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FEDERAL MAGISTRATES BILL 1999

1998-99

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES




Presented and read a first time









Federal Magistrates Bill 1999

No. , 1999

(Attorney-General)



A Bill for an Act relating to Federal Magistrates, and for other purposes

ISBN: 0642 404690

Contents

A Bill for an Act relating to Federal Magistrates, and for other purposes

The Parliament of Australia enacts:

Part 1—Introduction

1 Short title

This Act may be cited as the Federal Magistrates Act 1999.

2 Commencement

(1) This Act commences on the day on which it receives the Royal Assent.

(2) Proceedings are not to be instituted in, or transferred to, the Federal Magistrates Court before the earlier of the following days:

(a) a day fixed by Proclamation as the day on which the Federal Magistrates Court is to commence to exercise its jurisdiction;

(b) the last day of the period of 6 months beginning on the day on which this Act receives the Royal Assent.

3 Objects

(1) The main object of this Act is to create the Federal Magistrates Court under Chapter III of the Constitution.

(2) The other objects of this Act are:

(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and

(b) to enable the Federal Magistrates Court to use streamlined procedures; and

(c) to encourage the use of a range of appropriate dispute resolution processes.

4 Simplified outline

The following is a simplified outline of this Act:

• The Federal Magistrates Court is created as a federal court under Chapter III of the Constitution.

• The Federal Magistrates Court may also be known as the Federal Magistrates Service.

• The Federal Magistrates Court consists of a Chief Federal Magistrate and other Federal Magistrates.

• Jurisdiction is conferred on the Federal Magistrates Court by other laws of the Commonwealth.

• The Federal Magistrates Court is to promote the use of primary dispute resolution processes that are likely to assist people to resolve disputes away from the courts.

• Proceedings in the Federal Magistrates Court may be transferred to the Federal Court or the Family Court.

• Provision is made for the practice and procedure of the Federal Magistrates Court. The Court will be able to use streamlined procedures and operate without undue formality.

• The Federal Magistrates Court is to administer its own affairs.

• There is to be a Chief Executive Officer, who is to assist the Federal Magistrates Court in managing its administrative affairs.

• In addition to the Chief Executive Officer, there are to be Registrars and other officers of the Federal Magistrates Court.

• Officers of the Federal Magistrates Court may hold dual appointments as officers of the Federal Court or the Family Court.

• Arrangements will be made for the Federal Magistrates Court to share facilities with other courts.

5 Definitions

In this Act, unless the contrary intention appears:

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

Australia, when used in a geographical sense, includes the external Territories.

Australian court means a federal court or a court of a State or Territory.

Chief Executive Officer means the Chief Executive Officer of the Federal Magistrates Court.

Child Support (Assessment) Act 1989 includes regulations under that Act.

Child Support (Registration and Collection Act) 1988 includes regulations under that Act.

family and child counsellor has the same meaning as in the Family Law Act 1975.

Family Court means the Family Court of Australia.

Family Law Act 1975 includes regulations under that Act.

family law or child support proceedings means proceedings under:

(a) the Family Law Act 1975; or

(b) the Child Support (Assessment) Act 1989; or

(c) the Child Support (Registration and Collection) Act 1988.

Federal Court means the Federal Court of Australia.

Federal Magistrate:

(a) means a Federal Magistrate (including the Chief Federal Magistrate) who holds office under this Act; and

(b) when used in the expression the Federal Magistrates Court or a Federal Magistrate, means a Federal Magistrate sitting in Chambers.

judgment means a judgment, decree or order, whether final or interlocutory, or a sentence, and includes a decree within the meaning of the Family Law Act 1975.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

Registrar means a Registrar of the Federal Magistrates Court.

Rules of Court means Rules of Court made under this Act.

video link means facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places.

welfare officer has the same meaning as in the Family Law Act 1975.

6 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an offence.

7 External Territories

This Act extends to every external Territory.

Part 2—Federal Magistrates Court

8 Creation of Federal Magistrates Court

(1) A federal court, to be known as the Federal Magistrates Court, is created by this Act.

(2) The Federal Magistrates Court may also be known as:

(a) the Federal Magistrates Service; or

(b) the Federal Magistrates Court of Australia;

or both.

(3) The Federal Magistrates Court is a court of record and is a court of law and equity.

(4) The Federal Magistrates Court consists of the following justices:

(a) a Chief Federal Magistrate;

(b) such other Federal Magistrates as from time to time hold office in accordance with this Act.

Note: The Parliament may create federal courts under Chapter III of the Constitution.

9 Personnel provisions relating to Federal Magistrates

Schedule 1 has effect.

Part 3—Jurisdiction of the Federal Magistrates Court

10 Jurisdiction

(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:

(a) by express provision; or

(b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.

(2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia.

11 Exercise of jurisdiction by single Federal Magistrate

(1) For the purposes of the exercise of the jurisdiction of the Federal Magistrates Court, the Federal Magistrates Court is to be constituted by a single Federal Magistrate.

(2) The Federal Magistrates Court constituted by a Federal Magistrate may sit and exercise the jurisdiction of the Federal Magistrates Court even if the Federal Magistrates Court constituted by another Federal Magistrate is at the same time sitting and exercising the jurisdiction of the Federal Magistrates Court.

12 Arrangement of business of the Federal Magistrates Court

(1) The Chief Federal Magistrate is responsible for ensuring the orderly and expeditious discharge of the business of the Federal Magistrates Court.

(2) In discharging his or her responsibility under subsection (1), the Chief Federal Magistrate must promote the objects of this Act.

(3) Subject to such consultation with the Federal Magistrates as is appropriate and practicable, the Chief Federal Magistrate may make arrangements as to the Federal Magistrate who is to constitute the Federal Magistrates Court in particular matters or classes of matters.

(4) The Chief Federal Magistrate may, by written instrument, assign a particular Federal Magistrate to a particular location or registry.

(5) An instrument under subsection (4) has no effect unless it is approved, in writing, by the Minister.

(6) Subsection (4) does not prevent a Federal Magistrate from performing his or her duties at one or more other locations or registries on a temporary basis (whether on circuit or otherwise).

