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The Federal Magistrates Court of Australia Practice, Procedure and Evidence Keith Wilson FM Michael Burnett FM Queensland Bar Association Annual Conference-

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Presentation on theme: "The Federal Magistrates Court of Australia Practice, Procedure and Evidence Keith Wilson FM Michael Burnett FM Queensland Bar Association Annual Conference-"— Presentation transcript:

1 The Federal Magistrates Court of Australia Practice, Procedure and Evidence Keith Wilson FM Michael Burnett FM Queensland Bar Association Annual Conference- Gold Coast 2007

2  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

3 s.10Federal Magistrates Act S10(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament: 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 (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 (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. (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.

4 Advocacy tip # 1 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. 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.

5 s.18 Federal Magistrates Act 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. 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.

6 Section 15 FM Act Section 15 FM Act Section 16 FM Act Section 16 FM Act Section 17 FM Act Section 17 FM Act

7 Division of Jurisdiction Business of FMC is divided generally into:  Its Family Law Jurisdiction; and  Its General Federal Law Jurisdiction 

8 Federal Magistrates Court Rules 2001 Federal Magistrates Court Rules 2001 Federal Magistrates Court (Bankruptcy) Rules 2006 Federal Magistrates Court (Bankruptcy) Rules 2006 Federal Court Rules Federal Court Rules Family Law Rules 1984 Family Law Rules 1984

9 Federal Magistrates Court Rule 1.05 (1) It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules. (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. (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.

10 Advocacy tip # 2 Remember that the Evidence Act 1995 (Cth) applies Remember that the Evidence Act 1995 (Cth) applies

11 Advocacy tip # 3 practical operation of the rule in Browne v Dunn where both sides’ evidence in chief is given on affidavit practical operation of the rule in Browne v Dunn where both sides’ evidence in chief is given on affidavit

12 “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” “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”

13 No obligation to raise a matter: 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.” “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.”

14 Allied Pastoral Holding Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 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 Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773 Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773 West v Mead [2003] NSWSC 161 West v Mead [2003] NSWSC 161

15 Advocacy tip # 4 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 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 Baldwin v The King (1925) 18 Cr App R 175 cf Evidence Act 1995 s.44 cf Evidence Act 1995 s.44

16 Advocacy tip # 5 Documents produced to the court pursuant to a subpoena duces tecum are not, by that fact alone, admissible into evidence. 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 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372

17 Advocacy tip #6 Carefully select objections to evidence Carefully select objections to evidence

18 Advocacy tips # 7 to # 10 Have spare copies of documents, affidavits and authorities for the bench- it helps them follow the evidence Have spare copies of documents, affidavits and authorities for the bench- it helps them follow the evidence Punctuality and court etiquette Punctuality and court etiquette Be able to formulate the disputed issues clearly and succinctly at the commencement of the matter Be able to formulate the disputed issues clearly and succinctly at the commencement of the matter Eschew hyperbole Eschew hyperbole

19 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

20 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.

21 Court Rules & Practice  Governed partly by FMC Act  FMC Rules

22  FMC must proceed without undue formality and endeavour to ensure that proceedings are not protracted FM Act s.42  Practice and procedure is to be in accordance with the Court rules FM Act s.43(1)  Representation only permitted by lawyers FM Act s.44  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)

23  Proceedings commenced by filing proceedings at a Registry of the FMC S.46(1)(a)(ii)OR  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.

24 General rules address most matters to be expected  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

25 Rules broken into various parts:  Chapter 1- Applies generally  Chapter 2- Applies to Family  Chapter 3- Proceedings other than Family proceedings

26  Chapter 3 rules included rules related to  Interest  Cross claims  (There is no Chapter 4)  Chapter 5- Human rights proceedings  Chapter 6- Judicial Review & Administrative appeals

27 Separate rules exist in respect of Bankruptcy Proceedings  Federal Magistrates Court (Bankruptcy) Rules 2006 particularly rules concerning  Originating & Interim Applications  Bankruptcy notices- substituted service/setting aside  Creditors petitions  Examinations  Annulments

28 Bankruptcy  Section 5  FM is not a Magistrate  FM is taken to be a judge or a Court having jurisdiction under B. Act.  Section 27  FMC & FMC having concurrent jurisdiction  Section 30(3)  The rules proceeding under the B. Act an FM cannot hear is one where a question is to be tried before a jury.

29 Trade Practices Jurisdiction  PT IVA- Unconscionable conduct  PT IVB- Industry Codes- esp. franchising  PT V- Consumer Protection- s.52 et seq.  Damages limited to $750,000s. 86AA  Otherwise FMC has other powers provided by s.87 (other orders) and s.80 (injunctions)

30 Intellectual Property Copyright Act  Part V of Copyright Act  Remedies and Offences under the Act for:  Infringements  Enforcement of moral rights  Broadcast decoding rights enforcement  Performers protection  Nature of relief  Damages  Injunction  Anton Piller/Norwich Pharmacal Relief

31 Admiralty Law  FMC has unlimited jurisdiction with respect to in personam admiralty claims.  Section 9(3) provides general maritime claims to include, inter alia:  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)

32 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

33 Administrative Law  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  Applications for review of decisions by persons aggrieved by a decision  Denial of natural justice  Ultra vires  Errors of law  Improper exercise of power. Ie irrelevant consideration mala fides.

34 Cont. Section 6  Application for review by persons aggrieved by conduct Section 7  Application involving a failure to make a decision or who does not make it within the time required  May apply to FCA or FMC Section 8  FMC has jurisdiction to hear & determine applications made to FMC Section 16  FMC has full powers available including:  Quashing; referring back; declaration of rights; injunction

35  Although appeals from AAT must be by transfer from FCA  Does not apply to decisions of Presidential members of AAT  ADJR review from some Acts excluded

36 Migration Act  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.

37 Human Rights  Human Rights and Equal Opportunity Commission Act  Relief in respect of unlawful discrimination  Relief includes:  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

38 Industrial Law  The Workplace Relations Amendment (Work Choices) Act 2005  FMC Jurisdiction to hear and make orders concerning  Unlawful termination claims s. 64Z:659  Remedies include  civil penalties, reinstatement, compensation: s.665  Injunction: s. 682  Independent Contractors Act 2006

39 Independent Contractors Act (2006)  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

40 National Security Anti-Terrorism Act  Issue of control orders  FMC is an issuing court for the purpose of the control order regime

41  See the Court web site – 


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