Latest Dispute Resolution Law Updates in Australia for 2024

Qld Magistrates Court issues two new practice directions concerning online lodgment and requirements for applications in Brisbane Magistrates Court District

Date: 9 April 2024
Jurisdiction: Queensland

Abstract:

On 8 April 2024, the Chief Magistrate of the Magistrates Court of Queensland issued two new practice directions concerning the expanded use of online lodgment and the requirements for interlocutory applications in civil proceedings in the Brisbane Magistrates Court District.

complementing these two new practice directions, the Principal Registrar has also issued Approval 1 of 2024 concerning electronic filing of documents.

Practice Direction No 4 of 2024 – QCase implementation in civil proceedings

Practice Direction No 4 of 2024 (PD4/24) supports the staged introduction of the court’s new digital case management system, QCase, which is intended to replace the bulk of paper files in civil proceedings in the Magistrates Court.

PD4/24 applies to any civil proceedings “in a particular Magistrates Court” … from “the date of implementation of QCase...” These terms are defined in Appendix A to the practice direction, such that that it currently only applies to proceedings in the Brisbane Magistrates Court District – Central Division on and from 8 April 2024.

It is anticipated that Appendix A will be amended over time to include new courts as the staged implementation of QCase takes effect.

The Supreme Court of Western Australia amends the Rules of the Supreme Court 1971 to implement the Harmonised Rules for service out of Australia and other matters

Date: 5 April 2024
Jurisdiction: Western Australia

Abstract:

The Supreme Court of Western Australia has issued a notice to practitioners to advise that the Rules of the Supreme Court 1971 (Rules) have been amended, including to implement the Harmonised Court Rules on Service out of Australia (Harmonised Rules).

Supreme Court Amendment Rules 2024

On 26 March 2024, the court published the Supreme Court Amendment Rules 2024 (Amendment Rules) on its website.

The three main amendments occasioned by the Amendment Rules, which come into effect on 9 April 2024, are addressed below.

Implementation of Harmonised Court Rules on Service out of Australia

The court notes that the primary purpose of the Amendment Rules is to implement the Harmonised Rules regarding service out of Australia, as adopted by the Council of Chief Justices of Australia and New Zealand in 2016.

A new Order 10 under the Rules, titled ‘Service outside jurisdiction’, incorporates the Harmonised Rules and replaces the current version of the Order.

The Federal Court considers whether Australia is a “clearly inappropriate forum” in the context of an application for a permanent stay (Bolin Technology Co Ltd v BirdDog Technology Ltd)

Date: 4 April 2024
Court: Federal Court of Australia – Victoria District Registry
Judge(s): Anderson J
Judgment date: 26 March 2024
Catchwords: Practice and procedure – Application for permanent stay – Whether Australia inappropriate forum – Application for stay dismissed

Abstract:

In Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286, the respondent sought a permanent stay of proceedings in Australia. In circumstances where the respondent commenced proceedings in the United States, the court had to consider whether to stay the Australian proceeding on inappropriate forum grounds. In doing so, the court assessed the connection between Australia and the subject matter of the dispute, and the significant risk that the US Court would not have jurisdiction to hear the applicant’s claim under the Australian Consumer Law. In this instance, the court was not satisfied that Australia was a clearly inappropriate forum and dismissed the respondent’s application.

Background

The primary dispute concerned claims under contract law and the Australian Consumer Law (ACL) in relation to manufacture of video cameras in Shenzhen, China for sale in Melbourne, Australia.

The Supreme Court of Victoria clarifies its power to extend limitation periods under s 77(4) of the VCAT Act (Thurin v Krongold Constructions (Aust) Pty Ltd)

Date: 25 March 2024
Court: Supreme Court of Victoria — Commercial Court
Judge(s): Garde J
Judgment date: 16 February 2024
Catchwords: Practice and procedure – Limitation of actions – Power to extend limitation period – s 77(4) Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Abstract:

In Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42, the Supreme Court of Victoria clarified its power under s 77(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to extend limitation periods for proceedings that were initiated in the Victorian Civil and Administrative Tribunal (VCAT) but struck out because of VCAT’s lack of federal jurisdiction and subsequently referred to the Supreme Court for determination.

Case history and legislative background

The plaintiffs in this long-running case commenced proceedings against Krongold Constructions (Aust) Pty Ltd (Krongold) (a builder) as a major domestic building dispute in VCAT. The plaintiffs claimed damages against Krongold for installing defective pipes in their home, which subsequently ruptured. Swan Hardware & Staff Pty Ltd, as trustee of the Swan Hardware & Staff Unit Trust (Swan Hardware) supplied the installed pipes. Subsequently, Krongold initiated claims against the architect (Casper) and Swan Hardware as concurrent wrongdoers under federal legislation.

The Federal Court of Australia orders Spain to provide security for costs (Infrastructure Services Luxembourg Sàrl v Kingdom of Spain)

Date: 25 March 2024
Court: Federal Court of Australia – New South Wales District Registry
Judge(s): Stewart J
Judgment date: 13 March 2024
Catchwords: Practice and procedure – Power to order security for costs – Challenge to orders made ex parte – Infringement of consular immunities and privileges

Abstract:

In Infrastructure Services Luxembourg Sàrl v Kingdom of Spain (security for costs) [2024] FCA 234, the court ordered Spain to provide security for the applicants’ costs. In this case, the Federal Court of Australia had to consider whether to exercise its discretion to order that security be provided by Spain, in relation to an interlocutory application made by Spain after judgment in the proceeding. In doing so, the court made observations about the exercise of the discretion to order security and the role of consular immunities and privileges. The court found that Spain was a recalcitrant judgment debtor and that it was appropriate for Spain to provide security for the applicants’ costs.

Background

The Federal Court ordered that the respondent (Spain) pay the applicant approximately $200 million under the recognition and enforcement of an arbitration award.

