Federal Court Rules 2011

Select Legislative Instrument No. 134, 2011 as amended

made under the

Federal Court of Australia Act 1976

Compilation start date:   11 June 2013

Includes amendments up to: SLI No. 65, 2013

About this compilation

The compiled instrument

This is a compilation of the Federal Court Rules 2011 as amended and in force on 11 June 2013. It includes any amendment affecting the compiled instrument to that date.

This compilation was prepared on 11 June 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled instrument is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes.

Modifications

If a provision of the compiled instrument is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled instrument has expired or otherwise ceased to have effect in accordance with a provision of the instrument, details of the provision are set out in the endnotes.

Contents

Chapter 1—Introductory provisions

Part 1—Preliminary

Division 1.1—Scope

1.01 Name of Rules

1.02 Commencement

1.03 Repeal of previous Rules

1.04 Application

Division 1.2—Application about procedures

1.21 Application for orders about procedures

Division 1.3—General powers of the Court

1.31 Orders to have regard to nature and complexity of proceeding

1.32 Court may make any order it considers appropriate in the interests of justice

1.33 Orders may be subject to conditions

1.34 Dispensing with compliance with Rules

1.35 Orders inconsistent with Rules

1.36 Orders other than in open court

1.37 Directions to Registrars

1.38 Fixing of time by Court

1.39 Extension and shortening of time

1.40 Exercise of Court’s power

1.41 Other orders that may be made

1.42 Orders may include consequences of non‑compliance

Division 1.4—Interpretation

1.51 Definitions—the Dictionary

1.52 References to Forms

Division 1.5—Time

1.61 Calculation of time

Part 2—Registry and documents

Division 2.1—Registry

2.01 Use of seal and stamps of Court

2.02 Transfer of proceeding to another place

Division 2.2—Documents

2.11 General provisions about documents

2.12 Compliance with approved forms

2.13 Titles of documents

2.14 Subsequent documents to be endorsed with Court number

2.15 Signature

2.16 Details at foot of each document

Division 2.3—Lodging and filing documents

2.21 How documents may be lodged with the Court

2.22 Faxing a document

2.23 Sending a document by electronic communication

2.24 Documents sent by electronic communication

2.25 When is a document filed

2.26 Refusal to accept document for filing—abuse of process or frivolous or vexatious documents

2.27 When documents will not be accepted in a Registry

Division 2.4—Custody and inspection of documents

2.31 Custody of documents

2.32 Inspection of documents

Division 2.5—Administration of money paid into Court and payment out

2.41 Establishment of Litigants’ Fund

2.42 Dealing with money paid into Court

2.43 Payment out of Litigants’ Fund

Part 3—Registrars

Division 3.1—Powers of Registrars

3.01 Powers of the Court that may be exercised by a Registrar

3.02 Authority to administer oaths and affirmations

3.03 Orders other than in open court

3.04 Application for orders in relation to Registrars

3.05 Application to the Registrar for an application to be determined by the Court

Division 3.2—Reviewing a Registrar’s exercise of power

3.11 Application for review of the Registrar’s exercise of power

Part 4—Lawyers

Division 4.1—General

4.01 Proceeding by lawyer or in person

4.02 Power to act by lawyer

4.03 Appointment of a lawyer—notice of acting

4.04 Termination of retainer by party

4.05 Termination of retainer by lawyer

Division 4.2—Court referral for legal assistance

4.11 Definitions for Division 4.2

4.12 Referral for legal assistance

4.13 A party has no right to apply for a referral

4.14 Acceptance of referral certificate and provision of legal assistance

4.15 Ceasing to provide legal assistance

4.16 Application for Registrar’s permission to cease providing legal assistance

4.17 Cessation of referral certificate

4.18 Disbursements

4.19 Professional fees

Part 5—Court supervision of proceedings

Division 5.1—Return date and directions

5.01 Parties to attend Court on return date

5.02 Parties to file notice of address for service before return date

5.03 Respondent’s genuine steps statement

5.04 Making directions

5.05 Adjournment of directions hearing

5.06 Application for directions—cross‑claims

5.07 Interlocutory orders

5.08 Hearing and determination of matter at directions hearing

Division 5.2—Orders on default

5.21 Self‑executing orders

5.22 When a party is in default

5.23 Orders on default

5.24 Contempt

Part 6—Court supervision of parties and other persons

Division 6.1—Vexatious proceedings

6.01 Scandalous, vexatious or oppressive matter

6.02 Certificate of vexatious proceedings order

6.03 Application for leave to institute proceedings

Division 6.2—Use of communication and recording devices in Court

6.11 Use of communication device or recording device in place where hearing taking place

6.12 Contempt

Chapter 2—Original jurisdiction—proceedings generally

Part 7—Orders before start of a proceeding

Division 7.1—Injunctions, preservation of property and receivers

7.01 Order before start of proceeding

Division 7.2—Approval of agreement for person under a legal incapacity

7.11 Compromise or settlement of matter before proceeding

Division 7.3—Preliminary discovery

7.21 Definitions for Division 7.3

7.22 Order for discovery to ascertain description of respondent

7.23 Discovery from prospective respondent

7.24 Procedure for applications under this Division

7.25 List of documents

7.26 Privilege

7.27 Inspection of documents

7.28 Copying of documents produced for inspection

7.29 Costs

Division 7.4—Freezing orders

7.31 Definitions for Division 7.4

7.32 Freezing order

7.33 Ancillary order

7.34 Order may be against person not a party to proceeding

7.35 Order against judgment debtor or prospective judgment debtor or third party

7.36 Jurisdiction

7.37 Service outside Australia of application for freezing order or ancillary order

7.38 Costs

Division 7.5—Search orders

7.41 Definitions for Division 7.5

7.42 Search order

7.43 Requirements for grant of search order

7.44 Jurisdiction

7.45 Terms of search order

7.46 Independent lawyers

7.47 Costs

Part 8—Starting proceedings

Division 8.1—Originating applications

8.01 Starting proceeding—application

8.02 Applicant’s genuine steps statement

8.03 Application to state relief claimed

8.04 Application starting migration litigation to include certificate

8.05 Application to be accompanied by statement of claim or affidavit

8.06 Service of originating documents

8.07 Changing return date

Division 8.2—Notice of constitutional matter

8.11 Notice of constitutional matter

8.12 Service of notice

Division 8.3—Amendments to an originating application

8.21 Amendment generally

8.22 Date on which amendment takes effect

8.23 Procedure for making amendment

8.24 Time for amending an originating application under Court order

8.25 Service of amended originating application

Part 9—Parties and proceedings

Division 9.1—Parties, interveners and causes of action

9.01 Multiple causes of action

9.02 Joinder of parties—general

9.03 Joinder of applicants with joint entitlement

9.04 Joinder of persons with common liability

9.05 Joinder of parties by Court order

9.06 Application for separate trials—inconvenient joinder of causes of action or parties

9.07 Errors in joinder of parties

9.08 Removal of parties by Court order

9.09 Death, bankruptcy or transmission of interest

9.10 No joinder or substitution after death of party

9.11 Substitution of party

9.12 Interveners

Division 9.2—Representative proceedings

9.21 Representative party—general

9.22 Enforcement of order for or against representative party

9.23 Representative party—beneficiaries

9.24 Deceased persons

9.25 Conduct of proceeding by particular party

Division 9.3—Grouped proceedings under Part IVA of the Act

9.31 Interpretation for Division 9.3

9.32 Starting a representative proceeding

9.33 Person may give consent to be a group member

9.34 Opt out notices

9.35 Application for order relating to the procedure to be followed in a representative proceeding

Division 9.4—Partnerships

9.41 Proceeding by or against partners in partnership name

9.42 Disclosure of partners’ names

9.43 Proceeding between members of partnerships

9.44 Denial by person served as partner

9.45 Defence to be in partnership name

9.46 Entry of order

Division 9.5—Business name proceedings

9.51 Proceeding against a person who carries on a business under a business name

9.52 Proceeding against a business name

9.53 Proceeding under this Division or Division 9.4

9.54 Amendment of parties

9.55 Variation of order

9.56 Order for discovery—proceeding brought against a person in the person’s business name

Division 9.6—Persons under a legal incapacity

9.61 Proceeding by or against person under a legal incapacity

9.62 Persons who may be a litigation representative

9.63 Appointment of litigation representative by the Court

9.64 Consent to be filed

9.65 Removal of litigation representative by the Court

9.66 Conduct of proceeding

9.67 No deemed admissions

9.68 Discovery and interrogatories

9.69 Payment into Court

9.70 Compromise or settlement of matter in proceeding

9.71 Application by litigation representative for approval of agreement

Part 10—Service

Division 10.1—Personal service

10.01 Service on individual

10.02 Service on corporation

10.03 Service on unincorporated association

10.04 Service on organisation

10.05 Service on partnership

10.06 Service in a proceeding brought against a person in the person’s business name

10.07 Service in a proceeding under the Patents Act 1990

10.08 Service in a proceeding under the Trade Marks Act 1995

10.09 Service on person under a legal incapacity

10.10 Personal service on a person under a legal incapacity

10.11 Deemed service of originating application

10.12 Refusal to accept document served personally

Division 10.2—Service other than by personal service

10.21 Identity of person served

10.22 Acceptance of service by lawyer

10.23 Deemed service

10.24 Substituted service

10.25 Service by filing

10.26 Service by Court

10.27 Service of interlocutory injunction

10.28 Service under agreement

Division 10.3—Ordinary service

10.31 Ordinary service

10.32 Time of service

Division 10.4—Service outside Australia

10.41 Definitions for Division 10.4

10.42 When originating application may be served outside Australia

10.43 Application for leave to serve originating application outside Australia

10.44 Service of other documents

10.45 Application of other rules

10.46 Method of service

10.47 Proof of service

10.48 Deemed service

10.49 Substituted service

Division 10.5—Service through diplomatic channel or by transmission to foreign government

