Part 3: The Work of the Court in 2014-2015
Federal Court of Australia Annual Report 2014-2015
Introduction
The Federal Court has one key outcome identified for its work, which is, through its jurisdiction, to apply and uphold the rule of law to deliver remedies and enforce rights and, in so doing, contribute to the social and economic development and wellbeing of all Australians.
This Part of the Annual Report covers the Court's performance against this objective. In particular, it reports extensively on the Court's workload during the year, as well as its management of cases and performance against its stated workload goals. Aspects of the work undertaken by the Court to improve access to the Court for its users, including changes to its practices and procedures, are discussed. Information about the Court's work with overseas courts is also covered.
Management of cases and deciding disputes
The following examines the Court's jurisdiction, management of cases, workload and use of assisted dispute resolution.
The Court's jurisdiction
The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. It also has jurisdiction to hear and determine any matter arising under the Constitution through the operation of s 39B of the Judiciary Act 1903.
Central to the Court's civil jurisdiction is s 39B (1A) (c) of the Judiciary Act. This jurisdiction includes cases created by federal statute, and extends to matter in which a federal issue is properly raised as part of a claim or of a defence and to matters where the subject matter in dispute owes its existence to a federal statute.
Cases arising under Part IV (restrictive trade practices) and Schedule 2 (the Australian Consumer Law) of the Competition and Consumer Act 2010 constitute a significant part of the workload of the Court. These cases often raise important public interest issues involving such matters as mergers, misuse of market power, exclusive dealing or false advertising. See Figure A5.8 on page 148 for comparative statistics regarding consumer law matters. Since late 2009 the Court has also had jurisdiction in relation to indictable offences for serious cartel conduct.
The Court has jurisdiction under the Judiciary Act to hear applications for judicial review of decisions by officers of the Commonwealth. Many cases also arise under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), which provides for judicial review of most administrative decisions made under Commonwealth enactments on grounds relating to the legality, rather than the merits, of the decision. The Court also hears appeals on questions of law from the Administrative Appeals Tribunal.
The Court hears taxation matters on appeal from the Administrative Appeals Tribunal. It also exercises a first instance jurisdiction to hear objections to decisions made by the Commissioner of Taxation. Figure A5.13 on page 153 shows the taxation matters filed over the last five years.
The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trademarks, designs and circuit layouts). All appeals in these cases, including appeals from the Supreme Courts, are to a full Federal Court. Figure A5.14 on page 154 shows the intellectual property matters filed over the last five years.
Another significant part of the Court's jurisdiction derives from the Native Title Act 1993. The Court has jurisdiction to hear and determine native title determination applications and to be responsible for their mediation, to hear and determine revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Court also hears appeals from the National Native Title Tribunal (NNTT) and matters filed under the ADJR Act involving native title. The Court's native title jurisdiction is discussed on page 30. Figure A5.11 on page 151 shows native title matters filed over the last five years.
A further important area of jurisdiction for the Court derives from the Admiralty Act 1988. The Court has concurrent jurisdiction with the Supreme Courts of the States and Territories to hear maritime claims under this Act. Ships coming into Australian waters may be arrested for the purpose of providing security for money claimed from ship owners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay the claims. During the reporting year the Court's Admiralty Marshals made six arrests. See Figure A5.10 on page 150 for a comparison of Admiralty Act matters filed in the past five years.
The Court's jurisdiction under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 covers a diversity of matters ranging from the appointment of provisional liquidators and the winding up of companies, to applications for orders in relation to fundraising, corporate management and misconduct by company officers. The jurisdiction is exercised concurrently with the Supreme Courts of the States and Territories. See Figure A5.7 on page 147 for a comparison of corporations matters filed in the last five years.
The Court exercises jurisdiction under the Bankruptcy Act 1966. It has power to make sequestration (bankruptcy) orders against persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. The Court's jurisdiction includes matters arising from the administration of bankrupt estates. See Figure A5.6 on page 146 for a comparison of bankruptcy matters filed in the last five years.
The Court has jurisdiction under the Fair Work Act 2009, Fair Work (Registered Organisations) Act 2009 and related industrial legislation (including matters to be determined under the Workplace Relations Act 1996 in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). Workplace relations and Fair Work matters filed over the last five years are shown in Figure A5.12 on page 152.
The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court, and from the Federal Circuit Court (FCC) in non-family law matters and from other courts exercising certain federal jurisdiction. In recent years a significant component of its appellate work has involved appeals from the FCC concerning decisions under the Migration Act 1958. The Court's migration jurisdiction is discussed later in this Part on page 29. The Court also exercises general appellate jurisdiction in criminal and civil matters on appeal from the Supreme Court of Norfolk Island. The Court's appellate jurisdiction is discussed on page 28. Figure A5.15 on page 155 shows the appeals filed in the Court since 2010–11.
This summary refers only to some of the principal areas of the Court's work. Statutes under which the Court exercises jurisdiction in addition to the jurisdiction vested under the Constitution through s 39B of the Judiciary Act are listed on the Court's website at www.fedcourt.gov.au.
Changes to the Court's jurisdiction in 2014–15
The Court's jurisdiction during the year was enlarged or otherwise affected by a number of statutes including:
- Albury-Wodonga Development Corporation (Abolition) Act 2014
- Australian River Co. Limited Act 2015
- Biosecurity Act 2015
- Copyright Amendment (Online Infringement) Act 2015
- Enhancing Online Safety for Children Act 2015
- Health Workforce Australia (Abolition) Act 2014
- Intellectual Property Laws Amendment Act 2015
- Law Enforcement Legislation Amendment (Powers) Act 2015
- Private Health Insurance (Prudential Supervision) Act 2015
- Public Governance and Resources Legislation Amendment Act (No. 1) 2015
- Regulatory Powers (Standard Provisions) Act 2014
- Tribunals Amalgamation Act 2015
Amendments to the Federal Court of Australia Act
During the reporting year there was one amendment to the Federal Court Act made by the Federal Courts Legislation Amendment Act 2015, which came into effect on 26 February 2015, and one amendment by the Acts and Instruments (Framework Reform) Act 2015, which will come into effect on 5 March 2016 or earlier by Proclamation.
The Federal Courts Legislation Amendment Act inserted section 55A to provide police officers and court sheriffs with express power to use such reasonable force as is necessary and reasonable in the circumstances to enter premises to execute an arrest warrant. As a result it removes doubt about the use of such force.
The section includes a number of limitations and safeguards:
- subsection 55A(2) requires that force to enter premises can only be used if the police officer or sheriff reasonably believes the arrestee is on the premises;
- subsection 55A(3) prevents the power being used to enter a dwelling house between 9.00 pm one day and 6.00 am the next day unless the police officer or sheriff reasonably believes that it would not be practicable to make the arrest there or elsewhere at another time;
- subsection 55A(4)(a) – (c) requires that, in the course of arresting the arrestee, the police officer or sheriff must not use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest or prevent the arrestee's escape; and the police officer or sheriff must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the police officer or sheriff reasonably believes that doing that thing is necessary to protect the life or prevent serious injury to another person (including the police officer or sheriff); and
- subsections 55A(5) – (7) require that the police officer or sheriff must inform the arrestee of the grounds of arrest at the time of the arrest unless, in the circumstances, the arrestee should know the substance of the grounds for the arrest or otherwise the arrestee's actions make it impracticable for the police officer or sheriff to inform the arrestee of those grounds.
In addition, the Amendment Act made the following technical amendments to the Act for clarity and removal of doubt, as well as consequential to the passage of the Public Interest Disclosure Act 2013 (but overlooked in the consequential amendments which were made at that time):
- subsection 24(1AA): by inserting references to paragraphs 24(1)(d) and (e) to expand the scope of the subsection so that appeals cannot be brought from a judgment of the FCC, if the judgment is a minor procedural decision;
- paragraphs 24(1AA)(b) and (d): by replacing these with a single new paragraph 24(1AA)(d) which consolidates and clarifies that there is no right to appeal to the Court from decisions granting or refusing to grant the relevant interlocutory application;
- paragraph 24(1D)(ca): by inserting a new paragraph to ensure that leave to appeal must be granted before an appeal in relation to a summary judgment of the FCC under section 17A of the Federal Circuit Court of Australia Act 1999 can be brought;
- paragraphs 33(4A)(b) and (d): by replacing these with a single new paragraph 33(4A)(b) which consolidates and clarifies that there is no right to appeal to the High Court from decisions granting or refusing to grant the relevant interlocutory applications;
- paragraphs 33(4B)(b) to (h): by replacing these with new paragraphs 33(4B)(c) and (d) which consolidate and clarify that there is no right to appeal to the High Court from decisions granting or refusing to grant the relevant interlocutory applications;
- subsection 43(1): by replacing the subsection with a new subsection which includes a reference to the costs limitations in section 18 of the Public Interest Disclosure Act and to improve readability.
