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Lisa Doust Senior Associate

24 July 2006

Finding Your Way TO The Federal Court

Background: The Court’s Jurisdiction

• The Federal Court was established by the Federal Court of Australia Act 1976.

• The Court’s jurisdiction is that which is vested in it by Parliament (s.19). That is, other legislation prescribes the matters with which the Court can deal.

• Sections 21-23 of the Act define the scope of the Court’s powers.

Background: The Court’s JurisdictionThe additional jurisdiction of the Court is a matter of some controversy:

“It cannot be in dispute that where this Court is invested with original jurisdiction to determine what may be referred to as a "federal matter" it has jurisdiction to determine the whole of the matter in controversy between the parties, including such elements of the matter as may be in and by themselves not federal in nature: Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 ("Phillip Morris"); Fencott v Muller (1983) 152 CLR 570. In such a case the non federal matter has usually been said to be in the “accrued jurisdiction” of the Court, although the expression may need to be used with some care: cf Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 ("Edensor") at 585-6”

per Black CJ & Hill J, Petrotimor Companhia de Petroloeos S.A.R.L. and Oceanic Exploration Company v Commonwealth of Australia & Ors [2003] FCAFC 83.

Workplace Relations Act matters

The Workplace Relations Act makes the Federal Court of Australia a Court competent to deal with these matters:

• Proceedings for a Civil Remedy under Part 7 (s.317, breaches of the Australian Fair Pay and Conditions Standard)

• Proceedings for a Civil Remedy under Part 8, Division 11 (pecuniary penalties, compensation, injunctions and declarations for breaches of workplace agreement provisions)

• Proceedings for injunctions against pattern bargaining (s497).

Workplace Relations Act matters

• Applications for the imposition of penalties on an adviser who encourages unmeritorious unfair termination proceedings (s679)

• Unlawful termination applications under s663 (following conciliation)

• Penalty proceedings under Part 14 – Compliance (breach of instrument, underpayment)

• Proceedings under Part 16 (Freedom of Association)

• Various proceedings under Sch 1 – Registration and Accountability of Organisations.

Federal Court Procedure• There are about 145 different forms prescribed

for use in the Federal Court by the Federal Court rules.

• The Forms are contained in Schedule 1 to the Rules.

• “Substantial Compliance” is sufficient compliance (Order 1, rule 7(2)) – remember that rule in the event of a difficulty with registry staff.

• The form of heading required to be used is consistent across the forms (with limited exceptions).

Headings on Forms

In the Federal Court of AustraliaNew South Wales District Registry

No N of 2006  

FEDERATED POLE AND EXOTIC DANCERS’ UNION OF AUSTRALIA

Applicant 

AND 

THE TASTEFUL ENTERTAINMENT COMPANY PTY LIMITED

ACN 001 123 456Respondent

NOTICE OF APPEARANCE

Commencing Proceedings

• Federal Court Rules – Order 4, rule (1)“Except as otherwise provided in these Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.”

• Applications must be in accordance with Form 5, which is contained in Schedule 1 to the Federal Court Rules (see www.fedcourt.gov.au).

Form 5 APPLICATION(Order 4, rule 1)

(State briefly the nature of the subject of the application or cross‑claim and the legislative basis of the court’s jurisdiction to hear it and grant the relief sought. The required statement is not taken to be part of the pleading.)

A. DETAILS OF CLAIM

On the grounds stated in the accompanying affidavit or statement of claim (or, if applicable, Claim of unlawful termination of employment in accordance with Form 5A, or Claim under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination in accordance with Form 167), the applicant claims:

1. (Specify in numbered paragraphs all final relief sought.)

2.

B. CLAIM FOR INTERLOCUTORY RELIEF

(Complete this section if you wish to claim interlocutory relief)

AND the applicant claims by way of interlocutory relief:

1. (Specify in numbered paragraphs all interlocutory relief sought.)

2.

3.

Date: eg, 7 May 20

(signed, applicant or applicant’s solicitor)

C. NOTICE TO RESPONDENT

(Complete this section if there is a respondent)

TO the respondent of (insert address):

This application has been set down for the time and place stated below. If you or a legal practitioner representing you do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

(a) the application may be heard;

(b) directions may be given for the further conduct of the proceeding;

(c) any application for interlocutory relief may be heard.

Before any attendance at Court, you must file an appearance in the Registry.

Time and date for hearing: (to be entered by Registry unless fixed by Court)

Place: (address of Court)

D. ABRIDGMENT OF SERVICE

(Complete this section if the time for service has been abridged)

The time by which this application is to be served has been abridged by order made on (insert date) to (insert time and date).

