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Practice Notes

Every Issue

Cite as: (2002) 76(10) LIJ, p.66

FEDERAL COURT

Federal Court Amendment Rules 2002 (No 2)

Cite as: (2002) 76(10) LIJ, p.66

The Federal Court Amendment Rules 2002 (No 2) (the Amendment Rules) were published in the Commonwealth Government Gazette on 12 September 2002 as Statutory Rule No 222 of 2002.

The amendments set out in Schedule 1 to the Amendment Rules commenced on 12 September 2002. The amendments set out in Schedule 2 commence on the commencement of Schedule 2 to the Jurisdiction of Courts Legislation Amendment Act 2002, which was expected to occur on 19 September 2002.

An official copy of the Amendment Rules is available on the Internet from the ScalePlus site http://scaleplus.law.gov.au.

Schedule 1 to the Amendment Rules amends the Federal Court Rules as follows:

  • Order 6 and O.52 are amended to include a new rule which deals with people seeking to intervene in a proceeding or appeal (as the case may be). In brief, the new rule provides that:
    • the Court, at any stage of a proceeding, on its own motion or on the application of a person, may give leave to a person (the intervener) to participate in the proceeding, on the terms and conditions, and with such rights, privileges and liabilities (including liabilities for costs), determined by the Court;
    • in deciding whether to give leave, the Court must have regard to whether the intervener’s contribution will be useful and different from that of the parties to the proceeding, whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish, and any other matter that the Court considers relevant;
    • the role of the intervener is confined to assisting the Court in its task of resolving the issues raised by the parties; and
    • assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses;
  • various rules are amended to include appropriate references to the Corporations Act 2001, ASIC Act 2001 and Federal Court (Corporations) Rules 2000;
  • Order 10 para 1(2)(a) is amended to add the use of assisted dispute resolution to the list of matters in relation to which the Court may make directions;
  • Order 82 r7 is amended to provide that the Court or a judge has a discretion as to whether to take into account the factors set out in paras 7(a) to (d) when deciding whether to transfer a proceeding or an AAT appeal to the Federal Magistrates Court, and that, in O.82 paras 7(b) and (c), the likelihood of a proceeding or appeal being heard sooner and/or being at less cost and more convenience to the parties will be “in the opinion of the Court or a Judge”;
  • the note in Form 5 (application) is amended; and
  • Order 1 r4 is amended to replace “his” with “his or her” in the definition of “mentally disabled person”, and to correct a grammatical error in the definition of “trial”.

Schedule 2 to the Amendment Rules makes a number of amendments to the Federal Court Rules which are consequential to amendments to the Federal Court of Australia Act 1976 set out in the Jurisdiction of Courts Legislation Amendment Act 2002. These include:

  • replacing references to “telephone” with references to “audio link”;
  • omitting the definition of “judicial registrars” and all other rules concerning judicial registrars as Division 2 of Part II of the Federal Court Act will be repealed;
  • omitting O.47 r11 which allows a deputy sheriff to perform the functions of a marshal under the Admiralty Act as the registrar can appoint a marshal under s18N of the Federal Court Act (which was not the case when O.47 r11 was inserted); and
  • omitting O.24 r1A, which deals with the receipt of appearances, submissions and evidence by video link or audio link, as this will be governed by new ss47A and 47B of the Federal Court of Australia Act; and
  • omitting O.69 r13 and O.69A r8, which deal with the receipt of appearances, submissions and evidence by video link or telephon_e link in trans-Tasman proceedings, as this is dealt with in the Evidence and Procedure (New Zealand) Act 1994, and the Court’s power to give directions under O.10 sub-para 1(2)(a)(xviii) of the Federal Court Rules.

PHILIP KELLOW
DEPUTY REGISTRAR
6 SEPTEMBER 2002

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Cite as: (2002) 76(10) LIJ, p.66

Practice Direction No 1

Definitions

1. In this practice direction, unless the context otherwise indicates:

  • “Act” means the Defence Force Discipline Appeals Act 1955 (Cth);
  • “appeal” includes application for leave to appeal and an application for extension of time for appeal;
  • “appellant” includes an applicant for leave to appeal or for extension of time for appeal;
  • “conviction” includes a prescribed acquittal as defined in s 4(1) of the Act;
  • “deputy president” means the deputy president of the Tribunal;
  • “member” means a member of the Tribunal including the president or deputy president;
  • “president” means the president of the Tribunal;
  • “registrar” means the registrar or a deputy registrar of the Tribunal;
  • “Regulations” means the Defence Force Discipline Appeals Regulations 1957 (Cth); and
  • “Tribunal” means the Defence Force Discipline Appeal Tribunal.

