Sections 169 and 170 of the Federal Circuit and Family Court of Australia Act 2021 provide for court ordered mediation and arbitration (the latter only with consent). Immunity is conferred on the mediator or arbitrator. The Court encourages the use of external mediation and arbitration.

It is expected that you will, in general, seek an early resolution of matters and that you will consider court-annexed mediation or early neutral evaluation. This is especially so for the resolution of small cargo claims.

Mediation

The Court has staff shared with the Federal Court who are knowledgeable in maritime matters and cargo claims and who are trained mediators. Early mediation or early neutral evaluation by a registrar or a third party will be encouraged and sometimes ordered. Mediation can also be used to help identify and reduce issues in dispute, or to eliminate procedural arguments, as well as for the purposes of resolving the whole matter.

Arbitration

The Court has power to refer matters to arbitration. This may be particularly suitable in small cargo claims. If this course were taken, you could agree with the other party to deal with the matter on the papers, or with minimal oral evidence, waiving rules of evidence. Sections 171 and 172 of the Federal Circuit and Family Court of Australia Act 2021 provide for referral of questions of law and review on a question of law by the Court. If this mechanism is appropriate, appeals on factual questions may be eliminated.

You should respond to the claim if you:

• consent to the orders sought, or
• are seeking different orders, or
• are seeking to dismiss the claim, or
• are making a cross-claim.

You must file a:

• Response – General federal law, and
• either:
  • a supporting Affidavit - General federal law and migration, or
  • a defence (if the applicant filed a statement of claim) or points of defence (if the applicant filed a points of claim).

The response must be filed and served within 28 days after receiving the application unless the Court orders otherwise or the parties agree to extend the time.

If you do not file a response, you must file and serve a Notice of address for service before the hearing.

Wherever possible, you must file court documents relevant to an existing matter online using eLodgment. See the Federal Court website for information on how to use eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders, and case management correspondence. 

If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents. 

In personam applications are commenced in the Court by filing:

• An Originating Application – General Federal Law, as prescribed in the Admiralty Rules 1988,
• either:
  • an Affidavit, or
  • statement of claim or points of claim, and
• any other material to be relied on.

If proceedings are transferred from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2) (the Court) and comply with the form requirements prescribed for use in the Federal Court, you will not need to prepare new forms/pleadings.

Seeking legal advice

You should seek legal advice about your matter as soon as possible. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. Admiralty law can be complex and it is important to obtain independent legal advice in relation to your situation. 

Pleadings

The grounds of an application must explain briefly the basis on which the orders are sought. Where appropriate, pleadings will be ordered. If they are, an applicant may attach a pleading by way of a statement of claim or points of claim. The pleading should observe the requirements of the Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025. It should identify, in summary form, the material facts on which the applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given.

What do I have to pay to start a proceeding?

You need to pay a filing fee to the Court when you file the application.

In some circumstances, you may be exempt from paying court fees, for example, if you are a concession holder. You will need to apply to the Court for the exemption, using the Application form for Exemption from Paying Court Fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship. Use the Application form for Exemption from Paying Court Fees – Financial Hardship.

For the current fees and more information about applying for a fee exemption see Fees. 

The filing fee is separate from legal fees you may need to pay your lawyer if you decide to use one for your matter.

Filing with the Court

Wherever possible, you must file court documents commencing, or relevant to an existing matter online using eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders and case management correspondence. See the Federal Court website for information on how to use eLodgment.

If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents. 

How do I notify the respondent?

After your application has been filed, you must ‘serve’ the application on the respondent. That means you must make sure that the respondent receives the filed documents. At the hearing, the Judge will often ask for evidence that you have served the documents.

To serve documents on a corporation, you (or someone who serves the documents on your behalf) can serve the documents by leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation. You can leave the documents:

• at the corporation’s registered office, or
• if there is no registered office, at the corporation’s main place of business or main office.  

You can deliver the documents in person or send them by registered or express post.  

If you are serving documents on an individual, you (or someone who serves the documents on your behalf) should serve the documents in person. 

If you cannot serve the documents in person or the documents sent by post cannot be delivered, you can apply to the Court for an order that you may serve the documents in a different way, for example, by email. This is known as ‘substituted service’. You make that application by filing an Interlocutory Application with an accompanying Affidavit – general federal law and migration explaining why you want to serve the application in a different way.  

After the documents have been served, you will need to complete an Affidavit of service, which you should file with the Court (using eLodgment). The affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed affidavit of service with you at the court hearing.  