The Acts and Instruments (Framework Reform) Act will, on commencement, rename the existing Legislative Instruments Act 2003 as the Legislation Act 2003. As a consequence the Framework Reform Act will at the same time amend section 59 of the Federal Court of Australia Act to update references to the renamed Act.
Fee regulations
By virtue of the biennial adjustment provision (section 2.20) of the Federal Court and Federal Circuit Court Regulation 2012, most filing and other fees were increased from 1 July 2014 by 5.5%. Otherwise the operation of the Regulation remained unchanged during the reporting period.
The Regulation was however amended, with effect from 1 July 2015, by the Federal Courts Legislation Amendment (Fees) Regulation 2015 and the Tribunals Legislation Amendment (Amalgamation) Regulation 2015 to increase most fees by 10%, restructure the categories of fees for all but some bankruptcy filings and examinations, to add some additional types of applications on which fees are not payable and to correctly refer to a renamed Division of the Administrative Appeals Tribunal.
The increased fees will apply to any document filed in the Court on or after 1 July 2015 but the new setting-down, hearing and mediation fees will only apply to hearings and mediations fixed on or after that date. Hearings and mediations which had already been or were fixed up to and including 30 June 2015 will pay the rates for setting-down, hearing and mediation fees applicable up to that date even if the hearing or mediation does not take place until on or after 1 July 2015.
Federal Court Rules
The judges are responsible for making the Rules of Court under the Federal Court Act. The Rules provide the procedural framework within which matters are commenced and conducted in the Court. The Rules of Court are made as Commonwealth Statutory Legislative Instruments.
The Rules are kept under review. New and amending rules are made to ensure that the Court's procedures are current and responsive to the needs of modern litigation. They also provide the framework for new jurisdiction conferred upon the Court. A review of the Rules is often undertaken as a consequence of changes to the Court's practice and procedure described elsewhere in this report. Proposed amendments are discussed with the Law Council of Australia and other relevant organisations as considered appropriate.
There were no changes to the Federal Court Rules during the reporting year.
Approved forms
Approved forms are available on the Court's website. Any document that is filed in a proceeding in the Court must be in accordance with any approved form (see rule 2.11). The Chief Justice may approve a form for the purposes of the Federal Court Rules (see sub rule 1.52(2)).
Six of the Court's approved forms were amended by the Chief Justice during the reporting year:
Each of the existing approved forms for a subpoena to produce documents and a subpoena to give evidence and produce documents, namely:
- Form 43B Subpoena to produce documents
- Form 43C Subpoena to give evidence and produce documents
- Form 55B Subpoena to produce documents (International Arbitration Act 1974)
- Form 55C Subpoena to give evidence and produce documents (International Arbitration Act 1974)
- Form 98B Subpoena to produce documents (New Zealand)
- Form 98C Subpoena to give evidence and produce documents (New Zealand)
were replaced.
The replacement approved forms were amended to include at note 9A(b) information that where the issuing party has consented for a copy, instead of the original of any document that the subpoena requires be produced, that copy may be in any of the following electronic formats (all of which are supported by the Electronic Court File):
.doc and .docx – Microsoft Word documents
.pdf – Adobe Acrobat documents
.xls and .xlsx – Microsoft Excel spreadsheets
.jpg – image files
.rtf – rich text format
.gif – graphics interchange format
.tif – tagged image format'.
Practice Notes
Practice Notes supplement the procedures set out in the Rules of Court and are issued by the Chief Justice upon the advice of the judges of the Court under rules 2.11, 2.12 and 2.21 of the Federal Court Rules and the Court's inherent power to control its own processes.
During the reporting year the Chief Justice issued:
- the following revised Practice Notes:
- Practice Note CM 3 – Consent Orders in proceedings Involving a Federal Tribunal
- 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 586A and 596B Corporations Act 2001
- Practice Note GEN 1 – Court Sittings and Registry Hours
- Practice Note GEN 2 – Documents
- Practice Note GEN 3 – Use of Court Forms
- one new Practice Note:
- Practice Note CM 23 – Electronic Court File and preparation and lodgment of documents
- one new interim Practice Note:
- Practice Note NCF1 – National Court Framework and Case Management
In addition, Administrative Notices can be issued to provide guidance on arrangements such as for duty judges and listings.
During the reporting year, the Chief Justice issued National Administrative Notice: NAT 1 which outlined the new case management approach and allocations system that was rolled out through the National Court Framework from February 2015. It also revoked, wholly or in part, a number of existing Registry Administrative Notices.
Other rules
During the reporting year amendments were made to the Federal Court (Bankruptcy) Rules 2005 by the Federal Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2015 and to the Federal Court (Corporations) Rules 2000 by the Federal Court (Corporations) Amendment (Examination Summons) Rules 2015. These amendments commenced on 2 May 2015.
The Federal Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules amended:
- rule 6.13 to replicate, in an electronic environment, the requirement that an affidavit supporting an application for the issue of a summons for the examination of an examinable person under section 81 of the Bankruptcy Act 1966 to be filed in a sealed envelope; and
- paragraph 5 of the form of Creditor's Petition (Form 6) to update the name of the regulator agency under the Bankruptcy Act to 'Australian Financial Security Authority' reflecting a change made in late 2013.
Figure 3.1 – Filings to 30 June 2015 Federal Court of Australia (FCA) and Federal Circuit Court (FCC)
Note: Click on chart to toggle accessible format
The Federal Court (Corporations) Amendment (Examination Summons) Rules amended rule 11.3 to replicate, in an electronic environment, the requirement that an affidavit supporting an application for the issue of a summons for the examination of officers and provisional liquidators of a corporation which is in administration or has been wound up and others with relevant knowledge of the affairs of such a corporation under sections 596A and 596B of the Corporations Act 2000 be filed in a sealed envelope.
Workload of the Federal Court and Federal Circuit Court
The Court has concurrent jurisdiction with the Federal Circuit Court (FCC) in a number of areas of general federal law including bankruptcy, human rights, workplace relations and migration matters. The registries of the Federal Court provide registry services for the FCC in its general federal law jurisdiction.
Figure 3.1 above shows a slight decrease in the combined filings of the two courts since 2013–14.
In 2014–15, 13 317 matters were filed in the two courts. There is an ongoing trend of a decrease in FCA filings related in part to existing fee arrangements. This is expected to change with the introduction of new fee arrangements on 1 July 2015. The growth in FCC filings still had an impact on the Federal Court's registries, which process the documents filed for both courts and provide the administrative support for each matter to be heard and determined by the relevant court.
Case flow management of the Court's jurisdiction
As noted in Part 2, the Court has adopted as one of its key case flow management principles the establishment of time goals for the disposition of cases and the delivery of reserved judgments. The time goals are supported by the careful management of cases through the Court's Individual Docket System, and the implementation of practices and procedures designed to assist with the efficient disposition of cases according to law. This will be further enhanced by the reforms of the National Court Framework.
Under the Individual Docket System, a matter will usually stay with the same judge from commencement until disposition. This means a judge has greater familiarity with each case and leads to the more efficient management of the proceeding.
Disposition of matters other than native title
In 1999–2000 the Court set a goal of eighteen months from commencement as the period within which it should dispose of at least eighty-five per cent of its cases (excluding native title cases).
The time goal was set having regard to the growing number of long, complex and difficult cases, the impact of native title cases on the Court's workload, and a decrease in the number of less complex matters. It is reviewed regularly by the Court in relation to workload and available resources. The Court's ability to continue to meet its disposition targets is dependent upon the timely replacement of judges.
Notwithstanding the time goal, the Court expects that most cases will be disposed of well within the eighteen-month period, with only particularly large and/or difficult cases requiring more time. Indeed, many cases are urgent and need to be disposed of quickly after commencement. The Court's practice and procedure facilitates early disposition when necessary.
During the five-year period from 1 July 2010 to 30 June 2015, 92.4 per cent of cases (excluding native title matters) were completed in less than eighteen months, 87.7 per cent in less than twelve months and 76.4 per cent in less than six months (see Figure A5.4 on page 145). Figure A5.5 on page 145 shows the percentage of cases (excluding native title matters) completed within eighteen months over the last five reporting years. The figure shows that in 2014–15, over ninety-two per cent of cases were completed within eighteen months.
Delivery of judgments
In the reporting period, 1530 judgments were delivered. Of these, 565 judgments were delivered in appeals (both single judge and full court) and 965 in first instance cases. These figures include both written judgments and judgments delivered orally on the day of the hearing, immediately after the completion of evidence and submissions.
The nature of the Court's workload means that a substantial proportion of the matters coming before the Court will go to trial and the decision of the trial judge will be reserved at the conclusion of the trial. The judgment is delivered at a later date and is often referred to as a 'reserved judgment'. The nature of the Court's appellate work also means a substantial proportion of appeals require reserved judgments.
