Commonwealth Numbered Regulations

FEDERAL COURT AMENDMENT RULES 1998 (NO. 3) 1998 No. 323 - SCHEDULE

Schedule 1 Amendments of Federal Court Rules (rule 3) (1) Order 1, rule 4,
definition of Judge
omit
Chief Judge)
insert
Chief Justice) (2) Order 2, rules 1 and 2
omit
Chief Judge
insert
Chief Justice (3) Order 25, subrule 8 (3)
omit each mention of
Chief Judge
insert
Chief Justice (4) Order 25, subrule 8 (4)
omit
Chief Judge
insert
Chief Justice (5) After Order 34
insert Order 34A Evidence of expert witnesses 1 Application
This order does not apply to a question or matter to be tried before a jury. 2
Definitions
In this order: expert witness means a person who is called, or is to be
called, by a party to give opinion evidence, based on the person's specialised
knowledge, based on the person's training, study or experience. 3 Evidence by
expert witnesses

(1) This rule applies if 2 or more parties to a proceeding call, or intend to
call, expert witnesses to give opinion evidence about the same, or a similar,
question.

(2) The Court or a Judge may, on its own initiative or at the request of a
party, direct:

   (a)  that the expert witnesses confer; or

   (b)  that the expert witnesses produce for use by the Court a document
        identifying:

        (i)    the matters and issues about which their opinions are in
               agreement; and

        (ii)   the matters and issues about which their opinions differ; or

   (c)  that:

        (i)    the expert witnesses give evidence at trial after all or
               certain factual evidence relevant to the question has been led;
               and

        (ii)   each party intending to call 1 or more expert witnesses close
               that party's case in relation to the question, subject only to
               adducing the evidence of the expert witnesses later in the
               trial; or

   (d)  that, after all or certain factual evidence has been led, each expert
        witness file and serve an affidavit or statement indicating:

        (i)    whether the expert witness adheres to any opinion earlier
               given; or

        (ii)   whether, in the light of factual evidence led at trial, the
               expert witness wishes to modify any opinion earlier given; or

   (e)  that:

        (i)    each expert witness be sworn one immediately after another; and

        (ii)   when giving evidence, an expert witness occupy a position in
               the courtroom (not necessarily in the witness box) that is
               appropriate to the giving of evidence; or

   (f)  that each expert witness give an oral exposition of his or her
        opinion, or opinions, on the question; or

   (g)  that each expert witness give his or her opinion about the opinion, or
        opinions, given by another expert witness; or

   (h)  that the expert witnesses be cross-examined in a certain manner or
        sequence; or

        (i)    that cross-examination, or re-examination, of the expert
               witnesses be conducted:

        (i)    by completing the cross-examination or re-examination of an
               expert witness before starting the cross-examination or
               re-examination of another; or

        (ii)   by putting to each expert witness, in turn, each question
               relevant to one subject or issue at a time, until the cross-
               examination or re-examination of all the witnesses is
               completed. (6) Order 41, paragraphs 1 (1) (a), (b) and (c)
substitute

   (a)  the District- RULEistry where the document is filed; and

   (b)  the serial number of the proceeding. (7) Order 41, subrule 2 (2)
omit
Chief Judge
insert
Chief Justice (8) Order 46, subrules 2 (2) and (4)
omit
Chief Judge
insert
Chief Justice (9) Order 51A, subrule 1 (2)
omit
Chief Judge
insert
Chief Justice (10) Order 52, subrule 30 (5)
omit
Chief Judge
insert
Chief Justice (11) Order 58, paragraph 14 (1) (b)
omit
exclusive licensee;
insert
exclusive licensee or otherwise; (12) Order 71, heading
substitute Order 71 Corporations Law and Australian Securities and Investments
Commission Law (13) Order 71, subrule 2 (1), definition of ASC Law
substitute ASIC Law has the meaning given by section 1D of the Australian
Securities and Investments Commission Act 1989. (14) Order 71, subrule 2 (1),
definition of Commission
after
Securities
insert
and Investments (15) Order 71, rule 3, heading
substitute
Application of Orders to proceedings under the Corporations Law or the ASIC
Law (16) Order 71, subrules 3 (1) and (2), 4 (1) and (3) and 5 (1) and (2)
omit
ASC
insert
ASIC (17) Order 71, paragraphs 6 (2) (b) and 7 (1) (b)
omit
ASC
insert
ASIC (18) Order 71, Division 17, heading
substitute Division 17 Australian Securities and Investments Commission Law
(19) Order 71, rule 105, heading
substitute
Reference of question of law arising at a hearing of the Commission to the
Court (ASIC Law, s 61) (20) Order 71, rule 106, heading
substitute
Proceedings under section 70 of the ASIC Law (21) Order 71, subrule 106 (1)
omit
ASC
insert
ASIC (22) Order 71, rule 107, heading
substitute
Reference of question of law arising at a hearing of the Corporations and
Securities Panel to the Court (ASIC Law, s 196) (23) Order 71, rule 108,
heading
substitute
Proceedings under section 201 of the ASIC Law (24) Order 71, subrule 108 (1)
omit
ASC
insert
ASIC (25) Order 71, rule 109, heading
substitute
Proceedings under section 219 of the ASIC Law (26) Order 71, subrule 109 (1)
omit
ASC
insert
ASIC (27) After order 79
insert Order 80 Court appointed referral for legal assistance 1 Interpretation

