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Federal Court Rules

Authoritative Version
SR 1979 No. 140 Rules/Court & Tribunal Rules as amended, taking into account amendments up to SLI 2010 No. 191
Principal Rules; Repeals the Federal Court of Australia Rules
Administered by: Attorney-General's
Registered 15 Nov 2010
Start Date 01 Nov 2010
End Date 31 Dec 2010
Date of repeal 01 Aug 2011
Repealed by Federal Court Rules 2011
Table of contents.

Federal Court Rules

Statutory Rules 1979 No. 140 as amended

made under the

This compilation was prepared on 1 November 2010
taking into account amendments up to SLI 2010 No. 191

This document has been split into four volumes
Volume 1 contains Orders 1 to 51,
Volume 2 contains Orders 51A to 82,
Volume 3 contains Schedules 1 to 4, and
Volume 4 contains the Notes
Each volume has its own Table of Contents

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra


Contents

Order 51A            Matters remitted by the High Court of Australia  

                        1      Remittal of matters by High Court to the Court                20

                        2      Filing and service                                                          20

                      2A      Conduct of proceedings remitted by High Court to the Court            21

                        3      Directions hearing                                                         21

                        4      Directions of High Court                                                21

                        5      Remittal of application for order nisi                               21

Order 51B            Referral of petition under Commonwealth Electoral Act 1918, s 354  

                        1      Interpretation                                                                 22

                        2      Expressions used in the Electoral Act                            22

                        3      Application                                                                   22

                        4      Filing                                                                            22

                        5      Service and directions hearing                                       23

                        6      Directions and orders                                                    23

                        7      Particulars of votes claimed or objected to                     23

                        8      Counter‑charges                                                            24

                        9      Particulars                                                                     25

                       10      Trial                                                                              25

                       11      Withdrawal of petition and substitution of another petitioner 25

                       12      Abatement by death of petitioner                                   26

Order 52                Appeals                                                                          

Division 1AA              General                                                                           

                        1      Interpretation                                                                 27

                        2      Service                                                                         27

                    2AB      Certain applications and matters may be dealt with without an oral hearing    28

                    2AC      Summary of argument                                                   28

Division 1                    Leave to Appeal from judgments other than interlocutory judgments of the Court

                      2A      Application of Division                                                  29

                        4      Form of application — Form 54                                     29

                        5      Time for filing application                                              29

                        6      Service                                                                         30

                        7      Appearance by respondent                                            30

                      7A      Objection to application being dealt with without oral hearing            30

                        8      Time for filing and service of affidavits                          30

                        9      Setting down for hearing                                                30

Division 1A                 Leave to appeal from interlocutory judgments of the Court          

                       10      Leave to appeal from interlocutory judgments of the Court 31

                    10A      Revocation or variation of a grant of leave by a single judge            31

Division 2                    Appeals                                                                          

                       11      Interpretation                                                                 32

                       12      Form and filing of notice of appeal — Form 55               32

                    12A      Certification of merits of appeal commencing migration litigation      33

                       13      Title of proceeding                                                        33

                       14      Parties                                                                          34

                  14AA      Interveners                                                                    34

                    14A      Appearance by respondent                                            35

                       15      Time for filing and serving notice of appeal                    35

                       16      Filing in courts and service upon parties                         36

                       17      Stay                                                                             36

                       18      Competency of appeal                                                  36

                       19      Discontinuance of appeal                                              37

                    19A      Discontinuance of application made under s 25 (2) of the Act           38

                       20      Security for costs                                                          38

                       21      Amendment by supplementary notice                             38

                       22      Cross‑appeal                                                                39

                    22A      Discontinuance of cross-appeal                                     40

                       23      Retention of exhibits                                                     40

                       24      Appointment to settle                                                    41

                    24A      Appeal from a judgment of the Federal Magistrates Court 41

                       26      Content of appeal papers                                              41

                       27      Filing and service of draft indexes of appeal papers       43

                       28      Text of oral judgment or summing up                             43

                    28A      Settlement of appeal papers                                          43

                    28B      Preparation of appeal papers                                         44

                    28C      Filing of appeal papers                                                  45

                       29      Setting down appeal                                                      45

                       30      Written submissions                                                      46

                       32      Preparation                                                                   47

                       33      Filing and lodgment                                                       47

                       34      Service                                                                         48

                       35      Criminal cases                                                               48

                       36      Further evidence on appeal                                            48

                       37      Expediting appeals                                                       49

                       38      Time; want of prosecution                                              49

                    38A      Absence of party                                                          50

                       39      Appeals in criminal cases from Supreme Courts of a Territory           50

                       40      Order for production of prisoner (Form 46A)                   50

                       41      Reference to Court by single Judge                               51

Order 52A            Taxation appeals                                                        

Division I                     General                                                                           

                        1      Interpretation                                                                 52

                        2      Application of Order                                                      52

                        3      Application of other Orders                                            52

                        4      Mode of service                                                            53

                        5      Evidence by affidavit                                                    54

Division II                    Appeals from disallowance of objections                       

                        6      Notice of referral                                                           54

                        7      Form and filing of notice of referral                                54

                        8      Documents to be forwarded                                          55

                        9      Service of notice of referral and list of documents          55

                       10      Parties                                                                          56

                       11      Applicant’s address for service                                      56

                       12      Directions hearing                                                         57

                       13      General                                                                         57

                       14      Dismissal of appeal for want of prosecution                   58

Division III                   Objections and references                                              

                       15      Rules to apply on referral to Court                                  59

                       16      Rules to apply on transfer from Supreme Court              59

Division IV                  Applications for extension of time                                  

                       17      Sending applications to Court                                        59

                       18      Form of application                                                       59

                       19      Filing of application                                                       60

                       20      Notice of hearing                                                           60

                       21      Signing of notice and return date                                   60

                       22      Service of notice of hearing                                           60

                       23      Abridgment of time                                                       60

                       24      Notice of address for service                                         60

Order 52B            Appeals against appealable objection decisions made under the Taxation Administration Act 1953                                            

                        1      Interpretation                                                                 61

                        2      Application of this Order                                                61

                        3      Application of Order 52A                                               61

                        4      Commencement of appeals                                           62

                        5      Documents to be filed and served by the Commissioner — matters other than private rulings                                                                                    63

                      5A      Documents to be filed and served by the Commissioner — private rulings    64

                        6      Notice of setting down for hearing                                 65

Order 52C            Appeals against departure prohibition orders under Taxation Administration Act 1953                                                                                

                        1      Interpretation                                                                 66

                        2      Application of Order 52A                                               66

                        3      Commencement of appeals                                           66

                        4      Documents to be filed and served by the Commissioner 67

                        5      Notice of setting down for hearing                                 67

Order 53                Administrative Appeals Tribunal Act 1975           

                        1      Interpretation                                                                 68

                        2      Form and filing notice of appeal — Form 55A                 68

                      2A      Certification of merits of appeal from a migration decision 68

                        3      Title of proceedings                                                      69

                        4      Appearance                                                                  69

                        5      Parties                                                                          70

                        6      Filing and service of notice of appeal                             70

                        7      Extension of time                                                          70

                        8      Security for costs                                                          71

                        9      Stay                                                                             71

                       10      Documents to be forwarded                                          71

                       11      Discontinuance of appeal                                              72

                       12      Amendment by supplementary notice                             73

                       13      Notices of contention                                                    73

                       14      Directions hearing                                                         74

                       15      Directions                                                                     74

                    15A      Content of appeal papers                                              75

                    15B      Preparation of appeal papers                                         76

                       16      Filing of appeal papers                                                  77

                    16A      Written submissions                                                      77

                       18      Setting down appeal                                                      78

                       19      Time for entry of appeal                                                78

                       20      Time: want of prosecution                                              78

Order 53B            Appeals from the Superannuation Complaints Tribunal           

                        1      Application of Order 53B                                               80

                        2      Application of Order 53                                                 80

Order 54                Administrative Decisions (Judicial Review) Act 1977     

                        1      Application                                                                   81

                        2      Form of application — Form 56                                     81

                      2A      Extension of time                                                          81

                        3      Documents to be filed                                                   82

                        4      Notice of objection to competency — Form 57               82

                        5      Directions                                                                     82

                        6      Staying or dismissal of applications                               83

                        7      Application for summary judgment, stay or dismissal      83

                        8      Use of affidavit without cross‑examination of maker       83

Order 54A            Judiciary Act 1903; section 39B Mandamus, prohibition, injunction against an officer of the Commonwealth                                  

                        1      Application                                                                   84

                        2      Form of application                                                       84

                        3      Joinder of claims for relief                                             84

Order 54B            Applications in relation to migration decisions under Migration Act 1958    

                        1      Application                                                                   86

                        2      Form of application — Form 56A                                   86

                        3      Notice of objection to competency — Form 57               86

                        4      Directions                                                                     87

                        5      Staying or dismissal of applications                               87

                        6      Application for summary judgment, stay or dismissal      87

                        7      Use of affidavit without cross‑examination of maker       88

                        8      Application for extension of time                                   88

Order 56                Health Insurance Act 1973                                       

                        1      Interpretation                                                                 89

                        2      Rules applicable                                                            89

                        3      Documents to be forwarded                                          89

Order 57                Australian Crime Commission Act 2002               

                        1      Applications for review under Administrative Decisions (Judicial Review) Act 1977 (as varied by section 57 of Australian Crime Commission Act 2002)      91

Order 58                Intellectual property                                                   

Part I                            Intellectual property cases generally                  

                        1      Interpretation                                                                 92

                        2      Application of Order                                                      94

                        3      Appearance by the Commissioner                                  94

Part II                           Appeals from decision etc of Commissioner    

                        4      Form and filing of notice of appeal — Form 58A            94

                        5      Notice of appeal etc                                                      95

                    5AA      Particulars of non‑patentable invention                           96

                      5A      Cross‑appeals and notices of contention                        97

                        6      Provision of documents by Commissioner                     98

                        7      Directions hearing                                                         98

                        8      Evidence                                                                      98

Part III                         Other proceedings under a subject Act             

Division 1                    Patents Act                                                                     

                        9      Application of Division                                                  98

                       10      Applications under subsection 105 (1) of Patents Act (amendments) 99

                       11      Applications under subsection 120 (1) of Patents Act (infringements)            100

                       12      Applications under subsection 125 (1) of Patents Act (non‑infringement declarations)            101

                       13      Applications under subsection 128 (1) of Patents Act (relief from unjustified threat)   101

                       14      Applications under Chapter 12 of Patents Act (compulsory licences, revocation etc)  101

                       15      Particulars of invalidity                                                 102

Division 2                    Copyright Act                                                                 

                       16      Applications under Copyright Act (infringements)          103

Division 3                    Trade Marks Act                                                              

                       17      Application of Division                                                103

                       18      Applications under Trade Marks Act (infringements)      103

                       19      Particulars of invalidity                                                 103

Division 4                    Designs Act                                                                    

                       20      Application of Division                                                104

                       21      Applications under Designs Act (infringements)            104

                       22      Revocation of registration or rectification of Register    104

                       23      Application for compulsory licence                               105

Division 5                    Circuit Layouts Act                                                         

                       24      Applications under subsection 20 (2) of the Circuit Layouts Act (equitable remuneration)        105

                       25      Applications under subsection 25 (4) of the Circuit Layouts Act (terms of the doing of the act)                                                                                  105

                       26      Applications under Circuit Layouts Act (infringements)   105

Division 6                    Plant Breeder’s Rights Act                                              

                       27      Applications under Plant Breeder’s Rights Act (infringements)           106

Division 7                    Olympic Insignia Protection Act                                     

                       28      Application of Division                                                106

                       29      Application under Olympic Insignia Protection Act (infringements)     106

                       30      Particulars of grounds for rectification or of invalidity    106

Part IV                        Evidence                                                                     

                       31      Experimental proof as evidence                                   107

Order 59                Moomba‑Sydney Pipeline System Sale Act 1994

                        1      Appeals from determinations of Australian Competition Tribunal under section 126    109

                        2      Enforcement under Part 6, Division 6                            109

                        3      Inquiry by Court under subsection 124 (3) where non‑compliance with requirements of Australian Competition and Consumer Commission                      109

Order 60                Customs Act 1901                                                      

                        1      Proceedings under section 243B of Customs Act          111

                        2      Applications under section 243F of Customs Act          111

Order 61                Complaints (Australian Federal Police) Act 1981

                        1      Interpretation                                                               112

                        2      Rules applicable                                                          112

Order 61A            Australian Federal Police Act 1979                        

                        1      Appeal from decision of Disciplinary Tribunal               113

                        2      Notice of appeal                                                          113

Order 62                Costs                                                                              

                        1      Interpretation                                                               114

                      1A      Party represented by officer of the Crown                     114

                        2      Application                                                                  114

                        3      Time for dealing with costs                                          114

                        4      Taxed costs and other provisions                                 115

                        5      Costs in other courts                                                   115

                        6      Order for payment                                                       115

                        7      Order for taxation — when not required                         116

                        8      Registrar to tax costs                                                  116

                        9      Liability of legal practitioner [see Note 3]                      117

                       10      Notice of taxing costs and copy bill                             118

                       11      Review of Taxation                                                      118

                       12      Scale of costs                                                             119

                       13      Taxing officers to assist each other                              119

                       15      Costs reserved                                                            119

                       16      Notice of adjournment of taxation                                120

                       17      Refusal or neglect to procure taxation                          120

                       18      Delay before taxing officer                                          120

                       19      Cost to be allowed on taxation                                     120

                       20      Disbursements in solicitors’ bills                                  121

                       21      Fees not here provided for                                           121

                       22      Taxing officer’s discretion                                            121

                       23      Extension of time                                                        122

                       24      Non‑admission of fact                                                 122

                       25      Non‑admission of document                                        122

                       26      Discontinuance                                                            122

                       28      Continuance of interlocutory injunction                          123

                       29      Cost of application or step within proceedings              123

                       30      Costs of application or step within proceedings where stood over to trial      123

                       31      Party and party basis                                                   123

                       32      Refreshers                                                                  124

                       33      Absence of counsel                                                     124

                       34      4½ hour periods                                                          124

                       35      Fees to barristers and solicitors                                   125

                       36      Disallowance of costs of improper, vexatious or unnecessary matter in documents or proceedings                                                                125

                    36A      Reduction in costs otherwise allowable                         125

                       37      Unnecessary appearance in Court                                 126

                       38      Powers of taxing officer                                              126

                       39      Registrars appointed taxing officers                             126

                       40      Bill of costs                                                                127

                    40A      Short form bill for winding up application (Corporations Act s 466 (2))           127

                    40B      Short form bill for migration cases (original jurisdiction) 128

                    40C      Short form bill for migration cases (appeal jurisdiction) 129

                    40D      Procedure — short form bills for migration cases          130

                       41      Appointment to tax bill                                                 131

                       42      Objection to decision of taxing officer                          133

                       43      Reconsideration                                                          133

                       44      Review                                                                        134

                       45      Certificate of taxation                                                  135

                       46      Assessment procedures                                              135

Order 62A            Determination of maximum costs at directions hearing

                        1      Power to order maximum costs                                    140

                        2      Excluded costs                                                           140

                        3      Further directions                                                         140

                        4      Variation of order                                                        141

Order 63                Administration of money paid into court              

                        1      Application                                                                  142

                        2      Definitions                                                                  142

                        3      Litigants’ Fund                                                             142

                        4      Payment out of a Litigants’ Fund                                  142

                        5      Other application of money                                          143

                        6      Notification of the parties                                             143

Order 64                Transitional provisions                                             

                        1      Prior proceedings                                                        144

                        2      Litigants’ Fund                                                             144

Order 65                Life Insurance Act 1995                                             

                        1      Commencement of proceedings                                   145

                        2      Payment into Court                                                      145

                        3      Judicial management or winding up                              146

Order 66                Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988                                                                                         

                        1      Application of Order                                                    147

                        2      Interpretation                                                               147

                        3      Transfer to the Family Court                                         147

                        4      Form of application for transfer                                    147

                        5      Proceedings transferred under the Act                          148

Order 67                Lands Acquisition Act 1989                                     

                        1      Application                                                                  149

                        2      Compensation                                                             149

                        3      Approval                                                                     149

                        4      Extension of time                                                        149

                        5      Directions                                                                   149

                        6      Statement of claim                                                      150

                        7      Defence                                                                      150

                        8      Evidence by affidavit                                                   151

                        9      Affidavits of valuation                                                 151

                       10      Notice of disputed transaction                                     151

Order 68                International Arbitration Act 1974                           

                        1      Interpretation                                                               153

                        2      Application of Order 68                                                153

                        3      Enforcement of foreign arbitration agreement (International Arbitration Act, s 7)         153

                        4      Recognition of foreign award (International Arbitration Act, s 8)         154

                        5      Application for relief mentioned in article 6 of the Model Law (International Arbitration Act, s 18)                                                                                  154

                        6      Recognition of award (International Arbitration Act, s 35) 155

                        7      Documents not in the English language                        155

Order 69                Trans‑Tasman Market Proceedings Rules          

Division 1                    Preliminary                                                                     

                        1      Short title                                                                    156

                        2      Definitions for Order 69                                               156

                        3      Expressions used in the Trade Practices Act                 156

                        4      Application of this Order and other rules of the Court    157

Division 2                    Conduct of Trans‑Tasman market proceedings               

                        5      Filing documents in an Australian proceeding in New Zealand           157

                        6      Filing documents in a New Zealand proceeding in Australia 157

                        7      Stay of Australian proceeding                                      158

                        8      Federal Court sittings in New Zealand                           158

                        9      Offences under Part IIIA of the Act                               158

Division 3                    Registration of judgment of High Court of New Zealand  

                       10      Definition for Division 3                                               159

                       11      Application for registration of judgment of High Court of New Zealand          159

                       12      Notice of registration of judgment of High Court of New Zealand      161

                       13      Application to set aside registration of judgment of High Court of New Zealand        161

                       14      Record of registered judgments of High Court of New Zealand         162

Order 69A            Trans‑Tasman Proceedings                                    

Division 1                    Preliminary                                                                     

                        1      Short title                                                                    163

                        2      Definition for Order 69A                                               163

                        3      Expressions used in the Evidence and Procedure Act   164

                        4      Application of this Order and other rules of the Court    164

Division 2                    Service of Australian subpoena in New Zealand             

                        5      Application for leave to serve a subpoena in New Zealand 164

                        6      Hearing of application for leave to serve a subpoena in New Zealand            165

                        7      Documents relating to application                                166

Division 3                    Setting aside Australian subpoena                                 

                        8      Application to set aside subpoena                               166

Division 4                    Compliance with subpoena                                            

                        9      Subpoena for production                                             167

Division 5                    Failure to comply with subpoena                                    

                       10      Application for issue of certificate of non‑compliance with subpoena            167

                       11      Form of certificate of non‑compliance with subpoena    168

Division 6                    Enforcement of orders made in New Zealand proceedings           

                       12      Request for enforcement of order made in New Zealand proceeding 168

Division 7                    Use of video links or telephones in Australian proceedings         

                       13      Application for direction for use of video link or telephone 169

Order 70                Aboriginal and Torres Strait Islander Act 2005   

                        1      Interpretation                                                               170

                        2      Election petitions                                                         170

                        3      Reference as to qualifications or vacancy                     171

                        4      General                                                                       172

Order 71                Corporations Act and ASIC Act proceedings      

Order 71A            Corporations (Aboriginal and Torres Strait Islander) Act 2006 proceedings           

                        1      Conduct of proceedings                                              174

Order 72                Mediation and arbitration                                          

Division 1                    Preliminary                                                                     

                        1      Definition for Order 72                                                 175

                      1A      Mediation, arbitration or alternative dispute resolution process procedure      175

                        2      Application of Order                                                    175

                        3      If a Judge undertakes mediation                                   175

                        4      Adjournment of proceedings                                        176

                        5      Court may terminate mediation, arbitration or alternative dispute resolution process   176

Division 2                    Mediation                                                                       

                        6      Nomination of mediator                                               177

                        7      Conduct of mediation conferences                               177

                        8      Termination of mediation                                              178

Division 3                    Arbitration                                                                      

                        9      Appointment of arbitrator                                             178

Division 4                    Alternative dispute resolution process                            

                       10      Nomination of suitable person                                      179

                       11      Conduct of alternative dispute resolution process         179

                       12      Termination of alternative dispute resolution process     180

Order 72A            Referral by the Court to referee                               

                        1      Order of referral                                                           181

                        2      Appointment of referees                                              181

                        3      Two or more referees                                                   181

                        4      Inquiry and report                                                        182

                        5      Remuneration of referee                                               182

                        6      Court rooms and other facilities                                    182

                        7      Conduct of inquiry                                                       183

                        8      Interlocutory directions                                                 184

                        9      Setting aside or varying an order                                  184

                       10      Report                                                                        184

                       11      Proceeding on the report                                             184

Order 73                Representative proceedings                                   

                        1      Interpretation                                                               186

                        2      Application of Order                                                    186

                        3      Commencement of proceedings                                   186

                        4      Consent to be a group member                                    186

                        5      Applications for orders involving notice                        186

                        6      Opt out notices                                                           187

Order 74                Reciprocal enforcement of judgments under the Foreign Judgments Act 1991    

