In brief - Reform will improve Federal Court's efficiency and effectiveness
A fresh approach to case management, internal restructuring and more effective use of judicial expertise are among the Federal Court reforms outlined in the National Court Framework
, due to be rolled out in late 2014.
Pre-trial practice and procedures to be challenged
The framework seeks to achieve national procedural consistency across the court and use judicial expertise to create a truly national court and profession. The court will be divided into eight national practice areas, with a national consulting judge being appointed to oversee each practice area.
Practitioners, particularly in the commercial dispute space, should be prepared to let go of habitual procedural practices and engage with the real issues in the case from the outset. The framework will challenge the existing pre-trial practice and procedures and strip away the unnecessary layers of complexity. Practitioners will be expected to avoid trivial procedural disputes and focus on the real issues at hand.
Federal Court must preserve its role in region's justice system
In a speech delivered in Sydney in November 2014, the Chief Justice emphasised the important role the court holds in the Asia Pacific region's system of justice.
Speaking specifically about commercial growth in the region, the Chief Justice set out that the court must adapt to preserve its place as a leading international jurisdiction and strengthen the rule of law in the region.
The framework seeks to achieve this goal by improving the efficiency and effectiveness of the court through procedural reform. This will include a fresh approach to case management, an internal restructure and using judicial expertise within eight new national practice areas.
The reform must ensure that the Federal Court is perceived to be a consistent and cost-effective legal institution that is supplemented by a highly capable national legal profession.
Case management reforms to create time and cost efficiencies
The reforms focus on ensuring a uniform approach to case management by removing any perceived geographic idiosyncrasies that have developed in the existing system.
The entrenched approach to judicial case management will be upturned and focus directed to creating a consistent yet flexible approach to case management, particularly in commercial disputes which account for 40% of the court's cases.
Practitioners should be prepared for the new framework to challenge long-established, almost ritualistic, pre-trial steps and procedures of the current system. For example, discovery can no longer be taken for granted as a critical step.
In short, the framework aims to strip away unnecessary layers of complexity and have the parties identify and engage in the real issues from the beginning, with a view to decreasing the time and cost it takes to get a matter to hearing.
In a departure from the traditional docket system, the court will now formally consider the character of a matter as part of allocation. Sequential allocation, within the respective eight new specialty areas, will still be the primary method of allocation. However, regard will also be given to the nature, urgency and complexity of a dispute prior to allocation to a judge.
Federal Court to be divided into eight new practice areas
The court will be divided into eight practice areas:
1. Administrative, Human Rights and Constitutional
2. Native Title
3. Commercial and Company, with six subgroups:
- Insolvency and corporate and personal bankruptcy
- Regulator and consumer protection
- Competition (antitrust and access)
- International commercial arbitration
5. Intellectual Property, with three subgroups:
- Copyright and industrial design
6. Industrial Relations and Labour
7. Admiralty and Maritime
8. Criminal Cartels
National consulting judges to oversee each practice area
National consulting judges will be appointed to each practice area to ensure judicial expertise and consistency.
Judges will predominantly hear cases within their speciality areas, but not exclusively, as there is a desire to ensure that the bench maintains its breadth of experience and that the expertise of individual judges does not become too narrow. There will be opportunity for judges to gain experience in the specialty areas that are of particular interest to them.
The new framework will involve the use of fully searchable electronic files. The state registries will remain, but there will be national practice areas.
Uniform approach to registry and administration
National consulting judges will oversee the administration of the practice areas nationally at both the judicial and registry level. A national operations registrar will be tasked with administrative conduct of the court, including allocation and reallocation of cases depending on workloads.
Skilled registrars will preside over the specialty lists. Registrars will be overseen by the consulting judges to ensure that a nationally uniform approach is applied.
New practice notes to help expedite the process
New practice notes are being prepared. There will be a central "general" practice note supplemented by subject specific notes. In theme with the framework, the practice notes will focus on how an outcome should be brought about without becoming bogged down in the process. The emphasis will be on engagement with the real issues from the start and explaining what is expected of practitioners.
Early initial scheduling conferences will be fixed, we expect usually 45 days after the initiating application is filed. The court will be aiming to fix trials within six months of the initial scheduling conference. Judgements will be issued within three to six months of a hearing. If there is a delay, the court will inform the parties when they may expect judgement.
Reducing costs of getting commercial disputes to hearing is a key goal
One of the key goals of the new framework is to reduce the cost it takes to get commercial disputes to hearing. To minimise disputes surrounding costs, the court will be encouraging lump-sum costs orders.
Duty judge arrangements will remain as they are. The Chief Justice expressed that it is desirable to keep these arrangements relatively similar to the Supreme Courts in each state for simplicity.
The Commercial and Company list will begin in late 2014. The balance of the lists will commence by April 2015.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.