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 this sixteenth day of April 1980.
N. H. BOWEN
C. J. R. A. SMITHERS
J. R. A. BLACKBURN
J. C. A. SWEENEY
J. XAVIER CONNOR
J. R. J. A. FRANKI
J. J. B. SWEENEY
J. P. G. EVATT
J. R. J. B. ST. JOHN
J. R. M. NORTHROP
J. F. G. BRENNAN
J. J. A. KEELY
J. WILLIAM DEANE
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.
Judges of the Federal
Court of Australia
J. T. HOWARD
Registrar
_______________
AMENDMENTS OF THE FEDERAL COURT RULES
These Rules shall come into operation on 1 May 1980.
2 The following rule is inserted in Order 4 of the Federal Court Rules after rule 16:
Preliminary discovery “17. (1) Where, on application by any person, it appears to the Court or a Judge that—
(a) the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose; and
(b) some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned,
the Court or a Judge may order that person—
(c) to attend before the Court or a Judge and be orally examined on any matter relating to the identity or description of the person concerned; and
(d) to produce to the Court or a Judge any document or thing in his possession, custody or power relating to the identity or description of the person concerned.
“(2) Where, on the application of any person, the matters mentioned in paragraph (1) (a) appear to the Court or a Judge and it further appears to the Court or a Judge that a corporation has or may have in its possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned, the Court or a Judge may order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned.
“(3) In this rule—
‘description’ includes the name, place of residence, place of business, occupation and sex of the person concerned;
‘person concerned’ means the person referred to in paragraph (1) (a).
“(4) An application for an order under this rule shall be in or substantially in the form numbered 5A in the First Schedule, the person or corporation against whom the order is claimed being made respondent to the application.
“(5) An order made under sub-rule (1) or (2) shall be served personally on the person or corporation ordered to attend or to produce any document or thing.
“(6) An application for an order under sub-rule (1) or (2) shall be made in the Division in which the proceedings referred to in paragraph (1) (a) would be dealt with.
“(7) An order under sub-rule (1) or (2) shall not require a person to attend or to produce any document or thing on any day on which his attendance, or production by him, is required, unless a sum sufficient to meet his reasonable expenses of complying with the order in relation to that day is paid or tendered to him at the time of service of the order or not later than a reasonable time before that day.
“(8) Where an order under sub-rule (2) requires a corporation to produce any document or thing, the sum mentioned in sub-rule (7) may be paid or tendered to any person apparently an officer of, or in the service of, the corporation and apparently of or above the age of sixteen years.
“(9) Where any person incurs expense or loss in complying with an order under sub-rule (1) or (2) in an amount exceeding any sum paid under sub-rule (7), the Court or a Judge may order the applicant to pay to that person an amount sufficient to make good the expense or loss.”.
Rule 2 of Order 7 of the Federal Court Rules is amended by omitting paragraph (1) (b) and substituting the following paragraph:
“(b) a corporation or organization-by leaving a copy of the document with some person apparently an officer of or in the service of the corporation or organization and apparently of or above the age of sixteen years—
(i) at the registered office of the corporation or organization; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation or organization; and”.
Rule 1 of Order 10 of the Federal Court Rules is amended—
(a) by omitting from sub-paragraph (2) (a) (xiv) “and”; and
(b) by omitting sub-paragraph (2) (a) (xv) and substituting the following sub‑paragraphs:
“(xv) the disclosure of reports of experts; and
(xvi) costs;”.
Rule 8 of Order 35 of the Federal Court Rules is amended by omitting “8%” and substituting “10%”.
6 The following rule is inserted in Order 49 of the Federal Court Rules after rule 4:
Affidavits as to fine or penalty “5. (1) Unless the Court otherwise directs, where the Court is empowered to impose a fine or penalty under any Act, the applicant or informant as the case may be shall, and the respondent or defendant may, file such affidavit evidence as each considers necessary having regard to the terms of the relevant Act to assist the Court to determine the appropriate fine or penalty.
