Federal Court Amendment Rules 2000 (No 7) (Cth)

Federal Court Amendment Rules 2000 (No. 7)1

Statutory Rules 2000 No. 3722

We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.

Dated 20 December 2000

M.E.J. BLACK C.J.

B.A. BEAUMONT J.

M.R. WILCOX J.

J.E.J. SPENDER J.

p.r.a. gray j.

J.A. MILES J.

D.M. RYAN J.

R.S. FRENCH J.

M.c. lee j.

J.W. von DOUSSA J.

D.G. HILL J.

M.F. O’LOUGHLIN J.

T.J. HIGGINS J.

P.C. HEEREY J.

D.P. DRUMMOND J.

R.E. COOPER J.

A.P. WHITLAM J.

C.J.S.M. CARR J.

M.F. MOORE J.

C.M. BRANSON J.

J.H. MATHEWS J.

K.E. LINDGREN J.

B.J.M. TAMBERLIN J.

R. SACKVILLE J.

S.M. KIEFEL J.

R.D. NICHOLSON J.

R.A. SUNDBERG J.

S.R. MARSHALL J.

R.N. MADGWICK J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

R.A. FINKELSTEIN J.

M.S. WEINBERG J.

J.A. DOWSETT J.

L.S. KATZ J.

P.G. HELY J.

S.C. KENNY J.

R.V. GYLES J.

R.A. CONTI J.

M.A. STONE J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

1Name of Rules

 These Rules are the Federal Court Amendment Rules 2000 (No. 7).

2Commencement

 These Rules commence on gazettal.

3Amendment of Federal Court Rules

Schedule 1 amends the Federal Court Rules.

Schedule 1Amendments

  

(rule 3)

[1]Order 3, subrule 3 (2)

substitute

• (2)

  The time may be extended under this rule, or any other rule allowing for an extension of time (unless the rule provides otherwise):

  • (a)

    before or after the time expires; and

  • (b)

    whether or not an application for extension is made before the time expires.

[2]Order 22, rule 3

omit

 A party who

insert

• (1)

  A party who

[3]After Order 22, rule 3

insert

• (2)

  A party who discontinues under paragraph 2 (1) (c) is liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding, unless the terms of the consent provide otherwise.

[4]Order 27, rule 4, heading

substitute

4Production before date of attendance

[5]Order 27, subrule 4 (1)

substitute

• (1)

  Unless the Court otherwise orders, the person named in a subpoena for production may produce the document or thing to the Registrar or at the Registry at the proper place or at the Registry nearest to the place where the subpoena was served, not later than 2 days before the day on which the subpoena requires attendance, instead of attending as required by the subpoena.

[6]Order 27, subrule 6 (1)

substitute

• (1)

  With the leave of the Court or a Judge, given generally or in relation to a particular subpoena or particular subpoenas, the Registrar must, subject to subrule (6) if the leave was given generally, on the request of a party, issue a subpoena to give evidence or a subpoena for production or a subpoena for production and to give evidence.

• (1A)

  An application for leave under subrule (1) may be made without notice to, and decided by the Court or a Judge sitting in Chambers in the absence of, the person named in the subpoena and the other party or parties to the proceeding in which the issue of the subpoena is requested.

[7]Order 35, rule 10, heading

substitute

10Consent orders by filing in a Registry

[8]Order 35, subrule 10 (1)

substitute

• (1)

  A written consent of the parties to a proceeding, or of their representatives on the record, to the making of an order in the proceeding may be filed in the Registry at the proper place.

[9]Order 35, paragraph 10 (2) (a)

substitute

• (a)

  if a written consent is filed, unless paragraph (b) applies, the Registrar must bring the matter before a Judge who, without any other application being made, may:

  • (i)

    make an order in accordance with rule 10A; or

  • (ii)

    direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.

[10]Order 35, after rule 10

insert

10AConsent orders

• (1)

  A Judge may make an order in accordance with the terms of a written consent of the parties to a proceeding, or their representatives on the record, by initialling or otherwise annotating the written consent and placing it on the Court file.

• (2)

  The order must state that it is made by consent.

• (3)

  The order is of the same force and validity as if it had been made after a hearing by the Judge.

