Federal Court Rules (Amendment) (Cth)

Statutory Rules 1993

No. 225 1

__________________

Federal Court Rules 2(Amendment)

WE, Judges of the Federal Court of Australia, make the following Rules under the Federal Court of Australia Act 1976.

 Dated 6 August 1993.

 M. E. J. BLACK C. J.

 C. A. SWEENEY J.

 R. M. NORTHROP J.

 J. F. GALLOP J.

 J. S. LOCKHART J.

 K. J. JENKINSON J.

 A. R. NEAVES J.

 B. A. BEAUMONT J.

 M. R. WILCOX J.

 J. E. J. SPENDER J.

 P. R. A. GRAY 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.

 D. P. DRUMMOND J.

 R. E. COOPER J.

 A. P. WHITLAM J.

 M.J. BEAZLEY J.

Judges of the Federal

Court of  Australia

J. T. HOWARD

Registrar

____________

1.   Commencement

1.1   These Rules commence on 16 August 1993.

2.    Amendment

2.1   The Federal Court Rules are amended as set out in these Rules.

3.    Order 8 , new rule 1a

3.1   Before rule 1, insert:

Application and interpretation

 “1a. (1)   This Order applies to the service abroad of judicial documents.

“(2)

In this Order:

‘Attorney-General’s Department’ means the Attorney-General’s Department of the Commonwealth;

‘convention country’ means a country with which Australia is party to a convention as to service abroad of judicial documents;

‘non-convention country’ means a country with which Australia is not party to a convention as to service abroad of judicial documents.

4.   Order 8 , rule 1 (Cases for service of originating process)

4.1   Omit “rule 2,”, substitute “rule 2 and Divisions 2 and 3 of this Order,”.

5.    Order 8 , rule 2 (Leave or confirmation)

5.1   Subrule 2 (3):

Omit “found.”, substitute “found, and whether that country is a convention country or a non-convention country.”.

6.    Order 8 , rule 3 (Other documents)

6.1   Omit “Service”, substitute “Subject to any convention, service”.

7.    Order 8 , rule 6 (Service under convention)

7.1   Omit the rule, substitute:

Application

 “6. This Division applies to service of judicial documents in a convention country.”.

8.    Order 8 , rule 7 (Requisite documents)

8.1   Omit all the words preceding paragraph (a), substitute:

 “7. A party seeking service under this Division must:”.

8.2   Paragraph 7 (a):

Omit “Registrar:”, substitute “Registrar, in duplicate:”.

8.3   Subparagraph 7 (a) (v):

Omit “the request;”, substitute “the request in accordance with rule 8;”.

8.4   Paragraph 7 (b):

Add at the end:

• “; and (iii)

  unless English is an official language of the country concerned—a translation of the request in accordance with rule 8; and

• (iv)

  a written undertaking by the party (or the party’s solicitor) to pay to the Registrar an amount equal to the sum of all expenses incurred by the Court in relation to the request.”.

9.   Order 8

9.1   Add at the end:

“Division 3—Service in non-convention countries

Application of Division

 “13. This Division applies to service of judicial documents in a non-convention country.

Required documents

 “14. (1) A party seeking service under this Division must file a request in accordance with form 14a in the First Schedule.

“(2)

A document to be served must be sealed with the seal of the Court used for sealing documents that are to be served outside Australia and must be passed to the Secretary of the Attorney-General’s Department by the Registrar, together with:

• (a)

  a copy of the document translated into an official language of the country in which it is to be served; and

• (b)

  a request in accordance with Form 14b in the First Schedule:

for transmission to the government of the country in respect of which leave has been given.

Proof of service

 “15. An official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies is sufficient proof of the service of a document if it certifies or declares that (or to the effect that) the document has been:

• (a)

  personally served; or

• (b)

  served in accordance with the law of the country;

and, when filed, is taken to be a record of the service and the equivalent of an affidavit of service under these Rules.

Substituted service

 “16. (1)   If an official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies, certifies or declares that efforts to serve a document have been without effect, the Court or a Judge, on ex parte application by the applicant, may order in accordance with Form 14c in the First Schedule that the applicant be permitted to request substituted service of the document.

“(2)

A request for substituted service may be made by the applicant at the Registry out of which the document to be served has been issued, by filing:

• (a)

  a request in accordance with Form 14a in the First Schedule; and

• (b)

  the document.

“(3)

A copy of the order and of the document must be sealed in accordance with subrule 15 (2) and must be passed to the Secretary of the Attorney-General’s Department by the Registrar, together with:

• (a)

  a copy of the document translated into an official language of the country in which it is to be served; and

• (b)

  a request in accordance with Form 14b in the First Schedule:

for transmission to the government of the country in respect of which leave has been given.

10.   Order 71, rule 36 (Application for a winding up order—section 462)

10.1   Paragraph 36 (3) (b):

Omit the paragraph, substitute:

• “(b)

  annex the most recent balance sheet and profit and loss account statement that are available to the company.”.

11.   Order 71, rule 36B (Application to set aside a statutory demand—section 459G)

11.1   Paragraph 36B (b):

After “459H”, insert “ or 459J”.

12.   Order 71, rule 43 (Short form bills for winding up applications—subsection 466 (2))

12.1   Paragraph 43 (1) (a):

Omit “item 51”, substitute “item 43A”.

13.   Order 71, rule 47 (Transitional provisions for winding up applications pre-23 June 1993)

Omit all words after “these Rules”, substitute:

“apply to:

• (a)

  an application for a winding up order under section 460 or 461 of the Corporations Law that is made before 23 June 1993 and to proceedings in relation to such an application; and

• (b)

  if a demand was served on a company under paragraph 460 (2) (a) of the Corporations Law before 23 June 1993—an application for a winding up order under subsection 460 (1) of the Corporations Law.”.

