Message from the Chair
Welcome to 2020 (Autumn) edition of Chapter III. It is fair to say the world has changed substantially since our last publication. See all news below with changes to the relevant organisations with current arrangements with COVID-19. We had another busy year in 2019. The Section Executive and the committees have worked tirelessly on your behalf, and on behalf of the profession. The high level of advocacy and submissions has continued, as has engagement with government and liaison with advisory groups. Read more.
John Emmerig
Chair
Federal Litigation and Dispute Resolution Section
COVID-19
See the latest news from the following organisations
Class Actions Update
Shifting Sands - Orders for Defendants to Produce Insurance Policies in Class Actions
By Frances Dreyer (Partner),and Nicholas Briggs (Senior Associate), Johnson Winter & Slattery.
We have started to see the Federal Court use its discretionary powers in respect of class actions to order defendants to disclose their insurance policies to plaintiffs. Read More
Defamation Practice Note
Federal Court sets new ground rules for hearing defamation disputes
By Ian Bloemendal (Partner) and Luke Furness (Senior Associate), Clayton Utz Brisbane.
A new practice note contains important new guidance on how the Federal Court will manage future defamation actions. Read more.
Expression of Interest for Federal Litigation & Dispute Resolution Section Committee Membership
The Federal Litigation and Dispute Resolution Section is seeking expression of interest for the below committees. Read more
Military Justice Committee (MJC)
Privileges and Immunities Committee (PIC)
Legal Technology Committee (LTC) and sub-committees
Client legal privilege, public interest immunity, privilege against exposure to penalty and penalty privilege and case notes
The following case notes have been provided by Stephen Tully, Barrister, Sixth Floor, St James' Hall Chambers.
Martin v Norton Rose Fulbright - Australia
Please read more here.
Director of Public Prosecutions NSW v Stanizzo 2019
Please read more here.
Australian Workers Union v Registered Organisations Commissioner
Please read more here.
JWR Productions Australia Pty Ltd v Duncan-Watt
Please read more here.
Merck Sharp & Dohme Corporation v Wyeth LLC
Please read more here.
Douglas v Morgan
Please read more here.
Glencore International AG v Commissioner of Taxation
Please read more here.
Federal Court Case Management Handbook
The Federal Court Case Management Handbook is a handy reference tool for practitioners. It is available here.
New Law Council of Australia CEO
On 16 March 2020, the Law Council of Australia announced the appointment of Michael Tidball as its new Chief Executive Officer. Mr Tidball currently serves as the Chief Executive Officer of the Law Society of NSW, a position he has held for nearly 14 years. He will take up his new position at the Law Council of Australia on 1 July 2020. Read more.
Law Council Update - Information for the legal profession about the COVID-19 outbreak
The Law Council has put together a webpage with helpful links for the legal profession. Read more.
To join the Section click here.
Newsletter contributions:
Please send to the Editor, Ian Bloemendal at ibloemendal@claytonutz.com
Selection of Judicial speeches and other publications
September 2019 to December 2019:
You can read a list of judicial speeches and publication from September to December 2019 here.
January to March 2020:
March 2020 - Justice Stewart: "The Role of Courts in Supporting Arbitration: a Review of Recent Developments in the Asia-Pacific", International Congress of Maritime Arbitrators ICMA XXI, Rio de Janeiro, Brazil. Read more.
Australian Law Reform Commission News
In January 2020 the Attorney General announced that the Hon Justice John Middleton was reappointed as a part-time member of the Australian Law Reform Commission.
Justice Middleton was appointed as a judge of the Federal Court of Australia in 2006 and was first appointed to the ALRC in 2012.
He will serve as part-time member until his statutory judicial retirement in December 2022.
Corporate Crime Inquiry
The Corporate Crime Inquiry is reviewing Australia's corporate criminal responsibility legislative framework, including Part 2.5 of the Criminal Code 1995 (Cth) in particular. The ALRC will assess law reform of that legislation and other relevant statutes, with a view to simplification of the regime.
The Honourable Justice Robert Bromwich was appointed as a part-time commissioner for this inquiry. The ALRC is due to report its findings on 30 April 2020.
Parliamentary Committee to examine impact of litigation funding on justice outcomes
A parliamentary committee has been asked to examine the profits being made by the litigation funding industry to determine whether Australians are receiving their fair share of class action settlements.
The Parliamentary Joint Committee on Corporations and Financial Services will be given broad terms of reference to inquire into all aspects of the class action system, including whether further regulation of litigation funders is needed to improve justice outcomes. Read more.
