Transcript The Federal Magistrates Court of Australia Practice

The Federal Magistrates Court
of Australia
Practice, Procedure and Evidence
Keith Wilson FM
Michael Burnett FM
Queensland Bar Association
Annual Conference- Gold Coast 2007
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Court established by Federal Magistrates Act
1999 pursuant to Chapter III Constitution
Federal Magistrates are Chapter III justices
Initial Jurisdiction created by Federal
Magistrates (Consequential Amendment) Act
1999
Jurisdiction of the Federal Magistrates Court
Legislation Amendment Act 2006
s.10Federal Magistrates Act
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S10(1) The Federal Magistrates Court has such original jurisdiction as
is vested in it by laws made by the Parliament:
 (a) by express provision; or
 (b) by the application of s.15C of the Acts Interpretation Act 1901
to a provision that, whether expressly or by implication, authorised
a civil proceeding to be instituted in the Federal Magistrates Court
in relation to a matter
 (2) The original jurisdiction of the Federal Magistrates Court
includes any jurisdiction vested in it to hear and determine appeals
from decisions of persons, authorities or tribunals other than
courts.
Advocacy tip # 1
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Be thoroughly familiar with the statute
relied on, that relief sought is available to
be granted by the Court, and any
preconditions to the grant of that relief.
s.18 Federal Magistrates Act
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S.18 To the extent that the Constitution
permits, jurisdiction is conferred on the
Federal Magistrates Court in respect of
matters not otherwise within its
jurisdiction that are associated with
matters in which the jurisdiction of the
Federal Magistrates Court is invoked.
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Section 15 FM Act
Section 16 FM Act
Section 17 FM Act
Division of Jurisdiction
Business of FMC is divided generally into:
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Its Family Law Jurisdiction; and
Its General Federal Law Jurisdiction
http://www.fmc.gov.au
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Federal Magistrates Court Rules 2001
Federal Magistrates Court (Bankruptcy)
Rules 2006
Federal Court Rules
Family Law Rules 1984
Federal Magistrates Court Rule
1.05
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(1) It is intended that the practice and
procedure of the Federal Magistrates Court be
governed principally by these Rules.
(2) However , if in a particular case the Rules
are insufficient or inappropriate, the Court may
apply the Federal Court Rules or the Family
Rules 1984, in whole or in part and modified or
dispensed with, as necessary.
Advocacy tip # 2
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Remember that the Evidence Act 1995
(Cth) applies
Advocacy tip # 3
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practical operation of the rule in Browne v
Dunn where both sides’ evidence in chief
is given on affidavit
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“If you intend to impeach a witness you
are bound, whilst he is in the box, to give
him an opportunity to make any
explanation which is open to him; and, as
it seems to me, that is not only a rule of
professional practice in the conduct of a
case but is essential to fair play and fair
dealing with witnesses”
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No obligation to raise a matter:
“Where it is perfectly clear that [the witness]
has had full notice before hand that there is an
intention to impeach the credibility of the story
which he is telling …all I am saying is that it will
not do to impeach the credibility of a witness
upon a matter on which he has not had any
opportunity of giving an explanation by reason
of there having been no suggestion whatever in
the course of the case that his story is not
accepted.”
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Allied Pastoral Holding Pty Ltd v Federal
Commissioner of Taxation [1983] 1
NSWLR 1
Raben Footwear Pty Ltd v Polygram
Records Inc (1997) 75 FCR 88
Flower & Hart v White Industries (Qld) Pty
Ltd [1999] FCA 773
West v Mead [2003] NSWSC 161
Advocacy tip # 4
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A question should not state what someone
else has said or is expected to say in
evidence and ask for a reponse from the
witness
Baldwin v The King (1925) 18 Cr App R
175
cf Evidence Act 1995 s.44
Advocacy tip # 5
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Documents produced to the court
pursuant to a subpoena duces tecum are
not, by that fact alone, admissible into
evidence.
Commissioner for Railways v Small (1938)
38 SR (NSW) 564
National Employers’ Mutual General
Association Ltd v Waind [1978] 1 NSWLR
372
Advocacy tip #6
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Carefully select objections to evidence
Advocacy tips # 7 to # 10
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Have spare copies of documents, affidavits
and authorities for the bench- it helps
them follow the evidence
Punctuality and court etiquette
Be able to formulate the disputed issues
clearly and succinctly at the
commencement of the matter
Eschew hyperbole
Family Law Jurisdiction
In its Family Law Jurisdiction the FMC is
empowered to deal with:
 Divorce
 Parenting Orders/Maintenance
 Child Support (assessment & collection)
 Property – unlimited quantum
General Federal Law Jurisdiction
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In its general Federal Law Jurisdiction the court’s business
is allocated to specialist panels.
They are:
 Commercial Panel- TPA; Copyright; Bankruptcy
 Migration and Administrative Law
 Human Rights
 Industrial Law
 National Security
 Admiralty
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Each panel is administered by a convenor who is
responsible for urgent applications.
Court Rules & Practice
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Governed partly by FMC Act
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FMC Rules
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FMC must proceed without undue formality and endeavour to ensure that
proceedings are not protracted
FM Act s.42
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Practice and procedure is to be in accordance with the Court rules
FM Act s.43(1)
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Representation only permitted by lawyers
FM Act s.44
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Interrogation and discovery only by order
FM Act s.45
Where FMC rules are insufficient apply:
 Rules of Court made under FLA; or
 Rules of Court made under FCA
with appropriate modification
FM Act s.43(2)
Proceedings commenced by filing proceedings at a Registry of the
FMC
S.46(1)(a)(ii)
OR
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Filing with another court where an arrangement has been concluded
to do so with another court pursuant to s 90 FM Act
S.46(1)(a)(ii)
Such an arrangement exists in respect of Family Courts sub registries.
