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FEDERAL COURT AMENDMENT RULES 2008 (NO. 1) (SLI NO 159 OF 2008)
EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 159
Federal Court Amendment Rules 2008 (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 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 by:
· amending Order 21 subrule 1 (2) to allow applications by a person against whom a vexatious proceeding has been instituted or conducted and by a person who has sufficient interest, and to remove the reference to the Solicitor-General;
· inserting a new subrule Order 23 subrule 11 (6) to set out the cost consequences of the situation where an offer is made by the respondent and not accepted by the applicant and the judgment on the claim is in favour of the respondent, or is more favourable to the respondent than the terms of the offer;
· inserting a new rule Order 41 rule 7A to provide for the electronic affixing of the signature of the Registrar appointed under section 18C of the Act to documents in a proceeding;
· inserting a new Order 71A to provide for the conduct of proceedings under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;
· amending Order 1 rule 5AC and forms 173 and 174 in light of the Court’s new eLodgment system.
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 as follows:
(a) Rules 1 to 3 and Schedule 1 on the day after the Rules are registered; and
(b) Schedule 2 on 1 September 2008.
Federal Court Amendment Rules 2008 (No. 1)
This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2008 (No. 1).
This rule provides that these Rules commence as follows:
· Rules 1 to 3 and Schedule 1 – on the day after they are registered; and
· Schedule 2 – on 1 September 2008.
Schedules 1 and 2 amend the Federal Court Rules.
[1] Order 21, subrule 1 (2)
Order 21 subrule 1 (1) provides that the Court may order that a person who has habitually, persistently and without reasonable grounds instituted other vexatious proceedings may not continue any proceeding or institute a new proceeding without leave of the Court. Order 21 subrule 1 (2) provides that an order under subrule 1 (1) may be made:
(a) on the Court’s own motion; or
(b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c) on the application of the Registrar.
This amendment substitutes a new subrule 1 (2). The effect of this substitution is to:
1. allow an application for an order under the Order 21 subrule 1 (1) to be made by:
· a person against whom the person referred to in subrule 1 (1) has instituted or conducted vexatious proceedings; and
· a person who has sufficient interest in the matter.
2. omit the reference to the Solicitor-General on the basis that, as the Solicitor-General may only act on behalf of the Government, there is no need for him or her to have separate standing to apply for an order under Order 21 subrule 1 (1).
[2] Order 23, after subrule 11 (5)
Order 23 deals with the offer of compromise and payment into the Court.
Order 23 rule 11 provides for the apportionment of costs where an offer of compromise is made in a proceeding.
This amendment inserts a new subrule 11 (6) to provide for the situation where an offer is made by the respondent and not accepted by the applicant and the judgment on the claim is in favour of the respondent, or more favourable to the respondent, than the terms of the offer. Under the subrule, unless the Court orders otherwise, the respondent is entitled to an order that the applicant pay the respondent’s costs in respect of the claim incurred:
· up to 11am on the day after the day the offer was made, taxed on a party and party basis; and
· after that time, taxed on an indemnity basis.
[3] Order 41, after rule 7
This amendment inserts a new rule 7A which provides that a requirement under the Rules that a document (other than an affidavit) in a proceeding must be signed by a Registrar is satisfied if a facsimile of the signature of the Registrar appointed under s18C of the Act is affixed on the document by electronic or other means by, or at the direction of, an officer acting with the authority of that Registrar.
The new rule will facilitate the electronic processing of orders and other documents that must be signed by a Registrar.
[4] After Order 71
This amendment inserts a new Order 71A to provide for proceedings under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
Order 71 rule 1 provides that proceedings under this Act are to be conducted in accordance with the Federal Court (Corporations) Rules 2000 as far as they are capable of application to the proceedings and subject to such variations as the nature of the case requires.
The amendments in this Schedule relate to the rules and forms concerning the electronic lodgement and processing of court documents.
[1] Order 1, subparagraph 5AC (2) (a) (i)
Order 1 rule 5AC provides for the filing and lodging of documents by electronic means.
This amendment inserts into subparagraph 5AC (2) (a) (i) a reference to the Commonwealth Courts Portal website. It reflects the new arrangement whereby the Court’s eLodgment system can be accessed via the Court’s website and the new Commonwealth Courts Portal.
[2] Order 1, paragraph 5AC (2) (d)
[3] Order 1, paragraph 5AC (2) (e)
Order 1 paragraph 5AC (2) (e) provides that a document sent by electronic communication must be accompanied by a cover sheet stating details of the sender, the Registry in which the document is to be filed and the processing of the document that is required.
This amendment omits paragraph 5AC (2) (e) as the information it required will be collected as part of the eLodgment system.
[4] Order 1, paragraph 5AC (4) (a)
This amendment inserts into paragraph 5AC (4) (a) a reference to the Commonwealth Courts Portal website. It reflects the new arrangement whereby the Court’s eLodgment system can be accessed via the Court’s website and the new Commonwealth Courts Portal.
[5] Order 1, subrule 5AC (6)
Subrule 5AC (6) provides that a person lodging a document electronically must either lodge, or request the Registry to make, any additional copies of the document that are required.
This amendment omits subrule 5AC (6) as there is no longer any need for a party to provide multiple copies of a document lodged electronically or to ask the registry to make multiple copies. Documents lodged electronically that are accepted for filing are returned to the relevant party electronically.
[6] Schedule 1, forms 173 and 174
Forms 173 and174 are the prescribed forms for Notice of Filing and Hearing and Notice of Filing respectively. These notices are prepared by the Registry and returned to the filing party as part of the stamped copy of a document once it has have been accepted for filing.
This amendment replaces forms 173 and 174 with new forms 173 and 174. The new forms make the expressions used in the forms consistent with those used in the Court’s case management system, Casetrack, and the eLodgment system.
The new form 173 also has two new fields that were not in the previous form. One field includes a description of the type of document lodged (for example, application, affidavit etc) and the other field includes the reason for listing (being the same information that appears in the court lists published on the Court’s web page and in the major papers).
The new form 174 relocates and renames the field for the description of the type of document lodged.