Federal Court Amendment Rules 2006 (No. 2)1

Select Legislative Instrument 2006 No. 203

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

Dated 27 July 2006

M.E.J. BLACK C.J.

M.R. WILCOX J.

J.E.J. SPENDER J.

P.R.A. GRAY J.

D.M. RYAN J.

R.S. FRENCH J.

T.J. HIGGINS J.

P.C. HEEREY J.

M.F. MOORE J.

K.E. LINDGREN J.

B.J.M. TAMBERLIN J.

R. SACKVILLE J.

S.M. KIEFEL J.

P.D. FINN J.

R.A. SUNDBERG J.

S.R. MARSHALL J.

A.M. NORTH J.

R.N. MADGWICK J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

M.S. WEINBERG 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.

A.C. BENNETT J.

B.T. LANDER J.

A.N. SIOPIS J.

R.F. EDMONDS J.

P.R. GRAHAM J.

A.P. GREENWOOD J.

N.J. YOUNG J.

S.D. RARES J.

B. COLLIER J.

D.A. COWDROY J.

A.J. BESANKO J.

C.N. JESSUP J.

Judges of the Federal

Court of Australia

W.G. Soden
Registrar

1 Name of Rules

  These Rules are the Federal Court Amendment Rules 2006 (No. 2).

2 Commencement

  These Rules commence on the day after they are registered.

3 Amendment of Federal Court Rules

  Schedule 1 amends the Federal Court Rules.

Schedule 1 Amendments

(rule 3)

[1] Order 1, rule 4, definitions of convention and convention country

omit

[2] Order 1, rule 4, definition of document exchange box

substitute

document exchange means a facility or service through which a member of the facility or service may send a document to another member of the facility or service.

document exchange box means a box in a document exchange.

[3] Order 1, subrule 5A (2), note

omit

2

insert

5

[4] Order 1, subrule 5AC (4)

substitute

 (4) If the document is in an existing proceeding, it must be sent to the Registry which is the proper place for the proceeding:

 (a) by using the court’s Internet home page at http://www.fedcourt.gov.au; or

 (b) by addressing it to an email address approved for that Registry.

[5] Order 8

substitute

Order 8 Service outside Australia

Division 1 General

1 Definitions for Order 8

  In this Order, unless the contrary intention appears:

Attorney‑General’s Department means the Commonwealth Attorney‑General’s Department.

convention, in relation to a foreign country, means a convention, agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in right of the Commonwealth or, where appropriate, in right of a State, and a foreign country are parties.

foreign country means a country other than Australia.

originating process means an application commencing a proceeding, and includes a cross‑claim in the proceeding against a person who was not previously a party to the proceeding.

2 When originating process may be served outside Australia

  Subject to rule 3, an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table:

3 Application for leave to serve originating process outside Australia

 (1) Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if:

 (a) the Court has given leave under subrule (2) before the application is served; or

 (b) the Court confirms the service under subrule (5); or

 (c) the person served waives any objection to the service by entering an appearance in the proceeding.

 (2) The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:

 (a) the Court has jurisdiction in the proceeding; and

 (b) the proceeding is of a kind mentioned in rule 2; and

 (c) the person seeking leave has a prima facie case for the relief claimed by the person in the proceeding.

Note   The law of a foreign country may permit service through the diplomatic channel or service by a private agent.

 (3) The evidence on an application for leave under subrule (2) must include the following:

 (a) the name of the foreign country where the person to be served is or is likely to be;

 (b) the proposed method of service;

 (c) a statement that the proposed method of service is permitted by:

 (i) if a convention applies — the convention; or

 (ii) in any other case — the law of the foreign country.

 (4) Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.

 (5) If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:

 (a) paragraphs (2) (a), (b) and (c) apply to the proceeding; and

 (b) the service was permitted by:

 (i) if a convention applies — the convention; or

 (ii) in any other case — the law of the foreign country; and

 (c) the failure to apply for leave is sufficiently explained.

