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FEDERAL COURT AMENDMENT RULES 2005 (NO. 2) (SLI NO 291 OF 2005)
EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 291
Federal Court Amendment Rules 2005 (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 subsection 59 (4) of the Federal Court of Australia Act 1976, the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:
(a) as if a reference to a legislative instrument were a reference to a rule of court; and
(b) as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 59A of the Federal Court of Australia Act 1976.
The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.
The Judges have agreed to amend the Federal Court Rules to:
· amend Order 46 rule 7B to streamline the processes for asking a Registrar to refer a matter to a Judge and for seeking a review of a Registrar’s decision, with amendments to forms 47 and 152 to include a note referring parties to the new rule;
· amend Order 52 to prescribe a time in which a notice of contention under rule 22 must be filed and to omit subrule 28 (4);
· amend Order 52B rule 5 which deals with the documents to be filed and served by the Commissioner for Taxation in an appeal relating to an appealable objection decisions other than where the appeal involves a private ruling;
· amend various rules and forms to prescribe the form of certificate to be used by parties and lawyers for the purpose of complying with sections 486D and 486I of the Migration Act 1958 (Cth);
· amend Order 53 to omit subrule 16 (4);
· amend Order 63 subparagraph 4 (1) (a) (ii) to reflect an earlier amendment to Order 62 rule 46;
· amend Order 70 and related forms to reflect the changes to the Aboriginal and Torres Strait Islander Act 2005 (Cth);
· amend Order 78 to provide for a new rule 41AA dealing with short titles for certain native title proceedings;
· amend various rules and forms to ensure consistency with the Federal Court of Australia Regulations 2004.
The amendments have been the subject of consultation with the Law Council of Australia.
Details of the Rules are in Attachment 1.
The Rules commence on the day after they are registered.
Federal Court Amendment Rules 2005 (No 2)
This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2005 (No 2).
This rule provides that these Rules commence on the day after they are registered.
Schedule 1 amends the Federal Court Rules.
Filing and lodging documents
[1] Order 1, subrule 5A (11), note
This amendment replaces the note at the end of Order 1 subrule 5A (11) and is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004. The effect of the amendment is to refer a practitioner to Part 2 of the Federal Court of Australia Regulations 2004 for information on fees for filing documents.
Certificate of merits of application commencing migration litigation
[2] Order 4, after rule 1
This amendment inserts a new subrule 1A after Order 4 rule 1. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, inserts a new section 486I in the Migration Act 1958 that provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A new section 486K of the Migration Act defines ‘migration litigation’ as a court proceeding in relation to a migration decision – this will include applications for leave to appeal, applications for extension of time to appeal and notices of appeal.
The new Order 4 rule 1A provides that a lawyer must not file an application commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.
Notice of date for trial
[3] Order 30, rule 4
This amendment replaces Order 30 rule 4, which deals with the notice of date for trial. The amendment is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004.
The effect of this amendment is to move the reference to the payment of fees under the Regulations that was in the previous version of paragraph 4 (a) to a note appearing below the new rule 4.
First page of a document
[4] Order 41, subrule 1(2), at the foot
This amendment inserts a note at the foot of Order 41 subrule 1 (2), which deals with the title of proceedings. The note refers to the new Order 78 rule 41A (see item [27] below) which allows certain documents in proceedings under the Native Title Act 1993 to be headed with a short title that does not mention the parties.
Registrar’s exercise of power
[5] Order 46, rule 7B
This amendment substitutes Order 46 rule 7B with a new Order 46 rule 7B. The amendment will streamline the processes for asking a Registrar to refer a matter to a Judge and for seeking a review of a Registrar’s decision when exercising a power referred to in subsection 35 (1) of the Act.
The new subrule 7B (1) provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar must be made by motion on notice within 21 days after the day on which the power was exercised.
The new subrule 7B (2) provides that an application under subsection 35A (7) of the Act must be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 35A (1). Subsection 35A (7) provides, inter alia, that where an application for the exercise of a power referred to in subsection 35 (1) is being heard by a Registrar, an application may be made to the Registrar to arrange for the first-mentioned application to be determined by the Court.
