Commonwealth Numbered Regulations

FEDERAL COURT AMENDMENT RULES 2004 (NO. 1) 2004 NO. 38 - SCHEDULE 1

(rule 3)

[1] Order 1, after rule 4

insert

4A Exercise of Court's power

Unless these Rules provide otherwise, the Court may exercise a power under these Rules in a proceeding:

(a)

on its own initiative; or

(b)

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

[2] Order 1, subrule 9 (1)

omit

the Court may, on application by that person,

insert

the Court may

[3] Order 4, paragraph 4 (2) (a)

omit

him;

insert

the solicitor;

[4] Order 4, paragraph 4 (2) (b)

substitute

(b)

if the solicitor declares in writing that the application was not filed by the solicitor, the Court may stay the proceeding.

[5] Order 6, subrule 8 (1)

omit everything after paragraph (b), insert

the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.

[6] Order 6, subrule 8 (2)

omit

his

insert

the person's

[7] Order 6, rule 9

substitute

9 Removal of parties

If a person:

(a)

has been improperly or unnecessarily joined as a party to a proceeding; or

(b) has ceased to be a proper or necessary party to a proceeding;

the Court may order that the person cease to be a party and make orders for the further conduct of the proceeding.

[8] Order 6, subrule 10 (3)

omit

[9] Order 6, paragraph 12 (1) (a)

omit

his

insert

the party's

[10] Order 6, subrule 12 (1)

omit

the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death,

insert

the Court may

[11] Order 6, subrule 13 (2)

omit

the Court, on the application of the applicant,

insert

the Court

[12] Order 6, subrule 15 (1)

omit

he

insert

the deceased person

[13] Order 6, subrule 15 (1)

omit

the Court may, on the application of any party:

insert

the Court may:

[14] Order 6, subrule 17 (1)

omit

on its own motion or on the application of a person,

[15] Order 9, rule 7

substitute

7 Setting aside originating process etc

(1)

The Court may make an order:

(a)

setting aside an originating process; or

(b)

setting aside the service of an originating process on the respondent; or

(c)

declaring that an originating process has not been duly served on the respondent; or

(d)

discharging any order giving leave to serve an originating process outside Australia or confirming service of an originating process outside Australia.

(2)

A respondent applying for an order under subrule (1) must file and serve the notice of motion:

(a)

before the respondent enters an appearance; or

(b)

within 14 days after the respondent enters a conditional appearance.

[16] Order 10, subrule 7 (1), except the note

substitute

(1)

If a party fails to comply with an order of the Court directing the party to take a step in the proceeding, the Court may:

(a)

if the party is an applicant — order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; or

(b)

if the party is a respondent — give judgment or make an order against the party; or

(c)

order that the step in the proceeding be taken within the time limited in the order.

[17] Order 10, after rule 8

insert

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

(1)

In this rule:

"communication device" includes a mobile telephone, audio link, video link and 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 and digital audio recorder).

(2)

Except with the leave of the Court or a Judge, a person must not use a communication device or recording device in a place where a hearing is taking place.

(3)

An application for leave under subrule (2) may be made to the Court or a Judge at any time before the date of the hearing in which the communication device or recording device is sought to be used.

(4) The Court or a Judge may:

(a)

grant leave under subrule (2) subject to any conditions that the Court or Judge considers appropriate; and

(b)

either generally or in relation to a particular part of a hearing:

(i)

withdraw such leave; or

(ii)

impose new conditions or vary or remove any existing conditions to which such leave is subject.

(5)

In considering whether to grant leave under subrule (2) for the use of a communication device or recording device, the Court or a Judge may have regard to any relevant matter including the following:

(a)

whether the person seeking leave has a reasonable need to use the device in relation to the hearing;

(b)

if a direction has been given excluding one or more witnesses from the Court, the risk that the device could be used for the purpose of briefing a witness out of court;

(c)

any possibility that use of the device would disturb the hearing or distract or cause concern to a witness or other participant in the hearing.

(6)

This rule does not prevent:

(a)

the making of, or the use of a recording device for the purpose of making, an official transcript of a hearing; or

(b)

the use of a communication device for the purpose of allowing a person to appear before, or make a submission to, the Court or a Judge.

(7)

This rule does not limit the powers of the Court to punish for contempt.

