NoticeboardHigh Court judgments:

November 2006THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the Austin website www. austlii. edit, awdatabases. html.Worker’s compensation (Cth) - Injury - Physical injury followed by psychiatric injury Canute v Comcare [2006] HCA 47 (28 September 2006)The High Court in a joint judgment (Goinmow ACJ. Kirby, Callinan, Hey don, Crennan JJ) set aside a decision of a Full Court of the Federal Court that had accepted that a worker was not entitled to further compensation under the SRC Act 1988 (Cth) in respect of a psychiatric injury once a lump sum award of compensation had been made in respect of the physical injury. Decision of AAT substituted.Courts - Injunctions - Ddefaination - When injunc­tion will issue to prevent broadcast of allegation that person had committed crimeABC v O 'Neill [2006] HCA 46 (28 September 2006)The High Court set aside orders of the Supreme Court of Tasmania which prevented die appellant broad­casting a program that alleged die respondent (who was a convicted life prisoner) was also a child murderer. Consideration of when injunctions will issue to restrain publication of defamatory mader and die risk of “trial by media”. Appeal allowed.

Federal Court judgments: November 2006

THOMAS HURLEY is a member of the Victorian Bar. The full version of these judgments can be found on the AustLll website www. austlii. edu. au/databases.htmlCustoms - Diesel fuel rebate - Whether electricity provided to homes and hospitals of island commu­nity - whether question of factErgon Energy Corporation Ltd v C ofT [2006] FCAFC 125 (15 August 2006)A Full Court concluded the AAT had erred in failing to find that the appellant used diesel fuel to power homes and hospitals within s78A(l) of the Excise Act 1901 (Cth) in generating electricity for Torres Strait islands. Observations as to when question of law arises from application of facts.Trade Practices - Crown immunity - State health authorityACCC i’ Baxter Healthcare Ptv Ltd [2006] FCAFC 128 (8 August 2006)A Full Court concluded that the doctrine of Crown immu­nity prevented a company that had a near-monopoly in supplying state healdi services with sterile duids from contravening s46 of the Trade Practices Act 1974 (Cth) by “bundling” other duid products into the contracts to supply the duids.Practice - Costs order against practitioner-Whether fair hearing where reasons for costs order for costs thrown away not givenGoldsmith v MIMIA [2006] FCAFC 130 (28 August 2006)A Full Court concluded that the appellant solicitor had not been given a fair hearing before being ordered

under FMC Rules r.21.07 to pay personally for the costs thrown away by reason of an adjournment where the federal magistrate had not given reasons for the adjourn­ment in question.Trade practices - Misleading conduct - Liability of negligent auditors to reimburse Travel Compensa­tion Fund in failure of insolvent travel agentKing v Yurisisch [2006] FCAFC 136 (4 September 2006)A Full Court concluded the accountant and auditor of a failed travel agent were liable to reimburse the Travel Compensation Fund to the extent of its liability to the customers of the agency because their misconduct within the Trade Practices Act 1974 (Cth), Fair Trading Act 1999 (Vic) caused the agent to continue to trade. Trade marks - Colour as a trade mark - Amend­ment of applicationWoolworths Ptv Ltd v BP pic [2006] 132 (4 September 2006)A Full Court considered whether amendments to the endorsement to an application for a trade mark were made contrary to s65 of the Trade Marks Act 1995 (Cth), whether prior use of a colour could establish it as a trade mark, registrat ion under s41(6) of the Act and the power of a Full Court to order on appeal that the register be corrected.Migration - RRT - Whether s424A letter revealed biasMIMIA v SZGMF [2006] FCAFC 138 (7 September 2006)A Full Court considered die operation of s424A of the Migration Act 1958 (Cdi). It concluded die leder sent by the RRT did not show it had closed its mind to the questions raised in the leder.Income tax - Objection and appeal - Proof and particulars of Commissioner’s reasoningW R Carpenter vCofT [2006] FCA (20 September 2006)Lindgren J concluded a taxpayer was not entitled to particulars of how die C of T came to determine imder sl36AD of the ITAA 1936 (Cth) that an international agreement between parties was not at arm’s lengdi and how die taxpayer was to discharge the onus of proving the assessment was excessive.Migration - Visas - Spouse visa - Parental respon­sibilitiesSrour v MIMIA [2006] FCA 1228 (15 September 2006)Moore J concluded the MRT had erred in failing to hnd S could be entitled to a spouse visa by virtue of parenting responsibilities imposed by the Family Law Act 1975 (Cth). Consideration as to how the Court is to

