Federal Court Rules (Amendment) (Cth)

Statutory Rules 1982 No. 408

__________

Rules under the Federal Court of Australia Act 19761

WE, Judges of the Federal Court of Australia, hereby make the following Rules of Court under the Federal Court of Australia Act 1976.

 Dated 16 December 1982.

N. H. BOWEN C.J.

R. A. SMITHERS J.

R. W. FOX J.

R. A. BLACKBURN 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.

(L.S.) J. A. KEELY J.

J. L. TOOHEY J.

D. G. McGREGOR J.

F. R. FISHER J.

J. F. GALLOP J.

J. DARYL DAVIES J.

J. S. LOCKHART J.

I. F. SHEPPARD J.

J. J. A. KELLY J.

T. R. MORLING J.

R. J. ELLICOTT J.

G. E. FITZGERALD J.

K. J. JENKINSON J.

Judges of the Federal

Court of Australia

J. T. HOWARD

Registrar

AMENDMENTS OF THE FEDERAL COURT RULES

Commencement

 1. These Rules shall come into operation on 1 February 1983.

Application

 2. Rule 1 of Order 19 of the Federal Court Rules is amended—

• (a)

  by omitting from sub-rule (1) “to the Court or a Judge”; and

• (b)

  by inserting after sub-rule (2) the following sub-rule:

  • “(3)

    Such application may be made to the Court or a Judge.”.

 3. After rule 7 of Order 46 of the Federal Court Rules the following rule is inserted:

Abuse of process

“7A.

If a document in any proceeding, including any originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar shall seek the direction of a Judge who may direct him to issue it or to refuse to issue it without the leave of a Judge first had and obtained by the party seeking to issue it.”.

 4. After rule 4 of Order 48 of the Federal Court Rules the following rule is inserted:

Court direction to issue subpoenas

“4A.

(1) Where the Court is conducting an inquiry under section 161 of the Conciliation and Arbitration Act 1904 and is of the opinion that the inquiry will be assisted by production of any document or thing or the calling of a witness the Court may direct the Registrar to issue subpoenas for production or attendance.

“(2)

The Registrar shall arrange for service of such subpoenas and the payment of attendance money and witnesses’ expenses in connection therewith.”.

Affidavits as to fine or penalty

 5. Rule 5 of Order 49 of the Federal Court Rules is amended—

• (a)

  by omitting from sub-rule (1) “applicant or informant as the case may be” and substituting “prosecutor”;

• (b)

  by omitting from sub-rule (1) “respondent or”;

• (c)

  by omitting from sub-rule (3) “respondent or”;

• (d)

  by omitting from sub-rule (3) “application” and substituting “summons”; and

• (e)

  by omitting from sub-rule (3) “applicant or informant” and substituting “prosecutor”.

 6. Order 53 of the Federal Court Rules is repealed and the following Order substituted:

“ORDER 53

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

Interpretation

“1.

In this Order unless the contrary intention appears—

‘Tribunal’ means the Administrative Appeals Tribunal;

‘Registrar of the Tribunal’ means the Registrar of the Tribunal, and includes the Deputy Registrar in the Registry in which the matter before the Tribunal is pending, or other officer for the time being discharging the duties of such Registrar or Deputy Registrar.

Form and filing notice of appeal—Form 55A

“2.

(1) An appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal which shall be in or substantially in the form numbered 55A in the First Schedule.

“(2)

A notice of appeal shall be filed in the District Registry in the State or Territory where it is desired that the appeal shall be heard.

Title of proceedings

“3.

(1) A notice of appeal and all subsequent proceedings in an appeal shall be entitled ‘In the Federal Court of Australia’ with the name of the Registry in which they are filed, ‘On Appeal From’ the Division of the Tribunal from which the appeal is brought and shall also be entitled as between the party applicant and the party respondent.

“(2)

The notice of appeal shall be signed by the applicant or his solicitor and shall state—

• (a)

  the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;

• (b)

  the question or questions of law to be raised on the appeal;

• (c)

  the order sought; and

• (d)

  briefly, but specifically, the grounds relied upon in support of the order sought.

“(3)

The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

“(4)

On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.

