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FEDERAL COURT OF AUSTRALIA

“Federal Court Practice in a Nutshell” Presentation delivered at

The Bar Association of Queensland Sunshine Coast Bar Professional Development Day

TAFE and Sunshine Coast Community Legal Centre Maroochydore Queensland Saturday, 13 August 2016

___________________________________________________________________________ The Honourable Justice Logan RFD A Judge of the Federal Court of Australia 1

For a member of a regional Bar, the possibility of a brief to appear before the

Federal Court of Australia (Federal Court) might seem remote until the very

moment one was delivered to chambers. After all, such briefs are, in

Queensland, relatively uncommon, even in Brisbane.

For the history with respect to the establishment of the Federal Court, I

commend to you an article in the Australian Law Journal by the Honourable R J

Ellicott QC, sometime Commonwealth Attorney-General, Solicitor-General

and, briefly, Federal Court judge, who was intimately involved in the

establishment of the Court some 40 years ago.2

This is neither the time nor the place, much less am I in my present role suited,

to lament the demise of the “autochthonous expedient” and the related impact

on local access to justice, in a State as decentralised as Queensland, of the

1 Also a judge of the Supreme and National Courts of Papua New Guinea. The views expressed in this paper are personal, not those of either of those Australian or Papua New Guinea courts or the respective national governments.

2 R J Ellicott QC, The Autochthonous Expedient and the Federal Court, (2008) 82 ALJ 700.

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“Balkanisation” of the exercise of judicial power by the progressive

establishment of the Family Court of Australia, the Federal Court and, latterly,

what is now called the Federal Circuit Court of Australia. These courts are now

just a given.

Vast areas of civil jurisdiction which either once were exercised or might have

been expected to have been conferred upon the Supreme Court of Queensland,

insofar as the demands of a particular jurisdiction required a superior court,

have either been removed altogether from that court3 and vested in the Federal

Court or are concurrently exercised by that court and the Federal Circuit Court.4

Further, other areas of original jurisdiction once exercised by the High Court of

Australia5 are now exercised by the Federal Court or concurrently with the High

Court.6

So unless you are severely to limit your practice it is, I suggest, desirable to

have some general familiarity with the jurisdiction and practice of the Federal

Court. You will thereby be conferring a benefit not just on yourself but on your

local solicitors and the community you each serve.

My task this morning is therefore to provide you with some such general

familiarity, particularly with respect to aspects of the federal courts jurisdiction

which you are most likely to encounter in regional practice.

First, some pragmatic issues – rights of appearance and robing.

Rights of appearance

Possession of a current practising certificate as a barrister is not, in itself,

sufficient to give one a right of appearance in the Federal Court or, for that

3 For example, matters arising under the Bankruptcy Act 1966 (Cth). 4 For example, matters arising under the Corporations Act 2001 (Cth). 5 For example, income tax appeals. 6 For example, judicial review by “constitutional writs” in the Federal Court, pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) and, in the High Court, pursuant to s 75(v) of the Constitution.

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matter, in any other court established by the Commonwealth Parliament

pursuant to Chapter III of the Constitution. The right of appearance is governed

by s 55B of the Judiciary Act 1903 (Cth). In short, the effect of that section is

that the right of appearance is dependent upon a practitioner’s name being

entered in in the Register of Practitioners kept by the Registrar of the High

Court in accordance with s 55C of that Act. Presently, there are no special,

additional exams one must pass to enable this entry to be made. All that is

necessary is an application is supported by proof of current State admission.

It is, strictly, a contempt to seek to appear as a lawyer before the Court unless

one’s name is entered on this register and it can be a dis-entitling factor with

respect to recovery of costs.

Robing

The Court’s practice with respect to robing by those appearing as counsel is as

follows. Robes, and any related attire, are worn for:

• trials;

• appeals;

• all other final hearings, including the final hearing of a separate issue; and

• delivery of judgment after all such hearings.

Robes are not worn for any other hearing, including the hearing of an

interlocutory issue and matters before a Federal Court Registrar. Wigs are not

worn on any occasion.7

Jurisdiction

The Federal Court’s civil jurisdiction is now very broad indeed.

