Federal Court Amendment Rules 2003 (No. 1)1

Statutory Rules 2003 No. 352

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

Dated 17 March 2003

M.E.J. BLACK C.J.

B.A. BEAUMONT J.

M.R. WILCOX J.

J.E.J. SPENDER J.

p.r.a. gray j.

D.M. RYAN J.

R.S. FRENCH J.

M.C. LEE J.

J.W. von DouSSA j.

D.G. HILL J.

T.J. HIGGINS J.

P.C. HEEREY J.

D.P. DRUMMOND J.

R.E. COOPER J.

A.P. WHITLAM J.

C.J.S.M. CARR J.

M.F. MOORE J.

C.M. BRANSON J.

K.E. LINDGREN J.

R. SACKVILLE J.

S.M. KIEFEL J.

R.D. NICHOLSON J.

P.D. FINN J.

R.A. SUNDBERG J.

S.R. MARSHALL J.

A.M. NORTH J.

R.N. MADGWICK J.

R. MERKEL J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

R.A. FINKELSTEIN J.

M.S. WEINBERG J.

J.A. DOWSETT J.

P.G. HELY J.

S.C. KENNY J.

R.V. GYLES J.

R.A. CONTI J.

M.A. STONE J.

J.L.B. ALLSOP J.

P.M. JACOBSON J.

B.M. SELWAY J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

Schedule 1 Amendments

(rule 3)

[1] Order 2, rule 2

omit

[2] Order 3, after subrule 2 (4)

insert

(4A) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, unless the Court otherwise orders.

[3] Order 3, rule 5

omit

[4] Order 7, rule 11

substitute

11 Service by filing

(1) Unless the Court otherwise orders, the filing of a document has effect as service of the document on a person, if personal service is not required and:

(a) the person to be served:

(i) is in default of appearance; or

(ii) has entered an appearance but has no address for service in the proceeding; or

(b) there is proof of non‑delivery of the document, being a document sent by the Court to the person’s proper address.

(2) For paragraph (1) (b), the proper address of a person is:

(a) the address for service of the person in the proceeding; or

(b) if, when the document is left or posted the person has no address for service in the proceeding, the person’s last known place of business or of abode.

[5] Order 11, rule 1B

omit

insert

(1) If

[6] Order 11, rule 1B

insert

(2) The certificate required by subrule (1) may be incorporated in the pleading that is being certified.

[7] Order 15, subrule 2 (5)

omit

In making a reasonable search for subrule (3),

insert

For subrule (3), in making a reasonable search,

[8] Order 28, subrule 3 (1)

substitute

(1) When considering an application by a respondent for an order for security for costs under section 56 of the Act, the Court may take into account the following matters:

(a) that an applicant is ordinarily resident outside Australia;

(b) that an applicant is suing, not for the applicant’s own benefit, but for the benefit of some other person and the Court has reason to believe that the applicant will be unable to pay the costs of the respondent if ordered to do so;

(c) subject to subrule (2), that the address of the applicant is not stated or is incorrectly stated in the originating process;

(d) that an applicant has changed address after the commencement of the proceeding in an attempt to avoid the consequences of the proceeding.

[9] Order 37, after rule 10

insert

11 Exercise of power by Registrars

For paragraph 35A (1) (h) of the Act, the Court or a Judge may direct a Registrar to exercise the power of the Court under section 23 of the Act and Order 37 rule 7 to issue a writ of execution.

[10] Order 55

omit

[11] Order 62, paragraph 46 (3) (d)

substitute

(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.

[12] Order 62, subrule 46 (6A)

substitute

(6A) If:

(a) the party who filed the notice of objection withdraws the notice of objection before the taxation or provisional taxation is completed; or

(b) 21 days have passed after notification by the Registrar to 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:

(c) 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

(d) direct that payment be made out of Court accordingly.

[13] Order 63, subrule 4 (1)

substitute

(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 paragraph 46 (6A) (d); or

(b) in any other case — in accordance with an order of the Court or a Judge.

[14] Schedule 1, Form 15B

substitute

Form 15B Certificate of legal representative

(Order 11, rule 1B)

I (name of legal representative) certify to the Court that, in relation to the pleading dated (insert date) filed on behalf of the (party, eg applicant, respondent), the factual and legal material available to me at present provides a proper basis for:

(a) each allegation in the pleading; and

(b) each denial in the pleading; and

Date:

Legal representative for

the (party, eg applicant, respondent)

Version 2

[15] Schedule 1, Form 21

substitute

Form 21 Notice for discovery

(Order 15, rule 1)

To the respondent:

The applicant requires you to give discovery of documents with verification within (insert number of days specified by the Court) days after service of this notice upon you.

Version 2