Guide for Practitioners and Parties
- Guide to Judicial Registrar Corporations Matters
- Commencing Proceedings
- Before Hearing
- After the Hearing
Guide to Judicial Registrar Corporations Matters
1. This Guide summarises the arrangements for the hearing of corporations matters listed before a Judicial Registrar in the Federal Court of Australia (Court) in all states and territories other than Western Australia. These arrangements are intended to promote the overarching purpose set out in s 37M(1) of the Federal Court of Australia Act 1976 (Cth); that is, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
2. Judicial Registrar corporations matters are usually dealt with in open court as part of a list conducted using remote access technology. Parties and practitioners are able to join or observe those hearings by using the link published in the daily court list.
3. Judicial Registrars are able to hear and determine corporations matters falling within the scope of Schedule 2 to the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules). These include applications:
(a) for windings up in insolvency (s 459P);
(b) for windings up on other grounds (s 461);
(c) for the termination of windings up (s 482);
(d) to set aside statutory demands (s 459G);
(e) to reinstate deregistered companies (s 601AH);
(f) for orders under s 90-15 of the Insolvency Practice Schedule (Corporations);
(g) to replace a liquidator (s 473A);
(h) to release a liquidator (s 480);
(i) to grant leave to distribute a surplus (s 488(2));
(j) to extend the convening period in an administration (s 439A);
(k) to make orders as to how Part 5.3A is to operate (s 447A); and
(l) to make orders in respect of irregularities (s 1322).
4. Corporations applications are usually commenced by the filing of a Form 2 originating process, supported by a Form 59 affidavit, through the Court’s eLodgment
5. Applications are usually listed for hearing by a Judicial Registrar 2 to 6 weeks after filing. If your application is urgent, please let the Legal Case Manager know by calling 02 8099 8565 and/or by emailing email@example.com so that appropriate alternative arrangements can be made.
6. Both the Corporations Rules and the Federal Court Rules 2011 (Cth) (Rules) apply to corporations matters. The Corporations Rules set out a small number of particular requirements for corporations matters, whereas the Rules provide for the procedure of the Court more generally. There are corporations-specific forms prescribed by the Corporations Rules as well as general forms prescribed by the Rules. Both types of forms are used in corporations matters.
7. The most common type of corporations application is an application for a company to be wound up in insolvency pursuant to s 459P of the Corporations Act 2001 (Cth) (Corporations Act). Such an application is commenced by the filing of a Form 2 originating process, supported by a Form 59 affidavit. Possible wordings for the originating process and affidavit can be found at Note 1 to Schedule 3 of the Corporations Rules. Further information about winding up applications can be found in Corporations Information Sheet 1 and in the Winding Up Checklist.
8. Documents must be filed in accordance with the timelines imposed by previous orders of the Court and the requirements of the Corporations Act and Corporations Rules. If affidavits are filed late then the Court may, in the exercise of its discretion, refuse to permit them to be relied upon.
9. Proposed consent orders should be emailed to firstname.lastname@example.org by midday on the day before the hearing. Unless you are advised by the Court that appearances will not be necessary, you should assume that you are required to appear.
10. Other than proposed consent orders, please do not provide draft orders unless requested to do so by the Court.
11. It is the usual practice of the Court to fix the plaintiff’s costs at the time of making an order winding a company up in insolvency. In the alternative, the Court will order that the costs be taxed. If a plaintiff seeks an order fixing its costs, it should file a Statement of Costs and Disbursements by midday on the day before the hearing. There is no fee for filing this document. The Statement will usually include the short form amount for professional costs specified at item 13 of the Costs Scale (Schedule 3 to the Rules), together with details of the disbursements incurred. The costs of any adjournment, where reserved, can also be claimed.
12. All corporations matters are listed for hearing at the first return date. Final orders may be made at that time. Parties should not assume that a matter will be adjourned. All adjournments are at the discretion of the Court. If a party seeks an adjournment, then it will need to satisfy the Court that it would be an appropriate exercise of the discretion for that request to be granted.
13. The Court will endeavour to deal with matters as efficiently as possible. Matters will usually be called in the order set out in the published list. The Court will list shorter matters early in the list, with contested matters dealt with later. To this end, it is important – and in the parties’ interests – that the Court is advised (by email sent to email@example.com) by midday on the day before the hearing whether a matter is likely to be by consent, unopposed, or contested. If a matter is listed on the basis that it will be unopposed, but turns out to be contested, then it is likely that it will be stood down and dealt with later in the list.
14. Subject to contrary direction by the Court, all hearings in a list will be conducted by remote access technology. Cameras are expected to be switched on during appearances.
After the Hearing
15. Sealed orders will be made available on Federal Law Search.
Revised 2 February 2023