The Supreme Court of Queensland repeals 61 existing Practice Directions and publishes 6 new Practice Directions

Date: 21 March 2024
Jurisdiction: Queensland

Abstract:

On 11 March 2024, the Supreme Court of Queensland published a practice direction that has the effect of repealing 61 existing Practice Directions.

The full list of repealed Practice Directions is contained in Schedule 2 of the practice direction, however particular attention should be drawn to the repeal of the following:

• Practice Direction 22 of 1991 – Case Management for Civil proceedings (other than commercial causes);
• Practice Direction 3 of 2000 – Uniform Civil Procedure Rules – Part A Designation of Court Holidays – Supreme Court Registry – Part B Practice Directions and Notifications now Redundant;
• Practice Direction 2 of 2005 – Expert Evidence: Supreme Court;
• Practice Direction 1 of 2008 – Taking evidence by telephone and video link;
• Practice Direction 9 of 2010 – Setting Trial Dates: Civil Jurisdiction Brisbane;
• Practice Direction 5 of 2013 – Technology standards for using Court DVD Players for evidence presentation; and
• Practice Direction 6 of 2015 – Orders of the Registrar.

Separately, in the period 11 March to 15 March 2024, the court published 6 new Practice Directions, including new Practice Direction 7 of 2024: Setting Trial Dates: Civil Jurisdiction Brisbane.

The Federal Court dissolves the ACT List

Date: 13 March 2024
Jurisdiction: Federal Court

Abstract:

Having consulted the profession in relation to its proposal to dissolve the Australian Capital Territory List (ACT List) and the role of the ACT List Judge (as set out in our previous Latest Legal Update), the Chief Justice of the Federal Court of Australia has notified the profession of the court’s intention to dissolve the list.

Currently, the ACT List oversees the case management of proceedings filed in the court's ACT Registry. Justice Kennett is the current ACT List Judge, supported by Senior National Judicial Registrar Paul Farrell.

Matters filed in the ACT Registry will now be allocated to the docket of a NSW Judge for the applicable National Practice Area upon filing. Matters already filed in the ACT List will be allocated to a Docket Judge and practitioners with carriage of those matters will be notified in due course.

As previously indicated by the court, its new procedure will facilitate the case management of each matter to be carried out by the Judge who will hear the matter to completion.

The Federal Court finds legal professional privilege is displaced by iniquity (Hillier v Martin (No 19))

Date: 13 March 2024
Court: Federal Court of Australia – South Australia District Registry
Judge(s): O’Sullivan J
Judgment date: 8 March 2024
Catchwords: Practice and procedure – Legal professional privilege – Whether privilege is displaced – Whether evidence of iniquity

Abstract:

In Hillier v Martin (No 19) [2024] FCA 210, the applicant challenged a claim that documents were the subject of legal professional privilege. In circumstances where the challenge to the claim was based on ‘iniquity’, the Federal Court of Australia had to consider whether privilege had been displaced. In doing so, the court made observations about the principles of legal professional privilege and the exception that applies where communications were created to further a ‘fraud or crime’. The court was satisfied that there was prima facie evidence of iniquity such as to displace the legal professional privilege on the part of the first respondent.

Background

The primary dispute concerned a joint venture agreement in relation to a restaurant business. On an interlocutory application prior to trial, the applicant challenged a claim to legal professional privilege in respect of approximately 7000 discovered documents. The challenge was based on the submission that because of iniquity, privilege had been displaced.

The court’s analysis

In considering the application, the court set out the principles that apply to legal professional privilege, and addressed the circumstances in which that privilege can be displaced.

The court stated that legal professional privilege “protects a party from being compelled against the giving of information or the production of documents which would reveal communications between a solicitor and their client (or their agent) made for the “dominant purpose” of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings”.

Qld — Changes to the Uniform Civil Procedure Rules include expansion of preliminary disclosure regime and procedures for complying with subpoenas by giving evidence by audio visual link

Date: 7 March 2024
Source: Queensland Legislation
Jurisdiction: Queensland

Abstract:

On 16 February 2024, various Queensland instruments were amended by the Uniform Civil Procedure (Fees) and Other Legislation Amendment Regulation 2024 (Qld), including the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Some of the more notable amendments include:

• The expansion of the preliminary disclosure regime under the UCPR to the District Court of Queensland and the Magistrates Court of Queensland;
• Changes to r 660 of the UCPR to better reflect practice when making orders;
• Replacing rr 980 and 981 with a new provision concerning with the inspection and copying of documents on the court file; and
• New rules that provide for compliance with subpoenas by giving evidence by audio visual link, including the requirements to pay conduct money in that circumstance.

The regulation also amends the Supreme Court (Admission) Rules 2004 (Qld) to extend the period for admission application material to be provided to the court and the Legal Practitioners Admissions Board to allow adequate time for proper consideration of applications and the associated processes.

Federal Court issues record contempt penalty of $1.5M to Ultra Tune for failure to comply with Franchising Code obligations (Australian Competition and Consumer Commission v Ultra Tune Australia Pty Ltd (No 3))

Date: 4 March 2024
Court: Federal Court of Australia
Judge: Bromwich J
Judgment date: 1 March 2024
Catchwords: Contempt of court – breach of compliance orders – endorsement pursuant to r 41.06 – dispensing with r 41.06

Abstract:

In previous proceedings compliance orders containing a number of obligations were made against the respondent Ultra Tune Australia Pty Ltd (Ultra Tune). Ultra Tune failed to comply with these, and the ACCC brought further proceedings for alleged contempt of court. Despite a technical issue with the orders, the Federal Court held that Ultra Tune was guilty of four contempt charges and imposed a record contempt penalty of $1.5M.

The case:

In proceedings brought by the Australian Competition and Consumer Commission (ACCC) in 2019 (Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164), Ultra Tune was found to have contravened ss 18 and 29 of the Australian Consumer Law (ACL) and cl 15CTH_REG_2014-168_SCH1PT3DV2SUBDVACL15 of the Franchising Code, by failing to disseminate mandatory documentation to franchisees in a timely manner and misleading a prospective franchisee regarding the details of the proposed transaction.

