In Brief Issue #1088

Federal Court of Australia

A sitting to mark the retirement of the Honourable Chief Justice James Allsop AC of the Federal Court of Australia will be held on:

Wednesday, 8 March 2023 at 9:30am

Court 1, Level 8, Federal Court of Australia

Please RSVP to Tameea Lock at FCA.Invitations@fedcourt.gov.au.

Due to the anticipated number of attendees it is suggested you allow plenty of time to pass through the security entrance at the Court.

Individuals may choose to wear masks.

County Court of Victoria

A farewell ceremony will be held to acknowledge His Honour Judge James Parrish’s retirement and service to the community.

Judge Parrish’s farewell ceremony will take place in Ceremonial Court 3.3 of the County Court of Victoria, 250 William Street, Melbourne on:

Wednesday, 1 March 2023 at 4:30pm.

All counsel attending are asked to robe.

The Department of Climate Change, Energy, the Environment and Water and the First Nations Heritage Protection Alliance have published an Options Paper, which presents three options for law reform for the protection of First Nations cultural heritage. The Options Paper is available here.

Expressions of interest are sought from those members of the Bar who wish to attend an internal Law Council of Australia (LCA) roundtable meeting to discuss the reform options for First Nations cultural heritage legislations.

To assist the Bar Council Executive in selecting the representative, your expression of interest should identify any relevant areas of experience or expertise. Please submit your expression of interest to policy@vicbar.com.au by COB Tuesday, 14 February 2023.

Law Week is scheduled for Monday, 15 May to Sunday, 21 May 2023.

The Victoria Law Foundation is now accepting proposals for events.

The Victorian Bar is a sponsor of Law Week, and we are seeking members interested in hosting an event during Law Week.

If you have a great idea for an event that will improve the Victorian community’s understanding of the law or the legal system, let us know by emailing the Victorian Bar team at communications@vicbar.com.au.

Mediation is an essential part of the justice system with a great many litigated matters being referred to mediation. Barristers and law professionals wishing to become an accredited mediator under the National Mediator Accreditation System can register for the Lawyers Mediation Certificate (LMC) six-day course (on 19-21 May & 26-28 May 2023) here. Early Bird discounts apply, places are limited.

The Victorian Bar are proud to support the Law Council of Australia’s Commonwealth Law Conference on Friday, 24 February 2023.

The Law Council of Australia’s Federal Litigation and Dispute Resolution Section invites you to attend a conference covering a broad range of topics presented by leading lawyers in federal law, in-house counsel, members of the judiciary and federal tribunal members. The conference will take place in person in Melbourne.

Registrations are now open and close at 5:00pm on Thursday, 16 February 2023. 

The conference theme is "Connections and Coherence in Federal Litigation".

A few of the topics on offer:

• Federal Practice & Procedure
• Industrial Law 
• Class Actions
• Taxation and Revenue Litigation
• Merits review and the AAT
• Migration Law
• Privileges and immunities

Click here for more information and to register.

Click here to view the flyer.

Chamber allocations reopened on Tuesday, 31 January 2023. To view available chambers, click here.

Wednesday 1:00pm-2:00pm

Term 1 – 1 March to 5 April 2023

Members of the extended Victorian Bar community – barristers, clerks, judicial officers, staff members and friends are invited to join together with the fabulous Sue Johnson (of Coco’s Lunch) for a new chapter of the VicBar Choir.

We know Sue can sing so you don’t have to bring anything other than a willingness to have a go and discover or re-discover the benefits of an hour of joy in your working week.

Cost to be advised (depending on numbers) in the range $120 to $180 for the term.

Click here to register your interest.

Law Library Victoria and BottledSnail Productions present Shakespeare in the Supreme, a series of rehearsed play readings, held in the Supreme Court Library on Wednesday, 15 and Thursday, 16 February.

This is the first "in person" performed reading back in the Supreme Court Library after the company performed the famous Shakespeare tragedy "Romeo and Juliet" in early 2020 and then moved online in 2021 and 2022.

From one famous Shakespeare play to another, the first performance this year in the 2023 play reading series will be a reading of the comedy "Twelfth Night."