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apply inconsistent decisions of single judges.Migration - Migration agents - Registration - Review by AATMARA v Shi [2006] FCA 1326 (15 September 2006) Edmonds LJ concluded the AAT on review of a deci­sion to cancel the registration of a migration agent under the Migration Act 1958 (Cth) was required to consider whether the person should be registered as at the date of the decision to cancel that registration.Native title - Claim to land in Perth Bennellv WA [2006] FCA 1243 (19 September 2006) Wilcox J concluded that a claim for recognition of native title under the Native Title Act 1993 (Cth) was made out over land in die Perth metropolitan area.Evidence - Legal professional privilege - Legal advice to Australian Wheat Board sought by Cole Royal CommissionAWB Ltd v Cole [2006] FCA 1234 (18 September 2006)Young J concluded that legal privdege did not protect communications of the Australian Wheat Board being produced to the Cole Royal Commission in response to notices to produce issued under s2(3A) of die Royal Commissions Act 1902 (Cth).Native title - Proceedings - Standing to be a party Darn v WA [2006] FCA 1249 (18 September 2006) French J concluded an industry association did not have sufficient interest in the proceedings to be joined as a party under ss61, 84 of the Native Title Act 1993 (Cdi).In Akiba v State of Queensland (No 1) [2006] FCA 1102 (18 August 2006) French J considered the standing of a local government body, and in Akiba v State of Queens­land (No 2) [2006] FCA 1173 (8 September 2006) French J considered the standing of PNG nationals in a Torres Strait claim.Constitutional law - Judicial power - Exercise by state magistrate of administrative functions in extra­ditionZentai v Republic of Hungary [2006] FCA 1226 (12 September 2006)Siopis J concluded that the exercise of administrative functions by state magistrates rmder sl9 of the Extradi­tion Act 1988 (Cth) did not offend the constitutional requirement of the separation of powers.Migration - Skills visa - Invalid policy Tram vMIMIA [2006] FCA 1229 (12 September 2006) Rares J set aside a decision of the MRT which interpreted Migration Regulations 1994 (Cth) cl 845 by reference to a policy not supported by the tenns of the clause. Migration - MRT - Failure to adjourn where psychi­atric illnessApplicant s296 of2003 v MIMIA [2006] FCA 1166 (28 August 2006)Gyles J set aside a decision of the MRT which did not further adjourn a hearing where the applicant suffered from psychiatric illness.Freedom of information - Amendment of recordNeeson v Chief Executive Officer Centrelink [2006] FCA 1107(22 August 2006)Jessup J set aside a decision of the AAT that dismissed an application to amend personal records on a basis not provided in the FOI Act 1982 (Cth).Corporations - Power of Takeovers Panel to correct a mistakeMcCann v Pendant Software Pty Ltd [2006] FCA 1129 (21 August 2006)

Finkelstein J concluded the Takeovers Panel had power to make a later decision to correct a mistake it had made in its original one.

Federal Court judgments: December 2006

THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLIl website www. austlii. edu. aw databases, html Extradition - New Zealand - Whether “unjust oppressive or too severe” to order extradition In New Zealand v Moloney [2006] FCAFC 143;5.10.06 sec 34(2) of the Extradition Act 1988 (Cth) provides that a Magistrate may refuse to order the extradition of a person to New Zealand for some specified reasons or if “for any other reason...” it would be “...unjust .oppressive or too severe a punishment... ” to do so .The primary judge concluded the passage of tune since the alleged sexual offences against young boys before 1980 would prejudice M’s defence and this combined with the absence of the Longman direction in New Zealand meant it would be unjust etc for M to be extradited. A Full court of five justices (convened to consider whether Bannister v NZ(1999) 86 FCR 417 should be overruled) disagreed in a joint judgment. It reviewed the history of the legislation and how legal systems in other countries were to be considered in deciding whether the system produced a result that was “unjust”. The Full Court concluded Bannister was not clearly wrong and that the absence in NZ of the Longman warning and other differences in procedure did not render any trial of M there “unjust”. Appeal allowed.Bankruptcy - Entitlement of trustee to costs In Pantzer v Wenkart(No )[2006]FCAFC 140:28.9.06 a Full Court concluded the trial judge had erred in denying a trustee under the Bankruptcy Act 1966 (Cth) costs in various matters and considered when a trustee conducts litigation for his own benefit.Patents - Validity - Whether importation constitutes inventionJMVB Enterprises Ptv Ltd v Camoflag Ptv Ltd [2006] FCAFC 141; 29.9.06A Full Court concluded the tenn “inventor” in s 15(l)(a) of the Patents Act 1990 (Cth) did not include the person who first imports an invention [72],The court agreed with the finding of the primary judge that the Appellant patentee was not entitled to the patent as it was neither the inventor nor derived title from the inventor . Migration - Constitutional writ - When acts of third party can cause jurisdictional error MIMA v SZFDE [2006] FCAFC 142;3.10.06 A Federal magistrate quashed a decision of the RRT where the applicant did not attend the hearing due to fraud by the person’s advisor who told the applicant it was best not to attend the RRT hearing.The FMC found that the proceedings were tainted as the RRT communi­cated with the Applicant through the advisor aware that his registration as a solicitor and migration agent had been cancelled. The Full Court concluded by majority (Allsop .Graham JJ ; contra French J) that the deci­sion of tlie RRT was not subject to jurisdictional error. French J agreed that poor advice would not compromise the decision [103] but concluded fraud would [131], Corporations - Interpretation of articles of associa­tionLion Nathan Australia Pty Ltd v- Coopers Brewery Ltd

