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FEDERAL COURT AMENDMENT RULES 2000 (NO. 1) 2000 NO. 53
EXPLANATORY STATEMENTStatutory Rule 2000 No. 53
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2000 (No. 1)
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 59(4) of the Federal Court of Australia Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.
RULE 1 - Name of rules
This rule provides that the rules are the Federal Court Amendment Rules 2000 (No. 1).
RULE 2 - Commencement
This rule provides that these Rules commence on gazettal.
RULE 3 - Amendment of Federal Court Rules
This rule provides that the Federal Court Rules are amended as set out in Schedule 1.
SCHEDULE 1 - Amendments
Affidavit and statement of claim in prescribed form
[1] Order 4, subrule 6 (1)
Order 4 subrule 6 (1) provides that an applicant must file and serve with the application either an affidavit or a statement of claim. This amendment makes it clear that the affidavit must be in accordance with Form 20 and that the statement of claim must be in accordance with Form 7.
Allegations of fraud etc to be particularised
[2] Order 4, after subrule 6 (1)
This amendment is intended to ensure that an applicant seeking to rely on an allegation of fraud, misrepresentation, wilful default or undue influence must give particulars of the allegation.
Order 4 subrule 6 (1) provides that an applicant must file and serve with the application either an affidavit or a statement of claim. The Rules do not require an applicant who seeks to rely on an allegation of fraud etc and who files an affidavit to provide particulars of that allegation.
The amendment overcomes this problem by inserting a new Order 4 subrule 6 (1 A) which provides that an applicant seeking to rely on an allegation of fraud, etc, must file and serve a statement of claim with their application. A statement of claim must be prepared in accordance with Order 12 rule 2, which provides the party pleading must give particulars of any allegation fraud, misrepresentation, wilful default or undue influence on which he or she relies.
Cross-claim
[3] Order 5, rule 2, heading
The heading to Order 5 rule 2 is amended by substituting a new heading that omits the words "Form 1", which are unnecessary.
Service of prior pleadings
[4] Order 5, subrule 6 (1)
Order 5 subrule 6 (1) provides that a respondent to a cross-claim who is made a party to the proceeding by the filing of the cross-claim may, by notice filed and served on the cross-claimant, require the cross-claimant to serve on him or her all or any of the pleadings in the proceeding filed before the filing of the cross-claim.
This amendment makes it clear that the notice must be in accordance with Form 11.
Personal service
[5] Order 7, paragraph 2 (1) (d)
This paragraph is amended by omitting "Industrial Relations Act 1988" and inserting "Workplace Relations Act 1996" to reflect legislative changes.
Service to a document exchange
[6] Order 7, subrule 7 (1)
Order 7 subrule 7 (1) provides that a person who is represented by a solicitor may file a notice authorising service at the solicitor's document exchange box or add a notice to that effect to his or her originating process (other than a cross-claim) or notice of appearance.
This amendment makes it clear that the notice must be in accordance with Form 12.
Form of defence
[7] Order 11, subrule 20 (1)
Order 11 subrule 20 (1) deals with the filing of a defence.
This amendment makes it clear that the defence must be in 'accordance with Form 16.
Reply
[8] Order 11, subrule 22, heading
Order 11 subrule 22 deals with the situation where an applicant or cross-claimant must file a reply. This amendment inserts a reference in the heading to the relevant forms.
Form of reply
[9] Order 11, subrule 22 (1)
Order 11 subrule 22 (1) deals with the situation where an applicant or cross-claimant must file a reply.
This amendment makes it clear that the reply must be in accordance with Form 17.
Form of reply and defence in one document
[10] Order 11, subrule 22 (2)
Order 11 subrule 22 (2) provides that where an applicant must file both a reply and a defence to a cross-claim, the applicant must put them in one document.
This amendment makes it clear that the document containing the reply and the defence must be in accordance with Form 18.
