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FEDERAL COURT AMENDMENT RULES 2002 (NO. 3) 2002 NO. 281
EXPLANATORY STATEMENTStatutory Rule 2002 No. 281
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2002 (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 2002 (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
Default judgment
[1] Order 10, subrules 8 (2) and (3)
Order 10 rule 8 provides for default judgment to be entered against a respondent or cross-respondent where the claim is for a debt or liquidated damages.
This amendment replaces subrules 8 (2) and (3) to clarify the procedure that is to be followed when seeking a default judgment, and to provide that the default judgment may include an amount for costs and interest.
The new 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 against the respondent or cross-respondent for the debt or liquidated damages and, if appropriate, costs in a sum fixed by the Court or to be taxed and interest.
The new subrule 8 (3) provides that, if leave has been granted under subrule (2) and the applicant or cross-claimant has filed 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;
the Registrar must enter judgment for the debt or liquidated damages, costs and interest, as specified in the leave granted by the Court, without giving notice, or further notice, to the respondent or cross-respondent.
Notice for discovery
[2] Order 15, rule 1
This amendment replaces Order 15 rule 1 with a new rule 1 which makes it clear that a party in a proceeding must have the leave of the Court to file and serve a notice for discovery on any other party in the proceeding.
Appeals - Interveners
[3] Order 52, subrule 14AA (4)
Order 52 rule 14AA deals with a person seeking to intervene in an appeal.
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, and 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.
This amendment omits subrule 14AA (4) on the basis that it is inappropriate in an appeal for a person seeking to intervene to be invited to suggest that a witness be called.
Applications for review of decisions under the Migration Act 1958
[4] Order 54B, heading
[5] Order 54B, rules 1 and 2
These amendments are consequential to the amendments made to the Migration Act 1958 by the Migration Legislation Amendment (Judicial Review) Act 2001. These amendments included replacing Part 8 of the Migration Act, which allowed the Court to review judicially-reviewable decisions under the Migration Act, with a new Part 8 which provides that the Court has jurisdiction under sections 39B and 44 of the Judiciary Act 1903 to review certain decisions made under the Migration Act.
The amendments replace the heading to Order 54B so that it refers to the Judiciary Act 1903 and Migration Act 1958.
The amendments also replace Order 54B rules 1 and 2 with new rules 1 and 2. The new rule 1 provides that Order 54B applies to the making of an application under the Judiciary Act in relation to certain decisions under the Migration Act. A note to the rule refers to section 475A of the Migration Act, which provides that section 476 of that Act does not affect the jurisdiction of the Court under section 39B of the Judiciary Act in relation to:
(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500 of the Migration Act; or
(b) any other decision in respect of which the Court's jurisdiction is not excluded by section 476 of the Migration Act.
The new rule 2 provides that an application to which Order 54B applies must be in accordance with Form 56A, and, if the grounds of the application include an allegation of fraud or bad faith, the application must include particulars of the alleged fraud or bad faith.
Amendments to the First Schedule
[6] First Schedule, heading
This amendment, in effect, changes the name of this schedule from "First Schedule" to "Schedule 1". The amendment means the heading to the schedule is consistent with current drafting practice.
[7] First Schedule, forms 56 and 57
This amendment replaces forms 56 and 57 with new forms 56, 56A and 57.
Form 56 was the prescribed form for applications for an order of review under the Administrative Decisions (Judicial Review) Act 1978 and the old Part 8 of the Migration Act. The new form 56 omits the references to Order 54B and the Migration Act, and is consequential to the amendments to Order 54B referred to in item [5] above.
Form 56A is a new form prescribed by the new Order 54B rule 2 for applications under the Judiciary Act in relation to certain privative clause decisions under the Migration Act.
Form 57 was the prescribed form for a notice of objection to the jurisdiction of the Court to try an application for an order under the Administrative Decisions (Judicial Review) Act and the old Part 8 of the Migration Act. The new form 57, in effect, replaces the reference to applications under the Migration Act with a reference to applications under the Judiciary Act (in relation to a decision under the Migration Act). The amendment is consequential to the amendments to the Migration Act and to Order 54B referred to in item [5] above.
Scale of costs for work done and services performed
[8] 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 18th Report of the Federal Costs Advisory Committee which recommended that the allowable costs be increased by 3.2 per cent.
Further amendments
[9] Further amendments - Schedule 1
This amendment replaces each reference to "First Schedule" in the Rules with a reference to "Schedule 1". It is consequential to the amendment referred to in item [6] above.