Federal Court Rules (Amendment) (Cth)

 

Statutory Rides 1991 No. 4611

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 10 December 1991.

M. E. J. BLACK C.J.

C. A. SWEENEY J.

R. M. NORTHROP J.

J. F. GALLOP J.

J. D. DAVIES J.

J. S. LOCKHART J.

I. F. SHEPPARD J.

T. R. MORLING J.

B. A BEAUMONT J.

M. R. WILCOX J.

J. E. J. SPENDER J.

P. R. A GRAY J.

C. W. PINCUS J.

(L.S.) 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

        

91R498. DOC, 11/12/91, 16:22

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.

Judges of the Federal Court of Australia

J. T. HOWARD

Registrar

1. Commencement

1.1 These Rules commence on 1 January 1992.

2. Amendment

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

3. Order 1, rule 4 (Interpretation)

3.1 Insert the following definitions:

“‘arbitration’ means arbitration conducted under an arbitration order;

‘arbitration order’ means an order referring a matter to an arbitrator as mentioned in Order 72, rule 1;

‘arbitrator’ means an arbitrator to whom a matter is referred under an arbitration order;

‘mediation’ means mediation conducted under a mediation order;

‘mediation order’ means an order referring a matter to a mediator as mentioned in Order 72, rule 1;

‘mediation or arbitration order’ means a mediation order or an arbitration order;

‘mediator’ means a mediator to whom a matter is referred under a mediation order;”.

4. New Order 72

4.1 After Order 71, insert:

“ORDER 72—MEDIATION AND ARBITRATION

“Division 1—Preliminary

Mediation or arbitration procedure

“1. If, with the consent of the parties, the Court or a Judge orders proceedings, part of proceedings, or any matter arising out of proceedings, to be referred to a mediator or an arbitrator, the mediation or arbitration must proceed in accordance with this Order unless the Court or a Judge orders otherwise.

Application of Order

“2. (1) Division 2 of this Order does not apply if a Judge undertakes a mediation.

“(2) Nothing in this Order affects an order or direction made under Order 10, rule 1.

If a Judge undertakes mediation

“3. If a Judge undertakes a mediation, the Judge may give any directions with respect to the conduct of the mediation that the Judge thinks fit.

Adjournment of proceedings

“4. (1) If the Court or a Judge makes an arbitration or mediation order in relation to proceedings, the proceedings stand adjourned until the mediator or arbitrator reports back to the Court unless the Court or a Judge considers that in all the circumstances the proceedings should not be adjourned.

“(2) If the Court or a Judge considers it appropriate, the proceedings may be adjourned to a fixed date when the mediator or arbitrator must report to the Court on progress in the mediation or arbitration.

Court may terminate mediation or arbitration

“5. (1) Nothing in this Order prevents the Court from:

(a) terminating a mediation or an arbitration at any time; or

(b) terminating the appointment of a mediator or an arbitrator; or

(c) appointing a new mediator or arbitrator to replace a mediator or an arbitrator who has died, or ceased to hold office, or whose appointment has been terminated.

“(2) If, when the Court appoints a new arbitrator, the Court considers it appropriate in all the circumstances, the Court may order that:

(a) the new arbitrator must treat any evidence given, or any record, document or anything else produced, or anything done, in the course of earlier proceedings as if it had been given, produced or done before or by the new arbitrator; or

(b) any interim award made in the course of the earlier proceedings is to be taken to have been made by the new arbitrator; or

(c) the new arbitrator must adopt and act on any determination of a matter made by the previous arbitrator without applying his or her own judgment to the matter.

“(3) If the Court:

(a) appoints a new mediator; and

(b) considers it appropriate;

the Court may, with the consent of the parties, order that the mediation continue on whatever basis the parties have agreed.

Division 2—Mediation

Nomination of mediator

“6. (1) As soon as practicable after a mediation order is made, the Registrar must:

(a) nominate a person as the mediator; and

(b) give the parties written notice:

(i) of the name and address of the mediator; and

(ii) of the time, date and place of mediation; and

(iii) of any further documents that one or more of the parties must give direct to the mediator for the purposes of the mediation.

“(2) In fixing the time and date for the mediation, the Registrar must:

(a) consult the parties to ascertain their wishes; and

(b) have regard to the time fixed by the Court within which the mediation must be commenced, or completed, or both.

Conduct of mediation conferences

“7. (1) A mediation conference must be conducted:

(a) in accordance with any directions given by the Court or a Judge; and

(b) as a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that:

(i) they may communicate effectively with each other about the dispute; and

(ii) if agreement is reached and if the parties consent, the agreement can be included in a consent order under Order 35, rule 10.

“(2) If part only of proceedings before the Court is the subject of a mediation order, the mediator may, on the conclusion of the mediation, report back to the Court in terms agreed between the parties.

Adjournment or termination of mediation

“8. (1) If the mediator considers that a mediation should not continue, the mediator must, subject to any order of the Court or a Judge:

(a) terminate the mediation; and

(a) report back to the Court.

“(2) A party may terminate a mediation at any time by giving notice of the termination to the Court, the mediator and to each other party.

“(3) If a mediation is terminated under subrule (2), the proceedings, part of proceedings, or any matters arising out of the proceedings, are adjourned back to the Court or a Judge.

“Division 3—Arbitration

Appointment of arbitrator

“9. (1) If an arbitration order is made, the Court or a Judge may, with the consent of the parties, nominate a particular person to be the arbitrator.

“(2) A nomination under subrule (1) must be accompanied by the arbitrator’s written consent to the appointment.

“(3) The parties may, at the time of appointment, or at any subsequent directions hearing, ask the Court or a Judge to make orders by consent setting out:

(a) the manner in which the arbitration is to be conducted; and

(b) the time by which the arbitration is to be completed; and

(c) the manner in which the arbitrator, and the expenses of the arbitration, are to be paid.

“(4) The parties may ask the Court or a Judge to indicate to the arbitrator the manner in which the arbitrator’s report on the proceedings, part of the proceedings, or any matter arising out of the proceedings, are to be reported back to the Court.

Termination of arbitration

“10. (1) A party may withdraw from an arbitration at any time prior to the completion of the arbitration by giving written notice to the Court, to the arbitrator, and to each other party.

“(2) The Court or a Judge may make any costs order the Court or the Judge considers appropriate in relation to the arbitration if an arbitration is terminated under subrule (1).

“Division 4—Miscellaneous

Sunset provision

“11. This Order ceases to have effect on 1 January 1993.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 19 December 1991.

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 and 395.