CHAPTER 1: COURT ADJUDICATION IN THE CIVIL JUSTICE SYSTEM 7 RIGHT TO A FAIR HEARING 7 COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 (NSW) 7

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1 TABLE OF CONTENTS CHAPTER 1: COURT ADJUDICATION IN THE CIVIL JUSTICE SYSTEM 7 RIGHT TO A FAIR HEARING 7 COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 (NSW) 7 CHAPTER 2: CASE MANAGEMENT AND THE OVERRIDING PURPOSE 8 CASE MANAGEMENT 8 NEW SOUTH WALES SUPREME COURT 9 SHORT RUNDOWN ON THE NSWSC 9 COMMON LAW DIVISION 9 EQUITY DIVISION 9 MEDIATION CIVIL PROCEDURE ACT 2005 (NSW) 10 OVERRIDING OBJECTIVE 10 OVERRIDING PURPOSE CLAUSES (CTH) & (NSW) 11 SANCTIONS BY A COURT 12 PROCEDURAL APPEALS TO THE HCA 12 ADJOURNMENT 12 AMENDING A DEFENCE 12 SEEKING LEAVE TO AMEND 13 CHAPTER 3: ALTERNATIVE DISPUTE RESOLUTION 14 CHAPTER 4: JURISDICTION 15 FEDERAL JURISDICTION 15 HIGH COURT ORIGINAL JURISDICTION 15 HIGH COURT APPELLATE JURISDICTION 16 FEDERAL COURT ORIGINAL JURISDICTION 17 FEDERAL COURT APPELLATE JURISDICTION 17 REFERENCE JURISDICTION FEDERAL COURT 18 ACCRUED JURISDICTION STATUTORY LAW 18 ACCRUED JURISDICTION UNDER COMMON LAW 18 SUPREME COURTS 19 TERRITORIAL JURISDICTION 20 STATUTORY EXTENSION OF TERRITORIAL JURISDICTION 20 CROSS-VESTING OF JURISDICTION 21 CROSS-VESTING OF JURISDICTION PAPER 24 PARALLEL PROCEEDINGS 24 TRANSFERRING A CASE IN THE INTERESTS OF JUSTICE 24 REMOVAL FROM AND REMITTAL TO LOWER COURTS 25 CHAPTER 6: LIMITATION OF ACTIONS 26 LIMITATION ACT 1969 (NSW) 26 TIME PERIODS UNDER THE LIMITATION ACT 26 EXTENSION OF THE LIMITATION PERIOD 27 CHAPTER 7: COMMENCING PROCEEDINGS 28 PRE-ACTION PROTOCOLS 28 CIVIL DISPUTE RESOLUTION ACT 2011 (CTH) 28 1

2 PRE-ACTION OBLIGATIONS 29 REASONABLE PROSPECTS OF SUCCESS 30 UNIFORM SOLICITOR CONDUCT RULES WEEK 2 LECTURE 32 REPRESENTATIVE PROCEEDINGS 33 CHAPTER 10: JOINDER OF PARTIES AND ACTIONS 35 RES JUDICATA 35 CONSOLIDATION 35 THIRD-PARTY PROCEEDINGS 36 REPRESENTATIVE PROCEEDINGS 36 ORIGINATING PROCESS AND CASE MANAGEMENT 37 COMMENCING REPRESENTATIVE PROCEEDINGS 37 CHAPTER 8: SERVICE 38 MANNER OF SERVICE: TWO METHODS 38 SOLICITOR ACCEPTING SERVICE 39 TIMES REQUIREMENTS 39 ORDINARY SERVICE 39 SERVICE BY POST 40 SERVICE BY ELECTRONIC MEANS 40 INTERLOCUTORY INJUNCTIONS 40 SPECIAL PARTIES 41 CORPORATIONS 41 FOREIGN CORPORATIONS 41 GOVERNMENT OWNED CORPORATIONS 42 PARTNERSHIPS, BUSINESS NAMES, AND UNINCORPORATED ASSOC. 42 SPOUSES 42 INFANTS 42 MENTALLY ILL PERSONS 43 CROWN AND JUDICIAL OFFICERS 43 PROOF OF SERVICE 44 SUBSTITUTED SERVICE 45 METHOD OF SUBSTITUTED SERVICE 45 JURISDICTIONAL LIMITATIONS 46 THE APPLICATION 46 SERVICE OUT OF THE JURISDICTION 47 CHAPTER 9: APPEARANCE 48 WHY ENTER AN APPEARANCE? 48 WHO MAY ENTER AN APPEARANCE? 48 TYPES OF APPEARANCES 49 PROCEDURE FOR ENTRY OF APPEARANCE 49 TIME LIMITED FOR APPEARANCE 49 UNCONDITIONAL APPEARANCE 49 WEEK 3 LECTURE 50 INSTITUTING PROCEEDINGS THE PROCESS 50 CHAPTER 12: PLEADING 51 2

