Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1994 NO. 332

EXPLANATORY STATEMENT

Statutory Rules 1994 No. 332

AMENDMENT OF THE RULES OF THE COURT OF AUSTRALIA

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are forty-one (41) 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. Under sub-section 59(4) of the Federal Court Act, 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 reference a 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

This rule specifies the date of commencement of these amending rules.

RULE 2

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

RULE 3

Order 23

This rule introduces a new Order 23 to replace the existing Order 23 which was headed "Payment into Court". The new Order is entitled "Offer of Compromise and Payment into Court". This new Order changes the scheme for payment into court, now providing, for example, that formal offers can be made between parties, and, in awarding any costs, the stage of the litigation at which an offer was made can be taken into account.

Rule 1 - Interpretation

This rule defines the terms "applicant", "claim in the proceeding", "proceeding" and "respondent" as used in this Order.

Rule 2 - Application

This rule provides that a party may make an offer of compromise in any claim in a proceeding. It also provides that a single notice of offer must specify separately the offer made to each party, in circumstances where an offer of compromise is made in relation to separate claims of several parties.

Rule 3 - Form of offer

This rule provides that an offer of compromise will be by service of a notice of offer on a party. The notice of offer is to be in accordance with Order 41 (Documents) of the Rules, will bear a statement that the offer is made under Order 23, and will be signed by the party or the solicitor for the party making the offer. The rule further provides that until the offer has been accepted a notice of offer must not be filed with the Court.

Rule 4 - Further requirements of offer

This rule provides that if the offer involves a sum of money and that sum is to include either costs and/or interest, the notice of offer should specify the amount in respect of costs and/or interest. The rule further provides that an offer to pay a sum of money is taken to be an offer to pay within 28 days of acceptance of the offer unless the notice provides otherwise.

Rule 5 - Time for making or accepting offer

This rule provides that an offer can be made at any time, either before a judge begins to sum up to a jury or before the Court pronounces a decision. A party may make more than one offer and there maybe a limitation on the time the offer remains open.

An offer may be accepted any time before the decision is pronounced or within the specified expiry time. An offer cannot be withdrawn within 14 days after it is made, unless the Court orders otherwise or a more favourable offer Is made. An offer can be accepted during the period prescribed whether or not a counter offer is made.

Rule 6 - Withdrawal of acceptance

A party who has accepted an offer may withdraw that acceptance by serving a notice of withdrawal. Ibis ran be done if the offer involves payment of a sum of money and the sum has not been paid within the time provided. The Court may then give directions as to the effect of any steps taken since the Initial acceptance of an offer, restoring parties to their positions at the time of acceptance of the offer, and for the further conduct of the proceedings.

Rule 7 - Offer to be without prejudice

An offer made under Order 23 is to be made without prejudice unless a notice of offer provides otherwise.

Rule 8 - Offer not to be disclosed to the Court

No statement regarding the fact that an offer has been made or not accepted is to be communicated to the Court or mentioned in any documents filed with the Court until after all questions of liability and relief have been determined.

Rule 9 - Failure to comply with accepted offer

If the party that has made an accepted offer fails to comply with the terms of the offer, the party who has accepted the offer may move the Court for judgment or for dismissal of the application.

Rule 10 - Multiple respondents

This rule applies rule 9 above to a proceeding with more than one respondent but only if offers have been made or accepted by all respondents.

Rule 11 - Costs

Unless the offer was made and accepted inclusive of costs, an applicant is entitled to have costs taxed on a party-party basis up to the day the offer was accepted and If those costs are not paid within 4 days of the signing of a certificate of taxation, judgment may be entered against the respondent for those costs.

However, if an offer is not accepted and judgment is obtained on terms equal to or better than the offer made, the applicant is entitled to an order against the respondent for costs incurred up to the day the oiler was made, taxed on a party-party basis and after that day costs on an indemnity bash.

