Referee and Assessor Practice Note (GPN-REF)

J L B Allsop, Chief Justice 03 November 2022

General Practice Note

1. Introduction

1.1 This practice note provides guidance on the Court's practice and procedure relating to orders of referral and orders for the appointment of an assessor, including the standard terms of such orders.

1.2 It is to be read together with:

(a) the Central Practice Note (CPN-1) which sets out the fundamental principles concerning the National Court Framework of the Federal Court and key principles of case management procedure;

(b) the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"); and

(c) the Federal Court Rules 2011 (Cth) ("Federal Court Rules").

1.3 It supplements the Central Practice Note (CPN-1), in particular Part 7 (Overarching Purpose) and Part 8 (Case Management).

1.4 It applies to any civil proceeding and takes effect from the date it is issued and to the extent practicable applies to proceedings whether filed before, or after, the date of issuing.

1.5 While a standard practice has benefits, this practice note and the example forms of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case.

2. References

2.1 This practice note, insofar as it relates to references, supplements Division 28.6 of the Federal Court Rules.

Case Management

2.2 The purpose of making a referral to a referee or referees is to facilitate a partial resolution of the dispute, when to do so would further the achievement of the overarching purpose of civil practice and procedure in Part VB of the Federal Court Act.

2.3 Consistent with Part 8.5 of the Central Practice Note, prior to any case management hearing (including the first), parties and their lawyers should consider how best to manage justiciable issues, including whether or not some or all issues are susceptible to being referred to a referee under s 54A of the Federal Court Act and Division 28.6 of the Federal Court Rules.

2.4 Case management is not limited to the efficient identification of the real issues in dispute and it extends to the development of efficient and just modalities of hearing cases, and the recognition that judicial resources are finite and are to be marshalled with discrimination in the public interest. These considerations transcend the specific interests of the parties and involve the administration of justice generally. The Court’s resources must be deployed in such a way as to facilitate the efficient disposition of all of the Court’s workload. Complex cases, and cases involving the determination of a large number of individual claims, require the parties and those who advise them to consider carefully how the dispute can be resolved efficiently and with a proportionate demand on the Court’s time. Additionally, parties need to be aware that: “[t]he proposition that all litigants are entitled to have a judge … decide all issues of fact and law that arise in any litigation, is unsustainable”: Super Pty Limited (formerly known as Leda Constructions Pty Limited) v SJP Formwork (Aust) Pty Limited (1992) 29 NSWLR 549 at 558 per Gleeson CJ.

Referral to a Referee

2.5 A reference allows the Court to refer proceedings and questions to a referee who will, subject to the control and directions of the Court, conduct an inquiry and produce a report to the Court. The findings of a referee are akin to the verdict of a special jury; however, a referee is not a delegate of the Court and does not exercise judicial power.

2.6 Generally, there are two types of referees:

(a) a subject matter referee who has expertise in an area of specialised knowledge; and

(b) an independent fact-finder, such as a retired judge or senior barrister, experienced in resolving factual disputes.

2.7 Although usually references involve complex factual questions that require the references to be conducted by subject matter referees, the reference process is not so limited. Section 54A of the Federal Court Act provides that the Court may refer for inquiry and report either a “proceeding in the Court” or “one or more questions arising in a proceeding”.

2.8 In appropriate cases, the Court may also refer a particular question (for example in respect to discovery, security for costs, or legal costs to be awarded) to a Registrar to prepare a report.

Conduct of Inquiry

2.9 Upon an order of referral being made, the parties will generally be required to give a brief statement of the findings of fact and law contended by the party to the referee and any other party within the time fixed by the Court or the referee (see r 28.65 of the Federal Court Rules).

2.10 The conduct of an inquiry by a referee is subject to the control and direction of the Court. However, subject to any order made by the Court to the contrary, a referee:

(a) may conduct the inquiry in any way that the referee thinks fit so as to enable a just, efficient, timely and cost-effective resolution of the reference without undue formality; and

(b) will not be bound in the inquiry by the rules of evidence but may be informed in any way that the referee thinks fit.

2.11 Depending upon the complexity of the proposed inquiry, when appointing a subject matter referee, the Court may appoint an independent barrister to provide assistance to the referee to ensure:

(a) the referee’s report addresses the correct questions and is expressed in such a way as to maximise its usefulness; and

(b) the inquiry is conducted in accordance with the requirements of procedural fairness.

Referee Report

2.12 Once a referee has given the report to the Court, it will be provided to the parties by the Associate to the docket judge. After receiving the report, a party may, on application, ask the Court to (among other things) adopt, vary or reject the report, in whole or in part.

2.13 The discretion to adopt, vary or reject a report is to be exercised in a manner consistent with both the object and purpose of Part VB of the Federal Court Act and Division 28.6 of the Federal Court Rules the reality that the right to be heard does not involve the right to be heard twice.

2.14 It is undesirable to attempt to confine the manner in which the discretion is to be exercised. However, the intensity of scrutiny by the Court of a report (or a part of a report) at an adoption hearing will necessarily depend upon the relevant context, including (but not limited to) the following:

(a) the importance of the issue(s) addressed by the disputed aspect of the report;

(b) whether the disputed aspect of the report deals with a question of fact or the application of legal standards to established facts;

(c) whether the report shows a thorough, analytical and scientific approach by a subject matter referee; and

(d) the futility and cost of re-litigating an issue where the parties have had the opportunity to place relevant material before the referee.

