Federal Court Rules (Amendment) 1993 No. 225
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 225
Issued by the authority of the Judges of the Federal Court of Australia
AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are thirty-four (34) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed in the Court, including practice and procedure to be followed in Registries of the Court, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Section 59 of the Act also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under that section as if references in those sections of that Act to regulations were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then. These amendments provide for service of judicial documents overseas in non-convention countries (Order 8), some minor amendments to existing Order 71 (Corporations Law rules) and to some forms in Schedule 1.
Rule 1
Provides that the Rules now made come into operation on 16 August 1993.
Order 8
Rule 2
Provides for the Rules to be amended as set out in these Rules.
Rule 3
Inserts in Order 8 a new rule 1A which applies to service abroad of judicial documents. Subrule (2) provides a definition section referring to both a 'convention country' and 'non-convention country'.
Rules 4, 5, 6 and 7
These rules amend existing rules by inserting references applicable to service either in convention or non-convention countries. These minor amendments are necessary because of the insertion of new rule 1A.
Rule 8
This rule also amends an existing rule in relation to 'requisite documents'. The amendments require that documents be filed in duplicate and, where English is not the official language, a translation also be provided together with an undertaking by the parties to pay expenses incurred in relation to the request.
Rule 9
This rule inserts a new Division 3 - Service in Non-Convention Countries, previously not provided for in the Federal Court Rules.
New rule 13
Applies a new division to service of judicial documents in a non-convention country.
New rule 14
Provides that a request for service under this division must be made in Form 14A and sets out the requirements for how those documents will be transmitted to another country, e.g. passed to the Secretary of the Attorney-General's Department by the Registrar, after leave has been given by the Court.
New rule 15
This rule sets out the requirements for proof of service, for example a certification or declaration that the documents were personally served, or were served in accordance with the law of the country.
New rule 16
Provides for the documents to be served by way of substituted service where efforts to serve the documents have been without effect an order is made by the Court. Subrule 3 provides that a copy of the Order and the document must be passed to the Secretary of the Attorney-General's Department by the Registrar after leave of the Court has been given.
Order 71
Rule 10
Substitutes new paragraph 36(3)(b) requesting the most recent balance sheet and profit and loss account statement available to the company to be filed with an application for a winding up order under s.462.
Rule 11
Inserts in paragraph 36B(b) a reference to s.459J, which provides a power for an order to be made to set aside a statutory demand because of a defect or some other reason.
Rule 12
Omits a reference to Item 51 and substitutes a reference to Item 43A, the correct item number.
Rule 13
This rule amends existing rule 47 (Transitional Provisions for Winding Up Applications pre 23 June 1993). The amendments refer to that date to make it clear that the transitional provisions apply to applications for winding up under s.460 or s.461 made before 23 June 1993.
Rule 14
This rule amends existing rule 47 (Power of Provisional Liquidator) - s.472, by providing that, for the purpose of enabling a provisional liquidator to take out letters of administration of an estate of a deceased contributor or debtor under paragraph 477(2)(h) the money due to the company is deemed to be due to the provisional liquidator. Subrule (2) provides that the application may be made by notice of motion in the proceedings for the winding up order.
Rule 15
Omits the word 'corporation' in paragraph 81(7)(b) and substitutes the correct word ,'commission'.
Rule 16
This rule makes various minor amendments to forms in the First Schedule.
Rule 17
Inserts reference to s.459A and s.459B to Item 38 in the Third Schedule dealing with powers and functions of the Court that may be exercised by a registrar.
Rule 18
Omits existing Forms 13 and 14 in Schedule 1 of the Federal Court Rules. New Forms 14A, 14B, 14C have been inserted to correspond with amendments to Order 8 and provide documentation for service in a non-convention country,
Form 129 is also amended to provide for a notice to a respondent of a directions hearing with the time, date and place of the hearing, together with the applicant's address for service. Form 129 is the form required in Order 73 - Representative Proceedings.