InBrief

The Federal Court of Australia is in the process of implementing its National Court Framework (NCF) reforms. A key component of the reforms is a review of the Court’s practice documents to ensure nationally consistent and simplified practice.

Under the NCF, the Court’s practice documents have been consolidated and refined from 60 practice documents to 26 new national practice notes.

The Court has advised that the new national practice notes have been issued today, Tuesday, 25 October 2016. The practice notes will take effect from today, and to the extent practicable, apply to proceedings whether filed before, or after, today's date. Although these practice notes will be effective immediately, the Court is aware that, depending on the nature of each case and what stage it may be at, a period of adjustment will be necessary. To that end, the Court will take a flexible and common sense approach to any difficulties that may arise with any new procedures being applied in any existing cases.

All previous practice documents are revoked as of today. There will no longer be any administrative State-based notices.

The practice notes are now available on the Court’s website. In addition, the Court has developed guides and information to assist practitioners and Court users with the practice note changes, including a reference table that cross-references the old practice notes and where related content can be found in the new practice notes. This information is also now available on the Court's website.

The new practice notes fall into 3 categories:

1. Central Practice Note: The Central Practice Note is the core practice note for Court users and addresses the guiding NCF case management principles applicable to all NPAs. One of its main aims is to ensure that case management is not process-driven or prescriptive, but flexible - with parties and practitioners being encouraged and expected to take a common-sense and cooperative approach to litigation to reduce its time and cost.

2. National Practice Area (NPA) Practice Notes: Interlocking with the Central Practice Note are the new practice notes in each NPA. Amongst other things, the NPA Practice Notes raise NPA-specific case management principles and can allow for expedited or truncated hearing processes and tailored or concise pleading and other processes. Where appropriate, parties may also adopt the processes set out in one NPA practice note for use in a different NPA. For example, the flexible and streamlined procedures for the commencement of proceedings, use of concise statements and tailored discovery and evidence procedures set out in the Commercial and Corporations NPA Practice Note may be used in other NPAs.

3. General Practice Notes (GPNs): Also interlocking with the Central Practice Note and NPA Practice Notes are 17 new or amended GPNs. These practice notes are intended to apply to all or many cases across NPAs, or otherwise address important administrative matters. A number of GPNs set out new or more comprehensive arrangements in a variety of key areas, including the following:

• an updated and refined class actions practice note which allows for Case Management Judges and Trial Judges in certain proceedings and, where appropriate, the allocation of a Class Actions Registrar;

• further guidance on expert evidence, including concurrent evidence procedures;

• guidance in respect of the preparation and use of survey evidence;

• a new costs practice note with an emphasis on the use of lump-sum costs orders soon after final hearings and the utilisation of a consolidated costs order (rather than multiple competing costs orders). Guides are provided on these procedures and a clearer and more effective Form 127 Bill of Costs has also been designed;

• a new subpoena-related practice note ensuring a nationally consistent mechanism for the issuing of subpoenas; and

• a practice note to assist with and make nationally consistent the Court’s approach to requests for access to Court documents.

GPNs – Consultation Process

The GPNs will be issued at the same time as the Central Practice Note and NPA Practice Notes, but each of them (excluding the Class Actions Practice Note, which has undergone extensive external consultation) will be issued on a “12-month review” basis to allow for a comprehensive period of external consultation. The practice notes are open for consultation from today until October 2017 and any appropriate amendments will be made during or following the review period.

The Court is seeking your feedback on the content of the general practice notes. Please provide your feedback addressed to the Deputy National Operations Registrar, David Pringle, via email to practice.notes@fedcourt.gov.au including a short summary of key issues you wish to bring to the Court’s attention and relevant contact details. The Court will consider all feedback and acknowledge receipt of all feedback provided.

The Court’s website

To support the implementation of the NCF and the introduction of the new practice notes, the Court’s website has been updated and enhanced to provide dedicated “homepages” for each NPA and other key areas of law, such as class actions and appeals. The NPA and other webpages are a critical resource tool for practitioners and other Court users. All NPA-related webpages contain not only a summary of the NPA and sub-areas, but key NPA-specific resources such as relevant forms and rules, legislation, practice notes, latest judgments and speeches. Each NPA webpage has been tailored to the requirements of that NPA, by including additional or different information as required.

The enhanced website has been updated to include the above information.

Further reforms - Appeals

The Court has made considerable changes to the management of appeals and related applications and is in the process of preparing comprehensive practice notes outlining the management of, and requirements relating to, such appeals and related applications. In the interim, the Court has revoked Practice Note APP 1 - Listings for Full Court and appellate sittings and partially amended and reissued Practice Note APP 2 - Content of appeal books and preparation for hearing as of today and provided updated information regarding appeals and related applications on the Court’s website.

Forms and eLodgment

A number of new forms have been created and some current forms amended as part of the development of the new national practice notes. The Court’s eLodgment system is in the process of being updated to allow these new forms and documents to be lodged, using their correct titles, via eLodgment. The changes to eLodgment are expected to be implemented in late November 2016. In the interim, the new forms and documents can be lodged by using the generic non-prescribed lodgement types. Detailed information on the new forms is now available on the Court’s website .

Update on NPAs

A new NPA titled “Other Federal Jurisdiction” has been created in order for the true breadth of the Court’s jurisdiction to be captured. The 8 subject-matter NPAs do not exhaust the jurisdiction of the Court. They are the main bodies of work of the Court, however, many other matters may be brought in the Court that do not fit into these NPAs. This 9th NPA is designed to encompass cases over which the Court has jurisdiction but which do not readily fit into any of the other existing NPAs, such as cases involving negligence claims, defamation claims, or cases involving the Court acting as a Court of disputed returns.

The name and scope of the Criminal Cartel Trials NPA has been reviewed and adjusted to reflect the breadth of federal criminal law jurisdiction vested in the Court. The NPA will now encapsulate any criminal-related proceeding, not merely cartel-related proceedings (eg. criminal copyright appeals etc). Accordingly, the name of the NPA has been adjusted from “Criminal Cartel-Trials” to “Federal Crime and Related Proceedings”.

Parties are able to select these NPAs in eLodgment when commencing a matter in the Federal Court. Attached is an NCF update that provides an outline of these reforms and a reference table for the new practice notes.