Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2004 (NO. 3) 2004 NO. 219

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 2004 (No. 3).

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

Entry of orders

[1]       Order 36

This amendment replaces Order 36 with a new Order 36 in order to simplify the process for the entry of orders made by the Federal Court. In particular, the new Order 36 makes it clear that the Court may direct that orders be entered in Court at the time the orders are made.

Rule 1 provides that, for the purposes of rules 3 and 7 of Order 36, 'Registrar' includes an officer acting with the authority of the Registrar.

Subrule 2 (1) provides that, subject to subrule 2 (2), an order must be entered if:

•       the order is to be served; or

•       the order is to be enforced; or

•       an appeal from the order has been instituted, or an application for leave to Appeal from the order has been made; or

•       a step is to be taken under the order; or

•       the Court directs that the order be entered.

Subrule 2 (2) provides that an order need not be entered if, in addition to any provision as to costs, the order merely:

•       extends or abridges time; or

•       grants leave or makes a direction to amend a document (other than an order), to file a document or for an act to be done by an officer of the Court (within the meaning of section 18N of the Federal Court of Australia Act); or

•       gives directions about the conduct of a proceeding.

Subrule 3 (1) provides that an order may be entered in accordance with subrule 3 (2) or rule 5.

Subrule 3 (2) provides that a Registrar may enter an order by authenticating the order in accordance with subrule 7 (1) if:

•       the order has been settled in accordance with rule 4; and

•       the Court or a Judge directs, or a party requests, that the order be entered.

Subrule 4 (1) provides that a party wishing to have an order entered may lodge a draft of the order, in accordance with Form 47, with the Registrar.

Subrule 4 (2) provides that an order may be settled by the Court or a Judge, or a Registrar, even if no draft of the order has been lodged under subrule 4 (1).

Subrule 4 (3) provides that the Court or a Judge may give directions to a Registrar who is settling an order under rule 4.

Rule 5 provides that the Court or a Judge may direct that an order be entered by the order being authenticated in Court in accordance with subrule 7 (1) at the time the order is made.

Rule 6 provides that, unless the Court otherwise orders, the date as of which an order is entered is the date when the order was made. This rule clarifies when a judgment 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 rule 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 authenticated.

Subrule 7 (1) provides that an order is authenticated by:

•       the Court or a Judge, or a Registrar signing the order; and

•       the Court or a Judge, or a person at the direction of the Court or a Judge, or a Registrar, affixing the stamp of the Court to the order.

Subrule 7 (2) provides that, on request by a party to a proceeding, the Registrar must give a copy of an authenticated order in the proceeding to the party.

Subrule 7 (3) provides that the Registrar may give a copy of an authenticated order in the proceeding to any person who:

•       appears to have a sufficient interest in the proceeding; and

•       pays the prescribed fee (if any).

Rule 8 provides that an order need not be served unless the Rules otherwise provide or the Court otherwise directs.

Rule 9 provides that, on request by a judgment creditor, the Registrar must give to the creditor a certificate in accordance with Form 47A setting out the particulars of the judgment.

Amendments to the Schedule 1

[2]       Schedule l, Form 47, heading

Form 47 is amended by inserting a reference to Order 36 rule 4 in the heading of the Form. This amendment is consequential to the amendment to Order 36 described in item [1] above.

[3]       Schedule 1, Form 47A heading

Form 47A is amended by inserting a reference to Order 36 rule 9 in the heading of the Form. This amendment is consequential to the amendment to Order 36 described in item [1] above.