1. INTRODUCTION
1. What is a “commercial cause”? Ever since the Commercial Causes List was established in the English Queen’s
Bench Division in February 1895, courts have sought to provide a means of offering a “cheap and speedy” resolution to
disputes which fell within the terse words of “causes arising out of the ordinary transactions of merchants and traders”.
How that list came about has a direct connection with Australian commercial matters.
2. The great commercial lawyer, Scrutton LJ, noted that a trial before Lawrance J in 1891, Rose v The Bank of Australasia, was effectively the last straw for the commercial men (as they all were at that time) of the City of London. The trial concerned
the question of whether owners of a ship were entitled to general average contributions from cargo owners based on a complicated
adjustment by experienced loss adjusters. Scrutton, who was junior counsel for the plaintiff, described Lawrance J as knowing “as
much about the principles of general average as a Hindoo about figure skating”.
3. The Australian connection with that case was that the ship was carrying Australian wool from Sydney to London but came
to grief off the French coast near Boulogne. In my young years at the Bar much energy was spent in seeking to have matters either
transferred into or out of the Commercial List of the Supreme Court of New South Wales. But that was at a time when the Federal
Court was in its infancy and its jurisdiction far narrower than it is today. However, the earlier constraints on the Federal Court
may have led many practitioners to assume incorrectly the myth that only commercial cases raising a claim under s 52 of the Trade Practices Act 1974 (Cth) can be brought in the Federal Court. That is quite misconceived.
4. Now, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) relevantly confers original jurisdiction on the Federal Court in any matter arising under any laws made by the Commonwealth
Parliament. The commercial cause before Lawrance J would fall within the jurisdiction of the Federal Court as a maritime claim under
ss 4(2)(h) and 9(1)(a) of the Admiralty Act 1988 (Cth).
5. Most cases involving a dispute in respect of an insurance policy are likely to fall within the jurisdiction of the
Federal Court because the Insurance Contracts Act 1984 (Cth) is a law made by the Parliament. And, the expansive reach of the implied warranties in respect of contracts for the sale or
provision of goods or services under ss 71 and 74 of the Trade Practices Act will bring many transactions involving large corporations and valuable property within the reach of the Trade Practices Act. The use of the post, telephone or internet in trade or commerce also has the potential to attract the extended operation of that
Act.
6. Since the early 20th Century the Supreme Court of New South Wales has had a Commercial List. The Supreme Courts of
Victoria and Queensland have also long had commercial lists. The judges administering such a list always exercised a wide discretion
in determining, first, what cases should be entered into or removed from it and secondly, the appropriate case management so as to
bring about a quick hearing to determine the real issue or issues between the parties. Much of what in years past was considered
a commercial list matter or commercial cause is now also within the jurisdiction of the Federal Court.
7. Recently, the idea has been raised of establishing a commercial panel or list in the Federal Court, particularly in
Sydney and Melbourne. The Court is currently experimenting with the fast track list in Melbourne. The Sydney judges are giving
active consideration as to whether a similar panel in the New South Wales registry would be appropriate or another arrangement such
as a commercial list or expedition list. However, it is important to appreciate that, unlike the position in other courts, each
judge of the Federal Court controls his or her own docket of cases, and is thus able to case manage and, where appropriate, speedily
determine matters. Of course, if the matter is urgent, and the docket judge is not able to hear it within an appropriate time, he
or she can refer it to the Sydney list judge to see whether another judge of the Court can hear it. Urgency is different to the
natural desire of many litigants to get an early and efficiently managed hearing. The Court’s docket system is already geared
to achieving the latter outcome.
8. By December this year, the Federal Court’s new commercial court room on level 18 in the Sydney Law Courts Building
will be ready. It will seat up to 50 at bar tables and will be about 300m2 in area. This courtroom will be a fully electronic;
providing facilities for electronic evidence, video conferencing, and real time transcript. There will be a public wireless connection
available to the parties, subject to the direction of the presiding judge. And for major trials, proceedings in the courtroom will
be video streamed to a media room located adjacent to the courtroom itself.
9. One of my purposes in this paper is to explain the scope of the Federal Court’s jurisdiction to hear and decide
commercial cases. Currently five former judges of the Federal Court serve on the High Court of Australia, including the new Chief
Justice.
10. While the Hon Ian Callinan AC recently described the creation of the Federal Court as “unnecessary”, it will
come as no surprise that not everyone shares his view.