                        1      Interpretation                                                               188

                        2      Application of Order                                                    188

                        3      Application for an order for registration of foreign judgment 188

                        4      Matters to be included in affidavit                                189

                        5      Registration                                                                 190

                        6      Notice of registration                                                   190

                        7      Time limit                                                                    191

                        8      Security for costs                                                        191

                        9      Record of registered judgments                                   191

Order 76                Enforcement of determinations of the Australian Human Rights Commission or Privacy Commissioner                                              

                        1      Application                                                                  193

                        2      Commencement                                                          193

                        3      Service                                                                       193

Order 77                Bankruptcy proceedings                                          

Order 78                Native title proceedings                                            

Division 1                    Introductory                                                                    

                        1      Interpretation for Order 78                                            195

                        2      Expressions used in the Native Title Act                       195

                        3      Application of Order 78                                                196

                      3A      Exercise of powers by Registrars                                 196

                        4      Cultural or customary concerns                                    196

Division 2                    Applications                                                                   

Subdivision 1                Applications made before 30 September 1998                             

                        5      Applications taken to be made to the Court                  197

Subdivision 2                Applications made on or after 30 September 1998                      

                        6      Main application (native title and compensation)            197

                        7      Form of amendment of main application                       198

                        8      Joinder of parties to main application                           199

                        9      Withdrawal of a party                                                   200

                       10      Applications other than main applications                     200

                       11      Application to strike out main application                      202

                       12      Application for review of decision not to accept claim for registration           203

                       13      Application to remove details of agreement from the Register of Indigenous Land Use Agreements                                                                 203

                       14      Application for order about return of, or access to, records  204

                       15      Application for payment of amount secured by bank guarantee        204

Division 3                    Reference to Court of questions of fact or law                 

                       16      Question to be special case                                         204

                       17      Special case to be prepared                                        205

                       18      Setting down for hearing                                              205

                       19      Party having carriage of the proceeding                        205

                       20      Court’s discretion                                                        205

Division 3A                 Referral to Court of questions under section 136DA of the Native Title Act

                    20A      Referral of questions about whether a party should cease to be a party        206

                    20B      Preparation of referral                                                  206

                    20C      Setting down for hearing                                              206

Division 4                    Mediation                                                                       

                       21      Cessation of mediation                                                207

                    21A      Report about breaches of good faith requirement         207

Division 5                    Appeals from decisions or determinations of NNTT        

                       22      Definition for Division 5                                               208

                       23      Application of Division                                                208

                       24      Instituting an appeal                                                     208

                       25      Extension of time to appeal                                         209

                       26      Serving notice of appeal                                              209

                       27      Procedure after notice of appeal is filed                       209

                    27A      Appeal book                                                               210

                       28      Directions hearing                                                        211

                       29      Notification of hearing appeal                                      211

                       30      Reference to Chief Justice for direction                        211

Division 6                    Evidence                                                                        

                       31      Evidentiary matters generally                                        211

                       32      Evidence of a cultural or customary subject                  212

                       33      Documents referring to certain material                         212

                       34      Evidence given in consultation with others                    213

                       35      Evidence given not in normal course                            213

                       36      Evidence that may disclose certain information, contrary to a Court order     213

                       37      Inspection                                                                   214

Division 7                    Assessors                                                                       

Subdivision 2                Assessors                                                                                               

                       39      Taking evidence                                                          215

                       40      Conflict of interest                                                       215

Division 8                    Other                                                                              

                       41      Change of address for service                                     216

                    41A      Short title of proceeding                                              216

                       42      Appointment of agent                                                  216

                    42A      Leave to be represented by person who is not a barrister or solicitor 217

                       43      Notice                                                                         217

                       44      Native Title Registrar application to Court for order as to notice        217

                       45      Overlapping applications                                             218

                       46      Court may order adjournment for the purpose of agreement between parties 218

                       47      Agreements regarding the practical outcomes of a native title determination  218

                       48      Appearance by NNTT                                                   219

Order 80                Court appointed referral for legal assistance      

                        1      Interpretation                                                               220

                        2      Definitions                                                                  220

                        3      Pro Bono Panel                                                           221

                        4      Referral to a legal practitioner                                       221

                      4A      Further direction                                                          221

                        5      Kind of assistance                                                       222

                        6      Provision of assistance by lawyer                                222

                      6A      Cessation of Referral Certificate                                   222

                        7      Cessation of assistance                                               222

                        8      Application for leave                                                    223

                        9      Professional fees and disbursements                           224

Order 81                Human rights proceedings                                      

                        1      Citation                                                                       225

                        2      Definitions for Order 81                                               225

                        3      Expressions used in the Human Rights Act                   225

                        4      Application of Order 81                                                225

                        5      Commencement of proceeding                                    226

                        6      Copy of application to be given to Commission            226

                        7      Defence to an application — Form 168                         226

                        8      Appearance by special‑purpose Commissioner             226

                        9      Conduct of proceeding by tutor                                   227

Order 82                Federal Magistrates Court                                        

Division 1                    Transfer of proceedings from the Federal Magistrates Court         

                        1      Transfer of a proceeding from the Federal Magistrates Court to the Court     228

                        2      Filing and service                                                        228

                        3      Conduct of a transferred proceeding                            229

Division 2                    Transfer of proceedings to the Federal Magistrates Court 

                        4      Definitions                                                                  229

                        5      Application for transfer by a party                                229

                        6      Transfer on Court’s own motion                                    230

                        7      Factors to be considered                                             230

                        8      Proceedings transferred to the Federal Magistrates Court 231

 


Order 51A    Matters remitted by the High Court of Australia

  

  

1              Remittal of matters by High Court to the Court

         (1)   A sealed copy of the order of the High Court, remitting a matter, or any part of a matter, to the Court shall be filed in the District Registry named in the order of remittal.

         (2)   In the absence of a specification of a District Registry of the Court in a matter or part of a matter in the order referred to in subrule (1), the Chief Justice may direct that the order shall be filed in a particular District Registry.

2              Filing and service

         (1)   The Registrar shall affix a notice to the High Court’s order which shall be allotted a serial number as though the order was an application filed in the Registry.

         (2)   The notice shall bear the date for a directions hearing in the matter.

         (3)   The notice shall bear a note that before taking any step in the proceeding a party, other than the applicant, must enter an appearance in the Registry unless he has already entered an appearance in the High Court.

         (4)   The notice shall be in the form numbered 53A in Schedule 1.

      (4A)   The Registrar must affix the stamp of the Court to a sufficient number of copies of the notice for service in accordance with subrule (5).

         (5)   The Registrar shall cause sealed copies of the notice with copies of the High Court’s order attached thereto to be served on all parties to the proceeding in the High Court and on any other person whom the Court or a Judge directs should be so served.

         (6)   Service may be effected by delivery to a party’s address for service in the proceeding before the High Court.

2A           Conduct of proceedings remitted by High Court to the Court

                The other Orders of these Rules apply, so far are they are relevant and not inconsistent with this Order, to a proceeding that involves a matter, or part of a matter, remitted by the High Court to the Court.

3              Directions hearing

                The Court shall give any directions necessary for the further conduct of the proceeding having regard to the provisions of Order 10.

4              Directions of High Court

                Rules 1 to 3 of this Order apply subject to any direction of the High Court in the matter.

5              Remittal of application for order nisi

         (1)   Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

                (a)    will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

               (b)    if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

         (2)   In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.

Order 51B    Referral of petition under Commonwealth Electoral Act 1918, s 354

  

  

1              Interpretation

                In this Order:

Electoral Act means the Commonwealth Electoral Act 1918.

member means a member of the House of Representatives.

2              Expressions used in the Electoral Act

                Unless the contrary intention appears, an expression used in this Order and in the Electoral Act has the same meaning in this Order as it has in the Electoral Act.

3              Application

         (1)   This Order applies to:

                (a)    a petition referred for trial under subsection 354 (1) of the Electoral Act; and

               (b)    a part of a petition, in respect of an election or return, referred under subsection 354 (3) of that Act.

         (2)   The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, in relation to a petition, or part of a petition, mentioned in subrule (1).

4              Filing

         (1)   A sealed copy of the High Court’s order referring a petition, or part of a petition, to the Court must be filed in the District Registry named in the order.

         (2)   If the order does not name a District Registry, the order must be filed in:

                (a)    if the election or return that the petition seeks to invalidate relates to a Senator — a District Registry in the State or Territory for which the election was held; or

               (b)    if the election or return that the petition seeks to invalidate relates to a member — a District Registry in the State or Territory where the electoral division for which the member was elected or returned is located.

5              Service and directions hearing

         (1)   The Registrar must serve on each party and on any person whom the Court or a Judge directs should be served:

                (a)    a copy of the High Court’s order; and

               (b)    notice of the date for a directions hearing in the matter.

         (2)   The notice must be in accordance with Form 53B.

6              Directions and orders

         (1)   The Court may give directions, and make orders, necessary for the conduct, or further conduct, of the proceeding.

         (2)   In giving directions, the Court must have regard to the provisions of Order 10.

7              Particulars of votes claimed or objected to

         (1)   If a petition claims a seat for a person who has not been returned as a Senator or member and alleges that the person had a majority of valid votes, each party must file in the Registry, and deliver to each other party, a list of the ballot‑papers or classes of ballot‑papers intended to be claimed or objected to.

         (2)   However, this rule does not apply if the petition merely claims a fresh count of the votes actually counted at the election.

         (3)   The list of ballot‑papers or classes of ballot‑papers intended to be claimed or objected to must be filed in the Registry, and be delivered to each other party at that party’s address for service, at least 7 days before the day for the trial of the petition.

         (4)   If the list includes ballot‑papers that are objected to, it must state the grounds of objection on which the party intends to rely.

         (5)   An objection can not be entertained against the validity of a ballot‑paper on a ground not specified in the list except:

                (a)    with the leave of the Court or a Judge; and

               (b)    on any terms as to amendment of the list, adjournment of the trial and payment of costs, as the Court or Judge orders.

8              Counter‑charges

         (1)   This rule applies if:

                (a)    a petition claims a seat for a person who has not been returned as a Senator or member; and

               (b)    a respondent wishes to contend that the person for whom the seat is claimed was not duly elected based on a ground other than that the respondent had a majority of valid votes.

         (2)   The respondent must file in the Registry and deliver to the petitioner a statement of the ground on which the respondent intends to rely.

         (3)   The statement must:

                (a)    be filed and served within 7 days (or any further time as the Court or a Judge allows) after the respondent enters his or her appearance; and

               (b)    in relation to the ground relied on, and the relief sought, comply with paragraphs 355 (aa) and (b) of the Electoral Act, as if it were a petition.

Note 1   Paragraphs 355 (aa) and (b) of the Electoral Act state:

‘(aa)    subject to subsection 358 (2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;

(b)        contain a prayer asking for the relief the petitioner claims to be entitled to;’.

Note 2   Subsection 358 (2) of the Electoral Act (which provides for the Court to relieve a petitioner from compliance with paragraph 355 (aa)) does not apply to a respondent.

9              Particulars

                The Court or a Judge may order a party to give further and better particulars of a matter alleged by the party to another party.

10            Trial

         (1)   Not later than 14 days (or any other period fixed by the Court or a Judge) before the date fixed for the trial, the petitioner must:

                (a)    give to each other party to the petition notice of the trial in accordance with Form 53C; and

               (b)    advertise notice of the time, date and place of the trial in a newspaper circulating in the State, Territory or Electoral Division for which the election was held.

         (2)   An order fixing the time, date and place for trial may be varied.

11            Withdrawal of petition and substitution of another petitioner

         (1)   A petition referred to the Court may be withdrawn:

                (a)    with the leave of the Court or a Judge; and

               (b)    on any terms the Court or Judge thinks fit.

         (2)   The petitioner’s intention to apply for leave under subrule (1) must be advertised, in a newspaper circulating in the State, Territory or Electoral Division for which the election was held, not later than 14 days before the application is filed.

         (3)   At the hearing of the application, the Court or Judge may allow a person who is competent to file a petition on the same grounds as the applicant’s to be substituted for the petitioner in the petition proceeding.

         (4)   If a person is so substituted, the proceeding must be continued as if the person was the original petitioner.

12            Abatement by death of petitioner

         (1)   If a sole petitioner in a petition referred to the Court for trial dies before the conclusion of the trial of the petition, the Court or a Judge may allow a person who is competent to file a petition on the same grounds as the original petitioner’s to be substituted as petitioner.

         (2)   If a person is so substituted, the proceeding must be continued as if the person was the original petitioner.

Order 52      Appeals

  

Division 1AA         General

1              Interpretation

                In this Order unless the contrary intention appears:

application means application for leave to appeal, and applicant has a corresponding meaning.

Court means the Court exercising its appellate or related jurisdiction under Part III Division 2 of the Act.

judgment means the judgment, decree, order, or sentence of a court or judge under appeal, or in respect of which leave to appeal is sought.

2              Service

                Where in this Order service is required of a document it may be effected:

                (a)    in the case of a notice of appeal or an application for leave to appeal:

                          (i)    by serving a signed and sealed copy of the document personally on the party to be served; or

                         (ii)    by delivering a signed and sealed copy of the document to that party’s address for service in the proceeding in the court appealed from; and

               (b)    in the case of any other document:

                          (i)    by serving it in the manner prescribed in paragraph (a) above; or

                         (ii)    by serving it in the manner prescribed in Order 7, rule 4 for service of documents which need not be served personally.

2AB        Certain applications and matters may be dealt with without an oral hearing

         (1)   The Court may order that:

                (a)    an application mentioned in paragraph 25 (2) (b) or (c) of the Act; or

               (b)    a matter mentioned in subsection 25 (2B) of the Act; or

                (c)    an application for leave to appeal under Division 1; or

               (d)    an application for leave to appeal under subrule 10 (2); or

                (e)    an application for leave to file and serve a notice of appeal under subrule 15 (2);

be dealt with without an oral hearing.

         (2)   If the Court makes an order under subrule (1) in relation to an application or matter, each party to the application or matter must file a summary of argument and serve a copy of the summary on each other party.

         (3)   A summary of argument must comply with rule 2AC.

2AC        Summary of argument

         (1)   A summary of argument must:

                (a)    not exceed 10 pages; and

               (b)    include the title of the proceeding; and

                (c)    include the name of the party by whom it is to be filed; and

               (d)    consist of paragraphs numbered consecutively; and

                (e)    state as concisely as possible:

                          (i)    if the summary of argument is to be filed by the applicant — the factual background to the application; and

                         (ii)    if the summary of argument is to be filed by a respondent — the factual issues in dispute; and

                        (iii)    the claims to be argued by the party concerned; and

                        (iv)    the reasons relied upon for those claims.

         (2)   So far as is practicable:

                (a)    a reference in a summary of argument to a part of a transcript of proceedings of a court must be given by page and line number; and

               (b)    each relevant part of the transcript must be attached to the summary.

         (3)   A summary of argument must be clear and legible, and securely fastened.

Division 1              Leave to Appeal from judgments other than interlocutory judgments of the Court

2A           Application of Division

                This Division applies to an application for leave to appeal from a judgment other than an interlocutory judgment of the Court.

4              Form of application — Form 54

         (1)   An application shall be made in or substantially in the form numbered 54 in Schedule 1.

         (2)   An application shall be accompanied by an affidavit showing:

                (a)    the nature of the case;

               (b)    the questions involved; and

                (c)    the reasons why leave should be given.

         (3)   An application must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.

5              Time for filing application

         (1)   This rule applies only to applications where an appeal from the judgment lies to the Court only with leave.

         (2)   An application shall be filed within 21 days after:

                (a)    the judgment was pronounced; or

               (b)    a later date fixed for that purpose by the court or judge who pronounced the decision.

         (3)   Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with.

6              Service

                An application and accompanying affidavit shall be served on each person who was a party to or given leave to intervene in the proceeding in the court appealed from within 5 days of the filing of the application.

7              Appearance by respondent

                If there is a respondent to the application, the respondent must enter an appearance before taking any step in the proceedings.

7A           Objection to application being dealt with without oral hearing

                If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

                (a)    file a notice to this effect; and

               (b)    serve a copy of the notice on each other party to the application.

8              Time for filing and service of affidavits

                A respondent who desires to adduce evidence shall file and serve his affidavits within 14 days of the service of the application on him.

9              Setting down for hearing

                The application shall be set down for hearing (or, if the application is to be determined on written cases, for decision) by the Registrar at the proper place, who shall notify the parties of the date appointed for such hearing (or decision).

Division 1A           Leave to appeal from interlocutory judgments of the Court

10            Leave to appeal from interlocutory judgments of the Court

         (1)   An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement.

Note   Subsection 24 (1AA) of the Act specifies judgments from which an appeal cannot be brought, and subsection 24 (1C) of the Act specifies interlocutory judgments for which leave to appeal is not required.

         (2)   If an application has not been made in accordance with subrule (1), an application may be made by motion on notice.

      (2A)   Order 19 applies to an application under subrule (2), and the notice of motion must be filed:

                (a)    if the interlocutory judgment is in the nature of a decision on a question under Order 29 — within 21 days after the date on which the interlocutory judgment was pronounced; and

               (b)    in any other case — within 7 days after the date on which the interlocutory judgment was pronounced;

or within such further time as the Court or a Judge may allow.

         (3)   An application under subrule (2) must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.

         (4)   If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

                (a)    file a notice to this effect; and

               (b)    serve a copy of the notice on each other party to the application.

10A         Revocation or variation of a grant of leave by a single judge

         (1)   This rule applies if leave to appeal has been granted.

         (2)   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:

                (a)    revoke the leave to appeal, wholly or in part; or

               (b)    impose a condition on the leave to appeal; or

                (c)    vary a condition of the leave to appeal.

Division 2              Appeals

11            Interpretation

                If the Court directs that a party other than the appellant shall have the carriage of the appeal, or of a proceeding in or arising out of an appeal, these Rules apply as if that party were included in the description ‘appellant’.

12            Form and filing of notice of appeal — Form 55

         (1)   An appeal is instituted by filing a notice of appeal in accordance with Form 55.

         (2)   A notice of appeal must be filed in an appropriate Registry.

         (3)   In this rule:

appropriate Registry means:

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

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

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

               (d)    in any other case — the Principal Registry or an appropriate District Registry; or

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

12A         Certification of merits of appeal commencing migration litigation

         (1)   For the purposes of section 486I of the Migration Act 1958, a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.

         (2)   In this rule:

lawyer has the meaning given by section 486K of the Migration Act 1958.

migration litigation has the meaning given by section 486K of the Migration Act 1958.

13            Title of proceeding

         (1)   A notice of appeal and all subsequent proceedings in an appeal shall be entitled ‘In the Federal Court of Australia’ with the name of the Registry in which they are filed, ‘On Appeal From’ the court from which the appeal is brought, naming it, and shall also be entitled as between the party appellant and the party respondent.

         (2)   The notice of appeal shall state:

                (a)    whether the whole or part only, and what part, of the judgment is appealed from;

               (b)    briefly, but specifically, the grounds relied upon in support of the appeal; and

                (c)    what judgment the appellant seeks in lieu of that appealed from.

         (3)   If the appeal is brought by leave of the Court:

                (a)    the notice of appeal shall so state; and

               (b)    a copy of the order giving leave to appeal shall be annexed to the notice of appeal filed in the court appealed from pursuant to subrule 16 (1), and to every copy of the notice of appeal served pursuant to subrule 16 (2).

14            Parties

         (1)   Each party to the proceeding in the court appealed from who is affected by the relief sought by a notice of appeal or is interested in maintaining the judgment under appeal shall be joined as a party appellant or respondent to the appeal.

         (2)   The Court or a Judge may order the addition or removal of any person as a party appellant or respondent to an appeal.

         (3)   A person shall not be made an appellant without his consent.

14AA      Interveners

         (1)   The Court may give leave to a person (the intervener) to intervene in the appeal, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.

         (2)   In deciding whether to give leave, the Court must have regard to:

                (a)    whether the intervener’s contribution will be useful and different from the contribution of the parties to the appeal; and

               (b)    whether the intervention might unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and

                (c)    any other matter that the Court considers relevant.

