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Federal Court Amendment Rules 2005 (No. 2)

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Federal Court Amendment Rules 2005 (No. 2)1 Select Legislative Instrument 2005 No. 291
We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976. Dated 29 November 2005   M.E.J. BLACK C.J. M.R. WILCOX J. J.E.J. SPENDER J. P.R.A. GRAY J. D.M. RYAN J. M.C. LEE 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. S.M. KIEFEL J. R.D. NICHOLSON J. P.D. FINN J. R.A. SUNDBERG 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. 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.   Judges of the Federal Court of Australia   P.J. KELLOW Acting Registrar
1              Name of Rules                 These Rules are the Federal Court Amendment Rules 2005 (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 1, subrule 5A (11), note substitute Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to fees for filing documents. [2]           Order 4, after rule 1 insert
1A           Certification of merits of application commencing migration litigation          (1)   For the purposes of section 486I of the Migration Act 1958, a lawyer must not file an application commencing migration litigation unless the application includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.          (2)   In this rule: lawyer has the meaning given by section 486K of the Migration Act 1958. migration litigation has the meaning given by section 486K of the Migration Act 1958. [3]           Order 30, rule 4 substitute
4              Notice of date for trial (Form 44A)                 Within 7 days after being notified of the date for trial, the party who requested that the date be fixed or, if no request was made, the applicant, must:                 (a)    file in the Registry a notice in accordance with Form 44A; and                (b)    serve a copy of the notice on all other parties to the proceeding. Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to setting-down fees. [4]           Order 41, subrule 1 (2), at the foot insert Note   Order 78, subrule 41A (3) allows certain documents in proceedings under the Native Title Act 1993 to be headed with a short title that does not mention the parties. [5]           Order 46, rule 7B substitute
7B           Registrar’s exercise of power (Act, s 35A)          (1)   Subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by motion on notice within 21 days after the day on which the power was exercised.          (2)   An application under paragraph 35A (7) (b) of the Act may be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 35A (1) of the Act.          (3)   In this rule: Registrar has the meaning given by subsection 35A (8) of the Act. [6]           Order 52, after rule 12 insert
12A         Certification of merits of appeal commencing migration litigation          (1)   For the purposes of section 486I of the Migration Act 1958, a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.          (2)   In this rule: lawyer has the meaning given by section 486K of the Migration Act 1958. migration litigation has the meaning given by section 486K of the Migration Act 1958. [7]           Order 52, paragraph 22 (3) (a) substitute                 (a)    file a notice of the respondent’s contention within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and               (aa)    serve a copy of the notice on the appellant; and [8]           Order 52, subrule 28 (4) omit [9]           Order 52, paragraph 29 (5) (a) substitute                 (a)    file in the Registry a notice in accordance with Form 44A; and [10]         Order 52, subrule 29 (5), at the foot insert Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to setting-down fees. [11]         Order 52B, rule 5 substitute
5              Documents to be filed and served by the Commissioner — matters other than private rulings          (1)   This rule applies to an appeal other than an appeal that relates to a private ruling.          (2)   Within 28 days after a sealed copy of an application is served on the Commissioner, the Commissioner must:                 (a)    file:                           (i)    a copy of the notice of the appealable objection decision concerned; and                          (ii)    a copy of the taxation objection concerned; and                          (iii)    any return or other document in the Commissioner’s possession or under the Commissioner’s control to which the taxation objection relates that is relevant to the hearing of the matter; and                         (iv)    an appeal statement or an appeal affidavit; and                (b)    serve on the applicant:                           (i)    a copy of the appeal statement or the appeal affidavit, as the case may be; and                          (ii)    a list of the other documents mentioned in paragraph (a) that the Commissioner has filed.          (3)   In this rule: appeal affidavit, in relation to an appeal, means an affidavit:                 (a)    setting out the grounds for seeking an order at the first directions hearing dispensing with filing an appeal statement; and                (b)    setting out, or annexing a minute of, proposed directions with respect to the conduct of the appeal. appeal statement, in relation to an appeal, means a statement outlining succinctly the Commissioner’s contentions and the facts and issues in the appeal as the Commissioner perceives them. [12]         Order 53, heading substitute
Order 53      Administrative Appeals Tribunal Act 1975 [13]         Order 53, after rule 2 insert
2A           Certification of merits of appeal from a migration decision          (1)   For the purposes of section 486I of the Migration Act 1958, a lawyer must not file a notice of appeal commencing migration litigation unless the notice includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.          (2)   In this rule: lawyer has the meaning given by section 486K of the Migration Act 1958. migration litigation has the meaning given by section 486K of the Migration Act 1958. [14]         Order 53, subrule 16 (4) omit [15]         Order 53, paragraph 18 (2) (a) substitute                 (a)    file in the Registry a notice in accordance with Form 44A; and [16]         Order 53, subrule 18 (2), at the foot insert Note   See Part 2 of the Federal Court of Australia Regulations 2004 in relation to setting-down fees. [17]         Order 54B, heading substitute
Order 54B    Applications in relation to migration decisions under Migration Act 1958 [18]         Order 54B, rule 1, including the note substitute
1              Application                 This Order applies to the making of an application in relation to a migration decision (within the meaning of the Migration Act 1958) in relation to which the Court has original jurisdiction under paragraph 476A (1) (a), (b) or (c) of that Act. [19]         Order 54B, after subrule 2 (1) insert       (1A)   A lawyer (within the meaning of section 486K of the Migration Act 1958) must not file an application unless the application includes, or is accompanied by, a certificate under section 486I of that Act in accordance with Form 56B signed by the lawyer.       (1B)   An application in relation to a tribunal decision (within the meaning of section 486D of the Migration Act 1958) must include a disclosure under section 486D of that Act. [20]         Order 54B, after rule 7 insert
8              Application for extension of time (Migration Act 1958, s 477A)                 A lawyer (within the meaning of section 486K of the Migration Act 1958) must not file an application under subsection 477A (2) of that Act unless the application includes, or is accompanied by, a certificate under section 486I of that Act in accordance with Form 56B signed by the lawyer. [21]         Order 63, subparagraph 4 (1) (a) (ii) substitute                          (ii)    in accordance with a direction by the Registrar under Order 62, subparagraph 46 (6A) (c) (ii) or paragraph 46 (6B) (b); or [22]         Order 70, heading substitute
Order 70      Aboriginal and Torres Strait Islander Act 2005 [23]         Order 70, rule 1 substitute
1              Interpretation          (1)   In this Order: ATSI Act means the Aboriginal and Torres Strait Islander Act 2005.          (2)   An expression used in this Order and in Schedule 4 to the ATSI Act has the same meaning in this Order as in that Schedule. [24]         Order 70, subrule 2 (1) omit Schedule 4 of the Act insert Schedule 4 to the ATSI Act [25]         Order 70, subrule 2 (5) omit Schedule 4 to the Act. insert Schedule 4 to the ATSI Act. [26]         Order 70, rule 3 substitute
3              Reference as to qualifications or vacancy          (1)   A reference to the Court under section 17 of Schedule 4 to the ATSI Act must be in accordance with Form 74.          (2)   After receipt of a reference, the Registrar must:                 (a)    sign and affix the stamp of the Court to the reference; and                (b)    provide or forward a sealed copy to the Minister with a note endorsed on the reference of the time and place at which the matter is listed for a directions hearing.          (3)   As soon as practicable after making the reference, the applicant must send a sealed copy of the reference to the Torres Strait Regional Authority.          (4)   The applicant must, at least twice before the directions hearing, publish a notice of the reference and the date of the directions hearing in a newspaper circulated in each Torres Strait Regional Authority ward.          (5)   At the directions hearing the Court must give such directions as are necessary or desirable for the further hearing of the reference including:                 (a)    directions permitting any person who in the Court’s opinion is interested in the determination of a question to be heard on the hearing of the reference; and                (b)    directions that notice of a reference be served on any person; and                 (c)    directions relating to the lodgment of documents in the Minister’s possession. [27]         Order 78, after rule 41 insert
