Twenty-six Federal Court Practice Notes came into operation with immediate effect on 25 October 2016. With all pre-existing practice notes and administrative notes being revoked, little room has been left for error.
For solicitors, as creatures of habit, reform of the court practices and procedures may be met with utter panic. But, the outlook is not so bleak. The Practice Notes are designed to be ‘friendlier’ and to simplify and streamline the Court’s practice documents into a single, nationally consistent practice.
So, what’s new?
While the reform of the National Court Framework (NCF) is extensive (and beyond the scope of this post), a brief overview of the structure of the reform provides a big picture view of where the courts are headed with the reform.
- The Central Practice Note (CPN) –sets out the key principles for case management and functions as the main guide for court users. All other practice notes are to be read together with the CPN.
- The National Practice Area Practice Notes (NPA PNs) – deal with NPA-specific case management principles and, among other things, provide for a concise pleading process together with an expedited hearing. The NPAs reflect the need for specialisation, both in terms of the registrars and judges assigned to case manage and hear cases, and the idiosyncrasies of case management. It is an ‘aces in their places’ approach.
- The General Practice Notes (GPNs) –17 in total – are to be read together with the CPN and NPAs and apply to cases across the NPAs or address administrative issues.
Naturally, the reform of the NCF has brought with it new practices and procedures. While practitioners will no doubt need some time to wrap their heads around these, from a practical perspective there a number of noteworthy changes that should be kept in mind when running matters in the Federal Courts:
- The new Practice Notes, as far as practically possible, apply to all proceedings including those filed before 25 October 2016. However, the Court has indicated that there will be a degree of flexibility in their application during the teething phase depending on the nature and stage of the case.
- The CPN now provides that the docket judge will generally hold a case management hearing within 5 weeks of filing and service of the originating process and requires (generally) that the solicitor with carriage of a case attend the first and any subsequent case management hearings.
- In terms of the Commercial & Corporations NPA, an originating application may be accompanied by a 5 page ‘concise statement’, followed by an expedited hearing. The Commercial & Corporations Practice Note also provides for two new discovery techniques – the Redfern and Memorial procedure.
- The Expert Evidence Practice Note requires that experts be provided with all relevant information (including information harmful to the party’s case) to enable the expert to prepare an independent report. Experts are also required to attach any instructions and documents that they have been instructed to consider to their report.
- A number of new guides and forms have been released in addition to the Practice Notes.
While the lack of any transition period may be uncomfortable for practitioners, practitioners have not been left in the lurch. The Court has (kindly) drawn up tables which cross reference where sections of the old practice notes are incorporated in the new practice notes and tables which cross reference those sections from the old practice and administrative notes that have been removed from the new practice notes. Given the extent of the reform, these will prove an invaluable tool during the initial phases of implementation. The Chief Justice has also promised that the Court will exercise “saint-like” patience as solicitors cut their teeth on the Practice Notes.
Time will be the ultimate litmus test of the NCF reform and the new Practice Notes. However, given the immediacy of the reform, practitioners should not rest on their laurels, but actively engage the Practice Notes to make the transition as smooth as possible.