an interlocutory application must not be taxed until the proceeding in which the order is made is finalised. The exception to this rule is that the Court may, in its exercise of discretion under r 1.35, order that costs of an interlocutory application be taxed immediately or be ‘taxed forthwith’.123 The circumstances in which an immediate taxation costs order may be made were aptly summarised by Besanko J in Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No 2)124 as follows: The authorities suggest that there are a number of reasons for the general rule embodied in [the former] O 62 r 3(3) and they include avoiding multiple taxations, avoiding interlocutory

applications being used as a means to exhaust the funds of an opposing party and avoiding unfairness in a case where, for example, a party who is ultimately successful is unable to set off his or her judgment against an earlier liability to pay costs. The authorities suggest that a common example of a case in which a court will otherwise order is where there are multiple attempts to plead a case causing delay in the progress of the case to hearing and final orders.

In a similar vein, the Full Court in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 13),125 in relation to an appeal from interlocutory orders, considered the complex nature of the litigation between the parties and the fact it would be quite some time before the final judgment in the original proceeding could be given and the successful parties would recover their costs. The Full Court commented that the parties entitled to the benefit of the costs order should not be deprived of the fruits of their order for such a long time and so ordered that the costs be taxed forthwith. For an analysis of the possible differences between r 40.13 and its predecessor, O 62 r 3(3) of the Rules 1979, see the judgment of Barker J in Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4).126 [page 342]

Certificate of taxation and enforcement 12.24 The certificate of taxation to be issued by the taxing officer must be in accordance with Form 132 (see r 40.32(1)), with the appropriate wording denoting (as applicable) that the costs have been taxed in, or that the estimate of the costs under r 40.20 is deemed to be, a specified amount. Once issued, the certificate of taxation must be served within 14 days by the party who filed the bill on the party responsible for the payment of the costs (r 40.32(1)). The certified costs accrue interest, at the rate of interest specified in r 39.06, from the date the certificate of taxation is served upon the party responsible for its payment (r 40.32(3)).127 The certificate of taxation has the same force and effect as any other order of the Court (r 40.32(2)). As a consequence of r 40.32(2), it is now no longer necessary for a party seeking to enforce the

payment of costs to request the taxing officer to draw up, sign and seal an order in favour of that party for the amount shown in the certificate of taxation, as was formerly the position under the predecessor rule (O 62 r 45(3) of the Rules 1979). Rule 40.33(1) concerns the question of the costs of the taxation itself. In general, a party who files an objection under r 40.21 must pay the costs of taxation of all the parties from the date of the notification of the estimate amount unless: (a) the party who filed the bill has its costs taxed at more than 115 per cent of the estimate; or (b) in the case of the other parties, the costs are taxed at less than 85 per cent of the estimate.128 The obligation of a lawyer to conduct proceedings in a timely and efficient manner continues even into the taxation process. A party may make an application under r 40.33(2) to the taxing officer to be relieved of the costs consequences flowing from the application of sub-r (1) where: (a) the party had offered to settle the costs for an amount that was more favourable than that ultimately taxed; or (b) the conduct of any other party at the taxation added significantly to its duration or cost.

Review of taxing officer’s decision 12.25 By r 40.34(1), a party who seeks a review of the taxation and of any consequential orders may make an application to the Court in accordance with Form 133 and the matters set out in rr 40.34(2)–(3). The right to seek a review appears, from the wording of r 40.34(1), to be limited to a party who attended the taxation. The application must be filed and served on all interested parties

[page 343] (which arguably may include persons who did not attend the taxation) within 28 days after the certificate of taxation is issued (r 40.34(4)). It is important to note that the Court may exercise the same powers as that of the taxing officer and may remit an item to the same or another taxing officer.129 The Court will not receive any further evidence on the review (r 40.34(6)). Without the grant of a formal stay order by the Court, the making of an application for a review of the taxation does not operate to stay the execution of the costs (r 40.35). In Territory Realty Pty Ltd v Garraway (No 3),130 it was held by Mansfield J that in seeking a review of a taxing officer’s decision concerning a taxation, the provisions of Div 3.1 (including rr 3.04 and 3.11) have no application. The crux of his Honour’s reasoning is that the powers of a taxing officer conferred by the Rules under Div 40.2 are not to be treated in the same manner as powers designated to a Registrar under s 35A of the FCA Act, to which Div 3.1 applies. The general principles governing a review of a taxing officer’s decision, as garnered by Kitto J in Australian Coal and Shale Employees’ Federation v Commonwealth,131 are as follows: the decision of the taxing officer as to the quantum of the taxed costs is usually final and will only be altered in a very exceptional case; the court will be prepared to correct the decision where the taxing officer has clearly made a mistake; the court will review a taxing officer’s decision where it is alleged the decision was based upon a wrong principle, where the correct principle to apply needs to be determined and where an error in principle may occur in determining whether an item should be allowed and for what amount; and

the court is otherwise reluctant to interfere where there is no principle involved, but will interfere where no discretion has been exercised or it has been exercised in a manifestly incorrect manner. Consistent with s 37M of the FCA Act, the Court is also generally reluctant to interfere with a taxing officer’s decision where to do so is likely to fail to resolve the dispute in a just manner and according to law, and where such an interference may lead to the protraction of the proceeding and the incurring of unnecessary costs. The parties and their lawyers should seek to resolve any costs disputes as quickly, inexpensively and efficiently as possible (for instance, through Court-assisted mediation) in the fulfilment of their duty to act consistently with the overarching purpose of the civil practice and procedure provisions.

