Federal Court Rules (Amendment) (Cth)

Statutory Rules 1994 No. 463 1

__________________

Federal Court Rules 2 (Amendment)

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

Dated 20 December 1994.

 M. E. J. BLACK C. J.

 R. M. NORTHROP J.

 J. A. KEELY J.

 J. F. GALLOP J.

 J. S. LOCKHART J.

 I. F. SHEPPARD J.

 K. J. JENKINSON J.

 A. R. NEAVES 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.

 W. M. C. GUMMOW J.

 R. S. FRENCH J.

 M. C. LEE J.

 J. W. VON DOUSSA 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.

 C. J. S. M. CARR J.

 M. F. MOORE J.

 C. M. BRANSON J.

 K. E. LINDGREN J.

 B. TAMBERLIN J.

 R. SACKVILLE J.

 S. M. KIEFEL J.

 Judges of the Federal

  Court of Australia

J. T. HOWARD

Registrar

____________

1.   Commencement

1.1   These Rules commence on 30 December 1994.

2.   Amendment

2.1   The Federal Court Rules are amended as set out in these Rules.

3.   Order 47, new Division 3

3.1   After rule 10, add:

“Division 3—Marshal (Admiralty Act 1988)

Marshal

 “11.If, in relation to a proceeding in the Court, a power, function or duty is conferred or imposed on a Marshal by the rules made under the Admiralty Act 1988, the Sheriff or the Deputy Sheriff of the Court is authorised to exercise that power or function or perform that duty.”.

4.   Order 52B, rule 4 (Commencement of Appeals)

4.1   Subrule 4 (1):

Omit “Order 4, rule 1.”, substitute “subrule 1 (1) of Order 4.”.

5. Order 52B, rule 5

(Documents to be filed and served by the Commissioner—matters other than private rulings)

5.1   Omit subparagraph 5 (a) (i).

5.2   Omit subparagraph 5 (b) (i).

6.   Order 52B, rule 6 (Notice of setting down for hearing)

6.1   Subrule 6 (1):

Omit “notify”, substitute “advise”.

6.2   Subrule 6 (2):

Omit the subrule, substitute:

“(2)

Within 7 days after the date of receipt of the Registrar’s advice, the applicant must file in the Registry a notice in accordance with Form 55E and serve a copy on the respondent.”.

7.   New Order 52C

7.1   After Order 52B, insert:

“ORDER 52C—APPEALS AGAINST DEPARTURE PROHIBITION ORDERS UNDER TAXATION ADMINISTRATION ACT 1953

Interpretation

“1.

(1) In this Order, unless the contrary intention appears:

‘appeal’ means an appeal against a departure prohibition order;

‘Taxation Administration Act’ means the Taxation Administration Act 1953.

  “(2)

Unless the contrary intention appears, expressions used in this Order that are defined for the purposes of Part IVA of the Taxation Administration Act have the same meaning in this Order as they have in that Part.

Application of Order 52A

“2.

Subject to this Order and to any other law of the Commonwealth, Order 52A rules 1, 4, 5, 13 and 14 apply to an appeal.

Commencement of appeals

“3.

(1) An appeal must be commenced by filing an application in accordance with subrule 1 (1) of Order 4.

“(2)

The person filing the application is to be the applicant and the Commissioner is to be the respondent.

“(3)

Rules 4, 5, 7, 8, 10, 11, 13 and 14 of Order 4 apply to an appeal, with any appropriate changes and subject to any direction of the Court or a Judge.

“(4)

An application must be in accordance with Form 55DA.

“(5)

The applicant must serve a sealed copy of the application on the Commissioner at the office of the Australian Government Solicitor situated in the district of the Registry in which the departure prohibition order was made.

“(6)

The date fixed for the directions hearing must be a date not later than 21 days after filing of the application, unless the parties agree to a later date.

Documents to be filed and served by the Commissioner

“4.

Within 14 days after a sealed copy of the application is served on the Commissioner, the Commissioner must:

• (a)

  file:

  • (i)

    any document on which the Commissioner relied in making the departure prohibition order; and

  • (ii)

    any other document in the Commissioner’s possession or under the Commissioner’s control that is relevant to the appeal; and

• (b)

  serve on the applicant a list of documents filed under subparagraphs (a) (i) and (ii).

Notice of setting down for hearing

“5.

(1) The Registrar must advise the applicant in writing of the date, time and place of the hearing as soon as practicable after an appeal is set down for hearing.

