Federal Court of Australia Rules (Amendment) (Cth)

Statutory Rules

1977 No. 220

FEDERAL COURT OF AUSTRALIA RULE OF COURT* AMENDING THE FEDERAL COURT OF AUSTRALIA RULES  

Pursuant to the Federal Court of Australia Act 1976 and to all other powers thereunto enabling, it is ordered that the Federal Court of Australia Rules, being Statutory Rules, 1977, No. 20, be amended as follows:

Order 4 is repealed and the following Orders are inserted—

Order 4

Administrative Appeals Tribunal Act 1975

I—Appeals

1. In this Order unless the contrary intention appears—

“ Tribunal” means the Administrative Appeals Tribunal;

“ Registrar of the Tribunal ” means the Registrar of the Tribunal, and includes the Deputy Registrar in the Registry in which the matter before the Tribunal was pending, or other officer for the time being discharging the duties of such Registrar or Deputy Registrar.

2. An appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal.

3. A party who commences proceedings in the original jurisdiction of the Court under this Order as appellant from a decision of the Tribunal shall be a plaintiff, and a party against whom the proceedings are commenced as a respondent to the appeal shall be a defendant.

4. (1) The notice of appeal shall—

(a) be signed by the plaintiff or by his solicitor;

(b) be entitled “ In the Federal Court of Australia

…….................District Registry

General Division ”;

 

* Notified in the Commonwealth of Australia Gazette on 18 November 1977.

  Statutory Rules 1977, No. 20.

 

(c) state—

(i) the Division of the Tribunal from which the appeal is brought;

(ii) the decision of the Tribunal from which the appeal is brought, and the date when the decision was made;

(iii) the question or questions of law to be raised on the appeal;

(iv) concisely the grounds of appeal; and

(v) the order sought.

(2) The Court or a Judge may, on such terms and conditions as the Court or Judge thinks fit, allow a notice of appeal to be amended.

(3) On the hearing of an appeal, the plaintiff shall not, without the leave of the Court or a Judge, rely on grounds other than those stated in the notice of appeal.

5. (1) Within the time specified in paragraph 44 (2a) (a) of the Administrative Appeals Tribunal Act 1975, the party desiring to appeal from the decision shall file the notice of appeal in the Registry of the Court at the place where it is desired that the appeal be heard.

(2) Within seven days after the filing of the notice of appeal the plaintiff shall—

(a) serve a copy of the notice of appeal upon all the other parties to the proceedings before the Tribunal; and

(b) serve a copy of the notice of appeal upon the Registrar of the Tribunal.

(3) Service of a copy of a notice of appeal under this rule may be effected by sending it prepaid by registered post or certified mail properly addressed to the person to be served at his usual or last known place of residence or business, or, in the case of the Registrar of the Tribunal, at his office.

6. (1)The Court or a Judge may, in special circumstances, order that such security for costs as the Court or Judge thinks fit be given of the costs of an appeal under this Order.

(2) Subject to sub-rule (1), no security for the costs of an appeal to the Court shall be required.

(3) Sub-rules (1) and (2) do not affect the powers of the Court with respect to costs as are conferred by the application mutatis mutandis of Order 71 of the Rules of the High Court to proceedings in the Court.

 

7. An application to the Court for an order under paragraphs 44 (6) (a) or (b) of the Administrative Appeals Tribunal Act 1975 may in urgent cases be made ex parte to a Judge in Chambers.

8. (1) Within twenty-one days from the service of the notice of appeal upon the Registrar of the Tribunal, there shall be forwarded to the Registry in which the appeal is pending—

(a) all the documents referred to in paragraph 46 (1) (a) of the Administrative Appeals Tribunal Act 1975;

(b) a copy of the decision of the Tribunal;

(c) a copy of the reasons for the decision of the Tribunal;

(d) where a transcript or notes of proceedings before the Tribunal have been taken, that transcript or those notes; and

(e) a list of the documents forwarded, specifying the documents (if any) in respect of which—

(i) the Tribunal has made an order under sub-section 35 (2) of the Administrative Appeals Tribunal Act 1975;

(ii) a certificate of the Attorney-General is in force under sub-section 28 (2); and

(iii) a certificate of the Attorney-General is in force under sub-section 36 (1) and indicating whether an order was made by the Tribunal with respect to such documents under sub-section 36 (3).

(2) When the documents referred to in sub-rule (1) of this rule have been received in the Registry, the Registrar shall, subject to the provisions of sections 35 and 36 forward a copy of the list of documents to all parties to the appeal.

9. (1) At any time after the filing of the notice of appeal the Principal or any District Registrar of the Court may give directions as to any matter which appears to him to be a convenient matter upon which to give directions.

(2) Subject to sub-rule (1), the plaintiff shall enter the appeal for hearing within fourteen days after receiving from the Registrar the list of documents referred to in sub-rule 8 (2) of this Order.

