Federal Court Amendment Rules 2006 (No. 3) 1
Select Legislative Instrument 2006 No. 377
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 2006
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.
K.E. LINDGREN J.
B.J.M. TAMBERLIN J.
R. SACKVILLE J.
S.M. KIEFEL J.
R.D. NICHOLSON J.
P.D. FINN J.
R.A. SUNDBERG J.
S.R. MARSHALL J.
A.M. NORTH J.
J.R. MANSFIELD J.
A.H. GOLDBERG J.
A.R. EMMETT J.
R.A. FINKELSTEIN J.
M.S. WEINBERG J.
J.A. DOWSETT J.
S.C. KENNY J.
R.V. GYLES J.
R.A. CONTI J.
M.A. STONE J.
J.L.B. ALLSOP 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.
N.J. YOUNG 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.
J.E. MIDDLETON J.
J. GILMOUR J.
Judges of the Federal
Court of Australia
P.J. Kellow
Acting Registrar
1 Name of Rules
These Rules are the Federal Court Amendment Rules 2006 (No. 3).
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 1, paragraph 5A (2) (b)
omit
50
insert
100
[2] Order 20, before rule 1
insert
1A Application of Order
This Order applies only to proceedings commenced before 1 December 2005.
Note See section 31A of the Act in relation to proceedings commenced on or after 1 December 2005.
[3] Order 27, subrule 3 (8)
substitute
(8) The last date for service of a subpoena:
(a) is:
(i) the date falling 5 days before the earliest date on which the addressee is required to comply with the subpoena; or
(ii) an earlier or later date fixed by the Court; and
(b) must be specified in the subpoena.
[4] Order 27, rule 10, heading
substitute
10 Return of documents and things produced
[5] Order 27, subrules 10 (3) and (4)
omit
[6] Order 36, rule 9, heading
substitute
9 Certificate of judgment
[7] Order 48, rule 1, definition of RAO Schedule
omit
Schedule 1B
insert
Schedule 1
[8] Order 48, rule 1, definition of Workplace Relations Act or Act
omit
or Act
[9] Order 48, rule 4, heading
substitute
4 Application in relation to alleged unlawful termination of employment (Workplace Relations Act s 663)
[10] Order 48, subrule 4 (1), note
substitute
Note Section 665 of the Workplace Relations Act states the orders the Court may make.
[11] Order 48, paragraph 4 (2) (c)
omit
subsection 170CF (2)
insert
subsection 650 (2)
[12] Order 48, rule 7, heading
substitute
7 Requirements of applications (RAO Schedule s 163, 164, 164A and 167)
[13] Order 52, before rule 1
insert
Division 1AA General
[14] Order 52, after rule 2AA
insert
2AB Certain applications and matters may be dealt with without an oral hearing
(1) The Court may order that:
(a) an application mentioned in paragraph 25 (2) (b) or (c) of the Act; or
(b) a matter mentioned in subsection 25 (2B) of the Act; or
(c) an application for leave to appeal under Division 1; or
(d) an application for leave to appeal under subrule 10 (2); or
(e) an application for leave to file and serve a notice of appeal under subrule 15 (2);
be dealt with without an oral hearing.
(2) If the Court makes an order under subrule (1) in relation to an application or matter, each party to the application or matter must file a summary of argument and serve a copy of the summary on each other party.
(3) A summary of argument must comply with rule 2AC.
2AC Summary of argument
(1) A summary of argument must:
(a) not exceed 10 pages; and
(b) include the title of the proceeding; and
(c) include the name of the party by whom it is to be filed; and
(d) consist of paragraphs numbered consecutively; and
(e) state as concisely as possible:
(i) if the summary of argument is to be filed by the applicant — the factual background to the application; and
(ii) if the summary of argument is to be filed by a respondent — the factual issues in dispute; and
(iii) the claims to be argued by the party concerned; and
(iv) the reasons relied upon for those claims.
