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Practice notes

Every Issue

Cite as: (2005) 79(7) LIJ, p. 77


Federal Court

Federal Court (Corporations) Amendment Rules 2005 (No 1)
The Federal Court (Corporations) Amendment Rules 2005 (No 1) (the Amendment Rules) commenced on 26 May 2005.

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

The Amendment Rules make the following amendments to the Federal Court (Corporations) Rules 2000:

  • replace para 2.2(1)(b) with a new para 2.2(1)(b). The effect of the amendment is to insert the words “and whether final relief or interlocutory relief is claimed” after the words “in any other case” in para 2.2(1)(b); and
  • replace sub-r6.1(1) with a new sub-r6.1(1). The effect of the amendment is to omit the words “by a company, creditor or contributory of the company, or the Commission” in sub-r6.1(1).

The amendment to para 2.2(1)(b) is intended to put beyond doubt that an application in an existing Corporations Act proceeding should be made by an interlocutory process irrespective of the nature of the relief sought. This makes it clear, for example, that a cross-claim in such a proceeding would be made by filing an interlocutory process, even though the cross-claim seeks final relief.

The amendment to sub-r6.1(1) eliminates superfluous words of restriction and makes it clear that all applications for the appointment of a liquidator provisionally must be accompanied by a consent signed by the official liquidator whose appointment is sought.

Philip Kellow
Deputy Registrar
23 May 2005

Administrative Appeals Tribunal

Amendments to the Administrative Appeals Tribunal Act 1975
The Administrative Appeals Tribunal Amendment Act 2005 has amended the Administrative Appeals Tribunal Act 1975 (AAT Act) and a number of other Acts. The amendments commenced on 16 May 2005.

The amendments cover a range of matters and include a number of changes to the way in which the Administrative Appeals Tribunal (AAT) may deal with applications for review. In particular:

  1. AAT conference registrars now have the power to make, vary and revoke procedural directions pursuant to sub-sec 33(2) of the AAT Act. Previously, only AAT members could issue binding directions on the parties.
  2. A cooling-off period has been introduced in relation to agreements reached in the course of a conference, mediation or any other alternative dispute resolution process. Where the parties reach agreement as to the outcome of an application in the course of an alternative dispute resolution process, the terms of agreement must be lodged with the AAT under new s34D of the AAT Act rather than s42C. The AAT may decide to give effect to such an agreement only if:

  • seven days pass after lodgment of the terms of agreement; and
  • none of the parties has notified the AAT in writing that he or she wishes to withdraw from the agreement.

Section 42C continues to apply to agreements that have not been reached in the course of an alternative dispute resolution process.

  1. The AAT Act now contains a specific provision placing an obligation on decision makers to assist the AAT during the review. New sub-sec 33(1AA) of the AAT Act provides that, in a proceeding before the AAT for a review of a decision, the person who made the decision must use his or her best endeavours to assist the AAT to make its decision in relation to the proceeding.

Doug Humphreys
Registrar
13 May 2005

Department of Primary Industries

Land management notices and s90 certificates
Since the introduction of the Catchment and Land Protection Act 1994 (CaLP Act), land management notices have been issued by the Victorian government under s37 for the destruction of noxious weeds and proclaimed pest animals. These notices are issued by the Department of Primary Industries (DPI) on behalf of the Department of Sustainability and Environment and are required for listing in statements issued under s32 of the Sale of Land Act 1962.

Two important changes to land management notice practice are making it necessary for practitioners acting for purchasers of rural and peri-urban properties to ensure land management notices are included in the s32 statement. The first change relates to an amendment to the CaLP Act where a land management notice is now served on the property rather than the owner. An unsuspecting purchaser could now be liable for the vendor’s actions and could be the subject of legal proceedings, substantial fines and costly works programs following settlement. The second change is an increased emphasis by DPI towards enforcement of the CaLP Act. The increasing number of land management notices being issued now increases the risk of purchasers finding themselves responsible for a vendor’s inactivity. The penalty for non-compliance with a land management notice is 240 penalty units ($24,000).

DPI advises that a person may apply to the Secretary for a certificate under s90 of the CaLP Act for land described in the s32 statement to determine if a land management notice applies to the property. These certificates can be useful in preparing the s32 statement on behalf of the vendor or for verifying its accuracy for the purchaser.

A land management notice may do all or any of the following:

  • prohibit or regulate land use or land management practices;
  • require specified action to be taken to improve land management practices, prevent or minimise land degradation or rehabilitate degraded land;
  • contain any other provision that the Secretary considers necessary to deal with the issue that led to the service of the notice.

Further information on s90 certificates can be obtained from DPI by phoning 13 6186.

Value of penalty and fee units

For the financial year commencing 1 July 2005, the value of a fee unit is $10.49 and the value of a penalty unit is $104.81 (Victoria Government Gazette G15, p722).

Court websites

To check for any new court practice notes issued between editions of the LIJ, practitioners should refer to the following websites.

High Court http://www.highcourt.gov.au
Federal Court http://www.federalcourt.gov.au
Family Court http://www.familycourt.gov.au
Federal Magistrates Court http://www.fmc.gov.au
Supreme Court http://www.supremecourt.vic.gov.au
County Court http://www.countycourt.vic.gov.au
Magistrates’ Court http://www.magistratescourt.vic.gov.au
VCAT http://www.vcat.vic.gov.au

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