4 Service of other documents

 (1) The Court may give leave to a party to serve a document issued by the Court (other than an originating process) on a person in a foreign country in accordance with a convention or the law of the foreign country, on such terms and conditions as it considers appropriate.

Note   The law of a foreign country may permit service through the diplomatic channel or service by a private agent.

 (2) The evidence on an application for leave under subrule (1) must include the information mentioned in paragraphs 3 (3) (a) to (c).

 (3) If a document (other than an originating process) was served on a person in a foreign country without the leave of the Court, the Court may confirm the service if the Court is satisfied that:

 (a) the service was permitted by:

 (i) if a convention applies — the convention; or

 (ii) in any other case — the law of the foreign country; and

 (b) the failure to apply for leave is sufficiently explained.

5 Application of other rules

  The other Orders of these Rules apply to service of a document on a person in a foreign country in the same way as they apply to service on a person in Australia, so far as they are:

 (a) relevant and not inconsistent with this Order; and

 (b) not inconsistent with:

 (i) if a convention applies — the convention; or

 (ii) in any other case — the law of the foreign country.

6 Method of service

  A document that is to be served on a person in a foreign country need not be served personally on the person if it is served on the person in accordance with the law of the foreign country.

7 Substituted service

 (1) This rule applies if an official certificate or declaration (whether made on oath or otherwise) is sent to the Court by the government or a court of a foreign country stating that attempts to serve a document on a person in the foreign country, in accordance with a convention or through the diplomatic channel, have not been successful.

 (2) On application by the person seeking service, the Court may order such steps be taken, as are specified in an order, for the purpose of bringing the document to the notice of the person to be served.

 (3) If the Court makes an order under subrule (2), the Court may order that a document is taken to have been served when a specified event happens or on the expiry of a specified time.

8 Proof of service

 (1) An official certificate or declaration (whether made on oath or otherwise) stating that a document has been personally served on a person in a foreign country, or served on the person in another way in accordance with the law of the foreign country, is sufficient proof of the service of the document.

 (2) If filed, the certificate or declaration:

 (a) is taken to be a record of the service of the document; and

 (b) has effect as if it were an affidavit of service.

Division 2 Service through the diplomatic channel or by transmission to a foreign government

9 Documents to be lodged with the Court

 (1) This rule applies if a person has been given leave to serve a document on a person in a foreign country:

 (a) through the diplomatic channel; or

 (b) by transmission to a foreign government in accordance with a convention (the relevant convention).

 (2) The person given leave must lodge in the District Registry:

 (a) a request for service in accordance with Form 14A; and

 (b) a request for transmission in accordance with Form 14B; and

 (c) a written undertaking by the person, or the person’s legal practitioner, to pay to the Registrar the amount of the expenses incurred by the Court in giving effect to the person’s request; and

 (d) 2 copies (or such other number of copies as may be required by the relevant convention) of each document to be served; and

 (e) if necessary, a translation into an official language of the foreign country (including a statement by the translator attesting to the accuracy of the translation) of the following:

 (i) the request for transmission mentioned in paragraph (b);

 (ii) each document to be served.

10 Order for payment of expenses

 (1) This rule applies if:

 (a) a person files an undertaking under paragraph 9 (2) (c) in relation to a request for service on a person in a foreign country in accordance with a convention or through the diplomatic channel; and

 (b) the person does not, within 14 days after being sent an account for expenses incurred in relation to the request, pay to the Registrar the amount of the expenses.

 (2) On application by the Registrar, the Court may:

 (a) order the person to pay the amount of the expenses to the Registrar; and

 (b) stay the proceeding, so far as it concerns the whole or any part of a claim for relief by the person, until the amount of the expenses is paid.

[6] Order 33, subrule 11 (3)

substitute

 (3) Subrule (1) applies only if an order is made for production to the Court or any officer of the Court, or any examiner, or other person authorised to receive evidence, on a trial or hearing or other occasion on which evidence is being adduced.

