Federal Court of Australia

Federal Court of Australia Practice News No. 7: 20 December 2005

Federal Court (Bankruptcy) Rules 2005 and

Federal Court Amendment Rules 2005 (No 3)

I advise that the Federal Court (Bankruptcy) Rules 2005 and the Federal Court Amendment Rules 2005 (No 3) will shortly be registered on the Federal Register of Legislative Instruments and will commence on 6 February 2006.

An official copy of these Rules will be available on the Internet from the ComLaw site at http://www.comlaw.gov.au/ .

The Federal Court (Bankruptcy) Rules 2005 will replace Order 77 of the Federal Court Rules. The Bankruptcy Rules are the culmination of a project with the Federal Magistrates Court to develop and implement harmonised Bankruptcy Rules that will:

apply to bankruptcy matters in the Federal Court and the Federal Magistrates Court;
be written in clear and simple language and in accordance with modern drafting standards;
remove any ambiguities or areas of uncertainty that exist in the present bankruptcy rules of each Court; and
to the extent possible, include prescribed forms for the most common applications made in bankruptcy proceedings.

I understand the Federal Magistrates will shortly adopt the Federal Magistrates Court (Bankruptcy) Rules 2005 which will commence on 6 February 2006.

The Bankruptcy Rules are closely based on those set out in Order 77 of the Federal Court Rules and Chapter 4 of the Federal Magistrates Court Rules. The main differences between the existing Order 77 and the Bankruptcy Rules include:

the use of simpler language and structure;
the use of 'interim applications' for interlocutory relief rather than 'motions on notice';
providing that an applicant for review of a decision by a Registrar to make a sequestration order must serve the application on the trustee at least 28 days before the hearing date fixed for the application and must give notice of the application to each person known to the applicant to be a creditor of the bankrupt at least 14 days before that date;
consolidating similar rules into a single rule (where appropriate);
relocating rules that deal with similar subject matter into the same Part or Division - see, in particular, the relocation of all rules dealing with summons into the same Part;
a new version of the prescribed form of creditor's petition, which includes the verifying affidavit.

The Federal Court Amendment Rules 2005 (No 3) make a number of amendments to the Federal Court Rules that are consequential upon the adoption of the Bankruptcy Rules. In particular, the Amendment Rules omit Order 77, Forms 148 to 160 (inclusive) and Schedule 3.

If you have any queries please contact (02) 9230 8336.

Philip Kellow

Deputy Registrar

19 December 2005

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