The Federal Court determines whether a subpoena to compel a former lawyer to attend to give evidence has a legitimate forensic purpose (Garvey v Australian National University)

Date: 29 February 2024
Court: Federal Court of Australia
Judge(s): Meagher J
Judgment date: 26 February 2024
Catchwords: Practice and procedure – Subpoenas – Whether leave granted to issue a subpoena – Whether a legitimate forensic purpose established

Abstract:

In Garvey v Australian National University [2024] FCA 140, the applicant sought leave to issue a subpoena to compel his former lawyer to attend and give evidence. In circumstances where the basis for the subpoena was unusual and the applicant was unrepresented, the Federal Court of Australia had to consider whether there was a legitimate forensic purpose for the subpoena.

Background

The applicant’s complaint related to a decision made more than four years prior by the Deputy Vice-Chancellor of Australian National University (respondent) who had declined to uphold the applicant’s appeal against a decision to terminate his candidature in his PhD program.

In 2019, the applicant retained his former lawyer to advise him on a potential judicial review claim against the respondent.

Supreme Court of Victoria issues revised Commercial Court Practice Note SC CC 1

Date: 29 February 2024
Jurisdiction: Victoria

Abstract:

The Supreme Court of Victoria has issued the second revision of Practice Note SC CC 1 – Commercial Court (Practice Note).

The revised Practice Note, which commenced operation on 26 February 2024, applies to all proceedings in the Commercial Court of the Supreme Court of Victoria and supersedes the previous version issued in 2017.

The Practice Note addresses the procedural requirements for proceedings in the Commercial Court. The revised Practice Note contains updated information about the requirements for initial directions, second or pre-trial directions hearings, the requirements for urgent applications and interlocutory applications and other significant matters of practice and procedure.

The full text of Practice Note SC CC 1 – Commercial Court (Second Revision) is available here.

Federal Court announces Full Court and Appellate sitting periods for 2025

Date: 24 February 2024
Source: Federal Court of Australia

Abstract:

As set out in our previous Latest Legal Updates in October 2023 and November 2023, the Federal Court of Australia:

• revised the sitting dates for Full Court and appellate matters in February 2024; and
• subsequently sought consultation from the profession to move to three Full Court sitting periods in 2025.

The stated purposes of the court’s proposal were to:

• alleviate the need for the profession and parties to prepare for appeals in January;
• give judges blocks of times to list more matters and lengthier cases in the original jurisdiction, providing parties with greater flexibility in listing trials; and
• realign judges’ workloads to shorten the timeframe between the filing of appeals and the delivery of judgments.

On 22 February 2024, the Federal Court issued a Notice to the Profession to announce that the feedback provided by the profession in response to this proposal was unanimously supportive.

On that basis, the court has implemented its proposal to move to three sitting periods in 2025, being:

• 3 to 28 March 2025;
• 28 July to 29 August 2025; and
• 3 to 28 November 2025.

Have your say: Federal Court of Australia proposes to dissolve the Australian Capital Territory List

Date: 21 February 2024
Jurisdiction: Federal Court

Abstract:

The Federal Court of Australia has released a proposal to dissolve the Australian Capital Territory List and the role of the ACT List Judge.

Currently, the ACT List operates for the case management of proceedings that are filed in the Court’s ACT Registry. Proceedings in the ACT List are managed from the time of filing until they are ready to proceed to a substantive hearing, at which time, the case is allocated to a Judge on the ACT panel.

Under the new proposal, matters will be directly allocated to a Judge on the ACT panel at the time of filing. The advantage of this system is that case management of each matter will be handled by the same Judge that will eventually decide the case, allowing for more tailored justice and efficient timeframes in case management orders. This is the Federal Court’s current approach to managing the Northern Territory and Tasmania Registries.

Individuals in the ACT profession are encouraged to provide feedback on the proposal.

Limitation periods may start running upon the discontinuance of a class action: The Supreme Court of Victoria diverges from Federal Court authority (Moira Shire Council v JLT Risk Solutions)

Date: 14 February 2024
Court: Supreme Court of Victoria
Judges(s): Lysons JA
Judgement date: 19 January 2024
Catchwords: Practice and procedure – Group proceedings – Discontinued proceedings – Limitation period recommencing after discontinuation of proceedings

Abstract:

In Moira Shire Council v JLT Risk Solutions [2024] VSC 4, the Supreme Court of Victoria held that s 33ZE of the Supreme Court Act 1986 (Vic) operates to resume the accrual of limitation periods applicable to group members’ claims upon the discontinuance of a class action, marking a divergence from Federal Court authorities.

The case

Two Victorian local municipal councils (the plaintiffs) commenced a class action against the defendant on behalf of 16 other local councils for alleged breach of contract, negligence and breach of fiduciary duty.

The parties settled their dispute out of court and the plaintiffs subsequently sought court approval to discontinue the class action pursuant to s 33V of the Supreme Court Act 1986 (Vic) (SCA).

At the request of the defendant, the plaintiffs also sought an order to the effect that any limitation periods applicable to group members’ claims start running again from 30 days after the discontinuance.

The Federal Court closely scrutinizes lawyers’ costs of administering a class action settlement scheme and criticises the use of time-costing (Stanford v DePuy International Pty Ltd)

Date: 13 February 2024
Court: Federal Court of Australia
Judge(s): Wigney J
Judgment date: 1 February 2024
Catchwords: Practice and procedure – Class action settlement schemes – Claims for administrative costs – Whether costs relate to work properly undertaken – Whether costs are fair and reasonable

Abstract:

In Stanford v DePuy International Pty Ltd (No 8) [2024] FCA 35, some 7 years after the settlement of a class action, the settlement scheme administrators sought approval for payment of their costs in administering the settlement. In circumstances where the administration costs significantly exceeded the estimates proffered to the court at the time when the settlement was approved, the Federal Court of Australia had to consider whether the costs were properly undertaken and fair and reasonable in amount. In doing so, the court made observations about the appropriateness of using time costing for legal costs in administering a settlement scheme.

