Federal Court Rules (Amendment) (Cth)

Statutory Rules 1997

No. 82 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 7 April 1997.

 

 M.E.J. BLACK C.J.

 J.F. GALLOP J.

 J.S. LOCKHART J.

 I.F. SHEPPARD J.

 K.J. JENKINSON J.

 B.A. BEAUMONT J.

 M.R. WILCOX J.

 J.E.J. SPENDER J.

 P.R.A. GRAY J.

 J.A. MILES J.

 D.M. RYAN J.

 R.S. FRENCH J.

 M.R. EINFELD J.

 M.L. FOSTER J.

 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.

 D.P. DRUMMOND J.

 R.E. COOPER J.

 A.P. WHITLAM J.

 C.J.S.M. CARR J.

 M.F. MOORE J.

 J.H. MATHEWS J.

 K.E. LINDGREN J.

 B.J.M. TAMBERLIN J.

 R. SACKVILLE J.

 S.M. KIEFEL J.

 P.D. FINN 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.

 J.R. MANSFIELD 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 2, rule 3 (Court holiday)

2.1   Omit the rule.

3.   Order 3, rule 6 (Registry hours)

3.1   Subrule 6 (1):

Omit “Sundays and other holidays.”, substitute “Sundays, other holidays and the day immediately after Easter Monday in each year.”.

3.2   Subrule 6 (2):

Omit “Sundays and other holidays.”, substitute “Sundays, other holidays and the day immediately after Easter Monday in each year.”.

4.   Order 14, rule 2 (Form of affidavit—Form 20)

4.1   After subrule 14 (2), insert:

 “(2A) Each page of an affidavit, including any annexure, must be numbered legibly and distinctively, beginning on the first page of the affidavit with the numeral ‘1’.

 “(2B) Each annexure to an affidavit must be identified sequentially on the first page of each annexure by:

• (a)

  a letter of the alphabet, beginning with the letter ‘A’ for the first annexure; or

• (b)

  the initials of the deponent followed by a number, beginning with the number ‘1’ for the first annexure.

 “(2C) The full name of the deponent and the date on which the affidavit was sworn must appear on the first visible page of an affidavit (being the first page, cover page or front cover page, as the case may be).”.

5.   Order 33, new rules 16, 17, 18 and 19

5.1   After rule 15, insert:

Notice of intention to adduce evidence of previous representation—Form 144

 “16. (1) This rule is made for the purposes of section 67 of the Evidence Act 1995.

 “(2) In this rule, ‘notice of intention to adduce evidence of previous representation’ means a notice given under subsection 67 (1) of the Evidence Act 1995.

 “(3) A notice of intention to adduce evidence of previous representation:

• (a)

  must be in accordance with Form 144; and

• (b)

  may have attached to it an affidavit that sets out evidence of the previous representation.

 “(4) Compliance with paragraph (3) (a) may be dispensed with, in whole or in part, if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the paragraph has been satisfied.

Notice of objection to tender of hearsay evidence if maker available—Form 145

 “17. (1) This rule is made for the purposes of section 68 of the Evidence Act 1995.

 “(2) In this rule, ‘notice of objection to tender of hearsay evidence if maker available’ means a notice given under subsection 68 (2) of the Evidence Act 1995.

 “(3) A notice of objection to tender of hearsay evidence if maker available must be in accordance with Form 145.

 “(4) Compliance with subrule (3) may be dispensed with, in whole or in part, if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the subrule has been satisfied.

Notice of intention to adduce tendency evidence—Form 146

 “18. (1) This rule is made for the purposes of section 99 of the Evidence Act 1995.

 “(2) In this rule, ‘notice of intention to adduce tendency evidence’ means a notice given under subsection 97 (1) of the Evidence Act 1995.

 “(3) A notice of intention to adduce tendency evidence must be in accordance with Form 146.

 “(4) Compliance with subrule (3) may be dispensed with, in whole or in part, if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the subrule has been satisfied.

Notice of intention to adduce coincidence evidence—Form 147

 “19. (1) This rule is made for the purposes of section 99 of the Evidence Act 1995.

