Federal Court Amendment Rules 2007 (No. 2)1
Select Legislative Instrument 2007 No. 367
We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.
Dated 20 December 2007
M.E.J. BLACK C.J.
J.E.J. SPENDER J.
P.R.A. GRAY J.
D.M. RYAN J
R.S. FRENCH J.
T.J. HIGGINS J.
P.C. HEEREY J.
M.F. MOORE J.
C.M. BRANSON J.
K.E. LINDGREN J.
B.J.M. TAMBERLIN J.
R. SACKVILLE J.
P.D. FINN J.
S.R. MARSHALL J.
A.M. NORTH J.
R.N. MADGWICK J.
J.R. MANSFIELD J.
A.H. GOLDBERG J.
A.R. EMMETT J.
M.S. WEINBERG J.
J.A. DOWSETT J.
S.C. KENNY J.
R.V. GYLES J.
M.A. STONE J.
P.M. JACOBSON J.
A.C. BENNETT J.
B.T. LANDER J.
A.N. SIOPIS J.
R.F. EDMONDS J.
P.R. GRAHAM J.
A.P. GREENWOOD J.
S.D. RARES J.
B. COLLIER J.
D.A. COWDROY J.
A.J. BESANKO J.
C.N. JESSUP J.
R.R.S. TRACEY J.
R.J. BUCHANAN J.
J. GILMOUR J.
M.M. GORDON J.
J.A. LOGAN J.
G.A. FLICK J.
N.W. McKERRACHER J.
J.E. REEVES J.
Judges of the Federal
Court of Australia
W.G. SODEN
Registrar
1 Name of Rules
These Rules are the Federal Court Amendment Rules 2007 (No. 2).
2 Commencement
These Rules commence on the day after they are registered.
3 Amendment of Federal Court Rules
Schedule 1 amends the Federal Court Rules.
Schedule 1 Amendments
(rule 3)
[1] Order 4, rule 12
substitute
12 Alteration of hearing date
If a date for hearing has been obtained or made, the Court may:
(a) alter the date for hearing to a later date; and
(b) authorise the legal practitioner for a party to make corresponding alterations in any copy for service of any application or notice.
[2] Order 14, subrules 2 (3), (4), (5) and (6)
substitute
(3) If the deponent of an affidavit is illiterate, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the affidavit was read in his or her presence to the deponent.
(4) Subject to subrule (5), if the deponent of an affidavit is blind, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the affidavit was read in his or her presence to the deponent.
(5) Subrule (4) does not apply if the deponent:
(a) has read the affidavit using a computer with a screen reader, text‑to‑speech software or a braille display; and
(b) includes in the affidavit a statement that:
(i) he or she is blind; and
(ii) he or she has read the affidavit; and
(iii) specifies the means by which it was read.
(6) If the deponent of an affidavit is incapable of signing the affidavit because of a physical disability, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that the deponent signified that he or she swore or affirmed the affidavit.
(7) An affidavit made by a deponent who is illiterate may be used only if:
(a) the affidavit includes a certificate in accordance with subrule (3); or
(b) the Court is satisfied that the affidavit was read to the deponent.
(8) An affidavit made by a deponent who is blind may be used only if:
(a) the affidavit includes a certificate in accordance with subrule (4); or
(b) the affidavit includes a statement in accordance with subrule (5); or
(c) the Court is satisfied that the affidavit was read to the deponent.
(9) Each page of an affidavit must be signed by:
(a) the deponent of the affidavit, unless the deponent is incapable of signing the affidavit because of a physical disability; and
(b) the person before whom the affidavit is sworn or affirmed.
[3] Order 33, subrule 14 (1)
omit
pursuant to Order 24, shall
insert
under Order 24, must
[4] Order 33, subrules 14 (2) and (3)
omit
shall
insert
must
[5] Order 33, subrule 15 (1)
substitute
(1) If a party to a proceeding before the Court is in lawful custody, the Court may:
(a) make an order requiring production of the party; and
(b) make an order in relation to the continuing custody of the party that the Court considers appropriate.
[6] Order 52, rules 26, 27 and 28
substitute
26 Content of appeal papers
The appeal papers must:
(a) consist of the documents mentioned in the following table, in the order that they appear in the table; and
(b) be divided into Parts A, B and C as shown in the table.
