FEDERAL COURT RULES (AMENDMENT) 1994 NO. 63 FEDERAL COURT RULES (AMENDMENT) 1994 NO. 63 - TABLE OF PROVISIONS 1. Commencement 2. Amendment 3. Order 10, rule 1 (Directions hearing-General) 4. Order 50 rule 1 (Case stated and questions reserved-Application) 5. Order 50 rule 3 (Setting down for hearing) 6. New Order 7. First Schedule 8. Third Schedule 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 1 1. Commencement 1.1 These Rules commence on 21 March 1994. 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 2 2. Amendment 2.1 The Federal Court Rules are amended as set out in these Rules. 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 3 3. Order 10, rule 1 (Directions hearing-General) 3.1 Paragraph 1 (2) (a): Omit 'and' at the end of subparagraph (xvi) 3.2 Add at the end of paragraph 1 (2) (a): (xviii) the taking of evidence and receipt of submissions by video link or telephone or such other means as the Court considers appropriate; and (xvix) the proportion in which the parties are to bear the costs (if any) of taking evidence or making submissions pursuant to a direction under subparagraph (xviii).' 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 4 4. Order 50 rule 1 (Case stated and questions reserved-Application) 4.1 Omit 'or' at the end of paragraph 1 (1) (k) 4.2 Omit paragraph 1 (1) (l) 4.3 Insert after paragraph 1 (1) (k) '(l) under section 145 of the Native Title Act 1993; or (m) to the extent appropriate under any other Act,' 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 5 5. Order 50 rule 3 (Setting down for hearing) 5.1 Omit the rule, substitute: '3. Where a special case has been referred, the Registrar shall - (a) set down the proceeding for a directions hearing; and (b) notify each party ofthe date appointed for the directions hearing. 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 6 6. New Order 6.1 After Order 74, insert: ORDER 75 -Native Title Rules Native Title Act 1993 Interpretation '1.(1) Unless the contrary intention appears, expressions used in this Order have, in relation to proceedings under the Native Title Act 1993, the same meaning in this Order as they have in that Act. '(2) In this Order, unless the contrary intention appears- 'Registrar' means the District Registrar of the Court in the State or Territory where the relevant application was made to the NNTT. Native Title Registrar' means the Native Title Registrar appointed under Part 5 of the Native Title Act 1993 and includes any officer acting under a delegation from the Native Title Registrar. The 'nntt' means the Native Title Tribunal established by the Native Title Act 1993. Transfer of documents from NNTT '2. As soon as practicable after lodgment under section 74 of the Native Title Act 1993 by the Native Title Registrar of an application and receipt of documents and materials accompanying the application, the Registrar shall: (a) allocate a serial number of the proceedings; (b) acknowledge receipt on a list of the documents and materials settled with the Native Title Registrar; and (c) list the matter for directions before the Court by preparing and despatching a notification in Form 137 to all parties who appeared before the NNTT in respect of the application, attaching a copy of the list of documents and materials settled with the Native Title Registrar. Parties '3. A person seeking leave to be joined as a party to an application may give notice by filing and serving a motion in Form 27 setting out the manner in which it is claimed the persons interests are affected. Assistance to unrepresented parties '4. The Court or a Judge may direct the Registrar to provide such assistance to an unrepresented party as may reasonably be necessary to enable the party to formulate and present his or her case and, subject to the availability of funds, may direct assignment of counsel for that purpose. Actions to be taken before directions hearing '5. The applicant is required by the first directions hearing to file and serve an affidavit to be sworn or affirmed by the applicant (Forms 1 and 20) indicating whether there has been any variation to the information set out in the application made to the NNTT, namely the information required by subparagraph 62 (1) (a) (i), (ii) and (iii) and paragraphs 62 (1) (b) and (c) of the Native Title Act 1993 to be provided by an applicant. Notification of hearing '6.