Latest Dispute Resolution Law Updates in Australia for 2025
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Cth – The Federal Court issues a Media Statement concerning the use of artificial intelligence in proceedings
Date: 31 March 2025
Jurisdiction: Commonwealth – Federal Court of Australia
Abstract
On 28 March 2025, the Chief Justice of the Federal Court of Australia issued a Media Statement concerning the court’s ongoing consideration and discussion about the regulation of generative artificial intelligence (Gen AI) in proceedings.
The Statement indicates that the court is contemplating the development of either Guidelines or a Practice Note in relation to the use of Gen AI, with an emphasis on balancing the interests of the administration of justice with the responsible use of emergent technologies.
Prior to finalising its position, the court has foreshadowed an intention to consider the practice of other courts and consult with parties and the legal profession.
In the interim, the court has reminded practitioners that they remain responsible for the material tendered in proceedings and that any use of Gen AI must be responsible and conducted in a way that is consistent with their existing obligations to the court and other parties. The court further notes that practitioners and litigants are expected to properly disclose the use of Gen AI if required to do…
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Cth — The Federal Court determines a claim for litigation privilege by considering whether a party may reasonably anticipate proceedings while conducting an internal investigation (Holt v Mitsubishi Motors Corporation)
Date: 25 March 2025
Court: Federal Court of Australia – New South Wales District Registry
Judge(s): Raper J
Judgment date: 14 March 2025
Catchwords: Legal professional privilege – dominant purpose test in the context of reasonably apprehended or reasonably anticipated litigation – inspection of documents pursuant to the common law – interlocutory application
Abstract:
In Holt v Mitsubishi Motors Corporation [2025] FCA 191, the Federal Court of Australia considered a claim for litigation privilege over documents that were the subject of an application for orders for production and inspection. In considering the privilege claim, the court had to consider whether the documents were created in circumstances where litigation was “reasonably apprehended” or “reasonably anticipated” and if so, whether their creation was for the “dominant purpose” for use in that litigation. The claim for privilege arose in circumstances where the documents were created as part of an internal investigation prior to the commencement of a class action.
Background
In April 2018, Begovic initiated an application in the Victorian Civil and Administrative Tribunal (VCAT) concerning issues with…
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Vic – Magistrates’ Court Practice Direction No. 2 of 2025 commences operation in its Civil Jurisdiction
Date: 21 March 2025
Jurisdiction: Victoria
Abstract:
Practice Direction No. 2 of 2025 (Practice Direction) commenced operation in the Civil Jurisdiction of the Magistrates’ Court of Victoria on 10 February 2025.
The Practice Direction provides directions and guidance to practitioners and parties in the conduct of proceedings commenced across all venues of the court in the Civil Jurisdiction, including the WorkCover Division, Industrial Division and Federal Jurisdiction matters.
The Practice Direction addresses procedures and matters including issuing proceedings, self-represented litigants, court attendance, consent orders, ADR, applications, directions hearings, call-overs, and inspection of subpoenaed documents.
Practitioners should carefully review the new Practice Note to ensure compliance with procedural requirements in the court’s Civil Jurisdiction.
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Vic – County Court publishes new requirements and obligations concerning the use of artificial intelligence in the Common Law Division
Date: 19 March 2025
Jurisdiction: Victoria
Abstract:
On 5 March 2025, the County Court of Victoria published Common Law Division Practice Note PNCLD 1-2025 (PNCLD 1-2025), which applies to all parties, practitioners, expert witnesses and lay witnesses involved in proceedings in the Common Law Division of the court on and from 17 March 2025 and imposes new requirements and obligations concerning the use of artificial intelligence (AI).
Specifically, PNCLD 1-2025 provides at [3.5] to [3.8] that:
- all parties, practitioners and witnesses (expert and lay) must comply with the court’s Guidelines for Litigants: Responsible Use of Artificial Intelligence;
- there are a number of risks associated with the use of AI;
- those persons who prepare, file or rely upon a document in court have a primary obligation to ensure that the document is accurate and not misleading, including by ensuring that:
-
- any legislation or cases referred to exist;
- any summaries or extracts from legislation or case law are accurately described;
- any affidavits or witness statements represent the actual testimony of the deponent or witness and are written in the deponent…
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Vic - County Court publishes new Common Law Division Practice Note and Standard Orders Booklet
Date: 19 March 2025
Jurisdiction: Victoria
Abstract:
The County Court of Victoria has published a new Common Law Division Practice Note PNCLD 1-2025 (Practice Note) and an updated Common Law Division Standard Orders Booklet (Standard Orders), both of which commenced operation on 17 March 2025.
Common Law Division Practice Note
The new Practice Note was published on 5 March 2025 and consolidates all 20 existing practice notes into a single, comprehensive note that provides guidance on procedures for all proceedings in the Common Law Division.
The Practice Note is divided into five parts, namely:
- Part 1, which introduces the Common Law Division and provides general information about judicial officers and court staff, methods of communicating with the court and expectations on parties and practitioners;
- Part 2, which sets out the standard and specific practices that apply to proceedings in the Civil Claims Lists of the Common Law Division, specifically:
- the General List;
- the Serious Injury List;
- the WorkCover List;
- the Medical List;
- the Institutional Liability List;
- the Defamation List; and
- the Family Property List.
- Part 3, which sets…
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Cth – Administrative Review Tribunal publishes inaugural corporate plan
Date: 11 March 2025
Jurisdiction: Commonwealth
Abstract:
On 3 March 2025, the Administrative Review Tribunal (ART) published its inaugural corporate plan for 2024-25 to 2027-28 (Corporate Plan).
The Corporate Plan is published in accordance with the Public Governance, Performance and Accountability Act 2013 (Cth) and covers the first four years of the ART’s operation, which commenced on 14 October 2024.
By way of summary, the Corporation Plan also:
- sets out the priorities of the ART during this four-year period and provides an explanation of how the Tribunal intends to achieve its statutory objectives, with a focus on the following “Key Activities”:
- key activity 1: undertaking merits review of administrative decisions in accordance with the Administrative Review Tribunal Act 2024(Cth);
- key activity 2: improving transparency and quality of government decision-making; and
- key activity 3: promoting public trust and confidence in the ART.
- provides an overview of the operating context of the ART, including legislative and policy factors, its technological limitations (including its ageing case management system inherited from the Administrative Appeals Tribunal) and its organisational structure; and
- provides a performance framework for how the ART will measure its own…
Cth – Legislation supporting the establishment of the new Administrative Appeals Tribunal commences operation
Date: 5 March 2025
Source: Federal Register of Legislation
Jurisdiction: Commonwealth
Status: In operation
Abstract:
On 20 February 2025, the Administrative Review Tribunal (Miscellaneous Measures) Act 2025 (Cth) (Act) received Royal Assent.
As of 21 February 2025, the bulk of the provisions of the Act commenced operation. Part 3 of Schedule 3 of the Act, which pertains to veterans’ affairs legislation, commences on 21 April 2025, subject to the commencement of related legislation.
As explained by the Explanatory Memorandum, the Act:
- is part of a package of legislation that abolishes the Administrative Appeals Tribunal (AAT) and establishes the Administrative Review Tribunal (ART), which is the new federal administrative review body that commenced operation in October 2024;
- amends 52 Commonwealth Acts (including the Administrative Review Tribunal Act 2024 (Cth)) to update references to the AAT in legislation and to make technical amendments to support the efficient conduct of the ART.
An example of one of the amendments is to exclude the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the ART to the…
WA – Supreme Court seeks consultation on the development of a practice note on the use of artificial intelligence in court proceedings
Date: 3 March 2025
Jurisdiction: Western Australia
Abstract:
On 27 February 2025, the Supreme Court of Western Australia published a consultation note concerning its intention to develop a practice direction on the use of artificial intelligence (AI) by the legal profession in court proceedings (Consultation Note).
The stated purpose of the Consultation Note is to obtain submissions from the profession and other stakeholders concerning the appropriate use of generative AI by the legal profession in proceedings, and the content of any applicable practice direction.
The Consultation Note:
- provides a summary of relevant guidelines and practice directions issued in other jurisdictions, both in Australia and internationally;
- outlines the court’s concerns as to the limitations and pitfalls associated with the use of generative AI in proceedings; and
- poses a series of questions for legal professionals and other stakeholders, including how generative AI is currently being used by the profession and whether any practice directions should be proscriptive or in the form of guidelines or a practice note.
The court has requested that submissions in response to the Consultation Note be forwarded…
Cth — The Federal Court considers the reasonable steps required to be taken to compel attendance of a subpoenaed witness when applying to admit that witness’ affidavit into evidence (Australian Securities and Investments Commission v Money3 Loans Pty Ltd (Trial Ruling No 2 - Witness Unavailability))
Date: 27 February 2025
Court: Federal Court of Australia – Victorian District Registry
Judge(s): McElwaine J
Judgment date: 13 February 2025
Catchwords: Practice and procedure — Evidence Act — previous representation witness not available despite service of subpoena — whether all reasonable steps taken to compel witness to give evidence
Abstract:
The decision in Australian Securities and Investments Commission v Money3 Loans Pty Ltd (Trial Ruling No 2 - Witness Unavailability) [2025] FCA 110 concerned a ruling on the admissibility of an affidavit made by a witness who refused to attend court to give evidence, notwithstanding that she had been subpoenaed (Witness). The court had to determine whether the applicant, the Australian Securities and Investments Commission (ASIC) had taken all reasonable steps to compel the Witness to attend to give evidence and whether it had given the respondent reasonable notice of its intention to adduce her affidavit as required by s 67 of the Evidence Act 1995 (Cth) (Act)…
Cth – Federal Court considers the variation of freezing orders to require payment into court by reason of a material change in circumstances (Zhang v Zhang (No 2))
Date: 25 February 2025
Court: Federal Court of Australia – Victorian District Registry
Judge(s): Neskovcin J
Judgment date: 19 February 2025
Catchwords: Practice and procedure – freezing orders – where material change of circumstances since the application for freezing orders – whether circumstances justified variation of freezing orders
Abstract:
In Zhang v Zhang (No 2) [2025] FCA 98, the Federal Court of Australia considered an application to vary freezing orders initially made against James Tenghui Zhang (James).The freezing orders were made to prevent James from removing or disposing of assets within Australia in circumstances where the respondents alleged that James might dissipate his assets to frustrate potential claims against him. Following a series of transactions concerning James’ assets, the respondents applied to vary the orders on the basis that there had been a material change in circumstances.
Background
On 6 October 2023, Beach J made freezing orders against James from removing or dissipating his assets in Australia, up to a value of $7,334,167.33. The orders, made pursuant to rr 7.32 and 7.33 of the Federal Court Rules…
Cth – Federal Court judge recuses himself on ground of apprehended bias after appearing as counsel in the proceedings prior to his appointment to the Bench (Greensill Bank AG v Insurance Australia Limited)
Date: 21 February 2025
Court: Federal Court of Australia – New South Wales District Registry
Judge(s): Moore J
Judgment date: 20 February 2025
Catchwords: Practice and procedure – application for disqualification of a judge on the ground of apprehended bias – whether a fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of proceeding – where judge appeared as counsel in an interlocutory application
Abstract:
In Greensill Bank AG v Insurance Australia Limited [2025] FCA 95, Greensill Bank AG (in administration) and Dr Michael Frege (as Insolvency Administrator) (Greensill parties) brought an application for a judge of the Federal Court of Australia to recuse himself on the ground of apprehended bias, in circumstances where the judge appeared as counsel in an interlocutory application in the proceedings prior to his appointment to the court.
Background
On 11 November 2024, the judge appeared as senior counsel for Marsh Limited and Marsh Pty Limited (Marsh entities) in an interlocutory application in the ten related “Greensill proceedings” (Greensill…
NSW – Reissued Supreme Court Practice Note SC EQ 3 clarifies process for applications for leave to use generative AI in the preparation of evidence
Date: 12 February 2025
Jurisdiction: New South Wales
Abstract:
The Supreme Court of New South Wales has reissued Practice Note SC EQ 3 – Commercial List and Technology and Construction List (Reissued SC EQ 3) with several amendments, including new paragraphs that clarify the procedure for applications for leave to use generative artificial intelligence (Gen AI) to prepare or generate certain evidentiary documents.
Reissued SC EQ 3 took effect from 3 March 2025 and implements the following changes:
- Adding new paragraphs 27 to 29, which:
- outline the procedural requirements for the settlement of a motion; and
- clarify that a motion is required when applying for leave to use Gen AI to prepare or generate certain documents (see below for further detail).
- Adding paragraphs 67 and 68, which set out the requirements for appropriate communication with the court;
- Updating paragraphs 13 to 15 in the ‘Usual Order for Hearing’ in Annexure 3 to clarify the format and types of documents required to be filed with the court.
Applying for leave to use Gen AI
As discussed…
Cth - Federal Court reissues fourteen Practice Notes to reflect interim procedures for urgent duty applications
Date: 12 February 2025
Jurisdiction: Commonwealth
Abstract:
On 7 February 2025, the Federal Court of Australia reissued fourteen Practice Notes to reflect the new interim procedures for urgent duty applications pursuant to its three-region trial.
For further information about the court’s trial of the new procedures for urgent duty applications, refer to its Notice to the Profession, new general Practice Note Duty (Urgent) Applications Interim Practice Note for 3 Region Trial (GPN-DUTY) and to our prior Latest Legal Update.
The Practice Notes reissued on 7 February 2025 are as follows:
- Central Practice Note: National Court Framework and Case Management (CPN-1);
- Administrative and constitutional law and human rights (ACLHR-1);
- Admiralty and maritime (A&M-1);
- Commercial and corporations (C&C-1);
- Commercial arbitration (CA-1);
- Employment and industrial relations (E&IR-1);
- General and personal insolvency sub-area (GPI-1);
- Intellectual property (IP-1);
- Migration (MIG-1);
- Migration - Removal from Australia of immigration detainees who have proceedings before the Court (MIG-2);
- Native title (NT-1);
- Taxation (TAX-1);
- Freezing orders (GPN-FRZG); and
- Search orders (GPN-SRCH).
The trial of the new approach to urgent duty applications commenced on 3 February 2025 and is expected to conclude at the…
Cth – Federal Court issues new Practice Note GPN-DUTY and Notice to the Profession regarding trial for duty (urgent) applications
Date: 10 February 2025
Jurisdiction: New South Wales
Abstract:
The Federal Court of Australia has issued a Notice to the Profession outlining its three-region trial of a new approach for listing and determining duty (urgent) applications in all registries.
The court has also published a new general practice note Duty (Urgent) Applications Interim Practice Note for 3 Region Trial (GPN-DUTY).
The stated purpose of the trial is to improve the management of the listing and determination of urgent duty work, with a view to more evenly distributing the duty (urgent) work across all judges in all registries while ensuring that sufficient resources are available to determine genuinely urgent applications quickly and efficiently.
Operation of trial
The trial commenced on 3 February 2025 and functions with reference to three duty regions, with each region comprising several registries and operating according to its own independent duty roster.
The court expects to consult with members of the profession after the end of the 2025 court term, with any resultant changes to be trialled in the 2026 sitting period.
Upon completion of the trial period…
NSW — Uniform Civil Procedure Rules 2005 amended to regulate the use of generative AI in civil proceedings
Date: 3 February 2025
Source: New South Wales legislation
Jurisdiction: New South Wales
Status: In operation
Abstract:
On 3 February 2025, the Uniform Civil Procedure (Amendment No 104) Rule 2025 (Amendment Rule) came into operation, implementing new prohibitions and requirements in relation to the use of generative artificial intelligence (Gen AI).
The Amendment Rule implements amendments to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to align the UCPR with the requirements of Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) (SC Gen 23), which also commenced operation on 3 February 2025.
In broad summary, the Amendment Rule implements the following changes to civil procedure in New South Wales courts:
Witness statements
- The inclusion of new rr 31.4(3A), (3B) and (3C), which:
- prohibit the use of Gen AI to generate the content of a witness statement, including by altering, embellishing, strengthening, diluting or rephrasing a witness’s evidence;
- require witness statements to include a statement that Gen AI was not used to generate the content of the witness statement; and
- prohibit the use of Gen AI to…
Vic — Supreme Court launches new centralised registry on 3 February 2025
Date: 30 January 2025
Jurisdiction: Victoria
Abstract:
The Supreme Court of Victoria has announced that the court’s five registries shall combine into a single registry from 3 February 2025.
The court’s new registry structure combines the five following separate divisional registries into a single, central registry:
- the Principal Registry;
- the Court of Appeal Registry;
- the Criminal Registry;
- the Common Law Team; and
- the Commercial Court Registry.
The new central Supreme Court Registry will have two arms, namely:
- the Civil Arm, which will support the Common Law Division, the Commercial Court, the Costs Court, and incorporate the Office of the Prothonotary; and
- the Appeals & Crime arm, which will support the Court of Appeal and the Criminal Division.
The court has advised that from 3 February 2025, phone enquiries will be open between 9am and 4.30pm on unchanged contact numbers.
Practitioners should review the court’s website to confirm current contact email addresses, as some contacts will change under the new structure.
NSW – Supreme Court issues amended Practice Note to regulate the use of generative AI in court proceedings
Date: 28 January 2025
Jurisdiction: New South Wales
Abstract:
On 28 January 2025, the Chief Justice of New South Wales issued Amended Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) (Amended SC Gen 23).
Amended SC Gen 23 replaces the original version of the Practice Note issued on 21 November 2024 and commences operation on 3 February 2025.