The new subrule 7B (3) provides that, in this rule, ‘Registrar’ has the same meaning given by subsection 35A (8) of the Act.
Certificate of merits of appeal commencing migration litigation
[6] Order 52, after rule 12
This amendment inserts a new Order 52 rule 12A. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, inserts a new section 486I in the Migration Act 1958 that provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A new section 486K of the Migration Act defines ‘migration litigation’ as a court proceeding in relation to a migration decision – this includes applications for leave to appeal, applications for extension of time to appeal and notices of appeal.
The new Order 52 rule 12A provides that a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.
Cross-appeal
[7] Order 52, paragraph 22 (3) (a)
This amendment replaces paragraph 22 (3) (a) with new paragraphs 22 (3) (a) and (aa). The effect of the amendment is to provide that a notice of the respondent’s contention must be filed within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes.
Preparation of appeal papers
[8] Order 52, subrule 28 (4)
This amendment omits Order 52 subrule 28 (4), which provides that, in relation to the documents forming the appeal papers, the date and a short description of the nature of each document shall precede it, but formal headings shall not be printed or copied, and jurats, formal identification of exhibits and the like shall be omitted. The subrule is no longer relevant.
Setting down appeal
[9] Order 52, paragraph 29 (5) (a)
This amendment replaces Order 52 paragraph 29 (5) (a) with a new paragraph 29 (5) (a). The amendment is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004.
The effect of this amendment is to omit the words relating to the payment of fees under regulation 2AA of the Federal Court of Australia Regulations 1978.
[10] Order 52, subrule 29 (5), at the foot
This amendment inserts a note at the foot of Order 52 subrule 29 (5). The note refers to the setting-down fees in Part 2 of the Federal Court of Australia Regulations 2004. The amendment is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004.
Documents to be filed and served by the Commissioner – matters other than private rulings
[11] Order 52B, rule 5
This amendment relaces Order 52B rule 5 with a new rule 5.
Rule 5 deals with the documents to be filed and served by the Commissioner of Taxation in an appeal concerning an appealable objection decision other than where the appeal relates to a private ruling.
Pursuant to paragraph 5 (2) (a), the Commissioner must, within 28 days after being served with a sealed copy of the application initiating the appeal, file:
· a copy of the notice of the appealable objection decision concerned; and
· a copy of the taxation objection concerned; and
· any return or other document in the Commissioner’s possession or under the Commissioner’s control to which the taxation objection relates that is relevant to the hearing of the matter; and
· an appeal statement or an appeal affidavit.
Pursuant to paragraph 5 (2) (b), the Commissioner must within that 28 days also serve on the applicant a copy of the appeal statement or the appeal affidavit, as the case may be, and a list of the other documents mentioned in paragraph 5 (2) (a) that the Commissioner has filed.
Subrule 5 (3) defines “appeal affidavit” as an affidavit setting out the grounds for seeking an order at the first directions hearing dispensing with filing an appeal statement, and setting out, or annexing a minute of, proposed directions with respect to the conduct of the appeal. Subrule 5 (3) defines “appeal statement” as a statement outlining succinctly the Commissioner’s contentions and the facts and issues in the appeal as the Commissioner perceives them.
The main change from the old rule 5 has been to allow the Commissioner the option to file and serve an appeal affidavit in cases where the Commissioner does not consider it necessary or appropriate to file an appeal statement (previously referred to as a “statement of facts, issues and contentions”).
Administrative Appeals Tribunal Act 1975
[12] Order 53, heading
This amendment alters the formatting of the heading of Order 53, making it italicised.
Certification of merits of appeal from a migration decision
[13] Order 53, after rule 2
This amendment inserts a new Order 53 rule 2A. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, inserts a new section 486I in the Migration Act 1958 that provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A new section 486K of the Migration Act defines ‘migration litigation’ as a court proceeding in relation to a migration decision – this includes applications for leave to appeal, applications for extension of time to appeal and notices of appeal.