1 See, for example, Ashby v Slipper (No 2) [2014] FCAFC 67. 2

See generally Nair-Marshall v Secretary, Department of Family and Community Services [2005] FCA 1341 at [5] (Spender J). 3

Such as under s 570 of the Fair Work Act 2009 (Cth), as considered in Australian Industry Group v Fair Work Australia (No 2) [2012] FCAFC 138; Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) [2012] FCAFC 103; Ashby v Slipper (No 2) [2014] FCAFC 67. See also Public Interest Disclosure Act 2013 (Cth) s 18; FCA Act s 43(1)(c). In relation to the award of costs in representative proceedings, refer to s 43(1A) of the FCA Act. 4 [2012] FCAFC 50 at [72] (Keane CJ, Lander and Foster JJ). 5 Oshlack v Richmond River Council [1998] HCA 11 at [67] (McHugh J). 6 Ibid at [68]. 7 [2009] HCA 43 at [55]. 8 [2010] FCAFC 5 at [61]. 9 [2012] FCA 652 at [25]–[31]. 10 [2012] FCA 1456. 11 [2012] FCA 1138. 12

[2005] FCA 793 at [6]–[10] (Lander J), citing Ritter v Godfrey (1920) 2 KB 47 and Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. 13 On whether the costs of a cross-appeal should follow the event, see Comcare v Simmons (No 2)

[2014] FCAFC 44. Regarding the costs of interlocutory applications or hearings, consult r 40.04 and see generally Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3) [2013] FCA 42.

14

Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 at [58] (Edmonds J), referring to Ruddock v Vadarlis (No 2) [2001] 115 FCR 229 at 234; Stick v Native Title Registrar (No 2) [2014] FCA 202 at [11] (Barker J), citing Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139 at [5]–[6]; Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [9]–[10], citing Oshlack v Richmond River Council [1998] HCA 11 at [40] (Gaudron and Gummow JJ) (citing Dawson J in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557); Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50 at [74] (Keane CJ, Lander and Foster JJ). 15 [2014] FCA 202 at [11] (Barker J). 16 See also Hughes v Western Australia Cricket Association (Inc)

[1986] FCA 382, cited in Nair-Marshall v Secretary, Department of Family and Community Services [2005] FCA 1341 at [6] (Spender J). 17 [2010] FCAFC 5 at [17]. 18 [2005] FCA 1341. 19 [2000] FCA 1450 at [4]. 20

See also Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975. 21 [2002] FCA 1574 (Finn J). Costs decision upheld on appeal: see Bromet v Oddie [2003] FCAFC 213. 22 See Shelton v Repatriation Commission (1999) 85 FCR 587 at 590. 23

See generally Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 at [65] (Edmonds J). 24

(1936) 55 CLR 499 at 504–5 (Dixon, Evatt and McTiernan JJ), considered in Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 at [64] (Edmonds J) and at [7] (Gray J). 25

See, for example, Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; Russell Fraser Henderson v Amadio Pty Ltd [1996] FCA 1341 at [21] (Heerey J), citing Byrns v Davie [1991] VicRp 93; Hughes v Western Australian Cricket Association [1986] FCA 382; (1986) ATPR 40-748 at 48,136 (Toohey J). See also Valcorp Australia Pty Ltd v Angas Securities Ltd (No 2) [2012] FCAFC 52 at [5] (Jacobson, Siopis and Nicholas JJ). 26 [1986] FCA 382; (1986) ATPR 40-748 at 48,136. 27

(1975) 13 SASR 4 at 16, cited in Russell Fraser Henderson at [21] and approved as a statement of principle in Queensland Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222. 28 [1996] FCA 1341 at [25]. 29 Elite

Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6], referred to in Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 at [64] (Edmonds J). 30 [2012] FCAFC 52. 31 [2010] FCAFC 5 at [62]–[63]. 32

Citing Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 22 (Einstein

J). 33 (1951) Ch 10. 34 (1908) 2 Ch 127. 35 [2013] FCAFC 87 (Lander, Siopis and Gilmour JJ).

36

Citing Newman v New Zealand (No 2) (2012) 295 ALR 1 at [24]; Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 at [2]; Arico Trading International Pty Ltd v Kimberley-Clark Aust Pty Ltd [1999] FCA 275 at [2]–[3]; Johnston v Cameron [2002] FCA 301 at [35]. 37 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait

Islander Corporations (No 4) [2012] FCAFC 50 at [73]–[74] (Keane CJ, Lander and Foster JJ) and see the cases cited therein. 38

Ibid at [89]–[91]. See also Ashby v Slipper (No 3) [2015] FCAFC 9 at [64] (Mansfield, Siopis and Gilmour JJ). 39 Rules Sch 1. 40 See also the discussion relating to ‘lawyer’ at 4.2. 41 [2014] FCA 1154 at [43] (Katzmann J). 42 [2012] FCA 240 at [1]. 43

[1998] FCA 806; (1998) 156 ALR 169 at 229–31, discussed in Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services) [2012] FCA 240 at [6]–[7]. 44

Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services) [2012] FCA 240 at [7]–[8], citing White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 at 242; Medcalf v Mardell [2002] UKHL 27; UTSA Pty Ltd (in liq) v Ultra Tune Pty Ltd [2004] VSC 105 at [45]–[47]. 45 [2013] FCA 418. 46

Ryan v Primesafe [2015] FCA 8 at [92] (Mortimer J), citing Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50 at [72] (Keane CJ, Lander and Foster JJ). 47 [2013] FCA 296. 48 White

Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 at 230– 1, discussed in Mijac Investments Pty Ltd v Graham [2013] FCA 296 at [45] and in Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services) [2012] FCA 240 at [6]. 49 [2012] FCA 282. 50 [2012] FCA 977. 51 (1903) 2 KB 533. 52 [1907] 1 KB 264. 53 (1975) 3 All ER 333. 54

[1998] FCA 1264 at [4] (Tamberlin J). See also Expectation Pty Ltd v PRD Realty Pty Ltd [2003] FCA 1086. 55 [1984] HCA 68. 56 [2009] FCA 1448 at [16] (Finkelstein J), citing Gould v Vaggelas (1984) 56 ALR 31. 57 Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 5)

see also cases cited at [29]–[30].

