Federal Court of Australia

Practitioners’ Consultation Forums 11 November & 1 – 3 December 2015

Justice Jessup & Justice BuchananNational Coordinating Judges

Employment and Industrial Relations NPA

National Court Framework (NCF) &Employment & Industrial Relations National

Practice Area (NPA)

Topics for discussion

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Overview of the National Court Framework - Objectives- Key features- National Practice Areas &

Sub-Areas

Draft Practice Notes (PN)- Central Practice Note – National

Court Framework & Case Management

- Employment and Industrial Relations NPA Practice Note

Employment & Industrial Relations National Practice Area - Jurisdiction- NPA Judges- Filing Overview

National Court Framework The NCF is one of the most fundamental reforms of the Court since its

inception

The NCF has four main goals, to:

- organise and manage nationally the whole of the Court’s work by reference to the great subject matter areas of the Court’s work

- organise the Court’s resources to meet the demands of the broad range of work undertaken by the Court

- develop the confidence of the profession and the community, particularly in areas requiring a degree of specialised skill and knowledge

- broaden the base of judicial knowledge and experience of the Court

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NCF – Key Features

Court Structure

Practice &

ProcedureAllocation

National approach Eight National Practice

Areas (NPA) National and Registry

Coordinating NPA Judges Dedicated NPA Judges Nationally consistent

Registry arrangements

Move from process-driven case management to flexible & tailored case management

Nationally consistent and simplified practice

New Practice Notes – Central, NPA and general

National Duty systems Consistent Corporations Lists Timely & managed judgment

delivery

Docket system remains Consistency

through centralised allocations

Dedicated groups of Judges receiving matters in their NPAs

Character of the matter guiding the allocation

Move from a state-based structure to subject-based structure

Court’s work organised and managed nationally by reference to subject matter areas – National Practice Areas and Sub-Areas

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NCF – National Practice Areas (NPAs)

National Coordinating Judges(+): Justice Jessup Justice Buchanan

Registry Coordinating Judges (*): NSW/ACT :

- Justice Buchanan- Justice Katzmann

VIC/TAS:- Justice North- Justice Bromberg

QLD- Justice Collier - Justice Rangiah

SA- Justice White

WA- Justice Gilmour

NSW & ACT Rares JBuchanan J+* Flick JPerram JKatzmann J*Wigney J

VIC & TAS North J*Jessup J+Tracey JBromberg J*Pagone JMortimer J

QLD Collier J*Logan JReeves JRangiah J*

SA Mansfield JBesanko JWhite J*

Wa Siopis JGilmour J*Barker J

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Employment & Industrial Relations NPA - Judges

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Employment & Industrial Relations NPA – Filings Overview

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Employment & Industrial Relations NPA – Filings Overview

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Employment & Industrial Relations - Jurisdiction

Matters arising solely under any of the following Acts is to be commenced in the Fair Work Division of the Court:

- Fair Work Act 2009 (Cth)

- Fair Work (Registered Organisations) Act 2009 (Cth)

- Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

- Workplace Relations Act 1996 (Cth) as it may continue to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) or

- Building and Construction Industry Improvement Act 2005 (Cth);

All other matters are to be commenced in the General Division of the Court

Subject to questions of judgment, the following matters fall within this NPA:

‐ matters involving the exercise of jurisdiction under the Fair Work Act 2009 (Cth); the Fair Work (Registered Organisations) Act 2009 (Cth) and the Fair Work (Building Industry) Act 2012 (Cth)

‐ matters where the issues relate to the conduct of an employer/employee or the conduct of any association of employers/employees or their officers/members in that capacity:

o arising under the Competition and Consumer Act 2010 (Cth) boycotts, conduct of employee organisations, prohibited arrangements for goods and services or misleading conduct

o arising under any anti-discrimination legislation or regulation of the Commonwealth or State

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Employment & Industrial Relations - Jurisdiction

