Federal Court Amendment Rules 2001 (No 3) (Cth)

Federal Court Amendment Rules 2001 (No. 3)1
Statutory Rules 2001 No. 3222

We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.
Dated 7 November 2001
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.
D.G. HILL J.
M.F. O’LOUGHLIN J.
T.J. HIGGINS J.
D.P. DRUMMOND J.
A.P. WHITLAM J.
C.J.S.M. CARR J.
M.F. MOORE J.
C.M. BRANSON J.
K.E. LINDGREN J.
B.J.M. TAMBERLIN J.
R. SACKVILLE J.
S.M. KIEFEL J.
R.D. NICHOLSON J.
P.D. FINN J.
S.R. MARSHALL J.
A.M. NORTH J.
R.N. MADGWICK J.
R. MERKEL J.
J.R. MANSFIELD J.
A.H. GOLDBERG J.
A.R. EMMETT J.
R.A. FINKELSTEIN 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.
J.L.B. ALLSOP J.
Judges of the Federal
Court of Australia
W.G. SODEN
Registrar

1Name of Rules

These Rules are the Federal Court Amendment Rules 2001 (No. 3).

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 6 (1)

omit
Sundays, other holidays and the day immediately after Easter Monday in each year.
insert
Sundays and other holidays.

[2]Order 10, subrule 7 (1), at the foot

insert
Note If a claim or cross-claim is for a debt or liquidated damages, the applicant or cross-claimant may rely on rule 8 of this Order rather than on paragraph (1) (b) of this rule.

[3]Order 10, after rule 7

insert
8Default judgment for debt or liquidated damages
(1)
This rule applies if a respondent or cross-respondent against whom a claim for debt or liquidated damages is made in a proceeding fails:
(a)
to enter an appearance; or
(b)
to attend at any directions hearing; or
(c)
to comply with an order of the Court requiring the respondent or cross-respondent to take a step in the proceeding; or
(d)
to file a defence.
(2)
The Court may, at any time in the proceeding, grant leave to the applicant or cross-claimant to enter judgment for the debt or liquidated damages against the respondent or cross-respondent if the applicant or cross-claimant files in the Registry:
(a)
an affidavit, or affidavits, proving:
(i)
service of the application or cross-claim claiming judgment for the debt or liquidated damages; and
(ii)
the failure of the respondent or cross‑respondent to enter an appearance, attend a directions hearing, comply with an order of the Court requiring the respondent or cross-respondent to take a step in the proceeding, or file a defence; and
(b)
an affidavit in respect of the debt or liquidated damages in accordance with Form 15A.
(3)
If the affidavits required by subrule (2) are filed in the Registry, the Registrar must enter judgment for the debt or liquidated damages against the respondent or cross‑respondent without giving notice, or further notice, to the respondent or cross-respondent.

[4]Order 33, rule 2

omit

[5]Order 46, subparagraph 6 (2) (l) (ii)

omit
Registrar.
insert
Registrar;

[6]Order 46, after paragraph 6 (2) (l)

insert
(m)
reasons for judgment.

[7]Order 51A, subrule 5 (1)

omit
Subject to subrule (2),
insert
Subject to subrule (2) and to any Act to the contrary,

[8]Order 51A, subrule 5 (1)

omit
prerogative
insert
constitutional

[9]Order 52, subrule 22 (3)

substitute
(3)
If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross-appeal, but must:
(a)
file a notice of the respondent’s contention and serve a copy of the notice on the appellant; and
(b)
give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant’s draft index of appeal papers; and
(c)
at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers.

[10]Order 54, after rule 2

insert
2AExtension of time
(1)
An application under paragraph 11 (1) (c) of the Administrative Decisions (Judicial Review) Act 1977 for an extension of the time in which to lodge an application for an order of review must:
(a)
be accompanied by a proposed application for the order of review in accordance with Form 56; or
(b)
be made by lodging an application for an order of review, in accordance with Form 56, that includes a claim for the order of review and for the extension of time.
(2)
An application for an extension of time must be supported by an affidavit stating:
(a)
the nature of the applicant’s case; and
(b)
the questions involved in the case; and
(c)
the reasons why the extension of time should be granted.