2. THE SCOPE OF THE JUDICIAL POWER OF THE COMMONWEALTH IN COMMERCIAL MATTERS
11. The founding fathers provided in s 71 of the Constitution that the judicial power of the Commonwealth was to be vested in “…the High Court of Australia, and in such other federal
courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction”. The order in which the
founding fathers described the Courts which would exercise the judicial power is significant. The autochthonous expedient of investing
State courts with federal jurisdiction is, of course, very convenient. But a national body politic, such as the Commonwealth of
Australia, could not seriously be expected to operate without its own system of courts.
12. One of the purposes for the establishment of the Federal Court in 1976 was to relieve the High Court of Australia from
having to decide a number of matters of federal law at first instance. The Court also replaced the old Australian Industrial Court
and the Federal Court of Bankruptcy. Later in 1997, as contemplated by s 76(ii) of the Constitution, the Parliament enacted s 39B(1A)(c) of the Judiciary Act. As a result, any non-criminal matter arising under an Act of the federal Parliament is now within the jurisdiction in the Federal
Court.
13. The much criticised decision of the High Court in Re Wakim; Ex parte McNally, is not often fully appreciated by its detractors. Mr Wakim brought three separate proceedings in the Federal Court. First, he
sued the Official Trustee in Bankruptcy (which was in the exclusive jurisdiction of the Federal Court under the Bankruptcy Act 1966 (Cth)). Secondly, Mr Wakim sued Mr Darvall QC solely for allegedly negligent advice he had given to the Official Trustee to terminate
a proceeding which had the effect of reducing the amount available to his bankrupt estate. Thirdly, Mr Wakim sued the Official Trustee’s
solicitors on the basis of a similar claim for negligent advice. One of the High Court’s most significant conclusions was
that those three separate actions were all part of a single justiciable controversy. The two claims against professionals in tort
would not ordinarily be within the jurisdiction of the Federal Court. However, Re Wakim held that the Federal Court had jurisdiction to hear all three matters. This was because they all arose out of one set of events
which gave rise to the damage which Mr Wakim claimed he had suffered. Gummow and Hayne JJ held that in those circumstances there
was one common sub-stratum of facts that led to the conclusion that the three proceedings raised a single justiciable controversy.
14. Thus, in order to bring proceedings in the Federal Court there must be at least one matter within its jurisdiction in
the overall dispute between the parties. Once that element is established, however, the Court then has jurisdiction to determine
the whole of the dispute, not just the federal portion. Thus, many proceedings, which in years past would have been commenced automatically
in State courts as commercial matters, are also in fact matters which arise in federal jurisdiction and can be brought in the Federal
Court. Even if they are brought in the Supreme Court of a State or Territory, such matters are nonetheless within federal jurisdiction.
The State or Territory Courts exercise federal jurisdiction vested in them by s 39 of the Judiciary Act. But, that is a topic for another day.
3. THE FEDERAL COURT IS A NATURAL FORUM FOR ADJUDICATING COMMERCIAL DISPUTES IN AUSTRALIA
15. The Constitution provided the federal Parliament with power to make laws with respect to trade and commerce with other countries and among the States.
In 1901, Australia’s export trade was a very significant part of its economy, as it is today. While in 1901 trade and commerce
between or among the States was also of some significance, the vast amount of commercial transactions were domestic, i.e. within
each State. Throughout the last century to the present, Australia’s internal trade and commerce has expanded in scope beyond
the boundaries of individual States. This has been driven by the realities of the marketplace and the enormous growth of economic
prosperity that ensued since the last century.
16. Our federal Constitution is a living instrument. It contemplated that significant areas of commercial life would need to be regulated by the Commonwealth.
And, s 98 of the Constitution provided that the Commonwealth Parliament had power to make laws with respect to navigation, shipping and State owned railways.
Moreover, ss 51 and 76 of the Constitution gave the Commonwealth Parliament the power to make laws with respect to many of the foundational pillars of our modern commercial
system: banking, insurance, corporations whether foreign, trading or financial, admiralty and maritime matters, taxation, bankruptcy
and insolvency, telecommunications, copyright, patents, trademarks and conciliation and arbitration for the prevention and settlement
of industrial disputes extending beyond the limits of any one State.
17. Thus, from the time of federation the Commonwealth had both legislative and judicial power to deal with the nation’s
trade and commerce together much of its commercial life and activities.