Qld - Key provisions of the Justice and Other Legislation Amendment Act 2023 (Qld) commence in February and March 2024, including amendments to costs disclosure thresholds

Date: 9 February 2024
Source: Queensland Legislation
Jurisdiction: Queensland

Abstract:

On 25 January 2024, key provisions of the Justice and Other Legislation Amendment Act 2023 (Qld) (JOLA Act) were proclaimed to commence operation on 1 February 2024 and 1 March 2024, respectively.

According to the Explanatory Notes, one of the principal purposes of the JOLA Act is to “clarify, strengthen and update legislation concerning the administration of justice, including legislation relating to the operation of courts and tribunals, the regulation of the legal profession, the conduct of civil proceedings and electoral matters.”

For further information about the range of amendments occasioned by the JOLA Act, refer to our previous Latest Legal Update.

Some of the more notable amendments for practitioners to be aware of are those to the Legal Profession Act 2007 (Qld) and the Legal Profession Regulation 2017 (Qld) in relation to costs disclosure thresholds.

Key provisions that commenced on 1 February 2024

Supreme Court of Queensland establishes new Building, Engineering and Construction List

Date: 31 January 2024
Jurisdiction: Queensland

Abstract:

On 22 January 2024, the Supreme Court of Queensland issued Practice Direction Number 2 of 2024 (Practice Direction), which establishes a new Building, Engineering and Construction List (BEC List) to improve the conduct of large and complex litigation in relation to building, engineering and construction issues.

The Practice Direction commences operation on 4 March 2024 and applies to large and complex litigation in relation to building, engineering and construction issues commenced in, or transferred to, the Brisbane Registry.

The Practice Direction provides that matters that are sufficiently complex and involve a substantial issue in respect of building, engineering or construction can be placed on the BEC List.

Such matters include:

• proceedings relating to or arising out of:
  • the design, carrying out, supervision or inspection of any building or engineering work;
  • the performance by any building or engineering expert of any other services with respect to any building or engineering work; or
  • any certificate, advice or information given or withheld with respect to any building or engineering work; or

The Practice Direction is available here.

Court Services Victoria re-establishes audio-visual link capabilities following cyber incident and provides an update about its ongoing investigation

Date: 24 January 2024
Jurisdiction: Victoria

Abstract:

In the wake of the cybersecurity incident affecting the courts and tribunals of Victoria, Court Services Victoria has released a statement providing an update.

The update indicates that the incident impacted a single network that manages only audio-visual recordings for all courts and was contained to only that network. The update also provides a table that summarises the date ranges in respect of which matters in each court or tribunal may have been accessed.

Court Services Victoria has indicated that the investigation remains ongoing and that recommends that any individuals who may be affected should contact its dedicated contact centre by phoning 03 9087 6116 or emailing CSVData@courts.vic.gov.au.

Court Services Victoria has confirmed that it has re-established video conferencing facilities in most courts as of 16 January 2024, enabling the return of hybrid hearings from 22 January 2024. Court Services Victoria expects that there will be some delays in the production of transcripts.

New practice direction adjusts how case authorities are cited in the Supreme Court of Queensland

Date: 18 January 2024
Jurisdiction: Queensland

Abstract:

The Supreme Court of Queensland has issued Practice Direction 1 of 2024, applying to the citation of authorities in all proceedings in the Supreme Court of Queensland Trial Division and in the Court of Appeal. Practice Direction 16 of 2013, the previous practice direction concerning the citation of authorities, is repealed under Practice Direction 1 of 2024.

The main adjustment is an increased acceptance of medium neutral citations and a move away from the citation of unreported judgments.

Practitioners should familiarise themselves with the new practice direction before it commences on 29 January 2024. The full Practice Direction 1 of 2024 is available here. The previous Practice Direction 16 of 2013 is available here.

Victorian courts cyber incident: information for practitioners

Date: 10 January 2024
Jurisdiction: Victoria

Abstract:

On 21 December 2023, Court Services Victoria became aware of a cybersecurity incident affecting the courts and tribunals of Victoria.

The incident involved unauthorised access to the audio-visual in-court technology network, impacting the general function of the technology as well as compromising some of the recordings of hearings that took place in late 2023 that were stored on the network.

The targeted network was immediately isolated and disabled and alternate arrangements have been put in place to ensure courts across Victoria continue to operate. A dedicated contact centre has been set up for individuals seeking further assistance or information.

Further information concerning the contact centre, the incident and Court Services Victoria’s response to it is available here. The statements and notices issued by Victorian courts are outlined below.

Magistrates’ Court of Victoria

The Magistrates’ Court of Victoria has released a notice concerning adjusted hearing arrangements from 8 January 2024 until such time as audio-visual link issues are resolved.

The Australasian Institute of Judicial Administration releases its updated guide concerning artificial intelligence decision-making and the courts

Date: 10 January 2024

Abstract:

The Australasian Institute of Judicial Administration (AIJA) has released an updated version of its 2022 guide entitled: ‘AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators’ (Guide).

The Guide has been prepared as a result of surveys and roundtable discussions to identify primary areas of interest of legal personnel including judges, tribunal members and court administrators. The Guide identifies several areas where AI tools can be utilised and explores how these tools may impact core judicial values such as open justice, accountability and equality before the law, procedural fairness, access to justice and efficiency. The Guide also poses and addresses key questions regarding the use of AI in this context.

The updated 2023 version of the Guide incorporates recent developments in case law, legislation and policies as well as guidance on new emerging technology, such as generative AI.

The full Guide is available here.

VCAT launches first phase of new myVCAT online portal

Date: 20 December 2023
Jurisdiction: Victoria

Abstract:

On 7 December 2023, the Victorian Civil & Administrative Tribunal (VCAT) launched the first phase of its new myVCAT online portal.

