Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2002 (NO. 2) 2002 NO. 222

Statutory Rules 2002 No. 222

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

Federal Court Amendment Rules 2002 (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 2002 (No. 2).

RULE 2 - Commencement

This rule provides that rules 1 to 3 and Schedule 1 commence on gazettal, and Schedule 2 commences on the commencement of Schedule 2 to the Jurisdiction of Courts Legislation Amendment Act 2002.

RULE 3 - Amendment of Federal Court Rules

This rule provides that the Federal Court Rules are amended as set out in Schedules 1 and 2.

SCHEDULE 1 - Amendments commencing on gazettal

Interpretation

[1]       Order 1, rule 4, definition of Corporations Law Rules

This amendment omits the definition of Corporations Law Rules, and inserts a definition for Corporations Rules as meaning the Federal Court (Corporations) Rules 2000. The amendment is consequential to the adoption of the Federal Court (Corporations) Rules 2000, and the enactment of the Corporations Act 2001.

[2]       Order 1, rule 4, definition of mentally disabled person

This amendment replaces the reference to "his" with a reference to "his or her".

[3]       Order 1, rule 4, definition of trial

This amendment corrects a minor grammatical error by replacing the reference to "hearing; and" with a reference to "hearing.".

Alteration of date for hearing

[4]       Order 4, subrule 12 (3)

Order 4 subrule 12 (1) provides that, where a date for hearing has been obtained or made, the Court or the Registrar may alter the date to a later date and may authorise the solicitor for a party to make corresponding alterations in any copy for service of any application or notice. Subrule 12 (3)       provides that this rule does not apply to a proceeding to which the Corporations Law Rules apply if a public notice or advertisement of the date for hearing of the proceeding is required under those Rules or by directions made by the Court in that proceeding.

This amendment replaces the reference in Order 4 subrule 12 (3) to "Corporations Law Rules" with "Corporations Rules". The amendment is consequential to the amendment set out in item [1] above.

Interveners

[5]       Order 6, heading

This amendment replaces the heading to Order 6 with the heading "Parties, causes of action and interveners". The amendment is consequential to the amendment set out in item [6] below.

[6]       Order 6, after rule 16

This amendment inserts a new rule 17 which deals with a person seeking to intervene in a proceeding.

Subrule 17 (1) provides that the Court, at any stage of a proceeding, on its own motion or on the application of a person, may give leave to a person ("the intervener") to participate in the proceeding, on the terms and conditions, and with such rights, privileges and liabilities (including liabilities for costs), determined by the Court.

Subrule 17 (2) provides that, in deciding whether to give leave, the Court must have regard to whether the intervener's contribution will be useful and different from that of the parties to the proceeding, whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish, and any other matter that the Court considers relevant.

Subrule 17 (3) provides that the role of the intervener is confined to assisting the Court in its task of resolving the issues raised by the parties.

Subrule 17 (4) provides that, for the purposes of subrule (3), assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses.

Subrule 17 (5) provides that, when giving leave, the Court must specify the role and manner of participation of the intervener, including the matters that the intervener may raise and whether the intervener's submissions are to be oral, written or both.

Personal service for the purposes of the Corporations Rules

[7]       Order 7, subrule 2 (4)

Order 7 rule 2 sets out the rules on how personal service is effected.

The amendment replaces subrule 2 (4) with a new subrule 2 (4) which provides that, for the purposes of the Corporations Rules, personal service may be effected:

(a)       on a company, as defined in section 9 of the Corporations Act 2001 (the Corporations Act), in any manner permitted by section 109X of the Corporations Act; and

(b)       on the liquidator of a company, in the manner permitted by paragraph 109X (1) (c) of the Corporations Act; and

(c)       on an administrator of a company, in the manner permitted by paragraph 109X (1) (d) of the Corporations Act.

The amendment is consequential to the adoption of the Federal Court (Corporations) Rules 2000, the enactment of the Corporations Act 2001, and the amendment set out in item [1] above.

