Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2001 (NO. 2) 2001 NO. 201

Statutory Rule 2001 No. 201

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

Federal Court Amendment Rules 2001 (No. 2)

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 2001 (No. 2).

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

Filing and lodging documents

[1]       Order 1, subrule 5A (6)

This amendment replaces subrule 5A (6) with a new subrule 5A (6) and inserts a new subrule 5A (6A).

The new paragraph 5A (6) (a) provides that a document is filed in an existing proceeding if it is accepted and stamped in the Registry which is the proper place for the proceeding. Order 1 rule 4 defines the 'proper place' in relation to a proceeding as being the place at which the proceeding was commenced or, where there has been a transfer, the place to which the proceeding has been transferred. Paragraph 5A (6) (b) provides that a document is filed in any other proceeding if it is accepted and stamped in a Registry.

The new subrule 5A (6A) provides that a document in an existing proceeding which is presented or sent by post or document exchange to a Registry that is not the proper place for the proceeding, but which is subsequently filed in the Registry that is the proper place, will be taken to have been filed on the day when it was received by the Registry that is not the proper place.

Registry hours

[2]       Order 3, subrule 6 (2)

Order 3 rule 6 is amended by removing the reference to 'and the day immediately after Easter Monday in each year' as a day on which the Registry will be closed to the public. The amendment reflects the fact that that day is no longer a Commonwealth public service holiday and staff are therefore 'on duty' that day.

Service of originating process

[3]       Order 7, subrule 1 (3)

Order 7 subrule 1(3) is amended so that personal service of an originating process is deemed to have occurred when a respondent has entered an appearance, files a defence or appears before the Court in response to the process, unless personal service on an earlier day is established.

Notice to admit facts

[4]       Order 18, subrule 2 (4)

Order 18 subrule 2(4) provides that, where a party serves a notice disputing a fact or a document, and afterwards that fact or the authenticity of the document is proved in the proceeding, the party shall, unless the Court otherwise orders, pay the cost of proof. Order 62 rules 24 and 25 are in similar terms.

The amendment omits Order 18 subrule 2(4) as it duplicates Order 62 rules 24 and 25.

Issue of subpoenas

[5]       Order 27, subrule 6 (1)

Order 27 subrule 6 (1) provides, inter alia, that the Registrar must, on the request of a party, issue a subpoena to give evidence or a subpoena for production or a subpoena for production and to give evidence. The subrule also provides that the subpoena will not be issued unless the party requesting it has the leave of the Court or a Judge.

Order 27 subrule 6 (1) is amended by making it clear that subpoenas may only be issued by a Registrar at the proper place. Order 1 rule 4 defines the 'proper place' in relation to a proceeding as being the place at which the proceeding was commenced or, where there has been a transfer, the place to which the proceeding has been transferred. The amendment will help ensure that the Registrar is able to ascertain whether the Court or a Judge has given leave for a particular subpoena to be issued.

Security for costs

[6]       Order 28, rule 6

Order 28 rule 6 is amended by omitting the words 'of the Commonwealth or of a State or Territory'. These words were superfluous and incorrectly suggested that the Court is directly bound by State legislation.

Consolidation of proceedings

[7]       Order 29, rule 5

Order 29 rule 5 is amended by replacing the words 'same Division' with the word 'Court'. The amendment is necessary because, pursuant to amendments to the Federal Court of Australia Act 1976 (Cth) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), the Court no longer has Divisions.

Consent orders by filing in a registry

[8]       Order 35, subparagraph 10 (2) (a) (ii)

Order 35 subparagraph 10 (2) (a) (ii) provides, inter alia, that a Judge may direct the Registrar to draw up, sign and affix the stamp of the Court to an order in accordance with the terms of a written consent filed in the Registry.

The amendment to subparagraph 10 (2) (a) (ii) allows a Judge to also give such a direction to an officer acting with the authority of the Registrar.

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

Order 35 paragraph 10 (2) (b) provides, inter alia, that the Registrar may draw up, sign and affix the stamp of the Court to an order in accordance with the terms of a written consent filed in the Registry, provided the written consent is in respect of an order which the Registrar has power to make.

The amendment replaces paragraph 10 (2) (b) with a new paragraph 10 (2) (b) which provides, inter alia, that the Registrar or an officer acting with the authority of the Registrar may draw up, sign and affix the stamp of the Court to such an order.

Judgments and orders entry

[10]       Order 36, after rule 1

The amendment inserts after Order 36 rule 1 a new rule 1A. Rule 1A provides that, for rules 2, 3, 4, 5, 6, 7, 9 and 10, 'Registrar' includes an officer acting with the authority of the Registrar.

The amendment means that an officer acting with the authority of the Registrar may settle, draw and sign draft orders, and may enter and affix the stamp of the Court to an order that has been settled.

Manner of entry

[11]       Order 36, subrule 9 (3)

The amendment replace Order 36 subrule 9 (3) with a new subrule 9 (3) which provides that, unless the Court otherwise orders, the date as of which a judgment is entered is the date when the judgment is pronounced or made.