The amended Practice Note regulates the use of generative AI (both closed-source and open-source large language models) (Gen AI) in all proceedings in the Supreme Court of New South Wales. For a summary of the contents of the original version of the Practice Note, refer to our prior Latest Legal Update.
Amended SC Gen 23 is largely identical to the original Practice Note save for a few significant amendments, including:
- the amendment of [6]:
- to exempt technology or functionality that merely provides translation of documents;
- with the effect that technology or functionality that “generates chronologies from original source documents” is no longer excluded from the operation of the Practice Note on definitional grounds (rather, such technology is now expressly…
SA — Significant amendments to the Uniform Civil Rules 2020 commenced on 1 January 2025
Date: 16 January 2025
Source: South Australian Gazette
Jurisdiction: South Australia
Status: In operation
Abstract:
On 1 January 2025, the Uniform Civil Rules 2020 (SA) (UCR) were amended by operation of the Uniform Civil (No 13) Amending Rules 2024 (Amending Rules).
The Amending Rules are substantially in the form previously implemented by Uniform Civil (No 11) Amending Rules 2024, (and then promptly revoked by Uniform Civil (No 12) Amending Rules 2024 late last year), however with some further changes.
The Amending Rules provide for the inclusion in the UCR of new rules regulating procedure in the Youth Court, the Environment, Resources and Development Court (ERD Court), and the Court of Disputed Returns. The procedure for probate proceedings has also been amended and included in the UCR.
The Amending Rules repealed the Environment, Resources and Development Court Reinstated Rules 2024, Environment, Resources and Development Court (Native Title) Reinstated Rules 2024, First Nations Voice Court of Disputed Returns Reinstated Rules 2024, Probate Rules 2015, and Supplementary Probate Rules 2015. The Warden’s Court Reinstated Rules 2024 remain in force.
The Amending Rules also implement a significant number of procedural…
NSW – District Court adopts Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI)
Date: 15 January 2025
Jurisdiction: New South Wales
Abstract:
On 18 December 2024, the Chief Judge of the District Court of New South Wales issued District Court General Practice Note 2 – Generative AI Practice Note and Judicial Guidelines, which adopts Supreme Court Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) (SC Gen 23).
SC Gen 23 takes effect in the Supreme Court and the District Court on and from 3 February 2025 and regulates the use of generative AI (both closed-source and open-source large language models) in all proceedings in those courts.
For further information about SC Gen 23, refer to our previous Latest Legal Update.
Vic – New time-based scale of costs becomes operative in the Supreme Court and County Court on and from 1 January 2025
Date: 14 January 2025
Jurisdiction: Victoria
Source: County Court of Victoria
Abstract:
From 1 January 2025, a new time-based scale of costs applies to matters in the Supreme Court of Victoria and the County Court of Victoria when taxing costs on a party party basis.
The new time-based scale, which is found at Appendix A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Supreme Court Rules), replaces the previous scale that was based principally on items of legal work or legal services, and applies to work performed on and from 1 January 2025.
The new scale is divided into 9 sections, including:
- Section 1, which applies where an entitled party has been charged by a law practice on the basis of hourly rates for work done. Section 1 provides that the costs payable to the entitled party are allowed on the basis of reasonable hourly rates.
- Section 2, which sets out matters to which the court may have regard in determining reasonableness.
- Section 3, which provides that where the entitled party has not been charged based on…
Legal profession regulators issue joint statement regarding ethical and responsible use of AI by lawyers
Date: 6 December 2024
Source: Law Society of New South Wales
Abstract:
A new Statement on the use of AI in Australian legal practice (Statement) has been jointly issued by legal profession regulators in Uniform Law states, namely the Law Society of New South Wales (LSNSW), the Legal Practice Board of Western Australia (LPBWA), and the Victorian Legal Services Board and Commissioner (VLSBC).
The Statement is based on the ethical conduct rules and duties that legally bind practitioners, and applies to solicitors in New South Wales, and to solicitors and barristers in Victoria and Western Australia.
Statement on the use of AI by lawyers
The Statement contains a set of common principles to guide lawyers in their use of artificial intelligence (AI), with the aim of protecting clients from risk, ensuring that AI is used for the benefit of clients, and preserving the proper administration of justice.
A number of the principles align with practitioners’ duties to maintain high ethical standards and comply with their professional obligations under the Legal Profession Uniform Law (Uniform Law), and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules…
Cth – Federal Court upholds public interest immunity claim and dismisses application for restricted counsel procedure (AIX20 v Director-General of Security (No 2))
Date: 4 December 2024
Court: Federal Court of Australia – Victoria Registry
Judge(s): Dowling J
Judgement date: 26 September 2024
Catchwords: Practice and procedure – Application for restricted counsel procedure dismissed – public interest immunity claim upheld
Abstract:
In AIX20 v Director-General of Security (No 2) [2024] FCA 1130, the court was required to consider the respondent’s claim for public interest immunity over certain discovered documents. The claim was made on the basis that disclosure of the documents would prejudice the public interest in national security. The application also involved the applicant’s submission that the documents be disclosed only to named security cleared counsel, subject to an undertaking given by them, and used only in closed court and subject to suppression and non-publication orders (restricted counsel procedure). In considering the application, the court set out the principles for a public interest immunity claim and for the restricted counsel procedure. The court upheld the claim of public interest immunity and dismissed the application for the restricted counsel procedure.
Background
In the substantive proceeding the applicant alleged that the Director-General breached the duty…
NSW – Supreme Court broadcasts briefing on generative AI
Date: 4 December 2024
Jurisdiction: New South Wales
Source: Supreme Court of New South Wales
Abstract:
On 2 December 2024, the Supreme Court of New South Wales published a live broadcast of their briefing to the legal profession concerning generative artificial intelligence (Gen AI).
The briefing was delivered by the Honourable Chief Justice Bell, the Honourable Justice Garling RFD and Principal Registrar Kenna.
The purpose of the briefing was to provide further information regarding the purpose and operation of the court’s Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI), which was issued on 21 November 2024 and takes effect on 3 February 2025.
For a summary of the requirements and prohibitions contemplated by the new Practice Note, refer to our prior Latest Legal Update.
An archived broadcast of the court’s briefing may be found on the Supreme Court of New South Wales YouTube channel.
NSW – Land and Environment Court issues new Practice Note – Use of Generative Artificial Intelligence (Gen AI)
Date: 3 December 2024
Jurisdiction: New South Wales
Abstract:
On 28 November 2024, the Chief Judge of the Land and Environment Court of New South Wales issued Practice Note – Use of Generative Artificial Intelligence (Gen AI) (Practice Note).
The Practice Note takes effect on and from 3 February 2025 and regulates the use of generative artificial intelligence (Gen AI) in all proceedings in the Land and Environment Court.
The wording of the Practice Note replicates the substance of Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) (SC Gen 23), which was issued by the Chief Justice of the Supreme Court of New South Wales on 21 November 2024.
The Practice Note omits the wording contained at [23] of SC Gen 23, which pertains to the use of Gen AI when preparing expert reports in professional negligence claims.
For an overview of the key requirements and prohibitions contemplated by SC Gen 23, refer to our prior Latest Legal Update.
For further information, refer to the full text of Practice Note – Use of Generative Artificial Intelligence (Gen AI).
Vic – Supreme Court issues Practice Note SC Gen 11 Costs Court (Third Revision) to reflect current practice and impending changes to costs regime
Date: 3 December 2024
Jurisdiction: Victoria
Source: Supreme Court of Victoria
Abstract:
On 29 November 2024, the Supreme Court of Victoria issued Practice Note SC Gen 11 Costs Court (Third Revision) (Third Revision).
The Third Revision takes effect on 1 January 2025 and replaces the previous version (the Second Revision), which commenced on 1 October 2018.
Background to Third Revision
The publication of the Third Revision occurs in the context of the following matters:
- on 30 November 2023, the court endorsed a new time-based Scale of Costs to be incorporated as Appendix A into the Supreme Court (General Civil Procedure) Rules 2015 (Rules) on and from 1 January 2025 (refer to our prior Latest Legal Update);
- on 5 September 2024, the court published the Supreme Court (Chapter 1 Costs Amendment) Rules 2024 (Vic) (Amendment Rules), which provide for the new time-based costing scale and implement consequential changes to the Rules (refer to our prior Latest Legal Update);
- on 25 September 2024, the court published a Notice to the Profession regarding the Amendment Rules and the impact of…
NSW – Supreme Court issues new Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI)
Date: 22 November 2024
Jurisdiction: New South Wales
Abstract:
On 21 November 2024, the Chief Justice of the Supreme Court of New South Wales issued Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) (SC Gen 23), following a detailed review of practice notes issued in other jurisdictions and consultation with the New South Wales Bar Association and the Law Society of New South Wales.
SC Gen 23, which is effective on and from 3 February 2025, regulates the use of generative AI (both closed-source and open-source large language models) in all proceedings in the Supreme Court of New South Wales.
Alongside SC Gen 23, the Chief Justice has also issued Guidelines for New South Wales judges in relation to the use of Gen AI (which are attached to the practice note).
SC Gen 23 – Notable provisions
At [7], SC Gen 23 sets out the limits, risks and shortcoming of generative AI that practitioners and litigants should be mindful of.
SC Gen 23 also sets out clear and express prohibitions, including:
*a prohibition on entering any of the following into…
SA — Courts Administration Authority releases Strategic Plan for 2024-2028
Date: 20 November 2024
Source: Courts Administration Authority of South Australia
On 14 November 2024, the Courts Administration Authority of South Australia (CAA) released its Strategic Plan 2024-2028 (Strategic Plan).
The Strategic Plan establishes a focus on three key pillars that reflect the CAA’s aim to modernise the court system and improve accessibility, namely:
- Enhancing access to justice by:
- ensuring that the perspectives and needs of the courts and court users factor into decision-making;
- enhancing public engagement and understanding by promoting clear communication with court users and the public;
- maintaining and improving the safety and security of the courts; and
- enhancing specialised court services that are tailored to meet the needs of diverse cohorts, ensuring equitable access to justice, and fostering a better experience for all court users.
- Optimising resources by:
- harnessing staff knowledge and collaboration;
- leveraging innovative technologies;
- building staff capability and establishing a corporate governance environment that supports integrity and timeliness; and
- fostering a culture of decision-making based on data, evidence, best practice, and internal expertise.
- Excellence in serving courts and the community by:
- strengthening business and operating models;
- modernizing…
Cth — Federal Court grants costs certificates for an appeal and new trial in a no costs jurisdiction due to judicial error (Atanaskovic Hartnell Corporate Services Pty Limited v Kelly (No 2))
Date: 18 November 2024
Court: Federal Court of Australia – New South Wales District Registry
Judge(s): Collier, Logan and Goodman JJ
Judgment date: 14 November 2024
Catchwords: Costs – Costs certificates under ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Judicial error – No costs jurisdiction
Abstract:
In Atanaskovic Hartnell Corporate Services Pty Limited v Kelly (No 2) [2024] FCAFC 147 (Atanaskovic (No 2)), the Full Court of the Federal Court of Australia granted costs certificates under ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act) for the costs of an appeal and a new trial in a Fair Work matter, in circumstances where the reasons of the first primary judge were an unattributed, wholesale copy and paste of a party’s written closing submissions.
Background
On 31 October 2024, the Full Court in Atanaskovic Hartnell Corporate Services Pty Limited v Kelly [2024] FCAFC 137 (Atanaskovic (No 1)) made orders:
- allowing an appeal from a decision of a judge of the Federal Circuit and…
Cth – Federal Court considers approval of settlement of Michel’s Patisserie class action in circumstances where some group members receive less benefit than others (Trimuryani v Retail Food Group Limited)
Date: 14 November 2024
Court: Federal Court of Australia
Judge(s): Anderson J
Judgment date: 31 October 2024
Catchwords: Representative proceedings – approval of settlement of a representative proceeding – where some group members receiving a greater benefit than other group members
Abstract:
In Trimuryani v Retail Food Group Limited [2024] FCA 1282, the Federal Court of Australia had to consider an application for approval of the settlement of a class action proceeding commenced by franchisees against the franchisors in relation to the Michel’s Patisserie franchise. The court had to consider the principles that bear upon the approval of class action settlements in circumstances where the settlement proposal contemplated that some group members would receive less than others and comprised “a walk away.”
Background
The lead applicant commenced a class action proceeding against Retail Food Group Limited and others (respondents) in October 2021 concerning the respondents’ conduct in relation to the Michel’s Patisserie franchise between 15 October 2015 and 30 August 2019.
Among other things, the applicant claimed that the respondents had engaged in…
Cth – Federal Court notifies practitioners of allocation and listing procedures for Corporations List matters
Date: 14 November 2024
Jurisdiction: Commonwealth
Abstract:
On 13 November 2024, the Federal Court of Australia issued a Notice to the Profession outlining the procedures for the allocation and listing of matters in the Corporations List.
The notice outlines the relevant procedures for corporations matters filed in the New South Wales, Victorian, Queensland, and West Australian registries. The notice also confirms that the weekly Corporations List in the South Australian registry has ceased to operate and that corporations matters filed in that registry will be immediately allocated to a docket judge for case management and hearing.
More generally, the notice provides that Corporations List matters will be conducted on the basis that:.
- short matters (ie, hearings up to two hours) will typically be heard and determined when first returned or shortly thereafter;
- longer matters will be programmed for hearing and allocated to a docket judge for hearing on a date to be fixed by that judge; and
- matters may be referred to a registrar, where appropriate.
In circumstances where a matter is immediately allocated to a docket judge (and not made returnable in the Corporations List)…
Vic — VCAT announces new Rental Dispute Resolution Victoria service
Date: 4 November 2024
Jurisdiction: Victoria
Abstract:
The Victorian Civil and Administrative Tribunal (VCAT) has announced the establishment of Rental Dispute Resolution Victoria (RDRV), a new service that is anticipated to launch in June 2025.
VCAT’s statement regarding RDRV follows the announcement by the Victorian Government on 26 October 2024.
According to VCAT’s statement, RDRV is intended to provide a “fast, cheap, fair one-stop shop for renters and rental providers to resolve their disputes”.
RDRV will sit in the VCAT and will also refer disputes to Consumer Affairs Victoria for compliance and enforcement action. RDRV will introduce operational differences to the current Residential Tenancies List in VCAT, including:
- Non-judicial staff to manage, aid and resolve early resolution of disputes;
- Phone and online services to resolve disputes without having to attend VCAT; and
- Introduction of dedicated case managers to manage cases.
It is anticipated that legislation will be introduced shortly to empower RDRV to make binding and enforceable orders in relation to rental disputes.
For further information about RDRV, refer to the announcements issued by VCAT, the Victorian Government and Tenant’s Victoria.
Cth – Federal Court considers whether to permit cross-examination deponents of affidavits concerning discovery (INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 3))
Date: 31 October 2024
Court: Federal Court of Australia
Judge(s): Banks-Smith J
Judgment date: 22 October 2024
Catchwords: Practice and procedure — Whether applicants should be permitted to cross-examine deponents of affidavits relating to discovery regime — Discovery proceeded according to categories — continuing obligations of parties and lawyers in relation to discovery
Abstract:
In INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 3) [2024] FCA 1221, the Federal Court of Australia had to consider whether to permit cross-examination of deponents of affidavits concerning the regime for discovery in the proceeding, including the respondent’s solicitor, in circumstances where the applicants submitted that the respondent had made inadequate discovery.
Background
The application for leave to cross-examine the deponents of the respondent’s discovery affidavits arose in the context of two concurrent actions against the respondents concerning the supply and use of a defective coating material on piping and equipment on the Ichthys LNG Gas Field Onshore Project in Darwin.
By the time of the application, the liability phase of the trial was largely complete with some discrete matters remaining to be…
Cth – Federal Court publishes Next Generation Initiative Practice Note (GPN-NGI)
Date: 30 October 2024
Jurisdiction: Commonwealth
Abstract:
On 30 October 2024, the Federal Court of Australia published new Next Generation Initiative Practice Note (GPN-NGI).
The court has also issued a Notice to the Profession to provide background to the new practice note, explaining that the court is concerned to encourage practitioners and their clients to consider when and how junior counsel could receive further opportunities to develop and hone their advocacy skills.
GPN-NGI provides, in part, that: “…where two or more counsel are briefed, the Federal Court encourages parties to provide appropriate opportunities for junior counsel to take a substantive speaking role in first instance applications, trials, and appeals.”
The court intends to collect high level data on substantive speaking roles allocated to junior counsel during Full Court and Appellate sittings to assess the impact of the Next Generation Initiative and publish this data (without identifying details) in its Annual Report.
For further information about the Next Generation Initiative, refer to the court’s Notice to the Profession and to the full text of GPN-NGI.
NSW – Supreme Court reissues Practice Note SC EQ 4 Corporations List
Date: 29 October 2024
Jurisdiction: New South Wales
Source: Supreme Court of New South Wales
Abstract:
On 10 October 2024, the Supreme Court of New South Wales reissued Practice Note SC EQ 4 Corporations List (Reissued SC EQ 4).
Reissued SC EQ 4 commenced operation on 17 October 2024 and replaces the previous version issued on 13 October 2023.
Paragraph 12 of Reissued SC EQ 4 now permits the use of concise statements in narrative form when commencing proceedings in Corporations Matters, with a view to promoting consistency of practice. Concise statements must identify the key issues and facts in dispute and the nature of the relief sought.
