Guide for Practitioners and Parties

in Corporations Matters Listed Before a Registrar

1. Purpose
2. Corporations matters before a Registrar
3. Commencing proceedings
4. Filing documents in Registrar Corporations matters
5. First court date and time standards
6. Documents to be filed pre-hearing
7. Open court
8. Sequence in which matters will be called in a Registrar's Corporations List
9. Telephone appearance
10.Where no appearance may be required
11. Adjournments
12. Written notification of adjournments to non-appearing parties
13. New Court dates for applications not served
14. Amendments to Court documents
15. Court Orders
16. Standard form of Orders
17. Costs Orders
18. Further practice information
19. Communications in a Registrar matter
20. Publication of the Registrar Court list
21. Enquiries and contact information
22. Self-represented litigants
23. Information on the Court's Online Services

 

1. Purpose

1.1 This Guide summarises the practical arrangements for corporations matters listed before a Registrar in the Federal Court of Australia ('Federal Court'). 

1.2 The arrangements set out in this Guide are designed to streamline and promote a consistent and efficient case management practice in the Registrars' Court Lists nationally and to facilitate the just resolution of disputes with a minimum of delay and expense. However, nothing in this Guide affects the Court's discretion to conduct the List in a manner it considers appropriate.

1.3 Amendments will appear on the Guide online as appropriate and practitioners should check the website for the current version of the Guide. 

2. Corporations matters before a Registrar

2.1 Corporations matters that may be heard and determined by a Registrar of the Federal Court include winding up applications, applications to set aside a statutory demand, reinstatement applications, applications for termination of winding up orders, and applications to fix external administrator's remuneration under the Corporations Act 2001 (Cth) (the 'Corporations Act'). 

2.2. Corporations matters within the delegated jurisdiction of a Registrar are set out in Schedule 2 of the of the Federal Court (Corporations) Rules 2000 (the 'Corporations Rules').

3. Commencing proceedings

3.1 All new corporations applications that are within a Registrar's delegated jurisdiction can be commenced by filing the appropriate court documents with the Registry (refer to paragraph [4] of this Guide on how to file a document with the Registry).

3.2 The Federal Court Rules 2011 (the 'Court Rules')and forms, and the Corporations Rules apply to the commencement of corporations matters. Applications under s 459P of the Act for a winding up order on the ground of insolvency are commenced by filing an originating process using Form 2, section C in the Corporations Rules. The winding up application is to be supported by an Affidavit using Form 59 of the FCR, with the heading set out in Form 1 prescribed by rule 2.1 of the Corporations Rules. A sample of the affidavit in support of an application for winding up in insolvency is shown in Note 1 of Schedule 3 of the Corporations Rules. The sample affidavit is available online on the Federal Register of Legislation.

3.3 Formal requirements for documents filed in corporations proceedings are set out in rules 2.11 to 2.16 of the FCR and Division 2 of the Corporations Rules. Formal requirements for Affidavits filed in corporations proceedings are set out in rules 29.01 to 29.03 of the FCR but modified to include the document title set out in Form 1 prescribed by rule 2.1 and 2.6 of the Corporations Rules.

3.4 More information on the approved forms to be used in corporations matters can be found online in Forms.

3.5 Information sheets on commencing winding up proceedings on the ground of insolvency (Corporations Information Sheet 1) and a detailed winding up checklist (Corporations Information Sheet 2) are available online.

4. Filing documents in Registrar Corporations Matters

4.1 Documents commencing or relevant to an existing corporations Registrar matter can be lodged for filing electronically online by eLodging the documents with the Registry using the eLodgment facility (see paragraph [23] of this Guide for more information on eLodgment). Parties may also eLodge documents in Registrar matters regarding a proceeding including draft orders, consent orders, and case management correspondence.

4.2 eLodgment is the preferred method of filing documents in all Registrar matters rather than filing documents in paper format in person at the Registry or by fax filing. This is because the court file for all Registrar corporations matters is electronic (the "Electronic Court File" or "ECF"). The ECF has replaced paper based files and all documents accepted for filing in Registrar corporations matters will be received (and managed) electronically through the Court's eLodgment system.

4.3 Where paper documents are filed in hard copy with the Registry in person, by post, or by facsimile, the documents will need to be scanned and eLodged by Registry staff to form part of the court file. For those documents filed in person or in court, parties are encouraged to eLodge these documents themselves at the eLodgment kiosk at the Registry.

5. First Court date and time standards

5.1 Parties can generally expect a first hearing date to be listed within 2-6 weeks of filing an application, depending on the nature of the application.

5.2 Parties may request a hearing on a particular date on which a List is conducted. This request can be made via eLodgment. The Registry will endeavour to accommodate the request depending on the number of matters already listed on the date requested. Arrangements for hearing corporations matters by Registrars and relevant listing information for Registrar Court Lists in each registry is available online (see paragraph [20] of this Guide).

 

5.3 The Court aims to have all Registrar matters that are appropriately dealt with to conclusion within 3 months of the first return date. Practitioners are expected to assist the Court to meet this standard.

6. Documents to be filed pre-hearing

6.1 The Court requests that all documents which a party will ask the Court to consider should be filed no later than 2pm the day before the court listing. eLodgment is the preferred method of filing. The early filing of documents will generally allow the Court sufficient time to pre-read the file so as to ensure that court time is used efficiently. Filing of documents in court should be kept to a strict minimum.

