Peter A Clarke

There will be a change to the Rules of the Federal Circuit Court and Family Court (Division 2). New Practice Directions will also take effect being:

• Central Practice Direction: General Federal Law Proceedings
• Central Practice Direction: Migration Proceedings
• General Federal Law Practice Direction: Admiralty and Maritime Proceedings;
• General Federal Law Practice Direction: Intellectual Property Proceedings.

Practice Directions

The Court’s summary of the Practice Directions provides:

Central Practice Direction: General Federal Law Proceedings

• updates to reflect new rule references in the new GFL Rules.
• updates removing child support from the types of proceeding listed as within the Court’s general federal law jurisdiction, to reflect that child support proceedings must now be heard in the family law jurisdiction.
• new item 3.2 on the overarching purpose stating that parties and their lawyers have a duty to co-operate with the Court and amongst practitioners.
• new section 4 stating the procedural requirements for parties seeking to file an urgent application.
• new item 6.3 on case management stating that the Court expects a party to seek consent of all other parties when seeking to adjourn a hearing or vacate a listing date.
• updates to section 8 on ending a proceeding early to reflect that parties can file a notice of discontinuance at any time before the first court date, or, if the proceeding is continued on pleadings, any time before the pleadings have closed. This includes new item 8.2 which states that the notice of discontinuance can be filed at a later date with the leave of the court or the other parties’ consent, if judgment has not been entered.
• new section 10 on parties’ conduct and communication with the Court stating the requirements for parties when communicating with each other, the Court and all Court staff. 

Central Practice Direction: Migration Proceedings

• this is a new Practice Direction, some items in the previous Migration Practice Direction remain and new items have been included.
• updates to reflect new rule references under the new GFL Rules.
• new section 3 including:
  • the assignment of a pseudonym to litigants
  • the requirements for how parties are to be named in migration proceedings
  • the requirement that all Court documents must include the details of the person who prepared the document irrespective of whether that person is a lawyer
  • the obligations under section 486E of the Migration Act 1958 (Cth)
  • the requirements for notifying the other party when filing documents with the Court.
• new section 4 regarding how the Court triages matters before they are allocated to a judicial officer for determination.
• new section 5 stating the requirements for parties seeking to file an urgent application.
• new section 6 regarding the non-removal from Australia of detainees with litigation before the Court.
• new section 7 regarding matters involving a party who is in immigration detention.
• new section 8 regarding the requirement for the solicitor for the Minister to prepare a Court Book and what it must include. This section also includes the Court’s requirements where a party wishes to rely on authorities.
• new section 9 on interview/hearing audio and transcripts.
• new section 10 regarding requests for adjournment.
• new section 12 regarding the requirements for Direct Access Barristers.
• new section 13 on parties’ conduct and communication with the Court stating the requirements for parties when communicating with each other, the Court and all Court staff.

General Federal Law Practice Direction: Admiralty and Maritime Proceedings

• updates to reflect new rule references under the new GFL Rules.
• new item 1.2 reflecting that parties have a duty to act consistently with the overarching purpose, and practitioners must assist parties to comply with the duty.
• removal of section 8 on urgent applications due to new section 4 in the Central Practice Direction – General Federal Law Proceedings.

General Federal Law Practice Direction: Intellectual Property Proceedings

• updates to reflect new rule references under the new GFL Rules.
• section 5 on urgent applications has been condensed to remove instructions on filing urgent applications, noting new item 4 in the Central Practice Direction – General Federal Law Proceedings which includes this information.
• new items 7.2 and 7.3 have been added under case management, stating that parties must assist the court to achieve the overarching purpose as set out in the FCFCOA Act and that they are expected to make a genuine effort to narrow or resolve issues in dispute, providing a list of considerations that parties and their lawyers must consider.

There will be new court forms which are:

• Notice of Contention
• Originating Application – Judicial Review under the ADJR Act
• Form 7 – Claim under the Fair Work Act 2009 alleging sexual harassment in connection with work

Notice of Contention

• new form relating to the requirement under rules 27.06 and 30.07 of the new GFL Rules that a notice of contention must be filed in the approved form
• new form to be used for the purpose of filing an Originating application for an order of Review under the ADJR Act, it replaces Federal Court Form 66 as the approved form pursuant to subrule 26.02(1) of the new GFL Rules.
•  

Form 7 – Claim under the Fair Work Act 2009 alleging sexual harassment in connection with work

• new form relating to a claim under the Fair Work Act 2009 (Cth) alleging sexual harassment in connection with work. 

Update to existing court forms

General 

Originating Application – General Federal Law

• updates to reflect new rule references under the new GFL Rules.
• updates to reflect new terminology of ‘Originating application’.
• updates to simplify the form instructions to increase accessibility and ease of use for parties.
• new ‘tick box’ to check if there is no respondent and the application is for leave to institute proceedings pursuant to new GFL Rule 6.03.
• updates under type of application for applicants to elect for the proceeding to be dealt with in the Court’s small claims procedure under subsection 199(1) of the National Consumer Credit Protection Act 2009, and a new question for applicants to list which item in subsection 199(2) covers the orders sought.   