‐ matters under the:

o Public Service Act 1999 (Cth) or regulation

o Independent Contractors Act 2006 (Cth)

o Safety, Rehabilitation and Compensation Act 1988 (Cth), including appeals under s 44 of the Administrative Appeals Tribunal Act 1976 (Cth)

‐ matters within the Court’s jurisdiction under s 273A of the Workplace Health and Safely Act 2011 (Cth), whether or not that jurisdiction is brought in the Fair Work Division

‐ employment-related matters involving an administrative decision of a person holding office under a Commonwealth Act

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Employment & Industrial Relations - Jurisdiction

‐ matters where relief is claimed in the nature of a constitutional writ under s 39B of the Judiciary Act 1903 (Cth) against the Fair Work Commission

‐ employment related matters involving appeals or referrals from the Administrative Appeals Tribunal

‐ matters arising under a contract of employment or involving rights, entitlements or obligations of any employer or employee

‐ any other proceeding the character of which is substantially employment or industrial relations

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Employment & Industrial Relations - Jurisdiction

The draft Central Practice Note sets out fundamental principles concerning the NCF, together with the key principles of case management procedure including:

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Draft Central Practice Note:NCF & Case Management

All other practice notes to be read within the framework established in Central Practice Note.

- Docket system - Allocation Principles- Urgent originating applications- Injunctions and undertakings- Commencing Proceedings- Overarching Purpose- Case Management- Alternative Dispute Resolution

- Discovery- Evidence & Witnesses- Further interlocutory steps- Pre-Trial Case Management

Hearing- Communication with Chambers- Judgment - Costs

Individual docket system - introduced in 1997 & remains as part of the NCF

Matters allocated to the docket of a particular judge at or about the time of filing and will remain with that judge for case management and disposition

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Draft Central PN - Docket System

Draft Central PN - Allocation Principles When filing, parties select a relevant NPA and sub-area. The Court may

identify and change the NPA and/or sub-area if it identifies the dominant character of the matter to be different from the NPA selected

The matter will then be allocated to a Judge in the NPA Matters are allocated on rotation to judges in the NPA and sub-area in the

registry of filing, subject to:- availability of Judges in the NPA in the registry of filing- considerations of balance of workload and commitments of judges and - in rare circumstances character of the matter

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Urgent Originating Applications- ‘Direct to chambers’ duty mechanism except for self-represented litigants- Different duty procedures depending on the type of matter:

o Commercial and Corporations NPA Duty Systemo National General Duty System for all other NPAs

- Duty Judge contact information is updated on the Daily Court List

Urgent (and non-urgent) Interlocutory Applications- Should be brought to the docket judge’s attention who is responsible for

the case management of the matter- If the docket judge is unavailable then it should be brought to the

attention of the relevant Duty Judge or NPA Coordinating Judge

Injunctions & Undertakings- Special consideration, particularly ex parte injunctions & undertakings

given to the Court as to damages when interlocutory orders are made

Draft Central PN - Urgent Applications

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Ensure the most appropriate & effective case management is adopted

Key objectives:

- reduce costs and delay so there are fewer issues in contest

- of those issues, to ensure there is no greater factual investigation than justice requires

- as few interlocutory applications as necessary for just and efficient disposition of the matter

Draft Central PN - Case Management Objectives

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At the time of filing, parties will be able to seek an expedited or truncated hearing process and tailored or concise pleading processes. For example - Concise Statements:

- statements filed with the originating application

- no further originating material is required to be filed until ordered

- used to bring the key issues & facts, primary legal grounds and essential relief sought

- no longer than 5 pages

Draft Central PN - Commencing Proceedings

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First case management hearing is integral to case management

Aim is to identify the issues at the earliest possible stage

For the first case management hearing, parties should consider:

- most appropriate efficient preparation and steps required i.e. o discovery o evidenceo method of trial

- possibility of listing the matter for hearing (where possible within 6 months of the case management hearing)

