Federal Court Amendment Rules 2006 (No. 3)

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EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2006 No. 377

 

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

 

Federal Court Amendment Rules 2006 (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 amend the Federal Court Rules by:

  • increasing the limit on the number of pages that may be sent via electronic communication in Order 1;
  • inserting a new rule 1A in Order 20 to provide that Order 20 does not apply in relation to proceedings commenced on or after 1 December 2005;
  • making changes to Order 27 and Form 41 in relation to the time in which a subpoena must be served, and the disposal of documents or other materials produced to the Court pursuant to a subpoena;
  • updating Order 48 and Form 5A to reflect the renumbering of provisions of the Workplace Relations Act 1996 as a result of the Workplace Relations Amendment (Work Choices) Act 2005;
  • inserting new rules in Order 52 to facilitate the determination of certain matters without an oral hearing in accordance with section 25 of the Federal Court of Australia Act;
  • clarifying the provisions in Order 52 dealing with the documents to be provided to the Court on the hearing of an appeal;
  • amending Form 15 to more clearly provide for cases where a party appears by a tutor;
  • amending Form 54A and Form 55 to reflect the provisions in the Federal Court of Australia Act dealing with appeals to the Court.

 

The Amendment Rules have been the subject of consultation with the Law Council of Australia. The changes to Order 27 were considered by the Council of Chief Justices’ Harmonised Subpoena Rules Monitoring Committee.

 

Details of the Rules are in Attachment 1.

 

The Rules commence on the day after they are registered.


ATTACHMENT 1

 

Federal Court Amendment Rules 2006 (No. 3)

 

RULE 1 Name of rules

 

This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2006 (No. 3).

 

RULE 2 Commencement

 

This rule provides that these Rules commence on the day after they are registered.

 

RULE 3 Amendment of Federal Court Rules

 

Schedule 1 amends the Federal Court Rules.

 

SCHEDULE 1

 

[1]   Order 1, paragraph 5A (2) (b)

 

Order 1 paragraph 5A (2) (b) prescribes the size of a document that may be sent to the Court be electronic communication.

 

This amendment increases the limit on the size of a document that may be sent to the Court by electronic communication from 50 pages to 100 pages.

 

[2]   Order 20, before rule 1

 

Order 20 deals with the summary disposal of proceedings before the Court.

 

This amendment inserts a new Order 20 rule 1A which provides that Order 20 only applies to proceedings commenced before 1 December 2005. Applications for summary disposal of all or part of a proceedings commenced on or after 1 December 2005 will be determined in accordance with section 31A of the Federal Court of Australia Act 1976 (Cth).

 

This change is consequential upon the insertion of section 31A of the Federal Court of Australia Act by the Migration Litigation Reform Act 2005 (Cth) which commenced on 1 December 2005 and applies to proceedings commenced on or after that date.

 

[3]   Order 27, subrule 3 (8)

 

Order 27 rule 3 deals with the information to be included in a subpoena.

 

This amendment replaces subrule 3 (8) with a new subrule 3 (8) which provides, inter alia, that the last date for service of a subpoena is either the date falling 5 days before the earliest date on which the addressee is required to comply with the subpoena or such other date fixed by the Court. The new subrule also provides that the last date for service must be specified in the subpoena.

 

[4]   Order 27, rule 10, heading

 

This amendment has the effect of amending the heading of rule 10 so that it states “Return of documents and things produced”. It is consequential upon the amendment to Order 27 rule 10 set out in paragraph [5] below.

 

[5]   Order 27, subrules 10 (3) and (4)

 

Order 27 subrules 10 (3) and (4) deal with when a document produced to the Court is able to be destroyed.

 

This amendment omits these subrules as they are no longer part of the harmonised subpoena rules.

 

[6]   Order 36, rule 9, heading

 

This amendment replaces the heading to Order 38 rule 9. The effect of the amendment is to correct a spelling error.

 

[7]   Order 48, rule 1, definition of RAO Schedule

 

This amendment replaces the reference to “Schedule 1B” with a reference to “Schedule 1”. The amendment is consequential upon the renumbering of the Schedule as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[8]   Order 48, rule 1, definition of Workplace Relations Act or Act

 

This amendment omits the words “or Act” from this definition as this expression is no longer used in Order 48 to refer to the Workplace Relations Act 1996.