[11]Order 53, after subrule 12 (2)

insert

• (3)

  The Court may allow a notice of appeal to be amended at such time and on such conditions as the Court thinks fit.

[12]Order 57, subrule 1 (1)

after

subsection 32 (2)

insert

of the National Crime Authority Act 1984

[13]Order 57, subrule 1 (2)

after

subsection 32 (8)

insert

of that Act

[14]Order 57, subrule 1 (3)

substitute

• (3)

  The applicant must file and serve with the application:

  • (a)

    an affidavit or a statement of claim, as appropriate; and

  • (b)

    if the application is for an order for review under subsection 32 (2) of the National Crime Authority Act 1984, a copy of the notice mentioned in paragraph 32A (2) (c) of that Act.

[15]Order 69, rule 10

substitute

10Setting aside subpoena

• (1)

  The Federal Court or a Judge of that Court may, on the motion of a person named in a subpoena, set aside the subpoena wholly or in part.

• (2)

  Notice of the motion, and an affidavit setting out the facts and the grounds on which it is based, must be filed and served on the party at whose request the subpoena was issued.

• (3)

  The application is to be heard at a date, time and place and in a manner directed by a Judge of the Federal Court.

[16]Order 77, rule 28, heading

substitute

28Application for summons — Form 5 or Form 154

[17]Order 77, subrule 28 (1)

substitute

• (1)

  The application must be in accordance with:

  • (a)

    if made to the Court, Form 5; or

  • (b)

    if made to a Registrar, Form 154.

[18]Order 77, subrule 44 (4)

substitute

• (4)

  The report must be in the form of an affidavit and be filed and served at least 5 days before the hearing date fixed for the application.

[19]Order 81, after subrule 7 (2)

insert

• (3)

  Unless the Court or a Judge otherwise orders, a respondent need not file an appearance under Order 9, rule 3 if the respondent files and serves a defence before the date fixed for the directions hearing for the application.

[20]First Schedule, Form 41, subparagraph (c) (ii)

omit

if you are not a party to these proceedings,

[21]First Schedule, Form 41

omit everything after

By the Court

(signature and description of officer of the Court)

insert

Note 1Failure to comply with this subpoena may constitute contempt of court and may result in your arrest or, in the case of a corporation, an order for sequestration may be made.

Note 2Order 27, paragraph 4 (2) (a) requires the person complying with this subpoena to give to the Registrar a description of the document or thing, or category of document or thing, produced. This should be a statement in writing identifying which of the items required by the subpoena to be produced have been produced, with such further description as is necessary to better identify the form in which the document or thing has been produced.

Note 3You may apply to the Court:

(a) to set aside the subpoena (or part of it); or

(b) for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the document or thing the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

Issued at the request of (name), the applicant’s solicitor (or as the case may be).

[22]First Schedule, Form 42

omit everything after

By the Court

(signature and description of officer of the Court)

insert

Note 1Failure to comply with this subpoena may constitute contempt of court and may result in your arrest.

Note 2 You may apply to the Court:

(a) to set aside the subpoena (or part of it); or

(b) for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the testimony the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

Issued at the request of (name), the applicant’s solicitor (or as the case may be).

[23]First Schedule, Form 43

omit everything after

By the Court

(signature and description of officer of the Court)

insert

Note 1Failure to comply with this subpoena may constitute contempt of court and may result in your arrest.

Note 2You may apply to the Court:

(a) to set aside the subpoena (or part of it); or

(b) for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the testimony, document or thing the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

Issued at the request of (name), the applicant’s solicitor (or as the case may be).

[24]First Schedule, Form 66A, after Note 3

insert

• 4.

  You may apply to the Court:

  • (a)

    to set aside the subpoena (or part of it); or

  • (b)

    for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the document or thing the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

[25]Form 67

substitute

Form 67Statement of rights of person named in subpoena

(Order 69, rule 5)

You may apply to the Court:

(a) to set aside the subpoena (or part of it); or

(b) for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to your testimony or the document or thing the subject of the subpoena.