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[2006]FCAFC 144; 16 Oct 06A full court considered how the articles of association of a company as a contract imposed by statute were to be interpreted.Crimes Commission - Search warrantsA2 v ACC [2006] FCAFC 147 ;170cto6 A full court concluded search warrants issued on the request of the ACC under Part 1AA Crimes Act 1914 (Cth) were valid notwithstanding they could have been issued under the ACC Act 2002 (Cth) where different pre-requisites applied.Trade Practices - Competition reform - Sendee providerSydney Airport Corpn vAust Competition Tribunal[200 6]FCAFC 146; 18 Oct 06A full Court concluded that while the consideration by the ACT of die effect of s 44H(4)(a) of the T P Act 1974 (Cth) was over elaborate the decision should not be set aside.Practice - Whether slip rule authorises amendment after time has expired - Whether adjournment to resen e judgment an orderGriffiths i’ Borctl resources (Qld) Ptv Ltd [2006] FCAFC 149A Full Court concluded an order adjourning a court to reserve judgment was not an order that could found the operation of the slip rule and the fact that the subject bankruptcy notice expired while the decision was reserved could not be undone.Migraton - Detention - Whether ‘reasonable practi­cality’ of removal a jurisdictional factBevazkilinic v Manager Baxter 1RPC [2006] FC1368;20a Oct 06Besanko J dismissed a proceeding based on the proposi­tion that the ability to remove an unlawful non-citizen was a jurisdictional fact that underpinned the right to detain the person.Migration - Proceedings - Costs orders-Lay advisorSZFDZ v MIMIA/2Q06/FCA 1366:24 Oct 06 Moore J considered that the unqualified advisor of the Applicant had not given sufficient attention to the pros­pects of success of an application within s 486E(l)(b)(i) of the Migration Act and made a costs order against hun.Superannuation - SpouseEdwards v Potspur Ptv Ltd[2006]FCA 1380;24.Oct 2006More J considered whether the mother of the deceased’s daughter was his “spouse” on a de facto basis. Defamation - e-mail to Hong KongNational Auto Glass Supplies(Australia) Pty Ltd v Nielson & Moller Autoglass (NSW) Ptv Ltd[2006] FCA 1368;24 Oct 06Graham J concluded that an e-mail sent from Australiato Hong Kong could be defamatoryHealth - Pharmacies - “nearest other premises”Sciyegh v Australian Community Pharmacy Authority [2006] FCA 1289;28.9.06Stone J concluded the AAT did not err m applying the measures set out in the Minister’s rales under the Health Act 1953 (Cth) in considering the distance between pharmacies.Corporations - “financial investment”ASIC i’ Money for Living Ptv Ltd [106] FCA 1285;29.9.06 'Finkelstein J concluded that the sale of an asset in the context of a sale and lease back agreement of a home

could constitute a “financial investment” and thus a “financial service” for s 12BAB of the ASIC Act 2001 (Cth)Migration - Constitutional writIn s2012 of 2003 v MIMA [2006] FCA 1294 Lander J concluded the FMC erred having found that the RRT decision in considering an application for a protection visa was affected by three errors in not quashing it but concluding internal relocation answered any clann. Legal practice - Right of audience to Australian Building Construction Commissioner Bonan v Hadgkiss [2006] FCA 1334; 12 Oct 06 Besanko J concluded s 52 Building Construction Industry Improvement Act authorised a direction that a lawyer who had acted for one witness in a statutory examination be excluded from another examination but did not authorise a direction that the practitioner not act for the second person in relation to the second examina­tion short of attending at it.

Supreme Court of the Northern Territory Practice

Direction No. 2 of 2006EX PARTE RESTRAINING ORDERS - CRIM­INAL PROPERTY FORFEITURE ACT1. Practitioners are reminded of the duty of full and

frank disclosure to the Court of any matters which might be put in opposition to an application for an ex parte restraining order and of the need for the plain­tiff to give the usual undertaking as to damages: see 092.11.

