Federal Court (Bankruptcy) Amendment Rules 2011 (No. 1)1
Select Legislative Instrument 2011 No. 284
We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.
Dated 14 December 2011
P.A. KEANE CJ
P.R.A. GRAY J
T.J. HIGGINS J
P.D. FINN J
S.R. MARSHALL J
A.M. NORTH J
J.R. MANSFIELD J
A.R. EMMETT J
J.A. DOWSETT J
S.C. KENNY J
M.A. STONE J
P.M. JACOBSON J
A.C. BENNETT J
B.T. LANDER J
A.N. SIOPIS J
A.P. GREENWOOD J
B. COLLIER J
D.A. COWDROY J
A.J. BESANKO J
C.N. JESSUP J
R.R.S. TRACEY J
J.E. MIDDLETON J
R.J. BUCHANAN J
J. GILMOUR J
M.M. GORDON J
J.A. LOGAN J
G.A. FLICK J
N.W. McKERRACHER J
J.E. REEVES J
N. PERRAM J
J.M. JAGOT J
L.G. FOSTER J
M.L. BARKER J
J.V. NICHOLAS J
D.M. YATES J
J. DODDS-STREETON J
A.J. KATZMANN J
A. ROBERTSON J
B.M. MURPHY J
Judges of the Federal
Court of Australia
W.G. Soden
Registrar
1 Name of Rules
These Rules are the Federal Court (Bankruptcy) Amendment Rules 2011 (No. 1).
2 Commencement
These Rules commence on 1 January 2012.
3 Amendment of Federal Court (Bankruptcy) Rules 2005
Schedule 1 amends the Federal Court (Bankruptcy) Rules 2005.
Schedule 1 Amendments
(rule 3)
[1] Subrule 1.04 (2)
substitute
(2) Unless the contrary intention appears, an expression used in these Rules and in Schedule 1 to the Federal Court Rules 2011 has the same meaning in these Rules as it has in that Schedule.
[2] Rule 1.05, note
omit
· District
[3] Rule 2.02
omit
or a Judge
[4] Subrule 2.03 (1)
omit
or a Judge
[5] Subrule 2.03 (1)
omit
motion on notice
insert
interlocutory application
[6] Subrule 2.05 (2)
substitute
(2) Rule 8.07 of the Federal Court Rules 2011 (changing a return date) does not apply to the return date fixed for a creditor’s petition.
[7] Rules 4.08 and 4.09
substitute
4.08 Notification and entry of sequestration order
(1) A sequestration order must be in accordance with Form 7.
(2) If the Court makes a sequestration order against the estate of a debtor, the applicant creditor must:
(a) on the same day as the order is made, notify the trustee, in writing, of his or her appointment; and
(b) within 2 days after the order is made, give a copy of the sequestration order to any person who has consented to act as a trustee.
(3) If the order is not entered at the time the order is made, the applicant creditor must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.
Note Subsection 52 (1A) of the Bankruptcy Act provides that the creditor who obtained the sequestration order must give a copy of the order to the Official Receiver before the end of the period of 2 days beginning on the day the order was made.
4.09 Entry of order for dismissal etc of creditor’s petition
(1) This rule applies if the Court makes an order:
(a) dismissing a creditor’s petition; or
(b) granting leave for a creditor’s petition to be withdrawn; or
(c) under subsection 52 (5) of the Bankruptcy Act.
(2) The applicant creditor must:
(a) if the order is not entered at the time the order is made — request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011 as soon as practicable; and
(b) within 2 days after the order is made, give a copy of the order to the Official Receiver.
[8] Paragraph 7.05 (b)
omit
for the District in which the order was made
[9] Paragraph 8.02 (3) (b)
omit
for the District in which the order was made
[10] Paragraph 9.03 (b)
omit
Trustee, the Official Receiver for the District in which the application is made
insert
Trustee — the Official Receiver
[11] Paragraph 9.05 (b)
omit
for the District in which the order was made
[12] Paragraph 10.03 (c)
omit
for the District in which the application is made
[13] Rule 10.05
substitute
10.05 Entry of order
If:
(a) the Court makes an order under this Part; and
(b) the order is not entered at the time the order is made;
the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.