Forms

2.

The forms in the Schedule, or forms as near thereto as the circumstances permit, shall be used in all cases to which such forms are applicable. [Note: The forms have not been reproduced here. Please refer to the website http://www.fedcourt.gov.au/aboutct/aboutct_dfdat_practice.html.]

Forwarding of documents to other party

3.

Where any notice or document is lodged with the registrar pursuant to the Act, the Regulations or this practice direction, the registrar shall cause a copy thereof to be forwarded to any other party.

Notices of appeal etc.

4.

(1)

A notice of appeal from a court martial or defence force magistrate shall be in Form 1 as appropriate.


(2)

A notice of appeal from a single member of the Tribunal shall be in Form 1 as appropriate.


(3)

An application for leave to appeal shall be in Form 1 as appropriate.


(4)

An application for extension of time to appeal shall be in Form 1 as appropriate and shall be supported by affidavit setting out:

 

 

 

(a)

the reasons why the appeal was not lodged in time;




(b)

the grounds of the proposed appeal; and




(c)

why such grounds have a reasonable prospect of success.

  

(5)

All the foregoing documents shall be lodged with the Registrar, Defence Force Discipline Appeal Tribunal, C/- Federal Court of Australia, Commonwealth Law Courts Building, Childers Street, Canberra, ACT 2601 or one of the persons specified in reg 9(1) of the Regulations.



Notice of address for service

5.

Within 14 days of receipt of a notice of appeal or an application for leave to appeal or an application for extension of time for appeal, a respondent shall lodge with the registrar a notice of address for service in accordance with Form 2.

Directions

6.

(1)

Any application seeking directions as to the conduct of an appeal (including the grant of legal aid pursuant to reg 11 of the Regulations) shall be made by an application in Form 3.


(2)

Directions as to the conduct of an appeal may be given by a member or the registrar, whether or not such directions are sought by a party.


(3)

For the purpose of giving, or considering whether to give, such directions a hearing may, if necessary, be held.


(4)

A hearing may be conducted by video link or telephone.

Affidavits

7.

An affidavit shall be in Form 4.

Preparation of appeal book

8.

(1)

The appeal book for the use of the Tribunal on an appeal shall unless otherwise directed be prepared by the respondent in such manner and in such number of copies as the registrar shall direct.


(2)

The appeal book shall contain only such material as is relevant to the appeal.


(3)

Without prejudice to the generality of (2), the appeal book shall not include documents which are:

 

 

 

(a)

not relevant to the issues to be argued on the appeal; or




(b)

duplicates of other documents.

  

(4)

The registrar shall fix an appointment for the settling of the contents of the appeal book and give the parties reasonable notice of such appointment.


(5)

The respondent shall, not less than 14 days before the appointment, lodge with the registrar a list of proposed contents of the appeal book.


(6)

The registrar shall forward to the appellant a copy of the respondent’s list of proposed contents.


(7)

On receipt of a copy of the respondent’s list of proposed contents, the appellant shall lodge with the registrar a list of any proposed additions to or deletions from the respondent’s list.


(8)

Unless the registrar otherwise orders, it shall not be necessary for the parties to attend at the appointment, but the registrar may at any time in relation to the contents of the appeal book:

 

 

 

(a)

communicate with the parties; or




(b)

direct the parties to communicate with each other.

 

(9)

At the appointment to settle the appeal book, the registrar shall determine what documents and matter shall be included in the appeal book.

Listing of appeal

9.

The registrar shall notify the parties of the date, time and place for the hearing of the appeal.

Outlines of submissions

10.

Each party shall prepare a written outline of that party’s submissions on the appeal.

11.

The outline of submissions shall contain concise statements of:


(1)

the issues that the appeal presents;

 

(2)

an outline of the argument to be presented on each issue, specifying the steps in the argument, and any legislation, reference to authority or finding of fact to be relied on in support of each step; and


(3)

where there is to be a challenge to any findings of fact, the error (including any failure to make a finding of fact) should be identified, the finding which the party contends ought to have been made should be specified, and the reasons it is said that an error has been made should be given. Reference to the evidence intended to be relied on in support of the argument should be supplied.

12.

The appellant shall lodge with the registrar an outline of submissions by 4pm, seven clear working days before the date of hearing of the appeal.

13.

