Federal Court Rules (Amendment) (Cth)

Statutory Rules 1989 No. 501

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 17 March 1989.

N. H. BOWEN C.J.
C. A. SWEENEY J.
A. E. WOODWARD J.
R. M. NORTHROP J.
J. A. KEELY J.
F. R. FISHER J.
J. F. GALLOP J.
J. D. DAVIES J.
J. S. LOCKHART J.
T. R. MORLING J.
A. R. NEAVES J.
B. A. BEAUMONT J.
M. R. WILCOX J.
(L.S.)	J. E. J. SPENDER J.
P. R. A. GRAY J.
J. C. S. BURCHETT J.
J. A. MILES J.
D. M. RYAN J.
W. M. C. GUMMOW J.
T. R. HARTIGAN J.
M. L. FOSTER J.
M. C. LEE J.
H. W. OLNEY J.
J. W. VON DOUSSA J.
D. G. HILL J.
Judges of the Federal
P. G. DINGWALL,	Court of Australia
Registrar

(S.R. 38/89)—Cat. No. 5/3.4.1989

AMENDMENTS OF THE FEDERAL COURT RULES2

Commencement

1. These rules shall come into operation on 17 April 1989.

2. After rule 4 of Order 7 the following rule is inserted:

Service on Principal Solicitor

“4a. (1) Where personal service of a document is not required and the person to be served has a solicitor acting for him or her which solicitor has another solicitor as agent whose address is that person’s proper address the document may be served:

(a) by leaving a copy of the document at the address of the first-named solicitor;

(b) by sending a copy of the document by pre-paid post addressed to the person to be served at the address of the first-named solicitor; or

(c) where an appropriate notice has been given under rule 7 of this Order by leaving a copy of the document addressed to the first-named solicitor at the exchange box of that solicitor.

“(2) The time of service of any document for the purpose of any proceedings shall, where the copy of the document:

(a) is sent by pre-paid post in accordance with paragraph (1) (b)—be 7 days after the copy is so sent; or

(b) is left in an exchange box in accordance with paragraph (1) (c)—be 2 days after the copy is so left.”.

Division 1a—Leave to Appeal from Interlocutory Judgments of the Court

3. Rule 10 of Order 52 is amended by omitting rule 10 and substituting the following rule:

“10. (1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement.

“(2) (a) Where an application has not been made in accordance with subrule (1), an application may be made by motion on notice to a single Judge or to a Full Court, and the provisions of Order 19 shall apply.

(b) The notice shall be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow.

“(3) An applicant under subrule (2) may present his or her case and argument in writing pursuant to rule 15a.”.

Staying or Dismissal of Applications

4. Order 54 is amended by adding at the end the following rules:

“7. Any party who seeks to have an application for an order of review dismissed:

(a) on a ground set out in Order 20 rule 2;

(b) on a ground set out in section 10 of the Administrative Decisions (Judicial Review) Act 1977; or

(c) in the exercise of the Court’s discretion;

shall apply promptly for such dismissal.

“8. Notwithstanding Order 14 rule 9, the Court may dispense with the attendance for cross-examination of a person making an affidavit and may direct that an affidavit be used without the person making the affidavit being cross-examined thereon.”.

Scale of Costs

5. (1) Notwithstanding subrule 5 (2) herein, the Schedule omitted from the Federal Court Rules by subrule 5 (2) shall continue to apply in relation to all work done and services performed prior to the commencement of these rules.

(2) The Federal Court Rules are amended by omitting the Second Schedule and substituting the following Schedule:

SECOND SCHEDULE

Costs allowable in respect of work done and services performed on or after 17 April 1989 (see Order 62 rule 12)

Item	Scale of Costs
Instructions	$
1.	to sue or defend or to appeal or oppose an appeal or for any other originating proceeding	106.00
2.	to make or oppose an interlocutory application or motion to the Court or a Judge or an officer of the Court......................................................................................................	46.00
3.	for a case for opinion of Counsel or for Counsel to advise (including attendance on Counsel with brief).........................................................................................................	45.00
4.	for interrogatories, answers to interrogatories or an affidavit (not being a formal affidavit), admissions or a list of documents, and affidavit verifying....................................	64.00
5.	for brief for Counsel on application in Chambers or brief notes for Solicitor (where necessary).........................................................................................................................	58.00
or, in respect of items 1 to 5 of this Scale, such other sums may be allowed as the taxing officer thinks fit, having regard to all the circumstances of the case
6.	for brief for Counsel or brief notes for Solicitor (where necessary); such fee may be allowed as the taxing officer thinks fit having regard to all the circumstances of the case
7.	for a necessary document not otherwise provided for; such fee may be allowed as the taxing officer thinks fit, having regard to all the circumstances of the case