2. Order 92.02 provides that, with certain exceptions, the rules in Chapter 1 apply to matters brought under the Criminal Property Forfeiture Act. Therefore, the form of the order must comply with O 60 (especially O 60.05(2)(d) which requires the recitals to specify the tenns of an undertaking by a party) and O 66.10(3)(b) if it is proposed to enforce the order by committal or sequestration for non-compliance.

3. Practitioners are also reminded of the need for a restraining order to be expressed clearly and to precisely indicate to the defendant exactly what it is he or she is restrained from doing. Failure in this respect might result in the order being unenforce­able. It is not sufficient that an order merely states that “the following property is restrained...” even if a notice complying with s 47(5) of the Act is also served. To assist practitioners it is recommended that a draft minute of die order in the form set out below be handed to the Judge at the time the order is sought for settling by the Judge in accordance with O 60.03(2).

4. Note that each ground for the making of die order must be set out m die order: see s 45(l)(b) of die Act. and O 60.05(2)(c) of the Rules. It is not sufficient compliance with the Act or the Rules for the order to refer only to die section of the Act grounding the making of the order.

Chief Justice Brian MartinSupreme Court of the Northern Territory20 October 2006

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Supreme Court of the Northern Territory Practice

Direction No. 3 of 2006SPECIAL HEARINGS - PRE-RECORDED EVIDENCE - EDITING1. Rules 81A.27A - 81A.27J apply to special hearings

conducted under s 21B of the Evidence Act.2. Unless a Judge orders otherwise, the Sheriff is to

make a duplicate copy of the recording of the special hearing pursuant to r 81 A.27E within seven days of the completion of the special hearing.

3. Upon completion of the duplicate copy of the recording, the Sheriff shall forthwith advise the parties that the duplicate recording has been completed and is available for editing.

4. If the prosecution or the defence are of the view that the duplicate recordmg should be edited before being played to a jury, an application for an order pursuant to r 81 A.27F relating to the editing is to be made within 14 days of advice from the Sheriff that the duplicate recording is available.

5. The prnnary purpose of editing a recordmg of a special hearing is to remove from the recording to be played to the jury any part of the recording which contains the following:• material that is plainly both inadmissible and

unfairly prejudicial to an accused:• any part of the proceedings which, had the

witness been giving evidence in front of a jury, would plainly have occurred in the absence of the jury;

• any part of the proceedings which occurred in the absence of the witness or while communication between die Court and die witiiess was muted.

6. Usually, editing for “cosmetic” purposes is inap­propriate. For example, usually it is not appropriate to edit evidence, objections or discussions which occurred while communication between the Court and die witness was live and which, had the witness been giving evidence in the presence of the jury, would have occurred in the presence of the jury.

7. Editing of those parts of die recording which fall within paragraph 5 of this practice direction, and which both the prosecution and defence agree should be edited, may occur without leave of a Judge. In the absence of agreement, a ruling of the trial Judge must be sought.

8. If it is thought by either party that editing should occur for reasons other than those identified in para­graph 5 of this practice direction, editing may only occur with the leave of the trial Judge.

9. Should a ruling of the trial Judge be required pursuant to paragraphs 7 or 8 of this Practice Direction, an application is to be made for a directions hearing and, in advance of the directions hearing, the Judge is to be provided with a copy of the relevant pages of the transcript with the proposed passages to be edited highlighted

10. The edited version of the duplicate recording is to be provided to the Sheriff pursuant to r 81A.27F not less than seven days prior to the date listed for the commencement of the trial before fhe jury.Chief Justice Brian MartinSupreme Court of the Northern Territory27 November 2006

Supreme Court of the Northern Territory Practice

Direction No. 4 of 2006USE OF AUDIO/VIDEO EVIDENCE IN COURT1. Audio and video recordings for use in Court must

be compatible with the Court’s playing equipment. For this purpose, unless the Court otherwise orders, audio recordings must be in WAV format and video recordings must be in VOB format on a DVD-R disc.

2. Any audio and video recordmg sought to be used in Court must be produced to the Court at least 24 hours prior to its intended use to enable it to be tested on the Court’s playing equipment.

Chief Justice Brian MartinSupreme Court of the Northern Territory27 November 2006

Supreme Court of the Northern Territory Practice

Direction No. 5 of 2006FREEZING ORDERS (also known as ‘Marevaorders' or ‘asset preservation orders’)1. This Practice Direction supplements Order 37A

of the Supreme Court Rules relating to freezing orders (also known as ‘Mareva orders' after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or ‘asset preservation orders’).

2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it do not, and camiot, limit the judicial discretion to make such order as is appropriate in the cncumstances of die particular case.