(1) The Court or a Judge may direct the applicant to give public notice of any hearing before the Court, in any of the forms of notification set out in clause 5 of the Native Title (Notices) Determination No. 1 of 1993 or in any other form which the Court or a Judge considers appropriate. (2) The Court or a Judge may direct the Registrar to give the notice set out in subrule (1). Assessors and taking of evidence '7 (1) The Court may direct an assessor: (a) to take evidence in relation to a particular application and to communicate with the parties to arrange a time, date and place for the evidence to be taken; (b) to convene and preside at a conference to be held pursuant to section 88 of the Native Title Act 1993: (c) to settle the manner in which the evidence is to be recorded and whether and in what manner proceedings at a conference or any part thereof are to be recorded; and (d) to furnish a report to the Court by a specified time after taking evidence or conducting a conference pursuant to section 88 of the Native Title Act 1993 the report to include such matters as the Court directs. (2) A party may call witnesses to give evidence before an assessor and the Court may, on the application of the assessor or a party or of its own motion, make an order to summon a person to appear before the assessor to give evidence and to produce such documents (if any) as are referred to in the summons. (3) The form of summons to a witness to give evidence and to produce domuments shall be in Form 138. A party may request the assessor to apply to the Court or a Judge for an order for the issue of a summons by preparing the summons and a copy of the summons and delivering them to the assessor. (4) Upon receiving the report of the assessor and any submissions from the parties the Court may determine how the report is to be used in the proceedings. (5) The assessor shall certify to the Court that records of evidence, including documents or things tendered to the assessor, were taken before the assessor at the time and place indicated on the record. (6) The assessor when requested by the Court to do so shall provide a summary of any conference held, other than a part of a conference to which subsections 91 (3) and (4) of the Native Title Act 1993 refer, to the Judge and to any party. (7) The assessor shall communicate with the Registrar to ensure that all matters in which an assessor takes evidence or holds conferences under the Native Title Act 1993 are listed in the daily newspaper listings of the Federal Court of Australia and appear on the daily lists of business of the Court in the State or Territory in which the evidence is being taken or the conference is being held. Assesors - conflict of interest '8. (1) Where at any stage it becomes apparent to an assessor that any conflict of interest of the type mentioned in subsection 37L (3) of the Federal Court of Australia Act 1976 has arisen or might arise, the assessor shall immediately notify: (a) the Chief Justice; (b) the Judge listed to hear the matter; (c) the presiding Judge, if a Full Court matter; and (d) the parties of the apparent conflict. (2) Where it is not possible to give the notification in the preceding subrule in person or by telephone the assessor shall, if practicable, communicate by facsimile message to the persons mentioned. Other Applications '9. The preceding rules apply, with any necessary adaptations, to: (a) an application for revocation or variation of an approved determination of native title; and (b) an application for a determination of compensation. Pre-existing compensation orders '10.The Court or a Judge may at any time direct a party to provide evidence by affidavit (in Forms 1 and 20) or otherwise, of any compensation awarded under a law of a State or a Territory or under any Commonwealth law other than the Native Title Act 1993, for essentially the same act for which the application is made. Pre-existing determinations of native title '11. The Court or a Judge may at any time direct a party to provide evidence by affidavit or otherwise, of any existing determination of native title in relation to the whole or part of the area the subject of the application. Registration of determinations '12.(1) upon the lodgment of a determination pursuant to section 166 of the Native Title Act 1993 the Registrar will have prepared a document in Form 139 which will contain an NNTT determination registration number and the date of receipt of the determination. (2) The date of receipt of the determination shall be the date of its registration. (3) The Registrar will sign and seal Form 139 and will indicate on each page of the determination the registered number and the date of registration of the determination, sign and seal each page and then return the determination and a copy of Form 139 to the Native Title Registrar. Application for review of NNTT determinations '13. (1) An application for review of a registered determination pursuant to section 167 of the Native Title Act 1993 must be in Form 140. (2) The party applying for review of the determination will be designated the applicant on the form and all other parties to the inquiry before the NNTT shall be named as respondents to the application. (3) Any person seeking leave pursuant to section 167 (6) to