10.51 Documents to be lodged with the Court

10.52 Order for payment of expenses

Division 10.6—Service under Hague Convention

10.61 Definitions for Division 10.6

10.62 Provisions of this Division to prevail

10.63 Service abroad of local judicial documents—application of rules 10.64 to 10.68

10.64 Application for request for service abroad

10.65 How application to be dealt with

10.66 Procedure on receipt of certificate of service

10.67 Payment of costs

10.68 Evidence of service

10.69 Default judgment following service abroad of initiating process—application of rules 10.70 to 10.72

10.70 Restriction on power to enter default judgment if certificate of service filed

10.71 Restriction on power to enter default judgment if certificate of service not filed

10.72 Setting aside judgment in default of appearance

10.73 Local service of foreign judicial documents – application of rules 10.74 to 10.76

10.74 Certain documents to be referred to Attorney‑General’s Department

10.75 Service

10.76 Affidavit as to service

Part 11—Address for service

11.01 Address for service—general

11.02 Address for service—corporations

11.03 Address for service—proceeding against person in person’s business name

11.04 Address for service—partnership

11.05 Receivers

11.06 When must notice of address for service be filed

11.07 How to file notice of address for service

11.08 Service of notice of address for service

Part 12—Submitting notices

12.01 Submitting notice

Part 13—Jurisdiction—setting aside originating application

13.01 Setting aside originating application etc

Part 14—Interlocutory orders for preservation of rights and property

Division 14.1—Inspection of property

14.01 Order for inspection etc of property

14.02 Service of application

14.03 View by Court

Division 14.2—Preservation etc of property

14.11 Preservation of property

14.12 Disposal of personal property

14.13 Interim distribution of property or income from property

14.14 Payment before determination of all interested persons

Division 14.3—Receivers

14.21 Application to appoint receiver

14.22 Guarantee

14.23 Powers

14.24 Remuneration

14.25 Accounts

14.26 Default

14.27 Death of receiver

Part 15—Cross‑claims and third party claims

Division 15.1—Making cross‑claim

15.01 Cross–claim by respondent

15.02 Starting cross‑claim

15.03 Title of cross‑claim and subsequent documents

15.04 Time for bringing cross‑claim

15.05 Application for extension of time to file cross‑claim

15.06 Cross–claim to be accompanied by statement of cross‑claim or affidavit

15.07 Cross–claim to state relief claimed

15.08 Service of notice of cross‑claim on cross‑respondent

15.09 Service of pleadings and documents

15.10 Conduct of proceeding after cross‑claim is filed

15.11 Separate proceeding in relation to cross‑claim

15.12 Cross‑claim for contribution or indemnity

15.13 Hearings in relation to cross‑claims

15.14 Co‑cross‑respondents

Division 15.2—Amendment of cross‑claim

15.15 Amendment generally

15.16 Date on which amendment takes effect

15.17 Procedure for making amendment

15.18 Time for amending notice of cross‑claim under Court order

15.19 Service of amended cross‑claim

Part 16—Pleadings

Division 16.1—General

16.01 Pleading to include name of person who prepared it

16.02 Content of pleadings—general

16.03 Pleading of facts

16.04 References to documents or spoken words

16.05 Conditions precedent

16.06 Inconsistent allegations or claims

16.07 Admissions, denials and deemed admissions

16.08 Matters that must be expressly pleaded

16.09 Defence of tender before start of proceeding

16.10 Defence claiming set‑off

16.11 Joinder of issue

16.12 Close of pleadings

Division 16.2—Striking out pleadings

16.21 Application to strike out pleadings

Division 16.3—Progress of pleadings

16.31 Application of Division 16.3

16.32 Defence to application

16.33 Reply

Division 16.4—Particulars

16.41 General

16.42 Fraud, misrepresentation etc

16.43 Conditions of mind

16.44 Damages and exemplary damages

16.45 Application for order for particulars

Division 16.5—Amendment of pleadings

16.51 Amendment without needing the leave of the Court

16.52 Disallowance of amendment of pleading

16.53 Application for leave to amend

16.54 Date on which amendment takes effect

16.55 Consequential amendment of defence

16.56 Consequential amendment of reply

16.57 Implied joinder of issue after amendment

16.58 Time for amending pleading under Court order

16.59 Procedure for making amendment to pleading

16.60 Service of amendment

Part 17—Interlocutory applications

17.01 Interlocutory application

17.02 Reliance on correspondence or undisputed documents

17.03 Service on others

17.04 Hearing and determination of interlocutory application—absence of party

Part 18—Interpleader proceedings

Division 18.1—Stakeholder’s interpleader

18.01 Application for relief by way of interpleader

18.02 How application to be made

18.03 Orders that may be sought

18.04 Default by claimant

18.05 Neutrality of stakeholder

18.06 Order in several proceedings

Division 18.2—Sheriff’s interpleader

18.11 Notice of claim

18.12 Notice of claim to be served on execution creditor

18.13 Admission of claim by execution creditor

18.14 Application by Sheriff for interpleader

Part 19—Security for costs

19.01 Application for an order for security for costs

Part 20—Discovery and inspection of documents

Division 20.1—General

20.01 Withholding documents on public interest grounds

20.02 Privilege

20.03 Undertakings or orders applying to documents

Division 20.2—Discovery

20.11 Discovery must be for the just resolution of the proceeding

20.12 No discovery without court order

20.13 Application for discovery

20.14 Standard discovery

20.15 Non‑standard and more extensive discovery

20.16 Giving discovery

20.17 List of documents

20.18 Copies of documents

20.19 Claim of privilege

20.20 Supplementary discovery

20.21 Order for particular discovery

20.22 Deponent for affidavit for discovery

20.23 Discovery from non‑party

20.24 Non‑party’s obligation

20.25 Non‑party’s costs and expenses

Division 20.3—Production for inspection

20.31 Notice to produce document in pleading or affidavit

20.32 Order for production from party

20.33 Order for production from non‑party

20.34 Copying of documents produced for inspection

20.35 Production to Court

Part 21—Interrogatories

21.01 Order for interrogatories

21.02 When application may be made

21.03 Answers to interrogatories

21.04 Affidavit verifying written answers to interrogatories

21.05 Orders dealing with insufficient answers

21.06 Answers tendered as evidence

21.07 Public interest

Part 22—Admissions

22.01 Notice to admit facts or documents

22.02 Notice disputing facts or documents

22.03 Disputing party to pay costs if document is proved etc

22.04 Facts or documents taken to be admitted if not disputed

22.05 Deemed admission

22.06 Withdrawal of admissions

22.07 Judgment on admissions

Part 23—Experts

Division 23.1—Court experts

23.01 Appointment of Court expert

23.02 Court expert’s report

23.03 Court expert’s report—use at trial

23.04 Other expert’s reports on the question

Division 23.2—Parties’ expert witnesses and expert reports

23.11 Calling expert evidence at trial

23.12 Provision of guidelines to an expert

23.13 Contents of an expert report

23.14 Application for expert report

23.15 Evidence of experts

Part 24—Subpoenas

Division 24.1—Leave to issue subpoena

24.01 Leave to issue subpoena

Division 24.2—Subpoenas to give evidence and to produce documents

24.11 Definitions for Division 24.2

24.12 Issuing of subpoena

24.13 Form of subpoena

24.14 Change of date for attendance or production

24.15 Setting aside or other relief

24.16 Service

24.17 Compliance with subpoena

24.18 Production otherwise than on attendance

24.19 Removal, return, inspection, copying and disposal of documents and things

24.20 Inspection of, and dealing with, documents and things produced otherwise than on attendance

24.21 Return of documents and things produced

24.22 Costs and expenses of compliance

24.23 Failure to comply with subpoena—contempt of court

24.24 Documents and things in custody of Court

Part 25—Offers to settle

25.01 Offer to compromise

25.02 Notice to be signed

25.03 Offer to compromise—content

25.04 Offer to be paid within 28 days

25.05 Timing of offer

25.06 No communication to Court of offer

25.07 Withdrawal of offer

25.08 Acceptance of offer

25.09 Withdrawal of acceptance

25.10 Failure to comply with offer

25.11 Multiple respondents

25.12 Taxation of costs where offer accepted

25.13 Contributor parties

25.14 Costs where offer not accepted

Part 26—Ending proceedings early

Division 26.1—Summary judgment and stay of proceedings

26.01 Summary judgment

Division 26.2—Withdrawal and discontinuance

26.11 Withdrawal of defence etc

26.12 Discontinuance

26.13 Service of notice

26.14 Effect of discontinuance

26.15 Stay of proceeding until costs paid

Part 27—Transfer of proceedings

Division 27.1—Family Court of Australia

27.01 Transfer to Family Court of Australia

Division 27.2—Federal Circuit Court of Australia

27.11 Transfer to Federal Circuit Court of Australia

27.12 Factors to be taken into account

27.13 Transfer from Federal Circuit Court of Australia

Division 27.3—Cross‑vesting

27.21 Transfer of proceeding from the Court

27.22 Application by Attorney‑General for transfer of proceeding from the Court

27.23 Transfer of proceeding to the Court

Part 28—Alternative dispute resolution

Division 28.1—General

28.01 General

28.02 Orders that may be sought

28.03 Arbitration, mediation and ADR process

28.04 Court may terminate mediation or ADR process

28.05 Parties may refer proceeding to mediation, arbitration or ADR process

Division 28.2—Arbitration

28.11 Appointment of arbitrator

28.12 Applications by interlocutory application

28.13 Applications for registration

28.14 Applications for order in terms of an award

Division 28.3—Mediation