• An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

   This application must be lodged with the Registrar of the Federal Court of Australia in the Registry from which the subpoena was issued at or before the time at which the subpoena is returnable. The application may be lodged either personally or by your agent or, alternatively, by facsimile transmission in accordance with Order 1, rule 5AB.

The procedure, location and time for the hearing of the application to set the subpoena aside is at the discretion of the Federal Court or a Judge of that Court.

In deciding whether to grant an application to set a subpoena aside either in whole or part, the Federal Court may, without limiting the grounds available, take into account the following grounds:

(a) that the person named does not have and cannot reasonably be expected to obtain necessary travel documents;

(b) that the person named is liable to be detained for the purpose of serving a sentence;

(c) that the person named is liable to prosecution or is being prosecuted for an offence;

(d) that the person named is liable to the imposition of a penalty in civil proceedings (other than proceedings under the Trade Practices Act 1974);

(e) that the evidence to be given by the person named could be obtained by other means without significantly greater expense;

(f) that compliance with the subpoena would cause the person named hardship or serious inconvenience;

(g) in the case of a subpoena for production — that the Federal Court is satisfied:

(i) that the document or thing should not be taken out of New Zealand; and

(ii) that evidence of the contents of the document, or that evidence of the thing, can be given by other means.

[26]First Schedule, Form 68A, after Note 3

insert

• 4.

  You may apply to the Court:

  • (a)

    to set aside the subpoena (or part of it); or

  • (b)

    for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the testimony the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

[27]First Schedule, Form 69A, after Note 3

insert

• 4.

  You may apply to the Court:

  • (a)

    to set aside the subpoena (or part of it); or

  • (b)

    for an order consequential on a claim for privilege, public interest immunity or confidentiality in relation to the testimony, document or thing the subject of the subpoena.

An application must be made by motion in accordance with Order 27, rule 9 or 10 and Order 19 of the Federal Court Rules.

[28]First Schedule, Form 151, paragraph 1

substitute

• 1.

  You are required to attend before *the Court/

  *a Registrar/*a magistrate at the time, date and place stated below to be examined on oath under *section 50/*section 81 of the Bankruptcy Act 1966 and to give evidence in relation to the examinable affairs of (name of bankrupt or debtor).

*   Omit if inapplicable

[29]First Schedule, Form 151, notes

substitute

Note 1 Section 5 of the Bankruptcy Act 1966 defines examinable affairs, in relation to a person, to mean:

• (a)

  the person’s dealings, transactions, property and affairs; and

• (b)

  the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the bankrupt or to any of his or her conduct, dealings, transactions, property and affairs.

(Use the following note for a summons addressed to the bankrupt.Otherwise omit it.)

Note 2If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966.

(Use the following notes for a summons addressed to a person who is not the bankrupt.Otherwise omit them.)

Note 2If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966. However, a warrant will not be issued if you were not given a reasonable amount for expenses.

Note 3 You may apply to have this summons discharged by filing a notice of motion and affidavit as provided by Order 77, rule 38 of the Federal Court Rules.

[30]First Schedule, Form 167, item 11

substitute

11 Describe the discrimination you are complaining of  (The unlawful discrimination must be: (a)the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Human Rights and Equal Opportunity Commission; or (b)arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.)	Attach an extra page if necessary
11A Under what Act is the discrimination you are complaining of unlawful?	q the Disability Discrimination Act 1992 q the Racial Discrimination Act 1975 q the Sex Discrimination Act 1984
11B State all sections of the Act that are relevant to this application

[31]First Schedule, Form 167

omit

an appearance

insert

a notice of appearance in accordance with Form 15 or a defence in accordance with Form 168

Notes

1. These Rules amend Statutory Rules 1979 No. 140, as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 Nos. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 No. 40, 45, 137. 225 and 290; 1994 Nos. 63, 130, 224, 279, 332 and 463; 1995 Nos. 31, 46, 239 and 449; 1996 Nos. 29 and 308; 1997 Nos. 82, 87, 143, 174, 204, 277 and 425; 1998 Nos. 224, 297 and 323; 1999 Nos. 15, 70, 94, 194, 232, 295, 296 and 360; 2000 Nos. 53, 54, 189, 233, 235 and 300.

2. Notified in the Commonwealth of Australia Gazette