NOTICE TO PRACTITIONERS IN ALL STATES AND TERRITORIES

Jurisdiction has been conferred upon the Federal Circuit Court of Australia (“the Court”) by the Admiralty Act 1988 (Cth). In personam jurisdiction has been conferred, not in rem jurisdiction.

The purpose of this information is to set out the arrangements that the Court has put in place for the conduct of Admiralty matters. This information deals with: the new national arrangement, the identification of Admiralty matters covered by the new arrangements, in personam proceedings, assisted or alternative dispute resolution, arbitration, and the proper approach to Admiralty litigation. In particular, parties and practitioners must be aware of and comply with the Admiralty and Maritime Practice Direction No. 2 of 2019 of the Court.

Admiralty and Maritime National Practice Area

A national arrangement has been established whereby Admiralty Panel Judges will undertake the Admiralty and Maritime work of the Court. They will be assisted in undertaking the work by nominated Registrars, and skilled Registry officers.

Western Australia, South Australia & Northern Territory

Judge Chris Kendall

Tel: (08) 9268 7429
Fax: (08) 9221 3261
Email: associate.JudgeKendall@federalcircuitcourt.gov.au

Victoria and Tasmania

Judge Philip Burchardt

Tel: (03) 8600 4324
Fax: (03) 8600 8249
Email: associate.JudgeBurchardt@federalcircuitcourt.gov.au

New South Wales and Australian Capital Territory

Judge Sylvia Emmett

Tel: (02) 8272 2012
Fax: (02) 8272 2058
Email: associate.judgeemmett@federalcircuitcourt.gov.au

Judge Alexander Street

Tel: (02) 8272 2013
Fax: (02) 8272 2058
Email: associate.judgestreet@federalcircuitcourt.gov.au

Queensland

Judge Michael Jarrett

Tel: (07) 3361 1674
Fax: (07) 3361 1631
Email: associate.judgejarrett@federalcircuitcourt.gov.au

Admiralty and maritime matters

The Admiralty and maritime work of the Court is limited to proceedings under ss.9, 27 and 28 of the Admiralty Act 1988 (Cth) and any matters referred by the Federal Court.

When a matter falls within the Admiralty and maritime work, practitioners should ensure that they are familiar with the Admiralty and Maritime Practice Direction No. 2 of 2019.

In Personam Proceedings

The Admiralty Panel Judges will attempt to harmonise procedure in in personam actions so that they are dealt with consistently by the Court nationally. Matters will be assigned directly to the docket(s) of the Admiralty Panel Judges in accordance with the Admiralty and Maritime Practice Direction No. 2 of 2019.

Urgent Admiralty or maritime applications should be made to an Admiralty Panel Judge or the duty judge or, if he or she is unavailable, to another Admiralty Judge in the nearest Registry.

Forms

The Admiralty Rules 1988 (the 'Admiralty Rules') do not provide for how an action in personam is to be commenced other than to state that such an action cannot be commenced by the same initiating process as the process initiating an action in rem. However, the Admiralty Rules prescribe the title of documents for use in proceedings under the Admiralty Act 1988.

In personam applications are to be commenced in the Court on the Application form approved for use for general federal law proceedings pursuant to the Federal Circuit Court Rules 2001.

If proceedings are transferred from the Federal Court to the Federal Circuit Court and comply with the form requirements prescribed for use in the Federal Court, there will no need for new forms/pleadings to be prepared.

Pleadings - points of claim

The grounds of an application must explain briefly the basis on which the orders are sought. Where appropriate, pleadings will be ordered. In such instance an applicant may attach a pleading by way of points of claim. Such pleading should observe the requirements of the Federal Court Rules. It should identify in summary form the material facts on which the applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given.

Assisted or Alternative Dispute Resolution (ADR)

Sections 34 and 35 of the Federal Circuit Court of Australia Act 1999 provide for Court ordered mediation and arbitration (the latter only with consent). Immunity is conferred on the mediator or arbitrator. The parties are expected to discuss the utility of any such ADR mechanism in their case. The Court has Registry officers shared with the Federal Court who are knowledgeable in maritime matters and cargo claims and who are trained mediators. Early mediation or early neutral evaluation by a Registrar or a third party will be encouraged and sometimes ordered. Mediation can also be used to help identify and reduce issues in dispute, or to eliminate procedural arguments, as well as for the purposes of resolving the whole matter.

