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FEDERAL COURT AMENDMENT RULES 2001 (NO. 1) 2001 NO. 20
EXPLANATORY STATEMENTStatutory Rule 2001 No. 20
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2001 (No. 1)
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 2001 (No. 1).
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
Filing and lodging documents
[1] Order 1, subrule 5A (2)
Order 1 subrule 5A (2) sets out the circumstances when a document may not be sent to the Court by facsimile transmission or electronic communication. In particular, the subrule provided that a document could not be sent by electronic communication if the document (including any attachment) was more than 20 pages long. The effect of this amendment is to increase this limit to 50 pages.
[2] Order 1, subrule 5A (6)
Order 1 subrule 5A (6) provides that a document is filed when it is accepted in the Registry and stamped. The amendment makes it clear that the document must be stamped in accordance with Order 46 rule 4, which provides that the stamp of the Court shall be affixed to all process filed in the Court and orders entered and to all such other documents as the Court directs.
Filing and lodging by facsimile transmission
[3] Order 1, subrule 5AB (1)
This amendment makes it clear that the Registrar must approve at least one facsimile number for each Registry.
[4] Order 1, Paragraph 5AB (4) (c)
Order 1 paragraph 5AB (4) (c) sets out the manner in which a document sent to the Registry by facsimile transmission is to be returned to the sender of the document. The amendment deals with the situation where the sender does not request that the document be held for collection (or having made the request fails to collect the document within 7 days) and has not stated a facsimile number on the cover sheet. In such a situation the Registrar must send the document to the postal address stated on the cover sheet.
[5] Order 1, subrule 5AB (5)
Order 1 subrule 5AB (5) provides that, if more than one copy of a document is required for issue, the sender of the document must give the Registry any additional copies required. The subrule is amended to provide that the sender must send, or ask the Registry to make, any additional copies.
Filing and lodging by electronic communication
[6] Order 1, subrule 5AC (1)
The amendment replaces Order 1 subrule 5AC (1) with a new subrule that provides that the Registrar must approve the formats in which electronic versions of documents will be accepted by a Registry, and may approve at least one email address for any Registry for the purpose of receiving documents by electronic communication.
[7] Order 1, paragraph 5AC (2) (a)
This amendment replaces Order 1 paragraph 5AC (2) (a) with a new paragraph that provides that a document may be sent to a Registry by electronic communication by using the Court's Internet home page at http://www.fedcout.gov.au or to an email address approved for the Registry.
[8] Order 1, subparagraphs 5AC (2) (e) (i) and (ii)
Order 1 subparagraphs 5AC (2) (e) (i) and (ii) set out the information to be stated in the cover sheet that must accompany a document sent to a Registry by electronic communication. The amendment replaces the subparagraphs with new subparagraphs which provide that the sender's name, postal address and telephone number must be stated, and that the sender's document exchange number, facsimile number and email address need be stated only if applicable.
[9] Order 1, subrules 5AC (3) and (4)
Order 1 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 Registry. The amendment replaces this subrule with a new subrule which provides that an affidavit may only be filed by electronic communication by sending an image of the affidavit in accordance with subrule 5AC (2). The effect of the amendment is that an electronic version of a document which is signed in accordance with Order 41 rule 7 (see paragraph [38] below): may be sent by electronic communication instead of an image of the signed document.
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. The amendment replaces this subrule with a new subrule which provides that a document in an existing proceeding must be sent by using the Court's Internet home page at http://www.fedcout.gov.au or to an email address approved for the Registry which is the proper place for the proceeding.
[10] Order 1, paragraph 5AC (5) (c)
Order 1 paragraph 5AC (5) (c) sets out the manner in which a document sent to the Registry by electronic communication is to be returned to the sender of the document. The amendment deals with the situation where the sender does not request that the document be held for collection (or having made the request fails to collect the document within 7 days) and has not stated an email address on the cover sheet. In such a situation the Registrar must send the document to the postal address stated on the cover sheet.
[11] Order 1, subrule 5AC (6)
Order 1 subrule 5AC (6) provides that, if more than one copy of a document is required for issue, the sender of the document must give the Registry any additional copies required. The subrule is amended to provide that the sender must send, or ask the Registry to make, any additional copies.
Filing and copies of an application
[12] Order 4, subrule 7 (1)
This amendment replaces the reference in Order 4 subrule 7 (1) to "seal with the seal of the Court" with a reference to "affix the seal of the Court". The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
Ordinary service: how effected
[13] Order 7, paragraph 4 (1) (b)
Order 7 paragraph 4 (1) (b) is amended by inserting "or her" after the word "his".
[14] Order 7, paragraphs 4 (1) (d) and (e)
Order 7 subrule 4 (1) sets out the ways in which a document may be served on a person if personal service is not required.
