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Practice notes

Every Issue

Cite as: Jan/Feb 2010 84(1/2) LIJ, p.56

Federal Court

Survey evidence
Practice Note CM 13
    1. There are many problems in obtaining acceptable survey evidence, including the failure to use relevant and unambiguous questions and whether the actual conduct of the survey (including methodology) is satisfactory.
    2. The admissibility of surveys is always a matter for the trial judge to determine, but the risk of the survey being rejected or given little, if any, weight at the trial may be diminished if the following procedure is followed when a party seeks to have a survey conducted. Subject to other directions of the Court in the particular case, the Court expects that this practice will usually be followed:
    1. (1)Notice should be given in writing by the party seeking to have the survey conducted to the other parties to the proceeding.
    2. (2)The notice should give an outline of:
      • the purpose of the proposed survey;
      • the issue to which it is to be directed;
      • the proposed form and methodology;
      • the particular questions that will be asked;
      • the introductory statements or instructions that will be given to the persons conducting the survey; and
      • other controls to be used in the interrogation process.
    3. The parties should attempt to resolve any disagreement concerning the manner in which the survey is to be conducted and any of the matters mentioned in (2) above.
    4. The matter of the survey should be raised with the Court at the directions hearing as soon as possible after the steps mentioned above have been taken.
    CHIEF JUSTICE MEJ BLACK

    25 September 2009

    Federal Court

    Federal Court Amendment Rules 2009 (No 3)

    The Federal Court Amendment Rules 2009 (No 3) (Amendment Rules) were registered on the Federal Register of Legislative Instruments on 4 December 2009.

    A copy of the Amendment Rules is available at www.comlaw.gov.au.

    The Amendment Rules make the following amendments to the Federal Court Rules:

    1. amend O.1 r5AC to make it clear that a party who has filed an affidavit pursuant to O.1 sub-rls 5AC(2) and (5) must produce the original of the affidavit to the Court if directed to do so;
    2. amend Ors 1, 4, 15, 22, 42 and 49 to clarify that a reference to a “directions hearing” for the purpose of the computation of time within which acts must be done is a reference to the hearing date appointed in a document commencing a proceeding in the Court’s original jurisdiction;
    3. insert a new O.7 sub-r11(3) to provide for how service may be effected on a party who, having originally appeared by a solicitor, parts company with the solicitor and fails to file a new address for service, and the insertion of a new O.45 r7A setting out the information to be included in the new address for service;
    4. amend O.27 and Form 41 and insert a new Form 41A to deal with the destruction of copies of documents produced on subpoena;
    5. amend O.46 sub-r6(2) to include a “statement of agreed facts”;
    6. amend O.46 r7A to include appropriate references to “filing” and to allow a registrar, when determining whether a document appears to be an abuse of process of the Court or to be frivolous or vexatious, to have regard to the document and any documents submitted for filing with the document or referred to in the document or any accompanying documents;
    7. amend O.52 r19 and insert new sub-rls 19A and 22A and new Forms 29A and 29B to prescribe a procedure and forms by which an appellant, cross-appellant or applicant can discontinue an appeal or related application (such as an application for leave to appeal or an application for an extension of time to appeal);
    8. amend O.52 r26 and O.53 r15A to simplify the content of appeal books;
    9. amend O.54B r8 and Form 56A to provide for the manner in which an application for extension of time to file an application under the Migration Act 1958 must be made and prescribe the information that must be filed in support of such an application. These amendments are consequential on changes made to the Migration Act by the Migration Legislation Amendment Act (No 2) 2008 which commenced on 15 March 2009;
    10. amend Ors 76 and 81 and Forms 167 and 168 to replace each reference to the Human Rights and Equal Opportunity Commission with a reference to the Australian Human Rights Commission and each reference to the Australian Human Rights Commission Act 1986. These amendments are consequential on changes made to the Human Rights and Equal Opportunity Commission Act 1986 by the Discrimination and Other Human Rights Legislation Amendment Act 2009 which commenced on 5 August 2009;
    11. replace O.80 rls 9 and 10 with a new r9 which provides that the Court may make a costs order entitling a pro bono practitioner representing a successful party to recover from the losing party the practitioner’s fees and disbursements reasonably incurred;
    12. amend Forms 3, 8, 9, 10 and 20 to include a reference to the relevant Division;
    13. amend each form which refers to an address for service to include, where it does not already have one, a reference to O.7 r6 and to update the version numbers inserted at the foot of the forms as appropriate; and
    14. amend Schedule 2 to adjust the quantum of prescribed costs.