         (3)   The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties.

         (5)   When giving leave, the Court must specify the form of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify:

                (a)    the matters that the intervener may raise; and

               (b)    whether the intervener’s submissions are to be oral, in writing, or both.

14A         Appearance by respondent

                Where there is a respondent to the appeal, the notice of appeal shall bear a note that before taking any step in the proceedings, the respondent must enter an appearance in the Registry and the respondent shall enter an appearance accordingly unless he has already entered a notice of appearance pursuant to rule 7.

15            Time for filing and serving notice of appeal

         (1)   The notice of appeal shall be filed and served:

                (a)    within 21 days after:

                          (i)    the date when the judgment appealed from was pronounced;

                         (ii)    the date when leave to appeal was granted; or

                        (iii)    any later date fixed for that purpose by the court appealed from; or

               (b)    within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

         (2)   Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

         (3)   An application for leave under subrule (2) must:

                (a)    be in accordance with Form 54A; and

               (b)    include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and

                (c)    be accompanied by an affidavit setting out:

                          (i)    the nature of the matter; and

                         (ii)    the factual and legal issues in dispute; and

                        (iii)    the reasons why leave should be given.

         (4)   If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

                (a)    file a notice to this effect; and

               (b)    serve a copy of the notice on each other party to the application.

16            Filing in courts and service upon parties

         (1)   Where the court appealed from is the Court of a State or Territory, a copy of the notice of appeal shall be filed in the office of the Registrar, Master or other proper officer of that court.

         (2)   The notice of appeal shall be served upon each person who was a party to or given leave to intervene in the proceeding in the court appealed from.

         (3)   The Court may direct that the notice of appeal be served on any other person.

17            Stay

         (1)   An appeal to the Court shall not:

                (a)    operate as a stay of execution or of proceedings under the judgment appealed from; or

               (b)    invalidate any intermediate act or proceedings;

except so far as the Court or a Judge or the court below may direct.

         (2)   The Court may vary or vacate any direction of the Court or the court below referred to in subrule (1).

         (3)   An application for a direction of the Court or a Judge under subrule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below. An application for a direction under subrule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below.

18            Competency of appeal

         (1)   A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

         (2)   Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

         (3)   If a respondent does not move under subrule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary.

19            Discontinuance of appeal

         (1)   An appellant may discontinue the whole, or any part of, an appeal by filing and serving a notice of discontinuance in accordance with Form 29A:

                (a)    without the leave of the Court — at any time before the hearing of the appeal; or

               (b)    with the leave of the Court — at the hearing, or after the hearing but before judgment is pronounced or made on the appeal.

         (2)   If a notice of discontinuance is filed and served under subrule (1), the appeal, or relevant part of the appeal:

                (a)    is abandoned for the applicant; and

               (b)    continues for any other appellant in the appeal or part of the appeal.

         (3)   An appellant who files a notice of discontinuance under subrule (1) is liable to pay the costs of any other party to the appeal for the appeal, or part of the appeal, that has been discontinued.

         (4)   A party whose costs are payable under subrule (3) may tax the costs and, if the taxed costs are not paid within 14 days after service of the certificate of taxation, may enter judgment for the taxed costs against the appellant who discontinued the appeal or the part of the appeal.

19A         Discontinuance of application made under s 25 (2) of the Act

         (1)   An applicant may discontinue an application mentioned in subsection 25 (2) of the Act by filing and serving a notice of discontinuance in accordance with Form 29B:

                (a)    without the leave of the Court — at any time before the hearing of the appeal; or

               (b)    with the leave of the Court — at the hearing of the application, or after the hearing of the application but before judgment is pronounced or made on the application.

         (2)   If a notice of discontinuance is filed and served under subrule (1), the application:

                (a)    is abandoned for the applicant; and

               (b)    continues for any other applicant in the application.

         (3)   An applicant who files a notice of discontinuance under subrule (1) is liable to pay the costs of any other party to the application for the application that has been discontinued.

         (4)   A party whose costs are payable under subrule (3) may tax the costs and, if the taxed costs are not paid within 14 days after service of the certificate of taxation, may enter judgment for the taxed costs against the applicant who discontinued the application.

20            Security for costs

                Unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required.

21            Amendment by supplementary notice

         (1)   A notice of appeal may, before the date of the appointment made under rule 24, be amended without leave by filing a supplementary notice.

         (2)   A party who files a supplementary notice under subrule (1) shall serve and file it in accordance with rule 16 as if it were a notice of appeal.

         (3)   The Court may allow a notice of appeal to be amended on such terms and conditions as the Court thinks fit.

22            Cross‑appeal

         (1)   A respondent who desires to appeal from a part of the judgment or to seek a variation of a part of the judgment, need not institute a substantive appeal, but he shall:

                (a)    within 21 days after the service upon him of the notice of appeal, or within such further time as the Court or a Judge fixes, file in the Registry a notice of cross‑appeal; and

               (b)    serve a copy of the notice upon the appellant and any other person affected by the relief which he seeks.

         (2)   The notice of cross‑appeal shall state what part of the judgment he cross‑appeals from or contends should be varied, and shall state briefly, but specifically, the grounds of the cross‑appeal and:

                (a)    the relief which he seeks in lieu of the order cross‑appealed; or

               (b)    the variation of that order which he seeks.

         (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 within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and

              (aa)    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.

22A         Discontinuance of cross-appeal

         (1)   A cross-appellant may discontinue the whole, or any part, of a cross-appeal by filing and serving a notice of discontinuance in accordance with Form 29A.

         (2)   Order 52, rule 19 applies to a discontinuance under subrule (1) in the same way that it applies to a discontinuance of an appeal under subrule 19 (1).

23            Retention of exhibits

         (1)   Where an appeal from a judgment lies, by leave or without leave, to the Court, the officer of the court below who has custody of the exhibits in the proceeding, shall, unless the court below otherwise orders, retain the exhibits:

                (a)    for 21 days after the date when the judgment is pronounced; or

               (b)    if within the period of 21 days leave to appeal to the Court from the judgment is granted, for a period of 21 days after leave is granted.

         (2)   Upon an appeal to the Court being instituted:

                (a)    the proper officer of the court below or the associate to the judge below, shall make out and certify a list of exhibits; and

               (b)    the exhibits, the list, and any other document before the court below, shall be delivered or transmitted to the Registry at the proper place.

         (3)   Where an exhibit cannot be so delivered or transmitted, the associate or officer shall, in his certificate, state the circumstances and give such information as he can to enable the Registrar to cause the exhibit to be available to the Court.

         (4)   The Registrar shall retain the documents obtained under subrules (2) and (3) until the disposal of the appeal and shall thereupon return them to the officer or persons from whom he obtained them.

24            Appointment to settle

         (1)   On filing the notice of appeal, the appellant must make an appointment to settle the appeal papers.

         (2)   The appellant must serve notice of the appointment on each person on whom the notice of appeal is served.

         (3)   The notice of appointment may be subscribed to the notice of appeal.

         (4)   Unless the Court or a Judge otherwise orders, this rule does not apply to an appeal from a judgment of the Federal Magistrates Court.

Note   Rule 24A deals with the procedure for an appeal from a judgment of the Federal Magistrates Court.

24A         Appeal from a judgment of the Federal Magistrates Court

                Unless the Court or a Judge otherwise orders, 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.

26            Content of appeal papers

                The appeal papers must:

                (a)    consist of the documents mentioned in the following table, in the order that they appear in the table; and

               (b)    be divided into Parts A, B and C as shown in the table.

Item

Document

 

Part A

1

Title page

2

The index to Part A

3

A copy of the originating application and pleadings, including each relevant notice of motion (if any)

4

If the court below was hearing an appeal from a tribunal or board — a copy of:

   (a)  the reasons for the decision of the tribunal or board; and

  (b)  the formal decision of the tribunal or board; and

   (c)  any notice of appeal to the court below

5

A copy of the reasons for judgment of the court below

6

A copy of the sealed orders of the court below

7

A copy of the notice of appeal

8

A copy of any notice of contention

9

A copy of any notice of cross‑appeal

10

A copy of any submitting appearance

11

A copy of the sealed orders giving leave to appeal or an extension of time to file the appeal (if any)

12

The certificate of correctness mentioned in paragraph 28C (1) (a) relating to Part A

 

Part B

13

Title page

14

The index to Part B

15

A list of the exhibits not reproduced in this Part showing:

   (a)  a brief description of each exhibit; and

  (b)  the exhibit number or letter used to identify each exhibit in the court below

16

A copy of all exhibits relevant to the appeal, cross‑appeal or contention, in the order in which the exhibits were numbered or lettered as exhibits in the court below

17

A copy of each affidavit or part of an affidavit (including any annexures) containing evidence relevant to the appeal, cross‑appeal or contention that was read in the court below

18

The certificate of correctness mentioned in paragraph 28C (1) (a) relating to Part B

 

Part C

19

Title page

20

The index to Part C

21

A list of the pages of transcript of oral evidence (including the names of the relevant witnesses and the dates of the hearing to which the pages relate) that are not reproduced

22

A copy of the transcript of oral evidence relevant to the appeal

23

A copy of each additional transcript (if any) relevant to the appeal

24

The certificate of correctness mentioned in paragraph 28C (1) (a) relating to Part C

27            Filing and service of draft indexes of appeal papers

                The appellant must file in the Registry, and serve on the respondent, a draft index of each Part of the appeal papers, at least 7 days before the date appointed for settling the appeal papers.

28            Text of oral judgment or summing up

         (1)   If a party proposes to include the text of a Judge’s oral judgment or summing up in the appeal papers, the party must:

                (a)    submit the text to the Judge for correction; and

               (b)    ask the Registrar for a certificate stating that the party has submitted the text for correction.

         (2)   The text of a Judge’s oral judgment or summing up may be included in the appeal papers only if the text is accompanied by a certificate mentioned in paragraph (1) (b).

28A         Settlement of appeal papers

         (1)   At the appointment to settle the appeal papers the Registrar must:

                (a)    settle the appeal papers in accordance with subrule (2); or

               (b)    refer the appeal papers to the Court or a Judge for settling.

         (2)   If paragraph (1) (a) applies, the Registrar must:

                (a)    determine the documents and matters to be included in the appeal papers; and

               (b)    determine:

                          (i)    the order of inclusion of the appeal papers; and

                         (ii)    any other matters about the preparation of copies of the appeal papers that he or she considers to be appropriate; and

                (c)    settle the indexes in accordance with rules 26 and 28B; and

               (d)    determine the number of copies of the appeal papers required; and

                (e)    obtain an estimate of the duration of the hearing from each party; and

                (f)    if practicable:

                          (i)    fix a date for a hearing; or

                         (ii)    list the appeal for hearing in appellate sittings of the Court.

28B         Preparation of appeal papers

         (1)   The title page of each Part of the appeal papers must include:

                (a)    the title of the proceeding, including the title of the court from which the appeal is brought; and

               (b)    the name and address for service of the lawyer for each party.

         (2)   The index of each Part of the appeal papers must show the date and page number of each document included in that Part.

         (3)   The numbering of the pages of Parts A, B and C of the appeal papers must:

                (a)    be legible and distinct from any other numbering; and

               (b)    for Part A — begin with the number 1 and commence at item 3; and

                (c)    for Part B — begin with the number immediately after the number of the last page in Part A and commence at item 15; and

               (d)    for Part C — begin with the number immediately after the number of the last page in Part B and commence at item 23.

         (4)   The pages of items 25 and 26 of Part C of the appeal papers must be numbered in accordance with the official transcript numbers.

         (5)   If any Part of the appeal papers consists of more than one volume, the page numbers must continue consecutively from one volume to the next volume.

         (6)   The appeal papers need not be in bound and printed form but must be clear and legible and securely fastened.

28C         Filing of appeal papers

         (1)   The appellant must file:

                (a)    a copy of the appeal papers that includes a certificate, in each Part of the papers:

                          (i)    signed by each party or the party’s lawyer; and

                         (ii)    stating that the Part has been examined and is correct.

               (b)    the number of copies of the appeal papers determined by the Registrar under paragraph 28A (2) (d).

         (2)   The Registrar may refuse to accept appeal papers that do not comply with these Rules.

29            Setting down appeal

         (1)   Unless an appeal is set down or listed for hearing at the appointment to settle the appeal papers pursuant to paragraph 27 (e), the appellant shall set the appeal down for hearing in accordance with this rule.

         (2)   Unless otherwise ordered by the Court or a Judge an appeal shall be heard at the proper place.

         (3)   Unless otherwise ordered by the Court or a Judge an appeal shall be set down for hearing at the first sittings of the Court in its appellate jurisdiction appointed to be held at the place of hearing after the expiration of 6 weeks from the institution of the appeal.

         (4)   An appeal shall be set down at least 21 days before the day appointed for the commencement of the sittings.

         (5)   Within 7 days after being notified of the date of the hearing of an appeal, the appellant must:

                (a)    file in the Registry a notice in accordance with Form 44A; and

               (b)    serve a copy of the notice on all other parties to the appeal.

Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to setting‑down fees.

      (5A)   If an appellant does not comply with subrule (5), the Registrar must:

                (a)    so advise the respondent forthwith; and

               (b)    give notice to the appellant that the Court may, of its own motion, make an order under subrule 38 (1).

         (6)   The Court or a Judge, if satisfied that it is expedient to do so, may at any time order that an appeal be heard at a place and or time other than that provided for by this rule.

30            Written submissions

         (1)   Subject to subrule (2) a party to an appeal may serve on the other parties a notice that he proposes to prepare and file written submissions.

         (2)   Where a date for the hearing of the appeal has been fixed, a party shall not, unless the Court or a Judge otherwise orders, give a notice under subrule (1) later than 14 days before that date.

         (3)   Where a notice under subrule (1) is served on any party, he may, by notice filed within 2 days after service on him of the notice under subrule (1), object to the use of written submissions.

         (4)   A party filing a notice of objection under subrule (3) shall, on the day of filing, serve the notice on each other party.

         (5)   Upon the filing of a notice of objection under subrule (3), the Registrar shall forthwith obtain the direction of the Chief Justice or the senior Judge available, and communicate it to the parties.

32            Preparation

         (1)   Subject to any determination under subrule 30 (5), upon service of a notice under subrule 30 (1), each party shall prepare written submissions.

         (3)   Written submissions:

                (a)    shall be divided into paragraphs numbered consecutively;

               (b)    shall state concisely:

                          (i)    the circumstances out of which the appeal arises;

                         (ii)    the contentions to be urged by the party concerned; and

                        (iii)    the reasons relied upon; and

                (c)    shall, so far as practicable, refer to matter in the copies of appeal papers by page number, and shall not extract that matter.

33            Filing and lodgment

         (1)   Each party required to prepare written submissions shall, not more than 10 days after service on him of a notice under rule 30:

                (a)    file his written submissions; and

               (b)    lodge with the Registrar such number of copies of the written submissions as the Registrar may direct.

         (2)   A party filing written submissions under subrule (1) shall, on the day of filing, serve notice of the filing on each other party.

         (3)   A written submission shall not be available for inspection until all parties have filed their submissions.

34            Service

                When all parties have filed their written submissions, each party shall serve 3 copies of his written submissions on each other party.

35            Criminal cases

         (1)   In criminal cases an appellant may present his case and his argument to the Court in writing if he so desires, and, if he does so, it is not necessary for him to appear or to be represented upon the hearing of the appeal.

         (2)   An appellant who is in custody is not entitled to be present on the hearing of his appeal, or of his application for leave to appeal, without the leave of the Court.

         (3)   The Court or a Judge may, upon such terms as it thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal.

36            Further evidence on appeal

         (1)   This rule applies to any application to the Court to receive evidence in a proceeding on an appeal additional to evidence in the court below.

         (2)   This rule applies unless the Court otherwise directs.

         (3)   The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.

         (4)   The grounds of the application shall be stated in an affidavit.

         (5)   Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court to receive shall be given by affidavit.

         (6)   The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.

         (7)   The evidence of any other party to the appeal shall unless the Court or a Judge otherwise orders be given by affidavit filed not later than 14 days before the hearing of the appeal.

         (8)   A party to the appeal shall, not later than the time limited for him to file an affidavit under this rule:

                (a)    lodge as many copies of the affidavit as the Registrar may direct; and

               (b)    serve 3 copies of the affidavit on each other party to the appeal.

37            Expediting appeals

         (1)   The Court or a Judge may at any time make such orders as appear just for expediting of the appeal.

         (2)   A party requiring leave to appeal may move on notice before the Court for an order that the application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal, and for such consequential orders as may be necessary.

38            Time; want of prosecution

         (1)   Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

                (a)    order that the appeal shall be dismissed for want of prosecution;

               (b)    fix a time peremptorily for the doing of the act and at the same time order that upon non‑compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non‑compliance, order that it be so dismissed; or

                (c)    make any other order as may seem just.

         (2)   The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

         (3)   An order under paragraph (1) (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

38A         Absence of party

         (1)   If a party is absent when an appeal is called on for hearing, the Court may:

                (a)    order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or

               (b)    adjourn the hearing; or

               (d)    proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

         (2)   If the Court proceeds with the hearing under paragraph (1) (d), the Court may:

                (a)    set aside or vary any order made after so proceeding; and

               (b)    give directions for the further conduct of the appeal.

Note   See also subsection 25 (2B) of the Act in relation to the failure of an appellant to attend a hearing relating to an appeal.

39            Appeals in criminal cases from Supreme Courts of a Territory

         (1)   The Judges constituting a Full Court or a majority of them may during the course of hearing an appeal against conviction or sentence request the Supreme Court Judge of the Territory from whose judgment, order or sentence an appeal is brought to the Court to forward to the Registrar for the information of the Judges hearing the appeal a report on any specified aspect.

         (2)   The Judge may when so requested give a report on any aspect of the case specified in the request.

         (3)   The Judge’s report shall not be available for inspection by the parties or any other person except on the direction of the Court or a Judge.

40            Order for production of prisoner (Form 46A)

         (1)   In the case of an appeal against conviction or sentence where a prisoner is in lawful custody, the Court or a Judge may make:

                (a)    an order requiring the production of the prisoner; and

               (b)    an order, as the Court or Judge considers appropriate, in relation to the continuing custody of the prisoner.

         (2)   An order under subrule (1) may, if the Court or Judge considers it appropriate, be in accordance with Form 46A.

41            Reference to Court by single Judge

                In any rule in this order where power is conferred on the Court or a Judge, a single Judge may refer a question to the Court if he considers it appropriate.

Order 52A    Taxation appeals

  

Division I               General

1              Interpretation

                In this Order, unless the contrary intention appears: Commissioner means the Commissioner, a Second Commissioner or a Deputy Commissioner of Taxation, and person includes a corporation.

2              Application of Order

         (1)   This Order applies to an appeal to or proceeding in the Court under or pursuant to a law of the Commonwealth dealing with the assessment of taxation and to questions referred under such a law to the Court.

         (2)   An appeal to the Court from a judgment of the Court constituted by a single Judge shall be dealt with in accordance with Order 52.

         (3)   An appeal to the Court from a decision to the Administrative Appeals Tribunal made under or pursuant to a law of the Commonwealth dealing with the assessment of taxation shall be dealt with in accordance with Order 53.

3              Application of other Orders

                Subject to this Order and to any law of the Commonwealth, the provisions of this Order and other Orders of these Rules apply, so far as is practicable, to proceedings to which the last preceding rule applies and, for the purposes of this Order and other Orders of these Rules, the applicant and the Commissioner shall be parties to the proceedings.

4              Mode of service

         (1)   Personal service is not required of any document to be served under this Order. Subject to the provisions of this Order any document may be served:

                (a)    by personal service on the person to be served in accordance with the provisions of Order 7 rule 2 of the Rules; or

               (b)    by leaving it at the address for service of the person to be served nominated in the appropriate document filed pursuant to this Order between the hours of nine in the morning and five in the afternoon on any day on which the Registry in the State or Territory in which the address is situated is open; or

                (c)    by sending the document by pre‑paid post addressed to the person to be served at the address nominated in the appropriate document filed pursuant to this Order; or

               (d)    if the person to be served has not nominated an address for service in the proceeding, by leaving it at the person’s usual or last known place of business or of residence between the hours mentioned in paragraph (b) or by sending it by pre‑paid post addressed to the person at the person’s usual or last known place of business or of residence; or

                (e)    by sending the document by facsimile transmission directed to the facsimile number operated at, or in connection with, the address nominated in the appropriate document filed under this Order; or

                (f)    by sending the document by electronic communication directed to the email address nominated in the appropriate document filed under this Order.