(2) So far as is practicable:
(a) a reference in a summary of argument to a part of a transcript of proceedings of a court must be given by page and line number; and
(b) each relevant part of the transcript must be attached to the summary.
(3) A summary of argument must be clear and legible, and securely fastened.
[15] Order 52, rule 3
omit
[16] Order 52, after subrule 4 (2)
insert
(3) An application must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.
[17] Order 52, rule 7
substitute
7 Appearance by respondent
If there is a respondent to the application, the respondent must enter an appearance before taking any step in the proceedings.
7A Objection to application being dealt with without oral hearing
If a respondent objects to an application being dealt with without an oral hearing, the respondent must:
(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.
[18] Order 52, subrule 10 (3)
substitute
(3) An application under subrule (2) must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.
(4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must:
(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.
[19] Order 52, subrules 15 (3), (4), (5) and (6)
substitute
(3) An application for leave under subrule (2) must:
(a) be in accordance with Form 54A; and
(b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and
(c) be accompanied by an affidavit setting out:
(i) the nature of the matter; and
(ii) the factual and legal issues in dispute; and
(iii) the reasons why leave should be given.
(4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must:
(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.
[20] Order 52, rule 15A
omit
[21] Order 52, rule 25
omit
[22] Order 52, subparagraph 28 (3) (b) (i)
substitute
(i) transcript of oral evidence;
[23] Order 52, paragraph 28 (3) (f)
omit
formal
insert
sealed
[24] Schedule 1, Form 5A
omit
Workplace Relations Act 1996 (Cth) section 170CP
insert
Workplace Relations Act 1996 (Cth) section 663
[25] Schedule 1, Form 5A, note
omit
section 469 of the Workplace Relations Act 1996.
insert
section 854 of the Workplace Relations Act 1996.
[26] Schedule 1, Form 5A
omit
Version 1
insert
Version 2
[27] Schedule 1, Form 15
substitute
Form 15 Notice of appearance
(Order 9, subrule 3 (1))
A.B.
of (address) (occupation) appears [by his/her tutor (name of tutor)]*.
(Add other notices, for example, under Order 5, rule 6, relating to notice for pleadings.)
Solicitor: (name)
(address)
telephone: (number)
facsimile: (number)
email address:
Solicitor’s agent: (name)
(address)
telephone: (number)
facsimile: (number)
email address:
Address for service: (The office of his/her solicitor, or as the case may be; see Order 7, rule 6.)
(Follow the prescribed form of conclusion of documents for use by a party, Form 4.)
(This notice of appearance may be added to a notice of motion of a person applying to be added as a respondent, for example, under Order 6, rule 8.)
(If, under Order 9, rule 6, a respondent wishes to enter a conditional appearance insert ‘conditionally’ after ‘appear’.)
* Omit if inapplicable.
Version 2
[28] Schedule 1, Form 41
substitute
Form 41 Subpoena
(Order 27, subrule 3 (1))
IN THE [name of court] File number:
DISTRICT REGISTRY [insert if filing in Federal Court]
APPLICANT/PLAINTIFF:
RESPONDENT/DEFENDANT:
SUBPOENA
To: [name]
[address]
YOU ARE ORDERED:
q *to attend to give evidence — see section A of this form; or
q *to produce this subpoena or a copy of it and the documents or things specified in the Schedule — see section B of this form; or
q *to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule — see section C of this form
* Select one only of these three options
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
The last date for service of this subpoena is: ................................................. (See Note 1)
Please read Notes 1 to 13 at the end of this subpoena.
