Federal Court Rules (Amendment) (Cth)

Statutory Rules 1984 No. 91

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 January 1984.

N. H. BOWEN CJ.

R. A. SMITHERS J.

R. W. FOX J.

C. A. SWEENEY J.

W. E. S. FORSTER J.

A. E. WOODWARD J.

R. J. A. FRANKI J.

J. H. MUIRHEAD J.

P. G. EVATT J.

R. J. B. St. JOHN J.

R. M. NORTHROP J.

J. A. KEELY J.

J. L. TOOHEY J.

D. G. McGREGOR J.

F. R. FISHER J.

J. F. GALLOP J.

J. D. DAVIES J.

J. S. LOCKHART J.

(L.S.) I. F. SHEPPARD J.

J. J. A. KELLY J.

T. R. MORLING J.

G. E. FITZGERALD J.

K. J. JENKINSON J.

A. R. NEAVES J.

M. D. KIRBY J.

B. A. BEAUMONT J.

Judges of the Federal

Court of Australia

J. T. HOWARD

Registrar

S.R.3/84 Cat. No. –Recommended retail price 80c 6/17.1.1984 

AMENDMENTS OF THE FEDERAL COURT RULES2

Commencement

1.These Rules shall come into operation on 31 January 1984.

Issue of Subpoenas

2.Rule 6 of Order 27 of the Federal Court Rules is amended by adding at the end thereof the following sub-rule—

“(5) Sub-rule (1) applies whether or not the proceedings were commenced in or transferred to the Registry to which the request is directed.”

Interest

3.Rule 8 of Order 35 of the Federal Court Rules is amended by omitting “15%” and substituting “12%”.

Notices of a Constitutional Matter

4.Rule 2 of Order 51 of the Federal Court Rules is amended by omitting “Attorney-General of the Commonwealth and the Attorney-General of the relevant State” and substituting “Attorneys-General of the Commonwealth, the States and the Northern Territory”.

Preparation of Appeal Papers

5.Rule 28 of Order 52 of the Federal Court Rules is amended by repealing paragraph 3 (k) and substituting—

“(k) The certificate required by sub-rule (6).”

Notices of Contention

6. Sub-rule 13 (3) of Order 53 of the Federal Court Rules is amended by inserting after “made”—

“but he shall—

(a) give notice of his contention to the applicant;

(b) give notice to the applicant of the record of evidence or documents before the Tribunal relevant to his contention for inclusion in the applicant’s draft index; and

(c) at the time when the appeal papers are settled, request that such record of evidence or documents be included in the appeal papers.”

Mandamus, Prohibition, Injunction against an Officer of the Commonwealth

7.The following Order is inserted in the Federal Court Rules after Order 54—

“ORDER 54a

Judiciary Act 1903; section 39b

MANDAMUS, PROHIBITION, INJUNCTION AGAINST AN OFFICER OR OFFICERS OF THE COMMONWEALTH

Division 1—General

Application

“1. (1) An application for a writ of mandamus or prohibition may be made to the Court or a Judge ex parte and shall be supported by affidavit.

“(2) Subject to sub-rule (3) of this rule, the application shall, in the first instance, be for an order calling on the proposed respondent to show cause why the writ should not be issued, or other relief given.

“(3) The Court or Judge may, in its or his discretion, in a case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of mandamus or prohibition.

Judge may direct application in Court or to Full Court

“2. When application is made to a Judge in Court or in chambers, or otherwise, he may, if he thinks fit, direct that the application be made by notice of motion to a Judge in Court or to a Full Court, and may adjourn the application so that notice of the application may be given accordingly.

Adjournment of application by Full Court

“3. Whenapplication is made to a Full Court, the Court may adjourn the application so that notice of the application may be given.

Order to be returnable before Full Court or Single Judge

“4. (1) An order to show cause shall be to show cause before a Full Court, or before a single Judge in Court or chambers.

