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FEDERAL COURT RULES (AMENDMENT) 1993 NO. 40
EXPLANATORY STATEMENTStatutory Rules 1993 No. 40
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-five (35) 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 Rules of Court made under section 59 of the Act as if references in those sections of the Acts Interpretations Act 1901 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.
1. Commencement
This rule provides that these rules commence on 16 March 1993.
2. Amendment
This rule provides that the Federal Court Rules are to be amended by these rules.
3. Order 10 - Directions Hearing
This rule amends Order 10, rule 2 to specifically provide that the Court may make
directions in respect of fixing a date for trial,
4. Order 30 - Setting down
This rule introduces a new Order 30.
1. Interpretation
This rule defines "applicant", "respondent" and provides that references to a trial include interlocutory hearings, and that the rules apply to cross-claims.
2. Request to fix date for trial (Form 44).
This rule provides that a party may request that the Registrar fix a date for trial if any step has not been taken within the time directed by the Court. The request is made by filing a 'Request to fix date for Trial" in new Form 44 in the First Schedule. The request must be served on all parties within three days of its being filed.
3. Fixing date for trial.
This rule provides that where the proceeding is ready for trial and a date fixed the Registrar must notify all parties of the date and place of the trial as soon as possible.
4. Notice of date for trial and payment of hearing fees (Form 44A).
This rule provides that within seven days of notification of the date for trial, the applicant (or other party requesting the trial be fixed) must pay any hearing fee required by Regulation 2A of Federal Court Regulations and serve a notice in accordance with Form 44A in the First Schedule. Form 44A is a "Notice of date for Trial" and notifies all those served of the details of the trial and whether any hearing fee has been paid.
5. Want of prosecution
This rule provides that if a party has not done anything required by the Rules or has not prosecuted a proceeding with due diligence the Court may:
(a) if the defaulting party is the applicant, order that the proceeding be stayed or dismissed; or
(b) if the defaulting party is the respondent, order that judgment be entered or an order made against the respondent;
(c) make any other order or directions thought to be just.
These orders may be made either after a party not in default files a notice of motion, or of the Court's own motion if the Registrar gives the defaulting party notice of such default.
6. Place of trial.
This rule provides that a trial is to be held in the proper place which is defined in Order 1, rule 4 as the place that which the proceeding was commenced or to which the proceeding has been transferred. In addition, the Court may direct that a trial be heard in a more convenient place being other than the proper place.
7. Vacating date for trial.
This rule provides that a trial date may only be vacated by order of the Court.
5. Order 52, rule 29 - Setting down appeal
This rule provides that within 7 days of being notified of the date for hearing of an appeal, an appellant must pay any hearing fee and file and serve a "Notice of date for Trial" using Form 44A in the First Schedule. If the appellant does not follow these steps the Registrar is to advise the respondent and to notify the appellant that the Court may dismiss the appeal or make other orders as appropriate.
6. New Order 53A - Appeals from Immigration Review Tribunal
This rule inserts a new Order 53A - Appeals from Immigration Review Tribunal.
1. Interpretation
This rule clarifies, for purposes of Order 53A, the definitions of "Act", "appropriate Registry', "Registrar of the Tribunal", and "Tribunal".
2. Form of and filing of notice of appeal - Form 55F
A new Form 55F is prescribed as the notice of appeal from the Immigration Review Tribunal. A notice of appeal should be filed in the District Registry in the State or Territory in which the Tribunal heard the matter, unless the Court nominates another Registry as appropriate for that appeal.
3. Notice of Appeal
This rule deals with the contents of a notice of appeal and covers the title of the proceedings, the parties to the appeal and requires the body of the notice of appeal to state the decision appealed from, the date of the decision, the questions of law raised, orders sought and the grounds being relied upon for those orders. The rule also provides that a notice of appeal may be amended and may raise further questions of law if the Court gives leave.
4. Appearance -
This rule provides that the notice of appeal is to state that the respondent must enter an appearance in the Registry before taking steps in the proceeding.
5. Parties
This rule deals with possible parties to an appeal. It defines the applicant and respondent in these proceedings and provides that the Court may allow a variation of the parties to the appeal.
6. Service of notice of appeal.
This rule provides that the notice of appeal must be served an all parties and the Registrar of the Immigration Review Tribunal within 7 days of being filed.
7. Security for costs
This rule provides that security for costs may be ordered by the Court.
8. Stay
This rule provides that a notice of motion may be filed seeking a stay of the subject decision of the Tribunal.
9. Documents to be provided
This rule provides that the decision, reasons, all documents before the Tribunal, any transcript, are to be forwarded to the Court Registry within 21 days after service of the notice of appeal on the Registrar of Tribunal.
10. Application of Order 53
This rule provides that a number of the existing rules in Order 53 (Appeals from the Administrative Appeals Tribunal) can apply, suitably 'amended, to appeals from decisions of the Immigration Review Tribunal. These existing rules relate to:
• Discontinuance of appeal
• Amendment by Supplementary Notice.
• Notices of Contention.
• Directions hearing.
• General.
• Preparation of appeal papers.
• Written submissions.
• Directions by Registrar.
• Setting down appeal.
• Time for entry of appeal.
• Time, want of prosecution.
7. Order 54B, Division 7 (Olympic Protection Insignia Act)
This rule amends a misdescription of Olympic Insignia Protection Act 1987.
8. Order 54B, rule 28 (Application of Division)
This rule amends an incorrect inversion of the words "Insignia Protection".
9. Order 54B, rule 30 (Particulars of grounds for rectification or of invalidity)
This rule amends an incorrect inversion of the words "Insignia Protection".
10. First Schedule
1. Forms 44, 44A
This rule substitutes a new Form 44 - "Request to fix date for Trial" and adds an additional Form 44A "Notice of Date for Trial".
2. Forms 55F
This rule inserts a new Form 55F as the "Notice of appeal from decisions of the Immigration Review Tribunal".