Federal Magistrates Court Amendment Rules 2012 (No. 1)1
Select Legislative Instrument 2012 No. 94
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.
Dated 14 May 2012
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Federal Magistrates
Richard Foster CEO
Chief Executive Officer
Contents
1 Name of Rules 3
2 Commencement 3
3 Amendment of Federal Magistrates Court Rules 2001 3
Schedule 1 Amendments commencing on day after registration 4
Schedule 2 Amendments commencing on 7 June 2012 26
1 Name of Rules
These Rules are the Federal Magistrates Court Amendment Rules 2012 (No. 1).
2 Commencement
These Rules commence as follows:
(a) on the day after they are registered—rules 1 to 3 and Schedule 1;
(b) on 7 June 2012—Schedule 2.
3 Amendment of Federal Magistrates Court Rules 2001
Schedules 1 and 2 amend the Federal Magistrates Court Rules 2001.
Schedule 1 Amendments commencing on day after registration
(rule 3)
[1] Subrule 2.08 (4)
omit
Rule 6 of Order 46
insert
Rule 2.32
[2] After subrule 6.01 (3)
insert
(4) If the party is represented by a lawyer who has general authority to act for the party, the address for service for the party must be the address of the lawyer.
(5) If the party is represented by a lawyer and the notice for service provides the lawyer’s email address, the party agrees for the party’s lawyer to receive documents at the lawyer’s email address.
(6) If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address.
Note The parties may agree on how service is to be carried out. For example, the parties may agree that service be at a fax number.
[3] Subparagraph 6.11 (1) (d) (ii)
omit
address.
insert
address; or
[4] After paragraph 6.11 (1) (d)
insert
(e) if the person has filed a notice authorising service by email—by sending the document to the email address; or
(f) if the party is represented by a lawyer, and the address for service provides the lawyer’s email address—by sending it to the lawyer’s email address.
[5] Rule 6.12
substitute
6.12 When service is effected
A document is taken to have been served:
(a) if it was posted to an address in Australia—on the day when the document would be delivered in the ordinary course of the post; or
(b) if it was posted by airmail to an address outside Australia—on the twenty‑eighth day after posting; or
(c) if the document was sent by fax—on the next business day after the document was sent; or
(d) if the document was sent by electronic communication—on the next business day after the document was sent.
[6] Part 12
substitute
Part 12 Court referral for legal assistance
12.01 Definitions for Part 12
In this Part:
assisted party means a party receiving legal assistance under this Part.
legal assistance means any of the following:
(a) advice in relation to the proceeding;
(b) representation at a directions, interlocutory or final hearing or mediation;
(c) drafting or settling documents to be used in the proceeding;
(d) representation generally in the conduct of the proceeding.
Pro Bono lawyer means a lawyer who has agreed to accept a referral under rule 12.02 to provide pro bono legal assistance.
12.02 Referral for legal assistance
(1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with the approved form.
(2) When making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
(3) The referral certificate may state the kind of legal assistance for which the party has been referred.
(4) The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.
12.03 A party has no right to apply for a referral
A party is not entitled to apply to the Court for a referral under rule 12.02.
12.04 Acceptance of referral certificate and provision of legal assistance
If a lawyer agrees to accept a referral under rule 12.02, the lawyer must provide legal assistance in accordance with the referral certificate.
12.05 Ceasing to provide legal assistance
If a Pro Bono lawyer no longer wishes to provide legal assistance, the lawyer must withdraw in accordance with rule 9.03.
[7] Rule 15.05
omit
[8] Subrule 20.00A (1), table, item 32
substitute
32
rule 29.04
To give a direction for the enforcement or execution of an order
32A
rule 29.11
To make an order, issue a writ or take another step to enforce a judgment or order
[9] Subrule 20.00A (1), table, after item 55
insert
Registration Act
56
section 113
To make orders for the recovery of debts
[10] Paragraph 21.02 (2) (c)
omit
Order 62
insert
Part 40
[11] Paragraph 21.10 (a)
omit
Part 1
insert
Parts 1 and 2
[12] Rule 21.16
omit
Part 1
insert
Parts 1 and 2
[13] Subrule 25A.07 (2)
substitute
(2) An application or appeal must be served at least 28 days before the hearing date, except an application for:
(a) an order staying a decision; or
(b) an order staying or otherwise affecting the operation or implementation of the Assessment Act or the Registration Act; or
(c) an urgent order for child maintenance.
[14] Paragraph 25B.08 (b)
substitute
(b) for a Part VIIIA financial agreement under the Family Law Act—under paragraph 90KA (c) of that Act; or
(c) for a Part VIIIAB financial agreement under the Family Law Act—under paragraph 90UN (c) of that Act.
