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Practice Notes

Every Issue

Cite as: (2003) 77(10) LIJ, p.79

Federal Court

Full Court sittings for 2004

Subject to there being sufficient business, sittings of a Full Court of the Federal Court of Australia will be held in all capital cities within the following periods:

9 February – 5 March 2004
3-28 May 2004
2-27 August 2004
1-26 November 2004

Any urgent matter may be transferred to a place of sitting other than that at which the matter was heard at first instance.

If the circumstances require it a Full Court may sit in capital cities to hear appeals on dates other than those listed.

Philip kellow
Deputy Registrar
11 august 2003


Federal Court

Appeals to a Full Court

Practice Note No 1

Practice Note No 1 issued on 9 February 2001 is revoked and the following practice note is substituted.

This practice note applies to all parties to appeals before the Full Court, including parties who are not represented by a legal practitioner, unless, and except to the extent that, the Court or a judge otherwise orders.

The practice note also applies to other proceedings before the Full Court, insofar as the practices and procedures described are appropriate to such other proceedings.

A. Listings for Full Court sittings
The district registrar will prepare a list of all appeals and other matters pending for hearing before a Full Court.

The district registrar will forward to the solicitors on the record, or where there is no solicitor on the record for a party, to the party, a notice of callover which will include the callover date.

The list will be called over before a judge or a registrar. At the callover the parties must be in a position to advise the Court:

  • of the nature of the matter and the essential issues and how they arise;
  • of the nature of any cross-appeal filed or to be filed in the near future;
  • of the nature of any notice of contention filed or to be filed in the near future;
  • whether there are any motions still to be dealt with;
  • whether the matter is ready to be listed for hearing;
  • whether the appeal index has been settled;
  • whether the appeal books have been prepared;
  • whether any consideration has been given to conducting the appeal electronically;
  • whether there is any degree of urgency in listing the matter;
  • of the parties’ agreed estimated duration of the hearing and whether that estimate is based on counsel’s advice;
  • of the names of counsel briefed to appear;
  • whether counsel is briefed to appear in any other matters that may be listed in the same Full Court sittings anywhere across Australia; and
  • of dates in the proposed sittings when the parties or their representatives are not available for hearing and the reasons for non-availability.

The parties must also be in a position to provide details of any other matters that may affect the listing of the matter. Such other matters may include:

  • identification of other pending cases involving similar legal issues;
  • whether any party intends to argue that a previous Full Court decision should not be followed;
  • whether leave to appeal or leave to extend time for the filing and service of the notice of appeal is required;
  • whether any party seeks expedition of the hearing of the appeal;
  • whether any judge of the Court has made adverse findings as to the credit of any party, or the principals of any party, to the appeal; and
  • whether the appeal is said to raise a particularly important issue of law and if so, what issue is raised.

The hearing date will be fixed by the Chief Justice after the completion of all callovers nationally within the range of dates published for the Full Court sittings. If the circumstances so require, a hearing date may be fixed outside the published range of dates. Those appeals not fixed for hearing may be adjourned to the following callover of Full Court appeals or other directions may be made.

After the hearing dates have been fixed by the Chief Justice, the district registrar will publish a list of those matters that have been included in the sittings. Notice of the hearing date for each appeal will be sent to all solicitors on the record, or where there is no solicitor, to the party. An appeal that has been fixed for hearing may be removed from the list only on the direction of a judge.

Listing of matters outside published dates for Full Court sittings
Where the circumstances so require, the Chief Justice may convene a Full Court outside the published sitting dates for the Full Court. A party may seek an order that an appeal or application to the Full Court be expedited. An application for an expedited hearing must be accompanied by an affidavit providing evidence of urgency.

Parties requiring further information about urgent Full Court hearings should first contact the local district registry of the Court.

B. Orders for outline of submissions and lists of authorities
Unless otherwise ordered, the procedure set out below must be followed:

