Federal Court (Corporations) Amendment Rules 2003 (No. 2) 2003 No. 376
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 376
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court (Corporations) Amendment Rules 2003 (No. 2)
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 59 (4) of the Federal Court of Australia Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections were references to Rules of Court.
DIVISION 1 PRELIMINARY
RULE 1 Name of rules
This rule provides that the Rules are to be cited as the Federal Court (Corporations) Amendment Rules 2003 (No. 2).
RULE 2 Commencement
This rule provides that these Rules commence on gazettal.
RULE 3 Amendment of Federal Court (Corporations) Rules 2000
This rule provides that the Federal Court (Corporations) Rules 2000 are amended as set out in Schedule 1.
SCHEDULE 1 - AMENDMENTS
[1] Paragraph 5.10 (2) (b)
Section 465B of the Corporations Act 2001 (Cth) provides that the Court may order a person or persons be substituted as applicant or applicants in an application under section 459P, 462 or 464 for a company to be wound up. Subrule 5.10 (1) of the Federal Court (Corporations) Rules 2000 states that if the Court makes such an order, the Court may also order that the substituted party publish a notice of the intention to apply for an order that the company be wound up.
The effect of this amendment is to replace paragraph 5.10 (2) (b) with a new paragraph 5.10 (2) (b) which provides that, where the Court makes an order under subrule 5.10 (1), the notice must be published at least 7 days before the date fixed for the hearing of the application or as otherwise directed by the Court.
[2] Schedule 1, Form 1
This amendment replaces the words `(under administration)' in Form 1 with the words `(administrator appointed)'. The amendment ensures that the form is consistent with section 450E of the Corporations Act 2001.
[3] Schedule 3, Note 2, paragraph 3
Schedule 3, Note 2 contains a suggested form of words for an affidavit in support of an application for winding up in insolvency.
This amendment replaces paragraph 3 of the affidavit with a new paragraph 3 that omits the reference to exercise of jurisdiction in the State of Victoria. This reference is not relevant to proceedings in the Federal Court.
Overview
The Federal Court (Corporations) Amendment Rules 2003 (No. 2) were enacted to address the need for updates and clarifications in the Federal Court (Corporations) Rules 2000, as permitted under Section 59 of the Federal Court of Australia Act 1976. These rules were issued by the Judges of the Federal Court of Australia to ensure consistency with the Act and to provide for the practice and procedure in the Court and its registries. This amendment specifically targets several areas within the existing rules, aiming to enhance clarity and procedural correctness in corporate matters handled by the Court. The policy objective underpinning these amendments is to streamline and refine the legal processes within the Federal Court, ensuring that they remain relevant and effective in the context of corporate law and practice in Australia.
Scope and Application
The Federal Court (Corporations) Amendment Rules 2003 (No. 2) applies to amendments of the Federal Court (Corporations) Rules 2000 as outlined in the Schedule 1. These rules govern the practice and procedure to be followed in the Federal Court of Australia and its registries in matters related to corporations, particularly under the Corporations Act 2001. The rules apply to all entities and individuals involved in proceedings before the Federal Court concerning corporations. The amendments in the Rules pertain to the substitution of applicants in winding up applications, the publication of notices regarding winding up applications, and adjustments to the form of affidavits for winding up applications in insolvency. The changes are designed to ensure consistency with the Corporations Act 2001 and to streamline the procedural aspects of corporate litigation within the Federal Court’s jurisdiction. There are no specific exclusions mentioned in the text, but the rules are consistent with the overarching provisions of the Federal Court of Australia Act 1976 and the Acts Interpretation Act 1901. The rules extend to the entire Commonwealth of Australia, reflecting the national jurisdiction of the Federal Court.
Key Provisions
The Federal Court (Corporations) Amendment Rules 2003 (No. 2) (Rules) amend the Federal Court (Corporations) Rules 2000 in several key areas. Firstly, under Rule 3, the Rules amend the Federal Court (Corporations) Rules 2000 as set out in Schedule 1. One significant amendment is found in subrule 5.10(2)(b) (Schedule 1, item [1]) which modifies the requirements for notices to be published when a party is substituted in an application for a company to be wound up. Specifically, where the Court orders a substitution under subrule 5.10(1), the substituted party must now publish a notice of the intention to apply for an order that the company be wound up at least 7 days before the hearing of the application, or as otherwise directed by the Court. Secondly, Schedule 1, item [2] updates Form 1 to reflect the terminology used in the Corporations Act 2001 by replacing the phrase '(under administration)' with '(administrator appointed)'. Finally, Schedule 1, item [3] removes a reference to the State of Victoria from the suggested form of words for an affidavit in support of an application for winding up in insolvency in Schedule 3, Note 2, paragraph 3.
The Rules impose certain obligations on parties involved in proceedings in the Federal Court regarding corporations. For instance, when a party is substituted in an application for a company to be wound up, the substituted party must publish a notice as per the amended Rule 5.10(2)(b). Additionally, the form used in such proceedings must now align with the terminology used in the Corporations Act 2001, as updated in Schedule 1, item [2]. Parties are also required to follow the suggested form of words for an affidavit in support of an application for winding up in insolvency, as amended in Schedule 1, item [3].
The Rules do not explicitly state any offences or penalties for non-compliance. However, failure to adhere to these procedural requirements could potentially lead to the dismissal of an application or other procedural consequences determined by the Court. Such consequences are not specified in the Rules but would be determined on a case-by-case basis by the Federal Court, in accordance with the general principles of court procedure and the overarching legislative framework.