Appearance

“4.

Where there is a respondent to the appeal, the notice of appeal shall bear a note that before taking any step in the proceedings the respondent must enter an appearance in the Registry.

Parties

“5.

(1) A party who commences a proceeding in the original jurisdiction of the Court under this order shall be an applicant and a party against whom the proceeding is commenced shall be a respondent.

“(2)

Each party to the proceeding in the Tribunal who is affected by the order sought by a notice of appeal or is interested in maintaining the decision under appeal shall be joined as a respondent to an appeal.

“(3)

The Court may order the addition or removal of any person as an applicant or respondent to an appeal.

“(4)

A person shall not be made an applicant without his consent.

Filing and service of notice of appeal

“6.

(1) Within the time specified in paragraph 44 (2A) (a) of the Administrative Appeals Tribunal Act 1975, the party desiring to appeal from the decision shall file a notice of appeal in the Registry of the Court at the place where it is desired that the appeal be heard.

“(2)

Within 7 days after the filing of the notice of appeal the applicant shall serve a copy of the notice of appeal personally upon all the other parties to the proceeding before the Tribunal and upon the Registrar of the Tribunal.

Extension of time

“7.

(1) Application may be made to the Court or a Judge for an extension of the time specified in sub-section 44 (2A) of the Administrative Appeals Tribunal Act 1975 for the filing or serving of a notice of appeal either before or after the expiration of the specified time.

“(2)

Such application shall be made in or substantially in the form numbered 55B in the First Schedule.

“(3)

An application shall be accompanied by an affidavit showing—

• (a)

  the nature of the case;

• (b)

  the questions involved; and

• (c)

  the reason why an extension of time should be given.

Security for costs

“8.

(1) The Court may, in special circumstances, order that such security for costs of appeal to the Court be given as it thinks fit.

“(2)

Subject to sub-rule (1), no security for costs of an appeal to the Court shall be required.

Stay

“9.

(1) An application pursuant to section 44A of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of a decision subject to appeal shall be made to the Court or a Judge by motion upon notice and such motion may be made returnable upon the date fixed for the directions hearing.

“(2)

Such an application may in an urgent case be made ex parte.

Documents to be forwarded

“10.

(1) Within 21 days from the service of the notice of appeal upon the Registrar of the Tribunal there shall be forwarded to the Registry at the proper place—

• (a)

  all documents referred to in paragraph 46 (1) (a) of the Administrative Appeals Tribunal Act 1975;

• (b)

  a copy of the decision of the Tribunal;

• (c)

  where the Tribunal gave reasons in writing for its decision, a copy of the reasons;

• (d)

  where a transcript or notes of proceedings before the Tribunal were taken, that transcript or those notes; and

• (e)

  a list of the documents forwarded specifying the documents which were before the Tribunal and specifying the documents (if any) in respect of which—

  • (i)

    the Tribunal has made an order under sub-section 35 (2) of the Administrative Appeals Tribunal Act 1975;

  • (ii)

    a certificate of the Attorney-General is in force under sub-section 28 (2) of the Administrative Appeals Tribunal Act 1975; and

  • (iii)

    a certificate of the Attorney-General is in force under sub-section 36 (1) of the Administrative Appeals Tribunal Act 1975 and indicating whether an order was made by the Tribunal with respect to such documents under sub-section 36 (3) of the Administrative Appeals Tribunal Act 1975.

“(2)

Where the Tribunal does not give reasons in writing for its decision the party appealing shall obtain from the Tribunal in accordance with sub-section 43 (2A) of the Administrative Appeals Tribunal Act 1975 a statement in writing of the reasons for its decision and shall forward a copy of the statement to the Registrar of the Tribunal and to the Registry at the proper place within 10 days after receiving it.

“(3)

When the documents referred to in sub-rules (1) and (2) of this rule have been received in the Registry, the Registrar shall, subject to the provisions of sections 35 and 36 of the Administrative Appeals Tribunal Act 1975 forward a copy of the list of documents to all parties to the appeal.

Discontinuance of appeal

“11.

(1) An applicant may at any time file and serve a notice of discontinuance of the appeal and upon its being filed the appeal shall be abandoned.