18. In moving the second reading of the Federal Court of Australia Bill 1976 the then Attorney-General, the Hon RJ Ellicott
QC MP, explained that the intention behind s 19, at that time, was that:
“The Court is to have jurisdiction only in specified matters arising under laws made by the Parliament. Jurisdiction in other
federal matters will remain with or be vested exclusively in State Courts so far as the Constitution permits.”
19. Over the years since the creation of the Federal Court in 1976, the Parliament gradually increased its jurisdiction to
what it is today. Thus, early in 1977 the jurisdiction of the Court was conferred by just 13 Commonwealth Acts. Thereafter, the Parliament enacted
piecemeal conferrals of jurisdiction on the Federal Court in individual statutes.
20. The incremental manner of these expansions of the Federal Court’s jurisdiction has been the cause of confusion and
misunderstanding of the Court’s jurisdiction in the commercial, and particularly legal, community. The perception that the
Federal Court had a very limited jurisdiction overlooked the fact that once jurisdiction of the Court was attracted in a matter arising
under any law of the Parliament conferring jurisdiction on it, the Court could decide the whole controversy of which that matter
was part. Speaking extra-judicially, Chief Justice Black has said:
“Although it has been common to refer to the limited nature of the jurisdiction of the Federal Court of Australia when it was
established in 1976, to speak of that jurisdiction as ‘limited’ does not really say very much, indeed it begs the question.
From the outset, the original jurisdiction of the Federal Court encompassed many of the most important areas of federal civil jurisdiction
that then existed. ... The perception that in 1976 the Federal Court was a ‘small’ court must therefore be qualified
by reference to the breadth and importance of the small number of enactments by which jurisdiction was originally conferred upon
it. ... It may be doubted, therefore, whether the change in character of the Federal Court is nearly as great as has sometimes been
supposed. In any event that change occurred through the will of the Parliament …”
21. The “change in character” of which the Chief Justice spoke brought about by the conferral of general, instead
of specific, federal jurisdiction on the Court through the enactment in 1997 of s 39B(1)(a) of the Judiciary Act. That provides:
“39B Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
…
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted
or any other criminal matter.”
22. The parliamentary intention may be discerned from the explanatory memorandum for the Law and Justice Legislation Amendment
Bill 1997 (Cth) which stated:
“The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts
in civil matters. The jurisdiction gives the Federal Court a greater role in the administration of federal laws, by ensuring that
the Court is able to deal with all matters that are of an essentially federal nature.”
23. Thus for the past 11 years the Federal Court has been a court of general civil jurisdiction in federal matters. The term
“federal matters” links back to the jurisdiction for the exercise of the judicial power of the Commonwealth identified
in Ch III of the Constitution, especially ss 75 and 76. The latter sections delimited the bounds of the original jurisdiction for the judicial power of the Commonwealth. And, as I have
said, a federal matter involves a single justiciable controversy of which a matter arising under a law made by the Parliament may
form only a small part. This was a lesson from Re Wakim.
24. Since 1997 the Court has had jurisdiction to determine controversies or “matters” across the range of areas
that impact on trading and commercial activities with respect to which the federal Parliament has made laws. So long as a “matter”
can be said to “arise under” a law of the Parliament, then the Federal Court is vested with jurisdiction to hear the
whole of the dispute.
25. A “matter” involves the existence of a controversy as to some immediate right, duty or liability to be established
by the determination of the Court. A matter is identifiable independently of the proceeding that is brought for its determination.
26. What then is the meaning of the phrase “arising under any laws made by the Parliament” for the purposes of
s 39B(1A)(c) of the Judiciary Act and s 76(ii) of the Constitution? Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ identified this in Agtrack (NT) Pty Ltd v Hatfield when they said:
“It is well settled that a ‘matter’ means more than a legal proceeding and that ‘an important aspect of federal
judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled’.
Further, federal jurisdiction may be attracted at any stage of a legal proceeding, as Barwick CJ emphasised in Felton v Mulligan. Indeed, as early as 1907, this Court had remarked that federal jurisdiction may be raised for the first time in a defence. In Re Wakim; Ex parte McNally, Gummow and Hayne JJ said:
‘The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention
to the pleadings (if any) and to the factual basis of each claim.’