Date: eg, 7 May 19

(signed, Registrar)

E. FILING AND SERVICE

This application is filed by (insert name) for (insert name) whose address for service is (insert address).

The applicant’s address is (if the applicant is an individual, specify place of residence or business; if the applicant is a corporation, specify principal place of business).

It is not intended to serve this application on any person.

OR

It is intended to serve this application on each person listed below:

(insert name of each person on whom application is to be served)

Version 4

In the Federal Court of AustraliaNew South Wales District RegistryNo (P)NSD1/2007

NAME Applicant

AND COMPANY X

Respondent 

APPLICATION(Order 4 rule 1)

 Application pursuant to sections 413A, 178, 179, 179A and 356 of the Workplace Relations Act 1996 (Cth) (“the Act"), s23 of the Federal Court of Australia Act 1976 and the accrued jurisdiction of the Court.

 A. DETAILS OF CLAIMOn the grounds stated in the accompanying Statement of Claim, the applicant claims:

 1.  A declaration that the respondent breached clause 1 of the Company X Enterprise Agreement 2000 (“the

Agreement”). 2.  Pursuant to s178 of the Act, the imposition of a penalty on the respondent for breach of clause 1 of the Agreement. 3.  A declaration that with respect to the matters set out in paragraphs 10 to 20 of the Statement of Claim the

respondent breached clause 2 of the Agreement.    

Filed by the ApplicantMaurice Blackburn Cashman Pty Ltd DX 13002 Sydney Market StreetLawyers Tel: (02) 9261 1488Level 20, 201 Elizabeth St Fax: (02) 9261 3318SYDNEY NSW 2000 Our Ref: LD:

     

4. Pursuant to s178 of the Act, the imposition of a penalty upon the respondent with respect to the breach of clause 2 of the Agreement arising from the matters set out in paragraphs 10 to 20 of the Statement of Claim.

 5.      A declaration that with respect to the matters set out in paragraphs 21 to 30 of the Statement of Claim the

respondent breached clause 3 of the Agreement. 6.       Pursuant to s178 of the Act, the imposition of a penalty upon the respondent with respect to the breach of clause 3 of

the Agreement arising from the matters set out in paragraphs 21 to 30 of the Statement of Claim. 7.     A declaration that the respondent breached s51AA of the Trade Practices Act 1994. 8.      An order that the respondent pay the applicant damages pursuant to s82 of the Trade Practices Act 1994. 9.     A declaration that the respondent breached the contract of employment between the parties in each of the respects

set out in paragraphs 31 to 40 of the statement of claim. 10.    An order that the respondent pay the applicant damages in respect of each breach of contract committed by the

respondent. 11.     Interest. 12.     Costs. 13.     Such further or other orders as to the Court seems fit.  Date: 1 January 2001 Lisa Doust, Solicitor for the applicant

   

Commencing ProceedingsThe usual rule is that an Application must be accompanied by either an Affidavit or a Statement of Claim. The Statement of Claim is more commonly utilised, and must be used where fraud and like allegations are made.

Order 4, rule 6

Affidavit or statement of claim — Form 7(1) The applicant shall file and serve with the application either an affidavit in

accordance with Form 20, or a statement of claim in accordance with Form 7, whichever is appropriate.

(1A) However, an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim.

(2) The affidavit or statement of claim shall show:

(a) the nature of the applicant’s claim; and

(b) the material facts on which it is based.

That rule is modified in relation to Applications relating to a claim of unlawful termination of employment, where Form 5A is required to accompany the Application.

Unlawful Termination(Order 48, Federal Court Rules)

Pleading your Case(Order 11)

There is more to running matters in the Federal Court than just using the right forms. Your paperwork also has to contain the appropriate information.

In the case of Statements of Claim, Order 11 sets out how a matter must be pleaded. Order 11 requires that a Pleading:-

•Be divided into consecutively numbered paragraphs (rule 1);•Include a statement as to the identity of the person who prepared the pleading (rule 2); and •Where the Pleading is prepared by a legal practitioner representing the party, include a certificate in Form 15B is completed by a legal practitioner. (This will apply to industrial officers who hold practising certificates as solicitors, and who represent their union pursuant to section 854);•Be brief (Order 3);•Plead facts, not evidence (Order 2).