[15] After paragraph 25B.13 (b)
insert
(ba) an order for payment under rule 25B.09;
[16] Subrule 25B.14 (2)
omit
paragraph (1) (e),
insert
paragraph (1) (d),
[17] Part 29
substitute
Part 29 Enforcement
29.01 Definition for Part 29
In this Part:
without notice means without serving or advising another party or other person of an application to be made to the Court.
29.02 Application without notice for directions
A party or an interested person may, without notice, apply to the Court for directions about the enforcement or execution of an order.
29.03 Condition precedent not fulfilled
(1) If an order is made in favour of a party subject to the fulfilment of a condition, the party cannot enforce the order until the condition is fulfilled.
(2) However, the party may apply to the Court for an order for the revocation of the condition or the variation of the order.
29.04 Application for stay of judgment or order
A party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.
Note The party may rely on events occurring after the judgment or order takes effect.
29.05 Failure to comply with Court order
(1) A person who is ordered by the Court to do, or not to do, an act or thing, must comply with the order.
(2) A person who undertakes to the Court to do, or not to do, an act or thing, must comply with that undertaking.
Note If a person does not comply with an order of the Court, the Registrar may bring the person’s failure, neglect or disobedience to the attention of the Court.
29.06 Failure to attend Court in response to subpoena or order
(1) If the Court has issued a subpoena or made an order that a person attend Court:
(a) to give evidence; or
(b) to produce any document or thing; or
(c) to answer a charge of contempt; or
(d) for any other reason;
and the person fails to attend, a party may apply to the Court for an order that a warrant, in accordance with the approved form, issue to the Sheriff, or another person named in the warrant:
(e) for the person’s arrest and detention in custody until the person is brought before the Court; and
(f) for the production of the person before the Court.
(2) Subrule (1) does not limit the power of the court to punish for contempt.
(3) This rule does not apply to an order or direction of the Court requiring a party to comply with these Rules.
29.07 Endorsement on order
If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a) for an order that requires the person to do an act or thing—the person neglects or refuses to do the act or thing within the time specified in the order; or
(b) for an order that requires the person not to do an act or thing—the person disobeys the order.
29.08 Service of order
(1) An order mentioned in rule 29.07 must be served personally on the person who is bound to do, or not to do, the act or thing:
(a) within the time mentioned in the order; or
(b) if no time is mentioned—within a time that would allow the person to comply with the order.
(2) However, if the person:
(a) was present when the judgment was pronounced or the order was made; or
(b) was notified of the terms of the order orally, by telephone or electronically;
the person is taken to have been served with the order at the time the person heard or was notified of the order.
29.09 Application where person fails to comply with order
(1) If a person fails to comply with an order that the person is bound to comply with, a party may apply to the Court for the following orders:
(a) the committal of the person;
(b) the sequestration of the person’s property.
(2) If the person in default is a corporation or an organisation, a party may apply to the Court for an order:
(a) for the committal of an officer of the corporation or organisation; or
(b) for the sequestration of the property of the corporation or organisation.
(3) However, no application may be made for an order under paragraph (2) (a) unless the officer:
(a) has been served with the order in accordance with subrule 29.08 (1), and the order carries the endorsement in rule 29.07; or
(b) was present when the order was made or was notified of the order in accordance with subrule 29.08 (2).
(4) This rule applies if the Court has made:
(a) an injunction; or
(b) an order in the nature of an injunction; or
(c) an order in the nature of mandamus or prohibition.
Note Contempt is dealt with in Part 19.
29.10 Substituted performance
(1) If a person (the first person) is bound, but neglects or refuses, to do an act, a party may apply to the Court for an order:
(a) that the act be done by another person, appointed by the Court; and
(b) that the first person pay the costs and expenses incurred by the making of the order.
(2) Subrule (1) does not limit:
(a) the power of the Court to punish for contempt; or
(b) any other mode of enforcement of the judgment or order available to the party.
29.11 Execution generally
(1) A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order has been made, as if it were a judgment or order of that Supreme Court.
(2) An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.
(3) A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order has been made.
Note It is not necessary to adopt different modes of procedure and forms of process in each State or Territory.
29.12 Stay of execution
A party may apply to the Court for a stay of execution of a judgment or order.
[18] Parts 42 and 43
substitute
Part 42 Judicial review
Note See Part 44 in relation to jurisdiction under section 476 of the Migration Act 1958.
42.01 Application of Part
(1) This Part applies to a proceeding under the AD(JR) Act.
Note AD(JR) Act is defined in the Dictionary.
