Federal Court Rules (Amendment)

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Legislation au F2001B00498 CourtRules Not in force Legislative Instrument

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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.

Overview

The Federal Court of Australia Act 1976 was enacted to establish the Federal Court of Australia and to provide for its functions, powers, and procedures. This Act was introduced to address the need for a unified federal court system to handle matters of national importance and complex commercial disputes. The Parliament of Australia, as the enacting body, intended to streamline judicial processes and ensure efficient and effective resolution of federal matters. The policy objective was to create a specialised court that could deal with matters previously handled by various other courts and tribunals, thereby reducing fragmentation and enhancing the uniformity of federal law. The Act empowers the Judges of the Federal Court, including the Chief Justice, to make Rules of Court, ensuring that these rules are not inconsistent with the Act and provide for the practice and procedure to be followed in the Court and its registries. These Rules were subsequently amended to reflect changes in other legislative contexts, such as the repeal of the Conciliation and Arbitration Act 1904 and the commencement of the Industrial Relations Act 1988, ensuring that the Court's procedures remain current and relevant.

Scope and Application

The Federal Court Rules, as amended by Statutory Rules 1989 No. 318, apply to all persons and entities involved in proceedings before the Federal Court of Australia, including the Chief Justice and other judges of the Court, as well as parties to litigation, their legal representatives, and any other individuals or entities whose conduct or transactions are subject to the jurisdiction of the Court. These rules govern the practice and procedure to be followed in the Court and its registries, and are intended to be consistent with the Federal Court of Australia Act 1976. The rules have a national jurisdictional reach, as they apply to the entire Commonwealth of Australia. There are no stated exclusions, exemptions, or thresholds in the rules themselves, although some specific orders within the rules may have particular exclusions or thresholds that apply. The Judges of the Court have the authority to extend or restrict the application of the rules through subordinate instruments, such as further rules or directions, although these must also be consistent with the Federal Court of Australia Act 1976.

Key Provisions

The statutory rules, issued under the authority of the Judges of the Federal Court of Australia, primarily amend the Federal Court Rules of 1979 to reflect changes in legislation, such as the repeal of the Conciliation and Arbitration Act 1904 and the introduction of the Industrial Relations Act 1988. These amendments involve omitting or repealing references to the former Act and substituting them with references to the latter (rule 4). A new Order 48 has been introduced for inquiries related to elections or ballots under the Industrial Relations Act, detailing procedures for commencement, service, directions, and subpoenas (rule 5). Additionally, new rules have been established for applications concerning employee membership in an organisation (rule 6), and new Orders 61A and 68 have been inserted to address appeals from the Federal Police Disciplinary Tribunal and actions under the Circuit Layouts Act 1989, respectively (rules 7 and 8). Other amendments include allowing non-personal service of documents by facsimile (rule 9), modifying the conduct of proceedings to ensure proper notice of evidence or procedure reliance (rule 10), and updating discovery obligations to include supplementary documents (rule 11). The obligations imposed by these rules require parties involved in Federal Court proceedings to adhere to specific practices and procedures, including the timely updating of discovery documents, the proper service of documents via facsimile, and the notification of respondents to appellants when contesting a matter of fact or law in appeals (rules 4, 9, and 22). Additionally, the rules mandate that orders or undertakings restricting the use of documents in court cease unless otherwise directed by the Court (rule 18A). Furthermore, the rules specify that the Chief Justice may be referred to for decisions regarding Full Court hearings of appeals under the Administrative Appeals Act 1975 (rule 29). Parties must also comply with the procedures for subpoenas, including the potential referral of questionable subpoenas to a Judge by a Registrar (rule 30). These rules also facilitate the receipt of evidence via telephone or video link at the Court's discretion (rule 24). Failure to comply with the amended Federal Court Rules may result in various consequences, including the potential for interlocutory applications or sanctions by the Court for non-compliance with discovery obligations (rule 11). Additionally, misuse of documents disclosed in court proceedings can lead to the nullification of orders or undertakings restricting their use (rule 18A). The rules also allow for the imposition of fines or other penalties for non-compliance with service procedures or for issuing improper subpoenas (rule 30). Specific penalties are not detailed in the explanatory statement, but they would generally align with the penalties applicable under the Federal Court Act or other relevant legislation. These amendments aim to ensure that proceedings in the Federal Court are conducted efficiently and in accordance with current legal frameworks.

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