Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2002 (NO. 1) 2002 NO. 130

Statutory Rules 2002 No. 130

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

Federal Court Amendment Rules 2002 (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 2002 (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

Pleading prepared by legal representative

[1]       Order 11, after rule 1A

This amendment inserts a new rule 1B which provides, inter alia, that, if a pleading is prepared by a party's legal representative, the pleading must be filed with a certificate in accordance with form 15B completed by the legal representative.

[2]       Order 11, paragraphs 2 (a) and 10 (a)

This amendment replaces "he" in paragraphs 2 (a) and 10 (a) with "the party".

Evidence

[3]       Order 33, rules 3 and 7

This amendment omits:

•       rule 3, on the basis that it is no longer necessary given section 190 of the Evidence Act 1995 (Cth); and

•       rule 7, on the basis that it is no longer necessary given sections 48, 51 156 and 157 of the Evidence Act 1995 (Cth).

[4]       Order 33, after subrule 11 (4)

Order 33 rule 11 deals with lawful objections to the production of any document or thing, or the giving of testimony, on grounds of privilege.

This amendment inserts a new subrule 11 (5) which provides that a reference in rule 11 to a ground of privilege is a reference to a ground on which an objection under Part 3.10 of the Evidence Act 1995 may be taken.

Court expert - interpretation

[5]       Order 34, after rule 1

[6]       Order 34, subrule 2 (2)

Order 34 sets out the rules concerning the appointment, report, cross-examination, remuneration and further evidence of a court expert.

The amendment inserts a new rule 1A which provides that, in Order 34, 'expert' in relation to a question, means a person who has specialised knowledge about the question based on the person's training, study or experience. This definition is in similar terms to that in section 79 of the Evidence Act 1995.

Order 34 rule 2 deals with the appointment of a court expert. Subrule 2 (2) defined 'expert' for the purposes of rule 2. The amendment omits subrule 2 (2) as it is not necessary given the insertion of the new rule 1A.

Judgments and orders - Exercise of powers by Registrars

[7]       Order 35, after rule 11

Paragraph 35A (1) (h) of the Federal Court of Australia Act 1976 (Cth) provides, inter alia, that a power of the Court prescribed by the Rules of Court may, if the Court or a Judge so directs, be exercised by a Registrar.

This amendment inserts a new rule 12 which provides that, for the purposes of paragraph 35A (1) (h) of the Act, the Court or a Judge may direct a Registrar to exercise the power of the Court under section 23 of the Act to make an order for the dismissal of a proceeding, and to make an order for the payment of costs, if the orders are in accordance with the terms of a written consent by the parties to the proceeding, or by their representatives on the record.

Appeals - Absence of a party

[8]       Order 52, subrule 38A (2)

Order 52 subrule 38A (1) provides that, if a party is absent when an appeal is called on for hearing, the Court may:

(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.

Order 52 subrule 38A (2) allowed the Court to set aside or vary an order made after a hearing had proceeded under paragraph 38A (1) (d), and to give directions for the further conduct of the appeal. The subrule did not deal with the situation where an order had been made under paragraph 38A (1) (c) to dismiss the appeal.

The amendment replaces subrule 38A (2) with a new subrule 38A (2) which provides, inter alia, that the Court may set aside or vary an order made under paragraph 38A (1) (c) to dismiss an appeal or cross-appeal, or made after a hearing proceeds under paragraph 38A (1) (d), and may give directions for the further conduct of the appeal.

Intellectual property - Interpretation

[9]       Order 58, subrule 1 (1), definition of Trade Marks Act

This amendment replaces the reference in the definition to "Trade Marks Act 1955" with a reference to "Trade Marks Act 1995".

Intellectual property - Notice of appeal etc

[10]       Order 58, paragraphs 5 (2) (d) and (e)

Order 58 paragraphs 5 (2) (a) to (e) prescribe the information that must be included in a notice of appeal from all or part of a decision by the Commissioner (as defined in Order 58 subrule 1 (1)). Paragraph 5 (2) (d) required a brief statement of the specific grounds relied on in support of the order or orders sought. However, there was no requirement for particulars of each ground to be provided.

This amendment replaces paragraphs 5 (2) (d) and (e) with new paragraphs 5 (2) (d), (e) and (f). Pursuant to these paragraphs, the notice of appeal must state:

(d)       the grounds relied on in support of each order sought;

(e)       the particulars of each ground relied on; and

(f)       the date given by the Registry for the directions hearing.

