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Federal Court Amendment Rules 2001 (No 3)

Authoritative Version
  • - F2001B00561
  • No longer in force
SR 2001 No. 322 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 07 Nov 2001
Registered 01 Jan 2005
Tabled HR 12 Feb 2002
Tabled Senate 12 Feb 2002
Gazetted 14 Nov 2001
Date of repeal 01 Aug 2011
Repealed by Federal Court Rules 2011

Federal Court Amendment Rules 2001 (No. 3)1

Statutory Rules 2001 No. 3222

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

Dated 7 November 2001

M.E.J. BLACK C.J.

B.A. BEAUMONT J.

M.R. WILCOX J.

J.E.J. SPENDER J.

p.r.a. gray j.

J.A. MILES J.

D.M. RYAN J.

R.S. FRENCH J.

M.C. LEE J.

D.G. HILL J.

M.F. O’LOUGHLIN J.

T.J. HIGGINS J.

D.P. DRUMMOND J.

A.P. WHITLAM J.

C.J.S.M. CARR J.

M.F. MOORE J.

C.M. BRANSON J.

K.E. LINDGREN J.

B.J.M. TAMBERLIN J.

R. SACKVILLE J.

S.M. KIEFEL J.

R.D. NICHOLSON J.

P.D. FINN J.

S.R. MARSHALL J.

A.M. NORTH J.

R.N. MADGWICK J.

R. MERKEL J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

R.A. FINKELSTEIN J.

J.A. DOWSETT J.

L.S. KATZ J.

P.G. HELY J.

S.C. KENNY J.

R.V. GYLES J.

R.A. CONTI J.

M.A. STONE J.

J.L.B. ALLSOP J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar


1              Name of Rules

                These Rules are the Federal Court Amendment Rules 2001 (No. 3).

2              Commencement

                These Rules commence on gazettal.

3              Amendment of Federal Court Rules

                Schedule 1 amends the Federal Court Rules.


Schedule 1        Amendments

(rule 3)

  

[1]         Order 3, subrule 6 (1)

omit

Sundays, other holidays and the day immediately after Easter Monday in each year.

insert

Sundays and other holidays.

[2]         Order 10, subrule 7 (1), at the foot

insert

Note   If a claim or cross-claim is for a debt or liquidated damages, the applicant or cross-claimant may rely on rule 8 of this Order rather than on paragraph (1) (b) of this rule.

[3]         Order 10, after rule 7

insert

8              Default judgment for debt or liquidated damages

         (1)   This rule applies if a respondent or cross-respondent against whom a claim for debt or liquidated damages is made in a proceeding fails:

                (a)    to enter an appearance; or

               (b)    to attend at any directions hearing; or

                (c)    to comply with an order of the Court requiring the respondent or cross-respondent to take a step in the proceeding; or

               (d)    to file a defence.

         (2)   The Court may, at any time in the proceeding, grant leave to the applicant or cross-claimant to enter judgment for the debt or liquidated damages against the respondent or cross-respondent if the applicant or cross-claimant files in the Registry:

                (a)    an affidavit, or affidavits, proving:

                          (i)    service of the application or cross-claim claiming judgment for the debt or liquidated damages; and

                         (ii)    the failure of the respondent or cross‑respondent to enter an appearance, attend a directions hearing, comply with an order of the Court requiring the respondent or cross-respondent to take a step in the proceeding, or file a defence; and

               (b)    an affidavit in respect of the debt or liquidated damages in accordance with Form 15A.

         (3)   If the affidavits required by subrule (2) are filed in the Registry, the Registrar must enter judgment for the debt or liquidated damages against the respondent or cross‑respondent without giving notice, or further notice, to the respondent or cross-respondent.

[4]         Order 33, rule 2

omit

[5]         Order 46, subparagraph 6 (2) (l) (ii)

omit

Registrar.

insert

Registrar;

[6]         Order 46, after paragraph 6 (2) (l)

insert

              (m)    reasons for judgment.

