EXPLANATORY STATEMENT

Select Legislative Instrument 2007 No. 367

Issued by the authority of the

Judges of the Federal Court of Australia

Federal Court Amendment Rules 2007 (No. 2)

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:

• amending Order 14 rule 2 by inserting new subrules concerning the jurat where the deponent is blind and related issues;
• amending Orders 52 and 53 to implement a new procedure for preparing appeal books based on primary appeal papers and supplementary appeal papers;
• omitting Order 62 rule 14 concerning costs of interlocutory matters;
• amending Order 78 consequential upon recent changes to the Native Title Act 1993;
• amending Order 81 by replacing the reference to the supporting affidavit with a reference to the claim in accordance with form 167;
• replacing form 54 with a new form 54 which includes a reference to the requirements of Order 52 subrule 4 (3);
• amending item 43E in Schedule 2;
• amending Schedule 3 (which sets out the powers that may be exercised by a registrar) by inserting the powers mentioned in Order 4 subrule 12 (1), Order 33 subrule 14 (1) and Order 33 subrule 15 (1).

The Amendment Rules have been the subject of consultation with the Law Council of Australia. 

Details of the Rules are in Attachment 1. 

The Rules commence on the day after they are registered.

ATTACHMENT 1

Federal Court Amendment Rules 2007 (No. 2)

RULE 1 Name of rules

This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2007 (No 2).

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 4, rule 12

Order 4 rule 12 provides for the alteration of the date for hearing by the Court or Registrar

This amendment replaces rule 12 with a new rule 12.  The effect of the amendment is to omit the reference to a Registrar and make it clear that the power to alter the date for hearing is a power of the Court.

[2]   Order 14, subrules 2 (3), (4), (5) and (6)

Order 14 subrules 2 (3), (4), (5) and (6) deal with the signing and witnessing of affidavits. 

This amendment replaces subrules 2 (3), (4), (5) and (6) with new subrules 2 (3) to (9). 

The new subrule 2 (3) provides that if the deponent to an affidavit is illiterate, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the affidavit was read to the deponent in his or her presence.

The new subrule 2 (4) provides that if the deponent to an affidavit is blind, subject to subrule 2 (5), the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the affidavit was read to the deponent in his or her presence.

The new subrule 2 (5) provides that the new subrule 2 (4) does not apply if the deponent has read the affidavit using a computer with a screen reader, text to speech software or a braille display and includes in the affidavit a statement that the deponent is blind and has read the affidavit and specifies the means by which it was read.

The new subrule 2 (6) provides that if the deponent is incapable of signing the affidavit because of a physical disability, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the deponent signified that he or she swore or affirmed the affidavit.

The new subrule 2 (7) provides that the affidavit of an illiterate deponent may only be used if the affidavit includes a certificate mentioned in subrule 2 (3) or the Court is satisfied that the affidavit was read to the deponent.

The new subrule 2 (8) provides that the affidavit of a blind deponent may only be used if the affidavit includes a certificate mentioned in subrule 2 (4) or statement mentioned in subrule 2 (5) or the Court is satisfied that the affidavit was read to the deponent.

The new subrule 2 (9) provides that each page of an affidavit must be signed by the deponent (unless the deponent is incapable of signing because of a physical disability) and the person before whom the affidavit is sworn or affirmed.

[3]   Order 33, subrule 14 (1)

[4]   Order 33, subrules 14 (2) and (3)

Order 33 rule 14 deals with the attendance of a prisoner before the Court or before an examiner pursuant to Order 24.

The amendments to subrules 14 (1), (2) and (3) replace the word ‘shall’ with ‘must’ in accordance with current drafting practice.

[5]   Order 33, subrule 15 (1)

Order 33 subrule 15 (1) provides that the Court may make an order requiring the production of a party who is in lawful custody and may make such order in relation to the continuing custody of that party as may in the opinion of the Court be appropriate.

This amendment replaces subrule 15 (1) with a new subrule 15 (1) which sets out the orders that may be made in separate paragraphs.  The substance of the subrule is not altered.

[6]   Order 52, rules 26, 27 and 28

Order 52 rules 26, 27 and 28 deal with indexing, settling and preparation of the appeal papers.

This amendment replaces Order 52 rules 26, 27 and 28 with new rules 26, 27, 28, 28A, 28B and 28C. 