41A         Short title of proceeding          (1)   This rule applies to a document in a proceeding under the Native Title Act that is not:                 (a)    an originating process; or                (b)    a document to be served on a person who is not a party to the proceeding; or                 (c)    a final order.          (2)   The document may be headed in accordance with Form 2 using a short title of the proceeding specified by the Registrar.          (3)   Despite Order 41, subrule 1 (2), the short title need not refer to the parties to the proceeding. [28]         Schedule 1, Form 44A substitute
Form 44A   Notice of date for trial (Order 30, rule 4, Order 52, subrule 29 (5) and Order 53, subrule 18 (2)) [heading to form as in Form 1] To:       [name of party]             [address for service of party] Take notice that the date, time and place for trial of this proceeding is as specified below. Date:        [date and time to be entered by Registry unless fixed by the Court] Time:        Place:       [address of Court] Dated   [eg 7 May 20               ]   (Signature of notifying party or the party’s solicitor) Version 2 [29]         Schedule 1, Form 47 omit Version 1 insert Note* Subsection 35A (5) of the Federal Court of Australia Act 1976 (the Act) provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection 35A (1) of the Act may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. Order 46, subrule 7B (1) provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by motion on notice within 21 days after the day on which the power was exercised. An applicant seeking a review can apply to a Judge to waive the requirement that the application for review be made by motion on notice (see Order 1, rule 8). * Omit this note if the orders have not been made by a Registrar. Version 2 [30]         Schedule 1, Form 56A substitute
Form 56A   Application under the Migration Act 1958 (Order 54B, subrule 2 (1)) IN THE FEDERAL COURT OF AUSTRALIA                                   DISTRICT REGISTRY          No.      of 20   . BETWEEN A.B. Applicant AND C.D. Respondent APPLICATION UNDER MIGRATION ACT 1958 This application is made under section 476A of the Migration Act 1958. The applicant was notified of the decision that is the subject of this application on: (date) The applicant claims: 1.    (specify in numbered paragraphs all relief sought) 2.    etc The grounds of the application are: 1. 2. etc (particulars of fraud or bad faith if alleged (Order 54B, subrule 2 (2))) DISCLOSURE UNDER SECTION 486D MIGRATION ACT 1958 — PROCEEDINGS IN RELATION TO A TRIBUNAL DECISION *For the purposes of the disclosure required by section 486D of the Migration Act 1958 in relation to a proceeding in relation to a tribunal decision (within the meaning of that section), the applicant states that the applicant has not brought any other judicial review proceedings (within the meaning of that section) in relation to the decision. *For the purposes of the disclosure required by section 486D of the Migration Act 1958 in relation to a proceeding in relation to a tribunal decision (within the meaning of that section), the applicant states that the applicant has brought the following judicial review proceedings (within the meaning of that section) in relation to the decision: (particulars of the title, file number and date of each proceeding and the court in which it was brought) *Delete if inapplicable CERTIFICATE UNDER SECTION 486I MIGRATION ACT 1958 *For the purposes of section 486I of the Migration Act 1958, I (name of lawyer) certify that there are reasonable grounds for believing that this migration litigation (within the meaning of section 486K of that Act) has a reasonable prospect of success.   