The amendment replaces paragraphs 4 (1) (d) and (e) with new paragraphs 4 (1) (d), (e) and (f). The effect of these paragraphs is that a person may be served with a document if the document is sent to the document exchange, facsimile number or email address specified by the person in a notice given by him or her under Order 7 rule 7 (as amended by [27] below).
[15] Order 7, subrule 4 (2)
[16] Order 7, subrule 4 (2)
Order 7 subrule 4 (2) is amended by replacing "he" with "the person", and by replacing each mention of "his" with "the person's".
[17] Order 7, paragraph 4 (3) (c)
[18] Order 7, after paragraph 4 (3) (c)
Order 7 subrule 4 (3) is amended by inserting a new paragraph 4 (3) (d) which provides that, where a document is served on a person by sending it by electronic communication to the email address specified by the person in a notice given by him or her under Order 7 rule 7 (as amended by [27] below), the time of service will be one day after the document is sent to the person.
[19] Order 7, after subrule 4 (3)
This amendment inserts a new subrule 4 (4) which provides that, for paragraphs 4 (3) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
Service on Principal Solicitor
[20] Order 7, paragraph 4A (1) (a)
[21] Order 7, paragraph 4A (1) (c)
[22] Order 7, after paragraph 4A (1) (c)
A person who has engaged a solicitor ('the Principal Solicitor') who has in turn engaged another solicitor as agent may use the agent's address as the person's proper address for service. Where this has occurred, Order 7 subrule 4A (1) provides that ordinary service of a document may be effected on the person by leaving a copy of the document at, or posting a copy to, the address of the Principal Solicitor. It also provides that service may be effected by leaving the document at the Principal Solicitor's document exchange box, providing that box had been specified in a notice under Order 7 rule 7.
The amendments provide that a document may also be served on the person by sending it by facsimile transmission to the facsimile number operated at the premises of, or in connection with, the Principal Solicitor, or by sending it by electronic communication to the email address of the Principal Solicitor.
[23] Order 7, paragraph 4A (2) (b)
[24] Order 7, after paragraph 4A (2) (b)
Order 7 subrule 4A (2) is amended by inserting new paragraphs 4 (2) (c) and (d) which provide that, where a document is served on a person by sending it by facsimile transmission or electronic communication in accordance with subrule 4A (1), the time of service will be one day after the document is sent to the person.
[25] Order 7, after subrule 4A (2)
This amendment inserts a new subrule 4A (3) which provides that, for paragraphs 4A (3) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
Document exchange, facsimile number or email address
[26] Order 7, rule 7, heading
[27] Order 7, subrules 7 (1), (2) and (3)
These amendments replace the heading to rule 7 and subrules 7 (1), (2) and (3). The amendments allow a person to authorise that documents may be served on the person at the document exchange box, facsimile number or email address specified by the person.
The new subrule 7 (1) provides that a person may file a notice in accordance with Form 12, or add a notice to that effect to the person's originating process (other than a cross-claim) or notice of appearance, authorising that a document in the proceeding may be served on the person by leaving it at his or her solicitor's document exchange box specified in the notice, or by sending it to the facsimile number or email address specified in the notice.
The new subrule 7 (2) provides that a person may change the particulars stated in the notice by filing a further notice showing the new particulars, and may cancel the notice by filing a further notice to that effect.
A person who files a notice under subrules 7 (1) or (2) (other than a notice added to an originating process or a notice of appearance) must, pursuant to subrule 7 (3), serve the notice on each party to the proceeding on the date the notice is filed.
Service outside the jurisdiction
[28] Order 8, subrule 10 (2)
The effect of this amendment is to replace the reference in Order 8 subrule 10 (2) to "shall seal the documents lodged with the seal of the Court" with a reference to "must affix the seal of the Court to the documents". The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
[29] Order 8, subrule 14 (2)
The effect of this amendment is to replace the requirement in Order 8 subrule 14 (2) that a document to be served must be sealed with the seal of the Court, with a requirement that the seal of the Court must be affixed to the document. The, amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
Entering an appearance
[30] Order 9, subrule 3 (4)
Order 9 subrule 3 (4) provides that a notice of appearance must be stamped with the stamp of the Registry with the addition of the words 'appearance entered' and the date on which the stamp is affixed.
The amendment inserts a new subrule 3 (4) which provides that the stamp of the Court must be affixed to the notice of appearance along with the date on which the stamp is affixed. The requirement that the words 'appearance entered' be added has been omitted.
Directions hearing - General
[31] Order 10, subparagraph 1 (2) (a) (xviii)
This amendment replaces Order 10, subparagraph 1 (2) (a) (xviii) with a new subparagraph that allows the Court or a Judge to give directions as to the taking of evidence and the receipt of submissions by electronic communication, as well as by video link or telephone as provided under the original subparagraph.
Subpoenas
[32] Order 27, subrule 6 (2)
The effect of this amendment is replace Order 27 subrule 6 (2), which provided that a subpoena shall be issued under seal,, with a new subrule 6 (2) which provides that the Registrar must affix the stamp of the Court to a subpoena. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
Consent orders by filing in the Registry
[33] Order 35, paragraphs 10 (2) (a) and (b)
This amendment replaces each reference in Order 35 paragraphs 10 (2) (a) and (b) to "seal" with a reference to "affix the stamp of the Court". The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
Stamping judgments and orders
[34] Order 36, rule 10
This amendment replaces Order 36 rule 10, which provided that the Registrar shall seal an order with the seal of the Court, with a new rule 10 which provides that the Registrar must affix the stamp of the Court to the order. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] below) which provides for the affixing of the seal or stamp of the Court to documents.
Details to be shown on first page of a document
[35] Order 41, paragraph 3 (1) (a)
Order 41 paragraph 3 (1) (a) sets out the information that must be shown on the first page of a document to be used in the Court. This amendment replaces each reference to "the number of the facsimile receiver" in the paragraph with a reference to "the facsimile number and the email address".
[36] Order 41, paragraph 3 (1) (b)
This amendment replaces the reference to Order 7 rule 7 with a reference to Order 7 paragraph 7 (1) (a). The amendment is consequential to the changes to Order 7 rule 7 (see [27] above).
[37] Order 41, subrule 3 (2)
Order 41 subrule 3 (2) provides that the first page of a document prepared by a person who is not represented by a solicitor must show the person's name, address for service and telephone number. Under the amendment, the person only need show his or her telephone number if applicable, and, if applicable, must also show his or her facsimile number and email address.
Signing documents
[38] Order 4 1, after rule 6
This amendment inserts a new rule 7 which provides that a requirement under the Rules that a document be signed will be satisfied if a facsimile of the signature is affixed on the document by electronic means by, or at the direction of, the signatory. The rule does not apply to affidavits.
Seal of Court
[39] Order 46, subrule 2 (5)
This amendment replaces Order 46 subrule 2 (5) with a new subrule which provides that a document or copy of a document to which a stamp has been affixed is as valid and effectual as if the seal of the Court had been affixed to it.
Affixing seal or stamp of the Court
[40] Order 46, after rule 4
This amendment inserts a new rule 4A which provides that the seal of stamp of the Court may be affixed on a document by hand, by electronic means or in another way.
Duties of District Registrar on receiving certain applications under the Workplace Relations Act
[41] Order 48, paragraph 11 (a)
This amendment replaces Order 48 paragraph 11 (a), which referred to stamping an application with the stamp of the Court, with a new paragraph 11 (a) that refers to affixing the stamp of the Court to the application. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
[42] Order 48, paragraph 11 (c)
This amendment replaces Order 48 paragraph 11 (c) with a new paragraph 11 (c) that sets out the manner in which the Registrar is to return stamped documents to the applicant. Under the new paragraph, the documents are to be given to the applicant if they were presented to the Registry; sent to the applicant in accordance with Order 1 subrule 5A (11) if they were sent to the Registry by post or document exchange; sent to the applicant in accordance with Order 1 paragraph 5AB (4) (c) if they were sent to the Registry by facsimile transmission; or sent to the applicant in accordance with Order 1 paragraph 5AC (5) (c) if they were sent to the Registry by electronic communication.
Filing and service of matters remitted by the High Court of Australia
[43] Order 51A, after subrule 2 (4)
This amendment inserts a new Order 51A subrule 2 (4A) which provides that the Registrar must affix the stamp of the Court to a sufficient number of copies of the notice for service in accordance with subrule 2 (5). The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
Taxation appeals
[44] Order 52A, paragraph 4 (1) (d)
[45] Order 52A, after paragraph 4 (1) (d)
Order 52A subrule 4 (1) provides for the mode of service of any document to be served under Order 52A. The amendments insert new paragraphs 4 (1) (e) and (f) which have the effect that a person may be served with a document if the document is sent to the facsimile number or email address nominated by the person in the document filed under Order 52A rule 11.
[46] Order 52A, subrule 4 (2)
Order 52A subrule 4 (2) provides that a document served by post under subrule 4 (1) shall be deemed to have been served seven days after they are sent.
The amendment replaces subrule 4 (2) with a new subrule 4 (2) which provides that, where a document is served on a person by sending it by pre-paid post, the time of service is 7 days after it is sent. If the document is served by sending it by facsimile transmission or electronic communication, the time of service will be one day after the document is sent to the person.
[47] Order 52A, paragraphs 11 (2) (b) and (c)
Order 52A subrule 11 (2) sets out the information that must be contained in a notice of address for service filed by the applicant under subrule 11 (1).
The amendment replaces the reference in paragraphs 11 (2) (b) and (c) to "address and telephone number" with a reference to "address, telephone number and, if applicable, the facsimile number and the email address" of the applicant's solicitor or of the solicitor acting as the agent of the applicant's solicitor.
Documents to be riled and served by the Commissioner of Taxation - private rulings
[48] Order 52B, subparagraphs 5A (b) (i)
The effect of this amendment is to replace the reference to a copy of a notice of appearance "stamped with the stamp of the Court" with a reference to "a stamped copy of the notice of appearance".
Proceedings under the Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990
[49] Order 69, subrule 4 (7)
The effect of this amendment is replace Order 69 subrule 4 (7), which provided that a subpoena shall be issued under seal, with a new subrule 4 (7) that provides that the Registrar must affix the stamp of the Court to a subpoena. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
[50] Order 69, subrules 9 (4) and (5)
This amendment replaces Order 69 subrules 9 (4) and (5) with new subrules 9 (4) and (5).
The original subrule 9 (4) provided that a certificate issued under subrule 9 (1) had to be issued under the seal of the Federal Court. The new subrule 9 (4) provides that the Registrar must affix the stamp of the Court to such a certificate. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
The original subrule 9 (5) provided that a certificate issued under subrule 9 (1) had to be sent to the High Court of New Zealand. The new subrule 9 (5) provides that the certificate must be sent to the New Zealand Registry (which is defined in Order 69 subrule 2 (1) as a Registry of the High Court of New Zealand) by the person on whose application the certificate is issued or, if the certificate is issued by the Court on its own motion, by the person on whose behalf the subpoena was issued.
Failure to comply with subpoena in Trans-Tasman proceedings
[51] Order 69A, subrule 6 (4)
The effect of this amendment is replace Order 69A subrule 6 (4), which provided that a certificate issued under subrule 6 (1) shall be issued under the seal of the Federal Court, with a new subrule 4 (7) that provides that the Registrar must affix the stamp of the Court to such a certificate. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
Aboriginal and Torres Strait !slander Commission Act 1989
[52] Order 70, paragraph 2 (2) (a)
The effect of this amendment is replace Order 70 paragraph 2 (2) (a), which provided that the Registrar must sign and seal with the seal of the Court an election petition lodged in accordance with the Aboriginal and Torres Strait islander Commission Act 1989, with a new paragraph 2 (2) (a) that provides that the Registrar must sign and affix the stamp of the Court to such a petition. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
[53] Order 70, paragraph 3 (2) (a)
The effect of this amendment is replace Order 70 paragraph 3 (2) (a), which provided that the Registrar must sign and seal with the seal of the Court a reference made in accordance with the Aboriginal and Torres Strait islander Commission Act 1989, with a new paragraph 3 (2) (a) that provides that the Registrar must sign and affix the stamp of the Court to such a reference. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
Summons under Bankruptcy Act 1996
[54] Order 77, paragraph 29
The effect of this amendment is replace Order 77 paragraph 29 (1) (a), which provided that the Registrar must sign and stamp a summons to a person to attend an examination in relation to the person's bankruptcy, with a new paragraph 29 (1) (a) that provides that the Registrar must sign and affix the stamp of the Court to such a summons. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
[55] Order 77, paragraph 36 (1) (a)
The effect of this amendment is replace Order 77 paragraph 36 (1) (a), which provided that the Registrar must sign and stamp a summons to a person to attend an examination in relation to a relevant person's bankruptcy, with a new paragraph 36 (1) (a) that provides that the Registrar must sign and affix the stamp of the Court to such a summons. The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
Native Title Registrar application to Court for order as to notice
[56] Order 78, subrule 44 (3)
This amendment replaces the reference to "seal" in Order 78 subrule 44 (3) with a reference to "affix the stamp of the Court W' orders made by the Court under subrule 44 (1). The amendment is consequential to the new Order 46 rule 4A (see paragraph [40] above) which provides for the affixing of the seal or stamp of the Court to documents.
Amendments to form in First Schedule
[57] First Schedule, Form 12
This amendment is consequential to the amendment to Order 7 rule 7. The amendment replaces Form 12 with a new Form 12 that allows a person who is a party to a proceeding to authorise that a document in the proceeding may be served on the person by leaving it at his or her solicitor's document exchange box specified in the notice, or by sending it to the facsimile number or email address specified in the notice.