  1. Each party must prepare an outline of that party’s submissions on the appeal.
  2. The outline of submissions must contain:
    (a) a concise statement of the issues that the appeal presents; and
    (b) an outline of the argument to be presented on each issue, specifying the steps in the argument and any legislation, authorities or findings of fact to be relied on in support of each step.
  3. Where a party intends to challenge any of the primary judge’s findings of fact, the outline must:
    (a) identify the error relied upon (including any failure to make a finding of fact);
    (b) identify the finding which the party contends ought to have been made;
    (c) state concisely why, in the party’s submission, the finding or failure to make a finding is erroneous;
    (d) give references to the evidence to be relied on in support of the argument.
  4. The outline of submissions must be accompanied by a chronology or a reference to the page in the appeal book at which a chronology may be found.
  5. The appellant must file and serve five copies of its outline of submissions no later than 4pm on the last day which is five clear working days before the date of hearing of the appeal.
  6. The respondent must file and serve five copies of its outline of submissions no later than 4pm on the last day which is two clear working days before the date of hearing of the appeal.
  7. The appellant must file and serve five copies of any outline of submissions in reply no later than 4pm on the last working day before the date fixed for the hearing of the appeal.
  8. The outline of submissions must not ordinarily exceed 10 pages in length, unless leave is obtained at the callover to lodge a lengthier document.
  9. All references to the appeal book in an outline of submissions must refer to the relevant page and the relevant part of the page (e.g. A.B 27.5 - 28.2).
  10. Similarly, all references in an outline of submissions to authority must give the case name and citation and refer to the relevant page and the relevant part of the page (e.g. A v B 112 CLR 210 from 212.5 to 212.7).
  11. It is expected that the oral arguments will follow the outline of submissions, and new issues not included in the outline may not be advanced on the hearing except with the leave of the Full Court.
  12. Each party must file and serve a list of authorities and legislation in accordance with Practice Note No 19.

The appellant should assume in opening the appeal that the members of the Full Court have read the reasons for the judgment or order appealed from, the notice of appeal and the outlines of submissions.

C. Notice of points of appeal abandoned
The appellant must, within a reasonable time before the hearing of an appeal, give notice to the Court and to the other parties to the appeal of any grounds of appeal to be abandoned. The respondent must likewise give notice of the abandonment of any grounds advanced in a notice of contention.

D. Appeal books
Unless the Court orders otherwise, the appellant must prepare and file the required number of appeal books as determined by the registrar.

The appeal book must contain:

(a) an index of its contents;
(b) a chronological list of any exhibits (and any other documents received in evidence) that are included in the appeal book;
(c) the pleadings of every party as amended before the conclusion of the trial, and any intermediate versions that are relevant to the grounds of appeal, cross-appeal or contention;
(d) the reasons for judgment of the primary judge or federal magistrate;
(e) the formal order of the court from which the appeal is brought:
(f) the notice of appeal and any notice of cross-appeal or notice of contention;
(g) any submitting appearances;
(h) such parts of the transcript of the hearing at first instance as the parties consider it necessary for the Court to have for the determination of the appeal but no more; and
(i) any affidavits and exhibits from which the parties will ask the Court to read in the course of their submissions (complete documents should be included only where that is necessary for a proper understanding of the document).

Transcript and exhibits not likely to be referred to in submissions should not be included. The inclusion of unnecessary material exposes a party to the risk of an order that the costs occasioned by the unnecessary material be borne by the party responsible for its inclusion.

If it becomes necessary during the course of the hearing to refer to additional material, the parties may by leave hand copies of the additional material to the Court.

In cases involving many documents or extensive transcript the Court recommends that the parties consider preparing an electronic appeal book. If a party considers that an electronic appeal book may be appropriate, that party should consult with the other parties and with the district registry as soon as possible after the notice of appeal has been served. In appropriate cases the Court may order that the appeal book, or any part of it, be in electronic form.

Chief Justice Mej Black
14 August 2003


Federal Court

List of authorities and legislation – proceedings generally

Practice Note No 19

This practice note applies to all parties, including a party not represented by a legal practitioner, to any proceeding (including an appeal) before the Court, in respect of any final hearing unless, and except to the extent that, the Court or a judge otherwise orders. The Court or a judge may direct that this practice note also apply in respect of any interlocutory hearing.