14.   Order 71, rule 51 (Power of provisional liquidator—section 472)

14.1   Omit the rule, substitute:

Exercise of power of provisional liquidator—section 472

 “51. (1) For the purpose of enabling the provisional liquidator to take out letters of administration of the estate of a deceased contributory or debtor or otherwise to obtain payment of money due from a contributory or debtor or his or her estate under paragraph 477 (2) (h) of the Corporations Law, money due to the company is deemed to be due to the provisional liquidator.

  “(2)

An application under subsection 472 (6) of the Corporations Law in relation to the exercise or proposed exercise of the powers of a provisional liquidator may be made by notice of motion in the proceedings for the winding up order.”.

15.   Order 71, rule 81 (Issue of summons for examination—sections 596A ane 596B)

15.1   Paragraph 81 (7) (b):

Omit “Corporation”, substitute “Commission”.

16.   First Schedule (Forms)

16.1   Form 91:

Omit “by serve”, substitute “serve”.

16.2   Form 92A:

Omit all words after “Name of Applicant or his or her solicitor”, substitute:

“[NOTE TO APPLICANTS:The Court may determine that an administrator other than the person nominated by the Applicant should be appointed.]”.

16.3   Form 93B:

After “(2) No proceedings”, insert “(or, if applicable, no winding up proceedings)”.

16.4   Form 93B:

Omit “applicant or the applicant’s solicitors.]”, substitute “creditor or the creditor’s solicitors.]”.

16.5   Form 93C:

Omit:

“(OR, INSERT THE FOLLOWING, ONLY IF THE WINDING UP APPLICATION RELIES ON A FAILURE TO COMPLY WITH A STATUTORY DEMAND)”;

substitute:

“(OR, INSERT THE FOLLOWING, ONLY IF THE WINDING UP APPLICATION DOES NOT RELY ON A FAILURE TO COMPLY WITH A STATUTORY DEMAND)”.

17.   Third Schedule (Powers and functions of the Court that may be exercised by a Registrar if the Court or a Judge so directs)

17.1   Item 38 (Column 2):

Before “459P”, insert “459A, 459B,”.

18.   Schedule 1

18.1   Forms 13 and 14:

Omit the Forms.

18.2   New Forms 14a, 14b and 14c:

After Form 12, insert:

FORM 14a

REQUEST TO COURT FOR SUBSTITUTED* SERVICE IN

NON-CONVENTION COUNTRY

(Order 8, subrules 14 (1) and 16 (2))

I,

 [insert name] 

request that

 [identify document(s) to be served]

be transmitted through the diplomatic channel to

 [insert name of country]

for service*/substituted service* on the respondent

 [insert name of respondent]

at

 [insert address for service] or elsewhere in [insert name of country] .

I personally undertake to be responsible for all expenses incurred by the Commonwealth in respect of the requested service and, on receiving due notification of the amount the expenses, will pay the amount to the Commonwealth and will produce the receipt for that payment to the proper officer of the Federal Court of Australia.

Dated

.......................................

(Signature of solicitor)

*

 Omit if inapplicable

_____________

FORM 14b

REQUEST FOR TRANSMISSION OF NOTICE TO

 A FOREIGN GOVERNMENT

(Order 8, subrules 14 (2) and 16 (3))

The Chief Justice of the Federal Court of Australia requests the Secretary of the Attorney-General’s Department to transmit to the government of [insert name of country] the following documents:

with the requests that:

• (a)

  the documents be served personally*/by substituted service* on [insert name of respondent] against whom these proceedings have been taken in the Federal Court of Australia; and

• (b)

  evidence of service of the documents be officially certified or declared (on oath or otherwise) to this Court in such manner as is consistent with usage or practice of the courts in  [insert name of country]  in proving service of legal process.

*The Chief Justice further requests that, if efforts to effect personal service of the documents prove ineffectual, the government or court of

  [insert name of country]  be requested to certify or declare (on oath or otherwise) to this Court that fact.

Dated

*

 Omit if inapplicable.

___________

FORM 14c

ORDER PERMITTING REQUEST FOR SUBSTITUTED SERVICE IN NON-CONVENTION COUNTRY

(Order 8, subrule 16 (1))

It is ordered, on reading the certificate*/declaration*

 [insert description of certificate/declaration] 

that the applicant be permitted to request the Court to request substituted service of

 [insert description of document(s) to be served]  on the respondent at [insert address for service] or elsewhere in [insert name of country] 

and that the respondent have

 days after the substituted service within which to enter an appearance.

Dated

__________

18.3   Form 129:

Add at the end:

“To the respondent

 [address]

A directions hearing in this application *[and/or for the applicant’s claim for an interlocutory order] will be heard by the Court at the time and place specified below.

If there is not attendance before the Court by you or by your counsel or solicitor, the application

  may be dealt with and judgment may be given or an order made in your absence. Before any attendance at that time, you must file an appearance in the Registry.

Time: [date and time to be entered by Registry unless fixed by Court]

Place: [address of Court]

[Where the time for service has been abridged, add]

*The time by which this application is to be served has been abridged by the Court to [specify time] .

Date:

 e.g. 7 May 19

.................................

Registrar

The applicant’s address for service is

[specify address for service]

The applicant’s address is

[if a natural person, specify residence

or place of business;

if a body corporate,

specify principal place of business]

[*

 Omit if inapplicable]

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 13 August 1993.

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 and 137