Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT AMENDMENT RULES 2003 (NO. 1) 2003 NO. 35

Statutory Rules 2003 No. 35

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

Federal Court Amendment Rules 2003 (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 2003 (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

Vacations

[1]       Order 2, rule 2

This amendment omits Order 2 rule 2, which provided for a fixed vacation and for such variable vacations as the Chief Justice determined.

Reckoning of time

[2]       Order 3, after subrule 2 (4)

This amendment inserts a new subrule 2 (4A) which provides, inter alia, that in calculating the time fixed by these Rules or by an order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, unless the Court otherwise orders.

Vacation

[3]       Order 3, rule 5

Order 3 rule 5 deals with how time is to be reckoned having regard to the fixed vacation.

This amendment omits rule 5 on the basis that it is no longer necessary given the amendments to Order 2 rule 2 and Order 3 rule 2 set out in items [1] and [2] above.

Service by filing

[4]       Order 7, rule 11

This amendment replaces Order 7 rule 11 with a new rule 11.

The new paragraph 11 (1) (a) effectively retains the existing provision that, unless the Court otherwise orders, the filing of a document has effect as service of the document on a person if personal service is not required and the person to be served is in default of appearance or has entered an appearance but has no address for service.

The new paragraph 11 (1) (b) provides that, if personal service is not required and there is proof of non-delivery of a document sent by the Court to a person's proper address, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that person. The new subrule 11 (2) provides that, for the purposes of paragraph 11 (1) (b), the proper address for a person is the address for service of the person in the proceeding, or, if the person has no address for service when the document is left or posted, the person's last know place of business or abode.

The new paragraph and subrule 11 (2) are intended to deal with the situation where a document is sent by the Court to a party's proper address but is returned on the basis that the party is no longer residing or working at, or otherwise associated with, that address. It is limited to documents to be served by the Court, as the other parties to a proceeding may be able to arrange personal service or take the necessary steps to obtain orders for substituted service.

Pleading prepared by legal representative

[5]       Order 11, rule 1B

[6]       Order 11, rule 1B

These amendments provide, inter alia, that the certificate by a legal representative which must accompany a pleading prepared by the legal representative may be incorporated in the pleading.

Discovery on notice

[7]       Order 15, subrule 2 (5)

This amendment makes it clear that the factors set out in subrule 2 (5) may be taken into account by a party when making a reasonable search for the purposes of subrule 2 (3).

Cases for security

[8]       Order 28, subrule 3 (1)

This amendment makes it clear that the list of factors in subrule 3 (1) is not intended to circumscribe the broad discretionary power of the Court to make an order for security of costs under section 56 of the Act.

Enforcement of orders - exercise of power by Registrars

[9]       Order 37, after rule 10

This amendment inserts a new Order 37 rule 11 which provides, inter alia, that for the purposes of paragraph 35A (1) (h) of the Federal Court of Australia Act, the Court or a Judge may direct a Registrar to exercise the power of the Court under section 23 of the Act and Order 37 rule 7 to issue a writ of execution.

National Health Act 1955

[10]       Order 55

This amendment omits Order 55 on the basis that it is no longer necessary in light of amendments to the National Health Act 1955 (Cth) made by the Health Legislation Amendment Act 1999 (No 3) (Cth).

Assessment procedures

[11]       Order 62, paragraph 46 (3) (d)

Order 62 subrule 46 (3) provides, inter alia, that a taxing officer may examine a bill of costs and make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. A party may file and serve a notice of objection to the estimate.

This amendment replaces Order 62 paragraph 46 (3) (d) with a new paragraph 46 (3) (d) which makes it clear that the Registrar must not accept a notice of objection to a costs estimate unless the party filing the notice pays into the Litigants' Fund the prescribed amount as security for the costs of any taxation of the bill.

The new paragraph 46 (3) (d) also increases to $1250 the amount that must be paid as security. This is the first increase since Order 62 rule 46 was inserted in 1991, and reflects the increase in solicitors' costs over the last 12 years.

[12]       Order 62, subrule 46 (6A)

This amendment replaces Order 62 subrule 46 (6A) with a new subrule 46 (6A). The new subrule 46 (6A) provides, inter alia, that if:

(a)       the party who filed the notice of objection withdraws the notice of objection before the taxation or provisional taxation is completed; or

(b)       21 days have passed after notification by the Registrar to the parties of a completed taxation or provisional taxation under this rule and no party has objected to the taxation or provisional taxation;

the Registrar, after having regard to the liability of any party to pay the costs of the taxation under this Rule, must:

(c)       determine how the amount paid pursuant to paragraph 46 (3) (d) as security for the costs of taxation is to be distributed or refunded to the parties; and

(d)       direct that payment be made out of Court accordingly.

Payment out of a Litigants' Fund

[13]       Order 63, subrule 4 (1)

This amendment replaces Order 63 subrule 4 (1) with a new subrule 4 (1) which provides, inter alia, that money may be paid out a Litigants' Fund:

(a)       in the case of money paid under Order 62 paragraph 46 (3) (d) - in accordance with an order of the Court or a Judge or with a direction by the Registrar under Order 62 paragraph 46 (6A) (d); or

(b)       in any other case - in accordance with an order of the Court or a Judge.

Amendments to the First Schedule

[14]       Schedule 1, Form 15B

This amendment replaces Form 15B, which is the certificate of legal representative prescribed by Order 11 subrule 1B (1), with a new Form 15B. The new Form 15B provides for a description of the pleading to which the certificate relates.

[15]       Schedule 1, Form 21

This amendment replaces Form 21, which is the Notice for Discovery prescribed by Order 15 rule 1, with a new Form 21. The new Form 21 includes an instruction as to the information to be inserted in the Notice prior to it being served on the Respondent.