EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2007 No. 229

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

 

Federal Court Amendment Rules 2007 (No. 1)

 

 

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, the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:

(a)           as if a reference to a legislative instrument were a reference to a rule of court; and

(b)          as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and

(c)           subject to such further modifications or adaptations as are provided for in regulations made under section 59A of the Federal Court of Australia Act 1976.

 

The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.

 

The Judges have agreed to amend the Federal Court Rules by:

 

• inserting a new Order 20 to clarify the rules for summary disposal and stay of proceedings in light of section 31A of the Federal Court of Australia Act 1976;
• inserting a new Order 46 rule 7AA and Schedule 3 which specifically enumerates the powers that a Registrar may exercise pursuant to a direction under section 35A(1)(h) of the Federal Court of Australia Act 1976;
• replacing Order 52 rule 10A to allow a judge determining an appeal from the Federal Magistrates Court to have the same powers as the Full Court in relation to revoking or amending grants of a leave to appeal;
• amending Order 53B so that a Notice of Appeal from a decision of the Superannuation Complaints Tribunal must be filed in the registry in the State or Territory in which the applicant ordinarily resides;
• amending Order 62 rule 40B and inserting new rules 40C and 40D to provide for a short form bill of costs in migration appeals and clarifying that the rule does not limit a party’s right to make an application under Order 62 paragraph 4(2)(c) at a hearing for an immediate lump sum costs order;
• amending Form 20 to require a table of contents for any affidavit which is longer than 30 pages;
• amending Forms 55 and 55A to include a statement that orders as to costs can be given in the absence of a party;
• amending Form 57 by replacing the reference to an objection to the jurisdiction of this Court with an objection to competency of the application.

 

The Amendment Rules have been the subject of consultation with the Law Council of Australia.

 

Details of the Rules are in Attachment 1.

 

The Rules commence on the day after they are registered.

ATTACHMENT 1

 

Federal Court Amendment Rules 2007 (No. 1)

 

RULE 1            Name of rules

 

This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2007 (No. 1).

 

RULE 2            Commencement

 

This rule provides that these Rules commence on the day after they are registered.

 

RULE 3            Amendment of Federal Court Rules

 

Schedule 1 amends the Federal Court Rules.

 

SCHEDULE 1

 

[1]       Order 10, rule 4

 

Order 10 rule 4 provides for applications for summary disposal at a directions hearing. 

 

This amendment replaces rule 4 with a new rule 4.  The effect of the amendment is to include references to the new Order 20 and to section 31A of the Federal Court of Australia Act 1976 (the Act). 

 

The amendment is consequential upon the amendment to Order 20 set out in paragraph [4] below.

 

[2]       Order 15A, subrules 9 (1) and (2)

 

Order 15A rule 9 sets out the procedures for an application for discovery to identify a respondent and an application for discovery from a prospective respondent.

 

This amendment inserts the words “the Court or” before “a Judge” to make it clear that the power to make orders varying the procedures is a power of the Court.

 

[3]       Order 15A, subrule 11 (1)

 

Order 15A subrule 11(1) deals with costs and expenses for an application for discovery.

 

The effect of the amendment is to replace the reference to Order 27 rule 4A with a reference to Order 27 rule 11.

 

[4]       Order 20

 

Order 20 deals with the summary disposal of proceedings before the Court.

 

This amendment replaces Order 20 with a new Order 20 which takes into account the provisions for summary judgment under section 31A of the Act which applies to proceedings commenced on or after 1 December 2005.

 

Order 20 rule 1 defines certain expressions for the purposes of Order 20.

 

Order 20 rule 2 deals with summary judgment in relation to the whole or part of an applicant’s claim for relief in proceedings commenced before 1 December 2005.

 

Order 20 rule 3 provides that the Court may order the stay of enforcement of a summary judgment given under subsection 31A(1) of the Act where:

(a)    there is evidence that the respondent has no defence to the claim or part; or

(b)   the respondent’s defence discloses no answer to the claim or part.

 

Order 20 rule 4 provides that the Court may order the stay or dismissal of a proceeding commenced before 1 December 2005, or a claim for relief in such a proceeding, where the Court is satisfied that:

(a)    no reasonable cause of action is disclosed; or

(b)   the proceeding or claim is frivolous or vexatious; or

(c)    the proceeding or claim is an abuse of the process of the Court.

 

Order 20 rule 5 provides that the Court may order the stay or dismissal of a proceeding commenced on or after 1 December 2005, or a claim for relief in such a proceeding, where the Court is satisfied that:

(a)    the proceeding or claim is frivolous or vexatious; or

(b)   the proceeding or claim is an abuse of the process of the Court.