If an offer is made by a respondent but not accepted by an applicant and the judgment is not as favourable as the offer, the parties are entitled to an order for party-party costs, based on the time that the offer was made. If the offer was made the day before the hearing or on a later day the applicant is entitled to costs up to 11 a.m. on the day after the offer was made and the respondent is entitled to costs after that time.

Where the judgment includes interest or damages in the nature of interest, interest incurred after the day the offer was made must be disregarded for the purposes of determining whether the judgment is more favourable than the offer.

The Court must be satisfied that at all times the party making the offer was willing and able to perform the offer if it was accepted.

Rule 12 - Where tender before action pleaded

If a respondent raises a defence of tender before action, the sum of money alleged to have been tendered must be paid into Court.

Rule 13 - Payment of Money into Court

Money paid into Court must not be paid out except under an order of the Court.

Rule 14 - Notice of deposit (Form 31)

Any payment into Court or filing of security to pay must be accompanied by a Notice of Deposit in accordance with Form 31.

Rule 15 - Security to pay into Court (Form 36)

A security to pay money Into Court must be a document in accordance with Form 36 (or a form approved by the Registrar) by which an authorised person promises to pay into Court, when ordered to do so, a particular sum of money, and, gives an address for service. If money is paid into Court the person so paying has no further liability under any security filed with the Court. If a security has been filed, the Court can order the person giving the security to pay within a certain time the whole or any part of the amount secured. If there is failure to comply with such an order, interest of up to 10% per annum can be ordered, as well as an order for costs incurred as a result of failure to comply with the order.

A party seeking an order in respect of a security must file a Notice of Motion and serve it on the person giving the security. A party filing a security must serve a copy of the security on each interested party.

Rule 16 - Service

A party filing any notice under Order 23 must also serve the notice on all other parties.

RULE 4

Order 43 - Disability

Order 43 - Order 43 rule 10

This rule amends Order 43 rule 10 to include the new Order 23, as introduced by this amending Statutory Rule.

RULE 5

Order 43 Sub-rule 12(1)

This rule replaces a misprinted reference to rule 12 with a reference to rule 11.

RULE 6

Order 54B - Migration Act 1958

A new Order 54B is introduced dealing with review of decisions under the Migration Act 1958. The current Order 54B deals with intellectual property and is removed and becomes Order 58 of the Federal Court Rules (see Rule 7 in this Statutory Rule).

Rule 1 - Application

This rule specifies that, in addition to this Order, the Rules of Court are to be followed when making an application for review of a judicially-reviewable decision under the Migration Act.

Rule 2 - Form of Application (Form 56)

This rule provides that an application to review a judicially-reviewable decision under the Migration Act is to be in accordance with Form 56, and should indicate the date on which the applicant was notified of the relevant decision and give details of any allegations of fraud, bad faith, or actual bias.

Rule 3 - Notice of objection to competency (Form 57)

If a respondent objects to the competency of the application, the respondent must Me and serve a notice of objection in Form 57 within 14 days of receipt of the application.

Rule 4 - Objections

This rule indicates that in addition to the usual directions specified in Order 10, the Court may give directions as to service of a copy of any application on the Attorney-General for the Commonwealth, the giving of notice of the application to certain other persons and whether any objections to competency should be heard and determined before the substantive application.

Rule 5 - Staying or dismissal of applications

This rule modifies the application of Order 20 rule 2, which deals with frivolous applications. If the Court is satisfied that there is no reasonable basis for an application, it may stay or dismiss the proceedings.

Rule 6 - Dismissal of application

Any party who seeks to have an application dismissed as frivolous, or dismissed in the exercise of the Court's discretion, must apply for dismissal promptly.

Rule 7 - Use of affidavit without cross-examination of maker

In matters under this Order the Court may direct that an affidavit be used without the person making the affidavit being cross-examined.

RULE 7

New Orders 58 and 59

Order 58 - Intellectual Property Rules

The intellectual property rules have been Order 54B of the Federal Court Rules. To allow for the appropriate insertion of rules regarding the Migration Act 1958, the intellectual property rules are now transferred and renumbered as Order 58 of the Federal Court Rules. The intellectual property rules have not been amended.