3 CONTENTS OF PLEADINGS 51 PLEADING A STATUTORY PROVISION 52 ALTERNATIVES TO PLEADING 52 PROCEDURE 52 TIME FOR PLEADINGS 52 STATEMENT OF CLAIM 53 CONTENT 53 STRUCTURE 54 DEFENCE 54 DENIALS 55 AFFIRMATIVE PLEADING 55 COUNTERCLAIM AND SET-OFF 55 REPLY AND DEFENCE TO COUNTERCLAIM 55 SET-OFF 55 PARTICULARS 56 PURPOSE OF PARTICULARS 56 PLEADINGS AND PARTICULARS 56 WHEN IS JUDGMENT ENTERED? 56 WHERE PARTICULARS ARE INADEQUATE 57 STRIKING OUT PLEADINGS 58 NON-COMPLIANCE 58 IRREGULARITIES AND NULLITIES 58 COURT CAN DISPENSE WITH COURT RULES!!! 58 WEEK 4 LECTURE 60 CHAPTER 13: SUMMARY DISPOSITION 61 DEFAULT JUDGMENT 61 DELAY CONSTITUTING ABUSE OF PROCESS 61 SUMMARY JUDGMENT 62 REASONABLE APPROACH [SPENCER V CTH (2010)] 62 SUMMARY JUDGMENT FOR THE PLAINTIFF 63 FAILURE BY DEFENDANT TO APPEAR 63 SUMMARY JUDGMENT FOR THE DEFENDANT 63 ABUSE OF PROCESS 64 DISCONTINUANCE AND WITHDRAWAL 65 SECURITY FOR COSTS 65 SECURITY FOR CORPORATIONS 66 SECURITY FOR COSTS IN THE FCA 66 LECTURE WEEK 5 67 WHEN D APPLIES FOR SECURITY OF COSTS 67 CHAPTER 18: SETTLEMENT 68 WITHOUT PREJUDICE 68 PAYMENT INTO COURT 68 OFFER TO SETTLE 68 CALDERBANK OFFERS 69 OFFER OF COMPROMISE 70 WHEN MAY OFFER BE MADE 70 WITHDRAWAL OF OFFER 71 ACCEPTANCE OF OFFER 71 FORMALISING SETTLEMENT 71 3

