Federal Court Rules (Amendment) (Cth)

Statutory Rules 1994

No. 130 1

__________________

Federal Court Rules 2(Amendment)

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

Dated 15 April 1994.

 M. E. J. BLACK C. J.

 C. A. SWEENEY J.

 R. M. NORTHROP J.

 J. F. GALLOP J.

 J. D. DAVIES 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. 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

 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.

 Judges of the Federal

 Court of Australia

J. T. HOWARD

Registrar

____________

1.   Commencement

1.1   These Rules commence on 9 May 1994.

2.   Amendment

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

3.   Order 1, rule 7 (Forms)

3.1   After subrule 7 (1), insert:

“(1A)

A reference in a provision of the Rules to a Form by number is to be read as a reference to the Form so numbered in the First Schedule.”.

4.   Order 53, rule 18 (Setting down appeal)

4.1   Omit the rule, substitute:

Setting down appeal

 “18. (1) Within 14 days after settlement of appeal papers, an applicant must file a notice in accordance with Form 44 requesting the Registrar to fix a date for trial.

“(2)

Within 7 days after being notified by the Registrar of the date for trial, the applicant must:

• (a)

  file in the Registry a notice in accordance with Form 44A and, at the same time, pay the fee (if any) payable under regulation 2A of the Federal Court of Australia Regulations; and

• (b)

  serve a copy of the notice on all other parties to the proceeding.”.

5.   Order 62, rule 41 (Appointment to tax bill)

5.1   Subrule 41 (2):

Omit “10 days”, substitute “7 days”.

6.   Order 62, rule 46 (Assessment procedures)

6.1   After subrule 46 (6), insert:

“(6A)

If, after:

• (a)

  completion of taxation or assessment of a bill; and

• (b)

  a period of 21 days since notification of the parties by the Registrar;

no party has claimed an amount paid into the Court as security, the Registrar must refund the amount to the party by whom it was paid.”.

7.   New Order 76

7.1   Add at the end:

“ORDER 76

DETERMINATIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION OR PRIVACY COMMISSIONER

Interpretation

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

‘appropriate Registry’ means the District Registry in the State or Territory in which the Commission heard the complaint the subject of a determination, or the Registry specified by the Court or a Judge under subrule 5 (2);

‘Commission’ means the Human Rights and Equal Opportunity Commission, or Privacy Commissioner, as the case requires;

‘determination’ means a determination of the Commission under a Discrimination Act or Privacy Act;

‘Disability Discrimination Act’ means the Disability Discrimination Act 1992;

‘Discrimination Act’ means the Disability Discrimination Act, the Racial Discrimination Act or the Sex Discrimination Act, as the case requires;

‘Privacy Act’ means the Privacy Act 1988;

‘Racial Discrimination Act’ means the Racial Discrimination Act 1975;

‘registered determination’ means a determination that has been registered in the Court;

‘Sex Discrimination Act’ means the Sex Discrimination Act 1984.

“(2)

An expression used in this Order that is also used in a provision of a Discrimination Act or the Privacy Act under which, or in relation to which, proceedings are taken has the same meaning in this Order as it has in that provision.

   

Application of Order

 “2. Subject to this Order, the other Orders of these Rules apply to proceedings in relation to a registered determination.

Form and filing of application for registration—Form 142

 “3. Application for registration of a determination of the Commission must be made by filing an application in accordance with Form 142.

Number assigned

 “4. The number assigned by the Court to a registered determination must be shown on any document filed in relation to an application for review or enforcement of the determination.

Application for review or enforcement

 “5. (1) An application for review or enforcement of a registered determination must be filed in the appropriate Registry.

“(2)

Before or after the filing of an application for review or enforcement, the Court or a Judge may order that a nominated Registry is the appropriate Registry.

“(3)

An application for an order under subrule (2) made before filing an application for review or enforcement may be made by filing an originating motion supported by affidavit, and the motion may be heard ex parte.

Form and filing of application for review

 “6. (1) An application for review of a registered determination must be made by filing an application substantially in accordance with Form 5.

“(2)

An application for review and all subsequent documents filed in the proceeding must be entitled:

• (a)

  “In the Federal Court of Australia” (and specify the Registry in which filed); and

• (b)

  as between the party applicant and the party respondent.

“(3)

An application must be signed by the applicant or the applicant’s solicitor and must:

• (a)

  identify the registered determination of which review is sought and the member or members of the Commission who made the determination; and

• (b)

  state the date on which the determination was made and where it was made; and

• (c)

  state the order sought; and

• (d)

  state, briefly but specifically, the grounds relied on in support of the order sought.