28.21 Nomination of mediator

28.22 Conduct of mediation

28.23 Report if only part of proceeding to be mediated

28.24 Termination of mediation—mediator initiated

28.25 Agreement at mediation

Division 28.4—ADR process

28.31 Nomination of person to conduct ADR process

28.32 Conduct of ADR process

28.33 Report if only part of proceeding to be subject of ADR process

28.34 Termination of ADR process

28.35 Agreement at ADR process

Division 28.5—International arbitration

28.41 Definitions for Division 28.5

28.42 Application of Division

28.43 Application for stay of arbitration

28.44 Enforcing foreign award

28.45 Application for relief under Model Law

28.46 Subpoenas for Division 28.5

28.47 Application under section 23A of International Arbitration Act

28.48 Application under section 23F or 23G of International Arbitration Act

28.49 Recognition of award

28.50 Documents not in English language

Division 28.6—Referral by Court to referee

28.61 Order of referral

28.62 Appointment of referees

28.63 Two or more referees

28.64 Security for remuneration

28.65 Conduct of inquiry

28.66 Report

28.67 Proceeding on report

Part 29—Evidence

Division 29.1—Affidavits

29.01 When affidavit may be sworn or affirmed

29.02 Form of affidavit

29.03 Content of affidavits

29.04 Swearing or affirming affidavit by person who has disability

29.05 Service of exhibits and annexures

29.06 Irregularity in form

29.07 Use of affidavit not filed or in irregular form

29.08 Serving of affidavits

29.09 Cross‑examination of deponent

Division 29.2—Evidence on commission taken in Australia or abroad

29.11 Order for examination of witness

29.12 Letter of request

29.13 Procedure for orders under section 7 (1) (a) or (b) of Foreign Evidence Act 1994

29.14 Documents for examiner

29.15 Appointment for examination

29.16 Conduct of examination

29.17 Examination of additional persons

29.18 Objection

29.19 Taking of depositions

29.20 Authentication and filing

29.21 Special report

29.22 Default of witness

29.23 Evidence of future right or claim

Part 30—Hearings

Division 30.1—Separate decisions on questions

30.01 Application for separate trials

30.02 Disposal of proceedings after hearing separate questions

Division 30.2—Consolidation

30.11 Consolidation of proceedings before trial

Division 30.3—Trial

30.21 Absence of party at trial

30.22 No appearance by any party

30.23 Trial limitations

30.24 Death before judgment

30.25 Evidence in other proceedings

30.26 Plans, photographs and models

30.27 Consent

30.28 Notice to produce

30.29 Notice of intention to adduce evidence of previous representation

30.30 Notice of objection to tender of hearsay evidence if maker available

30.31 Notice of intention to adduce tendency evidence

30.32 Notice of intention to adduce coincidence evidence

30.33 Parties in lawful custody

30.34 Attendance and production

Division 30.4—Assessment of damages

30.41 Order for calculation of amount of damages by Registrar

30.42 Notice of objection to calculation

30.43 Procedure if notice given

30.44 Procedure if notice not given

Division 30.5—Accounts

30.51 Order for account to be taken

30.52 Form and filing of account

30.53 Notice of additional charge or error in account

30.54 Orders to deal with delay

30.55 Order for account or inquiry before Registrar

30.56 Notice of objection to certificate

30.57 Procedure if notice given

30.58 Procedure if notice not given

Chapter 3—Original jurisdiction—special classes of proceedings

Part 31—Judicial review

Division 31.1—Administrative Decisions (Judicial Review) Act 1977

31.01 Application for order of review

31.02 Application for extension of time

31.03 Documents to be filed and served

31.04 Service

31.05 Notice of objection to competency

Division 31.2—Judiciary Act 1903

31.11 Form of application

31.12 Joinder of claims for relief

Division 31.3—Migration Act 1958

31.21 Definitions for Division 31.3

31.22 Application for review of migration decision

31.23 Application for extension of time

31.24 Notice of objection to competency

Division 31.4—Australian Crime Commission Act 2002

31.31 Applications under section 57 of Australian Crime Commission Act 2002

Part 32—Remittals and referrals from the High Court

Division 32.1—Matters remitted from the High Court

32.01 Filing of order of remittal

32.02 Service of order and notice

32.03 Address for service

32.04 Hearing of application to show cause

Division 32.2—Referral of petition under Commonwealth Electoral Act 1918

32.11 Filing of order referring petition or part of petition

32.12 Service of order and notice

32.13 Address for service

32.14 Lists of votes claimed or objected to

32.15 Counter‑charges

32.16 Notice of trial

32.17 Withdrawal of petition and substitution of another petitioner

32.18 Death of petitioner

Part 33—Appeals from decisions of bodies other than courts

Division 33.1—Taxation appeals

33.01 Definitions for Division 33.1

33.02 Starting AOD appeals

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

33.04 Documents to be filed and served by Commissioner—private rulings

33.05 Starting DPO appeals

33.06 Documents to be filed and served by Commissioner

Division 33.2—Administrative Appeals Tribunal

33.11 Definitions for Division 33.2

33.12 Starting an appeal—filing and service of notice of appeal

33.13 Application for extension of time to start appeal

33.14 Amendment of notice of appeal without leave—supplementary notice

33.15 Application for leave to raise other questions of law or rely on other grounds

33.16 Respondent’s address for service

33.17 Form of application for stay of Tribunal decision

33.18 Registrar of Tribunal to send documents

33.19 No written reasons for decision

33.20 Notice of cross‑appeal

33.21 Notice of contention

33.22 Directions hearing

33.23 Appeal books

33.24 Assistance from Registrar

33.25 Title of appeal books

33.26 Content of appeal books

33.27 Written submissions, chronology and lists of authorities

33.28 Filing of Part C documents

33.29 Further evidence on appeal

33.30 Notice of objection to competency of appeal

33.31 Discontinuance of appeal

33.32 Application to dismiss appeal

33.33 Absence of party

Division 33.3—Appeals from the Superannuation Complaints Tribunal

33.34 Appeals under section 46 of the Superannuation (Resolution of Complaints) Act 1993

Division 33.4—Appeals from the National Native Title Tribunal

33.40 Appeals under section 169 of the Native Title Act 1993

Part 34—Other proceedings

Division 34.1—Fair Work proceedings

34.01 Definitions for Division 34.1

34.02 Application of Division 34.1 and other provisions of these Rules

34.03 Application in relation to dismissal from employment in contravention of a general protection

34.04 Application in relation to alleged unlawful termination of employment

34.05 Application in relation to alleged discrimination

34.06 Application for rule to show cause

34.07 Requirements for applications for an inquiry or ballot

34.08 Application for interim orders

Division 34.2—Proceedings for an offence

34.11 Starting a prosecution

34.12 Form of summons and information

34.13 Proceeding on date to answer charge

34.14 Warrant for arrest of respondent

34.15 Affidavits as to fine or penalty

34.16 Judge may issue a warrant

Division 34.3—Intellectual property

34.21 Definitions for Division 34.3

34.22 Application of Division 34.3

34.23 Appearance by Commissioner

34.24 Starting an appeal—filing and service of notice of appeal

34.25 Application for extension of time to file notice of appeal

34.26 Grounds of appeal or particulars not stated in notice of appeal

34.27 Particulars of non‑patentable invention

34.28 Notice of cross‑appeal

34.29 Notice of contention

34.30 Provision of documents by Commissioner

34.31 Evidence

34.32 Application for determination of equitable remuneration

34.33 Applications for determination of terms of doing an act

34.34 Infringement of EL rights—particulars

34.35 Infringement of copyright—particulars

34.36 Infringement of registered designs—particulars

34.37 Application for compulsory licence—Designs Act

34.38 Revocation of registration or rectification of Register—Designs Act

34.39 Infringement of monopoly in protected design—particulars—Olympic Insignia Protection Act

34.40 Application for rectification of Register of Olympic Designs or dispute of validity of protected design

34.41 Applications under section 105(1) of Patents Act

34.42 Applications under section 120(1) of Patents Act

34.43 Applications under section 125(1) of Patents Act

34.44 Applications under section 128(1) of Patents Act

34.45 Applications under Chapter 12 of Patents Act

34.46 Dispute of validity of patent—particulars of invalidity

34.47 Infringement of PBR—particulars

34.48 Infringement of registered trade marks—particulars

34.49 Dispute of validity of registration of trade mark—particulars of invalidity

34.50 Experimental proof as evidence

Division 34.4—Trans‑Tasman proceedings—general

34.61 Definitions for Division 34.4

34.62 Proceedings under the Trans‑Tasman Proceedings Act

34.63 Originating application under Trans‑Tasman Proceedings Act

34.64 Interlocutory application under Trans‑Tasman Proceedings Act

34.65 Application for interim relief

34.66 Application for leave to serve subpoena in New Zealand

34.67 Form of subpoena

34.68 Application to set aside subpoena

34.69 Application for issue of certificate of non‑compliance with subpoena

34.70 Documents relating to application

34.71 Application to enforce compliance with order made by New Zealand court

34.72 Notice of registration of NZ judgment

34.73 Application for extension of time to give notice of registration of NZ judgment

34.74 Application to set aside registration of NZ judgment

34.75 Application for stay of enforcement of registered NZ judgment so that liable person can appeal judgment

34.76 Application for extension of time to apply for stay of enforcement of registered NZ judgment so that liable person can appeal judgment