[2006] FCA 1672 at [29] (Collier J) and

58 See generally Bell Wholesale Co Pty Ltd v Gates Export Corporation [1984] FCA 34. 59 [2012] FCA 905 at [28]. 60 Ninan v St George Bank [2012] FCA 905 at [28]. 61

Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 5) [2006] FCA 1672 at [33], citing CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284–5. 62

P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321 at 323 (McHugh J); Ninan v St George Bank [2012] FCA 905 at [30]. 63

[2006] FCA 1672 at [34]–[35], citing Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189 at 197–8 and Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,635. See also Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 at [18]–[24] (Murphy J). 64 [2014] FCA 604. 65

See generally Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231 at [101] (Gray J); Halsted (Bankrupt) v The Official Trustee in Bankruptcy, in the matter of Halsted (Bankrupt) (No 2) [2012] FCA 66 at [14] (Logan J). 66 Rules Sch 1. 67 [2013] FCA 914 at [3]. 68

Regarding r 40.02(c), see, for example, Bell v Steele (No 3) [2012] FCA 246. See Practice Note CM 4 regarding affidavit requirements for an application made under r 40.02(b). 69 As mentioned in Note 2 to r 40.02. 70 Telstra

Corporation Ltd v Phone Directories Company Pty (No 3) [2014] FCA 949 at [17] (Murphy J); Nextra Australia Pty Ltd v Fletcher (No 2) [2014] FCA 682 at [24] (Collier J). 71

See generally King v Jetstar Pty Ltd [2012] FCA 413; King v Virgin Australia Airlines Pty Ltd [2014] FCA 36. 72

Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212 at [9] (Katzmann J), considering Ex parte Farmers Fertilizers Corp Ltd (1916) 16 SR (NSW) 645. 73 [2012] FCA 1398 at [36]. 74 [2014] FCA 1228 at [22]. 75 [1994] HCA 14. 76

See discussion in Tyne v UBS AG (No 2) [2014] FCA 1228 at [24]–[33] concerning the appropriate interpretation and application of relevant statutory provisions and the decision of Guss v Veenhuizen (No 2) [1976] HCA 57. 77 [2012] FCA 212 at [9]. 78 [2010] FCAFC 71. 79

See generally Sheikholeshami v Tolcher (No 2) [2012] FCA 199; SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [29] (Flick J). 80

See, for example, Leary v Leary [1987] 1 All ER 261 at 265, cited in Beach Petroleum NL v Johnson (No 2) [1995] FCA 1250 at [6] (von Doussa J). 81 [2006] FCA 26 at [14].

82 [2013] FCA 1326 at [29] (Foster J). 83 Beach Petroleum NL v Johnson (No 2) [1995] FCA 1250 at [6]; Playcorp Group of Companies Pty Ltd v

Peter Bodum A/S (No 2) [2010] FCA 455 at [3], cited in Clean Energy Regulator v MT Solar Pty Ltd (No 3) [2013] FCA 1326 at [29]. 84 Black and Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737 at [3] (Heerey J). 85 Byrnes

v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51] (Emmett J); Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 at [23] (Mansfield J). 86 Ualesi t/as Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26 at [14]. 87

[2014] FCA 444 at [21]–[22] (Mortimer J), citing Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 at [8] (Tamberlin J) and Seven Network Ltd v News Ltd [2007] FCA 2059 at [29] (Sackville J). 88 See also Clean Energy Regulator v MT Solar Pty Ltd (No 3) [2013] FCA 1326 at [29]. 89 [2001] FCA 629. 90 [2015] FCA 355 at [41]–[42]. 91 [2014] FCA 444 at [30]. 92 [2015] FCA 185 at [10]. 93

See further cases cited in Vantage Holdings Pty Ltd v Huang (No 2) [2015] FCA 185 at [15]; Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23; Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18]. 94 [2014] FCA 418 at [11] (Murphy J). 95 Rules Sch 1. 96 [2015] FCA 29 at [3], citing Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46

FCR 225 at 233–4 (Sheppard J). 97 [2001] FCA 480 at [53]. 98 [1993] FCA 536 at [24] (Sheppard J). 99 [1996] FCA 1341 at [27]. 100 Unreported, Supreme Court of Victoria, 28 April 1993, at 12–3. 101 [2012] FCA 1318 at [7]. 102 See analysis of the relevant principles at 12.8. 103

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [30] (Katzmann J); Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705 at [32] (Murphy J). 104 [2013] FCA 1409. 105 [2012] FCA 365 at [32]–[33]. 106 [2014] FCA 1055 at [7] (Perram J). 107 [2012] FCA 652 at [31], [39] (Katzmann J). 108 [2013] FCA 705. 109

Note the similar sentiment expressed in Halal Certification Authority Pty Ltd v Quality Kebabs Wholesalers Pty Ltd (No 3) [2014] FCA 1055 at [7].