  1. In this practice note:
    - applicant includes appellant; and
    - required number of copies is the number of copies of a document necessary to provide the judge (and in a matter before a Full Court, each judge) and each party with a copy of the document and a copy to be placed on the Court file.
  2. The applicant must file and serve the required number of copies of its list of authorities and legislation by 4pm, three clear working days before the hearing date.
  3. The respondent must file and serve the required number of copies of its list of authorities and legislation by 4pm, two clear working days before the hearing date.
  4. If a case has been reported the reference to the report must be given, and if it has been reported in an official series of reports, the reference must be to the report in that series.
  5. References to cases must include the case name, citation and reference to the relevant page and relevant part of the page (e.g. A v B 112 CLR 210 from 212.5 to 212.7).
  6. References to legislation must specify the relevant legislature and the relevant sections, regulations, rules or clauses.
  7. The list of authorities and legislation should be divided into Parts “A” and “B”. Part “A” must contain only authorities and legislation from which passages are to be read. Part “B” must contain authorities and legislation to which a party might refer, but from which passages are not to be read.
  8. The Court will supply for the use of the judge or judges hearing the matter up to, but not more than, 10 cases on Part “A” of the list that are reported in the Commonwealth Law Reports, Federal Court Reports, Australian Law Reports and the authorised reports of the Supreme Court of the state or territory in which the application is to be heard. Where more than 10 cases are listed in Part “A” of the party’s list, the party must identify with a single asterisk those cases that the party wishes the Court to provide to the judge or judges.
  9. A party may identify in Part “A” up to five cases in addition to those referred to in para 8 above to which the party wishes to refer at some length. These cases are to be identified on the list by a double asterisk. It is the responsibility of the party to hand up photocopies of those cases for the use of the judge or judges during argument.
  10. A party who intends to cite from:
    (a) an unreported case; or
    (b) the report of a case other than a case reported in the reports mentioned in para 8 above; or
    (c) a book

    must provide photocopies of the case or the relevant parts of the book for the use of the judge or judges and each party during argument. A photocopy of part of a book must include a photocopy of the page or pages identifying its author, title, publisher, edition and year of publication.

Chief Justice Mej Black
14 August 2003


Family Court

Application for contact/residence during the Christmas school holiday period: national filing deadline

Practice Direction No 3 of 2003

The Court has fixed a national filing deadline to allow the proper and expeditious hearing of contact and/or residence disputes during the 2003/04 summer school holiday period. Subject to numbers being within expected limits, the Court anticipates allocating hearing dates prior to Christmas for applications filed prior to the deadline. The Court cannot guarantee that applications filed after the deadline will be fixed for hearing prior to Christmas.

Which applications?:
All Form 8 or other applications seeking orders relating to contact or a period of residence during the December 2003/ January 2004 school holiday period.

Closing date for filing:
4pm on Monday, 10 November 2003.

Consequences:
Applications filed after 10 November 2003 will be allocated the next available date in the usual way. That date may be in 2004.

Exceptions:
After 10 November 2003, applications to abridge times and to list a matter on short notice can be made to registry staff. The usual criteria for an urgent hearing will apply. The fact that an application relates to school holiday contact will not of itself justify a listing before Christmas.

Justice JE Ellis
Acting Chief Justice, Family Court
15 August 2003


Magistrates’ Court

Criminal justice diversion

Practice Direction No 1 of 2003

Background
The intention and philosophy of the criminal justice diversion program is to enable those acknowledging responsibility for their offence at an early point in time to avoid a formal court process and to benefit from various diversionary programs.

Two issues have arisen:

  1. Some practitioners are indicating that their clients will admit responsibility for their offending behaviour only if a diversion is permitted, otherwise their clients will be entering a “not guilty” plea.
  2. From time to time, practitioners are seeking to have their clients’ matters dealt with by diversion on the date fixed for a contested hearing. Requests for diversion at this late stage are causing case management difficulties for the Court, case preparation difficulties for police and prosecutors and inconvenience to witnesses.

Direction
From the date of operation of this practice direction:

  1. Diversion will only be considered where the offender unequivocally accepts responsibility for the matters charged and detailed in the police summary.
  2. The last opportunity for referral to diversion will be on the date of the contest mention. If referral is made on that date, the diversion assessment is to be completed on that day. If that is not possible, the contest mention is to be completed by adjourning matters for diversion.
    Where the informant is unable to obtain authorisation for diversion from a sergeant on the day of the contest mention, the notice must be filed within seven days of the contest mention date.
    Once a matter is listed for contest any application for diversion must be considered within a further 28 days of the contest mention date. If diversion is granted, the hearing date will be vacated.
    Applications or proposed referrals to diversion will not generally be entertained on the day fixed for the contested hearing. Instances will no doubt arise which would cause an exception to be made, such as the withdrawal of contentious charges or a change of the summary. These matters will be considered on their merits.
  3. In the event that on the date of the contested hearing the magistrate before whom the matter is listed considers an application that the matter proceeds by diversion and determines that the matter is suitable, that magistrate will conduct the diversion.

This practice direction takes effect on 1 September 2003.

