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Federal Court Rules (Amendment)

Authoritative Version
  • - F2001B00530
  • No longer in force
SR 1995 No. 239 Rules/Court & Tribunal Rules as made
These Rules amend the Federal Court Rules.
Administered by: Attorney-General's
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Made 27 Jul 1995
Registered 01 Jan 2005
Tabled HR 28 Aug 1995
Tabled Senate 28 Aug 1995
Gazetted 01 Aug 1995
Date of repeal 01 Aug 2011
Repealed by Federal Court Rules 2011

 

 

 

 

 

 

Statutory Rules 1995   No. 2391

__________________

Federal Court Rules2 (Amendment)

WE, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.

Dated 27 July 1995.

                                                                           M. E. J. BLACK C. J.

                                                                           J. A. KEELY J.

                                                                           J. F. GALLOP J.

                                                                           J. D. DAVIES J.

                                                                           J. S. LOCKHART J.

                                                                           K. J. JENKINSON J.

                                                                           B. A. BEAUMONT J.

                                                                           M. R. WILCOX J.

                                                                           J. E. J. SPENDER J.

                                                                           P. R. A. GRAY J.

                                                                           J. C. S. BURCHETT J.

                                                                           J. A. MILES J.

                                                                           D. M. RYAN J.

                                                                           R. S. FRENCH J.

                                                                           M. L. FOSTER J.

                                                                           M. C. LEE J.

                                                                           H. W. OLNEY J.

                                                                           D. G. HILL J.

 

 

                                                                           M. F. O’LOUGHLIN J.

                                                                           D. F. O’CONNOR J.

                                                                           T. J. HIGGINS J.

                                                                           P. C. HEEREY J.

                                                                           D. P. DRUMMOND J.

                                                                           R. E. COOPER J.

                                                                           A. P. WHITLAM J.

                                                                           M. J. BEAZLEY J.

                                                                           C. J. S. M. CARR J.

                                                                           M. F. MOORE J.

                                                                           C. M. BRANSON J.

                                                                           J. H. MATHEWS J.

                                                                           K. E. LINDGREN J.

                                                                           B. TAMBERLIN J.

                                                                           S. M. KIEFEL J.

                                                                           R. D. NICHOLSON J.

                                                                           S. R. MARSHALL J.

                                                                           Judges of the Federal

                                                                           Court of Australia

W. G. SODEN

Registrar

 

____________

1.   Commencement

1.1    These Rules commence on 1 August 1995.

2.   Amendment

2.1    The Federal Court Rules are amended as set out in these Rules.

3.   Order 1, rule 4 (Interpretation)

3.1    Definition of “organisation”:

Omit the definition.

 

4.   Order 1, rule 10 (Industrial Relations Regulations)

4.1   Omit the rule.

5.   Order 4, rule 14 (Suit in person)

5.1   Subrule 14 (3):

Omit the subrule.

6.   Order 4, rule 15 (Proceeding by rule—Form 6)

6.1   Omit the rule.

7.   Order 4, rule 16 (Proceeding under section 261 of the Industrial Relations Act 1988)

7.1   Omit the rule.

8.   Order 27, rule 4 (Production by non-party)

8.1   Subrule 4 (1):

Omit “Registry from which the subpoena was issued”, substitute “Registry at the proper place”.

8.2   Subrule 4 (2A):

Omit “to the proper place”, substitute “to the proper place, or returning the document or thing to the person who produced it,”.

8.3   Subrule 4 (3):

Omit the subrule.

9.   Order 27, rule 6 (Issue of subpoena)

9.1   Subrule 6 (5):

Omit the subrule.

10.   Order 35, rule 5 (Fine)

10.1   Subrule 5 (3):

Omit the subrule.

11.   Order 35, rule 10 (Consent orders)

11.1  Subrule 10 (2):

Omit the subrule, substitute:

            “(2)   Despite anything contained in these Rules:

              (a)   if a written consent is filed under subrule (1), the Registrar must bring the matter before a Judge who may, without any other application being made to the Judge, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent; or

              (b)   if the written consent is in respect of an order which the Registrar has power to make, the Registrar may, unless the Registrar is of the opinion that the consent should be brought before a Judge, draw up, sign and seal an order in accordance with the terms of the consent.”.

12.   Order 48 (Inquiries under the Industrial Relations Act 1988)

12.1   Omit the Order.

13.   Order 50, rule 1 (Application)

13.1   Subrules 1 (1) and (2):

Omit the subrules, substitute:

            “(1)   A case to be stated, or a question to be reserved or to be referred for the consideration of the Court, must be in the form of a special case.