Item
Document
Part A
1
Title page
2
The index to Part A
3
The originating application and pleadings, including each relevant notice of motion (if any)
4
If the court below was hearing an appeal from a tribunal or the board:
(a) the reasons for the decision of the tribunal or board; and
(b) the formal decision of the tribunal or board; and
(c) any notice of appeal to the court below
5
The reasons for the judgment of the court below
6
The sealed orders of the court below
7
The notice of appeal
8
Any notice of cross‑appeal or any notice of contention
9
Any submitting appearance
10
The certificate of correctness mentioned in paragraph 28C (1) (a)
Part B
11
Title page
12
The index to Part B
13
The transcript of relevant oral evidence
14
Each additional relevant transcript (if any)
Part C
15
Title page
16
The index to Part C
17
A chronological list of all documents received in evidence, showing the date and page number of each document
18
Each affidavit containing relevant evidence, followed by each document exhibited or annexed to the affidavit, in the order in which the documents were lettered or numbered in the affidavit
19
Each relevant exhibit, other than an exhibit mentioned in item 18, in the order in which the exhibits were lettered or numbered as exhibits in the court below
20
If there is a list of exhibits in the transcript — that list
21
Relevant testimony received in evidence that was taken on commission or before an examiner
22
Each relevant interrogatory and answer, to the extent that those documents were received in evidence
23
Each relevant affidavit of a document, to the extent that the affidavit was received in evidence
27 Filing and service of draft indexes of appeal papers
At least 7 days before the date appointed for settling the appeal papers, the appellant must file in the Registry, and serve on the respondent, each of the following:
(a) a draft index of each Part of the appeal papers;
(b) a chronological list of all documents received in evidence that the appellant proposes to reproduce in the appeal papers, including documents exhibited or annexed to affidavits.
28 Text of oral judgment or summing up
(1) If a party proposes to include the text of a Judge’s oral judgment or summing up in the appeal papers, the party must:
(a) submit the text to the Judge for correction; and
(b) ask the Registrar for a certificate stating that the party has submitted the text for correction.
(2) The text of a Judge’s oral judgment or summing up may be included in the appeal papers only if the text is accompanied by a certificate mentioned in paragraph (1) (b).
28A Settlement of appeal papers
(1) At the appointment to settle the appeal papers the Registrar must:
(a) settle the appeal papers in accordance with subrule (2); or
(b) refer the appeal papers to the Court or a Judge for settling.
(2) If paragraph (1) (a) applies, the Registrar must:
(a) determine the documents and matters to be included in the appeal papers; and
(b) determine:
(i) the order of inclusion of the appeal papers; and
(ii) any other matters about the preparation of copies of the appeal papers that he or she considers to be appropriate; and
(c) settle the indexes in accordance with rules 26 and 28B; and
(d) determine the number of copies of the appeal papers required; and
(e) obtain an estimate of the duration of the hearing from each party; and
(f) if practicable:
(i) fix a date for a hearing; or
(ii) list the appeal for hearing in appellate sittings of the Court.
28B Preparation of appeal papers
(1) The title page of each Part of the appeal papers must include:
(a) the title of the proceeding, including the title of the court from which the appeal is brought; and
(b) the name and address for service of the legal practitioner for each party.
(2) The index of each Part of the appeal papers must show the date and page number of each document included in that Part.
(3) The numbering of the pages of Parts A and C of the appeal papers must:
(a) be legible and distinct from any other numbering; and
(b) begin with the number 1.
(4) If Part A or C of the appeal papers consists of more than one volume, the page numbers must continue consecutively from one volume to the next volume.
(5) The pages of Part B of the appeal papers must be numbered in accordance with the official transcript page numbers.
(6) The appeal papers need not be in bound and printed form but must be clear and legible and securely fastened.
28C Filing of appeal papers
(1) The appellant must file:
(a) a copy of the appeal papers with a certificate, signed by each party or the party’s legal practitioner, stating that each Part of the appeal papers has been examined and is correct; and
(b) the number of copies of the appeal papers determined by the Registrar under paragraph 28A (2) (d).
(2) The Registrar may refuse to accept appeal papers that do not comply with these Rules.
[7] Order 53, paragraph 15 (2) (c)
substitute
(c) settle the index in accordance with rule 15A;
[8] Order 53, after rule 15
insert
15A Content of appeal papers
The appeal papers must:
(a) consist of the documents mentioned in the following table, in the order that they appear in the table; and
(b) be divided into Parts A, B and C as shown in the table.