The new portal replaces the previous goods and services online application form. Users will be able to register for a myVCAT account when submitting an online goods and services application (for new cases lodged from 6 December 2023 onwards).

The portal is designed to allow users to access real time information about their particular case, including access to goods and services application details, documents, tasks, reminders, orders, progress, and other helpful resources.

The new portal is part of the VCAT’s Service Transformation Program, which includes plans to eventually extend myVCAT to cover all application types.

The full VCAT media release is available here.

The New South Wales District Court issues new Practice Note regarding attendance at proceedings by audio-visual link

Date: 19 December 2023
Jurisdiction: New South Wales

Abstract:

The New South Wales District Court has issued new Practice Note DC (Civil) No. 1C – Attendance at Civil Proceedings by Audio Visual Link (AVL) (Practice Note).

The Practice Note commences operation on 29 January 2023 and applies to all matters in the civil jurisdiction of the District Court.

The Practice Note addresses the requirements for applications to attend court remotely via audio-visual link, the details of the court’s audio-visual link protocol, and media attendance by audio-visual link.

The full Practice Note is available here on the court’s website.

High Court finds class action waiver clause unfair, allows Ruby Princess appeal

Date: 6 December 2023
Court: High Court
Judge(s): Gageler CJ, Gordon, Edelman, Gleeson, Jagot JJ
Judgment date: 6 December 2023

Catchwords: CONSUMER PROTECTION - Extraterritorial application of s 23 of Australian Consumer Law - Whether s 5(1)(g) of Competition and Consumer Act 2010 (Cth) extended application of s 23 of ACL to contract- Whether class action waiver clause constituted unfair term under s 23 of ACL and void.

REPRESENTATIVE PROCEEDINGS - Whether class action waiver clause unenforceable as contrary to Pt IVA of Federal Court of Australia Act 1976 (Cth)

PRIVATE INTERNATIONAL LAW – Forum – Exclusive jurisdiction clause – Whether strong reasons not to grant stay of proceedings.

Abstract:

In Karpik v Carnival plc [2023] HCA 39 the High Court determined an interlocutory application arising out of representative proceedings brought on behalf of passengers of the Ruby Princess cruise ship against Carnival plc and Princess Cruise Lines Ltd (Princess) claiming losses caused by illness and deaths caused by the COVID-19 outbreak. The main proceedings were recently determined by the Federal Court in In Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280.

The Federal Court supports the separate determination of questions in the interests of facilitating its overarching purpose (Commens t/as Subsonic Music v Certain Lloyd’s Underwriters subscribing to Policy No ALTCNX1900332)

Date: 1 December 2023
Source: Federal Court of Australia
Judge(s): Jackman J
Judgment date: 16 November 2023

Catchwords: Practice and procedure – Federal Court of Australia – Case management – Application for separate determination of questions

Abstract:

In Commens t/as Subsonic Music v Certain Lloyd’s Underwriters subscribing to Policy No ALTCNX1900332 [2023] FCA 1434, the Federal Court of Australia considered an application for orders for the separate determination of certain questions in the case. The Federal Court considered the application in the context of the overarching purpose contained in s 37M of the Federal Court of Australia Act 1976 (Cth) (Act).

The case

The applicant, Commens t/as Subsonic Music (Commens), sought an order that certain questions be determined separately in the proceeding pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) (Rules).

The effect of the order sought by the applicant would be that all questions in the case, except those relating to the quantification of net loss and interest, would be determined at an initial hearing.

The respondent opposed the application on the basis that:

The ACT Supreme Court reminds practitioners of key requirements in all civil lists

Date: 30 November 2023
Jurisdiction: Australian Capital Territory (ACT)

Abstract:

The Supreme Court of the Australian Capital Territory has released a notice to practitioners to remind them of key requirements of Practice Direction 2 of 2014 and the Court Procedures Rules 2006 (Rules). Registrars expect compliance with these key requirements in all civil lists.

Some of the key requirements addressed by the notice are set out below.

Email filing of documents

Under r 6121(e) of the Rules, documents can only be filed by email with the leave of the Registrar, Senior Deputy Registrars, or Deputy Registrar. Such leave will only be granted in exceptional circumstances.

Parties conferring prior to listings

Under paragraph 18 of Practice Direction 2 of 2014, parties are required to communicate with each prior to any listing before the court to reach agreement on proposed directions. The court expects this to occur even in matters that do not fall within Practice Direction 2 of 2014 unless there are compelling reasons otherwise.

The Supreme Court of Queensland adopts Practice Note – Harmonisation of Schemes

Date: 28 November 2023

Abstract:

The Supreme Court of Queensland has released Practice Direction Number 15 of 2023 relating to the process for approval of members’ schemes of arrangement.

With the release of this Practice Note, the Supreme Court of Queensland becomes the latest Australian court to adopt the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand’s Practice Note – Harmonisation in schemes of arrangement following the Supreme Courts of New South Wales, Western Australia and Victoria and the Federal Court of Australia. More information is available in our earlier Latest Legal Update: Courts issue, reissue and amend key practice notes and practice directions to reflect harmonisation in schemes of arrangement.

Practice Direction Number 15 of 2023 commenced on 15 November 2023 and is available here.

Federal Court rejects privilege claim over Deloitte report in Optus data breach class action (Robertson v Singtel Optus Pty Ltd)

Date: 17 November 2023
Court: Federal Court of Australia – Victoria District Registry
Judge(s): Beach
Judgment date: 10 November 2023
Catchwords: Practice and procedure – Legal professional privilege – Dominant purpose test where there are multiple purposes – Public statements

Abstract:

In the matter of Robertson v Singtel Optus Pty Ltd [2023] FCA 1392, the Federal Court determined that an investigation report prepared by Deloitte in response to the September 2022 Optus data breach was not protected by privilege, despite the assertions of Singtel Optus Pty Ltd (Optus) that the report was prepared for the dominant purpose of assisting its lawyers in relation to the data breach.