…
If a party on either side of the record relies upon a right, immunity or defence derived from a federal law, there is a matter arising
under s 76(ii) of the Constitution. It is not a question of establishing an intention to engage federal jurisdiction or an awareness that this has occurred. Immediate
ascertainment of the factual basis of a justiciable controversy and of the attraction of federal jurisdiction in a proceeding will
not always be possible by regard simply to allegations pleaded. If the attraction of federal jurisdiction itself is disputed, it
may require evidence of the factual basis of the controversy to permit an answer to that question. …”
27. In addition, a new party, against whom no federal claim is made, can be joined to proceedings already in federal jurisdiction
(i.e. a claim for contribution or indemnity) and that claim will be part of the one controversy. And, if the federal claim is dismissed,
or the court does not need to decide whether or not a right or duty based in federal law exists, even if that matter has not been
pleaded by the parties, the Court nonetheless continues to have jurisdiction to determine the non federal part of the controversy.
Also, if a federal matter is pleaded, federal jurisdiction is exercised even though the Court finds it unnecessary to decide the
federal question because the case can be decided on other grounds unless, perhaps, the inclusion of the federal claim was “colourable”
(i.e. it does not raise any real federal question and is in truth fictitious) or an abuse of process.
28. In addition, the content of the law to be applied by the Federal Court in exercise of its jurisdiction under s 39B(1A)(c)
may be derived from a State or Territory statute which is “picked up” as a “surrogate federal law” by the
operation of s 79 of the Judiciary Act. Where a cause of action is created by a statute of the Commonwealth Parliament, there will be no difficulty in determining that
federal jurisdiction is attracted. Thus, a claim for damages under s 82 of the Trade Practices Act caused by an alleged contravention of s 52 is within the federal jurisdiction.
29. Where, then, will a matter arise under a law made by the Parliament so as to attract the jurisdiction of the Federal Court?
First, it is not necessary that the form of relief sought in proceedings, or the relief itself, depend on federal law, as Gibbs
CJ, Mason, Wilson, Brennan, Deane and Dawson JJ held in LNC Industries Ltd v BMW (Australia) Ltd. They said:
“A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim
for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which
is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists
as a result of the federal law.”
30. Thus, the High Court held that a contract for the sale of a licence to import motor vehicles granted under a Commonwealth
regulation owed its existence to federal law. That is, an action arising out of a contract for sale, where the only federal aspect
was that the property the subject of the contract was created by federal law, was held to be a matter arising under a law made by
the Parliament. Thus, contracts for the sale of shares in corporations or of licences granted under federal law (such as broadcasting
licences) are likely to be within the jurisdiction of the Federal Court.
31. It may also be useful to give some practical examples of commercial scenarios that could arise under a federal law to
demonstrate the breadth of the potential jurisdiction of the Federal Court in a number of common circumstances. Commercial disputes
frequently occur which involve rights, duties or liabilities that a court will establish under one or more of the following Acts
of the Parliament:
· The Admiralty Act 1988, The Carriage of Goods by Sea Act 1991 and the Air Carriers (Civil Liability) Act 1959. These deal with many aspects of Australia’s international trade and commerce and give effect to a number of conventions including
the Hague Rules, and its amendments and the Warsaw Convention and its amendments (the Supreme Courts have concurrent jurisdiction).
· The Corporations Act 2001. This now vests jurisdiction in any matter under that Act in the Federal Court (as well as in the Supreme Courts).
· Claims involving traders to selling or supplying goods or services said to be subject of copyright or trademark
or design protection.
· Disputes between franchisors and franchisees. These also can involve the construction of the commercial contract
between and the existence and operation of rules of common law and equity.
· Actions arising from financial transactions under Part 2 of the Australian Securities and Investments Commission (ASIC) Act 2001 (Cth), the Cheques Act 1986 (Cth) and Bills of Exchange Act 1909 (Cth).
· Obviously, contraventions of Pt V, including s 52, of the Trade Practices Act. Matters arising under the Trade Practices Act are, of course, classically commercial. These include issues arising from anti-competitive behaviour or other behaviour interfering
with competition or Australia’s trade and commerce, the consumer protection provisions, including provisions dealing with manufacturer’s
liability, matters dealing with international liner cargo shipping, the competition codes, the regulation of the telecommunications
industry and access to telecommunications and other infrastructure. In addition, there are the foreshadowed serious cartel behaviour
provisions which will, if enacted, create a criminal jurisdiction.