SECOND SCHEDULE—continued

Item	Scale of Costs
Documents	$
8.	any notice of appearance including copies, filing and service by respondent...............	59.00
9.	any application or notice of motion including fixing return day, copies to file and serve and attendance to file..................................................................................................	46.00
if more than 3 folios—add per folio.....................................................................	3.00
10.	any simple notice or memorandum such as a Notice for Discovery, including copies, filing (where necessary) and service...............................................................................	39.00
11.	notice to produce, notice to admit or any like notice including copies, filing (where necessary) and service...........................................................................................................	46.00
if more than 3 folios—add per folio.....................................................................	3.00
12.	a brief to Counsel (including a brief to hear judgment) and attending Counsel therewith………………………………………………………………………..	41.00
if more than 3 folios—add per folio.....................................................................	4.00
for copy documents to accompany brief: such other charges in this scale as are appropriate............................................................................................................................
13.	any necessary subpoena including issuing, one copy to serve and arranging for service	33.00
Drawing
14.	any necessary document
per folio...............................................................................................................	5.00
Engrossing or Typing
15.	any necessary document
per folio...............................................................................................................	2.00
Copies
16.	of any document, including carbon, photographic or machine made copy per page......	1.00
except that where allowance for 10 or more pages is claimed, in respect of any document or documents, costs allowed for such copies shall be at the discretion of the taxing officer
Perusal
17.	of any document (when necessary) including special letter, telegram or telex if 3 folios or less............................................................................................................................	10.00
or per folio........................................................................................................	2.00
except that where allowance for 30 or more folios is claimed, in respect of any document or documents, costs allowed for perusal shall be at the discretion of the taxing officer
18.	where it is not necessary to peruse but it is necessary to scan, a document per page.....	3.00
except that where allowance for 10 or more pages is claimed, in respect of any document or documents, costs allowed for scanning shall be at the discretion of the taxing officer
Examination
19.	where it is neither necessary to peruse nor scan a document, such as examination of an appeal book
for examination per half hour
Solicitor........................................................................................................	39.00
Clerk............................................................................................................	10.00

SECOND SCHEDULE—continued

Item	Scale of Costs
Letters	$
20.	short letter—simple form of letter e.g. formal acknowledgement........................	8.00
21.	ordinary letter including letters between principal and agent...............................	12.00
22.	circular letter (after the first) each.....................................................................	4.00
23.	special letter or letter including opinion............................................................	27.00
or such fee may be allowed as is reasonable having regard to the length of the letter, the questions involved and appropriate items and charges in this scale
24.	telegram, facsimile copy, or telex including attendance to dispatch or such fee may be allowed as is reasonable in the circumstances	33.00
25.	receiving and filing any incoming letter............................................................	4.00
(Postage and transmission fees may be claimed as a disbursement properly incurred)
Service
26.	personal service (other than where service is claimable under other items in this scale) of any document of which personal service is required........................................	33.00
or such fee may be allowed as is reasonable having regard to time occupied, distance travelled and other relevant circumstances
27.	service of any document at the office of the address for service either by delivery or by post.................................................................................................................	10.00
Preparation of Appeal Books
28.	preparation of appeal books including collating all necessary material, attendances on the printer, general oversight of their preparation in cases where the taxing officer is satisfied it has been done efficiently
per hour
Solicitor.................................................................................................	70.00
Clerk.....................................................................................................	16.00
29.	where appeal books are prepared in a Solicitor’s office, the taxing officer may in his or her discretion allow such sum as he or she thinks just and reasonable having regard to work and labour properly performed and charges for material used. In exercising his or her discretion the taxing officer shall have regard to commercial rates for copying and binding and is not obliged to apply the photographic or machine made copy costs otherwise allowable in this Schedule
Attendances
30.	an attendance which is capable of being made by a Clerk, such as at the Court Registry.....................................................................................................................	16.00
31.	an attendance which requires the attendance of the Solicitor or managing clerk and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate) per quarter hour
Solicitor.................................................................................................	31.00
Managing Clerk.....................................................................................	9.00
32.	an attendance for which no other provision is made herein.................................	27.00
33.	an attendance by telephone which does not involve the exercise of skill or legal knowledge.....................................................................................................................	7.00