(1) In the interpretation of this order, preference must be given to a
construction that will promote, and be consistent with, the purpose in subrule
(2) and the statements in subrules (3) and (4).

(2) The purpose of this order is to facilitate, where it is in the interests
of the administration of justice, the provision of legal assistance to
litigants who are otherwise unable to obtain assistance.

(3) The provision of legal assistance under this order is not intended to be a
substitute for legal aid.

(4) A referral under this order is not an indication that the Court has formed
an opinion on the merits of a litigant's case.

(5) Nothing in this order requires the Court to make a referral, or to
consider a litigant's case for referral, under this order. 2 Definitions
In this order: legal practitioner means a person who is entitled to practise
in a federal court as a barrister or solicitor under the Judiciary Act  1903 .
litigant, in a proceeding, means a person who is a party to the proceeding or
who has been served with an originating process, summons or subpoena in the
proceeding. Pro Bono Panel means the list of legal practitioners mentioned in
rule 3. scheme means the scheme for the provision of legal assistance to
litigants under this order. 3 Pro Bono Panel
The- RULEistrar may maintain, in each District- RULEistry, a list of persons:

   (a)  who are legal practitioners in the State or Territory where the
        District- RULEistry is located; and

   (b)  who have agreed to participate in the scheme. 4 Referral to a legal
        practitioner

(1) The Court or a Judge may, if it is in the interests of the administration
of justice, refer a litigant to the- RULEistrar for referral to a legal
practitioner on the Pro Bono Panel for legal assistance.

(2) For subrule (1), the Court or Judge may take into account:

   (a)  the means of the litigant; and

   (b)  the capacity of the litigant to obtain legal assistance outside the
        scheme; and

   (c)  the nature and complexity of the proceeding; and

   (d)  any other matter that the Court, or Judge, considers appropriate.

(3) A referral to the- RULEistrar is effected by the issue of a Referral
Certificate in accordance with Form 161 in relation to the litigant.

(4) If a Referral Certificate has been issued, the- RULEistrar must attempt to
arrange for the legal assistance mentioned in the certificate to be provided
to the litigant by a legal practitioner on the Pro Bono Panel.

(5) However, the- RULEistrar may refer a litigant to a particular legal
practitioner only if the practitioner has agreed to accept the referral. 5
Kind of assistance
A referral may be made for the following kinds of assistance:

   (a)  advice in relation to the proceeding;

   (b)  representation on direction, interlocutory or final hearing or
        mediation;

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

   (d)  representation generally in the conduct of the proceeding or of part
        of the proceeding. 6 Provision of assistance by legal practitioner
Subject to rule 7, if a legal practitioner agrees to accept a referral, the
practitioner must provide assistance to the litigant in accordance with the
referral. 7 Cessation of assistance

(1) A legal practitioner who has agreed to accept a referral may cease to
provide legal assistance to the litigant only:

   (a)  in the circumstances set out in any practice rules governing
        professional conduct that apply to the legal practitioner; or

   (b)  with the written agreement of the litigant; or

   (c)  with the leave of the- RULEistrar.

(2) If a legal practitioner ceases to provide legal assistance to a litigant,
the practitioner must inform the- RULEistrar in writing within 7 days. 8
Application for leave

(1) An application by a legal practitioner to the- RULEistrar for leave to
cease to provide legal assistance must be in writing and must briefly state
the reasons for the application.