7 Federal Court website – Robing of Counsel: http://www.fedcourt.gov.au/law-and-practice/practitioners/robing

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This is the result of amendments to the Judiciary Act, as a result of which s

39B(1A) presently provides:

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

Apart from a summary criminal jurisdiction in respect of some federal offences,

the Court exercises a criminal jurisdiction to try with a jury on indictment cartel

conduct offences under the Competition and Consumer Act 2011 (Cth). The first

such indictment was presented earlier this year in the Court’s New South Wales

Registry.

Exceptions and qualifications on the breadth of civil jurisdiction conferred by s

39B(1A)(c) of the Judiciary Act are to be found elsewhere in that section. In

general though, save for family law matters, the Court has jurisdiction to hear

and determine any civil claim in a matter arising under a federal statute. In

addition, where such a federal issue has properly been raised as part of a claim

or of a defence, that jurisdiction includes jurisdiction to hear and determine

matters associated with that federal issue.8

Another aspect of the Court’s civil jurisdiction is the judicial review of

decisions of officers of the Commonwealth pursuant to s 39B(1) of the Judiciary

Act or the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR

Act). Jurisdiction under the ADJR Act is concurrent with that of the Federal

Circuit Court. In respect of most migration decisions, the original, judicial

8 s 32, Federal Court of Australia Act.

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review jurisdiction is exercised by the Federal Circuit Court9 with the Federal

Court exercising an intermediate appellate jurisdiction in respect of such

decisions.

A national jurisdiction

Registries of the Court have been established in each State and mainland, self-

governing Territory. Presently, there is at least one resident judge in each State

capital city. In Queensland, there are presently seven resident Federal Court

judges, the highest number to date resident in Queensland. While most cases are

heard in the Commonwealth Law Courts Building (in the State of New South

Wales and the Northern Territory, a shared facility with the Supreme Court)

now found in each capital city, the Court both in law and in practice truly is a

national court. Judges can, and do, sit outside capital cities and interstate as

required, particularly in the exercise of appellate jurisdiction.

In Queensland, quite apart from native title cases which have seen the Court sit

in all sorts of premises the length and breadth of the State, judges of the Court

are ever willing to sit in major regional centres. For many years, the Court has

enjoyed an harmonious, working relationship with the Supreme Court of

Queensland, pursuant to which Federal Court judges sit, as occasion requires, in

the major regional courthouses at Cairns, Townsville and Rockhampton.

Would a Federal Court judge ever set on the Sunshine Coast at the

Maroochydore Courthouse? Proximity to Brisbane, as with the Queensland

Supreme Court, would require very singular circumstances indeed to warrant

such a sittings. It is more likely that you, your instructing solicitor and client

would have to travel to Brisbane but there is no reason in law, nor, with

appropriate notice, in practice, why such a sitting could not be held.

9 s 476, Migration Act 1958 (Cth). This original jurisdiction is concurrent with that of the High Court under s 75(v) of the Constitution. As to the limited original, judicial review jurisdiction of the Federal Court in respect of migration decisions, see s 476A of the Migration Act.

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How the national jurisdiction is administered

From its inception, the Court has been innovative in relation to practice and

procedure, particularly in relation to interlocutory processes. There are a

number of reasons for this. One is that it is always easier to introduce radical

change on the establishment of a new institution than to persuade sceptics

accustomed to the ways of an existing institution that those ways really are

broken and do need fixing. Another is that the Court’s first Chief Justice, Sir

Nigel Bowen, disproved the general application of the advice Sir Own Dixon

famously gave to Sir Robert Menzies when the latter signified an intention to

enter politics, “Good lawyers often make good politicians but reconversion is

impossible”. Sir Nigel was a good lawyer, a good politician and, as both Chief

Judge of the Equity Division of the New South Wales Supreme Court and then

as the Federal Court’s Chief Justice, both a good judge and a good judicial

administrator.

Sir Nigel brought with him many of the practices of the Equity Division. That

explains a preferential use of evidence in chief by affidavit. He had also, when

Commonwealth Attorney-General, been a political promoter of the need for a

Commonwealth superior court to relieve the High Court of most of its original

jurisdiction and enable it to focus on its role as an ultimate appellate court.

Coming from New South Wales, he also had particular experience of the

leisurely way in which that State had embraced the reforms of the Judicature

Acts. Some of the practices he promoted were not so much new as revivals of

moribund reforms. Both that State and Queensland had, for example, made

legislative provision10 in the early 20th century for the expeditious disposition of

commercial causes but these practices had fallen into abeyance by the middle of

that century.