         (2)   The time of service of a document served under this Order is:

                (a)    if the document is sent by pre‑paid post in accordance with paragraph (1) (c) or (d) — 7 days after it is sent; or

               (b)    if the document is sent by facsimile transmission in accordance with paragraph (1) (e) — one day after it is sent; or

                (c)    if the document is sent by electronic communication in accordance with paragraph (1) (f) — one day after it is sent.

         (3)   For paragraphs (2) (b) and (c), mention of a day does not include a Saturday, Sunday or a public holiday.

5              Evidence by affidavit

                Unless otherwise ordered by the Court or a Judge, evidence in proceedings under this Order shall be by affidavit.

Division II              Appeals from disallowance of objections

6              Notice of referral

                When the Commissioner has been requested under an Act to refer a decision on an objection with respect to taxation to the Court, the Commissioner shall refer the decision on the objection to the Court within the time prescribed by law, or, if no time has been so prescribed, then within sixty days after the date of the receipt of the request, or within such further time as is agreed between the Commissioner and the person who made the request.

7              Form and filing of notice of referral

         (1)   The Commissioner shall refer the decision on the objection to the Court by filing a notice of referral which shall be in or substantially in the form numbered 55C in Schedule 1. The notice of referral shall state the address for service of the Commissioner.

         (2)   A notice of referral shall be filed in the District Registry of the Court in the State or Territory in which the request to refer the decision on the objection was lodged with the Commissioner.

         (3)   A notice of referral shall be signed by the Commissioner or the Commissioner’s solicitor and shall state that the referral is made pursuant to the request under the particular Act involved and shall state the decision on the objection under challenge.

8              Documents to be forwarded

                The Commissioner shall also forward, together with the notice of referral, to the Registry:

                (a)    the notice of assessment in respect of which the objection was made (including any amendment of the assessment);

               (b)    the notice of objection;

                (c)    the notice of the disallowance of the objection;

               (d)    the request for the reference of the decision on the objection to the Court;

                (e)    any other documents in the Commissioner’s possession or power which are necessary for the hearing of the matter; and

                (f)    a list of the documents forwarded.

9              Service of notice of referral and list of documents

         (1)   The Commissioner shall serve a sealed copy of the notice of referral upon the person who requested the referral of the decision to the Court within the time prescribed by law, or, if no time has been so prescribed, within fourteen days after the date of filing of the notice of referral, but not later than five days before the date appointed for the directions hearing under rule 12 unless the Court or a Judge otherwise orders.

         (2)   The Commissioner shall also serve a copy of the list of documents referred to in paragraph (f) of rule 8 upon the person who requested the referral at the same time as service is made of the notice of referral.

         (3)   Service of a sealed copy of the notice of referral and of a copy of the list of documents under this rule may be effected by sending them by pre‑paid post addressed to the person to be served at the address, if any, specified in the request for the reference or at the person’s usual or last known place of business or of residence.

         (4)   The documents served by post under the last preceding subrule shall be deemed to have been served seven days after they are so sent.

10            Parties

                The person who requested the decision on an objection to be referred to the Court shall be the applicant and the Commissioner shall be the respondent.

11            Applicant’s address for service

         (1)   The applicant shall file a notice showing an address for service before the date appointed for a directions hearing and before filing any document.

         (2)   A notice of address for service shall show:

                (a)    the name and address of the applicant;

               (b)    where the applicant is represented by a solicitor, the name, address, telephone number and, if applicable, the facsimile number and the email address of the solicitor;

                (c)    where the applicant is represented by a solicitor and that solicitor has another solicitor as agent in the proceeding, the name, address, telephone number and, if applicable, the facsimile number and the email address of the agent; and

               (d)    an address for service which may be a document exchange box.

         (3)   A notice of address for service shall be in or substantially in the form numbered 55CA in Schedule 1.

         (4)   Except where an address for service is a document exchange box an address for service shall be the address of a place within ten kilometres of the Registry at the proper place at which documents in the proceeding may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceeding may be posted for that person.

         (5)   A notice of address for service shall, unless the Court or a Judge otherwise orders, be served upon the respondent before the date appointed for a directions hearing.

         (6)   An applicant may change an address for service by filing a notice showing the new address for service.

         (7)   A change of address for service shall not be effective as between the applicant and another party until the notice of change of address is filed and served on that other party.

12            Directions hearing

         (1)   A notice of referral shall state a date for a directions hearing.

         (2)   The date for the directions hearing shall be obtained by the Commissioner from the Registry and shall be endorsed on the notice of referral before it is served.

13            General

         (1)   On a directions hearing under this Order the Court or a Judge shall give such directions with respect to the conduct of the proceeding as is thought proper.

         (2)   Without prejudice to the generality of subrule (1) the Court or a Judge may:

                (a)    determine what additional documents shall be forwarded to the Registry;

               (b)    direct the joinder of parties;

                (c)    make orders with respect to:

                          (i)    discovery and inspection of documents;

                         (ii)    interrogatories;

                        (iii)    admissions of fact or of documents;

                        (iv)    the defining of the issues;

                         (v)    the filing and serving of affidavits;

                        (vi)    the giving of particulars;

                       (vii)    the place, time and mode of hearing;

                      (viii)    the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally or by affidavit, or both; and

                        (ix)    costs.

14            Dismissal of appeal for want of prosecution

         (1)   Where an applicant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted the appeal with due diligence, the Court or a Judge may:

                (a)    order that the proceeding shall be dismissed for want of prosecution;

               (b)    fix a time peremptorily for the doing of the act and at the same time order that upon non‑compliance the proceeding shall stand dismissed for want of prosecution, or subsequently and in the event of non‑compliance, order that it be so dismissed; or

                (c)    make any other order as may seem just.

         (2)   The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

         (3)   An order under paragraph (1) (b) may be varied at any time before the proceeding stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

Division III             Objections and references

15            Rules to apply on referral to Court

                Where a request to refer a decision on an objection is, by force of subsection 4 (2) of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, treated as a request to refer the decision on the objection to this Court, the Rules shall apply, so far as is practicable, to those proceedings, subject to any direction of the Court or a Judge.

16            Rules to apply on transfer from Supreme Court

                Where proceedings are transferred from a Supreme Court to this Court by force of subsection 4 (3) of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 the Rules shall apply, so far as is practicable, to those proceedings, subject to any direction of the Court or a Judge.

Division IV             Applications for extension of time

17            Sending applications to Court

                Where the Commissioner receives an application under a relevant tax law asking that a request to refer a decision to the Court be treated as having been duly lodged notwithstanding that the period prescribed by law for lodgment of the request has ended, the Commissioner shall send that application to the Court in the time prescribed by law, or, if no time has been so prescribed, then within twenty‑eight days after the date of the receipt of the request.

18            Form of application

                The application shall state fully and in detail the circumstances concerning, and the reasons for, the failure by the applicant to lodge the request as required by the relevant law.

19            Filing of application

                The Commissioner shall send the application to the Court by filing the same in the District Registry in the State or Territory in which the application was received by the Commissioner.

20            Notice of hearing

                At the same time as the Commissioner files the application for extension of time there shall be filed a notice of hearing of the application which shall be in or substantially in the form numbered 55CB in Schedule 1.

21            Signing of notice and return date

                The notice of hearing shall be signed by the Commissioner or the Commissioner’s solicitor and shall state a return date for the hearing of the application by the Court. The date for the hearing shall be obtained by the Commissioner from the Registry and shall be endorsed on the notice of hearing before it is served.

22            Service of notice of hearing

                A sealed copy of the notice of hearing shall, unless the Court or a Judge otherwise orders, be served upon the applicant not less than five days before the date appointed for the hearing.

23            Abridgment of time

                Where the Court or a Judge has made an order abridging time, the notice or hearing shall bear a note of the order made.

24            Notice of address for service

                The applicant shall file and serve a notice showing an address for service before the date appointed for the hearing of the proceeding and before filing any document. The provisions of rule 11 of this Order apply, so far as is practicable, to proceedings to which Division IV of this Order apply. A notice of address for service shall be in or substantially in the form numbered 55CA in Schedule 1.

Order 52B    Appeals against appealable objection decisions made under the Taxation Administration Act 1953

  

  

1              Interpretation

         (1)   In this Order:

appeal means an appeal to which this Order applies under rule 2.

Taxation Administration Act means the Taxation Administration Act 1953.

         (2)   Expressions used in this Order that are defined for the purposes of Part IVC of the Taxation Administration Act or Division 359 in Schedule 1 to that Act have the same meaning in this Order as they have in that Part or Division.

2              Application of this Order

                This Order applies to an appeal against an appealable objection decision.

3              Application of Order 52A

                Subject to this Order and to any other law of the Commonwealth, the following provisions of Order 52A apply to an appeal against an appealable objection decision: rule 1, subrules 2 (2) and (3), rules 4, 5, 10, 13 and 14, and rules 17 to 24 (inclusive).

4              Commencement of appeals

         (1)   An appeal must be commenced by filing an application in accordance with subrule 1 (1) of Order 4.

         (2)   The following provisions of Order 4, with any appropriate changes and subject to any direction of the Court or a Judge, apply to an appeal: rules 4, 5, 7, 8, 10, 11, 13 and 14.

         (3)   An application must:

                (a)    be in Form 55D; and

               (b)    set out:

                          (i)    brief details of the appealable objection decision; and

                         (ii)    the address of the office of the Australian Taxation Office shown on the written notice of the appealable objection decision served on the applicant under the Taxation Administration Act; and

                (c)    be filed in the Registry of the Court in the State or Territory in which:

                          (i)    the office of the Australian Taxation Office mentioned in subparagraph (b) (ii) is located; or

                         (ii)    if the applicant is a natural person — the applicant ordinarily resides; or

                        (iii)    if the applicant is a corporation — the applicant has its head office or carries on a significant part of its business.

         (4)   The applicant must serve a sealed copy of the application on the Commissioner, as respondent, at the office of the Australian Government Solicitor in the State or Territory in which the application was filed.

      (4A)   If the appeal relates to a private ruling, the sealed copy of the application must be served, within 6 days after filing, the application.

         (5)   The date fixed for the directions hearing must be:

                (a)    if the appeal relates to a private ruling — a date not later than 21 days after filing the application, unless the parties agree to a later date; or

               (b)    in any other case — a date at least 5 weeks after filing the application.

5              Documents to be filed and served by the Commissioner — matters other than private rulings

         (1)   This rule applies to an appeal other than an appeal that relates to a private ruling.

         (2)   Within 28 days after a sealed copy of an application is served on the Commissioner, the Commissioner must:

                (a)    file:

                          (i)    a copy of the notice of the appealable objection decision concerned; and

                         (ii)    a copy of the taxation objection concerned; and

                        (iii)    any return or other document in the Commissioner’s possession or under the Commissioner’s control to which the taxation objection relates that is relevant to the hearing of the matter; and

                        (iv)    an appeal statement or an appeal affidavit; and

               (b)    serve on the applicant:

                          (i)    a copy of the appeal statement or the appeal affidavit, as the case may be; and

                         (ii)    a list of the other documents mentioned in paragraph (a) that the Commissioner has filed.

         (3)   In this rule:

appeal affidavit, in relation to an appeal, means an affidavit:

                (a)    setting out the grounds for seeking an order at the first directions hearing dispensing with filing an appeal statement; and

               (b)    setting out, or annexing a minute of, proposed directions with respect to the conduct of the appeal.

appeal statement, in relation to an appeal, means a statement outlining succinctly the Commissioner’s contentions and the facts and issues in the appeal as the Commissioner perceives them.

5A           Documents to be filed and served by the Commissioner — private rulings

                If an appeal relates to a private ruling, within 14 days after a sealed copy of the application is served on the Commissioner, the Commissioner must:

                (a)    file:

                          (i)    a notice of appearance in accordance with Form 15; and

                         (ii)    a copy of the private ruling concerned; and

                        (iii)    a copy of the notice of appealable objection decision concerned; and

                        (iv)    a copy of the taxation objection concerned; and

                         (v)    a copy of any documents given to the Commissioner by the applicant in support of an application under section 359‑10 of Schedule 1 to the Taxation Administration Act or containing information given by the applicant to the Commissioner under section 357‑105 or 357‑115 of Schedule 1 to that Act; and

                        (vi)    a statement of any assumption made by the Commissioner when making the ruling and which is not stated in the notice of ruling; and

               (b)    serve on the applicant:

                          (i)    a stamped copy of the notice of appearance; and

                         (ii)    a list of the documents filed under subparagraphs (a) (ii) to (v) inclusive; and

                        (iii)    a copy of the statement referred to in subparagraph (a) (vi).

6              Notice of setting down for hearing

         (1)   The Registrar must advise the applicant in writing of the date, time and place of the hearing as soon as practicable after an appeal is set down for hearing.

         (2)   Within 7 days after the date of receipt of the Registrar’s advice, the applicant must file in the Registry a notice in accordance with Form 55E and serve a copy on the respondent.

Order 52C    Appeals against departure prohibition orders under Taxation Administration Act 1953

  

  

1              Interpretation

         (1)   In this Order, unless the contrary intention appears:

appeal means an appeal against a departure prohibition order.

Taxation Administration Act means the Taxation Administration Act 1953.

         (2)   Unless the contrary intention appears, expressions used in this Order that are defined for the purposes of Part IVA of the Taxation Administration Act have the same meaning in this Order as they have in that Part.

2              Application of Order 52A

                Subject to this Order and to any other law of the Commonwealth, Order 52A rules 1, 4, 5, 13 and 14 apply to an appeal.

3              Commencement of appeals

         (1)   An appeal must be commenced by filing an application in accordance with subrule 1 (1) of Order 4.

         (2)   The person filing the application is to be the applicant and the Commissioner is to be the respondent.

         (3)   Rules 4, 5, 7, 8, 10, 11, 13 and 14 of Order 4 apply to an appeal, with any appropriate changes and subject to any direction of the Court or a Judge.

         (4)   An application must be in accordance with Form 55DA.

         (5)   The applicant must serve a sealed copy of the application on the Commissioner at the office of the Australian Government Solicitor situated in the district of the Registry in which the departure prohibition order was made.

         (6)   The date fixed for the directions hearing must be a date not later than 21 days after filing of the application, unless the parties agree to a later date.

4              Documents to be filed and served by the Commissioner

                Within 14 days after a sealed copy of the application is served on the Commissioner, the Commissioner must:

                (a)    file:

                          (i)    any document on which the Commissioner relied in making the departure prohibition order; and

                         (ii)    any other document in the Commissioner’s possession or under the Commissioner’s control that is relevant to the appeal; and

               (b)    serve on the applicant a list of documents filed under subparagraphs (a) (i) and (ii).

5              Notice of setting down for hearing

         (1)   The Registrar must advise the applicant in writing of the date, time and place of the hearing as soon as practicable after an appeal is set down for hearing.

         (2)   Within 7 days after the date of receipt of the Registrar’s advice, the applicant must file in the Registry a notice in accordance with Form 55E and serve a copy on the respondent.

Order 53      Administrative Appeals Tribunal Act 1975

  

  

1              Interpretation

                In this Order unless the contrary intention appears:

appropriate Registry means a District Registry in the State or Territory in which the Tribunal heard the matter.

Tribunal means the Administrative Appeals Tribunal.

Registrar of the Tribunal means the Registrar of the Tribunal, and includes the Deputy Registrar in the Registry in which the matter before the Tribunal is pending, or other officer for the time being discharging the duties of such Registrar or Deputy Registrar.

2              Form and filing notice of appeal — Form 55A

         (1)   An appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal which shall be in or substantially in the form numbered 55A in Schedule 1.

         (2)   A notice of appeal must be filed in an appropriate Registry.

         (3)   Before or after the filing of a notice of appeal, the Court or a Judge may order that a nominated Registry is the appropriate Registry for that appeal.

2A           Certification of merits of appeal from a migration decision

         (1)   For the purposes of section 486I of the Migration Act 1958, a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.

         (2)   In this rule:

lawyer has the meaning given by section 486K of the Migration Act 1958.

migration litigation has the meaning given by section 486K of the Migration Act 1958.

3              Title of proceedings

         (1)   A notice of appeal and all subsequent proceedings in an appeal shall be entitled ‘In the Federal Court of Australia’ with the name of the Registry in which they are filed, ‘On Appeal From’ the Division of the Tribunal from which the appeal is brought and shall also be entitled as between the party applicant and the party respondent.

         (2)   The notice of appeal shall be signed by the applicant or his solicitor and shall state:

                (a)    the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;

               (b)    the question or questions of law to be raised on the appeal;

                (c)    the order sought; and

               (d)    briefly, but specifically, the grounds relied upon in support of the order sought.

         (3)   The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

         (4)   On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.

4              Appearance

                Where there is a respondent to the appeal, the notice of appeal shall bear a note that before taking any step in the proceedings the respondent must enter an appearance in the Registry.

5              Parties

         (1)   A party who commences a proceeding in the original jurisdiction of the Court under this order shall be an applicant and a party against whom the proceeding is commenced shall be a respondent.

         (2)   Each party to the proceeding in the Tribunal who is affected by the order sought by a notice of appeal or is interested in maintaining the decision under appeal shall be joined as a respondent to an appeal.

         (3)   The Court may order the addition or removal of any person as an applicant or respondent to an appeal.

         (4)   A person shall not be made an applicant without his consent.

6              Filing and service of notice of appeal

         (1)   Within the time specified in paragraph 44 (2A) (a) of the Administrative Appeals Tribunal Act 1975, the party desiring to appeal from the decision shall file a notice of appeal in the appropriate Registry.

         (2)   Within 7 days after the filing of the notice of appeal the applicant shall serve a copy of the notice of appeal upon all the other parties to the proceeding before the Tribunal and upon the Registrar of the Tribunal.

7              Extension of time

         (1)   Application may be made to the Court or a Judge for an extension of the time specified in subsection 44 (2A) of the Administrative Appeals Tribunal Act 1975 for the filing or serving of a notice of appeal either before or after the expiration of the specified time.

         (2)   Such application shall be made in or substantially in the form numbered 55B in Schedule 1.

         (3)   An application shall be accompanied by an affidavit showing:

                (a)    the nature of the case;

               (b)    the questions involved; and

                (c)    the reason why an extension of time should be given.

8              Security for costs

         (1)   The Court may, in special circumstances, order that such security for costs of appeal to the Court be given as it thinks fit.

         (2)   Subject to subrule (1), no security for costs of an appeal to the Court shall be required.

9              Stay

         (1)   An application pursuant to section 44A of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of a decision subject to appeal shall be made to the Court or a Judge by motion upon notice and such motion may be made returnable upon the date fixed for the directions hearing.

         (2)   Such an application may in an urgent case be made ex parte.

10            Documents to be forwarded

         (1)   Within 21 days from the service of the notice of appeal upon the Registrar of the Tribunal there shall be forwarded to the Registry at the proper place:

                (a)    all documents referred to in paragraph 46 (1) (a) of the Administrative Appeals Tribunal Act 1975;

               (b)    a copy of the decision of the Tribunal;

                (c)    where the Tribunal gave reasons in writing for its decision, a copy of the reasons;

               (d)    where a transcript or notes of proceedings before the Tribunal were taken, that transcript or those notes; and

                (e)    a list of the documents forwarded specifying the documents which were before the Tribunal and specifying the documents (if any) in respect of which:

                          (i)    the Tribunal has made an order under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975;

                         (ii)    a certificate of the Attorney‑General is in force under subsection 28 (2) of the Administrative Appeals Tribunal Act 1975; and

                        (iii)    a certificate of the Attorney‑General is in force under subsection 36 (1) of the Administrative Appeals Tribunal Act 1975 and indicating whether an order was made by the Tribunal with respect to such documents under subsection 36 (3) of the Administrative Appeals Tribunal Act 1975.

         (2)   Where the Tribunal does not give reasons in writing for its decision the party appealing shall obtain from the Tribunal in accordance with subsection 43 (2A) of the Administrative Appeals Tribunal Act 1975 a statement in writing of the reasons for its decision and shall forward a copy of the statement to the Registrar of the Tribunal and to the Registry at the proper place within 10 days after receiving it.

         (3)   When the documents referred to in subrules (1) and (2) of this rule have been received in the Registry, the Registrar shall, subject to the provisions of sections 35 and 36 of the Administrative Appeals Tribunal Act 1975 forward a copy of the list of documents to all parties to the appeal.

11            Discontinuance of appeal

         (1)   An applicant may at any time file and serve a notice of discontinuance of the appeal and upon its being filed the appeal shall be abandoned.

         (2)   The notice of discontinuance filed by an applicant under subrule (1) does not affect any other applicant in the appeal.

         (3)   A party filing a notice of discontinuance under subrule (1) shall be liable to pay the costs of the other party or parties occasioned by his appeal.

