Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1994 NO. 279

Statutory Rules 1994 No. 279

Issued by the authority of the 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-eight (38) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, providing for the practice and procedure to be followed in the Court and in Registries of the Court, and in relation to all matters incidental to any such practice or procedure or necessary or convenient to be prescribed for the conduct of any business of the 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 the commencement date.

Rule 2

This rule states that the Federal Court Rules are amended as act out in these amending rules.

Rule 3

The Federal Court of Australia Act 1976 was amended, under the provisions of the Law and Justice Amendment Act 1994 (No. 84/1994), by the addition of subsection 59(2B). The Federal Court Act now allows the making of Rules of Court to provide for the amendment of documents even if the effect of the amendment would be to allow the making of a claim that is outside a limitation period when the amendment is made. These amendments to Order 13 rule 2 are made under this new subsection.

Order 13 subrule 2(3) provides that if the Court believes it just, leave may be given to amend a document as provided in subrules (4), (5), (6) and (7), notwithstanding that a relevant limitation period may have expired. Subrule 2(4) provides that there may be an amendment to correct the name of a party to a proceeding even if, by the amendment, there is a substitution of another person as the party. Subrule 2(5) provides that if such an amendment and substitution of a party is made, the proceeding is taken to have commenced on the day the original proceeding commenced. Subrule 2(6) provides that an amendment to alter the capacity in which a party sues may be made if the new capacity was available . at the date of commencement of the proceeding or was acquired after the proceeding commenced. Subrule 2(7) provides that an amendment may be made even if the effect of the amendment may be to add a new claim for relief or another foundation in law for a claim for relief, as long as the new claim arises from the same or substantially the same facts as already pleaded.

Rule 4

Order 71 rule 38 currently requires that at the hearing of an application to wind up a company, there be proof of service of a statutory demand and an affidavit verifying the debt. This amending rule substitutes a reference to the affidavit required by subsection 459E(3) of the Corporations Law, clarifying the intention that there be proof of service of the affidavit served with a statutory demand if the demand is not based on a judgment debt

Rule 5

This rule adds to Order 71 rule 77B the word "to" which is currently missing.

Rule 6

This rule adds to Order 71 rule 98A a missing word -"Who".

Rule 7

Form 93 in the First Schedule to the Rules is an Application to the Court for a winding up order. In the information at the end of the application, there is currently a reference to an incorrect form number. This is rectified by the amendment.

Form 139 in the First Schedule to the Rules is headed Registration of Determination of National Native Title Tribunal and currently refers to lodgment of a determination with the District Registrar of the Federal Court. Section 166 of the Native Title Act 1993 refers to lodgment with a Registry of the Federal Court. The form is now consistent with the legislation and refers to "District Registry".

Form 141 in the First Schedule to the Rules is a Notice of Appeal from the National Native Title Tribunal. Order 75 subrule 15(6) indicates that the registrar is ton endorse details of a directions bearing on the Notice of Appeal. This amendment will make the form consistent with the rule by making provision for endorsement of a directions hearing on the form of the Notice of Appeal.

Rule 8

Item 38 in the Third Schedule to the Rules currently refers to s459M twice and this amendment deletes one reference. Item 38A in the Third Schedule, as recently amended, omitted reference to subsections 467(1), (3) and section 467A as previously included in this item. This amendment reinstates these sections in the item.