the federal magistrates court of australia practice & procedure

The Federal Magistrates Court The Federal Magistrates Court of Australiaof Australia

Practice & ProcedurePractice & Procedure

General Federal Law - JurisdictionGeneral Federal Law - Jurisdiction

IN ADMINISTRATIVE LAWIN ADMINISTRATIVE LAW::

In matters under the Administrative Decisions (Judicial Review) Act In matters under the Administrative Decisions (Judicial Review) Act 1997 (see ss. 5-8). This jurisdiction is limited and practitioners must 1997 (see ss. 5-8). This jurisdiction is limited and practitioners must have regard to the statute involved which may provide that an have regard to the statute involved which may provide that an application cannot be made to the FMC;application cannot be made to the FMC;

In appeals from the Administrative Appeals Tribunal remitted from the In appeals from the Administrative Appeals Tribunal remitted from the Federal Court (s. 44AA Administrative Appeals Tribunal Act 1975)Federal Court (s. 44AA Administrative Appeals Tribunal Act 1975)


In In admiralty lawadmiralty law in personam actions such as cargo claims, in personam actions such as cargo claims, damage claims and seafarer’s wages (s. 9 Admiralty Act damage claims and seafarer’s wages (s. 9 Admiralty Act 1988). The court also enjoys jurisdiction in claims in rem 1988). The court also enjoys jurisdiction in claims in rem when the proceeding is remitted from the Federal Court.when the proceeding is remitted from the Federal Court.


In In bankruptcybankruptcy all civil claims and matters under the all civil claims and matters under the Bankruptcy Act 1966 except those requiring jury trials under Bankruptcy Act 1966 except those requiring jury trials under s.30(3) of the Act (s. 27 Bankruptcy Act provides that the s.30(3) of the Act (s. 27 Bankruptcy Act provides that the FMC has concurrent jurisdiction with the Federal Court)FMC has concurrent jurisdiction with the Federal Court)


In In copyrightcopyright civil claims and matters under Parts V (remedies civil claims and matters under Parts V (remedies and defences), VAA (broadcast decoding devices), IX (moral and defences), VAA (broadcast decoding devices), IX (moral rights of authors of literary, dramatic, musical or artistic works rights of authors of literary, dramatic, musical or artistic works in films) and Part XIA (performance protection) of the in films) and Part XIA (performance protection) of the Copyright Act 1968, including claims for injunctions and Copyright Act 1968, including claims for injunctions and damages for breach of copyright. Jurisdiction is conferred on damages for breach of copyright. Jurisdiction is conferred on the FMC by ss. 131D, 135ARA, 195AZC and 248MA the FMC by ss. 131D, 135ARA, 195AZC and 248MA respectively;respectively;


IN INDUSTRIAL LAWIN INDUSTRIAL LAW::

Matters under the Workplace Relations Act 1996, including unlawful Matters under the Workplace Relations Act 1996, including unlawful termination claims;termination claims;

Breaches of the Australian Fair Pay and Conditions Standards, claims Breaches of the Australian Fair Pay and Conditions Standards, claims with respect to the business transmission rules, workplace agreements, with respect to the business transmission rules, workplace agreements, right of entry and certain types of industrial action;right of entry and certain types of industrial action;

Matters arising under the Building and Construction Industry Matters arising under the Building and Construction Industry Improvement Act 2005 with respect to unfair contracts for services Improvement Act 2005 with respect to unfair contracts for services with respect to building work;with respect to building work;

Matters arising under the Independent Contractors Act 2006, to review Matters arising under the Independent Contractors Act 2006, to review a contract for service to see if it is unfair or harsh.a contract for service to see if it is unfair or harsh.


In In migrationmigration matters, for almost all first instance review of matters, for almost all first instance review of decisions of the Refugee Review Tribunal and Migration decisions of the Refugee Review Tribunal and Migration Review Tribunal and Administrative Appeals Tribunal;Review Tribunal and Administrative Appeals Tribunal;


In enforcing determinations of the Privacy Commissioner and In enforcing determinations of the Privacy Commissioner and private sector adjudicators under the Privacy Act 1988 (s. private sector adjudicators under the Privacy Act 1988 (s. 55A);55A);