- Available dispute resolution options including mediation

- Case Management Imperatives

Draft Central PN - Case Management Hearings

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The Court expects parties will always consider / seek an early resolution of matters utilising the broad range of ADR options available, including mediation- s53A Federal Court Act and Part 28 Federal Court Rules

The Court expects parties to be informed about ADR processes and when attending mediation:

- participating in good faith negotiations meaningfully

- narrowing the issues and / or

- reaching mutually acceptable resolution

Draft Central PN - Alternative Dispute Resolution

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Discovery can be burdensome and costly. The Court expects parties:- to minimise its burden- have discussed discovery and agreed on a protocol for discovery prior to a

request being made

Commercial & Corporations NPA Practice note sets out two discovery techniques that may also be useful in all NPAs:

1. Redfern Discovery Procedure- Parties collaboratively prepare a schedule, supervised by the Court- it is an expeditious process that takes account of the financial and

operational burden of litigation

2. Memorial Procedure – for discovery and evidence- A request to use this procedure should be made in the concise

statement or any stage prior to filing a substantive statement of claim- Early in the proceeding, parties file their pleading-related material

together with key documents & evidence in one consolidated process

Draft Central PN - Discovery

Parties should:- consider and confer about managing evidence in the most effective,

efficient and economical way- consider how to best lead evidence: written v oral- focus on providing sufficiently relevant evidence- avoid unnecessary or prolix affidavits, when using written evidence

The Court supports the use of innovative tools to manage evidence including:- Statements of agreed & disputed facts- Joint reports and concurrent expert evidence- Organisation of evidence into discrete components

Parties should limit the number of witnesses they rely on to the minimum necessary to prove / disprove the issues in dispute

Expert Evidence and Survey Evidence practice notes are currently being developed. It is important that parties be familiar with the requirements and information set out in these practice notes

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Draft Central PN - Evidence & Witnesses

Draft Central PN - Further Interlocutory Steps

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Interlocutory steps should be kept to minimum and wherever possible these matters will be dealt with ‘on the papers’

The Court expects parties will have conferred in good faith prior to listing an interlocutory dispute

Parties should consider the use of Court registrars for mediations or confidential conferences over interlocutory disputes

If there is a dispute of substance, the Court will usually set a timetable for the filing and service of supporting material & written submissions

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Generally held 3 weeks prior to the scheduled trial date

Opportunity to deal with any outstanding matters before the start of the trial

Parties expected to have conferred prior to any Pre-trial Case Management Hearing to identify and agree on the most efficient trial process. Proposed orders should be forwarded to the docket judge prior to the hearing

Parties are expected to be able to properly address the below issues at the Pre-trial Case Management Hearing

- all ADR processes have been exhausted to resolve the dispute

- all interlocutory steps are concluded

- how to best manage the trial including: accurate estimate of length; order and timing of witnesses; any special requirements for witnesses

Draft Central PN - Pre-Trial Case Management Hearings

Draft Central PN - Written Submissions

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Written submissions are a very useful way to shorten addresses in both final and interlocutory hearings, provided they are prepared well

Written submissions should be prepare by the advocate who will address the Court and not the supporting lawyers

Draft Central PN - Judgment The Court aims to deliver judgment as soon as is reasonably practicable

In the ordinary course (& subject to the size & complexity of the matter) the Court will endeavor to deliver judgment resolving the substantive dispute within 3 months of the receipt of the final submissions

If a judgment is not forthcoming within 6 months, the Court will inform the parties of the anticipated time for delivery of the judgment

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Employment & Industrial Relations NPA:Draft Practice Note

All the Practice Notes are to be read in conjunction with the draft Central Practice Note

Certain matters are largely dealt with by the draft Central Practice Note including: Urgent matters; ADR; Discovery and Pre-Trial Hearings

New NPA Practice Notes will contain flexible procedures for the commencement of proceedings or filing of tailored pleading material relevant to that NPA & any flexible procedure set out in the Practice Note of one NPA may be applied to any other NPA