Federal Court consults profession in relation to Full Court and Appellate sitting periods for 2025

Date: 17 November 2023
Source: Federal Court of Australia

As set out in our previous Latest Legal Update, the Federal Court of Australia recently revised the sitting dates for Full Court and appellate matters in February 2024.

Following those revisions, the Chief Justice of the Federal Court of Australia has proposed to move to three Full Court sitting periods in 2025, with the first period being in March and the other two periods in August and November.

The stated purposes of this proposal are to:

• Alleviate the need for the profession and parties to prepare for appeals in January;
• Give judges blocks of times to list more matters and lengthier cases in the original jurisdiction, providing parties with greater flexibility in listing trials; and
• Realign judges’ workloads to shorten the timeframe between the filing of appeals and the delivery of judgments.

The court has indicated that if the proposal is implemented, the likely Full Court periods for 2025 would be as follows:

• 3 to 28 March 2025;
• 28 July to 29 August 2025; and
• 3 to 28 November 2025.

NCAT Online Services launches on 20 November 2023

Date: 16 November 2023
Jurisdiction: Victoria

Abstract:

The New South Wales Civil and Administrative Tribunal (NCAT) is preparing to launch its new NCAT Online Services portal for cases in its Consumer and Commercial Division on Monday 20 November 2023.

NCAT Online Services will replace the existing NCAT Online and aims to provide an improved online experience. Through the new online services, users will be able to:

• access all Consumer and Commercial Division case types online;
• save forms as drafts;
• make bulk payments; and
• lodge requests and supporting documentation online.

The NCAT media release regarding the launch of NCAT Online Services is available here. Further information about preparing for the launch of NCAT Online Services, including instructions for registration, is available here .

VCAT releases its 2022/2023 annual report

Date: 13 November 2023

Abstract:

The Victorian Civil & Administrative Tribunal (VCAT) has released its annual report for the 2022/2023 financial year and has tabled it to Parliament.

The annual report addresses a wide range of topics including:

• Broad-level and detailed VCAT data and statistics for the 2022/2023 financial year;
• A summary of the VCAT’s 2023-2025 strategic directions. This includes two major projects: a shift from a paper-based tribunal to a digital one and a re-location of tribunal headquarters;
• A review of the activities and performance of each of the VCAT’s divisions over the 2022/2023 financial year; and
• A review of the VCAT’s provision of inclusive and accessible justice, including remote and in-person hearings.

The press release accompanying the publication of the annual report on VCAT’s website draws special attention to several matters referred to in the report, including the vastly improved clearance rate in the Residential Tenancies division towards the end of the financial year, VCAT’s ongoing digital transformation and the new Melbourne CBD premises at 300 La Trobe Street.

The full release and annual report is available here.

Supreme Court of Victoria issues new practice note adopting harmonisation in schemes of arrangement

Date: 2 November 2023
Source: Supreme Court of Victoria

The Supreme Court of Victoria has issued Practice Note SC CC 9 Schemes of Arrangement, which commences on 1 November 2023 (Practice Note).

The new Practice Note concerns members’ schemes of arrangement and adopts the Practice Note – Harmonisation in schemes of arrangement developed by the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand.

The Federal Court of Australia and the Supreme Courts of New South Wales and Western Australia have also adopted the Practice Note – Harmonisation in schemes of arrangement – for further information, refer to our previous Latest Legal Update.

The full Practice Note is available here.

The Federal Court deciphers ambiguous remittal orders made by the Full Court (New Aim Pty Ltd v Leung (No 3))

Date: 1 November 2023
Court: Federal Court of Australia
Judge(s): O’Callaghan J
Judgment date: 26 October 2023
Catchwords: Practice and Procedure — Remitting orders for trial — new trial versus further hearing and determination — s 28(1)(c) and s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth)

Abstract:

In New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295, the primary issue before the court was the proper construction of a "remittal" order made by the Full Court on appeal, which remittal order provided that “the matter be remitted for retrial”. The successful appellants, New Aim Pty Ltd (New Aim) contended that the order contemplated a new trial, whereas the respondents argued that the order provided that the matter be remitted for further hearing and determination in continuation of the first trial.

The case

This case concerned claims by New Aim, an online retailer, that its former employees had breached confidentiality obligations owed by them to New Aim in equity, under contract or pursuant to the Corporations Act 2001.

The Federal Court indicates that it has the power to incorporate contingency fee payments into common fund orders (Greentree v Jaguar Land Rover Australia (Carriage Application))

Date: 31 October 2023
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 12 October 2023
Catchwords: Practice and procedure – representative proceedings – common fund orders – contingency fee payments

Abstract:

Greentree v Jaguar Land Rover Australia (Carriage Application) [2023] FCA 1209 concerned stay applications in competing representative proceedings, during which Lee J held that the Federal Court of Australia has the power to order settlement common fund orders involving payments to solicitors on a contingency basis in certain circumstances, without breaching the prohibition on solicitors entering into costs agreements that involve contingency arrangements.

The case

This judgment was handed down in the context of two competing representative proceedings commenced against Jaguar Land Rover Australia Pty Ltd (Jaguar) in respect of alleged defects in their motor vehicles.

The applicants in each of these representative proceedings sought orders that the other proceeding be stayed permanently.

The Federal Court considers the requirement for expert witnesses to remain impartial (McNickle v Huntsman Chemical Company Australia Pty Ltd (Evidentiary Ruling))

Date: 30 October 2023
Court: Federal Court of Australia
Judge(s): Lee J
Judgment date: 10 October 2023
Catchwords: Practice and procedure – Expert evidence – Independence and impartiality of expert witness – Application to exclude evidence pursuant to s 135 of the Evidence Act 1995 (Cth)

Abstract:

McNickle v Huntsman Chemical Company Australia Pty Ltd (Evidentiary Ruling) [2023] FCA 1268 concerned an application by a respondent in a class action to exclude expert evidence on the grounds that the expert lacked the requisite independence and impartiality.