 

[9]   Order 48, rule 4, heading

 

This amendment replaces the heading of Order 48 rule 4 so that it refers to the current provisions of the Workplace Relations Act 1996 dealing with unlawful termination. This amendment is consequential upon the renumbering of the unlawful termination provisions of the Workplace Relations Act 1996 as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

 [10]  Order 48, subrule 4 (1), note

 

The effect of this amendment is to replace the reference to “section 170CR” of the Workplace Relations Act 1996 with a reference to “section 665”. The amendment is consequential upon the renumbering of the Workplace Relations Act 1996 as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[11]  Order 48, paragraph 4 (2) (c)

 

This amendment replaces the reference to “subsection 170CF (2)” of the Workplace Relations Act 1996 with a reference to “subsection 650 (2)”. The amendment is consequential upon the renumbering of the Workplace Relations Act 1996 as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[12]  Order 48, rule 7, heading

 

This amendment replaces the heading of Order 48 rule 7 so that it refers to the current provisions of the RAO Schedule to the Workplace Relations Act 1996. The amendment is consequential upon the renumbering of the Schedule as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[13]  Order 52, before rule 1

 

This amendment inserts a heading, “Division 1AA – General”, before rule 1 in Order 52.

 

[14]  Order 52, after rule 2AA

 

This amendment inserts new rules 2AB and 2AC after Order 52 rule 2AA.

 

Rule 2AB provides that the Court may order that certain applications and matters may be dealt with without an oral hearing. The rules have been made pursuant to subsections 25 (2A) and (2C) of the Act, which provide, inter alia, that the Rules of Court may make provisions enabling applications of the kind mentioned in subsections 25 (2) and (2B) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

 

Subrule 2AB (1) provides that the Court may order that the following applications or matters be dealt with without an oral hearing:

  • an application under paragraph 25 (2) (b) or (c) of the Act;
  • a matter mentioned in subsection 25 (2B) of the Act;
  • an application for leave to appeal under Order 52, Division 1 or subrule 10 (2); and
  • an application for leave to file and serve a notice of appeal under subrule 15 (2).

 

Subrule 2AB (2) provides that, if the Court makes an order under subrule 2AB (1) in relation to an application or matter, each party to the application or matter must file a summary of argument and serve a copy of the summary on each other party.

 

Subrule 2AB (3) provides that a summary of argument must comply with rule 2AC.

 

Subrule 2AC (1) provides that a summary of argument must not exceed ten pages and must include both the title of the proceeding and the name of the party by whom it is to be filed. A summary must consist of paragraphs numbered consecutively and state as concisely as possible:

  • the factual background to the application, if the summary of argument is to be filed by the applicant; and
  • the factual issues in dispute, if the respondent is filing the application; and
  • the claims to be argued by the party concerned; and
  • the reasons relied upon for those claims.

 

Subrule 2AC (2) provides that, so far as practicable, a reference in a summary of argument to a part of a transcript of proceedings of a court must be given by page and line number and each relevant part of the transcript must be attached to the summary.

 

Subrule 2AC (3) provides that a summary of argument must be clear and legible and securely fastened.

 

[15]  Order 52, rule 3

 

This amendment omits Order 52 rule 3 which deals with how applications for leave to appeal are to be made. It is consequential upon the amendments to Order 52 in relation to certain applications and matters being able to be dealt with without an oral hearing.

 

[16]  Order 52, after subrule 4 (2)

 

Order 52 rule 4 deals with the form of an application for appeal. This amendment inserts a new subrule 4 (3) which provides that an application must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.

 

[17]  Order 52, rule 7

 

Order 52 rule 7 provides that an application for leave to appeal must include a note that the respondent must enter an appearance before taking any step in the proceeding. This amendment replaces rule 7 with a new rule 7 and inserts a new rule 7A.

 

The new rule 7 provides that, if there is a respondent to an application for leave to appeal, the respondent must enter an appearance before taking any step in the proceeding.

 

Rule 7A provides that, where a respondent objects to an application being dealt with without an oral hearing, the respondent must file a notice to this effect and must also serve a copy of the notice on each other party to the application.

 

[18]  Order 52, subrule 10 (3)

 

Order 52 rule 10 deals with applications for leave to appeal from an interlocutory judgment of the Court. Such an application may be made orally in accordance with subrule 10 (1) or by filing a motion on notice in accordance with subrule 10 (2).