2.15 A report of a referee has no effect unless and until the Court chooses to adopt it: see Najjar v Haines (1991) 25 NSWLR 224 at 246 per Clarke JA and 270 per Rogers A-JA. 

2.16 The usual order for costs of a reference is that the costs be paid in the first instance by each party to the proceeding in equal shares, subject to any further orders as to costs.

2.17 An example form of an order of referral is annexed to this practice note (Annexure A, RTF 132 KB).

3. Assessors

3.1 Assessors have a role fundamentally different to that of referees. An assessor assists the Court in fulfilling its role to resolve contested factual issues and will only be appointed in the event that the judge considers that such assistance is necessary or desirable. This will usually be only where the expert evidence is particularly complex. For an explanation of the history of assessors and how they have been used in different litigation contexts, see McNickle v Huntsman Chemical Company Australia Pty Ltd (Assessors) [2021] FCA 780 per Lee J.

3.2 Depending upon the assistance required, an assessor can perform a variety of functions at the discretion of the appointing judge at the pre-trial, trial and post-trial stages of the proceedings including: see Hon Justice J B R Beach, “The Use of Assessors in Class Actions” (2015) 129 Precedent (Australian Lawyers Alliance) 15.

(a) acting as a human primer to deliver tutorials to the judge pre-trial on relevant specialised topics: see for example Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] RPC 169 at [135] per Lord Hope of Craighead;

(b) explaining the expert reports to the judge, including any joint report;

(c) answering questions that a judge might have regarding the technical evidence;

(d) sitting with a judge at trial to listen to the technical evidence and to help the judge understand it, in and out of court;

(e) assisting the judge with any basis or relevance evidentiary objections in a complex technical matter;

(f) putting questions directly to counsel or witnesses at the hearing or suggesting questions for the judge to put to counsel or witnesses;

(g) generally, acting as a discipline on the behaviour of expert witnesses in a concurrent evidence session;

(h) conferring with the judge after trial to assist the judge to get the technical concepts correct; and

(i) reviewing draft judgments for technical accuracy, but solely against the evidence adduced by the parties.

3.3 Additionally, as has long been the case in Admiralty, an assessor can assist a Full Court in an appeal involving complex technical evidence.

3.4 It is important to note that the role of an assessor is not to be a witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and cannot be appreciated by the parties until judgment is given. Rather, the assessor is a person with specialised knowledge who is available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence to be adduced (and then admitted) at the hearing: see Richardson v Redpath, Brown & Co Ltd [1944] AC 62 at 70 per Viscount Simon LC, with whom Lords Thankerton, Russell of Killowen, MacMillan and Wright agreed.

3.5 An express power to appoint an assessor is contained in legislation regulating the conduct of specific types of proceedings in this Court, specifically, s 83 of the Native Title Act 1993 (Cth) and s 217 of the Patents Act 1990 (Cth).

3.6 Although there is no express power dealing with assessors in the Federal Court Act or the Federal Court Rules, there is power to appoint as assessor:

(a) in a class action pursuant to s 33ZF of the Federal Court Act where the appointment of an assessor will assist in determining an issue, and thereby can be regarded as appropriate or necessary to ensure that justice is done; and

(b) in other proceedings:

(i) pursuant to s 23 of the Federal Court Act, which provides that the Court has power to make an order which is capable of being properly seen as “appropriate” to be made by the Court in the exercise of its jurisdiction: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 per Deane J; or

(ii) pursuant to the implied power of the Court if it is “necessary” to the exercise of its jurisdiction in the sense of being reasonable in the circumstances: see Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at 452 [51] per Gaudron, Gummow and Callinan JJ. 

3.7 In order to ensure the appointment of an assessor does not give rise to any procedural unfairness, prior to any appointment the Court will hear the parties on the subject of a protocol of disclosure of the character of assistance to be given and when making an order for the appointment, the Court will define with specificity the role to be fulfilled by the assessor in the proceeding.

3.8 Ordinarily no application should be made for the appointment of an assessor without the issue first being raised at a case management hearing.

3.9 The usual order for costs of an assessor is that the costs be paid in the first instance by each party to the proceeding in equal shares, subject to any further orders as to costs.

3.10 An example form of an order for appointment of an assessor is annexed to this practice note (Annexure B, RTF 116 KB).

4. Further practice information and resources

4.1 When making an application for an order of referral or orders for the appointment of an assessor, parties and practitioners should also familiarise themselves with:

(a) the Central Practice Note, which sets out the fundamental principles concerning the National Court Framework (NCF) of the Federal Court and key principles of case management procedure;

(b) in the case of proposed references, Division 28.6 of the Federal Court Rules; and

(c) the National Practice Area (NPA) practice note relevant to the NPA within which the a relevant order is applied for, such as the Intellectual Property NPA Practice Note (IP-1).

4.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

 

J L B ALLSOP
Chief Justice
3 November 2022


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