In litigious matters, it is often the case that a third party has documents which may go towards proving (or disproving) a fact in issue in the proceedings. When this arises, the question becomes whether you can subpoena the documents, what form should the subpoena take and at what stage in the proceedings this is best done. [Read more…]
federal court
Consolidating related proceedings in the Federal Court
16 September 2020 by
In civil litigation it is surprisingly common for the parties to have more than one matter before the Court with overlapping fact matrices. Rule 30.11 of the Federal Court Rules 2011 (Cth) (Rules) provides a mechanism by which the Federal Court, at the request of one or more of the parties to separate proceedings, can consolidate two or more separate but related proceedings. [Read more…]
s115A Copyright Act – infringement outside Australia
9 July 2020 by
Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 pursuant to the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act). The effect of the amendments as described in the Explanatory Memorandum to the Bill were to amend the threshold test from ‘primary purpose’ to ‘primary effect’, add a rebuttable presumption that an alleged ‘online location’ is located outside Australia, to extend the scope to online search engines (Deindexing Orders) and allow the Court to make “more responsive” orders in terms of injunctive relief. [Read more…]
Claiming delay due to COVID-19? Think again.
29 April 2020 by
In the current pandemic parties to legal proceedings may be tempted to apply for an adjournment or further time, citing COVID-19 as the reason for the delay. Certainly the Federal Court of Australia has been quick to respond to the pandemic by changing its procedures and has even conducted entire trials using Microsoft Teams. This article discusses the circumstances where COVID-19 has been used as justification for a delay in proceeding and the Court’s view on granting stays for this reason. [Read more…]
Particulars – their importance in civil litigation
15 April 2020 by
In civil litigation, the term ‘particulars’ is frequently used. The term particulars stems from the ordinary meaning of the noun, ‘particular,’ that being, ‘a detail’. Despite this rather simple meaning, what exactly a particular is seems to be a subject of some confusion even amongst the legal profession. This confusion is likely caused by the blurred line between pleaded facts and particulars. [Read more…]
Discovery in the Federal Court of Australia
1 November 2017 by
On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery. The Federal Court does not require parties to provide disclosure as a matter of course. Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission. This process is known as discovery. The Rules are to be read in conjunction with the associated Federal Court practice notes, relevantly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1). In this article, we consider the process of seeking discovery of documents in a matter before the Federal Court. [Read more…]
