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SLI 2008 No. 215 Rules/Court & Tribunal Rules as made
These Rules amend the Federal Magistrates Court Rules 2001.
Administered by: Attorney-General's
Registered 29 Oct 2008
Tabling HistoryDate
Tabled HR10-Nov-2008
Tabled Senate10-Nov-2008
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Federal Magistrates Court Amendment Rules 2008 (No. 2)1

Select Legislative Instrument 2008 No. 215

We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.

Dated 22 October 2008

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Federal Magistrates

JOHN MATHIESON
Chief Executive Officer


Do not delete : Part Placeholder

Do not delete : Division Placeholder

1              Name of Rules

                These Rules are the Federal Magistrates Court Amendment Rules 2008 (No. 2).

2              Commencement

                These Rules commence on the day after they are registered.

3              Amendment of Federal Magistrates Court Rules 2001

                Schedule 1 amends the Federal Magistrates Court Rules 2001.


Schedule 1        Amendments

(rule 3)

  

[1]           Paragraph 2.01 (1) (e)

substitute

                (e)    be written in English; and

[2]           After subrule 2.01 (1)

insert

      (1A)   However, unless the Court otherwise orders, strict compliance with subrule (1) is not required if the document:

                (a)    is readable, including when it is bound; and

               (b)    can be easily scanned and photocopied.

 

[3]           Rule 2.03

omit

A document

insert

         (1)   A document

[4]           Rule 2.03

insert

         (2)   If a document (other than an affidavit) is required by these Rules to be signed, that requirement is met if a fax of the signature is attached to the document by electronic means, by, or at the direction of, the signatory.

[5]           Paragraph 2.05 (1) (c)

substitute

                (c)    fax or electronic communication, as required by this Division.

[6]           Subrule 2.05 (1), note

omit

of a fee

insert

of a fee, or payment of the fee on invoice,

[7]           After subrule 2.05 (1)

insert

      (1A)   However, a document may not be filed by electronic communication if the document (including an attachment) is over 100 pages long.

[8]           Subrule 2.05 (2)

omit

stamp.

insert

stamp, as required by Division 2.4.

[9]           After subrule 2.05 (2), including the note

insert

         (3)   However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:

                (a)    if the whole document is received by 4.30 pm on a day the Registry is open for business — on that day; and

               (b)    in any other case — on the next day the Registry is open for business.

Note   Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.

[10]         Rule 2.07

substitute

2.07        Filing by fax

         (1)   An authorised Registrar must approve at least 1 fax number for each Registry for receiving documents.

         (2)   A document sent to a Registry by fax must be:

                (a)    sent to an approved fax number for the Registry; and

               (b)    accompanied by a cover sheet stating:

                          (i)    the sender’s name, postal address, telephone number, fax number and any document exchange number; and

                         (ii)    the number of pages sent; and

                         (iii)    the action sought in relation to the document.

         (3)   If the document is in an existing proceeding, it must be sent to an approved fax number for the Registry that is the appropriate place for the proceeding.

         (4)   If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:

                (a)    make 1 copy of the document; and

               (b)    if the sender asks that the document be held for collection — hold it for collection for 7 days; and

                (c)    if the sender does not ask for the document to be held for collection, or having asked does not collect the document within 7 days — return the document by sending it:

                          (i)    by fax to the fax number stated on the cover sheet; or

                         (ii)    if no fax number is stated, to the postal address stated on the cover sheet.

         (5)   The sender of a document to a Registry by fax must:

                (a)    keep the original document and the transmission report evidencing successful transmission; and

               (b)    produce the original document or the transmission report as directed by the Court.

         (6)   If the Court directs that the original document be produced, the first page of the document must be endorsed with:

                (a)    a statement that the document is the original of a document sent by fax; and

               (b)    the day that the document was sent by fax.

2.07A      Filing by electronic communication

         (1)   The authorised Registrar must approve the formats for electronic versions of documents that must be accepted by a Registry.

         (2)   A document sent to a Registry by electronic communication must:

                (a)    be sent by using:

                          (i)    the Court’s Internet home page at http://www.fmc.gov.au; or

                         (ii)    the Commonwealth Courts Portal at http://www.comcourts.gov.au; and

               (b)    be in an electronic format approved for the Registry; and

                (c)    if possible, be in a form that complies with rule 2.04; and

               (d)    be able to be printed with the content and in the form created.