3. Words and expressions in this Practice Direction that are defined in Order 37A have the meanings given to them in that Order.

4. An example form of ex parte freezing order is aimexed to this Practice Direction. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (die foodiotes and references to footnotes should not fonn part of the order as made). The example fonn contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties.

5. The purpose of a freezing order is to prevent frus­tration or abuse of the process of the Court, not to provide security in respect of a judgment or order.

6. A freezing order should be viewed as an extraordi­nary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte.

7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party7, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrale 5(5) addresses the minimum requirements that must

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ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example fonn will require adaptation. In particular, the references to your ‘assets’ and ‘in your name’ should be changed to refer to the other person’s assets or name (e.g. ‘John Smith’s assets’, ‘in John Smith's name’).

8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts).

9. The duration of an ex parte freezing order should be limited to a period terminating on the return date of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the oppor­tunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed.

10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent.

11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including mterest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employ er may discover that an employee has been making fraudulent misap­propriations. but does not know how much has been misappropriated at the time of the discovery and at the tune of the approach to the Court).

12. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular:(a) payment of ordinary living expenses;(b) payment of reasonable legal expenses;(c) dealings and dispositions in the ordinary and

proper course of the respondent’s business, including paying business expenses bona fide and properly incurred: and

(d) dealings and dispositions in the discharge of obli­gations bona fide and properly incurred under a contract entered into before the order was made.

13. Where a freezing order extends to assets outside Australia, the order should provide for the protec­tion of persons outside Australia and third parties. Such provisions are included in the example fonn of freezing order.

14. The Court may make ancillary orders. The most common example of an ancillary' order is an order for disclosure of assets. The annexed example form provides for such an order and for the privilege against self-incrimination.

15. The rules of court confinn that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued

(a ‘prospective’ cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly , where there are assets in Australia, service out of Australia is permitted under a new Tong arm’ service rule.

16. As a condition of the making of a freezing order, the Court will normally require appropriate under­takings by the applicant to the Court, including the usual undertaking as to damages.

17. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order.

18. The order to be served should be endorsed with a notice which meets the requirements of O 66.10.

19. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all mate­rial facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia.

20. The affidavits relied on m support of an application for a freezing or ancillary' order should, if possible, address the following:(a) information about the judgment that has been

obtained, or, if no judgment has been obtained, the following information about the cause of action:

(i) the basis of the claim for substantive relief;(ii) the amount of the claim; and(iii) if the application is made without notice to

the respondent, the applicant’s knowledge of any possible defence;

(b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia;

(c) the matters referred to in rule 5 of the Freezing Orders rules of court (Order 37A); and

(d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.

Chief Justice Brian MartinSupreme Court of the Northern Territory27 November 2006

Supreme Court of the Northern Territory Practice

Direction No. 6 of 2006SEARCH ORDERS (also known as ‘Anton Pillerorders’)1. This Practice Direction supplements Order 37B of

the Supreme Court Rules relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55).

2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it do not, and can not, limit the judicial

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discretion to make such order as is appropriate in the circumstances of the particular case.

3. Words and expressions in this Practice Direction that are defined m Order 37B have the meanings given to them in that Order.

4. Ordinarily, a search order is made ex parte and compels the respondent to pennit persons specified in the order (‘search party’) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary' remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment.

5. An example form of ex parte search order is aimexed to this Practice Direction (the footnotes and refer­ences to footnotes in the example fonn should not fonn part of the order as made). The example fonn may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process.

6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than die applicant’s solicitor).

7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in file order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. ‘one solicitor employed by A, B and Co’).

8. The affidavits m support of an application for a search order should include the following informa­tion:(a) a description of the things or the categories of

things, in relation to which the order is sought;(b) the address or location of any premises in relation

to which the order is sought and whether they are private or business premises;

(c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use m evidence before the Court unless the order is made;

(d) the prejudice, loss or damage likely to be suffered by the applicant if file order is not made)

(e) the name, address, firm, and commercial litiga­tion experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and

(f) if the premises to be searched are or include

residential premises, whether or not file applicant believes that the only occupant of file premises is likely to be:

(i) a female; or(ii) a child under the age of 18; or(iii) any other person (‘vulnerable person’) that

a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability ; or

(iv) any combination of (i), (ii) and (iii), and any one or more of such persons.

9. If it is envisaged that specialised computer exper­tise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing docu­ments referred to in the order and other docmnents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court.

10. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.

