Federal Court Rules (Amendment) (Cth)

Statutory Rules 1989 No. 3181

Rules under the Federal Court of Australia

Act 1976

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

Dated 20 November 1989.

C. A. SWEENEY A.C.J.
R. M. NORTHROP J.
J. A. KEELY J.
J. D. DAVIES J.
J. S. LOCKHART J.
(L.S.)	I. F. SHEPPARD J.
J. J. A. KELLY J.
T. R. MORLING 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.
C. W. PINCUS J.
J. C. S. BURCHETT J.
J. A. MILES J.
W. M. C. GUMMOW J.
R. S. FRENCH J.
M. R. EINFELD J.
M. L. FOSTER J.

(SR. 374/89) Cat. No. 5/21.11.1989

 

M. C. LEE J.

H. W. OLNEY J.

J. W. VON DOUSSA J.

D. G. HILL J.

M. F. O’LOUGHLIN J.

Judges of the Federal

Court of Australia

J. T. HOWARD

Registrar

AMENDMENT OF THE FEDERAL COURT RULES2

Commencement

1. These Rules commence on 30 November 1989.

Interpretation

2.Rule 4 of Order 1 of the Federal Court Rules is amended by omitting the definition of “organization” and substituting the following definition:

“ ‘organisation’ has the same meaning as in the Industrial Relations Act 1988”.

Industrial Relations Regulations

3.Rule 10 of Order 1 of the Federal Court Rules is amended by omitting “Conciliation and Arbitration Act 1904” and substituting “Industrial Relations Act 1988”.

Proceeding by rule—Form 6

4.Rule 15 of Order 4 of the Federal Court Rules is amended:

(a) by omitting from subrule (1) “sub-section 141a (2) of the Conciliation and Arbitration Act 1904” and substituting “paragraph 342 (2) (a) of the Industrial Relations Act 1988”;

(b) by omitting from subrule (2) “section 140 or section 141 of the Conciliation and Arbitration Act 1904” and substituting “sections 208 or 209 of the Industrial Relations Act 1988”;

(c) by omitting from subrule (4) “section 140 of the Conciliation and Arbitration Act 1904” and substituting “section 208 of the Industrial Relations Act 1988”;

(d) by omitting from subrule (5) “a complaint under section 141 of the Conciliation and Arbitration Act 1904”and substituting “an application under section 209 of the Industrial Relations Act 1988”.

5. Rule 16 of Order 4 of the Federal Court Rules is repealed and the following rule substituted.

Proceeding under section 261 of the Industrial Relations Act1988

“16. (1) This rule shall operate only for so long as paragraph 342 (2) (q) of the Industrial Relations Act 1988 specifies the making of a rule as a condition precedent to the grant of financial assistance.

“(2) A proceeding under section 261 of the Industrial Relations Act 1988 shall be by rule in accordance with Form 6 calling upon the person or organisation concerned to show cause why the order should not be made.

“(3) An application for a rule specified in subrule (2) may be made to a Judge ex parte supported by an affidavit verifying the facts upon which the application is based.

“(4) The affidavit in support of an application under section 261 of the Industrial Relations Act 1988 shall set forth:

(a) the rule or rules of the organisation to which the application relates;

(b) the nature of the orders sought; and

(c) a short statement of the reasons relied upon by the applicant.”.

Personal service: how effected

6.Rule 2 of Order 7 of the Federal Court rules is amended:

(a) by adding “and” after paragraph 2(1) (c);

(b) by inserting after paragraph 2 (1) (c) the following paragraph:

“(d) and organisation—by leaving a copy of the document with some person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry pursuant to section 268 of the Industrial Relations Act 1988”.

Ordinary service: how effected

7. Rule 4 of Order 7 of the Federal Court Rules is amended:

(a) by adding “or” after paragraph (1) (d);

(b) by inserting after paragraph (1) (d) the following paragraph:

“(e) by facsimile transmission directed to the facsimile transmission number operated at, or in connection with, the proper address.”.

(c) by adding “or” after paragraph (3) (b);

(d) by inserting after paragraph (3) (b) the following paragraph:

“(c) is sent by facsimile transmission in accordance with paragraph (1) (e)—be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays.”.