         (3)   An affidavit may be filed by electronic communication only by sending an image of the affidavit as required by subrule (2).

         (4)   If the document is in an existing proceeding, it must be sent to the Registry that is the appropriate place for the proceeding by using:

                (a)    the Court’s Internet home page at http://www.fmc.gov.au; or

               (b)    the Commonwealth Courts Portal at http://www.comcourts.gov.au.

2.07B     Other requirements for filing by electronic communication

         (1)   If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:

                (a)    for a document that, under these Rules, must be endorsed with a date for hearing — insert a notice of filing and hearing as the first page of the document; and

               (b)    for any other document — insert a notice of filing as the first page of the document; and

                (c)    make 1 copy of the document (including the notice mentioned in paragraph (a) or (b) (whichever applies)); and

               (d)    return the document by sending it:

                          (i)    by electronic communication to the email address stated on the cover sheet; or

                         (ii)    if no email address is stated, to the postal address stated on the cover sheet.

         (2)   However, paragraphs (1) (a) and (b) do not apply to a subpoena.

         (3)   The sender of a document to a Registry by electronic communication must:

                (a)    keep a paper copy of the document; and

               (b)    produce the paper copy of the document as directed by the Court.

         (4)   If the Court directs that the paper copy of the document be produced, the first page must be endorsed with:

                (a)    a statement that the paper copy is a true copy of the document sent by electronic communication; and

               (b)    the day that the document was sent by electronic communication.

         (5)   If a document has been filed electronically and a notice has been inserted as the first page of the document as required by paragraph (1) (a) or (b), the notice is treated as part of the document for the Act and these Rules (including any rules about service of the document).

[11]         Rule 2.08

substitute

2.08        Searching records

         (1)   Subject to any order of the Court, the following persons may search the records of the Court relating to a family law or child support proceeding, or inspect or copy a document forming part of the records:

                (a)    the Attorney‑General;

               (b)    a party, a lawyer for a party or an independent children’s lawyer in the proceeding;

                (c)    a person who demonstrates a proper interest in searching the records or inspecting the document and has been granted leave of the Court or a Registrar to do so.

         (2)   Rule 6 of Order 46 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.

[12]         After Division 2.3

insert

Division 2.4           Seal and stamp of Court

2.09        Use of seal of Court

                The seal of the Court must be attached to:

                (a)    Rules of Court; and

               (b)                any other documents the Court or a Federal Magistrate directs or the law requires.

Note 1   The seal must be attached to all writs, commissions and process issued from the Court: see subsection 49 (1) of the Act. It may also be used to enter an order: see rule 16.08.

Note 2   The design of the seal is decided by the Minister and the seal is kept in custody as directed by the Chief Federal Magistrate: see section 47 of the Act.

2.10        Stamp of Court

         (1)   The Registrar must keep in his or her custody a stamp designed, as nearly as practicable, to be the same as the design of the seal of the Court.

         (2)   The stamp of the Court must be attached to all process filed in the Court and orders entered and to other documents as directed by the Court.

Note   Documents marked with the stamp are as valid and effectual as if sealed with the seal of the Court: see subsection 48 (2) of the Act.

2.11        Methods of attaching the seal or stamp

                The seal or stamp of the Court may be attached to a document:

                (a)    by hand; or

               (b)    by electronic means; or

                (c)    in another way.

[13]         Paragraph 6.01 (3) (c)

substitute

                (c)    may include a fax number or an email address for the party.

[14]         Paragraphs 8.02 (4) (e) and (f)

substitute

                (e)    the wishes of the parties.

[15]         Subrule 9.03 (1)

omit

withdrawal

insert

withdrawal, in accordance with the approved form,

[16]         Subrule 9.03 (3)

substitute

         (3)   A notice of intention to withdraw must be in accordance with the approved form.