11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s linn of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Society has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of execut ing search orders, but it is not only persons on such a list who may be appointed. The responsi­bilities of the independent solicitor are important and ordinarily include the following:(a) serve the order, the application for it, the affida­

vits relied on in support of the application, and the originating process;

(b) offer to explain, and, if the offer is accepted, explain the tenns of the search order to the respondent;

(c) explain to the respondent that he or she has the right to obtain legal advice;

(d) supervise the carrying out of the order;(e) before removing things from the premises, make

a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign file list, and provide the parties with a copy of the list;

(f) take custody of all things removed from the premises until further order of the Court;

(g) if the independent solicitor considers it neces­sary to remove a computer from file premises for safekeeping or for the purpose of copying its contents electronically or printing out informa­tion in documentary fonn, remove file computer from Hie premises for that purpose, and return the computer to the premises within any tune prescribed by the order together with a list of any docmnents that have been copied or printed out;

(h) submit a written report to the Court within the tune prescribed by the order as to the execution of the order; and

(i) attend the hearing on the return date of the

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application and have available to be brought to the Court all tilings that were removed from the premises. On the return date the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide informa­tion to the Court, and may raise any issue before the Court as to execution of the order.

12. Ordinarily, the applicant is not permitted, w ithout the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party.

13. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtam legal advice. However, there may be circumstances in which such a restriction is not appropriate.

14. A search order must not be executed at the same tune as the execution of a search warrant by the police or by a regulatory authority.

15. If the premises are or include residential premises and the applicant is aware that when sendee of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether:(a) if the occupants are likely to include a female

or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and

(b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability.

16. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the return date.

17. At the inter partes hearing of the application on the return date, the Court will consider the following issues:(a) what is to happen to any things removed from

the premises or to any copies which have been made;

(b) how any commercial confidentiality of the respondent is to be maintained;

(c) any claim of privilege by the respondent;(d) any application by a party ; and(e) any issue raised by the independent solicitor.

18. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of die applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to die applicant any information that die solicitor has acquired during or as a result of execu­tion of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on die rehim date.

19. If it is demonstrated that die applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of diat

undertaking. The security may, for example, take the fonn of a bank’s irrevocable undertaking to pay or a payment into Court. The example fonn of search order contains provision for an irrevocable under­taking.

20. An applicant ex parte for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclo­sure of possible defences known to the applicant and of any financial infonnation which may cast doubt on the applicant’s ability to meet the usual under­taking as to damages from assets within Australia.

21. The order to be served should be endorsed with a notice which meets die requirements of O 66.10.

22. A search order is subject to the Court’s adjudication of any claim of privilege against self-incrimination. The privilege against self-incrimination is available to individuals but not to corporations. The Court will not make an order reducing or limiting that privilege in circumstances where the legislature has not indi­cated that it may do so.

Chief Justice Brian MartinSupreme Court of the Nortiiem Territory27 November 2006

Family Court of AustraliaI am pleased to advise you of a significant dev elopment in the provision of on-line services to family law practi­tioners and clients in the family law system.In response to practitioner’s feedback, and in line with our quest to continually improve client services, the Family Court of Australia, hi partnership with the Federal Magistrates Court and the Family Court of Western Australia, has developed an innov ative service called File Search.This new web based service, allows clients and then lawyers to view selected infonnation about then family law matter on-line from dieir own PC. The service will be available from 3 October 2006 and will provide a platfonn for additional web based services in the future.Through File Search, practitioners can access infonna­tion about their client’s case by using their individual lawyer’s code and then client’s court file number. File Search can display the following infonnation:• parties and practitioners names• the case coordinator’s name and contact telephone

number• the name of the family consultant attached to the

file• all past, present and future events including hearings,

conferences and appointments rooms and resources• any docmnents and/or fonns that have been lodged,

and dates that Court orders were madeIn developing File Search, much consideration has been given to privacy and the security of infonnation and issues arormd client safety. Client addresses, phone numbers, dates of birth, and children’s details are not viewable. Where concerns such as family violence, child abuse or witness protection are raised, identifying infor­mation and/or entire Court files will be suppressed. Access to File Search is from the Family Law Courts website (www.familylawcourts.gov,an) and the Family Court of Australia website (www.familvcourt.gov.au). The Family Court is happy to assist practitioners in gaming access to File Search and I recommend that you contact our National Enquiry Centre on 1300 352 000 for further infonnat ion.