(3) A copy of the entry for hearing shall be served forthwith upon every other party to the appeal.

10. (1) A defendant who desires to appeal from a part of the decision from which the plaintiff has appealed, or to seek a variation of a part of the decision, need not institute a substantive appeal, but he shall, within twenty-one days after the service upon him of the notice of appeal, or within such further or other time as the Court or a Judge fixes, file in the Registry a notice of cross-appeal and serve a copy of the notice upon the plaintiff and any other person affected by the relief which he seeks.

 

(2) The notice of cross-appeal shall state what part of the decision he cross-appeals from or contends should be varied and shall state briefly, but specifically—

(a) the grounds of the cross-appeal;

(b) the question or questions of law to be raised on the cross-appeal; and

(c) the relief which he seeks in lieu of the decision appealed from or the variation of that decision which he seeks.

(3) It is not necessary to give notice of cross-appeal if a defendant proposes to contend that some matter of law has been erroneously decided against him but does not seek a discharge or variation of a part of the decision actually pronounced or made.

11. (1) If the plaintiff does not enter the appeal for hearing within the time prescribed by rule 9 of this Order, any other party to the appeal may enter the appeal for hearing or apply to the Court by motion upon notice for an order dismissing the appeal for want of prosecution.

(2) When an application is made to the Court under sub-rule (1) of this rule, the Court may order the appeal to be dismissed or may make such other order, and upon such terms, as the Court deems just.

II—Reference of Questions of Law

12. (1) A question referred to the Court under section 45 of the Administrative Appeals Tribunal Act 1975 shall be referred in a like manner and form as a case is stated or a question is reserved for the consideration of the Court under section 26 of the Act, and rules 2 to 4 inclusive of Order 6 shall apply thereto mutatis mutandis so far as they are capable of application and subject to any directions of the Court or a Judge.

(2) For the purposes of the application of rules 2 to 4 inclusive of Order 6 pursuant to sub-rule (1) of this rule, the party having the carriage of the proceedings is deemed to be—

(a) where the question is referred by the Tribunal at the request of a party—that party; or

(b) where the question is referred by the Tribunal of its own motion—the person who made the decision to which the proceeding before the Tribunal relates.

(3) The Principal or any District Registrar of the Court may give directions as to any matter which appears to the Registrar to be a convenient matter upon which to give directions.

 

Order 4a

Administrative Decisions (Judicial Review) Act 1977

I—Applications for Orders of Review

1. In this Order unless the contrary intention appears—

“ application ” means an application for an order of review;

“ order of review ” has the same meaning as in the Administrative Decisions (Judicial Review) Act 1977.

2. (1) An applicant is a party who—

(a) makes an application; or

(b) is made a party to section 12 of the Administrative Decisions (Judicial Review) Act 1977 and the Court orders that by reason of his intention to support the application he be added as an applicant.

(2) A respondent is a party to an application other than an applicant.

3. (1) An application shall be in, or substantially in, the form numbered 1 in the First Schedule, with such variations as the circumstances require.

(2) If the grounds of the application include an allegation of fraud or bad faith, the applicant shall give particulars of the fraud or bad faith on which he relies.

4. (1) An application shall state an appointment for a directions hearing.

(2) The application shall, unless the Court or a Judge otherwise orders, be served upon the respondents named in the application not less than five days before the date of the appointment for a directions hearing.

(3) The appointment for a directions hearing to be stated in an application under this rule shall be obtained from the Registry but in urgent cases where an abridgement of time is required shall be obtained from the Court or a Judge.

(4) Where the Court or a Judge makes an order under sub-rule (2) the application shall bear a note of the order made.

5. (1) On the lodging of the application or as soon afterwards as is practicable, the applicant shall file copies of such of the following documents as are in his possession—

(a) a statement of the decision; and

(b) a statement furnished to the applicant pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977.

 

(2) It shall not be necessary to serve copies of the documents referred to in sub-rule (1) on the person who made the decision, but service shall be effected on any other respondent within five days after the application is lodged, the documents are furnished to the applicant, or the respondent became a party, whichever last occurs.

6. Before the date appointed for a directions hearing under rule 4 and before filing any document, a respondent who wishes to be heard shall enter an appearance.

7. (1) Affidavits in support of an application may be filed upon the lodgment of the application or later as the circumstances of the case may require.

(2) Affidavits in reply to an application may be filed by a respondent upon the entry of his appearance or later as the circumstances of the case may require.

(3) A copy of an affidavit filed by a party shall be served on every other party to the application.

8. (1) On the directions hearing the Court or a Judge shall give such directions with respect to the conduct of the proceedings as the Court or Judge thinks proper.