The case

The application arose in the context of a class action proceeding commenced by the lead applicant, McNickle, concerning the alleged carcinogenic effects of Roundup weedkiller. In support of his claims, McNickle relied upon evidence including the opinion of an expert witness, Dr Sawyer.

During the trial, a dispute arose concerning the admissibility of Dr Sawyer’s evidence.

The respondent, Huntsman Chemical Company Australia Pty Ltd (Huntsman), applied for orders to exclude Dr Sawyer’s evidence pursuant to s 135 of the Evidence Act 1995 (Cth) on the basis that Dr Sawyer’s lack of independence and impartiality could result in his evidence being unfairly prejudicial, or be misleading or confusing.

Courts issue, reissue and amend key practice notes and practice directions to reflect harmonisation in schemes of arrangement

Date: 24 October 2023

Abstract:

The Federal Court of Australia, the Supreme Court of New South Wales and the Supreme Court of Western Australia have each issued, reissued, or amended key practice notes and practice directions following the release of the Practice Note – Harmonisation in schemes of arrangement, which was developed by the Committee for the Harmonisation of Rules of the Council of Chief Justices of Australia and New Zealand.

The Practice Note – Harmonisation in schemes of arrangement was developed to address differences in schemes practice, recognising that consistency across Australian courts is beneficial for all parties involved.

More specifically:

• in the Federal Court of Australia, the Schemes of Arrangement Practice Note (GPN-SOA) was issued on 13 October 2023 and is available here;
• in the Supreme Court of New South Wales, Practice Note SC EQ 4 – Corporations List was reissued on 13 October 2023 and commenced operation on 18 October 2023. The changes to this Practice Note begin at paragraph 24. Reissued Practice Note SC EQ 4 – Corporations List is available here; and
• in the Supreme Court of Western Australia, the Consolidated Practice Directions were updated on 18 October 2023. The updates are reflected at PD 9.5.2. The updated Consolidated Practice Directions are available here.

ACT Supreme Court issues notices to practitioners concerning drafting orders, requesting in-chambers orders and appearances by audiovisual link

Date: 19 October 2023
Source: ACT Courts
Jurisdiction: Australian Capital Territory

Abstract:

The Supreme Court of the Australian Capital Territory has issued three notices to practitioners concerning the requirements and expectations of the court when:

• drafting orders;
• requesting that orders be made in chambers in the Registrar’s lists; and
• appearing by audiovisual link in the Registrar’s lists.

Notice to Practitioners — Drafting Orders

This notice sets out the court’s expectations concerning the drafting of orders or directions, whether for an originating process, an application in a proceeding or a directions hearing.

The notice provides that the court expects practitioners to pay close attention to the drafting of orders sought, including being aware of the relevant judicial power being sought and specifying how that power is sought to be exercised. Where a particular statutory provision or rule is being invoked, the court expects practitioners to draft orders using language that is consistent with the language of the relevant provision or rule.

In the context of directions hearing, orders should be prepared and distributed to each affected party at least a day in advance of the hearing.

The Supreme Court of Victoria considers principles of case consolidation (Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd)

Date: 16 October 2023
Court: Supreme Court of Victoria – Commercial Court
Judge(s): Delany J 
Judgment date: 27 September 2023

Catchwords:
Practice and procedure — Multiplicity of proceedings — Consolidation of proceedings — Overarching purpose

Abstract:

Four separate class action proceedings were initiated against the same defendant over the same subject matter, giving rise to an issue of multiplicity of proceedings in the Supreme Court of Victoria and the Federal Court of Australia. The lead plaintiffs in one of the class actions made an application to the Supreme Court of Victoria to consolidate the four proceedings, necessitating the court’s consideration of the legal principles that apply to consolidation of group proceedings.

The case

Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd [2023] VSC 574 concerned an application for consolidation of four class action proceedings commenced against Downer EDI Ltd (Downer).

Justice Legislation Amendment Act 2023 (Vic) commences operation and amends a variety of instruments concerning practice and procedure in courts and VCAT

Date: 16 October 2024
Source: Victorian Legislation
Jurisdiction: Victoria

Abstract:

The Justice Legislation Amendment Act 2023 (Vic) (Amendment Act) received royal assent on 10 October 2023 and substantially commenced operation on 11 October 2023.

The Amendment Act amends a variety of instruments concerning court and tribunal procedure in Victoria.

The only parts of the Amendment Act that did not commence on 11 October 2023 are Parts 11 and 12, which commence on 1 January 2024 and amend the Crimes Act 1958 (Vic) and the Victoria Police Act 2013 (Vic), respectively.

Some of the more significant amendments contained in the Amendment Act relating to civil procedure in Victoria include:

• Div 2 of Pt 2, which amends the Open Courts Act 2013 (Vic) (OCA), including by:
• amending s 8B(2) of the OCA to clarify that a court or tribunal has the power to determine what means of access (or combination of means of access) is appropriate when determining whether to offer a live broadcast of a hearing, a recording of a hearing, or a transcript of hearing to the public under s 8B(1) of the OCA;

The Federal Court updates sitting periods for the Full Court and appellate matters

Date: 13 October 2023
Source: Federal Court of Australia

Abstract:

Chief Justice Mortimer has revised the sitting dates for the Full Court and appellate matters in the Federal Court of Australia in February 2024 and has flagged additional revisions to come.

The court’s revision of February 2024 sitting periods has been prompted by:

• the reality that practitioners often take leave in January, when submissions, court books and lists of authorities require preparation; and
• the court being effectively unable to list matters in its original jurisdiction between December and February.

Revised sitting dates for February 2024

Accordingly, the Full Court and appellate court sitting periods for February 2024 are now as follows:

• the Full Court will sit for two weeks, commencing on 19 February and ending on 1 March 2024; and
• migration Full Court matters and appellate matters that require expedition (and cannot await the May Full Court sitting period) will sit in the week commencing 12 February 2024 and ending on 16 February 2024. The court envisages that this will pertain to matters involving immigration detention but proposes to consult with practitioners to ascertain the genuine need for expedition before listing any matters during this week.