            “(2)   The special case must:

              (a)   be divided into consecutively numbered paragraphs; and

              (b)   state the facts concisely; and

              (c)   annex all documents necessary to enable the Court to decide the questions raised by the special case.”.

14.   Order 50, rule 2 (Special case to be prepared etc.)

14.1   Omit “Tribunal, Commission, Industrial Registrar” (wherever occurring), substitute “Tribunal”.

 

15.   Order 50, rule 4 (Party having carriage of the proceeding)

15.1   Omit the rule, substitute:

Party having carriage of the proceedings

             “4.   If a question is referred to the Court by a Tribunal, the party having the carriage of the proceeding for the purpose of rule 2 must be:

              (a)   if the question is referred by the Tribunal at the request of a party—that party; and

              (b)   if the question is referred by a Tribunal of its own motion—the person who made the decision to which the proceeding before the Tribunal relates.”.

16.   Order 50, rule 5 (Question referred pursuant to section 82 of the Industrial Relations Act 1988)

16.1   Omit the rule.

17.   Order 52, rule 26 (Draft index of appeal papers)

17.1   Omit the rule, substitute:

Draft index of appeal papers

            “(1)   Before the date appointed for settling appeal papers, the appellant must prepare and file in the Registry:

              (a)   a draft index of the appeal papers; and

              (b)   a separate, chronological, list of all documents received in evidence and proposed to be reproduced in the appeal papers, including documents exhibited to, or annexed to affidavits.

            “(2)   The appellant must serve the draft index, and list, on the respondent a reasonable time before the appointment to settle the appeal papers.”.

18.   Order 52, rule 28 (Preparation of Appeal Papers)

18.1   Subrules 28 (2) and (3):

Omit the subrules, substitute:

            “(2)   Following the title page, there must be:

              (a)   an index of the documents comprising the appeal papers and showing the date and page number of each document; and

              (b)   a chronological list of all documents received in evidence, including documents exhibited to, or annexed to, affidavits, showing the date and page number of each document.

            “(3)   The appeal papers must be paginated and the documents arranged in the following order:

              (a)   process and pleading;

              (b)   evidence, as follows:

                           (i)   oral evidence;

                          (ii)   affidavit evidence in which, after each affidavit, documents exhibited to, or annexed to, that affidavit, are arranged in the order in which they have been lettered or numbered in the affidavit;

                         (iii)   other exhibits (other than affidavits and documents exhibited or annexed to each affidavit) arranged in the order in which they have been lettered or numbered as exhibits in the court below, and any list of exhibits appearing in the transcript;

              (c)   testimony taken on commission or before an examiner and received in evidence;

             (d)   if the court or judge below was hearing an appeal from a tribunal or board:

                           (i)   reasons for decisions of the tribunal or board;

                          (ii)   formal decision of the tribunal or board;

                         (iii)   any notice of appeal to the court below;

              (e)   reasons for the judgment of the court below;

              (f)   the formal order of the court below;

              (g)   notice of appeal;

              (h)   any notice of cross-appeal or notice of contention;

               (i)   the Certificate required by subrule (6).”.

19.   Order 62, rule 27 (Payment into court)

19.1   Omit the rule.

20.   Order 62, rule 41 (Appointment to tax bill)

20.1   Subrule 41 (2):

Omit “7 days”, substitute “14 days”.

20.2   Subrule 41 (4):

Add at the end “and the amount which it is contended should be taxed off.”.

20.3   Subrule 41 (5):

Omit “2 clear days”, substitute “7 days”.

20.4   Subrules 41 (6) and (7):

Omit the subrules, substitute:

            “(6)   Subject to the discretion of the taxing officer, to be exercised in exceptional circumstances, on taxation of the bill, no amount is to be taxed off, nor any ground of objection to an item or part of an item allowed, unless each amount, ground, item or part of an item, as the case may be, is specifically set out in a notice under subrule (3).

            “(7)   Subject to subrule 46 (4A), the taxing officer has a discretion to:

              (a)   tax the costs of the notice under subrule (3), and of any other objections, and:

                           (i)   add them, or a part of them, to; or

                          (ii)   deduct them, or a part of them, from;

                     any sum payable by or to a party to the taxation; or

              (b)   to fix a lump sum in respect of the costs of the notice or other objection and:

                           (i)   add it to; or

                          (ii)   deduct it from;

                     any sum payable by or to a party to the taxation.”.

 

21.   Order 62, rule 43 (Reconsideration)

21.1   Subrule 43 (2):

Omit “unless”, substitute “unless, in exceptional circumstances,”.