· Actions based on breaches of contractual terms implied by ss 71 and 74 of the Trade Practices Act as explained by Gleeson CJ, Gummow and Hayne JJ in Austral Pacific Group Limited (in liq) v Airservices Australia. These will arise in many commercial contexts. Those sections provide for the implication by statute of terms into every contract
for the supply of goods or services falling within their scope. They create implied conditions that, in the case of goods, in general,
first they will be of merchantable quality and secondly, where the consumer makes known expressly or by implication to the supplier
corporation the particular purchase for which the goods are being acquired, that they will be reasonably fit for that purpose. And
where a corporation supplies services there is an implied warranty that first, they will be rendered with due skill and care and
secondly, any materials supplied in connection with the services will be reasonably fit for the purpose for which they supplied similar
to the implied warranty as to reasonable fitness where the particular purpose for which a service is required or made known. The
definition of “consumer” in s 4B involves a number of concepts, including one that the price for the goods or services
does not exceed the amount prescribed (currently $40,000) but this does not limit the significance of the overall dispute that could
be generated. After all, oak trees grow from acorns.
· The Insurance Contract Acts 1984 (Cth) and the Marine Insurance Act 1909 (Cth) deal with many issues of insurance law.
· Issues arising under the International Arbitration Act 1974 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention).
32. It is not my purpose to be exhaustive. Rather, it is to dispel the myth that the Federal Court’s jurisdiction in
commercial matters is limited to matters arising under s 52 of the Trade Practices Act or in a few other statutory pigeonholes. The view of Allsop J, as he then was, with whom Finn and Finkelstein JJ agreed in Comandate Marine Corporation v Pan Australia Shipping Pty Ltd was cited with approval by Lord Hope of Craighead in Fiona Trust & Holding Corporation v Privalov. Lord Hope noted that the Federal Court had taken a liberal approach to the words chosen by the parties, underpinned by the sensible
commercial presumption that they did not intend the inconvenience of having possible disputes from their transaction being heard
in two places, particularly when they were operating in a truly international market. Lord Hope said that this approach to the issue
of construction was now firmly imbedded as part of the law of international commerce and should be accepted as part of English law.
4. PROCEDURAL FACILITIES FOR LITIGATION IN THE FEDERAL COURT
33. One unique advantage the Federal Court can offer litigants is its ability to conduct hearings with parties in different
states and territories. The Court is a single, national court. Thus, where a ship is arrested off the coast of Western Australia
and the plaintiff commences proceedings in Sydney, the Court can and does hear parties in different places at the one time by video,
telephone or, in one case recently, mobile telephone link between Sydney and Perth. Commercial disputes often involve parties whose
lawyers are located in different cities. The Court is not confined to sitting in any one place to deal with the whole dispute.
34. The Federal Court exercises its powers under s 48 of the Federal Court of Australia Act 1976 (Cth) and its rules within the context of it being a national court. In National Mutual Holdings Pty Limited v The Sentry Corporation, Bowen CJ, Woodward and Lockhart JJ said that the power under s 48 should be exercised flexibly having regard to the circumstances of the particular case, and that the judge was in a position to mould
orders under the section to take account of the many and varied circumstances that arise in particular cases.
35. And, the Court has emphasised as important that each party take steps to ensure the efficient and proper conduct of civil
litigation. That includes that all relevant parties to the dispute know what the issues are. The Court has discouraged parties
from raising false issues or allowing opponents to labour under misapprehensions as to what the case is really about. The Court
has adopted the use of concurrent expert evidence, and indeed, has led the way internationally in its use, originally in competition
matters. It now uses the technique in commercial matters as well as others.
36. The national jurisdiction of the Court means that rules are consistent throughout the Commonwealth for litigation conducted
in it. A number of areas of litigation are governed by statutory rules, such as the Admiralty Rules 1988 and the Corporations Rules 2001, which apply both in Federal and State jurisdictions.
5. THE DOCKET SYSTEM AND THE PANEL SYSTEM
37. About eleven years ago, the Court introduced the individual docket system. The object of the docket system is to ensure
that the case is moved towards final disposition as quickly, inexpensively and efficiently as possible.
38. The underlying principle of the docket system is that once allocated to a particular judge the case remains with that
judge from commencement to disposition. This enables the judge to become familiar with the issues, to help the parties refine them,
to ensure that the case is properly managed so that it will be presented at trial in the way it most likely to achieve an efficient
presentation of the real issues in dispute and their speedy determination. In addition, the individual judge managing the case will
be able to assist the parties in reducing issues, and, where appropriate, suggest or order mediation. The Court also has the facility
to order a case management conference, that is, a less formal form of directions hearing in which the judge and the parties sit around
a table and seek to deal with the procedural management of the case generally or in respect of particular issues.
