Federal Court of Australia Discussion Forum Commercial and Corporations National Practice Area (NPA)

2 National Court Framework (NCF) – Key Features Court Structure Practice & Procedure Allocation  National approach  Eight National Practice Areas (NPAs)  National and Registry Coordinating NPA Judges  Dedicated NPA Judges  Nationally consistent Registry arrangements  Move from process-driven case management to flexible & tailored case management  Nationally consistent and simplified practice  New PNs – Central, NPAs and General  National ‘direct to chambers’ Duty System  Timely & managed judgment delivery  Docket system  Consistency through centralised allocations  Matters allocated to dedicated NPA judges  Character of the matter guiding the allocation

 The Court’s work to be organised and managed nationally by reference to subject matter areas – NPAs and sub-areas 3 NCF – NPAs & sub-areas

Commercial & Corporations NPA Judges  Dedicate group of Judges allocated Commercial and Corporations matters (details of NPA Judges on Court’s website)  National Coordinating Judges: Justice Middleton & Justice Foster  Registry Coordinating Judges: 4 Commercial and Corporations NPA NSW/ACTVIC/TASQLDSA/NTWA Justice Foster Justice Gleeson Justice Middleton Justice Beach Justice Dowsett Justice Greenwood Justice WhiteJustice Gilmour

National Corporations Lists  All registries have a Corporations List and dedicated Corporations Judges National Duty arrangements  All registries have dedicated Commercial and Corporations Duty Judges – advised on Court List  Practitioners liaise directly with Associate of Commercial and Corporations Duty Judge  Self Represented Litigants liaise directly with NCF or SRL Co-coordinator 5 Commercial and Corporations NPA

6 NCF - New Practice Notes (PNs) Increased efficiency in Case Management  A key component of the NCF reform is the review of the Court’s practice documents to ensure nationally consistent and simplified practice  The draft Central PN, draft NPA PNs and some of the general PNs (notably the draft Class Actions PN) have been developed and undergone extensive internal and external consultation  The Central PN: -addresses guiding principles & key case management principles to NPAs -core guiding PN for practitioners -applies to all NPAs -aims to ensure case management is not process driven or prescriptive, but flexible with parties & practitioners being encouraged & expected to take a common sense & cooperative approach to litigation to reduce time & costs  Interlocking with the Central PN is each of the NPA PNs and General PNs, including the Commercial & Corporations NPA PN, the Class Actions PN and general PNs

7 New Practice Notes (PNs) – Consultation Process  The Central Practice Note (CPN) and NPA Practice Notes have been circulated to the profession as part of the Court’s consultation process  The Court received significant submissions from a wide range of sources, including State Law Societies and Bar Associations, the Law Council, law firms and individual practitioners  The feedback received was overwhelmingly supportive of the NCF and the Court’s new case management initiatives  Although a range of concerns or queries are raised about certain features of the PNs, almost without exception, the reforms are endorsed in the submissions received

There were a large number of issues raised relevant to the Commercial and Corporations NPA in the submissions. Ten of the most regular issues raised relate to the following:  Allocation of matters (Part 4 – CPN and C&C PN) – what NPA or sub- area will apply?  Duty system (Part 5 – CPN and Part 4 - C&C PN) – direct to chambers system endorsed. Queries regarding injunctions process, including ex parte applications (e.g. freezing orders).  Commencing proceedings - Concise statement method (6.5 – CPN and 5.4 and C&C PN) – when should this be used? Concern that pleadings are being abolished. What should it look like?  Commencing proceedings - Fast track (6.3 – 6.7 – CPN and 5.14 – C&C PN) – is it abolished? 8 Commercial and Corporations Feedback – Main Issues

 Timing and content of first case management hearing – will parties (especially respondents) have enough time to prepare? What will happen at the first case management hearing?  Discovery: Redfern procedure – when will this apply? (C&C ). New discovery obligations (Part 10 CPN) – what are they?  Evidence: Memorial procedure – when will this apply? (C&C ). Informal exchange of proofs of evidence (CPN 11.5) – how will this work?  Submissions – involvement of lawyers in preparation (CPN 14.1)  Standard orders - Will the Court publish standard orders and other template material?  Further practice notes – Will there be further practice notes issued? 9 Commercial and Corporations Feedback – Main Issues

 Draft Class Actions Practice Note builds on the existing practice note (Representative proceedings CM17)  Class Actions Practice Note has been circulated to the profession as part of the Court’s consultation process (which concluded in early March 2016).  There are a number of key features to the draft practice note:  Change in description to “class actions”, as they are commonly known and referred to, rather than “representative proceedings”;  Two-judge case management / hearing approach (using the terms “Case Management Judge” and “Trial judge”);  Creation of a “Class Actions Registrar” role to assist in the co-ordination of certain types of class actions cases if it is considered appropriate by the judges involved;  Some balanced disclosure requirements regarding costs agreements and litigation funding agreements; and  Guidance on communication with class members. 10 Class Actions Practice Note

A large number of issues were raised relevant to the Class Actions Practice Note. The most regular issues raised relate to the following:  Judicial Roles [Part 4] - The relative roles of the Case Management Judge and Trial Judge to facilitate the efficient conduct of the matter. Maintaining the advantages of the docket system. Understanding what role each judge takes and which judge will hear certain matters.  Class Actions Registrar [Part 4] - Role of the Class Actions Registrar in communication with the Court and case management.  Disclosure to class members re costs & litigation funding agreements [Part 5] - Issues regarding the timing and extent of disclosure (including any ongoing obligations to disclose).  Disclosure to other parties of costs & litigation funding agreements [Part 6] - Issues raised regarding the extent of disclosure and potential imbalance of disclosure as between plaintiffs and respondents (i.e. should respondents insurance arrangements be disclosed?). Further questions arising in respect of the objections process, ability to redact information and whether this part should be moderated. 11 Class Actions Practice Note Feedback – Main issues

 First Case Management Hearing (CMH) [Part 7] - Some issues raised about the timing of the first CMH (currently 8 weeks from filing) and what will be able to be addressed at that hearing. Supplementary CMHs are expected to be needed.  ADR [Parts 7 &9] - Issues arising concerning the timing of ADR and how it may most effectively be used. Importance of ADR occurring at the most appropriate time for each case and what information is needed for ADR to be effective.  Communication with Class Members [Part 10] - Questions arising in respect of communications with Class members that may not be clients of the Applicant’s lawyers.  Opt Out Notice [Part 11] - Issues arising as to the form and content of the sample opt out notice, including recent developments in case law relevant to the clear disclosure to group members about potential ‘estoppel’ consequences.  Other issues - a number of issues relating to the process of finalising settlements [Part 13 & 14] and the role of the Court in addressing the legal costs and funding charges that may arise from settlements [Part 15], including a concern about the extent of ‘interrogation’ of such costs and charges. 12 Class Actions Practice Note Feedback – Main issues

 Finalise Central Practice Note (CPN), NPA Practice Notes & Class Actions Practice Note  Update the Court’s website – with NPA specific information and resources  Review process of practice notes and case management initiatives  Establishing Standing Users’ Group 13 Commercial and Corporations NPA – Next Steps