Under the Trade Practices Act 1974 (s. 86(1A) and 86AA) Under the Trade Practices Act 1974 (s. 86(1A) and 86AA) with respect to claims under:with respect to claims under: Part IVAPart IVA Part IVBPart IVB Part VPart V Part VAPart VA The court can provide injunctive relief under s. 80 and The court can provide injunctive relief under s. 80 and

damages under s 82 of up to $750,000damages under s 82 of up to $750,000


In claims for unlawful discrimination under the Human Rights In claims for unlawful discrimination under the Human Rights and Equal Opportunity Commissions Act 1986 (ss. 46PO) and Equal Opportunity Commissions Act 1986 (ss. 46PO) relating to complaints under:relating to complaints under:

Age Discrimination Act 2004Age Discrimination Act 2004 Disability Discrimination Act 1992Disability Discrimination Act 1992 Racial Discrimination Act 1975Racial Discrimination Act 1975 Sex Discrimination Act 1984Sex Discrimination Act 1984


In claims under the Do Not Call Register Act 2006In claims under the Do Not Call Register Act 2006

In certain national security matters, including the issue of In certain national security matters, including the issue of control orders.control orders.


In its General Federal Law Jurisdiction the court’s business is In its General Federal Law Jurisdiction the court’s business is allocated to specialist panels.allocated to specialist panels.

They are:They are: Commercial Panel – TPA; Copyright; BankruptcyCommercial Panel – TPA; Copyright; Bankruptcy Migration and Administrative LawMigration and Administrative Law Human RightsHuman Rights Industrial LawIndustrial Law National SecurityNational Security AdmiraltyAdmiralty

Each panel is administered by a convenor who is responsible for Each panel is administered by a convenor who is responsible for urgent applicationsurgent applications

Federal Magistrates Act 1999 – Section 10Federal Magistrates Act 1999 – Section 10

JurisdictionJurisdiction

(1)(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:the Parliament:

a)a) by express provision; orby express provision; or

b)b) by the application of section 15C of the by the application of section 15C of the Acts Interpretation Act 1901 Acts Interpretation Act 1901 to a provision to a provision that, whether expressly or by implication, authorises a civil proceeding to be that, whether expressly or by implication, authorises a civil proceeding to be

instituted instituted in the Federal Magistrates Court in relation to a matter.in the Federal Magistrates Court in relation to a matter.

(2)(2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.courts.

(3)(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia. Magistrates Court have effect and may be executed, throughout Australia.

The FMC The FMC MUSTMUST grant either absolutely or on terms grant either absolutely or on terms and conditions as are just all remedies to which any and conditions as are just all remedies to which any party may be entitled in respect of legal or equitable party may be entitled in respect of legal or equitable claims such that all matters are finally determined.claims such that all matters are finally determined.

FMC Act s.14FMC Act s.14

Specific PowersSpecific Powers

Specifically the FMC is empowered to:Specifically the FMC is empowered to:

Make interlocutory ordersMake interlocutory orders Issue writsIssue writs FMC Act s.15FMC Act s.15 Make binding declarationsMake binding declarations FMC Act s.16FMC Act s.16 Punish for contemptPunish for contempt FMC Act s.17FMC Act s.17 Deal with matters summarilyDeal with matters summarily FMC Act s.17AFMC Act s.17A Make orders in respect of accrued Make orders in respect of accrued

jurisdiction jurisdiction FMC Act s.18FMC Act s.18

FMC must proceed without undue formality and endeavour to ensure FMC must proceed without undue formality and endeavour to ensure that proceedings are not protractedthat proceedings are not protracted

FMC Act s.42FMC Act s.42

Practice and procedure is to be in accordance with the Court rules Practice and procedure is to be in accordance with the Court rules FMC Act s.43(1)FMC Act s.43(1)

Representation ordinarily only permitted by lawyersRepresentation ordinarily only permitted by lawyersFMC Act s.44FMC Act s.44

Interrogation and discovery only by orderInterrogation and discovery only by orderFMC Act s.45FMC Act s.45

Where FMC rules are insufficient apply:Where FMC rules are insufficient apply: Rules of Court made under FLA; orRules of Court made under FLA; or Rules of Court made under FCARules of Court made under FCA

with appropriate modificationwith appropriate modificationFMC Act s.43(2)FMC Act s.43(2)

Federal Magistrates Act 1999Federal Magistrates Act 1999

Section 51: Limits on length of documentsSection 51: Limits on length of documents

(1)(1) The Federal Magistrates Court or a Federal Magistrate may give The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the length of documents required or directions about limiting the length of documents required or

permitted to be filed in the Federal Magistrates Court. permitted to be filed in the Federal Magistrates Court.