The new Order 52 rule 26 provides that the appeal papers must consist of the documents mentioned in the rule and be divided into Parts A, B and C.  Part A is to consist of:

• the originating application;
• pleadings (including each relevant notice of motion);
• if the court below was hearing an appeal from a tribunal or the board: reasons for the decision of the tribunal or board below, the formal decision of the tribunal or board below and any notice of appeal to the court below;
• reasons for the judgment of the court below;
• sealed orders of the court below;
•  notice of appeal;
• any notice of cross-appeal or any notice of contention;
• any submitting appearance and certificate of correctness.  

Part B is to consist of the transcript of relevant oral evidence and any other relevant transcript. 

Part C is to consist of:

• a chronological list of all documents received in evidence;
• each affidavit containing relevant evidence followed by each document exhibited or annexed to the affidavit;
• each relevant exhibit (other than an exhibit mentioned previously);
• any list of exhibits in the transcript;
• relevant testimony received in evidence;
• each relevant interrogatory and answer;
• each affidavit of a document (to the extent that the affidavit was received in evidence).

The new Order 52 rule 27 provides that at least 7 days before the date appointed for settling the appeal papers, the appellant must file in the registry and serve on the respondent a draft index of the appeal papers and a chronological list of all documents received in evidence that the appellant proposes to reproduce in the appeal papers.

The new Order 52 rule 28 provides that if a party proposes to include in the appeal papers text of a Judge’s oral judgment or summing up the party must submit the text to the Judge for correction and request from the Registrar a certificate stating that the party has submitted the text for correction.

The new Order 52 subrule 28A (1) provides that at the settlement of the appeal papers the Registrar must settle the papers according to subrule 28A (2) or refer the appeal papers to the Court or a judge for settling.  Subrule 28A (2) provides that the Registrar must determine the documents and matters to be included in the appeal papers and determine the order of the papers and preparation of copies considered appropriate, settle the index according to rules 26 and 28B, determine the number of copies required, obtain an estimate of the duration of the hearing and, if practicable, fix a date for a hearing or list the appeal for hearing in appellate sittings of the Court.

The new Order 52 rule 28B provides that:

• the title page of the appeal papers must include the title of the proceedings and the name and address for service of the legal practitioner for each party;

• the index of each Part must show the date and page number of each document included;
• the page numbering must be legible, distinct from other numbering and begin with the number 1;
• page numbers must continue consecutively from one volume to the next where Part A and Part C of the appeal papers consist of more than one volume;
• the pages of Part B must be numbered according to the official transcript page numbers;
• the appeal papers must be clear and legible and securely fastened.

The new Order 52 rule 28C provides that the appellant must file a copy of the appeal papers with a certificate signed by each party or the party’s legal representative stating that each Part of the appeal papers has been examined and is correct, and file the number of copies determined under paragraph 28A (2) (d).  The Registrar may refuse to accept appeal papers that do not comply with these rules.

[7]   Order 53, paragraph 15 (2) (c)

Order 53 rule 15 deals with the directions that the Court or a judge may give about the conduct of an appeal under section 44 of the Administrative Appeals Tribunal Act 1975. 

This amendment replaces paragraph 15 (2) (c) with a new paragraph (c) which provides that the index to an appeal must be settled in accordance with rule 15A. 

The amendment is consequential upon the insertion of a new Order 53 rule 15A as set out in item [8] below.

[8]   Order 53, after rule 15

This amendment inserts new Order 53 rules 15A and 15B after rule 15.

The new rule 15A provides that the appeal papers must consist of the documents mentioned in the rule and be divided into Parts A, B and C.  It is in similar terms to the new Order 52 rule 26 referred to in item [6] above.

The new rule 15B sets out the procedure for preparing the appeal papers.

[9]   Order 53, rule 16

Order 53 rule 16 deals with the preparation of the appeal papers.

The amendment replaces rule 16 with a new rule 16 which deals with the filing of the appeal papers.  The preparation of the appeal papers is dealt with in the new rules 15A and 15B set out in item [8] above.

[10]  Order 62, rule 14

Order 62 rule 14 provides that all costs to which a party is entitled under any interlocutory order made in a proceeding must be included in the final order signed or entered unless the costs have already been paid.  The rule was intended to be procedural in character, such that a failure by a party to comply with the rule did not extinguish the party’s entitlement arising under the interlocutory costs orders. 