(7) In addition to the powers and functions conferred on the Chief Federal Magistrate by this Act, the Chief Federal Magistrate has such other functions and powers in relation to the Federal Magistrates Court as are specified in the regulations.

13 Exercise of jurisdiction in open court and in Chambers

(1) This section does not apply to family law or child support proceedings.

Note: See section 97 of the Family Law Act 1975.

Open court

(2) The jurisdiction of the Federal Magistrates Court must be exercised in open court. However, this rule does not apply where, as authorised by this Act or another law of the Commonwealth, the jurisdiction of the Federal Magistrates Court is exercised by a Federal Magistrate sitting in Chambers.

Federal Magistrate sitting in Chambers

(3) The jurisdiction of the Federal Magistrates Court may be exercised by a Federal Magistrate sitting in Chambers in:

(a) a proceeding on an application relating to the conduct of a proceeding; and

(b) a proceeding on an application for orders or directions as to any matter which, by this Act or any other law of the Commonwealth, is made subject to the direction of a Federal Magistrate sitting in Chambers; and

(c) a proceeding on any other application authorised by the Rules of Court to be made to a Federal Magistrate sitting in Chambers.

(4) The jurisdiction of the Federal Magistrates Court is to be exercised by a Federal Magistrate sitting in Chambers in a proceeding where:

(a) under the Rules of Court, the Federal Magistrates Court is authorised to make a decision relating to the proceeding without an oral hearing; and

(b) the parties to the proceeding have consented to the Federal Magistrates Court making a decision in relation to the proceeding without an oral hearing.

Proceeding in Chambers may be adjourned into court

(5) A Federal Magistrate may order a proceeding in Chambers to be adjourned into court.

Proceeding in open court may be adjourned into Chambers

(6) The Federal Magistrates Court may order a proceeding in open court to be adjourned into Chambers if, apart from this subsection, the jurisdiction of the Federal Magistrates Court may be exercised by a Federal Magistrate sitting in Chambers in that proceeding.

Closed court etc.

(7) The Federal Magistrates Court may order the exclusion of the public or of persons specified by the Federal Magistrates Court from a sitting of the Federal Magistrates Court if the Federal Magistrates Court is satisfied that the presence of the public or of those persons, as the case may be, would be:

(a) contrary to the interests of justice; or

(b) prejudicial to the security of the Commonwealth.

14 Determination of matter completely and finally

In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:

(a) absolutely; or

(b) on such terms and conditions as the Federal Magistrates Court thinks just;

all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:

(c) all matters in controversy between the parties may be completely and finally determined; and

(d) all multiplicity of proceedings concerning any of those matters may be avoided.

15 Making of orders and issue of writs

The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to:

(a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and

(b) issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate.

16 Declarations of right

(1) The Federal Magistrates Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.

17 Contempt of court

(1) The Federal Magistrates Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

(2) Subsection (1) has effect subject to any other Act.

(3) The jurisdiction of the Federal Magistrates Court to punish a contempt of the Federal Magistrates Court committed in the face or hearing of the Federal Magistrates Court may be exercised by the Federal Magistrates Court as constituted at the time of the contempt.

Note: See also section 112AP of the Family Law Act 1975, which deals with family law or child support proceedings.

18 Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked.

19 Proceedings not to be instituted in the Federal Magistrates Court if an associated matter is before the Federal Court or the Family Court

(1) Proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court.

(2) Subsection (1) does not apply to proceedings instituted in the Federal Magistrates Court under:

(a) Division 13A of Part VII of the Family Law Act 1975; or

(b) Part XIIIA of that Act.

(3) If:

(a) proceedings are instituted in the Federal Magistrates Court in contravention of subsection (1); and

(b) the proceedings are subsequently transferred to the Federal Court or the Family Court;

the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.

20 Appeals

(1) An appeal must not be brought to the High Court from a judgment of the Federal Magistrates Court.

(2) Subsection (1) has effect despite anything in:

(a) section 95 of the Family Law Act 1975; and

(b) section 104 of the Child Support (Assessment) Act 1989; and

(c) section 109 of the Child Support (Registration and Collection) Act 1988.

Note: For appeals from the Federal Magistrates Court, see:

(a) section 94 of the Family Law Act 1975; and

(b) section 102A of the Child Support (Assessment) Act 1989; and

(c) section 107A of the Child Support (Registration and Collection) Act 1988; and

(d) section 24 of the Federal Court of Australia Act 1976.

Part 4—Primary dispute resolution

Division 1—General

21 Primary dispute resolution processes

In this Part:

primary dispute resolution processes means procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes:

(a) counselling; and

(b) mediation; and

(c) arbitration; and

(d) neutral evaluation; and

(e) case appraisal; and

(f) conciliation.

22 Federal Magistrates Court to consider whether to advise people to use primary dispute resolution processes

The Federal Magistrates Court must consider whether or not to advise the parties to proceedings before it about the primary dispute resolution processes that could be used to resolve any matter in dispute.

23 Federal Magistrates Court to advise people to use primary dispute resolution processes

(1) If the Federal Magistrates Court considers that a primary dispute resolution process may help the parties to a dispute before it to resolve that dispute, the Federal Magistrates Court must advise the parties to use that primary dispute resolution process.

(2) If the Federal Magistrates Court does so advise the parties, it may, if it considers it desirable to do so, adjourn any proceedings before it to enable attendance in connection with the primary dispute resolution process.

Note: See also Part III of the Family Law Act 1975, which deals with primary dispute resolution in family law and child support matters.

24 Duty of legal practitioners to consider whether to advise people to use primary dispute resolution processes

A legal practitioner acting in proceedings in the Federal Magistrates Court, or consulted by a person considering instituting such proceedings, must consider whether or not to advise:

(a) the parties to the proceedings; or

(b) the person considering instituting proceedings;

about the primary dispute resolution processes that could be used to resolve any matter in dispute.

25 Duty of officers of the Federal Magistrates Court to advise people about primary dispute resolution processes

(1) A designated officer of the Federal Magistrates Court must, as far as practicable, on request by:

(a) a party to proceedings in the Federal Magistrates Court; or

(b) a person considering instituting proceedings in the Federal Magistrates Court;

advise the party or person about the primary dispute resolution processes that could be used to resolve any matter in dispute.