110 [2013] FCA 1408 at [99]–[102] (Mortimer J). 111

See generally Shurat HaDin, Israel Law Centre v Lynch (No 4) [2014] FCA 1216 at [36] (Robertson J); Bob Jane Corporation Pty Ltd v ACN 149801141 Pty Ltd [2014] FCA 1066 at [31] (Besanko J). 112 Rule 40.17 and see the definitions of ‘bill’ and ‘taxing officer’ in the Dictionary (Sch 1 of the Rules). 113

That expression is defined in the Dictionary (Sch 1 of the Rules) to mean ‘a party or a person in whose favour or against whom an order for costs has been made’. 114 Available at . 115 Available at . 116 [2014] FCA 1066 at [31] (Besanko J). 117 [2007] FCA 1878. 118

See generally SZUHH v Minister for Immigration and Border Protection [2014] 1194 at [22] (Buchanan J). 119

See generally Shurat HaDin, Israel Law Centre v Lynch (No 4) [2014] FCA 1216 at [40] (Robertson

J). 120 [2014] FCA 1216 at [39] (Robertson J). 121 See generally Dudzinski v Kellow [2000] FCA 740. 122 Director of the Fair Work Building Industry Inspectorate v Abbott (No 5) [2013] FCA 522. 123

See the consideration of the relevant authorities by Pagone J in Vaughan v Becton Property Group Ltd (No 2) [2014] FCA 705 at [7] and the Note to r 40.13. 124 [2008] FCA 24 at [18]. 125 [1995] FCA 1459 at [5]–[7] (Lockhart, Lindgren and Tamberlin JJ). 126 [2013] FCA 567 at [28]. 127 See also s 52 of the FCA Act (regarding the Court’s power to award interest) and Note 1 to r 40.32. 128 See generally Ann Street Mezzanine Pty Ltd v Beck [2013] FCA 960 at [3] (Kenny J). 129 See the Note to r 40.34. 130 [2013] FCA 914 at [15]–[22]. 131

[1953] HCA 25 at [11]; quoted in Re Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission [1986] FCA 229 at [4] (Forster J).

[page 345]

Appendix

SECTIONS 37M AND 37N OF THE FCA ACT Available at Section 37M of the FCA Act provides: The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court’s overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including

the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. Section 37N of the FCA Act provides: (1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. (2) A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf: (a) take account of the duty imposed on the party by subsection (1); and (b) assist the party to comply with the duty. [page 346] (3) The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of: (a) the likely duration of the proceeding or part of the proceeding; and (b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including: (i)

the costs that the lawyer will charge to the party; and

(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding. (4) In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2). (5) If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client.

[page 347]

BIBLIOGRAPHY Books and Chapters in Books Justice B Beaumont, ‘Managing Litigation in the Federal Court’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System, Melbourne University Press, Melbourne, 2000. P Biscoe, Mareva and Anton Piller Orders:Freezing and Search Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008. N Cujes and I Ahmed, Annotated Federal Court Legislation and Rules, LexisNexis Butterworths, Sydney, 2013. C H van Rhee, Judicial Case Management and Efficiency in Civil Litigation, Intersentia, Belgium, 2008.

Journal Articles, Online Articles and Conference Papers Justice J Allsop, ‘Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia’ (Paper presented to the New South Wales Bar Association, Sydney, 21 October 2003). Justice J Allsop, ‘Federal Jurisdiction II’ (Lecture given to the New South Wales Bar Association, Sydney, 27 November 2003). Justice J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ (FCA) [2007] Federal Judicial Scholarship 15.

Chief Justice J Allsop, ‘Judicial Case Management and the Problem of Costs’ (FCA) [2014] Federal Judicial Scholarship 16. Chief Justice J Allsop, ‘Judicial Support of Arbitration’ (FCA) [2014] Federal Judicial Scholarship 5. J M Bennett, ‘The Office of Sheriff’ (1975-76) 7 Sydney Law Review 360. Chief Justice M E J Black, ‘The Federal Court of Australia: The First 30 Years – A Survey on the Occasion of Two Anniversaries’ (2007) 31 Melbourne University Law Review 1017. Chief Justice M E J Black, ‘The Role of the Judge in Attacking Endemic Delays – Some Lessons from Fast Track’ (Address to the 18th Pacific Judicial Conference, Papeete, French Polynesia, 18 June 2009). E Campbell, ‘The Accrued Jurisdiction of the Federal Court in Administrative Law Matters’ (1998) 17 Australian Bar Review 127. M Crock and R McCallum, ‘The Chapter III Courts: The Evolution of Australia’s Federal Judiciary’ (1995) 6 Public Law Review 187. M Dockray and H Laddie, ‘Piller Problems’ (1990) 106 Law Quarterly Review 601. E D Elliott, ‘Managerial Judging and the Evolution of Procedure’ (1986) 53 University of Chicago Law Review 306. S Flanders, ‘Blind Umpires – A Response to Professor Resnik’ (1984) 35 Hastings Law Journal 505. [page 348] Chief Justice R French, ‘The Future of Litigation: Dispute Resolution in Jurassic Park?’ (Address delivered at the Annual Conference of the Bar Association of Queensland, 7 March 2000). Available at .