39. The docket system operates by the Registry allocating each new matter to a judge in strict rotation as it is filed. Where
the matter is urgent it is referred initially to the duty judge if the docket judge is either not then available to deal with it
or it has just been filed, though, then, it will still be added to the docket of the judge who would have received it in the ordinary
course. A second exception is where the matter falls within the scope of one of the specialist panels or the admiralty and maritime
national arrangement. In the larger registries, particularly New South Wales and Victoria, several panels in speciality areas have
been established. Judges with expertise in those areas are assigned by the Chief Justice to the panels.
40. Currently, the composition and scope of the Sydney panels is being reviewed by the Sydney judges with a view to making
recommendations to the Chief Justice. At present, there are effectively six operating panels in the Sydney Registry, namely:
· Admiralty and Maritime;
· Competition;
· Corporations;
· Industrial;
· Patents; and
· Tax.
41. The Corporations Panel, in Sydney, has been arranged so that three corporations duty judges routinely receive applications
in respect of urgent short matters such as approvals of schemes of arrangement. The general corporations work is, again, distributed
in rotation among the other members of the Corporations Panel. If I can be permitted to boast on behalf of the Court, when I attended
at the International Bar Association Conference in Singapore in October 2007, I happened to walk into a session on litigation. The
speaker was the group counsel for Citicorp Asia-Pacific, Royce Miller. He said that his best experience in litigation “on
four continents” was in the Federal Court of Australia. He praised the way in which the Corporations Panel docket judge -
Jacobson J - had managed and decided, from start to finish over 15 months, a complex insider trading case brought against his company.
That is typical of the advantage of the Federal Court’s docket system. Mr Miller disclaimed being influenced by Citicorp’s
success.
6. NATIONAL ADMIRALTY AND MARITIME ARRANGEMENT
42. In 2005 the Court introduced a national arrangement for the management of admiralty and maritime matters. In December
2005 the Chief Justice issued a notice to practitioners dealing with the operation of this arrangement. Under the national arrangement,
it is the responsibility of registry-convening judges to attempt to harmonise the Court’s in personam actions nationally, in the same way that in rem applications are dealt with consistently across the country. Under the arrangement, there are at least two nominated judges in each
State capital registry. The consequence is that there is always at least one judge, familiar with the jurisdiction, able to deal
with urgent in rem applications, and a convening judge who manages all the admiralty cases in the registry until they are allocated to a particular
judge’s docket. Nominated judges undertake all the admiralty and maritime work of the Court at first instance and, as far
as practicable, on appeal. In addition to immediate access to specialist, nominated judges, registry officers and admiralty marshals
with specialist training and skills support the judges in their handling of maritime disputes.
43. Recently the Court hosted in Melbourne a Marshalls’ conference with not only a number of judges and officers of
the Court, but also officers of a number of Supreme Courts who carry out the functions of Marshalls as well as Commonwealth agencies,
such as the Australian Quarantine and Inspection Service, the Australian Maritime Safety Authority and Customs to deal with continuing
education over matters arising from the arrest of vessels.
44. The practical effect of the maritime arrangement is that the Court is able to exercise admiralty jurisdiction nationally.
Ships arrested in one part of the country frequently involve parties in other parts of Australia and the world. The Court can sit
anywhere and deal with matters efficiently. Indeed, two years ago, a ship was released conditionally from arrest and allowed to
sail from Perth to Sydney while a Full Court was convened in the original jurisdiction to determine whether the Court had jurisdiction
at all over the matter. By the time the vessel was part way to Sydney the Full Court held that it did not have jurisdiction, and
a justice of the High Court refused a stay application before she berthed in Sydney.
45. Similarly, the Court is able to constitute a Full Court in the original jurisdiction, if the Chief Justice so determines,
where such a course will promote a speedy resolution and, of course, it is possible to deal with discrete questions of law. This
will provide a more authorative decision of three judges and enable parties to get the case resolved more quickly.
7. MEDIATION
46. The Court has 29 NADRAC (National Alternate Dispute Resolution Committee) accredited registrar mediators. They have undergone
training and comply with national standards for accreditation for mediators, the latest course being taught by Professors Boulle
and Wade. Under s 53A of the Federal Court of Australia Act the Court can order parties to mediation, and frequently in commercial disputes the parties seek such orders so that a registrar
can assist them in resolving their disputes. Of course, if the parties wish to have an outside mediator, such as a retired judge,
of whom I have many recent such colleagues, the Court will readily accept their choice for the alternative dispute resolution process
which they regard as best suited to their needs.
