Statutory Rules 1997
No. 143 1
__________________
Federal Court Rules 2(Amendment)
WE, Judges of the Federal Court of
Australia,
make the following Rules of Court under the Federal Court of Australia Act
1976.
Dated 12 June
1997.
R.M.
NORTHROP J.
J.F.
GALLOP J.
J.D.
DAVIES J.
J.S.
LOCKHART J.
B.A.
BEAUMONT J.
M.R.
WILCOX 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.
D.G.
HILL 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.
C.J.S.M.
CARR J.
M.F.
MOORE J.
C.M.
BRANSON J.
K.E.
LINDGREN J.
R.
SACKVILLE J.
S.M.
KIEFEL J.
R.A.
SUNDBERG J.
S.R.
MARSHALL J.
J.R.F.
LEHANE J.
A.M.
NORTH J.
R.N.
MADGWICK J.
R.
MERKEL J.
A.H.
GOLDBERG J.
A.R.
EMMETT J.
Judges
of the Federal
Court
of Australia
W.G. SODEN
Registrar
____________
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.]
2. Order
1, rule 4 (Interpretation)
2.1 Insert
the following definition:
“‘solicitor’
includes a current practitioner within the meaning of subsection 3 (1) of
the Legal Practice Act 1996 (Vic);”.
3. Order
4, rule 17 (Preliminary discovery)
3.1 Omit the rule.
4. Order
75 (Native Title Rules—Native Title Act 1993)
4.1 Omit the Order.
5. New
Order 78
5.1 After
Order 77, insert:
“ORDER
78—NATIVE TITLE PROCEEDINGS
“Division 1—General
Definitions for Order 78
“1. In this Order:
‘nntt’ means the National
Native Title Tribunal established under Part 6 of the Native Title Act 1993;
‘Native Title Registrar’ means the Native
Title Registrar appointed under Part 5 of the Native Title Act 1993;
‘Registrar’ means the
District Registrar of the Court in the State or Territory where the relevant
native title determination application was made to the NNTT.
Expressions used in the Native Title Act
“2. Unless the contrary intention appears, expressions used in this
Order have, in relation to a proceeding under the Native Title Act 1993,
the same meaning in this Order as they have in that Act.
NNTT to be notified of a proceeding in relation to native title
determinations
“3. Except as otherwise provided in this Order, the Registrar must
notify the Native Title Registrar as soon as practicable after an application
has been filed in the Court in relation to a determination of native title.
“Division 2—Applications referred to the
Court
Directions hearing to be set
“4. (1) If the Native
Title Registrar lodges an application and any accompanying documents with the
Court under section 74 of the Native Title Act 1993, the Registrar must,
as soon as practicable after lodgment:
- (a)
allocate a serial number to the proceeding; and
- (b)
acknowledge receipt of the application and any accompanying
documents on a list of the documents and materials settled with the Native
Title Registrar; and
- (c)
set a time, date and place for a directions hearing.
“(2) The Registrar must notify each party who appeared before the NNTT
in relation to the application of the time, date and place set for the
directions hearing.
“(3) The notice must:
Joinder of party to application
“5. (1) A person
seeking leave to be joined as a party to a proceeding must give notice of the
party’s intention by filing and serving a notice of motion.
“(2) The notice must:
Assistance to unrepresented parties
“6. (1) The Court or a
Judge may direct the Registrar to provide reasonable assistance to an
unrepresented party to enable the party to prepare and present the party’s
case.
“(2) If funds are available, the Court or a Judge may direct the
Registrar to provide counsel to assist the party.
Affidavit about information stated in native title determination
application
“7. (1) Before
the directions hearing, the applicant must file and serve an affidavit, sworn
by the applicant:
- (a)
stating that there has been no change to the information stated in
the native title determination application and accompanying affidavit mentioned
in paragraphs 62 (1) (a), (b) and (c) of the Native Title Act 1993;
or
- (b)
if there has been any change to the information—setting out the
changes.
“(2) The affidavit must be in accordance with Form 20.
Statement of cultural and customary concerns of Aboriginal peoples
and Torres Strait Islanders
“8.(1) At
least 28 days before the directions hearing, the applicant must file and serve
a statement setting out:
- (a)
the cultural and customary concerns of Aboriginal peoples and
Torres Strait Islanders that the applicant wishes the Court to take into
account in conducting the proceeding; and
- (b)
any proposals for how the Court should conduct the proceeding to
take account of the concerns.
“(2) At least 14 days before the directions hearing, each other party
to the proceeding must file a statement setting out any proposals for how the
Court should conduct the proceeding to take account of the applicant’s
concerns.
“(3) Each other party to the proceeding may also
file a statement setting out:
- (a)
the cultural and customary concerns of Aboriginal peoples and
Torres Strait Islanders that the party wishes the Court to take into account in
conducting the proceeding; and
- (b)
any proposals for how the Court should conduct the proceeding to
take account of the concerns.
“(4) A party who wishes to file a statement under subrule (3) must file
and serve the statement at least 14 days before the directions hearing.
