Schedule 1 Amendments
(rule 3)
[1] Order 7, subrule 6 (1)
omit
in which the originating process is filed
insert
in the proper place
[2] Order 7, subrule 6 (2)
omit
in which the originating process is filed.
insert
in the proper place.
[3] Order 8, subrule 1A (2), after definition of non-convention country
insert
originating process means an application or, if a cross-claim is made against a person not previously a party to the proceeding in which it is made, the cross-claim.
[4] Order 8, paragraph 2 (1) (b)
omit
Service
insert
service
[5] Order 8, subrules 2 (2) and (2A)
substitute
(2) The Court may, by order, give leave to serve originating process outside the Commonwealth in accordance with Division 2 or 3 of this Order or, subject to subrule (2B), on such terms and conditions as it considers appropriate, if the Court is satisfied that:
(a) the Court has jurisdiction in the proceeding; and
(b) rule 1 applies to the proceeding; and
(c) the party seeking leave has a prima facie case for the relief sought by the party in the proceeding.
[6] Order 8, subrule 2 (3)
omit
or place
[7] Order 46, subrules 6 (5) and (6)
substitute
(5) Except with the leave of the Court or a Judge, a party to a proceeding or other person must not search in the Registry for, or inspect:
(a) a transcript of the proceeding; or
(b) a document filed in the proceeding to support an application for an order that a document, evidence or thing be privileged from production.
(6) A party to a proceeding or other person may copy a document in the proceeding if:
(a) the document is produced by the Court, a Judge or the Registrar for inspection by the party or other person; and
(b) the Registrar gives the party or other person permission to copy the document; and
(c) the party or other person has paid the prescribed fee.
[8] Order 78, after rule 3
insert
3A Exercise of powers by Registrars
The Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Native Title Act mentioned in Schedule 4.
[9] After Order 81
insert
Order 82 Federal Magistrates Court
Division 1 Transfer of proceedings from the Federal Magistrates Court
1 Transfer of a proceeding from the Federal Magistrates Court to the Court
(1) A sealed copy of the order of the Federal Magistrates Court transferring a proceeding to the Court must, unless the Federal Magistrates Court otherwise directs, be filed:
(a) if the order is obtained by a party — by that party; or
(b) if the order is made by the Federal Magistrates Court on its own motion — by the applicant in the proceeding.
(2) The sealed copy of the order must be filed:
(a) if the order names a District Registry — in the District Registry named in the order; and
(b) otherwise — in a District Registry in the State or Territory where the Federal Magistrates Court heard the proceeding.
2 Filing and service
(1) The Registrar must give the order a serial number as if it were an application filed in the Registry.
(2) The Registrar must attach to the order a notice in accordance with Form 169:
(a) stating the date for a directions hearing in the proceeding; and
(b) bearing a note stating that, before taking any step in the proceeding, a party (other than the applicant) must enter an appearance in the Registry unless the party has already entered an appearance in the Federal Magistrates Court.
(3) The party who files the order must serve a sealed copy of the notice with a copy of the order attached:
(a) on each other party to the proceeding in the Federal Magistrates Court; and
(b) on any other person as the Court or a Judge directs.
(4) If a party has an address for service in the Federal Magistrates Court proceeding, the notice may be served on the party by delivery to that address.
3 Conduct of a transferred proceeding
These Rules apply to a proceeding transferred from the Federal Magistrates Court as if it were a proceeding instituted in the Court.
Division 2 Transfer of proceedings to the Federal Magistrates Court
4 Definitions
In this Division:
appeal means an appeal under section 44 of the Administrative Appeals Tribunal Act 1975.
Tribunal Act means the Administrative Appeals Tribunal Act 1975.
5 Application for transfer by a party
(1) A party may apply by motion on notice:
(a) under the Act for the transfer of a proceeding to the Federal Magistrates Court; or
(b) under the Tribunal Act for the transfer of an appeal to the Federal Magistrates Court.
(2) The heading of the notice of motion must refer to the Act under which the application is made.
(3) The motion must be heard and determined by a single Judge.