8. THE FAST TRACK LIST IN VICTORIA
47. In May last year a pilot fast track list was introduced in the Victorian Registry of the Court. The principal objectives
of what has commonly been called “the rocket-docket” are: the expedition of hearings; the limitation of the pre-trial
phase; and the reduction of the cost of litigation. The notice to practitioners targets commercial disputes identified in a way
which bears some similarity to the wide discretion of judges administering commercial lists since the turn of the last century.
The practice note states that:
“… The proceedings that can be entered on the Fast Track List are proceedings arising out of or relating to:
(a) commercial transactions;
(b) an issue that has importance in trade or commerce;
(c) the construction of commercial documents;
(d) an issue that has importance in personal insolvency;
(e) intellectual property rights apart from patents;
(f) such other commercial matters as the presiding judge may direct; but excluding proceedings –
(x) that would otherwise be allocated to the –
i. admiralty panel;
ii. corporations panel;
iii. taxation panel.
(y) the trial of which is likely to exceed eight (8) days.”
48. The directions for the fast track list provide for strict time frames and significant case management. Some of the key
features include:
· the experimental dispensing with pleadings and instead using case summaries;
· the use of an initial directions hearing (or scheduling conference) approximately six weeks after filing to
fix trial dates, exchange affidavits, and establish a pre-trial schedule;
· the limitation of discovery, the elimination of interrogatories, and the determination of interlocutory applications
on the papers, as with the tax list; and
· the strict timeframes, to the extent that the trial of a case on the fast track list takes place in the “chess-clock”
style, requests for extensions of time relating to an interlocutory application “will be looked upon with disfavour”.
49. The Court endeavours to provide reasons for judgment within six weeks of the conclusion of the trial or more quickly in
urgent matters. The average time for matters in the list at the moment is 115 days from the date of the initial application to disposition.
9. THE COURT’S – LINKS WITH THE PROFESSION
50. The Federal Court strives to maintain close links with the legal profession. It does this through user groups, committees
and other consultative processes, as well as in conferences and workshops organised in conjunction with professional associations.
The Court and its judges welcome and encourage dialogue with the profession to evaluate, improve and constructively criticise the
Court’s approach to areas of its work. There are active State or national user group meetings including for tax, patent, class
action, corporations and admiralty and maritime matters.
51. In March 2008, in conjunction with the Law Council of Australia, the Court held a workshop on judicial case management.
The conference was attended by approximately 75 people, including judges, court staff and practising members of the Law Council.
Justice Gordon presented a paper evaluating the success of the docket system, and Justice French discussed expert testimony, opinion
argument and the rules of evidence. Both of those procedural issues are relevant to the practice of commercial law, but perhaps more
importantly, the Court jointly with the Law Council invited discussion and criticism of how it handles litigation which, in turn,
may help to shape constructive responses. Indeed, the Court is actively pursuing issues raised by the profession. The Court has
annual education days with the Law Council dealing with current issues.
52. Similarly, the Court invites contributions to its regular reviews of Court procedures, particularly where significant
changes are planned. The pilot fast track list in Victoria, for instance, was implemented only after extensive consultation with
the Victorian legal community. In that case, draft practice directions were circulated to the Court users and law firms to seek
their feedback, and members of the profession held meetings (with representatives of the Victorian Registry) to review the ‘Fast
Track List’ prior to implementation .
53. More broadly, a browse through appendices to the Court’s annual reports should give a fair idea of the sheer extent
of the Court’s extra-judicial engagement with the legal profession. The annual report for 2006-2007, for instance, shows that
judges of the Federal Court: held lectureships and editorial positions; attended and spoke at conferences; published papers;
acted as chairpersons, panel or committee-members; participated in bar reader courses, moots and mock-trials; contributed to text-books;
and worked with other judges both in Australia and overseas on a regular basis. In short, Judges of the Court are active in strengthening
the Courts with the legal profession and the community.
10. CONSOLIDATION OF JURISDICTIONAL AND GEOGRAPHIC ADVANTAGES THROUGH THE USE OF INFORMATION TECHNOLOGY
54. The Court has developed a technological infrastructure and protocols to ensure that the tyranny of distance does not interfere
with its normal business. The Court’s national video-conferencing system was the first of its kind in Australia and allows
a judge to manage a case or hear evidence given in any of its registries nationally, or in a number of other locations. Of course,
in native title claims the Court conducts hearings on country anywhere in Australia.
