Federal Court Rules (Amendment) 1996 No. 308
EXPLANATORY STATEMENT
Statutory Rules 1996 No. 308
AMENDMENT TO THE RULES OF THE FEDERAL COURT OF AUSTRALIA
The Judges of the Court (of whom there are forty six (46), including the Chief Justice) or a majority of them, make Rules of Court providing for the practice and procedure to be followed in the Court and in the Registries of the Court. By sub-section 59(4) of the Federal Court of Australia Act 1976, Rules of Court made under the section are subject to sections 48, 48A, 4813, 49 and 50 of the Acts Interpretation Act 1901 which relate to die making of regulations, as if references to the regulations in those sections were references to Rules of Court. The present Federal Court Rides came into operation an 1 August 1979. They are reviewed regularly.
Rule 1 - Commencement
This Rule provides for these Rules to commence on 16 December 1996.
Rule 2 - Amendment
This Rule provides for the amendment of the Federal Court Rules as set out in these Rules.
Rule 3 - Application of Bankruptcy Rules
This Rule omits Order 1 rule 11 which provides that the Federal Court Rules do not apply to proceedings under the Bankruptcy Act 1966. Prior to the commencement of the Bankruptcy Legislation Amendment Act 1996, which occurs on 16 December 1996, the practice and procedure of matters under the Bankruptcy Act was prescribed by the Bankruptcy Rules made pursuant to section 315 of the Bankruptcy Act. As a result of the repeal and substitution of section 315 by the Bankruptcy Legislation Amendment Act the practice and procedure in matters under the Bankruptcy Act must be made by the Federal Court Rules. The Federal Court of Australia now has exclusive jurisdiction in matters under the Bankruptcy Act.
Rule 4 - Substituted service
Order 7 rule 9 allows for an order to be made for the service of a document other than in the manner prescribed by the Rules of court where for any reason it is impractical to serve a document in the manner set out in the Rules. This amendment clarifies the manner in which such an application for substituted service is to he made by requiring it to be made by notice of motion in an existing proceeding. The Rules dealing with notices of motion are found in Order 19.
Rule 5 - Order 77 Bankruptcy Proceedings
This Rule inserts a new Order 77 into the Federal Court Rules. The Rule provides for the practice and procedure of matters in the Court under the Bankruptcy Act.
At the meeting of the Judges held in September 1996 it was noted that the Bankruptcy Legislation Amendment Bill was not expected to commence operation until 1997. The passing of the Bill as the Bankruptcy Legislation Amendment Act with a commencement date of 16 December 1996 did not allow the Judges sufficient time to complete the drafting of new rules to cover practice and procedure of the Court when exercising jurisdiction under the Bankruptcy Act. It is intended that this Order be used on an interim basis until such time as die Judges are able to consider permanent Bankruptcy Rules at the next Judges' meeting in April 1997.
The provisions of the new Order are as follows:
Order 77 rule 1
Order 77 subrule 1(2) applies as Rules of Court the Bankruptcy Rules that were in force immediately before the commencement of the Bankruptcy Legislation Amendment Act to the extent that they apply to the practice and procedure of the Court in the exercise of its jurisdiction in bankruptcy and to the extent that they are consistent with the Bankruptcy Ad. The Bankruptcy Rules arc those in made by the Governor-General pursuant to section 3 15 of the Bankruptcy Act and in force immediately prior to 16 December 1996 when the Bankruptcy Legislation Amendment Act commences,
Subrule 1(3) applies the Rules of Court to the practice and procedure of the Court in the excercise of its jurisdiction in bankruptcy to the extent that they are consistent with the Bankruptcy Rules applied by subrule (2).
Subrule 1(4) prescribes that interlocutory or other applications in matters already commenced may be made by notice of motion under Order 19.
Order 77 rule 2
Order 77 subrule 2(1) provides that the Court or a Judge may direct a Register of the Court to exercise a power of the Court specified in Part 3 of the Third Schedule to the Rules. This delegation is necessary as the office of Registrar in Bankruptcy has been abolished by the Bankruptcy Legislation Amendment Act The powers and functions of the Court are prescribed in Rule 6 to these amending Rules.
Subrule 2(2) provides that an exercise of a power of the Court by a Registrar may be reviewed by the Court or a Judge. Subrule 2(3) requires that the review be heard in open court if the power exercised by the Registrar is a matter listed in section 31 of the Bankruptcy Act. Section 31 of the Bankruptcy Act requires that certain matters be dealt with in open court.
Order 77 rule 3
Order 77 rule 3 is a sunset clause providing that the Order ceases to be in force on 31 July 1997, The Judges intend that by that time a new Order 77 will be drafted.
Rule 6 - Third Schedule
This Rule inserts Part 3 to the Third Schedule to the Rules of Court. The Part prescribes the powers of the Court that are capable of being delegated to the Registrars of the Court pursuant to Order 77 rule 2. This replaces the delegation to the Registrars in Bankruptcy under section 31A of the Bankruptcy Act as the office of Registrar in Bankruptcy has been abolished by the repeal of section 14 of the Bankruptcy Act by the Bankruptcy Legislation Amendment Act.