(2) For the purposes of this section, a member of the staff of the Federal Magistrates Court is taken to be an officer of the Federal Magistrates Court.

(3) For the purposes of this section, a designated officer of the Federal Magistrates Court is an officer of the Federal Magistrates Court specified in writing by the Chief Executive Officer for the purposes of this subsection.

26 Conciliation

(1) The Federal Magistrates Court may, by order, refer proceedings in the Federal Magistrates Court, or any part of them or any matter arising out of them, for conciliation in accordance with the Rules of Court.

(2) Subsection (1) has effect subject to the Rules of Court.

(3) Referrals under subsection (1) to a conciliator may be made with or without the consent of the parties to the proceedings.

27 Referral of question of law—primary dispute resolution process (other than arbitration)

(1) If the Federal Magistrates Court makes an order, or gives a direction, under this Act or any other law of the Commonwealth:

(a) referring any or all of the matters in dispute in proceedings before it for a primary dispute resolution process (other than arbitration); or

(b) referring any proceedings before it, or any part of them or any matters arising out of them, for a primary dispute resolution process (other than arbitration); or

(c) requiring either or both of the parties to a proceeding before it to attend a primary dispute resolution process (other than arbitration);

a party to the primary dispute resolution process may make an application to the Federal Magistrates Court for determination of a question of law arising out of the proceedings.

(2) An application under subsection (1) must be accompanied by a statement that:

(a) is signed by the person (the eligible person) conducting the primary dispute resolution process; and

(b) states that the eligible person consents to the making of the application; and

(c) states that the eligible person is of the opinion that the determination of the question of law by the Federal Magistrates Court is likely to assist the parties in reaching agreement about any or all of the matters in dispute in the proceedings.

(3) If an application is made under subsection (1), the Federal Magistrates Court may determine the question of law.

(4) If the Federal Magistrates Court determines a question of law under subsection (3), the determination is binding on the parties to the proceedings concerned.

28 Rules of Court about primary dispute resolution processes

(1) The Rules of Court may make provision for or in relation to primary dispute resolution processes carried out under an order made, or direction given, by the Federal Magistrates Court under this Act or another law of the Commonwealth.

(2) In particular, Rules of Court made for the purposes of subsection (1) may make provision for or in relation to the procedure to be followed when any primary dispute resolution process ends.

29 Regulations about primary dispute resolution processes

(1) The regulations may make provision for or in relation to primary dispute resolution processes carried out under an order made, or direction given, by the Federal Magistrates Court under this Act or another law of the Commonwealth.

(2) In particular, regulations made for the purposes of subsection (1) may make provision for or in relation to:

(a) the procedures to be followed by a person conducting a primary dispute resolution process in carrying out that process; and

(b) the attendance by persons at:

(i) a primary dispute resolution process; or

(ii) a conference conducted for the purpose of carrying out a primary dispute resolution process; and

(c) the kinds of persons who are eligible to conduct particular kinds of primary dispute resolution processes.

30 Rules of Court about costs of primary dispute resolution processes

The Rules of Court may make provision for or in relation to the costs of primary dispute resolution processes and the assessment or taxation of those costs, where:

(a) the primary dispute resolution process was carried out under an order made, or direction given, by the Federal Magistrates Court under this Act or another law of the Commonwealth; or

(b) the primary dispute resolution process was carried out for the purpose of settling a dispute about a matter with respect to which proceedings have been instituted in the Federal Magistrates Court.

31 Rules of Court about primary dispute resolution processes under the Family Law Act 1975

The Rules of Court may make provision for or in relation to the making of applications under the Family Law Act 1975 for mediation or arbitration and for orders under section 19E of that Act.

32 Consent orders

(1) If the parties to proceedings in the Federal Magistrates Court have reached agreement about a matter in dispute in the proceedings, the Federal Magistrates Court or a Federal Magistrate may, on application by the parties, make an order in the terms of the agreement.

(2) This section has effect subject to the Rules of Court.

Division 2—Proceedings other than family law or child support proceedings

33 Scope of Division

This Division applies to proceedings in the Federal Magistrates Court other than family law or child support proceedings.

Note: See Part III of the Family Law Act 1975.

34 Mediation

(1) The Federal Magistrates Court may, by order, refer proceedings in the Federal Magistrates Court, or any part of them or any matter arising out of them, to a mediator for mediation in accordance with the Rules of Court.

(2) Subsection (1) has effect subject to the Rules of Court.

(3) Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings.

(4) Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under subsection (1) is not admissible:

(a) in any court (whether exercising federal jurisdiction or not); or

(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

(5) A mediator has, in mediating anything referred under subsection (1), the same protection and immunity as a Federal Magistrate has in performing the functions of a Federal Magistrate.

35 Arbitration

(1) The Federal Magistrates Court may, by order, refer proceedings in the Federal Magistrates Court, or any part of them or any matter arising out of them, to an arbitrator for arbitration in accordance with the Rules of Court.

(2) Subsection (1) has effect subject to the Rules of Court.

(3) Referrals under subsection (1) to an arbitrator may be made only with the consent of the parties.

(4) The Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under subsection (1).

(5) An arbitrator has, in arbitrating anything referred under subsection (1), the same protection and immunity as a Federal Magistrate has in performing the functions of a Federal Magistrate.

36 Power of arbitrator to refer question of law to the Federal Magistrates Court

(1) If:

(a) any proceedings in the Federal Magistrates Court, or any part of them or any matter arising out of them, has been referred under subsection 35(1) to an arbitrator for arbitration; and

(b) the arbitrator has not made an award in respect of the arbitration; and

(c) a party to the arbitration has requested the arbitrator to apply to the Federal Magistrates Court for leave to refer to the Federal Magistrates Court a question of law arising in the arbitration;

the arbitrator may apply to the Federal Magistrates Court or a Federal Magistrate for leave to refer the question to the Federal Magistrates Court.

(2) The Federal Magistrates Court or a Federal Magistrate must not grant leave unless satisfied that the determination of the question of law by the Federal Magistrates Court might result in substantial savings in costs to the parties to the arbitration.

(3) If:

(a) the Federal Magistrates Court or a Federal Magistrate grants leave; and

(b) the arbitrator refers the question of law to the Federal Magistrates Court;

the Federal Magistrates Court must determine the question of law.