The respondent shall lodge with the registrar an outline of submissions by 4pm, three clear working days before the date of hearing of the appeal.

14.

The registrar shall forward each outline to the opposing party as soon as practicable after the receipt thereof.

15.

The outline of submissions should not ordinarily exceed 10 pages of double spaced typing, unless leave is obtained from the registrar to lodge a more lengthy document.

16.

All references to the appeal book in the submissions should refer to the relevant page and the relevant part of the page, e.g. AB 27.5 – 28.2.

17.

Similarly, references to authority should give the case name and citation and refer to the relevant paragraph or page and the relevant part of the page, e.g. A v B (1964) 112 CLR 210 at 212.5 to 212.7, C v D (1998) 196 CLR 318 at [14].

18.

It is expected that the oral arguments will follow the outline of submissions. New issues, not included in the outline, may not be advanced on the hearing of the appeal except with the leave of the Tribunal.

Lists of authorities

19.

Each list of authorities and legislation should be divided into two parts. Part “A” should contain only the authorities and legislation from which passages are to be read. Part “B” should contain the authorities and legislation to which counsel might refer but from which passages are not to be read. The relevant sections of legislation should be specified.

20.

The Tribunal will supply for its own use up to a maximum of 10 of the cases in Part “A” of the list marked with a single asterisk where those cases are reported in the Commonwealth Law Reports, Federal Court Reports, Australian Law Reports, the authorised reports of the state or territory where the appeal is to be heard, or are unreported Tribunal cases.

21.

Counsel may identify in Part “A” five cases in addition to those referred to in para 20 above to which they wish to refer at some length. These cases are to be identified on the list by a double asterisk.

22.

A party who intends to cite from a book or a case other than one referred to in the Reports in para 20 above shall provide photocopies of the relevant parts of the book or the Report for the use of the Tribunal, to be handed up during argument.

23.

Three copies of the list of the authorities and legislation referred to in Part “A” should be lodged with the registrar at the place where the appeal is to be heard not less than two working days before the date of hearing of the appeal. Copies of the Act, the Defence Force Discipline Act 1982 and the Regulations thereunder need not be supplied.

Application to call further evidence

24.

(1)

Where an appellant intends to ask the Tribunal to consider further evidence pursuant to s23(2) of the Act, the appellant shall give to the registrar written notice of such intention as soon as possible.


(2)

The notice shall include:

  


 

(a)

a brief summary of such evidence; and




(b)

a statement as to how it satisfies the requirements of paras (a), (b) and (c) of s23(2) of the Act.

  

(3)

On receipt of such notice, the registrar shall convene a directions hearing.

Abandonment

25.

The appellant may, pursuant to reg 12 of the Regulations, lodge a notice of discontinuance of the appeal. The notice shall be in accordance with Form 5.

26.

The Tribunal may, at the request of the respondent or of its own motion, give notice to an appellant that if some specified act, being an act necessary for the prosecution of the appeal, is not done within the time specified in the notice, the appeal shall be deemed to be abandoned. The notice shall be in accordance with Form 6.

27.

If the appellant does not appear, either personally or by counsel, at the time and place fixed for the hearing of the appeal, the Tribunal (or a single member when the Tribunal is so constituted) may declare that the appeal is deemed to be abandoned.

Dress

28.

On the hearing of an appeal the dress for counsel shall be such as would be worn in the Court of Criminal Appeal or equivalent in the state or territory where the hearing takes place.

Appellant in custody

29.

The certificate signed by the registrar pursuant to reg 16 of the Regulations shall be in accordance with Form 7.

Notices

30

A notice or document may be lodged or forwarded by hand delivery, ordinary pre-paid post, fax or email.

Non-compliance

31.

The Tribunal, a member of the Tribunal or the registrar may excuse non-compliance with this practice direction on such terms as may be just.

Copies of legislation etc.

32.

On receipt of a notice of appeal, application for leave to appeal or application for extension of time for appeal, the registrar shall forward to the appellant, free of charge, a copy of the Act, the Regulations and this practice direction.

PC HEEREY J , PRESIDENT
PETER G UNDERWOOD J, DEPUTY PRESIDENT
D MILDREN J, MEMBER
KP DUGGAN J, MEMBER
23 AUGUST 2002

PENALTY INTEREST RATE

Cite as: (2002) 76(10) LIJ, p.68

The current penalty interest rate is 12 per cent (from 25 August 2002). A list of the previous rates can be found on page 7 of the 2002 Law Institute Legal Directory and Diary.

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