“(2) The Court or a Judge may, on the return of an order to show cause, give any directions with respect to the conduct of the proceeding as is thought proper.

Service of order to show cause or notice of motion

“5. (1) The order to show cause, or notice of motion, shall be served on such persons and in such manner as the Court or Judge directs.

“(2) Unless the Court or Judge otherwise directs, there shall be at least three days between service of the order to show cause, or notice, and the date named in the order or notice for the hearing of the application.

“(3) An affidavit stating the names and addresses of, and the place and date of service on, the persons who have been served with the order to show cause or notice of motion shall be filed before the order or notice is listed for hearing, and, if a person who ought to be served under or pursuant to these Rules has not been served, the affidavit shall state that fact and the reason why service has not been effected.

“(4) If, on the application for the order absolute or the hearing of the motion, the Court or Judge is of opinion that a person who ought to have had notice of the application has not been served, the Court or Judge may direct service on that person, and adjourn the hearing in the meantime, upon such terms if any, as it or he thinks fit.

Title of affidavits

“6. Any affidavit intended to be used on the application and upon which the application is made shall be in the form indicated in Form 20 in the First Schedule and shall be headed in the manner indicated in Form 1 in the First Schedule without any other title.

Copies of affidavits

“7. A party to the application shall supply on request by a party or person who desires to be heard, copies of any affidavits previously used in the proceeding or which he proposes to use at the hearing of the application.

Title of proceedings

“8. (1) The order to show cause and all subsequent proceedings shall be entitled—

‘Application for (description of the writ sought, e.g. a writ of mandamus) against (name and title of every officer of the Commonwealth to whom the writ is proposed to be directed). Respondent.

Ex parte (name of the applicant)—Prosecutor.’

“(2) An order to show cause should be prepared in accordance with the form numbered 58 in the First Schedule.

Terms

“9. The order to show cause may be granted upon such terms as to costs and as to giving security or otherwise as the Court or Judge thinks fit.

Applicant limited to grounds and relief set out in order nisi

“10. (1) The grounds of the application and the relief sought shall be set out in the order nisi or notice of motion, if any, and, if the applicant intends to ask for an amendment at the hearing, he shall give notice of his intention and of the proposed amendment.

“(2) The Court or Judge may allow an amendment which it or he thinks necessary for the advancement of justice, but, without the leave of the Court or Judge, a ground shall not be relied upon or relief sought on the hearing other than a ground set out in the order nisi or notice of motion.

Right to be heard in opposition and liability to costs

“11. (1) At the hearing of the application, the Court or Judge shall hear any person who desires to oppose it and appears to the Court or Judge to be a proper person to be heard, notwithstanding that he has not been served with the order nisi or notice of motion.

“(2) A person who is served with the order nisi or notice of motion, or who is heard under this rule, may be ordered to pay costs in the discretion of the Court or Judge.

Affidavits in reply and direct trial or inquiry

“12. (1) At the hearing of the application the Court or Judge may allow the applicant to use further affidavits upon such terms as to adjournment or costs as the Court or Judge thinks just.

“(2) When the applicant intends to ask to be allowed to use further affidavits, he shall give reasonable notice of his intention, and shall supply copies of the further affidavits to the other parties.

“(3) When a question or issue of fact arises upon the affidavits, the Court or Judge may give such directions as it or he thinks fit for the determination of the question or issue by trial or inquiry.

Costs

“13. When the order is made absolute, the Court or a Judge may dispose of the costs of the proceedings either by the final judgment or by a separate order.

Issue and filing of writs, etc.

“14. (1) A writ issued in proceedings to which this Order relates shall—

(a) bear date of the day on which it is issued; and

(b) be filed in the Registry out of which it is issued, together with the return to the writ and a copy of any order made on it.

“(2) Such a writ shall be prepared by the solicitor or party issuing it out and shall, before being sealed, be endorsed with the name and address of that solicitor or party, and, if issued out by the solicitor as agent, with the name and address of the principal also.