         (4)   A party whose costs are payable under subrule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter judgment for the taxed costs.

12            Amendment by supplementary notice

         (1)   A notice of appeal may, before the date of the directions hearing, be amended without leave by filing a supplementary notice.

         (2)   A party who files a supplementary notice under subrule (1) shall file and serve it in accordance with rule 6 as if it were a notice of appeal.

         (3)   The Court may allow a notice of appeal to be amended at such time and on such conditions as the Court thinks fit.

13            Notices of contention

         (1)   A respondent who wishes to appeal from a decision, or a part of a decision, from which the applicant has appealed, must:

                (a)    file in the Registry a notice of cross‑appeal within the time mentioned in subsection 44 (2A) of the Administrative Appeals Tribunal Act 1975; and

               (b)    serve a copy of the notice of cross‑appeal upon the applicant and every other party to the proceeding.

         (2)   The notice of cross‑appeal shall state what part of the decision he cross‑appeals from or contends should be varied and shall state:

                (a)    the question or questions of law to be raised on the cross‑appeal;

               (b)    the relief sought in lieu of the decision appealed from or the variation of that decision which is sought; and

                (c)    briefly but specifically the grounds relied upon in support of the relief or variation sought.

         (3)   It is not necessary to give notice of cross‑appeal if a respondent proposes to contend that some matter of law has been erroneously decided against him but does not seek a discharge or variation of a part of the decision actually pronounced or made but he shall:

                (a)    give notice of his contention to the applicant;

               (b)    give notice to the applicant of the record of evidence or documents before the Tribunal relevant to his contention for inclusion in the applicant’s draft index; and

                (c)    at the time when the appeal papers are settled, request that such record of evidence or documents be included in the appeal papers.

14            Directions hearing

         (1)   A notice of appeal shall state a date for a directions hearing.

         (2)   The date for the directions hearing shall be obtained from the Registry and shall be endorsed on the notice of appeal before it is served.

         (3)   A notice of appeal shall, unless the Court or a Judge otherwise orders, be served upon the respondent not less than five days before the date appointed for the directions hearing.

         (4)   Where the Court or a Judge has made an order abridging time, the notice of appeal shall bear a note of the order made.

15            Directions

         (1)   The Court or a Judge may give directions about the conduct of the proceeding.

         (2)   Without limiting subrule (1), the Court or a Judge may do any of the following:

                (a)    determine what documents and matters must be included in the appeal papers and the order of inclusion;

               (b)    determine what documents and matters were before the Tribunal;

                (c)    settle the index in accordance with rule 15A;

               (d)    determine the number of copies of the appeal papers required;

                (e)    give directions, for paragraph 44 (8) (b) of the Administrative Appeals Tribunal Act 1975, for the giving of further evidence;

                (f)    direct the joinder of parties;

               (g)    refer the notice of appeal and any other necessary papers to the Chief Justice for a direction on whether the appeal should be heard by a Full Court;

               (h)    direct the place, time and mode of hearing;

                (i)    determine any other matter for the purpose of preparing the appeal for hearing.

15A         Content of appeal papers

                The appeal papers must:

                (a)    consist of the documents mentioned in the following table, in the order that they appear in the table; and

               (b)    be divided into Parts A, B and C as shown in the table.

Item

Document

 

Part A

1

Title page

2

The index to Part A

3

A copy of the originating application lodged in the tribunal, including each request for directions (if any)

4

A copy of the documents lodged with the tribunal in accordance with section 37 of the Administrative Appeals Tribunal Act 1975

5

A copy of the formal decision of the tribunal and the reasons for the decision

6

A copy of the notice of appeal

7

A copy of any notice of cross‑appeal or any notice of contention

8

A copy of any submitting appearance

9

A copy of the sealed orders of the Court giving leave to appeal or an extension of time to file the appeal (if any)

10

The certificate of correctness mentioned in paragraph 16 (1) (a) relating to Part A

 

Part B

11

Title page

12

The index to Part B

13

A list of the exhibits not reproduced in this Part showing:

   (a)  a brief description of each exhibit; and

  (b)  the exhibit number or letter used to identify each exhibit in the tribunal below

14

Copies of all exhibits relevant to the appeal, cross‑appeal or contention, in the order in which the exhibits were numbered or lettered as exhibits in the tribunal below

15

A copy of each affidavit or part of an affidavit (including any annexures) containing evidence relevant to the appeal, cross‑appeal or contention that was read in the tribunal below

16

The certificate of correctness mentioned in paragraph 16 (1) (a) relating to Part B

 

Part C

17

Title page

18

The index to Part C

19

A list of the pages of transcript of oral evidence (including the names of the relevant witnesses and the dates of the hearing to which the pages relate) that are not reproduced

20

A copy of the transcript of oral evidence relevant to the appeal

21

A copy of each additional transcript (if any) relevant to the appeal

22

The certificate of correctness mentioned in paragraph 16 (1) (a) relating to Part C

15B         Preparation of appeal papers

         (1)   The title page of each Part of the appeal papers must include:

                (a)    the title of the proceeding, including the title of the Tribunal from which the appeal is brought; and

               (b)    the names of the members constituting the Tribunal; and

                (c)    the name and address for service of the lawyer for each party.

         (2)   The index of each Part of the appeal papers must show the date and page number of each document included in that Part.

         (3)   The numbering of the pages of Parts A, B and C of the appeal papers must:

                (a)    be legible and distinct from any other numbering; and

               (b)    for Part A — begin with the number 1 and commence at item 3; and

                (c)    for Part B — begin with the number immediately after the number of the last page in Part A and commence at item 13; and

               (d)    for Part C — begin with the number immediately after the number of the last page in Part B and commence at item 21.

         (4)   The pages of items 23 and 24 of Part C of the appeal papers must be numbered in accordance with the official transcript numbers.

         (5)   If any Part of the appeal papers consists of more than one volume, the page numbers must continue consecutively from one volume to the next volume.

         (6)   The appeal papers need not be in bound and printed form but must be clear and legible and securely fastened.

16            Filing of appeal papers

         (1)   The appellant must file:

                (a)    a copy of the appeal papers that includes a certificate, in each Part of the papers:

                          (i)    signed by each party or the party’s lawyer; and

                         (ii)    stating that the Part has been examined and is correct.

               (b)    the number of copies of the appeal papers determined by the Registrar under paragraph 15 (2) (d).

         (2)   The Registrar may refuse to accept appeal papers that do not comply with these Rules.

16A         Written submissions

                The provisions of Order 52 rules 30, 32, 33 and 34 shall apply mutatis mutandis to an appeal under this Order.

18            Setting down appeal

         (1)   Within 14 days after settlement of appeal papers, an applicant must file a notice in accordance with Form 44 requesting the Registrar to fix a date for trial.

         (2)   Within 7 days after being notified by the Registrar of the date for trial, the applicant must:

                (a)    file in the Registry a notice in accordance with Form 44A; and

               (b)    serve a copy of the notice on all other parties to the proceeding.

Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to setting‑down fees.

19            Time for entry of appeal

         (1)   If the applicant does not enter the appeal for hearing within the time prescribed by rule 18, any other party to the appeal may enter the appeal for hearing or apply to the Court or a Judge by motion upon notice for an order dismissing the appeal for want of prosecution.

         (2)   When an application is made to the Court or a Judge under subrule (1), the Court or a Judge may order the appeal to be dismissed or may make such other order as is thought to be just.

20            Time: want of prosecution

         (1)   Where an applicant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

                (a)    order that the appeal shall be dismissed for want of prosecution; or

               (b)    fix a time peremptorily for the doing of the act and at the same time order that upon non‑compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non‑compliance, order that it be so dismissed; or

                (c)    make any other order as may seem just.

         (2)   The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

         (3)   An order under paragraph (1) (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

Order 53B    Appeals from the Superannuation Complaints Tribunal

  

  

1              Application of Order 53B

                This Order applies to an appeal to the Court, under section 46 of the Superannuation (Resolution of Complaints) Act 1993, from a determination of the Superannuation Complaints Tribunal.

2              Application of Order 53

         (1)   Order 53 applies, with any necessary changes and subject to subrule (2), to an appeal to which this Order applies.

         (2)   For an appeal to which this Order applies:

appropriate registry means the Registry in the State or Territory in which the applicant ordinarily resides.

Order 54      Administrative Decisions (Judicial Review) Act 1977

  

  

1              Application

                Subject to this Order, the Rules of Court prescribe the manner of making an application under the Administrative Decisions (Judicial Review) Act 1977.

2              Form of application — Form 56

         (1)   An application for an order of review made under the Administrative Decisions (Judicial Review) Act 1977 shall be in, or substantially in, the form numbered 56 in Schedule 1.

         (2)   If the grounds of the application include an allegation of fraud or bad faith, the applicant shall set out in the application particulars of the fraud or bad faith on which he relies.

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.

3              Documents to be filed

         (1)   On the filing of an application for an order of review or as soon afterwards as is practicable, the applicant shall file copies of such of the following documents as are in his possession:

                (a)    a statement of the terms of the decision the subject of the application; and

               (b)    a statement with respect to that decision furnished to the applicant pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 or section 28 of the Administrative Appeals Tribunal Act 1975, or any other statement furnished by or on behalf of the person who made the decision purporting to set out findings of facts or a reference to the evidence or other material on which those findings were based or the reasons for making the decision;

unless a copy of that document has been filed previously in the proceeding.

         (2)   An applicant who files a copy of a statement pursuant to subrule (1) of this rule shall serve a copy of the statement on the other parties to the application within 5 days of filing.

4              Notice of objection to competency — Form 57

                If a respondent to an application objects to the competency of the application he shall, within 14 days after service upon him of the application, file and serve upon the other parties to the proceeding a notice of objection to competency, in accordance with Form 57, stating briefly the grounds of his objection.

5              Directions

                In addition to the powers of the Court under Order 10 of these Rules the Court may give directions:

                (a)    that a party serve a copy of the application upon the Attorney‑General of the Commonwealth;

               (b)    that a party give notice of the application to such persons or classes of persons in such manner as the Court directs; and

                (c)    where a notice of objection to competency has been filed by a party, that the objection be heard and determined before the hearing of the application to which the objection to competency relates.

6              Staying or dismissal of applications

                In applying Order 20, rule 4 to an application under the Administrative Decisions (Judicial Review) Act 1977, the rule must be interpreted as if paragraph (1) (a) of the rule read ‘no reasonable basis for the application is disclosed’.

7              Application for summary judgment, stay or dismissal

         (1)   A party may apply to the Court:

                (a)    for a judgment in an application for an order of review under Order 20, rule 2 or section 31A of the Act; or

               (b)    to have an application for an order of review stayed or dismissed:

                          (i)    under Order 20, rule 4 or 5; or

                         (ii)    on a ground set out in section 10 of the Administrative Decisions (Judicial Review) Act 1977; or

                        (iii)    in the exercise of the Court’s discretion.

         (2)   An application under this rule must be made within 14 days after the party is served with the application for an order of review.

8              Use of affidavit without cross‑examination of maker

                Notwithstanding Order 14 rule 9, the Court may dispense with the attendance for cross‑examination of a person making an affidavit and may direct that an affidavit be used without the person making the affidavit being cross‑examined thereon.

Order 54A    Judiciary Act 1903; section 39B Mandamus, prohibition, injunction against an officer of the Commonwealth

  

  

1              Application

                Subject to this Order, the Rules of Court prescribe the manner of making an application under section 39B of the Judiciary Act 1903.

2              Form of application

         (1)   An application shall be in or substantially in the form numbered 5 in Schedule 1.

         (2)   The application shall be entitled:

(name of applicant(s))                                             Applicant(s)

                (name and title of the officer or officers of the Commonwealth against whom the order is sought and the name or names of any other person against whom orders are sought)

Respondent(s)

3              Joinder of claims for relief

         (1)   Subject to subrule (2) any other claim for relief coming within the jurisdiction of the Court and which arises out of or relates to or is connected with the same subject matter, may be joined in an application under this Order.

         (2)   Where, on an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977, relief is sought also pursuant to section 39B of the Judiciary Act 1903 and this arises out of or relates to or is connected with the same subject matter, then the application for that order of review and for relief under section 39B of the Judiciary Act 1903 shall be made in the one application which shall, with all necessary adaptations, be in or substantially in the form numbered 56 in Schedule 1 and the provisions of Order 54 shall, with all necessary adaptations, apply to that application.

Order 54B    Applications in relation to migration decisions under Migration Act 1958

  

  

1              Application

                This Order applies to the making of an application in relation to a migration decision (within the meaning of the Migration Act 1958) in relation to which the Court has original jurisdiction under paragraph 476A (1) (a), (b) or (c) of that Act.

2              Form of application — Form 56A

         (1)   An application to which this Order applies must be in accordance with Form 56A.

      (1A)   A lawyer (within the meaning of section 486K of the Migration Act 1958) must not file an application unless the application includes, or is accompanied by, a certificate under section 486I of that Act in accordance with Form 56B signed by the lawyer.

      (1B)   An application in relation to a tribunal decision (within the meaning of section 486D of the Migration Act 1958) must include a disclosure under section 486D of that Act.

         (2)   If the grounds of the application include an allegation of fraud or bad faith, the application must give particulars of the alleged fraud or bad faith.

3              Notice of objection to competency — Form 57

                If a respondent to an application under this Order objects to the competency of the application, the respondent must, within 14 days after service upon him of the application, file and serve on the other parties to the proceeding a notice of objection stating briefly the grounds of the objection.

4              Directions

                In addition to the powers of the Court under Order 10 of these Rules, the Court may give directions:

                (a)    that a party serve a copy of the application on the Attorney‑General of the Commonwealth;

               (b)    that a party give notice of the application to such persons, or classes of persons, in such manner as the Court directs; and

                (c)    if a notice of objection to competency has been filed by a party — that the objection be heard and determined before the hearing of the application to which the objection to competency relates.

5              Staying or dismissal of applications

                In applying Order 20, rule 4 to an application to which this Order applies, the rule must be interpreted as if paragraph (1) (a) of the rule read ‘no reasonable basis for the application is disclosed’.

6              Application for summary judgment, stay or dismissal

         (1)   A party may apply to the Court:

                (a)    for a judgment in an application for an order of review under Order 20, rule 2 or section 31A of the Act; or

               (b)    to have an application to which this Order applies dismissed:

                          (i)    under Order 20, rule 4 or 5; or

                         (ii)    in the exercise of the Court’s discretion.

         (2)   An application under this rule must be made within 14 days after the party is served with the application to which this Order applies.

7              Use of affidavit without cross‑examination of maker

                Notwithstanding Order 14, rule 9, the Court may dispense with the attendance for cross‑examination of a person making an affidavit and may direct that an affidavit be used without the person making the affidavit being cross‑examined thereon.

8              Application for extension of time

         (1)   An application for extension of time must be made by lodging an application, in accordance with Form 56A, that includes a claim for:

                (a)    each remedy sought; and

               (b)    the extension of time.

         (2)   An application for extension of time must be accompanied by an affidavit showing all of the following:

                (a)    the nature of the case;

               (b)    the questions involved;

                (c)    the reasons why it is necessary, in the interests of the administration of justice, that the extension of time be given.

         (3)   A lawyer (within the meaning of section 5 of the Migration Act 1958) must not file an application for extension of time unless the application includes, or is accompanied by, a certificate:

                (a)    under section 486I of the Migration Act 1958; and

               (b)    in accordance with Form 56B; and

                (c)    signed by the lawyer.

         (4)   In this rule:

application for extension of time means an application for an order under subsection 477A (2) of the Migration Act 1958 for an extension of the time within which to lodge an application for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A (1) (b) or (c) of that Act.

Order 56      Health Insurance Act 1973

  

  

1              Interpretation

                In this Order:

Tribunal means the Medical Services Review Tribunal or the Optometrical Services Review Tribunal whose decision is under appeal.

Minister has the same meaning as in the Health Insurance Act 1973.

Committee means the Medical Services Committee of Inquiry upon whose recommendation the Minister made the determination that gave rise to the proceedings.

2              Rules applicable

                An appeal to the Court from a decision of the Tribunal shall be instituted and conducted in a like manner as an appeal to the Court from a decision of the Administrative Appeals Tribunal is instituted and conducted and Order 53 shall apply thereto mutatis mutandis and subject to any directions of the Court or a Judge.

3              Documents to be forwarded

                The documents to be forwarded by the Tribunal to the Registry at the proper place, pursuant to the application mutatis mutandis of Order 53, rule 10 shall be copies of:

                (a)    the reference to the Committee that gave rise to the Minister’s determination;

               (b)    the transcript of proceedings at the hearing conducted by the Committee for the purposes of that reference;

                (c)    the Committee’s report on that reference and any documents sent to the Minister with that report;

               (d)    the Minister’s determination;

                (e)    the notice requesting the Minister to refer his determination to the Tribunal;

                (f)    the reasons for the decision of the Tribunal;

               (g)    the formal decision of the Tribunal;

               (h)    the transcript of proceedings before the Tribunal;

                (i)    any other documents before the Tribunal; and

                (j)    a list of the documents forwarded.

Order 57      Australian Crime Commission Act 2002

  

  

1              Applications for review under Administrative Decisions (Judicial Review) Act 1977 (as varied by section 57 of Australian Crime Commission Act 2002)

         (1)   Subject to subrules (2) and (3), Order 54 applies to an application for review of a matter arising under the Australian Crime Commission Act 2002.

         (2)   An applicant who files a copy of a statement under Order 54, subrule 3 (1) must serve a copy of the statement on each other party to the proceeding not later than the next day after the statement is filed.

         (3)   The time limited by Order 54, rule 4 for filing and serving a notice of objection to competency of an application is reduced to 5 days after service of the application.

Order 58      Intellectual property

Part I                  Intellectual property cases generally

  

1              Interpretation

         (1)   In this Order, unless the contrary intention appears:

Advance Australia Logo Protection Act means the Advance Australia Logo Protection Act 1984.

Circuit Layouts Act means the Circuit Layouts Act 1989.

Commissioner means:

                (a)    in relation to proceedings under the Patents Act — the person holding the office of Commissioner under that Act; and

               (b)    in relation to proceedings under the Designs Act — the person holding the office of Registrar under that Act; and

                (c)    in relation to proceedings under the Trade Marks Act — the person holding the office of Registrar under that Act; and

               (d)    in relation to proceedings under the Olympic Insignia Protection Act — the person holding the office of Registrar under the Designs Act;

whether or not any two or more of those offices must be, or are for the time being, occupied by the same person.

Copyright Act means the Copyright Act 1968.

decision includes a direction or determination made by the Commissioner.

Designs Act means the Designs Act 2003.

intellectual property case means:

                (a)    a proceeding arising in respect of infringement of:

                          (i)    the monopoly in the design of a logo provided for by the Advance Australia Logo Protection Act; or

                         (ii)    a copyright subsisting under the Copyright Act; or

                        (iii)    the monopoly in a design registered under the Designs Act; or

                        (iv)    a patent granted under the Patents Act; or

                         (v)    a trade mark registered under the Trade Marks Act; or

                        (vi)    the monopoly in a protected design provided for by the Olympic Insignia Protection Act; or

                       (vii)    EL rights subsisting under the Circuit Layouts Act; or

                      (viii)    plant variety rights granted under the Plant Variety Rights Act; or

               (b)    an application, appeal or other proceeding under a subject Act, whether or not joined with any other claim or cause of action, unless the proceeding is one to which Order 54 or 54A applies.

Olympic Insignia Protection Act means the Olympic Insignia Protection Act 1987.

Patents Act means the Patents Act 1990.

Plant Breeder’s Rights Act means the Plant Breeder’s Rights Act 1994.

PBR has the same meaning as in the Plant Breeder’s Rights Act 1994.

subject Act means the Advance Australia Logo Protection Act, the Circuit Layouts Act, the Copyright Act, the Designs Act, the Olympic Insignia Protection Act, the Patents Act, the Plant Variety Rights Act or the Trade Marks Act, as the case requires.

Trade Marks Act means the Trade Marks Act 1995.

         (2)   In this Order, the words plaintiff and defendant in the Patents Act are taken to have the same meaning, respectively, as applicant and respondent.

         (3)   An expression used in this Order that is also used in a provision of a subject Act under which, or in relation to which, proceedings are taken has the same meaning in this Order as it has in that provision.

2              Application of Order

         (1)   This Order applies to intellectual property cases.

         (2)   Subject to this Order and to any other law of the Commonwealth, the other Orders of these Rules apply to intellectual property cases.

3              Appearance by the Commissioner

                The Commissioner may appear and be heard in any proceedings, but is not a party to proceedings other than an appeal:

                (a)    from a decision of the Commissioner; and

               (b)    in which there is no party in opposition to the party bringing the appeal.

