Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1995 NO. 449

Statutory Rules 1995 No. 449

AMENDMENT TO 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 forty-six (46) including the Chief Justice), or a majority of them, to make Rules of Court not inconsistent with the Act, providing for the practice and procedure to be followed in the Court and in Registries of the Court, and in relation to all matters incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Under sub-section 59(4) of the Federal Court Act, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections, were references to Rules of Court.

The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.

Rule 1 - Commencement

This rule provides for the date of commencement.

Rule 2 - Amendment

This rule provides that the Federal Court Rules are amended as set out in the following rules.

Rule 3

Order 1 Rule 4 - Interpretation

This rule amends the definitions of "document", "examination" and "examiner" to delete references to the Evidence Act 1905 and replace them with the appropriate references in the Evidence Act 1995 and the Foreign Evidence Act 1994.

Rule 4

Order 7 Rule 6 - Address for Service

This rule makes it clear that an address for service at a solicitor's office must be at that of a solicitor or the solicitor's agent within the District for the Registry where the originating process is fled.

Rule 5

Order 9 Rule 4 - Notice of Appearance

This rule confirms that a Notice of Appearance must show an address for service in the District in which the originating process was filed as required by Order 7 Rule 6.

Rule 6

Order 23 Rule 13 - Payment of Money out of Court

This rule introduces the expression "Court or a Judge" to ensure that an order for payment of monies out of Court may be made in Court or in Chambers".

Rule 7

Order 24 - Evidence taken in Australia or Abroad

This rule changes the heading of this Order of the Rules to delete the reference to the Evidence Act 1905.

Rule 8

Order 24 Rule 2 - Letter of Request

This rule again removes reference to the Evidence Act 1905.

Rule 9

Order 24 Rule 2A - Procedure where orders made.

This rule omits reference to the Evidence Act 1905, an Act which was repealed in early 1995.

Rule 10

Order 24 Rule 3 - Document for Examiner

This rule again omits reference to the Evidence Act 1905.

Rule 11

Order 27 Rule 5 - Banker's Books

This rule is amended to omit reference to provisions of a State Evidence Act and apply the Commonwealth Evidence Act 1995. It provides the production of a Banker's Book can he replaced with relevant entries in accordance with the methods set out in the new Evidence Act 1995.

Rule 12

Order 33 Rule 4 - Depositions

This rule replaces the reference to the Evidence Act 1905 with a reference to the Foreign Act 1994.

Rule 13

Order 35 Rule 8 - Interest

This rule updates the interest applicable on amounts unpaid after judgment has been entered. The ram has gone from 10% to 12%.

Rule 14

Order 53B - Appeals from the Superannuation Complaints Tribunal

This rule introduces a new Order 53B - Appeals from the Superannuation Complaints Tribunal. It provides for the filing of a Notice of Appeal in accordance with an amended

Form 55A.

It provides that a Notice of Appeal must he served on the Tribunal and all other parties within 7 days of filing. It also provides that any application for an extension of time to file an appeal must be made using a Form 55B to the Rules.

Rule 15

Order 58 - Intellectual Property Rule 1 - Interpretation

This rule adds words to the definition of "Commissioner" to provide that different people may occupy the offices of Commissioner of Patents and Registrar under the Designs Act. Trade Marks Act, Olympic Indicia Protection Act. Previously these offices had been performed by the same officer. A recent legislative amendment set up a separate office for the Registrar of Trade Marks.

Rule 16

Order 58 Rule 4 - Form and Filing a Notice of Appeal

This rule provides that a Notice of Appeal filed under Order 58 - Intellectual Property must be served on the Commissioner (as defined) or Secretary and all other parties to the appeal within five days of the filing of the Notice of the Appeal. This had previously been implied but not specifically stated.

Rule 17

Order 59 Rule 1 - Appeals from Determinations of Australian Competition Tribunal

This rule omits reference to the Trade Practices Tribunal and substitutes the Australian Competition Tribunal.

Rule 18

Order 59 Rule 3 - Inquiry by Court

This rule omits reference to the Trade Practices Tribunal and substitutes the Australian Competition tribunal.