Cth – Seven Network applies to the Federal Court for suppression and non-publication of pleadings in claim commenced by former “Spotlight” journalist (Saw v Seven Network (Operations) Ltd [2024] FCA 1210)
Date: 25 October 2024
Court: Federal Court of Australia
Judge(s): Perram J
Judgment date: 18 October 2024
Catchwords: Practice and procedure – suppression and non-publication orders – mediation yet to occur – whether disclosure of pleadings imperils mediation – whether orders are necessary
Abstract:
In Saw v Seven Network (Operations) Ltd [2024] FCA 1210, Seven Network (Operations) Ltd (Seven) filed an interlocutory application for suppression and non-publication orders to prevent the applicant’s pleadings from becoming public. In determining the application, the court considered whether the requirements of s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) were satisfied and whether the orders sought were necessary to prevent prejudice to the proper administration of justice.
Background
Seven’s interlocutory application was filed in a proceeding commenced by Amelia Saw (applicant), a journalist who was formerly employed by Seven on its current affairs program, “Spotlight”. The applicant’s proceeding concerned claims that Seven had contravened the Fair Work Act 2009 (Cth) (FW Act).
The applicant commenced her proceeding on 6 September 2024 and filed…
Cth – Federal Court updates Practice Notes to reflect commencement of Administrative Review Tribunal
Date: 16 October 2024
Jurisdiction: Commonwealth
Source: Federal Court of Australia
Abstract:
The Federal Court of Australia has updated its Practice Notes to reflect the commencement of the Administrative Review Tribunal (ART) on 14 October 2024.
In particular, the court has updated the following Practice Notes:
- Administrative and constitutional law and human rights (ACLHR-1);
- Admiralty and maritime (A&M-1);
- Employment and industrial relations (E&IR-1);
- Taxation (TAX-1);
- Consent orders involving a federal tribunal (GPN-TRIB);
- Lists of authorities and citations (GPN-AUTH); and
- Practice Note APP 2: Content of appeal books and preparation for hearing (APP 2).
In substance, the updates replace references and links to the now-replaced Administrative Appeals Tribunal.
Qld – Solicitors Conduct Rules 2012 amended and replaced with effect from 27 September 2024
Date: 15 October 2024
Jurisdiction: Queensland
Source: Legal Profession (Australian Solicitors Conduct Rules) Notice 2024
Abstract:
On 27 September 2024, the Australian Solicitors’ Conduct Rules 2023 (ASCR 2023) came into effect by notification under s 225(1) of the Legal Profession Act 2007 (Qld).
The ASCR 2023 replace the Australian Solicitors’ Conduct Rules 2012 (ASCR 2012) and implement a number of amendments.
Most of these amendments align with those which came into effect on 1 April 2022 in New South Wales, Victoria and South Australia (with some minor variations) and on 1 July 2022 in Western Australia.
The ASCR 2023 have retained the original wording of rules 23.2, 29.7, 29.12.5 and the glossary definitions of “Principal” and “Serious Criminal Offence” from the ASCR 2012. The ASCR 2023 also contain a slight modification to new rule 11A.
A copy of the (replaced) ASCR 2012 with changes tracked to reflect the amendments can be downloaded from the Queensland Law Society here.
Vic – Supreme Court quashes VCAT decisions concerning federal jurisdiction on appeal (Certain Underwriters at Lloyd's Subscribing to Policy Number P0003310PI2016AU0 v Shangri-La Construction Pty Ltd (In liq) [2024] VSC 556)
Date: 9 October 2024
Court: Supreme Court of Victoria
Judge(s): Garde J
Judgment date: 11 September 2024
Catchwords: Practice and procedure – Jurisdiction of the Victorian Civil and Administrative Tribunal – Tribunal lacking jurisdiction to hear and determine proceedings involving federal subject matter – Decision set aside
Abstract:
In Certain Underwriters at Lloyd's Subscribing to Policy Number P0003310PI2016AU0 v Shangri-La Construction Pty Ltd (In liq) [2024] VSC 556, the Supreme Court of Victoria had to consider an appeal from two decisions of the Victorian Civil and Administrative Tribunal (VCAT) that involved building defects and insurance claims under federal law. The court determined that VCAT lacked jurisdiction to hear and determine matters involving federal jurisdiction and quashed the tribunal’s decisions.
Background
The appeal concerned two decisions of VCAT regarding construction defects and insurance claims associated with the construction of residential apartments. The owners corporation and owners of those apartments made claims against the builder, with the builder subsequently making claims against other parties involved in the design and construction of those apartments.
A number…
Cth — The Federal Court appoints an independent referee to resolve interlocutory disputes (Finnegan v Washington (No 4))
Date: 7 October 2024
Court: Federal Court of Australia – WA District Registry
Judge(s): Jackson J
Judgment date: 6 September 2024
Catchwords: Practice and procedure – Referral to referee to prepare report on interlocutory disputes – Whether to adopt, vary or reject report – Principles applicable to court’s discretion
Abstract:
In Finnegan v Washington (No 4) [2024] FCA 1054, the Federal Court appointed an independent referee to prepare a report to resolve interlocutory disputes that had arisen between the parties. Upon receipt of the referee’s report, the court had to determine whether to exercise its discretion to adopt, vary or reject the referee’s recommendations concerning interrogatories, discovery and subpoenas.
Background
In this proceeding, the court made orders under s 54A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) to refer certain questions to a registrar acting as an independent referee.
The questions put to the referee concerned interlocutory disputes regarding the scope of discovery, whether interrogatories should be permitted, an application for leave to serve a subpoena internationally, and costs.
Pursuant to the appointment, the referee produced a report containing conclusions which found against…
NSW – Court of Appeal weighs in on drafting affidavit evidence of oral conversations (Wild v Meduri [2024] NSWCA 230)
Date: 4 October 2024
Court: New South Wales Court of Appeal
Judge(s): Bell CJ, White JA and Kirk JA
Judgment date: 26 September 2024
Catchwords: Evidence – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect”
Abstract:
The New South Wales Court of Appeal in Wild v Meduri [2024] NSWCA 230 has weighed in on the ongoing judicial debate regarding the drafting of affidavit evidence concerning oral conversations in which the witness only recalls “the gist”.
Background
The court’s decision in this matter arrives in the context of a series of decisions concerning the longstanding practice of solicitors in New South Wales to draft affidavit evidence of oral conversations using direct speech in circumstances where the witness does not recall the actual words used.
In the decision of Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 (Kane’s Hire), Jackman J in the Federal Court stated that the practice of giving evidence in first person…
Vic - Supreme Court publishes Notice to Profession regarding new time-based costs regime
Date: 30 September 2024
Jurisdiction: Victoria
Source: Supreme Court of Victoria
Abstract:
The Supreme Court of Victoria has published a Notice to Profession to provide information about upcoming amendments to the Supreme Court (General Civil Procedure) Rules 2015 (Supreme Court Rules) relating to legal costs that commence on 1 January 2025.
As discussed in our prior Latest Legal Update, these new rules serve to implement a new time-based scale of costs. When operational, the new scale will comprise Appendix A of Supreme Court Rules and replace the existing scale.
The Notice to Profession provides a detailed overview of how the practice of the Costs Court will change to reflect the new time-based costs regime.
The court has foreshadowed that it will issue a new version of Practice Note SC Gen 11 to accompany the amendments to the Supreme Court Rules commencing 1 January 2025 and reflect the significant developments in the practice of the Costs Court since 2018.
Practitioners should familiarise themselves with the contents of the Notice to Profession in anticipation of the new costs regime becoming operational on 1 January 2025.
Vic – The Supreme Court considers its power to vary a Group Costs Order for the first time (Allen & Anor v G8 Education Ltd (No 4))
Date: 24 September 2024
Court: Supreme Court of Victoria
Judge(s): Watson J
Judgment date: 28 August 2024
Catchwords: Representative proceedings – Application for approval of settlement – Whether group costs order should be varied – No reason to vary group costs order
Abstract:
In Allen & Anor v G8 Education Ltd (No 4) [2024] VSC 487, the Supreme Court of Victoria approved the settlement of a class action proceeding and in doing so, considered whether to vary a Group Costs Order made pursuant to s 33ZDA(3) of the Supreme Court Act 1986 (Vic) (SC Act), marking the first occasion on which the court has considered the variation of a Group Costs Order.
Background:
This class action concerned claims by group members who had purchased shares in G8 Education Ltd (G8) in 2017 to 2018 and who subsequently suffered financial loss when G8 downgraded its earnings forecast for 2017.
During the class action, the court made the first ever GCO under s 33ZDA of the SC Act on 26 November 2021 (GCO).
Section 33ZDA of the SC Act…
SA – Courts revoke recent amendments to Uniform Civil Rules 2020
Date: 24 September 2024
Jurisdiction: South Australia
Source: South Australian Government Gazette
Abstract:
With effect from 20 September 2024, SA Courts has revoked recent amendments to the Uniform Civil Rules 2020 (UCR) that commenced operation on 26 August 2024.
For details regarding the recent amendments to the UCR that are now revoked, refer to our prior Latest Legal Update.
SA Courts has indicated that the revocation of these amendments is due to the identification of a number of problems that are now the subject of review and rectification.
Pending the rectification of these issues, SA Courts has reinstated the version of the UCR that was in place immediately prior to the recent amendments taking effect.
To effect the reinstatement of the previous version of the UCR, the courts have resolved to make the Uniform Civil (No 12) Amending Rules 2024 in the form published in the South Australian Government Gazette.
Until such time as further amendments are implemented and the UCR are reissued, practitioners should be mindful of the revocation of the recent amendments and ensure that they comply with the reinstated rules in the form published in the Gazette.
WA — New uniform evidence legislation progresses to second reading
Date: 20 September 2024
Jurisdiction: Western Australia
Source: Parliament of Western Australia
Abstract:
On 19 September 2024, the Evidence Amendment Bill 2024 (Amendment Bill) progressed to a second reading in the Parliament of Western Australia.
As detailed in our prior Latest Legal Update, the Amendment Bill (alongside the accompanying Evidence Bill 2024) operates to repeal the Evidence Act 1906 and establish a new Evidence Act 2024 that more closely aligns with the uniform evidence legislation in force in the Commonwealth, New South Wales, Tasmania, Victoria, the Northern Territory and the Australian Capital Territory.
The accompanying Evidence Bill 2024 had both a first and second reading on 14 August 2024 and was subsequently referred to the Standing Committee on Uniform Legislation and Statutes Review, where it is currently under consideration.
The new Evidence Act 2024 shall come into operation on the day on which it receives Royal Assent (as to Part 1), with the balance of the Act coming into effect on a day (or days) fixed by proclamation.
The full text of the Evidence Bill 2024 as introduced is available here, as is the explanatory memorandum.
The full text of the…
Cth — New members appointed to the Administrative Appeals Tribunal and Administrative Review Tribunal ahead of its commencement on 14 October
Date: 19 September 2024
Jurisdiction: Commonwealth
Source: Attorney-General’s Department
Abstract:
The Attorney-General’s Department has announced new appointments to the Administrative Review Tribunal (ART) and the Administrative Appeals Tribunal (AAT) in the lead up to the commencement of the ART on 14 October 2024.
Six Senior Members, eight General Members and a Deputy President have been appointed to the ART, while nineteen new Members have been appointed to the AAT and will transition to the ART on 14 October.
The Attorney-General’s Department has indicated that each appointee was assessed as suitable for appointment by an independent assessment panel through a transparent and merit-based process.
Further information about the ART is available on the website of the Attorney-General’s Department.
Vic - Supreme Court publishes rules for new time-based scale of costs coming into effect from 1 January 2025
Date: 9 September 2024
Jurisdiction: Victoria
Source: Supreme Court of Victoria
Abstract:
The Supreme Court of Victoria has made rules for a new time-based scale of costs that will come into operation on 1 January 2025.
The publication of the Supreme Court (Chapter 1 Costs Amendment) Rules 2024 (Amendment Rules) follows the court’s Notice to the Profession issued on 1 December 2023 (covered in our prior Latest Legal Update).
The Amendment Rules provide for the new time-based costing scale and implement consequential changes to the Supreme Court (General Civil Procedure) Rules 2015 (Supreme Court Rules).
When operational, the new scale will comprise Appendix A of Supreme Court Rules and replace the existing scale.
The court has indicated that the Amendment Rules will be:
- accompanied by a Practice Note, to be published shortly; and
- the subject of information sessions to assist practitioners in preparing for their commencement.
Notably, the court has indicated that the Amendment Rules will not incorporate any timing of a sunset provision for the use of six-minute units, but that this issue remains under consideration.
SA – New Codes of Practice in relation to affidavits and statutory declarations commence operation in South Australia on 1 January 2025
Date: 30 August 2024
Jurisdiction: South Australia
Source: South Australian Gazette
Abstract:
On 1 January 2025, two new Codes of Practice in relation to affidavits and statutory declarations will commence operation in South Australia.
The Codes of Practice were published on 29 August 2024 in the Government Gazette (from page 3110) under s 33 of the Oaths Act 1936 (SA).
The new Codes of Practice will replace the existing Codes that commenced operation on 1 December 2021 and expand upon the procedures for taking of affidavits by audio visual link and electronic execution.
For the full text of the new Codes of Practice as gazetted, click here.
Qld — Supreme Court issues amended Practice Direction 11 of 2023 — Consent orders of the Registrar
Date: 30 August 2024
Jurisdiction: Queensland
Abstract:
On 20 August 2024, the Supreme Court of Queensland issued an amended version of Supreme Court Practice Direction 11 of 2023 – Consent orders of the Registrar.
The stated purpose of the Practice Direction is to provide a streamlined and cost-effective procedure for obtaining a consent order from the Registrar under rule 666 of the Uniform Civil Procedure Rules 1999 and to offer guidance as to the types of orders that may be made.
The only apparent change from the previous version of this Practice Direction published in May 2023 is contained in paragraph 4(o), which now specifies that applications where consent orders should ordinarily be sought from the Registrar in the first instance include applications for leave to commence a proceeding (and other orders) under the Personal Injuries Proceedings Act 2002 (Qld), Motor Accident Insurance Act 1994 (Qld) or Workers’ Compensation and Rehabilitation Act 2003 (Qld) except where an alteration to the limitation period is required.
The full Amended Practice Direction 11 of 2023 is available here.
Cth – The Federal Court considers the timing and utility of appointing an independent referee at an early stage of proceedings (Pellew (Trustee) v IPSA Holdings Australia Pty Ltd)
Date: 28 August 2024
Court: Federal Court of Australia
Judge(s): Banks-Smith J
Judgment date: 16 August 2024
Catchwords : Practice and procedure – appointing a referee – role of a referee – application premature
Abstract:
Pellew (Trustee) v IPSA Holdings Australia Pty Ltd [2024] FCA 939 concerned an application by an intervener for an order appointing an independent referee under s 241 of the Corporations Act 2001 (Cth) and s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to investigate and report on issues concerning payments to shareholders in a company.
The application arose during an application for leave to commence a statutory derivative action, which application was deferred pending the outcome of the intervener’s application, leaving the court to decide whether this approach would expedite the resolution of the issues in dispute.
Background
The applicants in the application for leave to commence a statutory derivative action were the joint trustees of a trust, who held 50% of the 100 shares issued by IPSA Holdings Australia Pty Ltd (IPSA).
SA — Significant amendments to the Uniform Civil Rules 2020 commenced on 26 August 2024
Date: 27 August 2024
Jurisdiction: South Australia
Source: South Australian Gazette
Abstract:
On 26 August 2024, the Uniform Civil Rules 2020 (SA) (Rules) were amended by operation of the Uniform Civil (No 11) Amending Rules 2024 (Amending Rules).
In summary, the Amending Rules primarily concern the inclusion of new rules regulating procedure in the Youth Court, the Environment, Resources and Development Court, the Warden’s Court, and the Court of Disputed Returns.
The previous rules that applied to these courts, namely the Environment, Resources and Development Court Rules 2003, the Environment, Resources and Development Court (Native Title) Rules 2001, the First Nations Voice Court of Disputed Returns Rules 2024 and the Warden’s Court Rules 2016, are now repealed.
The Amending Rules also implement a significant number of procedural amendments to the Rules concerning the following matters:
- Assessors and arbitrators under new rule 11.10;
- Experts under new rule 11.11;
- Filing of documents on restricted access basis under amended rule 32.2;
- Costs of amendments under substituted rule 84.4;
- Applications for transfers out of and into a court under substituted rules 113.2 and 113.3;
- Non-party discovery under substituted rule 116.1;
Federal Court denies Fanatics, LLC stay in ongoing trade mark infringement proceedings (Fanatics, LLC v FanFirm Pty Limited)
Date: 26 August 2024
Court: Federal Court of Australia
Judge(s): Bromwich J
Judgement date: 14 August 2024
Catchwords: Practice and Procedure – application for a stay – Onus on applicant to demonstrate proper basis for the stay – irrecoverable losses comparable for both parties
Abstract:
Amidst an appeal against an adverse decision in which the Fanatics LLC, the applicants in this proceeding, was found liable for trade mark infringement, an interlocutory application for a stay of an injunction pending the outcome of the appeal being filed. The Federal Court considered the circumstances of the case and the applicable legal principles before deciding the interlocutory application was to be dismissed. The court decided that there were valid arguments for irrecoverable loss on each side if the stay was, or was not granted, but was unable to clearly identify which loss would be greater or which case was stronger. While the court noted the undesirability of determining the outcome by reference to the onus, it had to do so, finding that the applicant could not demonstrate that the evidence weighed in favour of granting the stay.