[17]         Division 13.1, heading

substitute

Division 13.1         Discontinuance

[18]         Rules 13.03, 13.03A, 13.03B and 13.03C

substitute

Division 13.1A      Order or judgment on default

13.03      Definitions

                In this Division:

applicant includes a cross‑claimant.

claim includes a cross‑claim.

respondent includes a cross‑respondent.

13.03A   When a party is in default

         (1)   For rule 13.03B, an applicant is in default if the applicant fails to:

                (a)    comply with an order of the Court in the proceeding; or

               (b)    file and serve a document required under these Rules; or

                (c)    produce a document as required by Part 14; or

               (d)    do any act required to be done by these Rules; or

                (e)    prosecute the proceeding with due diligence.

         (2)   For rule 13.03B, a respondent is in default if the respondent:

                (a)    has not satisfied the applicant’s claim; and

               (b)    fails to:

                          (i)    give an address for service before the time for the respondent to give an address has expired; or

                         (ii)    file a response before the time for the respondent to file a response has expired; or

                         (iii)    comply with an order of the Court in the proceeding; or

                        (iv)    file and serve a document required under these Rules; or

                         (v)    produce a document as required by Part 14; or

                        (vi)    do any act required to be done by these Rules; or

                        (vii)    defend the proceeding with due diligence.

13.03B   Orders on default

         (1)   If an applicant is in default, the Court may order that:

                (a)    the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

               (b)    a step in the proceeding be taken within the time limited in the order; or

                (c)    if the applicant does not take a step in the time mentioned in paragraph (b) — the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

         (2)   If a respondent is in default, the Court may:

                (a)    order that a step in the proceeding be taken within the time limited in the order; or

               (b)    if the claim against the respondent is for a debt or liquidated damages — grant leave to the applicant to enter judgment against the respondent for:

                          (i)    the debt or liquidated damages; and

                         (ii)    if appropriate — costs; or

                (c)    if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — give judgment against the respondent for the relief that:

                          (i)    the applicant appears entitled to on the statement of claim; and

                         (ii)    the Court is satisfied it has power to grant; or

               (d)    give judgment or make any other order against the respondent; or

                (e)    make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

         (3)   The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2) (b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:

                (a)    an affidavit, or affidavits, proving:

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

                         (ii)    that the respondent is in default; and

               (b)    an affidavit for the debt or liquidated damages in accordance with the approved form.

         (4)   Unless the Court otherwise orders, if a respondent to a cross‑claim is in default:

                (a)    a judgment or decision on any claim, question or issue in the proceeding on the originating process; or

               (b)    any other cross‑claim in the proceeding;

                is binding as between the cross‑claimant and the respondent to the cross‑claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross‑claim.

         (5)   In subrule (4):

                decision includes a decision by consent.

                judgment includes a judgment by default or by consent.

         (6)   The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

13.03C   Default of appearance of a party

         (1)   If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

                (a)    adjourn the hearing to a specific date or generally;

               (b)    order that there is not to be any hearing, unless:

                          (i)    the proceeding is again set down for hearing; or

                         (ii)    any other steps that the Court directs are taken;

                (c)    if the absent party is an applicant — dismiss the application;

               (d)    if the absent party is a party who has made an interlocutory application or a cross‑claim — dismiss the interlocutory application or cross‑claim;

                (e)    proceed with the hearing generally or in relation to any claim for relief in the proceeding.

         (2)   If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

13.03D   Court’s powers in relation to contempt etc not affected

                Nothing in rule 13.03A, 13.03B or 13.03C is intended to limit the Court’s powers in relation to contempt or sanctions for failure to comply with an order.

[19]         Subrule 13.11 (2)

substitute

         (2)   An order under subrule (1) may be made:

                (a)    on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings; or

               (b)    on the application of a person who has sufficient interest in the matter; or

                (c)    on the Court’s own motion; or

               (d)    on the application of the Attorney‑General of the Commonwealth or of a State or Territory; or

                (e)    on the application of the Registrar.

[20]         Rule 15.27, heading

substitute

15.27      Affidavit of illiterate or vision impaired person etc

[21]         Subrule 15.27 (1)

omit

illiterate, blind, or

insert

unable to read, or is

[22]         After subrule 15.27 (1)

insert

      (1A)   Subrule (1) does not apply if the person making the affidavit has read the affidavit using:

                (a)    a computer with a screen reader, text‑to‑speech software or a braille display; or

               (b)    other technology for the vision impaired.

