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Practice Notes

Every Issue

Cite as: (2008) 82(12) LIJ, p. 65

Federal Court

Federal Court (Corporations) Amendment Rules 2008 (No 2)

The Federal Court (Corporations) Amendment Rules 2008 (No 2) (the Amendment Rules) commenced on 15 October 2008.

A copy of the Amendment Rules is available at http://www.comlaw.gov.au.

The Amendment Rules make amendments to the Federal Court (Corporations) Rules 2000 consequential on the enactment of the Cross-Border Insolvency Act 2008 (Cth). The Cross-Border Insolvency Act gives effect to the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (the Model Law). The Model Law outlines a system of insolvency procedures to be used in cases where the insolvent party has assets in more than one country, or when there are foreign creditors present in a domestic insolvency proceeding.

The Amendment Rules amend the Federal Court (Corporations) Rules 2000 by:

  • inserting a new Division 15A “Proceedings under the Cross-Border Insolvency Act” which sets out the rules as to how particular applications under the Act are to be made and notified;
  • inserting into Schedule 1 to the Federal Court (Corporations) Rules 2000 the following new forms:
  • Form 19 – Consent to act as designated person
  • Form 20 – Notice of filing of application for recognition of foreign proceeding
  • Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008
  • Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding
  • Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief; and
  • making consequential amendments to rls 1.3 and 1.5 and to Forms 2 and 3.

Philip Kellow, Deputy Registrar, 14 October 2008

Federal Magistrates Court

Federal Magistrates Court Amendment Rules 2008
Federal magistrates have agreed to miscellaneous amendments to the Federal Magistrates Court Rules 2001. The amendments are contained in the Federal Magistrates Court Amendment Rules 2008 (the Amendment Rules). The rules are available from http://www.comlaw.gov.au and commence one day after registration.

Outline of rule amendments

The following outlines the amendments contained in the Amendment Rules.

  • Items [4] – [10] and [12] – [13]: Rules to facilitate e-filing/e-lodgment which largely mirror the e-filing rules prescribed by the Federal Court. Further information on e-filing/e-lodgment is provided below.
  • Item [11]: Amendment to current r2.08 (searching records): The existing r2.08 currently applies to all proceedings and mirrors the comparative rule in the Family Law Rules 2004, which differs from the access rule applied in the Federal Court (O.46 r6). While the existing rule will continue to apply in family law and child support proceedings, the amendment adopts a rule which mirrors O.46 r6 for proceedings other than family law and child support. The aim of having one consistent access rule across all proceedings has proved to be difficult in light of the differing public policy considerations and the need for a more restrictive regime in relation to proceedings involving children and families.
  • Item [14]: The “2 day rule” rule is removed from the list of factors the Court may consider in deciding whether to transfer a family law and child support matter to the Family Court.
  • Items [15] – [16]: Amendments to the rules in relation to withdrawal of lawyer which require notices of withdrawal and intention to withdraw as lawyer to be provided by way of approved forms. Further information on the new approved forms is provided below.
  • Item [18]: Amendments to the rules in relation to discontinuance to include summary judgment/dismissal rules similar to those which have been prescribed in the Federal Court Rules under O.35A. Pursuant to O.35A an applicant may be entitled to relief on the basis of a statement of claim without supporting affidavit evidence.
  • Item [19]: Amendment to the rule in relation to vexatious litigants to allow applications by persons against whom vexatious proceedings have been instituted or conducted, and by persons who have sufficient interest. This amendment reflects recent amendments to the Federal Court Rules O.21.
  • Item [20]: Amendments to the affidavit requirements in relation to illiterate or vision impaired persons to reflect changes in terminology and take account of advances in technology.
  • Item [23]: Amendments to include a table of the list of powers under the Family Law Act 1975 which may be delegated to registrars.

E-filing/e-lodgment

While the amendments put in place rules to facilitate e-filing and e-lodgment of documents in the Federal Magistrates Court, it will not be immediately possible to file Federal Magistrates Court documents via the Commonwealth Courts Portal or the Federal Court’s e-filing system (other than supplementary documents in family law proceedings filed by registered legal practitioners via the Commonwealth Courts Portal).

The rule amendments have been made in anticipation of comprehensive e-filing/e-lodgment systems. In the meantime, interim notices will be issued to notify practitioners and litigants of the current electronic filing practices being adopted. The first of these notices, Filing of documents by electronic communication, is published below and will be made available to practitioners and litigants on the Court’s website http://www.fmc.gov.au/practice/index.html (under Information Notices).

New approved forms

Included among the miscellaneous amendments is an amendment to the rules in relation to withdrawal of lawyer (sub-rls 9.03(1) and 9.03(3)). Currently the rules specify the requirements for written notices of withdrawal and notices of intention to withdraw but do not require such notices to be in accordance with an approved form. The amendments require the use of approved forms, namely Notice of Intention of Withdrawal as Lawyer and Notice of Withdrawal as Lawyer, in circumstances where a lawyer is ceasing to act.