WA – Uniform Evidence Legislation introduced to Parliament
Date: 21 August 2024
Jurisdiction: Western Australia
Source: Parliament of Western Australia
Abstract:
On the 14 August 2024, two Bills were introduced to the Parliament of Western Australia with the aim of repealing the Evidence Act 1906 and establishing new evidence law that more closely aligns with the uniform evidence legislation in force in the Commonwealth, New South Wales, Tasmania, Victoria, the Northern Territory and the Australian Capital Territory.
The Evidence Bill 2024 repeals the Evidence Act 1906 and:
- is modelled on the Evidence Act 1995 (Cth);
- retains some versions of provisions from the Evidence Act 1906; and
- includes new provisions that implement recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and other bodies.
If enacted together with the accompanying Evidence Amendment Bill 2024, both Bills will comprise the Evidence Act 2024.
The Evidence Amendment Bill 2024 is being introduced separately to the Evidence Bill 2024 because:
- the Evidence Bill 2024 contains provisions that must be considered by the Legislative Council’s Standing Committee on Uniform Legislation;
- the Evidence Amendment Bill 2024 contains provisions which may be regarded as appropriating revenue or moneys, or imposing taxation, such that it must first be introduced in the Legislative Assembly.
The Evidence Bill 2024 had both a first and second reading on 14 August 2024 and was subsequently referred to the Standing Committee on Uniform Legislation and Statutes Review, where it is currently under consideration.
Federal Court of Australia doubles down on decision to allow preliminary discovery (Light & Wonder, Inc v Aristocrat Technologies Australia Pty Ltd)
Date: 15 August 2024
Court: Federal Court of Australia
Judge(s): Jackman J
Judgement date: 7 August 2024
Catchwords: PRACTICE AND PROCEDURE — Preliminary discovery — Application for leave to appeal — Where prospective proceedings concern misuse of confidential information and copyright infringement
Abstract:
Light & Wonder, Inc sought leave to appeal a decision of the Federal Court of Australia to allow preliminary discovery of certain material, on the basis that its competitor, global gaming content and technology company and mobile games publisher Aristocrat Technologies Australia Pty Ltd, already had sufficient information to decide whether to commence proceedings. The Federal Court analysed the primary judge’s reasons and considered the proposed grounds of appeal before dismissing the application for leave to appeal.
Background:
In Aristocrat Technologies Australia Pty Ltd v Light & Wonder Inc [2024] FCA 439, the applicants sought preliminary discovery pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) on the basis that there were reasonable grounds to believe they could obtain relief for a number of causes of action. The causes of action included breach of confidence, breach of contract, copyright infringement, passing off, and misleading or deceptive conduct.
The Federal Court updates practice notes concerning enforcement of foreign judgements and overseas service and evidence
Date: 15 August 2024
Jurisdiction: Commonwealth
Abstract:
On 13 August 2024, the Federal Court of Australia published a Notice to the Profession to publicise recent updates to two of its practice notes, namely:
Both practice notes were updated on 12 August 2024.
A summary of the updates is set out below.
Updates to Foreign Judgments Practice Note (GPN-FRGN)
GPN-FRGN provides guidance for registration of certain New Zealand judgments under the Trans-Tasman Proceedings Act 2010 (Cth) and the Trans-Tasman Proceedings Regulation 2012 (Cth) and the registration of certain foreign judgments under the Foreign Judgments Act 1991 (Cth).
As of 12 August 2024, the practice note was updated to incorporate the following changes:
- Clarification of the material required to accompany an application for registration of a New Zealand judgment and how it is to be provided to the court;
- Provisions for the court to issue an order confirming registration;
- Clarification that the party who has the benefit of a registered New Zealand judgment must give notice to every person liable within 15 days of the date of registration;
- Highlighting that an application under the Foreign Judgments Act 1991 (Cth) must be made within 6 years of the judgment; and
Vic — County Court of Victoria to no longer refer lower value claims in the Commercial Division to case management conferences
Date: 15 August 2024
Jurisdiction: Victoria
Abstract:
The County Court of Victoria has announced that it will no longer refer lower value claims in the Commercial Division to a case management conference chaired by a Commercial Division lawyer.
Prior to this announcement, a special procedure existed for lower value claims (under $150,000) in the Commercial Division, pursuant to paragraph X.1 of the Commercial Division Practice Note PNCO 2-2022 which provides, in part:
The Court may contact the parties to propose a case management conference with a Commercial Division lawyer to identify early other appropriate dispute resolution processes that are likely to assist in ensuring that costs do not become disproportionate to the value of the claim or the importance of the issues in dispute.
Currently, owing to a lack of available resources, this procedure will no longer apply.
Instead, lower value claim proceedings in the Commercial Division will be listed for a directions hearing before a Commercial Division Judicial registrar to consider the further conduct of the proceeding.
The court has requested that, prior to the directions hearing, the parties consider:
- Whether the proceeding is suitable to be:
- referred by consent to an arbitration;
- listed for a judicial resolution conference; or
- subject to the making or a referral request to either the Victorian Bar or the Law Institute of Victoria for a reduced fee private mediation.
The Federal Court of Australia provides further information about listing trials during the 2025 Full Court and Appellate sitting periods
Date: 7 August 2024
Jurisdiction: Commonwealth
Abstract:
The Federal Court of Australia has published a Notice to the Profession to provide further information about the 2025 Full Court and Appellate sitting periods, including how the court will approach requests to list trials in the court’s original jurisdiction.
As discussed in our previous Latest Legal Update, the Federal Court of Australia is moving to three Full Court and Appellate sitting periods in 2025.
The Notice to the Profession provides that listings for a particular sitting period will usually be finalised one week after the end of the previous sitting period. Prior to finalisation, and to ensure the availability of judges and legal personnel for Full Federal Court and appellate matters, judges and practitioners are not to list trials for hearings during these sitting periods unless it is unavoidable.
In considering whether listing a trial during these sitting periods is unavoidable:
- unavailability of legal counsel at other times is unlikely to be sufficient justification;
- reasons why legal counsel is unavailable and why other counsel cannot be briefed may need to be set out in detail; and
- the duration of the trial will also be considered.
The Federal Court dismisses ‘Roundup’ weed killer class action and comments on the purpose of ‘Merck orders’ (McNickle v Huntsman Chemical Company Australia Pty Ltd [2024] FCA 807)
Date: 1 August 2024
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 25 July 2024
Catchwords: Practice and procedure – Merck orders identifying issues – answering questions initially framed – central common question answered
Abstract:
The decision in McNickle v Huntsman Chemical Company Australia Pty Ltd [2024] FCA 807 concerned a class action proceeding commenced against the manufacturers of Roundup weed killer in which the group alleged that exposure to Roundup products caused cancer. In assessing the expert evidence during an initial trial on the issue of causation, the court found that the whole of the evidence did not establish that use of the products caused non-Hodgkin lymphoma. In making this determination, the court commented on the purpose of interlocutory orders that define the questions for trial in class action proceedings, known as “Merck orders”.
The court’s decision
Having analysed the expert evidence filed on behalf of the parties, the court found that there was insufficient evidence to establish, on the balance of probabilities, that exposure to Roundup products increased an individual’s risk of developing non-Hodgkin lymphoma (NHL) or caused an individual to develop NHL.
.
Vic – The Supreme Court releases the Third Revision of Practice Note SC CL 9 – Judicial Review and Appeals List
Date: 1 August 2024
Jurisdiction: Victoria
Abstract:
The Supreme Court of Victoria has published the Third Revision of Practice Note SC CL 9 – Judicial Review and Appeals List (Practice Note), which commenced on 29 July 2024.
The Practice Note replaces the Second Revision, which has been in place since 12 September 2018.
The Practice Note applies to all proceedings in the Judicial Review and Appeals List, regardless of when those proceedings commenced.
When compared to the Second Revision, some of the significant amendments are as follow
- Paragraph 4: Proceedings suitable for inclusion in the Judicial Review and Appeals List will now include:
- Judicial review applications made pursuant to Order 57 of the Supreme Court (General Civil Procedure) Rules 2015;
- Appeals from certain determinations of the Coroners Court of Victoria;
- Appeals from the County Court constituted by an Associate Judge;
- Appeals from an interim accommodation order of the Children’s Court or appeals from a final order of the Children’s Court.
- Proceedings not suitable for inclusion now include:
- Appeals from and applications for judicial review in relation to decisions of VCAT concerning commercial and retail lease disputes;
- Applications in the nature of judicial review from adjudication determinations made under the Building and Construction Industry Security of Payment Act 2002.
Joint Costs Advisory Committee accepting submissions on potential changes to quantum of costs allowable to legal practitioners in matters in the Federal Court of Australia, High Court of Australia and Federal Circuit and Family Court of Australia
Date: 26 July 2024
Jurisdiction: Commonwealth
Abstract:
The Joint Costs Advisory Committee (JCAC) is conducting an inquiry into possible variations to the quantum of costs (including expenses and fees for witnesses) allowable to legal practitioners in the scales of costs in the Rules for each of:
- The High Court of Australia;
- The Federal Court of Australia; and
- The Federal Circuit and Family Court of Australia.
The JCAC is accepting submissions from interested parties regarding any changes to the quantum of costs allowable to legal practitioners.
Submissions should be sent to:
Deputy Principal Registrar
Federal Circuit and Family Court of Australia
PO Box 9991
CANBERRA ACT 2601
Email: customer.service@fcfcoa.gov.au
The court has requested that all emails be marked to the attention of the Deputy Principal Registrar in the subject line.
Submissions will be accepted until 23:59 AEST on 16 August 2024.
More information is available here.
Qld – Supreme Court and District Court release protocols for reserved judgements
Date: 19 July 2024
Jurisdiction: Queensland
Abstract:
The Supreme Court of Queensland and the District Court of Queensland have released their respective protocols for reserved judgments (Protocols).
Among other things, the Protocols contemplate that:
- Where a judgment has been reserved, it should usually be delivered within three months of the hearing conclusion or the last receipt of submissions (excluding court vacation periods); and
- Where a party has a concern about a delay in delivery of judgment, they may:
- contact the President of the Queensland Law Society via the Queensland Law Society’s delayed judgement service;
- contact the President of the Bar Association of Queensland; or
- raise the concern with the chief judge or justice in question by letter, provided that all parties to the proceeding are supplied with a copy.
Full text of the Protocols is available here.
Qld – Queensland courts amend practice directions concerning photography and electronic devices in court
Date: 19 July 2024
Jurisdiction: Queensland
Abstract:
The Magistrates Court, District Court and Supreme Court of Queensland have each issued amended practice directions regarding photography and the use of electronic devices in court buildings and court rooms.
The amendments have been made to the following Practice Directions:
- Practice Direction Number 8 of 2014 (Supreme Court);
- Practice Direction Number 10 of 2014 (District Court); and
- Practice No. 1 of 2014 (Magistrates Courts).
The three amended Practice Directions are nearly identical, with only minor differences between them.
Amended Practice Direction Number 8 of 2014 is available here.
Amended Practice Direction Number 10 of 2014 is available here.
Amended Practice Direction No. 1 of 2014 is available here.
Vic – The Supreme Court of Victoria issues Practice Note SC Gen 22 outlining the operation of the Associate Judges’ Applications List
Date: 10 July 2024
Jurisdiction: Victoria
Abstract:
On 1 July 2024, the Supreme Court of Victoria issued Practice Note SC Gen 22 regarding the operation of the Associate Judges’ Applications List (AJAL).
The AJAL was formerly known by the terms “Associate Judges’ Practice Court” or “Court 2 Applications”.
This new Practice Note commenced operation on 1 July 2024 and replaces the previous “Notice to the Profession – Applications in Associate Judges’ Practice Court (Court 2)” issued in 2014.
The new Practice Note contains information about practice and procedure in the AJAL arranged under the following headings:
- Introduction;
- Commencement;
- Applications Suitable for Hearing in the Associate Judges’ Applications List;
- Procedure for Making Applications in the List;
- Urgent Applications;
- Subsequent Filings and Communications with the Court; and
- Further Information.
The full Practice Note is available here. For comparison purposes, the obsolete Notice to the Profession that previously governed these types of applications is available here.
The Federal Court of Australia announces a pilot program of a National General Protections List for general protections matters under the Fair Work Act 2009 (Cth)
Date: 10 July 2024
Jurisdiction: Commonwealth
Abstract:
The Federal Court of Australia has announced that a pilot program for a new National General Protections List (NGPL) will commence on 1 September 2024 for an initial period of eight months.
The purpose of the NGPL is to facilitate the effective initial case management of proceedings filed under the general protections provisions in Chapter 3 Part 3-1 of the Fair Work Act 2009 (Cth).
From the date of commencement, relevant proceedings filed using forms 79, 80 or 81 will be listed in the NGPL for initial case management. Proceedings may be referred directly for allocation to a Docket Judge by a Registrar, or by request from a party, where appropriate.
The NGPL will be conducted by a Registrar on Friday each week and will take place virtually. The first NGPL will take place on 4 October 2024.
For further information about the allocation, listing procedures, process that will apply to the NGPL, refer to the court’s Notice to the Profession.
Vic – The Supreme Court of Victoria provides an update regarding ongoing technical issues
Date: 10 July 2024
Jurisdiction: Victoria
Abstract:
The Supreme Court of Victoria is continuing to experience technical issues affecting livestreaming, content sharing and video-link access, as outlined in our previous Latest Legal Update.
The court has since provided an update to confirm that interim measures have been implemented to enable:
- livestreaming of in-court matters;
- in-court content sharing; and
- video-link access for remote participants.
As a result of these interim measures, hearings in the Supreme Court of Victoria are now largely running as usual.
The court has indicated that its efforts to implement a long-term solution are ongoing.
The Federal Court upholds claim of public interest immunity (Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd (No 2) [2024] FCA 703)
Date: 9 July 2024
Court: Federal Court of Australia – NSW District Registry
Judge(s): Jackman J
Judgment date: 24 June 2024
Catchwords: Practice and procedure – Public interest immunity claim – Redaction of information in consumer complaints – Redactions allowed by court
Abstract:
In Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd (No 2) [2024] FCA 703, the court was required to consider a claim of public interest immunity over information contained in consumer complaint documents. The ACCC sought to produce documents that redacted personal details and contact information of individuals who had made consumer complaints against the respondents. The court was required to consider whether it was in the public interest to protect information that identified a complainant. The court found that the public interest favoured the redactions that the ACCC had made.
Factual background
The ACCC received consumer complaints about the conduct of the respondents. The respondents sought documents from the ACCC that included contact details of the complainants. The ACCC sought to produce redacted documents and ensure the complainants’ personal information remained confidential.
The court’s analysis
The court confirmed that, “it is well established that a party required to produce documents can resist doing so on the basis of public interest immunity”. The court then set out the relevant principles applicable to a claim of public interest immunity, including as follows:
NCAT and VCAT increase fees for 2024 / 2025 from 1 July 2024
Date: 8 July 2024
Jurisdiction: New South Wales & Victoria
Abstract:
From 1 July 2024, the New South Wales Civil and Administrative Tribunal (NCAT) and the Victorian Civil and Administrative Tribunal (VCAT) have increased certain fees and charges.
NCAT fees increase
NCAT has increased fees and charges for the filing of applications, appeals and other services in line with the Consumer Price Index (CPI).
Some applications, including community services matters and Guardianship Division applications will continue to attract no fees. A concession rate (25% of the full fee) is available for eligible persons, as is the possibility of fee waivers in cases of serious financial hardship.
A Schedule of current NCAT Fees and Charges is available here.
VCAT fees increase
VCAT fees have been increased in line with the Victorian Government policy of adjusting certain fees and penalties charged by governmental departments and agencies to account for inflation. Accordingly, the value of a fee unit has increased from $15.90 to $16.33, representing a 2.7% increase.
Details of current VCAT fees are available here, grouped by applicable case type.
Remaining parts of the Justice and Other Legislation Amendment Act 2023 (Qld) commenced operation
Date: 1 July 2024
Source: Queensland Legislation
Jurisdiction: Queensland
Status: In operation
Abstract:
On 1 July 2024, the remaining parts of the Justice and Other Legislation Amendment Act 2023 (Qld) (Amendment Act) commenced operation. These were:
- Pt 5, which provides for amendments to the Civil Liability Act 2003 (Qld);
- Pt 21, which provides for amendments to the Motor Accident Insurance Act 1994 (Qld); and
- Pt 26, which provides for amendments to the Personal Injuries Proceedings Act 2002 (Qld).
The balance of the Amendment Act commenced operation on 3 October 2023, 1 February 2024 and 1 March 2024, (see the relevant previous Latest Legal Update dated 3 October 2023 and the Latest Legal Update dated 9 February 2024).
The principal purpose of the Amendment Act set out in the Explanatory Notes is to “clarify, strengthen and update legislation concerning the administration of justice, including legislation relating to the operation of courts and tribunals, the regulation of the legal profession, the conduct of civil proceedings and electoral matters.”
In particular, Pt 5 of the Amendment Act sets out a new calculation for general damages and indexation under the Civil Liability Act 2023 (Qld).
The Amendment Act and Explanatory Notes are available for download from the Queensland Legislation website.
Click here to view the full text of the Justice and Other Legislation Amendment Act 2023 (Qld).
Click here to view the Explanatory Notes.
