Federal Court Rules (Amendment) 1994 No. 130
EXPLANATORY STATEMENT
Statutory Rules 1994 No. 130
Issued by the authority 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-six (36) 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
This provides the commencement date.
Rule 2
This provides that the Federal Court Rules are amended as set out in these amending Rules.
Rule 3
Some parts of the Federal Court Rules identify a Form by reference to its number and by adding "in the First Schedule". In other instances a Form is identified only by number. To regularise the latter instances and as an economical tool of interpretation the amendment has been adopted so that any reference to a Form by number is to be read as a reference to the Form so numbered in the First Schedule.
Rule 4
Before this amendment, the Rules did not provide a consistent procedure for the payment of a hearing fee or fixing a date for trial for an appeal from the Administrative Appeals Tribunal. This amendment is designed to overcome this. The new Order 53 rule 18 provides that a party must file a request that the Registrar fix a date for trial and after obtaining a trial date, pay any hearing fee and notify all other parties. It applies the usual procedure of the Court to appeals from the Administrative Appeals Tribunal.
Rule 5
Prior to this amendment Order 62 subrule 41(2) was inconsistent with Order 62 subrule 10(1). The latter required that a party give 7 days notice of the time appointed for taxation, whereas the former subrule 41(2) required service of the bill of costs 10 days before the taxation. These Rules now provide that both notification and service are to occur 7 days before the taxation.
Rule 6
Insertion of subrule 46(6A) meets the need for a procedure for refunding the $750 security for the costs of a taxation of a bill of costs. This rule enables the Registrar to refund the security after completion of taxation of a bill of costs If there are no claims on the security by another party.
Rule 7
Order 76 is a new order which provides the practice and procedure in relation to determinations under the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 (Discrimination Acts) and the Privacy Act 1988. Under similar provisions in each of these Acts, determinations of the relevant Commissions or the Commissioner in the case of the Privacy Act must be lodged for registration with the Federal Court of Australia (the Court). Upon registration, the determination has effect as if it were an order of the Court. The determinations may then be enforced as an order of the Court. Under the Discrimination Acts and the Privacy Act a party to the complaint giving rise to a determination may apply for review of the determination in the Court. Order 76 provides one act of procedures for the four Acts in regard to those provisions which they have in common.
Order 76 rule 1
This is the interpretation rule. The terms, "Commission" and "Discrimination Act" are defined, and are used in Order 76 to aid the purpose of the one procedure suiting all four Acts.
The "appropriate Registry" is defined to ensure convenience to the parties in requiring the lodgment in a Registry in the State or Territory where the determination was made. It has an equivalent in the term "proper place", used in relation to setting down appeals for bearing in Order 52 rule 9.
Order 76 rule 2
This is a streamlining provision which, subject to Order 76, applies other Orders of the Federal Court Rules to any proceedings in relation to a registered determination.
Order 76 rule 3
The Discrimination Acts and Privacy Act provide that the Commission or Commissioner must lodge the determination in a registry of the Federal Court and that upon lodgment the Registrar must register the determination. This rule provides that the procedure for presentation of the determination to the Court for registration be by lodging it with Form 142.
Order 76 rule 4
This rule provides that a number be assigned to the registered determination and that. number being applied for reviews or enforcement. This ensures effective control of documents filed in relation to a registered determination.
Order 76 rule 5
This rule provides the procedure by which a person applies for review or enforcement of a determination.
Subrule 5(1) requires that an application for review or enforcement be filed in the appropriate registry. Subrule 5(2) provides that the Court may order that a nominated registry is the appropriate registry. If such an order is sought before the application for review or enforcement is filed, subrule 5(3) provides for the filing of an originating motion and affidavit in support which may be heard ex parte.
Order 76 rule 6
This deals with the form of an application for review of a determination. It prescribes that the application be filed substantially in accordance with Form 5, and provides in subrules (2) and (3) specific information to be included in the application.
Subrule (4) governs amendment of an application by providing it be on such terms and conditions as the Court or a Judge think fit. This is consistent with the provisions of Order 13 of the Federal Court Rules.
Order 76 rule 7
This rule prescribes Form 143 as the vehicle for an application for leave to apply to review a determination out of time. The information which must be included in the 'accompanying affidavit is also set out.
Order 76 rules 8 and 9
These rules require that an applicant for review of a determination notify the Commission of the application and that the Commission then send appropriate documents to the Court. The equivalent procedure is found in Orders 53 and 53A relating to appeals from the Administrative Appeals Tribunal and the Immigration Review Tribunal.
Order 76 rule 10
Rule 10 provides that material before the Commission on the hearing of the complaint is admissible in evidence in the application for review. This provision saves the expense of adducing the evidence again and is designed for convenience.
Order 76 rule 11
As the filing of an application to review a registered determination does not of itself suspend the operation of the determination, rule 11 prescribes the procedure for applying to the Court to suspend the operation of a determination. Any application for an interim order suspending the operation of a determination must be by motion upon notice under Order 19.
Order 76 rule 12
This rule provides that an application for enforcement should be made by the filing of an application in Form 5.
Rules 8.1 and 8.2
Forms 44 (Request to fix date for trial) and 44A (Notice of date for trial) are amended to indicate that they now relate to Order 53 subrules 18(1) and 18(2) respectively. These forms now apply to appeals from the Administrative Appeals Tribunal.
Rule 8.3
Adds Forms 142 and 143.