Justice R French, ‘Legal Retail Therapy – Is Forum Shopping a Necessary Evil?’ (Paper delivered at the Australian Legal Convention, Canberra, 11– 14 October 2001). Justice R French, ‘Managerial Judging in the Federal Court’ (2005) 32(8) Brief 5. Justice M Gordon, ‘Benefits and Burdens of Case Management: The Victorian Experience with the “Rocket Docket”’ (2009) Hearsay 34. Justice M Gordon, ‘Evaluation of the Docket System with Particular Emphasis on Case Preparation and Early Identification of Issues’ (Speech delivered at the Federal Court Law Council Seminar, 14 March 2008). Justice J Griffiths, ‘Some Ethical Issues for Legal Practitioners’ (FCA) [2014] Federal Judicial Scholarship 4. R Gyles, ‘Whither Case Management’ (Speech delivered at the New Zealand Bar Association Conference, Sydney, 16 August 2008). Justice D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation’ (Pt 1) (1995) 69 Australian Law Journal 705. Justice D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation’ (Pt 2) (1995) 69 Australian Law Journal 790. P Kellow, ‘The Federal Court of Australia: Electronic Filing and the eCourt Online Forum’ (2002) 4 University of Technology Sydney Law Review 123. Justice S Kenny, ‘The Evolving Jurisdiction of the Federal Court of Australia Administering Justice in a Federal System’ (FCA) [2011] Federal Judicial Scholarship 20. Justice S Kenny, ‘Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium’ (1995) 25(2) Monash University Law Review 209. Justice B Lander, ‘Federal Court Jurisdiction and Practice Relating to Contractual Claims’ (Paper presented to the Society of Construction Law Australia, 22 February 2011). Justice B Lander, ‘Federal Court Rules 2011’ (Presentation to the Legal Profession, Canberra, 15 November 2011).

K Lindgren et al, ‘Alternative Dispute Resolution’ in Law Council of Australia (Federal Litigation and Dispute Resolution Section), Case Management Handbook. Available at . R Love Kourlis and J M Singer, ‘Managing Towards the Goals of Rule 1’ (2009) Federal Courts Law Review 1. H Low, ‘Chief Justice Wants to End Litigation Warfare’, Australian Financial Review, 21 November 2014. Available at . D Ong, ‘Unsatisfactory Aspects of the Mareva Order and the Anton Piller Order’ (2005) 17(1) Bond Law Review 92. Justice S Rares, ‘A Judge’s Viewpoint: the Role of Pleading’ (FCA) [2012] Federal Judicial Scholarship 25. Justice S Rares, ‘Judicial Intervention and Caseflow Management’ (FCA) [2011] Federal Judicial Scholarship 12. J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374. Justice A Robertson, ‘Affidavit Evidence’ (FCA) [2014] Federal Judicial Scholarship 3. [page 349] Justice R Sackville, ‘The C7 Case: A Chronicle of Death Foretold’ (Paper presented to the New Zealand Bar Association International Conference, Sydney, 15–16 August 2008). Justice R Sackville, ‘Courts in Transition: An Australian View’ (Paper presented at the New Zealand Court of Appeal/High Court Judges’ and Masters’ Conference, New Zealand, 20–23 March 2003). Justice R Sackville, ‘Expert Evidence in the Managerial Age’ (FCA) [2008] Federal Judicial Scholarship 4.

Justice R Sackville, ‘The Re-emergence of Federal Jurisdiction in Australia’ (Paper presented to the New South Wales Bar Association and the Australian Capital Territory Bar Association Regional Conference, 14–15 July 2001). P A Sallmann, ‘The Impact of Caseflow Management on the Judicial System’ (1995) 18 University of New South Wales Law Journal 193. P A Sallmann, ‘Managing the Business of Australian Higher Courts’ (1992) 2 Journal of Judicial Administration 80. A Sullivan QC, ‘Preparing Affidavits and Evidentiary Statements’ (Paper presented to the New South Wales Bar Association Bar Practice Course, Sydney, May 2011). Chief Justice M Warren, ‘Speech – The Duty Owed to the Court: The Overarching Purpose of Dispute Resolution in Australia’ (VSC) [2011] Victorian Judicial Scholarship 7.

Reports and Handbooks Access to Justice Advisory Committee, Access to Justice: An Action Plan, 1994. Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115, 2011. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000. Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20, 1997. Commonwealth Attorney-General’s Department, The Justice Statement, Office of Legal Information and Publishing, 1995. Commonwealth Attorney-General’s Department, Report on the Review of Scales of Legal Professional Fees in Federal Jurisdictions, 31 March 1998. Commonwealth of Australia, Department of Finance and Deregulation,

Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio, 2012. Federal Court of Australia, Annual Report 2013-2014. Available at . Law Council of Australia, ‘Law Council Welcomes Inquiry into Federal Court Filing Fees’ (Media Release, 27 February 2013). Law Council of Australia (Federal Court Liaison Committee), Final Report in Relation to Possible Innovations to Case Management, 2006. Law Council of Australia (Federal Litigation Section), Submission to Federal Court Liaison Committee, Review of the Individual Docket System, 2002. Law Council of Australia (Federal Litigation and Dispute Resolution Section), Federal Court Case Management Handbook. Available at . Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Final Report, 1999. [page 350] National Alternative Dispute Resolution Advisory Council, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, 2009. C Sage, T Wright and C Morris, ‘Case Management: An Evaluation of the Federal Court’s Individual Docket System’, Report, Law and Justice Foundation of New South Wales, 2002. Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1996.

