Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2000 (NO. 2) 2000 NO. 54

Statutory Rule 2000 No. 54

Issued by the authority of the Judges of the Federal Court of Australia

Federal Court Amendment Rules 2000 (No. 2)

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

Under sub-section 59(4) of the Federal Court of Australia Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections were references to Rules of Court.

The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.

RULE 1 - Name of rules

This rule provides that the rules are the Federal Court Amendment Rules 2000 (No. 2).

RULE 2 - Commencement

This rule provides that these Rules commence on gazettal.

RULE 3 - Amendment of Federal Court Rules

This rule provides that the Federal Court Rules are amended as set out in Schedule 1.

SCHEDULE 1 - Amendments

Referral of petition under Commonwealth Electoral Act 1918, s 354

[1]       After Order 51A

This amendment inserts a new Order 51B which sets out the rules for dealing with a petition, or part of a petition, disputing the validity of any election or return which is referred by the High Court of Australia to the Court under section 354 of the Commonwealth Electoral Act 1918.

Order 51B rule 1 defines "Electoral Act" as meaning the Commonwealth Electoral Act 1918, and "member" as meaning a member of the House of Representatives.

Order 51B rule 2 provides that, unless the contrary intention appears, an expression in the Order and in the Electoral Act is to have the same meaning in the Order as it has in the Electoral Act.

Order 51B subrule 3 (1) provides that Order 51B applies to a petition referred for trial under subsection 354 (1) of the Electoral Act, and to a part of a petition referred under subsection 354 (3) of that Act.

Order 51B subrule 3 (2) provides that the other Orders of the Federal Court Rules apply, so far as they are relevant and not inconsistent with Order 5 113, in relation to a petition, or part of a petition, mentioned in subrule 3 (1).

Order 51B rule 4 identifies the District Registry in which a sealed copy of the High Court's order referring a petition, or part of a petition, to the Court must be filed. Under subrule 4 (1), the sealed copy must be filed in the District Registry named in the order. If the order does not name a District Registry then, pursuant to subrule 4 (2), the sealed copy must be filed in

(a)       if the petition seeks to invalidate the election or return of a Senator - a District

       Registry in the State or Territory for which the election was held; or

(b)       if the petition seeks to invalidate the election or return of a member - a District

       Registry in the State or Territory where the electoral division for which the member

       was elected or returned is located.

Order 51B subrule 5 (1) provides that the Registrar must serve a copy of the High Court's order and a notice of the date for a directions hearing in the matter on each party and on any person whom the Court or a Judge directs should be served. Under subrule 5 (2), the notice must be in accordance with Form 53B.

Under Order 51B subrule 6 (1), the Court may give directions and make orders necessary for the conduct or the proceeding. In giving directions the Court must, pursuant to subrule 6 (2), have regard to the provisions of Order 10. Order 10 sets out the rules for directions hearings.

Order 51B rule 7 deals with particulars of votes claimed or objected to. The rules does not, pursuant to subrule 7 (2), apply if the petition merely claims a fresh count of the votes counted at the election.

If a petition claims a seat for a person who has not been returned as a Senator or member and alleges that the person had a majority of valid votes then, under subrule 7 (1), each party must file in the Registry, and deliver to each other party, a list of the ballot-papers or classes of ballot-papers intended to be claimed or objected to. Subrule 7 (3) provides that the list must be filed in the Registry and delivered to each other party at that party's address for service at least 7 days before the day of trial of the petition. Under subrule 7 (4), if the list includes ballot-papers that are objected to, it must state the grounds of objection. Pursuant to subrule 7 (5), an objection can not be entertained on a ground not specified in the list except with the leave of the Court or a Judge and on such terms as to the amendment of the list, adjournment of the trial and payment of costs as the Court or Judge orders.

Order 51B rule 8 provides that, if a petition claims a seat for a person who has not been returned as a Senator or member and a respondent to the petition wants to argue that the person for whom the seat is claimed was not duly elected on a ground other than that the respondent had a majority of valid votes, then the respondent must file in the Registry and deliver to the petitioner a statement of the ground on which the respondent intends to rely. The statement must be filed and served within 7 days (or any further time as the Court or a Judge allows) after the respondent enters his or her appearance. The statement must also comply with the requirements of paragraphs 355 (aa) and (b) of the Electoral Act as if it were a petition. This means that the statement must contain details of the relief the respondent claims to be entitled to, and set out the facts with sufficient particularity to identify the specific matter or matters on which the respondent relies as justifying the grant of that relief.

Order 51B rule 9 provides that the Court or a Judge may order a party to give further and better particulars of a matter alleged by the party to another party.

Order 51B subrule 10 (1) provides that, not later than 14 days (or such other period fixed by the Court or a Judge) before the date fixed for trial, the petitioner must give to each other party a notice of the trial in accordance with Form 53C, and advertise the time, date and place of the trial in a newspaper circulating in the State, Territory or Electoral Division for which the election was held. Under subrule 10 (2), an order fixing the time, date and place for trial may be varied.

Order 51B rule 11 deals with the withdrawal of a petition and the substitution of another petitioner. Subrule 11 (1) provides that a petition referred to the Court may be withdrawn with the leave of the Court or a Judge and on such terms as the Court or Judge thinks fit. A petitioner who intends to apply for leave to withdraw must, pursuant to subrule 11 (2), advertise that intention in a newspaper circulating in the State, Territory or Electoral Division for which the election was held, at least 14 days before the application is filed. Under subrule 11 (3), at the hearing of the application the Court or a Judge may allow a person who is competent to file a petition on the same grounds as the applicant's to be substituted for the petitioner in the petition proceedings. If a person is so substituted then, pursuant to subrule 11 (4), the proceeding must be continued as if the person was the original petitioner.

Order 51B subrule 12 (1) provides that, if a sole petitioner dies before the conclusion of the trial of his or her petition, the Court or a Judge may substitute a person who is competent to file a petition on the same grounds as the original petitioner's. Under subrule 12 (2), if a person is so substituted then the proceeding must be continued as if the person was the original petitioner.

Form of notices relating to petition under Commonwealth Electoral Act 1918

[2]       After Form 53A

This amendment inserts the following new forms:

Form 53B - Notice of directions hearing (petition); and Form 53C - Notice of date for trial (petition).