 (3A) Subrule (2) applies only if a question is put to a person in the course of examination before the Court or any officer of the Court, or any examiner, or other person authorised to receive evidence, on a trial or hearing or other occasion on which evidence is being adduced.

[7] Order 46, rule 7A

substitute

7A Refusal to accept document for filing

 (1) A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious.

 (2) A Registrar may seek the direction of a Judge who may direct the Registrar that a document (including any document which is, or if issued will become, an originating document):

 (a) is to be accepted or issued; or

 (b) is not to be accepted or issued; or

 (c) is not to be accepted or issued without the leave of a Judge.

[8] Order 51, rule 2

omit

  The party whose case raises the constitutional matter or such other party as the Court may direct shall file notice of a constitutional matter and serve a copy thereof on every other party and on the Attorneys‑General of the Commonwealth, the States and the Northern Territory:

insert

  The party whose case raises the constitutional matter, or such other party as the Court may direct, must file notice of a constitutional matter and serve a copy of the notice on all other parties and the Attorneys‑General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory:

[9] Order 52, paragraph 2AA (a)

substitute

 (a) a Judge directs that the application be heard and determined by a Full Court; or

[10] Order 52B, subrule 1 (2)

substitute

 (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.

[11] Order 52B, subparagraph 5A (a) (v)

substitute

 (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

[12] Order 53, after paragraph 15 (2) (d)

insert

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

[13] Order 80, subrule 4 (1)

omit

assistance.

insert

assistance in relation to a proceeding before the Court.

[14] Order 80, after rule 4

insert

4A Further direction

  The Registrar may seek the direction of the Court or a Judge in relation to a referral made under rule 4.

[15] Order 80, after rule 6

insert

6A Cessation of Referral Certificate

  Unless the Court or a Judge otherwise directs, a Referral Certificate ceases to have effect if:

 (a) the Referral Certificate is not accepted by a legal practitioner within 28 days of the referral; or

 (b) a legal practitioner has provided the legal assistance mentioned in the referral; or

 (c) a legal practitioner has ceased to provide legal assistance under rule 7; or

 (d) the proceeding the referral relates to is finalised or transferred to another court.

[16] Schedule 1, Form 14A

substitute

Form 14A Request to Court for service in a foreign country

(Order 8, rule 9)

I,  (insert name)

request that  (identify document(s) to be served)

be transmitted *in accordance with the (insert name of convention)/*through the diplomatic channel to  (insert name of country)

for service on the respondent  (insert name of respondent)

at  (insert address for service)  or elsewhere in (insert name of country).

I personally undertake to be responsible for all expenses incurred by the Commonwealth in respect of the requested service and, on receiving due notification of the amount of the expenses, will pay the amount to the Commonwealth and will produce the receipt for that payment to the proper officer of the Federal Court of Australia.

Dated

...................

(Signature of solicitor)

*  Omit if inapplicable

Version 2

[17] Schedule 1, Form 14B

substitute

Form 14B Request for transmission of notice to a foreign government

(Order 8, rule 9)

The Chief Justice of the Federal Court of Australia at  (insert address of relevant registry) requests the Secretary of the Attorney‑General’s Department*/Department of Foreign Affairs and Trade* to transmit to the government of  (insert name of country)  the following documents:

with the requests that:

(a) the documents be served on  (insert name of respondent),  against whom these proceedings have been taken in the Federal Court of Australia, in accordance with the law of  (insert name of country); and

(b) evidence of service of the documents be officially certified or declared (on oath or otherwise) to this Court in such manner as is consistent with usage or practice of the courts in  (insert name of country) in proving service of legal process.

*The Chief Justice further requests that, if efforts to effect personal service of the documents prove ineffectual, the government or court of  (insert name of country) be requested to certify or declare (on oath or otherwise) that fact to this Court.