[18] Order 10A, subrule 7 (1)

omit

shall

insert

must

[19] Order 10A, paragraph 7 (2) (b)

omit

of its own motion

[20] Order 11, subrule 23 (1)

substitute

(1)

If a party is in default in filing and serving a pleading as required by this Order, the Court may:

(a)

if the party is an applicant — order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; or

(b)

if the party is a respondent — give judgment or make an order against the party; or

(c)

order that pleadings be filed and served within the time limited in the order.

[21] Order 13, subrule 2 (1)

omit

on application by any party or of its own motion,

[22] Order 13, subrules 5 (1), (2) and (3)

substitute

(1)

If a party amends a pleading under subrule 3 (1), the Court may, subject to subrule (3), by order disallow the amendment.

(2)

If a party amends a pleading under subrule 3 (2) but without obtaining the consent of a party, the Court may, subject to subrule (3), by order disallow the amendment.

(3)

A person applying for an order under subrule (1) or (2) must file and serve the notice of motion within 14 days after the date on which the amended pleading was served on the person under rule 10 of this Order.

[23] Order 14, rules 5 and 6

substitute

5 Irregularity

Unless the Court otherwise orders, an affidavit may be filed despite any irregularity in form.

5A Certificate of compliance — Form 20A

(1)

An affidavit prepared by a party's legal representative must, when filed, be accompanied by a certificate (a compliance certificate ) in accordance with Form 20A completed by the legal representative.

(2)

A compliance certificate may be endorsed on the affidavit on or immediately after the last page of the affidavit.

(3)

An affidavit that is not accompanied by a compliance certificate must not be accepted for filing without the leave of the Court or a Registrar.

6 Use of affidavit
An affidavit must not be used in a proceeding without the leave of the Court if:

(a)

it has not been filed; or

(b)

it has been filed but is irregular in form; or

(c)

it has been accepted for filing under subrule 5A (3).

[24] Order 15, subrule 3 (2)

omit

shall, on application,

insert

may

[25] Order 15, subrule 16 (1)

substitute

(1)

If a party does not file or serve a list of documents or an affidavit or other document, or does not produce any document as required by or under this Order, the Court may:

(a)

if the party is an applicant — order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; or

(b)

if the party is a respondent — give judgment or make an order against the party; or

(c)

order that the list of documents, affidavit or other document be filed, served or produced within the time limited in the order.

[26] Order 15A, rule 8

omit

On the application of any party to a proceeding the Court

insert

The Court

[27] Order 15A, subrule 11 (1)

omit

On an application under this Order the Court

insert

The Court

[28] Order 15A, rule 12

omit

On an application under this Order the Court

insert

The Court

[29] Order 15A, rule 12

omit

(b)

(i)

 taking of samples;

insert

(b)

any of the following:

(i)

taking of samples;

[30] Order 16, subrule 3 (2)

omit

the Court may, on application by him,

insert

the Court may

[31] Order 16, subrule 3 (3)

omit

shall, on application,

insert

may

[32] Order 16, subrule 9 (1)

substitute

(1)

If a party does not comply with an order under rule 5 or 8 to file or serve a statement or affidavit, the Court may:

(a)

if the party is an applicant — order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; or

(b)

if the party is a respondent — give judgment or make an order against the party; or

(c)

order that the statement or affidavit be filed or served within the time limited in the order.

[33] Order 18, subrule 4 (1)

substitute

(1)

If an admission is made by a party, whether by a pleading or otherwise, the Court may pronounce any judgment or make any order to which the applicant is entitled on the admission.

[34] Order 20, subrule 1 (1)

omit everything after paragraph (b), insert

the Court may pronounce judgment for the applicant on that claim or part and make such orders as the nature of the case requires.

[35] Order 23, rule 1, definition of proceeding

omit everything before paragraph (a), insert

proceeding does not include a proceeding on an interlocutory application that is not capable of:

[36] Order 23, subrule 9 (1)

substitute

(1)

If a party to an accepted offer fails to comply with the terms of the offer, the Court may, subject to rule 6:

(a)

if the party is an applicant — order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; or

(b)

if the party is a respondent — order that the defence be struck out; or

(c)

give judgment or make an order to give effect to the terms of the offer.

