Federal Court Amendment Rules 2003 (No 3) (Cth)

Federal Court Amendment Rules 2003 (No. 3)1

Statutory Rules 2003 No. 2062

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

Dated 4 August 2003

M.E.J. BLACK C.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.

D.G. HILL J.

T.J. HIGGINS J.

P.C. HEEREY 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.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.

P.M. JACOBSON J.

B.M. SELWAY J.

A.C. BENNETT J.

B.T. LANDER J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

1Name of Rules

These Rules are the Federal Court Amendment Rules 2003 (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 4, after rule 14

insert

15Application for the issue of a summons (Corporations Act s 596A, s 596B)

An application for the issue of a summons under section 596A or 596B of the Corporations Act 2001 may be made to:

1. (a)

   the Court or a Judge; or

2. (b)

   if the Court or a Judge has, under paragraph 35A (1) (h) of the Act, directed that a Registrar may exercise the power of the Court under section 596A or 596B of the Corporations Act 2001 — a Registrar, including a Registrar sitting in chambers.

[2]Order 10, after paragraph 1 (2) (ca)

insert

1. (cab)

   direct that the parties give consideration to jointly instructing an expert to provide to the parties a report of the expert’s opinion in relation to a particular issue or issues in the proceeding, on the basis that the parties concerned will be jointly responsible to pay the expert’s fees and expenses;

[3]Order 46, after paragraph 6 (2) (f)

insert

1. (g)

   a written submission;

[4]Order 46, paragraph 6 (3) (g)

omit

[5]Order 57

substitute

Order 57Australian Crime Commission Act 2002

1Applications for review under Administrative Decisions (Judicial Review) Act 1977 (as varied by section 57 of Australian Crime Commission Act 2002)

1. (1)

   Subject to subrules (2) and (3), Order 54 applies to an application for review of a matter arising under the Australian Crime Commission Act 2002.

2. (2)

   An applicant who files a copy of a statement under Order 54, subrule 3 (1) must serve a copy of the statement on each other party to the proceeding not later than the next day after the statement is filed.

3. (3)

   The time limited by Order 54, rule 4 for filing and serving a notice of objection to competency of an application is reduced to 5 days after service of the application.

[6]Order 62, rule 9

substitute

9Liability of legal practitioner

1. (1)

   Without limiting the Court’s discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a legal practitioner is responsible (whether personally or through a servant or agent), the Court may, after giving the legal practitioner a reasonable opportunity to be heard, do any of the following:

   1. (a)

      disallow the costs as between the legal practitioner and the legal practitioner’s client;

   2. (b)

      if the legal practitioner is a barrister — disallow the costs as between the barrister and the barrister’s instructing solicitor;

   3. (c)

      direct the legal practitioner to repay to the client, costs which the client has been ordered to pay to another party;

   4. (d)

      direct the legal practitioner to indemnify any party other than the client against costs payable by the party indemnified.

2. (2)

   Without limiting subrule (1), a legal practitioner is taken to be responsible for a default under that subrule if a proceeding cannot conveniently proceed, or can proceed only with the incurring of extra costs or with inconvenience to the Court or another party to the proceeding, because of the failure of the legal practitioner:

   1. (a)

      to attend before the Court in person or by proper representative; or

   2. (b)

      to file any document that ought to have been filed; or

   3. (c)

      to deliver for the use of the Court any document that ought to have been so delivered; or

   4. (d)

      to be prepared with any proper evidence or account; or

   5. (e)

      to comply with any provision of these Rules or any judgment or order or direction of the Court; or

   6. (f)

      otherwise to proceed.

3. (3)

   Before making an order under subrule (1), the Court may refer the matter to a Registrar for inquiry and report.

4. (4)

   The Court may order that notice of any proceeding or order against a legal practitioner be given, as specified in the order, to:

   1. (a)

      the legal practitioner’s client; or

   2. (b)

      if the legal practitioner is a barrister — the barrister’s instructing solicitor.

5. (5)

   For the purpose of giving effect to a costs order, the Court may give ancillary directions, including a direction to a legal practitioner to provide to the Court or a party to the proceeding a bill of costs in assessable form.

6. (6)

   In this rule:

legal practitioner means a person who is:

(a) a barrister; or

(b) a solicitor; or

(c) a barrister and solicitor.