Websites

Commonwealth Attorney-General’s Department, ‘Tribunals Amalgamation – Frequently Asked Questions’ . Federal Court of Australia, ‘Access to Court Files & Transcript: Subpoenas & Exhibits’ . Federal Court of Australia, ‘Being a Witness’ . Federal Court of Australia, ‘Changes to eLodgment’ . Federal Court of Australia, ‘Commencement of Commercial & Corporations National Practice Area (NPA)’ . Federal Court of Australia, ‘Courts and Tribunals Administered by the Federal Court’ . Federal Court of Australia, ‘eCourtroom’ . Federal Court of Australia, ‘Fast Track System’ . Federal Court of Australia, ‘Guide to Bills of Costs’ . Federal Court of Australia, ‘Guide to Individual Docket System’ . Federal Court of Australia, ‘Guide to Redacting Documents in Electronic Form’ . Federal Court of Australia, ‘Introducing the National Court Framework’

. Federal Court of Australia, ‘National Guide to Counsel’s Fees’ . Federal Court of Australia, ‘Party, Non-party and Media Access to Transcript’ . Federal Court of Australia, ‘Videoconferencing Guide’ . Judicial Commission of New South Wales, ‘Cross-vesting Legislation’ . Tyler Fox, ‘Federal Courts Funding’ .

INDEX References are to page numbers

A Admissions costs …. 6.44 facts or documents, of …. 6.43

Affidavit evidence, used as …. 9.18 originating application, accompanying …. 3.5, 3.7 requirements for …. 6.21 witness statements and outlines of evidence …. 6.22

Alternative dispute resolution see Disputes Appeal AAT appeals case management …. 11.32 Court’s jurisdiction …. 11.26 cross-appeals and notices of contention …. 11.28 ending early …. 11.33–11.37 evidence, further …. 11.31 extension of time …. 11.30 notice of appeal …. 11.27 question of law, appeal on …. 11.29

‘super tribunal’ …. 11.25 appeal-related applications appeal, extension of time to …. 11.10 appeal, leave to …. 11.4–11.9 appeal-related proceeding …. 11.2 case management of …. 11.1 costs applications stay and security for …. 11.16 cross-appeals …. 11.15 documents, preparation of …. 11.22 ending early appeal by consent or for dismissal, application to allow …. 11.18 competency, objection to …. 11.19 discontinuance of an appeal …. 11.20 extension of time to appeal, applications for …. 11.21 evidence adducing fresh …. 11.14 instituting …. 11.11 parties and interveners …. 11.12 jurisdiction managing appeals …. 11.3 nature of …. 11.2 nature of …. 11.13 notice of contention …. 11.15 re-open, application to …. 11.17

C

Case management approach to, …. 1.10 directions hearings …. 6.2 Fast Track …. 1.14, 6.5 individual docket system …. 1.11 managerial judging …. 1.12 National Court Framework (NCF) …. 1.13 overarching purpose …. 1.5, 1.6, 1.7 powers under FCA Act …. 1.22–1.24 powers under the Rules …. 1.18–1.20 under Pt VB of the FCA Act …. 1.4 use of technology …. 1.15, 6.4

Civil Dispute Resolution Act 2011 (Cth) commencement …. 1.8 costs implications under applicant …. 3.10 generally …. 1.8, 12.3 lawyer …. 12.9 respondent …. 6.10 dispute resolution purpose …. 1.8 genuine steps statement, applicant …. 3.8–3.10 genuine steps statement, respondent …. 6.10 operation of overarching purpose under Pt VB of FCA Act, and …. 1.9

Contempt compliance with orders, importance of …. 10.15 failure to comply with orders and fulfil undertakings …. 10.16

non-compliance with orders, punishment for …. 10.16 witnesses, failure to comply with subpoena …. 9.15

Costs see also Civil Dispute Resolution Act 2011 (Cth) admissions see Admissions award, discretion to apportionment of costs …. 12.5 costs applications, timing of …. 12.6 Court, powers of …. 12.2–12.3 lawyers, against …. 1.6 lawyers, costs orders against …. 12.8–12.9 non-parties, costs orders against …. 12.7 Sanderson and Bullock orders …. 12.10 security for costs …. 11.16, 12.11 ‘usual order as to costs’ …. 12.4 costs orders under the Rules indemnity costs …. 12.15 lump sum costs orders …. 12.14 party and party costs …. 12.12 self-represented litigants …. 12.13 disallowing and reducing …. 12.16 taxation process see Taxation understanding …. 12.1

Court, the see Federal Court of Australia (the Court) Court documents see also Proceedings access to Commonwealth Courts Portal …. 5.48 confidential and sensitive information, suppression of …. 5.43

copying …. 5.45 inspection, and …. 5.42 online files …. 5.47 removal from Registry …. 5.44 transcripts and subpoenaed material …. 5.46 dealing with …. 5.1 discovery of documents see Discovery of documents fees deferral of payment of …. 5.28 exemptions …. 5.27 filing …. 5.24 generally …. 5.23 other …. 5.25 refund of …. 5.29 Regulations, the …. 5.22 users, approved …. 5.26 filing courtroom, in …. 5.14 electronic court file …. 5.15–5.16 fax, by …. 5.13 lodgement versus …. 5.10–5.11, 5.19 person, in …. 5.12 post, by …. 5.12 proper place for …. 5.20 redacted documents …. 5.17 types, particular …. 5.18 form of approved forms and compliance …. 5.2

footer …. 5.5 headings …. 5.3 signature …. 5.4 Registry closed for business …. 5.9 rejection of …. 5.21 service address for, notice of …. 5.39–5.41 diplomatic channels, through …. 5.37 effecting …. 5.30 Hague Convention, under …. 5.38 ‘non-personal’ …. 5.33 ordinary …. 5.34 overseas generally …. 5.36 personal …. 5.31–5.32 Service and Execution of Process Act notice …. 5.35 time calculating …. 5.8 Rules or Court order, fixed by …. 5.7 statute, fixed by …. 5.6

Cross-claims procedure …. 6.8 amendment …. 6.9

Cross-vesting legislation Court, transfers to …. 7.14 ‘interests of justice’ and other factors …. 7.13 transfers to State and Territory courts …. 7.12