(2) Without prejudice to the generality of sub-rule (1) the Court or Judge may—

(a) make orders with respect to—

(i) discovery and inspection of documents;

(ii) interrogatories;

(iii) inspections of real or personal property;

(iv) admissions of fact or of documents;

(v) the defining of the issues by pleadings or otherwise;

(vi) the filing of affidavits;

(vii) the giving of particulars;

(viii) the place, time and mode of trial;

(ix) costs;

(b) order that evidence of a particular fact or facts shall be given at the hearing—

(i) by statement on oath upon information and belief;

(ii) by production of documents or entries in books;

(iii) by copies of documents or entries;

(iv) otherwise as the Court or Judge directs;

(c) order that no more than a specified number of expert witnesses may be called;

(d) appoint a Court expert in accordance with Order 38 of the High Court Rules;

(e) order the action to be set down for trial forthwith.

(3) The Court or Judge may revoke or vary any order made under sub-rules (1) and (2).

9. On the directions hearing the Court or Judge shall—

(a) fix a date for a further directions hearing;

(b) fix a date for hearing;

(c) direct the parties to arrange with the Registrar a date for hearing; or

(d) fix a date after which either party may give notice of trial.

10. (1) If the Court or Judge thinks fit and the parties agree the Court or Judge may hear and determine the proceedings on a directions hearing.

(2) If no applicant appears before the Court or Judge on the directions hearing, the Court or Judge may dismiss the application or make any other order which is thought proper.

(3) If no respondent appears before the Court or Judge on the directions hearing, the Court or Judge may allow the application or make any other order which is thought proper.

11. (1)On the directions hearing each party shall, so far as is practicable, apply for any interlocutory order or directions which he may require.

(2) An application by a party for any interlocutory order or directions made after the directions hearing shall be made by a summons for directions in accordance with the High Court Rules.

II—Other Applications

12. (1) This rule applies whether or not an application for an order of review has been lodged.

(2) An application other than an application for an order of review shall be made by motion or summons.

(3) An application under section 15 of the Administrative Decisions (Judicial Review) Act 1977 may be made ex parte to a Judge in Chambers.

 

First Schedule

Form 1

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY No. Of 19

GENERAL DIVISION

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 identify decision)

OR

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

OR

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

OR

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

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

1.

2.

etc.

The grounds of the application are—

1.

2.

etc.

Particulars of fraud or bad faith if alleged.

The applicant claims—

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

2.

etc.

Dated this day of  19 .

 

(Sgd Applicant or Counsel or

Solicitor for the Applicant)

To the Respondent, (address)

If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the application may be dealt with and you will be liable to suffer judgment or an order against you in your absence.

Before any attendance at that time you must file an appearance in the Registry.

 

Form 1—continued

APPOINTMENT FOR DIRECTIONS HEARING

Time: (Date and time to be entered by Registry unless fixed by Court).

Place: (Address of Court)

(Where the time for service has been abridged, add—

The time by which this application is to be served has been abridged by the Court to (specify time).)

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

Order 4b

Health Insurance Act 1973

1. In this Order—

“ Tribunal ” means the Medical Services Review Tribunal or the Optometrical Services Review Tribunal whose decision is under appeal;

“ Minister ” has the same meaning as in the Health Insurance Act 1973;

“ Committee ” means the Medical Services Committee of Inquiry upon whose recommendation the Minister made the determination that gave rise to the proceedings.

2. An appeal to the Court from a decision of the Tribunal shall be instituted and conducted in a like manner as an appeal to the Court from a decision of the Administrative Appeals Tribunal is instituted and conducted and rule 1 to 11 inclusive of Order 4 shall apply thereto mutatis mutandis so far as they are capable of application and subject to any directions of the Court or a Judge.

3. The documents to be forwarded by the Tribunal to the Court pursuant to the application mutatis mutandis of rule 8 of Order 4 shall be copies of—

(a) the reference to the Committee that gave rise to the Minister’s determination;

(b) the transcript of proceedings at the hearing conducted by the Committee for the purposes of that reference;

(c) the Committee’s report on that reference and any documents sent to the Minister with that report;

(d) the Minister’s determination;

(e) the notice requesting the Minister to refer his determination to the Tribunal;

(f) the reasons for the decision of the Tribunal;

(g) the formal decision of the Tribunal;

(h) the transcript of proceedings before the Tribunal;

(i) any other documents before the Tribunal; and

(j) a list of the documents forwarded.

Dated this twentieth day of October 1977.

NIGEL BOWEN C.J.

R. A. SMITHERS J.

R. W. FOX J.

C. A. SWEENEY J.

JOHN A. NIMMO J.

W. E. FORSTER J.

XAVIER CONNOR J.

A. E. WOODWARD J.

R. J. A. FRANKI J.

(L.S.) B. B. RILEY J.

J. B. SWEENEY J.

J. H. MUIRHEAD J.

P. G. EVATT J.

R. C. WARD J.

R. J. B. ST. JOHN J.

R. M. NORTHROP J.

F. G. BRENNAN J.

J. A. KEELY J.

WILLIAM P. DEANE J.

JOHN TOOHEY J.

J. T. HOWARD

Registrar