Appendix 7 on page 167 includes a summary of decisions of interest delivered during the year and illustrates the Court's varied jurisdiction.
Workload of the Court in its original jurisdiction
Incoming work
In the reporting year, 3445 cases were commenced in, or transferred to, the Court's original jurisdiction. See Table A5.2 on page 140.
Matters transferred to and from the Court
Matters may be remitted or transferred to the Court under:
- Judiciary Act 1903, s 44
- Cross-vesting Scheme Acts
- Corporations Act 2001
- Federal Circuit Court of Australia Act 1999
During the reporting year, 69 matters were remitted or transferred to the Court:
- 8 from the High Court
- 15 from the Federal Circuit Court
- 20 from the Supreme Courts
- 26 from other courts
Matters may be transferred from the Court under:
- Federal Court of Australia (Consequential Provisions) Act 1976
- Jurisdiction of Courts (Cross-vesting) Act 1987
- Administrative Decisions (Judicial Review) Act 1977
- Bankruptcy Act 1966
- Corporations Act 2001
- Administrative Appeals Tribunal Act 1975
During 2014–15, five matters were transferred from the Court:
- three to the Federal Circuit Court
- two to Supreme Courts
- none to other courts
Matters completed
Figure A5.2 on page 144 shows a comparison of the number of matters commenced in the Court's original jurisdiction and the number completed. The number of matters completed during the reporting year was 3916.
Current matters
The total number of current matters in the Court's original jurisdiction at the end of the reporting year was 2862 (see Table A5.1).
Age of pending workload
The comparative age of matters pending in the Court's original jurisdiction (against all major causes of action, other than native title matters) at 30 June 2015 is set out in Table 3.1 below.
Native title matters are not included in Table 3.1 because of their complexity, the role of the National Native Title Tribunal and the need to acknowledge regional priorities.
| Cause of Action | UNDER 6 MONTHS | 6–12 MONTHS | 12–18 MONTHS | 18–24 MONTHS | OVER 24 MONTHS | SUB-TOTAL |
|---|---|---|---|---|---|---|
| Administrative Law | 65 | 17 | 5 | 3 | 8 | 98 |
| Admiralty | 7 | 3 | 3 | 7 | 10 | 30 |
| Bankruptcy | 53 | 26 | 18 | 14 | 14 | 125 |
| Competition Law | 0 | 6 | 2 | 2 | 7 | 17 |
| Trade Practices | 34 | 47 | 25 | 16 | 70 | 192 |
| Corporations | 622 | 120 | 40 | 32 | 63 | 877 |
| Human Rights | 5 | 10 | 2 | 4 | 6 | 27 |
| Workplace Relations | 5 | 1 | 0 | 0 | 3 | 9 |
| Intellectual Property | 66 | 32 | 27 | 12 | 48 | 185 |
| Migration | 16 | 10 | 2 | 0 | 0 | 28 |
| Miscellaneous | 61 | 26 | 11 | 6 | 12 | 116 |
| Taxation | 39 | 21 | 22 | 18 | 51 | 151 |
| Fair Work | 54 | 59 | 19 | 11 | 17 | 160 |
| Total | 1027 | 378 | 176 | 125 | 309 | 2015 |
| % of Total | 51.0% | 18.8% | 8.7% | 6.2% | 15.3% | 100.0% |
| Running Total | 1027 | 1405 | 1581 | 1706 | 2015 | |
| Running % | 51.0% | 69.8% | 78.5% | 84.7% | 100.0% |
Table 3.1 shows that at 30 June 2015 there were 309 first instance matters over eighteen months old compared with 132 in 2014 (not including native title matters). The increase in matters in this category is due to the number of large and complex taxation and intellectual property matters. The length of time it takes to finalise these matters is indicative of their complexity both for the parties in preparing the matters for hearing and the judge in hearing and deciding the case. Reforms introduced under the National Court Framework will make further inroads to reducing the pending caseload.
| UNDER 6 MONTHS | 6–12 MONTHS | 12–18 MONTHS | 18–24 MONTHS | OVER 24 MONTHS | SUB-TOTAL | |
|---|---|---|---|---|---|---|
| Native Title Action | 29 | 19 | 12 | 24 | 289 | 373 |
| % of Total | 7.8% | 5.1% | 3.2% | 6.4% | 77.5% | 100.0% |
| Running Total | 29 | 48 | 60 | 84 | 373 | |
| Running % | 7.8% | 12.9% | 16.1% | 22.5% | 100.0% |
The number of native title matters over eighteen months old increased slightly. The number of native title matters between 12–18 months and 18–24 months old decreased slightly. Further information about the Court's native title workload can be found on page 30.
The Court will continue to focus on reducing its pending caseload and the number of matters over eighteen months old. A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 5 commencing on page 138.
The Court's appellate jurisdiction
The appellate workload of the Court constitutes a significant part of its overall workload. While most of the appeals arise from decisions of single judges of the Court or the FCC, some are in relation to decisions by State and Territory courts exercising certain federal jurisdiction.
The number of appellate proceedings commenced in the Court is dependent on many factors including the number of first instance matters disposed of in a reporting year, the nature of matters filed in the Court and whether the jurisdiction of the Court is enhanced or reduced by legislative changes or decisions of the High Court of Australia on the constitutionality of legislation.
Subject to ss 25(1), (1AA) and (5) of the Federal Court Act, appeals from the FCC, and courts of summary jurisdiction exercising federal jurisdiction, may be heard by a Full Court of the Federal Court or by a single judge in certain circumstances. All other appeals must be heard by a Full Court, which is usually constituted by three, and sometimes five, judges.
The Court publishes details of the four scheduled Full Court and appellate sitting periods to be held in February, May, August and November of each year. Each sitting period is up to four weeks in duration.
In the 2015 calendar year, Full Court and appellate sitting periods have been scheduled for Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra and Darwin. Once an appeal is ready to be heard, it can usually be listed for the next scheduled Full Court and appellate sittings in the capital city where the matter was heard at first instance.
When appeals are considered to be sufficiently urgent, the Court will convene a special sitting of a Full Court which may, if necessary and appropriate, use videoconferencing facilities or hear the appeal in a capital city other than that in which the case was originally heard.
In 2014–15 the Court specially fixed 34 Full Court or appellate matters for early hearing outside of the four scheduled sitting periods. Hearing these matters involved a total of 26 sitting days.
The appellate workload
During the reporting year 1101 appellate proceedings were filed in the Court. They include 910 appeals and related actions, 25 cross appeals and 166 interlocutory applications such as applications for security for costs in relation to an appeal, for a stay of an appeal, to vary or set aside orders or various other applications.
The FCC is a significant source of appellate work accounting for approximately seventy per cent (775 of the 1101) appeals and related actions, cross appeals and other interlocutory applications filed in 2014–15. The majority of these proceedings continue to be heard and determined by single judges exercising the Court's appellate jurisdiction.
Further information on the source of appeals and related actions is set out in Figure A5.16 on page 156.
The above figures indicate that there was an overall increase of twenty-four per cent in the Court's appellate workload in 2014–15: 1101 matters compared with 890 matters 2013–14.
During the reporting year the number of appellate migration matters filed increased by seventy-two per cent from 393 in 2013–14 to 677 in 2014–15 and the number of appellate non-migration matters filed decreased by approximately fourteen per cent from 497 in 2013–14 to 424.
As shown in Table 3.4, this workload is subject to fluctuation due to changes that may occur in government policy or the impact of decisions of the Federal Circuit Court, the Full Court of the Federal Court or the High Court.
In the reporting year 770 appeals and related actions, 17 cross appeals and 157 interlocutory applications were finalised. At 30 June 2015, there were 584 current matters including 474 appeals and related actions, 28 cross appeals and 82 interlocutory applications.
The comparative age of matters pending in the Court's appellate jurisdiction (including native title appeals) at 30 June 2015 is set out in Table 3.3 below.
At 30 June 2015 there were thirteen matters that are eighteen months or older. These matters are either awaiting the outcome of decisions in the Federal Court (eg following the conclusion of High Court proceedings in one matter) or the matters involve further litigation and/or the pursuit of a negotiated outcome in a complex native title appeal. It is also noted that a large number of migration appeals and application have been held in abeyance pending the outcomes of decisions of the Full Federal Court and the High Court.
| CURRENT AGE | UNDER 6 MONTHS | 6–12 MONTHS | 12–18 MONTHS | 18–24 MONTHS | OVER 24 MONTHS | SUB-TOTAL |
|---|---|---|---|---|---|---|
| Appeals and related actions, cross appeals and interlocutory appellate applications | 462 | 79 | 30 | 9 | 4 | 584 |
| % of Total | 79.1% | 13.5% | 5.1% | 1.5% | 0.7% | 100% |
Managing migration appeals
In 2014–15 twelve migration cases filed in the Court's appellate jurisdiction related to judgments of single judges of the Court exercising the Court's original jurisdiction and 665 migration cases related to judgments of the FCC. These 677 cases include 648 appeals, cross appeals and related actions and twenty-nine interlocutory applications.