Key elements of the Employment and Industrial Relations NPA Practice Note:- Overview- Commencing Proceedings- Case Management- The Trial

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Incorporates proceedings that are substantially of a character of employment and industrial relations

The nature of the matter may involve a question of judgment – for example:

- A matter involving alleged discrimination in connection with employment may be a Administrative and Constitutional Law and Human Rights NPA matter or an Employment & Industrial Relations matter

- A matter involving provisions s 45D, 45DA, 45DC, 45DD, 45E , 45EA, 45EB and s31 of Schedule 2 of the Competition and Consumer Act 2010 (Cth): may be a Commercial & Corporations NPA matter or an Employment & Industrial Relations NPA matter

Draft Employment & Industrial Relations PN - Overview

Subject to the Central Practice Note, an originating application must be accompanied by a statement of claim or affidavit

where commenced on a statement of claim:- defence must be filed within 28 days (r 16.32) - any reply filed within a further 14 days (r 16.33)

where commenced on affidavit:- affidavit is treated as a statement of the applicant’s factual case- Court assumes the applicant is content to have the trial measured against the

facts set out in the affidavit

if the respondent files an affidavit in reply - treated as a statement of the respondent’s factual case in the proceeding- Court assumes the respondent is content to have the trial measured against

the responses and facts set out in the respondent’s affidavit

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Draft Employment & Industrial Relations PN – Commencing Proceedings

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Draft Employment & Industrial Relations PN – Commencing Proceedings (continued) Where a respondent does not file an affidavit, the Court will assume that the

respondent is content to have defence measured against the facts in the applicant’s affidavit

In the normal course, the respondent to file an affidavit within 28 days after the date of service of the originating application

For s39B Judiciary Act matters against the Fair Work Commission:- each party bringing the application shall be named as the First Applicant,

Second Applicant and so on

- Each of the other parties to the proceeding should be named as First Respondent, Second Respondent and so on

- the Fair Work Commission shall be named as the last respondent. The names of the President, Vice Presidents, Deputy Presidents, Commissioners, Members or persons holding delegations should not appear in the title of the proceeding

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Draft Employment & Industrial Relations PN – Commencing Proceedings (continued) Where relief is claimed against the Fair Work Commission under s 39B of the

Judiciary Act or s 563(b) of the Fair Work Act the application will be reviewed by the National Appeals Coordinating Judge, National Appeals Registrar and Chief Justice to decide whether a single judge or a Full Court should hear the matter

To facilitate this review, when such an application is filed, the applicant should in addition to an affidavit(s) in support, file a statement as to:- what the error is that is said to give rise to relief under s 39B or s 563(b)

- whether, and if so why, the application should or should not be heard by a Full Court

- if a degree of expedition is required, clearly state that fact and the reasons for expedition

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Draft Employment & Industrial Relations PN – Case Management

After the close of pleadings or expiration of time for filing the respondent’s affidavit, the Court will list the proceeding for a case management hearing

In the normal case, the Court assumes that other than any necessary pre-trial hearing, after the first case management hearing, further directions / case management hearings will not be required

Parties are expected to give attention to a number of matters at the case management hearing, which are set out in the draft practice note

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Draft Employment & Industrial Relations PN - Trial

To the extent the matter involves a question of fact, the Court:

- will usually expect evidence-in-chief to be led orally

- will not necessarily accept an agreement reached by the parties to the contrary – s47(5) Federal Court Act

To the extent that evidence is given orally, the parties will be expected to:

- exchange (but not file) an outline of proposed evidence to be given by each chief witness no less than 14 days before the final hearing.

- subject to leave of the Court, these statements will not be the subject of cross examination or tendered as a prior statement of the witness

Further information on the National Court Framework & the

Employment & Industrial Relations National Practice Area

can be found on the Court’s website www.fedcourt.gov.au

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Further Information