Federal Court Rules (Amendment) 1991 No. 461
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 461
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 thirty-four (34) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed in the Court, including practice and procedure to be followed in Registries of the Court, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Section 59 of the Act also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under that section as if references in those sections of that Act to regulations were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then.
Rule 1
Provides a commencement date of 1 January 1992.
Rule 2
Provides for the amendment of the Rules as set out.
Rule 3
Inserts definitions for the New Order referred to in Rule 4.
Rule 4
Inserts a new Order 72 - Mediation and Arbitration.
Division 1-Preliminary
Subrule 1
Provides that the Court or a Judge may refer proceedings or part of proceedings to a mediator or arbitrator with the consent of the parties.
Subrule 2
Provides that Division 2 of this Order (Mediation) will not apply where a Judge undertakes the mediation and that orders or directions made under Order 10, rule 1, which relates to directions for the conduct of a matter, are not affected.
Subrule 3
Provides for a Judge undertaking a mediation to give any directions that the Judge thinks fit.
Subrule 4
Provides for proceedings to be adjourned until the mediator or arbitrator reports back to the Court, unless the Court or a Judge considers that proceedings need not be adjourned and for the fixing of a date for the mediator or arbitrator to report on progress.
Subrule 5
Provides for the termination a mediation or arbitration; termination of the appointment of a mediator or arbitrator and the appointment of a replacement mediator or arbitrator. Where a new arbitrator is appointed the Court may order that the new arbitrator treat any evidence, record or document or anything else produced or done in the course of the earlier proceedings as if it were done by or before the new arbitrator.
Division 2-Mediation
Subrule 6
Provides for the nomination of a mediator by the Registrar and written. notice to the parties of the details of the name, date and address of the place of the mediation and any documents to be provided to the mediator. Dates and times are to be fixed after consultation with the parties.
Subrule 7
Provides that a mediation must be conducted according to the directions of the Court or a Judge, that the mediation allow for the parties to communicate effectively with each other and any agreement that is reached be included in a consent order under Order 35, rule 10. If only part of proceedings is the subject of mediation, the mediator may report back in terms agreed between the parties.
Subrule 8
Provides for the termination of a mediation by the mediator or by a party giving notice to the Court, the mediator and each party and for adjournment of the proceedings or part of the proceedings back to the Court or a Judge.
Division 3-Arbitration
Subrule 9
Provides for the appointment of a particular person as arbitrator with the consent of the parties and the arbitrator's written consent. The parties may ask the Court or a Judge to make orders by consent regarding: conduct of the arbitration, completion time, and manner of payment of expenses, and the parties may make a request as to the way in which the arbitrator's findings are to be reported back to the Court.
Subrule 10
Provides that any party may withdraw from the arbitration by serving notice on the Court, the arbitrator and the other party and the Court or a Judge may make an appropriate costs order where the arbitration is terminated.
Division 4-Miscellaneous
Subrule 11
Provides a cessation date of 1 January 1993 so that consultations may proceed with the profession and other interested parties on the most appropriate ways of utilising the new legislation.
Overview
The Federal Court Rules (Amendment) 1991 No. 461 was enacted to address the need for the introduction of mediation and arbitration processes within the Federal Court of Australia. This amendment was authorised by the Judges of the Federal Court of Australia under Section 59 of the Federal Court of Australia Act 1976. The amendment aimed to provide a more efficient and cost-effective means of resolving disputes by allowing the Court or a Judge to refer proceedings to a mediator or arbitrator with the consent of the parties involved. The policy objective was to facilitate the resolution of disputes in a more flexible and informal manner, potentially reducing the need for lengthy court proceedings and associated costs. This amendment was made in accordance with the relevant sections of the Acts Interpretation Act 1901, which apply to these Rules of Court as if references to regulations were references to Rules of Court.
Scope and Application
The Federal Court Rules (Amendment) 1991 No. 461 amends the existing Federal Court Rules, which govern the practice and procedure of the Federal Court of Australia. This amendment, which took effect on 1 January 1992, introduces a new Order 72, which pertains to mediation and arbitration. This Order applies to all proceedings in the Federal Court, and any alterations to these proceedings must be made with the consent of the parties involved. It is applicable nationally, given that the Federal Court operates across Australia. This Order is designed to facilitate the resolution of disputes through mediation and arbitration, thereby aiming to expedite the judicial process and reduce the burden on the Court. The amendment also includes provisions for the termination of mediations or arbitrations, the appointment and replacement of mediators and arbitrators, and the reporting back of any agreements reached to the Court. Notably, these new rules do not apply to situations where a Judge themselves is conducting the mediation. The amendment was put in place to ensure that the Court's procedures are in line with the Federal Court of Australia Act 1976, and it does not specify any exclusions or exemptions from its application.
Key Provisions
The Federal Court Rules (Amendment) 1991 No. 461 introduces significant amendments to the existing Federal Court Rules, effective from 1 January 1992. The most notable addition is Order 72, which establishes provisions for mediation and arbitration (Rule 4). This new Order allows the Court or a Judge to refer proceedings or parts of proceedings to a mediator or arbitrator with the consent of all parties involved (Subrule 1). It is important to note that this Order does not apply to Judges who undertake mediation themselves (Subrule 2). Such Judges have the authority to give any necessary directions (Subrule 3) and can adjourn proceedings until the mediator or arbitrator reports back to the Court (Subrule 4). Additionally, Subrule 4 empowers the Court or a Judge to fix a date for the mediator or arbitrator to report on the progress of the proceedings.
The Act imposes certain obligations on the parties and entities it governs. The parties must consent to the referral of proceedings to a mediator or arbitrator and must participate in good faith during the mediation or arbitration process. They are also required to provide any necessary documents to the mediator or arbitrator and to comply with any directions or orders given by the Court or a Judge in relation to the mediation or arbitration. The Registrar is responsible for nominating a mediator and providing written notice to the parties of the details of the mediation, including the date, time, and location (Subrule 6). The parties must then consult with each other to fix the dates and times of the mediation.
Failure to comply with the provisions of Order 72 or any other provisions of the Federal Court Rules may result in various consequences. While the Explanatory Statement does not specify particular offences, penalties, or civil/criminal consequences for breach, it is reasonable to infer that breaches of court orders or rules may lead to sanctions, including costs orders, fines, or other penalties as determined by the Court. The Court may also make appropriate costs orders where arbitration is terminated (Subrule 10). However, the specific penalties for breaches of the Federal Court Rules are not outlined in the Explanatory Statement, and parties should refer to the relevant sections of the Federal Court of Australia Act 1976 or seek legal advice for more detailed information on potential consequences.