“(3) An order to return the writ shall require the return to be made within such period as is named in the order.

Division 2—Mandamus

Persons interested—prosecutor to be named

“15. (1) An order nisi for a writ of mandamus shall not be granted except upon the application of some person who is interested in the relief sought.

“(2) Subject to the next succeeding sub-rule, the applicant shall state by his own affidavit that the application is to be made at his instance as prosecutor.

“(3) Where the applicant is a corporation, an officer or agent of the corporation shall state by his affidavit that the application is to be made by the corporation as prosecutor.

Form of writ

“16. (1) Unless otherwise ordered by the Court or Judge, a writ of mandamus shall command the person to whom it is addressed to do the act in question or show cause why he has not done it.

“(2) The Court or Judge may direct that the command shall be peremptory in the first instance.

Time for return of writ

“17. Unless otherwise ordered by the Court or Judge, the writ shall be returnable within 7 days.

Service

“18. Unless the Court or Judge otherwise directs—

(a) when a writ of mandamus is directed to one person only, the original writ shall be personally served upon him by delivering it to him; and

(b) when the writ is directed to two or more persons, it shall be personally served upon one in the manner prescribed in paragraph (a) above, and upon the remaining persons by delivering stamped copies of the original writ to them.

Service on corporate body, etc.

“19. Unless otherwise directed by the Court or Judge, when a writ of mandamus is directed to a body corporate or public authority, it shall be served on that body or authority in the manner provided by Order 7, rule 2.

Return

“20. The person or persons to whom a writ of mandamus is directed shall, within the time allowed by the writ, file the writ or a copy of the writ in the District Registry from which it was issued, together with a certificate, endorsed on or attached to the writ or copy, and signed by him or them, setting forth that he or they has or have done the act commanded by the writ or setting forth the reason why he or they has or have not done so.

Service

“21. A copy of the return shall be served upon the prosecutor on the same day on which it is filed.

Pleading to return

“22. If the return does not certify that the act commanded has been done, the same proceedings shall be had and taken, and within the same time, as if the return were a defence in an action in which the prosecutor was the applicant and the person to whom the writ is directed was the respondent and had pleaded the return as his defence.

Peremptory writ

“23. (1) If the questions of fact and law raised by the return are determined in favour of the prosecutor by judgment of the Court or otherwise, the prosecutor shall be entitled to a peremptory writ of mandamus commanding the person or persons to whom the first writ was directed to do the act commanded in that writ.

“(2) The peremptory writ shall be awarded by the judgment, if any, or, if there is no judgment, by a separate order.

Costs when peremptory writ awarded in first instance or on obedience

“24. (1) When a peremptory writ is awarded in the first instance, the Court or Judge shall, at the time of granting the writ, direct by and to whom the costs of the proceedings shall be paid.

“(2) When a peremptory writ is not awarded in the first instance, and the return to the writ certifies that the person to whom it is addressed has done the act commanded by the writ, an application for an order for the costs of the proceedings may be made not later than 14 days after the return is filed.

Proceedings in nature of interpleader

“25. (1) When, upon an application for a writ of mandamus,it appears that a person other than the prosecutor claims that the person to whom it is proposed to direct the writ shall do some act inconsistent with the act which the prosecutor claims to have done, the person to whom the order nisi,notice of motion or writ is directed may apply to the Court or a Judge for an order that that other person be substituted for him, or joined with him, in all subsequent proceedings up to the issue of a peremptory writ of mandamus.

“(2) The Court or Judge may make such order on the application as is just.

“(3) The proceedings shall not abate or be discontinued by reason of the death, resignation or removal from office of the person to whom the order nisi,notice of motion or writ is directed, but they may be continued and carried on either in his name or otherwise, and, if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person.

Time

“26. An application for a writ of mandamus to a tribunal to hear and determine a matter shall be made within 28 days of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Judge.

