DoWnloaD - Thomson Reuters

What will be the greatest challenge for
practitioners resulting from the implementation
of the new Federal Court Rules
Section 37M of the Federal Court of Australia
Act 1976 (Cth) stipulates that Federal Court
proceedings must be conducted to facilitate the
overarching objective of justice and efficiency.
Proceedings must be determined according to
law, as quickly, inexpensively and efficiently as
possible. The court exercises its powers in a way
that advances the overarching objective. Lawyers
must assist their clients in this respect. Failure in
this duty may result in an order for costs against
the lawyer.
Lawyers’ responsibilities start even before taking
a proceeding in the Federal Court. They must
assist their clients in preparing a genuine presteps
statement describing the attempts to settle
the dispute before taking court action. Failing to
give a proper genuine pre-steps statement may
influence the court’s decision on costs.
A notice of appearance is no longer part of
Federal Court proceedings. However, the
respondent is required by the rules to file a notice
of address for service. A party falls into default
by failing to do an act required by the rules or an
order of the court, attend a hearing or prosecute
or defend a proceeding with due diligence. The
court may give a default judgment against a
defaulting party.
The Federal Court Rules 2011 basically retain
the previous pleading rules. The 2011 rules do,
however, emphasise that pleadings must give
proper notice of the case to be put at the trial,
prevent surprise at the trial and enable the
opposite party to collect evidence. Particulars in
the pleadings must be adequate for this purpose.
Discovery of documents can be carried on only
with a court order. The court may order standard
or non-standard discovery, depending on the
needs of the case and the application of the
overarching objective.
As with the previous rules, orders for costs
are within the court’s discretion. But where a
party has the benefit of an order for costs the
amount recoverable from another party is the
amount “fairly and reasonably incurred” in
conducting the litigation, as distinct from the
costs reasonably and properly incurred according
to the previous rules. This may result in a greater
amount being recovered under an order for
costs. The amount of costs is determined by
assessment or taxation by a taxing officer of the
court. Initially, the taxing officer estimates the
costs on receipt of a bill of costs without hearing
the parties. If there is an objection the taxing
officer convenes a confidential conference. A
more formal taxation, on notice to the parties,
proceeds only if the parties cannot agree at the
confidential conference or if a party requests a
full taxation.
With the revision of the inter-relationship of
federal and State jurisdiction, what are some
of the consequences for the jurisdiction of
State courts
State legislation cannot confer on a State court
a function or jurisdiction that is incompatible
with a judicial function as comprehended in the
Commonwealth Constitution. This is because
the Constitution contemplates that federal
jurisdiction may, by Commonwealth legislation,
be conferred on a State court. State courts
must satisfy the requirements of a court
according to the Constitution. For example,
State legislation that required the Supreme
Court of New South Wales to make an ex
parte order for property restraint because of
suspected criminal activity was declared invalid
in International Finance Trust Company Ltd v New
South Wales Crime Commission (2009) 84 ALJR
31. This jurisdiction was incompatible with the
judicial function of the Supreme Court as a court
on which federal jurisdiction may be conferred
under the Constitution.
More information about
Australian Civil Procedure
can be found on page 82
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