apply for review after the expiry of twenty eight (28) days from the date of registration of the determination must file an application in Form 140 together with an affidavit setting out the grounds upon which the leave of the Court is sought. (4) The provisions of the preceding rules relating to applications for determination of native title apply, with any necessary adaptations, to applications to review determinations of the NNTT. (5) The applicant must, within seven (7) days, serve copies of Form 140 bearing details of the directioin hearing fixed by the Registrar, and any affidavit filed, on all respondents and on the Native Title Registrar. Reference of questions of law from NNTT '14. The provisions of Order 50 apply to a question of law referred by the NNTT pursuant to subsection 145 (1) of the Native Title Act 1993 to the Court for a decision. Appeals '15. (1) Any person who wishes to appeal: (a) pursuant to sub-section 169 (1) of the Native Title Act 1993 on a question of law from a decision or determination of the NNTT in an inquiry relating to a right to negotiate application before the NNTT; or (b) pursuant to subsection 169 (2) of the Native Title Act 1993 on a question of fact or law from a decision of a presidential member of the NNTT to direct the Native Title Registrar to not accept an application under section 61 of the Native Title Act 1993; or (c) pursuant to subsection 169 (3) of the Native Title Act 1993 on a question of fact or law from a decision of the NNTT-when the person has applied to the NNTT to be made a party to an application-that the interests of the person will not be affected by a determination - must file a notice of appeal substantially in Form 141. (2) When an appeal is not instituted within the period of twenty eight (28) days starting on the day on which the decision or determination of the NNTT is made, or it is claimed that an appeal will not be not able to be instituted within that period, a person wishing to appeal must complete an application for extension of time in the form provided for in Form 141. (3) Where a person applies for an extension of time pursuant to subrule (2) the application must be accompanied by an affidavit setting out the reasons why the person did not institute an appeal within the twenty eight (28) day period, or would not be able to institute an apeal within the period, and the grounds upon which an extension of time is sought. (4) The person who institutes the appeal is called the applicant and all other parties (if any) to the proceedings in the NNTT will be designated as respondents. (5) Subject to any directions that may be given by the Court the applicant must, within seven (7) days of filing the notice of appeal (or such greater time as the Court allows) serve a copy of the notice of appeal and any affidavit filed with it on all other parties (if any) to the proceedings in the NNTT in respect of which the appeal is brought. (6) The Registrar will endorse on the notice of appeal details of the time, date and place for a directions hearing. (7) The Registrar will forward a copy of the notice of appeal and any affidavit to the Native Title Registrar. (8) Upon the lodgment of a notice of appeal the Registrar will obtain from the Native Title Registrar all documents and other things before the NNTT at the time of the decision or determination appealed against together with a list of the documents and other things. (9) The Registrar will acknowledge receipt of the documents from the Native Title Registrar by returning a copy of the list. (10) The Court will determine at the directions hearing whether any person other than the applicant and the respondents (if any) named in a notice of appeal should be joined as parties to the appeal. (11) At the directions hearing the Court may direct the applicant to file an affidavit providing up to date information in respect of the matters the subject of the affidavit required under subsection 62 (1) of the Native Title Act 1993. (12) The Registrar will notify the applicant and any other parties of the time, date and place of the hearing of the appeal. (13) Except as otherwise provided in this Rule, the provisions of Order 53 shall apply, with any necessary adaptations, to appeals brought pursuant to section 169 of the Native Title Act 1993. Compensation held by in trust under 'right to negotiate' procedures '16. In any instance where a person or a trustee desires to make an application to the Court concerning compensation held in trust (paragraphs 52 (1) (e); 52 (2) (b); 52 (4) (c); subsections 52 (5) and 52 (6) Native Title Act 1993) an application must be made in Form 5 accompanied by an affidavit. Respondents to application '17. The application should list as respondent any person or body believed to have an interest in the payment. Directions hearing '18. The Court may give any directions considered necessary to ensure that any interested person is heard before a direction for payment of negotiated compensation is made. Entitlement to 'just terms' compensation from the Commonwealth '19. A proceeding under subsection 53 (2) of the Native Title Act 1993 shall be commenced by an application in Form 5 accompanied by an affidavit. Duty of Registrar to notify NNTT of proceedings affecting determinations '20. The Registrar shall notify the Native Title Registrar as soon as practicable of the institution of any proceedings in the Court which touch upon a determination of native title provided that this rule is subject to the express provisions of these rules for notification in particular cases. Sunset provision '21. Order 75 ceases to be in force on 1 March 1995. 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 7 7. First Schedule 7.1 New Forms 137, 138, 139, 140, 141, 142. After Form 136, insert: FORM 137 NOTIFICATION OF DIRECTIONS HEARING (Order 75, rule 2(c)) (IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY No. of 19 GENERAL DIVISION A.B. Applicant C.D. Respondent To the parties: DIRECTIONS HEARING 1. The documents and things shown on the copy list attached have been received from the Registrar of the National Native Title Tribunal. The matter now becomes a proceeding in the Federal Court of Australia and it has been allotted the Federal Court serial number shown on the top of this document. 2. A directions hearing in this proceeding will be heard by the Court at the time and place specified below. If there is no attendance before the Court by you or on your behalf, the application may be dealt with or an order made in your absence. Before any attendance at the hearing, you must complete and return the tear-off slip to me and send a copy to any other party. Time: (Date and time to be entered by Registry) Place: (Address of Court) Date: eg 7 May, 19 (Signed, Registrar) Registry telephone number: (insert) Registry facsimile number: (insert) (Detach and Return) District Registrar No. of 19 Federal Court of Australia (address) (facsimile number) Acknowledgment 1. Receipt is acknowledged of notification of a directions hearing. 2. The Applicant/Respondent (Delete one) will be represented at the directions hearing by:- (1) (State name) (2) (Address) (3) (Telephone number) (4) (Facsimile number) Date: eg 7 May, 19 (Signature) Note: Persons may appear in person, by a barrister, by a solicitor or by another person. FORM 138 SUMMONS TO APPEAR BEFORE ASSESSOR (Order 75, subrule 7 (3)) (IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY No. 19 GENERAL DIVISION A.B. Applicant C.D. Respondent SUMMONS To: (name of witness) (address) You are summoned by the Federal Court of Australia to appear before (insert name), an assessor appointed under Part VA of the Federal Court of Australia Act 1976, to produce this summons and to give evidence in this matter in which the assessor is to take evidence at the place and on the date and at the time shown below. You are summoned by the Federal Court of Australia to produce the documents listed on the schedule (delete if inapplicable): (a) beofre the assessor (insert name); (b) at (insert place); (c) on (insert date) at )insert time) and unitl you are excused from further attendance. Schedule (if relevant) Date: eg 7 May 19 (Signed, Registrar) Failure to comply with this summons may constitute contempt of court and may result in your arrest. You need not attend (or produce any documents) (delete if inapplicable) unless reasonable expenses of attendance have been paid or tendered to you. If you are not a party to the proceedings, you may produce this summons and the documents to the assessor at the District Registry not later than three working days before the first day on which you are required to attend. (Address of District Registry) (Telephone number) (Facsimile number) FORM 139 REGISTRATION OF DETERMINATION OF NATIONAL NATIVE TITLE TRIBUNAL (Order 75, sub-rule 12 (1)) IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION (Person or body in whose favour approved determination of native title has been made) TAKE NOTICE that the attached determination made under section 160 of the Native Title Act 1993 was lodged with the District Registrar of the Federal Court of Australia this day. The determination has been given registration number /19 . Please note that under the provision of sub-section 167 (1) of the Native Title Act, the determination has effect as if it were an order made by the Federal Court of Australia. Date: eg 7 May 19 (Signed, Registrar) (Seal of the Federal Court of Australia to be affixed here) Note: No action to enforce the determination may be taken before the end of the normal application and review period-see section 167 of the Native Title Act 1993. (Address of District Registry) (Telephone number) (Facsimile number) FORM 140 APPLICATION FOR REVIEW-DETERMINATION OF NATIONAL NATIVE TITLE TRIBUNAL (Order 75, subrules 13 (1) and (3)) (IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY No. of GENERAL DIVISION 19 BETWEEN: A.B Applicant AND: C.D. Respondent APPLICATION FOR REVIEW Application to review the determination of the National Native Title Tribunal made eg 7 May 19 . The determination was registered with the Federal Court of Australia on eg 7 May 19 . (Determination Registration number ) (here insert the NNTT Determination registration number allotted by the Federal Court on the date shown). The applicant seeks review on the following grounds: 1. 