Administrative Appeals Tribunal News
On 26 March 2020, the AAT closed its doors to all visitors until further notice.
Temporary Measures page can be found here.
On 6 April 2020, the AAT published AAT Bulletin No 12/2020 which contains information about recently published decisions and appeals against decisions in various AAT Divisions: See here.
AAT Updated Practice Direction - Giving Documents or Things to the AAT
On 27 June 2019, the AAT updated Practice Direction - Giving Documents or Things to the AAT, which was updated to allow applications to the Migration and Refugee Division to be faxed to the AAT's Registry in Western Australia.
The President has further updated the Practice Direction with effect from 2 April 2020. The revised practice direction removes prohibitions on submitting certain documents by electronic means to the AAT, including documents produced under summons and the lodgement of section 37 documents in General Division. It also regularises the current practice in the MRD and SSCSD that departmental documents are lodged via a secure electronic transfer facility.
New AAT Special Measures Practice Directions
The Administrative Appeals Tribunal of Australia (AAT) has made available the following new Special Measures Practice Directions (all dated 27 April 2020) (SMPDs) which commenced on 29 April 2020 and :
- General, Freedom of Information and Veterans' Appeals (further information);
- Migration & Refugee (further information);
- National Disability Insurance Scheme (further information);
- Small Business Taxation and Taxation & Commercial (further information); and
- Social Services & Child Support (further information).
According to the AAT, the SMPDs:
- "set out how [the AAT] will continue to operate while COVID-19 impacts [its] services";
- "make changes to some aspects of [the AAT's] operations and procedures and to obligations of parties to reviews in response to the COVID-19 pandemic"; and
- "may take precedence over other directions that deal with the same matter".
Further information from the AAT
AAT's media release (28 April 2020)
(Source: AAT)
AAT Online Services Webpage
The AAT Online Service website, which allows parties, representatives and others to send the AAT documents in any case can be found here.
Latest AAT Bulletin - AAT Bulletin No. 13 of 2020 (20 April 2020).
Fair Work Commission
The Fair Work Commission has like other courts/tribunals closed its counters and is no longer accepting applications in-person or by post. Persons are therefore requested to:
- make applications using the FWC's online lodgment service; or
- download and complete the right form and send it by email or fax to the nearest Commission office.
If you have trouble lodging an application, please call the FWC on 1300 799 675. All the same time limits and requirements still apply. Read more.
High Court of Australia Update
Updates from the High Court of Australia. Read more.
Federal Court of Australia Update
Updates from the Federal Court of Australia. Read more.
Federal Circuit Court Update
Updates from the Federal Circuit Court. Read more.
None currently until further notice due to COVID-19.
2020 Immigration Law Conference
See all papers and information from another successful conference in Melbourne in March. Read more.
May 2019, the Military Justice Committee, made a submission on the Veterans Advocacy and Support Services Scoping Study Report.
July 2019, the Constitutional Law Committee, made a submission on the Independent National Security Legislation Monitor on the Review of the Terrorism related Citizenship loss provisions in the Australian Citizenship Act 2007.
July 2019, the Constitutional Law Committee, made a submission on the Review on the Australian Citizenship renunciation by conduct and cessation provisions of the Australian Citizenship Act 2007.
July 2019, the Constitutional Law Committee, made a submission on the Criminal Code Amendment (Agricultural Protection) Bill 2019.
August 2019, the Migration Law Committee, made a submission on the Migration Amendment (Strengthening the Character Test) Bill 2019.
August 2019, the Migration Law Committee, completed a submission on the Migration Legislation Amendment (Regional Processing Cohort) Bill 2019.
August 2019, the Migration Law Committee, completed a submission on the Migration Amendment (Repairing Medical Transfers) Bill 2019.
October 2019, the Industrial Law Committee, completed a submission in relation to the Improving protections of employees’ wages and entitlements: Strengthening penalties for non-compliance.
October 2019, the Administration Law Committee & the AAT Liaison Committee, completed a submission in regards to Centrelink’s Compliance Program.
December 2019, the Migration Law Committee, completed a submission on the Code of Conduct for Registered Migration Agents – Third Round consultation process.
January 2020, the Migration Law Committee, completed a submission on the Migration Amendment (Regulation of Migration Agents) Bill 2019, Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019.
March 2020, the Industrial Law Committee, completed a submission in relation to Unlawful underpayment of employees remuneration.
March 2020, the Migration Law Committee, completed a submission on Temporary Migration.
April 2020, the Administrative Law Committee, completed a submission on Human Rights & Technology.
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