[7]         Order 51A, subrule 5 (1)

omit

Subject to subrule (2),

insert

Subject to subrule (2) and to any Act to the contrary,

[8]         Order 51A, subrule 5 (1)

omit

prerogative

insert

constitutional

[9]         Order 52, subrule 22 (3)

substitute

         (3)   If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross-appeal, but must:

                (a)    file a notice of the respondent’s contention and serve a copy of the notice on the appellant; and

               (b)    give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant’s draft index of appeal papers; and

                (c)    at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers.

[10]      Order 54, after rule 2

insert

2A           Extension of time

         (1)   An application under paragraph 11 (1) (c) of the Administrative Decisions (Judicial Review) Act 1977 for an extension of the time in which to lodge an application for an order of review must:

                (a)    be accompanied by a proposed application for the order of review in accordance with Form 56; or

               (b)    be made by lodging an application for an order of review, in accordance with Form 56, that includes a claim for the order of review and for the extension of time.

         (2)   An application for an extension of time must be supported by an affidavit stating:

                (a)    the nature of the applicant’s case; and

               (b)    the questions involved in the case; and

                (c)    the reasons why the extension of time should be granted.

[11]      Order 58, after subrule 11 (1)

insert

      (1A)   If the application relates to an innovation patent, the supporting affidavit or statement of claim must state the date when the innovation patent was certified.

[12]      Order 58, after subrule 14 (2)

insert

      (2A)   If an application under subsection 133 (1) or 138 (1) of the Patents Act relates to an innovation patent, the supporting affidavit or statement of claim must state the date when the innovation patent was certified.

[13]      Order 82, rule 7

omit everything before paragraph (a), insert

                In deciding whether to transfer a proceeding or an appeal to the Federal Magistrates Court, the Court or a Judge must take into account, in addition to the factors mentioned in subsection 32AB (6) of the Act in relation to a proceeding, or subsection 44AA (7) of the Tribunal Act in relation to an appeal, the following factors:

[14]      First Schedule, after Form 15

insert

Form 15A   Affidavit in respect of debt or liquidated damages

(Order 10, rule 8)

I, [name], of [address and occupation], *say on oath/*affirm:

1.       I am [state deponent’s relationship to the applicant(s)/cross-claimant(s), eg, ‘the applicant/cross-claimant’, ‘(name), one of the applicant(s)/cross-claimant(s)’, ‘a director of the applicant/cross-claimant’, ‘a director of (name), one of the applicant(s)/cross-claimant(s)’] named in the *application/ *cross-claim relating to the *debt/*debts/*liquidated damages owed by [name of respondent/cross-respondent].

2.       [If the deponent is not the applicant/cross-claimant, state the facts entitling the deponent to make the affidavit, eg ‘I am authorised by the applicant(s)/cross-claimant(s) to make this affidavit on its/their behalf].

3.       [State the source of the deponent’s knowledge of the matters stated in the affidavit in relation to the debt/each of the debts/liquidated damages, eg ‘I am the person who, on behalf of the applicant(s)/cross-claimant(s), had the dealings with the respondent/cross-respondent that gave rise to the debt/debts/liquidated damages’, ‘I have inspected the business records of the applicant(s)/cross-claimant(s) in relation to the respondent’s/cross-respondent’s account with the applicant(s)/cross-claimant(s)’].

4.       *The debt/*debts/*liquidated damages of $[amount] mentioned in the *application/*cross-claim, *remains/*remain *fully/*to the extent of $[amount] due and payable by the respondent/cross‑respondent.

*Sworn/*affirmed at: [place of swearing or affirmation] on [date]

[Signature of deponent]

Before me:

[Signature and designation of

person before whom deponent

swears or affirms affidavit]

*   Omit if not applicable

Version 1

[15]      First Schedule, Form 29

substitute

Form 29      Notice of discontinuance

(Order 22, rule 2)

The applicant *discontinues the proceeding/*discontinues the proceeding in respect of claim numbers [numbers] of the application.

(Complete if consent has been obtained)

*The discontinuance is by consent.

(Complete if consent on terms has been obtained)

*The discontinuance is by consent on the following terms [specify in numbered paragraphs the terms of the consent].

(Complete if leave of the Court has been obtained)

*The discontinuance is in accordance with the leave of the Court granted on [date].

Notes in relation to costs

Note 1   Under subrule 3 (1) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court and without the consent of the other party or parties, is liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.