4 LECTURE WEEK 6 72 LEGAL PROFESSION UNIFORM LAW (NSW) 72 ADR 73 LECTURE WEEK 7: DISCOVERY 74 PRELIMINARY DISCOVERY [UCPR RR ] 74 LAWYER S OBLIGATIONS 76 PERMITTED USE OF DOCUMENTS 76 DEFAULT IN DISCOVERY 77 LEGAL PROFESSIONAL PRIVILEGE 77 SCOPE AND RATIONALE: 77 TWO LIMBS OF LEGAL PROFESSIONAL PRIVILEGE 78 PRIVILEGE DOCUMENT COPIES 78 CLIENT PRIVILEGE 78 PRIVILEGE EXPERT REPORTS 78 PRIVILEGE AGAINST SELF-INCRIMINATION 78 PRIVILEGE PUBLIC INTEREST 79 PRIVILEGE WITHOUT PREJUDICE 79 CONTINUING OBLIGATION 79 DESTRUCTION OF DOCUMENTS 79 LECTURE WEEK 8: FURTHER MEANS OF OBTAINING EVIDENCE & AFFIDAVITS 80 INSTITUTING PROCEEDINGS THE PROCESS 80 TOOLS TO OBTAIN INFORMATION 80 INTERROGATORIES UCPR PT 22; FCR R [UCPR FORM 21] 80 INSPECTION AND TESTING OF PROPERTY 81 PERSONAL INJURY PROCEEDINGS 81 MEDICAL EXAMINATIONS 81 PARTICULARS & DOCUMENTS WRT LOSS & DAMAGE 82 DISCLOSING EXPERT EVIDENCE 82 EXPERT EVIDENCE 82 IN THE FEDERAL COURT 82 IN NSW 82 NOTICE TO ADMIT (NTA) [UCPR FORM 17] 83 SUBPOENA [UCPR FORM 27A] 83 SUBPOENA: CONDUCT MONEY 84 SERVICE OF SUBPOENAS 84 COMPLIANCE WITH SUBPOENAS 84 FAILURE TO COMPLY 84 SETTING ASIDE SUBPOENAS 85 NOTICE TO PRODUCE 85 UCPR R 34.1: NOTICES TO PRODUCE AT HEARING 85 AFFIDAVITS [UCPR FORM 40] 86 INTRODUCTION TO AFFIDAVITS 86 AFFIDAVITS AND ORAL EVIDENCE 86 INTERLOCUTORY & TRIAL AFFIDAVITS 86 JURAT 86 WITNESS TO THE AFFIDAVIT 87 ANNEXURES, SCHEDULES, EXHIBITS 87 FILING AN AFFIDAVIT 87 SERVING AN AFFIDAVIT 87 TIMING FOR TAKING THE AFFIDAVIT 87 4

5 CROSS-EXAMINATION OF DEPONENT 88 STRIKING OUT SCANDALOUS / IRRELEVANT MATERIALS 88 USING SAME AFFIDAVIT TWICE IN SAME OR SUBSEQUENT PROCEEDING 88 READING OF AFFIDAVITS 88 ALTERATIONS, ERASURES, WITHDRAWALS OF AFFIDAVITS 88 TRIAL BY AFFIDAVIT 89 IRREGULARITIES, DEFECTIVE AFFIDAVITS, AND PERJURY 89 LAWYER S DUTIES WHEN PREPARING AFFIDAVITS 89 WEEK 9: INTERLOCUTORY PROCEDURE 90 JURISDICTION OF TYPES OF JUDGES 90 NOTICE OF MOTION 90 MAKING AN INTERLOCUTORY APPLICATION 90 EX PARTE APPLICATIONS 91 IN ABSENCE OF ORAL HEARING 91 INJUNCTIONS 91 URGENT INJUNCTIONS MAREVA & ANTON PILLER 91 TYPES OF INJUNCTIONS 92 TWO ELEMENTS OF GRANTING AN INJUNCTION 92 CONTINUED 92 URGENT INJUNCTION APPLICATION 92 INJUNCTION SERVICE OF ORDER 94 DISCHARGING / VARYING INJUNCTIONS 94 USUAL UNDERTAKING AS TO DAMAGES 94 ANTON PILLER ORDERS 94 MAREVA ORDERS 95 ANCILLARY ORDERS 95 INTERIM PRESERVATION, MANAGEMENT, CUSTODY (PROPERTY) 95 WEEK 10: TRIAL 96 JUDGMENT 97 SLIP RULE 98 APPEALS 99 GROUNDS OF APPEALS 99 TYPES OF APPEALS 100 AVENUES OF APPEAL 100 JURISDICTION 101 APPELLATE COURT POWERS 101 ACTIONS TO TAKE WHEN APPEALING 101 APPLYING FOR A STAY 101 APPEAL PROVISIONS IN THE COURT RULES 101 REASONS FOR APPEALING 102 SECURITY FOR COSTS 102 ERROR OF LAW 102 WRONGLY EXERCISED DISCRETION 102 JUDGE S FINDINGS WERE WRONG 102 OVERTURNING JURY FINDINGS 103 FRESH EVIDENCE 103 ASSESSMENT OF DAMAGES 103 NEW TRIAL 103 STRIKING OUT, WANT OF PROSECUTION, DISCONTINUANCE 103 COSTS 103 SETTLING AN APPEAL 104 5