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1 trust that this new and progressive initiative will prove to be a great benefit to you and your clients.Yours sincerelyChief Justice Diana BryantFamily Court of Australia2 October 2006

Family Court of AustraliaTHE OBLIGATIONS CREATED BY SECTION 60K OF THE FAMILY LAW ACT 1975Section 60K was introduced to the Family Law Act 1975 with the commencement of the Family Law (Shared Parental Responsibility) Act 2006 on 1 July 2006, and it imposes certain obligations on the Court in respect of its dealing with certain applications.The Family Court’s Response The Family Court has modified the previous Form 4 so that it is now a ‘Notice of Child Abuse or Family Violence’. This form now serves a dual purpose and is to be used:(a) When allegations of child abuse or risk of child

abuse are made and a prescribed child welfare authority must be notified of the allegations (s 67Z of the Family Law Act 1975); or

(b) If, in a case where an application is made to the Family Court for a Part VII order in relation to a child, a person alleges that there has been abuse of a child or family violence or there is a risk of abuse of a child or family violence and the allegation of abuse or family violence is relevant to whether the Court should grant or refuse the application (Rule 2.04A of the Family Law Rules 2004).

Rule 2.04B(2) of the Family Law Rules 2004 requires that an affidavit(s) setting out the evidence on which the Fonn 4 is based, must be filed at a tune no later than the filing of the Fonn 4. Where the Form 4 is lodged at the same time as an interim application, a separate affidavit is not required, but the lawyer should ensure that the affidavit filed contains the evidence supporting the allegations made in the Form 4.The Family Court has put in place processes to ensure that cases where it is alleged that s 60K applies are considered as soon as is practicable by a Registrar in chambers, in the absence of the parties. Ordinarily, the Duty Registrar will consider the case on the same day on which the Form 4 is lodged. In some instances this may not be practical because of workload or availability of the Duty Registrar in regional locations. The Court’s aim is to ensure that the case will be considered by a Registrar within seven days from the lodgement of the Fonn 4.While the Fonn 4 should summarise the allegations that are made, and the affidavit(s) filed will provide the supporting evidence, the Court is likely to still require further input from the parties and their lawyers in the consideration of what orders are appropriate in that particular case, whether such orders are interim or procedural and, further, the suggested listing proposal to ensure that the requirements of s 60K are met.Covering letterIn order to assist the Registrar, lawyers are requested to provide a covering letter addressmg the following matters:(a) whether you act for the applicant or respondent;(b) whether a Form 4 and accompanying affidavit/s has

been lodged and the allegations made in it fall within the requirements of s 60K(1);

(c) if the Fonn 4 is filed with documents commencing the proceedings, whether the parties have complied with

the pre-action procedures applicable to parenting cases set out in Schedule 1 to the Family Law Rules 2004, and rf not, the reason/s why ;

(d) if the Fonn 4 is filed after the proceedings have been commenced, advise what affidavit/s, by reference to the filing date/s and relevant paragraphs, is/are relied upon to provide the evidence in support of the allegations made;

(e) the requested listing of the application i.e. interim hearing, procedural hearing or case assessment conference, and the reasons why you consider that hearing will best enable the Court to fulfil its obliga­tion under s 60K(2);

(f) if an urgent hearing of an interim application is sought, die preferred time frame for such a hearing and when you propose serving the other party or parties with a copy of your application/response.

Where an urgent hearing is requested, the letter should summarise the reasons for the urgency, the nature of the allegations and identify the paragraphs in the Form 4 and affidavits which support the request for an urgent listing. In the normal course, where a lawyer lodges the Fonn 4 and makes the request for urgency, file applica­tion will be listed before a Judicial Officer or Registrar with power to make the type of order sought in the interim application.The allocation of the listing date will remain a matter for the exercise of discretion by the Duty Registrar taking into consideration file matters raised.In preparing file covering letter, lawyers can assume that the Registrar will have access to the documents and the Fonn 4 on file. Rather than repeating the infonnation in such documents, the Court is better assisted by a letter which draws on the infonnation in such documents to support the submission as to how the allegations can best be addressed by the Court.Feedback welcomeThe Family Court will be carefully monitoring the proc­esses that it has put in place to ensure that it meets the requirements of s 60K. The aim is to ensure that cases which involve allegations of abuse or family violence (or risk thereof) affecting children and parties, are dealt with by the Court in a manner that will promote file best interests of children.Angela Filippello Principal Registrar Family Court of Australia

ACLA Online Employment Register

In response to many requests from its members, ACLA has launched an Online Employment Register. You can find this new service on the homepage of the ACLA website: www.acla.com.au.The ACLA Online Employment Register is available for use by ACLA’s members who can post theri resumes to the Resume Board and search the Job Board within the Register for in-house vacancies posted by potential employers and recruitment agencies.Importantly, the Register is also available to employers and agencies wishing to post in-house vacanvies for full­time, part-time, contract or supervised training roles. A posting fee is payable for this service and a placement fee is also payable if a successful placement is made through the use of information on the Register.If your organisation wishes to make use of the ACLA Online Employment Register, I invite you to complete the online Registration Fonn and register with us as an approved user of the service. Alternatively, if you have

