Federal Court Rules (Amendment) (Cth)
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
Dated 21 August 1987.
N. H. BOWEN C.J.
R. W. FOX J.
W. E. S. FORSTER J.
R. M. NORTHROP J.
J. A. KEELY J.
F. R. FISHER J.
J. F. GALLOP J.
J. S. LOCKHART J.
I. F. SHEPPARD J.
T. R. MORLING J.
K. J. JENKINSON J.
A. R. NEAVES J.
(L.S.) B. A. BEAUMONT J.
M. R. WILCOX J.
J. E. J. SPENDER J.
C. W. PINCUS J.
J. C. S. BURCHETT J.
J. A. MILES J.
D. M. RYAN J.
W. M. C. GUMMOW J.
(S.R. 214/87) Cat. No. 5/25.8.1987
R. S. FRENCH J.
M. R. EINFELD J.
Judges of the Federal
Court of Australia
J. T. HOWARD
Registrar
1. These rules shall come into operation on 1 September 1987.
2. The following Order is inserted in the Federal Court Rules after Order 52—
“1. In this Order, unless the contrary intention appears: “Commissioner” means the Commissioner, a Second Commissioner or a Deputy Commissioner of Taxation, and “person” includes a corporation.
“2. (1) This Order applies to an appeal to or proceeding in the Court under or pursuant to a law of the Commonwealth dealing with the assessment of taxation and to questions referred under such a law to the Court.
“(2) An appeal to the Court from a judgment of the Court constituted by a single Judge shall be dealt with in accordance with Order 52.
“(3) An appeal to the Court from a decision to the Administrative Appeals Tribunal made under or pursuant to a law of the Commonwealth dealing with the assessment of taxation shall be dealt with in accordance with Order 53.
“3. Subject to this Order and to any law of the Commonwealth, the provisions of this Order and other Orders of these Rules apply, so far as is practicable, to proceedings to which the last preceding rule applies and, for the purposes of this Order and other Orders of these Rules, the applicant and the Commissioner shall be parties to the proceedings.
“4. (1) Personal service is not required of any document to be served under this Order. Subject to the provisions of this Order any document may be served—
(a) by personal service on the person to be served in accordance with the provisions of Order 7 rule 2 of the Rules; or
(b) by leaving it at the address for service of the person to be served nominated in the appropriate document filed pursuant to this Order between the hours of nine in the morning and five in the afternoon on any day on which the Registry in the State or Territory in which the address is situated is open; or
(c) by sending the document by pre-paid post addressed to the person to be served at the address nominated in the appropriate document filed pursuant to this Order; or
(d) if the person to be served has not nominated an address for service in the proceeding, by leaving it at the person’s usual or last known place of business or of residence between the hours mentioned in paragraph (b) or by sending it by pre-paid post addressed to the person at the person’s usual or last known place of business or of residence.
“(2) Documents served by post under sub-rule (1) shall be deemed to have been served seven days after they are so sent.
“5. Unless otherwise ordered by the Court or a Judge, evidence in proceedings under this Order shall be by affidavit.
“6. When the Commissioner has been requested under an Act to refer a decision on an objection with respect to taxation to the Court, the Commissioner shall refer the decision on the objection to the Court within the time prescribed by law, or, if no time has been so prescribed, then within sixty days after the date of the receipt of the request, or within such further time as is agreed between the Commissioner and the person who made the request.
“7. (1) The Commissioner shall refer the decision on the objection to the Court by filing a notice of referral which shall be in or substantially in the form numbered 55c in the First Schedule. The notice of referral shall state the address for service of the Commissioner.
“(2) A notice of referral shall be filed in the District Registry of the Court in the State or Territory in which the request to refer the decision on the objection was lodged with the Commissioner.
“(3) A notice of referral shall be signed by the Commissioner or the Commissioner’s solicitor and shall state that the referral is made pursuant to the request under the particular Act involved and shall state the decision on the objection under challenge.
“8. The Commissioner shall also forward, together with the notice of referral, to the Registry—
(a) the notice of assessment in respect of which the objection was made (including any amendment of the assessment);
(b) the notice of objection;
(c) the notice of the disallowance of the objection;
(d) the request for the reference of the decision on the objection to the Court;
(e) any other documents in the Commissioner’s possession or power which are necessary for the hearing of the matter; and
(f) a list of the documents forwarded.
