Federal Court of Australia Act 1976 (Cth) Flashcards
1
Q
s 19
A
19 Original jurisdiction
(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.
(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
2
Q
s 20
A
20 Exercise of original jurisdiction
(1) Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.
(1A) If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.
(1B) Subsection (1A) does not apply in relation to indictable primary proceedings.
(2) The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court.
(2A) Subsections (1A) and (2) have effect subject to subsections (3) and (5).
(3) Applications:
(a) for leave or special leave to institute proceedings in the Court; or
(b) for an extension of time within which to institute proceedings in the Court; or
(c) for leave to amend the grounds of an application or appeal to the Court; or
(d) to stay a decision of the tribunal or authority mentioned in subsection (2); must be heard and determined by a single Judge unless:
(e) a Judge directs that the application be heard and determined by a Full Court; or
(f) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
(4) The Rules of Court may make provision enabling applications of the kind mentioned in subsection (3) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing either with or without the consent of the parties.
(5) In a matter coming before the Court as mentioned in subsection (1A) or (2), a single Judge (sitting in Chambers or in open court) or a Full Court may:
(a) join or remove a party; or
(aa) make an interlocutory order pending, or after, the determination of the matter by a Full Court; or
(b) make an order (including an order for costs) by consent disposing of the matter; or
(c) make an order that the matter be dismissed for want of prosecution; or
(d) make an order that the matter be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the applicant to attend a hearing relating to the matter; or
(da) vary or set aside an order under paragraph (aa), (c) or (d); or
(db) in relation to a civil matter, give directions under subsection 37P(2); or
(e) give other directions about the conduct of the matter, including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
(5A) An application for the exercise of a power mentioned in subsection (5) must be heard and determined by a single Judge unless:
(a) a Judge directs that the application be heard and determined by a Full Court; or
(b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
(6) The Rules of Court may make provision enabling the powers in subsection (5) to be exercised, subject to conditions prescribed by the Rules, without an oral hearing either with or without the consent of the parties.
3
Q
s 20A
A
20A Power of the Court to deal with civil matters without an oral hearing
(1) This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.
(2) The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:
(a) the matter is frivolous or vexatious; or
(b) the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or
(c) determination of the matter would not be significantly aided by an oral hearing because:
(i) there is no real issue of fact relevant to determination of the matter; and
(ii) the legal arguments in relation to the matter can be dealt with adequately by written submissions.
(3) This section does not limit subsections 20(4) and (6).
4
Q
s 21
A
21 Declarations of right
(1) The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.
5
Q
s 22
A
22 Determination of matter completely and finally
The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
6
Q
s 23
A
23 Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
7
Q
s 31A
A
31A Summary judgment
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail; for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
(5) This section does not apply to criminal proceedings.
8
Q
s 32
A
32 Jurisdiction in associated matters
Associated matters—civil proceedings
(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked.
(2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter (the core matter) in respect of which an appeal from that judgment, or another judgment of that court, is brought.
(3) Subsections (1) and (2) do not apply in relation to a core matter that is an indictable offence matter. Associated matters—indictable offences
(4) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters (the related matters) that:
(a) arise under any laws made by the Parliament; and
(b) are not otherwise within the Court’s jurisdiction; and
(c) relate to one or more indictable offences; that are associated with an indictable offence matter in which the jurisdiction of the Court is invoked.
(5) The jurisdiction conferred by subsection (4) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a related matter that is associated with an indictable offence matter in respect of which an appeal from that judgment, or another judgment of that court, is brought. Indictable offence matters
(6) For the purposes of this Act, a matter is an indictable offence matter if a proceeding in relation to the matter would be an indictable primary proceeding.
9
Q
s 37M
A
37M The overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court made under this Act;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.
10
Q
37N
A
37N Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
(4) In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client.
11
Q
s 37P
A
37P Power of the Court to give directions about practice and procedure in a civil proceeding
(1) This section applies in relation to a civil proceeding before the Court.
(2) The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.
(3) Without limiting the generality of subsection (2), a direction may:
(a) require things to be done; or
(b) set time limits for the doing of anything, or the completion of any part of the proceeding; or
(c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or
(d) provide for submissions to be made in writing; or
(e) limit the length of submissions (whether written or oral); or
(f) waive or vary any provision of the Rules of Court in their application to the proceeding; or
(g) revoke or vary an earlier direction.
(4) In considering whether to give directions under subsection (2), the Court may also consider whether to make an order under subsection 53A(1).
(5) If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.
(6) In particular, the Court or Judge may do any of the following:
(a) dismiss the proceeding in whole or in part;
(b) strike out, amend or limit any part of a party’s claim or defence;
(c) disallow or reject any evidence;
(d) award costs against a party;
(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(7) Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.
