Finding your way around the Federal Court - getting the paperwork right! Lisa Doust Senior Associate 24 July 2006
Finding Your Way TO The Federal Court
Background: The Courts Jurisdiction The Federal Court was established by the Federal Court of Australia Act 1976. The Courts 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 Courts powers.
Background: The Courts Jurisdiction The 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  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 Australia New 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 001 123 456 Respondent NOTICE OF APPEARANCE
Commencing Proceedings Federal Court Rules Order 4, rule (1) Except as otherwise provided in these Rules all proceedings in the Courts 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 5APPLICATION (Order 4, rule 1) (State briefly the nature of the subject of the application or cross claim and the legislative basis of the courts 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 applicants 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 applicants 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 Australia New South Wales District Registry No (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 CLAIM On 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 Applicant Maurice Blackburn Cashman Pty LtdDX 13002 Sydney Market Street LawyersTel: (02) 9261 1488 Level 20, 201 Elizabeth StFax: (02) 9261 3318 SYDNEY NSW 2000Our 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 2001Lisa Doust, Solicitor for the applicant
Commencing Proceedings The 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 applicants 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 Facts The 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 LtdDX 13002 Sydney Market Street LawyersTel: (02) 9261 1488 Level 20, 201 Elizabeth StFax: (02) 9261 3318 SYDNEY NSW 2000Our 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 Particulars Telephone 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. Particulars The Second Applicant attended work on night shift at the Third Respondents 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. Particulars The First Respondent struck the Second Applicant repeatedly with a power tool near the workbenches on the second floor of the Third Respondents fa...