Mode of simple amendment
[11] Order 13, paragraph 8 (1) (a)
Order 13 deals with the amendment of documents. Order 13 paragraph 8 (1) (a) provides that where the amendments to a document are not so numerous or lengthy or otherwise of such nature as to render the document difficult or inconvenient to read, the amendments may be made by filing a notice specifying the amendments and the matters mentioned in subrule (2).
This amendment makes it clear that the notice must be in accordance with Form 19.
Form of affidavit
[12] Order 14, subrule 2 (1)
Order 14 subrule 2 (1) deals with the form of affidavits.
This amendment makes it clear that an affidavit must be in accordance with Form 20.
Notice of discovery
[13] Order 15, rule 1
Order 15 rule 1 provides that, after a directions hearing pursuant to Order 10 and within any period limited by the Court for this purpose, any party may, unless the Court otherwise orders, by notice of discovery filed and served on any other party, require any other party to give discovery of documents.
This amendment makes it clear that the notice of discovery must be in accordance with Form 2 1.
Form of statement in answer to interrogatories
[14] Order 16, subrule 6 (1)
Order 16 subrule 6 (1) sets out requirements for a statement in answer to interrogatories.
This amendment makes it clear that the statement must, unless the Court otherwise orders, be in accordance with Form 24.
Form of affidavit verifying statement in answer to interrogatories
[15] Order 16, subrule 7 (1)
Order 16 paragraph 2 (2) (b) provides that a statement of a party in answer to interrogatories must be verified by an affidavit. Order 16 rule 7 deals with how that affidavit may be made.
This amendment to Order 16 subrule 7 (1) makes it clear that the affidavit must be in accordance with Form 24.
Form of notice to admit facts or documents
[16] Order 18, subrule 2 (1)
Order 18 subrule 2 (1) provides that a party to a proceeding may, by notice served on another party, require him or her to admit, for the purpose of the proceeding only, the facts or documents specified in the notice.
This amendment makes it clear that the notice must be in accordance with Form 25.
Form of notice disputing fact or document
[17] Order 18, subrule 2 (2)
Under Order 18 subrule 2 (2), the party served with a notice to admit facts or documents may serve, on the party serving the notice, a notice disputing all or any of the facts or documents.
This amendment makes it clear that the notice disputing the fact or document must be in accordance with Form 26.
Form of notice of motion
[18] Order 19, subrule 2 (1)
Order 19 subrule 2 (1) provides that, subject to subrule 2 (2), a person who wishes to make an interlocutory or other application in a proceeding that has already commenced must file and serve a notice of motion on each interested party who has an address for service in the proceeding.
This amendment makes it clear that the notice of motion must be in accordance with Form 27.
Form of notice of withdrawal of appearance
[19] Order 22, rule 1
Order 22 rule 1 provides that a party who has entered an appearance may withdraw the appearance at any time with the leave of the Court.
This amendment makes it clear that the notice of withdrawal of appearance must be in accordance with Form 28.
Form of notice of discontinuance
[20] Order 22, subrule 2 (1)
Order 22 subrule 2 (1) provides that, subject to subrules 2 (2) and 2 (3), a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief made by him or her.
This amendment makes it clear that the notice of discontinuance must be in accordance with Form 29.
Form of notice of withdrawal of defence
[21] Order 22, subrule 4 (1)
Order 22 subrule 4 (1) provides that a party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.
This amendment makes it clear that the notice of withdrawal must be in accordance with Form 30.
Taking evidence in Australia and abroad
[22] Order 24, rule 1
Order 24 rule 1 provides that the Court may, for the purpose of proceedings in the Court, make orders:
(a) for the examination of any person on oath or affirmation before a Judge or before such other person as the Court may appoint as examiner at any place whether in or out of Australia; or
(b) for the sending or issue of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
This effect of this amendment is to change rule 1 into subrule 1 (1), and is a consequence of the amendment set out in paragraph [23] below.