The amendment clarifies when a judgement is entered for the purposes of section 52 of the Federal Court of Australia Act 1976, which provides that a judgment debt under a judgment of the Court carries interest from the date as of which the judgment is entered. 'Judgment' is defined in section 4 of the Act as meaning 'a judgment, decree or order, whether final or interlocutory, or a sentence'. The amendment makes it clear that, unless the Court otherwise orders, a judgment is entered on the date on which it is pronounced or made, and not the date on which it is signed and stamped by the Registrar.

Inspection of documents

[12]       Order 46, subrule 6 (1)

Order 46 subrule 6(1) is amended by replacing the word 'orders' with 'has ordered'. The amendment removes any suggestion that the Court or a Judge must be approached each time a person seeks access to a document to ascertain whether an order is to be made that the document is confidential.

Discontinuance of appeal

[13]       Order 52, subrule 19 (1)

Order 52 subrule 19 (1) provides that an appeal could be discontinued at any time. The amendment replaces subrule 19 (1) with a new subrule that provides that an appeal may be discontinued at any time before the hearing of the appeal without the leave of the Court, but that the leave of the Court is required to discontinue an appeal at the hearing, or after the hearing and before the judgment is made.

A new subrule 19 (1A) provides that, if a notice of discontinuance is filed and served in accordance with subrule (1), the appeal is abandoned.

[14]       Order 52, subrule 19 (3)

Order 52 subrule 19 (3) provides that a party filing a discontinuance under subrule 19 (1) shall be liable to pay the costs of the other party or parties caused by 'his appeal'. The subrule is amended by replacing 'his' with 'the'.

Collection of papers

[15]       Order 52, subrule 25 (1)

Order 52 subrule 25 (1) provides that an appellant has to obtain and file in the Registry a copy of the transcript of the proceeding below obtained from 'a Court Reporting Branch'. The subrule is amended by removing the reference to 'a Court Reporting Branch' as these Branches no longer exist.

Registrar to tax costs

[16]       Order 62, subrule 8 (1)

Order 62 subrule 8 (1) provides that, unless the Court or a Judge otherwise orders, certain bills of costs and fees shall be taxed allowed and certified by a 'Registrar who in these Rules is referred to as the taxing officer'.

The amendment omits the words 'Registrar who in these Rules is referred to as the' on the basis that they are unnecessary given Order 62 subrule 39 (1). Subrule 39 (1) provides that the Registrar, Deputy Registrar, District Registrars and Deputy District Registrars are appointed taxing officers.

[17]       Order 62, subrule 8 (2)

The amendment replaces Order 62 subrule 8 (2), which provides that the taxing officer shall appoint a time for taxation on the application of the party entitled to costs in the matter, with a new subrule 8 (2).

The new subrule provides that, unless the taxing officer appoints a time for taxation, a bill (other than a short form bill under Order 62 rule 40A or Order 77 rule 67) will be assessed in accordance with rule 46. Rule 46 provides for a taxing officer to make an estimate or to provisionally tax a bill.

Registrars appointed taxing officers

[18]       Order 62, after subrule 39 (1)

This amendment inserts a new subrule 39 (1A) which provides that, for the purposes of taxing a short form bill filed under Order 62 rule 40A (which deals with winding up applications under the Corporations Act 2001) or Division 14 of Order 77 (which deals with matters under the Bankruptcy Act), the taxing officer may be an officer acting with the authority of the Registrar or a District Registrar.

The amendment will allow the Registrar or a District Registrar to authorise an appropriately skilled officer, with proper training and supervision, to tax a short form bill filed under Division 14 of Order 77.

Short form bill for winding up application

[19]       Order 62, after rule 40

This amendment inserts a new rule 40A, which provides for short form bills in winding up applications under the Corporations Act 2001.

Subrule 40A (1) provides that an applicant who successfully applies for an order under the Corporations Act 2001 for the winding up of a company may claim as costs of the application the amount prescribed in item 43A of Schedule 2 of the Rules plus disbursements properly incurred.

Subrule 40A (2) provides that an applicant who claims costs under this rule must serve on the liquidator appointed to the company a bill of costs and disbursements, and copies of receipts, vouchers or journals that are evidence of the disbursements claimed. The bill need not include an itemised account of the work or services performed.

Under subrule 40A (3), the liquidator has 14 days from being served with a bill of costs and disbursements to advise the applicant in writing which, if any, of the costs and disbursements claimed are disputed.

Subrule 40A (4) provides that the applicant, within 14 days of receiving an advice under subrule (3), must file a copy of the advice, the bill of costs and disbursements and other documents mentioned in subrule (2), and an affidavit of service of the bill of costs and disbursements on the liquidator.

Pursuant to subrule 40A (5), the applicant, the liquidator and their respective solicitors must not attend the taxation of the bill of costs and disbursements, unless directed by the taxing officer to attend.

