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Federal Court Amendment Rules 2004 (No. 5)

Authoritative Version
  • - F2005B00048
  • No longer in force
SR 2004 No. 407 Rules/Court & Tribunal Rules as made
Amends the Federal Court Rules
Administered by: Attorney-General's
Registered 10 Jan 2005
Tabling HistoryDate
Tabled HR08-Feb-2005
Tabled Senate08-Feb-2005
Gazetted 23 Dec 2004
Date of repeal 01 Aug 2011
Repealed by Federal Court Rules 2011

EXPLANATORY STATEMENT

 

 

Statutory Rules 2004 No. 407

 

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

 

Federal Court Amendment Rules 2004 (No. 5)

 

 

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

 

Under subsection 59 (4) of the Federal Court of Australia Act 1976, 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 references 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 - Name of rules

 

This rule provides that the rules are the Federal Court Amendment Rules 2004 (No. 5).

 

RULE 2 - Commencement

 

This rule provides that these Rules commence on gazettal.

 

RULE 3 - Amendment of Federal Court Rules

 

This rule provides that the Federal Court Rules are amended as set out in Schedule 1.

 

 

 

 


SCHEDULE 1

 

Interpretation

 

[1]        Order 1, rule 4, after definition of Judge

 

This amendment inserts a definition of ‘legal practitioner’.

 

Notice to appear

 

[2]        Order 4, paragraph 5 (a)

 

This amendment replaces Order 4 paragraph 5 (a) with a new paragraph 5 (a). The effect of the amendment is to replace the reference to a respondent’s counsel or solicitor with a reference to a legal practitioner representing the respondent.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Address for service

 

[3]        Order 7, subrules 6 (1) and (2)

 

This amendment replaces Order 7 subrules 6 (1) and (2) with new subrules 6 (1) and (2).

 

Subrule 6 (1) provides that, unless the Court or a Judge otherwise orders, an address for service for a person must be the address of a place within Australia at which documents in the proceeding may, during ordinary business hours, be left for the person and to which documents in the proceeding may be posted to the person.

 

Subrule 6 (2) provides that, if a person is represented by a solicitor, the address for service for the person must be the address of the solicitor or of the solicitor’s agent.

 

The amendments remove the need for a party’s address for service to be the address of a place within the District for the Registry in which the proceeding was commenced or to which the proceeding was transferred.

 

Pleading prepared by legal practitioner

 

[4]        Order 11, rule 1B, heading

 

This amendment replaces the heading for Order 11 rule 1B with a new heading.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

[5]        Order 11, subrule 1B (1)

 

This amendment replaces Order 11 subrule 1B (1) with a new subrule 1B (1). The effect of the amendment is to replace each reference to a legal representative with a reference to a legal practitioner.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Certificate of compliance – Form 20A

 

[6]        Order 14, subrule 5A (1)

 

This amendment replaces Order 14 subrule 5A (1) with a new subrule 5A (1). At present, the subrule provides that an affidavit prepared by a party’s legal representative must, when filed, be accompanied by a certificate of compliance in accordance with Form 20A completed by the legal representative.

 

The new subrule 5A (1) provides, inter alia, that the certificate of compliance must only be completed by a solicitor who, according to the Court file for a proceeding, acts for the party on whose behalf the affidavit is filed. The certificate of compliance need not be completed by a barrister acting on behalf of a party.

 

Discovery on notice

 

[7]        Order 15, paragraphs 2 (3) (d) and (e)

 

This amendment omits Order 15 paragraph 2 (3) (e).

 

Conduct of examination

 

[8]        Order 24, subrule 5 (1)

 

This amendment replaces the words ‘each party, his counsel and solicitor’ in Order 24 subrule 5 (1) with the words ‘each party and any legal practitioner representing the party’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Compliance with subpoena

 

[9]        Order 27, paragraph 6 (4) (b)

 

Order 27 subrule 6 (4) deals with the ways in which an addressee to a subpoena to produce a document or thing may comply with the subpoena. Paragraph 6 (4) (b) allows the addressee to provide the document or thing to the address specified for that purpose in the subpoena. At present, only one address may be specified for this purpose.

 

This amendment replaces paragraph 6 (4) (b) with a new paragraph 6 (4) (b) which provides, inter alia, that the addressee may comply with a subpoena to produce by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, or, if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.

