EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 50
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, 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.
The Rules now made come into operation on 17 April 1989. They amend the existing Rules of Court as follows.
First, a new rule 4A has been inserted into Order 7 - Service. This rule deals with service of documents, which do not require personal service, where a principal solicitor has a solicitor acting as his or her agent. The rule sets out alternatives for service of such documents upon the principal solicitor.
Secondly, rule 10 of Order 52 - Appeals - has been recast to make it clear that a party wishing to appeal from an interlocutory judgment of the Court may make an application for leave to appeal orally to the Judge who made the pronouncement, or where this was not done, by application made by motion on notice to a single Judge or a Full Court. The rule also sets out the time limits within which such applications may be made.
Thirdly, two new rules have been added to Order 54 - Administrative Decisions (Judicial Review) Act 1977. Rule 7 relates to the requirement for the prompt dismissal by a party on application, of an order of review, for reasons such as the availability of an alternate remedy, the lapse of time, or the like. Rule 8 states that the Court may dispense with the attendance for cross-examination of the deponents of affidavits in applications made under the ADJR Act.
Finally, the rules also provide for a revised scale of solicitors’ costs for work done in Federal Court proceedings. The Federal Costs Advisory Committee recommended an increase of 1.7% in the Federal Court Cost Scale and this recommendation was accepted by the Judges of the Court.
Overview
The Statutory Rules 1989 No. 50, issued under the authority of the Judges of the Federal Court of Australia, amends the Federal Court Rules of 1979, bringing into operation changes on 17 April 1989. These amendments were enacted to address specific procedural gaps identified in the Court's practice and to ensure that the rules remain current and reflective of the evolving legal landscape. The Federal Court of Australia Act 1976 empowers the Judges of the Court to make these Rules, which are not inconsistent with the Act and pertain to the practice and procedure within the Court, including its Registries, as well as matters incidental to its business. The policy objective of these amendments is to enhance the efficiency and fairness of the Court’s operations by clarifying certain procedural aspects and updating the costs scale for solicitors.
Scope and Application
The Statutory Rules 1989 No. 50, issued under Section 59 of the Federal Court of Australia Act 1976, pertain to amendments of the Rules of the Federal Court of Australia. These rules apply to all parties and entities involved in proceedings before the Federal Court, including principal solicitors and their agents, as well as those who may be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. The amendments cover procedural aspects such as the service of documents, the appeal process for interlocutory judgments, and specific considerations for applications under the ADJR Act, including the potential dismissal of review orders and the exemption from cross-examination of affidavit deponents. The rules have a national jurisdictional reach as they govern practice and procedure within the Federal Court of Australia. There are no stated exclusions or exemptions in the rules, though the application may be subject to further interpretation and clarification through subordinate instruments. The new rules came into operation on 17 April 1989, replacing the previous rules that had been in effect since 1 August 1979.
Key Provisions
The Federal Court Rules, amended and issued under the Federal Court of Australia Act 1976, introduce several key changes. Firstly, a new rule 4A has been added to Order 7 concerning the service of documents, particularly those not requiring personal service (rule 4A). This rule provides alternatives for service of such documents when a principal solicitor has an agent solicitor. Secondly, rule 10 of Order 52, relating to appeals, has been recast to clarify the process for appealing from an interlocutory judgment. The rule allows for applications for leave to appeal to be made either orally to the judge who made the pronouncement or, if not feasible, by motion on notice to a single judge or a Full Court. Additionally, it specifies the time limits within which such applications must be made. Thirdly, two new rules have been incorporated into Order 54, which deals with the Administrative Decisions (Judicial Review) Act 1977. Rule 7 mandates the prompt dismissal of an order of review by a party on application, citing reasons such as the availability of an alternate remedy or the lapse of time. Rule 8 allows the Court to dispense with the attendance for cross-examination of the deponents of affidavits in applications made under the ADJR Act.
These rules impose specific obligations on parties and solicitors involved in Federal Court proceedings. Principal solicitors must ensure that documents not requiring personal service are served in accordance with the provisions of rule 4A, offering alternatives when a solicitor acts as an agent. Parties wishing to appeal from an interlocutory judgment must adhere to the time limits and procedural requirements outlined in rule 10 of Order 52. Additionally, parties involved in applications under the ADJR Act must be prepared to comply with the requirements for prompt dismissal of orders of review as per rule 7 of Order 54, and understand that the Court may dispense with the attendance for cross-examination of deponents as per rule 8 of Order 54.
The Federal Court Rules also outline potential penalties and consequences for non-compliance. While the specific penalties are not detailed in the Explanatory Statement, breaches of the rules could result in civil or criminal consequences depending on the nature and severity of the breach. For instance, failure to comply with the service requirements in rule 4A or the time limits in rule 10 for appeals may be considered contempt of court, subjecting the party to fines or imprisonment. Similarly, not adhering to the dismissal requirements in rule 7 or the cross-examination provisions in rule 8 could lead to legal repercussions. The exact penalties would be determined by the Court based on the specific circumstances of each case.