Federal Court Rules (Amendment) (Cth)

Statutory Rules 1986 No. 611

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 24 March 1986.

N. H. BOWEN C.J.

R. A. SMITHERS J.

C. A. SWEENEY J.

W. E. S. FORSTER J.

A. E. WOODWARD J.

J. H. MUIRHEAD J.

P. G. EVATT J.

R. M. NORTHROP J.

J. A. KEELY J.

J. L. TOOHEY J.

F. R. FISHER J.

J. F. GALLOP J.

J. D. DAVIES J.

J. S. LOCKHART J.

(L.S.) I. F. SHEPPARD J.

T. R. MORLING J.

K. J. JENKINSON J.

A. R. NEAVES J.

(S.R. 85/86)—Cat. No. 3/11.4.1986

 

B. A. BEAUMONT J.

M. R. WILCOX J.

J. E. J. SPENDER J.

P. R. A. GRAY J.

M. G. EVERETT J.

J. C. S. BURCHETT J.

J. A. MILES J.

D. F. JACKSON J.

Judges of the Federal

Court of Australia

J. T. HOWARD

Registrar

AMENDMENTS OF THE FEDERAL COURT RULES2

Commencement

1. These rules shall come into operation on 1 May 1986.

Directions Hearings

2. Rule 1 of Order 10 of the Federal Court Rules is amended:

(a) by adding after paragraph (c) of sub-rule (2) the following paragraph:

“(ca) order that an agreed bundle of documents be prepared by the parties.”;

(b) by adding after paragraph (d) of sub-rule (2) the following paragraph:

“(da) order that the reports of experts be exchanged.”.

Interrogatories by notice

3. Rule 1 of Order 16 is amended by omitting rule 1 and substituting the following rule:

Interrogatories by Notice—Form 23

“1. (1) The Court may, in its discretion, give leave to any party to file and serve upon any other party, within the period limited by the Court for this purpose, a notice requiring the party served to answer interrogatories relating to any matter in question between the interrogating party and the party served.

“(2) The notice to answer interrogatories shall be made in, or substantially in, the form numbered 23 in the First Schedule.”.

Interim Orders

4. Rule 8 of Order 25 of the Federal Court Rules is amended:

(a) by omitting sub-rule (3) and substituting the following sub-rule:

“(3) Upon receipt of such notice the Registrar will, where it is reasonably practicable to do so, inquire of the Chief Judge as to any arrangement the Chief Judge wishes to make pursuant to sub-section 15 (1) of the Act, and will inform the party of the result of that inquiry, where such inquiry takes place.”;

(b) by omitting sub-rule (4) and substituting the following sub-rule:

“(4) If it is not reasonably practicable for the Registrar to inquire of the Chief Judge or if following an inquiry the Registrar informs the party that no Judge can be made available to hear the application the party may then approach the State Supreme Court to ascertain whether a Supreme Court Judge is available to hear it.”.

Interest

5. Rule 8 of Order 35 is amended by omitting “12%” and substituting “15%”.

Costs of Complying with Subpoena

6. Rule 4a of Order 27 is amended by omitting sub-rules (1) and (2) and substituting the following sub-rules:

“(1) Where a person named in a subpoena is not a party to the proceeding and he incurs substantial expense or loss in complying with the subpoena the Court or a Judge may order that the party who requested the issue of the subpoena pay to that person, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to Order 27 rule 3 or the Second Schedule, an amount to compensate him for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena.

“(2) Where an order is made under sub-rule (1) the Court or a Judge shall either fix the amount or direct that the amount shall be fixed by the taxing officer.”.

Staying or Dismissal of Applications

7.Order 54 is amended by inserting the following rule after rule 5:

“6. In applying Order 20, rule 2 to applications under the Administrative Decisions (Judicial Review) Act 1977 that rule shall be construed as if paragraph (1) (a) read ‘no reasonable basis for the application is disclosed’.”.

National Crime Authority Act

8. After rule 2 of Order 57 the following rule is inserted:

Applications under National Crime Authority Act 1984 (State Provisions)

“3. Where the Parliament of a State within the meaning of section 4 of the National Crime Authority Act 1984 enacts legislation providing for applications to be made to the Federal Court of Australia the provisions of rule 1 shall apply mutatis mutandis to such applications.”.