Subrule 40A (6) provides that the rule does not limit the applicant's right to claim the taxed costs of the winding up application under Order 62. However, pursuant to paragraph 40A (7) (a), an applicant who claims costs under this rule can not make any further claim to recover the taxed costs of the application under this Order. Under paragraph 40A (7) (b), an applicant who claims the taxed costs of a winding up application under Order 62 can not make a further claim to recover any of the taxed costs under this rule.

Appointment to tax bill

[20]       Order 62, subrules 41 (1) and (2)

The amendment replaces subrule 41 (1) and (2) with new subrules.

The new subrule 41 (1) provides that, subject to any direction by a Registrar under rule 46, the taxing officer must appoint a time to tax the bill and endorse the bill with the date and time of the appointment. The amendment is consistent with the other changes to Order 62 which have the effect that a bill (other than a short form bill under Order 62 rule 40A or Order 77 rule 67) will ordinarily be dealt with under Order 62 rule 46.

The new subrule 41 (2) provides that the party who filed the bill must serve a copy of the bill on each other party to the taxation at least 7 days before the date appointed for taxation. The amendment means the time for service is the same as that required by subrule 10 (1).

Assessment procedures

[21]       Order 62, subrule 46 (2)

The amendment replaces subrule 46 (2) with new subrules 46 (2) and (2A).

The new subrule 46 (2) provides that, if the Registrar decides to apply rule 46 then, unless the Registrar directs that action be taken under the provisions of subrule 46 (4) or subrule 46 (6), the bill will be assessed in accordance with subrule 46 (3). Subrule 46 (3) sets out a procedure whereby a taxing officer may examine a bill and make an estimate of the approximate total for which, if the bill were taxed, the certificate of taxation would be likely to issue. The amendment makes it clear that a bill will ordinarily be assessed in accordance with subrule 46 (3).

The new subrule 46 (2A) provides that, if a bill is to be assessed in accordance with subrule (3), the Registrar must endorse on the bill and each copy of it with the date when the taxing officer is to make an estimate and return the bill and copies to the party filing the bill, who must then serve a copy of the bill and the documents referred to in subrule 40 (2) on each other party to the assessment at least 7 days before the date endorsed on the bill.

[22]       Order 62, paragraph 46 (3) (a)

Paragraph 46 (3) (a) provides that a taxing officer may, without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. The paragraph is amended to provide that the taxing officer may make the estimate in the absence of the parties.

[23]       Order 62, subrule 46 (5)

The amendment replaces subrule 46 (5) with a new subrule 46 (5), which allows each District Registrars a greater discretion as to the figures to be produced for the guidance of parties and solicitors in relation to costs estimated or taxed in the District Registry.

Exercise of powers by Registrars

[24]       Order 77, rule 7

Order 77 rule 7 provides that the Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Bankruptcy Act 1966 (Cth) specified in column 2 of an item in Schedule 3.

The rule 7 is amended to make it clear that the rule is intended to operate, not as an independent power of direction, but rather as the prescribing of powers of the Court for the purpose of paragraph 35A (1) (h) of the Federal Court of Australia Act.

Exercise of powers by Registrars

[25]       Order 78, rule 3A

Order 78 rule 3A provides that the Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Native Title Act 1993 (Cth) specified in Schedule 4.

The rule 3A is amended to make it clear that the rule is intended to operate, not as an independent power of direction, but rather as the prescribing of powers of the Court for the purpose of paragraph 35A (1) (h) of the Federal Court of Australia Act.

Application for leave to cease to provide legal assistance

[26]       Order 80, paragraph 8 (4) (g)

Order 80 subrule 8 (4) sets out the factors to be considered by a Registrar when deciding whether to grant a legal practitioner leave to cease to provide legal assistance to a litigant pursuant to Order 80 rule 6.

Order 80 subrule 8(4) is amended by inserting a new paragraph (g) that provides that the Registrar must consider whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme. The amendment also renumbers the old paragraph (g) as paragraph (h).

Amendments to form in First Schedule

[27]       Schedule 1, Forms, except Forms 47 and 150

This amendment inserts 'Version 1' at the end of each Form, other than Forms 47 and 150. The amendment will help identify the currency of each Form.

[28]       Schedule 1, Form 47

The amendment replaces Form 47 with a new Form 47. The new form reflects the amendment to Order 36 subrule 9 (3) and makes a clear distinction between the date of the order and the date on which it is stamped by the Registrar.

The new Form 47 includes the words 'Version 1' at the end of the Form. This is intended to help identify the currency of the Form.

[29]       Schedule 1, Form 150

Form 150 is the prescribed form for a Creditor's Petition. It is amended to include a note setting out the creditor's obligation under subregulation 4.05(1) of the Bankruptcy Regulations. Subregulation 4.05(1) provides that a creditor who presents a petition must, within 3 working days, give a copy of the petition to the Official Receiver.

The purpose of the note is to remind petitioners of their obligation under subregulation 4.05(1).

The amendment also inserts the words 'Version 1' at the end of the Form. This is intended to help identify the currency of the Form.