Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1992 NO. 421

Statutory Rules 1992 No. 421

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

AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are thirty-three (33) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed In the Court, including practice and procedure to be followed In Registries of the Court, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Section 59 of the Act also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under that section as if references in those sections of that Act to regulations were references to Rules of Court.

The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then. These amendments are necessary to clarify various existing rules and to make provision for the more efficient preparation for trial. New Order 62A provides for a costs ceiling to reduce the cost of justice in certain Instances.

Rule 1

Provides a commencement date of 1 January 1993.

Rule 2

Provides for amendments as set out in these Rules.

Rule 3

Deletes reference to Order 41 in Order 1, rule 11. This rule provides that the rules do not apply to proceedings under the Bankruptcy Act 1966. As forms for use in bankruptcy proceedings are already provided it serves no purpose to have a reference to Order 41 - Documents.

Rule 4

Provides for additional information to be provided in Order 4, rule 3. An application must state the relief claimed and also the Act and provision on which the relief application is based.

Rule 5 and 6

In Order 8, rules 10 and 11, the reference to "Attorney-General" is replaced by "Secretary to the Attorney-General's Department" as the person to whom documents are sent after a request, and an order of the Court made, for service of documents in proceedings outside the jurisdiction.

Rule 7

Provides for the insertion of new paragraphs (h), (i) and a substitution of existing paragraph (g) in Order 10, rule 1. New paragraph (h) provides for orders that parties attend a conference before a Registrar to ensure that all steps have been taken to clarify the issues and make directions before trial and, new paragraph (i) provides for a case management conference before Judge or Registrar to consider the most economic and efficient means of bringing the proceedings to trial, and for its conduct. Directions may also be given at this conference. Because of these amendments existing paragraph (g) is deleted and the substituting paragraph provides for reference to a mediator or arbitrator of a matter arising out of a proceeding, part of a proceeding, or the whole proceeding under Order 72.

Rule 8

Deletes the reference to "on application by a party" in Order 34, rule 2, Court Expert, and makes provision for the Court "on its own motion or on the application by a party or the Registrar", to apply the rule. Generally, this rule provides for the appointment of a Court Expert who may be authorised to inquire, report and instruct the Court relating to an inquiry or report.

Rule 9

Provides in Order 35 rule 8 (Interest) for a variation of the interest rate from 15% to 12% on a judgment debt.

Rule 10

Provides in Order 62, rule 36A (Reduction in costs otherwise allowable) for a variation of the amount $50,000 to $100,000. This rule provides that where judgment is awarded for less than the specified amount any costs ordered to be paid, including disbursements, will be reduced by onethird unless the Court otherwise orders.

Rule 11

Inserts a New Order 62A - Determination of maximum costs at directions hearing. 0.62A rule 1 provides that the Court may order at a directions hearing, of its own motion or on the application of a party the maximum amount to be recovered on a party and party basis.

0.62A rule 2 lists costs excluded from the operation of rule 1, such as an amount to be paid: where a party has failed to comply with an order; has sought leave to amend pleadings or particulars or an extension of time for compliance with an order or rules; or has otherwise caused another party to incur costs that were not necessary for the progress of the proceedings to trial or hearing of the action.

0.62A rule 4 provides for a variation of an amount specified as recoverable under rule 1 if there are special reasons or it is in the interests of justice to do so.

Rule 12

Provides for Order 72 rule 11 (Sunset provision) to be amended so that the Order 72 - Mediation and Arbitration - will continue in operation in its present form to 1 January 1994. This provides a further twelve months for comment on the Order by the legal profession or any interest party.

Rule 13

Provides for Form 5 - Application - to be amended to include a reference to any Acts or sections of Acts on which the application is based. The form is also amended to expand information on an applicants address for service i.e., residence or place of business may be specified.