 “(2) In this rule, ‘notice of intention to adduce coincidence evidence’ means a notice given under subsection 98 (1) of the Evidence Act 1995.

 “(3) A notice of intention to adduce coincidence evidence must be in accordance with Form 147.

 “(4) Compliance with subrule (3) may be dispensed with, in whole or in part, if the Court is satisfied, having regard to all the circumstances, including any affidavit that has been served, that the purpose of the subrule has been satisfied.”.

6.   Order 46, rule 6 (Inspection of documents)

6.1   Omit the rule, substitute:

Inspection of documents

 “6. (1) A person may search in the Registry for, and inspect, a document in a proceeding that is specified in subrule (2), unless the Court, or a Judge, orders that the document is confidential.

 “(2) For the purposes of subrule (1), the documents are:

• (a)

  an application or other originating process;

• (b)

  a notice of appearance;

• (c)

  a pleading or particulars of a pleading;

• (d)

  a notice of motion or other application;

• (e)

  a judgment;

• (f)

  an order;

• (g)

  a transcript;

• (h)

  a notice of appeal;

• (i)

  a notice of discontinuance;

• (j)

  a notice of change of solicitors;

• (k)

  a notice of ceasing to act.

 “(3) Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:

• (a)

  an affidavit;

• (b)

  an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge;

• (c)

  interrogatories or answers to interrogatories;

• (d)

  a list of documents given on discovery;

• (e)

  an admission;

• (f)

  evidence taken on deposition;

• (g)

  a written submission;

• (h)

  a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document;

• (i)

  a judgment, order, transcript of a proceeding, or other document that the Court has ordered is confidential.

 “(4) Except with the leave of the Court or a Judge, or with the permission of the Registrar, a person who is not a party to a proceeding must not inspect any document in the proceeding that is not referred to in subrule (2) or (3).

 “(5) Except with the leave of the Court or a Judge, a party to a proceeding must not search in the Registry for, or inspect, a document filed to support an application for an order that a document, evidence or thing be privileged from production.

 “(6) A person who is not a party to a proceeding may copy a document in the proceeding if:

• (a)

  the document is produced by the Court, a Judge or the Registrar for inspection by the person; and

• (b)

  the Registrar gives the person permission to copy the document; and

• (c)

  the person has paid the prescribed fee.”.

7.   Order 53A (Appeals from Immigration Review Tribunal)

7.1   Omit the Order.

8.   Order 71, rule 17 (Application by creditor in relation to a proposed buy-back scheme or buy-back—section 206LD)

8.1   Omit the rule.

9.   First Schedule

9.1   Form 55F (Notice of appeal):

Omit the Form.

9.2   Form 128 (Affidavit of prescribed information):

Omit from the heading “17 (2),”.

9.3   New Forms 144, 145, 146 and 147:

After Form 143, insert:

“FORM 144

Notice of intention to adduce evidence of previous representation

(Order 33, rule 16)

To:(insert full name of party to whom notice is to be given)

1. I, (insert full name of party giving notice), give notice, under section 67 of the Evidence Act 1995, that I intend to adduce evidence of a previous representation and to argue that the hearsay rule does not apply to the evidence in reliance on:

• *(a)

  subsection 63 (2);

• *(b)

  subsection 64 (2);

 of that Act.

2. (As required by subregulation 5 (2) of the Evidence Regulations, state:

• (a)

  the substance of:

  • (i)

    the evidence of the previous representation that is intended to be adduced; and

  • (ii)

    any other relevant representation made by the person who made the previous representation, so far as it is known to the party giving the notice; and

• (b)

  so far as it is known:

  • (i)

    the date, time, place and circumstances at or in which each representation mentioned in subparagraph (a) (i) or (ii) was made; and

  • (ii)

    the name and address of each person by whom, and each person to whom, the representation was made.

 This requirement may be satisfied, in whole or in part, by referring to the relevant paragraph, or part of a paragraph, of an affidavit, in which case a copy of the affidavit must be attached.)

