Federal Court Rules (Amendment) 1992 No. 44
EXPLANATORY STATEMENT
Statutory Rules 1992 No. 44
Issued by the authority of the Judges of the Federal Court of Australia
AMENDMENT OF THE RULES OF THE 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. These amendments are necessary because of amendments to the Federal Court of Australia Act 1976 which introduced representative proceedings to the Court.
Rule 1
Provides a commencement date of 4 March 1992.
Rule 2
Provides for the amendment of the Rules as set out.
Rule 3
Inserts New Order 73 - Representative Proceedings provided for by the Federal Court of Australia Amendment Act 1991 ("the Act").
New Order 73 rule 1
Provides an Interpretation of 'application for an order involving notice' as the notice referred to in sections 33K, 33W, 33X or 33ZA of the Act where members of a group may be required to be informed that an application for an order has been made to the Court. Opt out notice' is defined as that notice referred to in section 33J of the Act being a notice of a member of a group of intention to opt out of a representative proceeding.
New Order 73 rule 2
Provides that this Order applies to representative proceedings.
New Order 73 rule 3
Provides for representative proceedings to be commenced by application in accordance with Form 129.
New Order 73 rule 4
Provides for the consent of a person referred to in subsection 33E(2) of the Act to be a group member in accordance with Form 130. Those persons are the Commonwealth, a State or a Territory; a Minister or a Minister of a State or Territory, a body corporate established for a public purpose by a law of the Commonwealth, of a State or of a Territory, other than an incorporated company or association; or an officer of the Commonwealth of a State or of a Territory, in his or her capacity as such an officer.
New Order 73 rule 5
Provides than an application for an order involving notice must be by notice of motion and sets out details which must be included in the supporting affidavit. For example, the name of persons who are group members, their whereabouts etc and for service of the documents.
New Order 73 rule 6
Provides that an opt out notice under section 33J of the Act may be in accordance with Form 131. Section 33J provides for the right of a group member to opt out including the requirement for written notice before an application can be heard in the Court.
Rule 4
Provides for the Numerical Table of Forms to be amended by adding to the existing list of forms the new forms mentioned above in the Rules.
Rule 5
Provides for the insertion of Forms 129, Form 130 and Form 131.
Overview
The Federal Court Rules (Amendment) 1992 No. 44, issued under the authority of the Judges of the Federal Court of Australia, was enacted to address the gap arising from the introduction of representative proceedings by the Federal Court of Australia Amendment Act 1991. The objective of these amendments was to ensure that the Federal Court Rules were consistent with the new legislative framework introduced by the Amendment Act. These amendments are necessary to provide a structured approach to the conduct of representative proceedings within the Federal Court, ensuring clarity and compliance with the requirements set by the new legislation. The rules introduced under this amendment provide for the commencement of representative proceedings, the process for group members to opt out of such proceedings, and the necessary documentation and procedures to be followed in these cases.
Scope and Application
The Federal Court Rules (Amendment) 1992 No. 44 pertains to the practice and procedure to be followed in the Federal Court of Australia, including its registries, as mandated by section 59 of the Federal Court of Australia Act 1976. This amendment introduces New Order 73, which specifically governs representative proceedings, a concept incorporated by the Federal Court of Australia Amendment Act 1991. The rules apply to any proceedings involving applications for orders that require notice to members of a group, as well as opt-out notices, and apply to proceedings that may be initiated by the Commonwealth, a State or Territory, a Minister or Minister of a State or Territory, a public body established by law, or an officer of the Commonwealth or a State or Territory in their official capacity. These rules came into effect on 4 March 1992 and include the insertion of new forms, such as Form 129 for applications, Form 130 for consent of group members, and Form 131 for opt-out notices, all of which must be used in accordance with the newly established guidelines.
Key Provisions
The Federal Court Rules (Amendment) 1992 No. 44 introduces several key changes to the existing Federal Court Rules, primarily to accommodate the introduction of representative proceedings as provided for by the Federal Court of Australia Amendment Act 1991. The main operative sections of these amendments include Rule 2, which provides for the amendment of the existing Rules, and Rule 3, which inserts a new Order 73, titled "Representative Proceedings" (Rule 3). These provisions are effective from 4 March 1992 (Rule 1).
Order 73 further details the procedural requirements for representative proceedings, as set out in New Order 73 rules 1 through 6. For instance, Rule 1 of Order 73 provides an interpretation of terms such as "application for an order involving notice" and "opt-out notice" (New Order 73 rule 1). Rule 2 confirms the applicability of Order 73 to representative proceedings (New Order 73 rule 2). Rule 3 specifies that these proceedings must be commenced by application in accordance with Form 129 (New Order 73 rule 3). Rule 4 requires the consent of certain entities, such as the Commonwealth or a State, to be a group member in accordance with Form 130 (New Order 73 rule 4). Rule 5 mandates that applications for an order involving notice must be made by notice of motion, with supporting affidavits that include specific details (New Order 73 rule 5). Lastly, Rule 6 allows an opt-out notice to be submitted in accordance with Form 131 (New Order 73 rule 6).
The amendments impose several obligations on the parties involved in representative proceedings. For instance, parties must adhere to the new forms and procedures outlined in the Rules, including the specific details required in applications and consent forms. Additionally, the amendments require the Court to manage notices of intention to opt out of representative proceedings, ensuring that these notices are properly served and considered before any proceedings can commence.
Failure to comply with the requirements set out in these amendments may result in legal consequences. While the Rules themselves do not explicitly state the penalties for non-compliance, breaches of procedural rules in the Federal Court can lead to various consequences, including the dismissal of proceedings, the imposition of costs, and potentially other civil or criminal penalties depending on the nature and severity of the breach. The exact penalties would be determined by the Court in accordance with the Federal Court of Australia Act 1976 and other relevant legislation.