Federal Court Rules (Amendment) (Cth)

Statutory Rules 1993

No. 40 1

__________________

Federal Court Rules 2(Amendment)

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

 Dated 9 March 1993.

 M. E. J. BLACK C. J.

 R. M. NORTHROP J.

 J. A. KEELY J.

 J. F. GALLOP J.

 J. D. DAVIES J.

 J. S. LOCKHART J.

 I. F. SHEPPARD J.

 T. R. MORLING J.

(L.S.)

K. J. JENKINSON J.

 A. R. NEAVES J.

 B. A. BEAUMONT J.

 M. R. WILCOX J.

 J. E. J. SPENDER 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. C. LEE 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.

 Judges of the Federal

 Court of Australia

J. T. HOWARD

Registrar

____________

1.   Commencement

1.1 These Rules commence on 16 March 1993.

2.    Amendment

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

3.   Order 10, rule 2 (Fixing of date)

3.1 Paragraphs 2 (1) (b) and (c):

Omit “hearing;”, substitute “trial;”.

3.2 Paragraph 2 (1) (d):

Omit “give notice of trial;”, substitute “request a date for trial;”.

3.3 Subrule 2 (2):

Omit the subrule.

4.   Order 30 (Setting down)

4.1 Omit the Order, substitute:

“ORDER 30

SETTING DOWN

Interpretation

“1.

(1)   In this Order:

‘applicant’ includes a plaintiff;

‘respondent’ includes a defendant.

“(2)

In this Order:

• (a)

  a reference to the trial of a proceeding includes any interlocutory hearing for which a date for trial is required to be fixed in the proceeding; and

• (b)

  the rules apply, with any necessary modification, to proceedings commenced by way of cross-claim.

Request to fix date for trial (Form 44)

 “2.(1)   If the time provided for taking any step in a proceeding has ceased to run, and no date has been fixed for the trial of the proceeding, a party who is not in default may request the Registrar to fix a date for the trial by filing a notice in accordance with Form 44 in the First Schedule.

“(2)

The party filing notice must serve a copy of the notice on all other parties to the proceeding within 3 days after filing it.

Fixing date for trial

“3.

Where the Court or the Registrar is satisfied that a proceeding is ready for trial and fixes a date for trial, the Registrar must notify the date and place of the trial to all parties to the proceeding as soon as practicable after the date is fixed.

Notice of date for trial and payment of hearing fees (Form 44a)

“4.

Within 7 days after being notified of the date for trial, the party requesting that a date for trial be fixed or, if there is no such request, the applicant, must:

  

• (a)

  file in the Registry a notice in accordance with Form 44a in the First Schedule 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.

Want of prosecution

“5.

(1)   If, before or after the date for trial of a proceeding is fixed, a party has not done any act required to be done by or under these Rules or has not prosecuted the proceeding with due diligence, the Court may:

• (a)

  if the party in default is the applicant—order that the proceeding be stayed, or dismissed, as to the whole or any part of the relief claimed by the applicant in the proceeding; or

• (b)

  if the party in default is a respondent—order that judgment be entered or an order be made against the respondent; or

• (c)

  make any other order or give any directions that the Court thinks just, and specify such consequences for non-compliance with the order or the directions as the Court thinks just.

“(2)

An order or direction under subrule (1) may be given:

• (a)

  when a party not in default moves on notice for an order or direction; or

• (b)

  after notice of default has been given by the Registrar to the party in default—of the Court’s own motion.

Place of trial

“6.

(1)   Subject to subrule (2), the place of trial of a proceeding is to be the proper place.

“(2)

On the application of a party or of its own motion, the Court may direct that the trial, or part of the trial, of a proceeding be held at a place other than the proper place.

Vacating date

for trial

“7.

A date for trial fixed by the Court may be vacated only by order of the Court.”.

5.   Order 52, rule 29 (Setting down appeal)

5.1 Subrule 29 (5):

Omit the subrule, substitute:

“(5)

Within 7 days after being notified of the date of the hearing of an appeal, the appellant must:

• (a)

  file in the Registry a notice in accordance with Form 44a in the First Schedule 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 appeal.