21.2   Subrule 43 (4):

Omit the subrule, substitute:

            “(4)   The taxing officer may deal with the costs of the objections to the decision in any manner allowed under subrule 41 (7).”.

22.   Order 62, rule 46 (Assessment procedures)

22.1   Paragraph 46 (4) (g):

Omit the paragraph.

22.2   New subrule 46 (4A):

After subrule 46 (4), insert:

         “(4A)   If a notice of objection is filed under paragraph 46 (3) (c), or a notice requiring a full taxation is filed under paragraph 46 (4) (c), the party filing the notice shall bear the costs of taxation of all parties from the date of filing the notice unless, on taxation, there is obtained in that party’s favour a variation of at least 15% of the estimate of taxed costs or of the amount provisionally taxed.”.

22.3   Subrule 46 (6):

Omit the subrule, substitute:

            “(6)   At any time after the making of an order for costs, and before the issue of a certificate of taxation in accordance with an estimate or provisional taxation or full taxation:

              (a)   the Registrar may order (either on the application of a party or of the Registrar’s own motion) that the parties attend before a designated Registrar or other designated officer in confidential conference with a view to:

                           (i)   reaching a mediated resolution of the amount for which a certificate of taxation should issue; or

                          (ii)   clarifying the real issues in dispute; and

 

 

              (b)   if the Registrar makes an order under paragraph (a)—each party must file and serve on the other parties, at least 7 days before the date of the conference, a brief summary of the issues in dispute and the contentions to be raised in respect of the issues.”.

22.4   Subrule 46 (6A):

Omit the subrule, substitute:

         “(6A)   If:

              (a)   21 days have passed after notification by the Registrar to the parties of a completed taxation or provisional taxation under this rule; and

              (b)   no party has objected to the taxation or provisional taxation;

the Registrar, after having regard to the liability of any party to pay the costs of the taxation under this Rule, must:

              (c)   determine how the amount paid to the Registrar as security for the costs of taxation is to be distributed or refunded to the parties; and

             (d)   direct that payment be made out of Court accordingly.”.

23.   First Schedule

23.1   Form 6:

Omit the Form.

23.2   Form 41:

Subparagraph (c) (ii):

Omit “above place not later than the day before the first day”, substitute “above place, or at the Registry of the Court nearest to the place at which this subpoena was served, not later than 2 days before the day”.

23.3   Form 41:

Note 2:

Omit “party”, substitute “person”.

23.4   Form 43:

Note 2:

Omit the note.

24.   Second Schedule (Costs allowable in respect of work done and services performed)

24.1   Omit the Schedule, substitute:

___________

 

                                       SECOND SCHEDULE             Order 62, rule 12

 

COSTS ALLOWABLE IN RESPECT OF WORK DONE AND SERVICES PERFORMED

 

Column 1

Item

  Column 2

  Scale of costs

Column 3

       $

 

 

 

 

Instructions

 

 

 

 

1

to sue or defend or to appeal or oppose an       appeal or for any other originating proceeding  

 

 

136.00

 

 

2

to make or oppose an interlocutory application or motion to the Court of a Judge or an officer of the Court

 

 

60.00

 

 

3

for a case for opinion of counsel or for counsel to advise (including attendance on counsel with brief)

 

 

 58.00

 

 

4

for interrogatories, answers to interrogatories or an affidavit (not being a formal affidavit), admissions or a list of documents, and affidavit verifying

 

 

 

81.00

 

 

5

for brief for counsel on application in chambers or brief notes for solicitor (where necessary)       

or

in respect of items 1 to 5 of this scale, any other amounts that may be allowed by the taxing officer, having regard to all the circumstances of the case

 

 

 

74.00

SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

Column 3

       $

 

6

for brief for counsel or brief notes for solicitor (where necessary)—the fee to be allowed is to be a sum that the taxing officer thinks fit, having regard to all the circumstances of the case

 

7

for a necessary document not otherwise provided for—the fee to be allowed is to be a sum that the taxing officer thinks fit, having regard to all the circumstances of the case

 

 

 

Documents

 

 

8

any notice of appearance including copies,   filing and service by respondent

 

75.00

 

9

any application or notice of motion including fixing return day, copies to file and serve and attendance to file

    if more than 3 folios—add per folio

 

 

60.00

3.00

 

10

any simple notice or memorandum such as a notice for discovery, including copies, filing (where necessary) and service

 

 

48.00

 

11

notice to produce, notice to admit or any like notice including copies, filing (when necessary) and service

    if more than 3 folios—add per folio

 

 

 