Mistaken identity, love triangles, deceit, this comedy has everything and will be once again read by a number of experienced actors from BottledSnail Productions and the Melbourne legal community. The rehearsed reading is directed by the Artistic Director of BottledSnail Productions, Nicky Neville-Jones.

Studio 11 warmly welcomes you back to Chambers and is delighted to show and share its first mixed exhibition for 2023 comprising some 45 works from artists including:

Llewelyn Ash

Andrew Baines

Min-Woo Bang

Jenny Coker

Janine Daddo

Tracy Dods

Steve Harris

David Hinchliffe

Julie Hutchings

Alan Kuczynski

Kate Piekutowski

Tim Shaw

Lisa Russell

Lisa Taylor King

Miertje Skidmore

Belinda Wilson

Patrick Wong

The exhibition includes paintings, etching on paper, sculpture and beautiful glass work.

Why not take a break and come and spend some time with the works on Level 11 East, which are all for sale with work sheets available on the floor.

The exhibition runs until 31 March 2023.

For enquiries contact lauracolla@vicbar.com.au

Dear Essoign Club Members,

We are open daily from 7:30am – till late.

Breakfast - for dine-in or takeaway.

Lunch – Daily Café Menu take away or delivery.

Lunch Dine-In - A La Carte from midday.

Bar – EVERY EVENING  - $5 Beer & Wine from 5pm till late with light snacks available.

Catering & Events - Special lunches, working lunches, private dinners or something special you may have in mind. Email us at essoign@vicbar.com.au

On Thursday 12 January 2023, the Federal Court Legislation Amendment Rules 2022 were registered on the Federal Register of Legislation. These Amendment Rules, which commence today, amend the Federal Court Rules 2011, the Federal Court (Criminal Proceedings) Rules 2016, the Federal Court (Bankruptcy) Rules 2016 and the Federal Court (Corporations) Rules 2000.

In very general terms, the Amendment Rules update references to regulations and the Federal Circuit and Family Court of Australia. They also clarify the transfer of proceedings to and from the Federal Circuit and Family Court of Australia (Division 2).

A range of amendments were introduced to provide for greater rule harmonisation between the various federal courts, as well as the State and Territories. These amendments were consistent with recommendations from the Council of Chief Justices. The Amendment Rules also improve the rules relating to examinations by a medical expert and limit non-party access to documents until after an initial case management hearing or a hearing (whichever is the earlier).

Click the links for the registered Rules and Explanatory Statement for your information.

The registrars of the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the “Courts”) do an extraordinary job undertaking difficult and critically important work across all areas of law, including court hearings, case management and dispute resolution.

It is timely for the Courts to provide an update and to clarify the procedure when raising any concern or complaint regarding registrars, especially given the significant court reforms recently implemented, the increased number of registrars, and the greater volume and different categories of work that registrars now undertake. The Courts also recognise that it is important to hear from practitioners and other court users about any genuine concern that they may have in respect of a judicial officer as a valuable means by which the Courts can monitor quality of service and, where required, make improvements. The Courts also draw upon complaints and feedback mechanisms to inform and improve court practices, education and training.

Therefore, I note the following information and relevant procedures applicable to any registrar of the Federal Circuit and Family Court of Australia.

Complaints about cases that could be dealt with by way of an application to review

A thorough mechanism exists for parties to be able to review a decision of a registrar. Parties who are concerned about the decision made by a registrar, or the conduct of proceedings before a registrar, or about any other matter in connection with the relevant case that is capable of being raised in an Application for Review of a registrar’s decision, should consider whether or not to make an application to review the decision. Allegations of errors by a registrar in the conduct of proceedings, the evidence relied upon or decisions made by a registrar can only be determined by way of the formal Application for Review process. It should be noted that a time limit applies in respect of such reviews:

• in a family law proceeding, 21 days;
• in a bankruptcy proceeding, 21 days; and
• in any other general federal law proceeding, 7 days.

If a complaint relating to a decision of a registrar is received about matters that are, or were, capable of being dealt with in an Application for Review of a registrar’s decision, the complainant will be advised that the matter is not one that the Chief Executive Officer and Principal Registrar can investigate and that such a matter cannot be dealt with under any complaints procedure.

