Federal Court Rules (Amendment) (Cth)

Statutory Rules 1997No. 425 1

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Federal Court Rules2 (Amendment)

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

Dated 18 December 1997.

M.E.J. BLACK C.J.

R.M. NORTHROP J.

J.F. GALLOP J.

J.D. DAVIES 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.

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.

J.H. MATHEWS 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.

J.R.F. LEHANE J.

A.M. NORTH J.

R.N. MADGWICK J.

R. MERKEL J.

J.R. MANSFIELD J.

R.A. FINKELSTEIN J.

G.M. GIUDICE J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

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1.   Amendment

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

[NOTE: These Rules commence on gazettal: see Acts Interpretation Act 1901, s 48, as applied by s 59 (4) of the Federal Court of Australia Act 1976.]

2.   New Order 80

2.1   After Order 79, insert the following Order:

“ORDER 80—CONSTITUTIONAL CONVENTION (ELECTION) ACT 1997

Citation

 “1. This Order may be cited as the Constitutional Convention (Election) Rules.

Definitions for Order 80

“2. In this Order:

“‘Constitutional Convention Act’ means the Constitutional Convention (Election) Act 1997.

Expressions used in the Constitutional Convention Act

 “3. Unless the contrary intention appears, an expression used in this Order and in the Constitutional Convention Act has the same meaning in this Order as it has in the Constitutional Convention Act.

[NOTE:  See the definitions of ‘election’ and ‘Electoral Commission’ in the dictionary in Schedule 1 to the Constitutional Convention Act.]

Application of Order 80

 “4. (1) This Order applies to a petition to the Court, under section 148 of the Constitutional Convention Act, disputing the validity of an election or return.

 “(2) The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, to a petition to the Court disputing the validity of an election or return.

Form of petition—Form 161

 “5. A petition must be in accordance with Form 161.

Respondent to petition

 “6. Each person the validity of whose election or return is disputed in a petition must be named in the petition as a respondent.

Notice disputing validity of election or return—Form 162

 “7. (1) As soon as practicable after filing a petition, the petitioner must publish a notice, in accordance with Form 162, stating that a petition has been filed in the Court disputing the validity of an election or return.

 “(2) The notice must be published:

• (a)

  in the Gazette; and

• (b)

  in a daily newspaper circulating in the State or Territory for which the election or return is disputed.

Copy of petition to be given to Electoral Commission

 “8. At least 5 days before the date fixed for the directions hearing for a petition, the petitioner must give the Electoral Commission a copy of the petition.

Appearance by Electoral Commission (Constitutional Convention Act, s 154)

 “9. (1) This rule applies to an application to the Court by the Electoral Commission for leave to enter an appearance in a proceeding on a petition.

 “(2) The application must be made by motion in accordance with Order 19.

 “(3) If the Court grants the application, the Electoral Commission must:

• (a)

  file a notice of appearance in accordance with Order 9, rule 3; and

• (b)

  serve a stamped copy of the notice on the petitioner and on each respondent to the petition.

Petition claiming ballot-paper improperly admitted or rejected

 “10.(1) This rule applies to a petition:

• (a)

  claiming that a ballot-paper, or a class of ballot-papers, was improperly admitted or rejected in an election; and

• (b)

  seeking a declaration:

  • (i)

    that a person who was returned as elected was not duly elected; or

  • (ii)

    that a candidate be duly elected who was not returned as elected.

 “(2) At least 28 days before the date fixed for the hearing of the petition, or within any shorter period allowed by the Court or a Judge, each party to the petition must file and serve on each other party to the petition:

• (a)

  a list of the ballot‑papers, or class of ballot-papers, that the party claims were improperly admitted or rejected; and

• (b)

  a statement setting out the facts in support of the claim.

 “(3) Except with the leave of the Court or a Judge, a party may rely on a fact in support of the claim only if the fact is set out in the party’s statement mentioned in paragraph (2) (b).

 “(4) If the Court or a Judge grants leave under subrule (3), the Court or Judge may:

• (a)

  order that the list mentioned in paragraph (2) (a) be amended; or

• (b)

  order that the hearing of the petition be adjourned; or

• (c)

  make an order for costs; or

• (d)

  make any other order the Court or Judge considers appropriate.