Directions - assisted dispute resolution

[8]       Order 10, subparagraph 1 (2) (a) (xviii)

[9]       Order 10, subparagraph 1 (2) (a) (xvix)

Order 10 paragraph 1 (2) (a) sets out a non-exhaustive list of the orders that the Court may make with respect to the conduct of a proceeding.

These amendments have the effect of inserting a new subparagraph 1 (2) (a) (xvix) which provides, inter alia, that the Court may make orders with respect to the use of assisted dispute resolution (including mediation) to assist in the conduct and resolution of all or part of a proceeding.

Discontinuance

[10]       Order 22, subrule 2 (3)

Order 22 subrule 2 (3) provides that an application for a winding up order under section 459P or paragraph 461 (a) of the Corporations Law may not be discontinued without leave of the Court.

This amendment replaces the reference to "Corporations Law" in subrule 22 (3) with a reference to "Corporations Act 2001". The amendment is consequential to the enactment of the Corporations Act 2001.

Appeals - interveners

[11]       Order 52, after rule 14

This amendment inserts a new rule 14AA which deals with a person seeking to intervene in an appeal.

Subrule 14AA (1) provides that the Court, at any stage of an appeal, on its own motion or on the application of a person, may give leave to a person ("the intervener") to participate in the appeal, on the terms and conditions, and with such rights, privileges and liabilities (including liabilities for costs), determined by the Court.

Subrule 14AA (2) provides that, in deciding whether to give leave, the Court must have regard to whether the intervener's contribution will be useful and different from that of the parties to the appeal, whether the intervention might unreasonably interfere with the ability of the parties to conduct the appeal as they wish, and any other matter that the Court considers relevant.

Subrule 14AA (3) provides that the role of the intervener is confined to assisting the Court in its task of resolving the issues raised by the parties.

Subrule 14AA (4) provides that, for the purposes of subrule (3), assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses.

Subrule 14AA (5) provides that, when giving leave, the Court must specify the role and manner of participation of the intervener, including the matters that the intervener may raise and whether the intervener's submissions are to be oral, written or both.

Corporations Act proceedings

[12]       Order 71, heading, including note

This amendment, in effect, replaces each reference to "Corporations Law", "ASC Law" and "Corporations Law Rules 2000" in the heading and note with a reference to "Corporations Act 2001", "Australian Securities and Investments Commission Act 2001" and "Federal Court (Corporations) Rules 2001", as the case may be.

The amendment is consequential to the enactment of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001, and the adoption of the Federal Court (Corporations) Rules 2000.

Transfer of proceeding to the Federal Magistrates Court

[13]       Order 82, rule 7

[14]       Order 82, paragraphs 7 (b) and (c)

Order 82 rule 7 deals with the transfer of a proceeding, or an appeal under section 44 of the Administrative Appeals Tribunal Act 1975, to the Federal Magistrates Court.

Order 82 rule 7 is amended to provide that the Court or a Judge has a discretion as to whether to take into account the factors set out in paragraphs 7(a) to (d), and that these factors are in addition to those which the Court or a Judge is required to have regard by subsection 32AB (6) of the Federal Court of Australia Act, or subsection 44AA (7) of the Administrative Appeals Tribunal Act. The amendment is intended to give the Court or a Judge greater flexibility as to which factors are to be considered in the circumstances of each case, so as to help ensure that the transfer of a proceeding or an appeal may be dealt with quickly and efficiently, and with minimal cost to the parties.

Order 82 paragraph 7 (b) involves an assessment as to whether, if the proceeding or appeal is transferred to the Federal Magistrates Court, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding or appeal is not transferred. Order 82 paragraph 7 (c) involves an assessment as to whether the proceeding or appeal is likely to be heard and determined earlier in the Federal Magistrates Court. These paragraphs are amended to make it clear that each assessment is to be in the opinion of the Court or the Judge dealing with the matter.

The amendments are made under the power conferred by subsection 32AB (5) of the Federal Court of Australia Act and subsection 44AA (4) of the Administrative Appeals Tribunal Act, and have been the subject of consultation with the Federal Magistrates Court as required by subsection 32AB (5) of the Federal Court of Australia Act and subsection 44AA (6) of the Administrative Appeals Tribunal Act.

