EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 340

Issued by the authority of the

Judges of the Federal Court of Australia

Federal Court Amendment Rules 2005 (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 subsection 59 (4) of the Federal Court of Australia Act 1976, the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:

(a)          as if a reference to a legislative instrument were a reference to a rule of court; and

(b)          as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and

(c)          subject to such further modifications or adaptations as are provided for in regulations made under section 59A of the Federal Court of Australia Act 1976.

The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.

The Judges have agreed to make the following amendments to the Federal Court Rules which are consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005:

• omit Order 77, which sets out the current rules for proceedings in the Court under the Bankruptcy Act 1966;
• amend Order 1 rule 4 by inserting a definition of ‘Bankruptcy Rules’;
• amend Order 1 rule 5A and Order 62 rules 8 and 39 to replace the references to Order 77 with references to the new Bankruptcy Rules;
• omit Forms 148 to 160 in Schedule 1 (which are the current prescribed forms for proceedings under the Bankruptcy Act);
• omit Schedule 3 (which sets out the powers and functions of the Court under the Bankruptcy Act 1966 that may be exercised by a Registrar if the Court or a Judge directs).

The amendments are consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005, which has been the subject of consultation with the Law Council of Australia, the Insolvency and Trustee Service Australia and legal practitioners.

Details of the Rules are in Attachment 1.

The Rules commence on 6 February 2006.

ATTACHMENT 1

Federal Court Amendment Rules 2005 (No 3)

RULE 1 Name of rules

This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2005 (No 3).

RULE 2 Commencement

This rule provides that these Rules commence on 6 February 2006.

RULE 3 Amendment of Federal Court Rules

Schedule 1 amends the Federal Court Rules.

SCHEDULE 1

Interpretation

[1]   Order 1, rule 4, after definition of Australia

Order 1 rule 4 defines various words and terms used in the Rules.

This amendment inserts into Order 1 rule 4 the term “Bankruptcy Rules” and defines it as meaning the Rules of the Court entitled the Federal Court (Bankruptcy) Rules 2005.

Filing and lodging documents

[2]   Order 1, paragraph 5A (2) (c)

Order 1 paragraph 5A (2) (c) provides that a document may not be filed or lodged by sending it by facsimile transmission if the document is an affidavit referred to in Order 77 paragraph 19 (6) (b).

This amendment replaces the reference to “Order 77 paragraph 19 (6) (b)” with a reference to paragraph 4.07 (b) of the Bankruptcy Rules. The amendment is consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005.

Taxation of costs

[3]   Order 62, subrule 8 (2)

Order 62 subrule 8 (2) provides, inter alia, that unless a taxing officer appoints a time for taxation under Order 62 subrule 41 (1), a bill (other than a short form bill under Order 62 rule 40A or 40B, or Order 77, rule 67) will be assessed in accordance with Order 62 rule 46.

This amendment replaces subrule 8 (2) with new subrules 8 (2) and 8 (3). The effect of the amendment is to replace the reference to “Order 77, rule 67” with a reference to rule 13.03 of the Bankruptcy Rules.

The amendment is consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005.

Taxing officers

[4]   Order 62, subrule 39 (1A)

Order 62 subrule 39 (1A) allows the Registrar or a District Registrar to authorise an officer to be a taxing officer for the purpose of taxing a short form bill filed under Order 62 rule 40A or Division 14 of Order 77.

This amendment replaces subrule 39 (1A) with a new subrule 39 (1A). The effect of the amendment is to replace the reference to “Division 14 of Order 77” with a reference to Division 13.2 of the Bankruptcy Rules.

The amendment is consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005.

Bankruptcy Rules

[5]   Order 77

Order 77, also known as the Bankruptcy Rules, sets out the rules for proceedings in the Court under Bankruptcy Act 1966. These rules are to be replaced by those set out in the Federal Court (Bankruptcy) Rules 2005.

This amendment omits Order 77, and replaces it with a new heading “Order 77 Bankruptcy proceedings” and a note advising that the rules governing these proceedings are contained in the Federal Court (Bankruptcy) Rules 2005.

Schedule 1 – Forms

[6]   Schedule 1, Forms 148 to 160

This amendment omits Forms 148 to 160 in Schedule 1 to the Federal Court Rules. These forms were the prescribed forms for proceedings under the Bankruptcy Act 1966.

The amendment is consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005.

[7]   Schedule 3

This amendment omits Schedule 3, which sets out the powers and functions of the Court under the Bankruptcy Act 1966 that may be exercised by a Registrar if the Court or a Judge directs.

The amendment is consequential upon the adoption of the Federal Court (Bankruptcy) Rules 2005.