The Federal Court of Australia to increase fees from 1 July 2024
Date: 27 June 2024
Jurisdiction: Commonwealth
Abstract:
On 18 June 2024, the Federal Court of Australia announced that fees payable in the court shall increase from 1 July 2024.
The fee increase has been made pursuant to s 2.20 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Regulations).
The increased fees are set out in Schedule 1 of the Regulations and are also published here.
Qld – The Supreme Court designates court closure dates for the 2024 – 2025 summer holiday period
Date: 27 June 2024
Jurisdiction: Queensland
Abstract:
On 21 June 2024, the Chief Justice of the Supreme Court of Queensland announced its closure dates for the 2024 – 2025 summer holiday period.
Pursuant to Practice Direction 17 of 2024, the court’s registry and offices shall close from Friday 27 December 2024 to Friday 3 January 2025 (inclusive).
Practitioners should plan ahead and factor in the court closure period when formulating their litigation timelines and
Vic – Supreme Court experiences technical issues affecting livestreaming, content sharing and video-link access
Date: 26 June 2024
Jurisdiction: Victoria
Abstract:
The Supreme Court of Victoria has published a statement to the effect that it is experiencing ongoing technical issues affecting the systems which enable in-court matters to be live streamed, in-court content sharing and video-link access for remote participants, across multiple courtrooms.
The technology required for the provision of transcripts is not affected.
The court has indicated that efforts are being made to minimise disruptions to hearings but that some hearings will need to be relocated, conducted remotely, or done in person without the capability for remote participation or livestreaming. Parties will be advised of these changes by chambers or the Registry. Additionally, the Daily Hearing List will continue to provide the latest hearing location and time details.
The full statement is available here.
Qld – The Supreme Court amends two Practice Directions concerning the conduct and management of civil cases
Date: 20 June 2024
Jurisdiction: Queensland
Abstract:
On 14 June 2024, the Supreme Court of Queensland issued two amended Practice Directions, namely:
- Amended Practice Direction 18 of 2018 – Efficient Conduct of Civil Litigation; and
- Amended Practice Direction 9 of 2023 – Caseflow Management – Civil Jurisdiction.
A summary of the amendments is set out below.
Amended Practice Direction 18 of 2018 – Efficient Conduct of Civil Litigation
This Practice Direction has been amended as follows:
- A new paragraph 3 has been inserted, which outlines the purpose of the Practice Direction;
- Paragraph 35 of the former version of the Practice Direction, which concerned trial plans and readiness for trial, has been deleted. The now-deleted paragraph read as follows:
35. A realistic trial plan is essential for a matter to be set down for trial. Other matters which are important for the setting of a matter down for trial appear in the Readiness Checklist annexure to Practice Direction No 9 of 2010.
- A new paragraph 41 has been inserted, which provides that the Resolution Registrar has power (where it otherwise does not exist) pursuant to r 452(2) of the Uniform Civil Procedure Rules 1999 (UCPR), to hear and decide an application for directions at a case conference.
Federal Court of Australia makes settlement approval orders to resolve class action proceeding (Compumod Investments Pty Limited as trustee for the Compumod Pty Limited Staff Superannuation Fund v Universal Equivalent Technology Limited (Settlement Approval))
Date: 18 June 2024
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 27 May 2024
Catchwords: Representative proceedings – Application for settlement approval – How claims quelled under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – Fairness and reasonableness of settlement
Date: 17 May 2024
Abstract:
In Compumod Investments Pty Limited as trustee for the Compumod Pty Limited Staff Superannuation Fund v Universal Equivalent Technology Limited [2024] FCA 571, the court was required to consider a settlement approval application in relation to a group proceeding under s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The court approved the settlement on the terms set out in the deed.
Factual background
The parties settled a class action proceeding concerning misleading statements. Court approval of the settlement deed was required. In considering whether to approve the settlement deed, the court made comments about the relevant principles for an application for settlement approval and best practice in settlement of group proceedings.
The court’s analysis
The court stated it “must be satisfied that the settlement constitutes a fair and reasonable compromise of the claims made on behalf of the group members” to approve a settlement application.
The Federal Court of Australia reiterates the importance of ensuring that a formal offer of settlement represents a genuine compromise (Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (Costs))
Date: 17 June 2024
Court: Federal Court of Australia
Judge(s): Perram, Stewart and Button JJ
Judgment date: 12 June 2024
Catchwords: Costs – Application for indemnity costs – Offer of compromise served – Whether offer was genuine
Abstract:
In Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (Costs) [2024] FCAFC 74, the successful respondent applied for indemnity costs from the date of service of a formal offer of settlement that was not accepted by the applicants. In determining the application, the court considered whether the applicants’ failure to accept the offer was unreasonable and whether the offer amounted to a genuine compromise.
Factual background
The first and second respondents to an application for leave to appeal served a formal settlement offer on the applicants on terms including that the proceeding be dismissed as against the first and second respondents and their costs paid in the amount of $150,000 excluding GST.
The applicants rejected this offer.
The application for leave to appeal was dismissed by the court and the first and second respondents sought an order for their costs to be paid on an indemnity basis from the date of the offer.
Qld — Queensland Courts issues new practice direction regarding case citations in the Magistrates Court
Date: 17 June 2024
Jurisdiction: Queensland
Abstract:
On 7 June 2024, Queensland Courts issued new Practice Direction No 7 of 2024 concerning citation of authorities in all proceedings in the Magistrates Court.
In summary, the new Practice Direction provides that:
- While it is acceptable to use a medium neutral citation, if a judgement is reported in an authorised Commonwealth, State or Territory law report, then that citation should be noted in the List of Authorities and in written submissions, where possible;
- When citing an authority:
- particular passages relied upon in the judgement should be identified;
- it is sufficient and appropriate to refer to medium neutral citation paragraph numbers rather than page numbers in authorised reports in any written or oral submission;
- reference should be made to any subsequent judgement which has doubted, not followed, or cited the judgement in a relevant way; and
- ureported judgements should not be cited unless they contain something material that is not found in any reported authority.
- In selecting the authorities to be cited, practitioners should:
- cite only those authorities that are necessary to establish principles or propositions that are being relied upon;
- avid citing authorities that deal with those principles or propositions in a way that will not assist the court materially in resolving the real matters in dispute; and
NSW – The Local Court reissues Practice Note Civ 1
Date: 14 June 2024
Jurisdiction: New South Wales
Abstract:
On 3 June 2024, the Local Court of New South Wales (NSW) reissued Practice Note Civ 1, which implements several procedural amendments affecting civil proceedings in the General Division and the Small Claims Division.
One of the more significant amendments is the addition of cl 34A entitled “Expert evidence via audio-visual link”, which deals with the process by which expert witnesses may give evidence in the Local Court. The new clause provides that expert witnesses located within NSW shall give evidence via audio-visual link (AVL), whereas experts located outside NSW may give evidence via AVL subject to the Evidence (Audio and Audio Visual Links) Act 1998 and the Trans-Tasman Proceedings Act 2010 (Cth). The court has also introduced a new “Annexure F (Application for Expert Witness to Give Evidence in person)” to complement this amendment.
Other amendments to the Practice Note include changes to:
- the court’s power to refer parties to mediation (cl 8);
- the requirements for preparation of witness statements in trials in the Small Claims Division (cl 25);
- the court’s power to appoint an expert witness where the parties are unable to agree (cl 31); and
- the court’s objective in seeking to ensure proportionality of costs (cl 35).
Additionally, further minor amendments have been made to cll 4, 13, 16, 21 and 39 of the Practice Note.
Amendments to the Federal Court Rules 2011 (Cth) and other regulations came into effect on 5 June 2024
Date: 6 June 2024
Jurisdiction: Federal Court of Australia
Abstract:
The Federal Court Legislation Amendment Rules 2024 (Cth) (Amendment Rules) were registered on 4 June 2024 and came into effect on 5 June 2024.
According to the statement issued by the court, the Amendment Rules are directed at ensuring individuals’ rights to a fair and timely hearing through the following changes:
- ensuring processes relating to allegations of sexual harassment under the Fair Work Act 2009 (Cth) are appropriate and effective;
- extending, consolidating, and clarifying the powers of registrars;
- improving the mechanisms for applications under the Trans-Tasman Proceedings Act 2010 (Cth), service outside Australia, and proceedings under the Patents Act 1990 (Cth) and the Trade Marks Act 1995 (Cth); and
- increasing the costs allowable for work done and services performed, effectively increasing the costs recoverable by a successful party to litigation.
The Amendment Rules comprise four schedules that amend the Federal Court Rules 2011, the Federal Court (Bankruptcy) Rules 2016, the Federal Court (Corporations) Rules 2000 and the Federal Court (Criminal Proceedings) Rules 2016, respectively.
Click here for the full text of the Federal Court Legislation Amendment Rules 2024 (Cth).
Qld – The Supreme Court publishes case management directions templates to ensure efficient conduct of civil litigation
Date: 6 June 2024
Jurisdiction: Queensland
To assist practitioners in complying with Practice Direction 18 of 2018 – Efficient Conduct of Civil Litigation, the Supreme Court of Queensland has developed and published draft case management direction templates for use by parties in civil proceedings.
The draft directions encompass matters including but not limited to directions providing for:
- a list of issues, a document management plan, and a hearing plan;
- a complex matter in the Applications List or a short matter in the Civil List;
- expert evidence;
- Alternative Dispute Resolution;
- document plans;
- disclosure directions;
- trial plans and trial directions; and
- reviews and case conferences.
The court has emphasised that these templates should be used as the “starting point” to develop directions that are appropriate to the circumstances of a matter and that draft directions should be prepared in advance of any appearance at a review of a hearing with a view to saving time and costs for parties and the court.
The court’s draft case management directions templates are available for download here.
Vic – The Supreme Court releases guidelines for litigants on the responsible use of artificial intelligence in litigation
Date: 28 May 2024
Jurisdiction: Victoria
Abstract:
Recognising that embracing new technologies is important for the continued development and the efficiency of litigation in the courts, the Supreme Court of Victoria has released a set of guidelines for litigants on the “Responsible Use of Artificial Intelligence in Litigation” (Guidelines). These Guidelines are designed to assist both legal practitioners and self-represented litigants, many of whom are already making use of artificial intelligence (AI) tools in legal settings.
The Guidelines set out:
- principles for use of AI by litigants;
- the application of those principles; and
- the use of AI by Judicial Officers.
The Guidelines also include a glossary that contains useful definitions for some of the common terms used in relation to AI.
These Guidelines are second of their kind to be published by Australian courts, following the release of similar guidelines by Queensland Courts in May.
The Guidelines are available here.
Vic – Supreme Court issues reminder to practitioners to use current forms
Date: 24 May 2024
Jurisdiction: Queensland
The Supreme Court of Victoria has published a notice on its website to remind practitioners of the need to ensure that they are using up to date versions of the court’s approved forms.
This reminder follows the commencement of updates to certain forms by operation of the Supreme Court (DX, Address and References to the Sovereign Amendments) Rules 2023.
Civil forms that have been updated include:
- Form 5A – Writ;
- Form 5B – Originating motion;
- Form 5E – Originating motion for recovery of land under order 53;
- Form 42B – Subpoena to produce;
- Form 42C – Subpoena both to attend to give evidence and to produce;
- Form 42AA – Subpoena for production to the Prothonotary;
- Form 45A – Summons on originating motion; and
- Form 46A – Summons.
Other updated forms that are not available on the court’s website (but may be found in the Supreme Court (General Civil Procedure) Rules 2015) include:
- Form 10A – Heading and notice on counterclaim where defendant new party;
- Form 11A – Third party notice; and
- Form 45B Summons on originating motion - special procedure.
The court notes that outdated forms may not be accepted by the court beyond 20 May 2024.
Queensland Courts release guidelines for non-lawyers on the use of generative artificial intelligence in legal proceedings
Date: 22 May 2024
Jurisdiction: Queensland
Abstract:
Queensland Courts has published guidelines for the responsible use of generative artificial intelligence (AI) by non-lawyers in legal settings, in response to the growing number of instances where individuals are using generative AI tools (such as ChatGPT, Microsoft Copilot, Google Gemini) to aid in preparation of court and legal documents.
The guidelines have been drafted to assist non-lawyers who are representing themselves (or others) in any civil or criminal proceeding in Queensland courts and tribunals.
Among other things, the guidelines suggest that litigants:
- educate themselves about generative AI tools, including what they may be suitable for, noting that such tools can be helpful for explaining legal principles, organising facts, assisting with grammar and vocabulary, and organising documents. The guidelines note that AI tools cannot provide advice that is personalised or tailored and may often provide inaccurate, incorrect or outdated information.
- not input and private, confidential, suppressed or legally privileged information when using generative AI tools.
- remain mindful of their responsibility to ensure that any information relied upon or provided to a court or tribunal is accurate (noting that generative AI tools may hallucinate, provide information that is inaccurate, incomplete, or out of date).
- be conscious of ethical issues, such as copyright or plagiarism.
- follow general cybersecurity best practices to ensure their own security and that of the courts and tribunals.
The guidelines are available for download here.
The Federal Court finds that a pecuniary penalty can be paid by defendant in instalments (Australian Securities and Investments Commission v Holista Colltech Ltd)
Date: 17 May 2024
Court: Federal Court of Australia - Western Australia District Registry
Judge(s): Derrington J
Judgment date: 21 May 2024
Catchwords: Practice and procedure – Order to pay pecuniary penalty – Whether penalty should be paid in instalments – Whether instalments diminish penalty’s deterrent effect
Date: 17 May 2024
Abstract:
In Australian Securities and Investments Commission v Holista Colltech Ltd [2024] FCA 516, the court had to determine whether to permit the defendant to pay a pecuniary penalty by instalments and if so the period within which the payments should be made. In considering the issue, the court considered whether there was sufficient financial information before it to justify an instalment arrangement and whether an instalment arrangement would diminish the deterrent effect of the penalty. The court’s view was that the penalty should be paid in two equal instalments over a 12-month period, an arrangement that would not cause undue hardship to the defendant but would maintain its deterrent effect.
Factual background
ASIC commenced civil proceedings against the defendant in August 2021. The claim was in relation to the defendant’s breach of its continuous disclosure obligations and misleading representations made regarding sale of its sanitiser product.
Federal Court finds non-party litigation funder jointly and severally liable for costs of a party (Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd)
Date: 16 May 2024
Court: Federal Court of Australia
Judge(s): Besanko J
Judgment date: 3 May 2024
Catchwords: Practice and procedure – Non-party costs orders – Circumstances for making costs order against third party – Whether costs should be awarded against litigation funder
Abstract:
In Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (No 11) [2024] FCA 456, the Federal Court had to determine whether to make a non-party responsible for the costs of a party, and the circumstances in which it could exercise such a discretion.
Background
The substantive proceeding concerned claims of infringement of two patents brought by the plaintiff (VMS) against the defendant (SARB). Justice Besanko heard the trial and delivered reasons in March 2023. SARB appealed to the Full Court of the Federal Court on limited grounds. The appeal was successful and VMS was ordered to pay SARB’s costs of the appeal. The Full Court ordered that the question of the costs of the proceeding be remitted to the trial judge for determination. The trial judge, Justice Besanko, then considered whether VMS’s litigation funder (Balance) should be jointly and severally liable for the costs of the proceeding.
WA — The Supreme Court of Western Australia adopts the Harmonised Expert Witness Code of Conduct and amends its Consolidated Practice Directions regarding expert evidence
Date: 16 May 2024
Jurisdiction: Western Australia
Abstract:
The Supreme Court of Western Australia has issued a Notice to Practitioners regarding the court’s adoption of the Harmonised Expert Witness Code of Conduct (Expert Code) and various amendments made to the procedures concerning expert evidence set out in its Consolidated Practice Directions (CPD), effective from 6 May 2024.
Some of the more notable amendments to the CPD are as follows:
Practice Direction 4.5
Practice Direction 4.5 has been amended to reflect the new practice directions concerning expert evidence.
Practice Direction 4.5 is now entitled “Evidence”. Directions concerning “Evidence in Chief – Witness Outlines and Witness Statements” are now contained in Practice Direction 4.5.1, while new directions concerning “Expert Evidence” are contained in Practice Direction 4.5.2.
Practice Direction 4.5.2 contains directions regarding expert evidence, including the requirement for experts to comply with the Expert Code (which is reproduced at Practice Direction 4.5.2.1), requirements for the content of expert reports, expert conferral and conclaves, and concurrent expert evidence.
Summary of changes to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Date: 3 May 2024
Court: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (FL Rules) have been amended pursuant to the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth). The amendments took effect from 6 May 2024.
The following is a summary of the new amendments to the FL Rules.
- Rules 1.05(1), 1.06, 4.05 and 8.12: apply to conciliation conferences and dispute resolution events. These amendments insert a definition of a conciliation conference into the rules, clarify that the court may order a party to attend a conciliation conference, family dispute resolution or other dispute resolution event , and that a dispute resolution event may be conducted by a judicial officer, which includes a Judge and a Registrar.
Federal Court approves discontinuance of group proceeding due to lack of reasonable prospects of success of claims (Alford v AMP Superannuation Limited)
Date: 2 May 2024
Court: Federal Court of Australia – Victoria District Registry
Judge(s): Anderson J
Judgment date: 4 April 2024
Catchwords: Practice and procedure – Application to discontinue group proceeding – Principles relevant to approval of discontinuance – Whether not unfair, unreasonable or adverse to group
Abstract:
In Alford v AMP Superannuation Limited [2024] FCA 332, the court was required to consider whether to approve an application to discontinue a representative proceeding. In considering the application, the Federal Court of Australia had to determine whether the discontinuance was not “unfair, unreasonable or adverse” to the interests of the group members as a whole. The court concluded that it could not be considered unfair, unreasonable or adverse to the interests of group members in circumstances where the applicants’ claims lacked reasonable prospects of success.
