EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 84
Issued by the authority of the
Judges of the Federal Court of Australia
Federal Court (Corporations) Amendment Rules 2005 (No. 1)
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, the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:
(a) as if a reference to a legislative instrument 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 the Federal Court of Australia Act 1976.
The Federal Court (Corporations) Rules 2000 apply to a proceeding in the Court under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001 commenced on or after 1 January 2000.
The Judges have agreed to amend the Federal Court (Corporations) Rules 2000 in accordance with recommendations of the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee which consists of representatives from the Federal Court and each State and Territory Supreme Court.
Rule 2.2 prescribes the form to be used to make an application required or permitted by the Corporations Act to be made to the Court. Rule 2.2 is amended to make it clear that an application in an existing Corporations Act proceeding should be made by an interlocutory process irrespective of the nature of the relief sought. For example, a cross-claim in such a proceeding is to be made by filing an interlocutory process, even though the cross-claim may seek final relief.
Rule 6.1 deals with applications for the appointment of a provisional liquidator of a company pursuant to section 472 of the Corporations Act. The amendment makes it clear that all applications for the appointment of a liquidator provisionally must be accompanied by a consent signed by the official liquidator whose appointment is sought.
The amendments have been the subject of consultation with the Law Council of Australia.
Details of the Rules are in the Attachment.
The Rules commence on the day after they are registered.
ATTACHMENT
Federal Court (Corporations) Amendment Rules 2005 (No. 1)
RULE 1 Name of rules
This rule provides that the Rules are to be cited as the Federal Court (Corporations) Amendment Rules 2005 (No. 1).
RULE 2 Commencement
This rule provides that these Rules commence on the day after they are registered.
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
Originating process and interlocutory process — Forms 2 and 3
[1] Paragraph 2.2 (1) (b)
This amendment replaces paragraph 2.2 (1) (b) with a new paragraph 2.2 (1) (b). The effect of the amendment is to insert the words ‘, and whether final relief or interlocutory relief is claimed’ after the words ‘in any other case’ in paragraph 2.2 (1) (b).
Appointment of provisional liquidator (Corporations Act s 472) — Form 8
[2] Subrule 6.1 (1)
This amendment replaces subrule 6.1 (1) with a new subrule 6.1 (1). The effect of the amendment is to omit the words ‘by a company, creditor or contributory of the company, or the Commission’ in subrule 6.1 (1).
Overview
The Federal Court (Corporations) Amendment Rules 2005 (No. 1) were introduced to update the Federal Court (Corporations) Rules 2000, which govern proceedings in the Federal Court related to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. Enacted by the Judges of the Federal Court of Australia under the authority granted by section 59 of the Federal Court of Australia Act 1976, these amendments aim to enhance the efficiency and clarity of legal processes within the Court, particularly in relation to the form and procedure for making applications and the appointment of provisional liquidators. The amendments were made in response to recommendations from the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee and have undergone consultation with the Law Council of Australia to ensure they meet the needs of legal practitioners and stakeholders. The amendments clarify that all applications in existing Corporations Act proceedings should be made by an interlocutory process, regardless of whether the relief sought is final or interlocutory, and specify that applications for the appointment of a provisional liquidator must be accompanied by a consent signed by the official liquidator.
Scope and Application
The Federal Court (Corporations) Amendment Rules 2005 (No. 1) apply to proceedings in the Federal Court of Australia concerning matters under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001 that are initiated on or after 1 January 2000. These amendments serve to clarify and streamline the procedural requirements for making applications within such proceedings, specifically by prescribing the form and manner in which applications must be made. The amendments were made in response to recommendations from the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee, which includes representatives from the Federal Court and each State and Territory Supreme Court. The rules are designed to enhance consistency across jurisdictions and improve the efficiency of court processes. These amendments to the Federal Court (Corporations) Rules 2000 are made under the authority of Section 59 of the Federal Court of Australia Act 1976, with the Legislative Instruments Act 2003 applying to these rules as if they were legislative instruments, subject to specific modifications and adaptations. The amendments come into effect on the day after they are registered.
Key Provisions
The Federal Court (Corporations) Amendment Rules 2005 (No. 1) primarily amend the Federal Court (Corporations) Rules 2000 to incorporate changes recommended by the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee. Rule 2.2 now clarifies that applications required or permitted by the Corporations Act 2001 should be made by an interlocutory process, regardless of whether final or interlocutory relief is sought (Rule 2.2). This means that even cross-claims in existing proceedings must be filed as an interlocutory process. Rule 6.1 has been amended to require all applications for the appointment of a provisional liquidator to be accompanied by a consent signed by the official liquidator (Rule 6.1). These changes were made following consultations with the Law Council of Australia.
The amendments impose specific obligations on parties and entities involved in proceedings under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001. Applicants must use the prescribed form for any application required or permitted by the Corporations Act, ensuring that these applications are made via an interlocutory process (Rule 2.2). Additionally, any application for the appointment of a provisional liquidator must now be accompanied by a consent signed by the official liquidator, ensuring that the appointment process is both authorised and documented appropriately (Rule 6.1).
Failure to comply with these rules could result in procedural errors, potentially affecting the validity and timeliness of applications. While the explanatory statement does not specify particular offences or penalties, non-compliance with court rules can lead to various consequences, such as the dismissal of applications, delays in proceedings, or other judicial sanctions as deemed appropriate by the Court. The rules ensure that proceedings are conducted in a manner that is consistent with the Federal Court’s practice and procedure, maintaining the integrity and efficiency of the judicial process.