Transcript Federal Magistrates Act 1999 – Section 10

The Federal Magistrates Court
of Australia
Practice & Procedure
General Federal Law - Jurisdiction
IN ADMINISTRATIVE LAW:

In matters under the Administrative Decisions (Judicial Review) Act
1997 (see ss. 5-8). This jurisdiction is limited and practitioners must
have regard to the statute involved which may provide that an
application cannot be made to the FMC;

In appeals from the Administrative Appeals Tribunal remitted from the
Federal Court (s. 44AA Administrative Appeals Tribunal Act 1975)
General Federal Law - Jurisdiction

In admiralty law in personam actions such as cargo claims,
damage claims and seafarer’s wages (s. 9 Admiralty Act 1988).
The court also enjoys jurisdiction in claims in rem when the
proceeding is remitted from the Federal Court.
General Federal Law - Jurisdiction

In bankruptcy all civil claims and matters under the
Bankruptcy Act 1966 except those requiring jury trials under
s.30(3) of the Act (s. 27 Bankruptcy Act provides that the
FMC has concurrent jurisdiction with the Federal Court)
General Federal Law - Jurisdiction

In copyright civil claims and matters under Parts V (remedies
and defences), VAA (broadcast decoding devices), IX (moral
rights of authors of literary, dramatic, musical or artistic works
in films) and Part XIA (performance protection) of the
Copyright Act 1968, including claims for injunctions and
damages for breach of copyright. Jurisdiction is conferred on
the FMC by ss. 131D, 135ARA, 195AZC and 248MA
respectively;
General Federal Law - Jurisdiction

IN INDUSTRIAL LAW:

Matters under the Workplace Relations Act 1996, including unlawful
termination claims;

Breaches of the Australian Fair Pay and Conditions Standards, claims
with respect to the business transmission rules, workplace agreements,
right of entry and certain types of industrial action;

Matters arising under the Building and Construction Industry
Improvement Act 2005 with respect to unfair contracts for services
with respect to building work;

Matters arising under the Independent Contractors Act 2006, to review
a contract for service to see if it is unfair or harsh.
General Federal Law - Jurisdiction

In migration matters, for almost all first instance review of
decisions of the Refugee Review Tribunal and Migration
Review Tribunal and Administrative Appeals Tribunal;
General Federal Law - Jurisdiction

In enforcing determinations of the Privacy Commissioner and
private sector adjudicators under the Privacy Act 1988 (s.
55A);
General Federal Law - Jurisdiction

Under the Trade Practices Act 1974 (s. 86(1A) and 86AA)
with respect to claims under:
 Part IVA
 Part IVB
 Part V
 Part VA
 The court can provide injunctive relief under s. 80 and
damages under s 82 of up to $750,000
General Federal Law - Jurisdiction

In claims for unlawful discrimination under the Human Rights
and Equal Opportunity Commissions Act 1986 (ss. 46PO)
relating to complaints under:




Age Discrimination Act 2004
Disability Discrimination Act 1992
Racial Discrimination Act 1975
Sex Discrimination Act 1984
General Federal Law - Jurisdiction

In claims under the Do Not Call Register Act 2006

In certain national security matters, including the issue of
control orders.
General Federal Law - Jurisdiction

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

Each panel is administered by a convenor who is responsible for
urgent applications
Federal Magistrates Act 1999 – Section 10

Jurisdiction
(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 section 15C of the Acts Interpretation Act 1901 to a provision
that, whether expressly or by implication, authorises 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.
(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal
Magistrates Court have effect and may be executed, throughout Australia.

The FMC MUST grant either absolutely or on terms
and conditions as are just all remedies to which any
party may be entitled in respect of legal or equitable
claims such that all matters are finally determined.
FMC Act s.14
Specific Powers

Specifically the FMC is empowered to:






Make interlocutory orders
Issue writs
Make binding declarations
Punish for contempt
Deal with matters summarily
Make orders in respect of accrued
jurisdiction
FMC Act s.15
FMC Act s.16
FMC Act s.17
FMC Act s.17A
FMC Act s.18

FMC must proceed without undue formality and endeavour to ensure
that proceedings are not protracted
FMC Act s.42

Practice and procedure is to be in accordance with the Court rules
FMC Act s.43(1)

Representation ordinarily only permitted by lawyers
FMC Act s.44

Interrogation and discovery only by order
FMC 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
FMC Act s.43(2)
Federal Magistrates Act 1999

(1)
(2)