6 INDEMNITY CERTIFICATES 104 WEEK 11: COSTS 105 COSTS AGAINST LAWYERS 105 ADVOCATE S IMMUNITY 106 INTERLOCUTORY DISPUTES 106 COSTS ORDERS WITH MULTIPLE PARTIES 106 QUANTUM OF COSTS 106 APPEAL COSTS 107 WEEK 12 (CH 18): ENFORCEMENT 108 WHEN IS JUDGMENT ENFORCEABLE? 108 INSTALMENT ORDER 108 GATHERING INFO ABOUT DEBTOR S ASSETS 108 STAYS 109 PERMANENT STAY PAYMENT OF LIQUIDATED DEBT 109 STAY PENDING APPEAL 109 STAY PENDING CROSS-CLAIM 109 ENFORCEMENT METHODS OVER PERSONALTY 110 MAREVA INJUNCTION 110 GARNISHEE ORDER 111 DELIVERY OF GOODS 111 JUDGMENT FOR PAYMENT OF MONEY 112 WRIT FOR LEVY OF PROPERTY 112 ENFORCEMENT METHODS OVER REALTY 112 POSSESSION OF LAND 112 6

7 CHAPTER 1: COURT ADJUDICATION IN THE CIVIL JUSTICE SYSTEM Right to a Fair Hearing In 1980, Australia ratified the International Covenant on Civil and Political Rights (ICCPR). Art 14 states: All persons shall be equal before the courts and tribunals. In the determination of his or her rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. Court Suppression and Non-publication Orders Act 2010 (NSW) S 3 Definitions Non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). Suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise). S 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) The order is necessary to prevent prejudice to the proper administration of justice, (b) The order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) The order is necessary to protect the safety of any person, (d) The order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) It is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. 7

8 CHAPTER 2: CASE MANAGEMENT AND THE OVERRIDING PURPOSE Case Management Judith Resnik in Managerial Judges (1982) Judges are not only adjudicating the merits of the issues presented to them by litigants, but also are meeting with parties to encourage settlement of disputes and to supervise case preparation. Before and after the trial, judges are playing a critical role in shaping litigation and influencing results. Case management is an approach to the control of litigation, in which the court supervises or controls the progress of the case through its interlocutory phase. Over the last 10 years, case management by judges and quasi-judicial officers, such as registrars, has rapidly evolved in many Australian courts. These forms of case management involve the court managing the time and events involved in the movement of cases from commencement to disposition. The objectives / elements of case management include (from textbook) Reduction of trial time Monitoring of caseloads More effective use of judicial resources Early resolution of disputes Court consultation with the legal profession Strict control of adjournments Civil Procedure Act 2005 s 57: Objects of Case Management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) The just determination of the proceedings, (b) The efficient disposal of the business of the court, (c) The efficient use of available judicial and administrative resources, (d) The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). Individual Docket System: Case management involves control by a judge, who personally monitors each case. Master List System: Cases are controlled by the court registry and are assigned to different judges or judicial officers at different times for different purposes. Differential Case Management: These systems are based on the idea that different types of cases need different types of management. DCM systems assign cases on the basis of their individual characteristics to designated procedural tracks, which may include prescribed time limits for case progress and different levels of judicial management. Cases are assigned on the basis of case characteristics such as subject matter and complexity. 8