Response to petition

 “11. (1) This rule applies to a respondent who wishes to oppose a petition.

 “(2) The respondent must file and serve on the petitioner a statement setting out the facts on which the respondent opposes the petition.

 “(3) The respondent must file and serve the statement:

• (a)

  at least 14 days before the hearing of the petition; or

• (b)

  within any shorter period allowed by the Court or a Judge.

 “(4) Except with the leave of the Court or a Judge, the respondent may rely on a fact to oppose the petition only if the fact is set out in the party’s statement mentioned in subrule (2).”.

 

3.   First Schedule

3.1   New Forms 161 and 162:

After Form 160, insert:

FORM 161

PETITION DISPUTING VALIDITY OF ELECTION

OR RETURN UNDER THE CONSTITUTIONAL

CONVENTION (ELECTION) ACT 1997

(Order 80, rule 5)

Petition disputing validity of election or return

Constitutional Convention (Election) Act 1997, section 148

 

Petitioner

 

Respondent(s)

A.   PETITION

This petition disputes the validity of the *election/*return of (insert name(s)) as *a delegate/*delegates to the Constitutional Convention under the election held under the Constitutional Convention (Election) Act 1997 on (insert date) for the *State/*Territory of (insert name of State or Territory for which the election or return is disputed).

B.   FACTS RELIED ON BY PETITIONER

The facts in support of this petition are:

(state the facts you are relying on to invalidate the election or return with sufficient particularity to identify the specific matter or matters you are relying on to justify the grant of relief)

C.   RELIEF CLAIMED

The petitioner claims to be entitled to the following relief:

(state the relief you claim to be entitled to)

Date:     eg, 7 May 19

(signed, *candidate at election in dispute/

*person entitled to vote in election/

*Electoral Commission)

(The remainder of this section need not be completed if the petition is filed by the Electoral Commission)

in the presence of:

............................................, ..................................................,

(print full name) (print full name)

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

(insert occupation) (insert occupation)

of of

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

(insert address) (insert address)

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

(signature) (signature)

D.   NOTICE TO RESPONDENT

To:  (insert name and address of respondent)

A directions hearing for this petition will be heard by the Court at the time, date and place mentioned below. If you or your legal representative do not appear before the Court at the hearing, the petition may be dealt with and an order made in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

• (a)

  the petition may be heard;

• (b)

  directions may be given for the further conduct of the proceeding;

• (c)

  any application for interlocutory relief may be heard.

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

Time and date for hearing:  (to be entered by Registry unless fixed by Court)

Place:  (address of Court)

E.   ABRIDGMENT OF SERVICE

(Complete this section if the time for service has been abridged)

The time by which this petition must be served has been abridged by order made on (insert date) to (insert time and date).

Date:     eg, 7 May 19

(signed, Registrar)

F.   FILING AND SERVICE

This petition is filed by (insert name) whose address for service is (insert address).

*   Omit if not applicable

 

FORM 162

NOTICE OF PETITION DISPUTING VALIDITY OF ELECTION

OR RETURN UNDER THE CONSTITUTIONAL

CONVENTION (ELECTION) ACT 1997

(Order 80, rule 7)

Notice of petition disputing validity of election or return

A petition was filed by (insert name of petitioner), (insert petitioner’s occupation) of (insert petitioner’s address) on (insert date petition was filed) in the Federal Court of Australia disputing the validity of the *election/*return of (insert name(s)) as *a delegate/*delegates to the Constitutional Convention under the election held under the Constitutional Convention (Election) Act 1997 on (insert date) for the *State/*Territory of (insert name of State or Territory for which the election or return is disputed).

The facts relied on in support of the petition are:

(state the facts in numbered paragraphs as concisely as possible)

The petition claims the following relief:

(state in numbered paragraphs the relief claimed)

The petition is listed for a directions hearing before a Judge of the Federal Court of Australia at (insert address) on (insert date endorsed on petition).

*   Omit if not applicable

 

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 24 December 1997.

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, 239 and 449; 1996 Nos. 29 and 308; 1997 Nos. 82, 87, 143, 174, 204 and 277.