“9. (1) The Commissioner shall serve a sealed copy of the notice of referral upon the person who requested the referral of the decision to the Court within the time prescribed by law, or, if no time has been so prescribed, within fourteen days after the date of filing of the notice of referral, but not later than five days before the date appointed for the directions hearing under rule 12 unless the Court or a Judge otherwise orders.
“(2) The Commissioner shall also serve a copy of the list of documents referred to in paragraph (f) of rule 8 upon the person who requested the referral at the same time as service is made of the notice of referral.
“(3) Service of a sealed copy of the notice of referral and of a copy of the list of documents under this rule may be effected by sending them by pre-paid post addressed to the person to be served at the address, if any, specified in the request for the reference or at the person’s usual or last known place of business or of residence.
“(4) The documents served by post under the last preceding sub-rule shall be deemed to have been served seven days after they are so sent.
“10. The person who requested the decision on an objection to be referred to the Court shall be the applicant and the Commissioner shall be the respondent.
“11. (1) The applicant shall file a notice showing an address for service before the date appointed for a directions hearing and before filing any document.
“(2) A notice of address for service shall show—
(a) the name and address of the applicant;
(b) where the applicant is represented by a solicitor, the name, address and telephone number of the solicitor;
(c) where the applicant is represented by a solicitor and that solicitor has another solicitor as agent in the proceeding, the name, address and telephone number of the agent; and
(d) an address for service which may be a document exchange box.
“(3) A notice of address for service shall be in or substantially in the form numbered 55ca in the First Schedule.
“(4) Except where an address for service is a document exchange box an address for service shall be the address of a place within ten kilometres of the Registry at the proper place at which documents in the proceeding may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceeding may be posted for that person.
“(5) A notice of address for service shall, unless the Court or a Judge otherwise orders, be served upon the respondent before the date appointed for a directions hearing.
“(6) An applicant may change an address for service by filing a notice showing the new address for service.
“(7) A change of address for service shall not be effective as between the applicant and another party until the notice of change of address is filed and served on that other party.
“12. (1) A notice of referral shall state a date for a directions hearing.
“(2) The date for the directions hearing shall be obtained by the Commissioner from the Registry and shall be endorsed on the notice of referral before it is served.
“13. (1) On a directions hearing under this Order the Court or a Judge shall give such directions with respect to the conduct of the proceeding as is thought proper.
“(2) Without prejudice to the generality of sub-rule (1) the Court or a Judge may—
(a) determine what additional documents shall be forwarded to the Registry;
(b) direct the joinder of parties;
(c) make orders with respect to:
(i) discovery and inspection of documents;
(ii) interrogatories;
(iii) admissions of fact or of documents;
(iv) the defining of the issues;
(v) the filing and serving of affidavits;
(vi) the giving of particulars;
(vii) the place, time and mode of hearing;
(viii) the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally or by affidavit, or both; and
(ix) costs.
“14. (1) Where an applicant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted the appeal with due diligence, the Court or a Judge may—
(a) order that the proceeding shall be dismissed for want of prosecution;
(b) fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance the proceeding shall stand dismissed for want of prosecution, or subsequently and in the event of non-compliance, order that it be so dismissed; or
(c) make any other order as may seem just.
“(2) The Commissioner may move on notice for an order under sub-rule (1), and the Court or a Judge, after notice to the applicant has been given by the Registrar, may make orders in accordance with sub-rule (1) of its own motion.
“(3) An order under paragraph (1) (b) may be varied at any time before the proceeding stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.
“15. Where
a request to refer a decision on an objection is, by force of sub-section 4 (2)
of the
“16. Where
proceedings are transferred from a Supreme Court to this Court by force of
sub-section 4 (3) of the
“17. Where the Commissioner receives an application under a relevant tax law asking that a request to refer a decision to the Court be treated as having been duly lodged notwithstanding that the period prescribed by law for lodgment of the request has ended, the Commissioner shall send that application to the Court in the time prescribed by law, or, if no time has been so prescribed, then within twenty-eight days after the date of the receipt of the request.
“18. The application shall state fully and in detail the circumstances concerning, and the reasons for, the failure by the applicant to lodge the request as required by the relevant law.
“19. The Commissioner shall send the application to the Court by filing the same in the District Registry in the State or Territory in which the application was received by the Commissioner.