[Seal or Stamp of the Court]
Date:
Issued at the request of [name of party], whose address for service is:
A. Details of subpoena to attend to give evidence only
Date, time and place at which you must attend to give evidence:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
B. Details of subpoena to produce only
You must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the Registrar at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–9)
Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things:
Date:
Time:
Place:
Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted:
The Registrar
[Name of Court …..etc as the case may be]
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
C. Details of subpoena both to attend to give evidence and to produce
In so far as you are required by this subpoena to attend to give evidence, you must attend as follows:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
In so far as you are required by this subpoena to produce the subpoena or a copy of it and documents or things, you must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the Registrar at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–9)
Date, time and place at which you must attend to produce the subpoena or a copy of it and the documents or things:
Date:
Time:
Place:
Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted:
The Registrar
[Name of Court …..etc as the case may be]
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
NOTES
Last day for service
1. You need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena.
Informal service
2. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
Addressee a corporation
3. If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.
Conduct money
4. You need not comply with the subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or tendered to you a reasonable time before the date on which your attendance is required.
Production of subpoena or copy of it and documents or things by delivery or post
5. In so far as this subpoena requires production of the subpoena or a copy of it and a document or thing, instead of attending to produce the subpoena or a copy of it and the document or thing, you may comply with the subpoena by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.
6. If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, notify the Registrar in writing of your objection and of the grounds of your objection.
7. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to the subpoena being inspected by any party to the proceeding, the Registrar may permit the parties to the proceeding to inspect the document or thing.
Production of a number of documents or things
8. If you produce more than one document or thing, you must, if requested by the Registrar, produce a list of the documents or things produced.
Production of copy instead of original
9. You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce.
Applications in relation to subpoena
10. You have the right to apply to the Court:
(a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena; and
(b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.
Loss or expense of compliance
11. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena.
Contempt of court — arrest
12. Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly.
13. Note 12 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
[29] Schedule 1, Forms 54A and 55
substitute
Form 54A Application for leave to file and serve out of time
(Order 52, paragraph 15 (3) (a))
IN THE FEDERAL COURT OF AUSTRALIA
(insert location of registry) REGISTRY No. of 20 .
A.B. Applicant
C.D. Respondent
APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL
1. The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of the *Federal Court/*(or if from another Court, specify Court) given on (date) at (place).
2. An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52 rule 15.
3. The grounds of the application appear in the attached affidavit.
4. (Statement indicating whether the applicant wishes to have the application dealt with without an oral hearing.)
*5.(If the application indicates that the applicant does not wish to have the application dealt with without an oral hearing) This application will be heard by the Court at
on . (Place and date to be inserted by the Registrar).
DATE:
(Signed, applicant or applicant’s solicitor)
* Omit if inapplicable
Version 2
Form 55 Notice of appeal
(Order 52, rule 12)
IN THE FEDERAL COURT OF AUSTRALIA
(insert location of registry) REGISTRY No. of 20 .
On appeal from the *Federal Court/*(or if from another Court, specify Court)
BETWEEN:
A.B. Appellant
and
C.D. Respondent
NOTICE OF APPEAL
The appellant appeals from the whole (or if from a part, specify part) of the judgment of the *Federal Court/*(or if from another Court, specify Court) given on (date) at (place).
*The appeal is brought in accordance with leave granted on (date).
GROUNDS OF APPEAL: (Specify grounds of appeal)
1.
2.
3.
…
ORDERS SOUGHT: (State what judgment or order the appellant seeks instead of the judgment appealed from)
1.
2.
3.
…
To the respondent (address)
TAKE NOTICE:
(a) Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance under Order 52, rule 7.
*(b) (Do NOT use this paragraph if the appeal is from a judgment of the Federal Magistrates Court) The papers in the appeal will be settled before the Registrar at on (place, date and time to be inserted by the Registrar).
*(b) (Use this paragraph only if the appeal is from a judgment of the Federal Magistrates Court) This appeal has been listed for a *directions hearing at the time and place stated below. If you or your legal representative do not attend the Court at that time, orders may be made in your absence.
Time and date for *directions hearing: (to be entered by Registry unless fixed by Court)
Place: (address of Court)
The appellant’s address for service is (address).
* Omit if inapplicable.
Version 3
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.frli.gov.au.
