1.1 This Central Practice Direction applies nationally from 1 September 2021 to all general federal law proceedings commenced in the Federal Circuit and Family Court of Australia (the Court). This Central Practice Direction does not apply to migration or family law proceedings.
1.2 This Central Practice Direction is to be read together with:
- the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act);
- the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (General Federal Law Rules);
- the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankruptcy Rules);
- the Federal Court of Australia Act 1976 (Federal Court Act); and
- the Federal Court Rules 2011 (Federal Court Rules).
1.3 This Central Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Central Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.
1.4 To the extent this Central Practice Direction is inconsistent with any Act, regulation, rule, or other legislative provision (whether or not expressly listed above), the Act, regulation, rule or other legislative provision prevails.
1.5 Where the General Federal Law Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules.
1.6 For information about migration proceedings in the Court, parties should refer to Central Practice Direction – Migration proceedings.
1.7 For information about intellectual property proceedings, parties should also refer to General Federal Law Practice Direction – Intellectual Property proceedings.
1.8 For information about admiralty and maritime proceedings, parties should also refer to General Federal Law Practice Direction – Admiralty and maritime proceedings.
2. The Court and the Registry
2.1 The jurisdiction of the Court in general federal law proceedings encompasses:
- administrative law;
- admiralty law (in personam matters);
- child support;
- consumer law;
- Fair Work law;
- human rights;
- intellectual property; and
2.2 Registrars exercise some powers of a judge in managing cases in the Court. For more information on the powers that can be exercised by a registrar, see Part 21 of the General Federal Law Rules.
3. Overarching purpose
3.1 The overarching purpose of the legislation relevant to civil practice and procedure is the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see section 190 of the Act.
3.2 To that end, parties should make a genuine effort to narrow or resolve issues in dispute in the following ways:
- all parties must provide disclosure as required by law to assist the Court in determining the dispute or the parties in resolving the dispute;
- an application should be brought before the Court only if it is reasonably justified on the material available;
- parties are expected to negotiate both before and at Court to narrow the issues in dispute before the matter is heard; and
- when appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes.
3.3 Parties should be aware that costs consequences may flow if they seek to reopen issues already resolved or to unreasonably agitate issues.
4. Transferring a proceeding
Change of registry
4.1 A party to a proceeding may apply to have the proceeding heard in a different registry of the Court for reasons such as greater convenience or a reduction in costs: see rule 8.01 of the General Federal Law Rules.
Transfer to the Federal Court of Australia
4.2 The Court may transfer a proceeding to the Federal Court of Australia on the application of a party or of the Court's own initiative.
4.3 The transfer of a proceeding must be requested by a party before the first court date and must be supported by an affidavit: see Part 8 of the General Federal Law Rules and section 153 of the Act.
5. Case management
5.1 In order to ensure effective case management of all cases with the objective of minimising delays and costs to parties, each party should carefully consider the following throughout their proceeding:
- the issues genuinely in dispute;
- the use of dispute resolution where appropriate, both internal and external;
- the most efficient way to manage lay and expert evidence;
- eliminating or reducing the burden of disclosure;
- making appropriate concessions; and
- making all efforts to ensure that parties are prepared for any court event.
5.2 Where at least one party is represented by lawyers, the Court will be assisted if a short minute of orders, providing a timetable dealing with the matters referred to above, has been prepared for consideration by the Court.
6. Dispute resolution
6.1 Parties are expected to make a genuine attempt to resolve their dispute. Parties are encouraged to use all appropriate dispute resolution processes, including the use of court-appointed registrars to resolve or narrow issues in dispute.
6.2 Options for dispute resolution, either by agreement or by court order, include conciliation, mediation and arbitration.
6.3 The Court expects parties to meaningfully participate in dispute resolution and make a genuine effort to resolve issues in dispute, including by exchanging relevant information in advance of mediation or another dispute resolution process.
6.4 In accordance with section 161 of the Act and Part 23 of the General Federal Law Rules, the Court may refer a proceeding for dispute resolution with a judge, a registrar or another person that the Court appoints.
6.5 The Court may refer the proceeding for mediation. Mediation is conducted by a registrar. Alternatively, the parties may use a private mediator appointed under the scheme conducted by the Law Society or independent Bar of the State or Territory in which the proceeding was commenced, or otherwise as agreed by the parties. Mediation may occur at any stage of the proceeding.
6.6 In accordance with rules 23.01 and 23.07 of the General Federal Law Rules, the Court may order arbitration and, with the parties' consent, nominate an arbitrator.
6.7 Parties are expected to consider reasonable offers of settlement at any stage of a proceeding. Failure to do so may have costs consequences.
6.8 For more information about dispute resolution, see Part 23 of the General Federal Law Rules.
7. Ending a proceeding early
7.1 In accordance with rule 13.01 of the General Federal Law Rules, a party may choose not to continue with an application by filing a Notice of Discontinuance at least 14 days before the final hearing. The Notice of Discontinuance may be filed at a later date if the parties agree or with permission from a registrar or the Court: see rules 3.05 and 13.01.
7.2 A party discontinuing an application or part of an application may be liable for costs: see rule 13.02 of the General Federal Law Rules.
8.1 To achieve the overarching purpose, parties and their lawyers are expected to take a pragmatic approach to litigation, and parties' costs should be fair, reasonable and proportionate to the importance and complexity of the issues in dispute.
8.2 The Court has the power to make orders for costs, including order for costs against lawyers. For more information about costs, see Part 22 of the General Federal Law Rules.
9. Further information
9.1 For further information on how general federal law proceedings are conducted in the Court, please refer to the Court's website at www.fcfcoa.gov.au.
The Honourable Justice William Alstergren
Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021