34.77 Application for order for use of audio link or audiovisual link

Division 34.5—Trans‑Tasman market proceedings

34.81 Definitions for Division 34.5

34.82 Application of Division 34.5

34.83 Filing documents in Australian market proceeding in New Zealand

34.84 Filing documents in a NZ market proceeding in Australia

34.85 Federal Court sittings in New Zealand

34.86 Application of rules 34.72 to 34.76

Division 34.5A—Transitional arrangements for Divisions 34.4 and 34.5

34.86A Transitional arrangements for Divisions 34.4 and 34.5

Division 34.6—Aboriginal and Torres Strait Islander Act 2005

34.91 Definition for Division 34.6

34.92 Form and service of election petition

34.93 Response to election petition

34.94 Reference as to qualifications or vacancy

Division 34.7—Native title proceedings

34.101 Interpretation for Division 34.7

34.102 Application of Division 34.7

34.103 Main application (native title and compensation)

34.104 Joinder of parties to main application within relevant period

34.105 Joinder of parties to main application after relevant period

34.106 Withdrawal of a party

34.107 Form of applications other than main applications

34.108 Service of applications other than main applications

34.109 Application for review of decision not to accept claim for registration

34.110 Application to remove details of agreement from Register of Indigenous Land Use Agreements

34.111 Application for order about return of, or access to, records

34.112 Question to be special case

34.113 Special case to be prepared—referral by mediator

34.114 Special case to be prepared—referral by NNTT

34.115 Party having carriage of proceeding—referral by mediator

34.116 Party having carriage of proceeding—referral by NNTT

34.117 Referral of questions about whether a party should cease to be a party

34.118 Report about breaches of good faith requirement

34.119 Definition for rules 34.120 to 34.123

34.120 Evidentiary matters generally

34.121 Orders to take account of cultural or customary concerns

34.122 Disclosure of evidence or information of cultural or customary nature, contrary to court order

34.123 Evidence of cultural or customary nature

34.124 Documents referring to certain material

34.125 Evidence given in consultation with others

34.126 Evidence given not in normal course

34.127 Inspection

34.128 Taking evidence

34.129 Conflict of interest

34.130 Short title of proceeding

34.131 Notices of appointment of agent and change to agent’s address for service

34.132 Application for leave to be represented by person who is not a lawyer

34.133 Native Title Registrar application to Court for order as to notice

34.134 Overlapping applications

34.135 Court may order adjournment for purpose of agreement between parties

34.136 Agreements regarding practical outcomes of native title determination

34.137 Appearance by NNTT

Division 34.8—Human rights proceedings

34.161 Definitions for Division 34.8

34.162 Application of Division 34.8

34.163 Starting a proceeding—application and claim

34.164 Copy of application to be given to Commission

34.165 Address for service

34.166 Appearance by special‑purpose Commissioner

34.167 Conduct of proceeding by litigation representative

Chapter 4—Appellate jurisdiction

Part 35—Leave to appeal

Division 35.1—Oral applications for leave to appeal from interlocutory judgments of the Court

35.01 Oral application for leave to appeal

Division 35.2—Written applications for leave to appeal

35.11 Application of Division

35.12 Form of application

35.13 Time for filing application

35.14 Extension of time to seek leave to appeal

35.15 Service of application

35.16 Method of service

35.17 Address for service of respondent

35.18 Certain applications may be dealt with without an oral hearing

35.19 Submissions

35.20 Objection to application being considered without oral hearing

35.21 Time for filing and serving affidavits

35.22 Directions

Division 35.3—Ending applications early

35.31 Withdrawing an application

35.32 Dismissing application for want of prosecution

35.33 Absence of a party

Division 35.4—Revocation of leave to appeal

35.41 Revocation or variation of grant of leave

Part 36—Appeals

Division 36.1—Institution of appeals

36.01 Form of notice of appeal

36.02 Filing of notice of appeal

36.03 Time for filing and serving notice of appeal

36.04 Service on parties and lodgments

36.05 Extension of time to file notice of appeal

36.06 Method of service

36.07 Address for service of respondent

36.08 Stay of execution or proceedings under judgment appealed from

36.09 Security for costs of appeal

36.10 Amendment to notice of appeal

36.11 Directions

Division 36.2—Cross–appeals and notices of contention

36.21 Cross‑appeal

36.22 Time to file notice of cross‑appeal

36.23 Extension of time to file notice of cross‑appeal

36.24 Notice of contention

Division 36.3—Parties to appeals and interveners

36.31 Parties

36.32 Applications to intervene

Division 36.4—Dealing with certain applications on the papers

36.41 Certain applications may be dealt with without an oral hearing

36.42 Submissions

36.43 Objection to application being considered without oral hearing

Division 36.5—Preparation of appeals

36.51 Appeal books

36.52 Assistance from Registrar

36.53 Title of appeal books

36.54 Content of appeal books

36.55 Written submissions, chronology and lists of authorities

36.56 Filing of Part C documents

36.57 Further evidence on appeal

Division 36.6—Ending appeals

36.71 Definitions for Division 36.6

36.72 Notice of objection to competency of appeal

36.73 Discontinuance of appeal

36.74 Application to dismiss appeal

36.75 Absence of party

Part 37—Appeals in criminal cases from Supreme Court of a Territory

37.01 Court may request a report

37.02 Application for production of a prisoner

Part 38—Cases stated and questions reserved

38.01 Application for case stated or question reserved

38.02 Case stated to be prepared etc

38.03 Directions

Chapter 5—Judgments, costs and other general provisions

Part 39—Orders

Division 39.1—Judgments and orders

39.01 Date of effect of judgment or order

39.02 Time for compliance with orders

39.03 Dismissal of proceedings and stay of further proceedings

39.04 Varying or setting aside a judgment or order before it has been entered

39.05 Varying or setting aside judgment or order after it has been entered

39.06 Interest on judgment

Division 39.2—Consent orders

39.11 Consent orders

Division 39.3—Undertakings

39.21 Orders dealing with failure to fulfil undertakings

Division 39.4—Judgments and orders—entry

39.31 When entry is required

39.32 Entry of an order

39.33 Lodgment of orders for entry

39.34 Order entered in Court

39.35 Authentication of orders

Part 40—Costs

Division 40.1—General

40.01 Party and party costs

40.02 Other order for costs

40.03 Costs reserved

40.04 Costs on interlocutory application or hearing

40.05 Costs in other courts

40.06 Costs improperly, unreasonably or negligently incurred

40.07 Liability of lawyer to their client for misconduct

40.08 Reduction in costs otherwise payable

Division 40.2—Taxation of costs

40.12 Application of Division 40.2 and 40.3

40.13 Taxation of costs awarded on an interlocutory application

40.14 Order for taxation not required

40.15 Failure to file bill of costs

40.16 Unnecessary expense in proceeding before taxing officer

40.17 Filing bill for taxation

40.18 Contents of bill

40.19 Service of a bill

40.20 Estimate of costs

40.21 Objection to estimate

40.22 Resolution at confidential conference

40.23 Provisional taxation

40.24 Notice that bill is to be taxed

40.25 Notice of objection

40.26 Response to notice of objection

40.27 Taxation

40.28 Powers of taxing officer

40.29 Costs to be allowed on taxation

40.30 Costs not to be allowed on taxation

40.31 Exercise of taxing officer’s discretion

40.32 Certificate of taxation

40.33 Costs of taxation

40.34 Review by Court

40.35 Stay of costs

Division 40.3—Short form bills

40.41 Short form bill on application for winding up under Corporations Act 2001

40.42 Procedure—short form bills under Corporations Act 2001

40.43 Short form bill on migration appeal

40.44 Procedure—short form bills for migration appeals

Division 40.4—Determination of maximum costs

40.51 Maximum costs in a proceeding

Part 41—Enforcement

Division 41.1—General

41.01 Application without notice for directions

41.02 Condition precedent not fulfilled

41.03 Application for stay of judgment or order

41.04 Failure to comply with Court order

41.05 Failure to attend Court in response to subpoena or order

41.06 Endorsement on order

41.07 Service of order

41.08 Application where person fails to comply with order

41.09 Substituted performance

41.10 Execution generally

41.11 Stay of execution

Division 41.2—Enforcement against partnership

41.21 Execution of order against partnership

41.22 Execution against individual partner

41.23 Application to proceedings between co‑partners

Division 41.3—Execution against business name

41.31 Execution of order—proceeding against person in person’s business name

Division 41.4—Sheriff

41.41 Suspension of execution of process

41.42 Failure to execute process

41.43 Application for orders in relation to execution of process

Division 41.5—Fees

41.51 Definitions for Division 41.5

41.52 Security

41.53 Liability of lawyer

41.54 Bill of fees

41.55 Taxation

41.56 Failure by lawyer to pay Sheriff’s fees

Division 41.6—Reciprocal enforcement of judgments under Foreign Judgments Act 1991

41.61 Interpretation for Division 41.6

41.62 Application for an order for registration of foreign judgment

41.63 Further affidavit to be filed on day of hearing

41.64 Registration

41.65 Notice of registration

41.66 Application to set aside registration of judgment or stay enforcement of judgment

41.67 Application to set aside registered foreign judgment

41.68 Security for costs

41.69 Record of registered judgments

Chapter 6—Disciplinary

Part 42—Contempt

Division 42.1—Contempt in face or hearing of Court

42.01 Arrest for contempt

42.02 Charge, defence and determination

42.03 Interim custody

Division 42.2—Applications for contempt

42.11 Procedure generally

42.12 Statement of charge

42.13 Service

42.14 Arrest

42.15 Procedure on the hearing

42.16 Application or proceeding by the Registrar

Division 42.3—General

42.21 Warrant for imprisonment

42.22 Discharge before end of prison term

Schedule 1—Dictionary

Schedule 2—Powers of the Court that may be exercised by a Registrar

Part 3.1—Corporations (Aboriginal and Torres Strait Islander) Act 2006

Part 3.2—Trans‑Tasman Proceedings Act 2010

Part 3.3—Federal Court of Australia Act 1976

Part 3.4—Foreign Evidence Act 1994

Part 3.5—Foreign Judgments Act 1991

Part 3.6—Native Title Act 1993

Part 3.7—Federal Court Rules 2011

Schedule 3—Costs allowable for work done and services performed

Endnotes

Endnote 1—Legislation history

Endnote 2—Amendment history

Endnote 3—Uncommenced amendments [none]

Endnote 4—Misdescribed amendments [none]

Chapter 1—Introductory provisions

Part 1—Preliminary

Division 1.1—Scope

1.01  Name of Rules

  These Rules are the Federal Court Rules 2011.

