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Judgment brings clarity to Federal Court Rules for direct access barristers

Tue Aug 21 2018

A decision handed down today in the matter of CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1241 has clarified that barristers acting on a direct access brief are not captured by rule 4.03 of the Federal Court Rules 2011 (Cth) such that they would be required to file a Notice of Acting with the Court in conflict with their professional obligations under rule 13 of the Barristers’ Rules.

Charlesworth J held that r 4.03, construed in its proper context, does not impose an obligation on direct access barristers to file and serve a notice of acting in the form of Form 4. The decision is available here.

In the course of construing r 4.03 in accordance with the Federal Court of Australia Act 1976 (Cth) s 37M, her Honour considered some of the challenges that courts may face in dealing with case management issues arising in direct access matters. Her Honour emphasised at [96]-[100] of her judgment the obligations imposed by r 2.16 of the Federal Court Rules 2011 (Cth) that where a document is prepared by a lawyer (including by the formulation of the grounds of appeal), the lawyer’s name must be identified in the footer of the document, irrespective of the capacity in which the lawyer is engaged.

On the Court’s invitation, the New South Wales Bar Association appeared as Intervenor in these proceedings. The President of the Bar Association, Arthur Moses SC wishes to thank Counsel who appeared on the Association’s behalf, Angus Stewart SC and Dr Shipra Chordia, and instructing solicitor Elizabeth Pearson.

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