 

Consent orders by filing in a registry

 

[10]      Order 35, subrule 10 (1)

 

This amendment replaces the words ‘their representatives on the record,’ in Order 35 subrule 10 (1) with the words ‘the legal practitioners on the record as representing the parties,’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Consent orders

 

[11]      Order 35, subrule 10A (1)

 

This amendment replaces the words ‘their representatives on the record,’ in Order 35 subrule 10A (1) with the words ‘of the legal practitioners on the record as representing the parties,’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Exercise of powers by registrars

 

[12]      Order 35, paragraph 12 (a)

 

This amendment replaces the words ‘their representatives on the record;’ in Order 35 paragraph 12 (a) with the words ‘the legal practitioners on the record as representing the parties;’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

[13]      Order 35, paragraph 12 (b)

 

This amendment replaces the words ‘their representatives on the record.’ in Order 35 paragraph 12 (b) with the words ‘the legal practitioners on the record as representing the parties.’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Documents

 

[14]      Order 41, after subrule 2 (8)

 

Order 41 rule 2 sets out various requirements for a document prepared by a party for use in the Court.

 

This amendment inserts a new subrule 2 (9) which provides that the pages of a document must be securely fastened.

 

Signing documents – Form 4

 

[15]      Order 41, rule 6

 

This amendment replaces Order 41 rule 6. The effect of the amendment is to replace the reference to a solicitor with a reference to a legal practitioner.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Signature of legal practitioner

 

[16]      Order 45, rule 9

 

This amendment replaces Order 45 rule 9 with a new rule 9.

 

The new rule 9 clarifies who may sign a document that is required or permitted to be signed by a legal practitioner.

 

Subrule 9 (1) provides that, if a signature by a legal practitioner is required or permitted for the purpose of a proceeding, it is the signature of the legal practitioner with primary conduct of the matter that is required or permitted.

 

Subrule 9 (2) provides that, for this rule, a barrister is not the legal practitioner with primary conduct of the matter if the barrister is instructed by a solicitor.

 

Subrule 9 (3) provides that, if the legal practitioner with primary conduct of the matter is a solicitor, any of the following persons may sign for the legal practitioner:

·                a partner of the legal practitioner;

·                a solicitor who is an agent of the legal practitioner for the purpose of the proceeding;

·                a partner of the agent;

·                a solicitor employed by the legal practitioner or by the agent;

·                a solicitor employed by the legal practitioner’s employer.

           

Subrule 9 (4) provides that a signature made under subrule 9 (3) must be accompanied by a statement of the capacity in which the signature is made.

 

Review of a Registrar’s exercise of power

 

[17]      Order 46, rule 7B

 

This amendment replaces Order 46 rule 7B, which deals with the review of the Registrar’s exercise of a power of the Court, with a new rule 7B. The new rule 7B clarifies the procedure for seeking a review.

 

Subrule 7B (1) provides that, if the Registrar exercises a power of the Court under subsection 35A (1) of the Act, the Registrar must, if it is reasonably practicable to do so, inform the parties of their right to make an application for review of the exercise of the power under subsection 35A (5) of the Act.

 

Subrule 7B (2) provides that an application for review may be made:

·                orally to the Registrar at the time that the power is exercised; or

·                by motion on notice within 21 days after the day on which the power was exercised.

 

Subrule 7B (3) provides that, for the purposes of rule 7B, ‘Registrar’ has the meaning given by subsection 35A (8) of the Act.

 

Form and filing of notice of appeal — Form 55

 

[18]      Order 52, rule 12

 

This amendment replaces Order 52 rule 12 with a new rule 12.

 

Subrule 12 (1) provides that an appeal is instituted by filing a notice of appeal in accordance with Form 55.

 

Subrule 12 (2) provides that a notice of appeal must be filed in an appropriate Registry.

 

Subrule 12 (3) provides that, for the purposes of rule 12, ‘appropriate Registry’ means:

·                if the appeal is from a judgment of a Court of a State or Territory — the District Registry in that State or Territory; or

·                if the appeal is from a single Judge of the Court — the Registry at the proper place; or

·                if the appeal if from a judgment of the Federal Magistrates Court — the District Registry in the State or Territory where the judgment was delivered; or

·                in any other case — the Principal Registry or an appropriate District Registry; or

·                a Registry that, before or after the filing of any document in the appeal, the Court or a Judge orders is an appropriate Registry.