3. (Complete if you are relying on paragraph 63 (2) (a) or (b) of the Evidence Act 1995.)

 *Particulars of the facts on the basis of which I allege that the person who made the representation is not available to testify concerning the fact to be proved by the evidence of the representation are as follows:

 (State particulars of the facts.)

4. (Complete if you are relying on paragraph 64 (2) (a) or (b) of the Evidence Act 1995.)

 *It would:

• *(a)

  cause:

  • *(i)

    undue expense;

  • *(ii)

    undue delay;

• *(b)

  not be reasonably practicable to call the person who made the representation to give evidence;

 and particulars of the facts on which I will rely to establish *that ground/*those grounds are as follows:

 (State particulars of the facts.)

  

Dated: eg 7 May 19

  

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

(Signed, party giving notice or party’s solicitor)

*Omit if not applicable.

__________

“FORM 145

Notice of objection to tender of hearsay evidence IF MAKER OF REPRESENTATION AVAILABLE

(Order 33, rule 17)

To:(insert full name of party to whom notice is to be given)

1. I, (insertfull name of party giving notice), give notice, under section 68 of the Evidence Act 1995, that I object to the tender of evidence referred to in the Notice of Intention to Adduce Evidence of Previous Representation served by (insert full name of party giving notice under Order 33, rule 16)and dated (insert date of notice).

2. (Specify:

• (a)

  the ground on which the objection is made; and

• (b)

  the part, or parts, of the evidence to which the ground of objection relates.)

  

Dated: eg 7 May 19

  

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

(Signed, party giving notice or party’s solicitor)

__________

“FORM 146

Notice of intention to adduce tendency evidence

(Order 33, rule 18)

To:(Insert full name of party to whom notice is to be given)

1. I, (insert full name of party giving notice), give notice, under subsection 97 (1) of the Evidence Act 1995, that I intend to adduce evidence of character, reputation, conduct or tendency to prove that (insert full name of person who it is alleged has, or had, the tendency) has, or had, a tendency to act in a particular way, or to have a particular state of mind.

2. (As required by regulation 6 of the Evidence Regulations, state:

• (a)

  the substance of the evidence of the kind referred to in subsection 97 (1) of the Evidence Act 1995 that the party giving the notice intends to adduce; and

• (b)

  if that evidence consists of, or includes, evidence of the conduct of a person—so far as it is known:

  • (i)

    the date, time, place and circumstances at or in which the conduct occurred; and

  • (ii)

    the name and address of each person who saw, heard or otherwise perceived the conduct.)

3. (Specify the character, reputation, conduct or tendency of which evidence is to be adduced.)

4. (Specify the tendency sought to be proved by the evidence.)

  

Dated: eg 7 May 19

 

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

(Signed, party giving notice or party’s solicitor)

__________

“FORM 147

Notice of intention to adduce

coincidence evidence

(Order 33, rule 19)

To:(Insert full name of party to whom notice is to be given)

1. I, (insert full name of party giving notice), give notice, under subsection 98 (1) of the Evidence Act 1995, that I intend to adduce evidence of the occurrence of 2 or more related events to prove that, because of the improbability of the events occurring coincidentally, (insert the full name of the person who it is alleged did a particular act, or had a particular state of mind), did a particular act or had a particular state of mind.

2. (As required by regulation 6 of the Evidence Regulations, state:

• (a)

  the substance of the evidence of the occurrence of 2 or more related events that the party giving the notice intends to adduce; and

• (b)

  so far as it is known:

  • (i)

    the date, time, place and circumstances at or in which each event occurred; and

  • (ii)

    the name and address of each person who saw, heard or otherwise perceived each event.)

3. (Specify the substance of any evidence in addition to the evidence given in paragraph 2 to be relied on to establish the improbability of 2 or more related events having occurred coincidentally.)

4. (Specify the particular act, or state of mind, sought to be proved by the evidence.)

  

Dated: eg 7 May 19

 

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

(Signed, party giving notice or party’s solicitor)

__________.”

NOTES

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