Date:          (Signed, applicant’s lawyer) *Delete if the applicant is not represented by a lawyer NOTICE TO THE RESPONDENT TO the respondent of (address): This application has been set down for the time and place stated below. If you or a legal practitioner representing you do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen: (a)     the application may be heard; (b)     directions may be given for the further conduct of the proceeding; (c)     any application for interlocutory relief may be heard. Before any attendance at Court, you must file an appearance in the Registry. Time and date for hearing: (to be entered by Registry unless fixed by Court) Place: (address of Court) Date: (signed, Registrar) The applicant’s address for service is (specify address for service). Note   Section 479 of the Migration Act 1958 provides that the parties to a review of a migration decision resulting from an application referred to in section 477A of that Act are the Minister, or where appropriate the Secretary, and: (a)   if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of that Act and a decision on such a review has been made — the applicant in the review by the relevant Tribunal; or (b)   in any other case — the person who is the subject of the decision; or (c)   in any case — a person prescribed by the regulations.   Version 3
Form 56B   Certificate under section 486I of the Migration Act 1958 (Order 4, rule 1A, Order 52, rule 12A, Order 53, rule 2A and Order 54B, subrule 2 (1A)) CERTIFICATE UNDER SECTION 486I MIGRATION ACT 1958 For the purposes of section 486I of the Migration Act 1958, I (name of lawyer) certify that there are reasonable grounds for believing that this migration litigation (within the meaning of section 486K of that Act) has a reasonable prospect of success. Date: (signed, applicant’s lawyer) Version 1 [31]         Schedule 1, Forms 73 and 74 substitute
Form 73      Election petition (Order 70, rule 2) IN THE MATTER OF A DISPUTED ELECTION UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER ACT 2005 No.   (file number)            of   (year) A.B. Petitioner C.D. Respondent ELECTION PETITION This petition concerns the election for *a single member/*2 or more members for (the Torres Strait Regional Authority ward concerned) held on (date or dates on which the election was held). *Delete if inapplicable The petitioner asks the Court to make the orders claimed below and relies upon the facts set out below. FACTS RELIED UPON TO INVALIDATE ELECTION (Specify, in numbered paragraphs, the facts relied on) ORDERS The petitioner asks the Court to make the following orders: (Specify, in numbered paragraphs, the orders sought) SIGNED BY (A candidate at the election in dispute or a person claiming to be qualified to vote at that election or an authorised officer of the Electoral Commissioner) in the presence of: (Full name, address and occupation of witness) (Signature of witness) TO:      THE RESPONDENT             (Address) A directions hearing in this Petition will be heard by the Court at the time and place specified below. If there is no attendance at the Court by you the application may be dealt with and orders made in your absence. Time:             (Date and Time to be entered by Registry unless fixed by Court). Place:               (Address of Court). Date: (signed, Registrar) The Petitioner’s address for service is (Specify address for service). Version 2
Form 74      Reference of question as to qualification or vacancy (Order 70, rule 3) IN THE MATTER OF A REFERENCE UNDER THE ABORIGINAL AND TORRES STRAIT ISLANDER ACT 2005 No.   (file number)            of   (year) [A.B.] (Name of Minister) Applicant REFERENCE OF QUESTION AS TO QUALIFICATION OR VACANCY The Applicant refers to the Court under Schedule 4 to the Aboriginal and Torres Strait Islander Act 2005 a question relating to *the qualification of a member of the Torres Strait Regional Authority *a vacancy in the Torres Strait Regional Authority. *Delete if inapplicable STATEMENT OF QUESTION The question upon which the determination of the Court is desired is         (statement of the relevant facts and the question for determination). (signed, Minister) A directions hearing on this reference will be heard by the Court at the time and place specified below. Time:             (Date and Time to be entered by Registry) Place:            (Address of the Court) Date: (signed, Registrar) The Applicant’s address for service is (specify address for service). Version 2 [32]         Schedule 1, Form 152 omit Version 2 insert Note* Subsection 35A (5) of the Federal Court of Australia Act 1976 (the Act) provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection 35A (1) of the Act may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. Order 46, subrule 7B (1) provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by motion on notice within 21 days after the day on which the power was exercised. An applicant seeking a review can apply to a Judge to waive the requirement that the application for review be made by motion on notice (see Order 1, rule 8). * Omit this note if the orders have not been made by a Registrar. 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.