Practice Note CORP 1

PA Keane, Chief Justice 01 August 2011

This Practice Note is REVOKED

On 25 October 2016, as part of the National Court Framework reforms, all existing practice documents were revoked and new national practice notes were issued, effective immediately.

To assist Court users to understand these practice note changes, the Court has prepared:

Interlocutory process and pleadings in Corporations matters

RTF version (54.2 kb)

1.  Rule 2.2 (1) of the Federal Court (Corporations) Rules 2000 (‘Corporations Rules’) provides as follows:

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.

2.  The words ‘and whether interlocutory relief or final relief is claimed,’ were inserted with effect from 26 May 2005.

3.  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.

4.  Two examples of claims for final relief that are required to be brought by interlocutory process are:

(a)  a claim by a defendant that would, if the general rules of court applied, be brought by way of cross-claim;

(b)  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).

5.  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.