6 Transfer on Court’s own motion
(1) Subject to the relevant Act, the Court or a Judge may at any time on the Court’s or the Judge’s own motion transfer a proceeding or an appeal to the Federal Magistrates Court.
(2) This rule applies whether or not there is an application under rule 5 before the Court.
7 Factors to be considered
In addition to the factors set out in subsection 32AB (6) of the Act and subsection 44AA (7) of the Tribunal Act, the Court or a Judge must, when considering whether to transfer a proceeding or an appeal to the Federal Magistrates Court, take into account the following factors:
(a) whether the proceeding or appeal is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b) whether, if the proceeding or appeal is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding or appeal is not transferred;
(c) whether the proceeding or appeal is likely to be heard and determined earlier in the Federal Magistrates Court;
(d) the wishes of the parties.
Note Subsection 32AB (6) of the Act and subsection 44AA (7) of the Tribunal Act provide that, in deciding whether a proceeding or appeal should be transferred to the Federal Magistrates Court, the Court must have regard to:
(a) any Rules of the Court made for the purposes of the transfer of proceedings; and
(b) whether proceedings in respect of an associated matter are pending in the Federal Magistrates Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
8 Proceedings transferred to the Federal Magistrates Court
On the transfer of a proceeding to the Federal Magistrates Court, the Registrar must send to the proper officer of the Federal Magistrates Court all documents filed and orders made in the proceeding.
[10] Schedule 1, after Form 168
insert
Form 169 Notice of proceeding
(Order 82, subrule 2(2))
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DISTRICT REGISTRY | No. of 20 |
| | |
On transfer from the Federal Magistrates Court
BETWEEN:
A.B.
Applicant
AND:
C.D.
Respondent
NOTICE OF PROCEEDING
To: (party) (address)
This matter has been transferred to the Federal Court of Australia by the accompanying order of the Federal Magistrates Court.
A directions hearing in this matter will be heard by the Court at the time and place specified below.
If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment may be given or an order made in your absence.
Before any attendance at that time, you must file an appearance in the Registry unless you are the applicant or you have entered an appearance in the Federal Magistrates Court.
Time and date for hearing:
Place: (address of Court)
Date of notice:
(signed, Registrar)
[11] Schedule 2
substitute
Schedule 2 Costs allowable for work done and services performed
(Order 62, rule 12)
| Item | Matter for which charge may be made | Charge ($) |
| | Instructions | |
| 1 | To sue or defend, to appeal or oppose an appeal or for any other originating proceeding | 178.00 |
| 2 | To make or oppose an interlocutory application or motion to the Court or a Judge or an officer of the Court | 79.00 |
| 3 | For a case for opinion of counsel or for counsel to advise (including attendance on counsel with brief) | 77.00 |
| 4 | For an interrogatory, answer to an interrogatory or an affidavit (except a formal affidavit), an admission or a list of documents (and affidavit verifying) | 106.00 |
| 5 | For brief for counsel on application in chambers or brief notes for solicitor (if necessary) or | 97.00 |
| | in respect of items 1 to 5 of this scale, having regard to all the circumstances of the case | any other amounts that may be allowed by the taxing officer |
| 6 | For brief for counsel or brief notes for solicitor (if necessary), having regard to all the circumstances of the case | a sum that the taxing officer thinks fit |
| 7 | For a necessary document not otherwise provided for, having regard to all the circumstances of the case | a sum that the taxing officer thinks fit |
| | Documents | |
| 8 | Any notice of appearance, including copies, filing and service by respondent | 98.00 |
| 9 | Any application or notice of motion, including fixing return day, copies to file and serve, and attendance to file | 79.00 |
| | if more than 3 folios — add for each folio | 3.00 |
| 10 | Any simple notice or memorandum such as a notice for discovery, including copies, filing (if necessary) and service | 64.00 |
| 11 | Notice to produce, notice to admit or any similar notice, including copies, filing (if necessary) and service | 79.00 |
| | if more than 3 folios — add for each folio | 3.00 |
| 12 | A brief to counsel (including a brief to hear judgment) and attending counsel with the brief | 68.00 |