 “(5a) If an appellant does not comply with subrule (5), the Registrar must:

• (a)

  so advise the respondent forthwith; and

• (b)

  give notice to the appellant that the Court may, of its own motion, make an order under subrule 38 (1).”.

6.   New Order 53a

6.1 After Order 53, insert:

“ORDER 53a

APPEALS FROM IMMIGRATION REVIEW TRIBUNAL

Interpretation

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

‘Act’ means the Migration Act 1958;

‘appropriate Registry’ means a District Registry in the State or Territory in which the Tribunal heard the matter;

‘Registrar of the Tribunal’ includes:

• (a)

  the Deputy Registrar of the registry of the Tribunal in the place where the matter is being heard or is pending; and

• (b)

  any other officer of the Tribunal appointed by the Minister under subsection 165 (2) of the Act;

‘Tribunal’ means the Immigration Review Tribunal.

Form of and filing of notice of appeal—Form 55f

“2.

(1) An appeal to the Court from a decision of the Tribunal may be instituted by filing a notice of appeal which shall be in or substantially in the form numbered Form 55f in the First Schedule within the time specified in subsection 138 (3) of the Migration Act 1958..

“(2)

A notice of appeal must be filed in an appropriate Registry.

“(3)

Before or after the filing of a notice of appeal, the Court or a Judge may order that a nominated Registry is the appropriate Registry for that appeal.

Notice of appeal

“3.

(1)   A notice of appeal and all subsequent documents filed in the proceedings must be entitled “In the Federal Court of Australia” (with the name of the Registry in which they are filed) “On Appeal From the Immigration Review Tribunal” and must also be entitled as between the party applicant and the party respondent.

“(2)

In an appeal brought by an applicant before the Tribunal, the party respondent is the Minister for Immigration, Local Government and Ethnic Affairs and such other persons as are required to be joined as respondents under Order 53a subrule 5 (2).

“(3)

A notice of appeal must be signed by the applicant or the applicant’s solicitor and must state:

• (a)

  the decision of the Tribunal from which the appeal is brought and the members constituting the Tribunal; and

• (b)

  the date on which the decision was made; and

• (c)

  the question, or questions, of law to be raised on the appeal; and

• (d)

  the order sought; and

• (e)

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

“(4)

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

“(5)

On the hearing of an appeal, the applicant must not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.

Appearance

“4.

A notice of appeal must bear a note to the effect that before taking any step in the proceeding, the respondent must enter an appearance in the Registry.

Parties

 “5. (1)   For the purposes of this Order, a person who commences a proceeding in the original jurisdiction of the Court under this Order is an applicant and a person against whom the proceeding is commenced is a respondent.

“(2)

Each party to the proceeding in the Tribunal who is affected by the order sought by the notice of appeal or who is interested in maintaining the decision under appeal, must be joined as a respondent to the appeal.

“(3)

The Court may order the addition or removal of any person as an applicant or respondent to an appeal.

“(4)

A person shall not be made an applicant without his or her consent.

Service of notice of appeal

“6.

Within 7 days after the filing of a notice of appeal, the applicant must serve a copy of the notice personally on all other parties to the proceeding before the Tribunal and on the Registrar of the Tribunal or other officer of the Tribunal.

Security for costs

“7.

(1)   In special circumstances, the Court may order that such security as it thinks fit be given for costs of an appeal to the Court.

“(2)

Subject to subrule (1), no security for costs of an appeal to the Court shall be required.

Stay

“8.

(1) An application under section 139 of the Act, for an order staying or otherwise affecting the operation or implementation of a decision subject to appeal, may be made to the Court or a Judge by notice on motion, and the motion may be made returnable on the date fixed for the directions hearing.

“(2)

In an urgent case, the application may be made ex parte.

Documents to be provided

“9.