Form of draft orders in relation to the taking of evidence in Australia or abroad
[23] Order 24, rule 1
This amendment inserts a new subrule 1 (2) which makes it clear that
(a) the drafts of the orders for examination must be in accordance with Form 37;
(b) the drafts of the orders for appointment of an examiner must be in accordance with Form 38; and
(c) the drafts of the orders for a letter of request must be in accordance with Form 39.
Form of security riled by a receiver
[24] Order 26, subrule 3 (2)
Order 26 subrule 3 (2) provides that where the Court directs the appointment of a receiver, then, unless the Court otherwise orders, a person shall not be appointed receiver pursuant to the direction until he or she has filed a security to the effect that he or she will account for what he or she receives as receiver and will deal with what he or she receives as the Court directs.
This amendment makes it clear that the security must be in accordance with Form 40.
Production of any document or thing on notice
[25] Order 33, subrule 12 (1)
Under Order 33 subrule 12 (1), a party to a proceeding may serve on another party a notice requiring the party served to produce at the trial or hearing, or before any Judge, officer, examiner or other person authorised to take evidence, any document or thing for the purpose of evidence.
This amendment makes it clear that the notice must be in accordance with Form 45.
Form of draft order
[26] Order 36, rule 1
Order 36 rule 1 provides that a person desiring to enter an order must lodge a draft of the order with the Registrar.
This amendment makes it clear that the draft order must be in accordance with Form 47.
Form of order for committal
[27] Order 37, rule 9
Order 37 rule 9 provides that a person shall not be committed except by or under an order of the Court stating why he or she is being committed.
This amendment makes it clear that the order of the Court must be in accordance with Form 49.
Form of warrant for arrest in motion or proceedings for punishment
[28] Order 40, rule 9
Under Order 40 rule 9 the Court may issue a warrant for the arrest of a person who is the subject of a notice of motion, or proceedings, for punishment of a contempt.
This amendment makes it clear that the warrant must be in accordance with Form 48.
Form of warrant for arrest under Order 40 generally
[29] Order 40, rule 11
Order 40 rule 11 provides that a warrant for the arrest or detention under Order 40 of an accused person shall be addressed to the Sheriff and may be issued under the hand of the Judge presiding in the Court directing the arrest or detention.
This amendment makes it clear that the warrant must be in accordance with Form 48.
Heading of document in a proceeding with no respondent
[30] Order 4 1, subrule 1 (3)
This amendment makes it clear that a document in a proceeding in which there is no respondent must be headed in accordance with Form 3.
Abbreviated heading of documents in proceedings
[31] Order 4 1, subrule 1 (4)
Order 41 subrule 1 (4) provides that, except in the case of
(a) an originating process;
(b) a document to be served on a person not a party to a proceeding; or
(c) a final order;
a document may bear an abbreviation of the title of the proceeding sufficient to identify the proceeding.
This amendment makes it clear such a document may be headed in accordance with Form 2.
Signing of documents
[32] Order 4 1, rule 6
Order 41 rule 6 requires any document filed other than an affidavit, annexure or exhibit attached to another document to be signed by the party filing it or by that party's solicitor unless the nature of the document is such that the signature is inappropriate.
This amendment makes it clear that such a document must be concluded in accordance with Form 4, which prescribes a form for the signature required by the rule.
Notice of claim to property
[33] Order 44, subrule 4 (1)
Order 44 subrule 4 (1) provides that, where a Sheriff takes or intends to take any personal property in execution under process, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice of his or her claim to the Sheriff .
This amendment makes it clear that the notice of claim must be in accordance with Form 50.
Removal of documents
[34] Order 46, subrule 5 (2A)
Order 46 subrule 5 (2) provides that, subject to subrule 5 (2A) documents must not be taken out of a Registry except for the purpose of transmission between Registries or with the permission of the Court or a Judge. Under subrule 5 (2A), a Registrar may permit a party to proceedings to take documents out of a Registry for the purpose of preparing appeal papers, unless the Court or a Judge orders otherwise.
This amendment removes the limitation that a Registrar may only permit a party to remove documents for the purpose of preparing appeal papers. The amendment is intended to facilitate appropriate access to documents while relieving Judges from performing a task which, in most cases, is purely administrative.