Repeal

8.Rule 15 of Order 7 of the Federal Court Rules is repealed.

Conduct ofproceedings

9. Rule 7 of Order 10a of the Federal Court Rules is amended:

(a) by repealing subrule 2;

(b) by renumbering subrule 3 as subrule 2.

10. Order 15 of the Federal Court Rules is amended:

(a) by adding the following rule after rule 7:

Supplementary discovery

“7a. Where a party has been required, or ordered to give discovery, that party shall be under a continuing obligation to discover any document not previously discovered and which would otherwise be necessary to comply with the requirement or order.”.

(b) by adding the following rule after rule 17:

Use of documents

“18. Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party, or of a person to whom the document belongs.”.

Inspection of property

11.Rule 1 of Order 17 of the Federal Court Rules is amended by omitting paragraph (1) (f) and substituting the following paragraph:

“(f) the copying of any document or the copying, transcribing or production of any material, data or information stored or recorded by mechanical or electronic means.”.

Receipt of evidence by telephone or video link

12.After rule 1 of Order 24 of the Federal Court Rules the following rule is inserted:

“1a. The Court may in its discretion take evidence from a witness by telephone or video link or other similar means in accordance with such procedures as the Court directs.”.

Issue of Subpoenas

13. Rule 6 of Order 27 of the Federal Court Rules is amended by adding at the end the following subrule:

“(6) If the Registrar is of the opinion that the issue of a subpoena may be an abuse of the process of the Court or be frivolous or vexatious, he or she may refer the request to a Judge for directions.”.

Repeal

14.Paragraph (1) (2) (c) of Order 37 and rule 14 Order 40 of the Federal Court Rules are repealed.

15. Order 48 of the Federal Court Rules is repealed and the following Order substituted:

“ORDER 48

Inquiries under the Industrial Relations Act1988

Interpretation

“1. In this order—

“ballot” means a ballot conducted under s. 243 of the Industrial Relations Act 1988.

“inquiry”means an inquiry into the election for an office in an organisation or in a branch of an organisation, under s. 218 of the Industrial Relations Act 1988, or an inquiry into a ballot, under s. 247 of the Industrial Relations Act 1988.

Commencement of a Proceeding

“2. (1) An application under s. 218 of the Industrial Relations Act 1988 for an inquiry into an election shall be in accordance with the form prescribed by regulation 62 of the Industrial Relations Regulations and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application.

“(2) An application under s. 247 of the Industrial Relations Act 1988 for an inquiry into a ballot shall be in accordance with the form prescribed byregulation 93 of the Industrial Relations Regulations and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application.

“(3) Upon the receipt of the application and the statutory declaration referred to in subrules (1) or (2), as the case may be, the District Registrar shall:

(a) sign and seal the application with the seal of the Court; and

(b) forward a sealed copy of the application and the statutory declaration to the applicant with a note endorsed on the application of—

(i) the time and place on which the matter is listed for a directions hearing; and

(ii) the names and addresses of the persons (if any) to whom the Court or a Judge has directed that advice of the application be given.

Service

“3. (1) Not later than two days before the date appointed for a directions hearing, the applicant shall serve a sealed copy of the application and the statutory declaration on all other proper parties in the inquiry.

“(2) The copy of the application for service under subrule (1) shall bear a note—

(a) of the time and place for a directions hearing; and

(b) that if there is no appearance by the party served or his or her

counsel or solicitor at the directions hearing, the proceeding may be heard and orders made in his or her absence.

Directions

“4. At the directions hearing the Court shall give such directions as are required to be given by s. 219 of the Industrial Relations Act 1988 or regulation 94 of the Industrial Relations Regulations (as the case may be). and all other directions necessary for the further conduct of the inquiry.

Court Directions to Issue Subpoenas

“5. (1) Where the Court is conducting an inquiry and is of the opinion that the inquiry will be assisted by production of any document or thing or the calling of a witness the Court may direct the Registrar to issue subpoenas for production or attendance.

“(2) The Registrar shall arrange for service of such subpoenas and the payment of attendance money and witnesses’ expenses in connection therewith.