Order 59 - Moomba-Sydney Pipeline System Sale Act 1994

A new Order 59 is inserted into the Federal Court Rules. Ilia Order deals with the Moomba-Sydney Pipeline System Sale Act 1994.

Rule 1 - Appeals from determinations of Trade Practices Tribunal under section 176

There is provision under s.126 of Moomba-Sydney Pipeline System Sale Act for an appeal to the Court on a question of law from a determination of the Trade Practices Tribunal on an access dispute. Such an appeal should be prepared and filed using Form 55A.

Rule 2 - Enforcement under Part 6, Division 6

This rule provides that an application to the Court for an injunction or other orders under Part 6 Division 6 of the Moomba-Sydney Pipeline System Sale Act must be made by filing an application using Form 5.

Rule 3 - Inquiry by Court under subsection 124(3) where non compliance with requirements of Trade Practices Commission

The Trade Practices Commission may notify the Federal Court in writing that a person has failed, without reasonable excuse to comply with a requirement to give information or produce documents to the Commission in an access dispute. Where an inquiry into this failure is to be held by the Court under s.124 of the Moomba-Sydney Pipeline System Sale Act, the Trade Practices Commission must file an application in accordance with Form 5. The application form Is to be accompanied by an affidavit certifying the details of non-compliance with the requirements of the Trade Practices Commission and annexing the notice under s.95 of the Act which required the person to give information or documents to the Trade Practices Commission. The rule further provides that the Court may give directions as to the conduct of the inquiry including directions as to the filing of a statement of facts and contentions by the respondent.

RULE 8

Order 62 - Costs

Rule 1A

This rule provides that the party who is represented by an employee of the Crown (as counsel) may recover appropriate costs on taxation, to the same level as those recoverable by a practitioner not employed by the Crown, despite the fact that the party may be unable to vouch for payment of the fee claimed.

RULE 9

Order 75 - Native Title Rules

Rule 1

This rule amends the procedure for registering determinations of the National Native Title Tribunal. It introduces a covering application (Form 138A) to be filed with a copy of the determination forwarded to the Court for registration.

RULE 10

First Schedule to the Federal Court Rules Forms

Form 31

This rule substitutes a new Form 31 - "Notice of Deposit" to accord with the changes to Order 23, as introduced in these rules.

Forms 32, 33, 34 and 35 are omitted. They are no longer required under the new Order 23 as introduced in these rules.

Form 36

This rule amends Form 36 - "Security to Pay into Court" in accordance with the provisions of the new Order 23 introduced in these rules.

Forms 41, 42 and 43 - Subpoenas

The notes in the "Subpoena for production" (Form 41), "Subpoena to give evidence" (Form 42) and "Subpoena for production and to give evidence" (Form 43) are expanded so that recipients are more fully aware of the requirement that the party serving a subpoena must provide reasonable allowances and travelling expenses to enable the recipient to comply with the subpoena. In addition, a new paragraph is added to alert recipients of a subpoena, that if they incur substantial expense or loss in complying with the subpoena they may apply to the Court for an order for payment of the amount spent or lost.

Form 55A

Form 55A is amended so that it is no longer only a notice of appeal from the Administrative Appeals Tribunal, but can be used for an appeal from any Tribunal. This is in conjunction with the amendments introduced In Order 59 in these rules.

Forms 56 and 52

These forms are amended so that they can be used under both Order 54 (Applications to review decisions under the Administrative Decisions (Judicial Review) Act 1977) and under Order 54B (Judicially-reviewable decisions under the Migration Act 1958).

Forms 58A, 64 and 65

These forms are used under the intellectual property rules and they are formally amended to indicate that they now relate to Order 58 rather than Order 54B.

Form 13

This is a new form introduced for the purpose of Order 75 rule 12. It provides the covering application form for registration of determinations of the National Native Title Tribunal.

Form 13

This is a formal amendment to change the reference, in the heading of the form, to the sub-rule on which Form 139 is based.


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