2. 3. (Particularise grounds of review) Pending determination of this application, the applicant seeks the following interim orders: 1. 2. 3. (Particularise any interim orders sought) Date: eg 7 May 19 (Signed, applicant or applicant's solicitor) To the respondent(s) If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the application may be dealt with or an order may be made against you in your absence. Before any attendance at that time, you must complete and return the tear-off slip to me and also send a copy to the applicant at the address shown below. Appointment for Directions Hearing Time: (Date and time to be entered by Registry) Place: (Address of Court) Date: eg 7 May 19 (Signed, Registrar) The applicant's address for service is (Specify address for service) Facsimile number: (insert) Telephone number: (insert) (Detach and return) District Registrar No. of 19 Federal Court of Australia (Address) (facsimile number) Acknowledgment 1. Receipt is acknowledged of notification of a directions hearing. 2. The Respondent will be represented at the directions hearing by: (1) (State name) (2) (Address) (3) (Telephone number) (4) (Facsimile number) Date: eg 7 May, 19 (Signature) FORM 141 NOTICE OF APPEAL FROM NATIONAL NATIVE TITLE TRIBUNAL (and application for extension of period in which to appeal, if relevant) (Order 75, subrules 15 (1) and (2)) (IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY No. of GENERAL DIVISION 19 Re: A.B. Applicant C.D. Respondent (vary to suit purpose-see section 169 Native Title Act 1993) NOTICE OF APPEAL The applicant appeals from the decision/determination of (insert details of composition of the National Native Title Tribunal)given on (specify date) at (specify place) whereby (insert details of the decision/determination sought to be appealed). The grounds of the appeal are:* 1. 2. 3. (Particularise the grounds of appeal and whether they raise questions of fact or law) The applicant seeks the orders which follow:* 1. 2. 3. (Particularise the orders sought from the Federal Court of Australia -see subsection 169 (7), Native Title Act 1993) *Note: Need not be be completed at this stage where the applicant applies for an extension of time in which to appeal before the period in which an appeal is to be instituted ends. Application for extension of period in which to appeal The applicant seeks an extension of the period in which to appeal for the reasons which follow: 1. 2. 3. (Particularise the reasons) Note: This needs only be completed if the appeal is not filed within the period of 28 days starting on the day the decision or determination of the Tribunal was given to the person who is appealing-see subsection 169 (4), Native Title Act 1993 and Order 75 subrule 15 (3), Native Title Rules. If an extension is sought, an affidavit complying with subrule 15 (3) must also be filed and served. Date: eg 7 May 19 (Signed, appellant or appellant s solicitor) The applicant s address for service is (Specify address for service) Facsimile number: (insert) Telephone number: (insert) Note: The applicant must serve a copy of the notice of appeal on other parties (if any) to the proceeding before the National Native Title Tribunal. The Federal Court will send a copy to the Registrar of the Tribunal. FILED IN THE FEDERAL COURT OF AUSTRALIA ON THE DATE SHOWN ON THE FILING STAMP. The Federal Court will shortly advise the applicant, the National Native Title Tribunal and other persons with an interest in the matter of the date, time and place of a directions hearing. Date: eg 7 May 19 (Signed, Registrar ) 1994 No. 63 FEDERAL COURT RULES (AMENDMENT) - RULE 8 8. Third Schedule 8.1 Omit Item No. '38' from Column 1 and substitute '38A'. 8.2 Insert after Item No. 37Z '38 sections 459F, 459H, 36B Applications to set 459J, 459L, 459M, aside statutory and 459M 459N demands.' - NOTES 1994 No. 63*1* FEDERAL COURT RULES*2* (AMENDMENT) *1* Notified in the Commonwealth of Australia Gazette on 17 March 1994. *2* Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 No. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 Nos. 40, 45, 137, 225 and 290.