 

Order 20 rule 6 provides that a claim or part of a claim that is not wholly determined by judgment or dismissal and is not stayed may be continued.

 

[5]       Order 35, rule 12

 

Order 35 rule 12 provides that the Court or a Judge may direct a Registrar to exercise certain powers of the Court in relation to the dismissal of a proceeding in accordance with the terms of a written consent of the parties.

 

This amendment omits rule 12 as its provisions have been included in the new Order 46 rule 7AA and new Schedule 3 set out in paragraphs [7] and [30] below.

 

[6]       Order 37, rule 11

 

Order 37 rule 11 provides that the Court or a Judge may, for the purposes of section 35A(1)(h) of the Act, direct a Registrar to exercise the power of the Court to issue a writ of execution.

 

This amendment omits rule 11 as its provisions have, in effect, been included as item 178 in the new Schedule 3 to the Rules which is set out in paragraph [30] below.

 

[7]       Order 46, after rule 7A

 

This amendment inserts a new Order 46 rule 7AA after rule 7A.

 

The new rule 7AA prescribes the powers of the Court that the Court or a Judge may, pursuant to section 35A(1)(h) of the Act, direct a Registrar to exercise.

 

This amendment, in conjunction with the new Schedule 3, means that the powers a Registrar may exercise pursuant to a direction under section 35A(1)(h) of the Act are specifically enumerated in the Rules.

 

[8]       Order 52, rule 10A

 

Order 52 rule 10A provides that, if leave to appeal has been granted, the Full Court may revoke or vary the leave to appeal.

 

The new rule 10A provides that, if leave to appeal has been granted, the Full Court or, for an appeal from a judgment of the Federal Magistrates Court that is to be heard by a Judge, the Judge may revoke the leave to appeal (wholly or in part), or vary or impose a condition on the leave to appeal.

 

[9]       Order 52, rule 37A

 

Order 52 rule 37A provides that the Registrar may give directions as to any matter in relation to an appeal.

 

This amendment omits rule 37A.  It is consequential upon the inclusion of the new Order 46 rule 7AA and Schedule 3 set out in paragraphs [7] and [30].

 

[10]     Order 53, rule 15

 

Order 53 rule 15 provides that the Court or a Judge should give directions as to the conduct of a proceeding under the Administrative Appeals Tribunal Act 1975, and in subrule 15(3) set out the directions that could be made by the Registrar.

 

This amendment replaces rule 15 with a new rule 15.  The effect of the amendment is to omit the subrule dealing with the directions that could be made by the Registrar.  The provisions of this subrule have been included in the new Schedule 3 set out in paragraph [30].

 

[11]     Order 53, rule 17

 

Order 53 rule 17 provides that the Registrar may give directions as to any matter in relation to an appeal.

 

This amendment omits rule 17.  It is consequential upon the inclusion of the new Order 46 rule 7AA and Schedule 3 set out in paragraphs [7] and [30].

 

[12]     Order 53B

 

Order 53B deals with appeals from the Superannuation Complaints Tribunal (the Tribunal).  It provides that the provisions of Order 53 (which deals with appeals from the Administrative Appeals Tribunal) apply to appeals from the Tribunal.

 

This amendment replaces Order 53B with a new Order 53B.  The effect of the amendment is that the provisions of Order 53 will apply except that a

Notice of Appeal from a decision of the Tribunal must be filed in the registry in the State or Territory in which the applicant ordinarily resides. 

 

[13]     Order 54, rules 6 and 7

 

Order 54 rules 6 and 7 provide for summary disposal at a directions hearing of applications under the Administrative Decisions (Judicial Review) Act 1977. 

 

This amendment replaces rules 6 and 7 with new rules 6 and 7.  The effect of the amendment is to include references to the new Order 20 and to section 31A of the Act. 

 

The amendment is consequential upon the amendment to Order 20 set out in paragraph [4] above.

 

[14]     Order 54, rule 8, heading

 

This amendment inserts the heading “Use of affidavit without cross-examination of maker” for this rule. 

 

[15]     Order 54B, rules 5 and 6

 

Order 54B rules 6 and 7 provide for the summary disposal at a directions hearing of an application in relation to a migration decision under the Migration Act 1958. 

 

This amendment replaces rules 5 and 6 with new rules 5 and 6.  The effect of the amendment is to include references to the new Order 20 and to section 31A of the Act. 