“(2)

The notice of discontinuance filed by an applicant under sub-rule (1) does not affect any other applicant in the appeal.

“(3)

A party filing a notice of discontinuance under sub-rule (1) shall be liable to pay the costs of the other party or parties occasioned by his appeal.

“(4)

A party whose costs are payable under sub-rule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter judgment for the taxed costs.

Amendment by supplementary notice

“12.

(1) A notice of appeal may, before the date of the directions hearing, be amended without leave by filing a supplementary notice.

“(2)

A party who files a supplementary notice under sub-rule (1) shall file and serve it in accordance with rule 6 as if it were a notice of appeal.

Notice of cross-appeal

“13.

(1) A respondent who desires to appeal from a part of the decision from which the applicant has appealed, or to seek a variation of a part of the decision, need not institute a substantive appeal, but he shall, within 21 days after the service upon him of the notice of appeal, or within such further time as the Court or a Judge may allow, file in the Registry a notice of cross-appeal and serve a copy of the notice upon the applicant and every other party to the proceedings.

“(2)

The notice of cross-appeal shall state what part of the decision he cross-appeals from or contends should be varied and shall state—

• (a)

  the question or questions of law to be raised on the cross-appeal;

• (b)

  the relief sought in lieu of the decision appealed from or the variation of that decision which is sought; and

• (c)

  briefly but specifically the grounds relied upon in support of the relief or variation sought.

“(3)

It is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of law has been erroneously decided against him but does not seek a discharge or variation of a part of the decision actually pronounced or made.

Directions hearing

“14.

(1) A notice of appeal shall state a date for a directions hearing.

“(2)

The date for the directions hearing shall be obtained from the Registry and shall be endorsed on the notice of appeal before it is served.

“(3)

A notice of appeal shall, unless the Court or a Judge otherwise orders, be served upon the respondent not less than five days before the date appointed for the directions hearing.

“(4)

Where the Court or a Judge has made an order abridging time, the notice of appeal shall bear a note of the order made.

General

“15.

(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 documents and matters shall be included in the appeal papers and the order of inclusion;

• (b)

  determine what documents and matters were before the Tribunal;

• (c)

  settle the index;

• (d)

  determine the number of copies of the appeal papers required;

• (e)

  direct the joinder of parties;

• (f)

  order that the appeal be heard before a Full Court;

• (g)

  direct the place, time and mode of hearing; and

• (h)

  delegate to the Registrar determination of the matters referred to in paragraphs (a), (c), (d) and (g) or any other matter.

Preparation of appeal papers

“16.

(1) The title page of the appeal papers shall give the title of the proceedings, including the division of the Tribunal from which the appeal is brought, the names of members constituting the Tribunal, and the names of the solicitors for each party and their addresses for service.

“(2)

After the title page there shall be an index of the documents comprising the appeal papers and showing the date and page number of each document.

“(3)

The appeal papers shall be paginated and shall include all documents necessary to enable the questions of law raised by the appeal to be determined by the Court.

“(4)

The date and a short description of the nature of each document shall precede it, but formal headings shall not be printed or copied and jurats and formal identification of exhibits and the like shall be omitted.

“(5)

A copy of the appeal papers shall be filed in the Registry with a certificate by the parties or their solicitors that it has been examined and is correct.

“(6)

The appeal papers need not be in bound and printed form but shall be clear and legible and securely fastened.

“(7)

The appeal papers shall be prepared to the satisfaction of the Registrar.

“(8)

The applicant shall file such number of copies of the appeal papers as the Registrar directs.

“(9)

The requirements of this rule shall be subject to any direction which may be given by the Court or a Judge.

Directions by Registrar

“17.

At any time after the filing of the notice of appeal the Registrar may give directions as to any matter which appears to him to be a convenient matter upon which to give directions.

Setting down appeal

“18.

(1) Unless an appeal is set down or listed for hearing at the directions hearing, the applicant shall enter the appeal for hearing within 14 days after the settlement of the appeal papers.

“(2)

A copy of the entry for hearing shall be served forthwith upon every other party to the appeal.

Time for entry of appeal

“19.