[37] Order 23, subrule 11 (5)

omit everything after paragraph (b), insert

then, unless the Court otherwise orders:

(c)

the applicant is entitled to an order that the respondent pay the applicant's costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and

(d)

the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis.

[38] Order 23, subrule 11 (6)

omit

[39] Order 24, rule 7

substitute

7 Objection

If a person being examined before the examiner objects to answering a question or producing a document or thing:

(a)

the examiner must state to the parties the examiner's opinion on, but must not decide, the validity of the ground for the objection; and

(b)

the following information must be set out in the deposition of the person or in a statement attached to the deposition:

(i)

the question;

(ii)

the ground for the objection;

(iii)

the opinion of the examiner;

(iv)

the answer (if any); and

(c)

the Court may decide the validity of the ground for the objection; and

(d)

if the Court decides against the person making the objection or any party, the Court may order the person or party to pay the costs occasioned by the objection.

[40] Order 24, subrule 11 (1)

omit

he refuses

insert

the person refuses

[41] Order 24, subrule 11 (1)

omit

the examiner shall,

insert

the examiner must,

[42] Order 24, subrule 11 (2)

omit everything before paragraph (a), insert

(2)

On the certificate being filed, the Court may:

[43] Order 24, paragraph 11 (2) (b)

omit

his

insert

the person's

[44] Order 26, subrule 8 (1)

omit

on motion in the proceeding,

[45] Order 26, subrule 8 (2)

omit

the motion

insert

the proposed order

[46] Order 26, subrule 8 (3)

omit

a motion

insert

a proposed order

[47] Order 30, subrule 6 (2)

omit

On the application of a party or of its own motion, the Court

insert

The Court

[48] Order 32, subrule 2 (2)

omit

the Court, on motion by that party,

insert

the Court

[49] Order 33, subrule 15 (1)

omit

on the request of that party, or of any other party, or of its own motion

[50] Order 33, after rule 19

insert

20 Form of expert report

(1)

In this rule:

"expert", in relation to a question, means a person who has specialised knowledge about matters relevant to the question based on that person's training, study or experience.

"expert report" means a document prepared by an expert that sets out the expert's opinion on each question referred to the expert.

(2)

The body of an expert report must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject.

(3)

Each page of an expert report, including any annexure, must be numbered legibly and distinctively, beginning on the first page of the report with the numeral `1'.

(4)

Each annexure to an expert report must be identified sequentially on the first page of each annexure by a letter of the alphabet, beginning with the letter `A' for the first annexure.

(5)

The full name of the author of the expert report and the date on which the report was prepared must appear on the first visible page of the report (being the first page, cover page or front cover page, as the case may be).

(6)

Non-compliance with this rule does not affect the admissibility of an expert report.

[51] Order 34, subrule 2 (1)

omit everything before paragraph (a), insert

(1)

If a question for an expert witness arises in a proceeding, the Court may, at any stage of the proceeding:

[52] Order 34, paragraph 2 (1) (b)

omit

his inquiry

insert

the inquiry

[53] Order 34, subrule 5 (1)

substitute

(1)

The remuneration of the court expert must be fixed by the Court and must include:

(a)

a fee for the expert's report; and

(b)

a proper sum for each day on which the expert is required to attend before the Court or an examiner.

[54] Order 34, subrule 5 (3)

substitute

(3)

The Court may make orders in the proceeding for payment in or towards discharge of the liability of any party under subrule (2).

[55] Order 34A, subrule 3 (2)

omit everything before paragraph (a), insert

(2) The Court or a Judge may direct:

[56] Order 37, subrule 1 (1)

omit

the Court may, on application by a party or of its own motion:

insert

the Court may:

[57] Order 37, paragraph 1 (1) (e)

omit

his detention in custody

insert

the detention in custody of the person in default

[58] Order 39, subrule 1 (1)

omit

the Court may, on application by that party at any stage of the proceedings:

insert

the Court may, at any stage of the proceeding:

[59] Order 39, paragraph 1 (1) (b)

omit

him.

insert

the party.

[60] Order 39, paragraph 1 (2) (a)

omit

he

insert

the respondent

[61] Order 39, rule 2

omit

The Court may, on application by a party at any stage of proceedings,

insert

The Court may, at any stage of a proceeding,

[62] Order 43, subrule 2 (1)

substitute

(1)

The Court may appoint a tutor for a person under disability for the purpose of a proceeding.

