CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242

CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242

Rule 4.03 of the Federal Court Rules 2011 (Cth), properly construed, does not impose an obligation on a barrister engaged directly by a party (on a direct access brief) to file and serve a notice of acting. The rule contemplates an appointment of a lawyer with general authority to act, not a limited appointment as in a direct access brief, and does not capture direct access barristers, given the text, context, and purpose of the Rules, and absence of provision for such arrangements in the forms and procedure. Any inconsistency between the Barristers Rules and the Federal Court Rules would, if it existed, be resolved constitutionally, but here no such conflict arises because r 4.03 does...

Jurisdiction
Australia
Judgment Date
21 August 2018
Procedural Posture
Appeal / Interlocutory Application Within Ongoing Appeal
Outcome
Interlocutory application granted
Legal Topics
['direct Access Brief' 'notice of Acting' "barristers' Obligations" 'federal Court Rules' 'legal Profession Uniform Conduct (barristers) Rules' 'inconsistency Between Federal and State Law' 'address for Service' 'migration Litigation']
['practice and Procedure' 'administrative Law' 'constitutional Law'] ['direct Access Brief' 'notice of Acting' "barristers' Obligations" 'federal Court Rules' 'legal Profession Uniform Conduct (barristers) Rules' 'inconsistency Between Federal and State Law' 'address for Service' 'migration Litigation']

Case Brief

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Procedural Posture

Appeal / Interlocutory Application Within Ongoing Appeal

Legal Issues

  1. 1 ['Whether a barrister engaged directly by a party (i.e. on a direct access brief) is obliged to file a notice of acting under r 4.03 of the Federal Court Rules 2011 (Cth)' 'Whether there is inconsistency between r 4.03 of the Federal Court Rules 2011 (Cth) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)' 'What disclosure is required of a direct access barrister regarding preparation of documents or representation in court']

Ratio Decidendi

Rule 4.03 of the Federal Court Rules 2011 (Cth), properly construed, does not impose an obligation on a barrister engaged directly by a party (on a direct access brief) to file and serve a notice of acting. The rule contemplates an appointment of a lawyer with general authority to act, not a limited appointment as in a direct access brief, and does not capture direct access barristers, given the text, context, and purpose of the Rules, and absence of provision for such arrangements in the forms and procedure. Any inconsistency between the Barristers Rules and the Federal Court Rules would, if it existed, be resolved constitutionally, but here no such conflict arises because r 4.03 does...

Court Disposition

Interlocutory application granted

Orders

  • ['The orders of 18 May 2018 and paragraph 1 of the orders of 31 May 2018 are revoked.']