| | if more than 3 folios — add for each folio | 7.00 |
| | For copy documents to accompany brief | the other charges in this scale that are appropriate |
| 13 | Any necessary subpoena, including issuing one copy to serve and arranging for service | 54.00 |
| | Drawing | |
| 14 | Any necessary document — for each folio | 8.00 |
| | Engrossing or Typing | |
| 15 | Any necessary document — for each folio | 2.00 |
| | Copies | |
| 16 | Of any document, including carbon, photographic or machine-made copy — for each page | 1.00 |
| | except if allowance for 10 or more pages is claimed in respect of any document or documents | at the discretion of the taxing officer |
| | Perusal | |
| 17 | Of any document (if necessary) including special letter, telegram or telex, up to 3 folios | 14.00 |
| | or per folio | 2.00 |
| | except that, if allowance for 30 or more folios is claimed in respect of any document or documents | at the discretion of the taxing officer |
| 18 | If it is not necessary to peruse but it is necessary to scan a document — for each page | 3.00 |
| | except that, if allowance for 10 or more pages is claimed in respect of any document or documents | at the discretion of the taxing officer |
| | Examination | |
| 19 | If it is necessary to neither peruse nor scan a document, eg an examination of an appeal book: | |
| | for examination — for each half hour | |
| | · solicitor | 64.00 |
| | · clerk | 14.00 |
| | Letters | |
| 20 | Short letter — simple form of letter,
eg formal acknowledgment | 11.00 |
| 21 | Ordinary letter, including letter between principal and agent | 20.00 |
| 22 | Circular letter (after the first) — for each letter | 7.00 |
| 23 | Special letter or letter including opinion | 43.00 or
an amount that is reasonable having regard to the length of the letter, the questions involved and appropriate items and charges in this scale |
| 24 | Telegram, facsimile copy, or telex including attendance to dispatch | 54.00 or
an amount that is reasonable in the circumstances |
| 25 | Receiving and filing any incoming letter Note Postage and transmission fees may be claimed as a disbursement properly incurred. | 7.00 |
| | Service | |
| 26 | Personal service (except if service is able to be claimed under another item of this scale) of any document of which personal service is required | 53.00 or
an amount that is reasonable, having regard to time occupied, distance travelled and other relevant circumstances |
| 27 | Service of any document at the office of the address for service, either by delivery or by post | 14.00 |
| | 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 — for each hour: | |
| | · solicitor | 115.00 |
| | · clerk | 29.00 |
| 29 | If 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 is 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 that is capable of being made by a clerk, such as at the court registry | 29.00 |
| 31 | An attendance that requires the attendance of a solicitor or managing clerk and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate) — for each quarter hour: | |
| | · solicitor | 51.00 |
| | · managing clerk | 12.00 |
| 32 | An attendance for which no other provision is made in this scale | 47.00 |
| 33 | An attendance by telephone that does not involve the exercise of skill or legal knowledge | 10.00 |
| 34 | An attendance on counsel: | |
| | · with brief or papers (if not otherwise provided for) | 30.00 |
| | · to appoint a conference or consultation | 30.00 |
| | · if appointment made by telephone | 10.00 |
| 35 | A necessary conference or consultation with counsel: | |
| | · if half an hour or less | 79.00 |
| | · if over half an hour — for each hour or part of an hour | 115.00 |
| 36 | In court or chambers or before the Registrar for hearing without counsel: | |
| | · for each hour or part of an hour of the hearing | 231.00 |
| | · for each hour or part of an hour when likely to be heard, but not heard | 231.00 |
| | · not to exceed per day | 1 036.00 |
| 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 | 188.00 |
| | · for each hour or part of an hour of the attendance when likely to be heard, but not heard | 188.00 |
| | · not to exceed per day | 851.00 |
| | If a person other than a solicitor attends in place of a solicitor: | |
| | (a) attendance by a managing clerk: | |
| | · for each hour | 79.00 |
| | · not to exceed per day | 347.00 |
| | (b) attendance by any other clerk: | |
| | · for each hour | 42.00 |
| | · not to exceed per day | 185.00 |
| 38 | To hear judgment | 53.00 |
