Federal Court Rules (Amendment) (Cth)
__________________
WE, Judges of
the Federal Court of Australia, make the following Rules of Court under the
Dated 19 December 1995.
M. E. J. BLACK C. J.
J. A. KEELY J.
J. D. DAVIES J.
J. S. LOCKHART J.
I. F. SHEPPARD J.
K. J. JENKINSON J.
B. A. BEAUMONT J.
M. R. WILCOX J.
J. E. J. SPENDER J.
P. R. A. GRAY J.
J. C. S. BURCHETT J.
J. A. MILES J.
D. M. RYAN J.
R. S. FRENCH J.
M. R. EINFELD J.
M. L. FOSTER J.
M. C. LEE J.
H. W. OLNEY J.
J. W. VON DOUSSA J.
D. G. HILL J.
M. F. O’LOUGHLIN J.
D. F. O’CONNOR J.
T. J. HIGGINS J.
P. C. HEEREY J.
D. P. DRUMMOND J.
R. E. COOPER J.
A. P. WHITLAM J.
M. J. BEAZLEY J.
C. J. S. M. CARR J.
M. F. MOORE J.
C. M. BRANSON J.
J. H. MATHEWS J.
K. E. LINDGREN J.
B. TAMBERLIN J.
R. SACKVILLE J.
S. M. KIEFEL J.
R. D. NICHOLSON J.
R. A. SUNDBERG J.
S. R. MARSHALL J.
J. R. LEHANE J.
A. M. NORTH J.
R. N. MADGWICK J.
Judges of the Federal
Court of Australia
W. G. SODEN
Registrar
____________
1.1 Subject to subrule 1.2, these Rules commence on 1 January 1996.
1.2 Rule 25 commences on 1 April 1996.
2.1 The Federal Court Rules are amended as set out in these Rules.
3.1 Definition of “document”:
Omit
“s. 7A of the
3.2 Definition of “examination”:
Omit
“Part IIIB of the
3.3 Definition of “examiner”:
Omit
“paragraph 7V (1) (a) or (b) of the
4.1 Subrule 6 (2):
Omit the subrule, substitute:
If a person is represented by a solicitor, the address for service must be the address of the solicitor or of the solicitor’s agent located within the District for the Registry in which the originating process is filed.”.
5.1 Paragraph 4 (1) (d):
Add at the end:
“in accordance with rule 6 of Order 7.”.
6.1 Omit “of the Court.”, substitute “of the Court or a Judge.”.
7.1 Omit the heading, substitute:
8.1 Subrule 2 (1):
Omit
“or under paragraph 7V (1) (c) of the
9.1 Omit the rule, substitute:
If
an order is made under paragraph 7 (1) (a) or (b) of the
10.1 Omit
“or under paragraph 7V (1) (a) or (b) of the
11.1 Subrule 5 (1):
Omit the subrule, substitute:
If:
(a) a subpoena is issued in a proceeding: and
(b) the person named in the subpoena is an officer of a bank; and
(c) the bank is not a party to the proceeding; and
(d) the subpoena requires the officer to produce a banker’s book, including any ledger, day-book, cashbook, account book or other accounting record used in the ordinary business of the bank;
the
subpoena must, unless the Court otherwise orders, state that the officer may
produce proof of the relevant entries in accordance with section 48 of the
12.1 Subrule 4 (3):
Omit
“subsection 7V (1) of the
13.1 Omit “10%”, substitute “12%”.
14.1 After Order 53A, insert:
“
This Order applies to appeals from the Superannuation Complaints Tribunal.
An
appeal to the Court under section 46 of the
The applicant must serve a copy of the notice of appeal:
(a) on the Tribunal; and
(b) on each other party to the proceeding before the Tribunal personally;
within 7 days of the day on which the notice of appeal is filed.
An
application for an extension of time specified in paragraph
46 (2) (a) of the
15.1 Definition of “Commissioner”:
Omit the definition, substitute:
“
(a) in relation to proceedings under the Patents Act—the person holding the office of Commissioner under that Act; and
(b) in relation to proceedings under the Designs Act—the person holding the office of Registrar under that Act; and
(c) in relation to proceedings under the Trade Marks Act—the person holding the office of Registrar under that Act; and
(d) in relation to proceedings under the Olympic Insignia Protection Act—the person holding the office of Registrar under the Designs Act;
whether or not any two or more of those offices must be, or are for the time being, occupied by the same person.
16.1 After subrule 4 (2), insert:
The notice of appeal must be served on the Commissioner or Secretary, as the case requires, and all other parties to the appeal within 5 days of day on which the notice of appeal is filed.”.
17.1 Omit “Trade Practices Tribunal”, substitute “Australian Competition Tribunal”.
18.1 Subrule 3 (1):
Omit “Trade Practices Commission” (twice occurring), substitute “Australian Competition and Consumer Commission”.
