Federal Court Amendment Rules 2003 (No. 3) 2003 No. 206
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 206
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2003 (No. 3)
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 2003 (No. 3).
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
Application for issue of a summons (Corporations Act s 596A, 596B)
[1] Order 4, after rule 14
This amendment inserts a new rule 15 which provides, inter alia, that an application for the issue of a summons under section 596A or 596B of the Corporations Act 2001 may be made to the Court or a Judge, or to a Registrar (including a Registrar sitting in chambers) who has, for the purposes of paragraph 35A(1)(h) of the Federal Court of Australia Act 1976, been directed by the Court or a Judge to exercise the power of the Court under section 596A or 596B of the Corporations Act 2001.
Directions hearing - general
[2] Order 10, after paragraph 1 (2) (ca)
This amendment inserts a new paragraph 1 (2) (cab) which provides, inter alia, that the Court may direct that parties give consideration to jointly instructing an expert on the basis that the parties will be jointly responsible for the expert's fees.
Inspection of documents
[3] Order 46, after paragraph 6 (2) (f)
[4] Order 46, paragraph 6 (3) (g)
This amendment provides, inter alia, that a written submission may be searched for and inspected by a person without leave in the Registry, unless the Court or a Judge has ordered that the document is confidential.
Australian Crime Commission Act 2002
[5] Order 57
This amendment replaces Order 57 with a new Order 57 in light of amendments made by the Australian Crime Commission Establishment Act 2002 to what was known as the National Crime Authority Act 1984 (now known as the Australian Crime Commission Act 2002).
The new Order 57 provides, inter alia, that Order 54 will apply to applications for review under the Administrative Decisions (Judicial Review) Act 1977 (as varied by section 57 of Australian Crime Commission Act 2002) subject to the following:
• an applicant who files a copy of a statement pursuant to Order 54 subrule 3 (1) must serve a copy of that statement on the other party or parties not later than the next day after the statement is filed; and
• the time under Order 54 rule 4 for filing and serving a notice of objection to competency of an application is reduced from 14 days to 5 days after service of the application.
Order 54 deals with applications to the Court under the Administrative Decisions (Judicial Review) Act 1977.
Liability of legal practitioner for costs
[6] Order 62, rule 9
This amendment replaces Order 62 rule 9 with a new Order 62 rule 9 which provides that the Court or a Judge may, if satisfied that a legal practitioner is responsible for costs incurred improperly or without reasonable cause, or wasted by undue delay or by any other misconduct or default, make an order:
• disallowing the costs as between the legal practitioner and the legal practitioner's client, including disallowing the costs for any step in the proceedings;
• if the legal practitioner is a barrister - disallowing the costs as between the barrister and the barrister's instructing solicitor;
• directing the legal practitioner to repay to the client costs which the client has been ordered to pay to any other party; and
• directing the legal practitioner to indemnify any party other than the client against costs payable by the party indemnified.
The rule provides that a legal practitioner is entitled to a reasonable opportunity to be heard prior to the making of an adverse costs order.
Conduct which constitutes default is defined in Order 62 subrule 9 (2) to include failure:
• to attend in person or by a proper representative;
• to file any document which ought to have been filed;
• to deliver any document which ought to have been delivered for the use of the Court;
• to be prepared with any proper evidence or account; or
• to comply with any provision of the rules or any judgment or order or direction of the Court.
Human rights proceedings
[7] Order 81, rule 5
Order 81 rule 5 provides that a proceeding alleging unlawful discrimination under the Human Rights and Equal Opportunity Commission Act 1986 must be commenced by filing an application in accordance with Form 167. However, Form 167 does not make provision for an applicant to include a claim for relief under other legislation or the Court's accrued jurisdiction.
To overcome this difficulty, this amendment replaces Order 81 rule 5 with a new rule 5 which provides, inter alia, that proceedings under the Human Rights and Equal Opportunity Commission Act 1986 are to be commenced by filing an application in accordance with Form 5, and that a claim in accordance with Form 167 must accompany the application. The new subrule 5 (3) provides that details of any claim in addition to the allegation of unlawful discrimination must be included in the application.
Schedule 1
[8] Schedule 1, Form 5, Section A
[9] Schedule 1, Form 5, at the foot
Form 5 is amended by inserting a reference to the Human Rights and Equal Opportunity Commission Act 1986 in the statement concerning the nature of the application.
Form 5 is also amended by replacing the words `Version 2' at the end of the Form with the words "Version 3". This is intended to help identify the currency of the Form.
[10] Schedule 1, Form 60
Form 60 is omitted consequential to the amendment to Order 57 described in item [5] above.
[11] Schedule 1, Form 167
This amendment replaces Form 167 with a new Form 167. The new form, titled "Claim under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination", is consequential to the amendment to Order 81 rule 5 described in item [7] above.