Amendment to form in the First Schedule

[15]       First Schedule, Form 5

[16]       First Schedule, Form 5, at the end

Form 5 is the prescribed form of application for commencing a proceeding in the Court.

The first amendment substitutes a new note which makes it clear that the statement concerning the nature of the application or cross-claim and the legislative basis of the Court's jurisdiction to hear it and grant the relief sought is not taken to be part of any pleading in the proceeding.

The second amendment replaces the words `Version 1' at the end of the Form with the words "Version 2". This is intended to help identify the currency of the Form.

SCHEDULE 2 - Amendments commencing on the commencement of Schedule 2 to the Jurisdiction of Courts Legislation Amendment Act 2002

Directions

[1]       Order 10, subparagraph 1 (2) (a) (xviii)

Order 10, subparagraph 1 (2) (a) (xviii) provides, inter alia, that the Court may make orders with respect to the taking of evidence and receipt of submissions by video link, or telephone, or electronic communication, or such other means as the Court considers appropriate.

This amendment replaces the reference in subparagraph 1 (2) (a) (xviii) to "telephone" with a reference to "audio link". It is consequential to a similar amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978.

Native Title proceedings

[2]       Order 78, Division 7, heading

The heading to Division 7 of Order 78 is "Judicial Registrars and assessors".

This amendment replaces the heading with "Assessors". The effect of the amendment is to remove the reference to Judicial Registrars. The amendment is consequential to an amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978 which omits the provisions for the appointment of Judicial Registrars.

Further amendments

[3]       Further amendments - omissions

This amendment omits a number of provisions.

The definition of "Judicial Registrar" in Order 1 rule 4 is omitted. This amendment is consequential to an amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978 which omits the provisions for the appointment of Judicial Registrars.

Order 24 rule 1A, which provides that the Court may in its discretion take evidence from a witness by telephone or video link or other similar means in accordance with such procedures as the Court directs, is omitted. This amendment is consequential to an amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978 which inserts a number of provisions dealing with the receipt of appearances, evidence and submissions by audio link, video link and other appropriate means.

The amendment omits Order 47 Division 3, which provides that, if, in relation to a proceeding in the Court, a power, function or duty is conferred or imposed on a Marshal by the Rules made under the Admiralty Act 1988, the Sheriff or the Deputy Sheriff of the Court is authorised to exercise that power or function or perform that duty. This amendment is made on the basis that the Registrar can appoint a Marshal under section 18N of the Federal Court of Australia Act 1978, which was not the case when Order 47 Division 3 was inserted.

Order 69 deals with proceedings under the Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990. Order 69 rule 13, which deals with an application to have testimony heard, or submissions made, by video-link or telephone conference, is omitted. This amendment is made on the basis that rule 13 is no longer necessary given the Evidence and Procedure (New Zealand) Act 1994, and the Court's power to give directions under Order 10 subparagraph 1 (2) (a) (xviii) of the Federal Court Rules.

Order 69A deals with proceedings to which the Evidence and Procedure (New Zealand) Act 1994 applies. Order 69A rule 8, which deals with an application under section 25 of the Evidence and Procedure (New Zealand) Act 1994 to heard evidence, or receive submissions, by video-link or telephone, is omitted. This amendment is made on the basis that rule 8 is no longer necessary given the Evidence and Procedure (New Zealand) Act 1994, and the Court's power to give directions under Order 10 subparagraph 1 (2) (a) (xviii) of the Federal Court Rules.

Order 78, Division 7, subdivision 1 sets out the powers that might be exercised by Judicial Registrars in proceedings under the Native Title Act 1996. The amendment omits this Subdivision. It is consequential to an amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978, which omits the provisions for the appointment of Judicial Registrars.

Order 79 deals with the delegation of powers to Judicial Registrars. The amendment omits Order 79. It is consequential to an amendment by the Jurisdiction of Courts Legislation Amendment Act 2002 to the Federal Court of Australia Act 1978, which omits the provisions for the appointment of Judicial Registrars.