Supreme Court Amendment Rules (No. 5) 1999 (WA)

5 November 1999) GOVERNMENT GAZETTE, WA 5625

JUSTICE

JM301*

Supreme Court Act 1935

Supreme Court Amendment Rules (No. 5) 1999

Made by the Judges of the Supreme Court.

1.            Citation

These rules may be cited as the Supreme Court Amendment
Rules (No. 5) 1999.

2.            The rules amended

The amendments in these rules are to the Rules of the Supreme
Court 1971* unless otherwise indicated.

[* Reprinted 21 November 1994.

For amendments to 8 October 1999 see 1998 Index to
Legislation of Western Australia, Table 4, p. 296-7, and
Gazette 16 July 1999.]

3.           Order 1 amended

44              After Order 1 Rule 6 the following Rule is inserted —

7.            Electronic documents and communications

particular class of proceeding; or

(1) The Court may give directions to facilitate —

(a)	the preparation, filing, service and exchange of electronic documents relating to proceedings before the Court;
(b)	the preparation and issue of electronic documents by the Court; and
(c)	the conduct of proceedings before the Court by means of the electronic communication of written information between the Court and parties to the proceedings.

(2) The directions may be given —

(a) by the Chief Justice in practice directions

applicable to proceedings generally or to a

5626 GOVERNMENT GAZETTE, WA 15 November 1999

(b) by a Judge or the Full Court in particular

proceedings.

(3)	The directions may vary the operation of, or allow non- compliance with, these Rules.
(4)	A direction given under this Rule has effect as if it were part of these Rules.
(5)	Nothing done under such a direction shall be treated as an irregularity for the purposes of Order 2.

4.           Order 81G amended

(1)	Order 81G Rule 1(2) is amended by deleting the definition of
"Commission" and inserting instead -
46

"Commission" means the Australian Securities and

Investments Commission established by the
Australian Securities and Investments Commission

Act 1989 of the Commonwealth;

(2)	Order 81G Rule 3 is amended by deleting "ASC Law" and inserting instead -
" ASIC Law ".
(3)	Order 81G Rule 4 is repealed and the following Rule inserted instead -

4.            Jurisdiction of Master

(1) A Master may exercise any of the Court's jurisdiction

referred to in Rule 3 but may not hear and determine -

(a)	an appeal referred to in Rule 29;
(b)	a matter referred to in column 1 of Part 2 of the Seventh Schedule; or
(c)	a complaint for an offence.

(2) A Master, on his or her own motion or on an

application by a party, may refer a matter within his or heard and determined by a Judge.

her jurisdiction for hearing and determination by a

(3) A Judge, on his or her own motion or on an application by a party, may refer a matter referred under paragraph (2) or referred to in column 1 of Part 2 of the Seventh

Schedule for hearing and determination by a Master with any directions the Judge thinks fit.

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(4)	In exercising his or her jurisdiction under this Order, a Master may exercise any of the powers conferred on the Court or a Judge.
(5)	This Rule does not prevent a Judge from exercising the jurisdiction it confers on a Master.
(6)	The descriptions in column 2 of Part 2 of the Seventh Schedule are inserted for convenience only and do not affect the operation of this Order.

(4)	Order 81G Rule 22(2) is amended by deleting", 452(4)".
(5)	Order 81G Rule 25(1) is amended by deleting the Table and inserting instead -

Table

Column 1	Column 2
Provision	Description of application
s. 246D	To set aside variation etc. of members' rights
s. 254E	To validate, or confirm terms of, purported issue of shares
s. 411 (1 A), (4)	For an order for meetings or for approval of
or (6)	compromise or arrangement
s. 1457	To wind up scheme

(6) Order 81G Rule 25(4)(c) is deleted and the following
subparagraph is inserted instead -

(c) proof of the current address of the registered

office of the corporation, including a copy of or

an extract from the document (certified by the

Commission under section 1274(5)) lodged

with Commission that notifies the Commission

of that address;

(7) Order 81G Rule 26(1) is amended by deleting the Table and
inserting instead -

Table

Column 1	Column 2
Provision	Description of application
s. 243ZD	For declaration of substantial compliance
s. 254E	To validate, or confirm terms of, purported issue of shares
s.266(4)	To extend period for lodging notice in respect of charge
s. 447E	For an order as to administration of a company
s. 449B	To remove administrator