9 New South Wales Supreme Court Short Rundown on the NSWSC The Supreme Court is the highest court in NSW. Established by the 1823 Charter of Justice, it now operates under the Supreme Court Act 1970 (NSW) and the Civil Procedure Act 2005 (NSW). It has unlimited civil jurisdiction and hears the most serious criminal matters. The Court has both appellate and trial jurisdictions. The appellate courts are the: Court of Appeal Court of Criminal Appeal. The trial work of the criminal and civil jurisdictions is divided between two Divisions: the Common Law Division and the Equity Division. NSWSC has an inherent jurisdiction in addition to its specific statutory jurisdiction. The Court has supervisory jurisdiction over other NSW courts and tribunals, and generally exercises this jurisdiction through its appellate courts. Common Law Division Proceedings in the Common Law division are generally managed by way of directions hearings conducted by a judge or registrar. The court requires the parties to attend court for an initial directions hearing. Parties must file GCM (General Case Management) documents before the initial directions hearing, containing a narrative of previous proceedings in the matter and the facts they intend to prove. Different cases will have different requirements. Equity Division Cases in the Equity Division include those in specialist lists (admiralty, commercial, protective and revenue matters, technology, and construction NSW r 45.1). A registrar manages general matters through directions hearings, and lawyers must cooperate with the general management of the case, including the possibility of referral to mediation or constraints on expert evidence. The Equity Division also includes family provision matters. Unless otherwise ordered, all proceedings involving a family provision application will be referred to mediation after the initial directions hearing, in order to reduce financial strain on estates. 9

10 Mediation Civil Procedure Act 2005 (NSW) S 26: Referral by court (1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned. (2) The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court, who may (but need not be) a listed mediator. S 28: Costs of mediation The costs of mediation, including the costs payable to the mediator, are payable: (a) If the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or (b) In any other case, by the parties in such proportions as they may agree among themselves. Benefits of Mediation Early settlement assists in managing the workload of the courts Reduces costs of the parties and of the court Cases likely to settle early can be put on a track, which does not involve all of the preparation required to bring a case to trial Overriding Objective Civil Procedure Rules (UK) Part 1 Rule 1.1 Considered by HCA in Expense Reduction Analysis Group v Armstrong Strategic Management and Marketing (2013); NSWCA in Halpin v Lumley General Insurance (2009) (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable (a) Ensuring that the parties are on an equal footing; (b) Saving expense; (c) Dealing with the case in ways, which are proportionate (i) To the amount of money involved; (ii) To the importance of the case; (iii) To the complexity of the issues; and (iv) To the financial position of each party; (d) Ensuring that it is dealt with expeditiously and fairly; (e) Allotting to it an appropriate share of the court s resources, while taking into account the need to allot resources to other cases; and (f) Enforcing compliance with rules, practice directions and orders. 10

11 Overriding Purpose Clauses (Cth) & (NSW) Federal Court of Australia Act 1976 (Cth) s 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) According to law; and (b) As quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) The just determination of all proceedings before the Court; (b) The efficient use of the judicial and administrative resources available for the purposes of the Court; (c) The efficient disposal of the Court's overall caseload; (d) The disposal of all proceedings in a timely manner; (e) The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Civil Procedure Act 2005 (NSW) s 56: Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. Civil Procedure Act 2005 (NSW) s 57: Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 11

12 Sanctions by a Court Civil Procedure Act 2005 (NSW) s 61: Directions as to practice and procedure (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) It may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) It may strike out or limit any claim made by a plaintiff, (c) It may strike out any defence filed by a defendant, and give judgment accordingly, (d) It may strike out or amend any document filed by the party, either in whole or in part, (e) It may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) It may direct the party to pay the whole or part of the costs of another party, (g) It may make such other order or give such other direction as it considers appropriate. Procedural Appeals to the HCA Adjournment Brennan, Deane, and McHugh JJ: In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. What might be perceived as an injustice to a party when considered only in the context of an action between parties, may not be so when considered in a context, which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources Sali v SPC Ltd (1993) Amending a Defence The primary judge refused to allow the defendant to amend its defence on the basis that it had discovered only recently that there were discrepancies between two copies of a lease that was in contention between the parties. The primary judge held that the amendment should be refused because it was only 6 months until the commencement of the hearing and the amendment would jeopardise the hearing dates. The defendant appealed to the HCA. Dawson, Gaudron, and McHugh JJ held that the primary judge had erred, as the matters before her were insufficient to justify her refusal of the application to amend the defence. Case management (involving the efficiency of procedures of the court) is a relevant consideration, however should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties QLD v JL Holdings Pty Ltd (1997) 12