“(4)

An application may be amended on such terms and conditions as the Court or a Judge thinks fit.

Leave to apply for review—Form 143

 “7. (1) An application for leave to apply for review of a registered determination after the time for an application for review as specified by Discrimination Act or Privacy Act has expired must be made by filing an application substantially in accordance with Form 143.

“(2)

An application for leave must be accompanied by an affidavit showing:

• (a)

  the nature of the case; and

• (b)

  the questions involved; and

• (c)

  the exceptional circumstances relied on for the grant of leave; and

• (d)

  the further orders, if any, to be sought if leave is granted.

Service of application for review

 “8. Within 14 days after filing of an application for review, the applicant must serve a copy of the application on the Commission and a copy personally on each party to the complaint heard by the Commission.

Documents to be provided to Court

 “9. Within 21 days after service of an application for review on the Commission, the Commission must lodge with the appropriate Registry:

• (a)

  a copy of the Commission’s written reasons for the determination; and

• (b)

  a copy of all documents that were before the Commission; and

• (c)

  a list of the documents and information (including written advice) supplied to the Commission; and

• (d)

  a copy of the record (including any tape recording) of the hearing of the complaint by the Commission.

Evidence

 “10. Material before the Commission on the hearing of the complaint is admissible in evidence in the application for review, saving all just exceptions.

Suspension of operation of determination

 “11. An application for review of a registered determination does not affect the operation of the determination, and an application for an interim order suspending operation of the whole or any part of the determination must be made by motion upon notice.

Form and filing of application for enforcement

 “12. An application for enforcement of a registered determination must be made by filing an application substantially in accordance with Form 5.

8.   First Schedule (Forms)

8.1   Form 44:

After “(Order 30, subrule 2 (1)”, insert “and Order 53, subrule 18 (1)”.

8.2   Form 44A:

Omit “(Order 30, rule 4; Order 52, subrule 29 (5))”, substitute “(Order 30, rule 4, Order 52, subrule 29 (5) and Order 53, subrule 18 (2))”.

   

8.3   Add at the end:

 

“FORM 142

APPLICATION FOR REGISTRATION OF DETERMINATION

(Order 76, rule 3)

 IN THE FEDERAL COURT

 OF AUSTRALIA

(name of State) DISTRICT REGISTRY No. of 19

 GENERAL DIVISION

 [Human Rights and Equal

 Opportunity Commission

 or Privacy Commissioner]

 Applicant for registration

 ex parte

 [Determination complainant]

 [Determination respondent]

APPLICATION FOR REGISTRATION OF DETERMINATION

The (Human Rights and Equal Opportunity Commission or Privacy Commissioner) requests registration of the attached determination (original determination attached) dated (date of determination) in the matter of (name of matter) , an (Inquiry or Investigation) under the (name of Discrimination Act or Privacy Act) .

Dated

                                           19 .

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

 [Human Rights and Equal

Opportunity Commission

or Privacy Commissioner]

REGISTRATION

The determination referred to in this application is registered in accordance with subsection

 (subsection and name of Discrimination Act or Privacy Act)   on (date) .

Dated

                                           19 .

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

 District Registrar

____________

FORM 143

APPLICATION FOR LEAVE TO APPLY FOR REVIEW OF REGISTERED DETERMINATION

(Order 76, rule 7)

 IN THE FEDERAL COURT

 OF AUSTRALIA

(name of State) DISTRICT REGISTRY No. of 19

 GENERAL DIVISION

 

 [Applicant for leave]

 Applicant

 [Determination complainant]

 Respondent

APPLICATION FOR LEAVE—REVIEW

OF REGISTERED DETERMINATION

1. The applicant applies for leave to apply for review of registered determination number (number assigned by the Court) being a determination of (the member or members of the Commission who made the determination) made on (date) at (place).

2. Leave is required because an application for review was not filed within the time specified in (subsection and name of Discrimination Act or Privacy Act).

3. The grounds of the application appear in the affidavit/s (name/s of deponents) sworn (date).

Date: . . . . . . . . . . . . . . . . . . . . . . . . . . .

 Signed

(Applicant or applicant’s solicitor)

To the respondent(s)

(Address/es)

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 or an order may be made against you in your absence.

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

Appointment for Directions Hearing

Time: (Date and time to be entered by Registry)

Place: (Address of Court)

(Signed, Registrar)

Date: eg 7 May 19

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

• Facsimile number:

     (insert)Telephone number: (insert)”

NOTES

1. Notified in the Commonwealth of Australia Gazette on 6 May 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 No. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 Nos. 40, 45, 137, 225 and 290; 1994 No. 63.