37 Review of arbitration award on a question of law etc.

(1) If:

(a) any proceedings in the Federal Magistrates Court, or any part of them or any matter arising out of them, has been referred under subsection 35(1) to an arbitrator for arbitration; and

(b) the arbitrator has made an award in respect of the arbitration; and

(c) the award has been registered with the Federal Magistrates Court under the Rules of Court;

the following provisions have effect.

(2) A party to the award may apply to the Federal Magistrates Court for a review, on a question of law, of the award.

(3) On a review of an award on a question of law, the Federal Magistrates Court may:

(a) determine the question of law; and

(b) make such orders as it thinks appropriate, including:

(i) an order affirming the award; or

(ii) an order varying the award; or

(iii) an order setting aside the award and remitting the award to the arbitrator for reconsideration in accordance with the directions of the Federal Magistrates Court; or

(iv) an order setting aside the award and determining the matter to which the award related.

(4) A party to the award may apply to the Federal Magistrates Court or a Federal Magistrate for an order that the costs payable by the party in respect of the arbitration be taxed in accordance with the Rules of Court.

(5) The person who made the application is not liable to pay in respect of the costs of the arbitration an amount that is more than the amount of the costs as taxed under an order made under subsection (4).

38 Arbitration awards

(1) The Federal Magistrates Court may, on application by a party to an award made in an arbitration (whether carried out under an order made under section 35 or otherwise) in relation to a matter in which the Federal Magistrates Court has original jurisdiction, make an order in the terms of the award.

(2) Subsection (1) does not apply to an award made in an arbitration carried out under an order made under subsection 35(1) unless the award has been registered with the Federal Magistrates Court under the Rules of Court.

(3) An order so made is enforceable in the same manner as if it had been made in an action in the Federal Magistrates Court. This subsection has effect subject to subsection (4).

(4) A writ of attachment must not be issued to enforce payment of money under an order made in accordance with this section.

Part 5—Transfer of proceedings to the Federal Court or the Family Court

39 Discretionary transfer of proceedings to the Federal Court or the Family Court

(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.

(2) The Federal Magistrates Court may transfer a proceeding under this section:

(a) on the application of a party to the proceeding; or

(b) on its own initiative.

(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:

(a) any Rules of Court made for the purposes of subsection 40(2); and

(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court must have regard to:

(a) any Rules of Court made for the purposes of subsection 40(4); and

(b) whether proceedings in respect of an associated matter are pending in the Family Court; and

(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

(5) If an order is made under subsection (1), the Federal Magistrates Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.

(6) An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).

(7) A reference in subsection (1) to a proceeding pending in the Federal Magistrates Court includes a reference to a proceeding that was instituted in contravention of subsection 19(1).

(8) This section does not apply to proceedings of a kind specified in the regulations.

40 Rules of Court about discretionary transfer of proceedings

(1) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Court under subsection 39(1).

(2) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Magistrates Court in deciding whether to transfer a proceeding to the Federal Court under subsection 39(1).

(3) The Rules of Court may make provision in relation to transfers of proceedings to the Family Court under subsection 39(1).

(4) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Magistrates Court in deciding whether to transfer a proceeding to the Family Court under subsection 39(1).

(5) In making Rules of Court for the purposes of this section, the Federal Magistrates, or a majority of them, must have regard to:

(a) whether particular matters could be more appropriately dealt with in the Federal Court or the Family Court; and

(b) whether the resources of the Federal Magistrates Court are sufficient to deal with particular matters; and

(c) the interests of the administration of justice; and

(d) anything else that the Federal Magistrates, or a majority of them, considers relevant.

(6) Before Rules of Court are made for the purposes of subsection (1) or (2), the Federal Magistrates Court must consult the Federal Court.

(7) Before Rules of Court are made for the purposes of subsection (3) or (4), the Federal Magistrates Court must consult the Family Court.

41 Mandatory transfer of proceedings to the Federal Court or the Family Court

(1) If a proceeding of a kind specified in regulations made for the purposes of this subsection is pending in the Federal Magistrates Court, the Federal Magistrates Court must, before going on to hear and determine the proceeding, transfer the proceeding to the Federal Court.

(2) If a proceeding of a kind specified in regulations made for the purposes of this subsection is pending in the Federal Magistrates Court, the Federal Magistrates Court must, before going on to hear and determine the proceeding, transfer the proceeding to the Family Court.

(3) If a proceeding is transferred under subsection (1), the Federal Magistrates Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court.

(4) If a proceeding is transferred under subsection (2), the Federal Magistrates Court may make such orders as it considers necessary pending the disposal of the proceeding by the Family Court.

(5) An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1) or (2).

(6) A reference in subsections (1) and (2) to a proceeding pending in the Federal Magistrates Court includes a reference to a proceeding that was instituted in contravention of subsection 19(1).

(7) The Minister must cause a copy of regulations (transfer regulations) made for the purposes of subsection (1) or (2) to be tabled in each House of the Parliament.

(8) Either House may, following a motion upon notice, pass a resolution disallowing the transfer regulations. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the transfer regulations was tabled in the House.

(9) If neither House passes such a resolution, the transfer regulations take effect on the day immediately after the last day upon which such a resolution could have been passed.

(10) Subsections (7), (8) and (9) have effect despite anything in:

(a) the Acts Interpretation Act 1901; or

(b) the Legislative Instruments Act 1999.

Part 6—Practice and procedure

Division 1—General

42 Federal Magistrates Court to operate informally

In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.

43 Practice and procedure

(1) The practice and procedure of the Federal Magistrates Court is to be in accordance with Rules of Court made under this Act. However, this subsection is subject to any provision made by or under this or any other Act with respect to practice and procedure.

Note: Rules of Court are made under section 83.