(1) If the applicant does not enter the appeal for hearing within the time prescribed by rule 18, any other party to the appeal may enter the appeal for hearing or apply to the Court or a Judge by motion upon notice for an order dismissing the appeal for want of prosecution.

“(2)

When an application is made to the Court or a Judge under sub-rule (1), the Court or a Judge may order the appeal to be dismissed or may make such other order as is thought to be just.”.

Numerical Table of Forms

 7. The Numerical Table of Forms that follows Order 64 of the Federal Court Rules is amended—

• (a)

  by inserting—

“46B Order (Order 33, rule 15)”

after—

“46A Order (Order 52, rule 40)”;

• (b)

  by inserting—

“54A Application for Leave to File and Serve out of Time (Order 52, sub rule 15 (5))”

after—

“54 Application for Leave to Appeal”; and

• (c)

  by omitting—

“55 Notice of Appeal”

and substituting—

“55	Notice of Appeal (Order 52, rule 12)
55A	Notice of Appeal (Order 53, rule 2)
55B	Application for Extension of Time to File or Serve Notice of Appeal from Administrative Appeals Tribunal”.

First Schedule

 8. The First Schedule to the Federal Court Rules is amended by inserting after Form 55 the following forms:

“Form 55A

NOTICE OF APPEAL

(Order 53, rule 2)

 

On appeal from the division of the Administrative Appeals Tribunal constituted by

(the names of the members constituting the Tribunal which made the decision)

BETWEEN:

A.B.

Applicant

and

C.D.

Respondent

NOTICE OF APPEAL

1. TAKE NOTICE that the applicant appeals from the decision of (specify division of Tribunal below) constituted by (specify members constituting the Tribunal) given on (specify date) at (specify place) whereby the Tribunal decided (specify decision appealed from).

2. THE QUESTIONS OF LAW raised on the appeal are—

 (specify each question of law)

3. ORDERS SOUGHT: (State the orders or relief sought by the applicant).

4. GROUNDS: (Specify grounds relied upon in support of the orders sought).

Date:e.g. 7 May 19

 .

…………………………………….

(Signed, applicant or his solicitor)

To the Respondent: (address)

TAKE NOTICE:

A directions hearing in this appeal 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, directions may be given and orders made in your absence.

Before taking any step in the proceeding or attending at the directions hearing 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)

(Where the time for service has been abridged, add—)

The time by which this notice of appeal, with its notice of the directions hearing, is to served has been abridged by the Court to (specify time).

Date: e.g. 7 May 19

 .

…………………………………..

(Signed: REGISTRAR)

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

 

“FORM 55B

APPLICATION FOR EXTENSION OF TIME TO FILE OR SERVE NOTICE OF APPEAL

FROM ADMINISTRATIVE APPEALS TRIBUNAL

(Order 53, Rule 7)

 19

BETWEEN:

 A.B.

Applicant

and

C.D.

Respondent

APPLICATION FOR EXTENSION OF TIME TO FILE OR SERVE NOTICE OF APPEAL

1. The applicant applies for an extension of time in which to file and/or serve a notice of appeal from the decision of (specify division of Tribunal below) constituted by (specify members constituting the Tribunal) given on (specify date) at (specify place) whereby the Tribunal decided (specify decision sought to be appealed from).

2. An extension of time is required because a notice of appeal was not filed and/or served (as the case may be) within the time(s) specified in sub-section 44 (2A) of the Administrative Appeals Tribunal Act 1975.

3. This application will be heard by the Court at   on

 (place and date to be inserted by the Registrar).

4. The grounds of the application appear in the annexed affidavit.

Date: e.g. 7 May 19

…………………………………..

(Signed, applicant or his solicitor)”.

 

Further amendments

9.

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

_________

SCHEDULE Rule 9

FURTHER AMENDMENTS

 

Provision amended	Amendment
Order 52, sub-rule 28 (1)	Omit “full and correct”.
Order 56, rule 2	Omit “, rules 1 to 11 inclusive”.
Order 56, rule 3	Omit “rule 8”, substitute “rule 10”.

 

NOTES

1. Notified in the Commonwealth of Australia Gazette on 7 January 1983.

2. Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 No. 217.