Part II                 Appeals from decision etc of Commissioner

  

4              Form and filing of notice of appeal — Form 58A

         (1)   An appeal from a decision of the Commissioner is instituted by filing in an appropriate Registry a notice of appeal in accordance with Form 58A.

         (2)   An appeal must be instituted within 21 days after the date of the decision appealed from or within such further time as the Court fixes, unless a law of the Commonwealth provides otherwise.

      (2A)   The notice of appeal must be served on the Commissioner and all other parties to the appeal within 5 days of day on which the notice of appeal is filed.

         (3)   Application may be made to the Court to extend the time for filing, by notice of motion:

                (a)    made at any time — unless a law of the Commonwealth provides otherwise; and

               (b)    supported by affidavit showing special circumstances.

         (4)   If application is made under subrule (3), a copy of the notice of motion and supporting affidavit must be served on the Commissioner and on the persons directly affected by the appeal, not later than 14 days before the day appointed for the directions hearing.

         (5)   In this rule, appropriate registry means:

                (a)    the Registry at the place where the applicant prefers the appeal to be heard; or

               (b)    the Registry determined at any time by order of the Court or a Judge to be an appropriate Registry.

5              Notice of appeal etc

         (1)   Documents filed in an appeal must include in the title to the proceedings the title or description of the decision‑maker from whose decision the appeal is brought.

         (2)   A notice of appeal must also state:

                (a)    the decision from which the appeal is brought and the date of the decision;

               (b)    whether the appeal is from the whole or a part of the decision (including, if from a part only, details of the part);

                (c)    the order or orders sought;

               (d)    the grounds relied on in support of each order sought;

                (e)    the particulars of each ground relied on; and

                (f)    the date given by the Registry for the directions hearing.

         (3)   Except by the leave of the Court, evidence is not admissible in proof of:

                (a)    a ground of appeal not stated in the notice of appeal; or

               (b)    a ground of appeal of which particulars have not been given in the notice of appeal.

5AA        Particulars of non‑patentable invention

         (1)   This rule applies to an appeal from a decision of the Commissioner under a provision of the Patents Act.

         (2)   For paragraph 5 (2) (e), if a ground relied on in an appeal is that the invention is not a patentable invention because information about the invention has become publicly available in a document or through the doing of an act, the particulars of that ground must include:

                (a)    in the case of a document — the time when, and the place where, the document is alleged to have become publicly available; and

               (b)    in the case of an act:

                          (i)    the name of the person alleged to have done the act; and

                         (ii)    the period in which, and the place where, the act is alleged to have been done publicly; and

                        (iii)    a description that is sufficient to identify the act; and

                        (iv)    if the act relates to apparatus or machinery — whether the apparatus or machinery exists and, if so, where it can be inspected.

         (3)   For paragraph 5 (2) (e), if:

                (a)    a ground relied on in an appeal, in relation to a claim of the complete specification of a patent, is that the invention concerned is not useful; and

               (b)    it is intended, in connection with that ground, to rely on the fact that an example of the invention that is the subject of the claim cannot be made to work, either at all or as described in the specification;

the particulars of that ground must include particulars of each such example of the invention, specifying the respect in which it is alleged that it does not work as described.

5A           Cross‑appeals and notices of contention

         (1)   A respondent to an appeal from a decision of the Commissioner who desires to appeal from the whole or a part of the decision need not institute a substantive appeal, but must:

                (a)    within 21 days after the service on the respondent of the notice of appeal (or within such further time as the Court or a Judge fixes), file in the Registry a notice of cross‑appeal; and

               (b)    serve a copy of the notice of cross‑appeal on the Commissioner, the applicant and any other person who may be affected by the relief sought in the notice of cross‑appeal.

         (2)   A notice of cross‑appeal must:

                (a)    state whether the appeal is from the whole or a part of the decision (including, if the appeal is from a part only, details of the part); and

               (b)    state the order or orders sought; and

                (c)    state briefly the specific grounds relied on in support of the order or orders sought. 

         (3)   If a respondent to an appeal from a decision of the Commissioner wishes to contend that the Commissioner’s decision should be supported and, if appropriate, affirmed on a ground other than that relied on by the Commissioner, but does not seek a reversal or variation of the Commissioner’s decision, the respondent need not give a notice of cross‑appeal but must:

                (a)    file in the Registry a notice of contention; and

               (b)    serve on the applicant and on the Commissioner a copy of the notice of contention; and

                (c)    give notice to the applicant and to the Commissioner of the record of evidence and documents before the Commissioner that are relevant to the contention. 

6              Provision of documents by Commissioner

                Not later than 14 days after being served with a notice of appeal, the Commissioner must:

                (a)    file in the appropriate Registry the documents (or certified copies of those documents) necessary for the hearing that are in the Commissioner’s possession, and a list of the documents; and

               (b)    give the parties to the appeal notice in writing of the documents filed.

7              Directions hearing

                A directions hearing must be fixed for a date not earlier than 28 days after the day notice of appeal is filed.

8              Evidence

         (1)   Material before the Commissioner for the purpose of the decision appealed from is, with the leave of the Court and saving all just exceptions, admissible in evidence on the hearing of the appeal.

         (2)   At the directions hearing in respect of an appeal from a decision under the Patents Act, the Court may give directions, for the purposes of paragraph 160 (a) of that Act, as to the giving of further evidence.

Part III                 Other proceedings under a subject Act

Division 1              Patents Act

9              Application of Division

                This Division applies to proceedings under the Patents Act other than an appeal from a decision of the Commissioner.

10            Applications under subsection 105 (1) of Patents Act (amendments)

         (1)   An application for an order under subsection 105 (1) of the Patents Act may be made only after the applicant gives to the Commissioner a notice of intention to apply accompanied by an advertisement that states:

                (a)    the identity of the proceedings, or pending proceedings, in which the application will be made;

               (b)    the particulars of the amendment sought;

                (c)    the applicant’s address for service; and

               (d)    that a person intending to oppose the application who is not a party to the proceedings or pending proceedings must, not later than 28 days after publication of the advertisement, give written notice of that intention to the Commissioner and to the persons who are parties to the proceedings.

         (2)   The Commissioner must publish the advertisement in the Official Journal once unless the Court otherwise orders.

         (3)   A person who gives notice under paragraph (1) (d) is entitled to be heard in opposition to the application, subject to any direction of the Court as to costs.

         (4)   The application may be instituted by filing a notice of motion in the relevant proceedings before the end of 50 days after the date of publication of the advertisement.

         (5)   A copy of the notice of motion, together with a copy of the patent, patent request or complete specification, as appropriate, showing in ink of contrasting colour the amendment sought, must be served on the Commissioner, each party to the proceedings and each person who has given notice under paragraph (1) (d).

         (6)   On the hearing of the motion, the Court may give any direction it thinks fit for the conduct of that proceeding, including a direction:

                (a)    requiring the applicant to give to each party or other person who opposes the application a statement of the grounds relied on for the amendment;

               (b)    requiring a party or other person opposing the application to give to the applicant a statement of the grounds relied on in opposition to the amendment;

                (c)    determining that the motion will be heard with the relevant proceedings or separately and, if separately, fixing the date for hearing the motion;

               (d)    determining the manner in which evidence will be adduced and, in the case of evidence by affidavit, fixing the times within which the affidavits must be filed and served.

11            Applications under subsection 120 (1) of Patents Act (infringements)

         (1)   Notwithstanding Order 4 rule 11, an application under subsection 120 (1) of the Patents Act and an affidavit or statement of claim must be served, not later than 14 days before the date appointed for the directions hearing:

                (a)    on the respondent in the proceeding and, if the applicant is an exclusive licensee, the patentee; and

               (b)    on the Commissioner.

      (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.

         (2)   Particulars of infringements complained of must give at least one instance of each type of infringement alleged and must specify, in proceedings for infringement of a standard patent, which of the claims of the complete specification of that patent are alleged to be infringed.

         (3)   A respondent relying on a defence under subsection 144 (4) of the Patents Act must give particulars of:

                (a)    the date of, and the parties to, a contract on which the respondent intends to rely for the defence; and

               (b)    the provision of the contract that the defendant asserts is void.

12            Applications under subsection 125 (1) of Patents Act (non‑infringement declarations)

                Notwithstanding Order 4 rule 11, an application under subsection 125 (1) of the Patents Act and an affidavit or statement of claim must be served, not later than 14 days before the date appointed for the directions hearing:

                (a)    on the nominated person, or the patentee, as the case requires; and

               (b)    on the Commissioner.

13            Applications under subsection 128 (1) of Patents Act (relief from unjustified threat)

                Notwithstanding Order 4 rule 11, an application under subsection 128 (1) of the Patents Act and an affidavit or statement of claim must be served, not later than 14 days before the date appointed for the directions hearing:

                (a)    on the person making the threat; and

               (b)    on the Commissioner.

14            Applications under Chapter 12 of Patents Act (compulsory licences, revocation etc)

         (1)   Notwithstanding Order 4 rule 11, an application under subsection 133 (1), 134 (1) or 138 (1) of the Patents Act and an affidavit or statement of claim must be served, not later than 14 days before the date appointed for the directions hearing:

                (a)    on the patentee; and

               (b)    as a further respondent — on any person who claims an interest in the patent as exclusive licensee or otherwise; and

                (c)    on the Commissioner.

         (2)   An application and affidavit or statement of claim referred to in this rule must comply with Chapter 12 of the Patents Regulations.

      (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.

         (3)   An application for leave under subsection 137 (4) of the Patents Act may be made by notice of motion in the pending proceedings.

15            Particulars of invalidity

         (1)   A party who disputes the validity of a patent must deliver with the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.

         (2)   If one of the grounds referred to in subrule (1) is that the invention is not a patentable invention because of information about the invention in a document or through the doing of an act, the particulars must specify:

                (a)    in the case of a document — the time when, and the place where, the document is alleged to have become publicly available; and

               (b)    in the case of an act:

                          (i)    the name of the person alleged to have done the act; and

                         (ii)    the period in which, and the place where, the act is alleged to have been done publicly; and

                        (iii)    a description that is sufficient to identify the act; and

                        (iv)    if the act relates to apparatus or machinery — whether the apparatus or machinery exists and, if so, where it can be inspected.

         (3)   If one of the grounds referred to in subrule (1) is:

                (a)    that the invention, so far as claimed in any claim of the complete specification of the patent, is not useful; and

               (b)    it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification;

the particulars must identify each such claim and state that fact and must include particulars of each such example, specifying the respect in which it is alleged that it does not work as described.

         (4)   Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.

Division 2              Copyright Act

16            Applications under Copyright Act (infringements)

                In proceedings for infringement of copyright, particulars of the infringement must specify the manner in which the copyright is alleged to be infringed and must give at least one instance of each type of infringement alleged.

Division 3              Trade Marks Act

17            Application of Division

                This Division applies to proceedings under the Trade Marks Act other than an appeal from a decision of a Commissioner.

18            Applications under Trade Marks Act (infringements)

                In proceedings for the infringement of a registered trade mark, particulars of the infringement must specify the manner in which the trade mark is alleged to be infringed and must give at least one instance of each type of infringement alleged.

19            Particulars of invalidity

         (1)   A party who disputes the validity of the registration of a registered trade mark must deliver, with the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.

         (2)   Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.

Division 4              Designs Act

20            Application of Division

                This Division applies to proceedings under the Designs Act other than an appeal from a decision of the Commissioner.

21            Applications under Designs Act (infringements)

                In proceedings for the infringement of the monopoly in a registered design, particulars of the infringement must specify the manner in which the design is alleged to be infringed and must give at least one instance of each type of infringement alleged.

22            Revocation of registration or rectification of Register

         (1)   An application for an order:

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

               (b)    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.

         (2)   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).

23            Application for compulsory licence

                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:

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

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

                (c)    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.

Division 5              Circuit Layouts Act

24            Applications under subsection 20 (2) of the Circuit Layouts Act (equitable remuneration)

                Proceedings to determine equitable remuneration under subsection 20 (2) of the Circuit Layouts Act must be commenced by an application in accordance with Form 64.

25            Applications under subsection 25 (4) of the Circuit Layouts Act (terms of the doing of the act)

                Proceedings to determine the terms of the doing of the act under subsection 25 (4) of the Circuit Layouts Act must be commenced by an application in accordance with Form 65.

26            Applications under Circuit Layouts Act (infringements)

                In proceedings for infringement of EL rights, particulars of the infringement must specify the manner in which it is alleged the EL rights have been infringed and must give at least one instance of each type of infringement alleged.

Division 6              Plant Breeder’s Rights Act

27            Applications under Plant Breeder’s Rights Act (infringements)

         (1)   In proceedings for infringement of a PBR, particulars of the infringement must specify the manner in which it is alleged the PBR has been infringed and must give at least one instance of each type of infringement alleged.

         (2)   A respondent in the proceedings who relies on subsection 54 (2) of the Plant Breeder’s Rights Act by way of counter‑claim must give:

                (a)    particulars of the facts intended to be relied on to show that the plant variety was not a new plant variety; or

               (b)    particulars of the facts intended to be relied on as facts which, if known, would have resulted in the refusal of the grant of the PBR.

Division 7              Olympic Insignia Protection Act

28            Application of Division

                This Division applies to proceedings under the Olympic Insignia Protection Act other than an appeal from a decision of the Commissioner.

29            Application under Olympic Insignia Protection Act (infringements)

                In proceedings for infringement of the monopoly in a protected design, particulars of the infringement must specify the manner in which the design is alleged to be infringed and must give at least one instance of each type of infringement alleged.

30            Particulars of grounds for rectification or of invalidity

         (1)   A party who:

                (a)    applies under subsection 12 (6) or 12 (9) of the Olympic Insignia Protection Act for the rectification of the register; or

               (b)    disputes the validity of a protected design;

must deliver with the pleading or other document in which the party makes that application or disputes the validity of the protected design, particulars of the grounds for rectification or of invalidity on which the party relies.

         (2)   If one of the grounds referred to in subrule (2) is previous publication or user, the particulars must state the time and place of the previous publication or user alleged, and, in the case of previous user, the particulars must:

                (a)    specify the name of the person who is alleged to have been the previous user;

               (b)    specify the period during which the previous user is alleged to have continued; and

                (c)    contain a description sufficient to identify the previous user.

         (3)   Except by leave of the Court evidence is not admissible in proof of a ground for rectification or of invalidity of which particulars have not been given.

Part IV                Evidence

  

31            Experimental proof as evidence

         (1)   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.

         (2)   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:

                (a)    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;

               (b)    any persons who must be permitted to attend the conduct of the experiment;

                (c)    the time when, and the place where, the experiment must be conducted;

               (d)    the means by which the conduct and results of the experiment must be recorded;

                (e)    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.

         (3)   Evidence of the conduct and results of the experiment is not admissible in the proceeding except:

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

               (b)    with the leave of the Court.

         (4)   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.

Order 59      Moomba‑Sydney Pipeline System Sale Act 1994

  

  

1              Appeals from determinations of Australian Competition Tribunal under section 126

                An appeal to the Court under section 126 of the Moomba‑Sydney Pipeline System Sale Act 1994 from a determination of the Australian Competition Tribunal is to be instituted by filing a notice of appeal in accordance with Form 55A.

2              Enforcement under Part 6, Division 6

                An application made to the Court under Part 6, Division 6 of the Moomba‑Sydney Pipeline System Sale Act 1994 must be made by filing an application in accordance with Form 5.

3              Inquiry by Court under subsection 124 (3) where non‑compliance with requirements of Australian Competition and Consumer Commission

         (1)   For the purposes of an inquiry under subsection 124 (3) of the Moomba‑Sydney Pipeline System Sale Act 1994, the Australian Competition and Consumer Commission must file:

                (a)    an application made in accordance with Form 5; and

               (b)    an affidavit certifying the details of non‑compliance with the requirements of the Australian Competition and Consumer Commission and annexing a copy of the notice given under section 95 of that Act.

         (2)   In addition to the powers of the Court under Order 10 of these Rules, the Court may give directions as it thinks fit for the conduct of the inquiry, including directions as to the filing of a statement of facts and contentions by the respondent.

Order 60      Customs Act 1901

  

  

1              Proceedings under section 243B of Customs Act

         (1)   A proceeding under section 243B of the Customs Act 1901 shall be instituted by filing an application in accordance with Order 4, Rule 1.

         (3)   The person against whom an order under section 243B is sought shall be called a defendant.

2              Applications under section 243F of Customs Act

         (1)   When an application has been instituted under section 243B
of the Customs Act 1901, the applicant may in the same application ask the Court for an order directing the Official Trustee to take control of property pursuant to section 243F of the Act.

         (2)   The provisions of Order 26 relating to the appointment of receivers do not apply where the Official Trustee is, by order of the Court, directed to take control of any property pursuant to an application made under section 243F of the Customs Act 1901.

Order 61      Complaints (Australian Federal Police) Act 1981

  

  

1              Interpretation

                In this Order:

Disciplinary Tribunal has the same meaning as in the Complaints (Australian Federal Police) Act 1981.

2              Rules applicable

                Subject to Division 5 of Part VI of the Complaints (Australian Federal Police) Act 1981, the provisions of Order 53 shall apply mutatis mutandis to an appeal to the Court on a question of law from the Disciplinary Tribunal made pursuant to section 79 of that Act.

Order 61A    Australian Federal Police Act 1979

  

  

1              Appeal from decision of Disciplinary Tribunal

                Subject to rule 2 of this Order, the provisions of Order 53 shall apply mutatis mutandis, to an appeal to the Court from the Disciplinary Tribunal made pursuant to section 48 of the Australian Federal Police Act 1979.

2              Notice of appeal

                The notice of appeal shall state the question or questions of law and/or the question or questions of fact to be raised on the appeal.

Order 62      Costs

  

  

1              Interpretation

                In this Order unless the contrary intention appears:

bill means bill of costs; and

taxed costs means costs taxed in accordance with this Order.

1A           Party represented by officer of the Crown

                If a party is represented by a lawyer (as counsel) who is a law officer or an employee of the Crown, a fee commensurate with that which would be allowable if the lawyer had been a private lawyer may be allowed despite the fact that the party is unable to vouch payment of the fee either by the signature of the lawyer or otherwise.

2              Application

                The provisions of this Order apply to costs payable or to be taxed under any order of the Court, or under the Rules, and costs to be taxed in the Court under any Act.

3              Time for dealing with costs

         (1)   The Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding.

         (2)   Where the Court makes an order in any proceeding for the payment of costs the Court may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded.

         (3)   An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.

4              Taxed costs and other provisions

         (1)   Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to any person, that person shall be entitled to his taxed costs.

         (2)   Where the Court orders that costs be paid to any person, the Court may further order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that person shall be entitled to:

                (a)    a proportion specified in the order of the taxed costs; or

               (b)    the taxed costs from or up to a stage of the proceedings specified in the order; or

                (c)    a gross sum specified in the order; or

               (d)    a sum in respect of costs to be ascertained in such manner as the Court may direct.

         (3)   The Court may make an order under subrule (2) at any time, whether or not an order that costs be paid to a person has previously been made or entered.

5              Costs in other courts

                Where in a proceeding transferred to or removed into the Court or in a proceeding on an appeal to the Court, the Court makes an order as to the costs of a proceeding before any other court, the Court may:

                (a)    specify the amount of the costs to be allowed;

               (b)    order that the costs be taxed in accordance with this Order; or

                (c)    make orders for the ascertainment of the costs by taxation or otherwise in that other court.

6              Order for payment

                Subject to this Order or to the effect of any agreement between the parties a party to a proceeding in the Court shall not be entitled to recover any costs of and incidental to the proceeding from any other party to the proceeding except under an order of the Court.

7              Order for taxation — when not required

         (1)   Where:

                (a)    an order of the Court directs the payment of costs;

               (b)    the proceeding is dismissed with costs;

                (c)    a motion is refused with costs;

               (d)    a party may tax costs under rule 26 on the discontinuance of a proceeding or under Order 52, rule 19 upon the discontinuance of an appeal;

                (e)    a party may tax costs under subrule 27 (1) or (2) on the acceptance of money paid into Court; or

                (f)    a party is otherwise liable under these Rules to pay the costs of another party;

the costs may be taxed without any order directing taxation.

         (2)   Where:

                (a)    a proceeding is dismissed with costs; or

               (b)    a motion is refused with costs;

and the costs are not paid within 14 days after service of a sealed copy of a certificate of taxation of the costs, a party to whom the costs are payable may enter an order for the payment of taxed costs.