D Directions hearing see Hearing Discontinuance appeal proceedings …. 8.13 issues arising from costs, presumption of …. 8.11 leave, obtaining …. 8.10 legal effect of discontinuance …. 8.12 notice of …. 8.9, 8.13 of an appeal …. 11.20

Discovery of documents benefits and limitations of …. 6.23 discovery procedures, circumventing …. 6.39 documents, list of …. 6.28 electronic …. 6.30 ‘Fast Track’ …. 6.26 non-party, from …. 6.31 non-standard …. 6.27 particular …. 6.29 production for inspection by parties …. 6.32 public interest and privilege, claims of …. 6.25 standard discovery under the new regime …. 6.24

Disputes alternative dispute resolution arbitration …. 8.4 international arbitration …. 8.5

mediation …. 8.3 referee, referral to …. 8.6 Rules and FCA Act, under …. 8.2 dispute resolution see also Civil Dispute Resolution Act 2011 (Cth) case management, and …. 2.32 hearing of, efficient …. 9.1 offers of compromise see Offers of compromise resolution without trial …. 8.1

E Enforcement see also Orders; Judgment expense of …. 10.12 processes …. 10.11 stay further proceedings, of …. 10.14 judgment or order, of …. 10.13

Evidence affidavit and other …. 9.18, see also Affidavits application to re-open case …. 9.19 appeals, in see Appeal expert court …. 9.16 witnesses, engagement of …. 9.17 fresh evidence, appeals …. 11.14 witnesses …. 9.15 witness statement …. 6.22

F

Federal Circuit Court concurrent jurisdiction …. 1.2 transfer of proceedings from …. 7.11 transfer of proceedings to AAT appeal transfers …. 7.10 application for …. 7.6 associated matters …. 7.9 costs implications …. 7.8 discretionary factors …. 7.7

Federal Court of Australia (the Court) case management system …. 1.1 approach, multi-faceted …. 1.10 electronic court file …. 1.15 ‘Fast Track’ system …. 1.14 individual docket system (IDS) …. 1.11 National Court Framework (NCF) …. 1.13 overarching purpose of civil practice and procedure provisions …. 1.4–1.7 civil proceedings see Civil proceedings decisions compliance with …. 10.1 review of see Reviews default orders discretionary power see Judgment documents see Court documents individual docket system (IDS) …. 1.11 managerial judging …. 1.12

justice, delivery of …. 1.3 nature and jurisdiction …. 1.2 orders see Orders Registrar formal review …. 11.24 powers of …. 11.23 Rules of …. 1.17 powers under …. 1.18–1.20

Federal Court of Australia Act 1976 (Cth) (FCA Act) overview …. 1.21 Part VB of …. 1.4 Civil Dispute Resolution Act, and …. 1.9 duties of parties and lawyers under s 37N …. 1.6 overarching purpose, s 37M …. 1.5, 1.16 powers under …. 1.22 case management provisions, other …. 1.24 s 37P …. 1.23

Federal Court Rules 2011 (Cth) (Rules) costs orders under see Costs Court’s powers under …. 1.20 interrogatories, administering under see Interrogatories Part 7 of …. 2.1 summary applications under see Judgment vexations applications under see Proceedings

Fees deferral of payment of …. 5.28 exemptions …. 5.27

filing …. 5.24 generally …. 5.23 hearing …. 9.8 other …. 5.25 refund of …. 5.29 Regulations, the …. 5.22 setting down …. 9.8 users, approved …. 5.26

H Hearing absence, from appeal hearing …. 11.18 absences and non-appearances by parties …. 9.14 dates interlocutory applications see Interlocutory applications directions directions, orders and timetables compliance …. 6.3 electronic aids to litigation …. 6.4 expectations of …. 6.2 Fast Track …. 6.5 efficient …. 9.1 failure to attend …. 8.16 fees …. 9.8 list of authorities, filing …. 9.12 periods …. 9.9 re-open case, application to …. 9.19 technology in courtroom, use of …. 9.13

I Interlocutory applications Civil Dispute Resolution Act, compliance …. 6.14 form and service, requirements as to …. 6.11 hearing dates, urgent and other …. 6.12 taxations …. 12.23 unnecessary applications, avoiding …. 6.13

Interrogatories administering under the Rules …. 6.40 answering, objections to …. 6.42 futility of …. 6.41

J Judge disqualification …. 9.7

Judgment contempt see Contempt default discretionary power, Court’s …. 8.17 failure to attend hearing and act with due diligence …. 8.16 orders …. 8.15 delivery of …. 10.3 enforcement see Enforcement entry of …. 10.5 foreign setting aside registration of …. 10.10 interest …. 10.4

slip rule …. 10.9 stay of, application for …. 10.13 summary appeal, leave to …. 8.23 application under the Rules …. 8.22 final or interlocutory decision …. 8.26 ‘no reasonable prospect of success’ …. 8.25 s 31A …. 8.24 varying and setting aside …. 10.6 after entry of orders …. 10.8 before entry of orders …. 10.7

L Litigation overarching purpose of …. 1.1, 1.4–1.7 streamlining …. 6.1 see also Directions hearing

O Offers of compromise cost implications …. 8.8 making and accepting offer to settle proceedings …. 8.7

Orders see also Enforcement; Judgment; Pre-litigation orders consent …. 10.2 contempt see Contempt costs see Costs default see Judgment entry of …. 10.5

slip rule …. 10.9 stay of order, application for …. 10.13 varying and setting aside …. 10.6 after entry of orders …. 10.8 before entry of orders …. 10.7