Mandamus by order

“27. Subject to paragraph (v) of section 75 of the Constitution of the Commonwealth, when the Court or Judge directs that the command shall be peremptory in the first instance, the command may be expressed in an order of the Court without the issue of a writ, and the order shall have the same effect as a peremptory writ of mandamus.

Enforcement of order like judgment

“28. The provisions of Order 37 apply mutatis mutandis to mandamus.

No action against party obeying writ or order

“29. An action or proceeding shall not be commenced or prosecuted against a person in respect of a thing done in obedience to a writ of mandamus or an order of the Court for relief of the tike nature issued by the Court or a Judge.

Division 3—Prohibition

Pleadings in prohibition

“30. The Court or Judge may in any case, instead of directing the issue of a writ of prohibition, direct the prosecutor to deliver to the opposite party a statement of claim setting forth the facts upon which his claim to the writ is founded, and thereupon the same proceedings shall be had and taken in all respects as on a statement of claim in an action.

Proceeding on judgment

“31. If judgment is given for the prosecutor, the judgment shall include a direction that a writ of prohibition shall issue.

Prohibition by order

“32. Subject to paragraph (v) of section 75 of the Constitution of the Commonwealth, the prohibition may be expressed in an order of the Court without the issue of a writ and the order shall have the same effect as a writ of prohibition.

Division 4—Injunction against an officer or officers of the Commonwealth

Application

“33. (1) An application for an injunction against an officer or officers of the Commonwealth may be made to the Court or a Judge ex parte and should be supported by affidavit.

“(2) Where circumstances do not permit the preparation of an affidavit before the hearing of an application, the Court or a Judge may give directions as to the filing and service of the application and of any affidavits relied on, or to be relied on by the applicant.

Form of application, affidavits

“34. (1) The provisions of Order 4 rule 1 apply to any application filed or ordered to be filed in an application for an injunction under this Division.

“(2) The provisions of rule 6 of this Order apply to any affidavit intended to be used on the application.

Title of proceedings

“35. The application and all subsequent proceedings shall be entitled “Application for an injunction against (name and title of every officer of the Commonwealth to whom the injunction is proposed to be directed), Respondent.

Ex parte (name of applicant). Applicant.”

Directions hearing

“36. (1) The Court or a Judge may give any directions with respect to the conduct of the proceedings as is thought proper.

“(2) The Court or a Judge may make any interim or interlocutory order considered necessary pending final disposal of the application.

Costs

“37. The Court or a Judge may dispose of the costs of the proceeding either by the final judgment or by separate order.

Abatement, discontinuance etc.

“38. The provisions of sub-rule 25 (3) apply mutatis mutandis to proceedings for an injunction against an officer or officers of the Commonwealth.”.

Payment into Court under sub-section 89 (2) of the Life Insurance Act 1945

8.The following Order is inserted in the Federal Court Rules after Order 64—

“ORDER 65

LIFE INSURANCE ACT 1945

Application

“1. Subject to this Order, the Rules of Court prescribe the manner of making an application under sub-section 89 (2) of the Life Insurance Act 1945.

Payment into Court

“2. A company which makes a payment into Court pursuant to sub-section 89 (2) of the Life Insurance Act 1945 shall, at the time of making such payment, commence proceedings in the Court for a declaration as to the persons entitled to the moneys so paid in.

Form

“3. An application for a declaration under rule 2 shall be in accordance with Form No. 59 in the First Schedule.

Parties

“4. (1) A company which commences a proceeding in the original jurisdiction of the Court under this Order shall be an applicant;

“(2) The Company shall join as respondents to the proceeding:

(i) all persons in respect of whom it has received express notice in writing of any trust, right, equity or interest in the moneys paid into Court; and

(ii) all persons who may be affected by the declaration sought.