Table 3.4 shows the number of appellate proceedings involving the Migration Act as a proportion of the Court's overall appellate workload since 2010–11. The Court continues to apply a number of procedures to streamline the preparation and conduct of these appeals and applications and to facilitate the expeditious management of the migration workload.
Initially, the Court applies systems to assist with identifying matters raising similar issues and where there is a history of previous litigation. This process allows for similar cases to be managed together resulting
in more timely and efficient disposal of matters. Then, all migration related appellate proceedings (whether to be heard by a single judge or by a Full Court) are listed for hearing in the next scheduled Full Court and appellate sitting period. Fixing migration related appellate proceedings for hearing in the four scheduled sitting periods has provided greater certainty and consistency for litigants. It has also resulted in a significant number of cases being heard and determined within the same sitting period.
Where any migration related appellate proceeding requires an expedited hearing, the matter is allocated to a single judge or referred to a specially convened Full Court.
| APPELLATE PROCEEDINGS | 2010–11 | 2011–12 | 2012–13 | 2013–14 | 2014 – 15 |
|---|---|---|---|---|---|
| Migration Jurisdiction | 269 | 338 | 333 | 393 | 677 |
| % of total | 32% | 43% | 42% | 44% | 61% |
| Total Appellate Proceedings | 837 | 797 | 787 | 890 | 1101 |
Information about the Court's time goal for the disposition of migration appeals can be found in Part 2 at page 16.
The Court's Native Title jurisdiction
During the reporting year the Court resolved fifty-two native title determination applications.
Seventeen applications were resolved by consent determination, three applications were resolved following a litigated hearing and a further thirty- two matters were otherwise resolved including by discontinuance or dismissal. It is important to note that when parties agree to resolve an application by means other than a determination, the application is usually dismissed or discontinued as part of that overall settlement. For example, in New South Wales six related Gundungurra applications were discontinued during the reporting period following the registration of an Indigenous Land Use Agreement reached following negotiations between the claimants and the State of New South Wales.
In addition to the applications referred to above four consent determinations of native title were achieved which partially resolved applications.
Fifty-two new applications were filed during the reporting period. Thirty of these were native title determination applications. Significantly, twenty- one were non-claimant applications, the vast majority of which were filed in Queensland. One new compensation application was filed in South Australia.
At the end of the reporting period the Court's native title caseload consisted of 347 of which 314 were claimant applications, twenty-seven were non- claimant applications and six were compensation applications.
The Court has continued to utilise a number of strategies to achieve the orderly resolution of matters, as quickly, inexpensively and effectively as possible. These strategies include working with the parties to identify priority applications for resolution thus ensuring that appropriate resources are applied to those applications. Once priority matters are identified judges and registrars of the Court apply intensive case management to identify the genuine issues in dispute between the parties and the most effective means of resolving those disputes.
In some instances issues are resolved through continued case management, in others the identified issues are referred to mediation which may be conducted by a registrar or a specialist native title mediator from the Court's published list of native title mediators. In some instances particular issues in an application are referred to a judge for hearing and adjudication.
There are currently seventy-seven matters on the Court's priority list. It is anticipated that approximately half of these matters will be resolved in 2015–16.
During the reporting year a number of systemic issues continued to affect the timely resolution of native title applications. The magnitude and complexity of collating and analysing tenure documents continued to be a significant challenge for the parties. During the reporting period the Court continued to work with the parties to try to address these challenges including by offering to convene user forums and case management conferences to discuss innovative means of addressing tenure, enlisting the assistance of the National Native Title Tribunal's geospatial expertise, convening monthly case management conferences in particular applications to identify tenure disputes and resolve them, using orders of the Court to ensure the early resolution of identified tenure disputes and providing guidance through judgments of the Court in particular applications on the expectations of the Court in relation to the task of tenure analysis.
In New South Wales the Court convened a user group meeting to discuss the practical issues arising for the resolution of native title applications from the interaction of the Commonwealth native title legislation and the NSW land rights legislation. The forum provided a useful opportunity to bring together representatives of native title claimants and local Aboriginal land councils to identify the issues faced by both groups and strategies for more cooperative resolution of those issues. Following the forum the National Native Title Tribunal, which had also been invited to attend, has continued to work with the groups to address the challenges that can cause delay of native title applications.
Assisted Dispute Resolution
The Court's Assisted Dispute Resolution (ADR) program was established in 1987 with the referral of a small number of proceedings to mediation. Since that time the Federal Court of Australia Act and Federal Court Rules have been amended to specifically provide for the referral of a proceeding or particular issues in a proceeding to any one of a suite of ADR options. In practice, referrals to ADR and, in particular, mediation are a routine way in which the Court facilitates the quick, inexpensive and efficient resolution of disputes.
Since 2008, when the Court adopted the National Mediator Accreditation Scheme, the vast majority of Court ordered mediations are conducted by court registrars who are also accredited mediators. In the native title jurisdiction the Court maintains a list, available on its website, of specialist mediators who have current experience in the resolution of complex Indigenous land management disputes.
In this reporting period the Court has continued to collect comprehensive statistical information about referrals to mediation made by the Court and the outcome of mediations conducted by its accredited mediator Registrars.
As in previous years, the data provided must be considered in light of the following factors. Firstly, mediations and other ADR processes conducted during this reporting period may relate to referrals to mediation or other ADR processes made in the previous reporting period. Secondly, not all mediation referrals made in a reporting period will be carried out to conclusion in the same reporting period. This means that comparisons of mediation referrals or mediations conducted as a proportion of the number of matters filed in the Court during the reporting period are indicative only. Thirdly the data provided on referrals to mediations and mediations conducted does not include information about ADR processes that the parties to a proceeding may have engaged in prior to the proceeding being commenced in the Court. Additionally, information about when parties to a proceeding have engaged in private ADR processes without an order of the Court is not included. Similarly the statistics do not include instances where the Court has ordered expert witnesses to confer with each other to identify areas where their opinions are in agreement and disagreement without the assistance of a Court Registrar.
| NSW | VIC | WA | QLD | NT | SA | TAS | ACT | TOTAL | |
|---|---|---|---|---|---|---|---|---|---|
| Mediation | 156 | 195 | 36 | 42 | 7 | 31 | 5 | 13 | 485 |
| Conference of Experts | – | – | 2 | 2 | – | – | – | – | 4 |
| TOTAL | 156 | 195 | 38 | 44 | 7 | 31 | 5 | 13 | 489 |
Note: There were no arbitration, early neutral evaluation, court appointed experts or referees referrals over the year.
| NSW | VIC | WA | QLD | NT | SA | TAS | ACT | TOTAL | |
|---|---|---|---|---|---|---|---|---|---|
| Administrative Law | 1 | 7 | 1 | – | – | – | – | – | 9 |
| Admiralty | 2 | – | 2 | – | – | – | – | – | 4 |
| Appeals | – | – | – | – | – | – | – | – | – |
| Bankruptcy | 4 | 5 | – | 2 | – | 1 | – | – | 12 |
| Competition Law | 2 | 8 | – | – | – | 1 | – | – | 11 |
| Consumer Law | 29 | 40 | 3 | 6 | 2 | 3 | 3 | 7 | 93 |
| Corporations | 48 | 30 | 13 | 5 | – | 5 | – | 3 | 104 |
| Costs | 21 | – | 1 | – | – | – | – | – | 22 |
| Human Rights | 3 | 12 | – | – | – | 1 | 1 | – | 17 |
| Industrial | 13 | 56 | 7 | 14 | 2 | 16 | 1 | 3 | 112 |
| Intellectual | |||||||||
| Property | 30 | 29 | 1 | 3 | – | – | – | – | 63 |
| Migration | – | – | – | – | – | – | – | – | – |
| Native Title | – | 1 | 4 | 11 | 3 | 4 | – | – | 23 |
| Taxation | 3 | 7 | 4 | 1 | – | – | – | – | 15 |
| TOTAL | 156 | 195 | 36 | 42 | 7 | 31 | 5 | 13 | 485 |
A collection of statistics concerning the workload of the Court in this area is contained in Appendix 5 commencing on page 161.
Management of cases and deciding disputes by Tribunals
The Court provides operational support to the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal. This support includes the provision of registry services to accept and process documents, collect fees, list matters for hearings and otherwise assist the management and determination of proceedings. The Court also provides the infrastructure for tribunal hearings including hearing rooms, furniture, equipment and transcript services.
A summary of the functions of each tribunal and the work undertaken by it during the reporting year is set out in Appendix 6 commencing on page 164.