[11]Order 58, after subrule 11 (1)

insert
(1A)
If the application relates to an innovation patent, the supporting affidavit or statement of claim must state the date when the innovation patent was certified.

[12]Order 58, after subrule 14 (2)

insert
(2A)
If an application under subsection 133 (1) or 138 (1) of the Patents Act relates to an innovation patent, the supporting affidavit or statement of claim must state the date when the innovation patent was certified.

[13]Order 82, rule 7

omit everything before paragraph (a), insert
In deciding whether to transfer a proceeding or an appeal to the Federal Magistrates Court, the Court or a Judge must take into account, in addition to the factors mentioned in subsection 32AB (6) of the Act in relation to a proceeding, or subsection 44AA (7) of the Tribunal Act in relation to an appeal, the following factors:

[14]First Schedule, after Form 15

insert
Form 15AAffidavit in respect of debt or liquidated damages
(Order 10, rule 8)
I, [name], of [address and occupation], *say on oath/*affirm:
1. I am [state deponent’s relationship to the applicant(s)/cross-claimant(s), eg, ‘the applicant/cross-claimant’, ‘(name), one of the applicant(s)/cross-claimant(s)’, ‘a director of the applicant/cross-claimant’, ‘a director of (name), one of the applicant(s)/cross-claimant(s)’] named in the *application/ *cross-claim relating to the *debt/*debts/*liquidated damages owed by [name of respondent/cross-respondent].
2. [If the deponent is not the applicant/cross-claimant, state the facts entitling the deponent to make the affidavit, eg ‘I am authorised by the applicant(s)/cross-claimant(s) to make this affidavit on its/their behalf].
3. [State the source of the deponent’s knowledge of the matters stated in the affidavit in relation to the debt/each of the debts/liquidated damages, eg ‘I am the person who, on behalf of the applicant(s)/cross-claimant(s), had the dealings with the respondent/cross-respondent that gave rise to the debt/debts/liquidated damages’, ‘I have inspected the business records of the applicant(s)/cross-claimant(s) in relation to the respondent’s/cross-respondent’s account with the applicant(s)/cross-claimant(s)’].
4. *The debt/*debts/*liquidated damages of $[amount] mentioned in the *application/*cross-claim, *remains/*remain *fully/*to the extent of $[amount] due and payable by the respondent/cross‑respondent.
*Sworn/*affirmed at: [place of swearing or affirmation] on [date]
[Signature of deponent]
Before me:
[Signature and designation of
person before whom deponent
swears or affirms affidavit]
* Omit if not applicable
Version 1

[15]First Schedule, Form 29

substitute
Form 29Notice of discontinuance
(Order 22, rule 2)
The applicant *discontinues the proceeding/*discontinues the proceeding in respect of claim numbers [numbers] of the application.
(Complete if consent has been obtained)
*The discontinuance is by consent.
(Complete if consent on terms has been obtained)
*The discontinuance is by consent on the following terms [specify in numbered paragraphs the terms of the consent].
(Complete if leave of the Court has been obtained)
*The discontinuance is in accordance with the leave of the Court granted on [date].
Notes in relation to costs
Note 1   Under subrule 3 (1) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court and without the consent of the other party or parties, is liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.
Note 2   Under subrule 3 (2) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court but with the consent of the other party or parties, is, unless the terms of the consent otherwise provide, liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.
Date:
[Signature of applicant or applicant’s solicitor]
*Date:
*[Signature of consenting respondent or respondent’s solicitor]
(If the discontinuance is by consent, each party, or the party’s solicitor, must sign the notice of discontinuance.)
*   Omit if not applicable
Version 2

[16]Schedule 2

substitute
Schedule 2Scale of costs for work done and services performed
(Order 62, rule 12)

