The Federal Magistrates The Federal Magistrates Court of AustraliaCourt of Australia

Practice, Procedure and EvidencePractice, Procedure and Evidence

Keith Wilson FMKeith Wilson FM

Michael Burnett FMMichael Burnett FM

Queensland Bar AssociationQueensland Bar Association

Annual Conference- Gold Coast 2007Annual Conference- Gold Coast 2007

Court established by Court established by Federal Magistrates Federal Magistrates Act 1999 Act 1999 pursuant to Chapter III pursuant to Chapter III ConstitutionConstitution

Federal Magistrates are Chapter III Federal Magistrates are Chapter III justicesjustices

Initial Jurisdiction created by Initial Jurisdiction created by Federal Federal Magistrates (Consequential Amendment) Magistrates (Consequential Amendment) Act 1999Act 1999

Jurisdiction of theJurisdiction of the Federal Magistrates Federal Magistrates Court Legislation Amendment Act 2006Court Legislation Amendment Act 2006

s.10Federal Magistrates Acts.10Federal Magistrates Act

S10(1) The Federal Magistrates Court has such original S10(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:jurisdiction as is vested in it by laws made by the Parliament: (a) by express provision; or(a) by express provision; or (b) by the application of s.15C of the Acts Interpretation (b) by the application of s.15C of the Acts Interpretation

Act 1901 to a provision that, whether expressly or by Act 1901 to a provision that, whether expressly or by implication, authorised a civil proceeding to be instituted implication, authorised a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matterin the Federal Magistrates Court in relation to a matter

(2) The original jurisdiction of the Federal Magistrates (2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities determine appeals from decisions of persons, authorities or tribunals other than courts.or tribunals other than courts.

Advocacy tip # 1Advocacy tip # 1

Be thoroughly familiar with the Be thoroughly familiar with the statute relied on, that relief sought is statute relied on, that relief sought is available to be granted by the Court, available to be granted by the Court, and any preconditions to the grant of and any preconditions to the grant of that relief.that relief.

s.18 Federal Magistrates Acts.18 Federal Magistrates Act

S.18 To the extent that the S.18 To the extent that the Constitution permits, jurisdiction is Constitution permits, jurisdiction is conferred on the Federal Magistrates conferred on the Federal Magistrates Court in respect of matters not Court in respect of matters not otherwise within its jurisdiction that otherwise within its jurisdiction that are associated with matters in which are associated with matters in which the jurisdiction of the Federal the jurisdiction of the Federal Magistrates Court is invoked.Magistrates Court is invoked.

Section 15 FM ActSection 15 FM Act Section 16 FM ActSection 16 FM Act Section 17 FM ActSection 17 FM Act

Division of JurisdictionDivision of Jurisdiction

Business of FMC is divided generally Business of FMC is divided generally into:into:

Its Family Law Jurisdiction; andIts Family Law Jurisdiction; and Its General Federal Law Jurisdiction Its General Federal Law Jurisdiction http://http://www.fmc.gov.auwww.fmc.gov.au

Federal Magistrates Court Rules 2001Federal Magistrates Court Rules 2001 Federal Magistrates Court Federal Magistrates Court

(Bankruptcy) Rules 2006(Bankruptcy) Rules 2006 Federal Court RulesFederal Court Rules Family Law Rules 1984Family Law Rules 1984

Federal Magistrates Court Rule Federal Magistrates Court Rule 1.051.05

(1) It is intended that the practice and (1) It is intended that the practice and procedure of the Federal Magistrates Court procedure of the Federal Magistrates Court be governed principally by these Rules.be governed principally by these Rules.

(2) However , if in a particular case the (2) However , if in a particular case the Rules are insufficient or inappropriate, the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules Court may apply the Federal Court Rules or the Family Rules 1984, in whole or in or the Family Rules 1984, in whole or in part and modified or dispensed with, as part and modified or dispensed with, as necessary.necessary.

