EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 318
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.
The Rules now made come into operation on 30 November 1989. They amend the existing rules of Court consequent upon the repeal of the Conciliation and Arbitration Act 1904 and the commencement of the industrial Relations Act 1988, by omitting or repealing references to the former Act and/or its sections and by substituting where necessary reference to the latter Act and its appropriate sections. A replacement Order 48 has been made for inquiries in relation to an election for an office in an
organisation or in a branch of an organisation, as well as an inquiry into a ballot, under the relevant sections of the Industrial Relations Act. The Order sets out the procedure for the commencement of such proceedings, service of documentation, directions and the issuing of subpoenas. New Rules have also been made relating to proceedings under section 261 of the Industrial Relations Act 1988, that is, an application to the Court relating to the entitlement of an employee to be, or remain, a member of an organisation, and the method of personal service of documentation on an organisation.
Two new Orders, namely 61A - Australian Federal Police Act 1979 and Order 68 - Circuit Layouts Act 1989, have been inserted into the Rules. Order 61A sets out the manner prescribed by the Rules of Court, together with the content of the Notice of Appeal, where an appeal has been made to the Court from a decision of the Federal Police Disciplinary Tribunal. Order 68 provides for the manner of making an application or bringing an action under sections 20 and 25 and Part III of the Circuit Layouts Act 1989, as well as the method of bringing proceedings for equitable remuneration and terms of the doing of an Act, under the relevant sections of the aforementioned Act.
The amendment to rule 4 of Order 7 - Ordinary services how effected, allows for non-personal service of documents by facsimile transmission. The time of such service is as set out in the amendment.
Rule 7 of Order 10A - Conduct of proceedings is amended by deleting a subrule and by renumbering another. Subrule 2 was deleted as it was not consistent with the normal requirements of pleading that the intention to rely upon particular rules of evidence or procedure should be specified, and in addition, subrule 3 (now renumbered as subrule 2) made adequate provision for notice of such intention at the directions hearing.
The amendments to Order 15 relate to Supplementary discovery and the Use of documents. New rule 7A places a continuing obligation on each party to a proceeding in the Court to update discovery by the disclosure of supplementary documents not previously discovered. New rule 18A sets out the effect on an order or undertaking not to use a document for any purpose other than those of the proceedings in which it is disclosed, where the document has been used in the Court in such a way as to disclose its contents. In brief, such an order or undertaking would cease to apply unless the Court otherwise orders.
The purpose of amending rule 1 of Order 17 - Inspection of property, is to ensure that parties to proceedings can obtain access to data which is stored/recorded, mechanically or electronically.
New rule 1A in Order 24 - Receipt of evidence by telephone or video link, makes it clear that the Court in its discretion may take evidence by way of telephone or video link.
There was previously no express mechanism for a Registrar to refer a questionable subpoena to a Judge and no expression of the ground upon which the Registrar could do so. The insertion of a new subrule into rule 6 of Order 27 - Issue of subpoenas, clarifies that position.
The two amendments to order 52 relate to Cross-appeals and the Preparation of Appeal Papers. The new paragraph in rule 22 makes it clear that the respondent who proposes to contend that some matter of fact or law has been erroneously decided against him/her must not only give notice of this contention to the appellant but must also file and serve that notice on the appellant. Rule 28 which concerns the preparation of appeal papers is varied by the insertion of a new paragraph which makes provision for the inclusion of the notice of contention in the appeal papers. The addition of the notice of contention in the appeal papers meant that one of the existing paragraphs had to be re-numbered and that is provided for by the rule change.
The previous paragraph 15(2)(f) of Order 53 which dealt with directions hearings in relation to appeals under the Administrative Appeals Act 1975 provided that the Court or a Judge could order that the appeal be heard before a Full Court. The source of the power for that rule was unclear, since a single Judge, other than the Chief Justice, is not given the power either under the Federal Court Act or the Administrative Appeals Tribunal Act to order that appeals under the latter Act be heard before a Full Court. The new paragraph states that in such instances the matter may be referred to the Chief Justice. This power is discretionary and would only be exercised where the Judge at the directions hearing considered such a reference to be appropriate.
The amendment to rule 7 of Order 62 - Order for taxation when not required, is simply to correct a misprint which occurred in an earlier amendment to the Rules.
The First Schedule to the Federal Court Rules is also amended by the insertion of two new forms, the substitution of a further form and the amendment of two existing forms. The amended and substituted forms were consequent upon the changes to the Rules occasioned by the commencement of the Industrial Relations Act 1988, whilst new Forms 64 and 65 relate to applications to the Court pursuant to Order 68 - Circuit Layouts Act 1989.