 

The amendment is consequential upon the amendment to Order 20 set out in paragraph [4] above.

 

[16]     Order 62, rule 40B, heading

[17]     Order 62, subrules 40B (4) to (9)

[18]     Order 62, after rule 40B

 

These amendments establish a system for short form bills in migration appeals.

 

Order 62 rule 40B provides for short form bills in certain proceedings under the Migration Act 1958.

 

The heading to rule 40B is amended to make it clear that rule 40B applies to proceedings under the Migration Act in the Court’s original jurisdiction.

 

Order 62 subrules 40B(4) to (9), which set out the procedure for claiming costs under the rule, are omitted.  These rules are incorporated in the new Order 62 rule 40D.

 

The amendments insert new Order 62 rules 40C and 40D.

 

Rule 40C provides for a short form bill for migration cases in the Court’s appellate jurisdiction. 

 

Rule 40D sets out the procedures for claiming costs under rule 40B or rule 40C.  Subrule 40D(5) provides that rules 40B and 40C do not limit a party’s right to make an application under Order 62 paragraph 4(2)(c) at a hearing for a lump sum costs order.

 

[19]     Order 83

 

Order 83 deals with the powers under the Aboriginal Councils and Associations Act 1976 that might be exercised by a registrar.

 

This amendment omits Order 83 as the Aboriginal Councils and Associations Act has been replaced with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and the powers of a registrar are now dealt with in the new Order 46 rule 7AA and Schedule 3 set out in paragraphs [7] and [30].

 

[20]     Schedule 1, Form 20

 

This amendment replaces Form 20, the prescribed form for an affidavit.  The new Form 20 includes a requirement that a table of contents must be included if the affidavit (including any annexures) is more than 30 pages long.

 

[21]     Schedule 1, Form 55

 

Form 55 is the prescribed form for a Notice of Appeal.

 

This amendment replaces the paragraph (b) of the Notice which is used in appeals from a judgment of the Federal Magistrates Court.  The new paragraph includes a statement that orders as to costs may be made in the absence of the respondent. 

 

[22]     Schedule 1, Form 55

 

This amendment replaces “Version 3” with “Version 4” in Form 55.

 

[23]     Schedule 1, Form 55A, heading

 

Form 55 is the prescribed form for a Notice of Appeal in proceedings mentioned in Order 53, Order 53B and Order 59.

 

This amendment omits the reference in the heading of the Form to Order 53B, rule 2.  It is consequential upon the amendments to Order 53B set out in paragraph [12].

 

[24]     Schedule 1, Form 55A

 

This amendment replaces the first paragraph under the Notice to the respondent.  The new paragraph includes a statement that order as to costs may be made in the absence of the respondent.

 

[25]     Schedule 1, Form 55A

 

This amendment replaces “Version 3” with “Version 4” in Form 55A.

 

[26]     Schedule 1, Form 57

 

Form 57 is the prescribed form for the Notice of Objection to Competency that may be filed in response to an application for relief under the Administrative Decisions (Judicial Review) Act 1977 or the Judiciary Act 1903 in relation to a decision under the Migration Act 1958.

 

This amendment replaces the words “the jurisdiction of this Court to try this application” with the words “competency of this application”.  The amendment makes it clear that it is the competency of the application and not the Court’s jurisdiction which is the subject of the objection.

 

[27]     Schedule 1, Form 57

 

This amendment replaces “Version 2” with “Version 3” in Form 57.

 

[28]     Schedule 2, item 43E

 

Item 43E of the Schedule 2 deals with the costs that may be recovered pursuant to a short form bill under Order 62 rule 40B.

 

This amendment inserts the word “standard” before “migration case”.  It is consequential upon the amendments set out in paragraphs [16] to [18].

 

[29]     Schedule 2, after item 43E

 

This amendment inserts new items 43F, 43G and 43H which prescribe the amounts of lump sum fees that may be claimed in relation to certain migration appeals under Order 62 rule 40C.

 

[30]     After Schedule 2

 

This amendment inserts a new Schedule 3 which lists the powers of the Court that may be exercised by the Registrar pursuant to a direction by the Court or a Judge under section 35A(1)(h) of the Act. 

 

[31]     Schedule 4, heading

 

Schedule 4 sets out the power of this Court under the Native Title Act 1993 that may be exercised by a Registrar pursuant to a direction under section 35A(1)(h) of the Act.

 

This amendment replaces the heading of Schedule 4.  The effect of the amendment is to remove the words “and functions” and “if the Court or a judge directs” so that the heading is consistent with the heading used for the new Schedule 3.