Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1994 NO. 224 1994 NO. 224

EXPLANATORY STATEMENT

Statutory Rules 1994 No. 224

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-seven (37) 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.

Rule 1

This rule provides for a date of commencement of the Rules.

Rule 2

This is a formal rule specifying the effect of this statutory rule as amending the Rules of Court.

Rule 3

The present Order 7 rule 6 requires litigants to have an address for service within 10 km of the appropriate District Registry. In these days of rapid transport and delivery it is seen as appropriate that litigants not be restricted by this rule. The rule now provides that an address for service may be anywhere within the district where the proceedings have been filed. It is anticipated that this amendment will be more convenient and cost effective to both litigants in person and solicitors located outside the immediate area of the Court registries.

Rule 4

The Foreign Evidence Act 1994 which came into operation on 9 April 1994 provides for the use of foreign evidence In certain proceedings. It replaces certain Parts of the Evidence Act 1905 which deal with examination of witnesses abroad and taking of evidence for proceedings in foreign courts and these provisions of the Foreign Evidence Act will apply to proceedings commenced after 9 April 1994. This rule amends the title of Order 24 by including reference to the Foreign Evidence Act 1994.

Rule 5

This rule amends Order 24 rule 1 which covers orders for the examination of witnesses on oath in Australia or abroad. The amendment broadens the methods under which an examination of a witness can be conducted to include an examination on affirmation.

Rule 6

Order 24 rule 2 deals with the procedure after the Court has made an order for the sending of a letter of request to judicial authorities overseas for the taking of a person's evidence. This amendment adds to rule 2, provisions under the Foreign Evidence Act 1994.

Rule 7

This rule accommodates the new provisions of the Foreign Evidence Act 1994 and incorporates reference to this Act in Order 24 rule 2A of the Rules of Court.

Rule 8

This rule again incorporates reference to provisions of the Foreign Evidence Act 1994 in the rules by the amendment of Order 24 rule 3.

Rule 9

Order 27 is entitled "Subpoenas" and the amendments to Order 27 rule 4 are intended to address the procedure for production of documents by a "non-party" who is served with a subpoena for production. It allows the recipient of the subpoena to provide the documents or things to the nearest registry of the Court rather than to the registry which issued the subpoena. It is provided that this production occur at lent two days before the return date on the subpoena to that items can be forwarded to the originating registry to be available in court when the subpoena is called by the issuing party.

Order 27 rule 4 now specifies that a person answering the subpoena is to provide the registrar with a description of the documents or things being produced to the Court. It further provides that the registry will give a receipt for those items and that, if applicable in the particular case, the receiving registry will forward the documents to the registry that issued the subpoena, or as the Court may direct.

A new subrule (2A) h inserted into Order 27 rule 4 requiring that where material is produced, other than to the registry that issued the subpoena, the liability for the expense of sending the material from the receiving registry to the correct registry will be borne by the party requesting the documents or its solicitor.

Rule 10

Order 27 is amended to include a new rule 10 to cover the procedure when a subpoena is served in a District other than the District of the issuing registry, on a "nonparty" and the recipient of the subpoena wishes to apply to act aside the subpoena or make a claim for privilege, public interest Immunity or confidentiality. This new rule provides that a notice of motion may be fled in the registry of the Court nearest the address at which the subpoena was served and may either be determined at that registry, or a judge may direct that the motion be heard in the registry that issued the subpoena. Previously any motion regarding a subpoena was to be filed in the registry that issued the subpoena. This should make it less expensive for a non-party to challenge a subpoena as any challenge can be made locally.

Rule 11

Under sections 78A and 78B of the Judiciary Act 1903, if a constitutional issue arises in a proceeding before the Court, notice must be given to the Attorneys-General of the Commonwealth and each of the States and they may choose to intervene in the proceedings. This new rule, Order 51 rule 4, provides that the party raising the constitutional matter is to give the relevant material to any intervening Attorney-General as soon as possible after notice is given of intervention in the proceedings. This will streamline the procedures and ensure that the information is readily available to any intervening Attorneys-General.

Rule 12

Order 52B covers the procedure on appeals against appealable objection decisions made under the Taxation Administration Act 1953. Part IVAA of the Act is a recent amendment relating to appeals involving private rulings of the Commissioner of Taxation. This rule adds a reference to Part IVAA of the Act to Order 52B rule 1.

Rule 13

This rule amends Order 52B rule 4 to provide for procedures in relation to matters under Part IVAA of the Taxation Administration Act 1953 where a private ruling is involved. It provides that the application must be served within six days after filing. It further provides that if a private ruling is involved the return date must be within twenty-one days of the date of filing and, in any other case, the return date must be more than five weeks after the date the appeal is filed.

Rule 14

Order 52B rule 5 covers the documents to be filed and served by the Commissioner of Taxation. This amending rule limits the provisions of Order 52B rule 5 to appeals other than private rulings.

Rule 15

This rule inserts Order 52B rule 5A which covers the documents to be filed and served by the Commissioner of Taxation if a private ruling is involved. It sets a time limit of 14 days after an application is served on the Commissioner of Taxation for him/her to file a notice of appearance, a copy of the ruling concerned, a copy of the notice of appealable objection concerned, a copy of the taxation objection concerned, a copy of the documents given to the applicant under section 14ZAJ of the Taxation Administration Act as well as any statement of assumptions made by the Commissioner in the making of the private ruling. It also specifies that these documents should be served on the applicant.

Rule 16

Under section 459E of the Corporations Law, where a Statutory Demand issued by a creditor of a company is not based on a judgment debt, the demand must be accompanied by an affidavit verifying that the debt is due and payable. This rule clarifies the requirement that an applicant for an order winding up a company, where the ground for winding up is non-compliance with such a statutory demand, should prove that this affidavit verifying the debt was served an the debtor company.

Rule 17

This rule omits a reference in Order 71 rule 82 to a subrule which has now been repealed. It is a purely formal amendment.

Rule 18

This rule amends Forms 41 - "Subpoena for Production" and Form 43 - "Subpoena for Production and to Give Evidence". In conjunction with the amendments to Order 27 as specified in rules 8 and 9 of this statutory rule, a note has been added to the Forms. The note indicates that the recipient of the subpoena is required to provide a description of the material being produced in answer to the subpoena and identify which of the items required by the subpoena have actually been produced. This will make identification of subpoenaed material clearer and will assist both parties and the registries of the Court to organise. the material,

Rule 19

This rule amends items in the Third Schedule to the Rules. The Third Schedule lists the powers of the Court under the Corporations Law which may be delegated to registrars by a Judge of the Court pursuant to section 35A of the Federal Court of Australia Act and Order 71 rule 7 of the Federal Court Rules.

Item 38A relates to the power to deal with a winding up application and additional sections. have been added to this item to ensure that registrars can fully deal with these applications.

Item 90 is also amended to ensure that registrars conducting examinations under the Corporations Law have power to deal with the variety of issues arising in the conduct of an examination. In particular, it will allow a registrar to give necessary directions in these examinations.


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