Federal Court (Corporations) Amendment Rules 2003 (No. 1)1

Statutory Rules 2003 No. 1322

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

Dated 6 June 2003

M.E.J. BLACK C.J.

M.R. WILCOX J.

J.E.J. SPENDER J.

p.r.a. gray j.

D.M. RYAN J.

R.S. FRENCH J.

M.C. LEE J.

J.W. von DOUSSA J.

D.G. HILL J.

T.J. HIGGINS J.

R.E. COOPER J.

A.P. WHITLAM J.

C.J.S.M. CARR J.

M.F. MOORE J.

C.M. BRANSON J.

K.E. LINDGREN J.

B.J.M. TAMBERLIN J.

R. SACKVILLE J.

S.M. KIEFEL J.

R.D. NICHOLSON J.

R.A. SUNDBERG J.

S.R. MARSHALL J.

A.M. NORTH J.

R.N. MADGWICK J.

R. MERKEL J.

J.R. MANSFIELD J.

A.H. GOLDBERG J.

A.R. EMMETT J.

R.A. FINKELSTEIN J.

M.S. WEINBERG J.

J.A. DOWSETT J.

P.G. HELY J.

S.C. KENNY J.

R.V. GYLES J.

R.A. CONTI J.

M.A. STONE J.

J.L.B. ALLSOP J.

P.M. JACOBSON J.

B.M. SELWAY J.

A.C. BENNETT J.

Judges of the Federal

Court of Australia

W.G. SODEN

Registrar

1 Name of Rules

  These Rules are the Federal Court (Corporations) Amendment Rules 2003 (No. 1).

2 Commencement

  These Rules commence on gazettal.

3 Amendment of Federal Court (Corporations) Rules 2000

  Schedule 1 amends the Federal Court (Corporations) Rules 2000.

Schedule 1 Amendments

(rule 3)

[1] Subrule 1.3 (3), note

substitute

Note   By virtue of the definition of this Act in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations.

[2] Rule 1.5, after definition of applicant

insert

ASIC Act means the Australian Securities and Investments Commission Act 2001.

Corporations Act means the Corporations Act 2001.

Corporations Regulations means the Corporations Regulations 2001.

[3] Rule 1.5, definition of the Law

omit

[4] Subrule 2.2 (4), at the foot

insert

Note   In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 3 (Notes to these Rules).

[5] Subrule 2.4 (2), at the foot

insert

Note   An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules).

[6] Subrule 5.4 (2), at the foot

insert

Note   An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules).

[7] After rule 12.1

insert

12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A)

  Order 50 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act.

[8] Subrule 12.2 (1)

substitute

 (1) An application for the issue of a summons under subsection 1071D (4) of the Corporations Act must be made by filing an originating process or an interlocutory process.

[9] Rule 12.3

substitute

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F)

  As soon as practicable after filing an originating process under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on:

 (a) the company; and

 (b) any person against whom an order is sought.

[10] Division 13

omit

[11] Rule 15.2

omit

[12] Schedule 1, Form 2, Part A

omit

This application is made under *section/*regulation [number] of the *Corporations Law/*ASIC Law/*Corporations Regulations.

insert

This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*Corporations Regulations.

[13] Schedule 1, Form 2, Part C

omit each mention of

Corporations Law

insert

Corporations Act

[14] Schedule 1, Form 2, Part C, at the foot

insert

Note 1   In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 3 (Notes to these Rules).

Note 2   An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules).

[15] Schedule 1, Form 3, Part A

omit

This interlocutory application is made under *section/*regulation [number] of the *Corporations Law/*ASIC Law/*Corporations Regulations.

insert

This interlocutory application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*Corporations Regulations.

[16] Schedule 1, Form 8

before

Date:

insert

The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates.

[17] Schedule 1, Form 8

after

*   Omit if not applicable

insert

Schedule

[description of hourly rate(s)]

[18] Schedule 1, Form 10

omit

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

Signature of person giving notice
or of person’s legal practitioner

insert

Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name]

[19] Schedule 1, Form 17, Part A

omit

Corporations Law

insert

Corporations Act

[20] Schedule 2, Part 1, heading

substitute

Part 1 Corporations Act

[21] Schedule 2, Part 1, column 2, heading

omit

Corporations Law

insert

Corporations Act

[22] Schedule 2, Part 1, item 4

substitute

[23] Schedule 2, Part 1, after item 9

insert

[24] Schedule 2, Part 1, items 101 to 108

substitute

[25] Schedule 2, Part 1, after item 113

insert

[26] Schedule 2, Part 1, item 115

omit

[27] Schedule 2, Part 2, heading

substitute

Part 2 ASIC Act

[28] Schedule 2, Part 2, column 2, heading

omit

ASIC Law

insert

ASIC Act

[29] After Schedule 2

insert

Schedule 3 Notes to these Rules

(rules 2.2, 2.4 and 5.4)

Note 1 — see rule 2.2 (Form 2 Part C)

C.   APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY

1.  The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process.

2.  The demand was [or The demand and an accompanying affidavit were] served by X.Y. who delivered it [or them] to the registered office of the defendant at [insert address] on [insert date] [or, if service was by post, who posted *it/*them by ordinary prepaid post to the registered office of the defendant at [insert address] on [insert date]]. [If applicable, A copy of the accompanying affidavit, marked B, is attached to this originating process.]

3.  The defendant failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that *amount/*total to the plaintiff’s reasonable satisfaction within 21 days after the demand was served on the defendant [or within 7 days after [insert date] when an application by the defendant under section 459G of the Corporations Act was finally determined or otherwise disposed of] [or if the period for compliance with the demand was extended by order within the period specified in the order of the [insert name of Court] on [insert date of order or, if more than one order, the date of the last such order] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.]

 [If the demand was varied by order under subsection 459H (4) of the Corporations Act]

4.  The demand was varied by order of the [insert name of Court] on [insert date of order]. A copy of the order, marked D [or as the case may be], is attached to this originating process.

*   Omit if not applicable

Note 2 — see rule 2.4 and subrule 5.4 (2) (Affidavit in support)

*AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY

I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]:

1.  I am the above-named plaintiff [or if the applicant is a corporation, I am *a/*the director of the above-named plaintiff which is registered or taken to be registered in [specify State or Territory]. I am duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceeding.

2.  Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant.

3.  [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts — apart from the defendant’s principal place of business — which bear upon jurisdiction being exercised in Victoria rather than in another State or Territory.]

4.  The following facts are within my own personal knowledge save as otherwise stated.

5.  The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc.] which sum was then due and payable.

6.  The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]].

7.  The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct.

8.  The sum demanded remains due and payable by the defendant to me [or the plaintiff].

Sworn, etc.

*   Omit if not applicable

[30] Further amendments — references to the Law, the Corporations Law and the ASIC Law

[31] Further amendments — headings

  Each rule or Division of these Rules mentioned in column 1 of the following table is amended by omitting the heading to the rule or Division and inserting the heading mentioned in column 2 for that rule or Division.

1. These Rules amend Statutory Rules 1999 No. 359, as amended by 2000 No. 333; 2001 No. 127; 2002 No. 97.

2. Notified in the Commonwealth of Australia Gazette on 19 June 2003.