59Rules of Court

#### 59 Rules of Court (1) The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court (including the practice and procedure to be followed in Registries of the Court) and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. (1A) The Judges of the Court, or a majority of them, may make Rules of Court prescribing matters required or permitted by: (a) any other provision of this Act; or (b) any other law of the Commonwealth; to be prescribed by the Rules of Court. (2) In particular, the Rules of Court may make provision for or in relation to: (a) pleading; and (b) appearance under protest; and (c) interrogatories and discovery, production and inspection of documents; and (d) the attendance of witnesses; and (e) the administration of oaths and affirmations; and (f) the custody of convicted persons; and (g) the service and execution of the process of the Court, including the manner in which and the extent to which the process of the Court, or notice of any such process, may be served out of the jurisdiction of the Court; and (h) the issue by the Court of letters of request for the service in another country of any process of the Court; and (i) the service by officers of the Court, in the Commonwealth or in a Territory, of the process of a court of another country or of a part of another country, in accordance with a request of that court or of an authority of that country or of that part of that country, or in accordance with an arrangement in force between Australia and the government of that other country or of that part of that other country; and (j) the enforcement and execution of judgments of the Court; and (k) the stay of proceedings in, or under judgments of, the Court or another court; and (l) the prevention or termination of vexatious proceedings; and (m) the death of parties; and (n) the furnishing of security; and (o) the costs of proceedings in the Court; and (p) the means by which particular facts may be proved and the mode in which evidence of particular facts may be given; and (q) the forms to be used for the purposes of proceedings in the Court; and (r) the time and manner of instituting appeals to the Court; and (ra) the transfer of proceedings from the Federal Circuit and Family Court of Australia (Division 2), including matters relating to costs, such as: (i) the costs of the application for an order transferring such a proceeding; and (ii) the costs for any step in such a proceeding, including steps that occurred before the proceeding was transferred; and (iii) the scale of costs that is to apply; and (s) the duties of officers of the Court; and (t) the fees to be charged by practitioners practising in the Court for the work done by them in relation to proceedings in the Court and the taxation of their bills of costs, either as between party and party or as between solicitor and client; and (ta) the administration of oaths and affirmations in respect of testimony to be given by video link, audio link or other appropriate means; and (tb) the making or receipt of submissions by video link, audio link or other appropriate means; and (u) the reception from New Zealand of copies of instruments, documents and things reproduced by facsimile telegraphy; and (v) the reception from New Zealand of evidence or submissions by video link or audio link; and (w) issuing subpoenas for service in New Zealand and the service of such subpoenas; and (x) the form to accompany a subpoena for service in New Zealand; and (y) the Court’s sittings in New Zealand under Part 8 of the Trans‑Tasman Proceedings Act 2010; and (za) the enforcement of orders under subsection 85(5) of the Trans‑Tasman Proceedings Act 2010; and (zb) the registration and enforcement, and the setting aside of the registration, of judgments under Part 7 of the Trans‑Tasman Proceedings Act 2010; and (zc) the transmission of documents to the High Court of New Zealand; and (zd) taking evidence under section 89 of the Trans‑Tasman Proceedings Act 2010; and (ze) the exercise in Chambers of the Court’s jurisdiction under Part 8 of the Trans‑Tasman Proceedings Act 2010; and (zf) the referral of any proceedings in the Court, or any part of such proceedings or any matters arising out of such proceedings, to a mediator or an arbitrator for mediation or arbitration, as the case may be; and (zg) the procedures to be followed by a mediator or an arbitrator in mediating or arbitrating anything referred for mediation or arbitration under this Act; and (zh) the attendance by persons at conferences conducted by mediators or arbitrators for the purposes of mediating or arbitrating anything so referred; and (zi) the procedure when any such mediation or arbitration ends, both where it has resulted in an agreement or award and where it has not; and (zj) the practice and procedure of the Court in relation to any matter