Within 21 days from service of the notice of appeal on the Registrar of the Tribunal, there shall be forwarded to the appropriate Registry:

• (a)

  a copy of the decision of the Tribunal; and

• (b)

  a copy of the Tribunal’s written reasons for the decision; and

• (c)

  all documents which were before the Tribunal; and

• (d)

  a list of documents and information to which section 147 of the Migration Act 1958 applies supplied to the Tribunal and of any written advice given to the Tribunal under paragraph 147 (2) (b) of the Migration Act 1958 ; and

• (e)

  the record of the proceeding before the Tribunal, including any tape recording of the proceeding.

Application of Order 53

“10.

The provisions of Order 53 rules 11, 12, 13, 14, 15, 16, 16a, 17, 18, 19 and 20 apply, mutatis mutandis, to appeals from decisions of the Tribunal.”.

7.   Order 54b, Division 7 (Olympic Protection Insignia Act)

7.1 Omit the heading to the Division, substitute:

“Division 7—Olympic Insignia Protection Act”.

8.   Order 54b, rule 28 (Application of Division)

8.1 Omit “Protection Insignia”, substitute “Insignia Protection”.

9.   Order 54b, rule 30 (Particulars of grounds for rectification or of invalidity)

9.1 Paragraph 30 (1) (a):

Omit “Protection Insignia”, substitute “Insignia Protection”.

10.   First Schedule

10.1   Form 44:

Omit the form, substitute:

FORM 44

REQUEST TO FIX DATE FOR TRIAL

(Order 30, subrule 2 (1))

[heading to form as in Form 1]

The applicant

 [or as the case may be] requests that a date be fixed for the trial of the proceeding.

To: [name of party]

 [address for service of party]

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

(Signature of requesting party or

the party’s solicitor)

––––––––––––

FORM 44a

NOTICE OF DATE FOR TRIAL

(Order 30, rule 4;

  Order 52, subrule 29 (5))

[heading to form as in Form 1]

To: [name of party]

 [address for service of party]

Take notice that the date, time and place for trial of this proceeding is as specified below.

• Date:

  [date and time to be entered by Registry unless fixed by the Court]

 Time:

• Place:

  [address of Court]

Dated

 [e.g.7 May 19]

*The hearing fee under regulation 2a of the Federal Court of Australia Regulations has been paid./*No fee is payable under regulation 2a of the Federal Court of Australia Regulations.

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

(Signature of notifying party or

the party’s solicitor)

[*

 Omit if inapplicable]

10.2   New Form 55f:

After Form 55e, insert:

FORM 55f

NOTICE OF APPEAL

(Order 53a, rule 2)

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

GENERAL DIVISION

)

) No.

 of

)

On appeal from the Immigration Review Tribunal constituted by

[insert the names of the members constituting the Tribunal which made the decision]

BETWEEN A.B. Applicant

 and

C.D.

Respondent

NOTICE OF APPEAL

1. TAKE NOTICE that the applicant appeals from the decision of [Immigration Review Tribunal] constituted by [specify members constituting the Tribunal] given on  [specify date] at [specify place] whereby the Tribunal decided [specify decision appealed from] .

2. THE QUESTIONS OF LAW raised on the appeal are:

 [specify each questionof law]

3. ORDERS SOUGHT:

 [specify the orders or relief sought by the applicant]

4. GROUNDS:

 [specify grounds relied on in support of the orders sought]

Date:

 e.g.   7 May 19 .

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

(Signed:

 applicant or applicant’s solicitor)

To the Respondent:

 [insert address]

TAKE NOTICE:

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

 If there is no attendance before the Court by you or by your counsel or solicitor, directions may be given and orders made in your absence.

Before taking any step in the proceeding, or attending at the directions hearing, you must file an appearance in the Registry.

Time:

 [date and time to be entered by Registry unless fixed by Court]

Place:

 [insert address of Court]

[If time for service has been abridged, add:]

The time by which this notice of appeal, with its notice of the directions hearing, is to be served has been abridged by the Court to

 [specify time] .

Date:

 e.g.   7 May 19 .

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

(Signed:

 Registrar)

The applicant’s address for service is

 [insert address for service] .

[Note: This notice must be served on all parties and on the Registrar of the Immigration Review Tribunal, under Order 53A, rule 6, within 7 days of filing.]

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 16 March 1993

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