Federal Register of Legislation - Australian Government

Primary content

Federal Court Amendment Rules 2009 (No. 4)

Authoritative Version
  • - F2009L04645
  • No longer in force
SLI 2009 No. 392 Rules/Court & Tribunal Rules as made
These Rules amend the Federal Court Rules.
Administered by: Attorney-General's
Registered 18 Dec 2009
Tabling HistoryDate
Tabled HR02-Feb-2010
Tabled Senate02-Feb-2010
Date of repeal 01 Aug 2011
Repealed by Federal Court Rules 2011
Table of contents.

Federal Court Amendment Rules 2009 (No. 4)1

Select Legislative Instrument 2009 No. 392

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

Dated 14 December 2009

M.E.J. BLACK C.J.

J.E.J. SPENDER J.

P.R.A. GRAY J.

D.M. RYAN J.

T.J. HIGGINS J.

M.F. MOORE J.

K.E. LINDGREN J.

P.D. FINN J.

R.A. SUNDBERG J.

S.R. MARSHALL J.

A.M. NORTH J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

R.A. FINKELSTEIN J.

J.A. DOWSETT J.

S.C. KENNY J.

M.A. STONE J.

A.C. BENNETT J.

B.T. LANDER J.

A.N. SIOPIS J.

R.F. EDMONDS J.

P.R. GRAHAM J.

A.P. GREENWOOD J.

S.D. RARES J.

B.COLLIER J.

D.A. COWDROY J.

A.J. BESANKO J.

C.N. JESSUP J.

R.R.S. TRACEY J.

J.E. MIDDLETON J.

R.J. BUCHANAN J.

J. GILMOUR J.

M.M. GORDON J.

J.A. LOGAN J.

G.A. FLICK J.

N.W. McKERRACHER J.

J.E. REEVES J.

N. PERRAM J.

J.M. JAGOT J.

L.G. FOSTER J.

M.L. BARKER J.

J.V. NICHOLAS J.

D.M. YATES J.

M. BROMBERG J.

 

 

Judges of the Federal

Court of Australia

W.G. SODEN
Registrar


1              Name of Rules

                These Rules are the Federal Court Amendment Rules 2009 (No. 4).

2              Commencement

                These Rules commence on the day after they are registered.

3              Amendment of Federal Court Rules

                Schedule 1 amends the Federal Court Rules.


Schedule 1        Amendments

(rule 3)

  

[1]           After Order 67

insert

Order 68            International Arbitration Act 1974

  

1              Interpretation

         (1)   In this Order:

International Arbitration Act means the International Arbitration Act 1974.

Model Law means the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, the English text of which is set out in Schedule 2 to the International Arbitration Act.

         (2)   Unless the contrary intention appears, expressions used in this Order have the same meaning in this Order as they have in the International Arbitration Act.

2              Application of Order 68

                Each party to a proceeding to which the International Arbitration Act applies must comply with:

                (a)    this Order; and

               (b)    any other of these Rules that are relevant and consistent with this Order.

3              Enforcement of foreign arbitration agreement (International Arbitration Act, s 7)

         (1)   An application for an order under section 7 of the International Arbitration Act to stay the whole or part of a proceeding must be made by filing a motion on notice in accordance with Form 27.

         (2)   The application must be accompanied by a copy of the arbitration agreement and an affidavit stating the material facts on which the claim for relief is based.

Note   Arbitration agreement is defined in subsection 3 (1) of the International Arbitration Act.

4              Recognition of foreign award (International Arbitration Act, s 8)

         (1)   A party seeking leave under subsection 8 (3) of the International Arbitration Act to enforce a foreign award must file an application in accordance with Form 5.

Note   Foreign award is defined in subsection 3 (1) of the International Arbitration Act.

         (2)   The application must be accompanied by:

                (a)    the documents mentioned in section 9 of the International Arbitration Act; and

               (b)    an affidavit stating:

                          (i)    the extent to which the foreign award has not been complied with at the date the application is made; and

                         (ii)    the usual or last known place of residence or business of the person against whom it is sought to enforce the foreign award or, if that is a corporation, its last known registered office.

         (3)   The application may be made without notice to any person.

5              Application for relief mentioned in article 6 of the Model Law (International Arbitration Act, s 18)

         (1)   A party seeking relief under articles 11 (3), 11 (4), 13 (3), 14, 16 (3) or 34 (3) of the Model Law must file an application in accordance with Form 5.

         (2)   The application must be accompanied by an affidavit stating the material facts on which the claim for relief is based.

6              Recognition of award (International Arbitration Act, s 35)

         (1)   A party seeking leave under subsection 35 (4) of the International Arbitration Act to enforce an award must file an application in accordance with Form 5.

Note   Award is defined in subsection 31 (1) of the International Arbitration Act.

         (2)   The application must be accompanied by an affidavit stating:

                (a)    the extent to which the award has not been complied with at the date the application is made; and

               (b)    the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if that is a corporation, its last known registered office.

         (3)   The application may be made without notice to any person.

7              Documents not in the English language

                A party to a proceeding to which this Order applies who wants to rely on a document that is not in the English language must provide a certified English translation of the document to:

                (a)    the Court; and

               (b)    any other party to the proceeding.

