Federal Court Amendment Rules 2000 (No. 4) 2000 No. 233
EXPLANATORY STATEMENT
Statutory Rule 2000 No. 233
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2000 (No. 4)
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 59(4) of the Federal Court of Australia Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.
RULE 1 - Name of rules
This rule provides that the rules are the Federal Court Amendment Rules 2000 (No. 4).
RULE 2 - Commencement
This rule provides that these Rules commence on gazettal.
RULE 3 - Amendment of Federal Court Rules
This rule provides that the Federal Court Rules are amended as set out in Schedule 1.
SCHEDULE 1 - Amendments
Scandalous, vexatious or oppressive matters
[1] Order 41, rule 5
Order 41 rule 5 provides that the Court may strike out from a document any matter that is scandalous, vexatious or oppressive. The amendment replaces the rule with a new rule 5 which retains this power, and allows the Court to order that any document that contains scandalous, vexatious or oppressive matter be removed from the file.
Bankruptcy Proceedings
[2] Order 77, subrule 13 (4)
Order 77 subrule 13(2) provides that an application to set aside, or to extend the time for complying with, a bankruptcy notice must be accompanied by a copy of the notice, an affidavit and a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued.
Subrule 13(4) provides that the application must be served on the respondent creditor - it makes no reference to the "accompanying documents" having to be served. The amendment to subrule 13(4) expressly requires the applicant to serve the "accompanying documents" as well as the application itself.
[3] Order 77, paragraph 16 (2) (a)
This amendment removes the requirement under paragraph 16(2)(a) that a creditor's petition must be "accompanied by" (that is, filed with) sufficient copies of the petition for annexure to any affidavits of service. It is unnecessary to annex a stamped copy of the petition to an affidavit of service - a photocopy of the stamped copy that was served will be sufficient.
[4] Order 77, paragraph 18 (1) (c)
Under Order 77 paragraph 18(1)(c), an affidavit verifying a petition founded on an act of bankruptcy under paragraph 40(1)(g) of the Bankruptcy Act 1966 has to state that the Court records had been searched and that no application in relation to the bankruptcy notice had been made.
Paragraph 18(1)(c) is amended to provide that the affidavit must state that the records of both the Federal Court and the Federal Magistrates Court have been searched for any application having been made in relation to the bankruptcy notice. The amendment follows from the Federal Magistrates Court having concurrent jurisdiction with the Federal Court in applications under the Bankruptcy Act.
[5] Order 77, after rule 18
This amendment inserts a new rule 18A which provides that the applicant creditor must serve on the respondent debtor
(a) the creditor's petition;
(b) a copy of the affidavit verifying the petition required by subsection 47(1) of the Bankruptcy Act;
(c) where applicable, a copy of the affidavit of service of the bankruptcy notice required by subrule 18(2);
(d) a copy of any order to which subrule 18(3) applies; and
(e) a copy of any consent to act as trustee lodged under section 156A of the Act
at least five days before the date appointed for hearing, unless the Court otherwise orders.
[6] Order 77, subrule 19 (2)
Order 77 subrule 19(2) requires the applicant creditor to file various affidavits before the hearing of the petition, including an affidavit stating that the creditor's petition, the affidavit verifying the petition required by section 47(1) of the Bankruptcy Act, and any consent to act as trustee lodged under section 156A of that Act have been served and how they were served. However, the subrule does not require proof that an affidavit of service of the bankruptcy notice, required by subrule 18(2), has itself been served.
To resolve this omission the amendment replaces the subrule with a new subrule 19(2) which provides that the applicant creditor must file an affidavit stating that documents required to be served under rule 18A have been served, and how and when they were served.
Human Rights Proceedings
[7] Order 8 1, rule 7, note
This amendment omits the note appearing after Order 81 rule 7. The note referred to Order 11 rule 20 in relation to the time in which a defence to an application alleging unlawful discrimination must be filed.
Statement of person responsible for pleadings
[8] Schedule 1, Forms 7, 8, 9 and 10, at the foot
[9] Schedule 1, Forms 16, 17 and 18, at the foot
Order 11 rule 1 A of the Federal Court Rules provides that a pleading must set out the name of the person who prepared the pleading and include a statement by that person that the person prepared the pleading. The amendments to Forms 7, 8, 9, 10, 16, 17 and 18 help give effect to this rule.
Human Rights forms
[10] Schedule 1, Form 167, clause 12
Form 167 is the prescribed form for an Application under the Human Rights and Equal Opportunity Commission Act 1986 Alleging Unlawful Discrimination.
Order 81 subrule 5(2) provides that an application must be accompanied by an affidavit in support of the application. However, clause 12 of Form 167 asks the applicant to attach the affidavit to the application. The amendment removes this inconsistency by replacing the words "You must attach" with "Your application must be accompanied by".
[11] Schedule 1, Form 167, clause 15
Clause 15 is amended to make it clear that the 28 day time limit for filing an application begins from the date on which the President of the Human Rights and Equal Opportunity Commission issues the notice terminating the complaint.
[12] Schedule 1, Form 167, clause 16
Clause 16 asked the applicant to indicate where notices from the Court should be sent.
The amendment replaces this clause with a new clause 16 which asks the applicant to indicate the address to which documents in the proceedings are to be left or posted for the applicant. That is, the applicant is asked to indicate his or her address for service. The documents may be sent to that address by the Court and the other parties to the proceedings.
[13] Schedule 1, Form 167, clause 17
Order 81 subrule 5(2) provides that an application must be accompanied by an affidavit in support of the application. However, clause 17 of Form 167 asks the applicant to attach the affidavit, and certain other documents, to the application. The amendment removes this inconsistency by replacing the words "You must attach" with "Your application must be accompanied by".
[14] Schedule 1, Form 167, item 18 including the heading
Item 18 asked the applicant whether a report was being prepared by the President of the Human Rights and Equal Opportunity Commission. The amendment removes this item as it is unnecessary given that the President will not prepare a report until a proceeding has commenced.
[15] Schedule 1, Form 167
This amendment inserts the applicant's name and signature, and the date of the application, immediately after the details of the application.
[16] Schedule 1, Form 167
This amendment omits the applicant's name and signature, and the date of the application, from the foot of Form 167 and inserts the details of where and when the Court will hear the application, the date the application is filed, and signature of the Registrar issuing the application.
[17] Schedule 1, Form 168, clause 9
Form 168 is the prescribed form for a Defence to Application under the Human Rights and Equal Opportunity Commission Act 1986 Alleging Unlawful Discrimination.
Clause 9 asked the respondent to indicate where notices from the Court should be sent.
The amendment replaces this clause with a new clause 9 which asks the respondent to indicate the address to which documents in the proceedings are to be left or posted for the respondent. That is, the respondent is asked to indicate his, her or its address for service. The documents may be sent to that address by the Court and the other parties to the proceedings.
[18] Schedule 1, Form 168, clause 10
Order 81 subrule 7(2) provides that a defence must be accompanied by an affidavit in support of the grounds of defence. However, clause 10 of Form 168 asks the respondent to attach the affidavit to the defence. The amendment removes this inconsistency by replacing the words "You must attach" with "Your defence must be accompanied by".