Section 51: Limits on length of documents
The Federal Magistrates Court or a Federal Magistrate may give
directions about limiting the length of documents required or
permitted to be filed in the Federal Magistrates Court.
Subsection (1) has effect subject to the Rules of Court.
Section 55: Limits on the length of oral argument
(1)
The Federal Magistrates Court or a Federal Magistrate may give
directions about limiting the time for oral argument in proceedings
before the Federal Magistrates Court.
(2)
Subsection (1) has effect subject to the Rules of Court.
Federal Magistrates Act 1999

(1)
(2)
(3)

(1)
(2)
Section 56: Written Submissions
The Federal Magistrates Court or a Federal Magistrate may give
directions about the use of written submissions in proceedings before
the Federal Magistrates Court.
The Federal Magistrates Court or a Federal Magistrate may give
directions limiting the length of written submissions in proceedings
before the Federal Magistrates Court.
Subsections (1) and (2) have effect subject to the Rules of Court.
Section 62: Time limits on giving of testimony
The Federal Magistrates Court or a Federal Magistrate may give
directions about limiting the time for the giving of testimony in
proceedings before the Federal Magistrates Court.
Subsection (1) has effect subject to the Rules of Court.
Federal Magistrates Act 1999

(1)
(2)
(3)
Section 63: Federal Magistrates Court may question witness
The Federal Magistrates Court may:
(a)
put a question to a person giving testimony in a proceeding
if, in the opinion of the Federal Magistrates Court,
the question is likely to assist in:
(i) the resolution of a matter in dispute in the proceeding; or
(ii) the expeditious and efficient conduct of the proceeding;
and
(b)
require the person to answer the question.
Subsection (1) has effect subject to the Rules of Court.
This section has effect in addition to, and not instead of, any other
powers that the Federal Magistrates Court may have to ask questions.
Federal Magistrates Act 1999

Section 64: Evidence may be given orally or by affidavit
(1) Testimony in a proceeding in the Federal Magistrates Court is to be given orally or by affidavit.
(2) However, the Federal Magistrates Court or a Federal Magistrate may:
(a) direct that particular testimony is to be given orally; or
(b) direct that particular testimony is to be given by affidavit.
(3) Subsections (1) and (2) have effect subject to:
(a) any other provision of this Act; and
(b) the Rules of Court; and
(c) any other law of the Commonwealth.
Cross-examination of person who makes an affidavit
(4) If:
(a) a person makes an affidavit; and
(b) a party to a proceeding in the Federal Magistrates Court adduces, or proposes to adduce, evidence by the affidavit;
a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in
the affidavit.
(5) Subsection (4) has effect subject to the Rules of Court.
(6) If:
(a) a request under subsection (4) is given to a person who has made an affidavit; and
(b) the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;
the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in
the circumstances.
Federal Magistrates Court Rules 2001

Rule 1.05: Application
(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 Law Rules 2004 or the Family
Law Rules 1984, in whole or part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2):
(a) the provisions of the Family Law Rules set out in Part 1 of Schedule 3
apply, with necessary changes, to family law or child support
proceedings; and
(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3
apply, with necessary changes, to general federal law proceedings.
Federal Magistrates Court Rules 2001

Rule 1.06:
Court may dispense with rules
(1) The Court may in the interests of justice dispense with compliance, or full
compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent
with any of these Rules, the direction or order of the Court prevails in that
proceeding.
Federal Magistrates Court Rules 2001

Rule 4.01: Application
(1) Unless otherwise provided in these Rules, a proceeding must be started by filing an application
in accordance with the form of application set out in Part 1 of Schedule 2.
(2) An application for final orders may include an application for interim or procedural orders.
(3) A person may not file an application for an interim or procedural order unless:
(a)
an application for final order has been made in the proceeding; or
(b)
the application includes an application for a final order.

Rule 4.05: Affidavit to be filed with application or response
(1) A person filing an application or response, whether seeking final, interim or procedural orders,
must also file an affidavit stating the facts relied on.
(2) However, an application for interim or procedural orders may be filed without an affidavit if
the evidence relied on is in an affidavit or affidavits filed in the pending proceedings.
“If you intend to impeach a witness you are bound, whilst he is in
the box, 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 it is essential to
fair play and fair dealing with witnesses”
There is no obligation to raise a matter:
“where it is perfectly clear that [the witness] has had full notice
beforehand that there is an intention to impeach the credibility of
the story 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”
Allied Pastoral Holdings 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