Improving access to the Court and contributing to the Australian legal system
Introduction
The following section reports on the Court's work during the year to improve the operation and accessibility of the Court, including reforms to its practices and procedures, enhancements in the use of technology and improvements to the information about the Court and its work.
This section also reports on the Court's work during the year to contribute more broadly to enhancing the quality and accessibility of the Australian justice system, including the participation of judges in bodies such as the Australian Law Reform Commission, the Australian Institute of Judicial Administration and in other law reform, community and educational activities.
An outline of the judges' work in this area is included in Appendix 8 commencing on page 184.
eServices strategy
The Court's eServices strategy aims to take advantage of technology opportunities to achieve benefits to the Court and its users. The Court uses 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 law quickly, inexpensively and as efficiently as possible.
One of the objectives of the Court's eServices strategy is to create an environment where actions are commenced, case managed and heard electronically. A significant component of this objective was achieved by the introduction of Electronic Court Files (ECFs) in July 2014. Matters commencing with the Court since its deployment are now handled entirely electronically. The Court's official record for such matters is the Electronic Court File. More information about ECFs can be found in Part 2 of this report at page 14.
The Court has continued to promote the use of its electronic filing application, eLodgment. This application was further enhanced in preparation for the ECF and will continue to be enhanced in future years. In 2014–15 the number of active users of eLodgment increased by forty-three per cent to 10,582 and over 100 000 documents were electronically lodged, a sixty-six-per cent annual increase. In June 2015, ninety per cent of documents filed with the Court were done so electronically.
The growth in eLodgment users can be attributed to the Court's approach promoting and improving the eLodgment system. The Court was consulted with the users about enhancements made to the system ensuring that any changes improved usability. The Court also conducted a national education and training program that targeted both practitioners and their support staff. The eLodgment training for legal support staff was 'hands on' using an exact replica of the eLodgment system. The training eLodgment system helped prospective users acquire all the knowledge they needed to use the system efficiently and with proficiency.
During the reporting year 711 matters were conducted in eCourtroom. The majority of these were applications for sub service heard by the Court's registrars. These matters are ordinarily dealt with entirely in eCourtroom saving the parties time and cost in attending Court and the Court costs in setting up courtrooms. Most matters in eCourtroom are completed within two weeks of the eCourtroom commencing.
The Court is also implementing real time business intelligence tools to assist in decision making, monitoring trends and workload management. This will assist registries in planning and ensure that the Court maximises the available resources effectively to meet a fluctuating workload.
All the elements of the Court's eServices strategy have streamlined the way in which the Court operates, allowing all court users to focus on resolving differences as quickly, inexpensively and efficiently as possible. This fulfils the Court's legislative purpose to facilitate the just resolution of disputes.
Practice and procedure reforms
The National Practice Committee is responsible for developing and refining the Court's practice and procedure. During the reporting year, the Committee dealt with a range of matters including:
- The Productivity Commission's Inquiry into access to justice arrangements
- The Australian Law Reform Commission's inquiry into legal barriers for people with disabilities
- Assistance available for self represented litigants
- Class actions
- Vexatious litigants
- Arrest Warrants
- Practice and procedural issues arising from the implementation of the Electronic Court File
- Ongoing monitoring of the impact of increased filing, setting down and hearing fees
- Legislative changes to improve court efficiency and to remove doubt in a range of technical areas of the Court's work.
The Committee also considered proposed legislative changes and reform in the areas of intellectual property; regulatory powers; counter- terrorism; registration of delegated legislation and Commonwealth instruments; and international arbitration.
Liaison with the Law Council of Australia Members of the National Practice Committee met during the reporting year with the Law Council's Federal Court Liaison Committee to discuss matters concerning the Court's practice and procedure.
These included:
- the National Court Framework
- impact of fee increases/changes in the Federal Court
- Electronic Court Files
- Case Management Handbook
- Self Representation Service and
- Productivity Commission inquiry into access to justice arrangements.
Assistance for self represented litigants
The Court delivers a wide range of services to self represented litigants. These services have been developed to meet the needs of self represented litigants for information and assistance concerning the Court's practice and procedure.
During the reporting year the Government provided funding to Queensland Public Interest Law Clearing House (QPILCH), Justice Connect, JusticeNet SA and Legal Aid Western Australia to provide basic legal information and advice to self represented litigants in the Federal Court and Federal Circuit Court. This may involve diverting parties from commencing proceedings or continuing unmeritorious proceedings, providing assistance to draft or amend pleadings or prepare affidavits, giving advice on how to prepare for a hearing and advice on how to enforce a court order. The service began in Queensland in March 2014 and has been operating nationally in this reporting period. While the service is independent of the courts, facilities are provided within court buildings to enable meetings to be held with clients. The service is also assisted by volunteer lawyers from participating law firms.
Tables 3.7, 3.8 and 3.9 below provide some broad statistics about the number of self represented litigants appearing in the Court as applicants in a matter (respondents are not recorded). As the recording of self represented litigants is not a mandatory field in the Court's case management system statistics shown in the Tables are indicative only. In the reporting year, 579 people who commenced proceedings in the Court were identified as self represented. The majority were appellants in migration appeals.
| ACT | NSW | NT | QLD | SA | TAS | VIC | WA | TOTAL | |
|---|---|---|---|---|---|---|---|---|---|
| SRLs | 1 | 302 | 1 | 38 | 53 | 0 | 159 | 25 | 579 |
| %Total | 0% | 52% | 0% | 7% | 9% | 0% | 27% | 4% | 100% |
The 579 SRLs in 2014–15 were applicants in 564 proceedings, as a proceeding can have more than one applicant. The following table breaks down these proceedings by major CoA.
| COA | TOTAL ACTIONS | % OF TOTAL |
|---|---|---|
| Administrative Law | 43 | 8% |
| Admiralty | 0 | 0% |
| Appeals and related actions | 415 | 73% |
| Bankruptcy | 20 | 4% |
| Bills of Costs | 0 | 0% |
| Competition Law | 0 | 0% |
| Consumer Protection | 6 | 1% |
| Corporations | 17 | 3% |
| Cross Claim | 0 | 0% |
| Fair Work | 17 | 3% |
| Human Rights | 9 | 2% |
| Industrial | 0 | 0% |
| Intellectual property | 2 | 0% |
| Migration | 18 | 3% |
| Miscellaneous | 12 | 2% |
| Native Title | 1 | 0% |
| Taxation | 4 | 1% |
| Total | 564 | 100% |
The number of proceedings that were SRL initiated appeal and related actions has increased from 63 per cent in 2013–14 to 74 per cent in 2014–15.
| COA | TOTAL ACTIONS | % OF TOTAL |
|---|---|---|
| Administrative Law | 3 | 1% |
| Admiralty | 0 | 0% |
| Bankruptcy | 21 | 5% |
| Competition Law | 1 | 0% |
| Consumer Protection | 5 | 1% |
| Corporations | 1 | 0% |
| Fair Work | 4 | 1% |
| Human Rights | 4 | 1% |
| Industrial | 2 | 0% |
| Intellectual Property | 1 | 0% |
| Migration | 368 | 89% |
| Miscellaneous | 2 | 0% |
| Taxation | 1 | 0% |
| Native Title | 2 | 0% |
| Totals | 415 | 100% |
Signing of financial counsellor's memorandum of understanding
In September 2014 a twelve-month pilot program was implemented in the Court and FCC in Melbourne to provide funding for a financial counsellor to attend all bankruptcy lists to provide assistance to self represented litigants. The project between the Court, FCC, Consumer Action Law Centre and University of Melbourne aimed to assist self represented litigants in understanding the nature of bankruptcy. The project has received overwhelmingly positive feedback from creditors' solicitors and has proven to reduce the number of hearings required to finalise bankruptcy matters. The financial counsellor's memorandum of understanding was signed on 23 March 2015.
Interpreters
The Court is aware of the difficulties faced by litigants who have little or no understanding of the English language. The Court will not allow a party or the administration of justice to be disadvantaged by a person's inability to secure the services of an interpreter. It has therefore put in place a system to provide professional interpreter services to people who need those services but cannot afford to pay for them.
In general, the Court's policy is to provide these services for litigants who are unrepresented and who do not have the financial means to purchase the services, and for litigants who are represented but are entitled to an exemption from payment of court fees, under the Federal Court and Federal Circuit Court Regulation (see below).
Court fees and exemption
Fees are charged under the Federal Court and Federal Circuit Court Regulation for filing documents; setting a matter down for hearing; hearings and mediations; taxation of bills of costs; and for some other services in proceedings in the Court. During the reporting year the rate of the fee that was payable depended on whether the party liable to pay was a publicly listed company; a corporation or a public authority; or a person, small business or not-for-profit association for all matters. As a result of amendments to the Regulation which will take effect from 1 July 2015, in future that rate for all but some bankruptcy filings and exemptions will depend on whether the party liable to pay is a corporation or otherwise.