Use of the new forms will be required from 1 December 2008. Any such notices filed on or after this date must be in accordance with the approved forms.

The approved forms are available for download from the Court’s website at http://www.fmc.gov.au/forms.

Adele Byrne, Registrar, 27 October 2008

Federal Magistrates Court
Filing of documents by electronic communication (pursuant to rls 2.07A and 2.07B Federal Magistrates Court Rules 2001)
Notice to practitioners and litigants

The notice Supplementary documents filed electronically via the Commonwealth Courts Portal issued on 16 August 2008 is revoked and is replaced with the following.

Introduction

The Federal Magistrates Court of Australia (the Court), pursuant to the Federal Magistrates Court Amendment Rules 2008 (No 2) (the Amendment Rules), has introduced new rules to facilitate filing by electronic communication, specifically, rls 2.07A and 2.07B of the amended Federal Magistrates Court Rules 2001 (the Rules).

These rules have been put in place in anticipation of a comprehensive electronic filing system for both family law and general federal law proceedings in the Court. However, systems are not immediately in place to facilitate full electronic filing of all Court documents. The purpose of this notice is to inform litigants and practitioners of the current capabilities of the Court’s e-filing/e-lodgment systems.

Family law proceedings
On 16 August 2008, the Court, in conjunction with the Family Court of Australia, commenced a trial of electronic filing of supplementary documents in family law matters (being those non-initiating documents not requiring a fee to be paid).

To facilitate the trial the Court issued a notice, Supplementary documents filed electronically via the Commonwealth Courts Portal, authorising, in certain circumstances, the filing of supplementary documents in family law matters electronically via the Commonwealth Courts Portal (the Portal) at http://www.comcourts.gov.au.

The trial that was commenced on 16 August 2008 in relation to filing of supplementary family law documents via the Portal is ongoing and is the first of several incremental steps towards implementation of full electronic filing of documents in the Court.

The new rules in relation to e-filing (rls 2.07A and 2.07B) currently apply to family law proceedings subject to the restrictions outlined below.

Restrictions on who may file documents via the Portal

Only legal practitioners who are registered with the Portal are able to lodge documents via the Portal, and only if they are associated with the proceedings to which the documents relate.

Restrictions on the type of documents that may be filed via the Portal

Currently the Portal is only capable of receiving supplementary documents in family law matters that do not require a filing fee to be paid. The following are examples of supplementary documents which do not require payment of a filing fee or are non-initiating documents and may be sent for filing via the Portal:

  • Response to Divorce
  • Affidavit of Service (of any description)
  • Financial Statement
  • Affidavit
  • Superannuation Information Form
  • Outline of case document, howsoever described, if directed to be filed.

However, all such documents must comply with the requirements of r2.07A. If the requirements of r2.07A are not met, then a document sent via the Portal will not be accepted for filing.

For the purposes of sub-r2.07A(1), the acceptable electronic file formats for documents sent for filing via the Portal are:

  • Adobe Portable Document Format (PDF) 20 Mb
  • Microsoft Word (DOC) 20 Mb
  • Rich Text Format (RTF) 10 Mb

Documents must not exceed the size limits shown next to each document format above. A document may not be sent for filing via the Portal if the electronic file for that document exceeds the size limit. Any such document will not be filed.

General federal law proceedings
At present there is no facility for electronically filing documents in general federal law proceedings in the Federal Magistrates Court. The Federal Court’s Electronic Filing System (EFS) cannot be used to lodge documents in relation to proceedings in the Federal Magistrates Court. Litigants and practitioners will be advised in due course when facilities for the electronic lodgment of documents relating to general federal law proceedings in the Federal Magistrates Court are available.

Adele Byrne, Registrar , October 2008

County Court

Filing of double-sided documents
The County Court Rules of Procedure in Civil Proceedings r27.03(2) has been amended to allow the filing of double-sided documents.

Anna Bolger, Communications Manager, 31 October 2008

Transport Accident Commission

Medical report rates

The rates payable by the TAC for medical reports requested from treating medical practitioners and public hospitals increased from 1 November 2008. The new rates are:

Medical reports from treating medical practitioners

TAC Item No Procedure Total TAC fee payable (incl. GST)

TTR010 Specialist Standard Report $616

TTR020 Specialist Follow-up Report $308

TTR030 General Practitioner Standard Report $312

TTR040 General Practitioner Follow-up Report $156

For full details, see http://www.tac.vic.gov.au (click on “Provider Resources” then “Fee Schedules”).

Medical reports from Victorian public hospitals

Medical report prepared by clerical staff on behalf of the public hospital’s medical officer $187 (incl. GST)
Medical report prepared by the public hospital’s medical officer $310 (incl. GST)

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