Federal Court Amendment Rules 2002 (No 1) (Cth)

Federal Court Amendment Rules 2002 (No. 1)1

Statutory Rules 2002 No. 1302

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

Dated 7 June 2002

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.

H.W. OLNEY J.

J.W. von DouSSA j.

D.G. HILL J.

T.J. HIGGINS J.

P.C. HEEREY 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.

R.N. MADGWICK J.

R. MERKEL 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.

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.

G.K. DOWNES J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

1Name of Rules

 These Rules are the Federal Court Amendment Rules 2002 (No. 1).

2Commencement

 These Rules commence on gazettal.

3Amendment of Federal Court Rules

Schedule 1 amends the Federal Court Rules.

Schedule 1Amendments

(rule 3)

  

[1]Order 11, after rule 1A

insert

1BPleading prepared by legal representative

 If a pleading is prepared by a party’s legal representative, the pleading must, when filed, be accompanied by a certificate in accordance with Form 15B completed by the legal representative.

[2]Order 11, paragraphs 2 (a) and 10 (a)

omit

he

insert

the party

[3]Order 33, rules 3 and 7

omit

[4]Order 33, after subrule 11 (4)

insert

• (5)

  In this rule:

ground of privilege means a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act 1995.

[5]Order 34, after rule 1

insert

1ADefinition

 In this Order:

expert, in relation to a question, means a person who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.

[6]Order 34, subrule 2 (2)

omit

[7]Order 35, after rule 11

insert

12Exercise of powers by Registrars

 For the purposes of paragraph 35A (1) (h) of the Act, the Court or a Judge may direct a Registrar to exercise the following powers of the Court under section 23 of the Act:

• (a)

  the power to make an order for the dismissal of a proceeding if the order is in accordance with the terms of a written consent by the parties to the proceeding, or by their representatives on the record;

• (b)

  in conjunction with an order under paragraph (a), the power to make an order for the payment of costs if the order is in accordance with the terms of a written consent by the parties to the proceeding, or by their representatives on the record.

[8]Order 52, subrule 38A (2)

substitute

• (2)

  If an order is made under paragraph (1) (c) to dismiss an appeal or cross-appeal, or an order is made after the hearing proceeds under paragraph (1) (d), the Court may, on motion by the party against whom the order is made:

  • (a)

    set aside or vary the order; and

  • (b)

    give directions for the further conduct of the appeal.

[9]Order 58, subrule 1 (1), definition of Trade Marks Act

omit

Trade Marks Act 1955.

insert

Trade Marks Act 1995.

[10]Order 58, paragraphs 5 (2) (d) and (e)

substitute

• (d)

  the grounds relied on in support of each order sought;

• (e)

  the particulars of each ground relied on; and

• (f)

  the date given by the Registry for the directions hearing.

[11]Order 58, after subrule 5 (2)

insert

• (3)

  Except by the leave of the Court, evidence is not admissible in proof of:

  • (a)

    a ground of appeal not stated in the notice of appeal; or

  • (b)

    a ground of appeal of which particulars have not been given in the notice of appeal.

[12]Order 58, after rule 5

insert

5AAParticulars of non-patentable invention

• (1)

  This rule applies to an appeal from a decision of the Commissioner under a provision of the Patents Act.

• (2)

  For paragraph 5 (2) (e), if a ground relied on in an appeal is that the invention is not a patentable invention because information about the invention has become publicly available in a document or through the doing of an act, the particulars of that ground must include:

  • (a)

    in the case of a document — the time when, and the place where, the document is alleged to have become publicly available; and

  • (b)

    in the case of an act:

    • (i)

      the name of the person alleged to have done the act; and

    • (ii)

      the period in which, and the place where, the act is alleged to have been done publicly; and

    • (iii)

      a description that is sufficient to identify the act; and

    • (iv)

      if the act relates to apparatus or machinery — whether the apparatus or machinery exists and, if so, where it can be inspected.

• (3)

  For paragraph 5 (2) (e), if:

  • (a)

    a ground relied on in an appeal, in relation to a claim of the complete specification of a patent, is that the invention concerned is not useful; and

  • (b)

    it is intended, in connection with that ground, to rely on the fact that an example of the invention that is the subject of the claim cannot be made to work, either at all or as described in the specification;

the particulars of that ground must include particulars of each such example of the invention, specifying the respect in which it is alleged that it does not work as described.

[13]Order 77, after subrule 16 (2)

insert

• (3)

  The petition must not be annexed to the affidavit mentioned in paragraph (2) (b).

[14]After Order 82

insert

Order 83Aboriginal Councils and Associations Act 1976

1Interpretation

 In this Order, Incorporated Aboriginal Association has the same meaning as in the Aboriginal Councils and Associations Act 1976.

2Exercise of powers by Registrars

 For the purposes of paragraph 35A (1) (h) of the Act, the Court or a Judge may direct a Registrar to exercise the power of the Court under subsection 63 (1) of the Aboriginal Councils and Associations Act 1976 to wind up an Incorporated Aboriginal Association.

[15]First Schedule, Form 8

omit

(Plead as required by the Rules)

insert

(If the proceeding was commenced by application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — plead as required by the Rules. In any other case, subject to the Rules — file an affidavit in support of the cross-claim)

[16]First Schedule, Form 9

omit

(Plead as required by the Rules)

insert

(If the proceeding was commenced by application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — plead as required by the Rules. In any other case, subject to the Rules — file an affidavit in support of the cross-claim)

[17]First Schedule, Form 10

omit each mention of

(Plead as required by the Rules)

insert

(If the proceeding was commenced by application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — plead as required by the Rules. In any other case, subject to the Rules — file an affidavit in support of the cross-claim)

[18]First Schedule, after Form 15A

insert

Form 15BCertificate of Legal Representative

(Order 11, rule 1B)

I (name of legal representative) certify to the Court that the factual and legal material available to me at present provides a proper basis for:

(a)

each allegation in the pleading; and

(b) each denial in the pleading; and

(c) each non-admission in the pleading.

Date:

 Legal representative for

 the (party, eg. applicant, respondent)

Version 1

[19]First Schedule, Form 31A, heading

substitute

Form 31ANotice of deposit

(Order 65, subrule 2 (4))

[20]First Schedule, Form 152

omit

Date entered: eg, 7 May 19

insert

Date that entry is stamped:

[21]Schedule 3, after item 9

insert

9A subsection 52 (3) Power to stay all proceedings under a sequestration order for a period not exceeding 21 days

[22]Further amendments — Version 2 of prescribed forms

 The following forms in the First Schedule are amended by omitting ‘Version 1’ and inserting ‘Version 2’:

 · Form 8

 · Form 9

 · Form 10

 · Form 31A

 · Form 152.

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, 201, 322 and 329.

2. Notified in the Commonwealth of Australia Gazette