Some specific proceedings are exempt from all or some fees. These include:
- Human Rights applications (other than an initial filing fee of $55)
- some Fair Work applications (other than an initial filing fee of $68.60 [with effect from 1 July 2015])
- appeals from a single judge to a Full Court in Human Rights and some Fair Work applications
- an application by a person to set aside a subpoena
- an application under section 23 of the International Arbitration Act 1974 for the issue of a subpoena requiring the attendance before or production of documents to an arbitrator (or both) [with effect from 1 July 2015]
- an application for an extension of time
- a proceeding in relation to a case stated or a question reserved for the consideration or opinion of the Court
- a proceeding in relation to a criminal matter.
A person is entitled to apply for a general exemption from paying court fees in a proceeding if that person:
- has been granted Legal Aid
- has been granted assistance by a registered body to bring proceedings in the Federal Court under Part 11 of the Native Title Act or has been granted funding to perform some functions of a representative body under section 203FE of that Act
- is the holder of a health care card, a pensioner concession card, a Commonwealth seniors health card or another card certifying entitlement to Commonwealth health concessions
- is serving a sentence of imprisonment or is otherwise detained in a public institution
- is younger than 18 years
- is receiving youth allowance, Austudy or ABSTUDY benefits.
Such a person can also receive, without paying a fee, the first copy of any document in the court file or a copy required for the preparation of appeal papers.
A corporation which had been granted Legal Aid or funding under the Native Title Act had the same entitlements.
A person (but not a corporation) is exempt from paying a court fee that otherwise is payable if a registrar or an authorised officer is satisfied that payment of that fee at that time would cause the person financial hardship. In deciding this, the registrar or authorised officer must consider the person's income, day-to-day living expenses, liabilities and assets. Even if an earlier fee has been exempted, eligibility for this exemption must be considered afresh on each occasion a fee is payable in any proceeding.
More comprehensive information about filing and other fees that are payable, how these are calculated (including definitions used, for example 'not-for-profit association', 'public authority', 'publicly listed company' and 'small business') and the operation of the exemption from paying the fee is available on the Court's website, www.fedcourt.gov.au.
Website
The Federal Court website is the main source of public information and a gateway to the Court's suite of online services such as eLodgment, eCourtroom and the Commonwealth Courts Portal. It provides access to a range of information including court forms and fees, guides for court users, daily court listings and judgments. In recent years it has also been used to publish selected court documents in representative proceedings and cases of high public interest; these were previously only available to interested parties by visiting the registry in which the matter was filed. The website generated close to 2.5 million hits during the reporting period.
The Federal Court website is the foundation of information campaigns and other court initiatives and projects. In the 2014–15 reporting year it was used extensively to communicate changes to court users in the lead up to the launch of the Electronic Court Files and later the National Court Framework (NCF). Currently there is development under way in order to accommodate procedural changes introduced as part of the NCF.
Other development work includes major upgrades to the software and search engine, and modifications to comply with Web Content Accessibility Guidelines (WCAG) 2.0 accessibility standards, for the use of people with disabilities. This work is ongoing.
There are two subscription services offered on the Court website: Practice News, which communicates changes to the Court's practice and procedure and the Daily Court Lists, which provides details of hearings listed the next business day. There are currently 9634 subscribers to these services, an increase of over 50 per cent from the previous year. This indicates that Court users value the information sent by the Court to them. The Court also provided RSS feeds (Rich Site Summary feeds) for judgments and news items.
Requests for information
In 2014–15 approximately 600 emails were received by the Court through the website's email account: query@fedcourt.gov.au. This is an increase of thirty-three per cent over the previous year. The query account was used as a contact for the Court's initiatives as well as requests received from students, researchers and members of the public who are interested in the role of the Court, its jurisdiction, practice and procedure and at times particular cases of interest. Staff ensure they respond to the queries in a comprehensive and timely fashion.
Some enquiries concern legal advice. Whilst court staff cannot provide legal advice, they endeavour to assist all enquirers by referring them to reliable sources of information on the internet or to community organisations such as legal aid agencies and libraries.
Published information
The Court publishes a range of information on aspects of its work including: a guide for witnesses appearing in the Court; information on procedures in appeals, bankruptcy, native title and human rights cases; and information on the Court's use of mediation. In addition, during the reporting year the Court developed comprehensive information about the National Court Framework reforms which is available from the Court's website, www.fedcourt.gov.au.
Freedom of information
Information Publication Scheme
Agencies subject to the Freedom of Information Act 1982 (FOI Act) are required to publish information as part of the Information Publication Scheme (IPS).
This requirement is in Part II of the FOI Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements. The Court's plan (which also covers the tribunals which the Court supports) is accessible from the Court's website at www.fedcourt.gov.au/ips. Information about IPS and the NNTT can also be found on the NNTT's website at www.nntt.gov.au/Pages/ips.aspx.
The availability of some documents under the FOI Act will be affected by s 5 of that Act, which states that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature. Documents filed in Court proceedings are not of an administrative nature; however, they may be accessible by way of the Federal Court Rules.
Access to judgments
When a decision of the Court is delivered, a copy is made available to the parties and published on the Federal Court and AustLII websites for access by the media and the public. Judgments of public interest are published within an hour of delivery and other judgments within a few days. The Court also provides copies of judgments to legal publishers and other subscribers.
Information for the media and televised judgments
The Court's Director Public Information handles enquiries about cases and issues relating to its work from media throughout Australia.
These are often about the timely provision of judgments and guidance on how to access court files.
During the reporting period the Essendon v Australian Sports Doping Authority and James Hird v Australian Sports Doping Authority were the highest profile matters dealt with by the Court and led to an extraordinarily high level of media interest.
As a result, the Court established a special online file – accessible via its website – on to which documents were placed as they became available. This was similar to the first online file established in the Ashby v Slipper matter in 2012.
By the conclusion of the hearing this file had been accessed on more than 26,000 occasions.
In addition, the Court allowed a live television feed of the first directions, trial openings and delivery of judgment. This feed was carried extensively on radio, television and online. Both initiatives were intended to assist in the public's understanding of the Court's role.
During the reporting year, the Court also undertook a series of initiatives in the broader media to promote the implementation of the National Court Framework and the introduction and success of the Electronic Court File.
Community relations
The Court engages in a wide range of activities with the legal profession, including regular user group meetings. The aim of user groups is to provide a forum for Court representatives and the legal profession to discuss existing and emerging issues, provide feedback to the Court and act as a reference group. Seminars and workshops on issues of practice and procedure in particular areas of the Court's jurisdiction are also regularly held.
In 2014–15 members of the Court were involved in:
National Court Framework – National Practice Area consultation and information forums Registries across the country hosted Commercial and Corporations and Administrative and Constitutional Law and Human Rights National Practice Areas forums in the months of March, April & May 2015. The forums ware well attended by Court users and provided an opportunity for the Court to seek input from the profession regarding the practice of the Court and its case management initiatives. The forums were presented by the National Coordinating Judges of each of the relevant practice areas.
Admiralty and maritime law seminar
An admiralty and maritime law seminar was held in NSW Registry on 16 April 2015 video conferenced to other registries across the country. The seminar included topics such as organised crime in international waters as well as cross border insolvency and shipping. The seminar was well attended and received mainstream media coverage.
Judges in Conversation Series
The Victoria Registry has hosted a number of Judges in Conversation seminars, which are organised by the University of Melbourne.
On 22 July 2014, Justice Murphy discussed the topic of 'Expert Evidence' with Prof David Caudill of Villanova University, Pennsylvania, US. The conversation dealt with the practical uses of expert evidence inside and outside the courtroom. Justice Murphy and Prof Caudill also considered specific instances of expert evidence, conduct and regulation that have prompted change and reform or controversy in Australia and elsewhere.
On 3 December 2014, Justice Bromberg and Prof Keith Ewing spoke about the basis for treating the right to strike as a human right. Prof Ewing has been a Professor of Public Law at King's College, University of London since 1989. He is the President of the Institute of Employment Rights and Vice- President of the International Centre of Trade Union Rights.
Working with the Bar
NSW hosted the NSW Silks ceremony on 28 October 2014 and the Registry held the Australian Bar Appellate Advocacy Course. The NSW Registry also hosted a number of NSW Bar Moot Courts and Readers Courses during the year.
The Court also hosted Moot Court Competitions for the Victorian Bar Readers. In October 2014 and again in April 2015, the Court welcomed the new Victorian Bar Readers for an afternoon tea with judges and court staff.
The judges in South Australia regularly assisted with the SA Bar Readers Court by presenting on the Court and on written advocacy.
Federal Court Users Groups
Federal Court registries hosted users' group meetings which are attended by judges and senior staff of the Court. User group meetings discuss issues related to the operation of the Court, its practice and procedure, act as a reference group for discussion of developments and proposals and as a channel to provide feedback to the Court on particular areas of shared interest.
