Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2000 (NO. 3) 2000 NO. 189

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. 3).

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 l.

SCHEDULE 1 - Amendments

Filing and lodging documents in the Court

These amendments alter the existing Order 1 rule 5A, which allows for a document other than an originating process to be filed or lodged in the Court in person or by post, document exchange or facsimile transmission. They also insert a new rule 5AC. The effect of the amendments is to allow documents to be filed or lodged in the Court in person or by post, document exchange, facsimile transmission or electronic communication.

[1]       Order 1, rule 4, after definition of document exchange box

Order 1 rule 4 sets out the definitions, unless the contrary intention appears, of various words and expressions used in the Rules.

This amendment inserts definitions for electronic communication and email address. An electronic communication is defined as a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy, including an email and an email attachment. An email address is defined as the mailing address to and from which an electronic communication may be sent and received using the Internet, an intranet or other similar network.

[2]       Order 1, rule 4, after definition of hearing

This amendment inserts a definition for image as meaning a picture that has been created, copied, stored or transmitted in electronic form.

[3]       Order 1, paragraph 5A (1) (d)

Subrule 5A (1) provides that a document which is required or permitted by the Rules to be filed or lodged may be presented to a Registry or sent to a Registry by post, document exchange or facsimile transmission. The amendment allows such a document to be sent to a Registry by electronic communication.

[4]       Order 1, subrule 5A (2)

The amendment substitutes a new subrule 5A (2), which provides that a document which is more than 20 pages long, or which is an Affidavit referred to in Order 77 paragraph 19 (6) (b) (with respect to a creditor's petition seeking a sequestration order), may not be sent by facsimile transmission or electronic communication. A note to the subrule states that an electronic communication which is more than 2 megabytes in size cannot be accepted by the Court because of its computer security firewall.

[5]       Order 1, subrule 5A (3)

Subrule 5A (3) is amended to provide that a document which is to be signed or stamped must be accompanied by the number of copies required by the Rules, unless the document is sent by facsimile transmission or electronic communication.

[6]       Order 1, subrule 5A (7)

Subrule 5A (6) provides that a document is filed when it is accepted and stamped by the Registry. However, pursuant to subrule 5A (7), a document sent by facsimile transmission is taken to have been filed, if the whole document is received by 4.30 pm on a day when the Registry is open for business, on that day, otherwise on the next day when the Registry is open for business.

Subrule 5A (7) is amended so that it also applies to a document sent by electronic communication.

[7]       Order 1, subrule 5A (7), at the foot

This amendment inserts a note at the foot of subrule 5A (7) to the effect that, as a result of the Court's computer firewall, there may be a delay between the time a document is sent by electronic communication and time the document is received by the Court. The note is intended to put a party seeking to file or lodge a document by electronic communication on notice that the document may not be received by the Court immediately.

[8]       Order l, subrule 5A (10)

[9]       Order 1, paragraph 5A (10) (b)

These amendments to subrule 5A (10) mean that, if a document sent by post, document exchange, facsimile transmission or electronic communication is not accepted, the Registrar must notify the sender by telephone, post, facsimile transmission or electronic communication.

[10]       Order l, rule 5A, at the foot

This amendment inserts a note at the foot of rule 5A which states that regulation 2 (3) of the Federal Court of Australia Regulations provides that a document must not be filed in a Registry of the Court unless the fee payable for that filing has been paid, and that the Regulations also provide that the fee payable may be exempted or waived in certain circumstances.

[11]       Order l, after rule 5AB

This amendment inserts rule 5AC after 5AB.

Order 1 rule 5AC deals with documents filed or lodged by electronic communication. At least one email address for the purpose of receiving documents must be approved for each Registry (subrule 5AC (1)). A document sent to a Registry by electronic communication must be sent to the approved email address for the Registry (paragraph 5AC (2) (a)); be in an electronic format approved for the Registry (paragraph 5AC (2) (b)); to the extent practicable, be in a form that complies with Order 1 rule 7 (which provides that, where applicable, a form must be substantially in accordance with the form prescribed in the First Schedule of the Rules) (paragraph 5AC (2) (c)); and be capable of being printed with the content and in the form in which it was created (paragraph 5AC (2) (d)). It must also be accompanied by a cover sheet clearly stating the sender's name and contact details, the number of pages transmitted, and the processing of the documents required (paragraph 5AC (2) (e)).

Subrule 5AC (3) provides that a document which must be signed or executed by any person may only be filed by electronic communication by sending an image of the signed or executed document to the approved email address for the Registry.

Subrule 5AC (4) provides that a document in an existing proceeding must be sent to an approved email address for the Registry that is the proper place for the proceeding.

Under subrule 5AC (5), if the document is required to be signed or stamped and is accepted, the Registrar must make one copy of the document and hold it for collection for 7 days if requested by the sender to do so. If the sender does not make such a request, or having made the request fails to collect the document within 7 days, the Registrar must return the document by electronic communication to the email address stated on the cover sheet. If more than one copy of the document is required, the sender of the document must give the Registry any additional copies (subrule 5AC (6)).

Subrule 5AC (7) provides that a person who sends a document by electronic communication must keep a paper copy of the document and produce the paper copy as directed by the Court.

Under subrule 5AC (8), if the Court directs that the paper copy of the document be produced, the first page must be endorsed with a statement that the paper copy is a true copy of the document sent by electronic communication, and the date on which the document was sent by electronic communication.

Information that must be contained in an application to the Court

[12]       Order 4, paragraph 4 (1) (c)

The effect of the amendment is that, where a solicitor represents an applicant, the application must contain the email address of the solicitor in addition to the solicitor's name, address, telephone number and facsimile number.

[13]       Order 4, paragraph 4 (1) (d)

The effect of the amendment is that, where an applicant is represented by a solicitor who has another solicitor acting as agent for him or her in the proceeding, the application must contain the email address of the solicitor's agent in addition to the agent's name, address, telephone number and facsimile number.

Amendments to forms in Schedule 1 to the Court's rules

[14]       Schedule 1, Form 15

Form 15 is the Notice of Appearance that must be filed by a respondent to a proceeding in the Court. This amendment provides for the email address of the solicitor appearing for the respondent, and of the solicitor's agent, to be included in the Notice of Appearance.

[15]       Schedule 1, Form 55CA

Form 55CA is the Notice of Address for Service that must be filed by a person ("the applicant") who requests the referral of a decision on an objection with respect to taxation to the Court. This amendment provides for the email address of the solicitor appearing for the applicant, and of the solicitor's agent, to be included in the Notice of Address for Service.