10 Commercial Causes Act 1903 (NSW); Commercial Causes Act 1910 (Qld).

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In any event, the result with the Court was a judicially directed, case

management approach to interlocutory procedures. Under Sir Nigel’s successor,

Chief Justice Black, this approach was evolved so as to provide for such

management via a particular judge assigned to that case under a “docket

system”. The inspiration for that came from the federal judicial system in the

United States. Now, under Chief Justice Allsop, these practices have further

been evolved so as to provide for individual case management under what is

known as the “National Court Framework”. The opportunity to implement this

has been facilitated by revolutions in digital technology which have allowed for

the establishment of an electronic court file for new filings.

National Court Framework

The National Court Framework has these goals:

• 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 done by the Court;

• develop the confidence of the profession and the community, particularly

in areas requiring a degree of specialised skill and knowledge; and

• broaden the base of judicial knowledge and experience in the Court.11

The following “great subject matter areas” or, as they are termed, “National

Practice Areas” (NPA) of the Court’s jurisdiction have been identified, some

with sub-areas:

• Commercial and Corporations NPA

• Commercial and Corporations NPA sub-areas:

o Commercial Contracts, Banking, Finance and Insurance

o Corporations and Corporate Insolvency 11 Federal Court website – Introducing the National Court Framework: http://www.fedcourt.gov.au/law-and-practice/national-court-framework#overview

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o General and Personal Insolvency

o Economic Regulator, Competition and Access

o Regulator and Consumer Protection

• International Commercial Arbitration

• Administrative and Constitutional Law and Human Rights NPA

• Native Title NPA

• Taxation NPA

• Intellectual Property NPA

o Intellectual Property NPA sub-areas:

o Patents and associated Statutes

o Trade Marks

o Copyright and Industrial Designs

• Employment and Industrial Relations NPA

• Admiralty and Maritime NPA

• Criminal Cartel Trials NPA12

All judges are now assigned to particular NPA. Filings within a State or

Territory registry are rotationally assigned to a particular judge of that registry

within that NPA for case management and trial. In the event that the resultant

trial workload is excessive, another judge assigned to that NPA either from that

registry or another of the Court’s registries may be allocated the trial. In this

way it is hoped to maximise the utilisation of the Court’s national judicial

resources. A national operations team, headed by a National Operations

Registrar, assists the Chief Justice in the case allocation and assignment

process.13

12 Federal Court website – Description of National Practice Areas (NPA): http://www.fedcourt.gov.au/law-and-practice/national-court-framework

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The allocation of judges to National Practice Areas is not confidential. The

allocations are to be found on the court’s website.14

The Court is in the process of issuing comprehensive general and NPA practice

notes to complement the Federal Court Rules 2011 and with respect to practice

under the National Court Framework generally and in particular NPA. These,

too, are available on the Court’s website.15

Case Management Conferences

It is a general feature of practice in the federal court that, after filing, an

originating application proceeds first to a case management conference

(directions hearing). The overarching purpose of these is to give practical voice,

within the individual docket system, to the legislative exhortations found in s

37N and 37M of the Federal Court of Australia Act 1976 (Cth) with respect to

the just resolution of disputes according to law as quickly, inexpensively and

efficiently as possible.

In my experience, which runs from practice in the Court under the very first of

the Queensland resident Federal Court judges, the Honourable G E (Tony)

Fitzgerald,16 these exhortations confirm rather than establish a particular

approach to litigation in the Court. At a case management conference my

judicial colleagues and I expect practitioners to be well informed about the

issues of fact and law in a particular case, mutually to have identified those

which are truly controversial and to cooperate in the narrowing of issues and

development of a case management plan yielding case specific directions to that

end. We are intolerant of process driven, costs consuming, interlocutory steps

14 Federal Court website – National Practice Area Judges: http://www.fedcourt.gov.au/law-and-practice/national-court-framework/npa-judges 15 Federal Court website – Draft Practice Notes: http://www.fedcourt.gov.au/law-and-practice/national-court-framework/practice-notes-consultation 16 Appointed in 1981.

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and, without evidenced reasonable excuse, of non-compliance with case

management directions.

