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Case Management Handbook Law Council of Australia / Federal Court of Australia CASE MANAGEMENT HANDBOOK FEDERAL COURT OF AUSTRALIA CASE MANAGEMENT HANDBOOK 2 First published 2011. 2014 July – August: class actions, alternative dispute resolution and interlocutory applications chapters included; citations and hyperlinks checked and updated. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. CASE MANAGEMENT HANDBOOK 3 CHIEF JUSTICE’S CHAMBERS FEDERAL COURT OF AUSTRALIA FOREWORD As noted in the original Foreword by the Honourable Justice P A Keane who was then Chief Justice of the Federal Court of Australia, when this Handbook was first launched in 2011 it was a very important development in the ongoing dialogue between the Court and the legal practitioners who practise before it about how best to manage cases before the Court. Since then the Handbook has been expanded, and planning is well advanced to extend its coverage even further. It is a remarkable achievement of the Federal Litigation and Dispute Resolution Section of the Law Council of Australia and those members of that Section who have been involved in its development. The Handbook is a practical guide about case management in litigation in the Federal Court. It provides information, guidance and ideas and discusses various tools and techniques that are available to the Court, both generally and in particular jurisdictional areas. It has been developed by experienced practitioners and has drawn on the experience of judges of the Court. It is not surprising that the Handbook has been enthusiastically embraced by the profession. Not only is it now widely used, but it is often referred to in the course of proceedings in the Court as the source of procedural and other propositions being advanced. The further development of the Handbook that has occurred and is planned has made it, and will continue to make it, an even more valuable resource for practitioners in their day-to-day work. I commend this handbook to the profession. I hope all who practise in the Federal Court will use it to full advantage. As a final note, I have recently communicated to the profession that the Federal Court is currently undergoing a fundamental redesign, to ensure that it operates as a truly National Court based on key National Practice Areas, including the establishment of a Commercial and Corporations National Practice Area. This redesign will be ‘whole of Court’ and will see major improvements in efficiency, use of resources and case management processes. As part of the implementation of the National Court Framework, the Court will undertake extensive communication with the profession to ensure that its reformed National Court practice and procedure is communicated to the profession and that feedback and suggestions from the profession are taken into account as part of this process. J L B Allsop AO Chief Justice Federal Court of Australia December 2014 CASE MANAGEMENT HANDBOOK 4 TABLE OF CONTENTS ABBREVIATIONS ...............................................................................................................................................10 ACKNOWLEDGMENTS ....................................................................................................................................10 1. INTRODUCTION ........................................................................................................................................ 11 by John Sheahan QC .............................................................................................................................11 A THE SCOPE AND OBJECTS OF THE HANDBOOK .........................................................................11 2. BRIEF HISTORY OF THE COURT ...................................................................................................... 12 by John Sheahan QC .............................................................................................................................12 3. SOME GENERAL CONSIDERATIONS ............................................................................................ 15 by John Sheahan QC .............................................................................................................................15 A TIME IS MONEY ....................................................................................................................................15 B EFFICIENCY CANNOT BE LEFT TO THE PARTIES ..........................................................................15 C EFFICIENCY CANNOT BE LEFT TO THE LAWYERS .......................................................................16 D THE JUDICIAL ADVANTAGE ...............................................................................................................16 4. MECHANICS OF CASE MANAGEMENT ...................................................................................... 18 by John Sheahan QC .............................................................................................................................18 A THE FIRST DIRECTIONS HEARINGS .................................................................................................18 B DIRECTIONS HEARINGS GENERALLY ..............................................................................................19 C COMMUNICATION BETWEEN PARTIES AND THE COURT ..........................................................19 5. IDENTIFYING AND NARROWING THE ISSUES ....................................................................... 21 by Philip Crutchfield QC, Matthew Lees and Adam Rollnik ...............................................................21 A INTRODUCTION ...................................................................................................................................21 B SUMMARY ..............................................................................................................................................22 Pre-commencement costs .....................................................................................................................22 Case management orders ....................................................................................................................22 The first directions hearing and pleadings: statements of facts and contentions ............................22 C THE REQUIREMENT TO TAKE ‘GENUINE STEPS’ BEFORE COMMENCEMENT ......................23 The Civil Dispute Resolution Act 2011 (Cth) ........................................................................................23 D THE FIRST DIRECTIONS HEARING ....................................................................................................24 Purpose of the first directions hearing. ...............................................................................................24 A comparative example: the Commercial Court in the Supreme Court of Victoria. .......................25 Presumptive case management orders. .............................................................................................25 Defining and narrowing the issues. .....................................................................................................26 E IDENTIFYING THE ISSUES ..................................................................................................................27 Pleadings .................................................................................................................................................27 Particulars ................................................................................................................................................28 Adjuncts to pleadings ...........................................................................................................................28 Criticisms of pleadings ...........................................................................................................................29 Lists of issues in dispute/not in dispute ..............................................................................................29 Early production of key documents .....................................................................................................30 Concerns with the use of a list of issues in dispute. ...........................................................................30 Adoption of statements of facts and contentions in all matters? ......................................................30 CASE MANAGEMENT HANDBOOK 5 F ALL CARDS ON THE TABLE FROM DAY ONE? ...............................................................................31 G RESOLVING ISSUES ..............................................................................................................................31 Separate questions ................................................................................................................................31 Summary judgment of whole or part of the proceedings ..................................................................32 Reference of issues to a referee ............................................................................................................32 H MULTIPLE PROCEEDINGS ...................................................................................................................33 Consolidation etc. ................................................................................................................................33 6. ALTERNATIVE DISPUTE RESOLUTION .........................................................................................
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