1.02  Commencement

  These Rules commence on 1 August 2011.

1.03  Repeal of previous Rules

  The Federal Court Rules are repealed.

1.04  Application

 (1) These Rules apply to a proceeding started in the Court on or after 1 August 2011.

 (2) These Rules apply to a step in a proceeding that was started before 1 August 2011, if the step is taken on or after 1 August 2011.

 (3) However, the Court may order that the Federal Court Rules as in force immediately before 1 August 2011 apply, with or without modification, to a step mentioned in subrule (2).

Note 1: For the rules governing proceedings in the Court under the Bankruptcy Act 1966, see the Bankruptcy Regulations 1996 and the Federal Court (Bankruptcy) Rules 2005.

Note 2: For the rules governing proceedings in the Court under the Corporations Act 2001, see the Federal Court (Corporations) Rules 2000.

Note 3: For the rules governing proceedings in the Court under the Admiralty Act 1988, see the Admiralty Rules 1988.

Rules 1.05–1.20 left blank

Division 1.2—Application about procedures

1.21  Application for orders about procedures

  A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:

 (a) the procedure is not prescribed by the Act, these Rules or by or under any other Act; or

 (b) the person is in doubt about the procedure.

Rules 1.22–1.30 left blank

Division 1.3—General powers of the Court

1.31  Orders to have regard to nature and complexity of proceeding

 (1) The Court may in making any order in the proceeding have regard to the nature and complexity of the proceeding.

 (2) The Court may deal with the proceeding in a manner that is proportionate to the nature and complexity of that proceeding.

1.32  Court may make any order it considers appropriate in the interests of justice

  The Court may make any order that the Court considers appropriate in the interests of justice.

Note: See sections 23 and 28 of the Act.

1.33  Orders may be subject to conditions

  The Court may make an order subject to any conditions the Court considers appropriate.

1.34  Dispensing with compliance with Rules

  The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.

1.35  Orders inconsistent with Rules

  The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.

1.36  Orders other than in open court

  The Court may make orders other than in open court.

Note: For the power of a Judge sitting in Chambers to exercise the jurisdiction of the Court, see section 17(2) of the Act.

1.37  Directions to Registrars

  The Court may direct a Registrar to do, or not to do, an act or thing.

1.38  Fixing of time by Court

  If no time for doing an act or thing in relation to a proceeding is fixed by these Rules, the Court may fix the time within which the act or thing is to be done.

1.39  Extension and shortening of time

  The Court may extend or shorten a time fixed by these Rules or by order of the Court:

 (a) before or after the time expires; and

 (b) whether or not an application for extension is made before the time expires.

1.40  Exercise of Court’s power

  The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

 (a) on its own initiative; or

 (b) on the application of a party, or a person who has a sufficient interest in the proceeding.

1.41  Other orders that may be made

  If a party makes an application, the Court may:

 (a) grant the order sought; or

 (b) refuse to grant the order sought; or

 (c) make a different order.

1.42  Orders may include consequences of non‑compliance

  The Court may specify in an order the consequences of not complying with the order.

Rules 1.43–1.50 left blank

Division 1.4—Interpretation

1.51  Definitions—the Dictionary

 (1) In these Rules, a word or expression defined in Schedule 1 (the Dictionary) has the meaning given in the Dictionary.

Note: The Schedules to these Rules are deemed to form part of the Rules—see section 13 of the Acts Interpretation Act 1901.

 (2) The Dictionary includes references to certain words and expressions that are defined elsewhere in these Rules (signpost definitions).

Note: The Dictionary includes a signpost definition for a word or expression that is defined elsewhere in these Rules only if the word or expression is used in more than one rule.

1.52  References to Forms

 (1) In these Rules, a reference to a form by number is a reference to the form approved under subrule (2).

 (2) The Chief Justice may approve a form for the purpose of a provision of these Rules.

Note: Approved forms are available on the Court’s website at http://www.fedcourt.gov.au.

Rules 1.53–1.60 left blank

Division 1.5—Time

1.61  Calculation of time

 (1) A period of time for doing an act or thing fixed by these Rules or by an order of the Court is to be calculated in accordance with this rule.

 (2) If the time fixed is to be calculated by reference to a particular day or event, and the time fixed is one day or more, the particular day or the day of the particular event is not to be counted.

 (3) If the time fixed includes a day that is not a business day in the place where the act or thing is to be done, and the time fixed is 5 days or less, the day is not to be counted.

Example: The Court orders that a document is to be filed and served within 3 days from Wednesday. Under subrule (3), the document must be served on or before the following Monday (since Saturday and Sunday are not business days).

Note: Business day is defined in the Dictionary.

 (4) An act or thing may be done on the next business day in a place if:

 (a) the last day for doing the act or thing is not a business day in the place where the act or thing is to be done; and

 (b) the act or thing may only be done on a day that is a business day in the place.

 (5) If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.

Part 2—Registry and documents

Division 2.1—Registry

2.01  Use of seal and stamps of Court

 (1) The seal of the Court will be affixed to the following documents:

 (a) Rules of Court;

 (b) a commission issued by authority of the Court;

 (c) a document issued by the Court for use outside Australia;

 (d) any other document, as ordered by the Court or as provided under the Act or any other Act.

 (2) The stamp of a District Registry will be affixed to the following documents:

 (a) an originating application, notice of address for service, interlocutory application, notice of appeal, subpoena, summons or warrant filed in the District Registry;

 (b) an order of the Court;

 (c) any other document as ordered by the Court.

 (3) The following may be affixed to a document by hand or by electronic means:

 (a) the seal of the Court;

 (b) the signature of the Registrar;

 (c) the stamp of a District Registry;

 (d) the signature of a District Registrar or Deputy District Registrar.

Note 1: Section 36 of the Act provides that the seal of the Court is to be kept in the Principal Registry. The Act provides for stamps for the Principal Registry and each District Registry designed as nearly as practicable to be the same as the seal.

Note 2: All documents to which the seal of the Court or the stamp of the District Registry has been affixed will also be signed by the Registrar, a District Registrar, a Deputy District Registrar or an officer acting with the authority of the Registrar or District Registrar—see section 37 of the Act.

2.02  Transfer of proceeding to another place

  A party may apply at the proper place for an order that the proceeding be transferred to another place.

Note 1: Proper place is defined in the Dictionary.

Note 2: See section 48 of the Act.

Rules 2.03–2.10 left blank

Division 2.2—Documents

2.11  General provisions about documents

  A document that is to be filed in a proceeding must be in accordance with any approved form and the Court’s requirements.

Note 1: Approved form is defined in the Dictionary.

Note 2: The Court’s requirements in relation to the preparation of documents are set out in practice notes issued by the Chief Justice.

2.12  Compliance with approved forms

  A requirement in these Rules that a document be in accordance with an approved form is complied with if the document:

 (a) is substantially in accordance with the approved form and any practice notes issued by the Chief Justice; or

 (b) has only those variations that the nature of the case requires.

2.13  Titles of documents

 (1) The heading of a document in a proceeding must include a reference to:

 (a) the District Registry where the document is filed; and

 (b) the appropriate Division of the Court.

 (2) A document in a proceeding between parties must include a title and details, in accordance with Form 1.

 (3) A document in a proceeding in which there is no respondent must include a title and details, in accordance with Form 2.

 (4) A document in a proceeding may include an abbreviated title, in accordance with Form 3, unless the document is:

 (a) an originating application; or

 (b) a notice of appeal; or

 (c) a document to be served on a person not a party to the proceeding; or

 (d) an order.

 (5) The title of a document in a proceeding must be sufficient to identify the proceeding.

2.14  Subsequent documents to be endorsed with Court number

  Each subsequent document filed in a proceeding must be endorsed, by the party filing the document, with the same number as that assigned by the Registrar to the originating application for the proceeding or to the notice of appeal.

Note: When an originating application that is not a cross‑claim or a notice of appeal is filed, the Registrar will assign a distinctive number to the document and will endorse the document with that number. The number will include a reference to the Registry in which the document is filed and the calendar year in which the document is filed. A new series of numbers will be started at the beginning of each calendar year.

2.15  Signature

 (1) A document (other than an affidavit, annexure or exhibit attached to another document) filed by a party in a proceeding must be dated and signed by:

 (a) the party’s lawyer; or

 (b) the party, if the party does not have a lawyer.

 (2) A signature affixed to a document by electronic means at the direction of the person required to sign the document complies with subrule (1).

Note: Lawyer is defined in the Dictionary.

2.16  Details at foot of each document

 (1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

 (a) the name and role of the party on whose behalf the document is filed;

 (b) the name of the person or lawyer responsible for preparation of the document;

 (c) if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;

 (d) if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;

 (e) the address for service of the party.

 (2) In this rule:

role of the party means the capacity in which the party is participating in the proceeding.

Rules 2.17–2.20 left blank

Division 2.3—Lodging and filing documents

2.21  How documents may be lodged with the Court

 (1) A document may be lodged with the Court by:

 (a) being presented to a Registry when the Registry is open for business; or

 (b) being posted to a Registry with a written request for the action required in relation to the document; or

 (c) being faxed to a Registry in accordance with rule 2.22; or

 (d) being sent by electronic communication to a registry, in accordance with rule 2.23.

 (2) A document in an existing proceeding that is to be lodged with the Court in accordance with paragraph (1)(b), (c) or (d) must be sent to the proper Registry.

 (3) If a document in an existing proceeding is lodged with a Registry other than the proper Registry, the document must be accompanied by a letter:

 (a) identifying the proper place for the proceeding; and

 (b) requesting that the document be sent to the proper Registry.

 (4) Subject to rules 2.22 and 2.23, a document that is required to be sealed, stamped or signed by the Court must be accompanied by the required number of copies for sealing, stamping or signing.

Note: Proper Registry is defined in the Dictionary.