Enquiry, concern or complaint in relation to a reserved judgment of a registrar

The Courts’ benchmark for registrars to hand down reserved judgments is within 3 months of the hearing or receipt of written submissions. Given the nature of the work undertaken by registrars, it is expected that, other than in very exceptional circumstances, registrars should deliver their judgment within that 3-month period. A party should therefore not seek to make an enquiry, or raise a concern or complaint in relation to a reserved judgment of a registrar, until that period has expired. This differs to the relevant process regarding judges, which involves a process of referral to the Chief Justice, and which requires 6 months to elapse before the raising of the concern – see the Judicial Complaints Procedure and Courts’ Complaints Policy.

There are two ways in which an enquiry, concern or complaint about a reserved judgment of a registrar can be made (after the 3-month period has expired). The two options are outlined below:

1. The simplest and most direct method is by raising the issue, preferably by email, directly with the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia. Relevant details, including the case name and file number, should be provided and the correspondence should be addressed to:
   
   Chief Executive Officer and Principal Registrar
   Federal Circuit and Family Court of Australia
   GPO Box 9991, Melbourne Vic 3001
   Email: customer.service@fcfcoa.gov.au
   
   The Chief Executive Officer and Principal Registrar (or delegate) will then appropriately address the issue, including liaising with the relevant registrar, and a response will be provided.
    
2. Alternatively, and particularly if a party prefers not to be identified, a party can send a letter to the President of the Law Society/Institute or Bar Association in the State or Territory in which the matter was heard, and request that the President take up the matter with the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia. If the party prefers, this process can be undertaken without identifying which party has raised the issue. The Chief Executive Officer and Principal Registrar (or delegate) will then appropriately address the issue, including liaising with the relevant registrar, and a response will be provided.

Raising concerns or making formal complaints about the conduct of a registrar

As noted above, no complaints process in respect of a registrar will be applied if the issue raised is one which should have been dealt with through an Application to Review. If, however, the matter relates to the conduct of a registrar, there are two approaches that may be adopted:

1. Formal complaint approach - A formal complaint regarding a registrar’s conduct will fall under the Courts’ Complaints Policy, see: www.fcfcoa.gov.au/policies-and-procedures/complaints-policy. Formal complaints about registrar conduct should be addressed to the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia as indicated in the policy referred to above. In addition to a clear explanation of the issues complained of, complaints are to include the following details relevant to the complainant:
   • Full name, postal address, contact telephone number;
   • Case name and file number (if applicable)

   Complaints submitted via the above process will be treated as a formal complaint. As such, an appropriate and transparent complaints process, affording procedural fairness to all concerned, will be adopted.

2. Informal approach – The Courts recognise that there may be circumstances where, in particular for legal practitioners, sensitive issues may be appropriate to raise and the legal practitioner may wish to not be identified, or may not wish to make a formal complaint as an initial step, or at all. In such circumstances the legal practitioner may raise the issue directly, but informally, with the Chief Executive Officer and Principal Registrar (via email: customer.service@fcfcoa.gov.au). Alternatively, the legal practitioner may approach the President of the appropriate State or Territory Law Society/Institute or Bar Association and request that the President take up the matter with the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia. If the legal practitioner prefers, this process can be undertaken without identifying themselves to the Courts. The Chief Executive Officer and Principal Registrar (or delegate) will then appropriately address the issue and a response will be provided.
   
   It should be noted that the informal approach should not be utilised for matters of a trivial nature. A complaint as to conduct is still a matter of a significance and, despite the informal nature of the approach, will be taken seriously. All matters involving an informal approach will be treated sensitively and considered thoroughly, and the option of the formal complaint process being subsequently used will remain open. Matters using this approach will also be treated confidentially at all times. Naturally, the informal nature of the approach, particularly if anonymity is sought by the legal practitioner raising the issue, will impact the process and the ability to fully investigate or consider the relevant issues. Nonetheless, this approach is an important tool available to raise a sensitive issue, particularly if the legal practitioner may not otherwise be prepared to raise the issue of concern through more formal processes.