SECOND SCHEDULE—continued

Item	Scale of Costs
$
34.	an attendance on Counsel
with brief or papers (where not otherwise provided for)...................................	16.00
to appoint a conference or consultation...........................................................	16.00
where appointment made by telephone...........................................................	7.00
35.	a necessary conference or consultation with Counsel
if half an hour or less.....................................................................................	46.00
if over half an hour per hour or part thereof....................................................	70.00
36.	in Court or Chambers or before the Registrar for hearing without Counsel
for each hour or part of an hour of the hearing..........................................	138.00
for each hour or part of an hour when likely to be heard but not heard.......	138.00
not to exceed per day....................................................................................	622.00
37.	in Court or Chambers or before the Registrar for hearing with Counsel
for each hour or part of an hour of the attendance during the hearing.........	113.00
for each hour or part of an hour of the attendance when likely to be heard but not heard..................................................................................................	113.00
not to exceed per day.......................................................................................	511.00
if a person other than a Solicitor attends in place of a Solicitor, for each hour
(a) Managing Clerk.......................................................................................	46.00
not to exceed per day.......................................................................................	208.00
(b) any other Clerk........................................................................................	25.00
not to exceed per day.......................................................................................	111.00
38.	to hear judgment..............................................................................................	32.00
39.	on taxation of costs
if a Solicitor attends per hour or part of an hour..............................................	70.00
if a clerk attends per hour or part of an hour....................................................	16.00
40.	where the Solicitor attends at Court or Chambers for the hearing of an application or appeal, or on conference with Counsel, at a distance of more than fifty kilometres from his or her place of business when it is neither appropriate nor proper for an agent to attend, the taxing officer may allow for each day of absence from place of business, not being a Saturday, Sunday or public holiday such amount as the taxing officer thinks reasonable not exceeding...............................................................................................	158.00
General Care and Conduct
41.	where the case or circumstances warrant it, an allowance may be claimed under this item, in addition to any item which appears in this scale, for general care and conduct (where appropriate) including:
(a) the complexity of the matter and the difficulty and novelty of the questions raised or any of them
(b) the importance of the matter to the party and the amount involved.
(c) the skill, labour, specialised knowledge and responsibility involved therein on the part of the Solicitor
(d) the number and importance of the documents prepared or perused without regard to length
(e) the time expended by the Solicitor
(f) research and consideration of questions of law and fact

SECOND SCHEDULE—continued

Item	Scale of Costs
$
Counsel’s Fees
42.	it shall be proper for a Solicitor to incur such Counsel’s fees as appear to be fair and reasonable according to the circumstances of the case and the seniority of Counsel and such Counsel’s fees may be claimed as a disbursement
43.	where a Solicitor briefs another Solicitor as Counsel, when it would be appropriate to brief Counsel, the taxing officer may allow such sum as a Counsel’s fee as the taxing officer thinks just and reasonable having regard to the practice of allowing such fees as are permitted by the Supreme Court rules of the State or Territory concerned (Order 62 rule 35)
Witnesses’ Expenses
44.	witnesses called because of their professional, scientific or other special skill or knowledge per day.........................................................................................................	81.00
to 407.00
45.	witnesses called, other than those covered in item 44, per day............................	46.00
to 76.00
46.	witnesses remunerated in their occupation by wages, salary or fees; the amount lost by attendance at Court
47.	where the witness resides more than 50 kilometres from the Court, such sum as the taxing officer thinks reasonable for the actual cost of conveyance, together with a reasonable amount for sustenance or maintenance
Disbursements
48.	all Court fees and other fees and payments to the extent to which they have been properly and reasonably incurred and paid shall be allowed
49.	where a Solicitor attends at Court or chambers, or on conference with Counsel, in the circumstances outlined in Item 40, the taxing officer may allow reasonable travelling expenses to the extent to which they have been reasonably incurred and paid
Miscellaneous
50.	matters not included in this scale may be allowed to the extent they are covered by Order 62, rule 21
bills of costs prepared in accordance with Order 62, rule 40 shall identify costs and disbursements claimed with an item number
a folio comprises 72 words; there are generally 3 folios to each page

NOTES

1. Notified in the Commonwealth of Australia Gazette on 14 April 1989.

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.

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