Pleadings – Certificate of Legal Practitioner

Pleadings – The Material FactsThe pleading must set out the material facts. Those facts are the factual allegations which, if proven, would establish a cause of action supporting the claim for relief made in the Application. Examples of “material facts” to be pleaded in a Statement of Claim include, the following:

• That an Applicant is, or was at any relevant time, an organisation of employees registered as such under the Workplace Relations Act 1996.

• That an Applicant is, or was at a relevant time, an employee within the meaning section 5 of the Act.

• That an employee is a member of a registered organisation.

• That an organisation is entitled by its rules to represent the industrial interests of the applicant employee.

• That the Respondent is a corporation under the laws of the Commonwealth.

• The relevant term or terms of any contract, award, enterprise agreement said to have been breached.

More Material Facts

• That the proceeding is brought pursuant to a particular provision of the Act.

• The components of any conduct said to be in breach of any relevant instrument.

• The assertion that the pleaded conduct constituted a breach of contract, enterprise agreement, award or AFPCS.

• The capacity of any party referred to in proceedings e.g. whether they acted on behalf of another party.

• Injuries, loss or damage suffered by an Applicant if a claim for compensation is made.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

No N. of 2006

Between:

First Applicant

First Respondent

STATEMENT OF CLAIM

The Parties

1. The First Applicant is, and was at all material times, an organisation of employees registered as such under the Workplace Relations Act 1996 (“the Act”).

2. The Second Applicant is a natural person who was, at all material times, an employee within the meaning of that term in section 5 of the Act.

3. The Second Applicant is a member of the First Applicant.

 

4. The First Applicant is entitled by reason of its rules to represent the industrial interests of the Second Applicant.

Filed by the Applicant

Maurice Blackburn Cashman Pty Ltd DX 13002 Sydney Market Street

Lawyers Tel: (02) 9261 1488

Level 20, 201 Elizabeth St Fax: (02) 9261 3318

SYDNEY NSW 2000 Our Ref: LD:

 5. The First Applicant has been requested by the Second Applicant, pursuant to subsection 405(3)(a) to bring these

proceedings.

6. At least one member of the First Applicant is employed by the Third Respondent. 7. The First Respondent is a natural person who at all material times was a manager employed by the Third

Respondent.

8. The Second Respondent is a natural person who at all material times was a manager employed by the Third Respondent.

 9. The Third Respondent is a corporation under the laws of the Commonwealth, entitled to sue and be sued in and by

its corporate name and style. The Employment with the Third Respondent 10. The Third Respondent was at all material times the operator of a business which carried out the business of

manufacturing mobile telephones at Sydney in the State of New South Wales.11. On 1 January 2006, the First Respondent offered and the Second Applicant accepted employment with the Third

Respondent 

ParticularsTelephone conversation between the First Respondent and the Second Applicant on 1 January 2006.

 12. On and from 1 January 2006, the Second Applicant performed work at the direction of the Third Respondent

pursuant to the employment relationship between them.  

ParticularsThe Second Applicant attended work on night shift at the Third Respondent’s factory commencing on 1 January 2006.

Contravention of Part 8 of the Act 13. On 5 January 2006, the First Respondent gave the Second Applicant a proposed workplace agreement within the

meaning of that term in section 324 of the Act, being an Australian Workplace Agreement it proposed to enter into with the Second Applicant (hereafter "the AWA").

14. On 6 January 2006, the First Respondent assaulted the Second Applicant while demanding that the Second Applicant execute the AWA.  

ParticularsThe First Respondent struck the Second Applicant repeatedly with a power tool near the workbenches on the second floor of the Third Respondent’s factory.Report of Dr Kofi Annan dated 7 January 2006.

15. On 6 January 2006, the Second Respondent threatened to dismiss the Second Applicant if the Second Applicant refused to execute the AWA.

ParticularsMemo from Second Respondent to Second Applicant dated 6 January 2006.

  16. On and from 6 January 2006, the Second Respondent imposed illegitimate pressure on the Second Applicant

directed at securing his entry into the AWA.

ParticularsConfiscation of cigarettes.Removal of milk from tea-room fridge.Repeated playing of Barry Manilow CD on factory stereo system.

  

 

17. The conduct of the First and Second Respondents described above was engaged in on behalf of the Third Respondent.

 

18. In the circumstances described above, the First Respondent applied duress to the Second Applicant in connection with an AWA in breach of subsection 400(5) of the Act.

 

19. In the circumstances described above, the Second Respondent applied duress to the Second Applicant in connection with an AWA in breach of subsection 400(5) of the Act.

 

20. In the circumstances described above, the Third Respondent, through the First and Second Respondents, applied duress to the Second Applicant in connection with an AWA in breach of subsection 400(5) of the Act.