5628 GOVERNMENT GAZETTE, WA 15 November 1999

Column 1	Column 2
Provision	Description of application
s. 471B	For leave to begin or proceed with proceeding or enforcement process against company being wound up etc.
s. 473(2) or (3)	To fix remuneration of provisional liquidator or liquidator
s. 482(1)	For stay of compulsory winding up
s.500(2)	For leave to begin or proceed with action against company being voluntarily wound up
s. 503	To remove a liquidator
s. 511(l)(b)	For stay of voluntary winding up
(where the
application is for the
exercise of the power
that would be
exercisable under
s. 482(1) if the
company were being
wound up by the
Court)
s. 532	For leave to be appointed or act as liquidator
s. 601AH(2)	For an order that ASIC reinstate registration of a company
s. 601CC(8)	To restore name of Australian body to register
s. 1322(4)	To overcome irregularities in proceedings

(8)	Order 81G Rule 28 is repealed.
(9)	Part 6 of Order 8 1 G is repealed.

(10) Part 7 of Order 81G is amended as follows:

(a)

in the heading to Part 7 by deleting "SECTION 260" and 46 SECTION 246AA ";

(b) in Rules 57(1), (6) and (7) by deleting "section 260" wherever appearing and in each place inserting instead -

46 section 246AA ";

(c) in Rule 57(2) by deleting "section 260(1)" and inserting instead -

46 section 246AA(1) ".

(11) Order 81 G Rule 73(c) is deleted.

5 November 19991 GOVERNMENT GAZETTE, WA 5629

(12) Order 81G Rule 75(1) is repealed and the following paragraph is

inserted instead -

(1) Upon the filing of an application under this Part the

signed by an official liquidator but otherwise the applicant may file a consent to be appointed liquidator liquidator who is entitled to be appointed as liquidator if an order for winding up the company is made.

5. Order 85 inserted
After Order 84 the following Order is inserted

Order 85 - Proceedings to which the Federal

Courts (State Jurisdiction) Act 1999 applies

1.            Interpretation

(1)	In this Order, unless the contrary intention appears -
"section" means a section of the Act;
"the Act" means the Federal Courts (State

Jurisdiction) Act 1999.

(2) Unless the contrary intention appears, words defined in the Act and used in this Order have the same respective meanings as in the Act.

2.           Title of proceedings

An application under this Order shall be entitled "In the
matter of the Federal Courts (State Jurisdiction) Act
1999, [section number, if applicable] and in the matter

of proceedings in the [name of Commonwealth court]

in [number of the Commonwealth court proceedings]
between [names of parties to the Commonwealth court
proceedings]".

3.            When ineffective judgment to be registered

(1)	If a person wants to take any proceedings in the Supreme Court in respect of an ineffective judgment, the person must first apply to have the judgment registered in the Supreme Court.
(2)	Paragraph (1) does not apply to an ineffective judgment that is -

(a)	an interlocutory judgment or order; or
(b)	a relevant order in a proceeding that is the subject of an application under section 11(2).

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(3) An application to have an ineffective judgment registered may be made at the same time as an application referred to in Rule 6(1)(a).

4.            Application for registration

(1) An application for the registration of an ineffective
judgment must be made by originating summons to -

(a)	a Master in chambers; or
(b)	if made at the same time as an application referred to in Rule 6(1 )(a), to a Judge in chambers.

(2) Notice of the application must be given to all parties affected by the ineffective judgment unless the Court orders otherwise.

(3) If an ineffective judgment relates to 2 or more matters

some of which are not State matters, the summons must
identify the matters in respect of which registration is

sought.

(4) The application must be supported by an affidavit

that -

(a)	exhibits a copy of the ineffective judgment or of the Commonwealth Court's record of the judgment; and
(b)	states why it is sought to register the judgment.

(5) If the reason for seeking registration of the ineffective
judgment is to enforce payment of an amount of money
due under the judgment, the affidavit must -

(a)	state the amount as at the date of the affidavit;
(b)	state the rate of interest (if any) that applies to the amount;

(c)	state the full name, title, trade or business, and the usual or last known place of abode or business of the judgment creditor and of the judgment debtor, so far as they are known to the deponent; and
(d)	state to the best of the deponent's knowledge and belief that the applicant is entitled to enforce the judgment.

5.            Ineffective judgments may be registered

The Court is to register an ineffective judgment if satisfied that -

(a)	the judgment concerned is an ineffective judgment;
(b)	the application to register it complies with these Rules;

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(c)	the judgment is not wholly satisfied; and
(d)	it is appropriate to do so.

