Commonwealth Numbered Regulations

FEDERAL COURT AMENDMENT RULES 2001 (NO. 2) 2001 NO. 201 - SCHEDULE 1

(rule 3)

[1] Order 1, subrule 5A (6)

substitute

(6)

A document is filed:

(a)

for a document in an existing proceeding — if it is accepted in the Registry that is the proper place for the proceeding and stamped in accordance with Order 46, rule 4; or

(b)

otherwise — if it is accepted in a Registry and stamped in accordance with Order 46, rule 4.

(6A)

If a document in an existing proceeding:

(a)

is presented to or sent in accordance with paragraph (1) (b) or (c) to a Registry that is not the proper place; and

(b)

is sent by that Registry to the proper place; and

(c)

is filed in accordance with paragraph (6) (a);

the document is taken to have been filed on the day when it was received by the Registry that is not the proper place.

[2] Order 3, subrule 6 (2)

omit

Sundays, other holidays and the day immediately after Easter Monday in each year.

insert

Sundays and other holidays.

[3] Order 7, subrule 1 (3)

substitute

(3)

If a respondent to an originating process:

(a)

enters an appearance; or

(b)

files a defence; or

(c)

appears before the Court in response to the process;

the originating process is taken to have been served on the respondent personally when the earliest of those events occurred, unless personal service on an earlier day is established.

[4] Order 18, subrule 2 (4)

omit

[5] Order 27, subrule 6 (1)

after

Registrar

insert

at the proper place

[6] Order 28, rule 6

omit

of the Commonwealth or of a State or Territory

[7] Order 29, rule 5

omit

same Division,

insert

Court,

[8] Order 35, subparagraph 10 (2) (a) (ii)

omit

Registrar

insert

Registrar, or an officer acting with the authority of the Registrar,

[9] Order 35, paragraph 10 (2) (b)

substitute

(b)

if the written consent is in respect of an order that the Registrar has power to make, unless the Registrar is of the opinion that the consent should be brought before a Judge, the Registrar, or an officer acting with the authority of the Registrar, may draw up, sign and affix the stamp of the Court to an order in accordance with the terms of consent.

[10] Order 36, after rule 1

insert

1A Definition

For rules 2, 3, 4, 5, 6, 7, 9 and 10 of this Order:

"Registrar" includes an officer acting with the authority of the Registrar.

[11] Order 36, subrule 9 (3)

substitute

(3)

Unless the Court otherwise orders, the date as of which a judgment is entered is the date when the judgment is pronounced or made.

[12] Order 46, subrule 6 (1)

omit

orders

insert

has ordered

[13] Order 52, subrule 19 (1)

substitute

(1)

An appellant may file and serve a notice of discontinuance:

(a)

at any time before the hearing of the appeal, without the leave of the Court; or

(b)

at the hearing, or after the hearing and before judgment is pronounced or made, with the leave of the Court.

(1A)

If a notice of discontinuance is filed and served under subrule (1), the appeal is abandoned.

[14] Order 52, subrule 19 (3)

omit

his

insert

the

[15] Order 52, paragraph 25 (1) (b)

omit

obtained from a Court Reporting Branch and

[16] Order 62, subrule 8 (1)

omit

Registrar who in these Rules is referred to as the

[17] Order 62, subrule 8 (2)

substitute

(2)

Unless the taxing officer appoints a time for taxation under subrule 41 (1), a bill (other than a short form bill under rule 40A or Order 77, rule 67) will be assessed in accordance with rule 46.

[18] Order 62, after subrule 39 (1)

insert

(1A)

For the purposes of taxing a short form bill filed under rule 40A or Division 14 of Order 77, the taxing officer may be an officer acting with the authority of the Registrar or a District Registrar.

[19] Order 62, after rule 40

insert

40A Short form bill for winding up application (Corporations Act s 466 (2))
(1) If an order is made for the winding up of a company in a proceeding instituted in the Court under the Corporations Act 2001 , an applicant may claim as costs of the application:

(a)

the amounts that, on the date when the application was filed, were the prescribed amounts in item 43A in Schedule 2; and

(b)

disbursements properly incurred in relation to the application.

(2)

An applicant who claims costs under this rule must serve on the liquidator appointed to the company:

(a)

a bill of costs and disbursements, which need not include an itemised account of the work or services performed; and

(b)

copies of receipts, vouchers or journals that evidence the disbursements claimed.

(3)

Within 14 days of service of a bill of costs and disbursements, the liquidator must advise the applicant in writing which, if any, of the costs and disbursements claimed are disputed.

(4)

Within 14 days of receiving an advice under subrule (3), the applicant must file:

(a)

a copy of the advice; and

(b)

the documents mentioned in subrule (2); and

(c)

an affidavit of service of the bill of costs and disbursements on the liquidator.

(5)

The applicant, the liquidator and their respective solicitors must not attend on taxation of the bill of costs and disbursements, unless directed by a taxing officer to attend.

(6)

This rule does not limit an applicant's right to claim the taxed costs of the winding up application under this Order.

(7)

However, an applicant who claims the costs of a winding up application:

(a)

under this rule — has no further claim to recover any of the taxed costs of the application under this Order; and

(b)

otherwise under this Order — has no further claim to recover any of the taxed costs of the application under this rule.

[20] Order 62, subrules 41 (1) and (2)

substitute

(1)

Subject to any direction of a Registrar under rule 46, if a bill of costs is filed, the taxing officer must appoint a time to tax the bill and endorse the bill with the date and time of the appointment.

(2)

The party who filed the bill must serve a copy of the bill on each other party to the taxation at least 7 days before the date appointed for taxation.

[21] Order 62, subrule 46 (2)

substitute

(2)

If the Registrar decides to apply this rule, unless the Registrar directs that action be taken under subrule (4) or (6), the bill must be assessed in accordance with subrule (3).

(2A)

If a bill is to be assessed in accordance with subrule (3):

(a)

the Registrar must endorse the bill and each copy of it with the date when the taxing officer is to make an estimate and return the bill and copies to the party filing the bill; and

(b)

the party filing the bill must serve a copy of the bill and the documents mentioned in subrule 40 (2) on each other party to the assessment at least 7 days before the date endorsed on the bill.

[22] Order 62, paragraph 46 (3) (a)

omit

Upon the direction of the Registrar under subrule (2), a taxing officer may,

insert

A taxing officer may, in the absence of the parties and

[23] Order 62, subrule 46 (5)

substitute

(5)

Each District Registrar may produce figures for the guidance of parties and solicitors in relation to costs estimated or taxed in the district registry.

[24] Order 77, rule 7

omit

The Court

insert

For the purposes of paragraph 35A (1) (h) of the Act, the Court

[25] Order 78, rule 3A

omit

The Court

insert

For the purposes of paragraph 35A (1) (h) of the Act, the Court

[26] Order 80, paragraph 8 (4) (g)

substitute

(g)

whether it is unfair to require the legal practitioner to continue to provide legal assistance under the scheme; and

(h)

any other matter that the Registrar considers relevant.

[27] Schedule 1, Forms, except Forms 47 and 150

insert at the end of each Form

Version 1

[28] Schedule 1, Form 47

substitute

Form 47 Order
(Order 36)

Judge(s):
Date of order:
Where made:
The Court orders ( or declares) that:
1.
2.
3.
............................................
District Registrar
Date that entry is stamped:

Version 1

[29] Schedule 1, Form 150

insert at the end

Note
A creditor is required to give a copy of this petition to the Official Receiver within 3 working days of presentation: see subregulation 4.05 (1) of the Bankruptcy Regulations 1996 .
Version 1