19.1 Omit the order, substitute:
“
This Order deals with the administration of money paid into Court.
In this Order, unless the contrary intention appears:
(1) The District Registrar for each District Registry must establish with a bank an account entitled “Federal Court of Australia Litigants’ Fund”.
The District Registrar must appoint a signing officer and a counter signing officer for the operation of the account.
Subject to subrule 5 (1), money paid into Court must be paid to the credit of a Litigants’ Fund.
A bank referred to in subrule (1) is the bank approved from time to time by the Registrar of the Court.
A Litigants’ Fund comprises the money standing, from time to time, to the credit of the account established under subrule (1).
(1) Money may be paid out of a Litigants’ Fund only in accordance with an order of the Court or a Judge.
An order that directs that money in Court be paid out of a Litigants’ Fund, or otherwise dealt with, must state the particulars of the payment out, the manner in which the money is otherwise to be dealt with and any other action to be taken by the Registry.
(1) The Court or a Judge may, at any time, order that money paid, or to be paid, into Court, be paid, credited or applied in a manner other than by payment into the Litigants’ Fund.
In the event that any interest is, or is to be, earned on money mentioned in subrule (1), the Court or a Judge may give directions as to the disbursement of the interest.
(1) Within 3 days after payment of money into Court, the District Registrar must notify each party in writing that the money has been:
(a) received; and
(b) paid, credited or applied as required under these Rules or an order of the Court.
If money that has been paid into Court is, after notice has been given under subrule (1), paid out, credited or applied under an order of the Court, the District Registrar must notify each party in writing, within 3 days of the payment out, credit or application, as the case may be, of the order and the details of the transaction.”.
20.1 Omit the heading, substitute:
“
21.1 Omit
“
21.2 Paragraph 1 (b):
Omit
“
22.1 Subrule 2 (1):
Omit
“subsection 89 (2) of the
23.1 Omit the rule, substitute:
Except
for an application under section 157 of the
24.1 Add at the end:
This rule has no effect in relation to statutory demands served after 31 March 1996.”.
25.1 After rule 36A, insert:
(1) An affidavit referred to in subsection 459E (3) of the Corporations Law must:
(a) subject to subrule (2), be made by the creditor or, if there is more than one creditor, by one of them; and
(b) set out the facts entitling the deponent to make the affidavit; and
(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts; and
(d) state that the deponent believes those matters to be true; and
(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.
In the case of a creditor that is:
(a) a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the creditor; and
(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the creditor; and
(c) a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the creditor.
An affidavit under this rule must:
(a) be in accordance with Form 93BA; and
(b) contain the statement headed “Important Note” set out in the Form; and
(c) not state a proceeding number.
An affidavit made under this rule must not be filed with the Court.
Despite subrule (1), for the purposes of subsection 459E (3) of the Corporations Law, an affidavit referred to in that subsection that complies with the rules of the Supreme Court of the State or Territory in which the registered office of the company to be served is situated is taken to be an affidavit that complies with this rule.
For
the purposes of this rule ‘
26.1 Subrule 37 (4), (5) and (6):
Omit the subrules, substitute:
If an application referred to in subrule (2) is filed and served, the applicant must also file and serve an affidavit, which may be in accordance with Form 128:
(a) made not earlier than 7 days before the application is filed; and
(b) setting out the prescribed information.
“(5) If an application referred to in subrule (2) is an application to which paragraph 459Q (c) of the Corporations Law applies, the affidavit that must accompany the application must:
(a) be in accordance with Form 94; and
(b) subject to subrule (6), be made by the applicant or, if there is more than one applicant, by one of them; and
(c) set out the facts entitling the deponent to make an affidavit; and
(d) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts;
(e) state that the deponent believes those matters to be true; and
(f) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.
In the case of an applicant that is:
(a) a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the applicant; and
(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the applicant; and
(c) a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the applicant.
For
the purposes of this rule ‘
“(6B) On the filing and serving of an application referred to in subrule (3), the applicant must also file and serve an affidavit:
(a) setting out the material facts relied on in support of the application; and
(b) unless the Court orders otherwise—made by a person who has knowledge of the facts relied on to support the application.”.
26.2 Subrule 37 (8):
Omit the subrule, substitute:
As soon as practicable after filing the application and any affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) must serve on the company, in a manner permitted by section 220 of the Corporations Law:
(a) a signed and sealed copy of the application; and
(b) the affidavits on which it relies; and
(c) any nomination of a liquidator under subrule (7).”.
27.1 Omit the rule.
28.1 Omit the rule.
29.1 Omit the order, substitute:
“
This rule applies to determinations of:
(a) the Human Rights and Equal Opportunity Commission under the
Disability Discrimination Act 1992 , theRacial Discrimination Act 1975 and theSex Discrimination Act 1984 ; and(b) the Privacy Commissioner under the
Privacy Act 1988 .