8              Registrar to tax costs

         (1)   Unless the Court or a Judge in a particular case otherwise orders, bills of costs and fees which:

                (a)    are payable to lawyers in respect of business transacted by them in the Court or its registries; and

               (b)    have been directed by a judgment or order to be taxed or under these Rules are liable to be taxed without express direction;

shall be taxed allowed and certified by a taxing officer.

         (2)   Unless the taxing officer appoints a time for taxation under subrule 41 (1), a bill will be assessed in accordance with rule 46.

         (3)   In subrule (2):

bill does not include a short form bill under:

                (a)    rule 40A; or

               (b)    rule 40B; or

                (c)    rule 13.03 of the Bankruptcy Rules.

9              Liability of legal practitioner [see Note 3]

         (1)   Without limiting the Court’s discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a lawyer is responsible (whether personally or through a servant or agent), the Court may, after giving the lawyer a reasonable opportunity to be heard, do any of the following:

                (a)    disallow the costs as between the lawyer and the lawyer’s client;

               (b)    if the lawyer is a barrister — disallow the costs as between the barrister and the barrister’s instructing solicitor;

                (c)    direct the lawyer to repay to the client, costs which the client has been ordered to pay to another party;

               (d)    direct the lawyer to indemnify any party other than the client against costs payable by the party indemnified.

Note    A lawyer acting for a party in a civil proceeding must take account of the party’s duty to conduct the proceeding consistently with the overarching purpose described in section 37M of the Act, and assist the party to comply with that duty. When deciding whether to award costs, a Court or Judge must take into account any failure by the lawyer to comply with this obligation  — see subsection 37N (4) of the Act.

         (2)   Without limiting subrule (1), a lawyer is taken to be responsible for a default under that subrule if a proceeding cannot conveniently proceed, or can proceed only with the incurring of extra costs or with inconvenience to the Court or another party to the proceeding, because of the failure of the lawyer:

                (a)    to attend before the Court in person or by proper representative; or

               (b)    to file any document that ought to have been filed; or

                (c)    to deliver for the use of the Court any document that ought to have been so delivered; or

               (d)    to be prepared with any proper evidence or account; or

                (e)    to comply with any provision of these Rules or any judgment or order or direction of the Court; or

                (f)    otherwise to proceed.

         (3)   Before making an order under subrule (1), the Court may refer the matter to a Registrar for inquiry and report.

         (4)   The Court may order that notice of any proceeding or order against a lawyer be given, as specified in the order, to:

                (a)    the legal practitioner’s client; or

               (b)    if the lawyer is a barrister — the barrister’s instructing solicitor.

         (5)   For the purpose of giving effect to a costs order, the Court may give ancillary directions, including a direction to a lawyer to provide to the Court or a party to the proceeding a bill of costs in assessable form.

10            Notice of taxing costs and copy bill

         (1)   Seven days’ notice of the time appointed for the taxation of costs together with a copy of the bill of costs shall be given by the party or the solicitor of the party whose costs are to be taxed to the other party or his solicitor except in cases where that party has not entered an appearance.

         (2)   The taxing officer may in cases of urgency direct that one day’s notice only shall be given.

11            Review of Taxation

                Every taxation of costs and every decision of a taxing officer shall be subject to review by a Judge.

12            Scale of costs

         (1)   Except as otherwise ordered in all proceedings commenced on and after the date these Rules came into operation, solicitors are, subject to these Rules, entitled to charge and be allowed the fees set forth in the Second Schedule in respect of the matters referred to in that Schedule and higher fees shall not be allowed in any case except such as are by this Order otherwise provided for.

         (2)   Any person who is not a party to proceedings and who is called as a witness or attends at Court in compliance with a subpoena is entitled to recover from the party calling that person or requesting the issue of the subpoena the expenses incurred in giving evidence or attending Court in accordance with the scale provided in the Second Schedule.

         (3)   The Court or a Judge may order that the party who called the person referred to in subrule (2) as a witness or requested the issue of the subpoena under which the person attended a Court pay the expenses of that person in an amount to be fixed or taxed in accordance with the Second Schedule.

13            Taxing officers to assist each other

                The taxing officers shall be respectively assistant to each other and in the discharge of their duties and for the proper despatch of the business of the respective officers the taxing officer may tax or assist in the taxation of a bill of costs which has been referred to another taxing officer for taxation and for ascertaining what is due in respect of the costs and in that case shall certify accordingly.

15            Costs reserved

                Where the costs of a motion, application or other proceeding are reserved by the Court or a Judge, the costs so reserved shall follow the event unless the Court or a Judge otherwise orders.

16            Notice of adjournment of taxation

                If the taxation of a bill is adjourned for any reason notice of the adjournment shall be sent by post by the party with the carriage of the taxation to any solicitor or person not present at the time of the adjournment on whom the original bill of costs was served.

17            Refusal or neglect to procure taxation

                Where a party entitled to costs refuses or neglects to bring in his costs for taxation or to procure them to be taxed, the taxing officer may, so as to prevent another party being prejudiced by the refusal or neglect:

                (a)    certify the costs of the other party and the refusal or neglect; or

               (b)    allow a nominal or other sum to the party refusing or neglecting to bring in his costs.

18            Delay before taxing officer

                Where in a proceeding before the taxing officer a party is guilty of neglect or delay or puts another party to any unnecessary or improper expense the taxing officer may exercise the powers vested in him by the preceding rule.

19            Cost to be allowed on taxation

                On every taxation the taxing officer shall allow all such costs charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the taxing officer to have been incurred or increased:

                (a)    through over‑caution, negligence or misconduct;

               (b)    by payment of special fees to counsel or special charges or expenses to witnesses or other persons; or

                (c)    by other unusual expenses.

20            Disbursements in solicitors’ bills

         (1)   Subject to subrule (2), a disbursement must not be allowed if the disbursement has not been paid before the bill of costs is delivered.

         (2)   If a bill expressly states that a disbursement was not paid before the bill was delivered, and the bill sets out the unpaid items of disbursement under a separate heading in the bill, the disbursement may be allowed by the taxing officer if:

                (a)    the disbursement:

                          (i)    is paid before the certificate of taxation is given; and

                         (ii)    is paid in discharge of an antecedent liability of the solicitor, including counsels’ fees, properly incurred on behalf of the client; or

               (b)    the solicitor provides an unconditional undertaking to the Court to pay the unpaid disbursement from any costs recovered.

21            Fees not here provided for

                The taxing officer may in his discretion allow such sum as he thinks just and reasonable having regard to all the circumstances of the case for work and labour properly performed and not specifically provided for in the Second Schedule in respect of work and labour for which, in his opinion, an allowance should be made.

22            Taxing officer’s discretion

         (1)   In the case of a fee or allowance which is discretionary it shall, unless otherwise provided, be allowed at the discretion of the taxing officer.

         (2)   The taxing officer in the exercise of his discretion shall take into consideration:

                (a)    the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which such a fee or allowance applies;

               (b)    the nature and importance of the proceeding;

                (c)    the amount involved;

               (d)    the principle involved;

                (e)    the interest of the parties;

                (f)    the fund, estate or person to bear the costs;

               (g)    the general conduct and cost of the proceeding; and

               (h)    all other relevant circumstances.

23            Extension of time

                Where a party applies for an extension of time he shall, unless the Court otherwise orders, pay the costs of and occasioned by the application or any order made on or in consequence of the application.

24            Non‑admission of fact

                Where a party to any proceeding serves a notice disputing a fact under Order 18, rule 2 (which relates to notices to admit facts) and afterwards that fact is proved in the proceeding he shall, unless the Court otherwise orders, pay the costs of proof.

25            Non‑admission of document

                Where a party to any proceeding serves a notice disputing the authenticity of a document under Order 18, rule 2 (which relates to notices to admit documents) and afterwards the authenticity of the document is proved in the proceeding he shall, unless the Court otherwise orders, pay the costs of proof.

26            Discontinuance

         (1)   Where pursuant to Order 22, rule 2 a party to any proceeding discontinues the proceeding without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless the Court otherwise orders, pay the costs of the party against whom the discontinued claim is made occasioned by the discontinued claim and incurred before service of notice of the discontinuance.

         (2)   A party whose costs are payable under subrule (1) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter an order for the payment of the taxed costs.

28            Continuance of interlocutory injunction

                Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first injunction with or without modification an order as to costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first injunction.

29            Cost of application or step within proceedings

                Subject to this Order, the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be deemed to be part of the costs of the cause of the party in whose favour the application or other step is determined and shall be paid and otherwise dealt with in accordance with the provisions of this Order.

30            Costs of application or step within proceedings where stood over to trial

                When a motion, application or other proceeding is ordered to stand over to the trial and no order is made at the trial as to the costs of the motion, application or proceeding, the costs of both parties of the motion, application or proceeding shall be deemed to be part of their costs of the cause.

31            Party and party basis

                On a taxation on a party and party basis:

                (a)    the costs of briefing more than one counsel may be allowed notwithstanding that none is one of Her Majesty’s counsel;

               (b)    a retaining fee to more than one counsel shall not be allowed; and

                (c)    costs in respect of counsel attending before a Registrar or taxing officer shall not be allowed unless the Registrar or taxing officer certifies the attendance to be proper, or the Court otherwise orders.

32            Refreshers

         (1)   Where counsel is briefed to appear on a trial or hearing and the trial or hearing occupies more than 4½ hours and costs are taxed on a party and party basis, the taxing officer may allow refresher fees in such amount as he thinks fit for every 4½ hours occupied by the trial or hearing after the first 4½ hours and for the remaining duration of the trial or hearing.

         (2)   The taxing officer may allow refreshers under subrule (1) whether or not witnesses are examined at the trial or hearing.

33            Absence of counsel

         (1)   Where counsel is briefed to appear on a trial or hearing and costs are taxed on a party and party basis, counsel’s fee on the brief shall not be allowed unless:

                (a)    he is present at the trial or hearing for a substantial amount of the relevant period;

               (b)    he gives substantial assistance during the relevant period in the conduct of the proceedings; or

                (c)    the Court otherwise orders.

         (2)   In subrule (1) relevant period means the period of the trial or hearing or if the trial or hearing lasts more than 4½ hours, the first 4½ hours.

34            4½ hour periods

         (1)   In reckoning the 4½ hour period mentioned in rules 32 and 33 the mid‑day adjournment shall not be included unless the Court otherwise orders.

         (2)   Where the commencement or resumption of a trial or hearing is delayed beyond the listed time the taxing officer may include waiting time in reckoning the 4½ hour period mentioned in rule 32 and 33.

35            Fees to barristers and solicitors

                When a lawyer acts in the capacities of both barrister and solicitor, or in the capacity of counsel, instructed by his partner acting as solicitor, the taxing officer may allow such sum as a counsel’s fee as the taxing officer in his discretion thinks just and reasonable having regard to the practice of allowing such fees as are permitted by the Supreme Court Rules of the State or Territory concerned.

36            Disallowance of costs of improper, vexatious or unnecessary matter in documents or proceedings

         (1)   The Court or Judge may, at a trial or hearing or upon any application and whether or not objection is taken:

                (a)    direct that any costs which have been improperly, unreasonably or negligently incurred be disallowed;

               (b)    direct the taxing officer to examine the costs incurred, and to disallow such costs as he shall find to have been improperly, unreasonably or negligently incurred; or

                (c)    direct that a party whose costs are so disallowed shall pay to the other parties the costs incurred by those parties in relation to the proceeding in respect of which his costs have been disallowed.

         (2)   Where the question of costs having been improperly, unreasonably or negligently incurred has not been raised before and dealt with by the Court or Judge, it is the duty of the taxing officer to look into that question, and thereupon the same consequences shall ensue as if he had been specially directed under paragraph (1) (b) of this rule to examine the costs incurred, and to disallow such costs as he finds to have been improperly, unreasonably or negligently incurred.

36A         Reduction in costs otherwise allowable

         (1)   Where a party is awarded judgment for less than $100,000 on a claim (not including a cross‑claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one‑third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders.

         (2)   If the Court or a Judge is of the opinion that a proceeding (including a cross‑claim for a money sum or damages) brought in this Court could more suitably have been brought in another court or in a tribunal and so declares, then any costs to be paid, including disbursements, will be reduced by one‑third of the amount otherwise allowable under this Order.

         (3)   This rule does not apply to a proceeding under the Admiralty Act 1988.

37            Unnecessary appearance in Court

                Where a party appears upon a proceeding before the Court or a Judge or before a Registrar, in which he is not interested or upon which, according to the practices of the Court, he ought not to appear, he shall not be allowed any costs of appearance unless the Court, Judge or Registrar expressly directs the costs to be allowed.

38            Powers of taxing officer

                The taxing officer may, for the purpose of taxation of costs:

                (a)    summon and examine witnesses either orally or upon affidavit;

               (b)    administer oaths;

                (c)    direct or require the production of books, papers and documents;

               (d)    issue subpoenas;

                (e)    make separate or interim certificates;

                (f)    require a party to be represented by a separate solicitor; and

               (g)    do such other acts and direct or take all such other steps as are directed by these Rules or by the Court or a Judge.

39            Registrars appointed taxing officers

         (1)   The Registrar, Deputy Registrar, District Registrars and Deputy District Registrars are appointed taxing officers.

      (1A)   The Registrar or a District Registrar may authorise an officer to be the taxing officer for the purposes of taxing a short form bill filed under the following provisions:

                (a)    rule 40A;

               (b)    Division 13.2 of the Bankruptcy Rules.

         (2)   The taxing officers shall be assistant to each other.

         (3)   A taxing officer may, of his own motion, refer any question arising in a taxation for the direction of the Court.

40            Bill of costs

         (1)   A bill of costs shall contain particulars of:

                (a)    work done by the solicitor, his servants and agents;

               (b)    costs claimed for the work done in paragraph (a) above; and

                (c)    disbursements made.

         (2)   There shall be endorsed on the bill a certificate signed by a solicitor verifying the additions in it, and there shall be attached to it or otherwise filed with it in a convenient manner originals or legible copies of receipts for disbursements, or if a disbursement has not been paid, copies of all relevant accounts.

40A         Short form bill for winding up application (Corporations Act s 466 (2))

         (1)   If an order is made for the winding up of a company in a proceeding instituted in the Court under the Corporations Act 2001, an applicant may claim as costs of the application:

                (a)    the amounts that, on the date when the application was filed, were the prescribed amounts in item 43A in Schedule 2; and

               (b)    disbursements properly incurred in relation to the application.

         (2)   An applicant who claims costs under this rule must serve on the liquidator appointed to the company:

                (a)    a bill of costs and disbursements, which need not include an itemised account of the work or services performed; and

               (b)    copies of receipts, vouchers or journals that evidence the disbursements claimed.

         (3)   Within 14 days of service of a bill of costs and disbursements, the liquidator must advise the applicant in writing which, if any, of the costs and disbursements claimed are disputed.

         (4)   Within 14 days of receiving an advice under subrule (3), the applicant must file:

                (a)    a copy of the advice; and

               (b)    the documents mentioned in subrule (2); and

                (c)    an affidavit of service of the bill of costs and disbursements on the liquidator.

         (5)   The applicant, the liquidator and their respective solicitors must not attend on taxation of the bill of costs and disbursements, unless directed by a taxing officer to attend.

         (6)   This rule does not limit an applicant’s right to claim the taxed costs of the winding up application under this Order.

         (7)   However, an applicant who claims the costs of a winding up application:

                (a)    under this rule — has no further claim to recover any of the taxed costs of the application under this Order; and

               (b)    otherwise under this Order — has no further claim to recover any of the taxed costs of the application under this rule.

40B         Short form bill for migration cases (original jurisdiction)

         (1)   In this rule:

migration case means a proceeding in the Court to which Order 54B applies.

migration court book means the set of documents that is bound or stapled in book form, and filed by the respondent and served on the applicant in a migration case.

standard migration case means a migration case in which there are no more than 2 directions hearings and that is determined after a trial that takes no more than 4½ hours.

         (2)   A party to a standard migration case may claim as costs of the proceeding, including disbursements, the amount that, on the date when the proceeding was commenced, was the prescribed amount in item 43D in Schedule 2.

         (3)   The respondent to a migration case that is discontinued or dismissed after the applicant has been served with the migration court book and before the trial, may claim as costs of the proceeding, including disbursements, the amount that, on the date when the proceeding was commenced, was the prescribed amount in item 43E in Schedule 2.

40C         Short form bill for migration cases (appeal jurisdiction)

         (1)   This rule applies to an application or migration appeal case commenced on or after the commencement of this rule.

         (2)   A respondent to an application that is discontinued or dismissed may claim as costs of the proceeding, including disbursements, an amount not more than the amount that, on the date when the proceeding was commenced, was set out in item 43F in Schedule 2.

         (3)   A party to a migration appeal case that is finalised before a final hearing may claim as costs of the proceeding, including disbursements, an amount not more than the amount that, on the date when the proceeding was commenced, was set out in item 43G in Schedule 2.

         (4)   A party to a migration appeal case that is finalised after a final hearing may claim as costs of the proceeding, including disbursements, an amount not more than the amount that, on the date when the proceeding was commenced, was set out in item 43H in Schedule 2.

         (5)   In this rule:

application means:

                (a)    an application for leave to appeal to the Court from an FMC judgment; or

               (b)    an application for an extension of time to make an application mentioned in paragraph (a); or

                (c)    an application for an extension of time to file a notice of appeal.

FMC judgment means a judgment of the Federal Magistrates Court in relation to a migration decision.

migration appeal case means an appeal to the Court from an FMC judgment.

migration decision has the meaning given by subsection 5 (1) of the Migration Act 1958.

40D         Procedure — short form bills for migration cases

         (1)   A party who claims costs under rule 40B or 40C (the claimant) must serve on the other party a bill of costs, including disbursements, (the bill), which need not include an itemised account of:

                (a)    the work or services performed; or

               (b)    the disbursements incurred in relation to the proceeding.

         (2)   If the other party objects to the claim being made under rule 40B or 40C, the other party must, within 14 days after being served with the bill, give the claimant written notice of the objection.

         (3)   If the claimant receives a notice of objection, the claimant must, within 14 days after receiving the notice, file a copy of the following documents:

                (a)    the notice;

               (b)    the bill;

                (c)    the affidavit of service of the bill on the other party;

               (d)    an itemised account or evidence that the costs incurred by the claimant were equal to, or more than, the amount of the bill.

Note   For the taxation of the bill, see rule 41.

         (4)   The claimant and the other party and their respective lawyers may attend on taxation of the bill only if directed by the taxing officer.

         (5)   Rules 40B and 40C do not limit a party’s right:

                (a)    to claim the taxed costs of the proceeding under this Order; or

               (b)    to make an application for an order under paragraph 4 (2) (c).

         (6)   However, a party who claims costs:

                (a)    under rule 40B or 40C — has no further claim to recover any of the taxed costs of the proceeding under this Order; and

               (b)    otherwise under this Order — has no further claim to recover any of the taxed costs of the proceeding under rule 40B or 40C.

41            Appointment to tax bill

         (1)   Subject to any direction of a Registrar under rule 46, if a bill of costs is filed, the taxing officer must appoint a time to tax the bill and endorse the bill with the date and time of the appointment.

         (2)   The party who filed the bill must serve a copy of the bill on each other party to the taxation at least 7 days before the date appointed for taxation.

         (3)   A party on whom a bill is served may by notice object to any item in the bill.

         (4)   The notice shall list each item or part thereof in the bill which is objected to and shall also state shortly but specifically the nature and grounds of objection to each item or part objected to and the amount which it is contended should be taxed off.

         (5)   The notice shall be filed and served on the party in whose favour the bill is to be taxed and on any other interested party not less than 7 days before the day appointed for taxing the bill.

         (6)   A party on whom a notice is served under subrule (5) must prepare a written statement of response to each item or part of an item of the bill objected to, stating briefly, but specifically, the basis on which it is claimed the item or part is allowable and the reason the objection cannot be sustained, including references to any authorities relied on.

         (7)   Oral submissions may be made at the taxation conference:

                (a)    subject to the discretion of the taxing officer; and

               (b)    only for the purpose of explaining or clarifying an objection set out in a notice under subrule (3) or a response to an objection set out in a statement under subrule (6).

         (8)   Subject to the discretion of the taxing officer to be exercised in exceptional circumstances, on taxation of the bill:

                (a)    no amount is to be taxed off, nor any ground of objection to an item or part of an item of a bill allowed, unless each amount, ground, item or part, is specifically set out in a notice under subrule (3); and

               (b)    no amount is to be allowed in respect of an item or part of an item of a bill which is objected to in a notice under subrule (3) if no response to the objection has been made under subrule (6).