60.00

3.00

12

a brief to counsel (including a brief to hear   judgment) and attending counsel with the   brief  

    if more than 3 folios—add per folio

  for copy documents to accompany brief—the     other charges in this scale that are     appropriate

 

 

 

52.00

5.00

 

 

 

 

                            SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

Column 3

       $

 

13

any necessary subpoena including issuing one   copy to serve and arranging for service

 

41.00

 

 

Drawing

 

 

14

any necessary document

  per folio

 

6.00

 

 

 

 

Engrossing or Typing

 

 

15

any necessary document

  per folio

 

 2.00

 

 

Copies

 

 

16

of any document, including carbon, photographic or machine made copy—per page  

except that, if allowance for 10 or more pages is claimed in respect of any document or documents, the costs to be allowed for the copies are at the discretion of the taxing officer

 

 

1.00

 

 

 

 

Perusal

 

 

 

17

of any document (when necessary) including   special letter, telegram or telex if 3 folios or   less   

or per folio

  except that, if allowance for 30 or more folios is claimed in respect of any document or documents, the costs to be allowed for perusal are at the discretion of the taxing officer

 

 

 

11.00

2.00

 

 

 


 

SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

 

18

if it is not necessary to peruse but it is necessary   to scan a document—per page

  except that, if allowance for 10 or more pages is claimed in respect of any document or documents, the costs to be allowed for scanning are at the discretion of the taxing officer

 

 

3.00

 

 

 

 

 

 

 

Examination

 

 

 

19

if it is necessary to neither peruse nor scan a   document, for example, an examination of an   appeal book:

  for examination—per half hour

       solicitor

       clerk

 

 

 

 

 

48.00

11.00

 

 

 

Letters

 

 

 

20

short letter—simple form of letter e.g. formal   acknowledgment

 

 

9.00

 

21

ordinary letter including letters between   principal and agent.

 

14.00

 

 

22

circular letter (after the first)   each                     

 

 

5.00


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

23

special letter or letter including   opinion            

or

the fee to be allowed is an amount that is   reasonable having regard to the length of the   letter, the questions involved and appropriate   items and charges in this scale

 

 

35.00

24

telegram, facsimile copy, or telex including   attendance to dispatch

or

the fee to be allowed is an amount that is   reasonable in the circumstances

 

 

41.00

25

receiving and filing any incoming letter

  (Postage and transmission fees may be    claimed as a disbursement properly incurred)

 

5.00

 

 

 

 

 

Service

 

 

 

26

personal service (except where service is   claimable under other items in this scale) of   any document of which personal service is   required       

or

the fee is to be an amount that is reasonable   having regard to time occupied, distance   travelled and other relevant circumstances

 

 

 

 

40.00

27

service of any document at the office of the   address for service either by delivery or by   post       

 

 

 

11.00

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

 

 

Preparation of Appeal Books

 

 

 

28

preparation of appeal books including collating all necessary material, attendances on the printer, general oversight of their preparation in cases where the taxing officer is satisfied it has been done efficiently—per hour:

       solicitor

       clerk

 

 

 

 

 

 

88.00

22.00

 

29

where appeal books are prepared in a solicitor’s office, the taxing officer may in his or her discretion allow a sum that he or she thinks just and reasonable having regard to work and labour properly performed and charges for material used. In exercising his or her discretion the taxing officer must have regard to commercial rates for copying and binding and is not obliged to apply the photographic or machine made copy costs otherwise allowable in this Schedule

 

 

 

 

Attendances

 

 

 

30

an attendance which is capable of being made by a clerk, such as at the court registry

 

22.00

 

 

31

an attendance which requires the attendance of the solicitor or managing clerk and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate)—per quarter hour:

     solicitor

     managing clerk

 

 

 

 

 

 

39.00

10.00

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

32

an attendance for which no other provision is   made in this scale

 

 

35.00

 

 

33

an attendance by telephone which does not involve the exercise of skill or legal knowledge            

 

 

8.00

 

 

34

 

an attendance on counsel:

  with brief or papers (where not otherwise     provided for)

  to appoint a conference or consultation

  if appointment made by telephone

 

 

 

 

22.00

22.00

8.00

 

35

a necessary conference or consultation with   counsel:

  if half an hour or less

  if over half an hour—for each hour or part of     an hour

 

 

 

60.00

 

88.00

 

 

36

in court or chambers or before the Registrar for   hearing without counsel:

  for each hour or part of an hour of the     hearing

  for each hour or part of an hour when likely to     be heard but not heard

  not to exceed per day

 

 

 

177.00

 

177.00

792.00

 