The respondent may choose to file a response before the first court date. If the respondent files a response, it must be filed and served within 28 days after the application was received. The response is usually filed after the first court date if the case is proceeding.

First court date

The first court date is usually 4 weeks from the date of filing. There will always be a directions hearing on the first court date at which a final hearing date may be fixed or the proceeding referred to mediation or arbitration. You and your representatives should comply with the General Federal Law Practice Direction – Admiralty and maritime proceedings.

You are encouraged to agree on draft short minutes of orders and send them by email to the Admiralty Panel Judge’s associate before any scheduled directions hearing. In some instances, apart from the first court date, the need for a hearing may be avoided if the parties agree on minutes of orders and the judge considers it appropriate to make those orders.

At the first court date, the Court will explore the nature of the dispute and the issues raised, whether technical or evidentiary – including any difficulties in obtaining instructions and the availability of witnesses.

You should be ready and able to deal with the following matters at the first court date:

• likely issues,
• timetables for the matter, including for pleadings, affidavit evidence, submissions, list of objections, and chronology, and
• fixing the date for a further directions hearing.

You should attend the first court date prepared and fully informed in order to partake in a vigorous exploration of the proceeding and its management in the Court. The Court adopts the view expressed by the Federal Court that it is not an acceptable way of conducting litigation to ‘put the other side to proof’ on all issues. It is the duty of the parties and their legal representatives to ascertain, as far as reasonably possible the nature and extent of the facts which pertain to any particular case. This is not limited to the particular points which you want to prove. You are expected to identify the real and genuine issues in dispute, whether of fact or of law after due investigation.

Efficient management by practitioners and litigants

It is the duty of the profession to assist the Court in the performance of its duty to resolve disputes by reference to what truly is, or should be, in dispute: see generally Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453, and see the speech by Hayne J 'Judicial Case Management and the Duties of Counsel', Wednesday 24 February 1999 to the Readers of the Bar Practice Course, Brisbane, contained on the High Court website under the link 'publications'. In this context, parties should expect that the Court will be ready to use section 190(3) of the Evidence Act 1995 in appropriate circumstances to lessen the cost of proving matters not bona fide in dispute.

How the parties cooperate to identify the issues in dispute, and to agree on facts that are not truly in dispute, is a matter for the profession and their commercial clients. An aspect of this cooperation between the parties’ representatives that the Court expects, however, is the provision of information and documentation in a prompt and timely fashion. Where legal practitioners make reasonable requests for documents or information (whether strictly 'particulars' or not) those requests should generally be met without delay. In some cases, the formality (and cost) of a verified list of documents will be necessary.

Interlocutory applications

If you want to make an interlocutory application in the proceeding, you should file an Interlocutory Application. The application must be supported by an Affidavit - General federal law and migration unless the evidence relied on is already before the Court in an affidavit. The application and supporting affidavit must be served on all persons against whom the order is sought.

Communicating with the Court

It is inappropriate for one party to send submissions, letters and partisan documents to the judge. Fax and email are not to be used for private or unilateral filings of submissions or complaints without the leave of the Court. However, if all parties agree on a communication being sent to a judge, it may be forwarded, without leave, to the associate.

Costs

The Court will ordinarily fix costs at the trial. The Court will take into account Calderbank correspondence or compromise offers to settle the matter.

The parties should be in a position to assist the Court to fix costs by having available in short form any relevant evidence in that regard at trial.

The Federal Circuit and Family Court of Australia (Division 2) (the Court) has jurisdiction under the Admiralty Act 1988 to hear proceedings commenced as actions in personam (meaning against a person or another party) on:

• a maritime claim, or
• a claim for damage done to a ship.

The Court’s jurisdiction is limited to proceedings under sections 9, 27 and 28 of the Admiralty Act 1988.

The Federal Court of Australia or a state court may remit any in rem (meaning against a thing or against property) matter to the Court.

The Court works in conjunction with the Federal Court of Australia. In particular, the Court is expected to provide an alternative venue for the hearing of smaller cargo claims within the federal system.

The Court's admiralty work is undertaken by nominated judges working with skilled registrars and court staff in each state to deal with matters in a way best suited to the particular dispute.

You are encouraged to try to resolve your claim through alternative dispute resolution, including mediation, early neutral evaluation and arbitration. The Court provides the full range of its facilities to bring matters flexibly, cheaply and speedily to resolution and may order mediation or refer a matter to arbitration if the parties consent.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

• complement particular legislative provisions or rules of court
• set out more detailed procedures for particular types of proceedings, and
• notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

• General Federal Law Practice Direction – Admiralty and maritime proceedings (GENFED-ADMIRALTY)