Factual background
The applicants sought relief on behalf of members of superannuation funds against trustees of those funds. The claims were in relation to alleged contraventions of the trustees’ statutory duties and general law obligations in respect to amounts invested in superannuation products. Broadly, the claims pleaded that a trustee acting prudently would have negotiated lower fees charged to members for administrative costs, or terminated existing arrangements and procured services from a third-party provider.
NSW – Court of Appeal holds that NSWSC cannot make soft class closure orders in class actions (David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd)
Date: 2 May 2024
Court: New South Wales Court of Appeal
Judge(s): Bell CJ, Ward P, Gleeson JA, Leeming JA, Stern JA
Judgment date: 17 April 2024
Catchwords: Civil procedure – class actions – Notices to group members – Court’s power to grant orders excluding certain group members from payment in the case of settlement
Abstract:
In David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83, the New South Wales Court of Appeal has upheld a decision holding that the provisions of the Civil Procedure Act 2005 (NSW) (CPA) do not permit courts to make “soft class closure orders” that have the effect of excluding members who have not registered by a particular date to share in any settlement. This decision further cements the stark divide between the Federal Court and the Supreme Court of New South Wales on the question of soft class closure orders.
Vic – Amendments to the Victorian Civil and Administrative Tribunal Rules 2018 take effect from 29 April 2024
Date: 30 April 2024
Source: Victorian Legislation
Jurisdiction: Victoria
Abstract:
On 29 April 2024, the Victorian Civil and Administrative Tribunal (Lists Amendments) Rules 2024 (Vic) (Amendment Rules) came into effect.
The purpose of the Amendment Rules is to amend the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules) relating to:
- the allocation of certain functions in Schedule 1 of the VCAT Rules; and
- the circumstances in which a party may use the details of their account in the VCAT digital portal as their designated address for service; and
- the documents that are required to be filed in applications under s 91ZM of the Residential Tenancies Act 1997 (Vic) (RTA).
The Amendment Rules also update the tribunal’s approved forms of warrants of possession set out in Schedule 2 of the VCAT Rules.
These amendments are discussed in more detail below.
The Qld District Court and Qld Magistrates Court issue new practice directions concerning the requirements for direct access briefs to barristers
Date: 24 April 2024
Jurisdiction: Queensland
Abstract:
The Magistrates Court of Queensland and the District Court of Queensland have issued Practice Direction 6 of 2024 and Practice Direction 2 of 2024, respectively, concerning direct access briefs to barristers.
The publication of these practice directions follows the publication of Practice Direction 13 of 2024 in the Supreme Court of Queensland, as covered in our prior Latest Legal Update, which sets out the new requirements for barristers when accepting direct access briefs.
These two new practice directions are identical in substance to Practice Direction 13 of 2024 in the Supreme Court and repeal earlier practice directions concerning direct access briefs.
The full text of District Court of Queensland Practice Direction 2 of 2024 is available here.
The full text of Magistrates Court of Queensland Practice Direction 6 of 2024 is available here.
The Federal Court considers whether a claim that turns solely on a question of law may be determined summarily (Binqld Finances Pty Ltd (in liq) v Binetter)
Date: 17 April 2024
Court: Federal Court of Australia – NSW District Registry
Judge(s): Kennett J
Judgment date: 12 April 2024
Catchwords: Practice and procedure – Application for summary dismissal – Application turns on question of law – Whether question of law should be decided at final hearing
Abstract:
In Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361, the court was required to consider whether a point of law could be determined summarily, or whether it should be properly determined at the final hearing of the matter. In considering the application, the Federal Court of Australia had to consider the only decision in which the question of law had been directly answered, being a single-judge interlocutory decision of a superior court, to assess whether it was plainly wrong.
Vic – Supreme Court amends processes for vexatious proceedings
Date: 17 April 2024
Jurisdiction: Victoria
Abstract:
On 1 April 2024, the Supreme Court (Chapter I Vexatious Proceedings Amendment) Rules 2024 (Vic) (Amendment Rules) commenced operation.
The purpose of the Amendment Rules is to substitute Order 83 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The new Order 83 sets out processes for litigation restraint orders, own motion orders under the Vexatious Proceedings Act 2014 (Vic) (VP Act), applications for leave to proceed when proceedings are subject to limited, extended or general restraint orders, and appeals on questions of law pursuant to Pt 10 of the VP Act.
Qld Supreme Court issues practice direction concerning direct access briefs to barristers
Date: 16 April 2024
Jurisdiction: Quensland
Abstract:
On 10 April 2024, the Supreme Court of Queensland issued Practice Direction 13 of 2024 – Direct Access Briefs (PD13/2024).
PD13/2024 applies to a barrister who accepts instructions from a person other than a solicitor retained on behalf of a client (direct access briefs).
In these cases, PD13/2024 requires the barrister accepting the direct access brief to comply with several obligations, including but not limited to:
- Compliance with the requirements of rule 24B of the Barristers’ Conduct Rules;
- Preparing a document that addresses several key matters and contains a written acknowledgement and a certification; and
- Filing a copy of the document in the court registry and delivering a copy to the Chief Executive of the Bar Associated of Queensland.
PD13/2024 repeals Practice Direction 20 of 2023.
The full text of PD13/2024 is available here.
Supreme Court of Victoria constructs seven new courtrooms at William Cooper Justice Centre
Date: 16 April 2024
Jurisdiction: Victoria
The Supreme Court of Victoria has announced that, following the construction of seven new courtrooms at Melbourne’s William Cooper Justice Centre, it intends to expand the types of hearings conducted at this location.
All new courtrooms are wheelchair accessible, and one can accommodate six jurors.
The Supreme Court of Victoria has indicated that the new facilities will be used to hear “commercial and common law matters” as well as “Court of Appeal civil hearings with up to three judges seated at the bench”.
The completion of these new courtrooms follows the opening of the Supreme Court Mediation Centre in the William Cooper Justice Centre, which became operational in early 2023.
The full statement published by the Supreme Court of Victoria is available here.
Qld Magistrates Court issues two new practice directions concerning online lodgment and requirements for applications in Brisbane Magistrates Court District
Date: 9 April 2024
Jurisdiction: Queensland
Abstract:
On 8 April 2024, the Chief Magistrate of the Magistrates Court of Queensland issued two new practice directions concerning the expanded use of online lodgment and the requirements for interlocutory applications in civil proceedings in the Brisbane Magistrates Court District.
complementing these two new practice directions, the Principal Registrar has also issued Approval 1 of 2024 concerning electronic filing of documents.
Practice Direction No 4 of 2024 – QCase implementation in civil proceedings
Practice Direction No 4 of 2024 (PD4/24) supports the staged introduction of the court’s new digital case management system, QCase, which is intended to replace the bulk of paper files in civil proceedings in the Magistrates Court.
PD4/24 applies to any civil proceedings “in a particular Magistrates Court” … from “the date of implementation of QCase...” These terms are defined in Appendix A to the practice direction, such that that it currently only applies to proceedings in the Brisbane Magistrates Court District – Central Division on and from 8 April 2024.
It is anticipated that Appendix A will be amended over time to include new courts as the staged implementation of QCase takes effect.
The Supreme Court of Western Australia amends the Rules of the Supreme Court 1971 to implement the Harmonised Rules for service out of Australia and other matters
Date: 5 April 2024
Jurisdiction: Western Australia
Abstract:
The Supreme Court of Western Australia has issued a notice to practitioners to advise that the Rules of the Supreme Court 1971 (Rules) have been amended, including to implement the Harmonised Court Rules on Service out of Australia (Harmonised Rules).
Supreme Court Amendment Rules 2024
On 26 March 2024, the court published the Supreme Court Amendment Rules 2024 (Amendment Rules) on its website.
The three main amendments occasioned by the Amendment Rules, which come into effect on 9 April 2024, are addressed below.
Implementation of Harmonised Court Rules on Service out of Australia
The court notes that the primary purpose of the Amendment Rules is to implement the Harmonised Rules regarding service out of Australia, as adopted by the Council of Chief Justices of Australia and New Zealand in 2016.
A new Order 10 under the Rules, titled ‘Service outside jurisdiction’, incorporates the Harmonised Rules and replaces the current version of the Order.
The Federal Court considers whether Australia is a “clearly inappropriate forum” in the context of an application for a permanent stay (Bolin Technology Co Ltd v BirdDog Technology Ltd)
Date: 4 April 2024
Court: Federal Court of Australia – Victoria District Registry
Judge(s): Anderson J
Judgment date: 26 March 2024
Catchwords: Practice and procedure – Application for permanent stay – Whether Australia inappropriate forum – Application for stay dismissed
Abstract:
In Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286, the respondent sought a permanent stay of proceedings in Australia. In circumstances where the respondent commenced proceedings in the United States, the court had to consider whether to stay the Australian proceeding on inappropriate forum grounds. In doing so, the court assessed the connection between Australia and the subject matter of the dispute, and the significant risk that the US Court would not have jurisdiction to hear the applicant’s claim under the Australian Consumer Law. In this instance, the court was not satisfied that Australia was a clearly inappropriate forum and dismissed the respondent’s application.
Background
The primary dispute concerned claims under contract law and the Australian Consumer Law (ACL) in relation to manufacture of video cameras in Shenzhen, China for sale in Melbourne, Australia.
The Supreme Court of Victoria clarifies its power to extend limitation periods under s 77(4) of the VCAT Act (Thurin v Krongold Constructions (Aust) Pty Ltd)
Date: 25 March 2024
Court: Supreme Court of Victoria — Commercial Court
Judge(s): Garde J
Judgment date: 16 February 2024
Catchwords: Practice and procedure – Limitation of actions – Power to extend limitation period – s 77(4) Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Abstract:
In Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42, the Supreme Court of Victoria clarified its power under s 77(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to extend limitation periods for proceedings that were initiated in the Victorian Civil and Administrative Tribunal (VCAT) but struck out because of VCAT’s lack of federal jurisdiction and subsequently referred to the Supreme Court for determination.
Case history and legislative background
The plaintiffs in this long-running case commenced proceedings against Krongold Constructions (Aust) Pty Ltd (Krongold) (a builder) as a major domestic building dispute in VCAT. The plaintiffs claimed damages against Krongold for installing defective pipes in their home, which subsequently ruptured. Swan Hardware & Staff Pty Ltd, as trustee of the Swan Hardware & Staff Unit Trust (Swan Hardware) supplied the installed pipes. Subsequently, Krongold initiated claims against the architect (Casper) and Swan Hardware as concurrent wrongdoers under federal legislation.
The Federal Court of Australia orders Spain to provide security for costs (Infrastructure Services Luxembourg Sàrl v Kingdom of Spain)
Date: 25 March 2024
Court: Federal Court of Australia – New South Wales District Registry
Judge(s): Stewart J
Judgment date: 13 March 2024
Catchwords: Practice and procedure – Power to order security for costs – Challenge to orders made ex parte – Infringement of consular immunities and privileges
Abstract:
In Infrastructure Services Luxembourg Sàrl v Kingdom of Spain (security for costs) [2024] FCA 234, the court ordered Spain to provide security for the applicants’ costs. In this case, the Federal Court of Australia had to consider whether to exercise its discretion to order that security be provided by Spain, in relation to an interlocutory application made by Spain after judgment in the proceeding. In doing so, the court made observations about the exercise of the discretion to order security and the role of consular immunities and privileges. The court found that Spain was a recalcitrant judgment debtor and that it was appropriate for Spain to provide security for the applicants’ costs.
Background
The Federal Court ordered that the respondent (Spain) pay the applicant approximately $200 million under the recognition and enforcement of an arbitration award.
The Supreme Court of Queensland repeals 61 existing Practice Directions and publishes 6 new Practice Directions
Date: 21 March 2024
Jurisdiction: Queensland
Abstract:
On 11 March 2024, the Supreme Court of Queensland published a practice direction that has the effect of repealing 61 existing Practice Directions.
The full list of repealed Practice Directions is contained in Schedule 2 of the practice direction, however particular attention should be drawn to the repeal of the following:
- Practice Direction 22 of 1991 – Case Management for Civil proceedings (other than commercial causes);
- Practice Direction 3 of 2000 – Uniform Civil Procedure Rules – Part A Designation of Court Holidays – Supreme Court Registry – Part B Practice Directions and Notifications now Redundant;
- Practice Direction 2 of 2005 – Expert Evidence: Supreme Court;
- Practice Direction 1 of 2008 – Taking evidence by telephone and video link;
- Practice Direction 9 of 2010 – Setting Trial Dates: Civil Jurisdiction Brisbane;
- Practice Direction 5 of 2013 – Technology standards for using Court DVD Players for evidence presentation; and
- Practice Direction 6 of 2015 – Orders of the Registrar.
Separately, in the period 11 March to 15 March 2024, the court published 6 new Practice Directions, including new Practice Direction 7 of 2024: Setting Trial Dates: Civil Jurisdiction Brisbane.
The Federal Court dissolves the ACT List
Date: 13 March 2024
Jurisdiction: Federal Court
Abstract:
Having consulted the profession in relation to its proposal to dissolve the Australian Capital Territory List (ACT List) and the role of the ACT List Judge (as set out in our previous Latest Legal Update), the Chief Justice of the Federal Court of Australia has notified the profession of the court’s intention to dissolve the list.
Currently, the ACT List oversees the case management of proceedings filed in the court's ACT Registry. Justice Kennett is the current ACT List Judge, supported by Senior National Judicial Registrar Paul Farrell.
Matters filed in the ACT Registry will now be allocated to the docket of a NSW Judge for the applicable National Practice Area upon filing. Matters already filed in the ACT List will be allocated to a Docket Judge and practitioners with carriage of those matters will be notified in due course.
As previously indicated by the court, its new procedure will facilitate the case management of each matter to be carried out by the Judge who will hear the matter to completion.
The Federal Court finds legal professional privilege is displaced by iniquity (Hillier v Martin (No 19))
Date: 13 March 2024
Court: Federal Court of Australia – South Australia District Registry
Judge(s): O’Sullivan J
Judgment date: 8 March 2024
Catchwords: Practice and procedure – Legal professional privilege – Whether privilege is displaced – Whether evidence of iniquity
Abstract:
In Hillier v Martin (No 19) [2024] FCA 210, the applicant challenged a claim that documents were the subject of legal professional privilege. In circumstances where the challenge to the claim was based on ‘iniquity’, the Federal Court of Australia had to consider whether privilege had been displaced. In doing so, the court made observations about the principles of legal professional privilege and the exception that applies where communications were created to further a ‘fraud or crime’. The court was satisfied that there was prima facie evidence of iniquity such as to displace the legal professional privilege on the part of the first respondent.
Background
The primary dispute concerned a joint venture agreement in relation to a restaurant business. On an interlocutory application prior to trial, the applicant challenged a claim to legal professional privilege in respect of approximately 7000 discovered documents. The challenge was based on the submission that because of iniquity, privilege had been displaced.
The court’s analysis
In considering the application, the court set out the principles that apply to legal professional privilege, and addressed the circumstances in which that privilege can be displaced.
The court stated that legal professional privilege “protects a party from being compelled against the giving of information or the production of documents which would reveal communications between a solicitor and their client (or their agent) made for the “dominant purpose” of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings”.
Qld — Changes to the Uniform Civil Procedure Rules include expansion of preliminary disclosure regime and procedures for complying with subpoenas by giving evidence by audio visual link
Date: 7 March 2024
Source: Queensland Legislation
Jurisdiction: Queensland
Abstract:
On 16 February 2024, various Queensland instruments were amended by the Uniform Civil Procedure (Fees) and Other Legislation Amendment Regulation 2024 (Qld), including the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
Some of the more notable amendments include:
- The expansion of the preliminary disclosure regime under the UCPR to the District Court of Queensland and the Magistrates Court of Queensland;
- Changes to r 660 of the UCPR to better reflect practice when making orders;
- Replacing rr 980 and 981 with a new provision concerning with the inspection and copying of documents on the court file; and
- New rules that provide for compliance with subpoenas by giving evidence by audio visual link, including the requirements to pay conduct money in that circumstance.
The regulation also amends the Supreme Court (Admission) Rules 2004 (Qld) to extend the period for admission application material to be provided to the court and the Legal Practitioners Admissions Board to allow adequate time for proper consideration of applications and the associated processes.
Federal Court issues record contempt penalty of $1.5M to Ultra Tune for failure to comply with Franchising Code obligations (Australian Competition and Consumer Commission v Ultra Tune Australia Pty Ltd (No 3))
Date: 4 March 2024
Court: Federal Court of Australia
Judge: Bromwich J
Judgment date: 1 March 2024
Catchwords: Contempt of court – breach of compliance orders – endorsement pursuant to r 41.06 – dispensing with r 41.06
Abstract:
In previous proceedings compliance orders containing a number of obligations were made against the respondent Ultra Tune Australia Pty Ltd (Ultra Tune). Ultra Tune failed to comply with these, and the ACCC brought further proceedings for alleged contempt of court. Despite a technical issue with the orders, the Federal Court held that Ultra Tune was guilty of four contempt charges and imposed a record contempt penalty of $1.5M.