(2) In so far as the provisions applicable in accordance with subsection (1) are insufficient:

(a) the Rules of Court made under the Family Law Act 1975 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Magistrates Court or a Federal Magistrate, to the practice and procedure of the Federal Magistrates Court in relation to the jurisdiction of the Federal Magistrates Court under:

(i) the Family Law Act 1975; or

(ii) the Child Support (Assessment) Act 1989; or

(iii) the Child Support (Registration and Collection) Act 1988; and

(b) the Rules of Court made under the Federal Court of Australia Act 1976 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Magistrates Court or a Federal Magistrate, to the practice and procedure of the Federal Magistrates Court in relation to the jurisdiction of the Federal Magistrates Court under laws of the Commonwealth other than:

(i) the Family Law Act 1975; or

(ii) the Child Support (Assessment) Act 1989; or

(iii) the Child Support (Registration and Collection) Act 1988.

(3) In this section:

practice and procedure includes all matters in relation to which Rules of Court may be made under this Act.

44 Representation

A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:

(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or

(b) under the regulations, the other person is taken to be an authorised representative; or

(c) another law of the Commonwealth authorises the other person to represent the party.

45 Interrogatories and discovery

(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

(2) In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.

46 Subpoenas

(1) The Rules of Court may provide that the Federal Magistrates Court or a Federal Magistrate may issue a subpoena:

(a) to give evidence; or

(b) to produce documents or other things; or

(c) to both give evidence and produce documents or other things.

(2) The Federal Magistrates Court or a Federal Magistrate may issue a subpoena:

(a) on the application of a party to the proceedings concerned; or

(b) on its own or on his or her initiative.

(3) A subpoena in relation to proceedings pending in the Federal Magistrates Court must not be issued on the application of a party to the proceedings except with the leave of the Federal Magistrates Court or a Federal Magistrate.

(4) The Federal Magistrates Court or a Federal Magistrate must not grant leave under subsection (3) unless the party seeking the subpoena satisfies the Federal Magistrates Court or the Federal Magistrate that it is in the interests of justice to issue the subpoena.

Division 2—Documents filed with the Federal Magistrates Court

47 Filing of documents in the Federal Magistrates Court

(1) If a document is required or permitted to be filed in the Federal Magistrates Court:

(a) the document is to be filed:

(i) at a registry of the Federal Magistrates Court; or

(ii) in accordance with an arrangement under section 92 or 93; and

(b) the document is to be filed in accordance with the Rules of Court.

(2) The Rules of Court may provide that the requirements of subsection (1) are taken to have been met in relation to a document:

(a) if the document, or its contents, is or are given to the Federal Magistrates Court, in accordance with specified software requirements, by way of a specified kind of electronic transmission; or

(b) in such other circumstances (if any) as are ascertained in accordance with the Rules of Court.

48 Seal of the Federal Magistrates Court

(1) The Federal Magistrates Court is to have a seal, and the design of the seal is to be determined by the Minister.

(2) The seal of the Federal Magistrates Court must be kept in such custody as the Chief Federal Magistrate directs.

(3) The seal of the Federal Magistrates Court must be affixed to documents as provided by this or any other Act or by the Rules of Court.

49 Federal Magistrates Court stamps

(1) There are to be one or more Federal Magistrates Court stamps. For this purpose, a Federal Magistrates Court stamp is a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the Federal Magistrates Court.

(2) A document or a copy of a document marked with a Federal Magistrates Court stamp is as valid and effectual as if it had been sealed with a seal of the Federal Magistrates Court.

(3) A Federal Magistrates Court stamp must be affixed to documents as provided by this or any other Act or by the Rules of Court.

50 Writs etc.

(1) All writs, commissions and process issued from the Federal Magistrates Court must be:

(a) under the seal of the Federal Magistrates Court; and

(b) signed by a Federal Magistrate, a Registrar or an officer acting with the authority of the Chief Executive Officer.

(2) Subsection (1) does not apply to writs, commissions and process signed and issued in accordance with an arrangement under section 92.

Note: See paragraph 92(1)(b).

(3) To avoid doubt, subsection (1) does not apply to an order of the Federal Magistrates Court.

Note: For orders, see section 75.

51 Proceedings may be instituted by application

(1) Proceedings may be instituted in the Federal Magistrates Court by way of application without the need for pleadings.

(2) Subsection (1) has effect subject to the Rules of Court.

52 Limits on length of documents

(1) The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the length of documents required or permitted to be filed in the Federal Magistrates Court.

(2) Subsection (1) has effect subject to the Rules of Court.

Division 3—Conduct of proceedings

53 Venue

(1) The Federal Magistrates Court may sit at any place in Australia.

(2) The Federal Magistrates Court or a Federal Magistrate may, at any stage of a proceeding in the Federal Magistrates Court, order that:

(a) the proceeding; or

(b) a part of the proceeding;

be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Magistrates Court or Federal Magistrate imposes.

54 Determination of proceedings without a jury

A civil proceeding between parties in the Federal Magistrates Court is to be determined without a jury.

55 Decisions without oral hearing

The Rules of Court may authorise the Federal Magistrates Court or a Federal Magistrate to make decisions in proceedings without an oral hearing if the parties to the proceedings have consented to the making of such decisions without an oral hearing.

56 Limits on the length of oral argument

(1) The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the time for oral argument in proceedings before the Federal Magistrates Court.

(2) Subsection (1) has effect subject to the Rules of Court.

57 Written submissions

(1) The Federal Magistrates Court or a Federal Magistrate may give directions about the use of written submissions in proceedings before the Federal Magistrates Court.

(2) The Federal Magistrates Court or a Federal Magistrate may give directions limiting the length of written submissions in proceedings before the Federal Magistrates Court.

(3) Subsections (1) and (2) have effect subject to the Rules of Court.

58 Formal defects not to invalidate

(1) Proceedings in the Federal Magistrates Court are not invalidated by a formal defect or an irregularity, unless the Federal Magistrates Court is of opinion that:

(a) substantial injustice has been caused by the defect or irregularity; and

(b) the injustice cannot be remedied by an order of the Federal Magistrates Court.

(2) The Federal Magistrates Court or a Federal Magistrate may, on such conditions (if any) as the Federal Magistrates Court or Federal Magistrate thinks fit, make an order declaring that the proceeding is not invalid:

(a) by reason of a defect that it or he or she considers to be formal; or

(b) by reason of an irregularity.

Division 4—Evidence

59 Oaths and affirmations

(1) A Federal Magistrate may require and administer all necessary oaths and affirmations for the purposes of the Federal Magistrates Court.