13 Seeking Leave to Amend ANU, midway through mediation, sought leave to amend its statement of claim on the grounds that it had acquired new information during mediation, which it refused to disclose, and did not provide sufficient justification for seeking leave to amend. The trial judge erred in accepting that ANU had provided a satisfactory explanation, but this was overturned by the HCA. HCA: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend Aon Risk Services v ANU (2009) 13

14 CHAPTER 3: ALTERNATIVE DISPUTE RESOLUTION Diversion of cases to mediation and arbitration are now an important part of the mechanisms employed by Australian courts to facilitate the early resolution of disputes. The National Mediator Accreditation Scheme (NMAS) promotes quality, consistency, and accountability among its accredited mediators. Family dispute resolution, a statutorily defined species of mediation, is no longer an alternative method for resolving parenting disputes, but the primary method. The main dispute resolution processes in Australia are divided into two types of processes those, in which the outcome is determined by the disputing parties (facilitative), and those, in which the outcome is determined by a neutral third party (determinative). Determinative processes include: Adjudication Arbitration Expert determination Private judging Fact-finding Early neutral evaluation Case appraisal Mini-trial Facilitative processes include: Facilitation Conciliation Mediation Ombudsman 14

15 CHAPTER 4: JURISDICTION Federal Jurisdiction Commonwealth Constitution 1900 (Cth) s 71: Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. High Court Original Jurisdiction Commonwealth Constitution 1900 (Cth) s 75: Original jurisdiction In all matters: (i) Arising under any treaty; (ii) Affecting consuls or other representatives of other countries; (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) Between States, or between residents of different States, or between a State and a resident of another State; (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; The High Court shall have original jurisdiction. Commonwealth Constitution 1900 (Cth) s 76: Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) Arising under this Constitution, or involving its interpretation; (ii) Arising under any laws made by the Parliament; (iii) Of Admiralty and maritime jurisdiction; (iv) Relating to the same subject-matter claimed under the laws of different States. Commonwealth Constitution 1900 (Cth) s 77: Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) Defining the jurisdiction of any federal court other than the High Court; (ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) Investing any court of a State with federal jurisdiction. 15

16 High Court Appellate Jurisdiction Commonwealth Constitution 1900 (Cth) s 73: Appellate jurisdiction The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (i) Of any Justice or Justices exercising the original jurisdiction of the High Court; (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) Of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter, in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. Judicature Act 1903 (Cth) s 34: Appeals from Justices of High Court (1) The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers. (2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers. Judicature Act 1903 (Cth) s 38: Jurisdiction of High Court exclusive Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters: (a) Matters arising directly under any treaty; (b) Suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State; (c) Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State; (d) Suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth; (e) Matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. 16

17 Federal Court Original Jurisdiction Federal Court of Australia Act 1976 (Cth) s 19: Original jurisdiction (1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament. (2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. Judiciary Act 1903 s 39B: Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter, in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) In which the Commonwealth is seeking an injunction or a declaration; or (b) Arising under the Constitution, or involving its interpretation; or (c) Arising under any laws made by the Parliament, other than a matter in respect, of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. Federal Court Appellate Jurisdiction Federal Court of Australia Act 1976 (Cth) s 24: Appellate jurisdiction (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: (a) Appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; (b) Appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); and (c) In such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction; and (d) Appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth other than: (i) the Family Law Act 1975; or (ii) the Child Support (Assessment) Act 1989; or (iii) the Child Support (Registration and Collection) Act 1988; or (iv) regulations under an Act referred to in subparagraph (i), (ii) or (iii); and (e) appeals from judgments of the Federal Circuit Court exercising jurisdiction under section 72Q of the Child Support (Registration and Collection) Act