Federal Court Rules (Amendment) 1997 No. 277
Explanatory Statement
Statutory Rules 1997 No. 277
Issued by the authority of the Judges of the Federal Court of Australia
AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are forty-seven (47) including the Chief Justice) or a majority of them, to make Rules of Court not inconsistent with the Act providing for the practice and procedure to be followed in the Court and in Registries of the Court, and in relation to all matters incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Under sub-section 59(4) of the Federal Court Act 1976, sections 49, 48A, 48B, 49 and 50 of the Acts Interpretations 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 am reviewed regularly.
Rule 1
The Federal Court Rules are amended as set out in these Rules. The Rules commenced on notification in the Government Gazette.
Rule 2
This amendment to Order 9 rule 3 specifies that a Notice of Appearance must be in accordance with Form 15. This has been the case since Order 9 rule 3 was made and the amendment removes any ambiguity.
Rule 3
This rule deletes the words "notice of motion" in Order 15A rule 9 and substitutes the word "application". This corrects an error in the rule.
Rule 4
This rule amends Order 35 rule 8 which prescribes the rate of interest payable on a judgment debt. The rate, of interest is reduced from 12% per annum to 10.5% per annum.
Rule 5
This amendment to Order 72 rule 1 deletes a reference to matters being referred to mediation or arbitration "With the consent of the parties". The amendment follows the amendment of section 53A of the Federal Court of Australia Act by the Law and Justice Legislation Amendment Act 1997. Matters, may now be referred to mediation or arbitration by a Judge without the Court first obtaining the consent of the parties.
Rule 6
This amendment to Order 72 rule 5 deletes sub-rule (3) and substitutes a new sub-rule allowing the Court to order that a mediation continue in a particular way upon the appointment of a new mediator.
Rule 7
This amendment to Order 72 ride 8 omits sub-rules (2) and (3) and are also consequential upon the amendment of section 53A of the Federal Court of Australia Act by the Law and Justice Legislation Amendment Act 1997.
Rule 8
This rule omits Order 72 rule 10.
Rule 9
This amendment to Order 77 rule 18 deletes sub-rule (2) and inserts new sub-rules (2) and (3). The new sub-rule (2) provides that the affidavit in support of a creditor's petition founded on a failure to comply with a Bankruptcy Notice or to set up a counter claim must be accompanied by an affidavit of service of the relevant bankruptcy notice. Sub-rule (3) requires that if an application mentioned in paragraph 18(1)(a) or (b) has been made, the affidavit must also be accompanied by a copy of the order finally deciding that application. This is a reference to applications for an order setting aside the bankruptcy notice or an order extending the time to comply with the bankruptcy notice
Rule 10
Form 15 - This amendment substitutes a reference to Order 9 sub-rule 3(1) for the reference to Order 9 rule 4 in the Notice of Appearance.
Form 141 -This amendment substitutes a new note in Form 141 being the Notice of Appeal from the National Native Title Tribunal.
Form 151 - This amendment omits the words "The Court of the Registrar" and substitutes "The Court or the Registrar" in Form 151, being a summons to attend a bankruptcy examination. This corrects an error in the Form.
Overview
The Federal Court Rules (Amendment) 1997 No. 277, issued under the authority of the Judges of the Federal Court of Australia, serves to refine and correct various provisions within the Federal Court Rules established in 1979. This amendment, which came into operation on notification in the Government Gazette, aims to rectify errors and update certain rules to align with recent legislative changes, particularly those introduced by the Law and Justice Legislation Amendment Act 1997. The Judges of the Federal Court, empowered by Section 59 of the Federal Court of Australia Act 1976, have enacted these amendments to ensure the rules remain consistent with the Act and are practical and effective in guiding court procedures. The policy objective behind these amendments is to maintain a clear, efficient, and legally sound framework for the operation of the Federal Court, facilitating the fair and expeditious resolution of cases.
Scope and Application
The Federal Court Rules (Amendment) 1997 No. 277 applies to the practice and procedure followed in the Federal Court of Australia and its registries, impacting the conduct of all matters incidental to such practice and procedure. This legislation pertains to individuals and entities that engage in legal proceedings within the Federal Court's jurisdiction, and it covers conduct and transactions that are subject to the Court's authority. The amendment applies nationally across Australia, reflecting the Commonwealth's legislative power under the Federal Court of Australia Act 1976. The Act does not explicitly state exclusions or exemptions, but the rules are designed to be applied broadly to various cases, barring any specific exceptions mentioned in the rules themselves. The Federal Court Rules can be further extended or restricted by subordinate instruments, such as regulations or additional rules made under the authority of the Federal Court Act 1976.
Key Provisions
The Federal Court Rules (Amendment) 1997 No. 277 outlines various amendments to the existing Federal Court Rules, which were first introduced in 1979 and amended over time. The rules are made under section 59 of the Federal Court of Australia Act 1976, which allows the Judges of the Court to establish rules not inconsistent with the Act, governing practice and procedure in the Court and its registries. This amendment introduces changes to various orders and rules, as well as updates to forms.
The key provisions of the amendment include updating the form for the Notice of Appearance (Rule 2), correcting an error in Order 15A rule 9 by substituting "application" for "notice of motion" (Rule 3), reducing the rate of interest on judgment debts from 12% to 10.5% per annum (Rule 4), and allowing the Court to refer matters to mediation or arbitration without first obtaining the consent of the parties (Rule 5). Additionally, the amendment provides for the continuation of mediation with a new mediator (Rule 6), omits certain sub-rules in Order 72 rule 8 (Rule 7), and modifies Order 77 rule 18 to require the submission of additional affidavits and orders in support of creditor's petitions (Rule 9). Lastly, the amendment updates the forms for the Notice of Appearance (Form 15), the Notice of Appeal from the National Native Title Tribunal (Form 141), and the summons to attend a bankruptcy examination (Form 151).
The obligations and requirements imposed by these rules primarily concern the format and submission of various notices, applications, and forms, as well as the procedures for interest on judgment debts and the process for referring matters to mediation or arbitration. Parties and entities governed by the Federal Court Rules must ensure that they follow the correct procedures and submit the required documentation in the appropriate format.
The Federal Court Rules (Amendment) 1997 No. 277 does not explicitly state any offences, penalties, or consequences for breach. However, failure to comply with the rules and requirements could potentially lead to delays in proceedings, additional costs, or even the dismissal of cases. It is essential for parties and entities governed by the Federal Court Rules to be aware of these changes and ensure compliance with the updated rules to avoid any potential consequences.