Federal Court Rules (Amendment) (Cth)
WE,
Judges of the Federal Court of Australia, hereby make the following Rules of
Court under the
Dated 8 November 1991.
M. E. J. BLACK C.J.
C. A. SWEENY J.
R. M. NORTHROP J.
J. D. DAVIES J.
J. S. LOCKHART J.
I. F. SHEPPARD J.
A. R. NEAVES J.
B. A. BEAUMONT J.
J. E. J. SPENDER J.
P. R. A. GRAY J.
C. W. PINCUS J.
J. C. S. BURCHETT J.
J. A. MILES J.
D. M. RYAN J.
W. M. C. GUMMOW J.
R. S. FRENCH J.
M. R. EINFELD J.
M. L. FOSTER J.
M. C. LEE J.
H. W. OLNEY J.
J. W. VON DOUSSA J.
D. G. HILL J.
M. F. O’LOUGHLIN J.
D. F. O’CONNOR J.
T. J. HIGGINS J.
P. C. HEEREY J.
Judges of the
Federal Court of Australia
J. T. HOWARD
Registrar
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1.1 These Rules commence on 1 January 1992.
2.1 The Federal Court Rules are amended as set out in these Rules.
3.1 After Order 62, rule 45, insert:
46. (1) Notwithstanding anything in this Order, the Registrar shall have a discretion to apply the provisions or a provision of this rule, and may for that purpose decline to give an appointment to tax a bill on its being filed, and may require the party who filed the bill to lodge any documents in the possession or power of that party.
(2) If the Registrar decides to apply this rule, the Registrar may direct that action be taken under the provisions of subrule (3) or subrule (4). The Registrar may also or alternatively take action under subrule (6).
(3) (a) Upon the direction of the Registrar under subrule (2), a taxing officer may, without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.
(b) The Registrar will notify each party interested in the bill in writing of an estimate made under paragraph (a).
(c) Unless within 14 days of receipt of notice under paragraph (b), a party interested files and serves on each other party a notice of objection to the estimate, there shall be no taxation, and the amount of the estimate shall be deemed to be the amount for which a certificate of taxation may issue.
(d) Upon filing a notice of objection a party shall pay to the Registrar an amount of $750 as security for the costs of any taxation of the bill.
(e) Where a notice of objection is filed, the Registrar may direct that subrule (4) apply, or that taxation of the bill proceed.
(4) (a) Upon the direction of the Registrar under subrule (2) or paragraph (e) of subrule (3), a taxing officer may, in the absence of the parties, provisionally tax the bill, noting legibly upon it in ink all amounts provisionally taxed off.
(b) The Registrar will serve a photocopy of the bill so provisionally taxed on each party interested.
(c) Unless within 21 days of receipt of a photocopy of the provisionally taxed bill, a party interested files and serves on each other party a notice requiring a full taxation, there shall be no further taxation, and the amount at which the bill was provisionally taxed shall be deemed to be the amount for which a certificate of taxation may issue.
(d) A notice requiring a full taxation shall:
(i) set out a complete list of each item or part of an item in the bill to the treatment of which upon the provisional taxation the party filing the notice objects; and
(ii) specify the nature and grounds of objection and the extent to which it is contended each item or part of an item should have been allowed or disallowed as the case may be.
(e) Within 21 days of service of a notice under paragraph (c), a party served may file and serve on each other party a notice containing corresponding details of any item or part of an item to the treatment of which upon the provisional taxation that party objects and of the nature and grounds of such objections.
(f) On taxation of the bill and subject to a discretion of the taxing officer exercisable in exceptional circumstances only, all items shall be taxed as they were provisionally taxed to the extent that they are not referred to in a notice filed pursuant to paragraph (c) or (e) and no ground shall be relied on which is not specifically set out in such a notice.
(g) The party requiring a full taxation shall bear the costs of the taxation of all parties unless on taxation there is obtained in that party’s
favour a variation of at least fifteen per centum (15%) of the amount provisionally taxed or of the estimate of taxed costs in a case where there has been no provisional taxation.
(5) At the conclusion of the fixed vacation of the Court in each year, each District Registrar shall produce figures for the guidance of parties and solicitors showing:
(a) amounts taxed in the district registry in particular categories of cases during the previous two years; and
(b) such other figures as the District Registrar considers will assist parties and solicitors in considering estimates of costs; and these figures will be made available upon request to a party or solicitor considering an estimate of costs.