The Victorian Court User Committee is a forum for communication between the Court and the legal profession in Victoria. It meets quarterly and is chaired by Justice Tracey. The NSW Registry held several user group meetings across a number
of areas of law such as Bankruptcy, Native Title and Migration. In Queensland the District
Registrar attends the Insolvency Law Practitioners (Law Council of Australia) monthly meetings. All registries were involved in 'Working with the Court electronically' presentations to practitioners and their support staff. The South Australia registry regularly held the Federal Court Liaison Committee Meetings with Justices Mansfield, Besanko and White attending and the Bankruptcy User Group Meeting with Registrar Bochner.
Legal community
During the course of the year the Court's facilities were made available for many events for the legal community including:
- in Sydney – the Ross Parsons Corporate Law Address, ADR Seminar (Law Council of Australia), Whitmore Lecture (Council of Australian Tribunals), Australian Association of Constitutional Law Lecture, Tristan Jepson Memorial Foundation Lecture, Australian Academy of Law AGM, International Arbitration Lecture, Richard Cooper Memorial Lecture, Australian Association of Constitutional Law Lectures, AMTAC Address, Mahla Pearlman Oration;
- in Brisbane – the new registry showcase hosted by the District Registrar, 'In Dispute with the ATO: What to expect' Seminar, BAQ Professional Development Seminar 'Alternate Dispute Resolution';
- in Perth – the Court holds a successful intellectual property seminar series
- in Adelaide – International Women's Insolvency & Restructuring Confederation (IWIRC) – Public Examinations, National Judicial College of Australia – Judgment writing training, Australian Law Librarian's Conference Workshop, Law Librarian's Seminar – 'Sharing information using Yammer' and
- in Hobart – Law Society of Tasmania – Advocacy Convention 2014, Administrative Appeals National Moot Competition and the Workplace Relations Mock Hearing.
Education
The Court also engages in a range of strategies to enhance public understanding of its work and the Court's registries are involved in educational activities with schools and universities and, on occasion, with other organisations that have an interest in the Court's work. The following highlights some of these activities during the year.
The Court is committed to providing opportunities for students to gain hands on work experience. The Court hosted many work experience students across multiple registries including New South Wales, Queensland and Victoria. Students are given a program that exposes them to all areas of the Court's operations over the course of one week.
The Court in the NSW Registry provided internships for university students specifically with the University of Wollongong. The Court in the Victoria Registry participated in the Indigenous Clerkship Program run by the Victorian Bar. Two clerks participated in the program and each clerk spent one week with each of the participating institutions: the Federal Court of Australia, the Supreme Court of Victoria and the Victorian Bar.
The court hosted a number of school visits and educational tours to the Court across its registries.
The Court support for and work with universities continued through the year: in the WA Registry, the Murdoch Student Law Society held the Grand Final of their Junior Trial Advocacy Competition at Court and the inaugural Jones-Day Inter-Law School Trial Advocacy Competition involving four law schools was also held at the Court. The Queensland Registry hosted four university moot competitions. The Victoria Registry hosted a number of moot courts for Monash, Melbourne, Victoria, La Trobe and Deakin Universities. The SA Registry held the Flinders Law Students Association Moot competition and the NSW Registry hosted University of New England Moot Courts and ALSA Moot Courts.
Complaints about the Court's processes
During the reporting year, twelve complaints were made to the Court in relation to its procedures, rules, forms, timeliness or courtesy to users. This figure does not include complaints about the merits of a decision by a judge, which may only be dealt with by way of appeal.
Information about the Court's feedback and complaints processes can be found at www.fedcourt.gov.au/feedback-and-complaints.
Involvement in legal education programs and legal reform activities (contribution to the legal system)
The Court is an active supporter of legal education programs, both in Australia and overseas. During the reporting year the Chief Justice and many judges:
- presented papers, gave lectures and chaired sessions at judicial and other conferences, judicial administration meetings, continuing legal education courses and university law schools
- participated in Bar reading courses, Law Society meetings and other public meetings
- held positions on advisory boards or councils or committees.
An outline of the judges' work in this area is included in Appendix 8 commencing on page 184.
National standard on judicial education
In late 2010 a report entitled 'Review of the National Standard for Professional Development for Australian Judicial Officers' was prepared for the National Judicial College of Australia. The Court was invited and agreed to adopt a recommendation from that Report to include information in the Court's Annual Report about:
- participation by members of the Court in judicial professional development activities
- whether the proposed Standard for Professional Development was met during the year by the Court
- if applicable, what prevented the Court meeting the Standard (such as judicial officers being unable to be released from court, lack of funding, etc)?
The Standard provides that judicial officers identify up to five days a year on which they could participate in professional development activities. During 2014–15 the Court offered the following activities:
- a 1.5 day Public Law Conference;
- an evening information session, conducted by videoconference to each Registry, for the Court's Admiralty judges and marshals.
- two education events were scheduled in August 2014 and March 2015 to coincide with the Court's biannual judges' meetings.
Education sessions included:
- the Court's Electronic Court File;
- the Court's new National Court Framework;
- Central banks, the setting of interest rates, payment systems and the law surrounding insolvencies and system wide financial failures;
- a national and global economic review;
- an overview of recent High Court decisions in public law;
- Electronic issues: moving towards electronic trials.
- judges were also offered the opportunity to attend the Supreme Court and Federal Court Judges' Conference held in Darwin, 5–9 July 2014.
In addition to the above, judges undertook other education activities through participation in seminars and conferences, details of which can be found in Appendix 8 on page 184. In the period 1 July 2014 to 30 June 2015 on average the Standard was met.
Work with international jurisdictions
Introduction
The Court's International Programs Unit collaborates with neighbouring judiciaries predominantly across the Asia Pacific Region to promote international judicial development and cooperation. This engagement is driven by the understanding that long-term linkages with courts in other countries are beneficial to the development of governance, access to justice and the rule of law both in Australia and overseas. In 2014–15, the Court's international engagement continued, with the coordination of a number of activities and hosting of several international visits.
Memorandum of Understanding with the Supreme Court of Indonesia
Several activities took place this year with the Mahkamah Agung Republik Indonesia (Supreme Court of Indonesia) under the new Memorandum of Understanding (MOU) signed in June 2014.
Supporting the Supreme Court's institutional reform imperatives as a part of wider efforts to increase access to justice, the Court collaborated on issues related to class actions, alternative dispute resolution, business process re-engineering and change management.
The aim of the cooperation in relation to class actions is to support the Supreme Court to develop a model Regulation on Class Actions. Justice Murphy has provided assistance to develop the Regulation and has shared knowledge with and provided advice to the Supreme Court's Research Team undertaking comparative analyses of class action systems.
Assistance has also been provided to develop a training curriculum to facilitate the introduction of the new Regulation.
During September and October several Supreme Court judges and registrars visited the Principal and New South Wales Registries meeting with Chief Justice Allsop, Justices Bennett, Edmonds, Rares, Perram, Yates, Perry, and Gleeson and Principal Registrar Soden. The Internship Program continued in the Victorian Registry with Interns observing the operation of the Court's Electronic Court File.
In November, Principal Registrar Soden and District Registrar Lagos visited Jakarta, Indonesia to discuss business process re-engineering, mediation and case management processes. Principal Registrar Soden presented to over 200 attendees at a Mediation and Case Management seminar, explaining how collaboration between government, the court and the public can improve mediation success. District Registrar Lagos also gave a presentation on mediation reform to the leadership of the Supreme Court. During the visit, a meeting with the Supreme Court Working Group on Business Process Reengineering and Case Management was held to review the progress on the case management audit and the outcomes of the Internship Program. The Interns presented a comprehensive report to the Supreme Court's leadership and the Federal Court delegation at this meeting.
Developments within the Supreme Court in 2014–15 facilitated by their involvement in the Australia Indonesia Partnership for Justice – of which the Court is a partner – include streamlined case processing procedures for small claims and traffic offences, judge to judge dialogues on competition law and money laundering in corruption cases and curriculum for court and court annexed mediation.
Memorandum of understanding with the Supreme and National Courts of Papua New Guinea
Collaboration between the Supreme and National Courts of Papua New Guinea (PNG) and the Court continued to flourish under a new five-year Memorandum of Understanding (MOU) signed between the judiciaries in December.
The second MOU, signed by Chief Justice Injia and Chief Justice Allsop in Sydney builds upon the success of the first to continue promoting judicial development, understanding of each country's respective laws, judicial culture and international legal standards.
Under the MOU, a number of activities took place this year. In August, representatives from the Supreme and National Courts' management team met with Deputy Registrar Mathieson to discuss the proposed restructure of PNG's apex courts.