Rule 19

Order 63 - Moneys Paid Into Court

This rule revises Order 63 - Administration of money paid into Court and deals with the Court's "Litigant's Fund". The Litigants Funds forms the account into which any money paid into Court is held.

Order 63 has been in place for many years and the references to the Commonwealth Trading bank and the Attorney-General's Department needed updating.

The Order has been revised to make these drafting amendments and to vary the requirement that the account to, be held with the Commonwealth Bank of Australia and replace it with a provision that the account may be held in a bank approved by the Registrar of the Court.

Rule 20

Order 65 - Life Insurance Act

This rule also replaces references to the Life Insurance Act with the new 1995 Act.

Rule 21

Order 65 Rule 1 - Commencement of Proceedings

This rule also replaces references to the Life Insurance Act with the new 1995 Act.

Rule 22

Order 65 Rule 2 - Payment Into Court This rule also replaces references to the Life Insurance Act with the new 1995 Act.

Rule 23

Order 65 Rule 3 - Judicial Management of Winding Up This rule replaces references to the Life Insurance Act 1945 with the provisions of the 1995 Act.

Rule 24

Order 71 Rule 36A - Form of Affidavit in Support of Statutory Demand

This amendment provides that the rule will cease to have affect in relation to statutory demands served after 31 March 1996. Thereafter Rule 36 AB will apply.

Rule 25

Order 71 Rule 36AB - Form of Affidavit in support of Statutory Demand Section 459E.

This rule is in addition to rule 36A of the Corporations Rules and is intended to provide some consistency with the provisions of the NSW Supreme Court Rules. Rule 36AB will commence from 1 April 1996 and sets out the material to be included in an affidavit that accompanies a Statutory Demand that is not based on a judgment debt. It further provides for Form 93BA to be the form that the affidavit takes and confirms that an affidavit complying with the rules of the Supreme Court of the State or Territory in which the registered office of the company is located is taken m comply with this rule.

Rule 26

Order 71 Rule 37 - Winding up of a company In insolvency Section 459P

This rule updates the affidavits required in support of an application to wind up a company in insolvency. In particular it provides that the affidavit required under Section 459Q of the Corporations Law is consistent with the NSW Supreme Court format.

Rule 27

Order 75 Rule 12 - Registration of Determinations

This rule is omitted as a result of the High Court decision in Brandy v. HREOC. The rule had provided for the mechanics of the automatic registration of determinations of National Native Title Tribunal.

Rule 28

Order 75 Rule 13 - Application for review of NNTT Determinations

This rule had provided far the review of registered determinations of the National Native Title Tnbunal. It is also omitted as the registration procedure is no longer valid.

Rule 29

Order 76 - Determination of HREOC or Privacy Commissioner

This rule replaces Order 76 as the Order which set out the procedure to be adopted for the registration of the determinations of the Commission. The High Court decision in Brandy v. HREOC had found that process invalid and the rules were no longer required.

This rule now provides for the taking of proceedings to enforce a determination of the Commission and the procedure to be adopted.

Rule 30

First Schedule - Forms

Form 31A

This form updates references to the Life Insurance Act 1995.

Form 41 and Form 43

This rule updates the note in the Subpoena for Production and the Subpoena for Production to Give Evidence to reflect the terms of the new order in relation to Banker's books.

Form 55A

Ilia amendment ensures that Form 55A is the appropriate form to use under new Order 53B -appeals from the new Superannuation Complaints Tribunal.

Form 55B

This form is amended to provide a general form of application for extension of time to file and serve a Notice of Appeal from any tribunal.

Form 93BA

This form is revised to reflect the terms of the affidavit to accompany a statutory demand if the demand is not based on a judgment debt. It is designed to be consistent with the NSW Supreme Court Rules.

Form 94

This form provides for an affidavit in support of winding-up application when the application is not based on a judgment debt.

Forms 138A, 139 and 140

These forms are omitted as they relate to the registration of decisions of the National Native Title Tribunal and the rules that have been omitted.