On 16 October 2015, the Federal Court issued a consultation draft for its ‘Central Practice Note’ for the new National Court Framework (NCF), the new national case management system of the Federal Court which is due to be implemented in early 2016.
Under the new NCF, the majority of matters commenced in the Federal Court will be allocated into one of eight National Practice Areas (NPAs), some of which have sub-areas. “Class Actions” is not a specific NPA – however, particular processes will be used in relation to them, as described below.
National Practice Areas and general procedures
The new NPAs are:
- Administrative and Constitutional Law and Human Rights
- Admiralty and Maritime
- Commercial and Corporations, with the following sub-areas:
- Commercial Contracts, Banking, Finance and Insurance
- Corporations and Corporate Insolvency
- Economic Regulator, Competition and Access
- General and Personal Insolvency
- International Commercial Arbitration
- Regulator and Consumer Protection
- Criminal Cartel Trials
- Employment and Industrial Relations
- Intellectual Property, with the following sub-areas:
- Copyright and Industrial Designs
- Patents and associated Statutes
- Trade Marks
- Native Title
Judges of the Federal Court will be allocated to NPAs and sub-areas based on their experience and expertise. At the time of filing a new proceeding in the Federal Court, parties will select a relevant NPA and any sub-area, and – subject to the Court confirming that the selected NPA is the most appropriate – matters will then generally be allocated in rotation to judges in the NPA or sub-area in the registry of filing (subject to availability).
Where the subject matter of the dispute does not fall within a specialist NPA, the matter will be allocated to a suitable judge with availability and will be guided by the Central Practice Note.
The NPAs will each have a dedicated case management practice note. These practice notes, along with the ‘Central Practice Note’, will replace all pre-existing practice notes and administrative guides issued by the Court, including those that related to the Fast Track List, which will no longer exist under the NCF. Instead of the Fast Track List, parties may now seek an expedited or truncated hearing process or concise pleadings in any case within any NPA. There will also no longer be any registry-specific, or Judge specific, administrative notices or case management guides issued.
The reforms are designed to create a nationally consistent approach to the case management of Federal Court proceedings, which in turn should produce consistency in judgments, reduce process driven disputes, and result in swifter resolution of disputes (including through an expanded use of expedited Court processes).
Impact on class actions
There is no specialist NPA for class actions. This is because the Federal Court regards expertise in class actions as a procedural mechanism, and because judicial experience in class actions does not necessarily correlate with any particular subject matter expertise.
The principal NCF reforms relating to class actions are as follows:
- Two judges will (generally) be docketed to a class action proceeding:
- a trial judge, who sits within the relevant NPA or sub-area, to hear the trial and deal with evidentiary and trial preparation issues (including in relation to the determination of common questions); and
- if the trial judge is not experienced in class actions, a case management judge with experience in class actions to hear and determine interlocutory disputes and proactively manage the case.
- The appointment of a Class Actions Registrar, to assist judges and the parties and act as a central contact point in the management of class actions. In particular, the Class Actions Registrar will seek to convene an early mediation in order to understand the barriers to resolving the dispute and the information that the parties might need to progress settlement discussions (including in relation to the value of the claim).
- Changes to ensure that there is adequate disclosure of legal costs agreements and litigation funding agreements to class members, the respondent and the Court, and the disclosure of potential of conflicts of interest between lawyers, funders and class members.
The introduction of the case management judge is the most significant formal change to the class actions system under the NCF, although the “two-judge” approach has already been implemented in several class actions to date. For example, Justices Murphy and Beach (Victorian Registry), both experienced in the management of class actions, are docketed as the case management judge in proceedings filed in the New South Wales Registry of the Federal Court.
The new NPA practice notes and the proposed changes to the class actions framework under the NCF are currently in the consultation phase and are due to be finalised in early 2016.