    The amendments mentioned in items 1 to 13 above commence on the day after registration. The amendments mentioned in item 14 commence on 4 January 2010.

    PHILIP KELLOW

    Deputy Registrar

    4 December 2009

    Federal Magistrates Court

    Change to FMC Fair Work Division Form 3

    In regard to applications in the Fair Work Division of the Federal Magistrates Court, Form 3 has had a minor amendment.

    The form is available at the following link: www.fmc.gov.au/forms/html/workplace.html.

    The change is to Part 1 – Required documents. The wording of Question 27 has changed from:

    “A certificate issued by Fair Work Australia under s777 of the Fair Work Act must accompany your application and claim.” to “A certificate issued by Fair Work Australia under s777 of the Fair Work Act must accompany your application and claim, unless you are seeking an injunction as to all or part of your claim.”.

    ADELE BYRNE

    Principal Registrar

    30 October 2009

    Federal Magistrates Court

    Federal Magistrates Court Amendment Rules 2009 (No 3)

    Miscellaneous amendments to the Federal Magistrates Court Rules 2001 have been approved by federal magistrates. These amendments, which commence on 30 November 2009, are available from www.comlaw.gov.au.

    Amendments to subpoena rules

    Of significance are the amendments to the subpoena rules in Part 15A Federal Magistrates Court Rules 2001 to facilitate the inspection and copying of documents produced under subpoena.

    These amendments are aimed at reducing the number of court appearances with provision for the release of documents produced for inspection and copying without the need for a listing before a judicial officer, unless there is some objection.

    Automatic release, inspection and copying of subpoenaed documents is contingent on there being no objection(s). There is provision for a person subpoenaed, another party or an interested person to object. Objections will be listed before the judicial officer.

    Child welfare, medical, police and criminal records

    Child welfare, medical, police and criminal records are precluded from automatic copying if there is no objection but will be available for inspection. However, in relation to child welfare records the amendments are not intended to override any restrictions arising from protocols in force between the relevant welfare department and the court(s).

    Inspection of a document produced before objection

    Inspection of a document produced before objection is only permissible in respect of a person whose medical records are subpoenaed. That person must notify the registrar before the date for production if he or she wishes to inspect the records. That person only may inspect the document within seven days after the date specified for production. The purpose of the inspection is to ensure that no other party may inspect such documents until the person whose medical records are subpoenaed has had the opportunity to inspect. Therefore, where a person whose medical records have been subpoenaed has notified the Court they wish to inspect the records, that person has up to seven days after the date of production to notify the Court as to any objection.

    If no objection – automatic release and copying

    If no objection is notified or the objection is disallowed by the Court, each party and any independent children’s lawyer (ICL) may, by appointment, inspect and, except in respect of child welfare, criminal, police or medical records, take copies of the document produced in compliance with the subpoena.

    Forms

    Subpoena

    A new form of subpoena is approved for use pursuant to sub-r15A.02(2) (see www.fmc.gov.au/forms/html/subpoena.html).

    Litigants/practitioners are requested to use this form from the date the amendments commence (30 November 2009) but a three-month grace period will apply for the filing of previously approved subpoena forms.

    Notice of request to inspect

    In addition, a new notice of request to inspect form has been approved for the purposes of para 15A.13(1)(c) (see www.fmc.gov.au/forms/html/subpoena.html). This form must be filed prior to any right to inspect.