Advocacy tip # 2Advocacy tip # 2

Remember that the Evidence Act Remember that the Evidence Act 1995 (Cth) applies1995 (Cth) applies

Advocacy tip # 3Advocacy tip # 3

practical operation of the rule in practical operation of the rule in Browne v Dunn where both sides’ Browne v Dunn where both sides’ evidence in chief is given on affidavitevidence in chief is given on affidavit

““If you intend to impeach a witness If you intend to impeach a witness you are bound, whilst he is in the you are bound, whilst he is in the box, to give him an opportunity to box, to give him an opportunity to make any explanation which is open make any explanation which is open to him; and, as it seems to me, that to him; and, as it seems to me, that is not only a rule of professional is not only a rule of professional practice in the conduct of a case but practice in the conduct of a case but is essential to fair play and fair is essential to fair play and fair dealing with witnesses”dealing with witnesses”

No obligation to raise a matter:No obligation to raise a matter: ““Where it is perfectly clear that [the Where it is perfectly clear that [the

witness] has had full notice before hand witness] has had full notice before hand that there is an intention to impeach the that there is an intention to impeach the credibility of the story which he is telling …credibility of the story which he is telling …all I am saying is that it will not do to all I am saying is that it will not do to impeach the credibility of a witness upon a impeach the credibility of a witness upon a matter on which he has not had any matter on which he has not had any opportunity of giving an explanation by opportunity of giving an explanation by reason of there having been no suggestion reason of there having been no suggestion whatever in the course of the case that his whatever in the course of the case that his story is not accepted.”story is not accepted.”

Allied Pastoral Holding Pty Ltd v Allied Pastoral Holding Pty Ltd v Federal Commissioner of Taxation Federal Commissioner of Taxation [1983] 1 NSWLR 1[1983] 1 NSWLR 1

Raben Footwear Pty Ltd v Polygram Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88Records Inc (1997) 75 FCR 88

Flower & Hart v White Industries Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773(Qld) Pty Ltd [1999] FCA 773

West v Mead [2003] NSWSC 161West v Mead [2003] NSWSC 161

Advocacy tip # 4Advocacy tip # 4

A question should not state what A question should not state what someone else has said or is expected someone else has said or is expected to say in evidence and ask for a to say in evidence and ask for a reponse from the witnessreponse from the witness

Baldwin v The King (1925) 18 Cr App Baldwin v The King (1925) 18 Cr App R 175R 175

cf Evidence Act 1995 s.44cf Evidence Act 1995 s.44

Advocacy tip # 5Advocacy tip # 5

Documents produced to the court Documents produced to the court pursuant to a subpoena duces tecum pursuant to a subpoena duces tecum are not, by that fact alone, are not, by that fact alone, admissible into evidence.admissible into evidence.

Commissioner for Railways v Small Commissioner for Railways v Small (1938) 38 SR (NSW) 564(1938) 38 SR (NSW) 564

National Employers’ Mutual General National Employers’ Mutual General Association Ltd v Waind [1978] 1 Association Ltd v Waind [1978] 1 NSWLR 372NSWLR 372

Advocacy tip #6Advocacy tip #6

Carefully select objections to Carefully select objections to evidenceevidence

Advocacy tips # 7 to # 10Advocacy tips # 7 to # 10

Have spare copies of documents, Have spare copies of documents, affidavits and authorities for the affidavits and authorities for the bench- it helps them follow the bench- it helps them follow the evidenceevidence

Punctuality and court etiquettePunctuality and court etiquette Be able to formulate the disputed Be able to formulate the disputed

issues clearly and succinctly at the issues clearly and succinctly at the commencement of the mattercommencement of the matter

Eschew hyperbole Eschew hyperbole

Family Law JurisdictionFamily Law Jurisdiction

In its Family Law Jurisdiction the FMC isIn its Family Law Jurisdiction the FMC is

empowered to deal with:empowered to deal with: DivorceDivorce Parenting Orders/MaintenanceParenting Orders/Maintenance Child Support (assessment & Child Support (assessment &

collection)collection) Property – unlimited quantumProperty – unlimited quantum

General Federal Law General Federal Law JurisdictionJurisdiction

In its general Federal Law Jurisdiction the court’s In its general Federal Law Jurisdiction the court’s business is allocated to specialist panels.business is allocated to specialist panels.