Discovery is not available as of right, only by leave of the Court. If leave is

granted the resultant discovery will be confined to targeted subject areas,

directly relevant to truly controversial issues and be subject to a reasonable

search obligation.

Do not assume that evidence in chief by affidavit will be apt for every case.

Sometimes, a combined approach which entails evidence in chief in respect of

necessary but likely uncontroversial issues and oral evidence as to the balance is

appropriate; in other cases, evidence in chief orally may be the best option. The

expectation is that practitioners proactively and, to the maximum extent

possible, cooperatively, formulate directions about evidence tailored to the

requirements of a particular case.

Federal Court Case Management Handbook

In consultation with the Court, the Law Council of Australia has developed a

"Federal Court Case Management Handbook". A link to this publication is to be

found on the Court’s website.17 It contains a wealth of practical information

about case management in the Court. I commend it to you.

Electronic Court Files

The Court has now completed the implementation of its electronic court file

project. Filings in new cases are now to be lodged electronically and form part

of an electronic court file for each case.

This presents the following advantages:

17 Federal Court website – Law Council of Australia's Case Management Handbook: http://www.fedcourt.gov.au/law-and-practice/case-management-handbook

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• automatic acceptance of supporting documents. Where an electronic court

file exists most supporting documents that are eLodged will be stamped

with the seal of the Court and returned to the eLodger within minutes.

Case administration documents such as consent orders or correspondence

will be stamped received and also returned to the eLodger within

minutes;

• increasing the range of documents available for view by authorised users

on the Commonwealth Court's Portal;

• documents filed will be available promptly (twice a business day) on the

Commonwealth Courts Portal and, where possible, stamped orders will

be available instantly.18

For regionally based barristers and solicitors, the benefits of an electronic court

file are, if anything, greater than those practising in a capital city with ready

access to the physical presence of a registry of the Court. For regional

practitioners, the playing field of practice in the Federal Court has never been

more equal when compared with their capital city counterparts.

Urgent/Duty Matters

Based on my experience of the Court, in practice and now, latterly, as a judge,

one of the enduring myths, in Queensland at least, was that it was difficult to

bring on an urgent interlocutory application. This was never truly the case and it

most emphatically is not now.

In each Registry of the Court there is, each day, a dedicated Commercial and

Corporations Duty Judge who will hear all urgent applications in the

Commercial and Corporations NPA and a dedicated General Duty Judge who

will hear all other urgent applications that do not fall within the Commercial

18 Federal Court website – Electronic Court Files in the Federal Court of Australia: http://www.fedcourt.gov.au/law-and-practice/electronic-court-file

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and Corporations NPA. In addition, special provision is made for Urgent

Admiralty & Maritime NPA matters. You will find the name and chambers

contact details of the relevant duty judge in the Daily Law List on the Court’s

website.

If a case has already been allocated to the docket of a particular judge, the

urgent application will, if possible, be heard by that judge. If that is not possible,

the dedicated duty judge will hear the urgent application. The Court will assist

practitioners in relation to the bringing on of an urgent application. For this

purpose, liaison, via the Associate, with the chambers of the assigned duty

judge is permitted. Practitioners should brief the Associate about the nature of

the application, its level of urgency and desired urgent hearing dates.

The Court’s website contains detailed, practical advice about the practice with

urgent matters.19

Filing Fees

The Federal Court and Federal Circuit Court Regulation 2012 (Cth) as

amended sets filing, setting down and hearing fees in respect of the Federal

Court and, as to non-family law matters, the Federal Circuit Court. Details of

these fees as so prescribed are to be found via links on the Court’s website.20

There is no doubt that the fees are not trivial: for example, $3,745.00 to file an

originating application and $9,340.00 in respect of an appeal from a final

judgment of the Court, to say nothing of hearing fees. These fees are fixed by

the Executive Government, not by the Court. The regulations do provide

registrars with a power of exemption in certain cases.