55. In a similar way, the Court’s eCourtroom program has extended the Court’s capability to manage pre-trial matters.
Essentially, eCourtroom is a virtual courtroom that allows the parties to make submissions or lodge affidavit evidence, while the
presiding judge can make directions and other orders online.
56. Generally speaking, e-Court is designed to complement traditional Court practices, and to extend the range of options
available to practitioners and litigants in the conduct of their proceedings. The Court's “e-filing” service allows
litigants to file documents electronically, at any time and without the restriction of counter opening hours, in accordance with
the its Rules. This minimises the need for practitioners or their staff to attend physically at a registry of the Court - resulting
in time and costs savings. It also allows firms flexibility in the conduct of their matters, and can be particularly helpful in
interstate or international matters where time differences may influence the day-to-day conduct of commercial law.
57. The Court also is part of the Commonwealth Courts Portal. This enables a lawyer or firm to have access to all electronic
documents filed in each of his, her or its matters in the Federal Court. The portal has filters which can be used to restrict access
to a particular practitioner or practitioners in a firm. The portal will provide access to any orders and the next listing before
the Court.
11. DOES ONE SIZE FIT ALL IN COMMERCIAL LITIGATION?
58. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed in John Pfeiffer Pty Ltd v Rogerson the jurisdiction of the High Court, the Federal Court and the Family Court is clearly Australia wide. They added that so too but,
perhaps less obviously, was the jurisdiction of courts exercising the federal jurisdiction with which they were invested. They pointed
out that there was a single system of jurisprudence constituted by the Constitution, federal, State and Territory laws and the common law of Australia.
59. In general, Australian law ensures that where proceedings are commenced in Australian courts, the parties will have their
rights, liabilities and obligations determined by independent courts and judges applying the same substantive law. Of course, each
court must first consider whether it has jurisdiction to decide the controversy and practitioners have a corresponding duty both
to their clients and the Court in which they appear to ascertain that it does have jurisdiction. In some disputes, such as under
the insolvency provisions of the Corporations Act 2001, procedures in each forum will be similar. But in others, litigants and their advisers will see advantages in commencing proceedings
or transferring them under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and its analogues to a court with procedures best suited to achieving a just result as efficiently, fairly and inexpensively
as possible.
60. There is nothing unusual, far less detrimental, in litigants having a choice of courts in which to have their matters
heard and determined. In his characteristically elegant way, Lord Denning MR said that a “friendly foreigner” could
seek the aid of the English Courts if he so desired. His Lordship continued:
“You may call this ‘forum-shopping’ if you please, but if the forum is England, it is a good place to shop in, both
for the quality of the goods and the speed of the service.”
61. Differences in the procedural mechanisms offered in our nation’s various courts should not lead to or be permitted
to cause substantive injustice to any litigant. But it is unreal to assert that litigants do not choose between different courts
in which to begin matters. Nor is it correct to assert that in commercial litigation that choice is only between a State Supreme
Court and the Federal Court. Litigants have made choices between State Supreme Courts or their colonial predecessors for years.
No single jurisdiction in our federation can claim a monopoly or some prescriptive right over commercial litigation.
62. In today’s world it would be a brave judge or court who could say, as Sir George Jessel MR did in commencing his
judgment in 1880 in In re Worthington & Co’s Trad-Mark:
“Probably there is no one on the Bench or at the Bar who is more familiar with trade-marks than I am ….”
63. The Federal Court is now a national court of general federal, including commercial, jurisdiction. It has actively sought
to meet the needs of the nation’s trade and commerce in providing a forum of excellence. As Professor Ian Ramsay and Are Watne
recently observed in a research note entitled “Which Courts Deliver Most Corporate Law Judgments”, the fact that in Australia, plaintiffs or applicants can choose among courts as their fora for corporate law litigation does
not mean that the courts compete for it.
64. The role of the courts is to hear, determine and, thus, quell controversies. Choice of fora has always been present in
most significant commercial litigation because each party in many trading and commercial dealings will not always be located in the
same forum within Australia. And they may be both here and overseas. Our federal system recognises that the judicial power of the
Commonwealth can be used to resolve all aspects of matters in federal jurisdiction which are litigated in any court invested with
it, be it a State, Territory or Federal Court.
65. The Federal Court of Australia, like Sir Edmund Hillary’s observation of Mt Everest, is there. It has a broad range
of expertise in its judges and a readiness to serve and meet the needs of the nation’s commercial community, as much as its
other members, to resolve their disputes.
