Rules Revision 2011

Further Questions arising from education sessions

Q1: There is no discovery without the sanction of the Court.  If the parties want an early mediation, does this rule discourage an exchange of documents for early mediation?

A: No, an exchange of documents for a mediation is not discovery.  The rule is not seeking to catch an exchange of documents for mediation as this not part of the discovery process.

 

Q2: Are applications for leave to appeal from an interlocutory judgment heard by a single Judge or a Full Court?

A: Section 25(2) provides that an application for leave to appeal to the Court must be heard and determined by a single Judge unless a Judge directs that the application be heard and determined by a Full Court or 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: s 25 of the Federal Court Act.

 

Q3:  In the attendance item of schedule 3, the costs schedule, an allowance is made for each unit of 6 minutes a sum in all circumstances not exceeding $55 having regard to the complexity of the matter and to the lawyer’s skill and experience.  What would attract the maximum allowed?  How is the taxing officer to know of the skill and experience of the lawyer? 

A: The bill would give details of the skill and experience of the lawyer that was required to work on the matter and the reasons why the party contends that the matter was complex and needed the skill and experience of that practitioner.

 

Q4: If an Anton Piller order is made there are sometimes large amount of documents forwarded to the Court.  How do the discovery rules affect this?

A: The discovery rules do not affect the Anton Piller order.  If a party obtained documents under an Anton Piller order the party has obtained them under order of the Court.  The delivery of documents to the party under an Anton Piller order will not impact upon discovery obligations.

Questions arising from Education Sessions

Q:  Are there any new provisions (in particular restrictions) in relation to the size of documents that can be filed electronically?

A:  No, the size of a document that can be filed electronically remains unlimited.  The same restrictions remain in relation to the size of a document that can be filed by facsimile.

 

Q:  Is it possible to remove the schedule of parties after the first time a document has been filed (ie not attach the schedule to subsequent documents)?

A:  For an originating application, a notice of appeal, a document to be served on a person not a party to the proceedings or an order, the schedule must be used.  For other documents, the abbreviated title, as set out in Rule 2.13(4) may be used.

 

Q:  In the genuine steps statement, the parties provide a summary of the issues in dispute.  Will a party be stopped from raising an issue not raised in this summary?

A:  The procedures set out in the Civil Dispute Resolution Act 2011 are a costs tool, to encourage settlement of a matter.  A party who does not take the steps might be penalised in costs.  The Act also says this Court can take into account a failure to file a genuine steps statement but does not say how. The obligation under the Civil Dispute Resolution Act 2011 to file a statement is that of the parties. Failure to comply does not invalidate the proceedings and the Court has no role or responsibility to police compliance with the requirements of that Act. Registry staff will not refuse an originating application simply because it is not accompanied by a genuine steps statement. Staff may however draw to the attention of the party filing the originating application that the failure to file a genuine steps statement can be taken into account by the Court in performing its functions in relation to civil proceedings and in the exercise of its discretion to award costs in those proceedings. The same information would be given to a party filing a Notice of Address for Service or Defence who did not at the same time file that party's genuine steps statement.