The new Order 53 rule 2A provides that a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.
Preparation of appeal papers
[14] Order 53, subrule 16 (4)
This amendment omits Order 53 subrule 16 (4), which provides that, in relation to the documents forming the appeal papers, the date and a short description of the nature of each document shall precede it, but formal headings shall not be printed or copied, and jurats, formal identification of exhibits and the like shall be omitted. The subrule is no longer relevant.
Setting down appeal
[15] Order 53, paragraph 18 (2) (a)
This amendment replaces Order 53 paragraph 18 (2) (a) with a new subrule 18 (2) (a). The effect of this amendment is to omit the words relating to the payment of fees under regulation 2AA of the Federal Court of Australia Regulations 1978. The amendment is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004.
[16] Order 53, subrule 18 (2), at the foot
This amendment inserts a note at the foot of rule 29 (5). The note refers to the setting-down fees in Part 2 of the Federal Court of Australia Regulations 2004. The amendment is consequential upon the repeal of the Federal Court of Australia Regulations 1978 and the introduction of the Federal Court of Australia Regulations 2004.
Applications in relation to migration decisions under Migration Act 1958
[17] Order 54B, heading
This amendment replaces the heading of Order 54B. The effect of the amendment is to omit the reference to the Judiciary Act 1903. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005.
[18] Order 54B, rule 1, including the note
This amendment replaces Order 54B rule 1 with a new rule 1. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, amends the jurisdiction of the Court in relation to the review of migration decisions under the Migration Act 1958.
The new rule 1 provides that Order 54 applies to the making of an application in relation to a migration decision (within the meaning of the Migration Act 1958) in relation to which the Court has jurisdiction under paragraph 476A (1) (a), (b) or (c) of that Act.
[19] Order 54B, after subrule 2 (1)
This amendment inserts new subrules 2 (1A) and (1B) after subrule 2 (1).
Subrule 2 (1A) provides that a lawyer must not file an application unless the application includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer. The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, inserts a new section 486I in the Migration Act 1958 that provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A new section 486K of the Migration Act defines ‘migration litigation’ as a court proceeding in relation to a migration decision – this includes applications for leave to appeal, applications for extension of time to appeal and notices of appeal.
Subrule 2 (1B) provides that an application in relation to a tribunal decision (within the meaning of section 486D of the Migration Act 1958) must include a disclosure under section 486D of that Act. Section 486D provides that a person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
Application for extension of time (Migration Act 1958, s 477A)
[20] Order 54B, after rule 7
This amendment inserts a new Order 54B rule 8 which provides that a lawyer must not file an application under subsection 477A (2) of the Act unless the application includes, or is accompanied by, a certificate under section 486I, in accordance with Form 56B signed by the lawyer.
The amendment is consequential upon the enactment of the Migration Litigation Reform Act 2005 which, among other changes, inserts a new section 486I in the Migration Act 1958 that provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A new section 486K of the Migration Act defines ‘migration litigation’ as a court proceeding in relation to a migration decision – this includes applications for leave to appeal, applications for extension of time to appeal and notices of appeal.
Payment out of a Litigants Fund
[21] Order 63, subparagraph 4 (1) (a) (ii)
This amendment replaces Order 63 subparagraph 4 (1) (a) (ii) with a new subparagraph 4 (1) (a) (ii).
The effect of the amendment is to replace the previous reference to “paragraph 46 (6A) (d)” with a reference to “subparagraph 46 (6A) (c) (ii) or paragraph 46 (6B) (b)”. The amendment is consequential upon changes to Order 62 rule 46 in relation to the release of money paid into Court pursuant to Order 62 paragraph 46 (3) (d).
Aboriginal and Torres Strait Islander Act
[22] Order 70, heading
This amendment replaces the existing heading with “Aboriginal and Torres Strait Islander Act 2005”. The amendment is consequential upon the enactment of the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 which, among other changes, amended the title of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) to the Aboriginal and Torres Strait Islander Act 2005 (Cth).