Item
Document
Part A
1
Title page
2
The index to Part A
3
The originating application and pleadings, including each relevant notice of motion (if any)
4
The reasons for the decision of the tribunal
5
The formal decision of the tribunal
6
The sealed orders of the tribunal
7
The notice of appeal
8
Any notice of cross‑appeal or any notice of contention
9
Any submitting appearance
10
The certificate of correctness mentioned in paragraph 16 (1) (a)
Part B
11
Title page
12
The index to Part B
13
The transcript of relevant oral evidence
14
Each additional relevant transcript (if any)
Part C
15
Title page
16
The index to Part C
17
A chronological list of all documents received in evidence, including all documents necessary to enable the questions of law raised in the appeal to be determined by the Court, showing the date and page number of each document
18
Each affidavit containing relevant evidence, followed by each document exhibited or annexed to the affidavit, in the order in which the documents were lettered or numbered in the affidavit
19
Each relevant exhibit, other than an exhibit mentioned in item 18, in the order in which the exhibits were lettered or numbered as exhibits in the tribunal
20
If there is a list of exhibits in the transcript — that list
21
Relevant testimony received in evidence that was taken on commission or before an examiner
22
Each relevant interrogatory and answer, to the extent that those documents were received in evidence
23
Each relevant affidavit of a document, to the extent that the affidavit was received in evidence
15B Preparation of appeal papers
(1) The title page of each Part of the appeal papers must include:
(a) the title of the proceeding, including the title of the Tribunal from which the appeal is brought; and
(b) the names of the members constituting the Tribunal; and
(c) the name and address for service of the legal practitioner for each party.
(2) The index of each Part of the appeal papers must show the date and page number of each document included in that Part.
(3) The numbering of the pages of Parts A and C of the appeal papers must:
(a) be legible and distinct from any other numbering; and
(b) begin with the number 1.
(4) If Part A or C of the appeal papers consists of more than one volume, the page numbers must continue consecutively from one volume to the next volume.
(5) The pages of Part B of the appeal papers must be numbered in accordance with the official transcript page numbers.
(6) The appeal papers need not be in bound and printed form but must be clear and legible and securely fastened.
[9] Order 53, rule 16
substitute
16 Filing of appeal papers
(1) The appellant must file:
(a) a copy of the appeal papers with a certificate, signed by each party or the party’s legal practitioner, stating that each Part of the appeal papers has been examined and is correct; and
(b) the number of copies of the appeal papers determined by the Registrar under paragraph 15 (2) (d).
(2) The Registrar may refuse to accept appeal papers that do not comply with these Rules.
[10] Order 62, rule 14
omit
[11] Order 78, subrule 8 (4), including the note
substitute
(4) If the relevant period has ended, the person must apply to the Court to be joined as a party.
(4A) An application under subrule (4) must:
(a) be in writing; and
(b) set out:
(i) how the person’s interests may be affected by a determination in the proceeding; and
(ii) why it is in the interests of justice that the person be joined as a party to the proceeding.
Note The Court may at any time join any person as a party to a proceeding in relation to a main application if the Court is satisfied that the person’s interests may be affected by a determination in the proceeding and it is in the interests of justice to do so — see subsection 84 (5) of the Native Title Act.
[12] Order 78, subrule 8 (5)
omit
seeking
insert
applying for
[13] Order 78, subrule 12 (1)
omit
subsection 190D (2)
insert
subsection 190F (1)
[14] Order 78, rule 15
substitute
15 Application for payment of amount secured by bank guarantee
(1) This rule applies to an application to the Court for a direction as to payment of an amount secured by a bank guarantee in accordance with a determination or declaration mentioned in subsection 52 (1) of the Native Title Act.
Note See items 5, 8 and 9 of the table in subsection 52 (2), and subsection 52 (3), of the Native Title Act.
(2) If the applicant believes another person has an interest in the Court’s direction, the applicant must name the person as a respondent in the application.
[15] Order 78, after Division 3
insert
Division 3A Referral to Court of questions under section 136DA of the Native Title Act
20A Referral of questions about whether a party should cease to be a party
(1) A referral under section 136DA of the Native Title Act must:
(a) be in accordance with Form 166A; and
(b) state the facts giving rise to the referral concisely; and
(c) be accompanied by each document that is necessary to enable the Court to consider the question raised by the referral.
(2) The Court may draw from a document mentioned in paragraph (1) (c) any inference of fact that the Court considers appropriate.
20B Preparation of referral
The referral must be:
(a) settled by the relevant presiding member of the NNTT; and
(b) provided by the NNTT to each of the following:
(i) the Registrar;
(ii) the party to whom the referral relates;
(iii) the applicant to the main application;
(iv) each State and Territory that has jurisdiction over the area to which the main application relates.
20C Setting down for hearing
The Registrar must:
(a) set down the proceeding for a directions hearing; and
(b) notify each of the following of the date appointed for the directions hearing:
(i) the NNTT;
(ii) each party to whom the referral was provided under rule 20B.
[16] Order 78, Division 4, note
substitute
Note See also Division 1B of Part 4 and Division 4A of Part 6 of the Native Title Act.