During September and October the Corporate Services section of the Principal Registry hosted a delegation of finance and human resources representatives from the Supreme and National Courts. This visit provided the opportunity to observe accounting, budgeting and finance processes, as well as human resource management procedures.
In October, a delegation led by Justice Mogish, along with Deputy Registrar Karaut and various registry staff visited the Queensland registry. The delegation was hosted by Justice Logan and District Registrar Baldwin who provided demonstrations and facilitated discussion about the registry's case management processes.
In April, Chief Information Officer Reilly travelled to Port Moresby, PNG to participate in an information technology recruitment panel. Building on previous reviews and recommendations provided by the Court, Mr. Reilly also offered advice about means to improve the information technology environment.
In June, Deputy Registrar Mathieson and Mr Reilly hosted the Supreme and National Courts' Registrar and his management team to discuss upcoming activities under the MOU, including visits to be hosted by the registries in South Australia and New South Wales in the second half of 2015.
Memorandum of understanding with the Supreme Court of Vanuatu
The Court has a Memorandum of Understanding with the Supreme Court of Vanuatu which provides the platform upon which the Courts collaborate on judicial development issues. An Annex to the Memorandum sets out the areas that the Courts will collaborate on, which focuses on case management.
Pacific Judicial Development Program
The second phase of the Pacific Judicial Development Program (PJDP) funded by the New Zealand Ministry of Foreign Affairs and Trade ended on 30 June. Since 2010, the Court has managed support to 14 judiciaries comprising: Cook Islands, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu.
The PJDP has continued its efforts to support the strengthening of governance and the rule of law across the Pacific region by enhancing the professional competence of judicial and court officers along with the processes and systems they use. In the final leadership meetings in April, the region's Chief Justices discussed the achievements over the past five years as captured by the PJDP Programme Completion Report. The Chief Justices acknowledged that the PJDP has contributed to courts in the region administering justice better.
The PJDP's five key results are:
Citizens Live in Fairer Societies With Better Access to Justice: Citizens in Pacific Island Countries are more empowered to access and use the courts to redress injustice, and the courts are more responsive to the needs of the public seeking justice – in Pacific Island Countries where PJDP has provided support, citizens are now better informed about accessing justice services and can exercise their legal rights in court more easily. Judicial and court officers have been empowered to provide a fair trial and provide reasons for their decisions; offer more creative and restorative approaches to justice where appropriate; and meet the justice needs of marginalised groups, particularly unrepresented litigants, victims of violence, and children.
Judicial Leaders are directing the Delivery of More Substantive Justice Outcomes: Courts are more proactively managing improvements, with Chief Justices networking across the region to drive, plan and administer justice locally – PJDP has focused on building knowledge, understanding and capacity to apply the rule of law on the part of key judicial actors as well as the community. This is significant given that three-quarters of judicial officers in the Pacific have no formal legal education. Improvements are evidenced by 94 per cent of judicial and court officers indicating that they are more competent and confident in performing their roles/duties after participating in PJDP activities.
The Public is Enabled to Demand Judicial Integrity, Transparency and Accountability: Improvements in professionalism, integrity and conduct have built public trust in the courts. The 15 'Cook Island
Performance Indicators' and regular annual reporting equip courts and the public with knowledge and capacity to drive continuing improvements in judicial quality – PJDP has achieved a considerable amount in this sphere through diagnostic work along with the development and implementation of internationally recognised performance measures, standards and principles of timeliness.
Courts Administer and Deliver Justice More Efficiently: Courts are increasingly disposing of cases and reducing backlogs according to established time standards. Improved efficiency, and public awareness of this, is strengthening public trust and consolidating confidence in courts – by measuring and reporting on performance, courts are becoming more transparent. Courts are also becoming more proactive in dealing with delay and backlogged cases. Through these advances in timeliness, courts are conducting proceedings more competently, consistently and efficiently.
Continuing Improvements are Transforming Court Performance: Courts are more able to build capacity through experienced local trainers conducting sustainable judicial development across the region – the quality, relevance and sustainability of professional competence building are improved through local trainers who are proactive, self- sufficient and professional in addressing competence needs. This is evidenced by 79% of judicial and court officers reporting that the quality of locally-led training activities has improved.
In addition to a range of capacity and institutional strengthening activities which produced measurable change, a resource library of 14 toolkits is available on the PJDP website covering key areas of judicial and court development activities including: Access to Justice; Public Information; Enabling Rights; Judges' Orientation; Training-of-Trainers; Judicial Conduct; Family Violence/Youth Justice; Time Goals; Reducing Backlog and Delay; Judicial Decision- making; Judicial Complaints Handling; Annual Court Reporting; Project Management; and Judicial Development Committees. The toolkits are available on the PJDP website at www.paclii.org/pjdp/pjdp-toolkits.html
Judicial independence in the Maldives
During 3–5 December, the Queensland Registry hosted a Symposium on Judicial Independence for members of the Supreme Court of the Maldives. The Symposium was funded by the Commonwealth Secretariat and organised by that body in consultation with the Court. It was also attended by members of the PNG Judiciary. PNG Chief Justice Sir Salamo Injia was one of the presenters. Facilitated by Justice Logan, the Symposium provided an opportunity for the Maldivian attendees to discuss with senior judges and retired judges – including the Hon J E J Spender, a retired judge of the Court, from other Commonwealth jurisdictions the meaning of judicial independence, both in theory and in practice. The rule of law, and judicial independence, as enshrined in what are known as the Latimer House Principles, are fundamental values of The Commonwealth.
Visitors to the Court
During the course of the year, the Court hosted visitors from:
France: Chief Justice Allsop and Principal Registrar Soden hosted Justice Byk from the Court of Appeal in Paris on Bastille Day, 14 July. Justice Byk met in Sydney with New South Wales judges from the Court and judges of the Court of Appeal from the Supreme Court of New South Wales. His Honour later delivered a public lecture on bioethics.
Tunisia: Between 14–25 July Judge Bey of the Administrative Tribunal of Tunis visited Sydney to attend the Administrative Appeals Tribunal and the NSW Registry. As part of a comprehensive program Judge Bey observed the Court's administrative law jurisdiction through attendance at mediations and court hearings, as well as discussions with judges and registrars in NSW and Victoria (by videolink) on areas of interest including litigants in person, ADR mechanisms, and procedures for injunctions. Judge Bey met with Justices North, Bennett, Buchanan, Jagot, Katzmann, Pagone, Mortimer, Perry and Gleeson.
Zimbabwe: During 25–27 August, registrars from the Zimbabwean Judicial Services Commission were hosted by the New South Wales Registry. The delegation learnt about best practice in court administration, registry operations, and the use of technology to inform the development of court policies.
Bangladesh: On 23 September the New South Wales Registry welcomed a delegation from the Bangladeshi judiciary. The delegation toured the registry and discussed court processes in order to increase their understanding of the Australian legal system.
United States of America: On 10 November Judge Sutton from the 6th Circuit Court of Appeals attended a formal lunch hosted by Chief Justice Allsop. Judge Sutton discussed current issues in commercial litigation in United States Federal Courts.
Namibia: On 25 February the Victoria Registry hosted a delegation from the High Court and Supreme Court of the Republic of Namibia. The delegates included Deputy Chief Justice Damaseb and Registrar Schickerling who discussed reforms to the Namibian High Court rules and judicial case management system.
Canada: Chief Justice Noel from the Federal Court of Appeals of Canada visited the New South Wales registry on 1 April and was hosted by Justice Bennett.
ASEAN Nations: On 4 May, the Court hosted delegates from Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Thailand, and Vietnam, as part of the Australia and New Zealand ASEAN Competition Law Implementation Program hosted by the Australian Competition and Consumer Commission (ACCC). Justice Mansfield presented to the delegates regarding the Australian court system, while Justice Bennett informed them about the role of the International Development and Cooperation Committee.
United States of America: On 1 June students from Santa Clara Law School attended the New South Wales Registry where Deputy District Registrar Morgan discussed the Australian Court System and the Court's refugee/migration jurisdiction. The students also attended the Federal Circuit Court (FCC) and met with Judge Smith. The students had the opportunity to observe a migration hearing at the FCC.
Kenya: On 16 June the Principal Registry hosted a delegation from the Kenyan Judicial Services Commission as part of their study tour to Australia. Principal Registrar Soden met with the delegation and discussed the Court's jurisdiction and administration and management processes, including backlog reduction.
Thailand: As part of a two-week program run by the University of New South Wales, the Court hosted a 34 member delegation from the Courts of Thailand which was led by Chief Justice Yaepithuck of the Thon Buri Civil Court on 18 June. Chief Justice Allsop and Principal Registrar Soden met with the delegation to discuss the Court's structure including the docket system and the Court's focus on national consistency in court administration. Deputy Registrar Mathieson, Chief Information Officer, Mr Reilly and Business Analyst, Ms Little provided the delegation information about case management and the Electronic Court File.
