Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT (CORPORATIONS) AMENDMENT RULES 2007 (NO. 1) (SLI NO 81 OF 2007)

EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2007 No. 81

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

Federal Court (Corporations) Amendment Rules 2007 (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 by amending rules 2.2, 2.4A, 2.7 and 7.10, inserting new rule 12.1B and substituting Form 3 in Schedule 1.

 

The amendments have been the subject of consultation with the Law Council of Australia and give effect to recommendations by the Council of Chief Justices’ Harmonised Corporations Rules Monitoring Committee.

 

Details of the Rules are in the Attachment.

 

The Rules commence on the day after they are registered.


ATTACHMENT

 

Federal Court (Corporations) Amendment Rules 2007 (No 1)

 

RULE 1 Name of rules

 

This rule provides that the Rules are to be cited as the Federal Court (Corporations) Amendment Rules 2007 (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

 

[1] Paragraph 2.2 (4) (b) (i)

 

This amendment omits the word “interlocutory” from paragraph 2.2 (4) (b) (i), which deals with the form and content of an interlocutory process.

 

The amendment is consequential upon the amendments made by the Federal Court (Corporations) Amendment Rules 2005 (No 1) which allow an interlocutory process to be used for claims for final relief or interlocutory relief in an existing proceeding .

 

[2] Paragraph 2.4A (3) (a)

 

Rule 2.4A applies to an application by a company under section 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on the company.

 

This amendment omits the words “no later than the hearing of the application” and inserts the words “no later than the day before the hearing of the application”. The effect of the amendment is that, in an application to set aside a statutory demand, the search of the records of Australian and Securities Investments Commission must be carried out no later than the day before the hearing of the application

 

[3] Paragraphs 2.7 (2) (a) and (b)

 

Rule 2.7 deals with the service of an originating process or interlocutory process.

 

This amendment omits each mention of “interlocutory application” in paragraphs 2.7 (2) (a) and (b) and inserts “application in the interlocutory process”.

 

The amendment is consequential upon the amendments made by the Federal Court (Corporations) Amendment Rules 2005 (No 1) which allow an interlocutory process to be used for claims for final relief or interlocutory relief in an existing proceeding .

 

[4] Rule 7.10

 

This amendment replaces the reference to the “Corporations Law” with a reference to the “Corporations Act”.

 

[5] After rule 12.1A

 

This amendment inserts a new rule 12.1B after rule 12.1A.

 

Rule 12.1B provides that a party to a proceeding who becomes aware that section 659B of the Corporations Act 2001 (Cth) applies to a proceeding must notify the Court and other parties of that circumstance (unless any other party to the proceeding has already given such notice). Section 659B deals with the commencement or stay of court proceedings in relation to a takeover bid or proposed takeover bid where the period of the bid has not ended.

 

[6] Schedule 1, Form 3

 

This amendment substitutes Form 3, which is the prescribed form for an interlocutory process, with a new Form 3.

 

The effect of the amendment is to omit the word “interlocutory” which appeared before the words “application” and “relief”.

 

The amendment is consequential upon the amendments made by the Federal Court (Corporations) Amendment Rules 2005 (No 1) which allow an interlocutory process to be used for claims for final relief or interlocutory relief in an existing proceeding .

 

 


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