They are:They are: Commercial Panel- TPA; Copyright; BankruptcyCommercial Panel- TPA; Copyright; Bankruptcy Migration and Administrative LawMigration and Administrative Law Human RightsHuman Rights Industrial LawIndustrial Law National SecurityNational Security AdmiraltyAdmiralty

Each panel is administered by a convenor who is Each panel is administered by a convenor who is responsible for urgent applications.responsible for urgent applications.

Court Rules & PracticeCourt Rules & Practice

Governed partly by FMC ActGoverned partly by FMC Act

FMC RulesFMC Rules

FMC must proceed without undue formality and endeavour to FMC must proceed without undue formality and endeavour to ensure that proceedings are not protractedensure that proceedings are not protracted

FM Act s.42FM Act s.42

Practice and procedure is to be in accordance with the Court Practice and procedure is to be in accordance with the Court rules rules

FM Act s.43(1)FM Act s.43(1)

Representation only permitted by lawyersRepresentation only permitted by lawyersFM Act s.44FM Act s.44

Interrogation and discovery only by orderInterrogation and discovery only by orderFM Act s.45FM Act s.45

Where FMC rules are insufficient apply:Where FMC rules are insufficient apply: Rules of Court made under FLA; orRules of Court made under FLA; or Rules of Court made under FCARules of Court made under FCAwith appropriate modificationwith appropriate modification

FM Act s.43(2)FM Act s.43(2)

Proceedings commenced by filing proceedings at a Proceedings commenced by filing proceedings at a Registry of the FMCRegistry of the FMC

S.46(1)(a)(ii)S.46(1)(a)(ii)OROR

Filing with another court where an arrangement has been Filing with another court where an arrangement has been concluded to do so with another court pursuant to s 90 FM concluded to do so with another court pursuant to s 90 FM ActAct

S.46(1)(a)(ii)S.46(1)(a)(ii)

Such an arrangement exists in respect of Family Courts sub Such an arrangement exists in respect of Family Courts sub registries. Ie Lismore, Cairns, Rockhampton, Townsville.registries. Ie Lismore, Cairns, Rockhampton, Townsville.

FMC adopts a docket system of case management.FMC adopts a docket system of case management.

General rules address most matters to beGeneral rules address most matters to beexpectedexpected

Commencement of applications/proceedingsCommencement of applications/proceedings ServiceService AmendmentAmendment Ending proceedings early (Summary Ending proceedings early (Summary

judgment/default)judgment/default) Disclosure (apparent contradictions to s.45 FM Act)Disclosure (apparent contradictions to s.45 FM Act) JudgmentJudgment Separate QuestionsSeparate Questions CostsCosts

Generally process is the same as apply in other Generally process is the same as apply in other Courts, including State CourtsCourts, including State Courts

Rules broken into various parts:Rules broken into various parts:

Chapter 1- Applies generallyChapter 1- Applies generally

Chapter 2- Applies to FamilyChapter 2- Applies to Family

Chapter 3- Proceedings other than Family Chapter 3- Proceedings other than Family proceedingsproceedings

Chapter 3 rules included rules related toChapter 3 rules included rules related to InterestInterest Cross claimsCross claims

(There is no Chapter 4)(There is no Chapter 4)

Chapter 5- Human rights proceedingsChapter 5- Human rights proceedings

Chapter 6- Judicial Review & Administrative Chapter 6- Judicial Review & Administrative appealsappeals

Separate rules exist in respect of BankruptcySeparate rules exist in respect of BankruptcyProceedingsProceedings

Federal Magistrates Court (Bankruptcy) Rules Federal Magistrates Court (Bankruptcy) Rules 2006 particularly rules concerning2006 particularly rules concerning

Originating & Interim ApplicationsOriginating & Interim Applications

Bankruptcy notices- substituted service/setting asideBankruptcy notices- substituted service/setting aside

Creditors petitionsCreditors petitions

ExaminationsExaminations

AnnulmentsAnnulments

BankruptcyBankruptcy

Section 5Section 5 FM is not a MagistrateFM is not a Magistrate FM is taken to be a judge or a Court having FM is taken to be a judge or a Court having

jurisdiction under B. Act.jurisdiction under B. Act.