Item	Matter for which charge may be made	Charge ($)
Instructions
1	To sue or defend, to appeal or oppose an appeal or for any other originating proceeding	185.00
2	To make or oppose an interlocutory application or motion to the Court or a Judge or an officer of the Court	82.00
3	For a case for opinion of counsel or for counsel to advise (including attendance on counsel with brief)	80.00
4	For an interrogatory, answer to an interrogatory or an affidavit (except a formal affidavit), an admission or a list of documents (and affidavit verifying)	110.00
5	For brief for counsel on application in chambers or brief notes for solicitor (if necessary) or	101.00
in respect of items 1 to 5 of this scale, having regard to all the circumstances of the case	any other amounts that the taxing officer considers appropriate
6	For brief for counsel or brief notes for solicitor (if necessary), having regard to all the circumstances of the case	a sum that the taxing officer considers appropriate
7	For a necessary document not otherwise provided for, having regard to all the circumstances of the case	a sum that the taxing officer considers appropriate
Documents
8	Any notice of appearance, including copies, filing and service by respondent	102.00
9	Any application or notice of motion, including fixing return day, copies to file and serve, and attendance to file	82.00
if more than 3 folios — add for each folio	6.00
10	Any simple notice or memorandum such as a notice for discovery, including copies, filing (if necessary) and service	66.00
11	Notice to produce, notice to admit or any similar notice, including copies, filing (if necessary) and service	82.00
if more than 3 folios — add for each folio	6.00
12	A brief to counsel (including a brief to hear judgment) and attending counsel with the brief	71.00
if more than 3 folios — add for each folio	7.00
For copy documents to accompany brief	the other charges in this scale that are appropriate
13	Any necessary subpoena, including issuing one copy to serve and arranging for service	56.00
Drawing
14	Any necessary document — for each folio	8.00
Engrossing or Typing
15	Any necessary document — for each folio	4.00
Copies
16	Of any document, including carbon, photographic or machine-made copy — for each page	2.00
except if allowance for 10 or more pages is claimed in respect of any document or documents	at the discretion of the taxing officer
Perusal
17	Of any document (if necessary) including special letter, telegram or telex, up to 3 folios	15.00
or per folio	4.00
except if allowance for 30 or more folios is claimed in respect of any document or documents	at the discretion of the taxing officer
18	If it is not necessary to peruse but it is necessary to scan a document — for each page	6.00
except if allowance for 10 or more pages is claimed in respect of any document or documents	at the discretion of the taxing officer
Examination
19	If it is necessary to neither peruse nor scan a document, eg an examination of an appeal book:
for examination — for each half hour
• solicitor	66.00
• clerk	15.00
Letters
20	Short letter — simple form of letter, eg formal acknowledgment	11.00
21	Ordinary letter, including letter between principal and agent	21.00
22	Circular letter (after the first) — for each letter	7.00
23	Special letter or letter including opinion	45.00 or an amount that is reasonable having regard to the length of the letter, the questions involved and appropriate items and charges in this scale
24	Telegram, facsimile copy, or telex including attendance to dispatch	56.00 or an amount that is reasonable in the circumstances
25	Receiving and filing any incoming letter Note Postage and transmission expenses may be claimed as a disbursement properly incurred.	7.00
Service
26	Personal service (except if service is able to be claimed under another item of this scale) of any document of which personal service is required	55.00 or an amount that is reasonable, having regard to time occupied, distance travelled and other relevant circumstances
27	Service of any document at the office of the address for service, either by delivery or by post	15.00
Preparation of Appeal Books
28	Preparation of appeal books, including collating all necessary material, attendances on the printer, general oversight of their preparation in cases where the taxing officer is satisfied it has been done efficiently — for each hour:
• solicitor	119.00
• clerk	30.00
29	If appeal books are prepared in a solicitor’s office, a sum that the taxing officer considers is just and reasonable, having regard to work and labour properly performed and charges for material used. In exercising his or her discretion, the taxing officer must have regard to commercial rates for copying and binding and is not obliged to apply the photographic or machine-made copy costs otherwise allowable in this scale
Attendances
30	An attendance that is capable of being made by a clerk, such as at the court registry	30.00
31	An attendance that requires the attendance of a solicitor or managing clerk and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate) — for each quarter hour:
• solicitor	53.00
• managing clerk	12.00
32	An attendance for which no other provision is made in this scale	49.00