Chief Magistrate Ian L Gray
25 August 2003


Notes on Legal Costs

Failure to comply with ss86 and 107 Legal Practice Act 1996

The matter of Chakera v Kuzamanovic & Anor [2003] VSC 92 (19 March 2003) (Chakera) was an appeal to the Victorian Supreme Court from a magistrate’s decision that failure to provide any information at all pursuant to s86 of the Legal Practice Act 1996 (the Act) rendered the retainer void.

In the Magistrates’ Court, consent judgment was entered by a barrister against a solicitor for recovery of the barrister’s fees. The solicitor then commenced a third party claim against his client to recover the judgment debt. The client’s defence to the claim was that the solicitor had not complied with two sections of the Act: s86 (information to be given to client) and s107 (bill of costs must be signed by legal practitioner). The solicitor conceded he had not provided any information pursuant to s86 of the Act and the magistrate ruled that therefore the retainer was void. In consequence, s107 of the Act was not dealt with.

The solicitor appealed to the Victorian Supreme Court. Justice Nettle did not agree with the magistrate’s ruling. With regard to the failure to comply with s86 of the Act, his Honour held as follows at paras 11, 12 and 13:

“In short, it does not follow a priori from a failure to comply with a statutory requirement that a contract is rendered void and unenforceable. One must determine as an exercise in statutory construction whether the statute intends that result or some other consequence.

“When one looks to the other provisions of the Legal Practice Act 1996, it is in my view plain that the Act does intend other consequences. It intends the consequences which are laid down in s91 of the Act.

“That section provides both express and implied guidance as to the consequence of a solicitor’s failure to comply with s86. It expressly provides for a reduction in the costs which the solicitor may recover, and thus it implies that a solicitor who fails to comply with s86 is not precluded from recovering legal costs, albeit that they may be reduced. The policy of the statute as revealed by the terms of s91 is that a solicitor who fails to comply with s86 may have his fees reduced in the circumstances mentioned in s91. It is not that his fees will be rendered irrecoverable.”

With regard to ss106 and 107 of the Act, the solicitor delivered a copy of the barrister’s fee slip to his client before joining the client as a third party. The solicitor submitted that because the fee slip was signed by the barrister’s clerk, the solicitor’s delivery of the fee slip to the client was sufficient compliance with ss106 and 107 of the Act. His Honour did not agree. He held at para 26 that s107(1) was intended to have the effect that a disbursement account for barristers’ fees must be signed by the sole practitioner or another legal practitioner authorised in that behalf.

Although the solicitor contended in the Magistrates’ Court that he had incurred barristers’ fees as agent for the client, this does not appear to be a matter where the solicitor was agent for the client as described in the Victorian Supreme Court decision of Dimos v Hanos & Egan [2001] VSC 173 (29 May 2001).[1] In the initial action which led to the Chakera appeal, the barrister sued the solicitor and not the client for the barrister’s fees.

His Honour held at paras 30 and 31 that:

“ ... a barrister’s clerk’s signature on a fee slip may suffice for the purpose of the barrister’s claim against the barrister’s instructing solicitor, and if the barrister has a direct claim against the lay client, it may suffice for the purpose of that claim. But a barrister’s clerk’s signature on a barrister’s fee slip is not sufficient compliance with s107 for the purposes of the instructing solicitor’s claim against the lay client (even if the claim be for disbursements constituted only of the barrister’s fees).

“ ... If a solicitor is seeking to recover no more than counsel’s fees as a disbursement, the solicitor could comply with ss106 and 107 by writing to the client a letter signed by the solicitor enclosing counsel’s fee slip, signed by an approved clerk, and requesting that the client pay the amount of the fees to the solicitor. Because s107 allows for the lump sum bills of costs, I think that it would also be sufficient if instead of enclosing counsel’s fee slip, the solicitor were simply to specify in his or her letter to the client the amount of counsel’s fees shown in the fee slip signed by counsel’s clerk and requesting payment of that amount to the solicitor. As between those two methods the former has an advantage in terms of clarity, but either should suffice.”

The matter was remitted to the magistrate for further hearing and determination according to law.

Please direct inquiries to the manager of the LIV Costing Service Mia Johnson on tel 9607 9405. General information about costing is given as a free service to members of the Law Institute of Victoria.

Mia Johnson
Manager, LIV Costing Service


[1] See Johnson, M, “Solicitor as agent”, September 2001 Law Institute Journal, p75.

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