 

Appointment to settle

 

[19]      Order 52, rule 24

 

This amendment replaces Order 52 rule 24 with new rule 24 and inserts a new rule 24A. The effect of the amendment is to:

·                dispense with the requirement for an appellant in an appeal from a judgment of the Federal Magistrates Court to obtain an appointment to settle the appeal book index (new subrule 24 (4)); and

·                introduce a requirement that a notice of appeal from a judgment of the Federal Magistrates Court must state a date for a directions hearing or a date for the final hearing of the appeal (new rule 24A).

 

In either case the Court or a Judge may otherwise order.

 

Administrative Appeals Act 1975 – general

 

[20]      Order 53, subrule 15 (1)

 

This amendment replaces the words ‘as is’ with the words ‘as are’ to correct a minor drafting error.

 

[21]      Order 53, paragraphs 15 (2) (g) and (h)

 

This amendment omits Order 53 paragraph 15 (2) (h).

 

The amendment is consequential to the insertion of a new subrule 15 (3) pursuant to item [22] below.

 

[22]      Order 53, after subrule 15 (2)

 

This amendment inserts a new Order 53 subrule 15 (3) which provides that, unless the Court or a Judge otherwise orders, the Registrar may:

·                do any of the things mentioned in paragraphs (2) (a), (b), (c), (d) and (g); or

·                determine any other matter for the purpose of preparing the appeal for hearing.

 

The amendment clarifies the role of the Registrar in the preparation for hearing of an appeal from a decision of the Administrative Appeals Tribunal, in the absence of any other orders by the Court or a Judge.

 

Intellectual property – interpretation

 

[23]      Order 58, subrule 1 (1), definition of Designs Act

 

The effect of this amendment is to replace the reference to the Designs Act 1906 in the definition of ‘Designs Act’ with a reference to the Designs Act 2003.

 

The amendment is consequential to the enactment of the Designs Act 2003 and the repeal of the Designs Act 1906.

 

[24]      Order 58, rules 22 and 23

 

This amendment replaces Order 58 rules 22 and 23 with new rules 22 and 23.

 

The amendment is consequential to the enactment of the Designs Act 2003 and the repeal of the Designs Act 1906.

 

Subrule 22 (1) provides that an application for an order:

·                revoking the registration of a design under section 93 of the Designs Act; or

·                for the rectification of the Register under section 120 of the Designs Act;

must include details of the grounds for revocation or rectification on which the party making the application relies.

 

Subrule 22 (2) provides that, except by leave of the Court, evidence is not admissible in proof of a ground for revocation or rectification for which details have not been given under subrule (1).

 

Rule 23 provides that an application for the grant of a compulsory licence under section 90 of the Designs Act must state the facts intended to be relied on to show that:

·                products embodying the design have not been made in Australia, to the extent that is reasonable in the circumstances of the case; and

·                the registered owner of the design has given no satisfactory reason for failing to exercise the exclusive rights in the design; and

·                the applicant has tried for a reasonable period, but without success, to obtain from the registered owner of the design an authorisation to do, on reasonable terms and conditions, any of the things mentioned in paragraphs 10 (1) (a) to (e) of the Designs Act in relation to the design.

 

Experimental proof as evidence

 

[25]      Order 58, rule 31

 

This amendment replaces Order 58 rule 31, which deals with the submission of experimental proof as evidence in a proceeding, with a new rule 31.

 

Subrule 31 (1) provides that, in a proceeding in which a party (the proponent) proposes to tender as evidence experimental proof of a fact, the proponent must apply for directions in relation to the experimental proof.

 

Subrule 31 (2) provides that the Court may make such directions in relation to the experimental proof proposed to be tendered as evidence as the Court thinks appropriate, including directions about any of the following:

·                the service on other parties of particulars of the experiment and of each fact that the proponent asserts is, will or may be proved by the experiment;

·                any persons who must be permitted to attend the conduct of the experiment;

·                the time when, and the place where, the experiment must be conducted;

·                the means by which the conduct and results of the experiment must be recorded;

·                the time by which any other party (the opponent) must notify the proponent of any grounds on which the opponent will contend that the experiment does not prove a fact that the proponent asserts is, will or may be proved by the experiment.

 

Subrule 31 (3) provides that evidence of the conduct and results of the experiment is not admissible in the proceeding except:

·                if the proponent has made an application under subrule (1) and has complied with any directions given under subrule (2); or

·                with the leave of the Court.