[23] Order 70, rule 1
This amendment replaces Order 70 rule 1 with a new rule 1. The effect of the amendment is to update the definitions used in the Order to reflect the changes to the Aboriginal and Torres Strait Islander Act 2005 as amended by the Aboriginal and Torres Strait Islander Commission Amendment Act 2005.
[24] Order 70, subrule 2 (1)
This amendment replaces the expression “Schedule 4 of the Act” in subrule 2 (1) with “Schedule 4 to the ATSI Act”.
[25] Order 70, subrule 2 (5)
This amendment replaces the expression “Schedule 4 of the Act” in subrule 2 (5) with “Schedule 4 to the ATSI Act”.
[26] Order 70, rule 3
This amendment replaces the Order 70 rule 3 with a new rule 3.
The effect of this amendment is to revise the rule to reflect the changes to the Aboriginal and Torres Strait Islander Act 2005 as amended by the Aboriginal and Torres Strait Islander Commission Amendment Act 2005. In particular, the references to ‘Regional Council’ are replaced by references to ‘Torres Strait Regional Authority’.
Native Title Proceedings – Short title of proceeding
[27] Order 78, after rule 41
This amendment inserts a new rule 41A.
Subrule 41A (1) provides that the rule applies to a document in a proceeding under the Native Title Act 1993 that is not an originating process, a document to be served on a non-party or a final order.
Subrule 41A (2) provides that a document may be headed in accordance with Form 2 using a short title specified by the Registrar.
Subrule 41A (3) provides that, despite Order 41 subrule 1 (2), the short title need not refer to the parties to the proceedings.
Schedule 1 – Forms
[28] Schedule 1, Form 44A
The amendment replaces Form 44A, which is the prescribed form of ‘Notice of date for trial’, with a new Form 44A.
The effect of the amendment is to make a minor change to the title of the signatory and to omit the note referring to setting down fees under regulation 2AA of the Federal Court of Australia Regulations.
[29] Schedule 1, Form 47
Form 47 is the prescribed form of ‘Order’.
This amendment omits the words “Version 1” and inserts a note referring to subsection 35A (5) of the Federal Court of Australia Act 1976 which provides that a party to proceedings in which a Registrar has exercised powers under subsection 35A (1) of the Act may apply to the Court to review that exercise of power. The note also refers to Order 46 subrule 7B (1), which provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) must be made by motion on notice within 21 days after the day on which the power was exercised. The requirement that an application be made by motion on notice may be waived upon application by a judge.
[30] Schedule 1, Form 56A
This amendment replaces Form 56A, which was the prescribed form for an ‘Application under Judiciary Act 1903 (in relation to certain privative clause decisions under the Migration Act 1958)’, with a new Form 56A that is consistent with the changes to the Migration Act 1958 made by the Migration Litigation Reform Act 2005 and with the changes to the Rules noted in items [17], [18] and [19] above.
This amendment also inserts a new Form 56B, being the prescribed form of certificate under section 486I of the Migration Act 1958 referred to in items [2], [6], [13], [19] and [20] above.
[31] Schedule 1, Forms 73 and 74
This amendment replaces Forms 73 and 74 with new Forms 73 and 74 that reflect the changes made to the Aboriginal and Torres Strait Islander Commission Act 1989 by the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 and the changes referred to it items [22] to [26] above.
Sequestration Order
[32] Schedule 1, Form 152
Form 152 is the prescribed form of ‘Sequestration Order’.
This amendment omits the words “Version 2” and inserts a note referring to subsection 35A (5) of the Federal Court of Australia Act 1976 which provides that a party to proceedings in which a Registrar has exercised powers under subsection 35A (1) of the Act may apply to the Court to review that exercise of power. The note also refers to Order 46 subrule 7B (1), which provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) must be made by motion on notice within 21 days after the day on which the power was exercised. The requirement that an application be made by motion on notice may be waived upon application by a judge.