24 March 2015

The new National Court Framework takes effect

This article was written by Justin McDonnell, Peta Stevenson and Neal Bedford.

Chief Justice Allsop is implementing significant case management reforms of the Federal Court, which are intended to develop the confidence of the profession and the community, particularly in areas requiring a degree of specialised skill and knowledge. The centrepiece of the reforms is the establishment of a number of specialist practice areas within the Court, which are designed to facilitate a more tailored approach to case management.

While class action litigation is often seen as a specialist area of practice, there is no specific sub-area for class actions. The question of classification will be determined by the substantive area of law to be determined by the action, as decided by the new National Practice Area (NPA) Registrar. While it can be expected that many will fall within the Commercial and Corporations practice area (which is already covered by a new Interim Practice Note), some class actions such as public malfeasance or event-related actions will not. As such, a broad range of judges will continue to be involved in the development of class action practice.

What is happening?

Justice Allsop of the Federal Court has been conducting a series of practitioner forums around the country to introduce the National Court Framework (NCF) to be implemented by the Federal Court and guidance on the recently introduced Commercial and Corporations NPA.

With ever changing technology, the introduction of electronic court files and the need for more specialised expertise in subject areas, the Federal Court has begun a process to reinvigorate its case management processes.  The NCF has been designed and is being implemented by the Federal Court with the aims to:

  • organise and manage nationally the whole of the Court’s work by reference to the subject matter areas of the Court’s work;
  • organise the Court’s resources to meet the demands of the broad range of work done by the Court;
  • develop the confidence of the profession and the community, particularly in areas requiring a degree of specialised skill and knowledge; and
  • broaden the base of judicial knowledge and experience in the Court.

The process will involve a restructure of the court process for the allocation of cases to particular NPAs, each with bespoke practice notes to guide the Court and the profession through litigation in those practice areas. The changes are not intended to lead to a scrapping of the current docket system, but attempt a more efficient and structured system of allocation. Chief Justice Allsop noted that the new changes will allow for a tailored approach to accommodate different classes of cases and better case management.

Commercial and Corporations the initial focus

The first part of the NCF rollout is the Commercial and Corporations NPA, which commenced on 16 February 2015. It is expected that this practice area will account for 40% of all cases handled by the Court.

With the NCF aimed at providing consistency across the courts nationally, the Commercial and Corporations NPA will have a dedicated group of Judges with expertise in the Commercial and Corporations NPA who will be allocated Commercial and Corporations matters.  A comprehensive list of all Commercial and Corporations NPA Judges Nationally and in each Registry is available on the Court's website here. As an example, there are 20 Judges listed in the primary sub area of Commercial Contracts, Banking, Finance and Insurance.

The full set of sub areas is:

  • Commercial Contracts, Banking, Finance and Insurance;
  • Corporations and Corporate Insolvency;
  • General and Personal Insolvency;
  • Economic Regulator, Competition and Access;
  • Regulator and Consumer Protection; and
  • International Commercial arbitration.

Other areas to follow

The other NPAs, which will be rolled out progressively, are:

  • Administrative, Constitutional and Human Rights;
  • Native Title;
  • Taxation;
  • Intellectual Property;
  • Employment and Industrial Relations;
  • Admiralty and Maritime; and
  • Criminal Cartel Trials.

Importantly the decision as to which NPA a particular matter will be directed will be made by the Court, not the litigants. This classification is to be undertaken by the proposed NPA Registry headed by Registrar Sia Lagos. The Court will develop a system whereby parties can indicate which sub area they consider best suits their matter, although the decision is one for the Court.

There is no specific sub area for class actions, so the question of classification will be determined by the substantive area of law which is the subject of the action and as such, a broad range of judges will continue to be involved in the development of class action practice.  We do expect a new class action practice note to be released this year, reflecting the Chief Justice’s statement[1] in November 2014 that the Federal Court will more closely manage large group claims. This could be achieved by allocating a second judge or having a registrar assist “without necessarily getting the docket judge bogged down, the registrar can have conversations with professionals that are practical, that are frank and that are effective”.

Allocation of cases

Under the NCF, the presumption will be for local allocation of work, with National Coordinators to oversee the allocation and reallocation of work to provide timeliness and efficiency of case management.  If, however, local Judges are unable to do the matter, the Court will look to involve an inter-state Judge from that sub-area. For urgent matters, the profession can liaise directly with the Duty Judge’s chambers with a view to ensuring that genuinely urgent matters are heard by dedicated Commercial and Corporations Duty Judges as soon as practicable and with a view to addressing the special issues arising in each matter and the needs of the parties.

The intent is that the specific Judges will develop deep expertise in their nominated areas.  The Federal Court has been actively seeking to clear Judges’ calendars and workloads to deal with the new approach. The aim is that judgments will be delivered within six months (three - six months for appeals) and if it has not been delivered by six months, the Court will contact the parties and advise when the judgement will be delivered.

To allow for an effective transition into the new system, the Federal Court has issued an Interim Practice Note and a National Administrative Notice outlining the principles of the new framework and the role of Duty Judges.

[1] Hannah Low “Chief Justice wants to end litigation warfare”, The Australian Financial Review, 24 November 2014 (see http://www.afr.com/business/legal/chief-justice-wants-to-end-litigation-warfare-20141120-11qyqz).

View all articles from this edition of Class Action Update.

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