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

37

in court or chambers or before the Registrar for   hearing with counsel:

  for each hour or part of an hour of the     attendance during the hearing

  for each hour or part of an hour of the     attendance when likely to be heard but not     heard

  not to exceed per day

if a person other than a solicitor attends in   place of a solicitor—for each hour:

   (a)  managing clerk

         not to exceed per day

   (b)  any other clerk

          not to exceed per day

 

 

 

 

144.00

 

 

144.00

650.00

 

 

60.00

265.00

32.00

142.00

 

38

 

to hear judgment

40.00

 

39

on taxation of costs:

  if a solicitor attends—per hour or part of an    hour

  if a clerk attends—per hour or part of an    hour

 

 

88.00

 

22.00

40

if the solicitor attends at court or chambers for the hearing of an application or appeal, or on conference with counsel, at a distance of more than 50 kilometres from his or her place of business when it is neither appropriate nor proper for an agent to attend, the taxing officer may allow for each day of absence from place of business, not being a Saturday, Sunday or public holiday, an amount that the taxing officer thinks reasonable—not exceeding        

 

 

 

 

 

 

 

 

 

 

 

200.00

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

 

Column 3

       $

 

 

General Care and Conduct

 

 

41

if the case or circumstances warrant it, an allowance may be claimed under this item, in addition to any item which appears in this scale, for general care and conduct (where appropriate) including the following:

  (a)   the complexity of the matter and the difficulty and novelty of the questions raised or any of them;

  (b)   the importance of the matter to the party and the amount involved;

  (c)   the skill, labour, specialised knowledge and responsibility involved in the matter on the part of the  solicitor;

  (d)   the number and importance of the documents prepared or perused without regard to length;

  (e)   the time expended by the solicitor;

   (f)   research and consideration of questions of law and fact

 

 

 

Counsel’s Fees

 

 

42

it is proper for a solicitor to incur an amount for counsel’s fees that appears to be fair and reasonable according to the circumstances of the case and the seniority of counsel and the fees incurred may be claimed as a disbursement

 

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

Column 3

       $

 

43

where a solicitor briefs another solicitor as counsel, when it would be appropriate to brief counsel, the taxing officer may allow a sum as a counsel’s fee that the taxing officer thinks just and reasonable having regard to the practice of allowing these fees that are permitted by the Supreme Court Rules of the State or Territory concerned (Order 62, rule 35)

 

 

 

Corporations Law Short Form Bill

 

 

43A

the amount as to the costs of obtaining a winding up order up to and including entry and service of the order under section 470 of the Corporations Law and the obtaining of a certificate of taxation

additional costs are allowable for any adjournment in which costs have been reserved by the Court in accordance with item 36 or item 37, as the case may be

 

 

 

 

 

1854.00

 

Witnesses Expenses

 

 

44

witnesses called because of their professional, scientific or other special skill or knowledge—per day

 

 

104.00

to 518.00

 

45

witnesses called, other than those covered in   item 44—per day

 

60.00

to 98.00

 

46

witnesses remunerated in their occupation by   wages, salary or fees—the amount lost by   attendance at Court

 

 

 


SECOND SCHEDULE—continued

 

Column 1

Item

  Column 2

  Scale of costs

Column 3

       $

 

47

if the witness resides more than 50 kilometres from the Court—a sum that the taxing officer thinks reasonable for the actual cost of conveyance, together with a reasonable amount for sustenance or maintenance

 

 

 

Disbursements

 

 

48

all court fees and other fees and payments to the extent to which they have been properly and reasonably incurred and paid must be allowed

 

 

49

if a solicitor attends at court or chambers, or on conference with counsel, in the circumstances outlined in item 40, the taxing officer may allow reasonable travelling expenses to the extent to which they have been reasonably incurred and paid

 

 

 

Miscellaneous

 

 

50

 

matters not included in this scale may be allowed to the extent they are covered by Order 62, rule 21

bills of costs prepared in accordance with Order 62, rule 40 must identify costs and disbursements claimed with an item number

a folio comprises 72 words; there are generally    3 folios to each page

 

_______________________________________________________

 

25.    Transitional

25.1   In spite of subrule 24.1, the Schedule omitted from the Federal Court Rules by subrule 24.1 continues to apply in relation to all work done and services performed before the commencement of these Rules.

 

NOTES

1.   Notified in the Commonwealth of Australia Gazette on  1 August 1995.

2.   Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 Nos. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 No. 40, 45, 137. 225 and 290; 1994 Nos. 63, 130, 224, 279, 332 and 463; 1995 Nos. 31 and 46.