It is expected that parties will in general seek an early resolution of matters and that they will consider Court annexed mediation or early neutral evaluation. This is especially so for the resolution of small cargo claims in a speedy and inexpensive manner.

In appropriate cases directions can be made to refer appropriate issues to a Registrar or to fix the matter for an intensive case management conference.

Court annexed arbitration

The Court has power to refer matters to arbitration under s.35 of the Federal Circuit Court of Australia Act 1999. This may be particularly suitable in small cargo claims. If this course were taken, parties could agree to deal with the matter on the papers, or with minimal oral evidence, waiving rules of evidence. Sections 36 and 37 of the Federal Circuit Court of Australia Act 1999provide for referral of questions of law and review on a question of law to the Court. By this mechanism, if appropriate, appeals on factual questions may be eliminated.

Approach of Practitioners and Litigants to Admiralty and Maritime litigation

There will always be a directions hearing on the first court date at which a final hearing date may be fixed or the proceeding referred to mediation or arbitration. Parties and their representatives should comply with the Admiralty and Maritime Practice Direction No. 2 of 2019. Parties are encouraged to agree upon draft short minutes of orders and send them by email to the Admiralty Panel Judge’s associate prior to any scheduled directions hearing. In some instances, apart from the first court date, the need for a hearing may be avoided should the parties agree on minutes of orders and the Judge considers them appropriate to make those orders.

At the first court date the court will explore the nature of the dispute and the issues raised, whether technical or evidentiary – including any difficulties in obtaining instructions and the availability of witnesses. The parties should attend the first court date prepared and fully informed in order to partake in a vigorous exploration of the proceeding and its management in the court. The court adopts the view expressed by the Federal Court that it is not an acceptable way of conducting litigation to “put the other side to proof” on all issues. It is the duty of the parties and their legal representatives promptly to ascertain, as far as reasonably possible the nature and extent of the facts which pertain to any particular case. This is not limited to the particular points which the party wants to prove. The parties are expected to identify the real and genuine issues in dispute, whether of fact or of law after due investigation.

It is the duty of the profession to assist the Court in the performance of its duty to resolve disputes by reference to what truly is, or should be, in dispute: see generally Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453, and see the speech by Hayne J 'Judicial Case Management and the Duties of Counsel', Wednesday 24 February 1999 to the Readers of the Bar Practice Course, Brisbane, contained on the High Court Website under the link 'publications'. In this context, parties should expect that the Court will be ready to use s.190(3) of the Evidence Act 1995 (Cth) in appropriate circumstances to lessen the cost of proving matters not bona fide in dispute.

How the parties co-operate to identify the issues in dispute, and to agree on facts that are not truly in dispute is a matter for the profession and their commercial clients. An aspect of this co-operation between the parties’ representatives that the Court expects, however, is the provision of information and documentation in a prompt and timely fashion. Where legal practitioners make reasonable requests for documents or information (whether strictly 'particulars' or not) those requests should generally be met without the delay. In some cases, for various reasons, the formality (and cost) of a verified list of documents is necessary. It is inappropriate for one party to send submissions, letters and partisan documents to the Judge. The facsimile machine and the email system are not to be used for private or unilateral filings of submissions or complaints without the leave of the court. But if all parties agree on a communication being sent to a Federal Judge it may be forwarded, without leave, to the associate.

Aim of the new arrangements

The underlying idea of this new arrangement is the provision by the Court of the full range of its facilities, including mediation, early neutral evaluation, arbitration and judicial hearing to bring matters flexibly, cheaply and speedily to resolution. The Court encourages the use of external mediation and arbitration. Equally it is able, should parties and the profession desire it, to provide specialised, skilled Judges and Registrars who can deal with matters in a variety of ways best suited to the particular maritime dispute. The Court intends the practices to be in harmony with the approach adopted in the Federal Court of Australia in first instance admiralty matters in personam. The use of skilled Registrars and the Admiralty Panel Judges will create an integrated, flexible and efficient exercise of Admiralty and Maritime jurisdiction in this Court.