“20. At the same time as the Commissioner files the application for extension of time there shall be filed a notice of hearing of the application which shall be in or substantially in the form numbered 55cb in the First Schedule.
“21. The notice of hearing shall be signed by the Commissioner or the Commissioner’s solicitor and shall state a return date for the hearing of the application by the Court. The date for the hearing shall be obtained by the Commissioner from the Registry and shall be endorsed on the notice of hearing before it is served.
“22. A sealed copy of the notice of hearing shall, unless the Court or a Judge otherwise orders, be served upon the applicant not less than five days before the date appointed for the hearing.
“23. Where the Court or a Judge has made an order abridging time, the notice or hearing shall bear a note of the order made.
“24. The applicant shall file and serve a notice showing an address for service before the date appointed for the hearing of the proceeding and before filing any document. The provisions of rule 11 of this Order apply, so far as is practicable, to proceedings to which Division IV of this Order
apply. A notice of address for service shall be in or substantially in the form numbered 55ca in the First Schedule.”
“55c Notice of Referral (Order 52a, rule 7)
55ca Notice of Address for Service (Order 52A, rules 11 and 24)
55cb Notice of Hearing (Order 52, rule 20)”;
after:
“55b Application for Extension of Time to File or Serve Notice of Appeal from Administrative Appeals Tribunal”.
“FORM 55c
NOTICE OF REFERRAL
(Order 52A, rule 7)
IN THE FEDERAL COURT OF |
AUSTRALIA |
|
|
|
BETWEEN: A.B.
Applicant
and
Commissioner of Taxation
Respondent
NOTICE OF REFERRAL
The applicant has requested the respondent pursuant to (Insert title and section of Act pursuant to which the request is made) to refer the respondent’s decision on an objection with respect to taxation to the Court. That decision of the respondent is as follows:
(State precisely the decision)
A list of the documents necessary for the hearing of the proceeding was forwarded by the respondent to the Registry. A copy of this list accompanies this Notice.
.
................................................................................
(Respondent/solicitor)
The respondent’s address for service is (specify address for service).
NOTICE TO THE APPLICANT:
A directions hearing in this matter 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, the matter may be dealt with and judgment may be given or orders made
or directions given in your absence. Before any attendance at that time you must file an address for service in the Registry and serve a copy of it upon the respondent.
TIME: (Date and time to be entered by Registry unless fixed by Court)
PLACE: (Address of Court)
DATE: e.g. 7 May 19.
.....................................................................
(Signed: REGISTRAR)
FORM 55ca
NOTICE OF ADDRESS FOR SERVICE
(Order 52a, rules 11 and 24)
IN THE FEDERAL COURT OF |
AUSTRALIA |
|
|
|
BETWEEN: A.B.
Applicant
and
Commissioner of Taxation
Respondent
NOTICE OF ADDRESS FOR SERVICE
The applicant is
A.B.
of (address)
Solicitor: (Name)
(Address)
Telephone: (Number)
Solicitor’s Agent: (Name)
(Address)
Telephone: (Number)
Address for service: (Specify address for service which may be a document exchange box)
.
............................................................................
(Applicant/solicitor)
FORM 55cb
NOTICE OF HEARING
(Order 52a, rule 20)
IN THE FEDERAL COURT OF |
AUSTRALIA |
|
DISTRICT REGISTRY |
DIVISION |
BETWEEN: A. B.
Applicant
and
Commissioner of Taxation
Respondent
NOTICE OF HEARING
TAKE NOTICE that the application of the applicant under the Act mentioned below asking that a request to refer the decision of the respondent specified below to the Court be treated as having been duly lodged notwithstanding that the period for the lodgment by the applicant of such a request has ended, will be listed for hearing before the Federal Court of Australia at the time and place specified below. If there is no attendance before the Court by you or by your counsel or solicitor, the matter may be dealt with and judgment may be given or orders made or directions given in your absence. Before any attendance at that time you must file an address for service in the Registry and serve a copy of it upon the respondent.
ACT: (Insert title and section of Act under which the application is made)
DECISION: (Specify the respondent’s decision)
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 date))
.
............................................................................
(Respondent/solicitor)
The respondent’s address for service is (specify address for service).”.
1. Notified in the
2. Statutory Rules 1979 No. 140 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1987 No. 73 andsee also Statutory Rules 1987 No. 73.
Printed by Authority by the Commonwealth Government Printer
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