Federal Court Amendment Rules 2002 (No 3) (Cth)

Federal Court Amendment Rules 2002 (No. 3)1
Statutory Rules 2002 No. 2812

We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.
Dated 18 November 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.
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.
K.E. LINDGREN J.
B.J.M. TAMBERLIN J.
R. SACKVILLE J.
S.M. KIEFEL J.
R.D. NICHOLSON J.
P.D. FINN J.
R.A. SUNDBERG J.
S.R. MARSHALL J.
A.M. NORTH J.
R.N. MADGWICK J.
R. MERKEL J.
J.R. MANSFIELD J.
A.R. EMMETT J.
R.A. FINKELSTEIN 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.
P.M. JACOBSON 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. 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 10, subrules 8 (2) and (3)

substitute
(2)
The Court may, at any time in the proceeding, grant leave to the applicant or cross-claimant to enter judgment against the respondent or cross-respondent for:
(a)
the debt or liquidated damages; and
(b)
if appropriate:
(i)
costs:
(A)
in a sum fixed by the court: or
(B)
to be taxed; and
(ii)
interest.
(3)
If leave has been granted under subrule (2) and the applicant or cross-claimant has filed 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;
the Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent or cross‑respondent, as specified in the leave granted by the Court, without giving notice, or further notice, to the respondent or cross-respondent.

[2]Order 15, rule 1

substitute

1Notice for discovery — Form 21

After a directions hearing under Order 10, any party may, with the leave of the Court and within any period fixed by the Court for this purpose, by notice for discovery, in accordance with Form 21, filed and served on any other party, require any other party to give discovery of documents.

[3]Order 52, subrule 14AA (4)

omit

[4]Order 54B, heading

substitute
Order 54BJudiciary Act 1903 and Migration Act 1958

[5]Order 54B, rules 1 and 2

substitute

1Application

This Order applies to the making of an application under the Judiciary Act 1903 in relation to certain decisions under the Migration Act 1958.
Note Section 475A of the Migration Act 1958 provides that section 476 of that Act does not affect the jurisdiction of the Federal Court under section 39B of the Judiciary Act 1903 in relation to:
(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500 of the Migration Act 1958; or
(b) any other decision in respect of which the Court’s jurisdiction is not excluded by section 476 of the Migration Act 1958.

2Form of application — Form 56A

(1)
An application to which this Order applies must be in accordance with Form 56A.
(2)
If the grounds of the application include an allegation of fraud or bad faith, the application must give particulars of the alleged fraud or bad faith.

[6]First Schedule, heading

substitute

Schedule 1Forms

(see Order 1, rule 7)

[7]First Schedule, Forms 56 and 57

substitute

Form 56Application for an Order of review

(Order 54)

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY
No. of 20 .

BETWEEN
A.B.
Applicant
AND
C.D.
Respondent

APPLICATION FOR AN ORDER OF REVIEW

Application to review the decision of (the respondent or the first respondent) that(here specify decision)

Application to review the conduct of (the respondent or the first respondent) under which (here identify conduct)

Application to review conduct in which (the respondent or the first respondent) proposes to engage by which (here identify proposed conduct)

Application to review the failure of (the respondent or the first respondent) to decide that (here identify the decision that is alleged ought to have been made)

The applicant is aggrieved by the (decision or conduct or proposed conduct or failure) because —

etc

The grounds of the application are —

etc

(particulars of fraud or bad faith, if alleged (Order 54, rule 2))

The applicant claims —

1. An order (or declaration) that (specify relief sought).

etc

Date: eg 7 May 20 .

(Signed, applicant or applicant’s solicitor)

NOTICE TO THE RESPONDENT

TO the respondent of (insert address):

This application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

(a) the application may be heard;

(b) directions may be given for the further conduct of the proceeding;

Before any attendance at Court, you must file an appearance in the Registry.

Time and date for hearing: (to be entered by Registry unless fixed by Court)

Place: (address of Court)

Date:

(Signed, Registrar)

The applicant’s address for service is (specify address for service).

Version 2

Form 56AApplication under Judiciary Act 1903 (in relation to certain privative clause decisions under the Migration Act 1958)
(Order 54B)

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY
No. of 20 .

BETWEEN
A.B.
Applicant
AND
C.D.
Respondent

APPLICATION UNDER JUDICIARY ACT 1903 AND MIGRATION ACT 1958

This application is made under section 39B of the Judiciary Act 1903 (and see section 475A of the Migration Act 1958).

The applicant was notified of the decision that is the subject of this application on: (here insert date)

The applicant claims:
1. (specify in numbered paragraphs all relief sought)

etc

The grounds of the application are:

etc

(particulars of fraud or bad faith if alleged (Order 54B, rule 2))

Date:

(Signed, applicant or applicant’s solicitor)

NOTICE TO THE RESPONDENT

TO the respondent of (insert address):

(a) the application may be heard;

(b) directions may be given for the further conduct of the proceeding;

Before any attendance at Court, you must file an appearance in the Registry.

Time and date for hearing: (to be entered by Registry unless fixed by Court)

Place: (address of Court)

Date:

(Signed, Registrar)

The applicant’s address for service is (specify address for service).

