Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1994 NO. 63

Statutory Rules 1994 No. 63

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 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

This provides the commencement date.

Rule 2

This provides that the Federal Court Rules are amended as set out in these amending Rules.

Rule 3

Australian Courts and Tribunals have been using video link equipment for the taking of evidence and hearing submissions for some years. The first transmission in a Federal Court proceeding was in 1991. Regular transmissions have taken place since then. Receipt of evidence by video link from other countries is already provided for in certain Federal Court rules (Orders 24 and 69). The Federal Court (the Court) has recently acquired its own video-conferencing equipment for Sydney, Melbourne and Perth and expects installation in the remaining capital cities by June 1994. It is anticipated that the demand for communication using the facilities within Australia will increase in the near future (see, for example, the Native Title Rules which follow). The Court also has courtrooms with telecommunication links enabling telephone contact between District Registries. In the light of these developments it is appropriate that the rules be amended to provide for the Court to give directions concerning the taking of evidence and the receipt of submissions by video-link or telephone and addressing the issue of costs.

Rule 4

Section 145 of the Native Title Act 1993 provides that the National Native Title Tribunal (the Tribunal) may refer a question of law to the Court for a decision. The Native Title Rules (seeOrder 75 rule 14 below) provide that such a reference is to be made under Order 50 of the Federal Court Rules, an existing provision covering the referral of questions of law under many other statutes.

Rule 5

Before amendment, Order 50 rule 3 required the Registrar to set the case stated, or the question of law referred, down for hearing and to notify each party of the details. As directions usually precede the fixing of a hearing date, this amendment will provide an opportunity for a Judge to make directions for the proper preparation of the stated case or the question of law for hearing, before the matter is set down for hearing. This will assist in the resolution of the matter as the parties should be able to proceed knowing the precise case each has to argue.

Rule 6

The rule provides for insertion of Order 75 - Native Title Rules. The rules provide for the practice and procedure for matters coming to the Court under the Native Title Act 1993. The rules are made with the intention that the existing Federal Court Rules will, as far as possible, provide the procedures for the Court to deal with any matters arising under the Native Title Act 1993. [see for example subrules 15(1), 15(2), 15(13) and rule 16].

Order 75 recognises the special features of proceedings arising under the Native Title Act 1993 and is consistent with section 82 of that Act, under which the Federal Court is to pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt.

Section 78 of the Native Title Act 1993 provides that the Native Title Registrar may give assistance to people when preparing applications for determination by the Tribunal. These rules are consistent with the approach of the Court's Registrar (the Registrar) providing assistance to unrepresented litigants, where practicable (see rule 4).

As some parties might not be accustomed to court practices, they may notify their address for service of documents by returning to the Court a tear off slip from forms of notification (see Forms 137 and 140). The Registrar is also required to notify parties of hearing dates [see for example subrule 15(12)]. Each of these measures is aimed at reducing costs to litigants and improving communication between the Court and the litigants.

Order 75 rule 1

This is the definition rule. The rules adopt, unless otherwise expressed, the interpretations set out in the Native Title Act 1993.

The definition of "Registrar" is narrower than in Order 1 rule 4 of the Federal Court Rules. Any documents filed under Order 75 will be filed with District Registries of the Court, to avoid the possibility of delay.

Order 75 rule 2

This rule relates to documents sent by the Tribunal under section 74 of the Native Title Act 1993 - that is, opposed applications for determinations of native title or of compensation. It provides for a prompt listing before the Court and notification to the parties. Allocation of a serial number and acknowledging receipt to the Native Title Registrar aims at effective control of the documents.

Listing the matter for directions keeps the Court in control of the pace and progress of the matter, consistent with the Court's caseflow management system.

Order 75 rule 3

This rule covers the case where a person not a party to the proceedings seeks leave to be joined in the proceedings. This is done by way of notice of motion, under Order 19 of the Federal Court Rules.