Name Change

9.Sub-rule 2 (2) and rule 6 of Order 63 are amended by omitting the words “Commonwealth Trading Bank” and substituting the words “Commonwealth Bank of Australia”.

Scale of Costs

10. (1) Notwithstanding sub-rule 10 (2) herein, the Schedule omitted from the Federal Court Rules by sub-rule 10 (2) shall continue to apply in relation to all work done and service 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 1 May 1986 (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	90.00
2.	to make or oppose an interlocutory application or motion to the Court or a Judge or an officer of the Court.................................................................................................................	40.00
3.	for a case for opinion of Counsel or for Counsel to advise (including attendance on Counsel with brief).......................................................................................................................	39.00
4.	for interrogatories, answers to interrogatories or an affidavit (not being a formal affidavit), admissions or a list of documents, and affidavit verifying...........................................	54.00
5.	for brief for Counsel on application in Chambers or brief notes for solicitor (where necessary) (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)......................................	50.00
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........................................
Documents
8.	any notice of appearance including copies, filing and service by respondent....................	51.00
9.	any application or notice of motion including fixing return day, copies to file and serve and attendance to file......................................................................................................	40.00
if more than 3 folios—add per folio...........................................................................	3.00

 

Item	Scale of Costs
$
10.	any simple notice or memorandum such as a Notice for Discovery, including copies, filing (where necessary) and service..............................................................................................	33.00
11.	notice to produce, notice to admit or any like notice including copies, filing (when necessary) and service.....................................................................................................................	40.00
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..	35.00
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....	27.00
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 the 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..............................................................................................................	33.00
Clerk..................................................................................................................	10.00
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........................................................................	22.00
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

 

Item	Scale of Costs
$
24.	telegram, facsimile copy, or telex including attendance to dispatch.................................	27.00
or such fee may be allowed as is reasonable in the circumstances.
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.........................................................	27.00
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..........................................................................................................	60.00
Clerk...............................................................................................................	15.00
29.	Where appeal books are prepared in a solicitor’s office, the taxing officer may in his discretion allow such sum as he thinks just and reasonable having regard to work and labour properly performed and charges for material used. In exercising his 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 the Court Registry......	15.00
31.	an attendance which requires the attendance of the solicitor or his managing clerk and involves the exercise of skill or legal knowledge (including an attendance to inspect or negotiate) per quarter hour
Solicitor...............................................................................................................	25.00
Managing Clerk...................................................................................................	9.00
32.	an attendance for which no other provision is made herein.............................................	22.00
33.	an attendance by telephone which does not involve the exercise of skill or legal knowledge	7.00
34.	an attendance on Counsel
with brief or papers (where not otherwise provided for)..........................................	15.00
to appoint a conference or consultation..................................................................	15.00
where appointment made by telephone..................................................................	7.00
35.	a necessary conference or consultation with Counsel
if half an hour or less............................................................................................	40.00
if over half an hour per hour or part thereof............................................................	60.00
36.	in Court or Chambers or before the Registrar for hearing without Counsel
for each hour or part of an hour of the hearing........................................................	119.00
for each hour or part of an hour when likely to be heard but not heard.....................	119.00
not to exceed per day...................................................................................................	536.00

 

Item	Scale of Costs
$
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................................................................................................................	97.00
for each hour or part of an hour of the attendance when likely to be heard but not heard	97.00
not to exceed per day...................................................................................................	437.00
if a person other than a solicitor attends in place of a solicitor, for each hour
(a) Managing Clerk..................................................................................................	40.00
not to exceed per day...................................................................................................	180.00
(b) any other Clerk...................................................................................................	21.00
not to exceed per day...................................................................................................	95.00
38.	to hear judgment..........................................................................................................	26.00
39.	on taxation of costs
if a solicitor attends per hour or part of an hour..........................................................	60.00
if a clerk attends per hour or part of an hour...............................................................	15.00
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 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	134.00
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
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).

 

Item	Scale of Costs
$
Witnesses’ Expenses
44.	witnesses called because of their professional, scientific or other special skill or knowledge per day................................................................................................................................	70.00 to 348.00
45.	witnesses called, other than those covered in item 44, per day........................................	39.00 to 65.00
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 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 18 April 1986.

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.

                   

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