Guide to Communications with Chambers Staff

• Introduction
  "Chambers"
  Communications involving Registrars
  Self-represented litigants
  
• Guidance on communications
• Appropriate communications with Chambers
  Uncontroversial communications
  Open communications
  
• Inappropriate communications with Chambers
• Further information and contact details
• Case studies

1. Introduction

1.1 This guide addresses when it may be appropriate to communicate with the Court's chambers staff and should be read subject to any relevant order or direction given by the Court. To the extent applicable, this guide should also be read together with the Central Practice Note (CPN-1) and the practice notes for each National Practice Area ("NPA").

1.2 This guide does not comprehensively address how to communicate with registry staff, which is instead covered by the Guide to Communications with Registry Staff. That guide also contains a variety of information about communicating with the Court that parties should familiarise themselves with.

1.3 Where applicable, and where the context allows, references in this guide to a "party" or "parties" should be read to include:

• any person communicating with the Court (or with others) on behalf of a party, including a party's legal representatives; and
• a non-party (or someone communicating on a non-party's behalf) where the non-party has become involved or concerned in a proceeding or process within the Court.

"Chambers"

1.4 Within chambers (ie. the judge's official working area) is the judge, who is the independent decision-maker, and the staff assisting the judge. Such staff include: a judge's associate, executive assistant and any other person who may work with the judge in chambers from time to time. A judge's associate assists the judge in court and in chambers on legal matters and case management by acting as an intermediary between parties and the judge.

Communications involving Registrars

1.5 While this guide refers only to judges and their chambers staff, the same principles set out in this guide apply to communications with registrars and the staff who assist them in relation to matters that are managed in registrars' dockets (ie. where the registrar is performing a judicial function). However, this guide is not intended to apply to communications with a registrar acting in an administrative capacity (for example, in their role as a Duty Registrar) or in the context of alternative dispute resolution processes (for example, in their role as a mediator).

Self-represented litigants

1.6 Self-represented litigants should liaise with registry staff for additional assistance and support.

2. Guidance on communications

2.1 The guiding principle for any communications with chambers staff is set out in paragraphs 15.1 and 15.2 of the Central Practice Note, which provides that all communications with chambers staff should:

(a) be made courteously; and

(b) unless in the nature of an ex parte application,^[1] should:

(i) only occur where it is necessary and appropriate to do so;

(ii) be uncontroversial; and

(iii) be "open" (ie. communicated to all parties to the litigation).

2.2 Effective communication between the parties, their legal representatives and the Court is fundamental for the efficient case management of a proceeding.^[2] The Court encourages the use of technology, including email, to facilitate quick and efficient communication. Efficiency, however, should not compromise the just resolution of disputes and parties are encouraged to follow the communication protocols outlined in this guide so as to avoid compromising the impartiality and integrity of the Court.

2.3 Parties are expected to be courteous and respectful in all communications with chambers and with each other.

2.4 Where contact with chambers is necessary and appropriate, the Court encourages parties to, having first appropriately discussed and attempted to resolve the matter between them, communicate any outstanding issues to chambers in a timely manner, so as to avoid disruption or delay to the case management process.

3. Appropriate communications with Chambers

3.1 Parties should only communicate with chambers where it is necessary and appropriate to do so in the circumstances. Whether the proposed communication is appropriate depends on the relevant circumstances, including the subject-matter or nature of the communication, the sequence of events surrounding the communication, who may be affected by the communication and how, and who may or should participate in the communication.

3.2 In deciding whether a communication is necessary and appropriate, parties should consider whether the communication is consistent with:

(a) the "overarching purpose" – ie. facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see s 37M(1) of the Federal Court of Australia Act 1976); and

(b) the aim of eliminating any unnecessary "process-driven" costs – a key objective of the court's approach to case management.

3.3 Parties should be mindful that the proceeding is the parties' proceeding and they are the primary actors responsible in the litigation. Where necessary, parties should attempt to engage in meaningful dialogue between each other before any matter is raised with chambers. The Court expects that parties will have conferred in good faith to resolve any issues of controversy to minimise interlocutory disputes and the need for the Court's involvement in the dispute.

Uncontroversial communications

3.4 Communications with a judge's associate should generally be confined to matters concerning procedural, administrative or practical matters that are not controversial.

3.5 The Court recognises that there is no clear division between matters of a purely administrative or procedural nature and matters of substance. For example, a request for an adjournment of a hearing may be considered administrative in some circumstances, but contentious in others.

3.6 Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications regarding administrative and procedural matters which may be uncontroversial include:

(a) providing consent orders for the judge's consideration and approval;

(b) providing chambers with agreed dates about when legal counsel for all parties are mutually available;

(c) clarifying that you cannot attend court for a listed hearing due to a serious personal circumstance (such as a serious illness);

(d) explaining that there will be an unavoidable and unexpected delay in your attendance at a hearing in court;

(e) in relation to an upcoming trial:

(i) arrangements for the display of physical exhibits (especially if they are large and bulky) in the courtroom;

(ii) arrangements for video or sound recordings to be played;

(iii) arrangements for approved video or telephone conference links (noting that whether or not video or telephone conference links are appropriate of themselves may be matters of controversy);

(iv) arrangements for court attendees who have special needs (eg. a witness who has a hearing impairment and requires an interpreter or a hearing loop);

(v) arrangements regarding bundles of authorities for trial;

(vi) arrangements for leaving the parties' court books and files in the courtroom overnight;

(f) communicating with chambers in accordance with an order/direction from the Court to do so.