[17] Order 78, after rule 21
insert
21A Report about breaches of good faith requirement
(1) A report to the Court under subsection 136GA (4) of the Native Title Act that a party or the party’s representative did not act or is not acting in good faith in relation to the conduct of a mediation must:
(a) be in writing; and
(b) describe the conduct of the party or the party’s representative that is the subject of the report; and
(c) refer to the evidence of the conduct mentioned in paragraph (b); and
(d) give reasons why the conduct is considered to be a failure to act in good faith.
Note If the presiding member of the NNTT considers that a party or the party’s representative did not act or is not acting in good faith in relation to the conduct of a mediation, the presiding member may report the failure to the Court — see subsections 136GA (4) and (5) of the Native Title Act.
(2) The report must be provided to the Registrar in a sealed envelope that is marked ‘confidential’.
(3) The Registrar must provide the report to the Court only if the presiding member of the NNTT or a party to the main application seeks to rely on the report.
[18] Order 78, paragraph 23 (b)
substitute
(b) an appeal to the Court under subsection 169 (2) of that Act on a question of law in relation to a subsection 24DJ (1) objection application.
[19] Order 78, after rule 47
insert
48 Appearance by NNTT
(1) A person may appear on behalf of the NNTT only if authorised by the President of the NNTT to do so.
Note See also section 86BA of the Native Title Act.
(2) A person appearing on behalf of the NNTT at a hearing is not required to file and serve a notice of appearance.
(3) A person appearing on behalf of the NNTT at a hearing must, at least 5 days before the hearing, file in the Registry, and serve on each party to the proceeding, a written notice that includes:
(a) the person’s name; and
(b) the office the person holds in the NNTT; and
(c) the person’s address, telephone number, fax number and email address (if any); and
(d) a summary of the submissions that the person proposes to make on behalf of the NNTT.
[20] Order 81, paragraph 6 (b)
substitute
(b) a copy of the claim mentioned in paragraph 5 (2) (a).
[21] Schedule 1, Form 54
substitute
Form 54 Application for leave to appeal
(Order 52, rule 4)
IN THE FEDERAL COURT OF AUSTRALIA
(location of registry) REGISTRY No. of 20 .
A.B. Applicant
C.D. Respondent
APPLICATION FOR LEAVE TO APPEAL
1. The applicant applies for leave to appeal from the judgment of (court or Judge) given on (date) at (place).
2. Leave to appeal is required by (legislation giving right to appeal with leave).
3. The grounds of the application appear in the annexed affidavit.
4. (Statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.)
5 . (If Order 52, subrule 5 (3) applies) The applicant applies for an order that compliance with subrule 5 (2) is dispensed with.
To the respondent (address):
Take Notice: Before taking any step in the proceeding you must enter an appearance in the Registry.
The applicant’s address for service is (address for service).
(Conclude in accordance with Form 4)
Version 2
[22] Schedule 1, after form 166
insert
Form 166A Referral of question about whether a party should cease to be a party
(Order 78, rule 20A)
Referral of question about whether a party should cease to be a party
Native Title Act 1993, section 136DA
Details of referral
1 Name of NNTT Presiding Member
q Mr q Mrs q Ms q Dr q Prof
Family name:
Given name/s:
2 Contact address
Postcode:
3 Business Hours Telephone No.
Fax No.
( )
( )
Details of respondent
4 Name of party to whom referral relates
Name of party:
Address:
Postcode:
Phone: ( )
Fax: ( )
Details of respondent
5 Name of agent, representative or legal practitioner of the party
Name:
Relationship to party:
Address:
Postcode:
Phone: ( )
Fax: ( )
Relevant information
6 State the interest in the proceeding which formed the basis for joining the party to the proceeding
7 State the basis for the view that the party does not have a relevant interest in the proceeding
Orders sought
8 State the orders sought from the Court
Supporting documents
9 State the details of each document that accompanies the referral
Prepared by:
Name: (please print)
Signature:
Date:
Version 1
[23] Schedule 2, item 43E
omit
standard
[24] Schedule 3, after item 64
insert
64A
Order 4, rule 12
Power to:
(a) alter the date for a hearing to a later date; and
(b) authorise the legal practitioner for a party to make corresponding alterations in any copy for service of any application or notice
[25] Schedule 3, after item 171
insert
171A
Order 33, subrule 14 (1)
Power to make an order requiring the production of a prisoner from lawful custody to give evidence in proceedings before the Court or before an examiner under Order 24
171B
Order 33, subrule 15 (1)
Power to:
(a) make an order requiring the production of a party who is in lawful custody to a proceeding before the Court; and
(b) make an order in relation to the continuing custody of the party
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