[63] Order 43, subrule 3 (1)

substitute

(1)

The Court may:

(a)

remove a tutor in a proceeding; and

(b)

stay the proceeding until a tutor has been appointed in place of the removed tutor.

[64] Order 43, subrule 3 (2)

omit

he is tutor.

insert

the tutor was appointed.

[65] Order 44, rule 1, after definition of property in dispute

insert

"stakeholder" means a person described in rule 2.

[66] Order 44, paragraph 2 (b)

omit

he

insert

the person

[67] Order 44, rule 2

omit everything after paragraph (b), insert

the Court may grant relief by way of interpleader.

[68] Order 47, paragraph 5 (1) (a)

omit each mention of

him

insert

the Sheriff

[69] Order 47, paragraph 5 (1) (a)

omit

his

insert

the Sheriff's

[70] Order 47, subrule 5 (2)

omit

the Court, on motion by the party,

insert

the Court

[71] Order 47, subrule 5 (4)

omit

shall repay the excess to the party depositing the money or to his solicitor.

insert

must repay the excess to the party depositing the money or to the party's solicitor.

[72] Order 47, subrule 8 (1)

omit

the Court may, on motion by a person interested,

insert

the Court may

[73] Order 52, subrule 14AA (1)

omit

The Court, at any stage of an appeal, on its own motion or on the application of a person,

insert

The Court

[74] Order 52, subrule 31 (1)

substitute

(1)

The Court may direct the preparation of written submissions.

[75] Order 52, subrule 31 (2)

omit

shall

insert

must

[76] Order 52, subrule 38 (2)

substitute

(2)

The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

[77] Order 52, subrule 38A (2)

omit

the Court may, on motion by the party against whom the order is made:

insert

the Court may:

[78] Order 52, subrule 40 (1)

omit

the Court or a Judge may, at the request of a party or on its, his or her own initiative,

insert

the Court or a Judge may

[79] Order 52A, subrule 14 (2)

substitute

(2)

The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

[80] Order 52B, subparagraph 4 (3) (b) (ii)

omit

Act; and

insert

Act.

[81] Order 52B, paragraph 4 (3) (c)

omit

[82] Order 53, subrule 20 (2)

substitute

(2)

The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

[83] Order 58, subrule 4 (2)

omit

the Court, on application,

insert

the Court

[84] Order 62, rule 20

substitute

20 Disbursements in solicitors' bills

(1)

Subject to subrule (2), a disbursement must not be allowed if the disbursement has not been paid before the bill of costs is delivered.

(2) If a bill expressly states that a disbursement was not paid before the bill was delivered, and the bill sets out the unpaid items of disbursement under a separate heading in the bill, the disbursement may be allowed by the taxing officer if:
(a) the disbursement:

(i)

is paid before the certificate of taxation is given; and

(ii)

is paid in discharge of an antecedent liability of the solicitor, including counsels' fees, properly incurred on behalf of the client; or

(b)

the solicitor provides an unconditional undertaking to the Court to pay the unpaid disbursement from any costs recovered.

[85] Order 62, subrule 40 (2)

omit

adding machine or computer slips or working papers together with

[86] Order 62, subrules 41 (6) and (7)

substitute

(6)

A party on whom a notice is served under subrule (5) must prepare a written statement of response to each item or part of an item of the bill objected to, stating briefly, but specifically, the basis on which it is claimed the item or part is allowable and the reason the objection cannot be sustained, including references to any authorities relied on.

(7)

Oral submissions may be made at the taxation conference:

(a)

subject to the discretion of the taxing officer; and

(b)

only for the purpose of explaining or clarifying an objection set out in a notice under subrule (3) or a response to an objection set out in a statement under subrule (6).

(8) Subject to the discretion of the taxing officer to be exercised in exceptional circumstances, on taxation of the bill:

(a)

no amount is to be taxed off, nor any ground of objection to an item or part of an item of a bill allowed, unless each amount, ground, item or part, is specifically set out in a notice under subrule (3); and

(b)

no amount is to be allowed in respect of an item or part of an item of a bill which is objected to in a notice under subrule (3) if no response to the objection has been made under subrule (6).