3.7 Communications (including emails) containing allegations or matters of substance should not be forwarded to chambers without the parties' collective agreement (save for ex parte applications).^[3] If an unresolved issue arises between the parties (and they agree in advance that the court's involvement is needed and the manner and nature in which the Court should be advised), it would be uncontroversial if one party sends an email to chambers on behalf of the parties (and copied to all parties) explaining the factual circumstances and requesting a listing. It is generally not appropriate for that email to stray into argument or submissions unless all parties have agreed in advance that all competing views should be (briefly and accurately) clarified to the Court.

Open communications

3.8 Communication with the Court should generally be in writing. It is preferable that communications with chambers are made to the generic email address of the judge's associate (and copied to the judge's executive assistant and all other parties). Communications should not be made with the judge directly. To minimise the risk of controversy, it is best practice for all parties to be notified about a proposed communication with the Court a reasonable time before it is made, and to be included in the communication when it is made. Ideally the content of the communication should be agreed by all parties before it is made. Unilateral communications should only occur in exceptional circumstances (see below).

3.9 Communication by telephone should be avoided in all but purely administrative matters. For example, a party (having already checked with the registry) might contact chambers to enquire whether a personal item left behind in Court has been collected by chambers staff. However, other than in exceptional circumstances, it is preferable that even purely administrative communications be made by email with all parties copied in.

3.10 Depending on the circumstances, a sustained sequence of communications not circulated to the other parties (even in relation to administrative or procedural matters) could, at a certain point, become unprofessional or improper in the absence of some good reason.^[4]

3.11 Ordinarily, there are only two exceptions to the general rule that communications with chambers should be open. Unilateral communication directly with chambers may be appropriate in relation to:

(a) an ex parte application; or

(b) an urgent originating application. Under the Court's "direct-to-chambers" duty system, the applicant can liaise with the relevant duty judge's chambers directly before formally filing an urgent originating application with the Court. This ensures that genuinely urgent matters are heard as soon as practicable with a view to addressing the special issues arising in each matter and the needs of the parties.

4. Inappropriate communications with Chambers

4.1 Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications with chambers which are, or may be, inappropriate include:

(a) attempting to contact a judge directly about a matter for which the judge is responsible outside of a court hearing, or otherwise attempting to gain an unfair advantage or inappropriately influence the conduct of the proceeding;

(b) seeking advice on matters relating to the Court's rules or whether a certain court document will be accepted for filing. Such enquiries should be directed to registry staff, noting that court staff cannot provide legal advice. The guide to communications with Registry staff can be found here;

(c) approaching chambers for allocation or duty judge rostering information or making decisions to approach chambers for a duty matter based on a specific judges' rostering arrangements. The relevant duty judge information is posted daily on the Court's website. The court also has specific arrangements in place for expediting matters (see the Central Practice Note) and specific list arrangements for various types of matters including, admiralty matters, corporations list matters and insurance list matters.

(d) unilateral communications, other than in relation to ex parte and urgent originating applications, particularly in relation to substantive issues in the litigation;

(e) irrelevant or unnecessarily burdensome communications, for example, copying chambers into email correspondence between the parties which does not require the Court's knowledge or involvement;

(f) communications that are scandalous or vexatious;

(g) sending to chambers, or copying chambers into, emails that disclose "without prejudice" communications (see also section 5 of the Guide to Communications with Registry Staff); and

(h) approaching chambers directly about the timing of the delivery of a reserved judgment. Any enquiries about reserved judgments are best directed to the Law Society or Bar Association in the relevant State or Territory or to the chambers of the Chief Justice (see the Central Practice Note paragraph 16.2).

4.2 Parties should bear in mind that, in certain circumstances, inappropriate conduct towards the court which disrupts the court from carrying out the administration of justice may constitute a contempt of court (see Parts 5 – 8 of the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF)).

5. Further information and contact details

5.1 The following resources complement the information in this guide and may be of assistance in considering whether to, and how best to, communicate with the Court:

(a) Hypothetical case studies that may help to clarify principles outlined in this guide are included in the attached "Appendix A – Case Studies";

(b) Guide to Communications with Registry Staff;

(c) Commonwealth Courts Portal / Federal Law Search;

(d) The "I am a Party (Information for litigants)" section of the Court's Website, including information to assist self-represented litigants.

5.2 Where, as outlined in this guide, it is appropriate to contact Chambers staff, the contact details for Chambers staff may be used as available on the Court's website.

5.3 Where website information or other Court resources may be insufficient to answer an enquiry, parties may contact their local registry.

Date of Guide:
25 October 2016

Appendix A

Hypothetical Case Studies

The following case studies, and names referred to, are provided as illustrative examples only, and are not derived from any actual case filed in the Court. They are intended to be a practical illustration of a number of the concepts addressed in this guide.

^[1] An "ex parte" application is an application brought by a party in the absence of, or without notification to other parties. An example of an application that may initially occur ex parte is an application for a search and seizure order. Certain procedures may also commence ex parte, such as the issuing of a subpoena.

^[2] John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [26].

^[3] R v Fisher (2009) 22 VR 343 at [38].

^[4] John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [22].