Section 27Section 27 FMC & FMC having concurrent jurisdictionFMC & FMC having concurrent jurisdiction

Section 30(3)Section 30(3) The rules proceeding under the B. Act an FM The rules proceeding under the B. Act an FM

cannot hear is one where a question is to be tried cannot hear is one where a question is to be tried before a jury.before a jury.

Trade PracticesTrade Practices

JurisdictionJurisdiction PT IVA- Unconscionable conductPT IVA- Unconscionable conduct PT IVB- Industry Codes- esp. franchisingPT IVB- Industry Codes- esp. franchising PT V- Consumer Protection- s.52 et seq.PT V- Consumer Protection- s.52 et seq.

Damages limited to $750,000Damages limited to $750,000 s. 86AAs. 86AA Otherwise FMC has other powers provided Otherwise FMC has other powers provided

by s.87 (other orders) and s.80 by s.87 (other orders) and s.80 (injunctions)(injunctions)

Intellectual PropertyIntellectual Property

Copyright ActCopyright Act Part V of Copyright ActPart V of Copyright Act

Remedies and Offences under the Act for:Remedies and Offences under the Act for: InfringementsInfringements Enforcement of moral rightsEnforcement of moral rights Broadcast decoding rights enforcementBroadcast decoding rights enforcement Performers protection Performers protection

Nature of reliefNature of relief DamagesDamages InjunctionInjunction Anton Piller/Norwich Pharmacal ReliefAnton Piller/Norwich Pharmacal Relief

Admiralty LawAdmiralty Law

FMC has unlimited jurisdiction with FMC has unlimited jurisdiction with respect to in personam admiralty claims.respect to in personam admiralty claims.

Section 9(3) provides general maritime Section 9(3) provides general maritime claims to include, inter alia:claims to include, inter alia:

Claim for damage done by a ship;Claim for damage done by a ship; Claim for loss of life or personal injury arising by Claim for loss of life or personal injury arising by

defect in a shipdefect in a ship Claim, including claim for loss of life or injury arising Claim, including claim for loss of life or injury arising

from an act or omission of a ship charterer; operator; from an act or omission of a ship charterer; operator; owner related to navigation or management of a ship.owner related to navigation or management of a ship.(Inc. claims related to loading goods & (Inc. claims related to loading goods & embarkation/disembarkation of passengers)embarkation/disembarkation of passengers)

ContCont..

Salvage claimsSalvage claims General average claimsGeneral average claims Towage/pilotage claimsTowage/pilotage claims Construction/repair/equippingConstruction/repair/equipping Levies/port dues, charges & tollsLevies/port dues, charges & tolls Claims by masters on account of Claims by masters on account of

disbursements for shipsdisbursements for ships

Administrative LawAdministrative Law

Powers similar to Federal Court under both AAT Powers similar to Federal Court under both AAT Act and ADJR ActAct and ADJR Act

AAT Act appeals are by reference from Federal AAT Act appeals are by reference from Federal Court onlyCourt only

ADJR Act appeals (per ss5-8)ADJR Act appeals (per ss5-8)

Section 5Section 5 Applications for review of decisions by persons aggrieved Applications for review of decisions by persons aggrieved

by a decisionby a decision Denial of natural justiceDenial of natural justice Ultra viresUltra vires Errors of lawErrors of law Improper exercise of power. Ie irrelevant consideration mala Improper exercise of power. Ie irrelevant consideration mala

fides.fides.

Cont.Cont.