Notification of hearing
“9. (1) The Court or a
Judge may direct the applicant, or the Registrar, to give public notice of any
hearing before the Court.
“(2) The notice must be:
“Division 3—Other applications
Application of Division 2
“10. Division 2 applies, with any necessary
changes, to:
Existing determinations of native title
“11. (1) This rule
applies to an application for a determination of native title.
“(2) At any stage of a proceeding, the Court or a Judge may direct a
party to provide evidence by affidavit, or as otherwise directed, of any
existing determination of native title in relation to all or part of the area
the subject of the application.
Existing determinations of compensation
“12. (1) This
rule applies to an application for a determination of compensation.
“(2) At any stage of a proceeding, the Court or a Judge may direct a
party to provide evidence by affidavit, or as otherwise directed, of any
compensation awarded under a law of a State or Territory, or under a
Commonwealth law (except the Native Title Act 1993), for an act
essentially the same as the act for which the application is made.
Payment of negotiated compensation
“13. (1) In
this rule:
‘negotiated
compensation’
means compensation held in trust under subsection 41 (3) or paragraph
42 (5) (b) of the Native Title Act 1993.
“(2) An application to the Court for a direction for the payment of
negotiated compensation must be:
[NOTE:
Paragraphs
52 (1) (e) and 52 (2) (b), subparagraph
52 (4) (c) (ii) and subsections 52 (5) and (6) of the Native
Title Act 1993 provide for a person or a trustee to apply to the Court for
a direction as to the payment of negotiated compensation.]
“(3) Anyone believed by the applicant to have an interest in the
Court’s direction must be named in the application as a respondent.
“(4) Before making a direction, the Court may give
the directions it considers necessary to ensure that an interested person is:
‘Just terms’ compensation
“14. For subsection 53 (2) of the Native Title Act 1993, an
application for compensation for the acquisition of property must be:
Reference to Court of questions of law
“15. Order 50 applies to a reference to the Court by the NNTT, under
subsection 145 (1) of the Native Title Act 1993, of a question of
law arising in an inquiry.
“Division 4—Duties of assessors
Taking evidence
“16. (1) The
Court may direct an assessor:
- (a)
to take evidence from a party to a proceeding at a time, date and
place arranged with the party; and
- (b)
to decide how the evidence is to be recorded; and
- (c)
to prepare a report of the evidence and give it to the Court by a
specified time.
“(2) The Court may, on the application of the assessor or on its own
initiative, order that a person be summoned to appear before the assessor to
give evidence or produce documents.
“(3) If a person is summoned to produce documents, the documents must
be specified in the summons.
“(4) If a party wishes the assessor to apply to the Court for an order
to summon a person to appear before the assessor to give evidence or produce
documents, the party must:
“(5) The summons must be in accordance with Form 138.
Conference under Native Title Act, s 88
“17. (1) If, in a
proceeding, the Court directs a conference to be held under section 88 of the Native
Title Act 1993, the Court may direct the assessor assisting the Court in
relation to the proceeding:
- (a)
to decide how matters discussed at the conference, or at part of
the conference, are to be recorded; and
- (b)
to prepare a report of the matters discussed at the conference and
give it to the Court by a specified time.
“(2) If asked to do so by the Court, the assessor must give a summary
of the matters discussed at the conference to:
“(3) However, the assessor must not disclose anything discussed at a
conference, or part of a conference, held in private under subsection
91 (3) of the Native Title Act 1993.
Notice in newspapers and court lists
“18.(1) An assessor must
inform the Registrar of the date and place that the assessor is to take
evidence, or hold a conference.
“(2) The Registrar must ensure that notice of the information mentioned
in subrule (1) is published in:
- (a)
any daily newspaper that publishes listings for the Court; and
- (b)
the daily lists of business of the Court in the State or Territory
where the evidence is to be taken, or the conference is to be held.
Assessor’s report
“19.(1) An assessor’s
report must include a certificate stating that records of evidence, including
documents or things tendered to the assessor, were taken before the assessor at
the time and place shown on the record.
“(2) The Court may decide how the assessor’s report, and any submissions received from the parties,
are to be used in a proceeding.
Conflict of interest
“20. (1) In
this rule:
‘conflict
of interest’
means a conflict of interest described in subsection 37L (3) of the Federal
Court of Australia Act 1976.
“(2) If, at any stage of a proceeding, an assessor
becomes aware that the assessor has, or may have, a conflict of interest in
relation to the proceeding, the assessor must immediately notify:
- (a)
the Chief Justice of the Court; and
- (b)
the Judge listed to hear the matter; and
- (c)
if the proceeding is being heard by a Full Court—the presiding
Judge; and
- (d)
each
party to the proceeding.
“(3) The assessor must give the notice in person or by telephone.
“(4) However, if it is not possible to comply with subrule (3),
the assessor may give the notice by facsimile transmission.
“Division 5—Appeals from decisions or
determinations of NNTT
Definition for Division 5
“21. In this Division:
‘NNTT
proceeding’
means the proceeding in the NNTT in relation to which an appeal to the Court is
made.