Originating application amendment of …. 3.12–3.13 certification …. 3.4 process and relief claimed …. 3.3 service of …. 3.11 time-barred, amendment of …. 3.12, 6.19

Overarching purpose broader context of …. 1.7 Civil Dispute Resolution Act and …. 1.9 civil practice and procedure provisions …. 1.16, 1.17 Pt VB of the FCA Act …. 1.4 s 37M …. 1.5 s 37N …. 1.6

P Pleadings accompanying originating application …. 3.5–3.6 amendment of originating application …. 3.12–3.13 application amend, to …. 6.18 strike out, to …. 6.20 defence …. 6.7

formal requirements …. 6.16 importance of …. 6.15 particulars …. 6.17 reply …. 6.15, 6.16 statement of claim …. 3.5, 3.6, 6.15, 6.16 statement of cross-claim …. 6.15, 6.16 time-barred causes of action …. 6.19

Pre-litigation orders approval of agreement — persons under a legal incapacity application, form of …. 2.7–2.8 compromise or settlement prior to proceedings …. 2.6 case management, and dispute resolution see Disputes overarching purpose …. 2.31 freezing orders application for …. 2.19–2.20 costs, security and undertakings …. 2.22 issues, additional …. 2.23 nature of …. 2.18 tests to be satisfied under rule 7.35 …. 2.21 injunctions, preservation of property and receivers parties …. 2.3 required documents …. 2.4 undertaking to the Court …. 2.5 urgent orders …. 2.2 preliminary discovery costs …. 2.17

documents …. 2.15–2.16 orders for …. 2.9 prospective respondent …. 2.10–2.14 search orders application, form of …. 2.25 granting of …. 2.26 independent lawyer …. 2.28 nature of …. 2.24 search party …. 2.27 service of …. 2.30 undertakings, costs and security …. 2.29

Proceedings see also Hearing; Trial admissions see Admissions commencement of …. 3.1–3.4 consolidation of …. 9.2 constitutional matter, notice of …. 4.14 Court, powers of …. 4.16 lack of, effect of …. 4.16 service …. 4.15 cross-vesting legislation see Cross-vesting legislation defence see Pleadings for originating application directions hearing see Hearing discontinuance see Discontinuance disputes see Disputes documents affidavit see Affidavit

required for originating application …. 3.5 statement of claim …. 3.6 etiquette …. 6.46 officer of the Court, communicating as …. 6.45 genuine steps statement applicant’s statement …. 3.8 excluded proceedings …. 3.9 failure to file …. 3.10 interlocutory applications see Interlocutory applications interrogatories see Interrogatories legal representation corporations …. 4.6 lawyers …. 4.2–4.4 legal assistance, Court referral for …. 4.7 non-lawyers …. 4.5 notice to produce dealing with …. 6.38 discovery procedures, circumventing …. 6.39 offers of compromise see Offers of compromise originating application amendment of …. 3.12–3.13 certification …. 3.4 process and relief claimed …. 3.3 service of …. 3.11 parties description of …. 4.8 improper description …. 4.11 intervener and amicus curiae …. 4.13

joinder of …. 4.9 legal incapacity …. 4.12 tribunals, joinder of …. 4.10 persons involved in …. 4.1 place for, choice of …. 7.1 ‘proper place, definition …. 7.2 pleadings see Pleadings preliminary questions …. 8.27–8.28 requirements for starting …. 3.1 respondent’s case see Respondent’s case special classes of, procedures for …. 3.2 statement of claim see Pleadings stay of …. 9.2, 10.14 subpoenas see Subpoena summary judgment see Judgment transfer of circumstances for ordering …. 7.3 costs of transfer application …. 7.4 cross-vesting legislation see Cross-vesting legislation Family Court, to …. 7.5 Federal Circuit Court, from see Federal Circuit Court Federal Circuit Court, to see Federal Circuit Court Registry transfers …. 7.2 vexatious applications under the Rules …. 8.18 definition …. 8.18 FCA Act, under the …. 8.19

order …. 8.21–8.20 withdrawal of pleadings …. 8.14

R Registrar powers of, …. 1.19, 11.23 review of decision …. 11.24 review of decision, taxing officer of …. 12.25 see also Taxation

Respondent’s case address for service, notice of …. 6.6 cross-claims …. 6.8–6.9 amendment of defence …. 6.7 genuine steps statement …. 6.10 submitting notice …. 6.6

Reviews case management of …. 11.1 formal review …. 11.24 Registrar’s powers …. 11.23

S Subpoena production of documents, issuing for …. 6.33 compliance costs and expenses …. 6.37 compliance failure …. 6.36 discovery procedures, circumventing …. 6.39

leave is necessary …. 6.34 setting aside a subpoena …. 6.35 witnesses …. 9.15

T Taxation bill of costs …. 12.17 indemnity costs …. 12.18 short form bills …. 12.19 estimates and objections …. 12.20–12.21 taxations …. 12.22 certificate of taxation and enforcement …. 12.23 interlocutory applications …. 12.22 taxing officer’s decision, review of …. 12.25

Technology aids to litigation …. 6.4 electronic court file …. 1.15, 5.15 electronic filing, rules on …. 5.16 discovery …. 6.30 filing in courtroom …. 5.14 use in courtroom …. 9.13

Trial adjournments …. 9.5 application to re-open case …. 9.19 directions for …. 9.10 expedition of …. 9.6 judge disqualification see Judge

jury …. 9.4 separate, applications for …. 8.27, 9.3 discretion, exercise of …. 8.28 setting down and hearing fees …. 9.8 written submissions, further …. 9.11