6.            Applications for an order under section 10

(1) An application for an order under section 10(1) or (3)

in respect of an ineffective judgment must be made -

(a)	if the order sought is one that, had the judgment been one of a Judge or Master of the Supreme Court, could be made by such a Judge or Master - by summons (with a supporting affidavit) to a Judge in chambers; or
(b)	if the order sought is one that, had the judgment been one of a Judge or Master of the Supreme Court, could be made only by the Full Court on an application for leave to appeal or on an appeal - by way of appellate proceedings to the Full Court under Order 63 or 63A, as the case requires.

(2) If an application under paragraph (1)(a) also includes

an application under Rule 3(1) -

(a)	the application under paragraph (1)(a) must be made by originating summons; and
(b)	the supporting affidavit must, in addition to complying with Rule 4, exhibit a copy of each document on the Commonwealth court's file, unless that file has been transferred to the Supreme Court or the Supreme Court orders otherwise.

7.           Applications under section 11

(1)	An application under section 11 (2) in relation to a
proceeding in a Commonwealth court must be made by originating summons to a Judge in chambers.
(2)	The application must be supported by an affidavit that -

(a)	summarizes the cause of action in the proceeding to which the relevant order relates;
(b)	exhibits a copy of the relevant order, or of the Commonwealth court's record of the relevant order;
(c)	exhibits a copy of each document on the Commonwealth court's file, unless that file has been transferred to the Supreme Court or the Supreme Court orders otherwise;

5632 GOVERNMENT GAZETTE, WA 15 November 1999

(d)	states, in respect of the proceeding in the Commonwealth court, what procedural steps have been completed and what procedural step has been reached; and
(e)	states what procedural steps are likely to be taken in the Supreme Court before the proceeding can be listed for a hearing of the action.

8.            Effect of order under section 11

When an order is made under section 11(2) in relation to a proceeding in a Commonwealth court -

(a)	the Principal Registrar is to assign the proceeding the appropriate Supreme Court code or action number;
(b)	the proceeding shall be conducted and dealt with in the Supreme Court in accordance with these Rules; and
(c)	documents filed in the Commonwealth court -
(i)shall have the same effect and may be used for the same purposes as if they had been documents of the same or a similar nature filed in the Supreme Court; and
(ii)shall not be taken to be irregular only because they do not comply, in form or otherwise, with these Rules.

6.            Fifth Schedule amended and consequential amendment to

Supreme Court Amendment Rules 1999

(1)	The Fifth Schedule Part I is amended by inserting after item IA the following item -
lB. Commencing an appeal to which 0. 60A r. 4

applies 200.00

(2)	The Supreme Court Amendment Rules 1999*	are amended by
repealing Rule 12. [* Published 16 July 1999.]

7.           Seventh Schedule amended

(1) The Seventh Schedule Part 1 is amended by deleting forms 7 to

5 November 19991 GOVERNMENT GAZETTE, WA 5633

(2) The Seventh Schedule Part 2 is repealed and the following Part

is inserted instead -

"

Part 2— Matters outside the jurisdiction of a

Master

[0. 81G. r. 4]

Column 1 Column 2
Provision Description of matter

Matters under the ASIC Law

s.61	Reference by the Commission to the Court of a question of law arising at a hearing of the Commission
s.70	Request by the Commission for the Court to inquire into non-compliance by a person with an investigation
s. 196	Reference by the Commission to the Court of a question of law arising at a hearing of the Corporations and Securities Panel
s.201	Request by the Corporations and Securities Panel for the Court to inquire into non-compliance by a person before the Panel
s.219	Request by the Companies Auditors and Liquidators Disciplinary Board for the Court to inquire into non- compliance by a person before the Board

Matters under the Corporations Law

s.230	Application for order prohibiting a person from managing a corporation
Part 5.1	Relating to arrangements and reconstructions (ss. 410-415A)
s.423	Supervising controller of property of a corporation
s. 536	Supervising liquidator
s. 598	Application for order against person concerned with corporation
s.599	Application for order prohibiting a person from managing a corporation
Chapter 6	Relating to acquisition of shares (ss. 602-759)

Part 9.4B	Relating to civil and criminal consequences of
contravening civil penalty provisions (ss. 1317DA-1317JC)

Part 9.5	Relating to powers of courts
except	(ss. 1318-1328)
s. 1319

Dated: 12 October 1999.
Judges' signatures:

DAVID K. MALCOLM, C.J. G. A. KENNEDY, J. W. P. PIDGEON, J. D. C. HEENAN, J.

C. D. STEYTLER, J. K. H. PARKER, J. M. J. MURRAY, J.

R. J. M. MURRAY, J.
N. J. OWEN, J.