| Federal Court of Australia | |
| Notices to practitioners issued by the NSW District Registrar |
Admiralty and maritime matters (2005/1):
Note: This Practice Notice was superseded on March 1 by Practice Notice NSW 2006/2
This notice to practitioners is to confirm arrangements for the conduct of Admiralty and maritime work in the New South Wales District Registry of the Court and to outline what the Court expects of practitioners and litigants in the conduct of such matters.
The following are dealt with below:
Composition of the Panel
The Panel consists of four Judges: Tamberlin J, Emmett J, Hely J and Allsop J.
Matters Dealt with by the Panel
The Panel deals with proceedings under or by reference to Acts set out in annexure A. The work of the Panel is not limited to proceedings under the Admiralty Act 1988. In particular, practitioners should understand the general conferral of civil jurisdiction on the Court in all matters arising under a law of the Commonwealth Parliament under paragraph 39B(1A)(c) of the Judiciary Act 1903: see generally (2002) 23 Aust Bar Rev 29. Thus, for instance, any marine insurance dispute involving an issue under the Marine Insurance Act 1909 (Cth) is within the jurisdiction of the Court and part of the Panel’s work. Also, the work of the Panel includes administrative review such as applications under the Administrative Decisions (Judicial Review) Act 1977 for review of decisions made under the Acts set out in Annexure A, appeals from decisions of the Administrative Appeals Tribunal in relation to applications to that Tribunal for reviews of decisions made under these Acts and applications under sub-section 39B(1) of the Judiciary Act in relation to acts of officers of the Commonwealth by reference to these Acts.
Practitioners should ensure that Registry staff are advised at the time of filing, preferably by letter, that the matter is one for the Panel.
Role of the Procedure Judge
All interlocutory and procedural matters will continue to be dealt with by a Procedure Judge (currently Allsop J).
All directions hearings and interlocutory issues and hearings involved in bringing matters on for trial are dealt with by the Procedure Judge. At the appropriate time in the preparation and conduct of any matter it will be allocated a hearing date among the Panel judges in terms of the random allocation which underpins the docket system used by the Court.
Urgent Matters
If practitioners have urgent Admiralty or maritime applications, they should be made to Allsop J as the Procedure Judge or Tamberlin J, directly or via the Duty Judge. If neither Allsop J nor Tamberlin J is available, another Judge on the Panel (Emmett J or Hely J) should be approached. This arrangement is not intended to change the procedure under the Admiralty Rules as to the application for arrest to the Registrar. Urgent applications by practitioners to the Registrar to issue an arrest warrant out of business hours (including on weekends and public holidays) should be made by contacting the Law Courts Building’s Security Desk (telephone 02 9230 8025). The Security Desk will refer any practitioner to the Duty Registrar who will then make any required arrangements.
Approach of Practitioners and Litigants to Admiralty and Maritime Litigation
The use of a Procedure Judge is designed to expedite matters, reduce the number of directions hearings required and promote early resolution of claims.
At directions hearings, practitioners are expected to be able to answer questions about the real issues in dispute, the evidence which will be required (including any need for overseas witnesses), the issues (if any) in which technical expertise is required, when the case will be ready for hearing, how long the case will take and any other matter relevant to the preparation of the case for hearing, the listing of the matter and the hearing of the matter.
Parties are urged to agree to short minutes of order sufficiently prior to any scheduled directions hearing such that they can be sent, where agreed, by email to the Judge’s associate. Where possible, a directions hearing will be vacated if the parties can agree upon an appropriate regime prior to the nominated time and date of the directions hearing. An exception to this convenient method of procedure is where one or more parties is or are, or has or have been, in significant default of existing orders, or where there are difficult issues which need, sooner rather than later, to be ventilated. It is inappropriate for one party to send submissions, letters and partisan documents to the Judge. The facsimile machine and the email system are not to be used for private or unilateral filing of submissions or complaints without the leave of the Court, but if all parties agree on a communication being sent to the Judge it may be forwarded, without leave, to the associate. (The email address of the associate to Allsop J is as.allsopj@fedcourt.gov.au).
At some point in the procedural conduct of a matter, the Court will wish to understand the nature of the dispute, the real issues in dispute, how the real issues are to be proved and whether or not there are evidential difficulties, whether because of expert or overseas witnesses. The Court appreciates that in Admiralty and maritime matters both the plaintiff and the defendant may, on occasions, need extended periods of time to obtain instructions from overseas clients and to ascertain what did or did not happen in places or on ships which may be both far away and inaccessible. Nevertheless, due allowance being made for such matters, the Court expects the parties and their legal representatives promptly to ascertain, as far as is reasonably possible, the nature and extent of the facts which pertain to any particular case. This is not limited to the particular points which the party wants to prove. It is not an acceptable way of conducting litigation to 'put the other side to proof' on all issues. The parties are expected to identify the real and genuine issues in dispute, whether of fact or law, after due investigation.
Whilst the Court accepts the difficulties that may be inherent in many cases of ascertaining the facts with precision, the legal representatives of the parties are under an obligation to the Court to seek to co-operate with the Court by defining issues and limiting them to those which are truly in dispute and having those matters prepared as expeditiously and inexpensively to all parties as possible. It is the duty of the profession to assist the Court in carrying out the Court’s public obligation of the resolution of disputes by reference to what truly is, or should be, in dispute: see generally Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453, and see the speech by Hayne J 'Judicial Case Management and the Duties of Counsel', Wednesday 24 February 1999 to the Readers of the Bar Practice Course, Brisbane, contained on the High Court Website under the link 'publications'.
How the parties co-operate to identify the issues in dispute, and to agree on facts that are not truly in dispute is matter for the profession and their commercial clients.
An aspect of this co-operation between the parties’ representatives that the Court expects is the provision of information and documentation in a prompt and timely fashion. Where legal practitioners make reasonable requests for documents or information (whether strictly 'particulars' or not) those requests should generally be met without the delay. In some cases, for various reasons, the formality (and cost) of a verified list of documents is necessary.
The above matters should be made plain to clients. One method of doing so is to provide this Notice to Practitioners to clients. In dealing with questions of costs the Court will presume that clients have been made aware of the general approach and expectations of the Court reflected in this Notice to Practitioners.
ADR
Section 53A of the Federal Court of Australia Act 1976 provides for Court ordered mediation and arbitration (the latter only with consent). Immunity is conferred on the mediator or arbitrator: section 53C. The Court expects the parties to consider and discuss the utility of the use of any such ADR mechanism. The Court has Registry officers in New South Wales and other Registries who are knowledgeable in maritime matters and cargo claims and who are trained mediators. Mediation by way of early neutral evaluation by a Judge (whether from this Registry or from another) other than the Docket Judge can be arranged. Mediation can be used not only for the attempted resolution of the whole matter, but also to help identify and reduce issues in dispute or to eliminate procedural arguments.
The Court expects both sides always to seek early resolution of matters and to consider Court annexed mediation or early neutral evaluation. This is especially so for the speedy and cheap resolution of smaller cargo claims.
In appropriate cases, in particular small cargo claims, directions will be made on the first return date, or shortly thereafter, for a case management conference to be held before the Registrar as soon as possible. At this conference the Registrar will seek to identify whether the matter is appropriate for an early mediation, what issues are involved and the best method of disposing of the matter.
John Mathieson
District Registrar
8 February 2005