(2) A copy of the application for leave must be served on the litigant.

(3) An application for leave may be heard by the- RULEistrar in chambers and
may be heard ex parte.

(4) In deciding whether to grant leave under this rule, the Registrar must
consider:

   (a)  whether the legal practitioner would be likely to be able to cease to
        provide legal assistance to the litigant under any practice rules
        governing professional conduct that apply to the practitioner; and

   (b)  any conflict of interest that the legal practitioner may have; and

   (c)  whether there is a substantial disagreement between the legal
        practitioner and the litigant in relation to the conduct of the
        litigation; and

   (d)  any view of the legal practitioner:

        (i)    that the litigant's case is not well founded in fact or law; or

        (ii)   that the litigant's prosecution of the litigation is an abuse
               of process; and

   (e)  whether the legal practitioner lacks the time to provide adequate
        legal assistance to the litigant because of other professional
        commitments; and

   (f)  whether the litigant has refused or failed to pay any disbursements
        requested under rule 10; and

   (g)  any other matter that the- RULEistrar considers relevant.

(5) An application for leave under this rule and any related correspondence:

   (a)  is confidential; and

   (b)  is not part of the proceeding in relation to which the referral was
        made; and

   (c)  does not form part of the Court file in relation to that proceeding. 9
        Professional fees

(1) Subject to rule 10, a legal practitioner who provides legal assistance to
a litigant under the scheme must not seek or recover any professional fees or
disbursements for the legal assistance.

(2) However, if an order for costs is made in favour of a litigant who is
assisted under the scheme, the legal practitioner who has provided the legal
assistance is entitled to recover the amount of fees and disbursements that
another party is required to pay under the order. 10 Disbursements
A legal practitioner who provides legal assistance to a litigant under the
scheme may request the litigant to pay any disbursements reasonably incurred,
or reasonably to be incurred, by the legal practitioner on behalf of the
litigant in connection with the legal assistance. (28) Schedule 1, Forms 93C,
127 and 128
omit each mention of
Australian Securities Commission
insert
Australian Securities and Investments Commission (29) Schedule 1, Form 128
omit
ASC
insert
ASIC (30) Schedule 1, Form 144, subparagraph 2 (b) (ii)
substitute

        (ii)   the name of each person by whom, and each person to whom, the
               representation was made; and

        (iii)  in a civil proceeding Ñ the address of each person mentioned in
               subparagraph (ii). Note On the application of a party in a
               criminal proceeding, the court may make an order, on the terms
               it considers appropriate, directing the notifying party to
               disclose the address of a person named in a notice of previous
               representation. (31) Schedule 1, Form 146, subparagraph 2 (b)
               (ii)
substitute

        (ii)   the name of each person who saw, heard or otherwise perceived
               the conduct; and

        (iii)  in a civil proceeding Ñ the address of each person mentioned in
               subparagraph (ii).) Note On the application of a party in a
               criminal proceeding, the court may make an order, on the terms
               it considers appropriate, directing the notifying party to
               disclose the address of a person named in a notice referred to
               in subsection 97 (1) of the Evidence Act 1995. (32) Schedule 1,
               Form 147, subparagraph 2 (b) (ii)
substitute

        (ii)   the name of each person who saw, heard or otherwise perceived
               each event; and

        (iii)  in a civil proceeding Ñ the address of each person mentioned in
               subparagraph (ii).) Note On the application of a party in a
               criminal proceeding, the court may make an order, on the terms
               it considers appropriate, directing the notifying party to
               disclose the address of a person named in a notice referred to
               in subsection 98 (1) of the Evidence Act 1995. (33) Schedule 1,
               after Form 160
insert Form 161 Referral certificate (order 80, subrule 4 (3))

I, (insert name) , Associate to the Honourable Justice (insert name) , certify
that on (insert date) his/her Honour has determined, pursuant to Order 80
subrule 4 (1), that it is in the interests of the administration of justice
that the following litigant be referred for legal assistance under Order 80.

Name of litigant referred:

Proceeding number:

Proceeding title:

Nature of legal assistance for which referral made (eg to obtain advice, to
appear at the hearing of the matter listed on a particular date; see O 80 r
5):

Date:

(Signature of associate)

(34) Schedule 3, Part 2, column 2, heading
substitute Provision of the ASIC Law