2.22  Faxing a document

 (1) A document that is faxed to a Registry for filing must:

 (a) be sent to a fax number approved by the Registrar; and

 (b) be accompanied by a cover sheet clearly stating:

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

 (ii) the number of pages sent; and

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

 (2) A document must not be faxed to a Registry if it is more than 20 pages.

 (3) The sender of the document must:

 (a) keep the original document and the transmission report showing that the document was faxed successfully; and

 (b) produce the original document or transmission report if ordered to do so by the Court.

Note 1: If the document is accepted in the Registry, the Registrar will return a copy of the document by fax to the fax number stated on the cover sheet.

Note 2: Details of the opening times for each District Registry are on the Court’s website at http://www.fedcourt.gov.au.

2.23  Sending a document by electronic communication

 (1) A document that is sent by electronic communication to a Registry for filing must:

 (a) be sent by using the Court’s website at http://www.fedcourt.gov.au; and

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

 (c) if a document is required to be in accordance with an approved form—so far as is practicable, be in an approved form that complies with rule 2.12 or 2.13; and

 (d) be capable of being printed in the form in which it was created without any loss of content.

Note: The electronic format approved by the Registrar for a Registry is available on the Court’s website at http://www.fedcourt.gov.au.

 (2) An affidavit must be sent as an image.

 (3) If the document is in an existing proceeding, it must be sent to the proper Registry by using the Court’s website at http://www.fedcourt.gov.au.

 (4) The person who sends the document must:

 (a) keep a paper or electronic copy of the document prepared in accordance with this rule; and

 (b) if ordered to do so by the Court, produce the hard copy of the document.

2.24  Documents sent by electronic communication

 (1) If a document sent to a Registry by electronic communication in accordance with rule 2.23 is accepted at the Registry, and is a document that must be signed or stamped, the Registrar will:

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

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

 (2) If a notice has been inserted as the first page of the document in accordance with subrule (1), the notice is taken to be part of the document for the purposes of the Act and these Rules.

2.25  When is a document filed

 (1) A document is filed if:

 (a) it is lodged with the Court in accordance with rule 2.21(1); and

 (b) either:

 (i) for a document in an existing proceeding—it is accepted in the proper Registry by being stamped as ‘filed’; or

 (ii) in any other case—it is accepted in a Registry by being stamped as ‘filed’.

 (2) A document in an existing proceeding is taken to have been filed on the day when it was received by a Registry that is not the proper Registry if the document:

 (a) is presented to a Registry other than the proper Registry; and

 (b) is sent by the Registry to the proper Registry; and

 (c) is filed in accordance with subparagraph (1)(b)(i).

 (3) If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

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

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

Note 1: Business day is defined in the Dictionary.

Note 2: File is defined in the Dictionary as meaning file and serve.

Note 3: Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.

2.26  Refusal to accept document for filing—abuse of process or frivolous or vexatious documents

  A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

 (a) on the face of the document; or

 (b) by reference to any documents already filed or submitted for filing with the document.

2.27  When documents will not be accepted in a Registry

  A document will not be accepted for filing if:

 (a) it is not substantially complete; or

 (b) it does not substantially comply with these Rules; or

 (c) it is not properly signed; or

 (d) a Registrar has refused to accept the document; or

 (e) the Court has given a direction that the document not be accepted; or

 (f) the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

Note: If a document is lodged with the Court in accordance with paragraph 2.21(1)(b), (c) or (d) and the Registry does not accept it, a Registrar will notify the sender of the document accordingly.

Rules 2.28–2.30 left blank

Division 2.4—Custody and inspection of documents

2.31  Custody of documents

 (1) The District Registrar of a District Registry is to have custody of, and control over:

 (a) each document filed in a Registry in a proceeding; and

 (b) the records of the Registry.

 (2) A person may remove a document from a Registry if:

 (a) a Registrar has given written permission for the removal because it is necessary to transfer the document to another Registry; or

 (b) the Court has given the person leave for the removal.

 (3) If the Court or Registrar permits a person to remove a document from the Registry, the person must comply with any conditions on the removal imposed by the Court or Registrar.

2.32  Inspection of documents

 (1) A party may inspect any document in the proceeding except:

 (a) a document for which a claim of privilege has been made:

 (i) but not decided by the Court; or

 (ii) that the Court has decided is privileged; or

 (b) a document that the Court has ordered be confidential.

 (2) A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

 (a) an originating application or cross‑claim;

 (b) a notice of address for service;

 (c) a pleading or particulars of a pleading or similar document;

 (d) a statement of agreed facts or an agreed statement of facts;

 (e) an interlocutory application;

 (f) a judgment or an order of the Court;

 (g) a notice of appeal or cross‑appeal;

 (h) a notice of discontinuance;

 (i) a notice of change of lawyer;

 (j) a notice of ceasing to act;

 (k) in a proceeding to which Division 34.7 applies:

 (i) an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

 (ii) an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

 (l) reasons for judgment;

 (m) a transcript of a hearing heard in open Court.

Note: Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

 (3) However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

 (a) be confidential; or

 (b) is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note: For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

 (4) A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

 (5) A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

 (a)  is entitled to inspect the document; and

 (b)  has paid the prescribed fee.

Note 1: For the prescribed fee, see the Federal Court of Australia Regulations 2004.

Note 2: If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.

Note 3: For proceedings under the Trans‑Tasman Proceedings Act, see also rule 34.70.

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Division 2.5—Administration of money paid into Court and payment out

2.41  Establishment of Litigants’ Fund

 (1) The Registrar will establish with a bank an account entitled ‘Federal Court of Australia Official Exempt SPM Litigants’ Fund’.

 (2) The Litigants’ Fund comprises the money standing, from time to time, to the credit of the account established under subrule (1).

Note: Bank and Litigants’ Fund are defined in the Dictionary.

2.42  Dealing with money paid into Court

 (1) Money paid into Court in a proceeding must:

 (a) if the Court has made an order under subrule (2)—be paid, credited or applied in accordance with the order; or

 (b) if paragraph (a) does not apply—be paid into the Litigants’ Fund.

 (2) A party may apply to the Court for an order:

 (a) 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; and

 (b) in relation to the disbursement of any interest earned on the money.

Note: As soon as practicable after money has been paid into Court in a proceeding, the relevant District Registrar will give a notice to each party stating that the money has been received and giving details of how the money has been paid, credited or applied.

2.43  Payment out of Litigants’ Fund

 (1) Money paid into Court under rule 2.42 may be paid out or applied only in accordance with an order of the Court.

 (2) However, the District Registrar may pay out of the Litigants’ Fund money that has been paid in as security for the costs of a taxation of a bill of costs.

Note 1: An order under this rule will state:

(a) the details of the payment to be made; and

(b) any other action to be taken by a Registrar in relation to the money.

Note 2: As soon as practicable after money is paid out of the Litigants’ Fund, the relevant District Registrar will give a notice to each party.

Part 3—Registrars

Note: For the appointment of the Registrar, and of Deputy Registrars, District Registrars and Deputy District Registrars, see sections 18C and 18N of the Act.  For the powers of the Registrar, see section 18D of the Act.  Deputy Registrars, District Registrars and Deputy District Registrars have the duties, powers and functions given to them by the Act or the Chief Justice―see this Part and sections 18N (2) and 35A of the Act .

Division 3.1—Powers of Registrars

3.01  Powers of the Court that may be exercised by a Registrar

 (1) For section 35A(1)(h) of the Act, the following powers of the Court are prescribed:

 (a) a power of the Court under a provision of an Act mentioned in column 2 of an item in Schedule 2;

 (b) a power of the Court under a provision of these Rules mentioned in column 2 of an item in Schedule 2;

 (c) the power of the Court to receive evidence on any application that the Registrar is empowered to decide;

 (d) if the parties consent in writing:

 (i) the power of the Court under section 23 of the Act to make an order for the dismissal of a proceeding and to make an order for the payment of costs;

 (ii) the power of the Court under section 53A of the Act to make an order referring a proceeding to arbitration.

 (e) the power of the Court under section 20A(2) of the Act to deal with a matter without an oral hearing.

 (2) A description in column 3 of an item in Schedule 2 is for information only.

 (3) A Registrar may only exercise the power referred to in paragraph (1)(e) if:

 (a) the requirements of sections 20A(2)(a) to (c) of the Act are met; and

 (b) either:

 (i) the application was made without notice; or

 (ii) the parties to the proceeding consent.

Note 1: For the powers of the Court that may, if the Court so directs, be exercised by a Registrar, see section 35A(1) of the Act.

Note 2: Without notice is defined in the Dictionary.

Note 3: See also the following:

(a) sections 35A(1)(a) to (g) of the Act;

(b) rule 16.1 and Schedule 2 to the Corporations Rules;

(c) rule 2.02 and Schedule 2 to the Bankruptcy Rules.

3.02  Authority to administer oaths and affirmations

  A Registrar may administer an oath or affirmation in a proceeding.

3.03  Orders other than in open court

  A Registrar may make an order other than in open court.

3.04  Application for orders in relation to Registrars

  A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.

Note: Without notice is defined in the Dictionary.

3.05  Application to the Registrar for an application to be determined by the Court

  A party may apply orally to a Registrar under section 35A(7)(b) of the Act for the Registrar to arrange for the Court to determine an application for the exercise of a power mentioned in section 35A(1) of the Act.

Note: A party may apply to the Registrar to have the application determined by the Court—see section 35A(7)(b) of the Act.

Rules 3.06–3.10 left blank

Division 3.2—Reviewing a Registrar’s exercise of power

3.11  Application for review of the Registrar’s exercise of power

 (1) A party may apply to the Court under section 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar.

 (2) The application must be made within 21 days after the day on which the power was exercised.

Part 4—Lawyers

Division 4.1—General

4.01  Proceeding by lawyer or in person

 (1) A person may be represented in the Court by a lawyer or may be unrepresented.

 (2) A corporation must not proceed in the Court other than by a lawyer.