[7]Order 81, rule 5

substitute

5Commencement of proceeding

1. (1)

   A proceeding alleging unlawful discrimination must be commenced by filing an application in accordance with Form 5.

Note See section 33C of the Federal Court of Australia Act 1976 and Order 6, rule 2 in relation to representative proceedings and joinder of parties.

1. (2)

   The application must:

   1. (a)

      be accompanied by:

      1. (i)

         a claim in accordance with Form 167; and

      2. (ii)

         an affidavit in support of the application; and

   2. (b)

      include details of any claim that is made in addition to the allegation of unlawful discrimination.

[8]Schedule 1, Form 5, Section A

substitute

A.DETAILS OF CLAIM

 

On the grounds stated in the accompanying affidavit or statement of claim (or, if applicable, Claim of unlawful termination of employment in accordance with Form 5A, or Claim under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination in accordance with Form 167), the applicant claims:

 

1. (Specify in numbered paragraphs all final relief sought.)

2.

3.

[9]Schedule 1, Form 5, at the foot

omit

Version 2

insert

Version 3

[10]Schedule 1, Form 60

omit

[11]Schedule 1, Form 167

substitute

Form 167Claim under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination

(Order 81, rule 5)

Claim alleging unlawful discrimination

 

Human Rights and Equal Opportunity Commission Act 1986, section 46PO

 

Details of applicant(s)

1 Full name(s)

q Mr q Mrs q Ms

Family name:

Given names:

Attach extra page for any additional applicants

2 Home or contact address

Postcode:

3 Telephone No.

Fax No.

Business hours: ( )

After hours: ( )

( )

4 Are you more than 18 years old?

q Yes

q No

5 If you are an individual, what is your first language?

Do you need an interpreter?

This includes languages such as Sign and Auslan.

q Yes q No

If yes, please state language or type:

6 Do you have any special requirements?

Please give details of any special requirements (eg wheelchair access, hearing loop, presence of personal assistant or carer) to enable this matter to proceed in Court

Details of respondent(s)

7 Against whom are you bringing this claim?

Name of person:

Address:

Postcode:

Phone: ( )

Fax: ( )

Name of organisation:

Address:

Postcode:

Phone: ( )

Fax: ( )

Attach extra page for any additional respondents

8 What is your relationship to the person or organisation in question 7?

q Employee of person/organisation

q Former employee of person/organisation

q Co-employee

q Customer of person/organisation

q Other (please specify)

Representation

9 Are you represented by a lawyer, or will you seek to be represented by someone else (eg a union official) who is not a lawyer?

q No Go to question 10

q Yes

Representative’s name:

Name of firm or organisation:

Address:

Postcode:

DX:

Phone: ( )

Fax: ( )

Go to question 11

10 Have you applied for legal aid?

q No

q Yes

Relevant legislation and affidavit

11 Describe the discrimination you are complaining of

(The unlawful discrimination must:

(a)be 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

12 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

13 State all sections of the Act that are relevant to this claim

14 Affidavit

Your application and claim must be accompanied by an affidavit that complies with Order 14 of the Federal Court Rules stating the facts in support of your application and claim. (The affidavit must be in accordance with Form 20 of Schedule 1 to the Federal Court Rules and must be sworn before a solicitor or a justice of the peace.)

Remedy sought

15 What remedy are you asking the Court for?

q Apology from respondent

q Compensation

Please give details on an attached sheet of how much compensation you are claiming and how the amount has been calculated (eg loss of income).

q Other

Please give details on an attached sheet

Extension of time

16 Do you need an extension of time?

You must complete this section if your application and claim is made more than 28 days after the date of issue of written notice of the termination of the complaint by the President of the Human Rights and Equal Opportunity Commission.

I am seeking an extension of time to lodge my application and claim because (give reasons).

Attach an extra page if necessary

Required documents

17 These documents must accompany your application and claim

q A copy of your original complaint to the Human Rights and Equal Opportunity Commission (if available)

q The notice of termination of complaint given by the President of the Human Rights and Equal Opportunity Commission

q The affidavit mentioned in item 14

 

Prepared and filed by:

 

Name: (please print)

 

Signature:

 

Date:

 

Version 2

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, 222 and 281; 2003 Nos. 35 and 78.

2. Notified in the Commonwealth of Australia Gazette