Order 75 rule 4

The Registrar's discretion to provide assistance to an unrepresented party under this rule is consistent with section 78 of the Native Title Act 1993 which provides for assistance to be given by the Native Title Registrar. The proviso that the operation of the rule be subject to the availability of funds is based on anticipation that the need for assistance of counsel might be beyond the present resources of the Court.

Order 75 rule 5

Under this rule, evidence which was before the Tribunal should be updated in any proceeding before the Court. The provision is necessary because events might have changed since the filing of the application in the Tribunal. The Court must be able to consider the most current available evidence to reach a determination.

Order 75 rule 6

Subrule (1) provides the Court with control of notice to the public of a hearing before it. It adopts the forms of notice envisaged by the Native Title Act 1993 which are prescribed in Native Title Determination No. 1, 1993, but gives the Court discretion to direct the parties to give any other notice it considers appropriate. This will give the Court flexibility, especially in regard to meeting the objectives prescribed in section 82 of the Native Title Act 1993.

Subrule (2) permits the Court to direct the Registrar to give notice. In some instances the Registrar might be in a better position to give expeditious notice than the applicant.

Order 75 rule 7

Section 83 of the Native Title Act 1993 provides that the Chief Justice may direct an assessor to assist the Court. Section 88 of the Native Title Act 1993 provides that the Court may direct the holding of a conference which must be conducted by the assessor who is assisting the Court. This rule provides ways in which the assessor might assist the Court.

Subrule (1) provides for the Court to direct an assessor to take evidence, to conduct a conference and to report on the evidence and the conference. The assessor is to communicate with the parties to arrange the taking of evidence. The subrule envisages that evidence may be taken in remote areas. Scope is given in paragraph (c) to secure the most appropriate way of recording the evidence to be taken by an assessor.

Subrules (2) and (3) relate to evidence being given at the instance of a party. A party may call a witness. A party may also request the assessor to seek the order of the Court for the issue of a summons to a witness or a summons for the production of documents. These provisions are necessary because the existing Federal Court Rules provide procedures for requiring attendance to give evidence and produce documents before the Court, but not before an assessor.

Subrules (4), (5) and (6) relate to the ways in which the assessor informs the Court of the evidence taken, and gives a summary of any conference. The Court may make orders about how the assessor's report is to be used in the proceedings. The assessor is required to certify the evidence and documents tendered as being genuine. The provisions of subsections 91(3) and (4) of the Native Title Act 1993 (special circumstances which may be held to exist) are taken into account in subrule (6): when the conference has occurred in private, the Court will not require a report in regard to private matters.

Subrule (7) ensures that proper notification is given to the public about evidence taken or conferences held by the assessor. This subrule envisages that assessors may take evidence or hold conferences other than in the Court's premises.

Order 75, rule 8

Section 37L(3) of the Federal Court of Australia Act 1976 requires the assessor to give notice to the Chief Justice and the parties if there is a conflict of interest. Under this rule the assessor must notify additional people: specifically, the Court (if constituted by a single Judge) or the presiding Judge if a Full Court is sitting on the matter. In the latter instance the presiding Judge would be the most senior of the Judges sitting on the Full Court, or where the Full Court is represented - say in a directions hearing by only one of the Judges, then that Judge. The provision promotes expedition and convenience.

Subrule (2), which provides for communication by facsimile message, is further recognition that the assessor might be working away from the Court's premises.

Order 75 rule 9

In providing that rules 1 to 8 apply to other applications under the Native Title Act 1993 the rules aim at simplicity and streamlining of procedures. When applications are being heard, which may involve revocation or variation of approved determinations of native title, or compensation, the existing rules will be followed.

Order 75 rule 10

Section 49 of the Native Title Act 1993 provides that there shall not be multiple compensation for essentially the same act and for the Court to take into account other compensation awarded by a State, a Territory or the Commonwealth. This rule provides for the filing of evidence by affidavit in order to assist the Court in this regard.