Section 6Section 6 Application for review by persons aggrieved by Application for review by persons aggrieved by

conductconductSection 7Section 7

Application involving a failure to make a Application involving a failure to make a decision or who does not make it within the decision or who does not make it within the time requiredtime required

May apply to FCA or FMCMay apply to FCA or FMC

Section 8Section 8 FMC has jurisdiction to hear & determine FMC has jurisdiction to hear & determine

applications made to FMCapplications made to FMCSection 16Section 16

FMC has full powers available including:FMC has full powers available including: Quashing; referring back; declaration of rights; Quashing; referring back; declaration of rights;

injunctioninjunction

Although appeals from AAT must be Although appeals from AAT must be by transfer from FCAby transfer from FCA

Does not apply to decisions of Does not apply to decisions of Presidential members of AATPresidential members of AAT

ADJR review from some Acts excludedADJR review from some Acts excluded

Migration ActMigration Act

FMC has same jurisdiction as High FMC has same jurisdiction as High Court under s.75(v) of the ConstitutionCourt under s.75(v) of the Constitution

Jurisdiction of FCA excluded from Jurisdiction of FCA excluded from exercising first instance migration exercising first instance migration review in all except limited migration review in all except limited migration matters whilst retaining appellate matters whilst retaining appellate jurisdictionjurisdiction

Review from MRT/RRT is in the nature Review from MRT/RRT is in the nature of judicial review with powers of FMC of judicial review with powers of FMC limited to prerogative relief.limited to prerogative relief.

Human RightsHuman Rights

Human Rights and Equal Opportunity Human Rights and Equal Opportunity Commission ActCommission Act

Relief in respect of unlawful discriminationRelief in respect of unlawful discrimination Relief includes:Relief includes:

Declaration of unlawful discrimination and orders Declaration of unlawful discrimination and orders not to repeat or continue with such not to repeat or continue with such discriminationdiscrimination

Orders to perform an act or conduct to redress Orders to perform an act or conduct to redress any loss or damage sufferedany loss or damage suffered

Re-employment ordersRe-employment orders DamagesDamages Order to vary termination of a contract or Order to vary termination of a contract or

agreement to redress any loss or damage agreement to redress any loss or damage sufferedsuffered

Industrial LawIndustrial Law

The Workplace Relations Amendment The Workplace Relations Amendment (Work(Work

Choices) Act 2005Choices) Act 2005 FMC Jurisdiction to hear and make ordersFMC Jurisdiction to hear and make orders

concerningconcerning Unlawful termination claims s. 64Z:659Unlawful termination claims s. 64Z:659 Remedies includeRemedies include

civil penalties, reinstatement, compensation: s.665civil penalties, reinstatement, compensation: s.665 Injunction: s. 682Injunction: s. 682

Independent Contractors Act 2006Independent Contractors Act 2006

Independent Contractors Act Independent Contractors Act (2006)(2006)

FMC jurisdiction to here applications by a FMC jurisdiction to here applications by a party to a service contract on the grounds party to a service contract on the grounds the contract is unfair or harshthe contract is unfair or harsh

ICA replaces deeming provision in State ICA replaces deeming provision in State legislation that deem independent legislation that deem independent contractors to be employees for the purposes contractors to be employees for the purposes of Industrial Law- such will now be of Industrial Law- such will now be unenforceable.unenforceable.

Remedies open to the Court include varying Remedies open to the Court include varying or setting aside the whole or part of the or setting aside the whole or part of the contract; an order varying the contractcontract; an order varying the contract

Powers to impose civil penalties for sham Powers to impose civil penalties for sham contractscontracts

National SecurityNational Security

Anti-Terrorism ActAnti-Terrorism Act

Issue of control ordersIssue of control orders

FMC is an issuing court for the FMC is an issuing court for the purpose of the control order regimepurpose of the control order regime

See the Court web site – See the Court web site – http://www.fedcourt.gov.auhttp://www.fedcourt.gov.au

http://http://www.fmc.gov.auwww.fmc.gov.au