(6) At any time after the making of an order for costs, including at any stage of the procedure leading up to the issue of a certificate of taxation pursuant to an estimate or provisional taxation or full taxation, the Registrar may order (either upon application of a party or of the Registrar’s own motion) that the parties attend before a designated Registrar or other designated officer in confidential conference with a view to:
(a) reaching a mediated resolution of the amount for which a certificate of taxation should issue; or
(b) clarifying the real issues in dispute.
(7) In this rule a reference to a Registrar extends only to persons occupying the office or for the time being performing the duties of Registrar or District Registrar of the Court.”
4.1 Subrule 7 (3):
Omit “14 days”, substitute “21 days”.
5.1 Subrule 22 (5):
Omit the subrule, substitute:
“(5) If a person making an affidavit filed under subrule (3) or (4) cannot depose to all the contents of the affidavit from his or her own knowledge, the person must specify details of the sources of information contained in the affidavit and state his or her belief in the truth of that information.”.
6.1 Paragraph 36 (2) (a):
Omit “filled”, substitute “filed”.
7.1 Paragraph 39 (a):
Omit “in the same form as the draft filed under paragraph (d) of subrule 38 (1)”.
7.2 Paragraph 39 (b):
Omit “in the same form as the draft filed under paragraph (e) of subrule 38 (1)”.
8.1 Subparagraph 58 (4) (c) (iv):
Omit the subparagraph, substitute:
“(iv) stating whether the committee of inspection, if any, has passed a resolution approving the liquidator’s release; and”.
9.1 Subrule 61 (7):
Omit “Committee of Inspection”, substitute “committee of inspection”.
10.1 Subrule 63 (1):
Omit the subrule, substitute:
“(1) Where a liquidator applies for an order under paragraph 483 (3) (b) for payment of a call, the evidence brought in support of the application must include an affidavit in Form 115.”.
11.1 Subrule 65 (5):
Omit the subrule, substitute:
“(5) Any remuneration of a joint liquidator appointed under this rule:
(a) will be dealt with as part of the remuneration of the appointed liquidator; and
(b) must be paid to the joint liquidator by the appointed liquidator when the appointed liquidator receives remuneration for the period during which the joint liquidator held office.”.
12.1 Paragraph 69 (1) (a):
Omit “requirements”, substitute “requirement”.
13.1 Form 86:
Omit “subrule 13 (18)”, substitute “subrule 14 (18)”.
13.2 Form 99:
Omit Form 99, substitute:
“FORM 99
NOTICE TO LIQUIDATOR OF APPOINTMENT
(Order 71, Rules 42(1) and 49(1))
(Heading in Form 75)
To: (Name and address of liquidator)
(Name of company) of (address of registered office of company) was wound up by order of the Court made on (date) and (name and address of liquidator) was appointed as the liquidator of that company.
OR
By order of the Court on (date) (name and address of provisional liquidator) was appointed as provisional liquidator of (name of company) of (address of registered office of company).
District Registrar
Date: e.g. 7 May 19
(NOTE: Where a liquidator is appointed by the Court, Order 71, rule 39 of the Federal Court Rules permits the Court to direct that copies of this notice be sealed forthwith. If this notice is not sealed after the making of the winding up order under rule 39, subrule 42 (1) requires that the applicant (unless it is the Commission) attend at the Registry to obtain a sealed copy of a notice in this form not later than the day after the order was made. The requirements for service of that notice are specified in paragraphs (b) to (d) (inclusive) of subrule 42 (1).
Where a provisional liquidator is appointed, Order 71, subrule 49 (1) of the Federal Court Rules requires that the applicant (unless it is the Commission) attend at the Registry to obtain a sealed copy of a notice in this form not later than the day after the order was made. The requirements for service of that notice are specified in paragraphs (b) to (d) (inclusive) of subrule 49(1).)”.
13.3 Form 102:
Omit the Heading, substitute:
“CERTIFICATE OF LIQUIDATOR OF RESOLUTION OF MEETING OF CREDITORS, CONTRIBUTORIES OR COMMITTEE OF INSPECTION”.
1. Notified in
the
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 and 249.
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