Note   Section 9 of the International Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which Part II of the International Arbitration Act applies.

[2]           After Order 72

insert

Order 72A          Referral by the Court to referee

  

1              Order of referral

         (1)   At any stage of a proceeding, the Court may make an order under section 54A of the Act referring any of the following matters to 1 or more referees for inquiry and report:

                (a)    a proceeding in the Court;

               (b)    1 or more questions or issues arising in a proceeding, whether of fact or law or both, and whether raised by pleadings, agreement of parties or otherwise.

         (2)   A referee, if referred a matter under section 54A of the Act, must give the referee’s opinion on the matter in a report, unless the Court otherwise orders.

         (3)   The Court may set a time, when making the referring order or after making the order, for a referee to give an opinion and, if a time has been set, the referee must provide the opinion within the set time.

2              Appointment of referees

         (1)   The Court may appoint any appropriate person as either:

                (a)    a referee; or

               (b)    a senior referee.

         (2)   The Court must appoint a person as a senior referee if it appoints more than 1 referee to conduct an inquiry into a matter referred under section 54A of the Act.

3              Two or more referees

         (1)   The decision of the senior referee is to prevail if:

                (a)    the Court appoints 2 referees; and

               (b)    the 2 referees cannot agree upon a decision to be made during an inquiry.

         (2)   If the Court appoints 3 or more referees:

                (a)    the decision of the majority is to prevail in relation to a decision to be made during an inquiry; or

               (b)    if there is no majority — the decision of the senior referee is to prevail.

4              Inquiry and report

                If the Court makes an order under section 54A of the Act, it may at any time:

                (a)    authorise a referee to inquire into, and report on, any facts relevant to the inquiry; or

               (b)    direct a referee to conduct a further inquiry into a referred matter, or a supplementary inquiry into a related matter, and provide a further report; or

                (c)    give any instruction the Court thinks fit about the conduct of the inquiry, or about the content of the report, including an instruction about the conduct of an experiment or test for the purpose of the inquiry or report.

5              Remuneration of referee

         (1)   The Court may make directions about the remuneration of a referee, including a direction that a party give security for the remuneration.

         (2)   Subrule (1) does not affect the powers of the Court as to costs.

6              Court rooms and other facilities

                The Court may make directions, for the purpose of an order under section 54A of the Act, for the provision of:

                (a)    services of officers of the Court; or

               (b)    court rooms and other facilities.

7              Conduct of inquiry

         (1)   The Court may make directions with respect to the conduct of an inquiry by a referee.

         (2)   Subject to a direction made by the Court under subrule (1) or paragraph 4 (c), a referee:

                (a)    may conduct the inquiry in any way the referee thinks fit; and

               (b)    is not bound in the inquiry by the rules of evidence but may inform himself or herself in any way the referee thinks fit.

         (3)   Evidence before a referee in an inquiry:

                (a)    may be given orally or in writing; and

               (b)    must, if the Court requires, be given:

                          (i)    on oath or by affirmation; or

                         (ii)    by affidavit.

         (4)   A referee may administer an oath or affirmation to a witness giving evidence in an inquiry.

         (5)   The Court may order that a referee is authorised to take evidence in an inquiry for the purposes of a subpoena issued under Order 27.

         (6)   Each party to an inquiry must give to all the referees conducting the inquiry, and to all other parties to the inquiry, a brief statement of the findings of fact and law contended by the party by the conclusion of evidence for the inquiry or, if another period of time has been fixed by the referee, within the time fixed.

         (7)   A party to an inquiry must:

                (a)    do all things required of the party by the referee so that the referee can form a just opinion about the matter; and

               (b)    not wilfully do, or cause to be done, any act to delay or prevent the referee forming an opinion.

8              Interlocutory directions

                The Court may, on application by a party to an inquiry, or by the referee conducting the inquiry, give directions about any matter arising during an inquiry.

9              Setting aside or varying an order

         (1)   The Court may, on application by a party to an inquiry or a referee conducting an inquiry, set aside or vary an order made under section 54A of the Act.

         (2)   Subrule (1) does not affect any other power of the Court to set aside or vary an order made under section 54A of the Act.

10            Report

         (1)   A referee must, unless the Court otherwise orders, give a written report to the Court about the matter referred to the referee by an order under section 54A of the Act that:

                (a)    has annexed to it the statements given by the parties under subrule 7 (6); and

               (b)    sets out the referee’s opinion on the matter; and

                (c)    sets out the referee’s reasons for the opinion.

         (2)   The referee must give the report mentioned in subrule (1) within any period fixed by the Court.

         (3)   The Court will send the report to the parties on receipt of the report.

11            Proceeding on the report

         (1)   After a report has been given to the Court under rule 10, the Court may:

                (a)    on a question of fact or law, or both, do any of the following:

                          (i)    adopt, vary or reject the report, in whole or in part;

                         (ii)    require an explanation by way of a further report by the referee;

                         (iii)    remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report;

                        (iv)    decide any matter on the evidence taken before the referee, with or without additional evidence; and

               (b)    give any judgment or order in relation to the question it thinks fit.

         (2)   Evidence given in an inquiry may not be adduced before the Court except with the leave of the Court.


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.