Note Section 479 of the Migration Act 1958 provides that the parties to the review of a privative clause decision resulting from an application referred to in section 477 of that Act are the Minister and:

(a) if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of that Act and a decision on such a review has been made — the applicant in the review by the relevant Tribunal; or
(b) in any other case — the person who is the subject of the decision; or
(c) in any case — a person prescribed by the regulations.

Version 1

Form 57Notice of objection to competency

(Order 54, rule 4 and Order 54B, rule 3)

To the applicant:

The Respondent objects to the jurisdiction of this Court to try this application for an order under:

·
the Administrative Decisions (Judicial Review) Act 1977;* or
·
the Judiciary Act 1903 (in relation to a decision under the Migration Act 1958)*

on the grounds that:

1. (set out concisely the whole grounds of the objection)

etc

(conclude in accordance with Form 4)

*Omit if inapplicable

Version 2

[8]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	191.00
2	To make or oppose an interlocutory application or motion to the Court or a Judge or an officer of the Court	85.00
3	For a case for opinion of counsel or for counsel to advise (including attendance on counsel with brief)	83.00
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)	114.00
5	For brief for counsel on application in chambers or brief notes for solicitor (if necessary) or	104.00
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 thinks fit
7	For a necessary document not otherwise provided for, having regard to all the circumstances of the case	a sum that the taxing officer thinks fit
Documents
8	Any notice of appearance, including copies, filing and service by respondent	105.00
9	Any application or notice of motion, including fixing return day, copies to file and serve, and attendance to file	85.00
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	68.00
11	Notice to produce, notice to admit or any similar notice, including copies, filing (if necessary) and service	85.00
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	73.00
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 1 copy to serve and arranging for service	58.00
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	68.00
· 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	22.00
22	Circular letter (after the first) — for each letter	7.00
23	Special letter or letter including opinion	46.00 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	58.00 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	57.00 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	123.00
· clerk	31.00
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	31.00
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	55.00
· managing clerk	12.00
32	An attendance for which no other provision is made in this scale	51.00
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)	32.00
· to appoint a conference or consultation	32.00
· if appointment made by telephone	10.00
35	A necessary conference or consultation with counsel:
· if half an hour or less	85.00
· if over half an hour — for each hour or part of an hour	123.00
36	In court or chambers or before the Registrar for hearing without counsel:
· for each hour or part of an hour of the hearing	248.00
· for each hour or part of an hour when likely to be heard, but not heard	248.00
· not to exceed per day	1 110.00
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	201.00
· for each hour or part of an hour of the attendance when likely to be heard, but not heard	201.00
· not to exceed per day	912.00
If a person other than a solicitor attends in place of a solicitor:
(a) attendance by a managing clerk:
· for each hour	85.00
· not to exceed per day	372.00
(b) attendance by any other clerk:
· for each hour	45.00
· not to exceed per day	198.00
38	To hear judgment	57.00
39	On taxation of costs:
· if a solicitor attends — for each hour or part of an hour	123.00
· if a clerk attends — for each hour or part of an hour	31.00
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	281.00
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 37, as the case may be	2 602.00
Bankruptcy Act 1966 — Short Form Bills
43B	Short form amount that may be claimed by an applicant on the making of a sequestration order	1 668.00
43C	Short form amount that may be claimed by an applicant on the dismissal of a petition	1 437.00
Witnesses’ Expenses
44	Witnesses called because of their professional, scientific or other special skill or knowledge — for each day	147.00 to 727.00
45	Witnesses called, other than those covered in item 44 — for each day	85.00 to 136.00
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).

[9]Further amendments — Schedule 1

The following provisions are amended by omitting ‘the First Schedule’ and inserting ‘Schedule 1’:
· Order 1, subrules 7 (1) and (1A)
· Order 4, subrule 1 (2)
· Order 5, subrules 5 (2) and 8 (3)
· Order 8, subrule 14 (1)
· Order 8, paragraph 14 (2) (b)
· Order 8, subrule 16 (1)
· Order 8, paragraphs 16 (2) (a) and (3) (b)
· Order 16, subrule 1 (2)
· Order 30, subrule 2 (1)
· Order 30, paragraph 4 (a)
· Order 33, subrules 14 (3) and 15 (2)
· Order 49, subrules 2 (2) and 4 (4)
· Order 51, subrule 1 (3)
· Order 51A, subrule 2 (4)
· Order 52, subrules 4 (1), 12 (1) and 15 (5)
· Order 52, paragraph 29 (5) (a)
· Order 52A, subrules 7 (1) and 11 (3)

· Order 52A, rules 20 and 24
· Order 53, subrules 2 (1) and 7 (2)
· Order 54, subrule 2 (1)
· Order 54A, subrules 2 (1) and 3 (2)
· Order 57, subrules 1 (1) and (2)
· Order 65, paragraph 1 (a)
· Order 65, subrule 2 (2)
· Order 65, paragraph 2 (4) (b)
· Order 67, rules 2, 3 and 4
· Order 69, subrules 4 (9), 5 (2), 9 (1), 9 (3) and 20 (3)
· Order 70, subrules 2 (1) and 3 (1)
· First Schedule, Form 167, item 12
· First Schedule, Form 168, item 10.

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; 2002 Nos. 130 and 222.
2. Notified in the Commonwealth of Australia Gazette