This amendment omits rule 14.  There is no need for rule 14 given Order 62 rule 3 (which deals with the time for dealing with costs, including when an interlocutory costs order may be taxed) and rule 7 (which sets out when costs may be taxed without an order directing taxation).

[11]  Order 78, subrule 8 (4), including the note

Order 78 deals with the proceedings under the Native Title Act 1993.  During 2007 the Native Title Act was amended by the Native Title Amendment Act 2007 and the Native Title Amendment (Technical Amendments) Act 2007. 

This amendment and the amendments set out in items [12] to [20] below are consequential upon the changes to the Native Title Act.

Order 78 rule 8 deals with the joinder of parties to a main application.  Subrule 8 (4) provides that a person wishing to join a proceeding after the 3 month period mentioned in paragraph 66 (10) (c) of the Native Title Act must seek the leave of the Court by applying to the Court in writing setting out how the person’s interests may be affected by a determination in the proceeding.  Subrule 8 (4) reflected the provisions of subsection 84 (5) of the Native Title Act.

Subsection 84 (5) was amended by adding a requirement that the joinder of a person whose interests may be affected by a determination must also be in the interests of justice.

This amendment replaces Order 78 subrule 8 (4) with new subrules 8 (4) and (4A) and a new note.  The new subrules and note are consequential upon the amendment to subsection 84 (5).

[12]  Order 78, subrule 8 (5)

Order 78 subrule 8 (5) is amended by replacing ‘seeking’ with ‘applying for’ in accordance with current drafting practice.

[13]  Order 78 subrule 12 (1)

Order 78 rule 12 deals with applications under subsection 190D (2) of the Native Title Act for review of a decision by the Native Title Registrar not to accept a claim for registration.  The amendments to the Native Title Act referred to it item [11] above mean that such an application must now be made under subsection 190F (1).

Order 78 subrule 12 (1) is accordingly amended by replacing ‘subsection 190D (2)’ with ‘subsection 190F (1)’.

[14]  Order 78, rule 15

Order 78 rule 15 deals with applications for payment of money held in trust within the meaning of subsection 52 (1) of the Native Title Act. 

The amendments to the Native Title Act mentioned in item [11] above have replaced the regime for holding money in trust with a new regime whereby money is secured by bank guarantee.

This amendment replaces Order 78 rule 15 with a new rule 15 which refers to the payment of money secured by bank guarantee in accordance with a determination or declaration mentioned in subsection 52 (1) of the Native Title Act.

[15]  Order 78, after Division 3

This amendment inserts a new Order 78 Division 3A and is consequential upon the insertion of section 136DA in the Native Title Act.  Section 136DA provides that the presiding member of the National Native Title Tribunal (‘NNTT’) may refer to the Court the question whether a party to a proceeding who does not have a relevant interest in the proceeding should cease to be a party to the proceeding.

The new Order 78 subrule 20A (1) provides that a referral under section 136DA must (a) be in accordance with form 166A; (b) state the facts giving rise to the referral concisely; and (c) be accompanied by each document that is necessary to enable the Court to consider the question raised by the referral.  Subrule 20 (2) provides that the Court may draw from a document mentioned in paragraph 20A (1) (c) any inference of fact that the Court considers appropriate.

The new Order 78 rule 20B provides for the preparation of the referral, and the new rule 20C provides for the referral being set down for a directions hearing.

[16]  Order 78, Division 4, note

The note to Division 4 of Order 78 refers to sections 86A, 86B and 86C of the Native Title Act which deal with the referral of applications and proceedings, in whole or in part, to the NNTT for mediation. 

This amendment replaces the note with a new note which refers to Division 1B of Part 4 and Division 4A of Part 6 of the Native Title Act that deal with references to the NNTT for mediation and mediation conferences.

[17]  Order 78, after rule 21

This amendment inserts a new Order 78 rule 21A and is consequential upon the insertion of a new section 136GA in the Native Title Act. 

Subsection 136GA (4) of the Native Title Act provides that if the presiding member of the NNTT considers that a party or the party’s representative did not act or is not acting in good faith in relation to the conduct of a mediation, the presiding member may report that failure to the Federal Court.