Application pursuant to section 221 of the Industrial Relations Act

“6. Where an inquiry has been instituted any person may make an application pursuant tos. 221 of the Industrial Relations Act 1988 or regulation 97 of the Industrial Relations Regulations (as the case may be) ex parte or upon notice as the Court or a Judge may direct.”.

Question referred pursuant to section 82 of the Industrial Relations Act

16.Rule 5 of Order 50 of the Federal Court Rules is amended by omitting “section 112 of the Conciliation and Arbitration Act 1904” and substituting “section 82 of the Industrial Relations Act 1988”.

Cross Appeal

17. Rule 22 of Order 52 of the Federal Court Rules is amended by omitting paragraph (3) (a) and substituting the following paragraph:

“(a) file and serve notice of his or her contention on the appellant;”.

Preparation of Appeal papers

18.Rule 28 of Order 52 of the Federal Court Rules is amended by omitting paragraph (3) (k) and substituting the following paragraphs:

“(k) Any notice of cross-appeal or notice of contention.

“(l) The Certificate required by subrule (6).”.

General

19. Rule 15 of Order 53 of the Federal Court Rules is amended by omitting paragraph (2) (f) and substituting the following paragraph:

“(f) refer the notice of appeal and such papers as may be necessary to the Chief Justice for a direction on whether the appeal should be heard by a Full Court;”.

20. After Order 61 of the Federal Court Rules the following Order is inserted—

“ORDER 61a

Australian Federal Police Act 1979

Appeal from Decision of Disciplinary Tribunal

“1. Subject to rule 2 of this Order, the provisions of Order 53 shall apply mutatis mutandis, to an appeal to the Court from the Disciplinary Tribunal made pursuant to section 48 of the Australian Federal Police Act 1979.

Notice of Appeal

“2. The notice of appeal shall state the question or questions of law and/or the question or questions of fact to be raised on the appeal.”.

Order for taxation—when not required

21.Rule 7 of Order 62 of the Federal Court Rules is amended by omitting from paragraph (1) (d) “27” and inserting “26”.

22. After Order 67 of the Federal Court Rules the following order is inserted—

“ORDER 68

Circuit Layouts Act 1989

Application

“1. Subject to this Order the Rules of Court provide the manner of making an application or bringing an action under sections 20 and 25 and Part III of the Circuit Layouts Act 1989.

Equitable remuneration

“2. Proceedings to determine equitable remuneration under subsection 20 (2) of the Circuit Layouts Act 1989 shall be commenced by an application in accordance with Form 64 in the First Schedule.

Terms of doing of Act

“3. Proceedings to determine the terms of the doing of the act under subsection 25 (4) of the Circuit Layouts Act 1989 shall be commenced by an application in accordance with Form 65 in the First Schedule.”.

Numerical Table of Forms

23.The numerical table of forms that follows Order 68 of the Federal Court Rules is amended by adding:

“64 Application for determination of equitable remuneration under the Circuit Layouts Act 1988 (subsection 20 (2)).

“65 Application for determination of the terms for the doing of an act in relation to an eligible layout under subsection 25 (4) of the Circuit Layouts Act 1988.”

First Schedule

24. The First Schedule to the Federal Court Rules is amended:

(a) by omitting Form 6 and substituting the following form:

“FORM 6

RULE TO SHOW CAUSE

(Order 4 subrule 15 (2), subrule 16 (2))

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No.	of 19
INDUSTRIAL DIVISION
BETWEEN	A.B.
Applicant
and
C.D.
Respondent

ORDER

JUDGE:

DATE OF ORDER:

WHERE MADE:

It is hereby ordered that (name of respondent) appear before the Federal Court of Australia at in the State of on the

day of 19 at o’clock in the noon, to show cause why (state nature

of relief required) upon the grounds or reasons set forth in the affidavit of

sworn the day of 19 and filed herein.

DISTRICT REGISTRAR

Date Entered:

And the Applicant claims by way of interlocutory relief:

1. An order (or declaration) that (&c.).

2. &c.

Date: e.g. 7 May 19

(Signed, applicant or his or her solicitor)

To the respondent: (Name and address)

A directions hearing (and/or the applicants’ claim for interlocutory relief) will be heard by the Court at the time and place specified above. If there is no attendance before the Court by you or by your counsel or solicitor, the rule to show cause may be dealt with and judgment may be given or an order made in your absence. Before any attendance at that time you must file an appearance in the Registry.

