Unless these Rules otherwise provide, a person must
make an application required or permitted by the Corporations
Act to be made to the Court:
(a) if the application is not made in a proceeding already
commenced in the Court — by filing an originating
process; and
(b) in any other case, and whether interlocutory relief
or final relief is claimed — by filing an interlocutory
process.
The words ‘and whether interlocutory relief or
final relief is claimed,’ were inserted recently
with effect from 26 May 2005.
The purpose of that amendment is to make it clear that
the form of interlocutory process under the Rules (Form
3) is required to be used where subparagraph 2.2(1)(b)
applies, even where final relief is claimed. Leaving
aside the originating process and any amended originating
process, all claims for relief properly brought forward
in a proceeding already commenced, to which the Rules
apply, are required to be made by interlocutory process.
Two examples of claims for final relief that are required
to be brought by interlocutory process are:
1. a claim by a defendant that would, if the general
rules of court applied, be brought by way of cross-claim;
2. a claim by the Commissioner of Taxation under s 588FGA(4)
of the Corporations Act
2001 (Cth) (see Condon v Commissioner
of Taxation [2004] NSWSC 481).
Where a claim for final relief has been made in a proceeding
to which the Corporations Rules apply, whether the claim
is made by originating process or by interlocutory process,
any subsequent application for an order for pleadings
should be made by interlocutory process. Where a claim
for final relief is to be made in a contemplated proceeding
to which those Rules apply, an application for an order
for pleadings may be made in the originating process,
or by an accompanying interlocutory process. An originating
or interlocutory process should not be amended so as
to be converted into a pleading.