Note 1: Corporation and lawyer are defined in the Dictionary.

Note 2: A notice of address for service for a corporation must be filed by a lawyer―see rule 11.02.

Note 3: The Court may dispense with compliance with this rule—see rule 1.34.

4.02  Power to act by lawyer

  A party’s lawyer may do an act or thing that the party is required or permitted to do unless the context or subject matter indicates otherwise.

4.03  Appointment of a lawyer—notice of acting

  If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

Note: File is defined in the Dictionary as meaning file and serve.

4.04  Termination of retainer by party

 (1) If a party terminates a lawyer’s retainer, and a new lawyer is appointed to represent the party, the new lawyer must file a notice of acting, in accordance with Form 5.

 (2) If a party terminates a lawyer’s retainer, and a new lawyer is not appointed to represent the party, the party must file a notice of termination of the lawyer’s retainer, in accordance with Form 6, and a notice of address for service.

Note: Rule 11.01 contains requirements in relation to the address for service.

 (3) If a party who has terminated a lawyer’s retainer does not file the documents required by rule 4.04(2), the lawyer whose retainer has been terminated may file a notice of ceasing to act, in accordance with Form 8.

4.05  Termination of retainer by lawyer

 (1) If a party’s lawyer terminates the retainer, the lawyer must:

 (a) serve on the party a notice of intention of ceasing to act, in accordance with Form 7; and

 (b) at least 7 days after serving the notice—file a notice of ceasing to act, in accordance with Form 8.

 (2) A party whose lawyer has filed a notice under paragraph (1)(b) must file a notice of address for service within 5 days after the notice is filed.

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Division 4.2—Court referral for legal assistance

4.11  Definitions for Division 4.2

  In this Division:

assisted party means a party receiving legal assistance under this Division.

legal assistance means any of the following:

 (a) advice in relation to the proceeding;

 (b) representation at a directions, interlocutory or final hearing or mediation;

 (c) drafting or settling documents to be used in the proceeding;

 (d) representation generally in the conduct of the proceeding.

Pro Bono lawyer means a lawyer who has agreed to accept a referral under rule 4.12 to provide pro bono legal assistance.

4.12  Referral for legal assistance

 (1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

 (2) When making a referral under subrule (1), the Court may take the following matters into account:

 (a)  the means of the party;

 (b)  the capacity of the party to otherwise obtain legal assistance;

 (c)  the nature and complexity of the proceeding;

 (d)  any other matters the Court considers appropriate.

 (3) The referral certificate may state the kind of legal assistance for which the party has been referred.

 (4) The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

4.13  A party has no right to apply for a referral

  A party is not entitled to apply to the Court for a referral under rule 4.12.

4.14  Acceptance of referral certificate and provision of legal assistance

  If a lawyer agrees to accept a referral under rule 4.12, the lawyer must provide legal assistance in accordance with the referral certificate.

4.15  Ceasing to provide legal assistance

 (1) A Pro Bono lawyer may cease to provide legal assistance to the assisted party only:

 (a) with the assisted party’s written agreement; or

 (b) with the Registrar’s permission under rule 4.16.

 (2) If paragraph (1)(a) applies, the Pro Bono lawyer must, within 7 days after receiving the agreement, give the Registrar a copy of the agreement.

4.16  Application for Registrar’s permission to cease providing legal assistance

 (1) A Pro Bono lawyer may apply to the Registrar for permission to cease to provide legal assistance to a party.

 (2) An application must be in writing and include the reasons for making the application.

 (3) The Pro Bono lawyer must give a copy of the application only to the assisted party.

 (4) The application:

 (a) will be treated as confidential; and

 (b) will not be treated as part of the proceeding; and

 (c) will not be included on the Court file of the proceeding.

 (5) The Registrar may consider the application without further notice to the assisted party.

 (6) In considering an application, the Registrar will take into account the following:

 (a) whether the Pro Bono lawyer would be likely to be able to cease to provide legal assistance to the assisted party under any practice rules governing professional conduct applying to the lawyer;

 (b) any conflict of interest that the Pro Bono lawyer may have;

 (c) whether there is a substantial disagreement between the Pro Bono lawyer and the assisted party about the conduct of the litigation;

 (d) any view of the Pro Bono lawyer:

 (i) that the assisted party’s case is not well founded in fact or law; or

 (ii) that the assisted party’s prosecution of the litigation is an abuse of process;

 (e) whether the Pro Bono lawyer lacks the time to provide adequate legal assistance to the assisted party because of other professional commitments;

 (f) whether the assisted party has refused or failed to pay any disbursements requested under rule 4.18;

 (g) whether it is unfair to require the Pro Bono lawyer to continue to provide legal assistance to the assisted party;

 (h) any other relevant matter.

4.17  Cessation of referral certificate

  A referral certificate ceases to have effect if:

 (a) it is not accepted by a lawyer within 28 days after the referral; or

 (b) a Pro Bono lawyer has provided the legal assistance mentioned in the referral certificate; or

 (c) a Pro Bono lawyer has ceased to provide legal assistance under rule 4.15; or

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

4.18  Disbursements

  A Pro Bono lawyer may ask the assisted party to pay any disbursements reasonably incurred, or reasonably to be incurred, by the Pro Bono lawyer on behalf of the assisted party in relation to the legal assistance.

4.19  Professional fees

 (1) A Pro Bono lawyer must not seek or recover professional fees from an assisted party unless the Pro Bono lawyer and the assisted party have entered into a costs agreement.

 (2) The costs agreement must provide that the Pro Bono lawyer be entitled to charge and the assisted party is liable to pay professional fees only:

 (a) if an order for costs is made in favour of the assisted party; and

 (b) to the extent that the party against whom the order for costs is made in fact pays the costs.

 (3) If a costs agreement is entered into, the Court may order a party against whom an order for costs is made to pay the costs, including any disbursements incurred under rule 4.18, directly to the Pro Bono lawyer instead of the assisted party.

 (4) A payment made to the Pro Bono lawyer under subrule (3) satisfies, to the extent of that payment, the order for costs made in favour of the assisted party.

Part 5—Court supervision of proceedings

Division 5.1—Return date and directions

5.01  Parties to attend Court on return date

  A party, or the party’s lawyer, must attend the Court on the return date fixed in the originating application.

Note 1: Originating application is defined in the Dictionary.

Note 2: When a proceeding is started, the Registrar will fix a return date and place for hearing and endorse those details on the originating application.

5.02  Parties to file notice of address for service before return date

  A respondent who has been served with an originating application must file a notice of address for service, in accordance with Form 10, before the return date fixed in the originating application.

Note: Rule 11.01 contains requirements in relation to the address for service.

5.03  Respondent’s genuine steps statement

 (1) If an applicant has filed a genuine steps statement the respondent must file the respondent’s genuine steps statement, in accordance with Form 11, before the return date fixed in the originating application.

 (2) A genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.

Note 1: Civil Dispute Resolution Act is defined in the Dictionary.

Note 2: Rule 8.02 requires an applicant in a proceeding to which the Civil Dispute Resolution Act applies to file an applicant’s genuine dispute resolution statement at the same time as the originating application is filed.

5.04  Making directions

 (1) At any hearing, the Court may make directions for the management, conduct and hearing of a proceeding.

Note: Direction is defined in the Dictionary.

 (2) A party, or the party’s lawyer, must attend any hearing for the proceeding.

 (3) Without limiting subrule (1), the Court may make a direction mentioned in the following table.

Note 1: If a proceeding is transferred under a direction mentioned in item 34 of the table, the Registrar at the place from which the proceeding is transferred will send all documents in the Registrar’s custody relating to the proceeding to the Registrar at the place to which the proceeding is transferred.

Note 2: A Registrar may exercise the power in this rule—see rule 3.01 and Schedule 2.

Note 3: A party may seek directions as to the conduct of a hearing or trial—see rule 30.23.

5.05  Adjournment of directions hearing

  The Court may adjourn a directions hearing from time to time.

Note: Directions hearing is defined in the Dictionary.

5.06  Application for directions—cross‑claims

 (1) If a cross‑claim is filed, the parties, or the parties’ lawyers, must attend the Court on the return date fixed in the cross‑claim.

 (2) A party may apply to the Court for directions for the management, conduct and hearing of the cross‑claim.

5.07  Interlocutory orders

  A party who wants to obtain an interlocutory order must make an application in accordance with rule 17.01.

Note: Part 17 deals with interlocutory applications.

5.08  Hearing and determination of matter at directions hearing

  A party may apply to the Court at a directions hearing:

 (a) to hear and determine the proceeding at the directions hearing; or

 (b) to dispose of an originating application or a cross‑claim at the directions hearing.

Rules 5.09–5.20 left blank

Division 5.2—Orders on default

5.21  Self‑executing orders

  A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:

 (a) the proceeding be dismissed; or

 (b) the applicant’s statement of claim be struck out; or

 (c) the respondent’s defence be struck out; or

 (d) the party have judgment against the other party.

5.22  When a party is in default

  A party is in default if the party fails to:

 (a) do an act required to be done, or to do an act in the time required, by these Rules; or

 (b) comply with an order of the Court; or

 (c) attend a hearing in the proceeding; or

 (d) prosecute or defend the proceeding with due diligence.

5.23  Orders on default

 (1) If an applicant is in default, a respondent may apply to the Court for an order that:

 (a) a step in the proceeding be taken within a specified time; or

 (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

 (i) immediately; or

 (ii) on conditions specified in the order.

 (2) If a respondent is in default, an applicant may apply to the Court for:

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

 (b) if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

 (i) the debt or liquidated damages; and

 (ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

 (c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or

 (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or

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

Note 1: The Court may make any order that the Court considers appropriate in the interests of justice—see rule 1.32.

Note 2: An order or judgment under this Division may be set aside or varied.

5.24  Contempt

  This Division does not limit the power of the Court to punish for contempt.