 

This amendment substitutes the old subrule 10 (3) with new subrules 10 (3) and 10 (4).

 

The new subrule 10 (3) provides that an application for leave to appeal under subrule 10 (2) must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.

 

New subrule 10 (4) provides that, if a respondent objects to an application being dealt with without an oral hearing, the respondent must file a notice to this effect and serve a copy of the notice on each other party to the application.

 

[19]  Order 52, subrules 15 (3), (4), (5) and (6)

 

Order 52 rule 15 deals with the time in which a notice of appeal must be filed and served.

 

This amendment substitutes subrules 15 (3), (4), (5) and (6) with new subrules 15 (3) and 15 (4).

 

New subrule 15 (3) provides that an application under subrule (2) for leave to file and serve a notice of appeal out of time must:

  • be in accordance with Form 54A; and
  • include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and
  • be accompanied by an affidavit setting out the nature of the matter; the factual and legal issues in dispute and the reasons why leave should be given.

 

New subrule 15 (4) provides that, if a respondent objects to an application under subrule 15 (2) being dealt with without an oral hearing, the respondent must file a notice to this effect and serve a copy of the notice on each other party to the application.

 

[20]  Order 52, rule 15A

 

This amendment omits Order 52 rule 15A which dealt with proceedings to be determined without an oral hearing. It is consequential upon the amendments set out in paragraphs [14] to [19] above.

 

[21]  Order 52, rule 25

 

This amendment omits Order 52 rule 25 which dealt with the collection and filing of appeal papers, including the reasons for judgment and the transcript of proceedings.

 

Rule 25 is not necessary given Order 52 rule 28. 

 

[22]  Order 52, subparagraph 28 (3) (b) (i)

 

Order 52 rule 28 deals with the preparation of appeal papers.

 

This amendment replaces the phrase “oral evidence” in subparagraph 28 (3) (b) (i) with the phrase “transcript of oral evidence”.

 

[23]  Order 52, paragraph 28 (3) (f)

 

This amendment replaces the word “formal” in the phrase “formal order of the court” in paragraph 28 (3) (f) with the word “sealed” so that the paragraph states “sealed order of the court”.

 

[24]  Schedule 1, Form 5A

 

Form 5A is the prescribed form used in relation to an application concerning alleged unlawful termination.

 

The effect of this amendment is to replace the reference to section 170CP at the top of Form 5A with a reference to section 663. This amendment is consequential upon the renumbering of the Schedule as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[25]  Schedule 1, Form 5A, note

 

The effect of this amendment is to replace the reference to section 469 of the Workplace Relations Act 1996 in the note to Form 5A with a reference to section 854. The amendment is consequential upon the renumbering of the Schedule as a result of the Workplace Relations Amendment (Work Choices) Act 2005.

 

[26]  Schedule 1, Form 5A

 

This amendment replaces “Version 1” with “Version 2”.

 

[27]  Schedule 1, Form 15

 

Form 15 is the prescribed form for a notice of appearance.

 

This amendment replaces Form 15 with a new Form 15. The effect of the amendment is to change the first paragraph of the form to more clearly deal with cases where a party appears by a tutor.

 

[28]  Schedule 1, Form 41

 

Form 41 is the prescribed form for a subpoena.

 

This amendment replaces Form 41 with a new Form 41. The effect of the amendment is to omit the notes to the subpoena which related to the return or destruction of documents or copies produced in accordance with a subpoena. The amendment is consequential upon the amendment to Order 27 rule 10 set out in paragraph [5] above.

 

[29]  Schedule 1, Forms 54A and 55

 

Form 54A is the prescribed form for an application for leave to file and serve out of time. Form 55 is the prescribed form for a Notice of Appeal.

 

This amendment substitutes old Forms 54A and 55 with new Forms 54A and 55.

 

The effect of the amendment is that the forms no longer require the Judge who constituted the Court from which an appeal is sought to be named. The amendment reflects the language of section 24 of the Federal Court of Australia Act 1976, which provides that the Court has jurisdiction to hear and determine appeals from:

  • judgments of the Court constituted by a single Judge;
  • judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory);
  • certain judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory; and
  • judgments of the Federal Magistrates Court.