Application of Division
“22. This Division applies to:
- (a)
an appeal to the Court on a question of law, under subsection
169 (1) of the Native Title Act 1993, from a decision or
determination of the NNTT in a proceeding in relation to an inquiry relating to
a right to negotiate application; and
- (b)
an appeal to the Court on a question of fact
or law, under subsection 169 (2) of the Native Title Act 1993, from
a decision of a presidential member of the NNTT to direct the Native Title
Registrar not to accept an application under section 61 of that Act; and
- (c)
an appeal to the Court on a question of fact or law, under
subsection 169 (3) of the Native Title Act 1993, from a decision of
the NNTT that the interests of a person who has applied to the NNTT to be made
a party to an application will not be affected by a determination.
Instituting appeal
“23. (1) An appeal must
be instituted by filing a notice of appeal, in accordance with Form 141, in the
District Registry of the Court in the State or Territory where the NNTT
proceeding was heard.
[NOTE:
Subsection
169 (4) of the Native Title Act 1993 provides that an appeal must
be instituted within the period of 28 days starting on the day on which the
decision or determination of the NNTT is given to the person instituting the
appeal, or within such further time as the Court allows.]
“(2) The person instituting the appeal is the applicant.
“(3) Each other party to the NNTT proceeding must be named in the
notice of appeal as a respondent.
Extension of time to appeal
“24. (1) If an appeal
is not instituted within 28 days starting on the day when the decision or
determination of the NNTT is given to the applicant, or the applicant claims
that the appeal will not be able to be instituted within that period, the
applicant may apply for an extension of time to institute the appeal.
“(2) An application for extension of time must be made by completing
the application for extension of period in which to appeal included in Form
141.
“(3) If the applicant applies for an extension of
time, the notice of appeal must be accompanied by an affidavit:
- (a)
explaining why the applicant did not institute the appeal within
the 28 day period, or will not be able to institute the appeal within that
period; and
- (b)
setting out the grounds for seeking the extension of time.
Serving notice of appeal
“25. (1) Unless the
Court or a Judge otherwise directs, the applicant must serve a copy of the
notice of appeal and any supporting affidavit on each other party to the NNTT
proceeding.
“(2) The notice of appeal and any accompanying
affidavit must be served within:
Duties of Registrar after notice of appeal is filed
“26. (1) If a notice of
appeal is filed, the Registrar must carry out the following duties.
“(2) The Registrar must:
- (a)
set a time, date and place for a directions
hearing; and
- (b)
endorse those details on the notice of appeal.
“(3) The Registrar must send a copy of the notice of appeal and any
supporting affidavit to the Native Title Registrar.
“(4) The Registrar must ask the Native Title
Registrar to:
- (a)
make a list of the documents and other things that were before the
NNTT at the end of the NNTT proceeding; and
- (b)
give the list, and the documents and other things mentioned in the
list, to the Registrar.
“(5) On receiving the list, the Registrar must:
- (a)
endorse the date of receipt on the list; and
- (b)
send a copy of the list, with the date of receipt endorsed on it,
to the Native Title Registrar.
Directions hearing
“27. At the directions hearing:
- (a)
the Court must decide whether any person, other than the applicant
or respondent (if any), should be joined as a party to the appeal; and
- (b)
the Court may direct the applicant to file an affidavit providing
further or up-to-date information about the matters required to be in the
affidavit mentioned in subsection 62 (1) of the Native Title Act 1993.
Notification of hearing of appeal
“28. After the directions hearing, the Registrar must notify the
applicant, and each other party to the appeal, of the time, date and place set
for the hearing of the appeal.
Application of Order 53
“29. Except as otherwise provided in this rule, Order 53 applies, with
any necessary changes, to an appeal under this Division.”.
6. First
Schedule
6.1
Form 5A (Application):
Omit the Form.
6.2 Form
56 (Application for an order of review):
Omit “Respondent” (first occurring),
substitute “Respondent*”.
6.3 Form
56 (Application for an order of review):
Insert
at the end of the Form:
“*NOTE: Section 480 of the Migration Act 1958 provides that the
parties to the review of a judicially-reviewable decision under that Act are
the Minister and:
(a) if the
judicially-reviewable decision is covered by paragraph 475 (1) (a) or
(b) of the Migration Act—the applicant in the review by the relevant Tribunal;
or
6.4 Form
137 (Notification of directions hearing):
Omit “(Order 75, rule 2 (c))”,
substitute “(Order 78, subrule 4 (3))”.
6.5 Form
138 (Summons to appear before assessor):
Omit “(Order 75, subrule 7 (3))”,
substitute “(Order 78, subrule 16 (5))”.
6.6 Form
141 (Notice of appeal from National Native Title Tribunal):
Omit “(Order 75, subrules 15 (1) and
(2))”, substitute “(Order 78, subrules 23 (1) and 24 (2))”.
____________________________________________________________
NOTES
1. Notified in the Commonwealth
of Australia Gazette on 23 June 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 and 87.