Inspection of documents
[35] Order 46, paragraph 6 (2) (g)
Order 46 paragraph 6 (2) (g) provides, inter alia, that a person may search for, and inspect, a transcript in a proceeding unless the Court or a Judge orders the transcript to be confidential. This amendment omits paragraph 6 (2) (g), thereby preventing a person from inspecting a transcript as of right.
Inspection of documents by a person who is not a party to a proceeding
[36] Order 46, paragraph 6 (3) (i)
Order 46 paragraph 6 (3) (i) provides, inter alia, that a person who is not a party to a proceeding must not inspect a transcript of the proceeding without the leave of the Court or a Judge. This amendment omits the reference to 'transcript of a proceeding' in paragraph 6 (3) (i).
Absence of a party to an appeal
[37] Order 52, after rule 38
This amendment inserts a new rule 38A which allows the Court to make certain orders where a party fails to appear at the hearing of an appeal. In particular, if a party is absent when an appeal is called for hearing the Court may, under subrule 38A (1),
(a) order that the hearing not proceed unless the appeal is again set down for hearing or
such other steps are taken as the Court directs; or
(b) adjourn the hearing; or
(c) if the absent party is an appellant or cross-appellant, dismiss the appeal or cross
appeal; or
(d) proceed with the hearing, either generally or in relation to any claim for relief in the
appeal.
Pursuant to subrule 38A (2), if the hearing proceeds in the absence of the party and an order is made, the Court may, on motion by that party:
(a) set aside or vary the order; and (b) give directions for the further conduct of the appeal.
Form of notice of objection to competency of an application under the Administrative Decisions (judicial Review) Act 1977
[38] Order 54, rule 4
Order 54 rule 4 provides that, if a respondent to an application objects to the competency of the application he or she shall, within 14 days after service upon him or her of the application, file and serve upon the other parties to the proceeding a notice of objection to competency stating briefly the grounds of his or her objection.
This amendment makes it clear that the notice of objection to competency must be in accordance with Form 57.
Provision of documents by Commissioner
[39] Order 58, rule 6
This amendment substitutes a new rule 6.
Opt out notices
[40] Order 73, rule 6
Order 73 rule 6 provides that an opt out notice filed under section 33J of the Federal Court of Australia Act may be in accordance with Form 131.
This effect of this amendment is to change rule 6 into subrule 6 (1), and is a consequence of the amendment set out in paragraph [41] below.
[41] Order 73, rule 6
This amendment inserts a new subrule 6 (2) which provides that the heading of the opt out notice must state the names of the parties to the proceedings, the serial number of the proceedings, and the District Registry where the notice is filed. The purpose of the amendment is to ensure that the opt out notice contains all the relevant information so that a class member need complete only those parts of the notice which are within his or her knowledge.
Application for review of decision by Native Title Registrar not to accept claim for registration
[42] Order 78, after subrule 12 (2)
This amendment inserts a new subrule 12 (3) which provides that, unless the Court otherwise directs:
(a) each State and Territory having jurisdiction over the area to which the main
application relates must be joined as a respondent to the application; and
(b) the Commonwealth maybe joined as a respondent to an application.
The amendment is intended to ensure that the relevant government is joined as a party to an application under section 190D of the Native Title Act 1993 by the claimant for an order of review of a decision by the Native Title Registrar not to accept the claim for registration.
Subpoena for production and to give evidence
[43] Schedule 1, Form 43, subparagraph (c) (ii)
This amendment substitutes a new subparagraph (c) (ii).
Registered determinations by the Human Rights and Equal Opportunity Commission
[44] Schedule 1, Forms 142 and 143
This amendment omits Forms 142 and 143.
These forms were originally prescribed by Order 76 rule 3 and rule 7 respectively. In 1995 the Rules were amended to omit Order 76 and to substitute a new Order 76. The new version of Order 76 does not include any reference to Forms 142 and 143, which can therefore be omitted.