“(2)

Within 7 days after the date of receipt of the Registrar’s advice, the applicant must file in the Registry a notice in accordance with Form 55E and serve a copy on the respondent.”.

8.   Order 58, rule 1 (Interpretation)

8.1   Definition of “Plant Variety Rights Act”:

Omit the definition, substitute:

“‘Plant Breeder’s Rights Act’ means the Plant Breeder’s Rights Act 1994;”.

8.2   Insert the following definition:

“‘PBR’ has the same meaning as in the Plant Breeder’s Rights Act 1994;”.

9.   Order 58, Heading to Division 6

9.1   Omit the heading, substitute:

“Division 6—Plant Breeder’s Rights Act”.

   

10.   Order 58, rule 27 (Applications under Plant Variety Rights Act (infringements))

10.1   Omit the rule, substitute:

Applications under Plant Breeder’s Rights Act (infringements)

“27.

(1) In proceedings for infringement of a PBR, particulars of the infringement must specify the manner in which it is alleged the PBR has been infringed and must give at least one instance of each type of infringement alleged.

 “(2)A respondent in the proceedings who relies on subsection 54 (2) of the Plant Breeder’s Rights Act by way of counter-claim must give:

• (a)

  particulars of the facts intended to be relied on to show that the plant variety was not a new plant variety; or

• (b)

  particulars of the facts intended to be relied on as facts which, if known, would have resulted in the refusal of the grant of the PBR.”.

11.   Order 72, rule 11 (Sunset provision)

11.1   Omit the rule.

12.   First Schedule

12.1   New Form 55DA:

After Form 55D, insert:

FORM 55DA

APPLICATION

(Order 52C, subrule 3 (4))

(Heading as in Form 1)

The applicant appeals to the Court against the departure prohibition order referred to below and applies for the order to be set aside or to be varied in the manner set out below.

Departure Prohibition Order appealed against: (specify)

Orders Sought: (specify the orders or relief sought )

Grounds: (specify grounds relied on in support of the orders or relief sought)

Date: eg 7 May 19.

  .........................................................................

   (signature of applicant or applicant’s solicitor)

To: The respondent

* (address)

A directions hearing in this application will be heard by the Court at the time and place specified below.

 If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment may be given or an order made in your absence. Before attending at this time you must file a notice of appearance in the Registry.

Time: (date and time to be entered by Registry unlessfixed by Court)

Place: (address of Court)

Date: eg 7 May 19.

 .................................

  (signed) Registrar

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

*NOTE: The address of the respondent to be inserted is the address of the office of the Australian Government Solicitor in the district of the Registry in which the departure prohibition order was made.

    

12.2   Form 66:

Subparagraph (c) (i):

Omit the subparagraph, substitute:

• “(i)

  you need not comply with this subpoena unless allowances and travelling expenses sufficient to meet your reasonable expenses are paid, or tendered to you, or vouched for at the time of service of the subpoena, or not later than a reasonable time before the day on which you would be required to attend the Court; and”.

12.3   Form 66:

Paragraph (c):

After subparagraph (iii), add:

• “; and (iv)

  if you are not a party to the proceeding and you incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred or lost by you in complying with the subpoena.”.

12.4   Form 68:

Omit:

• “(c)

  on (insert date) at (insert time) and until you are excused from further attending;

but you need not attend on any day unless reasonable expenses have been paid or tendered to you.”, substitute:

• “(c)

  on (insert date) at (insert time) and until you are excused from further attending, but:

  • (i)

    you need not comply with this subpoena unless allowances and travelling expenses sufficient to meet your reasonable expenses are paid, or tendered to you, or vouched for at the time of service of the subpoena, or not later than a reasonable time before the day on which you would be required to attend the Court; and

       
  • (ii)

    if you are not a party to the proceeding and you incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred or lost by you in complying with the subpoena.”.

12.5   Form 69

Subparagraph (c) (i):

Omit the subparagraph, substitute:

• (i)

  you need not comply with this subpoena unless allowances and travelling expenses sufficient to meet your reasonable expenses are paid, or tendered to you, or vouched for at the time of service of the subpoena, or not later than a reasonable time before the day on which you would be required to attend the Court; and”.

12.6   Form 69:

Paragraph (c):

After subparagraph (ii), add:

• “; and (iii)

  if you are not a party to the proceeding and you incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred or lost by you in complying with the subpoena.”.

 

NOTE

1. Notified in the Commonwealth of Australia Gazette on 30 December 1994.

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 and 332.