(2) Chapters 1 and 3 apply, so far as they are relevant and not inconsistent with this Chapter, to a proceeding under the AD(JR) Act.
42.02 Application for order of review
(1) A person who wants to apply for an order of review under subsection 11 (1) of the AD(JR) Act must file an originating application, in accordance with the approved form.
(2) If the grounds of the application include an allegation of fraud or bad faith, the originating application must include details of the alleged fraud or bad faith.
42.03 Application for extension of time
(1) A person who wants to apply for an extension of time within which to lodge an application for an order of review under paragraph 11 (1) (c) of the AD(JR) Act must file an application for an extension of time, in accordance with the approved form.
(2) An application for an extension of time must be accompanied by:
(a) an affidavit stating:
(i) briefly, but specifically, the facts on which the application relies; and
(ii) why the application was not filed within time; and
(b) a draft application that complies with rule 42.02.
42.04 Documents to be filed and served
(1) An applicant must, at the time of filing an application or as soon as practicable thereafter, file the following documents if they are in the applicant’s possession:
(a) a statement of the terms of the decision that is the subject of the application; or
(b) a statement with respect to the decision:
(i) given to the applicant under section 13 of the AD(JR) Act or section 28 of the AAT Act; or
(ii) given by or on behalf of the person who made the decision, purporting to set out findings of facts, or a reference to the evidence or other material on which those findings were based or the reasons for making the decision.
(2) A copy of each document must be served, within 5 days after filing, on each other party.
Note AAT Act is defined in the Dictionary.
42.05 Service
A party to an application may apply to the Court for an order that:
(a) the application be served on the Attorney‑General; or
(b) the application be served on a specified person or class of persons in a specified manner.
42.06 Notice of objection to competency
(1) A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:
(a) in accordance with the approved form; and
(b) that briefly, but specifically, states the grounds of the objection.
(2) The applicant carries the burden of establishing the competency of an application.
(3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.
(4) If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the application.
(5) If the Court decides that an application is not competent, the application is dismissed.
Part 43 Administrative Appeals Tribunal
Note See Part 44 in relation to jurisdiction under section 476 of the Migration Act 1958.
43.01 Definitions for Part 43
In this Part:
Registrar of the Tribunal means:
(a) the Registrar of the Tribunal; or
(b) the District Registrar or Deputy Registrar in the Registry in which the matter before the Tribunal is pending; or
(c) any other officer for the time being performing the duties of the Registrar, a District Registrar or a Deputy Registrar.
Tribunal means the Administrative Appeals Tribunal.
without notice means without serving or advising another party or other person of an application to be made to the Court.
43.02 Application of Part
(1) This Part applies to an appeal from the Tribunal transferred to the Court from the Federal Court.
(2) Chapters 1 and 3 apply, so far as they are relevant and not inconsistent with this Chapter, to an appeal from the Tribunal.
43.03 Form of application for stay of Tribunal decision
A person who wants to make an application for an order under section 44A of the AAT Act for an order staying or otherwise affecting the operation or implementation of a Tribunal decision:
(a) must file an application in a case; and
(b) may, in an urgent case, make the application without notice.
43.04 Notice of cross‑appeal
(1) The rules of this Part apply to a cross-appeal as if it were an appeal.
(2) A respondent who wants to appeal from a decision, or a part of a decision, from which the applicant has appealed, must file a notice of cross‑appeal, in accordance with the approved form.
Note The notice of cross-appeal must be filed within the time mentioned in subsection 44 (2A) of the AAT Act.
(3) The notice of cross‑appeal must state the following:
(a) the part of the decision the respondent cross‑appeals from or contends should be varied;
(b) the precise question or questions of law to be raised on the cross‑appeal;
(c) any findings of fact that the Court is asked to make;
(d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought;
(e) briefly, but specifically, the grounds relied on in support of the relief or variation sought.
Note The Court can only make findings of fact in limited circumstances—see subsection 44 (7) of the AAT Act.
(4) The notice of cross-appeal must be filed within 21 days after the respondent was served with the notice of appeal.
(5) The respondent must serve a copy of the notice of cross‑appeal on:
(a) each other party to the proceeding; and
(b) the Registrar of the Tribunal.
43.05 Notice of contention
If a respondent does not want to cross‑appeal from a decision of the Tribunal, but contends that the decision should be affirmed on grounds other than those relied on by the Tribunal, the respondent must, within 21 days after the notice of appeal is served, file a notice of contention, in accordance with the approved form.
43.06 Directions
(1) At the first court date, the Court or a Registrar must give directions for the conduct of the proceeding.