Interlocutory Application

• this form has been re-named from ‘Application in a Proceeding’ to reflect the updated terminology in general federal law and migration proceedings of ‘interlocutory application’.
• updates to the instructions for completion and the form to remove instructions and items relating to family law proceedings. The updates reflect that this form is to ONLY be used for general federal law and migration proceedings.  
• updates to reflect new provision references under the new GFL Rules.

Response– General Federal Law

• updates to reflect new rule references under the new GFL Rules and to remove reference to the Federal Court Rules 2011.
• new questions under response to applicant’s claim for final orders for respondents to ‘tick’ if the response includes a cross-appeal from a decision of the Administrative Review Tribunal or the Commissioner. 

Subpoena – General Federal Law and Migration

• updates to reflect new rule references under the new GFL Rules. 

• updates to notes to simplify instructions for accessibility and ease of use for parties. 

• updates to the notes reflect the change to the process for subpoenas under Part 18 of the new GFL Rules.

Notice of intention to withdraw as lawyer 

• updates to reflect new rule references under the new GFL Rules.
• update to reflect that parties now have 5 days (as opposed to the previous 7 days) from the date upon which the Notice of Withdraw of a Lawyer is filed to either appoint another lawyer or complete, file and serve a notice of address for service.

Fair Work

Originating Application – Fair Work

• updates to reflect new rule references under the new GFL Rules.
• updates to the list of legislation under which applicants can commence proceedings in the Court to include the Federal Safety Commissioner Act 2022 and the Fair Work (Registered Organisations) Act 2009.
• new reference to section 548 of the Fair Work Act 2009 for the applicant electing for proceedings to be dealt with under the Court’s Small Claims List.
• Updates to the instructions to reflect updated terminology of ‘originating application’ and ‘interlocutory application’ and to simplify the form instructions to increase accessibility and ease of use for applicants.

Affidavit of Service – Fair Work

• updates to reflect new rule references under the new GFL Rules.
• updates to the instructions to item 7 stating if there is more than one annexure, refer to each by the deponent’s initials followed by a number starting with ‘1’.
• updates to the list of documents that were served, including changes to form 5A small claim under the Fair Work Act 2009 removing reference to casual conversion disputes and updating references to subsections 548(1B) and (1C) of the Fair Work Act 2009.

Form 5A – Small claim under the Fair Work Act 2009

• updates to reflect new rule references under the new GFL Rules.
• revision of the form to now be used for small claims proceedings under subsections 548(1B) and 548(1C) of the Fair Work Act 2009 and removing item 25 in Part G on casual conversion proceedings.

Human Rights

Originating Application – Human Rights

• updates to reflect new rule references under the new GFL Rules.
• removal of part E extension of time and addition of new item 2 in Part A orders sought if the applicant is seeking an extension of time, and the requirement that the applicant must file an affidavit explaining the delay and showing why the Court should grant an extension. Updates to the instructions for completion to reflect the same. 

Migration

Originating Application – Migration

• updates to reflect new rule references under the new GFL Rules.
• update to the instructions for completion to include the requirement for the person’s name who prepared the application (or any subsequent amended application) to be included in the table under first court date.
• new item 5 in the instructions for completion that if the grounds of the application include an allegation of jurisdictional error, the application must identify the basis of the alleged error (pursuant to subrule 25.04(2) of the new GFL Rules).
• new item 6 in the instructions for completion that if the grounds of the application include an allegation of fraud or bad faith, the application must include details of the alleged fraud or bad faith (pursuant to subrule 25.04(3) of the new GLF Rules).
• update to the instructions for completion that an application and other documents with it must be served at least 5 days before the day fixed for hearing of the application (as opposed to 7 days as was previously allowed).  
• updates to the notice to respondents that a respondent who intends to consent the application must file a response within 6 weeks of service of the application (as opposed to the previous 8 weeks) and that a response must include, or be accompanied by, a certificate signed by the lawyer for the respondent that any factual and legal material available to the lawyer provides a proper basis for the response (pursuant to subrule 25.05(5) of the new GFL Rules).

Forms used in family law and general federal law proceedings

Affidavit of service

• updates to reflect new rule references under the new GFL Rules.
• new items under Part B relating to documents to be served to include the Originating Application (General Federal Law) and application in a Proceeding (Interlocutory Application).

Application for Review

• this form has been amended to now be used for family law and general federal law proceedings, except for a family law appeal or bankruptcy proceeding.

Forms that are no longer required

The following forms are no longer required to be filed in general federal law proceedings and will no longer be available for eLodgment:

• Notice of Request to Inspect
• Request to attend by electronic communication*
• Form 174 – Notice of filing
• Form 173 – Notice of filing and hearing

Updates to the Bankruptcy court forms

There have also been amendments to the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankruptcy Rules) to update references to the new GFL Rules and updates to Schedule 1. These amendments will also commence on 1 September 2025.

As a result of the updates to the Bankruptcy Rules, the bankruptcy court forms have also undergone minor changes and will be subject to a 1-month grace period.