A proceeding for an order to enforce a determination to which this Order applies must be commenced by filing an application in accordance with Form 5.
The applicant must serve a copy of the application on each other party to the matter to which the determination relates and on the Commission or Commissioner, as the case may be, within 7 days of the day on which the application is filed.”.
30.1 Form 31A:
89 (2) of the
30.2 Form 41:
Subparagraph (c) (iii):
Omit
all the words after “book,”, substitute “including a ledger, day-book, cash
book, account book or other accounting record used in the ordinary business of
the bank, you need not produce it if you produce proof of the relevant entries
in accordance with section 48 of the
30.3 Form 43:
Subparagraph (c) (ii):
Omit
all the words after “book,”, substitute “including a ledger, day-book, cash
book, account book or other accounting record used in the ordinary business of
the bank, you need not produce it if you produce proof of the relevant entries
in accordance with section 48 of the
30.4 Form 55A:
Omit “(Order 53, rule 2 and Order 59, rule 1)”, substitute:
“(Order 53, rule 2, Order 53B, rule 2 and Order 59, rule 1)”.
30.5 Form 55B:
Omit the Form, substitute:
“FORM 55B
APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL FROM TRIBUNAL
(Order 53, rule 7 and Order 53B, rule 4)
IN THE FEDERAL COURT OF
AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
No. of 19 .
BETWEEN A.B. Applicant
and
C.D. Respondent
APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL FROM TRIBUNAL
1. The applicant applies for an extension of time in which to *file and *serve a notice of appeal from the *decision/*determination of
(specify Tribunal) constituted by(specify members constituting Tribunal) given on(specify date) at(specify place) in which the Tribunal *decided/*determined(specify decision or determination from which the appeal is brought) .2. An extension of time is required because a notice of appeal was not *filed and *served, as the case may be, within the *time/*times specified in
(specify provision or provisions of the Act limiting the time for filing or service, or both, and allowing the Court to extend that time) .3. The grounds of the application appear in the annexed affidavit.
*
Date: eg. 7 May 19 ................................................................
Time and date for hearing of application:
(to be inserted by Registry)
Place:
–––––––––––––––
30.6 New Form 93BA:
After Form 93B, insert:
“FORM 93BA
AFFIDAVIT UNDER SECTION 459E OF THE
CORPORATIONS LAW
(Order 71, rule 36AB)
Creditor
Debtor
AFFIDAVIT
On
(date) , I(name, address and occupation) say on oath:1.
(Set out the matters referred to in paragraph (b) of subrule 36AB (1) of Order 71) .2. I believe that the amount of $ , being the *debt/*the total of the amounts of the debts specified in the accompanying demand, is due and payable by the debtor to the creditor.
3.
(Set out the matters referred to in paragraph (c) of subrule 36AB (1) of Order 71). 4. I believe that there is no genuine dispute about the existence or amount of the* debt/*debts referred to in paragraph 2.
*
SWORN at: )
before me: )
..................................................
Justice of the Peace
[IMPORTANT NOTE:
1. This affidavit accompanies a statutory demand under section 459E of the Corporations Law.
2. *No proceedings/*No winding up proceedings have been commenced in respect of the debt to which this affidavit relates.
3. Any questions relating to this affidavit or any debt to which it relates should be directed either to the person named as creditor or the creditor’s solicitors.]”.
*
–––––––––––––––––
30.7 Form 94:
Omit the Form, substitute:
“FORM 94
AFFIDAVIT VERIFYING DEBT UNDER SECTION 459Q OF THE CORPORATIONS LAW
(Order 71, subrule 37 (4))
On
(date) , I(name, address and occupation) say on oath:1.
(Set out the matters referred to in paragraph (c) of subrule 37 (6) of Order 71) .2. I believe that the amount of $ , being the *debt/*total of the amounts of the debts specified in the statutory demand served on the respondent, is due and payable by the respondent to the applicant.
3.
(Set out the matters referred to in paragraph (d) of subrule 37 (6) of Order 71). 4. I believe that there is no genuine dispute about the existence or amount of the* debt/*debts referred to in paragraph 2.
5. The respondent has failed to pay the said amount to the applicant or to secure or compound for that amount to the reasonable satisfaction of the applicant.
*
omit if inapplicable
SWORN at: )
before me: )
..................................................
Justice of the Peace”.
––––––––––––––––
30.8 Forms 138A, 139 and 140:
Omit the forms.
____________________________________________________________
1. Notified in the
Commonwealth of Australia Gazette on 22 December 1995.2. 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 No. 40, 45, 137. 225 and 290; 1994 Nos. 63, 130, 224, 279, 332 and 463; 1995 Nos. 31, 46 and 239.
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