Message from the Chief Justice of the Federal Court of Australia, the Hon Chief Justice Mortimer
Consultation on the Draft New General Federal Law Rules and Practice Directions for the FCFCoA
NZBA and ABA Joint Conference 2024
World Bar Conference 2024 – 15-17 May 2024
Colleagues,
Welcome to the first President’s Report and National Brief of 2024.
I trust 2024, in terms of your practice, is now in full swing, with interesting work and busy calendars.
Initiatives of the ABA in 2024
At the recent ABA Council meeting, it was resolved to apply some of the ABA’s resources to specific projects in the interests of our members. I take this opportunity to outline those to you, some of which I have touched upon in the past.
Cybersecurity
It has, of course, been an article of faith in our ancient profession that we maintain the confidences of our clients and ensure that they can share their most intimate concerns with us, safe in the knowledge that that confidence will be maintained. Until very recently, that demanded of us no more than personal restraint to make sure that we did not ourselves breach those confidences.
However, the advent of electronic communication, and particularly the internet, represent an extraordinary shift in that regard. To maintain that confidence, which our solicitors and clients alike can expect of us, requires a rigour and technical support around our electronic communications.
As the last of the world’s sole traders, this obviously presents particular challenges, given the ever more sophisticated nature of cyber attacks and the scale of our own enterprises.
Consequently, the ABA, together with certain other state and territory associations, is looking to identify benchmark requirements for cybersecurity for barristers; how they might practically be secured by barristers, whether a part of large bars or small and in large chambers or small; insurance around cyber risk; and appropriate responses in relation to cybersecurity breaches.
It is intended to, in collaboration with the state and territory Bar associations, provide information and assistance relevant to members in this regard.
Federal Incorporated Council of Law Reporting
I have previously written regarding the concern around the cost of access to authorised reports, and the prospect of a Federal Incorporated Council of Law Reporting.
The ABA is now taking steps to commence the creation of such a body, and to open discussions with relevant stakeholders in that regard. This is a topic on which I will write to you further during the year.
Best Practice Guidelines
Steps are underway to increase the number of Best Practice Guidelines produced and available to our members.
Should there be particular topics that you think would assist you in practice if such a guideline existed, please do not hesitate to contact me.
Mentoring for solicitor-advocates in the Northern Territory
No doubt all of you have read of the predicament in relation to representation in criminal proceedings in the Northern Territory. This is something that I have been actively discussing with Mary Chalmers SC, the President of the NT Bar Association, and others in the Northern Territory to see what the Bar nationally can do to assist.
One practical measure is silks and juniors with experience in criminal law providing mentoring to solicitor-advocates, particularly those in Alice Springs.
Mary and myself will be approaching barristers with such experience in the other states and territories in this regard, so the ABA can put together a database. If you have any interest, please do not hesitate to register.
ICAB Conference in Dublin and Belfast
There remain some spaces left for the ICAB Conference in Dublin and Belfast between 15 and 17 May 2024, discussed below. It will be an excellent conference, and I urge members to consider attending.
Joint Conference with the NZ Bar Association
The joint ABA-NZBA Conference in Queenstown is now set for 16 and 17 August of this year. It will have an array of interesting speakers, including prominent Australian lawyers.
I would urge you to consider attending. Not only is it an ideal opportunity to meet with your Australian colleagues, but also with our New Zealand colleagues.
Good wishes for the coming holiday season
We are about to commence a short break for the Easter holiday period. Whether this period is a time of significance for you as Easter, or for other religious or cultural reasons, or simply as an occasion to spend more time with family and friends, I wish you a happy and safe Easter.
I am pleased to be able to provide a contribution to the ABA’s National Brief. I hope to be able to contribute regularly to this publication and provide updates to the Bars nationally about activities in and relating to the Federal Court. As a national court of wide jurisdiction, the Federal Court is committed to active engagement with the Bar, and our Judges and Registrars depend on members of the independent Bar, as we do upon the wider legal profession, to assist us in the effective and efficient administration of justice.