Documents to be Filed

“5. On the filing of an application under rule 2 the applicant shall file the following documents:

(a) an affidavit showing the nature of the applicant’s claim and the material facts on which it is based;

(b) a notice of deposit in accordance with Form No. 31a in the First Schedule.”

Numerical Table of Forms

9.The numerical table of forms that follows Order 65 of the Federal Court Rules is amended by—

(a) inserting—

“58. Order to Show Cause (Order 54a sub-rule 8 (2)).

59. Application (Order 65 rule 3).”

after—

“57. Notice of Objection to Competency.”

(b) omitting—

“31. Notice of Deposit”

and substituting

“31. Notice of Deposit (Order 23 rule 6).

31a. Notice of Deposit (Order 65 rule 5)”.

First Schedule

10. The First Schedule of the Federal Court Rules is amended by—

(a) omitting from Form 15—

“(Where a respondent wishes to make a request under Order 9), sub-rule 5 (3) add:

The Registrar is requested to deal with the copy (copies)of this Notice under Order 9, sub-rule 5 (3),”;

(b) inserting after Form 31 the following form:

FORM 31a

NOTICE OF DEPOSIT

(Order 65, rule 5)

The applicant has paid into Court $ pursuant to sub-section 89 (2) of the Life Insurance Act, 1945. dated:

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

(Signed, applicant or its Solicitor)

(c) inserting after paragraph 4 of Form 54 the following:

“To the respondent (address):

(d) inserting after Form 57 the following forms—

FORM 58

ORDER TO SHOW CAUSE

(Order 54a, sub-rule 8 (2))

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No.	of 19   .
GENERAL DIVISION

Application for writ of (description of writ)

against (insert name(s)), Respondent (s)

ex parte (name of applicant), Prosecutor

ORDER

JUDGE(S):

DATE OF ORDER:

WHERE MADE:

It is hereby ordered that (name of respondent(s))appear before the Federal Court of Australia at

on (date) 19 at (time), to show cause why (state nature of relief sought)

upon the grounds set out in the affidavit of sworn (date) and filed herein.

Grounds of Application.

1.

2. &c.

Further Orders:

1.

2. &c.

Date Entered: DISTRICT REGISTRAR.

To the Respondent (s) (Address)

The Prosecutor’s claim for relief will be heard by the Court at the time and place specified above. If there is no attendance before the Court by you or by your counsel or solicitor, the order to show cause may be dealt with and a writ issued or an order made in your absence. Before any attendance at that time you must file an appearance in the Registry.

The Prosecutor’s address for service is (specify address for service).

FORM 59

APPLICATION

(Order 65, rule 3)

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY GENERAL DIVISION	No.	of 19   .
BETWEEN:	A.B.
Applicant
AND:	C.D.
Respondent

APPLICATION

On the grounds appearing in the accompanying affidavit the applicant claims: —

1. A declaration as to the persons entitled to the proceeds of the policies listed in the Schedule hereto.

2. Etc.

SCHEDULE

(List policies)

DATED: (e.g. 7 May, 19)

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

(Signed, applicant or its solicitor)

To the respondent: (name and address)

A directions hearing in this application 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 application may be dealt with and judgment may be given or an order made in your absence. Before any attendance at that time you must file an appearance in the Registry.

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)

The applicant’s address for service is:

(specify address for service).

Further amendments

11. The Federal Court Rules are amended as set out in the Schedule.

SCHEDULE

Rule 11

FURTHER AMENDMENTS

Provision Amended	Amendment
Order 27, sub-rule 6(3)..................................	Omit “but need not file a praecipe for supoena”.
Order 28, sub-rule 5 (2).................................	Omit “(1)”, substitute “(3)”.
Order 48, para. 2(1) (b)..................................	Insert “three copies of” after “by the applicant and”.
Order 62, rule 39............................................	Insert “Deputy Registrar,” after “Registrar”.
Order 63, sub-rule 2(1)..................................	Omit “under an order”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 26 January, 1984.

2.Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264.

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