The case:
In proceedings brought by the Australian Competition and Consumer Commission (ACCC) in 2019 (Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164), Ultra Tune was found to have contravened ss 18 and 29 of the Australian Consumer Law (ACL) and cl 15CTH_REG_2014-168_SCH1PT3DV2SUBDVACL15 of the Franchising Code, by failing to disseminate mandatory documentation to franchisees in a timely manner and misleading a prospective franchisee regarding the details of the proposed transaction.
The Federal Court determines whether a subpoena to compel a former lawyer to attend to give evidence has a legitimate forensic purpose (Garvey v Australian National University)
Date: 29 February 2024
Court: Federal Court of Australia
Judge(s): Meagher J
Judgment date: 26 February 2024
Catchwords: Practice and procedure – Subpoenas – Whether leave granted to issue a subpoena – Whether a legitimate forensic purpose established
Abstract:
In Garvey v Australian National University [2024] FCA 140, the applicant sought leave to issue a subpoena to compel his former lawyer to attend and give evidence. In circumstances where the basis for the subpoena was unusual and the applicant was unrepresented, the Federal Court of Australia had to consider whether there was a legitimate forensic purpose for the subpoena.
Background
The applicant’s complaint related to a decision made more than four years prior by the Deputy Vice-Chancellor of Australian National University (respondent) who had declined to uphold the applicant’s appeal against a decision to terminate his candidature in his PhD program.
In 2019, the applicant retained his former lawyer to advise him on a potential judicial review claim against the respondent.
Supreme Court of Victoria issues revised Commercial Court Practice Note SC CC 1
Date: 29 February 2024
Jurisdiction: Victoria
Abstract:
The Supreme Court of Victoria has issued the second revision of Practice Note SC CC 1 – Commercial Court (Practice Note).
The revised Practice Note, which commenced operation on 26 February 2024, applies to all proceedings in the Commercial Court of the Supreme Court of Victoria and supersedes the previous version issued in 2017.
The Practice Note addresses the procedural requirements for proceedings in the Commercial Court. The revised Practice Note contains updated information about the requirements for initial directions, second or pre-trial directions hearings, the requirements for urgent applications and interlocutory applications and other significant matters of practice and procedure.
The full text of Practice Note SC CC 1 – Commercial Court (Second Revision) is available here.
Federal Court announces Full Court and Appellate sitting periods for 2025
Date: 24 February 2024
Source: Federal Court of Australia
Abstract:
As set out in our previous Latest Legal Updates in October 2023 and November 2023, the Federal Court of Australia:
- revised the sitting dates for Full Court and appellate matters in February 2024; and
- subsequently sought consultation from the profession to move to three Full Court sitting periods in 2025.
The stated purposes of the court’s proposal were to:
- alleviate the need for the profession and parties to prepare for appeals in January;
- give judges blocks of times to list more matters and lengthier cases in the original jurisdiction, providing parties with greater flexibility in listing trials; and
- realign judges’ workloads to shorten the timeframe between the filing of appeals and the delivery of judgments.
On 22 February 2024, the Federal Court issued a Notice to the Profession to announce that the feedback provided by the profession in response to this proposal was unanimously supportive.
On that basis, the court has implemented its proposal to move to three sitting periods in 2025, being:
- 3 to 28 March 2025;
- 28 July to 29 August 2025; and
- 3 to 28 November 2025.
Have your say: Federal Court of Australia proposes to dissolve the Australian Capital Territory List
Date: 21 February 2024
Jurisdiction: Federal Court
Abstract:
The Federal Court of Australia has released a proposal to dissolve the Australian Capital Territory List and the role of the ACT List Judge.
Currently, the ACT List operates for the case management of proceedings that are filed in the Court’s ACT Registry. Proceedings in the ACT List are managed from the time of filing until they are ready to proceed to a substantive hearing, at which time, the case is allocated to a Judge on the ACT panel.
Under the new proposal, matters will be directly allocated to a Judge on the ACT panel at the time of filing. The advantage of this system is that case management of each matter will be handled by the same Judge that will eventually decide the case, allowing for more tailored justice and efficient timeframes in case management orders. This is the Federal Court’s current approach to managing the Northern Territory and Tasmania Registries.
Individuals in the ACT profession are encouraged to provide feedback on the proposal.
Limitation periods may start running upon the discontinuance of a class action: The Supreme Court of Victoria diverges from Federal Court authority (Moira Shire Council v JLT Risk Solutions)
Date: 14 February 2024
Court: Supreme Court of Victoria
Judges(s): Lysons JA
Judgement date: 19 January 2024
Catchwords: Practice and procedure – Group proceedings – Discontinued proceedings – Limitation period recommencing after discontinuation of proceedings
Abstract:
In Moira Shire Council v JLT Risk Solutions [2024] VSC 4, the Supreme Court of Victoria held that s 33ZE of the Supreme Court Act 1986 (Vic) operates to resume the accrual of limitation periods applicable to group members’ claims upon the discontinuance of a class action, marking a divergence from Federal Court authorities.
The case
Two Victorian local municipal councils (the plaintiffs) commenced a class action against the defendant on behalf of 16 other local councils for alleged breach of contract, negligence and breach of fiduciary duty.
The parties settled their dispute out of court and the plaintiffs subsequently sought court approval to discontinue the class action pursuant to s 33V of the Supreme Court Act 1986 (Vic) (SCA).
At the request of the defendant, the plaintiffs also sought an order to the effect that any limitation periods applicable to group members’ claims start running again from 30 days after the discontinuance.
The Federal Court closely scrutinizes lawyers’ costs of administering a class action settlement scheme and criticises the use of time-costing (Stanford v DePuy International Pty Ltd)
Date: 13 February 2024
Court: Federal Court of Australia
Judge(s): Wigney J
Judgment date: 1 February 2024
Catchwords: Practice and procedure – Class action settlement schemes – Claims for administrative costs – Whether costs relate to work properly undertaken – Whether costs are fair and reasonable
Abstract:
In Stanford v DePuy International Pty Ltd (No 8) [2024] FCA 35, some 7 years after the settlement of a class action, the settlement scheme administrators sought approval for payment of their costs in administering the settlement. In circumstances where the administration costs significantly exceeded the estimates proffered to the court at the time when the settlement was approved, the Federal Court of Australia had to consider whether the costs were properly undertaken and fair and reasonable in amount. In doing so, the court made observations about the appropriateness of using time costing for legal costs in administering a settlement scheme.
Qld - Key provisions of the Justice and Other Legislation Amendment Act 2023 (Qld) commence in February and March 2024, including amendments to costs disclosure thresholds
Date: 9 February 2024
Source: Queensland Legislation
Jurisdiction: Queensland
Abstract:
On 25 January 2024, key provisions of the Justice and Other Legislation Amendment Act 2023 (Qld) (JOLA Act) were proclaimed to commence operation on 1 February 2024 and 1 March 2024, respectively.
According to the Explanatory Notes, one of the principal purposes of the JOLA Act is to “clarify, strengthen and update legislation concerning the administration of justice, including legislation relating to the operation of courts and tribunals, the regulation of the legal profession, the conduct of civil proceedings and electoral matters.”
For further information about the range of amendments occasioned by the JOLA Act, refer to our previous Latest Legal Update.
Some of the more notable amendments for practitioners to be aware of are those to the Legal Profession Act 2007 (Qld) and the Legal Profession Regulation 2017 (Qld) in relation to costs disclosure thresholds.
Key provisions that commenced on 1 February 2024
Supreme Court of Queensland establishes new Building, Engineering and Construction List
Date: 31 January 2024
Jurisdiction: Queensland
Abstract:
On 22 January 2024, the Supreme Court of Queensland issued Practice Direction Number 2 of 2024 (Practice Direction), which establishes a new Building, Engineering and Construction List (BEC List) to improve the conduct of large and complex litigation in relation to building, engineering and construction issues.
The Practice Direction commences operation on 4 March 2024 and applies to large and complex litigation in relation to building, engineering and construction issues commenced in, or transferred to, the Brisbane Registry.
The Practice Direction provides that matters that are sufficiently complex and involve a substantial issue in respect of building, engineering or construction can be placed on the BEC List.
Such matters include:
- proceedings relating to or arising out of:
- the design, carrying out, supervision or inspection of any building or engineering work;
- the performance by any building or engineering expert of any other services with respect to any building or engineering work; or
- any certificate, advice or information given or withheld with respect to any building or engineering work; or
The Practice Direction is available here.
Court Services Victoria re-establishes audio-visual link capabilities following cyber incident and provides an update about its ongoing investigation
Date: 24 January 2024
Jurisdiction: Victoria
Abstract:
In the wake of the cybersecurity incident affecting the courts and tribunals of Victoria, Court Services Victoria has released a statement providing an update.
The update indicates that the incident impacted a single network that manages only audio-visual recordings for all courts and was contained to only that network. The update also provides a table that summarises the date ranges in respect of which matters in each court or tribunal may have been accessed.
Court Services Victoria has indicated that the investigation remains ongoing and that recommends that any individuals who may be affected should contact its dedicated contact centre by phoning 03 9087 6116 or emailing CSVData@courts.vic.gov.au.
Court Services Victoria has confirmed that it has re-established video conferencing facilities in most courts as of 16 January 2024, enabling the return of hybrid hearings from 22 January 2024. Court Services Victoria expects that there will be some delays in the production of transcripts.
New practice direction adjusts how case authorities are cited in the Supreme Court of Queensland
Date: 18 January 2024
Jurisdiction: Queensland
Abstract:
The Supreme Court of Queensland has issued Practice Direction 1 of 2024, applying to the citation of authorities in all proceedings in the Supreme Court of Queensland Trial Division and in the Court of Appeal. Practice Direction 16 of 2013, the previous practice direction concerning the citation of authorities, is repealed under Practice Direction 1 of 2024.
The main adjustment is an increased acceptance of medium neutral citations and a move away from the citation of unreported judgments.
Practitioners should familiarise themselves with the new practice direction before it commences on 29 January 2024. The full Practice Direction 1 of 2024 is available here. The previous Practice Direction 16 of 2013 is available here.
Victorian courts cyber incident: information for practitioners
Date: 10 January 2024
Jurisdiction: Victoria
Abstract:
On 21 December 2023, Court Services Victoria became aware of a cybersecurity incident affecting the courts and tribunals of Victoria.
The incident involved unauthorised access to the audio-visual in-court technology network, impacting the general function of the technology as well as compromising some of the recordings of hearings that took place in late 2023 that were stored on the network.
The targeted network was immediately isolated and disabled and alternate arrangements have been put in place to ensure courts across Victoria continue to operate. A dedicated contact centre has been set up for individuals seeking further assistance or information.
Further information concerning the contact centre, the incident and Court Services Victoria’s response to it is available here. The statements and notices issued by Victorian courts are outlined below.
Magistrates’ Court of Victoria
The Magistrates’ Court of Victoria has released a notice concerning adjusted hearing arrangements from 8 January 2024 until such time as audio-visual link issues are resolved.
The Australasian Institute of Judicial Administration releases its updated guide concerning artificial intelligence decision-making and the courts
Date: 10 January 2024
Abstract:
The Australasian Institute of Judicial Administration (AIJA) has released an updated version of its 2022 guide entitled: ‘AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators’ (Guide).
The Guide has been prepared as a result of surveys and roundtable discussions to identify primary areas of interest of legal personnel including judges, tribunal members and court administrators. The Guide identifies several areas where AI tools can be utilised and explores how these tools may impact core judicial values such as open justice, accountability and equality before the law, procedural fairness, access to justice and efficiency. The Guide also poses and addresses key questions regarding the use of AI in this context.
The updated 2023 version of the Guide incorporates recent developments in case law, legislation and policies as well as guidance on new emerging technology, such as generative AI.
The full Guide is available here.
VCAT launches first phase of new myVCAT online portal
Date: 20 December 2023
Jurisdiction: Victoria
Abstract:
On 7 December 2023, the Victorian Civil & Administrative Tribunal (VCAT) launched the first phase of its new myVCAT online portal.
The new portal replaces the previous goods and services online application form. Users will be able to register for a myVCAT account when submitting an online goods and services application (for new cases lodged from 6 December 2023 onwards).
The portal is designed to allow users to access real time information about their particular case, including access to goods and services application details, documents, tasks, reminders, orders, progress, and other helpful resources.
The new portal is part of the VCAT’s Service Transformation Program, which includes plans to eventually extend myVCAT to cover all application types.
The full VCAT media release is available here.
The New South Wales District Court issues new Practice Note regarding attendance at proceedings by audio-visual link
Date: 19 December 2023
Jurisdiction: New South Wales
Abstract:
The New South Wales District Court has issued new Practice Note DC (Civil) No. 1C – Attendance at Civil Proceedings by Audio Visual Link (AVL) (Practice Note).
The Practice Note commences operation on 29 January 2023 and applies to all matters in the civil jurisdiction of the District Court.
The Practice Note addresses the requirements for applications to attend court remotely via audio-visual link, the details of the court’s audio-visual link protocol, and media attendance by audio-visual link.
The full Practice Note is available here on the court’s website.
High Court finds class action waiver clause unfair, allows Ruby Princess appeal
Date: 6 December 2023
Court: High Court
Judge(s): Gageler CJ, Gordon, Edelman, Gleeson, Jagot JJ
Judgment date: 6 December 2023
Catchwords: CONSUMER PROTECTION - Extraterritorial application of s 23 of Australian Consumer Law - Whether s 5(1)(g) of Competition and Consumer Act 2010 (Cth) extended application of s 23 of ACL to contract- Whether class action waiver clause constituted unfair term under s 23 of ACL and void.
REPRESENTATIVE PROCEEDINGS - Whether class action waiver clause unenforceable as contrary to Pt IVA of Federal Court of Australia Act 1976 (Cth)
PRIVATE INTERNATIONAL LAW – Forum – Exclusive jurisdiction clause – Whether strong reasons not to grant stay of proceedings.
Abstract:
In Karpik v Carnival plc [2023] HCA 39 the High Court determined an interlocutory application arising out of representative proceedings brought on behalf of passengers of the Ruby Princess cruise ship against Carnival plc and Princess Cruise Lines Ltd (Princess) claiming losses caused by illness and deaths caused by the COVID-19 outbreak. The main proceedings were recently determined by the Federal Court in In Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280.
The Federal Court supports the separate determination of questions in the interests of facilitating its overarching purpose (Commens t/as Subsonic Music v Certain Lloyd’s Underwriters subscribing to Policy No ALTCNX1900332)
Date: 1 December 2023
Source: Federal Court of Australia
Judge(s): Jackman J
Judgment date: 16 November 2023
Catchwords: Practice and procedure – Federal Court of Australia – Case management – Application for separate determination of questions
Abstract:
In Commens t/as Subsonic Music v Certain Lloyd’s Underwriters subscribing to Policy No ALTCNX1900332 [2023] FCA 1434, the Federal Court of Australia considered an application for orders for the separate determination of certain questions in the case. The Federal Court considered the application in the context of the overarching purpose contained in s 37M of the Federal Court of Australia Act 1976 (Cth) (Act).
The case
The applicant, Commens t/as Subsonic Music (Commens), sought an order that certain questions be determined separately in the proceeding pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) (Rules).
The effect of the order sought by the applicant would be that all questions in the case, except those relating to the quantification of net loss and interest, would be determined at an initial hearing.
The respondent opposed the application on the basis that:
The ACT Supreme Court reminds practitioners of key requirements in all civil lists
Date: 30 November 2023
Jurisdiction: Australian Capital Territory (ACT)
Abstract:
The Supreme Court of the Australian Capital Territory has released a notice to practitioners to remind them of key requirements of Practice Direction 2 of 2014 and the Court Procedures Rules 2006 (Rules). Registrars expect compliance with these key requirements in all civil lists.
Some of the key requirements addressed by the notice are set out below.
Email filing of documents
Under r 6121(e) of the Rules, documents can only be filed by email with the leave of the Registrar, Senior Deputy Registrars, or Deputy Registrar. Such leave will only be granted in exceptional circumstances.
Parties conferring prior to listings
Under paragraph 18 of Practice Direction 2 of 2014, parties are required to communicate with each prior to any listing before the court to reach agreement on proposed directions. The court expects this to occur even in matters that do not fall within Practice Direction 2 of 2014 unless there are compelling reasons otherwise.
The Supreme Court of Queensland adopts Practice Note – Harmonisation of Schemes
Date: 28 November 2023
Abstract:
The Supreme Court of Queensland has released Practice Direction Number 15 of 2023 relating to the process for approval of members’ schemes of arrangement.
With the release of this Practice Note, the Supreme Court of Queensland becomes the latest Australian court to adopt the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand’s Practice Note – Harmonisation in schemes of arrangement following the Supreme Courts of New South Wales, Western Australia and Victoria and the Federal Court of Australia. More information is available in our earlier Latest Legal Update: Courts issue, reissue and amend key practice notes and practice directions to reflect harmonisation in schemes of arrangement.
Practice Direction Number 15 of 2023 commenced on 15 November 2023 and is available here.
Federal Court rejects privilege claim over Deloitte report in Optus data breach class action (Robertson v Singtel Optus Pty Ltd)
Date: 17 November 2023
Court: Federal Court of Australia – Victoria District Registry
Judge(s): Beach
Judgment date: 10 November 2023
Catchwords: Practice and procedure – Legal professional privilege – Dominant purpose test where there are multiple purposes – Public statements
Abstract:
In the matter of Robertson v Singtel Optus Pty Ltd [2023] FCA 1392, the Federal Court determined that an investigation report prepared by Deloitte in response to the September 2022 Optus data breach was not protected by privilege, despite the assertions of Singtel Optus Pty Ltd (Optus) that the report was prepared for the dominant purpose of assisting its lawyers in relation to the data breach.