It has been a busy start to 2024. In the first quarter of 2024, I am undertaking visits to each of the registries of the Federal Court with the Court’s CEO and Principal Registrar, Sia Lagos, and with members of the Court’s Executive. I have so far visited Perth, Hobart, Canberra, Brisbane and Sydney. I will be visiting the registries in Darwin and Adelaide, and finishing in Melbourne in the coming weeks. During these registry visits, in addition to meeting with each Judge individually, I have been meeting with members of staff, including separate meetings with the Court’s registrars, and with Chambers staff, and hosting a function for staff and members of the local profession. I have also been meeting with representatives of the Law Society and independent Bar in each location, and with representatives of the Law Council and Australian Bar Association. Together with the Court’s Migration National Judicial Registrar, Simon Haag, I have also hosted meetings with practitioners who regularly accept pro bono briefs in migration matters before our Court to better understand the perspectives of practitioners on this referral system and hear feedback on how the system might be improved.
The discussions with the profession during the registry visits have been especially productive and valuable. We have discussed both issues affecting the profession locally and the way they and their clients engage with the Federal Court, and national issues. I am grateful for the enthusiasm of the profession and their willingness to engage with the Court.
In February 2024, I attended, as an observer, the Pacific Chief Justices Leadership Forum in Samoa, this year organised by the New Zealand based Pacific Justice Sector Program. The forum is an annual meeting of the Chief Justices from 15 Pacific partner nations to discuss judicial and court cooperation and development opportunities, and priorities. It is also an opportunity to discuss and learn about emerging issues such as the use of technology by Courts, and particular areas of court practice. For example, this year there was a focus on local and village-based justice initiatives, including in relation to family violence. Developing cooperative working and assistance relationships with judiciaries in other countries, and especially in the Asia and Pacific region, continues to be a priority of mine as Chief Justice.
The Court has recently issued a notice to the profession regarding a proposal to dissolve the Australian Capital Territory (ACT) List. The Court has now completed the consultation process on the proposal with the Profession. The feedback received was positive and supportive of the proposal. Accordingly, the Court will now proceed to dissolve the ACT List. Matters which are filed in the ACT Registry will now be allocated to the docket of a NSW Judge for the applicable National Practice Area upon filing. Practitioners who currently have matters in the ACT List will be notified in due course of the Docket Judge to whom their matter has been allocated. As previously indicated, the new procedure will enable the case management of each matter to be carried out by the Judge who generally will be hearing the matter through to completion, so more matter specific requirements and efficient timeframes can be built into case management orders by the Docket Judge. The ACT Profession will also benefit by providing practitioners with earlier exposure to a wider range of Federal Court Judges. While case management may be undertaken remotely, the Court’s intention is that final hearings and larger interlocutory matters will be conducted in person in the ACT.
The proposal to amend the timing of the Full Court and Appellate sitting periods in 2025 by moving to three sitting periods received endorsement from Judges and the profession, and consequently I reached a final decision to implement it and move to three sitting periods in 2025. A notice to the profession was also issued confirming the implementation of this proposal.
The Full Court sitting periods for 2025 will be:
The Court will keep a close eye on how this change goes in 2025, and whether any modifications are required.
On 31 January 2024, the Court farewelled Justice David Thomas. Justice Thomas retired after more than a decade on the bench, having been appointed to the Federal Court in June 2017, and previously serving as a Justice of the Supreme Court of Queensland from October 2013. During his long and broad judicial career, Justice Thomas served as President of the Administrative Appeals Tribunal and President of the Queensland Civil and Administrative Tribunal. I thank Justice Thomas for his service to the Australian community.
I would like to take this opportunity to warmly welcome two new appointments to the Federal Court of Australia, Justice Penny Neskovcin and Justice Craig Dowling. Both are based in Melbourne. They were sworn in on 8 and 9 February 2024 respectively, and have both had their public welcomes on 28 February and 1 March respectively. On behalf of the Judges, Registrars and staff of the Federal Court, I congratulate Justices Neskovcin and Dowling on their appointments, and I am confident that they will serve the Australian community with distinction.