Ie Lismore, Cairns, Rockhampton, Townsville.
FMC adopts a docket system of case management.
General rules address most matters to be
expected
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Commencement of applications/proceedings
Service
Amendment
Ending proceedings early (Summary judgment/default)
Disclosure (apparent contradictions to s.45 FM Act)
Judgment
Separate Questions
Costs
Generally process is the same as apply in other Courts,
including State Courts
Rules broken into various parts:
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Chapter 1- Applies generally
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Chapter 2- Applies to Family
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Chapter 3- Proceedings other than Family
proceedings
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Chapter 3 rules included rules related to
 Interest
 Cross claims
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(There is no Chapter 4)
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Chapter 5- Human rights proceedings
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Chapter 6- Judicial Review & Administrative
appeals
Separate rules exist in respect of Bankruptcy
Proceedings
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Federal Magistrates Court (Bankruptcy) Rules
2006 particularly rules concerning
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Originating & Interim Applications
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Bankruptcy notices- substituted service/setting aside
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Creditors petitions
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Examinations
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Annulments
Bankruptcy
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Section 5
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Section 27
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FM is not a Magistrate
FM is taken to be a judge or a Court having jurisdiction
under B. Act.
FMC & FMC having concurrent jurisdiction
Section 30(3)
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The rules proceeding under the B. Act an FM cannot hear
is one where a question is to be tried before a jury.
Trade Practices
Jurisdiction
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PT IVA- Unconscionable conduct
PT IVB- Industry Codes- esp. franchising
PT V- Consumer Protection- s.52 et seq.
Damages limited to $750,000
s. 86AA
Otherwise FMC has other powers provided by
s.87 (other orders) and s.80 (injunctions)
Intellectual Property
Copyright Act
 Part V of Copyright Act
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Remedies and Offences under the Act for:
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Infringements
Enforcement of moral rights
Broadcast decoding rights enforcement
Performers protection
Nature of relief
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Damages
Injunction
Anton Piller/Norwich Pharmacal Relief
Admiralty Law
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FMC has unlimited jurisdiction with respect
to in personam admiralty claims.
Section 9(3) provides general maritime claims
to include, inter alia:
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Claim for damage done by a ship;
Claim for loss of life or personal injury arising by defect in
a ship
Claim, including claim for loss of life or injury arising
from an act or omission of a ship charterer; operator;
owner related to navigation or management of a ship.
(Inc. claims related to loading goods &
embarkation/disembarkation of passengers)
Cont.
 Salvage
claims
 General average claims
 Towage/pilotage claims
 Construction/repair/equipping
 Levies/port dues, charges & tolls
 Claims by masters on account of
disbursements for ships
Administrative Law
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Powers similar to Federal Court under both AAT Act
and ADJR Act
AAT Act appeals are by reference from Federal Court
only
ADJR Act appeals (per ss5-8)
Section 5
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Applications for review of decisions by persons aggrieved by a
decision
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Denial of natural justice
Ultra vires
Errors of law
Improper exercise of power. Ie irrelevant consideration mala fides.
Cont.
Section 6
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Application for review by persons aggrieved by
conduct
Section 7
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Application involving a failure to make a decision or
who does not make it within the time required
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May apply to FCA or FMC
Section 8
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FMC has jurisdiction to hear & determine
applications made to FMC
Section 16
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FMC has full powers available including:
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Quashing; referring back; declaration of rights; injunction
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Although appeals from AAT must be by
transfer from FCA
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Does not apply to decisions of Presidential
members of AAT
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ADJR review from some Acts excluded
Migration Act
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FMC has same jurisdiction as High Court
under s.75(v) of the Constitution
Jurisdiction of FCA excluded from exercising
first instance migration review in all except
limited migration matters whilst retaining
appellate jurisdiction
Review from MRT/RRT is in the nature of
judicial review with powers of FMC limited
to prerogative relief.
Human Rights
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Human Rights and Equal Opportunity
Commission Act
Relief in respect of unlawful discrimination
Relief includes:
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Declaration of unlawful discrimination and orders
not to repeat or continue with such discrimination
Orders to perform an act or conduct to redress any
loss or damage suffered
Re-employment orders
Damages
Order to vary termination of a contract or agreement
to redress any loss or damage suffered
Industrial Law
The Workplace Relations Amendment (Work
Choices) Act 2005
 FMC Jurisdiction to hear and make orders
concerning
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Unlawful termination claims s. 64Z:659
Remedies include
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civil penalties, reinstatement, compensation: s.665
Injunction: s. 682
Independent Contractors Act 2006
Independent Contractors Act (2006)
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FMC jurisdiction to here applications by a party to a
service contract on the grounds the contract is unfair
or harsh
ICA replaces deeming provision in State legislation
that deem independent contractors to be employees
for the purposes of Industrial Law- such will now be
unenforceable.
Remedies open to the Court include varying or
setting aside the whole or part of the contract; an
order varying the contract
Powers to impose civil penalties for sham contracts
National Security
Anti-Terrorism Act
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Issue of control orders
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FMC is an issuing court for the purpose of
the control order regime
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See the Court web site –
http://www.fedcourt.gov.au
http://www.fmc.gov.au