(2) (2) Subsection (1) has effect subject to the Rules of Court.Subsection (1) has effect subject to the Rules of Court.

Section 55: Limits on the length of oral argumentSection 55: Limits on the length of oral argument

(1) (1) The Federal Magistrates Court or a Federal Magistrate may give The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the time for oral argument in directions about limiting the time for oral argument in

proceedings proceedings before the Federal Magistrates Court. before the Federal Magistrates Court.

(2) (2) Subsection (1) has effect subject to the Rules of Court.Subsection (1) has effect subject to the Rules of Court.


Section 56: Written SubmissionsSection 56: Written Submissions

(1) (1) The Federal Magistrates Court or a Federal Magistrate may give The Federal Magistrates Court or a Federal Magistrate may give directions about the use of written submissions in proceedings directions about the use of written submissions in proceedings

before before the Federal Magistrates Court. the Federal Magistrates Court.

(2) (2) The Federal Magistrates Court or a Federal Magistrate may give The Federal Magistrates Court or a Federal Magistrate may give directions limiting the length of written submissions in directions limiting the length of written submissions in

proceedings proceedings before the Federal Magistrates Court. before the Federal Magistrates Court.

(3) (3) Subsections (1) and (2) have effect subject to the Rules of Court. Subsections (1) and (2) have effect subject to the Rules of Court.

Section 62: Time limits on giving of testimonySection 62: Time limits on giving of testimony

(1) (1) The Federal Magistrates Court or a Federal Magistrate may give The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the time for the giving of testimony in directions about limiting the time for the giving of testimony in proceedings before the Federal Magistrates Court. proceedings before the Federal Magistrates Court.

(2) (2) Subsection (1) has effect subject to the Rules of Court. Subsection (1) has effect subject to the Rules of Court.


Section 63: Federal Magistrates Court may question witnessSection 63: Federal Magistrates Court may question witness

(1) (1) The Federal Magistrates Court may: The Federal Magistrates Court may: (a) (a) put a question to a person giving testimony in a put a question to a person giving testimony in a

proceeding proceeding if, in the opinion of the Federal Magistrates if, in the opinion of the Federal Magistrates Court, Court, the question is likely to assist in: the question is likely to assist in:

(i) the resolution of a matter in dispute in the (i) the resolution of a matter in dispute in the proceeding; or proceeding; or

(ii) the expeditious and efficient conduct of the (ii) the expeditious and efficient conduct of the proceeding; proceeding; and and

(b) (b) require the person to answer the question. require the person to answer the question. (2) (2) Subsection (1) has effect subject to the Rules of Court. Subsection (1) has effect subject to the Rules of Court. (3) (3) This section has effect in addition to, and not instead of, any other This section has effect in addition to, and not instead of, any other

powers that the Federal Magistrates Court may have to ask powers that the Federal Magistrates Court may have to ask questions. questions.


Section 64: Evidence may be given orally or by affidavitSection 64: Evidence may be given orally or by affidavit

(1) Testimony in a proceeding in the Federal Magistrates Court is to be given orally or by affidavit. (1) Testimony in a proceeding in the Federal Magistrates Court is to be given orally or by affidavit.

(2) However, the Federal Magistrates Court or a Federal Magistrate may: (2) However, the Federal Magistrates Court or a Federal Magistrate may:

(a) direct that particular testimony is to be given orally; or (a) direct that particular testimony is to be given orally; or

(b) direct that particular testimony is to be given by affidavit. (b) direct that particular testimony is to be given by affidavit.

(3) Subsections (1) and (2) have effect subject to: (3) Subsections (1) and (2) have effect subject to:

(a) any other provision of this Act; and (a) any other provision of this Act; and

(b) the Rules of Court; and (b) the Rules of Court; and

(c) any other law of the Commonwealth. (c) any other law of the Commonwealth.

Cross‑examination of person who makes an affidavit Cross‑examination of person who makes an affidavit

(4) If: (4) If:

(a) a person makes an affidavit; and (a) a person makes an affidavit; and

(b) a party to a proceeding in the Federal Magistrates Court adduces, or proposes to adduce, evidence by the affidavit; (b) a party to a proceeding in the Federal Magistrates Court adduces, or proposes to adduce, evidence by the affidavit;

a party to the proceeding may request the person to appear as a witness to be cross‑examined with respect to the matters in the a party to the proceeding may request the person to appear as a witness to be cross‑examined with respect to the matters in the affidavit. affidavit.