19 Federal Court website – Urgent/Duty Matters: http://www.fedcourt.gov.au/law-and-practice/national-court-framework/urgent-duty-matters#howtoapply 20 Federal Court website – Court Fees: http://www.fedcourt.gov.au/forms-and-fees/court-fees

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When the Court, as a part of the judicial branch of the government of the

Commonwealth, exercises the judicial power of the Commonwealth to resolve a

dispute between parties, those parties are not being provided with a service, they

are being governed. That said, whether the prevailing fees are of a level which

represents an invalid interference by the Executive with access to the exercise of

that judicial power is, necessarily, not a subject upon which it is apt for a

serving judge to debate, especially at a conference such as this. For a judge, that

is a subject for determination, if ever raised, in court and on the facts of a

particular case.

Where there is concurrent jurisdiction as between the Court and the Queensland

Supreme Court one but certainly not the only relevant consideration in relation

to in which Court to file may well be comparative court fees. Most recently,

fees in the State courts have been fixed via the Justice Legislation (Fees)

Amendment Regulation (No. 1) 2016 (Qld).

When in practice, and now over a decade ago, I undertook, for the purposes of a

short note in Proctor, a comparative exercise as between then prevailing court

fees in the Federal Court and the Queensland Supreme Court so as to highlight

court fee differences in a case where there was a choice of forum because of

concurrent jurisdiction.21 I had advised that the proceeding be instituted in the

Queensland Supreme Court. Relative court fees were but one of a number of

considerations taken into account.

I know that the article occasioned the late Justice Richard Cooper some

consternation but the difference in usury exaction, even then, did not favour the

Federal Court. In my present position, it is best to leave an updated such

comparative exercise to the reader. In the case of courts having concurrent

21 The case raised causes of action under the then s 52 of the Trace Practices Act 1974 (Cth) and for passing off in respect of a trading name of the applicant operator an architectural practice and a website directory established by the respondent.

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jurisdictions, choice of forum decisions are always multi-factorial. And those

factors may not be all one way. It is unseemly enough for practitioners to tout

for business, much less should judges not do that.

Alternative Dispute Resolution

Your case management plan for any case in the original jurisdiction ought

always to include consideration of whether and when the reference of the case

to alternative dispute resolution is apt. The subject will be raised by the docket

judge. The Court has power to refer, compulsorily if thought fit, any case within

its civil jurisdiction to arbitration, mediation or some other alternative dispute

resolution process.22

In Queensland, each of the Court’s registrars is not just legally qualified but an

accredited mediator. In the latter role, they offer what is often a cost-effective,

successful alternative to mediation by others. It is up to you to make a

professional value judgment about who is most apt to mediate a particular case

instituted in the Court.

Of course, in many cases within the Court’s original, civil jurisdiction, it will be

necessary for both the applicant and the respondent to file a “genuine steps

statement” at an early stage in proceedings.23 These are not tokenistic. They are

taken into account by the Court in deciding whether and when to order any

ADR.

Law of evidence

By s 79(1) of the Judiciary Act it is provided:

(1) The laws of each State or Territory, including the laws relating to procedure,

evidence, and the competency of witnesses, shall, except as otherwise provided by the

22 s 53A, Federal Court of Australia Act. 23 rr 8.02 (applicants) and 5.03 (respondents), Federal Court Rules. And see the Civil Dispute Resolution Act 2011 (Cth).

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Constitution or the laws of the Commonwealth, be binding on all Courts exercising

federal jurisdiction in that State or Territory in all cases to which they are applicable.

The laws of the Commonwealth do “otherwise provide”, via the Evidence Act

1995 (Cth) (Commonwealth Evidence Act).

This Act is based on the so-called “Uniform Evidence Act”, examples of which

are also to be found in New South Wales and Victoria.24

Some of you, perhaps those who take an interest in the regulation of the

profession, may well be thinking this habit of self-styled uniformity by the

larger States is not confined to the laws of evidence. But that is to digress into a

subject as old as Federation itself. Further, its merits are not a subject for public

debate by serving federal judicial officers. In any event, such a digression would

not alter the present application in proceedings in the Court of the

Commonwealth Evidence Act. In many, if not most cases, the application of the

Commonwealth Evidence Act does not lead to any different admissibility

outcome to that which would occur under the Evidence Act 1977 (Qld) but the

latter now applies only to the extent that it is not inconsistent with the

Commonwealth Evidence Act.

Particular Areas of Jurisdiction – Industrial Cases

In Queensland and with the exception of those in the direct employ of the State,

most industrial relations issues are now federal. For those in regional practice,

the result is that a claim for compensation for what is termed “adverse action”

will be brought under the Fair Work Act 2009 (Cth) (FWA).

