Explanatory Statement
Statutory Rules 1990 No. 414
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-two (32) 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 that the Rules now made come into operation on 1 January 1991.
Rule 2
Provides for the Federal Court Rules to be amended as set out in these Rules,
Rule 3 (Commencement of Proceedings)
Provides that Rules 11, 12 and 13 in Order 4 be omitted and substituted for the following reason. In October 1990 Order 4 was amended to correct a deficiency in the Rules regarding the giving of notice to a respondent of an altered hearing date. Unfortunately the statutory rule circulated for signature erroneously designated the rules the subject of the amendment as “sub-rules”. There is concern that those amendments may not be effective in those terms. The substituted rules 11, 12 and 13 correct the erroneous description,
Rule 4
Amendment to Order 62, rule 12, Second Schedule (Costs allowable in respect of work done and services performed after 31 December 1990).
The Rule omits the current Schedule of Costs and substitutes a new Schedule which increases the scale of solicitors costs specified by 13.56%, The increase was recommended by a majority of the Federal Costs Advisory Committee in its Eighth Report on Solicitors Costs dated August 1990. Mr B. Thornton, an Assistant Secretary in the Defence and Government Division of the Department of Finance, a member of the Committee, did not agree with the recommendation and considered that the increase in solicitors costs should be 6.38%.
Rule5
Is a transitional rule providing that the Schedule omitted continues to apply to work performed prior to the commencement of the new rule.
Overview
The Federal Court of Australia Act 1976, enacted by the Australian Parliament, provides the authority for the Judges of the Federal Court to establish Rules of Court, ensuring they do not conflict with the Act. These rules govern the practice and procedure to be followed in the Federal Court and its registries, as well as other incidental matters necessary for the court's business. The legislative framework allows for periodic amendments to these rules, ensuring they remain relevant and effective. This particular statutory rule, issued under the authority of the Judges of the Federal Court of Australia, amends the Federal Court Rules to correct an error in the previous rules regarding notice to respondents of altered hearing dates, and to update the schedule of costs for solicitors' services. The amendments aim to rectify the identified deficiencies and reflect updated recommendations from the Federal Costs Advisory Committee, thereby maintaining the integrity and functionality of the court's procedural rules.
Scope and Application
The Statutory Rules 1990 No. 414, made under the authority of the Judges of the Federal Court of Australia, amend the Federal Court Rules which govern the practice and procedure of the Court, including its registries. These rules apply to all individuals and entities that engage in legal proceedings within the Federal Court of Australia. The amendments, which came into effect on 1 January 1991, include specific corrections and updates to existing procedural rules, particularly addressing the notice to respondents of altered hearing dates and updating the costs schedule for work done and services performed. The increase in solicitors' costs was recommended by the Federal Costs Advisory Committee and implemented through the new Schedule, although one committee member disagreed with the recommended percentage increase. The rules apply nationally across Australia, as they pertain to the Commonwealth's Federal Court system, and are subject to further specification or restriction through subordinate instruments as necessary.
Key Provisions
The main operative sections of these Statutory Rules 1990 No. 414 pertain to amendments to the Federal Court Rules, particularly regarding the commencement of proceedings and the schedule of costs allowable for work done and services performed after 31 December 1990. Rule 1 establishes that these new Rules come into effect on 1 January 1991. Rule 2 allows for amendments to the existing Federal Court Rules as outlined in these new Rules. Rule 3 modifies the commencement of proceedings by correcting an error in the previous amendments related to notifying respondents of altered hearing dates, ensuring that the substituted rules are correctly described. Rule 4 amends Order 62, rule 12, Second Schedule to update the allowable costs for solicitors' services, increasing them by 13.56% as recommended by the Federal Costs Advisory Committee. Rule 5 ensures that the old cost schedule continues to apply to work performed before the new rules took effect.
The obligations imposed by these Rules include ensuring that any proceedings initiated under the Federal Court Rules comply with the corrected and updated provisions regarding notice to respondents and the allowable costs for solicitors' services. Parties involved in litigation must adhere to the new rules concerning the commencement of proceedings and the updated cost schedule. The Rules also require that the old cost schedule be applied to work completed before the new rules came into force. These obligations are intended to streamline the process of initiating court proceedings and to provide clarity and consistency in the costs associated with legal services.
In terms of offences, penalties, or consequences for breaches of these Rules, the explanatory statement does not specify any particular sanctions. However, any non-compliance with the Federal Court Rules, including the amended provisions, could potentially lead to procedural errors or disputes regarding the allowable costs, which may have implications for the parties involved in litigation. While the specific penalties are not detailed within the explanatory statement, breaches of court rules can generally lead to sanctions such as fines, costs orders, or other judicial remedies as determined by the Court. The exact nature and severity of these consequences would depend on the specific circumstances of the breach and the discretion of the Court.