(2) Without limiting subrule (1), the Court or a Registrar may:
(a) determine the documents and matters to be included in the appeal papers and the order of inclusion; and
(b) determine what documents and matters were before the Tribunal; and
(c) settle the index; and
(d) determine the number of copies of the appeal papers required; and
(e) direct the joinder of parties; and
(f) direct the place and time of hearing.
43.07 Preparation of appeal papers
(1) The appeal papers must be prepared to the satisfaction of the Registrar.
(2) The title page of the appeal papers must state:
(a) the title of the proceedings; and
(b) the division of the Tribunal from which the appeal is brought; and
(c) the names of members constituting the Tribunal; and
(d) the lawyer and address for service for each party; and
(e) if a party is not represented by a lawyer—the address for service of the party.
(3) Following the title page, there must be an index of the documents comprising the papers that states the date and page number of each document.
(4) The papers must be paginated.
(5) The papers must include all documents necessary to enable the questions of law raised by the appeal to be determined.
(6) A copy of the papers must be filed with a certificate by each party or each party’s lawyer stating that it has been examined and is correct.
(7) The papers must be clear and legible and securely fastened.
(8) The applicant must file the number of copies required by the Registrar.
[19] Subrules 44.15 (1) and (2)
omit
Part 2 of Schedule 1.
insert
Part 3 of Schedule 1.
[20] Schedule 1
substitute
Schedule 1 Costs
(rules 21.10, 21.16 and 44.15)
Note The amounts in this Schedule include GST.
Part 1 Family law and general federal law proceedings
Work performed
Family law amount
General federal law amount
Stage 1: Initiating or opposing application up to completion of first court day
Lump sum
Plus: Court attendance
$1 942.00
Daily hearing fee
$2 593.00
Daily hearing fee
Stage 1A: Initiating or opposing application which includes interim orders (other than procedural orders) up to completion of first court day
Lump sum
Plus: Court attendance
$2 428.00 Daily hearing fee
$3 244.00
Daily hearing fee
Stage 2: Interim or summary hearing—as a discrete event
(This stage applies to an interim application, or a summary proceeding of a type not otherwise addressed in this fee structure. It does not include the stage 1 or 1A component)
Lump sum
Plus: Court attendance
$1 617.00
Daily hearing fee
$1 617.00
Daily hearing fee
Stage 3: Up to and including conciliation conference
Lump sum
$1 617.00
Not applicable
Stage 4: Dispute resolution litigation intervention
Lump sum
$1 617.00
$2 720.00
Stage 5: Preparation for final hearing
For a 1 day matter:
Lump sum
$4 138.00
$5 831.00
For a 2 day matter:
Lump sum
Preparation for each additional hearing day
$5 131.00
$1 098.00
$8 761.00
$1 843.00
Stage 6: Final hearing costs for solicitor
Attendance at hearing to take judgement and explain orders
$264.00
Daily hearing fee
$264.00
Daily hearing fee
Additional events
Stage 7: Application for family law location, recovery or enforcement of an order (other than an application for enforcement by a Registrar under stage 8)
(This stage applies to an application where there is an existing court order)
Lump sum
Plus: Court attendance
$822.00
Daily hearing fee
Not applicable
Stage 8: Application for enforcement by a Registrar
Enforcement Warrant under Rule 25B.22
$543.40
Not applicable
Third Party Debt Notice under Rule 25B.40
$543.40
Not applicable
Advocacy loading
Increase relevant daily hearing fee
50%
50%
Daily hearing fee
Short mention
Half‑day hearing
Full‑day hearing
$264.00
$971.00
$1 942.00
$264.00
$971.00
$1 942.00
Disbursements
Court fees and other fees and payments, to the extent that they have been reasonably incurred
Photocopying per page
$0.67
$0.67
Agents fees/travelling costs
Increase lump sum fee by
$546.00
$546.00
2 hours travel is the benchmark. There is no entitlement to an increase in lump sum for under 2 hours travel time
Part 2 Child support proceedings
Division 1 Application for enforcement order in relation to child support proceedings
Work performed
Amount
Stage 1: Initiating or opposing application up to completion of first court day
(This stage includes final hearing of up to 1 day if it is held on the first court date)
Lump sum
Plus: Court attendance
$2 100.00
Daily hearing fee
Stage 2: Interim or summary hearing—as a discrete event
(This stage applies to an interim application, or a summary proceeding of a type not otherwise addressed in this fee structure such as an application for an order that a proceeding be stayed. It does not include the stage 1 component)
Lump sum
Plus: Court attendance
$1 559.00
Daily hearing fee
Stage 3: Preparation of final hearing for a matter of 2 or more days in duration
Preparation for second and each additional hearing day: per day
$1 059.00
Stage 4: Final hearing costs for solicitor
Attendance at hearing to take judgment and explain orders
$255.00
Daily hearing fee
Additional events
Advocacy loading
Increase relevant daily hearing fee
50%
Daily hearing fee
Short mention
Half‑day hearing
Full‑day hearing
$255.00
$936.00
$1 873.00
Disbursements
Court fees and other fees and payments, to the extent that they have been reasonably incurred
Photocopying for documents containing less than 10 pages, per page
$0.67
Photocopying for documents containing 10 or more pages:
First 10 pages, per page
$0.67
Each additional page, per page
$0.20
Agents fees/travelling costs
Increase lump sum fee by
$527.00
2 hours travel is the benchmark. There is no entitlement to an increase in lump sum for under 2 hours travel time
Division 2 Appeal of SSAT or Child Support Registrar decision
For an appeal of a decision of the SSAT or the Child Support Registrar, the costs are:
(a) if the proceeding is concluded at or before the first court date for the proceeding—$1 250; or
(b) if the proceeding is concluded after the first court date for the proceeding and at least 4 weeks before the final hearing for the proceeding—$3 123; or
(c) if the proceeding is concluded at a final hearing—$6 240.00.