The Court has an appellate jurisdiction in respect of appeals from eligible State

or Territory courts in matters arising under the FWA.25 It exercises,

concurrently with the Federal Circuit Court, jurisdiction in relation to any civil

24 Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic). 25 s 565, FWA.

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matter under that Act.26 The Court, but not the Federal Circuit Court, also has

original jurisdiction in relation to any criminal matter under the FWA.27

This means that, with an “adverse action” case, parties have a choice as to

whether to institute the proceeding in the Court or the Federal Circuit Court. If

the case entails no systemic issue, but one employee and is likely to take five

days or less to hear, it ought to be instituted in the Federal Circuit Court. If you

choose to institute such a case in the Federal Court, expect to be asked at the

first case management conference why it ought not to be remitted to the Federal

Circuit Court.

Adverse action or industrial instrument breaches involving many workers across

an entire industry are more apt for the Federal Court rather than the Federal

Circuit Court.

The “five days or less” to hear is also a rule of thumb which is apt for most

concurrent jurisdictions shared as between the Federal Court and the Federal

Circuit Court. Within its assigned jurisdiction, the latter court is the place for

the resolution of short causes and is resourced and managed accordingly.

Particular Areas of Jurisdiction – Judicial Review

I have already mentioned that the Court and the Federal Circuit Court have

concurrent jurisdiction in respect of matters under the ADJR Act. However,

unlike the Court and with the exception of certain migration decisions, the

Federal Circuit Court does not have an original judicial review jurisdiction akin

to that conferred on the High Court by s 75(v) of the Constitution.

It is possible to join in an application to the Court under the ADJR Act, an

application under s 39B(1) of the Judiciary Act.

26 ss 562 and 566, FWA respectively. 27 s 562, FWA.

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In practice, if, having regard to the High Court’s judgement in Griffith

University v Tang,28 it remains uncertain as to whether the imputed decision is

one “under an enactment” or whether it is of an administrative character at all,

the judicial review application either conjoined, or just under section 39B,

should be brought in the Court. This type of case apart, there is no hard and fast

rule in relation to choice of forum. The more pervasive in its impact a particular

administrative decision, the more apt it will be for the Court rather than the

Federal Circuit Court.

For an application under the ADJR Act, the time limit for the institution of

proceedings is to be found in s 11 of that Act. When in practice and as a rule of

thumb, I adopted 28 days from the date of the decision as the time limit. Regard

to s 11 will show that this was a conservative position and that the

determination in a particular case of the time limit is not without its subtleties. I

suggest you try and avoid these subtleties if possible. Leave them to be

academics. In any event, there is, for evidenced cause, a discretion to extend

time which, while ultimately open-ended, is the subject of a definitive

discussion of relevant considerations by Wilcox J in Hunter Valley

Developments Pty Ltd v Cohen.29

The importance of doing more than just reciting in an originating application,

without particularity, grounds of review found in, for example, s 5 of the ADJR

cannot be overemphasised. Even if not struck out as meaningless, your client

will, very probably, become the subject of an adverse costs order as the price of

leave to file an amended application.

Many, if not most, judicial review cases take no more than a day to hear. Most

are conducted by reference to the terms the administrative decision and the

reasons, if any, which accompanied that decision, as well as the material before

28 (2005) 221 CLR 99. 29 (1984) 3 FCR 344.

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the decision-maker. The latter is usually introduced by way of an agreed,

indexed and paginated tender bundle.

Be wary of instituting judicial review proceedings if there is an adequate

alternative remedy notably, review on the merits by the Administrative Appeals

Tribunal (AAT). Sometimes, where the controversy is only one of law, the

existence of such an alternative is not fatal to the exercise of a discretion not to

grant relief on judicial review. The main thing is to advert to whether there is an

alternative and, if so, to have a compelling justification as to why that

alternative is not, in the particular circumstances, adequate.