The Federal Court highlights “Lessons from the Reference Process” for class action lawyers and group members (Gill v Ethicon Sàrl (No 13))

Date: 6 October 2023
Court: Federal Court of Australia
Judge(s): Lee J 
Judgment date: 21 September 2023

Catchwords:
Practice and Procedure – Achieving the overarching purpose in case management of class actions – utility of reference process in large scale litigation – tender process for administration of settlement scheme

Abstract:

In Gill v Ethicon Sàrl (No 13) [2023] FCA 1131, the Federal Court adopted a referee's report in relation to the administration of class action settlement schemes. In doing so, the court annexed the entirety of the report to the judgment for the benefit of group members and so that the approach taken in relation to the reference can be replicated in future class actions.

Background:

The decision concerned the settlement of three open class actions brought against the manufacturers and suppliers of defective synthetic pelvic mesh implants that caused injury and loss to a substantial number of women.

While the court had previously approved the quantum of the settlement, it dealt with the issue as to the appropriate distribution of settlement proceeds as a separate issue.

The Federal Court considers the adoption of a referee’s report and the principles of procedural fairness as they apply to referees’ inquiries (Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6))

Date: 2 October 2023
Court: Federal Court of Australia – Australian Capital Territory District Registry
Judge(s): Katzmann J 
Judgment date: 21 September 2023

Abstract:

The decision of Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6) [2023] FCA 1116 concerned the Federal Court’s appointment of a referee to conduct an inquiry into questions relating to a dispute between the applicant and respondents about the underpayment of employee wages. After the completion of the inquiry, the respondents contested the adoption of the recommendations contained in the referee’s report on several grounds, including that there had been a lack of procedural fairness in the preparation of the report.

Background:

The Fair Work Ombudsman (applicant) commenced proceedings against Foot & Thai Massage Pty Ltd and two other individuals (respondents) in respect of a number of alleged breaches of the Fair Work Act 2009 (Cth) (FWA), including the underpayment of wages to seven former employees.

Queensland Parliament passes the Justice and Other Legislation Amendment Act 2023 (Qld)

Date: 2 October 2024
Source: Queensland Legislation
Jurisdiction: Queensland

Abstract:

On 20 September 2023, the Justice and Other Legislation Amendment Act 2023 (Qld) (Amendment Act) was passed by the Parliament of Queensland.

According to the Explanatory Notes, one of the principal purposes of the Amendment Act is to “clarify, strengthen and update legislation concerning the administration of justice, including legislation relating to the operation of courts and tribunals, the regulation of the legal profession, the conduct of civil proceedings and electoral matters.”

Some of the specific matters addressed in the Amendment Act include:

• modernisation of the Appeal Costs Fund Act 1973 (Qld);
• replacement of the Court Funds Act 1973 (Qld) with a new, modernised court funds legislative framework under the Civil Proceedings Act 2011 (Qld) (Civil Proceedings Act);
• clarification of the operation of a provision of the Civil Proceedings Act with respect to payment of interest on a money order debt;
• amendment of the District Court of Queensland Act 1967 (Qld) and the Magistrates Courts Act 1921 (Qld) to allow the courts to make preliminary disclosure orders;

NCAT to launch new Online Service for its Consumer and Commercial Division

Date: 28 September 2023
Source: Civil and Administrative Tribunal

Abstract:

The Civil and Administrative Tribunal of New South Wales (NCAT) has announced that its existing NCAT Online platform will soon be replaced with a new NCAT Online Service in its Consumer and Commercial Division.

This new Online Service will provide a broader range of online forms (and allow those forms to be saved as drafts), enable parties to lodge requests and supporting documents, and facilitate bulk payments.

In preparation for the launch, NCAT has published a series of guides to assist parties (including self-represented parties, real estate agents and authorised officers or delegates) in creating their Online Service accounts.

VCAT to hear planning cases in suburban venues

Date: 22 September 2023
Source: Victorian Civil & Administrative Tribunal

Abstract:

The Victorian Civil and Administrative Tribunal (VCAT) has announced that it will be hearing some planning cases at VCAT locations in Bundoora, Frankston and Oakleigh.

New applications in the Planning and Environment list under ss 80 (conditions appeals) and 82 (objector appeals) of the Planning and Environment Act 1987 (Vic) are likely to be held at one of these suburban venues, depending on which venue is closest to the relevant land.

VCAT has also flagged that some cases with compulsory conferences or hearings on or from 23 October 2023 will also be listed at the closest suburban venue and recommends that practitioners pay careful attention to any tribunal orders.

Practitioners may refer to VCAT’s website for a table setting out where compulsory conferences for different municipalities will be conducted.

NCAT introduces Aboriginal Tenancy List

Date: 19 September 2023
Source: New South Wales Civil and Administrative Tribunal

Abstract:

On 6 September 2023, the new Aboriginal Tenancy List commenced operation in the New South Wales Civil and Administrative Tribunal (NCAT).

The purpose of the list is to “encourage Aboriginal and Torres Strait Islander parties to get more involved with the Tribunal process [and] make it easier for them to access support and advocacy services”.

The Aboriginal Tenancy List will be held every 2 weeks, on a Wednesday.

Aboriginal or Torres Strait Islander tenants or landlords with tenancy or social housing disputes (for example, disputes concerning payment of rent, repairs or changes to a residence, or ending a tenancy agreement) can have their matter heard in the List, which will provide them with:

• access support services and specialist Aboriginal tenants advocates;
• opportunities to discuss the case with a designated Tribunal conciliator to help reach an agreement in a matter;
• additional time for a Tribunal Member to decide the case, where parties are unable to reach an agreement.

Individuals can apply online or fill in a form if they wish to have their case heard in the Aboriginal Tenancy List.