Part 3 Migration proceedings
1 Proceedings that are concluded
For subrule 44.15 (1), the costs are:
(a) if the proceeding is concluded at or before the first court date for the proceeding—$1 296; or
(b) if the proceeding is concluded after the first court date for the proceeding and at or before the hearing under rule 44.12 or other interlocutory hearing—$3 239; or
(c) if the proceeding is concluded at a final hearing—$6 471.
2 Proceedings that are discontinued
For subrule 44.15 (2), the costs are:
(a) if the notice of discontinuance is filed and served at least 14 days before the first court date for the proceeding—$645; or
(b) if the notice of discontinuance is filed and served within the period beginning 14 days before the first court date for the proceeding and ending 15 days before the hearing under rule 44.12 or other interlocutory hearing—$1 617; or
(c) if the notice of discontinuance is filed and served within the period beginning 14 days before the hearing under rule 44.12 or other interlocutory hearing and ending 15 days before the final hearing—$3 239; or
(d) in any other case—$4 530.
[21] Schedule 3, Part 2
substitute
Part 2 Federal Court Rules
· Rules 1.41 and 1.42
· Rules 2.41 to 2.43
· Rules 5.22 to 5.24
· Rules 10.41 to 10.52
· Division 10.6
· Rule 15.10
· Rule 16.01
· Paragraphs 16.02 (1) (a), (b) and (d)
· Subrules 16.02 (3) and (5)
· Rules 16.03 to 16.12
· Rule 16.21
· Rules 16.31 to 16.33
· Rules 16.41 to 16.45
· Rule 25.01 to 25.06
· Rules 25.10 to 25.12
· Rule 25.14
· Rule 30.29 to 30.33
· Divisions 34.2 and 34.3
· Rules 39.01 to 39.03
· Rule 39.06
· Rule 39.11
· Rule 39.21
· Division 42.3.
[22] Dictionary
insert
AAT Act means the Administrative Appeals Tribunal Act 1975.
[23] Dictionary, definition of Administrative Appeals Tribunal Act
omit
[24] Dictionary, definition of Administrative Decisions (Judicial Review) Act
omit
25] Dictionary
insert
AD(JR) Act means the Administrative Decisions (Judicial Review) Act 1977.
[26] Dictionary, definition of Family Law Rules
omit
Act.
insert
Act, as amended from time to time.
[27] Dictionary, definition of Federal Court Rules
substitute
Federal Court Rules means the Federal Court Rules 2011 made under the Federal Court of Australia Act 1976, as amended from time to time.
Schedule 2 Amendments commencing on 7 June 2012
(rule 3)
[1] Subrule 13.04A (3)
substitute
(2A) Each party must also advise the Court, apart from any allegations made during the proceedings:
(a) whether the party considers that the child concerned has been, or is at risk of being, subjected or exposed to abuse, neglect or family violence; and
(b) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence.
(3) If an allegation mentioned in subrule (2) has been made, or a party advises the Court of any concerns mentioned in subrule (2A), the parties must explain to the Court how the parenting order attempts to deal with the allegation.
[2] Subrule 20.00A (1), table, item 14
omit
[3] Subrule 20.00A (1), table, after item 17
insert
17A
subsection 67ZBB (2)
To make procedural orders for allegations of child abuse or family violence
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.
