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FEDERAL COURT AMENDMENT RULES 2000 (NO. 6) 2000 NO. 300
EXPLANATORY STATEMENTStatutory Rule 2000 No. 300
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2000 (No. 6)
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. 6).
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
Address for service
[1] Order 7, subrule 6 (1)
[2] Order 7 subrule 6 (2)
Order 7 subrules 6 (1) and (2) provide that a party's address for service must be the address of a place within the District for the Registry in which the originating process is filed.
The amendments to subrules 6 (1) and (2) replace this requirement with a requirement that the address for service must be of a place within the District for the Registry at the proper place. "Proper place" is defined in Order 1 rule 4 as being the place at which the proceeding was commenced or, if the proceeding has been transferred, the place to which the proceeding was transferred. The amendments ensure that the address for service will be of a place within the District for the Registry that is responsible for the proceeding.
Service outside the jurisdiction
[3] Order 8, subrule 1 A (2), after definition of non-convention count
This amendment inserts, for the purposes of Order 8, a definition of "originating process" as meaning an application or, if a cross-claim is made against a person not previously a party to the proceeding in which it is made, the cross-claim.
[4] Order 8, paragraph 2 (1) (b)
This amendment corrects a typographical error.
[5] Order 8, subrules 2 (2) and (2A)
This amendment replaces subrules 2 (2) and (2A) with a new subrule 2 (2) that provides that the Court may give leave to a party to serve originating process outside the Commonwealth in accordance with Order 8 Division 2 (which deals with service in a country with which Australia is a party to a convention as to service abroad of judicial documents) or Division 3 (which deals with service in a country with which Australia is not a party to a convention as to service abroad of judicial documents). Under the new subrule, the Court may also give leave, subject to subrule 2 (2B), on such terms and conditions as it considers appropriate. Before giving leave under subrule 2 (2), the Court must be satisfied that the Court has jurisdiction in the proceeding, the proceeding is of a type listed in rule 1, and the party seeking leave has a prima facie case for the relief sought by the party in the proceeding.
[6] Order 8, subrule 2 (3)
This amendment omits "or place" from subrule 2 (3).
Inspection of documents
[7] Order 46, subrules 6 (5) and (6)
This amendment replaces subrules 6 (5) and (6).
The new subrule 6 (5) provides that, except with the leave of the Court or a Judge, a party to a proceeding or other person must not search in the Registry or inspect a transcript of the proceeding, or a document filed in the proceeding in support of an application for an order that a document, evidence or thing be privileged from production.
The new subrule 6 (6) provides that a party to a proceeding or other person may copy a document in the proceeding if the document is produced by the Court, a Judge or the Registrar for inspection by the party or other person, and the Registrar gives permission for the document to be copied, and the party or other person has paid the prescribed fee.
Exercise of powers by Registrars under the Native Title Act 1993
[8] Order 78, after rule 3
This amendment inserts a new rule 3A which provides that the Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Native Title Act 1993.
Federal Magistrates Court
[9] After Order 81
This amendment inserts a new Order 82 setting out the rules for the transfer of proceedings between the Court and the Federal Magistrates Court.
Division 1 of Order 82 deals with the transfer of proceedings from the Federal Magistrates Court. Order 82 subrule 1 (1) provides that a sealed copy of the order of the Federal Magistrates Court transferring a proceeding to the Court must, unless the Federal Magistrates Court otherwise directs, be filed by the party who obtained the order or, if the order is made by the Federal Magistrates Court on its own motion, by the applicant. Under subrule 1 (2), the sealed copy of the order must be filed in the District Registry named in the order or, if no District Registry is named, in the District Registry in the State or Territory where the Federal Magistrates Court heard the proceeding.
Subrules 2 (1) and (2) provide that the Registrar must give the order a serial number as if it were an application filed in the Registry, and attach to the order a notice in accordance with Form 169 stating the date for a directions hearing in the proceeding and stating that a party (other than the applicant) must enter an appearance in the Registry unless the party has already entered an appearance in the Federal Magistrates Court. Subrule 2 (3) requires the party filing the order to serve a sealed copy of the notice and a copy of the order on each other party to the proceeding in the Federal Magistrates Court and on any other person as the Court or a Judge directs. Under subrule 2 (4), if a party has an address for service in the Federal Magistrates Court proceeding, the notice may be served on the party by delivery to that address.
Rule 3 provides that the Federal Court Rules apply to a proceeding transferred from the Federal Magistrates Court as if the proceeding had been instituted in the Court.
Division 2 of Order 82 deals with the transfer of proceedings to the Federal Magistrates Court. Rule 4 defines, for the purposes of the Division, "appeal" as an appeal under section 44 of the Administrative Appeals Tribunal Act 1975, and "Tribunal Act" as the Administrative Appeals Tribunal Act 1975.
Rule 5 provides that a party may apply by motion on notice under the Federal Court of Australia Act 1976 or the Tribunal Act for a proceeding or appeal, as the case may be, to be transferred to the Federal Magistrates Court. The heading of the notice of motion must refer to the Act under which the application is made, and the motion must be heard and determined by a single Judge.
Under rule 6, the Court or a Judge may at any time, and whether or not there is an application under rule 5, transfer a proceeding or an appeal to the Federal Magistrates Court on the Court's or the Judge's own motion.
When considering whether to transfer a proceeding or an appeal to the Federal Magistrates Court, the Court must, pursuant to rule 7, take into account the factors set out in paragraphs 7 (a) to (d).
Amendment to form in Schedule 1
[10] Schedule 1, after Form 168
This amendment inserts a new Form 169, being the Notice of Proceeding that, pursuant to Order 82 subrule 2 (2), must be attached to a sealed copy of the order of the Federal Magistrates Court transferring a proceeding to the Court.
Amendment to Schedule 2
[11] Schedule 2
Schedule 2 sets out the costs that solicitors are allowed in respect of work done and services performed in Federal Court proceedings. The amendment gives effect to the 16th Report of the Federal Costs Advisory Committee which recommended that the allowable costs be increased by 3 per cent, and provides a further increase of 9.5 per cent on account of the Goods and Services Tax.
Amendments to Schedule 3
[12] Schedule 3, heading
The heading to Schedule 3 is amended to make it clear that the Schedule refers to powers and functions of the Court under the Bankruptcy Act 1966.
[13] Schedule 3, after item 2
This amendment inserts a new item 2A, being the power under paragraph 40 (1) (g) of the Bankruptcy Act to grant leave to serve a bankruptcy notice outside Australia.
New Schedule 4
[14] After Schedule 3
This amendment inserts a new Schedule 4 setting out the powers of the Court under the Native Title Act that may be exercised by a Registrar if the Court or a Judge directs.