(9)

Subject to subrule 46 (4A), the taxing officer has a discretion:

(a)

to tax the costs of a notice under subrule (3), and of any other objections, and:

(i)

add them, or a part of them, to; or

(ii)

deduct them, or a part of them, from;

any sum payable by or to a party to the taxation; or

(b)

to fix a lump sum in respect of the costs of the notice or other objection and add it to, or deduct it from, any sum payable by or to a party to the taxation.

[87] Order 62, subrule 42 (5)

omit

objection.

insert

objection, including references to any authorities relied on.

[88] Order 62, subrule 44 (1)

substitute

(1)

The Court may review the decision of a taxing officer on reconsideration if the taxing officer has given:

(a)

a certificate in accordance with that decision; and

(b)

reasons for the decision in response to a request under paragraph 43 (1) (b).

[89] Order 62, subrule 44 (3)

substitute

(3)

A notice of motion applying for a review under subrule (1) must be filed within:

(a)

28 days after the certificate is given; or

(b)

any extension of that time granted by the Court or the taxing officer at the time the certificate is given.

[90] Order 62A, rule 1

substitute

1 Power to order maximum costs

The Court may, by order made at a directions hearing, specify the maximum costs that may be recovered on a party and party basis.

[91] Order 66, rules 3 and 4

substitute

3 Transfer to the Family Court

The Court or a Judge may, subject to the provisions of the Enabling Act, at any time transfer a proceeding to the Family Court.

4 Form of application for transfer

(1)

An application under the Act for transfer of a proceeding to the Family Court under an Enabling Act must be made by motion.

(2)

The heading of the notice of motion must specify the Act and the relevant Enabling Act.

(3)

The application must be heard and determined by a single Judge.

[92] Order 69, subrule 9 (1)

omit

either on the application of a party or on its own motion,

[93] Order 69, rule 17

substitute

17 Stay of Australian proceeding

If:

(a)

a proceeding involving the same issues or questions of fact has been commenced in both the Federal Court and the High Court of New Zealand; and

(b) it appears to the Federal Court or a Judge of that Court that it is more appropriate, and in the interests of justice, that the Australian proceeding be stayed until the proceeding in the High Court of New Zealand is determined;

the Federal Court or a Judge of that Court may make an order staying the Australian proceeding in whole or in part.

[94] Order 77, subrule 9 (5)

omit

[95] Order 77, subrule 9 (6)

renumber as subrule (5)

[96] Order 78, rule 27A

omit

on the application of a party to the proceeding or on its own motion,

[97] Order 78, subrule 46 (1)

omit

on its own initiative or at the request of a party,

[98] Order 78, subrule 46 (3)

substitute

(3)

The Court may order that an adjournment end:

(a)

if the NNTT reports that the negotiations are unlikely to succeed; or

(b)

for any other reason the Court considers appropriate.

[99] Order 78, rule 47

omit

the Court may, at the request of a party or on its own initiative,

insert

the Court may

[100] Schedule 1, after Form 20

insert

Form 20A Affidavit — certificate of compliance

(Order 14, rule 5A)
I, ( name of legal representative ), certify to the Court that the affidavit of ( name of deponent ) *sworn/*affirmed on ( date ) filed on behalf of the ( party, eg applicant, respondent ) complies with Order 14, rule 2 of the Federal Court Rules.
Date:
Legal representative for the
( party, eg applicant, respondent )
*
Omit if inapplicable

Version 1

[101] Schedule 1, Form 150

before the first mention of

Date: eg, 7 May 19

insert

5. The applicant creditor provides the following information, to the extent it is known to the applicant creditor, for use by the Insolvency and Trustee Service Australia:

(a)

any alias used by the respondent debtor;

(b)

the date of birth of the respondent debtor;

(c)

the business name of the respondent debtor;

(d)

the business address of the respondent debtor.

Note
Completion of paragraph 5 is optional.

[102] Schedule 1, Form 150

omit

Version 1

insert

Version 2

[103] Schedule 1, Form 151, before paragraph 2

insert

1A. You are also required to attend at any time, date and place to which the examination is adjourned if you have been given written notice of that time, date and place.

[104] Schedule 1, Form 151

omit

Version 1

insert

Version 2

[105] Schedule 2, item 41

omit

insert

[106] Schedule 3, item 12

omit