         (9)   Subject to subrule 46 (4A), the taxing officer has a discretion:

                (a)    to tax the costs of a notice under subrule (3), and of any other objections, and:

                          (i)    add them, or a part of them, to; or

                         (ii)    deduct them, or a part of them, from;

                        any sum payable by or to a party to the taxation; or

               (b)    to fix a lump sum in respect of the costs of the notice or other objection and add it to, or deduct it from, any sum payable by or to a party to the taxation.

42            Objection to decision of taxing officer

         (1)   Where a taxing officer decides to allow or disallow, wholly or in part, any item in a bill, or to allow some amount in respect of any item, he shall not, except with the consent of the parties to the taxation, give his certificate until the expiry of 14 days after the date of his decision.

      (1A)   A party to the taxation who objects to the decision may apply to the taxing officer to reconsider his decision.

         (2)   An application under subrule (1A) shall be made by motion to the taxing officer.

         (3)   Notice of the motion shall be filed within 14 days after the date of the decision.

         (4)   The applicant shall file with or subscribe to the notice statement of his objections.

         (5)   A statement of objections shall specify by a list the items as to which the applicant objects to the decision of the taxing officer and must state briefly, but specifically, the nature and grounds of each objection, including references to any authorities relied on.

         (6)   An applicant under subrule (1A) shall, on the date of filing the notice of motion and statement of objections, serve the notice and statement on each party interested.

43            Reconsideration

         (1)   Upon motion made under rule 42, the taxing officer:

                (a)    shall reconsider the decision to which objection is made and shall give his certificate in accordance with his decision on reconsideration; and

               (b)    shall, upon request by any party, state, in his certificate or some other document, and by reference to the objections to his previous decision, his reasons for his decision on reconsideration.

         (2)   On the reconsideration, a party shall not, unless, in exceptional circumstances, the taxing officer otherwise directs, raise any ground of objection not stated in a statement of objection.

         (3)   A request under paragraph (1) (b) shall be made within 14 days after the date of the decision on reconsideration to which the request relates.

         (4)   The taxing officer may deal with the costs of the objections to the decision in any manner allowed under subrule 41 (9).

44            Review

         (1)   The Court may review the decision of a taxing officer on reconsideration if the taxing officer has given:

                (a)    a certificate in accordance with that decision; and

               (b)    reasons for the decision in response to a request under paragraph 43 (1) (b).

         (2)   Where, during the time within which a request may be made under rule 43, it becomes impracticable to make the request by reason of the death or incapacity of, or other matter personal to, the taxing officer, subrule (1) shall apply notwithstanding that a request under rule 43 has not been made.

         (3)   A notice of motion applying for a review under subrule (1) must be filed within:

                (a)    28 days after the certificate is given; or

               (b)    any extension of that time granted by the Court or the taxing officer at the time the certificate is given.

         (4)   On the review, unless the Court by order otherwise directs:

                (a)    further evidence shall not be received; and

               (b)    a party shall not raise any ground of objection not either stated in a statement of objection or raised before the taxing officer.

         (5)   Subject to subrule (4), on the review, the Court may:

                (a)    exercise all the powers and discretions of the taxing officer in relation to the subject matter of the review;

               (b)    make orders for the alteration of the certificate;

                (c)    make orders for the remission of any item to the same or any other taxing officer for taxation; and

               (d)    make such other orders as the nature of the case requires.

45            Certificate of taxation

         (1)   On completion of taxation, the taxing officer shall issue a sealed certificate of taxation, with sufficient number of office copies as are needed for the parties responsible for the payment of costs.

         (2)   The certificate of taxation must be served on the party responsible for its payment.

         (3)   If, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid then the Registrar shall, at the request of the party in whose favour the costs are awarded draw up sign and seal an order in favour of that party for the sum shown in the certificate of taxation and enter the same.

         (4)   Subject to subrule (5) interest calculated in accordance with Order 35, rule 8 is payable from the date the order is pronounced.

         (5)   Subrule (4) shall not apply to taxations taking place on or after 4 June 1990.

         (6)   Every award of costs under a judgment of the Court shall carry interest calculated in accordance with Order 35 rule 8 from the date of the certificate of taxation quantifying the same.

         (7)   Subrule (6) shall apply to taxations taking place on or after 4 June 1990.

46            Assessment procedures

         (1)   Notwithstanding anything in this Order, the Registrar shall have a discretion to apply the provisions or a provision of this rule, and may for that purpose decline to give an appointment to tax a bill on its being filed, and may require the party who filed the bill to lodge any documents in the possession or power of that party.

         (2)   If the Registrar decides to apply this rule, unless the Registrar directs that action be taken under subrule (4) or (6), the bill must be assessed in accordance with subrule (3).

      (2A)   If a bill is to be assessed in accordance with subrule (3):

                (a)    the Registrar must endorse the bill and each copy of it with the date when the taxing officer is to make an estimate and return the bill and copies to the party filing the bill; and

               (b)    the party filing the bill must serve a copy of the bill and the documents mentioned in subrule 40 (2) on each other party to the assessment at least 7 days before the date endorsed on the bill.

         (3)   (a)    A taxing officer may, in the absence of the parties and without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.

               (b)    The Registrar will notify each party interested in the bill in writing of an estimate made under paragraph (a).

                (c)    A party interested may, within 21 days after the date of issue of a notice under paragraph (b), file and serve on each other party a notice of objection to the estimate.

              (ca)    If there is no notice of objection, the amount of the estimate is deemed to be the amount for which a certificate of taxation may be issued.

              (cb)    If a certificate of taxation has been issued for an amount determined under paragraph (ca), a party that has not received a notice under paragraph (b) may apply by motion to the Court for an order to set aside the certificate of taxation.

               (d)    The Registrar must not accept a notice of objection for filing unless the party filing the notice pays into the Litigants’ Fund an amount of $1 250 as security for the costs of any taxation of the bill.

                (e)    Where a notice of objection is filed, the Registrar may direct that subrule (4) apply, or that taxation of the bill proceed.

         (4)  (a)    Upon the direction of the Registrar under subrule (2) or paragraph (e) of subrule (3), a taxing officer may, in the absence of the parties, provisionally tax the bill, noting legibly upon it in ink all amounts provisionally taxed off.

               (b)    The Registrar will serve a photocopy of the bill so provisionally taxed on each party interested.

                (c)    A party interested may, within 21 days after the date of issue of a photocopy of the provisionally taxed bill, file and serve on each other party a notice requiring a full taxation.

              (ca)    If there is no notice requiring a full taxation, the amount at which the bill was provisionally taxed is deemed to be the amount for which a certificate of taxation may be issued.

              (cb)    If a certificate of taxation has been issued for an amount determined under paragraph (ca), a party that has not received a photocopy of the provisionally taxed bill may apply by motion to the Court for an order to set aside the certificate of taxation.

               (d)    A notice requiring a full taxation shall:

                          (i)    set out a complete list of each item or part of an item in the bill to the treatment of which upon the provisional taxation the party filing the notice objects; and

                         (ii)    specify the nature and grounds of objection and the extent to which it is contended each item or part of an item should have been allowed or disallowed as the case may be.

                (e)    Within 21 days of service of a notice under paragraph (c), a party served may file and serve on each other party a notice containing corresponding details of any item or part of an item to the treatment of which upon the provisional taxation that party objects and of the nature and grounds of such objections.

                (f)    On taxation of the bill and subject to a discretion of the taxing officer exercisable in exceptional circumstances only, all items shall be taxed as they were provisionally taxed to the extent that they are not referred to in a notice filed pursuant to paragraph (c) or (e) and no ground shall be relied on which is not specifically set out in such a notice.

      (4A)   Subject to any order made under subrule (4B), if a notice of objection is filed under paragraph (3) (c), or a notice requiring a full taxation is filed under paragraph (4) (c), the party filing the notice must bear the costs of taxation of all parties from the date of filing the notice unless, on taxation, there is obtained in that party’s favour a variation of at least 15% of the estimate of taxed costs or of the amount provisionally taxed.

      (4B)   The taxing officer may order that the costs of all or part of the taxation from the date of filing the notice be paid by a party, including a party who has obtained in that party’s favour a variation of at least 15% of the estimate of taxed costs or of the amount provisionally taxed.

      (4C)   In considering whether to make an order under subrule (4B), the taxing officer may have regard to any relevant matter including the following:

                (a)    any offer of compromise as to costs;

               (b)    any conduct by a party that added to the duration or cost of the taxation.

         (5)   Each District Registrar may produce figures for the guidance of parties and solicitors in relation to costs estimated or taxed in the district registry.

         (6)   At any time after the making of an order for costs, and before the issue of a certificate of taxation in accordance with an estimate or provisional taxation or full taxation:

                (a)    the Registrar may order (either on the application of a party or of the Registrar’s own motion) that the parties attend before a designated Registrar or other designated officer in confidential conference with a view to:

                          (i)    reaching a mediated resolution of the amount for which a certificate of taxation should issue; or

                         (ii)    clarifying the real issues in dispute; and

               (b)    if the Registrar makes an order under paragraph (a) — each party must file and serve on the other parties, at least 7 days before the date of the conference, a brief summary of the issues in dispute and the contentions to be raised in respect of the issues.

      (6A)   If a party that filed a notice of objection withdraws the notice of objection before the taxation or provisional taxation is completed:

                (a)    the amount of the estimate of costs is the amount for which a certificate of taxation may be issued; and

               (b)    the party that filed the notice of objection must bear the costs of taxation of all parties from the date of service of the notice of objection to the date of notification of the withdrawal; and

                (c)    the Registrar, having regard to the liability of any party to pay the costs of the taxation under this rule, must:

                          (i)    determine how the amount paid under paragraph (3) (d) as security for the costs of taxation is to be distributed or refunded to the parties; and

                         (ii)    direct that payment be made out of Court accordingly.

      (6B)   If at least 21 days have passed after the date on which the Registrar notified the parties of a completed taxation or provisional taxation under this rule, and no party has objected to that taxation, the Registrar, having regard to the liability of any party to pay the costs of the taxation under this rule, must:

                (a)    determine how the amount paid under paragraph (3) (d) as security for the costs of taxation is to be distributed or refunded to the parties; and

               (b)    direct that payment be made out of Court accordingly.

         (7)   In this rule a reference to a Registrar extends only to persons occupying the office or for the time being performing the duties of Registrar or District Registrar of the Court.

Order 62A    Determination of maximum costs at directions hearing

  

  

1              Power to order maximum costs

                The Court may, by order made at a directions hearing, specify the maximum costs that may be recovered on a party and party basis.

2              Excluded costs

                A maximum amount specified in an order under rule 1 shall not include an amount that a party is ordered to pay because the party:

                (a)    has failed to comply with an order or with any of these Rules; or

               (b)    has sought leave to amend its pleadings or particulars; or

                (c)    has sought an extension of time for complying with an order or with any of these Rules; or

               (d)    has otherwise caused another party to incur costs that were not necessary for the economic and efficient:

                          (i)    progress of the proceedings to trial; or

                         (ii)    hearing of the action.

3              Further directions

                An order under rule 1 may include such directions as the Court considers necessary to effect the economic and efficient:

                (a)    progress of the proceedings to trial; or

               (b)    hearing of the action.

4              Variation of order

                If, in the Court’s opinion, there are special reasons, and it is in the interests of justice to do so, the Court may vary the specification of maximum recoverable costs ordered under rule 1.

Order 63      Administration of money paid into court

  

  

1              Application

                This Order deals with the administration of money paid into Court.

2              Definitions

                In this Order, unless the contrary intention appears:

bank means a bank to which the Banking Act 1959 applies and includes the Reserve Bank of Australia.

Litigants’ Fund means the Federal Court of Australia Litigants’ Fund established under rule 3.

3              Litigants’ Fund

         (1)   The Registrar of the Court must establish with a bank an account titled ‘Federal Court of Australia Litigants’ Fund’.

         (2)   Subject to subrule 5 (1), money paid into Court must be paid to the credit of the Litigants’ Fund.

         (3)   The Litigants’ Fund comprises the money standing, from time to time, to the credit of the account established under subrule (1).

4              Payment out of a Litigants’ Fund

         (1)   Money may be paid out of a Litigants’ Fund:

                (a)    for money paid under Order 62 paragraph 46 (3) (d):

                          (i)    in accordance with an order of the Court or a Judge; or

                         (ii)    in accordance with a direction by the Registrar under Order 62, subparagraph 46 (6A) (c) (ii) or paragraph 46 (6B) (b); or

               (b)    in any other case — in accordance with an order of the Court or a Judge.

         (2)   An order that directs that money in Court be paid out of a Litigants’ Fund, or otherwise dealt with, must state the particulars of the payment out, the manner in which the money is otherwise to be dealt with and any other action to be taken by the Registry.

5              Other application of money

         (1)   The Court or a Judge may, at any time, order that money paid, or to be paid, into Court, be paid, credited or applied in a manner other than by payment into the Litigants’ Fund.

         (2)   In the event that any interest is, or is to be, earned on money mentioned in subrule (1), the Court or a Judge may give directions as to the disbursement of the interest.

Note   Information on the investments that may be made by the Registrar under an order under Order 63 rule 5 is set out in Practice Note CM 10.

6              Notification of the parties

         (1)   Within 3 days after payment of money into Court, the District Registrar must notify each party in writing that the money has been:

                (a)    received; and

               (b)    paid, credited or applied as required under these Rules or an order of the Court.

         (2)   If money that has been paid into Court is, after notice has been given under subrule (1), paid out, credited or applied under an order of the Court, the District Registrar must notify each party in writing, within 3 days of the payment out, credit or application, as the case may be, of the order and the details of the transaction.

Order 64      Transitional provisions

  

  

1              Prior proceedings

                Proceedings commenced prior to the date these Rules come into operation shall continue under the repealed Rules (Statutory Rules 20 and 220 of 1977), subject to any order or direction of the Court or a Judge.

2              Litigants’ Fund

                Moneys paid into Court for or on behalf of litigants prior to the date these Rules come into operation shall be transferred to the Federal Court of Australia Litigants’ Fund to be established pursuant to Order 63, rule 2.

Order 65      Life Insurance Act 1995

  

  

1              Commencement of proceedings

                Originating proceedings under the Life Insurance Act 1995, except an application under rule 2 or rule 3, must be commenced by filing an application:

                (a)    in accordance with Form 5 in Schedule 1; and

               (b)    specifying the section of the Life Insurance Act 1995 under which the proceeding is brought.

2              Payment into Court

         (1)   A company which makes a payment into Court pursuant to subsection 202 (3) or subsection 215 (1) of the Life Insurance Act 1995 must, at the time of making such payment, commence proceedings in the Court for a declaration as to the persons entitled to the moneys so paid in.

         (2)   An application for a declaration must be in accordance with Form 59 in Schedule 1.

         (3)   An applicant must join as respondents to the application:

                (a)    all persons in respect of whom it has received express notice in writing of any trust, right, equity or interest in the moneys paid into Court; and

               (b)    all persons who may be affected by the declaration sought.

         (4)   On the filing of an application, the applicant must also file the following documents:

                (a)    an affidavit showing the nature of the claim for a declaration and the material facts on which the claim is based;

               (b)    a notice of deposit in accordance with Form 31A in Schedule 1.

3              Judicial management or winding up

                Except for an application under section 157 of the Life Insurance Act 1995, an application under Part 8 of that Act by a judicial manager, the Commissioner, a liquidator or any other interested person, must be made by notice of motion and be supported by affidavit.

Order 66      Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988

  

  

1              Application of Order

                The Federal Court Rules apply to proceedings referred to in this Order in so far as the Federal Court Rules are not inconsistent with the Rules in this Order.

2              Interpretation

                In this Order:

the Act means the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988.

Enabling Act means the Administrative Decisions (Judicial Review) Act 1977, the Bankruptcy Act 1966, the Income Tax Assessment Act 1936, or the Trade Practices Act 1974 or any one or more of those Acts.

the Family Court means the Family Court of Australia.

3              Transfer to the Family Court

                The Court or a Judge may, subject to the provisions of the Enabling Act, at any time transfer a proceeding to the Family Court.

4              Form of application for transfer

         (1)   An application under the Act for transfer of a proceeding to the Family Court under an Enabling Act must be made by motion.

         (2)   The heading of the notice of motion must specify the Act and the relevant Enabling Act.

         (3)   The application must be heard and determined by a single Judge.

5              Proceedings transferred under the Act

                On the transfer of a proceeding to the Family Court, the Registrar shall send to the proper officer of the Family Court all documents filed and orders made in the proceeding.

Order 67      Lands Acquisition Act 1989

  

  

1              Application

                Subject to this Order, the Rules of Court provide the manner of making an application, bringing an action, instituting proceedings or obtaining the approval of the Court under sections 72, 73, 82, 100, 101, 108, 116, 127, 128, 129 or 133 of the Lands Acquisition Act 1989 and, as far as practicable, apply to the conduct of such proceedings.

2              Compensation

                Proceedings to determine the amount of compensation to which a person is entitled under the Lands Acquisition Act 1989 shall be commenced by an application in accordance with Form 61 in Schedule 1.

3              Approval

                Proceedings to obtain the approval of the Court under section 16 of the Lands Acquisition Act 1989 shall be commenced by an application in accordance with Form 62 in Schedule 1.

4              Extension of time

                An application to extend a period of time under section 129 of the Lands Acquisition Act 1989 shall be in accordance with Form 63 in Schedule 1.

5              Directions

                At the first directions hearing the parties shall file
a minute describing all persons who have an interest in law
or an equity in the land to which the application relates
and all persons who may be affected by an order, declaration
or determination sought.

6              Statement of claim

         (1)   The statement of claim filed in a proceeding under section 82 of the Lands Acquisition Act 1989 shall specify:

                (a)    the land in respect of whose acquisition the claim is brought;

               (b)    the nature of the interest of the applicant in the land;

                (c)    the amount claimed by way of compensation for the acquisition of that interest; and

               (d)    particulars of the manner in which that amount is calculated.

         (2)   The statement of claim filed in a proceeding under section 108 of the Lands Acquisition Act 1989 shall specify:

                (a)    the land in respect of which the claim is brought;

               (b)    the nature of the interest of the applicant in the land;

                (c)    the power in respect of which exercise the claim is brought;

               (d)    the amount claimed by way of compensation for the exercise of that power; and

                (e)    particulars of the manner in which that amount is calculated.

7              Defence

         (1)   Within 14 days of service upon the respondent of the statement of claim, or within such further time as the Court may allow, the respondent shall file and serve upon the applicant a defence.

         (2)   The defence shall identify any element in the claim made by the applicant, as specified in the statement of claim, which is disputed and shall specify:

                (a)    the amount of compensation (if any) to which, in the view of the respondent, the applicant is entitled; and

               (b)    the manner in which that amount is calculated.

8              Evidence by affidavit

                Except to the extent to which the Court may otherwise direct in any particular case the trial of any proceeding to which this Order applies shall take place upon the basis of affidavit evidence subject to cross‑examination.

9              Affidavits of valuation

                In the case of any affidavit deposing to the value of an interest in land:

                (a)    the affidavit may take the form of an affidavit verifying a report of the deponent annexed to the affidavit; and

               (b)    the affidavit, either by itself or by one or more annexures:

                          (i)    shall set out with particularity the process of reasoning adopted by the deponent in reaching his conclusion as to value;

                         (ii)    shall disclose full particulars of all transactions relied upon by the deponent in reaching that conclusion; and

                        (iii)    shall indicate, by appropriate markings made on one or more maps included in or annexed to the affidavit or report, the parcels of land the subject of such transactions.

10            Notice of disputed transaction

         (1)   In any case where an affidavit complying with paragraph (b) of the preceding rule has been filed and an opposing party:

                (a)    disputes the fact of any transaction particularized in such affidavit;

               (b)    disputes any of the stated particulars of any such transaction; or

                (c)    claims that any particularized transaction was subject to a term, condition or circumstance which renders the transaction an unreliable guide to value;

the opposing party shall, within 28 days of service upon him of the affidavit, file and serve upon the party on whose behalf the affidavit was served a notice of disputed transaction.

         (2)   A notice of disputed transaction shall specify:

                (a)    the respect or respects (if any) in relation to which it is said that the particulars are inaccurate;

               (b)    any term or condition the content of which is said to make that transaction an unreliable guide to value; and

                (c)    the nature of any circumstance which is said to render the transaction an unreliable guide to value.

         (3)   Where a party fails to file and serve a notice of disputed transaction in relation to any particular transaction in accordance with the preceding subrule unless the Court otherwise directs, that party shall be taken to admit, for the purposes of the proceeding, the transaction, the particulars thereof contained in the affidavit and the fact that the transaction was not subject to any term, condition or circumstance rendering it an unreliable guide to value.

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