Claim for Compensation

 

21. As a result of the contraventions referred to above, the Second Applicant has suffered loss and damage.

 

22. And the Applicant seeks the relief set out in the Application.

 

This pleading was prepared by Lisa Doust, Solicitor.

 

Date: 1 June 2006

 

 

………………………………………….

LISA DOUST

Solicitor for the Applicants

 

Affidavits (Order 14)Order 14 sets out the required form of Affidavits to be used in the Court. An Affidavit must be: •In accordance with Form 20 (use of proceedings heading);•In the first person;•In sequentially numbered paragraphs, each of which is confined to a distinct portion of the subject;•Paginated, commencing with the first page;•With sequentially numbered (or lettered) annexures;• Full name of deponent and date of swearing on the front page, i.e.

On 24 July 2006, I, John Winston Howard of Kirribilli House, politician say on oath/solemnly and sincerely affirm and declare…”

•Contain appropriate attestation by the witness in the event of an illiterate, blind or disabled deponent;•Be signed by the deponent and witness on each page (except where the depondent is blind, illiterate or disabled);•Have any erasures or amendments specifically initialled by the witness.

In the Federal Court of AustraliaNew South Wales District Registry

No (P)NSD1992/2004 

FEDERATED POLE AND EXOTIC DANCERS’ UNION OF AUSTRALIA

Applicant 

AND 

THE TASTEFUL ENTERTAINMENT COMPANY PTY LIMITED

ACN 001 123 456Respondent

 

 AFFIDAVIT OF LISA JAYNE DOUST

On 22 July 2006, I, LISA JAYNE DOUST, solicitor of Level 20, 201 Elizabeth Street, Sydney in the State of New South Wales, solemnly and sincerely affirm and declare as follows:

1.            1. All the facts and circumstances deposed to in this, my affidavit are within my own knowledge save where they are stated to be from information only and my means of knowledge and sources of information appear on the face of this my affidavit.

2.            2. I am a solicitor admitted to practise in the Supreme Court of New South Wales in December 2003. I have the carriage and conduct of this matter on behalf of the Applicant. I have no or limited capacity to create Powerpoint presentations.

Defending Proceedings

•The first document you will be required to generate in the event your Union becomes a Respondent to Federal Court proceedings is a Notice of Appearance (Order 9, rule 3(1).

•The Notice of Appearance must be filed prior to the first directions hearing (Order 9 rule (2)).

•The Notice of Appearance must be served on the Applicant’s solicitor, or if no solicitor appears, on the Applicant, at the address contained in the Application.

•Unless otherwise ordered, a Respondent must file a Defence within 7 days of the directions hearing. (Order 11, rule 20). The Defence is in substantially similar form to a Statement of Claim, and contains:-

admissions to any of the matters pleaded in the Statement of Claim;any denial of any matter pleaded in the Statement of Claim; andany additional allegation which raises a Defence to the matters pleaded in the

Statement of Claim (for example, any relevant Deed of Release, any statute limitation etc).

Other Documents used in the Federal Court

• Notices of Motion

• Notices of Discontinuance

• Notices to Admit Facts

• Notices to Answer Interrogatories

• Subpoenae

• Notices to Produce

Filing and Lodging Documents in the Federal Court

Documents may be filed in the Federal Court:• In person at the registry;• By posting or DX-ing the documents to the

Registry;• By faxing the documents (provided they are

under 20 pages);• By e-filing (provided they are under 50 pages -

see the Court’s website www.fedcourt.gov.au)

Service of Documents• Originating Process (i.e. Application and Statement of Claim) must be served

personally on the Respondent (Order 7, rule 1). Other documents may be served by post, DX, fax or email.

• Personal Service is effected on:• an individual — by leaving the document with him/her, or if service is refused,

by putting the document down and advising them of its nature;• a corporation — by leaving a copy of the document with someone apparently an

officer or employee, apparently 16+ yo at the registered office or principal place of business of the corporation, OR under section 109X of the Corporations Act 2001 by leaving the document at the registered office, posting it there, or giving it to a director of the company who is resident in Australia;

• an unincorporated association — by leaving a copy of the document at the principal place of business or the principal office of the association with someone apparently an officer or employee of the association and apparently 16+ yo ;

• an organisation — by leaving a copy of the document with someone apparently an officer or employee and apparently 16+ yo at the office of the organisation shown in the records lodged in the Industrial Registry pursuant to section 233 of Schedule 1B to the Workplace Relations Act 1996.

THE END