Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1991 NO. 461

Statutory Rules 1991 No. 461

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

AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are thirty-four (34) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed in the Court, including practice and procedure to be followed in Registries of the Court, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Section 59 of the Act also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under that section as if references in those sections of that Act to regulations were references to Rules of Court.

The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then.

Rule 1

Provides a commencement date of 1 January 1992.

Rule 2

Provides for the amendment of the Rules as set out.

Rule 3

Inserts definitions for the New Order referred to in Rule 4.

Rule 4

Inserts a new Order 72 - Mediation and Arbitration.

Division 1-Preliminary

Subrule 1

Provides that the Court or a Judge may refer proceedings or part of proceedings to a mediator or arbitrator with the consent of the parties.

Subrule 2

Provides that Division 2 of this Order (Mediation) will not apply where a Judge undertakes the mediation and that orders or directions made under Order 10, rule 1, which relates to directions for the conduct of a matter, are not affected.

Subrule 3

Provides for a Judge undertaking a mediation to give any directions that the Judge thinks fit.

Subrule 4

Provides for proceedings to be adjourned until the mediator or arbitrator reports back to the Court, unless the Court or a Judge considers that proceedings need not be adjourned and for the fixing of a date for the mediator or arbitrator to report on progress.

Subrule 5

Provides for the termination a mediation or arbitration; termination of the appointment of a mediator or arbitrator and the appointment of a replacement mediator or arbitrator. Where a new arbitrator is appointed the Court may order that the new arbitrator treat any evidence, record or document or anything else produced or done in the course of the earlier proceedings as if it were done by or before the new arbitrator.

Division 2-Mediation

Subrule 6

Provides for the nomination of a mediator by the Registrar and written. notice to the parties of the details of the name, date and address of the place of the mediation and any documents to be provided to the mediator. Dates and times are to be fixed after consultation with the parties.

Subrule 7

Provides that a mediation must be conducted according to the directions of the Court or a Judge, that the mediation allow for the parties to communicate effectively with each other and any agreement that is reached be included in a consent order under Order 35, rule 10. If only part of proceedings is the subject of mediation, the mediator may report back in terms agreed between the parties.

Subrule 8

Provides for the termination of a mediation by the mediator or by a party giving notice to the Court, the mediator and each party and for adjournment of the proceedings or part of the proceedings back to the Court or a Judge.

Division 3-Arbitration

Subrule 9

Provides for the appointment of a particular person as arbitrator with the consent of the parties and the arbitrator's written consent. The parties may ask the Court or a Judge to make orders by consent regarding: conduct of the arbitration, completion time, and manner of payment of expenses, and the parties may make a request as to the way in which the arbitrator's findings are to be reported back to the Court.

Subrule 10

Provides that any party may withdraw from the arbitration by serving notice on the Court, the arbitrator and the other party and the Court or a Judge may make an appropriate costs order where the arbitration is terminated.

Division 4-Miscellaneous

Subrule 11

Provides a cessation date of 1 January 1993 so that consultations may proceed with the profession and other interested parties on the most appropriate ways of utilising the new legislation.