To coincide with the commencement of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) on 1 September 2021, new rules and practice directions were introduced for family law proceedings and general federal law proceedings in the Court.
The current Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Current GFL Rules) are based closely on the former Federal Circuit Court Rules 2001 and incorporate a considerable number of the Federal Court Rules 2011 (FCA Rules) through a schedule. They also provide for referral to the FCA Rules where a matter is not addressed in the Current GFL Rules.
In the lead up to 1 September 2021, significant work was undertaken to harmonise the family law rules across the Federal Circuit and Family Court of Australia (Division 1) and the Court and to implement the new courts structure. In order to ensure a proper and comprehensive review could be undertaken, the Court decided that a standalone set of rules and practice directions for general federal law proceedings would be developed post 1 September 2021.
The New GFL Rules are intended to largely provide a single legislative source without requiring parties and practitioners to cross-reference with the FCA Rules. Having said that, the New GFL Rules do still allow for referral to the FCA Rules on the rare occasion that a matter arising in a proceeding in the Court is not addressed in the New GFL Rules.
The draft New GFL Rules are supplemented by redrafted practice directions that will give overarching guidance as to the general case management applicable to each type of proceeding (GFL Practice Directions).
The next stage of the rules review process is a consideration of any updates to court forms and other associated documents which the Working Group is currently undertaking.
Consultation
The draft New GFL Rules and practice directions have been through initial rounds of internal judicial and registrar consultation and are now presented as part of the consultation process with the profession and other stakeholders. More information, including the draft New GFL Rules and accompanying documents can be found here.
Any feedback on the draft general federal law rules should be submitted by email to GFLRules@fcfcoa.gov.au no later than Friday, 5 April 2024.
Photo by Michael Amadeus
The joint New Zealand Bar Association and ABA conference will take place in Queenstown, New Zealand between 16 and 17 August 2024.
We are very excited to present a line-up of fascinating and knowledgeable speakers from both nations. More information will be available soon, along with the opportunity to secure your place.
Our rules-based legal order – both at the national and international levels – continues to face disruption from factors, advances in technology, geo-political instability and environmental issues, to name just a few.
The question arises: what value do barristers and advocates bring in the face of such challenges? And can our shared legal and ethical compass guide us through these periods of change?
We invite you to the World Bar Conference 2024, where the response to key global challenges will be considered by the collective insights and experiences of recognised experts in discussion with the independent referral Bars from across the globe.
Our goal is to build a community of lawyers finding renewed purpose in response to these core debates.
Registration is now open, but places are limited. Click here for more information and to reserve your place.
Join the Commercial Bar Association of Victoria in London at the Inner Temple & Middle Temple, in the Inns of Court, for a conference featuring leading members of the Judiciary and Melbourne and London barristers delivering a wide range of commercial litigation and arbitration topics, conducted via ten sessions over two days.
Hear from leaders of the Australian and the English judiciary and bars on the current issues facing the commercial bar today. Check back here in the coming weeks for details of the conference speakers and panelists.
Held in London in the Inner Temple Parliament Room on 3 and 4 July 2024, the 2024 International Commercial Law Conference will stage ten informative panel sessions covering a range of commercial litigation and arbitration topics. The conference will also include an optional satellite event in Oxford on 1 July 2024, hosted by the Tax Bar Association, which will feature two seminars on corporate governance, taxation and anti-avoidance issues, and a dinner following the afternoon seminar.
The legal year opened in February with the Silks Bows ceremony taking place at the High Court of Australia in Canberra. This was a solemn yet joyous occasion, as the professional accomplishments of the new silks was recognised. This was the first Silks Bows since the Hon. Stephen Gageler AC was elevated to Chief Justice of the High Court of Australia.
Following the ceremony, a gala dinner took place at Gandel Hall, within the National Gallery of Australia. Chief Justice Gageler toasted the new silks and spoke of his time on the High Court and his love for Canberra’s birdlife. The traditional toast to the judiciary was offered by Declan Roche SC of the NSW Bar.
