The Court process
General Federal Law
This information explains the procedure that will apply to applications commenced in the Federal Circuit Court of Australia in relation to General Federal Law matters. The Court’s jurisdiction includes: administrative law; admiralty; bankruptcy; consumer law; copyright; industrial law; migration; privacy; and unlawful discrimination. (Information on the jurisdiction of the Court).
The Court has jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked: s 18 Federal Circuit Court of Australia Act 1999.
Rules - Regulations
The rules for the conduct of proceedings (other than bankruptcy) can be found in the Federal Circuit Court Rules 2001.
The rules for the conduct of proceedings in bankruptcy can be found in the Federal Circuit Court (Bankruptcy) Rules 2006.
Fees payable are set out in the Federal Court and Federal Circuit Court Regulation 2012. (Details of fees)
Case allocation – panel arrangements – nationally
Cases are allocated randomly to judges and a docket management system is adopted. However specialists panels operate in relation to certain areas of the Court's jurisdiction, including industrial law. These specialist panels have been introduced in Sydney, Melbourne and Brisbane and have a nominated Convenor. Once an application which falls within a Panel jurisdiction is docketed to a Judge on the panel, it will generally remain with that Judge. Details of panel composition is set out on the on this website. Notices to practitioners in various areas of panel jurisdiction are also located on this website.
Role & Responsibilities of Convenors
Information for parties
Proceedings in the Federal Circuit Court are commenced by application and usually supported by an affidavit. Rule 4.01 outlines the general requirements for commencing a proceeding. The person filing the application whether seeking final, interim or procedural orders must usually file an affidavit stating the facts relied on. Specific forms for commencing proceedings have been approved for bankruptcy, migration, industrial law and unlawful discrimination proceedings.
Pleadings - points of claim
The grounds of an application must explain briefly the basis on which the orders are sought. In most instances the use of an application and affidavit will negate the need for pleadings but, where appropriate, pleadings will be ordered. This is particularly so in commercial litigation such as consumer law, copyright and industrial law applications, and in some complex unlawful discrimination applications. In such instance an applicant may attach a pleading by way of points of claim. Such a pleading should observe the requirements of Federal Court Rules, Orders 11 and 12. It should identify in summary form the material facts on which the applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given.
What happens on the first court date?
The Federal Circuit Court operates what is known as a docket system which means that the application will usually remain before the same Judge from first court date to final hearing. The conduct of proceedings on the first court date is fully detailed in Rules 10.01 to 10.03. Rule 44.11 sets out rules for the conduct of proceedings in migration matters on the first court date. These rules set out a non-exhaustive list of possible orders or directions (without limiting rule 10.01).
At the first court date the court may give directions, order the parties to mediation, fix a date of hearing, conduct an interim hearing or finally determine the application. Rule 10.01 details the manner in which the Court may conduct proceedings on the first court date. The parties and their legal representatives are required to attend court and must have a good knowledge of the case.
At the first court date, the Court will generally order mediation and fix a date for the final hearing of the application. The Federal Circuit Court aims to list all cases for final hearing within six months of filing. Interim hearings will be listed with priority having regard to the degree of urgency.
For more information on the first court date please see the fact sheet First Court Event - Helpful Information
The Court has the power to make directions or orders. These orders will guide the conduct of the application, by ensuring parties undertake certain tasks that will facilitate the finalisation of the matter. See Rule 10.01(3).
The Court may make orders about:
Short proposed minute of orders to be provided
Where at least one party is represented by lawyers the Court will be assisted if a short minute of orders – providing a timetable dealing with the matters referred to above – has been prepared for consideration by the Court.
The Court may receive consent orders in respect to applications filed in the Federal Circuit Court. Proposed consent orders can be filed with the Court on or prior to the first court date, or at any time leading up to the final hearing. It is useful if proposed orders are sent by e-mail to the judges associate.
Part 15A of the Rules deals with subpoenas. A subpoena is not effective until issued by the Court. A subpoena issued should be in the approved form as set out on the Court’s website.
A subpoena requiring the production of documents only can be made returnable at any time fixed by the Court, although it will usually be 14 days. Rule 15A.04.
Documents subpoenaed under a subpoena requiring the production of documents only, in circumstances where there is no objection to those documents being inspected or copied, can be made available for inspection and, with the exception of child welfare records, criminal records, medical records, and police records, copying, after the date for production has passed, without an order. Rule 15A.13.
Where a notice of objection to production, inspection and/or copying of documents is filed, the matter will be listed for hearing on a date fixed by the Court. Rule 15.14A(4).
A subpoena requiring the attendance of a person must be made returnable on a day the proceeding is listed for hearing. Rule 15.14(2).
At least seven days notice of the return day of a subpoena must be given when attendance is required. A subpoena requiring production of documents is required to be served at least 10 days before production under the subpoena is required. Rule 15A.04(3).
Subpoenas must be served in accordance with Part 6 of the Rules. Subpoenas requiring attendance must be served by hand. Subpoenas requiring production of documents only may be served by ordinary service. Copies of the subpoena must be served by ordinary service on other parties, interested persons and the independent children’s lawyer (if appointed). Rule 15A.06.
A party is limited to issuing 5 subpoenas in a proceeding unless the Court directs otherwise. Rule 15A.05.
Part 15A outlines further detail in respect to subpoenas.
Part 5, Rules 5.01 to 5.03 deals with urgent applications and the manner in which they can be brought before the Court.
An application to deal with an urgent matter is to be accompanied by a draft of the order sought and can be made on the initiating application or any form approved for use in the Court.
In an urgent case where service on the respondent is not possible, on application the Court may make an order until a specified time or until further order.
Evidence on urgent applications shall be by way of affidavit or orally with the leave of the Court. Rule 5.03 details the information that is required by the Court in dealing with urgent applications.
How to end a proceeding early
Pursuant to Rule 13.01 a party may discontinue an application or a response by filing a notice of discontinuance in accordance with the approved form.
A party discontinuing an application or part of an application may be liable for costs. Rule 13.02. Subrule 44.15 (2) sets out costs for discontinuance in migration matters.
What happens if Court directions are not complied with?
It will always be possible for a party to bring a matter back to the Court after the first court date if there is non compliance with procedural matters or court directions. Parties are encouraged to ensure that compliance occurs to minimise the number of times that the parties need to attend court. There are costs or other penalties that can be applied by the Court when necessary.
Can I get assistance from the Court?
The Federal Circuit Court will provide practical assistance about court procedures to litigants, so that cases can be resolved as speedily as possible. The Court cannot give legal advice.
The Court may refer parties for legal assistance pursuant to Part 12 Rules 12.01 to 12.07. The legal assistance is not a substitute for legal aid nor is it an indication that the Court has formed an opinion on the merits of the case. The Principal Registrar in Melbourne maintains a list of lawyers who will assist in the provision of this assistance. The list may be maintained for each particular registry. Currently, the only list relates to the Sydney registry where a pilot scheme is in operation. A separate information sheet is available from the Sydney registry about that scheme.
Parties are encouraged to attempt to resolve their disputes informally or to use the dispute resolution services that are available.
The rules in relation to costs can be found in Part 21 of the Federal Circuit Court Rules 2001.
There are some significant features of these cost rules:
Costs in bankruptcy proceedings
Unless the court otherwise orders, a party entitled to costs in bankruptcy proceedings in the Federal Circuit Court is entitled to costs in accordance with the Federal Court Rules (see Part 13 Federal Circuit Court (Bankruptcy) Rules 2006).
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Page Updated 12 April 2013