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questions about this new facility, or need more infor­mation, please contact the ACLA Member Services Manager, Louise Trewarne tel: 1300 558 550, email: membership@acla.com.au, who will be happy to assist you.Peter TurnerAustralian Corporate Lawyers Association August 2006

High Court of Australia Rule of Court

It is ordered as follows:-1. Sittings of the Court for the transaction of all such

business as may be brought before it shall be held during the year 2007 at the places and commencing on the days hereunder mentioned, that is to say:

Canberra - Monday 29 January 2007 Canberra - Tuesday 20 February 2007 *Hobart - Tuesday 20 March 2007 Canberra - Tuesday 17 April 2007 Canberra - Tuesday 15 May 2007 Canberra - Tuesday 12 June 2007* Brisbane - Monday 18 June 2007 Canberra - Tuesday 31 July 2007* Adelaide - Monday 6 August 2007 Canberra - Tuesday 28 August 2007 Canberra - Tuesday 25 September 2007 *Perth - Monday 22 October 2007 Canberra - Tuesday 6 November 2007 Canberra - Tuesday 4 December 2007

*No sittings will be held unless (here is sufficient business to warrant the attendance of the Court.

2. Sittings to hear applications for special leave to appeal will also be held on the days hereunder mentioned, that is to say:

Friday 9 February 2007 Friday 2 March 2007 Friday 27 April 2007 Friday 25 May 2007 Friday 15 June 2007 Friday 3 August 2007 Friday 7 September 2007 Friday 5 October 2007 Friday 16 November 2007 Friday 14 December 2007

3. The whiter vacation shall commence on Saturday 23 June 2007. The summer vacation shall commence on Saturday 15 December 2007.

High Court of Australia 5 September 2006

Personal SafetyLitigants, practitioners, judges and staff of the Federal Court are entitled to expect that then physical safety will not be threatened by persons attending the Court. The Court is committed to ensuring, as far as is possible, that this expectation is met.We ask that if a legal practitioner has reason to believe that any litigant or person involved with a proceeding has the potential to become violent while attending Court, the practitioner notify the registry in the State or Territory in which the matter is being heard. The notifi­cation should include details of the person, the nature of the potential violence and the basis for the practitioner’s belief.The notification will be used by the Court to determine what arrangements might be made in relation to the matter.A notification should be sent to Director, Court Services

in the relevant District Registry. All notifications will be treated in the strictest confidence.Warren SodenRegistrar and Chief Executive Federal Court of Australia

Administrative Appeals Tribunal Fees

An application fee must be paid to the Administrative Appeals Tribunal for the review of decisions that are not prescribed under the Administrative Appeals Tribunal Regulations 1976.Pursuant to regulation 19A, the fees that are payable for lodging certain applications will increase every two years. The application fees will increase on and from 1 July 2006. The standard application fee will increase from $606 to $639. The lower application fee payable where a person elects to have a matter dealt with in the Small Taxation Claims Tribunal will increase from $61 to $64.If you have any questions about the changes to the fees please contact Rocelle Ago, Legal Research Officer, on 02 9391 2475.Doug Humpreys RegistrarAdministrative Appeals Tribunal

Federal Magistrates CourtBiennial Fee Increase

As required under the Federal Magistrates Court Regulations 200, there will a biennial increase of fees. The family law fees will increase as of 1 July 2006, as follows:Application for divorce - $352Application (for children or property) - $121Response, seeking different orders sought by applicant(for children or property) - $121Hearing fee/Setting down fee (defended matter) - $364Child Support Application/Response - nil

Federal Court (Bankruptcy) Amendment Rules 2006 (No 1)The Federal Court (Bankruptcy) Amendment Rules 2006 (No 1) will shortly be registered on the Federal Register of Legislative Instruments. The Amendment Rules commence on 8 October 2006.A copy of the Amendment Rules will be available on the Internet from the ComLaw site at littp://www.comlaw. gov.au/.The Amendment Rules will amend the Federal Court (Bankruptcy) Rules 2005 by:1. replacing Fonn 3, which is the prescribed fonn for

an interim application in a proceeding rmder the Bankruptcy Act 1968, with a new Fonn 3 - the effect of the amendment is to alter the signature block;

2. replacing Fonn 17, which is the prescribed fonn for an apprehension wanant, with a new Fonn 17 - the effect of the amendment is to insert the words “to the Court [address] or a registry of the Court that is convenient” at the end of the fourth paragraph, and to replace the reference in the fifth paragraph to “a [place]” with the phrase “a convenient place”.

Similar amendments will be made by the Federal Magistrates Court to the Federal Magistrates Court (Banknrptcy) Rules 2006.Philip Kellow Deputy Registrar Federal Court of Australia

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