Draft Class Actions Practice Note Released By The Federal Court

Monday 18 January 2016 @ 11.31 a.m. | Legal Research

The Federal Court of Australia has released a draft Class Actions Practice Note for review and public comment.  The draft release is part of the wider National Court Framework [NCF] reform initiative being undergone by the Federal Court, which aims to simplify and reduce the number of practice documents currently in existence.  Public submissions on the draft Practice Note will be accepted until the end of February, with the finalised Practice Note scheduled to be released sometime in March 2016.

The Federal Court website lists the key features introduced by the draft Practice Note as:

  • the change in description to “class actions”, as they are commonly known and referred to, rather than “representative proceedings”;
  • the two-judge case management / hearing approach (using the terms “Case Management Judge” and “Trial judge”);
  • the 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.

In a speech given to the Law Council of Australia in December last year, Justice Murphy noted the difficulties with establishing a separate Class Actions List, saying:

“The essential reason for the Court's decision in this regard is that class action law is largely procedural. Judicial expertise in class action procedure does not necessarily correspond to expertise in the substantive law underpinning the pleaded causes of action. Consistently with the aims of the NCF, the Court is concerned to ensure that dedicated judges in the applicable NPA [“National Practice Areas”]  are docketed to hear and decide class actions.”

The new two-judge case management system will address this concern, with class actions being docketed to a judge from the appropriate practice area, who will be the Trial Judge, and also being allocated to a second judge, who will be the Case Management Judge.  Justice Murphy explained:

“The Case Management Judge will be a judge with experience in the conduct of class actions, and that judge's role will be to expeditiously and efficiently case manage the proceeding, particularly in relation to the interlocutory disputes that commonly arise in class actions. In addition, that Judge may hear certain applications that may not be appropriate for the Trial Judge; eg privilege disputes.

The Trial Judge will preside over the trial of the proceeding and will deal with all pre-trial issues appropriate for determination by the judge who will hear the trial. This judge is appointed at the commencement because it is likely to be important for the parties to know which Judge will hear the case as that may inform their approach to matters such as evidentiary issues and settlement.

The Case Management Judge and the Trial Judge are expected to work collaboratively to ensure that the proceeding is dealt with expeditiously and efficiently through the case management, pre-trial and trial phases of the proceeding.”

For more information on the National Court Framework Reforms, see TimeBase’s earlier article.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


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