Note 2   Under subrule 3 (2) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court but with the consent of the other party or parties, is, unless the terms of the consent otherwise provide, liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.

Date:

[Signature of applicant or applicant’s solicitor]

*Date:

*[Signature of consenting respondent or respondent’s solicitor]

(If the discontinuance is by consent, each party, or the party’s solicitor, must sign the notice of discontinuance.)

*   Omit if not applicable

Version 2

[16]      Schedule 2

substitute

Schedule 2        Scale of costs 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

185.00

2

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

82.00

3

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

80.00

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)

110.00

5

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

or

101.00

 

in respect of items 1 to 5 of this scale, having regard to all the circumstances of the case

any other amounts that the taxing officer considers appropriate

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 considers appropriate

7

For a necessary document not otherwise provided for, having regard to all the circumstances of the case

a sum that the taxing officer considers appropriate

 

Documents

 

8

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

102.00

9

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

82.00

 

if more than 3 folios — add for each folio

6.00

10

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

66.00

11

Notice to produce, notice to admit or any similar notice, including copies, filing (if necessary) and service

82.00

 

if more than 3 folios — add for each folio

6.00

12

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

71.00

 

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

56.00

 

Drawing

 

14

Any necessary document — for each folio

8.00

 

Engrossing or Typing

 

15

Any necessary document — for each folio

4.00

 

Copies

 

16

Of any document, including carbon, photographic or machine-made copy — for each page

2.00

 

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

15.00

 

or per folio

4.00

 

except 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

6.00

 

except if allowance for 10 or more pages is claimed in respect of any document or documents

at the discretion of the taxing officer

 

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

66.00

 

·         clerk

15.00

 

Letters

 

20

Short letter — simple form of letter,
eg formal acknowledgment

11.00

21

Ordinary letter, including letter between principal and agent

21.00

22

Circular letter (after the first) — for each letter

7.00

23

Special letter or letter including opinion

45.00 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

56.00 or
an amount that is reasonable in the circumstances

25

Receiving and filing any incoming letter

Note   Postage and transmission expenses 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

55.00 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

15.00

 

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

119.00

 

·         clerk

30.00

29

If appeal books are prepared in a solicitor’s office, a sum that the taxing officer considers 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 scale

 

 

Attendances

 

30

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

30.00

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

53.00

 

·         managing clerk

12.00

32

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

49.00

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)

31.00

 

·         to appoint a conference or consultation

31.00

 

·         if appointment made by telephone

10.00

35

A necessary conference or consultation with counsel:

 

 

·         if half an hour or less

82.00

 

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

119.00

36

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

 

 

·         for each hour or part of an hour of the hearing

240.00

 

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

240.00

 

·         not to exceed per day

1 076.00

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

195.00

 

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

195.00

 

·         not to exceed per day

884.00

 

If a person other than a solicitor attends in place of a solicitor:

 

 

(a)    attendance by a managing clerk:

 

 

·         for each hour

82.00

 

·         not to exceed per day

360.00

 

(b)   attendance by any other clerk:

 

 

·         for each hour

44.00

 

·         not to exceed per day

192.00

38

To hear judgment

55.00

39

On taxation of costs:

 

 

·         if a solicitor attends — for each hour or part of an hour

119.00

 

·         if a clerk attends — for each hour or part of an hour

30.00

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 considers reasonable — not exceeding

272.00

 

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 considers 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 Act 2001 — 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 Act 2001 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

2 521.00

 

Bankruptcy Act 1966 — Short Form Bills

 

43B

Short form amount that may be claimed by an applicant on the making of a sequestration order

1 616.00

43C

Short form amount that may be claimed by an applicant on the dismissal of a petition

1 392.00

 

Witnesses’ Expenses

 

44

Witnesses called because of their professional, scientific or other special skill or knowledge — for each day

142.00 to 704.00

45

Witnesses called, other than those covered in item 44 — for each day

82.00 to 132.00

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 considers 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).

 

Notes

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 Nos. 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, 235, 300 and 372; 2001 Nos. 20 and 201.

2.       Notified in the Commonwealth of Australia Gazette on 14 November 2001.