    A party wishing to inspect documents produced under the subpoena should contact the subpoena clerk the day after the due date for production of the documents to arrange a time for inspection.

    Where a person is entitled to inspect their medical records, they should contact the subpoena clerk prior to the date for production of the documents to arrange a time for inspection.

    Service

    All subpoenas must be served in accordance with Part 6: r15A.06.

    Service of subpoena on the person subpoenaed

    Under sub-r6.06(1) service by hand is required for a subpoena requiring the attendance of a person.

    A subpoena requiring production can be served by ordinary service.

    A subpoena must be served within three months of issue: r6.18.

    Unless the Court directs otherwise:

    • l a subpoena requiring attendance must be served at least seven days before attendance under the subpoena is required: sub-r15A.04(3)(a); and
    • l a subpoena requiring production must be served at least 10 days before production under the subpoena is required: sub-r15A.04(3)(b).

    Service of copy subpoena on other parties

    The issuing party must serve by ordinary service a copy of the subpoena on each other party, any interested person and any ICL in the proceedings within a reasonable time before attendance or production under the subpoena is required: sub-r15A.06(2).

    Time for production

    Subpoenas will generally be issued by the registry with a date for production of documents some 14 days later. This is to enable adequate time for service of the subpoena, production of the documents and the notification of any objection.

    Notice of objection

    If the person subpoenaed, another party or an interested person objects to the production, inspection or copying of the document(s) by any person, they are required to give notice of the objection to the registrar and the issuing party before the day stated in the subpoena for production (by using the notice provided for this purpose attached to the proposed form of subpoena).

    The new form of subpoena includes a notice of objection for completion by the person subpoenaed, another party or an interested person who wishes to object to production of some or all of the documents or the inspection/copying of same. In accordance with r15A.14, the party or person objecting must notify the registrar and the issuing party of the objection and the grounds before the day stated in the subpoena for production.

    Listing of objection for hearing

    On receiving a notice of objection, the subpoena is referred to the Court or registrar for the hearing and determination of the objection: sub-r15A.14(4).

    Inspection of documents produced

    Inspection is only permitted if the requirements set out in r15A.13 have been met.

    If no objection is notified or the objection is disallowed by the Court or registrar, each party and the ICL may, by appointment with the subpoena clerk, inspect and, except in respect of child welfare, criminal, police or medical records, take copies of the documents produced in compliance with the subpoena: sub-r15A.13(2).

    Any party wishing to inspect the documents produced under subpoena should contact the subpoena clerk the day after the due date for production of the documents to arrange a time for inspection.

    ADELE BYRNE

    Principal Registrar

    13 November 2009

    Federal Magistrates Court

    Federal Magistrates Court (Bankruptcy) Amendment Rules 2009 (No 1)

    The federal magistrates have agreed to adopt the Federal Magistrates Court (Bankruptcy) Amendment Rules 2009 No 1 (the Amendment Rules).

    The Amendment Rules include miscellaneous amendments to the Federal Magistrates Court Bankruptcy Rules 2006 (the Rules), to make a minor amendment to the note on Form 7 by setting out the title of the enabling Act (the Federal Magistrates Act 1999) to clarify that this is the Act which is referred to. In addition, the reference to r2.03 on Form 7 is amended by way of clarification, to avoid any confusion that the reference is to r2.03 of the Federal Magistrates Court (Bankruptcy) Rules 2006.

    ADELE BYRNE

    Principal Registrar

    13 November 2009

    Federal Magistrates Court

    Changes to human rights forms

    As a consequence of amendments following passage of the Disability Discrimination and Other Human Rights Legislation Amendment Act 2008 (Cth), the Federal Magistrates Court’s “Application – Human Rights” and “Response – Human Rights” forms have been amended. In the application form the time period in question 14 has been changed from 28 days to 60 days and in both forms all references to the Human Rights and Equal Opportunity Commission have been changed to the Australian Human Rights Commission.

    The amended forms are available at www.fmc.gov.au/forms/html/human.html#app.