The new subrule 21A (1) provides for the form and content of a report to the Court under subsection 136GA (4).  New subrule 21A (2) provides that the report must  be provided to the Registrar in a sealed enveloped marked ‘confidential’, and subrule 21A (3) provides that the report will be provided to the Court only if the presiding member of the NNTT or a party to the main application seek to rely on the report.

[18]  Order 78, paragraph 23 (b)

Order 78 rule 23 describes the appeals from the NNTT to which Division 5 of Order 78 will apply.  Paragraph 23 (b) provides that Division 5 applies to an appeal to the Court under subsection 169 (2) of the Native Title Act on a question of law relating to registration of an indigenous land use agreement.

Subsection 169 (2) of the Native Title Act has been amended by the legislation mentioned in item [11] above.  The subsection now provides for appeals to the Court on a question of law in relation to a subsection 24DJ (1) objection application. 

This amendment replaces paragraph 23 (b) with a new paragraph 23 (b).  The effect of the amendment is to replace the reference to ‘registration of an indigenous land use agreement’ with a reference to a ‘subsection 24DJ (1) objection application’.

[19]  Order 78, after rule 47

The legislation mentioned in item [11] above amended the Native Title Act by inserting a new section 86BA which provides that the NNTT has the right to appear before the Court at:

• a hearing to determine whether to make an order under subsection 86B (3) of the Native Title Act that there be no mediation by the NNTT in relation to the whole or part of a proceeding; and
• a hearing that relates to any matter that is currently before the NNTT for mediation for the purpose of assisting the Court in relation to a proceeding.

This amendment inserts a new Order 78 rule 48 which deals with an appearance by the NNTT.  Rule 48 provides that:

(1) a person appearing on behalf of the NNTT must be authorised by the President of the NNTT to do so.

(2) such a person need not file and serve a notice of appearance.

(3) a person appearing on behalf of the NNTT must file and serve a written notice that includes the person’s name, the office the person holds in the NNTT, the person’s contact details and a summary of the submissions that the person proposes to make on behalf of the NNTT.

[20]  Order 81, paragraph 6 (b)

Order 81 deals with proceedings under the Human Rights and Equal Opportunity Commission Act 1986.

This amendment replaces Order 81 paragraph 6 (b) with a new paragraph 6 (b).  The effect of the amendment is to replace the reference to a supporting affidavit with a reference to the claim mentioned in Order 81 paragraph 5 (2) (a). 

[21]  Schedule 1, Form 54

Form 54 is the prescribed form for an Application for Leave to Appeal.

This amendment replaces form 54 with a new form 54 which reflects the requirement in Order 52 subrule 4 (3) that an application for leave to appeal must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.

[22]  Schedule 1, after Form 166

This amendment inserts a new form 166A ‘Referral of question about whether a party should cease to be a party’. 

This amendment is consequential upon the insertion of the new Order 78 Division 3A of the Rules referred to in item [15] above.

[23]  Schedule 2, item 43E

Schedule 2 sets out the costs that solicitors are allowed in respect of work done and services performed in Federal Court proceedings.

Item 43E of Schedule 2 deals with the costs that may be recovered pursuant to a short form bill under Order 62 rule 40B.

Item 43E is amended by omitting the word ‘standard’ so that it states ‘migration case’, being a ‘migration case’ referred to in Order 62 subrule 40B (3).

[24]  Schedule 3, after item 64

[25]  Schedule 3, after item 171

Schedule 3 sets out the powers a Registrar may exercise pursuant to a direction under section 35A (1) (h) of the Federal Court of Australia Act.

Schedule 3 is amended by inserting the following items:

• item 64A – which refers to the power of the Court under Order 4 subrule 12 (1) to (a) alter the date for a hearing to a later date; and (b) authorise the solicitor for a party to make corresponding alterations in any copy for service of any application or notice. 
• item 171A – which refers to the power of the Court under Order 33 subrule 14 (1) to make an order requiring the production of a prisoner from lawful custody to give evidence in proceedings before the Court or before an examiner under Order 24.
• item 171B – which refers to the power of the Court under Order 33 subrule 15 (1) to (a) make an order requiring the production of a party to a proceeding before the Court who is in lawful custody; and (b) make an order in relation to the continuing custody of the party that the Court considers appropriate.