“(2) The provisions of Order 14 relating to affidavits including requirement for cross‑examination apply in relation to affidavits filed in accordance with sub-rule (1).
“(3) This rule applies in a case where there has been a plea of guilty or where after a finding of guilty the matter has been adjourned to enable evidence as to the appropriate fine or penalty or where the respondent or defendant proposes to plead guilty or not to deny the charge alleged in the application and has so advised the applicant or informant at the directions hearing or within the time then appointed.”.
Rule 28 of Order 52 of the Federal Court Rules is amended by adding at the end thereof the following sub-rule:
“(11) Where the text of an oral judgment or summing up of a Judge is to be included in the appeal papers it shall first be submitted to the Judge for correction and shall, when included in the appeal papers, be accompanied by a certificate from the Registrar that this has been done.”.
Rule 29 of Order 52 of the Federal Court Rules is amended by adding at the end thereof the following sub-rule:
“(6) The Court or a Judge, if satisfied that it is expedient to do so, may at any time order that an appeal be heard at a place and or time other than that provided for by this rule.”.
Order for production of prisoner “40. (1) The Court hearing an appeal against conviction or sentence where the prisoner is in lawful custody may at the request of a party or of its own motion make an order requiring production of the prisoner and may make such order in relation to the continuing custody of the prisoner as may in the opinion of the Court be appropriate.
“(2) An order under sub-rule (1) may if the Court thinks it appropriate be in accordance with Form 46A in the First Schedule.”.
10 Rule 7 of Order 53 of the Federal Court Rules is repealed and the following rule substituted:
Ex parte application for suspension of decision
“7. An application to the Court or a Judge for an order under section 44A of the Administrative Appeals Tribunal Act 1975 may in urgent cases be made ex parte.”.
The Numerical Table Of Forms that follows Order 64 of the Federal Court Rules is amended—
(a) by omitting—
“5 Application”
and substituting—
“5 Application (Order 4, rule 1)
5A Application (Order 4, rule 17)”; and
(b) by inserting—
“46A Order (Order 52, rule 40)”
after—
“46 Order (Order 33, rule 14)”.
First Schedule—Forms 5A, 46A, 51
12. The First Schedule to the Federal Court Rules is amended—
(a) by inserting after Form 5 the following form:
Form 5A
APPLICATION
(Order 4, rule 17)
On the grounds appearing in the accompanying affidavit the applicant claims:
1.
2.
Date:
(
(
To
the respondent (
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: (
Place: (
(
The
time by which this application is to be served has been abridged by the Court
to (
Date (
(
The applicant’s address for service is (
(b) by inserting after Form 46 the following form:
Form 46A
ORDER
(Order 52, rule 40)
THE COURT ORDERS THAT:
1.
The Superintendent (
2. The first day on which it is required to have this
prisoner before the Court is (
(c) by adding to Form 51, at the end of the form—
“Date
(
Registrar”.
The Federal Court Rules are amended as set out in the Schedule.
________________
FORMAL AMENDMENTS
Order 1, sub-rule 9 (2) | Omit “preceeding”, substitute “proceeding” |
Order 4, sub-rule 15 (2) | Omit “of” (first occurring), substitute “or” |
Order 4, sub-rule 15 (3) | Omit “sub-regulation”, substitute “sub-rule” |
Order 4, sub-rule 15 (6) | Omit “sub-regulation (1) of this regulation”, substitute “sub‑rule (1)” |
Order 6, rule 2 | Omit from sub-paragraph (a) (i) “or” (last occurring), substitute “and” |
Heading occurring immediately after rule 21 of Order 42 | Omit “PART”, substitute “ORDER” |
Order 52, sub-rule 35 (3) | After “Court” insert “or a Judge” |
1. Notified in the
Commonwealth of Australia Gazette on 23 April 1980.
2. Statutory Rules 1979 No. 140.
0
0
0