(GENFED-ADMIRALTY)
1. Introduction
1.1 This Practice Direction applies nationally from 1 September 2021 to all proceedings brought under the Admiralty Act 1988 (Cth) in the Federal Circuit and Family Court of Australia (the Court).
1.2 This Practice Direction is to be read together with:
- the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act);
- the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (General Federal Law Rules);
- the Admiralty Act 1988 (Cth) (Admiralty Act);
- the Admiralty Rules 1988 (Admiralty Rules);
- the Federal Court Act 1976 (Cth) (Federal Court Act);
- the Federal Court Rules 2011 (Federal Court Rules); and
- Central Practice Direction – General Federal Law proceedings.
1.3 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.
1.4 To the extent this Practice Direction is inconsistent with any Act, regulation, rule, or other legislative provision (whether or not expressly listed above), the Act, regulation, rule or other legislative provision prevails.
1.5 The General Federal Law Rules apply to the extent that they are not inconsistent with the Admiralty Rules.
1.6 Where the General Federal Law Rules and the Admiralty Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules.
2. Admiralty and maritime jurisdiction
2.1 Under section 9 of the Admiralty Act, the Court has admiralty and maritime jurisdiction over actions in personam:
- on a maritime claim; or
- on a claim for damage done to a ship.
2.2 All initiating applications and transfers from another Court within or purporting to invoke the admiralty and maritime jurisdiction of the Court, conferred pursuant to sections 76 and 77 of the Constitution, will be made returnable before an admiralty panel judge of the admiralty and maritime national practice area, as directed by the case management judge of the relevant registry.
3. Before starting a proceeding in the Court
3.1 The overarching purpose of the legislation relevant to civil practice and procedure is the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see section 190 of the Act.
3.2 To that end, parties should make a genuine effort to narrow or resolve issues in dispute.
4. Starting a proceeding
4.1 The Admiralty Rules and forms apply to the commencement of admiralty proceedings in the Court. These can be found on the Court's website.
4.2 The nature of the proceeding and the likely issues for resolution should be made clear as early as possible. This will be aided by the applicant making clear in the originating application and supporting material what the case is about.
5. Expeditious determination and transfer
5.1 As far as practicable, admiralty and maritime matters are case managed for expeditious hearing within 6 months by an admiralty panel judge of the admiralty and maritime practice area.
5.2 The Court appreciates that there are some proceedings that are filed to preserve time in carriage of goods by sea cases and in collision cases against in personam parties. The Court is aware that issues of enforcement may arise in relation to foreign parties with no assets within the jurisdiction and where no security or inadequate security has been provided.
5.3 The Court has the power under section 153 of the Act and rules 8.02 and 8.03 of the General Federal Law Rules to transfer a proceeding to the Federal Court.
5.4 There may be circumstances in which it is appropriate for there to be determination of separate questions. Appeal issues may arise from the determination of the separate questions. Ordinarily, if not potentially dispositive, the matter will be transferred if there are enforcement issues. The appropriate course will depend on the nature of the issues and enforcement issue in the particular case.
6. Case management
6.1 The first return date is usually approximately 4 weeks from the date of filing. The case is listed in the monthly Friday admiralty list before an admiralty panel judge. The admiralty panel judge on that occasion expects parties to identify the likely issues and to propose appropriate timetables for pleadings, affidavit evidence, submissions, list of objections and chronology and the fixing of the matter for a further directions date. At the further directions date, a hearing date will be allocated before an admiralty panel judge.
6.2 The Court is likely to grant leave to interstate practitioners to appear by video or audio link on the first return date if a request to do so has been forwarded to chambers with an appropriate telephone number and the name of the practitioner with the conduct of the matter.
6.3 In collision matters, the Court expects the parties to comply with the Admiralty Rules in respect of filing preliminary acts.
6.4 If the amount in dispute is not significant, or the issues are of narrow compass, the Court may dispense with pleadings and order an agreed statement of facts and issues. The Court can determine the matter on the papers where the parties so agree.
7. Mediation and arbitration
7.1 If appropriate and assessed as suitable, the Court may refer the matter to mediation under section 169 of the Act before an agreed mediator or a court-appointed mediator or if appropriate before a registrar of the Court, in accordance with Divisions 23.1 and 23.2 of the General Federal Law Rules.
7.2 If the parties agree, the Court may refer the matter or appropriate questions for determination by arbitration under section 170 of the Act and Divisions 23.1 and 23.3 of the General Federal Law Rules.
8. Urgent applications
8.1 Urgent applications are dealt with in Part 5 of the General Federal Law Rules. An urgent application may be made without notice to the other party or parties.
8.2 Evidence on urgent applications is by affidavit or may be given orally with the leave of the Court. Rule 5.03 details the evidence that the Court requires for an urgent application, including the state of proceedings between the parties, the nature and circumstances of the application, and why the matter is urgent. If service on the respondent is not possible, the Court may make an order until a specified time or until further order: see rule 5.01 of the General Federal Law Rules.
8.3 Urgent applications for listing may be made by contacting the local registry or the associate for the case management judge.
9. Interlocutory applications
9.1 All admiralty and maritime matters are subject to liberty to apply on 2 days' notice, and the parties and their representatives must co-operate in the efficient, expeditious and cost-effective objectives of the Court in accordance with sections 190 to 192 of the Act.
9.2 Multiple or unnecessary interlocutory applications will be discouraged by appropriate costs and listing orders.
9.3 With consent of the parties, the Court may order that a particular issue be determined on the papers without oral hearing.
9.4 The court may make appropriate procedural orders in chambers.
10. Costs
10.1 The Court will ordinarily fix costs at the final hearing. The Court will take into account Calderbank correspondence or compromise offers.
10.2 The parties should be in a position to assist the Court to fix costs by having available in short form any relevant evidence in that regard at the final hearing.
11. Audio and video hearings and trial
11.1 The Court will generally permit audio and video evidence orders for overseas or interstate deponents at the cost of the parties by orders made at the directions for the fixing of the hearing date or in chambers.
11.2 Without leave of the Court, cross examination will be limited to half an hour for each witness and oral submissions will be limited to half an hour.
11.3 Without leave, a subpoenaed witness must be the subject of an outline of the proposed evidence, and the Court will limit oral evidence in chief to half an hour without further leave.
12. Reasons for judgment
12.1 In general, all admiralty and maritime matters will be determined by either ex tempore reasons at the close of hearing, or by written reasons which are to be published within 3 months.
13. Discontinuing a proceeding
13.1 In accordance with rule 13.01 of the General Federal Law Rules, a party may choose not to continue with an application by filing a Notice of Discontinuance at least 14 days before the final hearing. The Notice of Discontinuance may be filed at a later date if the parties agree or with permission from a registrar or the Court: see rules 3.05 and 13.01.
14. Further information
14.1 For information on how general federal law proceedings are conducted in the Court, please refer to Central Practice Direction – General Federal Law proceedings.
14.2 Parties should also consult the Court's website at www.fcfcoa.gov.au for further information about admiralty and maritime proceedings.
The Honourable Justice William Alstergren
Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Re-issued: 1 September 2021