Order 75 rule 11

Subsection 13(2) of the Native Title Act 1993 requires the Court to make a current determination of native title where it is making a determination of compensation and an approved determination of native title has not previously been made. This rule provides that the Court may direct the filing of evidence by affidavit to assist it in making a determination under the section.

Order 75 rule 12

Subrule (1) provides for a formal statement by the Court, in Form 139, of the fact of registration of a determination. This provides for the procedure by which the Registrar will meet the obligation under subsection 166(3) of the Native Title Act 1993.

Subrule 2 provides that the date of receipt of the determination shall be the date of registration - it is important to provide for a date of registration because it is the commencing date for time which runs against a party who seeks to review the determination (see rule 13).

Subrule (3) provides for the Registrar returning Form 139, completed pursuant to subrule (1), and the determination to the Native Title Registrar. This will enable the Native Title Registrar to carry out the obligation, under subsection 166(4) of the Native Title Act 1993, to notify the parties of the registration. It is anticipated that the Native Title Registrar would make sufficient copies of Form 139 documents sent by the Registrar of the Court to meet those obligations. This form of practice has been agreed with the Tribunal.

Order 75 rule 13

This rule provides the procedure by which a person may apply for review of the registration of determination. The applicant must file the application in Form 140. The parties to the application for review are identified as "applicant" and "respondents" - see subrule (2). By virtue of subrule (4), rules 1 to 8 of Order 75 apply with any necessary adaptations to applications for review.

Subrule (5) provides for service by the applicant on the respondents of tile Form 140.

Subrule (3) provides that if a person seeks an extension of time in which to apply for review, Form 140 is the appropriate vehicle for that application. This is a streamlining provision, as the same form may be used for both an application for review and an application to extend time.

Order 75 rule 14

This rule provides that the procedure by which a question of law shall be referred by the Tribunal to the Court is that described in Order 50 for cases stated and referrals.

Order 75 rule 15

This rule deals with appeals to the Court from the Tribunal.

The rule is comprehensive in that it deals with all of the appeals [subsections 169(1) 169(2) and 169(3)] which may be made to the Court under the Native Title Act 1993. It provides that the one form of notice of appeal - Form 141 - is suitable for all appeals. By subrule (2) this form is also to be used for an application for extension of time to appeal. Subrule (3) provides that any application for extension be supported by an affidavit setting out the grounds for the extension.

Subrule (4) provides that a person bringing the appeal will be called an applicant (rather than an appellant) and other parties be respondents. This is consistent with the terminology applicable under Order 53 to appeals from the Administrative Appeals Tribunal, and is used because the Court is sitting in its original, rather than appellate, jurisdiction.

Subrule (5) prescribes 7 days as a time in which a notice of appeal may be served after filing. It is made subject to directions of the Court. The Court might make directions about the manner of service. It is also subject to such greater time as the Court allows; this might follow, for instance, from the need to allow more time than 7 days to carry out a particular manner of service.

Subrule (6) requires the Registrar to endorse details of the time, date and place of the directions hearing on the notice of appeal. It is intended that this be done upon the filing by the applicant of the notice of appeal and copies, in order that the other parties to the appeal might be notified. This is the normal procedure in appeals from other administrative tribunals.

Subrule (7) requires the Registrar to forward a copy of the notice of appeal and any supporting affidavit to the Native Title Registrar to assist the latter in maintaining the Register of Native Title Claims and Register of Native Title Determinations.

Subrule (8) provides that the Registrar will request from the Native Title Registrar all documents and things which were before the Tribunal and relevant to the appeal. It is envisaged that this request would be made at the time when the Registrar complies with subrule (7) and forwards copies of the notice of appeal and affidavits in support.

Under Subrule (9) the Registrar will acknowledge receipt of the material referred to in subrule (8), sent by the Native Title Registrar. The procedure aims at efficiency and effective control of documents by providing that a copy of the list of documents be the form of receipt.