[14] Rule 11.04
substitute
11.04 Entry of order
If:
(a) the Court makes an order under this Part; and
(b) the order is not entered at the time the order is made;
the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.
Note Subsection 247 (3) of the Bankruptcy Act provides that the person administering the estate of the deceased person must, before the end of the period of 2 days beginning on the day the order was made, give a copy of the order to the Official Receiver.
[15] Subrule 13.01 (1)
omit
Order 62 of the Federal Court Rules
insert
Part 40 of the Federal Court Rules 2011
[16] Subrule 13.01 (3)
omit
Order 62 of the Federal Court Rules
insert
Part 40 of the Federal Court Rules 2011
[17] Subrule 13.03 (1)
omit
item 43B of Schedule 2 to the Federal Court Rules.
insert
item 14.1 of Schedule 3 to the Federal Court Rules 2011.
[18] Subrule 13.03 (2)
omit
item 43C of Schedule 2 to the Federal Court Rules.
insert
item 14.2 of Schedule 3 to the Federal Court Rules 2011.
[19] Paragraph 13.03 (3) (a)
omit
item 36 or 37 of Schedule 2 to the Federal Court Rules;
insert
item 1 of Schedule 3 to the Federal Court Rules 2011;
[20] Subrule 13.03 (4)
omit
Order 62 of the Federal Court Rules
insert
Part 40 of the Federal Court Rules 2011
[21] Schedule 1, Form 1
substitute
Form 1 Document Title
(subrule 1.06 (3))
No. of 20
IN THE [name of Court]
District Registry: [State]
Division: General
IN THE MATTER OF: [Name of debtor or bankrupt estate]
[Name of Applicant(s)]
Applicant[s]
[Name of Respondent(s)]
Respondent[s]
Filed on behalf of (name and role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Fax
Email
Address for service
(include State and postcode)
[22] Schedule 1, Form 2
omit
Filed by the applicant
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
insert
Filed on behalf of (name and role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Fax
Email
Address for service
(include State and postcode)
[23] Schedule 1, Forms 3 to 6
omit
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
insert
Filed on behalf of (name and role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Fax
Email
Address for service
(include State and postcode)
[24] Schedule 1, Form 6, Part 2, note 1
omit
Form 20 of the Federal Court Rules
insert
Form 59 of the Federal Court Rules 2011
[25] Schedule 1, Form 7
omit
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
‡Note
Subsection 35A (5) of the Act provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection 35A (1) of the Act may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
Rule 2.03 provides that, subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by motion on notice within 21 days after the day on which the power was exercised. An applicant seeking a review can apply to a Judge to waive the requirement that the application for review be made by motion on notice (see Order 1, rule 8 of the Federal Court Rules).
* Omit if inapplicable
‡ Omit this note if the orders have not been made by a Registrar.
insert
Filed on behalf of (name and role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Fax
Email
Address for service
(include State and postcode)
‡Note
Subsection 35A (5) of the Act provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection 35A (1) of the Act may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
Rule 2.03 provides that, subject to any direction by the Court to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by interlocutory application within 21 days after the day on which the power was exercised. An applicant seeking a review can apply to a Judge to waive the requirement that the application for review be made by interlocutory application (see rule 1.34 of the Federal Court Rules 2011).
* Omit if inapplicable
‡ Omit this note if the orders have not been made by a Registrar.
[26] Schedule 1, Forms 8 to 15
omit
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
insert
Filed on behalf of (name and role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Fax
Email
Address for service
(include State and postcode)
[27] Further amendments — lawyer
The following provisions are amended by omitting each mention of ‘legal practitioner’ and inserting ‘lawyer’:
· subrule 13.02 (1)
· subrule 13.03 (1)
· subrule 13.03 (2)
· subrule 13.03 (3)
· subrule 13.03 (4)
· subrule 13.04 (1)
· subrule 13.04 (6)
· Rule 13.05
· Schedule 1, Form 19
· Schedule 1, Form 20
· Schedule 1, Form 21
· Schedule 1, Form 22
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.