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

(b) by deleting from the heading to Form 51 “and Order 4, rule 16”;

(c) by deleting from the heading to Form 52 “and Order 4, rule 16”;

(d) by inserting after Form 63 the following Forms:

“FORM 64

APPLICATION FOR DETERMINATION OF EQUITABLE REMUNERATION UNDER CIRCUIT LAYOUTS ACT 1989 (SUBSECTION 10 (2))

(Order 68, rute 2)

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No.	of 19
GENERAL DIVISION
BETWEEN:	A.B.
Applicant
AND:	C.D.
Respondent

APPLICATION FOR DETERMINATION OF EQUITABLE REMUNERATION

The applicant seeks determination of the equitable remuneration payable to the applicant as owner/exclusive licensee of the E.L. rights in the eligible layout described in the Schedule hereto.

SCHEDULE

(Insert sufficient particulars to identify the eligible layout in respect of which E.L. rights are claimed.)

DATED: (e.g. 7 May 19)

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

(Signed, applicant or applicant’s solicitor)

To the respondent: (Name and 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 by your counsel or solicitor at the time and place specified below, the application may be dealt with and you will be liable to suffer judgment or an order 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 unless fixed by Court)

Place: (Address of Court)

(Where the time for service has been abridged, add

The time by which this application 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:

(specify address for service)

“FORM 65

APPLICATION FOR DETERMINATION OF THE TERMS FOR THE DOING OF AN ACT IN RELATION TO AN ELIGIBLE LAYOUT UNDER SUBSECTION 25 (4) OF THE CIRCUIT LAYOUTS ACT 1989

(Order 68, rule 3)

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No.	of 19
GENERAL DIVISION
BETWEEN:	A.B.
Applicant
AND:	C.D.
Respondent

APPLICATION FOR DETERMINATION OF THE TERMS FOR DOING OF AN ACT IN RELATION TO ELIGIBLE LAYOUT

The applicant seeks determination of the terms for the doing of an act by the Commonwealth/applicant in relation to the eligible layout described in the Schedule hereto.

SCHEDULE

(Insert sufficient particulars to identify the eligible layout in respect of which E.L. rights are claimed.)

DATED: (e.g. 7 May 19)

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

(Signed, applicant or applicants’s solicitor)

To the respondent: (Name and 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 by your counsel or solicitor at the time and place specified below, the application may be dealt with and you will be liable to suffer judgment or an order 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 unless fixed by Court)

Place: (Address of Court)

(Where the time for service has been abridged, add

The time by which this application 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:

(specify address for service).”.

Minor amendments

25.The Federal Court Rules are further amended as set out in the Schedule.

SCHEDULE Rule 25

Minor Amendments

Order 1, rule 4:

Omit from the definition of “corporation” “organization”, substitute “organisation”.

Order 4, subrule 14 (3):

Omit “organization”, substitute “organisation”.

Order 7, paragraph 2 (1) (b):

Omit “or organization” (wherever occurring).

Order 8, paragraphs 1 (k) (ii) and 1 (k) (iii):

Omit “organization”, substitute “organisation”.

Order 16, paragraph 7 (1) (c):

Omit “organization” (wherever occurring), substitute “organisation”.

Order 35, subrule 5 (3):

Omit “Conciliation and Arbitration Act 1904”, substitute “Industrial Relations Act 1988”.

Order 37, subrules 2 (2) and 4 (3):

Omit “organization” (wherever occurring), substitute “organisation”.

Order 42, paragraph 21 (1) (c):

Omit “organization” (wherever occurring), substitute “organisation”.

Order 43, paragraph 4 (2) (b):

Omit “organization” (wherever occurring), substitute “organisation”.

Order 50, paragraph 1 (1) (b):

Omit “sections 105, 107 or 112 of the Conciliation and Arbitration Act 1904,”, substitute “section 46, paragraph 54 (1) (a) and section 82 of the Industrial Relations Act 1988”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 28 November 1989.

2. Statutory Rules 1979 No. 40 as amended to date. For previous amendments see Note 2 to Statutory Rules 1989 No. 50 and see also Statutory Rules 1989 Nos. 50 and 253.

                  

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