Subrules (10) and (11) relate to directions hearing for a notice of appeal. Subrule (10) is consistent with the Court's way of operating as prescribed in section 82 of the Native Title Act 1993. It provides that the Court will determine whether any person other than the applicant and the respondent should be joined as parties to the appeal. This direction might arise from the need to ensure that all parties with an interest in the matter are given an opportunity to be heard. It would also permit the Court to take into account cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. Subrule (11) gives the Court a discretion to direct the filing of affidavits updating the evidence required by subsection 62(1) of the Native Title Act 1993.

Subrule (12) provides for the Registrar to notify the applicant and any other parties of the time, date and place of the hearing of the appeal. In applications to the Court other than under the Native Title Act 1993, the parties bear a greater responsibility in the procedures for notification of hearing dates. The departure from that requirement, by directing the Registrar to notify the parties, acknowledges that proceedings under the Native Title Act 1993 might involve a greater proportion of people who either represent themselves or are unfamiliar with Court practices generally.

Subrule (13) directs that the provisions of Order 53 (appeals from the Administrative Appeals Tribunal) of the Federal Court Rules shall apply to notices of appeal under section 169 of the Native Title Act 1993.

Order 75 rule 16

The rule provides that an application regarding compensation held in trust under the Native Title Act in regard to the paragraphs and subsections stated, should be made in Form 5 accompanied by an affidavit. The rule therefore adopts the procedures existing under the Federal Court Rules.

Order 75 rule 17

This rule provides that an applicant under rule 16 should inform the Court of any persons interested in the outcome by including them as respondents in the form of application.

Order 75 rule 18

This rule prescribes that the Court may make directions to ensure that any interested persons are heard, in regard to negotiated compensation. This will be essential for the Court in hearing applications and giving directions under section 52 of the Native Title Act 1993.

Order 75 rule 19

This rule relates to a claim under section 53 of the Native Title Act 1993 that compensation that is payable under the Native Title Act 1993 is not a payment on just terms (i.e. "just terms" within paragraph (xxxi) of the Constitution). The rule adopts Form 5 as the proper form of application, accompanied by affidavit. Rule 19 provides that such a claim "shall be commenced" by the Form 5. It is envisaged that where in current proceedings a "just terms" issue arises, it will not be necessary to file a Form 5 application in regard to it, because in that instance it would not be a "commencement" of such claim.

Order 75 rule 20

This rule provides that the Registrar shall notify the Native Title Registrar of any proceedings affecting a determination. This requirement is designed to assist the Native Title Registrar to meet the obligations under the Native Title Act 1993 to maintain a National Native Title Register and a Register of Native Title Claims. The Registrar's obligation under this rule is in addition to the Registrar's obligation under section 196 of the Native Title Act 1993, to notify the Native Title Registrar of the details of any decision or determination covering a claim made by the Court. The aim is to ensure that the Native Title Registrar is provided with relevant information as quickly as possible.

Order 75 rule 21

The operation of Order 75 ceases on the 1 March 1995. This will provide a time frame in which the Court can examine the operation of the rules and engage in consultation with the Law Council of Australia, the Aboriginal and Torres Strait Islander Commission and other interested groups. This will provide a means for determining how the rules for the practice and procedure relating to the Native Title Act 1993 might be improved.

Rule 7

The First Schedule is amended by adding the forms prescribed under Order 75 - the Native Title Rules - referred to above.

Rule 8

This rule amends the Third Schedule to the Federal Court Rules. The effect is to permit delegation under section 35A of the Federal Court of Australia Act to a Registrar of the power to hear applications to set aside statutory demands filed in the Federal Court pursuant to section 459G of the Corporations Law. The latter section came into operation on 23 June 1993 and since then there have been many applications filed in the Federal Court under the section. The Judges have determined that it will be an efficient allocation of resources to arrange for the delegation of this power to Registrars. Registrars have for many years now been delegated the power to hear applications to set aside bankruptcy notices under the Bankruptcy Act 1966.