Commonwealth Numbered Regulations - Explanatory Statements

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RULES OF THE FEDERAL COURT OF AUSTRALIA 1997 NO. 87

Statutory Rules 1997 No. 87

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-eight (48) 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 the 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 subsection 59(4) of the Federal Court of Australia 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

Amendment

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

Rule 2

Order 8 rule 2 - Leave to serve outside the jurisdiction

Order 8 of the Rules of Court deals with the service of judicial documents outside the Commonwealth. The Order distinguishes between countries with which Australia is party to a convention as to service abroad of judicial documents, and those countries with which no such convention has been signed. Order 8 rule 2(1) provides that "Service outside the Commonwealth of originating process is not valid under Order 8 unless" the service is affected in accordance with the prior leave of the Court, or the Court confirms the service or the person waives objection by entering an appearance. Order 9 rule 3 deals with the service of documents other than originating process It provides that "Subject to any convention, service outside Australia of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court," This rule amends Order 8 rule 2 to add new sub-rules (2A), (2B), and (2C).

Sub-rule (2A) allows a party to serve originating process outside the Commonwealth without complying with the provisions of Division 2 (Service in convention countries) and Division 3 (Service in non-convention countries) where the Court has given leave to serve outside the jurisdiction and the process is served in accordance with any terms or conditions imposed by the Court in giving the leave.

Sub-rule (2B) provides the criteria to be satisfied for the Court to grant leave for service of documents in a convention country other than in accordance with the provisions of Order 8 Division 2. The criteria is that the Court must be satisfied that the service would not be inconsistent with the convention between Australia and the convention country as to the service of judicial documents abroad.

Sub-rule (2C) provides that nothing in the rule prevents the Court from giving a party leave to give notice, outside the Commonwealth, of a proceeding in the Court on the basis that the notice takes the place of service of the originating process.

Rule 3

Order 10 rule 1 - Directions bearings

This rule deletes Order 10 rule 1(5) which has been found to be unnecessary.

Rule 4

Order 53B rule 3 - Appeals from the Superannuation Complaints Tribunal

This rule deletes Order 53B rule 3 which deals with the service of a copy of the notice of appeal in appeals from the Superannuation Complaints Tribunal. The nature of an appeal from the Superannuation Complaints Tribunal is very similar to an appeal from the Administrative Appeals Tribunal. In such situations it is appropriate to apply the provisions of Order 53 which deals with appeals from decisions of the Administrative Appeals Tribunal. The rule substitutes a new rule 3 applying the provisions of Order 53, with any necessary changes, to appeals from decisions of the Superannuation Complaints Tribunal. The combined effect of Rules 4 and 5 of these Rules is that the service of documents in an appeal from the Superannuation Complaints Tribunal is dealt with by applying Order 53 rule 6.

Rule 5

Order 53B rule 4 - Appeals from the Superannuation Complaints Tribunal

This rule omits Order 53B rule 4 which deals with extensions of time in appeals form the Superannuation Complaints Tribunal. The nature of an appeal from the Superannuation Complaints Tribunal is very similar to an appeal from the Administrative Appeals Tribunal. In such situations it is appropriate to apply the provisions of Order 53 which deals with appeals from decisions of die Administrative Appeals Tribunal. The combined effect of Rules 4 and 5 of these Rules is that the applications for extension of time to appeal from a decision of the Superannuation Complaints Tribunal is dealt with by applying Order 53 rule 7.

Rule 6

First Schedule

This rule adds to Forms 5, 5A, 8, 9 and 10 a requirement that the party specify briefly the nature of the subject of the application or cross claim and the legislative basis of the Court's jurisdiction to bear the matter and grant the relief sought.

The rule also amends Form 55B to delete reference to Order 53B rule 4 which has been deleted by Rule 5 of these Rules.