Confidentiality and other matters

For all of the above processes, whether formal or informal, and having regard to the nature of the complaint, I may refer the complaint, concern or enquiry to a delegate to manage and respond to. This may include the Deputy Principal Registrar (Ms Virginia Wilson), the Executive Director – National Registrar Practice and Operations (Senior Judicial Registrar Anne-Marie Rice), and/or the National Judicial Registrar – Judicial and Registrar Case Management (Judicial Registrar Amanda Morris). All complaints processes and the material provided or produced as part of them, will also be treated as confidential and no one outside the complaints process will be permitted access to the confidential information or material. This confidentiality is important in order to ensure the integrity and fairness of the process, and the well-being of all involved. In circumstances where a formal complaint has been made out, it may be necessary for the Court to report or comment publicly on it in some way.

The Supreme Court of Victoria and the County Court of Victoria are inviting legal service providers to consider a Consultation Paper on time-based costing, and to complete a survey on rates of charge.

Responses to the Consultation Paper and Survey will assist the Courts in formulating a new method of taxation which is transparent, cost-effective and an efficient means of party/party costs recovery for successful litigants. It will have no bearing on solicitor/client taxations.

The Courts seek responses to the Consultation Paper and Survey by Friday, 3 February 2023.

Please read more on the Supreme Court’s website.

The Australian Association of Women Judges stands with the women and girls of Afghanistan in their calls for support to protect their human rights, including to education.

Australia is now home to 17 women judges from Afghanistan and their families, who are devastated by what is happening in their country. In the late 1990s, when the Taliban was in power for the first time, some of those judges were girls and could not attend school. Others, who were already Judges, were removed from office, but worked tirelessly to provide education for Afghan girls and women, whether in Afghanistan or as refugees in countries such as Pakistan.

When the Taliban again came to power in 2021, its leaders said it would honour the human rights of women within the bounds of Islamic law. Yet Afghanistan is the only Islamic country in the world that forbids half its population from attending education institutions. The legacy will be an immeasurable loss to the people and economy of that nation, not just the women and girls whose hopes for equal participation in public life have been so cruelly dismissed. It will also put the health and welfare of women and girls at risk because women will not be trained as health professionals which is essential for the treatment of women under the current regime in Afghanistan.

The AAWJ is working with our Afghan colleagues to promote their interests and those of the women and girls in Afghanistan. Our members are inspired by the determination of the Afghan women judges in Australia to do what they can to encourage their countrywomen, even while struggling with their own trauma and the difficulties in forging a new life here.

We are in awe of the bravery of the women and girls, and the men and boys, of Afghanistan who are risking their lives to protest this decree. The least we can do is to give them our public support and encouragement, and to use our influence, personal and institutional, to restore equal rights for the women and girls of Afghanistan.

The Taliban’s leaders promised to honour the human rights of women. They should be held to that promise.

Fleur Kingham
President
Australian Association of Women Judges

We are very pleased to announce the opening of our 2023 Grants Round!

Our grants are available to non-profit organisations who aim to improve the administration of laws, increase access to justice, improve legal services, pilot innovations and/or inform and educate the wider community about legal services.

What’s on offer?

Successful applicants will receive tailored funding and support.

Multi-year funding is possible. Funding is time limited.

Applications are open so start preparing now!

Read our grants round Guidelines to determine if your project is eligible.  If your project is a good fit with our Guidelines then log in to our online portal* to prepare your application. 

It's important you arrange to talk with the Grants team in February 2023 to discuss your proposal and receive guidance to help you develop a strong application.

Should you wish to apply, make sure you submit your application via our online portal by Friday, 3 March 2023.

* Please note: we have recently begun using Smarty Grants, an online Grants Management System. This means that for this grants round you will need to create a Smarty Grants account and submit your application online.

When neutrality isn't enough: How mediators can challenge rather than facilitate systemic and structural injustice | Bernie Mayer and Julie Macfarlane | Melbourne | 13 February 2023

Limited spots available, register now!

Resolution Institute invites you to this exclusive day-long seminar for mediators in Melbourne on the role they can play in genuinely empowering disputants and the dangers and pitfalls they may encounter along the way.

In part 1 of this seminar, Bernie will focus on the complex interaction between helping people connect across our differences and supporting those whose mission is to challenge systems that promote oppression and exploitation. In part 2, Julie will discuss the history of NDAs, the campaign to limit their use, the challenge this presents to mediators, and how to navigate this challenge in a way that promotes the resolution of difficult disputes without enabling misconduct.

Also to be held in Sydney on 20 February.