arising under the Native Title Act 1993; and (zk) the notification of determinations of native title to the Registrar of the National Native Title Tribunal; and (zl) the duties of assessors appointed under Part VA of this Act; and (zm) indictments filed in the Court, including: (i) the amendment of such indictments and the substitution of new indictments for such indictments; and (ii) the quashing of such indictments by the Court; and (iii) the joining and separation of multiple accused in a single count in such an indictment; and (iv) the joining and separation of counts in such an indictment; and (v) the presenting of indictments; and (zn) the discontinuance or stay of criminal proceedings; and (zo) the management of criminal proceedings; and (zp) pre‑trial hearings, pre‑trial disclosure and the determination of issues in criminal proceedings; and (zq) disclosure in criminal proceedings by the prosecution and the accused; and (zr) pleas in criminal proceedings; and (zs) the presentation of cases in criminal proceedings; and (zt) the service of documents in criminal proceedings; and (zu) the selection and management of jurors; and (zv) the appearance of the accused by means of video link, audio links or other appropriate means; and (zw) the adjournment of criminal proceedings; and (zx) the practice and procedure of the Court in relation to any or all of the following proceedings: (i) proceedings under the Proceeds of Crime Act 2002; (ii) proceedings for the forfeiture of a thing under a law of the Commonwealth; and (zy) the issue of warrants; and (zz) bail, including the forfeiture of security provided for an accused’s bail. (2A) In particular, the Rules of Court may make further provision in relation to the taking or receipt of evidence, where: (a) the evidence is given by video link, audio link or other appropriate means; and (b) the Court or a Judge is authorised to receive the evidence under another provision of this Act or another law of the Commonwealth. (2B) The Rules of Court may make provision for: (a) the amendment of a document in a proceeding; or (b) leave to amend a document in a proceeding; even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment. (2C) Without limiting subsections (2), (2A) and (2B), the Rules of Court may make provision for, or with respect to, the following matters in relation to referrals of proceedings or questions to a referee under section 54A: (a) the cases in which a proceeding, or a question arising in a proceeding, may be referred by the Court to a referee for inquiry and report to the Court; (b) the appointment of a Judge, the Chief Executive Officer or other officer of the Court or other person as a referee; (c) the procedures to be followed by a referee in inquiring into and reporting on a proceeding, or a question arising in a proceeding, that has been referred to the referee; (d) the participation (including attendance) of persons in an inquiry by a referee; (e) the procedures to be followed by a referee after an inquiry by the referee has ended (whether or not a report has been provided to the Court); (f) the manner in which a report by a referee may be called in question; (g) the provision of the services of officers of the Court and the provision of court rooms and other facilities for the purpose of an inquiry by a referee; (h) the fees payable to a referee; (i) time limits to be observed by the parties to the proceeding to which an inquiry by a referee relates, in relation to any matter connected with the inquiry; (j) any other matters associated with an inquiry or report by a referee. (2D) Without limiting subsection (2C), the Rules of Court may empower: (a) the Court or a referee to require that evidence be given on oath or affirmation in an inquiry by a referee; or (b) a referee to administer an oath or affirmation. (3) Rules of Court under this Act have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters. (4) The Legislation Act 2003 (other than sections 8, 9, 10 and 16 and Part 4 of Chapter 3 of that Act) applies in relation to rules of court made by the Court under this Act or another Act: (a) as if a reference to a legislative instrument (other than in subparagraph 14(1)(a)(ii) and subsection 14(3) of that Act) were a reference to a rule of court; and (b) as if a reference to a rule‑maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and (c) subject to such further modifications or adaptations as are provided for in regulations made under section 59A of this Act. (5) Despite the fact that section 16 of the Legislation Act 2003 does not apply in relation to rules of court made by the Court under this Act or another Act, the Office of Parliamentary Counsel (established by subsection 2(1) of the Parliamentary Counsel Act 1970) may provide assistance in the drafting of any of those Rules if the Chief Justice so desires.