 

Subrule 31 (4) provides that, if a direction mentioned in paragraph (2) (e) has been made, and the opponent has not complied with the direction in relation to a ground, the opponent may not rely on the ground except with the leave of the Court.

 

Party represented by officer of the Crown

 

[26]      Order 62, rule 1A

 

This amendment replaces the words ‘a practitioner (as counsel)’ with the words ‘a legal practitioner (as counsel)’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Registrar to tax costs

 

[27]      Order 62, paragraph 8 (1) (a)

 

This amendment replaces with words ‘barristers and solicitors entitled or admitted to practise in the Court’ with the words ‘legal practitioners’.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Liability of legal practitioner

 

[28]      Order 62, subrule 9 (6)

 

This amendment omits Order 62 subrule 9 (6).

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Short form bill for migration cases

 

[29]      Order 62, paragraph 40B (6) (c)

 

This amendment replaces the word ‘party.’ with the word ‘party;’.

 

This amendment is consequential to the insertion of Order 62 paragraph 40B (6) (c) pursuant to item [30] below.

 

[30]      Order 62, after paragraph 40B (6) (c)

 

This amendment inserts a new Order 62 paragraph 40B (6) (d).

 

The effect of the amendment is to provide that, within 14 days of receiving an advice of objection to a claim for costs under Order 62 subrule 40B (5), the claimant must file a copy of an itemised account or evidence that the costs incurred by the claimant were equal to, or more than, the amount of the bill served on the other party under subrule (4).

 

Court appointed referral for legal assistance – definitions

 

[31]      Order 80, rule 2, definition of legal practitioner

 

This amendment omits the definition of ‘legal practitioner’ in Order 80 rule 2.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Amendments to Schedule 1 to the Federal Court Rules

 

[32]      Schedule 1, Form 15B

 

This amendment replaces Form 15B with a new Form 15B.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

Form 15B is also amended by replacing the words ‘Version 2’ at the end of the Form with the words ‘Version 3’. This is intended to help identify the currency of the Form.

 

[33]      Schedule 1, Form 20A

 

This amendment replaces Form 20A with a new Form 20A.

 

This amendment is consequential to amendment to Order 14 rule 5A pursuant to item [6] above.

 

Form 20A is also amended by replacing the words ‘Version 1’ at the end of the Form with the words ‘Version 2’. This is intended to help identify the currency of the Form.

 

[34]      Schedule 1, Form 41

 

This amendment replaces Form 41 with a new Form 41.

 

This amendment is consequential to the amendment of Order 27 paragraph 6 (4) (b) pursuant to item [9] above.

 

[35]      Schedule 1, Form 55

 

This amendment replaces Form 55 with a new Form 55.

 

This amendment is consequential to the amendment of Order 52 rule 24 and the insertion of Order 52 rule 24A pursuant to item [19] above.

 

Form 55 is also amended by replacing the words ‘Version 1’ at the end of the Form with the words ‘Version 2’. This is intended to help identify the currency of the Form.

 

[36]      Schedule 1, Form 167, item 12

 

This amendment replaces item 12 in Form 167 with a new item 12 which contains a reference to the Age Discrimination Act 2004.

 

This amendment is consequential to the enactment of the Age Discrimination Act 2004.

 

[37]      Schedule 1, Form 167

 

This amendment replaces the words ‘Version 3’ at the end of Form 167 with the words ‘Version 4’. This is intended to help identify the currency of the Form.

 

Amendments to Schedule 2 to the Federal Court Rules

 

[38]      Schedule 2

 

Schedule 2 sets out the costs that solicitors are allowed in respect of work done and services performed in Federal Court proceedings. The amendment replaces Schedule 2 with a new Schedule 2 and has the effect of increasing the amount for each item in the Schedule in accordance with the recommendation by the Federal Costs Advisory Committee in its Nineteenth Report into Solicitors’ Costs. This report recommended an increase of 10.2 per cent to each item in Schedule 2 as it was on 29 August 2004.

 

Further amendments to Schedule 1 to the Federal Court Rules

 

[39]      Further amendments – Schedule 1

 

This amendment replaces each reference to a legal representative, counsel or solicitor in a Form with a reference to a legal practitioner.

 

This amendment is consequential to the insertion of the definition of legal practitioner in Order 1 rule 4 pursuant to item [1] above.

 

This amendment also updates the version number at the end of each Form to help identify the currency of the Form.