Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2001 (NO. 4) 2001 NO. 329

EXPLANATORY STATEMENT

Statutory Rules 2001 No. 329

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

Federal Court Amendment Rules 2001 (No. 4)

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. 4).

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

Pleading a new matter

[1]       Order 11, rule 7

Order 11 rule 7 provides that a party may plead a new matter which has arisen since the commencement of the proceeding.

The amendment replaces Order 11 rule 7 with a new rule 7 which provides that a party may plead a fact or matter that has occurred or arisen since the commencement of the proceeding.

Amending a document or pleading

[2]       Order 13, subrule 2 (3)

Order 13 rule 2 deals with the amendment of any document in a proceeding by, or with the leave of, the Court. Subrules 2 (4), (5), (6) and (7) make provision for particular types of amendment that might be made to a document.

Order 13 subrule 2 (3) provides that, where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.

The amendment to subrule 2 (3) replaces the reference to "subrules (4), (5), (6) or (7)" with a reference to "subrules (4), (5) or (6) or paragraph (7) (a)". It is consequential to the amendment to subrule 2 (7) (see item [3] below).

[3]       Order 13, subrule 2 (7)

Order 13 subrule 2 (7) provides that an amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment.

This amendment replaces subrule 2 (7) with a new subrule 2 (7), and inserts subrules 2 (8) and (9).

The new subrule 2 (7) provides, inter alia, that an amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:

(a)       arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment; or

(b)       subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.

Subrule 2 (8) provides that, subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.

Subrule 2 (9) provides that paragraph (7) (b) and subrule (8) do not permit an amendment would have an effect inconsistent with any statute which limits the time within which actions or proceedings of particular kinds may be brought or instituted.

The effect of these amendments will be to allow:

•       a pleading to be amended notwithstanding that the amendment pleads a fact or matter which has occurred or arisen since the commencement of the proceeding; and

•       any other document to be amended notwithstanding that the effect of the amendment is to add or substitute a new claim for relief or foundation in law for a claim for relief, even where the new claim for relief or foundation in law arises, in whole or in part, out of facts or matters which have occurred or arisen since the commencement of the proceeding.

except where such an amendment would have an effect inconsistent with any statute which limits the time within which actions or proceedings of particular kinds may be brought or instituted.

Amendment of pleading without leave

[4]       Order 13, after subrule 3 (2)

Order 13 subrules 3 (1) and 3 (2) allow amendments to be made prior to the close of pleadings without the leave of the Court.

This amendment inserts new subrules 3 (3) and 3 (4). Subrule 3 (3) provides, inter alia, that, subject to subrule 3 (4), an amendment under subrule 3 (1) or 3 (2) may be made even if:

(a)       the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief, whether by way of substitution for an existing claim for relief or foundation in law or not; or

(b)       the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.

Subrule 3 (4) provides that subrule 3 (3) does not permit an amendment that would have an effect inconsistent with any statute which limits the time within which actions or proceedings of particular kinds may be brought or instituted.

Date when amendment takes effect

[5]       Order 13, after rule 3

This amendment inserts a new rule 3A which provides that, unless the Court orders otherwise, an amendment of a document that is made under rule 2 or 3 takes effect on the date when the document was first filed unless the amendment was made under paragraph 2 (7) (b), subrule 2 (8) or subrule 3 (3), in which case the amendment takes effect on the date when the amendment was made.

Disallowance of amendment

[6]       Order 13, subrule 5 (4)

Order 13 rule 5 (1) provides that the Court may disallow an amendment to a pleading made under subrule 3 (1) or subrule 3 (2).

The amendment to subrule 5 (4) replaces "has" with "had" to make it clear that, when considering an application under subrule 5 (1), the Court shall disallow the amendment if it is satisfied that the Court would not have given leave to make the amendment under subrule 2 (1) if such an application for leave had been made at the time the amendment was made pursuant to subrule 3 (1) or subrule 3 (2).

Mediation and arbitration - Sunset provision

[9]       Order 72, Division 4, heading

This amendment removes the heading to Order 72 Division 4 as the contents of the Division were omitted by Statutory Rules 1994 No 463.


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