Particular Areas of Jurisdiction – Appeals from the AAT

The reach of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC

Act) is increasingly pervasive. The effect of the SRC Act is also severely to

inhibit the ability of Commonwealth employees to sue the Commonwealth at

common law in respect of injuries suffered in the course of their employment.30

In combination, this makes the federal workers’ compensation review

jurisdiction conferred on the AAT increasingly important and, correspondingly,

increases the likelihood that, for a regional practitioner, an encounter with the

Court will come via an appeal against a tribunal decision on a question of law

under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

To my certain knowledge, there is also a substantial veterans’ community on the

Sunshine Coast. The AAT also exercises a merits review jurisdiction under the

Veterans Entitlements Act 1986 (Cth). This, too, may yield for the regional

practitioner the prospect of a s 44 AAT Act appeal brief.

Such appeals are best termed “statutory appeals” for, though termed an appeal

by the AAT Act, they are in point of law and exercise of original jurisdiction.

The relevant time limit is, in general, not later than 28 days after the date on

30 See ss 44 and 45 of the SRC Act.

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which a document setting out the terms of the decision of the tribunal is given to

the person concerned, though the Court has a power to extend time for

evidenced cause.31

What constitutes a “question of law” has proved an enduringly vexed subject in

the law generally. The most recent answer to that, in relation to s 44 appeals,

has been given by a specially constituted, five judge Full Court in Haritos v

Commissioner of Taxation.32 The existence of a question of law goes to

jurisdiction.

Jurisdiction – Appeals

The Court exercises an extensive, intermediate appellate jurisdiction.

Principally, this entails the hearing of appeals from:

(a) appeals from judgments of the Court constituted by a single

Judge exercising the original jurisdiction of the Court;

(b) appeals from judgments of the Supreme Court of a Territory

(other than the Australian Capital Territory or the Northern

Territory); and

(c) in such cases as are provided by any other Act, appeals from

judgments of a court (other than a Full Court of the Supreme Court)

of a State, the Australian Capital Territory or the Northern

Territory, exercising federal jurisdiction; and

(d) appeals from judgments of the Federal Circuit Court

exercising original jurisdiction under a law of the Commonwealth

other than in family law and child-support matters.

In respect of final judgements, a notice of appeal must be filed:

31 S 44(2A), AAT Act. 32 (2015) 233 FCR 315 at [62].

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(a) within 21 days after:

(i) the date on which the judgment appealed from was pronounced

or the order was made; or

(ii) the date on which leave to appeal was granted; or

(b) on or before a date fixed for that purpose by the court appealed

from.33

In respect of interlocutory judgments, the application for leave to appeal must be filed:

(a) within 14 days after the date on which the judgment was pronounced or the order was made; or

(b) on or before a date fixed for that purpose by the Court from which leave to appeal is sought.34

Regard should be had to s 24(1D) of the Federal Court of Australia Act for

particular provision in relation to what constitutes an interlocutory judgment.

Appeals from the exercise of the Court’s original jurisdiction by a single judge

will be heard by a Full Court of three judges or, exceptionally, five judges. The

composition of the Court for the exercise of an appeal from the Federal Circuit

Court is a single judge, unless a judge of the Court considers that it is

appropriate for the appellate jurisdiction of the Court in relation to the appeal to

be exercised by a Full Court.35 In practice, this decision is made by the Chief

Justice. Parties are entitled to and should make submissions as to why an appeal

from the Federal Circuit Court ought to be heard by a Full Court. An

appropriate time for the making of such a submission would be at a case

management conference in respect of the appeal. Most appeal cases are now

allocated to a particular judge for case management.

33 R 36.03, Federal Court Rules. 34 R 35.13, Federal Court Rules. 35 s 25(1AA), Federal Court of Australia Act.

21

Details as to the content of appeal books and preparation for hearing in respect

of appeals are to be found in the Practice Note, “App 2”.36

The Court already makes regular use of video link inter-State and also intra-

State to conduct case management conferences in both its appellate and original

jurisdictions. I suspect there may well, with some lateral thinking, be scope for

the further development of this practice in relation to regional centres in

Queensland.

The very existence of a Sunshine Coast regional Bar is testament to evolving

and emerging community needs. Insofar as those needs intersect with the

jurisdiction vested in the Court, revolutions in technology make it ever

increasingly possible for local practitioners locally to meet those needs. You

will find the Court co-operative in exploring ways in which to achieve this.

© J A Logan 2016, Moral right of author asserted. Non-exclusive publication licence granted to the Bar Association of Queensland.

36 Federal Court website – Practice Notes: http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes