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FEDERAL COURT AMENDMENT RULES 2001 (NO. 3) 2001 NO. 322
EXPLANATORY STATEMENTStatutory Rules 2001 No. 322
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2001 (No. 3)
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. 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 1.
SCHEDULE 1 - Amendments
Registry hours
[1] Order 3, subrule 6 (1)
Order 3 rule 6 (1) is amended by removing the reference to 'and the day immediately after Easter Monday in each year' as a day on which the Registry will be closed to the public. The amendment reflects the fact that that day is no longer a Commonwealth public service holiday and staff are therefore 'on duty' that day.
Default judgment
[2] Order 10, subrule 7 (1), at the foot
Order 7 subrule 7 (1) provides that, where a party to a proceeding fails to comply with an order of the Court directing that party to take a step in proceeding, any other party may apply to the Court for:
(a) orders to stay or dismiss the whole or any part of the proceeding (where the party in default is an applicant);
(b) judgment or an order against the party in default (where the party in default is a respondent); or
(c) an order that the step in the proceeding be taken within the time limited in that order.
This amendment inserts a note after subrule 7 (1). The note advises that, if a claim or cross-claim is for a debt or liquidated damages, the applicant or cross-claimant may rely on Order 10 rule 8 rather than on paragraph 7 (1) (b).
[3] Order 10, after rule 7
This amendment inserts a new rule 8 that provides for default judgment to be entered against a respondent or cross-respondent where the claim is for a debt or liquidated damages.
Subrule 8 (1) provides that the rule applies if a respondent or cross-respondent against whom a claim for debt or liquidated damages is made in a proceeding fails to enter an appearance, or to attend a directions hearing, or to comply with an order of the Court requiring the respondent or crossrespondent to take a step in the proceeding, or to file a defence.
Subrule 8 (2) provides that the Court may, at any time in the proceeding, grant leave to the applicant or cross-claimant to enter judgment for the debt or liquidated damages against the respondent or crossrespondent provided the applicant or cross-claimant files in the Registry:
(a) an affidavit, or affidavits, proving
(i) service of the application or cross-claim claiming judgment for the debt or liquidated damages; and
(ii) the failure to enter an appearance, to attend a directions hearing, to comply with an order of the Court requiring the party against whom the judgment is sought to be entered to take a step in the proceeding or to file a defence; and
(b) an affidavit as to debt or liquidated damages in accordance with Form 15A.
Subrule 8 (3) provides that, if the affidavits required by subrule (2) are filed in the Registry, the Registrar must enter judgment for the debt or liquidated damages without giving notice, or further notice, to the respondent or cross-respondent.
Evidence
[4] Order 33, rule 2
Order 33 rule 2 provides that, where the circumstances are such that undue delay or inconvenience would otherwise be caused, the Court or a Judge may admit into evidence a statement notwithstanding that it is hearsay, and a copy of a document notwithstanding that the original of the document is not produced. The rule applies only to evidence other than evidence on an issue at trial.
This amendment omits Order 33 rule 2 as it is inconsistent with section 75 of the Evidence Act 1995 (Cth). Section 75 provides that, in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.
Access to documents
[5] Order 46, subparagraph 6 (2) (1) (ii)
[6] Order 46, after paragraph 6 (2) (1)
Order 46 subrule 6 (2) lists the documents in a proceeding that a person may inspect unless the Court or a Judge has ordered otherwise.
The effect of these amendments is to add the reasons for judgment to this list.
Matters remitted by the High Court of Australia
[7] Order 51A, subrule 5 (1)
[8] Order 51A, subrule 5 (1)
Order 51A rule 5 sets out how the Court may deal with an application remitted by the High Court for an order nisi for a prerogative writ.
The amendments make it clear that Order 51A subrule 5 (1) is subject to any Act to the contrary, such as the Migration Act 1958 (Cth), and replaces the reference to a "prerogative writ" with a reference to a "constitutional writ".
Cross-appeal
[9] Order 52, subrule 22 (3)
Order 52 subrule 22 (3) provides, inter alia, that a respondent to an appeal who proposes to contend that some matter of fact or law has been erroneously decided against the respondent but does not seek a discharge or variation of a part of the judgment pronounced, must file and serve a notice of contention and take certain steps to ensure the record of evidence or documents relating to the contention are included in the appeal papers.
This amendment replaces subrule 22 (3) with a new subrule 22 (3) that widens the circumstances in which a respondent must file a notice of contention. Under the new subrule, the respondent must file a notice of contention if the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment.
Applications under Administrative Decisions (judicial Review) Act 1977
[10] Order 54, after rule 2
This amendment inserts a new Order 54 rule 2A which prescribes the manner in which an application under paragraph 11 (1) (c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an extension of time to lodge an application for an order of review must be made. Under subrule 2A (1), the application for an extension of time must be accompanied by a proposed application for the order of review, or be made by lodging an application for an order for review that includes a claim for the order of review and for the extension of time. Pursuant to subrule 2A (2), an application for extension of time must be supported by an affidavit stating the nature of the applicant's case, the questions involved in the case, and the reasons why the extension of time should be granted.
Applications under subsection 120 (1) of Patents Act (infringements)
[11] Order 58, after subrule 11 (1)
This amendment inserts a new Order 58 subrule 11(1A) which provides that, if an application under section 120 of the Patents Act 1990 relates to an innovation patent, the supporting affidavit or statement of claim must state the date on which the innovation patent was certified.
The amendment has been made in light of an amendment to section 120 of the Patents Act which provides that infringement proceedings in respect of an innovation patent cannot be started unless the patent has been certified.
Applications under Chapter 12 of Patents Act (compulsory licences, revocation etc)
[12] Order 58, after subrule 14 (2)
This amendment inserts a new Order 58 subrule 14 (2A) which provides that, if an application under subsection 133 (1) or subsection 138 (1) of the Patents Act relates to an innovation patent, the supporting affidavit or statement of claim must state the date on which the innovation patent was certified.
The amendment has been made in light of amendments to section 133 and 138 of the Patents Act which provide that an application for an order under either of those sections in respect of an innovation patent cannot be made unless the patent has been certified.
Transfer of a proceeding to the Federal Magistrates Court
[13] Order 82, rule 7
Order 82 rule 7 provides that the Court must, when considering whether to transfer a proceeding or an appeal to the Federal Magistrates Court, take into account the factors set out in paragraphs 7 (a) to (d). The amendment makes it clear that these factors are in addition to the factors mentioned in subsection 32AB (6) of the Federal Court of Australia Act 1976 (Cth) in the case of a proceeding, or subsection 44AA (7) of the Administrative Appeals Tribunal Act 1975 (Cth) in the case of an appeal under section 44 of that Act.
Amendments to forms in First Schedule
[14] First Schedule, after Form 15
This amendment inserts a new Form 15A, Affidavit as to Debt or Liquidated Damages, which is prescribed by the new Order 10 paragraph 8 (2) (b) (see item [3] above).
[15] First Schedule, Form 29
The amendment replaces Form 29 with a new Form 29, Notice of Discontinuance, that must be filed by an applicant in a proceeding who discontinues the proceeding. The new form will allow the applicant to more clearly state the basis of the discontinuance. It also contains notes that will put the applicant on notice as to the applicant's liability for costs if the discontinuance is by consent.
Scale of costs for work done and services performed
[16] 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 17 th Report of the Federal Costs Advisory Committee which recommended that the allowable costs be increased by 3.9 per cent. The amendment also provides for an additional increase to the amounts for items 9 (with respect to each additional folio), 11 (with respect to each additional folio), 15, 16, 17 (with respect to the cost per folio) and 18 in Schedule 2. This additional increase has been made in recognition that the amount of costs allowed for these items had not increased since November 1983.