| 39 | On taxation of costs: | |
| | · if a solicitor attends — for each hour or part of an hour | 115.00 |
| | · if a clerk attends — for each hour or part of an hour | 29.00 |
| 40 | If a 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, and it is neither appropriate nor proper for an agent to attend, the taxing officer may allow for each day of absence from the place of business (except a Saturday, Sunday or public holiday) an amount that the taxing officer thinks reasonable — not exceeding | 262.00 |
| | General Care and Conduct | |
| 41 | If the case or circumstances warrant it, an allowance may be claimed under this item, in addition to any other item that appears in this scale, for general care and conduct (if appropriate) including the following: | |
| | (a) the complexity of the matter and the difficulty and novelty of questions raised; | |
| | (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 taken 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. The fees incurred may be claimed as a disbursement | |
| 43 | If a solicitor briefs another solicitor as counsel, when it would be appropriate to brief counsel | 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 is 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 | 2 426.00 |
| | Bankruptcy Act — Short Form Bills | |
| 43B | Short form amount that may be claimed by an applicant on the making of a sequestration order | 1 555.00 |
| 43C | Short form amount that may be claimed by an applicant on the dismissal of a petition | 1 340.00 |
| | Witnesses’ Expenses | |
| 44 | Witnesses called because of their professional, scientific or other special skill or knowledge — for each day | 137.00 to 678.00 |
| 45 | Witnesses called, other than those covered in item 44 — for each day | 79.00 to 127.00 |
| 46 | Witnesses remunerated in their occupation by wages, salary or fees | the amount lost by attendance at Court |
| 47 | If a witness lives more than 50 kilometres from the Court | a sum that the taxing officer thinks reasonable for the actual cost of travel, together with a reasonable amount for meals and accommodation |
| | Disbursements | |
| 48 | All court fees and other fees and payments | to the extent to which they have been properly and reasonably incurred and paid |
| 49 | If a solicitor attends at court or chambers, or on conference with counsel, in the circumstances outlined in item 40 | 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 | |
| | Note 1 Bills of costs prepared in accordance with Order 62, rule 40 must identify costs and disbursements claimed with an item number. | |
| | Note 2 A folio comprises 72 words (there are generally 3 folios to each page). | |
[12] Schedule 3, heading
substitute
Schedule 3 Powers and functions of the Court that may be exercised by a Registrar if the Court or a Judge directs (Bankruptcy Act)
(Order 77, rule 7)
[13] Schedule 3, after item 2
insert
| 2A | paragraph 40 (1) (g) | Power to grant leave to serve a bankruptcy notice outside Australia |
[14] After Schedule 3
insert
Schedule 4 Powers and functions of the Court that may be exercised by a Registrar if the Court or a Judge directs (Native Title Act)
(Order 78, rule 3A)
| Item | Provision of Native Title Act 1993 | Description
(for information only) |
| 1 | section 64 | Power to grant leave to amend native title determination or compensation applications |
| 2 | sections 66 and 66A | Power to make orders as to person to whom notice must be given and how such notice must be given |
| 3 | section 66B | Power to make order to replace an applicant |
| 4 | section 67 | Power to make order that overlapping applications be dealt with in the same proceeding |
| 5 | section 83A | Power to request searches to be conducted |
| 6 | section 84 | Power to make orders for the joinder, dismissal, withdrawal, cessation or representation of a party |
| 7 | section 85 | Power to grant leave to a party to be represented before the Court |
| 8 | section 86B | Power to refer applications to the National Native Title Tribunal for mediation |
| 9 | section 86C | Power to make order for the cessation of mediation |
| 10 | section 86F | Power to make order adjourning a proceeding |
| 11 | section 92 | Power to prohibit disclosure of evidence |
1. These Rules amend 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, 46, 239 and 449; 1996 Nos. 29 and 308; 1997 Nos. 82, 87, 143, 174, 204, 277 and 425; 1998 Nos. 224, 297 and 323; 1999 Nos. 15, 70, 94, 194, 232, 295, 296 and 360; 2000 Nos. 53, 54, 189, 233 and 235.
2. Notified in the Commonwealth of Australia Gazette on 10 November 2000.