*The following information is provided in support of the request:

(insert any additional information that may be required by any convention applying to the service of the documents)

Dated

*  Omit if inapplicable.  The request should be made to:

(a) if the Attorney‑General’s Department is the Central Authority for the purposes of a convention that applies to the service of the documents — the Secretary of the Attorney‑General’s Department; or

(b) in any other case — the Secretary of the Department of Foreign Affairs and Trade.

Version 2

[18] Schedule 1, Form 14C

omit

[19] Schedule 1, Forms 37 to 39

substitute

Form 37 Order for examination

(Order 24, paragraph 1 (1) (a))

THE COURT ORDERS THAT:

1. (name) of (address) 

be examined on oath before (name and address, or describe examiner).

(Complete as in general form of order under Order 36.)

Version 2

Form 38 Order appointing examiner

(Order 24, paragraph 1 (1) (a))

THE COURT ORDERS THAT:

1.  (Name and address or description) be appointed examiner for the purpose of taking the examination on oath of a witness              

(name) of (address out of Australia)

in accordance with the Rules of this Court (but without the power to compel a witness to attend if this is required by a convention, agreement, arrangement, or treaty to which the Crown in right of the Commonwealth or, where appropriate, in right of a State, and a country other than Australia are parties, about legal proceedings in civil matters).

2. The party obtaining this order give to each other interested party 7 days’ notice in writing of the date on which he proposes to send this order to the examiner.

3. Not less than 4 days after that notice has been given each party shall give to the other the name of his agent at               (place)             

to whom notices may be sent.

(Complete as in general form of order under Order 37.)

Version 2

Form 39 Order

(Order 24, paragraph 1 (1) (b))

THE COURT ORDERS THAT:

1. A letter of request be sent to the judicial authorities of  (country)

to take or cause to be taken the evidence of (name)

(Complete as in general form of order under Order 37.)

Version 2

[20] Schedule 1, Form 55A

substitute

Form 55A Notice of Appeal

(Order 53, rule 2, Order 53B, rule 2 and Order 59, rule 1)

On appeal from the (insert name of Tribunal) constituted by (the names of the members constituting the Tribunal which made the decision)

BETWEEN

A.B. Applicant

and

C.D. Respondent

NOTICE OF APPEAL

1. TAKE NOTICE that the applicant appeals from the decision or determination of (specify Tribunal below) constituted by (specify members constituting the Tribunal) given on (specify date) at (specify place) by which the Tribunal decided or determined (specify decision or determination appealed from).

2. THE QUESTIONS OF LAW raised on appeal are — (specify each question of law).

3. ORDERS SOUGHT: (state the orders or relief sought by the applicant).

4. GROUNDS: (specify grounds relied upon in support of the orders sought).

5. FINDINGS OF FACT (if any) that the Court is asked to make are: (specify each finding).

Note   Item 5 only applies to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

Date: e.g. 7 May 20   .

(Signed, applicant or applicant’s solicitor)

Note   Order 53, subrule 6 (2) provides that within 7 days after filing this notice of appeal, the applicant must serve a copy of it on all other parties to the proceedings before the Tribunal and on the Registrar of the Tribunal.

To the respondent: (address)

TAKE NOTICE:

A directions hearing in this appeal will be heard by the Court at the time and place specified below. If there is no attendance before the Court by you or a legal practitioner representing you, directions may be given and orders made in your absence.

Before taking any step in the proceeding or attending at the directions hearing you must file an appearance in the Registry.

Time: (date and time to be entered by Registry unless fixed by Court)

Place: (address of Court)

(where the time for service has been shortened, add — )

The time in which this notice of appeal, with its notice of the directions hearing, is to be served has been shortened by the Court to (specify time).

Date: e.g. 7 May 20   .

………………………………………..

(Signed: REGISTRAR)

The applicant’s address for service is (specify address for service).

Version 3

[21] Schedule 2

substitute

Schedule 2 Scale of costs for work done and services performed

(Order 62, rule 12)

Note

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