33	An attendance by telephone that does not involve the exercise of skill or legal knowledge	10.00
34	An attendance on counsel:
• with brief or papers (if not otherwise provided for)	31.00
• to appoint a conference or consultation	31.00
• if appointment made by telephone	10.00
35	A necessary conference or consultation with counsel:
• if half an hour or less	82.00
• if over half an hour — for each hour or part of an hour	119.00
36	In court or chambers or before the Registrar for hearing without counsel:
• for each hour or part of an hour of the hearing	240.00
• for each hour or part of an hour when likely to be heard, but not heard	240.00
• not to exceed per day	1 076.00
37	In court or chambers or before the Registrar for hearing with counsel:
• for each hour or part of an hour of the attendance during the hearing	195.00
• for each hour or part of an hour of the attendance when likely to be heard, but not heard	195.00
• not to exceed per day	884.00
If a person other than a solicitor attends in place of a solicitor:
(a) attendance by a managing clerk:
• for each hour	82.00
• not to exceed per day	360.00
(b) attendance by any other clerk:
• for each hour	44.00
• not to exceed per day	192.00
38	To hear judgment	55.00
39	On taxation of costs:
• if a solicitor attends — for each hour or part of an hour	119.00
• if a clerk attends — for each hour or part of an hour	30.00
40	If a solicitor attends at court or chambers for the hearing of an application or appeal, or on conference with counsel, at a distance of more than 50 kilometres from his or her place of business, and it is neither appropriate nor proper for an agent to attend, the taxing officer may allow for each day of absence from the place of business (except a Saturday, Sunday or public holiday) an amount that the taxing officer considers reasonable — not exceeding	272.00
General Care and Conduct
41	If the case or circumstances warrant it, an allowance may be claimed under this item, in addition to any other item that appears in this scale, for general care and conduct (if appropriate) including the following:
(a) the complexity of the matter and the difficulty and novelty of questions raised;
(b) the importance of the matter to the party and the amount involved;
(c) the skill, labour, specialised knowledge and responsibility involved in the matter on the part of the solicitor;
(d) the number and importance of the documents prepared or perused, without regard to length;
(e) the time taken by the solicitor;
(f) research and consideration of questions of law and fact
Counsel’s Fees
42	It is proper for a solicitor to incur an amount for counsel’s fees that appears to be fair and reasonable according to the circumstances of the case and the seniority of counsel. The fees incurred may be claimed as a disbursement
43	If a solicitor briefs another solicitor as counsel, when it would be appropriate to brief counsel	a sum as a counsel’s fee that the taxing officer considers just and reasonable having regard to the practice of allowing these fees that is permitted by the Supreme Court Rules of the State or Territory concerned (Order 62, rule 35)
Corporations Act 2001 — Short Form Bill
43A	The amount as to the costs of obtaining a winding-up order, up to and including entry and service of the order under section 470 of the Corporations Act 2001 and the obtaining of a certificate of taxation Additional costs are allowable for any adjournment in which costs have been reserved by the Court in accordance with item 36 or item 37, as the case may be	2 521.00
Bankruptcy Act 1966 — Short Form Bills
43B	Short form amount that may be claimed by an applicant on the making of a sequestration order	1 616.00
43C	Short form amount that may be claimed by an applicant on the dismissal of a petition	1 392.00
Witnesses’ Expenses
44	Witnesses called because of their professional, scientific or other special skill or knowledge — for each day	142.00 to 704.00
45	Witnesses called, other than those covered in item 44 — for each day	82.00 to 132.00
46	Witnesses remunerated in their occupation by wages, salary or fees	the amount lost by attendance at Court
47	If a witness lives more than 50 kilometres from the Court	a sum that the taxing officer considers reasonable for the actual cost of travel, together with a reasonable amount for meals and accommodation
Disbursements
48	All court fees and other fees and payments	to the extent to which they have been properly and reasonably incurred and paid
49	If a solicitor attends at court or chambers, or on conference with counsel, in the circumstances outlined in item 40	reasonable travelling expenses to the extent to which they have been reasonably incurred and paid
Miscellaneous
50	Matters not included in this scale may be allowed to the extent they are covered by Order 62, rule 21
Note 1 Bills of costs prepared in accordance with Order 62, rule 40 must identify costs and disbursements claimed with an item number.
Note 2 A folio comprises 72 words (there are generally 3 folios to each page).

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 Nos. 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, 300 and 372; 2001 Nos. 20 and 201.
2. Notified in the Commonwealth of Australia Gazette