Part 6—Court supervision of parties and other persons

Division 6.1—Vexatious proceedings

6.01  Scandalous, vexatious or oppressive matter

  If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:

 (a) the document be removed from the Court file; or

 (b) the matter be struck out of the document.

6.02  Certificate of vexatious proceedings order

 (1) A person who wants the Registrar to issue a certificate under subsection 37AP(1) of the Act must make the request in writing and include in the request:

 (a) the person’s name and address; and

 (b) the person’s interest in making the application.

 (2) The request must be lodged in the District Registry in which the vexatious proceedings order was made.

 (3) The certificate will state:

 (a) the name of the person subject to the vexatious proceedings order; and

 (b) if applicable, the name of the person who applied for the vexatious proceedings order; and

 (c) the date on which the vexatious proceedings order was made; and

 (d) the orders made by the Court.

6.03  Application for leave to institute proceedings

  An application under subsection 37AR(2) of the Act for leave to institute a proceeding that is subject to a vexatious proceedings order must be made:

 (a) in accordance with Form 2; and

 (b) without notice to any other person.

Note 1: See subsection 37AR(2) of the Act for the right of a person who is subject to a vexatious proceedings order to apply to the Court to institute a proceeding.

Note 2: See subsection 37AR(3) of the Act for the contents of the affidavit that must be filed with the application.

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Division 6.2—Use of communication and recording devices in Court

6.11  Use of communication device or recording device in place where hearing taking place

 (1) In this rule:

communication device includes a mobile telephone, audio link, video link or any other electronic communication equipment.

recording device means a device that is capable of being used to record images or sound, including a camera, tape recorder, video recorder, mobile telephone or digital audio recorder.

 (2) A person must comply with any directions made by the Court at the hearing of any proceeding in the Court relating to the use of a communication device or recording device.

 (3) A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court.

 (4) A person must not use a communication device or a recording device that might:

 (a) disturb a hearing in the Court; or

 (b) cause any concern to a witness or other participant in the hearing; or

 (c) allow a person who is not present in the Court to receive information about the proceeding or the hearing to which the person is not entitled.

Note 1: The Court may have regard to any relevant matter, including the following:

(a) why the person needs to use the device in the hearing;

(b) if an order has been given excluding one or more witnesses from the Court—whether there is a risk that the device could be used to brief a witness out of court;

(c) whether the use of the device would disturb the hearing or distract or cause concern to a witness or other participant in the hearing.

Note 2: The Court may dispense with compliance with this rule—see rule 1.34.

6.12  Contempt

  Rule 6.11 does not limit the powers of the Court to punish for contempt.

Chapter 2—Original jurisdiction—proceedings generally

Part 7—Orders before start of a proceeding

Division 7.1—Injunctions, preservation of property and receivers

7.01  Order before start of proceeding

 (1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order:

 (a) granting an injunction; or

 (b) if the matter relates to property:

 (i) for the detention, custody, preservation or inspection of the property; and

 (ii) to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or

 (c) if the matter relates to the right of a prospective applicant to an amount in a fund—that the amount in the fund be paid into Court or otherwise secured; or

 (d) appointing a receiver with the power of a receiver and manager.

 (2) An application mentioned in subrule (1) must be in accordance with Form 12 and accompanied by an affidavit stating the facts on which the prospective applicant relies.

 (3) A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.

Note: Without notice is defined in the Dictionary.

Rules 7.02–7.10 left blank

Division 7.2—Approval of agreement for person under a legal incapacity

7.11  Compromise or settlement of matter before proceeding

 (1) If a claim that is enforceable by a proceeding in the Court is made by, for or against a person under a legal incapacity, an interested person may apply to the Court for an order:

 (a) approving an agreement made by or for the person for compromise or settlement of the claim before any proceeding is started; and

 (b) enforcing the claim.

Note 1: Interested person, for a person under legal incapacity, and person under a legal incapacity are defined in the Dictionary.

Note 2: Division 9.6 deals with a proceeding by or against a person under a legal incapacity.

 (2) An application must be:

 (a) in accordance with Form 13; and

 (b) accompanied by the following:

 (i) an affidavit stating the material facts on which the application relies;

 (ii) the agreement that is sought to be approved;

 (iii) an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.

 (3) The Court may, as a condition of an approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement or in any other way that the Court considers appropriate.

Note: The Court may give approval subject to conditions—see rule 1.33.

 (4) If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity.

Rules 7.12–7.20 left blank

Division 7.3—Preliminary discovery

7.21  Definitions for Division 7.3

  In this Division:

prospective applicant means a person who reasonably believes that there may be a right for the person to obtain relief against another person who is not presently a party to a proceeding in the Court.

prospective respondent means a person, not presently a party to a proceeding in the Court, against whom a prospective applicant reasonably believes the prospective applicant may have a right to obtain relief.

7.22  Order for discovery to ascertain description of respondent

 (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:

 (a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

 (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and

 (c) another person (the other person):

 (i) knows or is likely to know the prospective respondent’s description; or

 (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description.

 (2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:

 (a) to attend before the Court to be examined orally only about the prospective respondent’s description; and

 (b) to produce to the Court at that examination any document or thing in the person’s control relating to the prospective respondent’s description; and

 (c) to give discovery to the prospective applicant of all documents that are or have been in the person’s control relating to the prospective respondent’s description.

Note 1: Control and description are defined in the Dictionary.

Note 2: For how discovery is to be made, see rule 7.25.

 (3) The prospective applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.

Note: Conduct money is defined in the Dictionary.

7.23  Discovery from prospective respondent

 (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

 (a) reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

 (b) after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

 (c) reasonably believes that:

 (i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

 (ii) inspection of the documents by the prospective applicant would assist in making the decision.

 (2) If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

7.24  Procedure for applications under this Division

 (1) A prospective applicant who wants to make an application under rule 7.22 or 7.23 must file an originating application, in accordance with Form 14.

 (2) An application must be accompanied by an affidavit:

 (a) stating the facts on which the prospective applicant relies; and

 (b) identifying, as precisely as possible, the documents or categories of documents to which the application relates.

 (3) A copy of the application and affidavit must be served personally on each person against whom the order is sought.

7.25  List of documents

  If a person is ordered to give discovery under rule 7.22 or 7.23, the person must file a list of documents in accordance with rule 20.17.

Note: For the requirements for a list of documents, see rule 20.17.

7.26  Privilege

  An order made under this Division does not require the person against whom the order is made to produce any document that, on the ground of privilege, the person could not be required to produce if the prospective applicant had started a proceeding against the person or made the person a party to the proceeding.

7.27  Inspection of documents

 (1) If a document is discovered in accordance with this Division, the prospective applicant may apply to the Court to have the document produced for inspection.

 (2) Division 20.3, with any necessary modification, applies to the inspection of the documents mentioned in a list of documents made and served in accordance with this Division as if the list were a list of documents as mentioned in rule 20.17.

7.28  Copying of documents produced for inspection

  A prospective applicant to whom a document is produced for inspection may at the prospective applicant’s own expense copy the document subject to any reasonable conditions imposed by the person producing the document.

7.29  Costs

  A person against whom an order is sought or made under this Division may apply to the Court for an order that:

 (a) the prospective applicant give security for the person’s costs and expenses including:

 (i) the costs of giving discovery and production; and

 (ii) the costs of complying with an order made under this Division; and

 (b) the prospective applicant pay the person’s costs and expenses.

Note: Part 40 deals with costs and Division 40.2 deals with taxation of costs.

Rule 7.30 left blank

Division 7.4—Freezing orders

Note: This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee.

7.31  Definitions for Division 7.4

  In this Division:

ancillary order has the meaning given by rule 7.33.

another court means a court outside Australia or a court in Australia other than the Court.

applicant means a person who applies for a freezing order or an ancillary order.

freezing order has the meaning given by rule 7.32.

judgment includes an order.

respondent means a person against whom a freezing order or an ancillary order is sought or made.

7.32  Freezing order

 (1) The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

 (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

Note: Without notice is defined in the Dictionary.

7.33  Ancillary order

 (1) The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate.

 (2) Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes:

 (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order;

 (b) determining whether the freezing order should be made.

7.34  Order may be against person not a party to proceeding

  The Court may make a freezing order or an ancillary order against a person even if the person is not a party in a proceeding in which substantive relief is sought against the respondent.

7.35  Order against judgment debtor or prospective judgment debtor or third party

 (1) This rule applies if:

 (a) judgment has been given in favour of an applicant by:

 (i) the Court; or

 (ii) for a judgment to which subrule (2) applies—another court; or

 (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in:

 (i) the Court; or

 (ii) for a cause of action to which subrule (3) applies—another court.

 (2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

 (3) This subrule applies to a cause of action if:

 (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and

 (b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

 (4) The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

 (a) the judgment debtor, prospective judgment debtor or another person absconds;

 (b) the assets of the judgment debtor, prospective judgment debtor or another person are:

 (i) removed from Australia or from a place inside or outside Australia; or

 (ii) disposed of, dealt with or diminished in value.

 (5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that:

 (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:

 (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

 (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

 (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

 (6) Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.

7.36  Jurisdiction

  Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order.

7.37  Service outside Australia of application for freezing order or ancillary order

  An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the Court.

7.38  Costs

 (1) The Court may make any order as to costs as it considers appropriate in relation to an order made under this Division.

 (2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.

Rules 7.39–7.40 left blank

Division 7.5—Search orders

Note: This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee.

7.41  Definitions for Division 7.5

  In this Division:

applicant means an applicant for a search order.

described includes described generally whether by reference to a class or otherwise.

premises includes a vehicle or vessel of any kind.

respondent means a person against whom a search order is sought or made.

search order has the meaning given by rule 7.42.

7.42  Search order

  The Court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence that is, or may be, relevant to an issue in the proceeding or anticipated proceeding.

Note: Without notice is defined in the Dictionary.

7.43  Requirements for grant of search order