(2) A Federal Magistrate may cause to be administered all necessary oaths and affirmations for the purposes of the Federal Magistrates Court. For this purpose, the Federal Magistrates Court may, either orally or in writing, authorise any person (whether in or outside Australia) to administer oaths and affirmations.

(3) The Chief Executive Officer may, by written instrument, authorise:

(a) a Registrar; or

(b) a member of the staff of the Federal Magistrates Court;

to administer oaths and affirmations for the purposes of the Federal Magistrates Court.

Note: See also paragraph 92(1)(d).

60 Swearing of affidavits etc.

(1) An affidavit to be used in a proceeding in the Federal Magistrates Court may be sworn or affirmed within Australia before:

(a) a Federal Magistrate; or

(b) a Registrar; or

(c) a justice of the peace; or

(d) a commissioner for affidavits; or

(e) a commissioner for declarations; or

(f) a person who is authorised to administer oaths or affirmations for the purposes of:

(i) the Federal Magistrates Court; or

(ii) the High Court; or

(iii) the Federal Court; or

(iv) the Family Court; or

(v) the Supreme Court of a State or Territory; or

(g) a person before whom affidavits can be sworn or affirmed under the Evidence Act 1995.

(2) An affidavit to be used in a proceeding in the Federal Magistrates Court may be sworn or affirmed at a place outside Australia before:

(a) a commissioner of the High Court who is authorised to administer oaths or affirmations in that place for the purposes of the High Court; or

(b) a commissioner of the Supreme Court of a State or Territory for taking affidavits who is empowered and authorised to act in that place; or

(c) an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955, who is exercising his or her function in that place; or

(d) a notary public who is exercising his or her function in that place; or

(e) a person who is:

(i) qualified to administer an oath or affirmation in that place; and

(ii) certified by the person mentioned in any of paragraphs (b), (c) and (d), or by the superior court of that place, to be so qualified.

(3) An affidavit sworn or affirmed outside Australia otherwise than before a person referred to in subsection (2) may be used in a proceeding in the Federal Magistrates Court in circumstances provided by the Rules of Court.

Note: See also paragraph 92(1)(d).

61 Orders and commissions for examination of witnesses

The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding before it or him or her:

(a) order the examination of a person upon oath or affirmation before the Federal Magistrates Court, a Federal Magistrate, an officer of the Federal Magistrates Court or other person, at any place within Australia; or

(b) order that a commission issue to a person, either within or beyond Australia, authorising him or her to take the testimony on oath or affirmation of a person;

and the Federal Magistrates Court or a Federal Magistrate may:

(c) by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and

(d) empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Federal Magistrates Court or Federal Magistrate directs.

62 Prohibition of publication of evidence etc.

The Federal Magistrates Court may, at any time during or after the hearing of a proceeding in the Federal Magistrates Court, make such order forbidding or restricting:

(a) the publication of particular evidence; or

(b) the publication of the name of a party or witness; or

(c) the publication of information that is likely to enable the identification of a party or witness; or

(d) access to documents obtained through discovery; or

(e) access to documents produced under a subpoena;

as appears to the Federal Magistrates Court to be necessary in order to prevent prejudice to:

(f) the administration of justice; or

(g) the security of the Commonwealth.

Note: See also section 121 of the Family Law Act 1975 in relation to family law or child support proceedings.

63 Time limits on giving of testimony

(1) The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the time for the giving of testimony in proceedings before the Federal Magistrates Court.

(2) Subsection (1) has effect subject to the Rules of Court.

64 Federal Magistrates Court may question witnesses

(1) The Federal Magistrates Court may:

(a) put a question to a person giving testimony in a proceeding if, in the opinion of the Federal Magistrates Court, the question is likely to assist in:

(i) the resolution of a matter in dispute in the proceeding; or

(ii) the expeditious and efficient conduct of the proceeding; and

(b) require the person to answer the question.

(2) Subsection (1) has effect subject to the Rules of Court.

(3) This section has effect in addition to, and not instead of, any other powers that the Federal Magistrates Court may have to ask questions.

65 Evidence may be given orally or by affidavit

(1) Testimony in a proceeding in the Federal Magistrates Court is to be given orally or by affidavit.

(2) However, the Federal Magistrates Court or a Federal Magistrate may:

(a) direct that particular testimony is to be given orally; or

(b) direct that particular testimony is to be given by affidavit.

(3) Subsections (1) and (2) have effect subject to:

(a) any other provision of this Act; and

(b) the Rules of Court; and

(c) any other law of the Commonwealth.

Cross-examination of person who makes an affidavit

(4) If:

(a) a person makes an affidavit; and

(b) a party to a proceeding in the Federal Magistrates Court adduces, or proposes to adduce, evidence by the affidavit;

a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit.

(5) Subsection (4) has effect subject to the Rules of Court.

(6) If:

(a) a request under subsection (4) is given to a person who has made an affidavit; and

(b) the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;

the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in the circumstances.

66 Offences by witness

(1) A person is guilty of an offence if:

(a) the person has been duly served with a subpoena or summons to appear as a witness before the Federal Magistrates Court; and

(b) the person:

(i) fails to attend as required by the subpoena or summons; or

(ii) fails to appear and report himself or herself from day to day unless excused, or released from further attendance, by the Federal Magistrates Court.

Penalty: Imprisonment for 6 months.

(2) A person is guilty of an offence if the person, while appearing as a witness before the Federal Magistrates Court:

(a) refuses or fails to be sworn or to make an affirmation; or

(b) refuses or fails to answer a question that he or she is required by the Federal Magistrates Court to answer; or

(c) refuses or fails to produce a document that he or she is required by the Federal Magistrates Court or by a subpoena or summons issued from the Federal Magistrates Court to produce.

Penalty: Imprisonment for 6 months.

(3) This section does not limit the power of the Federal Magistrates Court to punish persons for contempt of the Federal Magistrates Court, but a person must not be punished under this section and for contempt of the Federal Magistrates Court in respect of the same act or omission.

Note: See also Division 13A of Part VII, and Part XIIIA, of the Family Law Act 1975 in relation to family law or child support proceedings.