    ADELE BYRNE

    Principal Registrar

    3 December 2009

    County Court

    Security procedures at the County Court (Melbourne)
    Information for entry to courtrooms, the registry and public areas in the County Court facility.

    In order to provide a safe and secure facility, persons and their property attending court will be required to pass through the weapons detection system located at the main entrance foyer.

    This is an airport-style weapons detection system and all items must be submitted for scanning before proceeding to the courtrooms or other areas of the facility.

    To admit a bag larger than 40cm x 60cm, special arrangements must be made with County Court Security (ph 9601 6228 or 9601 6225).

    For delivery of large volumes of files or boxes, please contact the County Court Facilities Manager on ph 8636 6434 two days prior to delivery.

    Open crates of files do not require scanning and can be wheeled past security in a trolley.

    Please ensure that you leave enough time to pass through security in order to appear in court on time.

    Practitioners and members of the public who have a certified medical condition that may be adversely affected by x-ray scanning are requested to contact the security reception on arrival.

    Glass receptacles of any kind are not permitted in the facility.

    Information on the location of the County Court, opening hours and sittings schedule is available on the County Court website www.countycourt.vic.gov.au.

    For general information on the County Court building or courtroom hire please contact The Liberty Group on ph 9601 6200, fax 9600 3366, email enquiries@thelibertygroup.com.au or visit www.thelibertygroup.com.au.

    ANNA BOLGER

    Communications Manager

    4 December 2009

    Magistrates’ Court

    Mediation pilot program
    Practice Direction No 5 of 2009
    Background

    Practice Direction No 6 of 2007 created a mediation pilot program for certain defended civil proceedings at the Magistrates’ Court at Broadmeadows. In Practice Direction No 1 of 2009 the scope of that program was extended. In Practice Direction No 2 of 2009 the program was extended to the Magistrates’ Court at Sunshine. In Practice Direction No 3 of 2009 the program was extended to the Magistrates’ Court at Werribee. The purpose of this practice direction is to extend the program to the Magistrates’ Court at Latrobe Valley.

    Directions
    • From 16 November 2009, the Court will commence a mediation pilot program at the Magistrates’ Court at Latrobe Valley (the pilot program) for all defended civil disputes where the amount sought in the complaint is less than $10,000 or where the dispute is under the Associations Incorporation Act 1981 (irrespective of the amount or matter in dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989.
    • The pilot program will only involve those proceedings where a notice of defence is filed at the Magistrates’ Court at Latrobe Valley on or after 16 November 2009.
    • In addition to serving on a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve on the defendant a document entitled “Information About Court-Annexed Mediation”, which is set out in the appendix to this practice direction.*
    • Where a defendant seeks to defend the complaint and files and serves a notice of defence in order to do so, that person must return to the Magistrates’ Court at Latrobe Valley at the same time as the notice of defence is filed a completed Section A, which is contained in the “Information About Court-Annexed Mediation” document.
    • This practice direction operates from 16 November 2009.
    CHIEF MAGISTRATE IAN L GRAY

    23 October 2009

    * Due to space constraints this document has not been reproduced here. The full practice note can be found at www.magistratescourt.vic.gov.au under “Practice and Procedure”.

    Cash rate target

    From 6 December 2007 law practices whose matters are governed by the Legal Profession Act 2004 cannot use the penalty interest rate for their accounts. The maximum rate is the cash rate target plus 2 per cent. The cash rate target is currently 3.75 per cent (from 2 December 2009). To monitor any changes between editions of the LIJ, practitioners should check www.rba.gov.au/statistics/cash-rate.html.

    Value of penalty and fee units

    For the financial year commencing 1 July 2009, the value of a fee unit is $11.69 and the value of a penalty unit is $116.82 (Victoria Government Gazette S132, 15 May 2009).

    Penalty interest rate

    The penalty interest rate is 10 per cent per annum (from 23 February 2009).

    To monitor any changes to this rate between editions of the LIJ, practitioners should check The Age newspaper on Mondays under the Law List.

     

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