(5) Subsection (4) has effect subject to the Rules of Court. (5) Subsection (4) has effect subject to the Rules of Court.

(6) If: (6) If:

(a) a request under subsection (4) is given to a person who has made an affidavit; and (a) a request under subsection (4) is given to a person who has made an affidavit; and

(b) the person does not appear as a witness to be cross‑examined with respect to the matters in the affidavit; (b) the person does not appear as a witness to be cross‑examined with respect to the matters in the affidavit;

the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in the circumstances. the circumstances.

Federal Magistrates Court Rules 2001Federal Magistrates Court Rules 2001

Rule 1.05: ApplicationRule 1.05: Application

(1)(1) It is intended that the practice and procedure of the Federal Magistrates Court be It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.governed principally by these Rules.

(2)(2) However, if in a particular case the Rules are insufficient or inappropriate, the However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Court may apply the Federal Court Rules or the Family Law Rules 2004 Family Law Rules 2004 or the or the Family Law Rules 1984, Family Law Rules 1984, in whole or part and modified or dispensed with, as in whole or part and modified or dispensed with, as necessary.necessary.

(3)(3) Without limiting subrule (2):Without limiting subrule (2):

(a)(a) the provisions of the Family Law Rules set out in Part 1 of Schedule 3 the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support apply, with necessary changes, to family law or child support

proceedings; andproceedings; and

(b)(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3 the provisions of the Federal Court Rules set out in Part 2 of Schedule 3 apply, with necessary changes, to general federal law proceedings.apply, with necessary changes, to general federal law proceedings.


Rule 1.06: Court may dispense with rulesRule 1.06: Court may dispense with rules

(1)(1) The Court may in the interests of justice dispense with compliance, or full The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.compliance, with any of these Rules at any time.

(2)(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that with any of these Rules, the direction or order of the Court prevails in that proceeding.proceeding.


Rule 4.01: ApplicationRule 4.01: Application

(1)(1) Unless otherwise provided in these Rules, a proceeding must be started by filing an application Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the form of application set out in Part 1 of Schedule 2.in accordance with the form of application set out in Part 1 of Schedule 2.

(2)(2) An application for final orders may include an application for interim or procedural orders.An application for final orders may include an application for interim or procedural orders.

(3)(3) A person may not file an application for an interim or procedural order unless:A person may not file an application for an interim or procedural order unless:

(a)(a) an application for final order has been made in the proceeding; oran application for final order has been made in the proceeding; or

(b)(b) the application includes an application for a final order.the application includes an application for a final order.

Rule 4.05: Affidavit to be filed with application or responseRule 4.05: Affidavit to be filed with application or response

(1)(1) A person filing an application or response, whether seeking final, interim or procedural orders, A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.must also file an affidavit stating the facts relied on.

(2)(2) However, an application for interim or procedural orders may be filed without an affidavit if However, an application for interim or procedural orders may be filed without an affidavit if the evidence relied on is in an affidavit or affidavits filed in the pending proceedings.the evidence relied on is in an affidavit or affidavits filed in the pending proceedings.

““If you intend to impeach a witness you are bound, whilst he is in If you intend to impeach a witness you are bound, whilst he is in the box, give him an opportunity to make any explanation which the box, give him an opportunity to make any explanation which is open to him; and, as it seems to me, that is not only a rule of is open to him; and, as it seems to me, that is not only a rule of

professional practice in the conduct of a case, but it is essential to professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses” fair play and fair dealing with witnesses”

There is no obligation to raise a matter:There is no obligation to raise a matter:

“where it is perfectly clear that [the witness] has had full notice “where it is perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of beforehand that there is an intention to impeach the credibility of

the story he is telling… All I am saying is that it will not do to the story he is telling… All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he impeach the credibility of a witness upon a matter on which he

has not had any opportunity of giving an explanation by reason of has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the there having been no suggestion whatever in the course of the

case that his story is not accepted”case that his story is not accepted”

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88

Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773

West v Mead [2003] NSWSC 161

the federal magistrates court of australia practice & procedure

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