Commonwealth Numbered Acts Commonwealth Numbered Acts
Federal Court of Australia Act 1976
1 Section 4
Insert:
"alternative dispute resolution process" means a procedure or service for the resolution of disputes (other than arbitration or mediation) not involving the exercise of the judicial power of the Commonwealth.
2 Section 4
Insert:
"civil practice and procedure provisions" has the meaning given by subsection 37M(4).
3 Section 4
Insert:
"lawyer" means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.
4 Section 4
Insert:
"overarching purpose" (of the civil practice and procedure provisions) means the overarching purpose set out in subsection 37M(1).
5 After section 20
Insert:
20A Power of the Court to deal with civil matters without an oral hearing
(1) This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.
(2) The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:
(a) the matter is frivolous or vexatious; or
(b) the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or
(c) determination of the matter would not be significantly aided by an oral hearing because:
(i) there is no real issue of fact relevant to determination of the matter; and
(ii) the legal arguments in relation to the matter can be dealt with adequately by written submissions.
(3) This section does not limit subsections 20(4) and (6).
6 After Part VA
Insert:
Part VB -- Case management in civil proceedings
37M The overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court made under this Act;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.
37N Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party's lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party's behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
(4) In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client.
37P Power of the Court to give directions about practice and procedure in a civil proceeding
(1) This section applies in relation to a civil proceeding before the Court.
(2) The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.
(3) Without limiting the generality of subsection (2), a direction may:
(a) require things to be done; or
(b) set time limits for the doing of anything, or the completion of any part of the proceeding; or
(c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or
(d) provide for submissions to be made in writing; or
(e) limit the length of submissions (whether written or oral); or
(f) waive or vary any provision of the Rules of Court in their application to the proceeding; or
(g) revoke or vary an earlier direction.
(4) In considering whether to give directions under subsection (2), the Court may also consider whether to make an order under subsection 53A(1).
(5) If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.
(6) In particular, the Court or Judge may do any of the following:
(a) dismiss the proceeding in whole or in part;
(b) strike out, amend or limit any part of a party's claim or defence;
(c) disallow or reject any evidence;
(d) award costs against a party;
(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(7) Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party's failure to comply with a direction.
7 At the end of section 43
Add:
(3) Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following:
(a) make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial;
(b) make different awards of costs in relation to different parts of the proceeding;
(c) order the parties to bear costs in specified proportions;
(d) award a party costs in a specified sum;
(e) award costs in favour of or against a party whether or not the party is successful in the proceeding;
(f) order a party's lawyer to bear costs personally;
(g) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
Note: For further provision about the award of costs, see subsections 37N(4) and (5) and paragraphs 37P(6)(d) and (e).
8 Section 49
Repeal the section, substitute:
(1) This section applies where judgment is reserved in any proceeding before the Court.
(2) If a Judge who heard the proceeding, whether as a single Judge or as a member of a Full Court:
(a) prepares his or her judgment; but
(b) is not available to publish the judgment;
the judgment may be made public by another Judge authorised to do so by the Judge whose judgment it is.
(3) A judgment made public in accordance with subsection (2) has the same effect as it would have if it were made public by the Judge whose judgment it is.
9 Subsection 53A(1)
Repeal the subsection, substitute:
(1) The Court may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them:
(a) to an arbitrator for arbitration; or
(b) to a mediator for mediation; or
(c) to a suitable person for resolution by an alternative dispute resolution process;
in accordance with the Rules of Court.
(1AA) Subsection (1) is subject to the Rules of Court.
Note: The heading to section 53A is replaced by the heading " Arbitration, mediation and alternative dispute resolution processes ".
10 Subsection 53A(1A)
Omit "to a mediator", substitute "(other than to an arbitrator)".
11 Subsection 53A(1A)
Omit "However, referrals", substitute "Referrals".
12 Application of amendments
The amendments made by this Schedule apply in relation to proceedings commenced before, on or after the commencement of this Schedule.