[23]         Rule 20.00A

substitute

20.00A   Delegation of powers to Registrars

                For subsection 103 (1) of the Act, each power of the Court mentioned in an item of the following table is delegated to each Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Federal Magistrate for the exercise of the power.

Item

Legislative provision

Description of power (for information only)

 

Act

 

1

section 52

To order, at any stage, a change of venue

2

subsection 102 (2)

All of the following:      

   (a)  to dispense with the service of any process of the Court

   (b)  to make orders in relation to substituted service

   (c)  to make orders in relation to discovery, inspection and production of documents

   (d)  to make orders in relation to interrogatories

   (e)  to make an order adjourning the hearing of proceedings

   (f)  to make an order as to costs

   (g)  to make an order about security for costs

   (h)  to make an order exempting a party to proceedings from compliance with a provision of these Rules

    (i)  to exercise a power of the Court prescribed by these Rules

    (j)  to direct a party in family law or child support proceedings to answer particular questions

   (k)  to make orders under the following provisions of the Family Law Act:

         (i)   sections 11F and 11G

        (ii)   sections 13C and 13D

       (iii)   subsection 65LA (1)

       (iv)   paragraph 70NEB (1) (a)

(ka)  to direct a family consultant to give a report under section 62G of the Family Law Act

    (l)  in family law or child support proceedings — to make:

         (i)   an order under section 66Q, 67E or 77 of the Family Law Act or

        (ii)   an order for the payment of maintenance pending the disposal of the proceedings

 

 

  (m)  to make an order the terms of which have been agreed upon by all the parties to the proceedings

   (n)  to make orders for the enforcement of maintenance orders under the Family Law Act

   (o)  to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act

 

Family Law Act

 

3

section 13B

To adjourn proceedings and advise parties to attend family counselling

4

sections 13E and 13F

To refer parties to arbitration with their consent and make procedural orders to assist arbitration

5

subsection 44 (1C)

To give leave for an application for a divorce order to be filed within 2 years after the date of marriage

6

subsection 45 (2)

To transfer a case to another court

7

section 48

To make a divorce order in undefended proceedings

8

subsection 55 (2)

To extend or reduce the time for a divorce order to take effect

9

section 55A

To make a declaration about arrangements for children after a divorce

10

section 57

To rescind a divorce order where the parties have become reconciled

11

subsection 60I (9)

To decide if subsection 60I (7) applies to an application for a Part VII order about a child

12

subsection 60I (10)

To order that a person attend family dispute resolution

13

subsection 60J (2)

To decide if subsection 60J (1) applies to an application for a Part VII order about a child because of a risk of child abuse or family violence

14

subsection 60K (2)

To make procedural orders for allegations of child abuse or family violence

15

subsection 63E (3)

To register a revocation agreement

16

subsection 67M (2)

To make a location order

17

subsection 67N (2)

To make a Commonwealth information order

18

section 68L

To make an order that a child’s interests are to be independently represented

19

section 69ZW

To make an order in child‑related proceedings requesting a State or Territory agency to provide documents or information

20

subsection 79 (1)

To make an order if satisfied, for paragraph 79 (9) (c), that it is not practicable to require parties to attend a conference

21

subsection 91B (1)

To request that a child welfare officer intervene in a case

22

subsection 92 (1)

To make an order entitling a person to intervene in a case

23

subsection 97 (1A)

To hear proceedings sitting in chambers

24

subsection 97 (2)

To make an order about specified persons being present in Court

25

section 98A

To make an order approving an undefended application for divorce without the parties being present

26

section 101

To protect a witness in a case

27

section 106A

To appoint a person to execute a deed or instrument

28

subsection 114 (3)

To grant an injunction

 

Family Law Regulations

 

29

subregulation 4 (1)

To make an order about practice and procedure in particular circumstances

30

regulation 5

To direct proceeding is void for non‑compliance with the Regulations, Rules or procedures

[24]         Dictionary, after definition of discovery

insert

electronic communication means a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, including an email or an email attachment.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.