Federal Court consults profession in relation to Full Court and Appellate sitting periods for 2025
Date: 17 November 2023
Source: Federal Court of Australia
As set out in our previous Latest Legal Update, the Federal Court of Australia recently revised the sitting dates for Full Court and appellate matters in February 2024.
Following those revisions, the Chief Justice of the Federal Court of Australia has proposed to move to three Full Court sitting periods in 2025, with the first period being in March and the other two periods in August and November.
The stated purposes of this proposal are to:
- Alleviate the need for the profession and parties to prepare for appeals in January;
- Give judges blocks of times to list more matters and lengthier cases in the original jurisdiction, providing parties with greater flexibility in listing trials; and
- Realign judges’ workloads to shorten the timeframe between the filing of appeals and the delivery of judgments.
The court has indicated that if the proposal is implemented, the likely Full Court periods for 2025 would be as follows:
- 3 to 28 March 2025;
- 28 July to 29 August 2025; and
- 3 to 28 November 2025.
NCAT Online Services launches on 20 November 2023
Date: 16 November 2023
Jurisdiction: Victoria
Abstract:
The New South Wales Civil and Administrative Tribunal (NCAT) is preparing to launch its new NCAT Online Services portal for cases in its Consumer and Commercial Division on Monday 20 November 2023.
NCAT Online Services will replace the existing NCAT Online and aims to provide an improved online experience. Through the new online services, users will be able to:
- access all Consumer and Commercial Division case types online;
- save forms as drafts;
- make bulk payments; and
- lodge requests and supporting documentation online.
The NCAT media release regarding the launch of NCAT Online Services is available here. Further information about preparing for the launch of NCAT Online Services, including instructions for registration, is available here .
VCAT releases its 2022/2023 annual report
Date: 13 November 2023
Abstract:
The Victorian Civil & Administrative Tribunal (VCAT) has released its annual report for the 2022/2023 financial year and has tabled it to Parliament.
The annual report addresses a wide range of topics including:
- Broad-level and detailed VCAT data and statistics for the 2022/2023 financial year;
- A summary of the VCAT’s 2023-2025 strategic directions. This includes two major projects: a shift from a paper-based tribunal to a digital one and a re-location of tribunal headquarters;
- A review of the activities and performance of each of the VCAT’s divisions over the 2022/2023 financial year; and
- A review of the VCAT’s provision of inclusive and accessible justice, including remote and in-person hearings.
The press release accompanying the publication of the annual report on VCAT’s website draws special attention to several matters referred to in the report, including the vastly improved clearance rate in the Residential Tenancies division towards the end of the financial year, VCAT’s ongoing digital transformation and the new Melbourne CBD premises at 300 La Trobe Street.
The full release and annual report is available here.
Supreme Court of Victoria issues new practice note adopting harmonisation in schemes of arrangement
Date: 2 November 2023
Source: Supreme Court of Victoria
The Supreme Court of Victoria has issued Practice Note SC CC 9 Schemes of Arrangement, which commences on 1 November 2023 (Practice Note).
The new Practice Note concerns members’ schemes of arrangement and adopts the Practice Note – Harmonisation in schemes of arrangement developed by the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand.
The Federal Court of Australia and the Supreme Courts of New South Wales and Western Australia have also adopted the Practice Note – Harmonisation in schemes of arrangement – for further information, refer to our previous Latest Legal Update.
The full Practice Note is available here.
The Federal Court deciphers ambiguous remittal orders made by the Full Court (New Aim Pty Ltd v Leung (No 3))
Date: 1 November 2023
Court: Federal Court of Australia
Judge(s): O’Callaghan J
Judgment date: 26 October 2023
Catchwords: Practice and Procedure — Remitting orders for trial — new trial versus further hearing and determination — s 28(1)(c) and s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth)
Abstract:
In New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295, the primary issue before the court was the proper construction of a "remittal" order made by the Full Court on appeal, which remittal order provided that “the matter be remitted for retrial”. The successful appellants, New Aim Pty Ltd (New Aim) contended that the order contemplated a new trial, whereas the respondents argued that the order provided that the matter be remitted for further hearing and determination in continuation of the first trial.
The case
This case concerned claims by New Aim, an online retailer, that its former employees had breached confidentiality obligations owed by them to New Aim in equity, under contract or pursuant to the Corporations Act 2001.
The Federal Court indicates that it has the power to incorporate contingency fee payments into common fund orders (Greentree v Jaguar Land Rover Australia (Carriage Application))
Date: 31 October 2023
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 12 October 2023
Catchwords: Practice and procedure – representative proceedings – common fund orders – contingency fee payments
Abstract:
Greentree v Jaguar Land Rover Australia (Carriage Application) [2023] FCA 1209 concerned stay applications in competing representative proceedings, during which Lee J held that the Federal Court of Australia has the power to order settlement common fund orders involving payments to solicitors on a contingency basis in certain circumstances, without breaching the prohibition on solicitors entering into costs agreements that involve contingency arrangements.
The case
This judgment was handed down in the context of two competing representative proceedings commenced against Jaguar Land Rover Australia Pty Ltd (Jaguar) in respect of alleged defects in their motor vehicles.
The applicants in each of these representative proceedings sought orders that the other proceeding be stayed permanently.
The Federal Court considers the requirement for expert witnesses to remain impartial (McNickle v Huntsman Chemical Company Australia Pty Ltd (Evidentiary Ruling))
Date: 30 October 2023
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 10 October 2023
Catchwords: Practice and procedure – Expert evidence – Independence and impartiality of expert witness – Application to exclude evidence pursuant to s 135 of the Evidence Act 1995 (Cth)
Abstract:
McNickle v Huntsman Chemical Company Australia Pty Ltd (Evidentiary Ruling) [2023] FCA 1268 concerned an application by a respondent in a class action to exclude expert evidence on the grounds that the expert lacked the requisite independence and impartiality.
The case
The application arose in the context of a class action proceeding commenced by the lead applicant, McNickle, concerning the alleged carcinogenic effects of Roundup weedkiller. In support of his claims, McNickle relied upon evidence including the opinion of an expert witness, Dr Sawyer.
During the trial, a dispute arose concerning the admissibility of Dr Sawyer’s evidence.
The respondent, Huntsman Chemical Company Australia Pty Ltd (Huntsman), applied for orders to exclude Dr Sawyer’s evidence pursuant to s 135 of the Evidence Act 1995 (Cth) on the basis that Dr Sawyer’s lack of independence and impartiality could result in his evidence being unfairly prejudicial, or be misleading or confusing.
Courts issue, reissue and amend key practice notes and practice directions to reflect harmonisation in schemes of arrangement
Date: 24 October 2023
Abstract:
The Federal Court of Australia, the Supreme Court of New South Wales and the Supreme Court of Western Australia have each issued, reissued, or amended key practice notes and practice directions following the release of the Practice Note – Harmonisation in schemes of arrangement, which was developed by the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand.
The Practice Note – Harmonisation in schemes of arrangement was developed to address differences in schemes practice, recognising that consistency across Australian courts is beneficial for all parties involved.
More specifically:
- in the Federal Court of Australia, the Schemes of Arrangement Practice Note (GPN-SOA) was issued on 13 October 2023 and is available here;
- in the Supreme Court of New South Wales, Practice Note SC EQ 4 – Corporations List was reissued on 13 October 2023 and commenced operation on 18 October 2023. The changes to this Practice Note begin at paragraph 24. Reissued Practice Note SC EQ 4 – Corporations List is available here; and
- in the Supreme Court of Western Australia, the Consolidated Practice Directions were updated on 18 October 2023. The updates are reflected at PD 9.5.2. The updated Consolidated Practice Directions are available here.
ACT Supreme Court issues notices to practitioners concerning drafting orders, requesting in-chambers orders and appearances by audiovisual link
Date: 19 October 2023
Source: ACT Courts
Jurisdiction: Australian Capital Territory
Abstract:
The Supreme Court of the Australian Capital Territory has issued three notices to practitioners concerning the requirements and expectations of the court when:
- drafting orders;
- requesting that orders be made in chambers in the Registrar’s lists; and
- appearing by audiovisual link in the Registrar’s lists.
Notice to Practitioners — Drafting Orders
This notice sets out the court’s expectations concerning the drafting of orders or directions, whether for an originating process, an application in a proceeding or a directions hearing.
The notice provides that the court expects practitioners to pay close attention to the drafting of orders sought, including being aware of the relevant judicial power being sought and specifying how that power is sought to be exercised. Where a particular statutory provision or rule is being invoked, the court expects practitioners to draft orders using language that is consistent with the language of the relevant provision or rule.
In the context of directions hearing, orders should be prepared and distributed to each affected party at least a day in advance of the hearing.
The Supreme Court of Victoria considers principles of case consolidation (Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd)
Date: 16 October 2023
Court: Supreme Court of Victoria – Commercial Court
Judge(s): Delany J
Judgment date: 27 September 2023
Catchwords:
Practice and procedure — Multiplicity of proceedings — Consolidation of proceedings — Overarching purpose
Abstract:
Four separate class action proceedings were initiated against the same defendant over the same subject matter, giving rise to an issue of multiplicity of proceedings in the Supreme Court of Victoria and the Federal Court of Australia. The lead plaintiffs in one of the class actions made an application to the Supreme Court of Victoria to consolidate the four proceedings, necessitating the court’s consideration of the legal principles that apply to consolidation of group proceedings.
The case
Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd [2023] VSC 574 concerned an application for consolidation of four class action proceedings commenced against Downer EDI Ltd (Downer).
Justice Legislation Amendment Act 2023 (Vic) commences operation and amends a variety of instruments concerning practice and procedure in courts and VCAT
Date: 16 October 2024
Source: Victorian Legislation
Jurisdiction: Victoria
Abstract:
The Justice Legislation Amendment Act 2023 (Vic) (Amendment Act) received royal assent on 10 October 2023 and substantially commenced operation on 11 October 2023.
The Amendment Act amends a variety of instruments concerning court and tribunal procedure in Victoria.
The only parts of the Amendment Act that did not commence on 11 October 2023 are Parts 11 and 12, which commence on 1 January 2024 and amend the Crimes Act 1958 (Vic) and the Victoria Police Act 2013 (Vic), respectively.
Some of the more significant amendments contained in the Amendment Act relating to civil procedure in Victoria include:
- Div 2 of Pt 2, which amends the Open Courts Act 2013 (Vic) (OCA), including by:
- amending s 8B(2) of the OCA to clarify that a court or tribunal has the power to determine what means of access (or combination of means of access) is appropriate when determining whether to offer a live broadcast of a hearing, a recording of a hearing, or a transcript of hearing to the public under s 8B(1) of the OCA;
The Federal Court updates sitting periods for the Full Court and appellate matters
Date: 13 October 2023
Source: Federal Court of Australia
Abstract:
Chief Justice Mortimer has revised the sitting dates for the Full Court and appellate matters in the Federal Court of Australia in February 2024 and has flagged additional revisions to come.
The court’s revision of February 2024 sitting periods has been prompted by:
- the reality that practitioners often take leave in January, when submissions, court books and lists of authorities require preparation; and
- the court being effectively unable to list matters in its original jurisdiction between December and February.
Revised sitting dates for February 2024
Accordingly, the Full Court and appellate court sitting periods for February 2024 are now as follows:
- the Full Court will sit for two weeks, commencing on 19 February and ending on 1 March 2024; and
- migration Full Court matters and appellate matters that require expedition (and cannot await the May Full Court sitting period) will sit in the week commencing 12 February 2024 and ending on 16 February 2024. The court envisages that this will pertain to matters involving immigration detention but proposes to consult with practitioners to ascertain the genuine need for expedition before listing any matters during this week.
The Federal Court highlights “Lessons from the Reference Process” for class action lawyers and group members (Gill v Ethicon Sàrl (No 13))
Date: 6 October 2023
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 21 September 2023
Catchwords:
Practice and Procedure – Achieving the overarching purpose in case management of class actions – utility of reference process in large scale litigation – tender process for administration of settlement scheme
Abstract:
In Gill v Ethicon Sàrl (No 13) [2023] FCA 1131, the Federal Court adopted a referee's report in relation to the administration of class action settlement schemes. In doing so, the court annexed the entirety of the report to the judgment for the benefit of group members and so that the approach taken in relation to the reference can be replicated in future class actions.
Background:
The decision concerned the settlement of three open class actions brought against the manufacturers and suppliers of defective synthetic pelvic mesh implants that caused injury and loss to a substantial number of women.
While the court had previously approved the quantum of the settlement, it dealt with the issue as to the appropriate distribution of settlement proceeds as a separate issue.
The Federal Court considers the adoption of a referee’s report and the principles of procedural fairness as they apply to referees’ inquiries (Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6))
Date: 2 October 2023
Court: Federal Court of Australia – Australian Capital Territory District Registry
Judge(s): Katzmann J
Judgment date: 21 September 2023
Abstract:
The decision of Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6) [2023] FCA 1116 concerned the Federal Court’s appointment of a referee to conduct an inquiry into questions relating to a dispute between the applicant and respondents about the underpayment of employee wages. After the completion of the inquiry, the respondents contested the adoption of the recommendations contained in the referee’s report on several grounds, including that there had been a lack of procedural fairness in the preparation of the report.
Background:
The Fair Work Ombudsman (applicant) commenced proceedings against Foot & Thai Massage Pty Ltd and two other individuals (respondents) in respect of a number of alleged breaches of the Fair Work Act 2009 (Cth) (FWA), including the underpayment of wages to seven former employees.
Queensland Parliament passes the Justice and Other Legislation Amendment Act 2023 (Qld)
Date: 2 October 2024
Source: Queensland Legislation
Jurisdiction: Queensland
Abstract:
On 20 September 2023, the Justice and Other Legislation Amendment Act 2023 (Qld) (Amendment Act) was passed by the Parliament of Queensland.
According to the Explanatory Notes, one of the principal purposes of the Amendment Act is to “clarify, strengthen and update legislation concerning the administration of justice, including legislation relating to the operation of courts and tribunals, the regulation of the legal profession, the conduct of civil proceedings and electoral matters.”
Some of the specific matters addressed in the Amendment Act include:
- modernisation of the Appeal Costs Fund Act 1973 (Qld);
- replacement of the Court Funds Act 1973 (Qld) with a new, modernised court funds legislative framework under the Civil Proceedings Act 2011 (Qld) (Civil Proceedings Act);
- clarification of the operation of a provision of the Civil Proceedings Act with respect to payment of interest on a money order debt;
- amendment of the District Court of Queensland Act 1967 (Qld) and the Magistrates Courts Act 1921 (Qld) to allow the courts to make preliminary disclosure orders;
NCAT to launch new Online Service for its Consumer and Commercial Division
Date: 28 September 2023
Source: Civil and Administrative Tribunal
Abstract:
The Civil and Administrative Tribunal of New South Wales (NCAT) has announced that its existing NCAT Online platform will soon be replaced with a new NCAT Online Service in its Consumer and Commercial Division.
This new Online Service will provide a broader range of online forms (and allow those forms to be saved as drafts), enable parties to lodge requests and supporting documents, and facilitate bulk payments.
In preparation for the launch, NCAT has published a series of guides to assist parties (including self-represented parties, real estate agents and authorised officers or delegates) in creating their Online Service accounts.
VCAT to hear planning cases in suburban venues
Date: 22 September 2023
Source: Victorian Civil & Administrative Tribunal
Abstract:
The Victorian Civil and Administrative Tribunal (VCAT) has announced that it will be hearing some planning cases at VCAT locations in Bundoora, Frankston and Oakleigh.
New applications in the Planning and Environment list under ss 80 (conditions appeals) and 82 (objector appeals) of the Planning and Environment Act 1987 (Vic) are likely to be held at one of these suburban venues, depending on which venue is closest to the relevant land.
VCAT has also flagged that some cases with compulsory conferences or hearings on or from 23 October 2023 will also be listed at the closest suburban venue and recommends that practitioners pay careful attention to any tribunal orders.
Practitioners may refer to VCAT’s website for a table setting out where compulsory conferences for different municipalities will be conducted.
NCAT introduces Aboriginal Tenancy List
Date: 19 September 2023
Source: New South Wales Civil and Administrative Tribunal
Abstract:
On 6 September 2023, the new Aboriginal Tenancy List commenced operation in the New South Wales Civil and Administrative Tribunal (NCAT).
The purpose of the list is to “encourage Aboriginal and Torres Strait Islander parties to get more involved with the Tribunal process [and] make it easier for them to access support and advocacy services”.
The Aboriginal Tenancy List will be held every 2 weeks, on a Wednesday.
Aboriginal or Torres Strait Islander tenants or landlords with tenancy or social housing disputes (for example, disputes concerning payment of rent, repairs or changes to a residence, or ending a tenancy agreement) can have their matter heard in the List, which will provide them with:
- access support services and specialist Aboriginal tenants advocates;
- opportunities to discuss the case with a designated Tribunal conciliator to help reach an agreement in a matter;
- additional time for a Tribunal Member to decide the case, where parties are unable to reach an agreement.
Individuals can apply online or fill in a form if they wish to have their case heard in the Aboriginal Tenancy List.