 

 

 

Overview

The Federal Court Amendment Rules 2006 (No. 3) were enacted to amend the Federal Court Rules, thereby updating and enhancing the procedural framework for the Federal Court of Australia. The Federal Court Amendment Rules were introduced under Section 59 of the Federal Court of Australia Act 1976, which empowers the Judges of the Court to make rules governing practice and procedure within the Court. These amendments were made by the Judges of the Federal Court of Australia, in accordance with the statutory authority provided by the Federal Court of Australia Act 1976. The overarching policy objective of these amendments is to ensure that the rules of the Federal Court remain current, efficient, and reflective of recent legislative changes, particularly those pertaining to workplace relations. These amendments address several procedural aspects, including increasing the limit on the number of pages that can be sent electronically, adjusting the time frames for serving subpoenas, and updating references to align with the renumbering of provisions in the Workplace Relations Act 1996. Additionally, the rules introduce provisions to facilitate the determination of certain matters without an oral hearing, reflecting legislative changes that allow for more streamlined judicial processes in specific types of applications and appeals. The amendments also include updates to various forms used in the Court to ensure they correspond with the current legislative framework. The Judges of the Federal Court of Australia engaged in consultation with the Law Council of Australia and relevant committees to ensure that these amendments were both practical and aligned with broader legal reforms.

Scope and Application

The Federal Court Amendment Rules 2006 (No. 3) provide for various amendments to the Federal Court Rules, governing practice and procedure within the Federal Court of Australia. These rules apply to all proceedings before the Federal Court and its registries, affecting parties, legal practitioners, and other entities engaged in litigation before the Court. The amendments are applicable nationally, given the jurisdiction of the Federal Court, which includes matters arising under Commonwealth laws, treaties, and certain state and territory laws. The changes introduced by these Rules include increasing the limit on the number of pages that can be sent via electronic communication, updating provisions to reflect legislative amendments, particularly in relation to the Workplace Relations Act 1996, and facilitating the determination of certain matters without an oral hearing. Notably, some of these amendments are consequential upon other legislative changes, such as those introduced by the Workplace Relations Amendment (Work Choices) Act 2005 and the Migration Legislation Reform Act 2005. The Rules also include technical corrections and clarifications to existing provisions, such as the updating of form references and the correction of typographical errors. These amendments aim to ensure that the Federal Court Rules remain aligned with current legislative frameworks and procedural requirements.

Key Provisions

The Federal Court Amendment Rules 2006 (No. 3) introduce several key changes to the Federal Court Rules, impacting various procedural aspects of the court's operations. Firstly, Order 1 paragraph 5A (2) (b) is amended to increase the maximum size of documents that can be sent to the Court via electronic communication from 50 pages to 100 pages (paragraph [1]). Secondly, Order 20 is amended to specify that it applies only to proceedings commenced before 1 December 2005, with subsequent applications for summary disposal to be determined under section 31A of the Federal Court of Australia Act 1976 (paragraph [2]). Thirdly, Order 27 subrule 3 (8) is replaced to clarify the last date for service of a subpoena, requiring it to be either five days before the compliance date or another date specified by the Court, with this date to be explicitly stated in the subpoena (paragraph [3]). Additionally, Order 27 rule 10 is amended to reflect the removal of subrules related to the destruction of documents produced under subpoena, as these subrules are no longer part of the harmonised subpoena rules (paragraph [5]). The amendment imposes obligations on the parties and entities governed by the Federal Court Rules. For instance, parties must now ensure that documents sent electronically do not exceed the new limit of 100 pages (Order 1 paragraph 5A (2) (b)). Furthermore, parties must adhere to the new rules governing the service of subpoenas, ensuring compliance with the specified last date for service (Order 27 subrule 3 (8)). The changes also affect the handling of documents produced under subpoena, requiring parties to comply with the updated rules regarding their return and retention (Order 27 rule 10). Additionally, the new provisions concerning the summary disposal of proceedings necessitate that applications for such disposal be filed in accordance with the amended rules (Order 20). There are no specific offences, penalties, or civil/criminal consequences outlined in the Federal Court Amendment Rules 2006 (No. 3). However, failure to comply with the new procedural requirements, such as the size limit for electronically sent documents or the service of subpoenas, could lead to the Court exercising its discretion to refuse to accept or consider documents that do not comply with the amended rules, potentially impacting the proceedings adversely. Additionally, the omission of certain subrules related to the destruction of documents produced under subpoena means that parties must now ensure they retain these documents as required by the Court’s current practice, without the previous specific procedural guidance.

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