(4) Chapter 2 of the Criminal Code applies to all offences against this section.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 5—Use of video links or audio links

67 Testimony by video link or audio link

(1) The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link.

Note: See also section 70.

(2) The testimony must be given on oath or affirmation unless:

(a) the person giving the testimony is in a foreign country; and

(b) either:

(i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c) the Federal Magistrates Court or a Federal Magistrate is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3) If the testimony is given otherwise than on oath or affirmation, the Federal Magistrates Court or the Federal Magistrate is to give the testimony such weight as the Federal Magistrates Court or the Federal Magistrate thinks fit in the circumstances.

(4) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or

(b) on the Federal Magistrates Court’s own initiative or on the Federal Magistrate’s own initiative, as the case may be.

(5) This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994.

68 Appearance of persons by video link or audio link

(1) The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow a person to appear before the Federal Magistrates Court or the Federal Magistrate by way of video link or audio link.

Note: See also section 70.

(2) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or

(b) on the Federal Magistrates Court’s own initiative or on the Federal Magistrate’s own initiative, as the case may be.

(3) This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994.

69 Making of submissions by video link or audio link

(1) The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow a person to make a submission to the Federal Magistrates Court or the Federal Magistrate by way of video link or audio link.

Note: See also section 70.

(2) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or

(b) on the Federal Magistrates Court’s own initiative or on the Federal Magistrate’s own initiative, as the case may be.

(3) This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994.

70 Conditions for use of video links and audio links

Video link

(1) The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 67(1), 68(1) or 69(1) in relation to a video link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the video link:

(a) the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:

(i) giving the testimony; or

(ii) appearing; or

(iii) making the submission;

as the case may be, by way of the video link;

(b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting;

(c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;

(d) such other conditions (if any) as are imposed by the Federal Magistrates Court or the Federal Magistrate.

(2) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a) the form of the video link; and

(b) the equipment, or class of equipment, used to establish the link; and

(c) the layout of cameras; and

(d) the standard of transmission; and

(e) the speed of transmission; and

(f) the quality of communication.

Audio link

(3) The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 67(1), 68(1) or 69(1) in relation to an audio link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the audio link:

(a) the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person) who is:

(i) giving the testimony; or

(ii) appearing; or

(iii) making the submission;

as the case may be, by way of the audio link;

(b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting;

(c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;

(d) such other conditions (if any) as are imposed by the Federal Magistrates Court or the Federal Magistrate.

(4) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

(a) the form of the audio link; and

(b) the equipment, or class of equipment, used to establish the audio link; and

(c) the standard of transmission; and

(d) the speed of transmission; and

(e) the quality of communication.

Eligible persons

(5) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Magistrates Court or a Federal Magistrate considers should be treated as eligible persons for the purposes of that proceeding.

71 Putting documents to a person by video link or audio link

If, in the course of an examination or appearance of a person by video link or audio link in accordance with this Division, it is necessary to put a document to the person, the Federal Magistrates Court or a Federal Magistrate may direct or allow the document to be put to the person:

(a) if the document is physically present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting:

(i) by causing a copy of the document to be transmitted to the place where the person is located; and

(ii) by causing the transmitted copy to be put to the person; or

(b) if the document is physically present in the place where the person is located:

(i) by causing the document to be put to the person; and

(ii) by causing a copy of the document to be transmitted to the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting.

72 Administration of oaths and affirmations

An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link or audio link in accordance with this Division may be administered:

(a) by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting; or

(b) if the Federal Magistrates Court or the Federal Magistrate allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

73 Expenses

(1) The Federal Magistrates Court or a Federal Magistrate may make such orders as the Federal Magistrates Court or the Federal Magistrate thinks just for the payment of expenses incurred in connection with:

(a) the giving of testimony by video link or audio link in accordance with this Division; or

(b) the appearance of a person by video link or audio link in accordance with this Division; or

(c) the making of submissions by video link or audio link in accordance with this Division.

(2) Subsection (1) has effect subject to the regulations.

74 New Zealand proceedings

This Division does not affect the operation of the Evidence and Procedure (New Zealand) Act 1994.

Division 6—Orders and judgments

75 Orders

(1) An order of the Federal Magistrates Court must:

(a) be in writing; or

(b) be reduced to writing as soon as practicable.

(2) An order of the Federal Magistrates Court may be authenticated in a manner specified in the Rules of Court.

76 Reasons

(1) The Federal Magistrates Court may give reasons for decisions either orally or in writing.

Oral reasons

(2) If:

(a) the Federal Magistrates Court gives reasons for a decision orally; and

(b) proceedings by way of an appeal from the decision are instituted in another court;

then, unless the Federal Magistrates Court or the other court otherwise orders, for the purposes of the hearing and determination of the appeal, the reasons for the decision are taken to be the reasons as set out in a certified transcript of the reasons.

(3) For the purposes of subsection (2), a certified transcript is a transcript certified in accordance with the Rules of Court.

Short form of written reasons

(4) If the Federal Magistrates Court decides to give reasons in writing, the Federal Magistrates Court may, in accordance with the Rules of Court, give reasons in short form.

Section 25D of the Acts Interpretation Act 1901

(5) To avoid doubt, section 25D of the Acts Interpretation Act 1901 does not apply to the giving of reasons by the Federal Magistrates Court.

77 Reserved judgments etc.

(1) If:

(a) the Federal Magistrates Court reserves judgment in a proceeding; and

(b) the Federal Magistrate who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons;

those orders and reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding.

(2) If:

(a) the Federal Magistrates Court reserves reasons for its decision in a proceeding; and

(b) the Federal Magistrate who heard the proceeding has prepared reasons, but is not available to publish those reasons;

those reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding.

78 Interest up to judgment

(1) This section does not apply to family law or child support proceedings.

Note: See section 117B of the Family Law Act 1975 in relation to family law or child support proceedings.

Application for interest order

(2) A party to proceedings that are:

(a) in the Federal Magistrates Court; and

(b) for the recovery of any money (including any debt or damages or the value of any goods) in respect of a particular cause of action;

may apply to the Federal Magistrates Court or a Federal Magistrate for an order under subsection (3).

