Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2000 (NO. 7) 2000 NO. 372

EXPLANATORY STATEMENT

Statutory Rule 2000 No. 372

Issued by the authority of the Judges of the Federal Court of Australia

Federal Court Amendment Rules 2000 (No. 7)

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. 7).

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

Time

[1]       Order 3, subrule 3 (2)

Order 3 subrule 3 (1) provides that the Court or a Judge may by order extend or abridge any time fixed by the Rules or by any judgment or order. Subrule 3 (2) provided that an extension of time under subrule 3 (1) could be made either before or after the time expires and whether or not an application for the extension is made before the time expires. Subrule 3 (2) did not apply to an extension of time made under another rule.

This amendment replaces subrule 3 (2) with a new subrule which provides that time may be extended under rule 3 or any other rule allowing for an extension of time (unless the rule provides otherwise), before or after the time has expired, and whether or not the application for an extension is made before the time expires.

Discontinuance

[2]       Order 22, rule 3

[3]       After Order 22, rule 3

The effect of these amendments is to provide that a party who discontinues a proceeding by consent under Order 22 paragraph 2 (1) (c) will be liable to pay the costs of the other party or parties occasioned by the whole or relevant part of the proceeding, unless the terms of the consent provide otherwise.

Subpoenas

[4]       Order 27, rule 4, heading

[5]       Order 27, subrule 4 (1)

Order 27 subrule 4 (1) allowed a person named in a subpoena for production who was not a party to the proceeding to produce the document or thing to the relevant Registrar or Registry not later than 2 days before the day on which the subpoena required attendance, instead of attending as required by the subpoena.

Subrule 4 (1) is amended so that it also applies to a party to the proceeding. The heading to rule 4 is amended in light of this change.

[6]       Order 27, subrule 6 (1)

Order 27 rule 6 provides for the issue of subpoenas. Subrule 6 (1) is amended so that a subpoena can not be issued without the leave of the Court or a Judge. The leave may be given generally or in relation to a particular subpoena or particular subpoenas.

The amendment also inserts a new subrule 6 (1A) which provides that an application for leave under subrule (1) may be made without notice to, and determined by a Judge sitting in Chambers in the absence of, the person named in the subpoena and the other party or parties to the proceeding.

Consent orders

[7]       Order 35, rule 10, heading

The heading to Order 35 rule 10 is amended to reflect that the rule deals with consent orders made by filing in a Registry. It is consequential to the amendment inserting a new Order 35 rule 10A.

[8]       Order 35, subrule 10 (1)

Order 35 subrule 10 (1) is amended by replacing the reference to solicitors with a reference to the parties' representatives on the record.

[9]       Order 35, paragraph 10 (2) (a)

Order 35 paragraph 10 (2) (a) is amended to allow a Judge to make an order in accordance with rule 10A or direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent. It is consequential to the amendment inserting a new Order 35 rule 10A.

[10]       After Order 35, rule 10

This amendment inserts a new rule 10A. Subrule 10A (1) provides that a Judge may make an order in the terms of a written consent by initialling or otherwise annotating the written consent and placing it on the Court file. Subrule 10A (2) provides that the order must state that it is made by consent, and subrule 10A (3) provides that the order is of the same force and validity as if it had been made after a hearing by the Judge.

Appeals from decisions of the Administrative Appeals Tribunal

[11]       Order 53, subrule 12 (2)

Order 53 subrule 12 (1) provides that a notice of appeal against a decision of the Administrative Appeals Tribunal may, before the date of the directions hearing, be amended without leave by filing a supplementary notice. There was no provision for the notice to be amended after the directions hearing.

This amendment inserts a new subrule 12 (3) which provides that the Court may allow a notice of appeal to be amended at such time and on such conditions as the Court thinks fit.

National Crimes Authority Act 1984

[12]       Order 57, subrule 1 (1)

[13]       Order 57, subrule 1 (2)

These amendments made it clear that the subsections referred to in Order 57 subrules 1 (1) and (2) are subsections of the National Crimes Authority Act 1984.

[14]       Order 57, subrule 1 (3)

The effect of this amendment is to provide that an applicant seeking an order for review under subsection 32 (2) of the National Crimes Authority Act 1984 must file and serve with the application a copy of the notice mentioned in paragraph 32A (2) (c) of that Act.

Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990

[15]       Order 69, rule 10

This amendment substitutes a new rule 10 that deals with the procedure for setting aside a subpoena. Under the new rule, an application to set aside a subpoena wholly or in part is to be made by filing and serving a notice or motion and affidavit in support. The new procedure is the same as that for setting aside a subpoena under Order 27.

Bankruptcy Act 1966

[16]       Order 77, rule 28, heading

[17]       Order 77, subrule 28 (1)

These amendments provide that an application for an examination summons addressed to a relevant person under section 81 of the Bankruptcy Act 1966 must be in accordance with Form 5 if made to the Court, and in accordance with Form 154 if made to a Registrar.

[18]       Order 77, subrule 44 (4)

Order 77 subrule 44 (1) provides that, in an application for the annulment of a bankruptcy or the annulment of the administration of the estate of a deceased person, the trustee must prepare a report.

Subrule 44 (4) is amended to provide that the trustee's report must be in the form of an affidavit and must be filed and served at least 5 days before the hearing of the application.

Human Rights Proceedings

[19]       Order 81, subrule 7 (2)

This amendment inserts a new subrule 7 (3) which provides, inter alia, that, unless the Court or a Judge otherwise orders, a respondent to an application alleging unlawful discrimination need not file a notice of appearance in accordance with Form 15 under Order 9 rule 3 if the respondent files and serves a defence in accordance with Form 168 before the date fixed for the directions hearing of the application. The amendment has been made in light of Form 168 requiring the same information as that required in a Form 15.

Amendments to forms in Schedule 1

[20]       Schedule 1, Form 41, subparagraph (c) (ii)

This amendment is consequential to the amendment to Order 27 subrule 4 (1). The effect of the amendment is to allow the person to whom the subpoena for production is addressed to produce the document or thing to the relevant Registrar or Registry not later than 2 days before the day on which the subpoena requires attendance, irrespective of whether the person is or is not a party to the proceeding.

[21]       Schedule 1, Form 41

The effect of this amendment is to insert a new note that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the document or thing the subject of the subpoena.

[22]       Schedule 1, Form 42

The effect of this amendment is to insert a new note that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the person's testimony.

[23]       Schedule 1, Form 43

The effect of this amendment is to insert a new note that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the person's testimony or the document or thing the subject of the subpoena.

[24]       Schedule 1, Form 66A, after Note 3

This amendment inserts a new Note 4 that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the document or thing the subject of the subpoena.

[25]       Schedule 1, Form 67

This amendment replaces Form 67 with a new Form 67 that is consistent with the amendments to Order 69 rule 10, and sets out more clearly the procedure and grounds for applying to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the testimony of the person to whom the subpoena is addressed or the document or thing the subject of the subpoena.

[26]       Schedule 1, Form 68A, after Note 3

This amendment inserts a new Note 4 that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the person's testimony.

[27]       Schedule 1, Form 69A, after Note 3

This amendment inserts a new Note 4 that advises the person to whom the subpoena is addressed that he or she may apply to the Court to set aside the subpoena (or part of it), or for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the person's testimony or the document or thing the subject of the subpoena.

[28]       Schedule 1, Form 151, paragraph 1

Form 151 is the prescribed form of a Summons to Attend an Examination under section 50 or section 80 of the Bankruptcy Act 1966.

This amendment inserts a new paragraph 1 that specifies the functionary before whom the person summonsed must appear.

[29]       Schedule 1, Form 151, notes

This amendment replaces the existing notes with new notes setting out the rights and obligations of the person to whom the summons is addressed. The amendment also inserts instructions to the person completing the form as to which note or notes are to be used depending on whether the summons is addressed to the bankrupt or to a person who is not the bankrupt.

[30]       Schedule 1, Form 167, item 11

Form 167 is the prescribed form for an Application under the Human Rights and Equal Opportunity Commission Act 1986 Alleging Unlawful Discrimination.

This amendment replaces item 11 in Form 167 with a new item 11 and inserts new items 11A and 11B. The new item 11 requires an applicant to provide a description of the discrimination being complained of. The effect of items 11A and 11B is to require the applicant to specify the relevant. section and the Act under which the alleged discrimination is unlawful.

[31]       Schedule 1, Form 167

This amendment advises the respondent to an application alleging unlawful discrimination that a notice of appearance in accordance with Form 15 or a defence in accordance with Form 168 must be filed before any attendance at Court. The amendment is consequential to the amendment to Order 81 rule 7.


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