[11]       Order 58, after subrule 5 (2)

This amendment inserts a new subrule 5 (3) which provides that, except by the leave of the Court, evidence is not admissible in proof of a ground of appeal not stated in the notice of appeal, or of a ground of appeal of which particulars have not been given in the notice of appeal.

[12]       Order 58, after rule 5

This amendment inserts a new Order 58 rule 5AA which prescribes the particulars that must be included in an appeal from a decision of the Commissioner under a provision of the Patents Act, where a ground relied on in the appeal is that:

•       the invention is not a patentable invention because information about the invention has become publicly available in a document or through the doing of an act; or

•       in relation to a claim of the complete specification of a patent, the invention concerned is not useful and it is intended to rely on the fact that an example of the invention cannot be made to work, either at all or as described in the specification.

Bankruptcy

[13]       Order 77, after subrule 16 (2)

Order 77 subrule 16 (2) provides that a creditor's petition must be accompanied by:

(a)       sufficient copies of the petition for service; and

(b)        an affidavit of a person who knows the relevant facts verifying the petition.

This amendment inserts a new subrule 16 (3) which provides that the petition must not be annexed to the affidavit mentioned in paragraph 2 (b). This subrule is intended to stop a party from filing the original petition as an annexure to the verifying affidavit. The verifying affidavit may have as an annexure a copy of the petition.

Aboriginal Councils and Associations Act 1976

[14]       After Order 82

This amendment inserts a new Order 83.

Order 83 rule 1 provides that, in this Order, "Incorporated Aboriginal Association" has the same meaning as in the Aboriginal Councils and Associations Act 1976.

Order 83 rule 2 provides, inter alia, that for the purposes of paragraph 35A (1) (h) of the Federal Court of Australia Act, the Court or a Judge may direct a Registrar to exercise the power of the Court under subsection 63 (1) of the Aboriginal Councils and Associations Act to wind up an Incorporated Aboriginal Association.

Amendments to forms in the First Schedule

[15]       First Schedule, Form 8

[16]       First Schedule, Form 9

Form 8 is the prescribed form of a cross-claim where the cross-claim is served before the date of the directions hearing appointed in the application. Form 9 is the prescribed form of a cross-claim where the cross-claim is not served before the date of the directions hearing appointed in the application.

This amendment replaces the note to the paragraph numbered 1 in each form with a new note which makes it clear that the cross-claim should only be pleaded if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings. In any other case, subject to the Rules, the cross-claim should be supported by an affidavit.

[17]       First Schedule, Form 10

Form 10 is the prescribed form of defence and cross-claim against a party.

This amendment replaces the note to each of the paragraphs numbered 1 in the form with a new note which makes it clear that the defence and the cross-claim should only be pleaded if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings. In any other case, subject to the Rules, the defence and cross-claim should be supported by an affidavit.

[18]       First Schedule, after Form 15A

This amendment inserts a new Form 15B, being the Certificate of Legal Representative that must be completed by a party's legal representative pursuant to Order 11 rule 1B (see item [1] above).

[19]       First Schedule, Form 31A, heading

Form 31A is the prescribed form for a Notice of Deposit under Order 65 rule 2.

This amendment replaces the heading to Form 31A with a new heading which refers to Order 65 subrule 2 (4), and not Order 65 rule 5.

The amendment is consequential to an earlier amendment which omitted Order 64 rule 5 and inserted a new subrule 2 (4) which referred to Form 31A.

[20]       First Schedule, Form 152

Form 152 is the prescribed form for a Sequestration Order.

This amendment replaces the words "Date entered:" with the words "Date that entry is stamped" so that there is a clear distinction between the date of the order and the date on which it is stamped by the Registrar. The amendment ensures that the Sequestration Order is in similar terms to Form 47.

[21]       Schedule 3, after item 9

Schedule 3 sets out the powers of the Court under the Bankruptcy Act 1966 that may be exercised by a Registrar if so directed by the Court or a Judge.

This amendment inserts a new item 9A, being the power under subsection 52 (3) of the Bankruptcy Act to stay all proceedings under a sequestration order for a period not exceeding 21 days.

[22]       Further amendments - Version 2 of prescribed forms

Forms 8, 9, 10, 31A and 152 are amended by replacing the words 'Version 1' at the end of each Form with the words "Version 2". This is intended to help identify the currency of each Form.