Interest order

(3) If:

(a) an application is made under subsection (2); and

(b) the Federal Magistrates Court or the Federal Magistrate is not satisfied that good cause has been shown for not making an order under this subsection;

the Federal Magistrates Court or the Federal Magistrate must either:

(c) order that there be included in the sum for which judgment is given interest at such rate as the Federal Magistrates Court or the Federal Magistrate thinks fit on the whole or any part of the money for the whole or any part of the period between:

(i) the date when the cause of action arose; and

(ii) the date as of which judgment is entered; or

(d) without proceeding to calculate interest in accordance with paragraph (c), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.

Exceptions

(4) Subsection (3) does not:

(a) authorise the giving of interest upon interest or of a sum in lieu of such interest; or

(b) apply in relation to any debt upon which interest is payable as of right, whether by virtue of an agreement or otherwise; or

(c) affect the damages recoverable for the dishonour of a bill of exchange; or

(d) limit the operation of any enactment or rule of law which, apart from this section, provides for the award of interest; or

(e) authorise the giving of interest, or a sum in lieu of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

(5) If:

(a) the sum for which judgment is given (the relevant sum) includes; or

(b) the Federal Magistrates Court in its absolute discretion, or a Federal Magistrate in that Federal Magistrate’s absolute discretion, determines that the relevant sum includes;

any amount for:

(c) compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest or claiming a sum in lieu of interest; or

(d) compensation for loss or damage to be incurred or suffered after the date on which judgment is given; or

(e) exemplary or punitive damages;

interest, or a sum in lieu of interest, must not be given under subsection (3) in respect of:

(f) any such amount; or

(g) so much of the relevant sum as, in the opinion of the Federal Magistrates Court or the Federal Magistrate, represents any such amount.

(6) Subsection (5) does not preclude:

(a) interest; or

(b) a sum in lieu of interest;

being given, under this section, upon compensation in respect of a liability of the kind referred to in paragraph (5)(c), where that liability has been met by the applicant, as from the date upon which that liability was so met.

79 Interest on judgment

(1) This section does not apply to family law or child support proceedings.

Note: See section 117B of the Family Law Act 1975 in relation to family law or child support proceedings.

(2) A judgment debt under a judgment of the Federal Magistrates Court carries interest from the date as of which the judgment is entered.

(3) Interest is payable:

(a) at such rate as is fixed by the Rules of Court; or

(b) if the Federal Magistrates Court, in a particular case, thinks that justice so requires—at such lower rate as the Federal Magistrates Court determines.

80 Enforcement of judgment

(1) This section does not apply to family law or child support proceedings.

Note: See Division 13A of Part VII, and Part XIII, of the Family Law Act 1975 in relation to family law or child support proceedings.

(2) A person in whose favour a judgment of the Federal Magistrates Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

(3) Subsection (2) has effect subject to the Rules of Court.

(4) This section does not affect the operation of any provision made by or under any other Act, or by the Rules of Court, for the execution and enforcement of judgments of the Federal Magistrates Court.

Division 7—Costs

81 Costs

(1) This section does not apply to family law or child support proceedings.

Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.

(2) The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.

82 Security for costs

(1) This section does not apply to family law or child support proceedings.

Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.

(2) The Federal Magistrates Court or a Federal Magistrate may order an applicant in a proceeding in the Federal Magistrates Court to give security for the payment of costs that may be awarded against him or her.

(3) The security is to be of such amount, and given at such time and in such manner and form, as the Federal Magistrates Court or Federal Magistrate directs.

(4) The Federal Magistrates Court or a Federal Magistrate may:

(a) reduce or increase the amount of security ordered to be given; and

(b) vary the time at which, or manner or form in which, the security is to be given.

(5) If security, or further security, is not given in accordance with an order under this section, the Federal Magistrates Court or a Federal Magistrate may order that the proceeding be:

(a) dismissed; or

(b) stayed until security or further security is given in accordance with the first-mentioned order.

(6) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the giving of security.

Division 8—Rules of Court

83 Rules of Court

(1) The Federal Magistrates, or a majority of them, may make Rules of Court:

(a) making provision for or in relation to the practice and procedure to be followed in the Federal Magistrates Court (including the practice and procedure to be followed in registries of the Federal Magistrates Court); or

(b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Magistrates Court; or

(c) prescribing matters required or permitted by:

(i) any other provision of this Act; or

(ii) any other law of the Commonwealth;

to be prescribed by the Rules of Court.

(2) Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.

(3) Rules of Court are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

84 Documents

(1) The Rules of Court may make provision for or in relation to:

(a) pleading; and

(b) appearance under protest; and

(c) interrogatories; and

(d) discovery, production and inspection of documents; and

(e) the making of applications for dissolution of marriage jointly by both parties to the marriage; and

(f) the forms to be used for the purposes of proceedings in the Federal Magistrates Court.

(2) The Rules of Court may make provision for:

(a) the amendment of a document in a proceeding; or

(b) leave to amend a document in a proceeding;

even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment.

85 Service

The Rules of Court may make provision for or in relation to:

(a) the service and execution of the process of the Federal Magistrates Court, including:

(i) the manner in which and the extent to which the process of the Federal Magistrates Court, or notice of any such process, may be served out of the jurisdiction of the Federal Magistrates Court; and

(ii) dispensing with service; and

(b) the issue by the Federal Magistrates Court of letters of request for the service in another country of any process of the Federal Magistrates Court; and

(c) the service by officers of the Federal Magistrates Court, in Australia, of the process of a court of another country or of a part of another country, in accordance with:

(i) a request of that court or of an authority of that country or of that part of that country; or

(ii) an arrangement in force between Australia and the government of that other country or of that part of that other country.

86 Evidence

The Rules of Court may make provision for or in relation to:

(a) subpoenas; and

(b) summonses; and

(c) the attendance of witnesses; and

(d) the administration of oaths and affirmations; and

(e) the means by which particular facts may be proved and the mode in which evidence of particular facts may be given; and

(f) the reception from New Zealand of copies of documents reproduced by facsimile telegraphy; and

(g) the reception from New Zealand of evidence or submissions by video link or audio link; and

(h) issuing subpoenas for service in New Zealand and the service of such subpoenas; and

(i) the form to accompany a subpoena for service in New Zealand.

87 Orders and judgments