6.2 For a Plaintiff, the Court requests that the following material be eLodged no later than 2pm the day before the appointed court date the following material will be eLodged:

a) All affidavit evidence required to be filed in support of the application under the court rules.

  • For winding up proceedings, this would include proof of all the matters required under Part 5.4, Division 1 of Part 5.4B of the Act and relevant Corporations Rules.
  • For the avoidance of doubt, practitioners should note that updating affidavits of debt and search are not required under the Corporations Rules and are generally not required in standard winding up applications before the Court will make a winding up order.
  • Practitioners are referred to paragraph [3.5] of this Guide and to the link to Information sheets on commencing winding up proceedings on the ground of insolvency (Corporations Information Sheet 1) and a detailed winding up checklist (Corporations Information Sheet 2).

b) Any other documents or material to be relied upon at the hearing.

c) Where an application has been adjourned, any affidavit proving notification of the adjourned court date to the other parties. 

d) A draft order using, where applicable, the standard form of orders.

e) Where an order for lump sum costs will be sought, a statement of costs and disbursements lodged in accordance with paragraph [17] of this Guide. 

f) Written notification to the Legal Case Manager to the Registrar hearing the matter (or, if there is no Legal Case Manager, the Registry), copying in all other parties to the proceeding addressing whether the matter is likely to proceed unopposed, and without an appearance from any other party, be adjourned, be contested, be dismissed/ withdrawn or the nature of other orders likely to be requested (if not provided under paragraph d) above). Parties should also indicate where it is expected that a matter will take more than 30 minutes to hear. (Refer to paragraph [19] of this Guide on the protocols for emailing the registry about a matter listed before a Registrar). When a matter is listed, the Registrar will, where practicable, endeavour to give priority to those matters where all the material outlined above has been filed by 2pm the previous day. (Refer to paragraph [8.1] of this Guide as to how a Registrar's List will generally be structured).

6.3 Prior to court, practitioners are expected to communicate with each other to see if an agreement can be reached on the orders the Court will be asked to make. Generally a party should not ask the Court to make an order before conferring with the other party/ parties.

7. Open Court

7.1 All Registrar winding up applications are dealt with in open court.

 

7.2 Applications to issue an examination summons pursuant to ss 596A and 596B of the Act are generally dealt with in eCourtroom (refer to paragraph [23] of this Guide) or 'on the papers' in chambers. 

8. Sequence in which matters will be called in a Registrars' Corporations List

8.1 The Registrar will order the List to deal with matters in the most efficient way. Priority will usually be given to short matters or straightforward matters that can be disposed of within 5 minutes and that do not require significant reading before moving to the other matters. Short matters may include consent adjournments and unopposed matters where the necessary supporting material and notification has been eLodged by 2.00 pm the previous day. (Refer to paragraph [6.2] of this Guide on the documents to be filed pre-hearing). In appropriate circumstances, a Registrar may dispense with any requirement for a party to take the Court through the evidence.

8.2 While a Registrar will generally hear a matter on the day it is listed, matters which are estimated to last for more than 30 minutes may need to be listed at another time. It is the responsibility of the parties to notify the Legal Case Manager by 2pm the day before a matter is listed where the estimated hearing time is more than 30 minutes. It is expected that parties will give the Court a realistic estimate of the time required to hear the application and that all the documents relevant to the application are eLodged by 2pm the day before the appointed court date. (Refer to paragraph [6.2] of this Guide on the documents to be filed pre-hearing). 

 

8.3 Where a party seeks leave to file documents in court, the Registrar may direct that party to eLodge the document at the eLodgment kiosk in the Registry before dealing with the matter or before making any orders. In all other instances the filing party will be directed to eLodge any document filed in court by no later than 4.30pm on the next business day, either from their own computer or from the eLodgment kiosk in the Registry. Filing of documents in court should be kept to a strict minimum.

9. Telephone appearances 

9.1 Appearing by telephone is available in some circumstances at the discretion of the Registrar. A request to appear by phone should be made in writing no later than 2pm the day before the court date. The basis for the request should be set out in the written request.

 

9.2 If the request is granted, the party should ensure that all documents that the Court will be asked to consider are eLodged by 2pm the day before the court date. The Court will also require the party to be available at a designated time or during a designated period of time. If the party approved by the Registrar to appear by telephone is not able to be contacted at the designated time or during the designated period of time, the hearing may proceed in the absence of that party. 

10. Where no appearance may be required

10.1 In appropriate circumstances, a Registrar may make orders in open court without the need for the parties or the practitioners to be present when the matter is listed. Upon receiving a request from the parties (see paragraphs [10.8] – [10.10] of this Guide), the Registrar will consider whether the application can be dealt with in their absence. Parties should not assume that an order will be made without attendance as requested. Examples of suitable matters where the Court may be prepared to make orders without attendance by the parties follow.

Consent adjournments / Case management orders

10.2 Where, after an originating process has been served, the parties reach agreement that the proceedings should be adjourned, the Court may (on approval of the Registrar) adjourn the proceeding without the parties having to attend provided that a notice of appearance has been filed by all consenting parties, the consent order is eLodged no later than 2pm the day prior to the hearing, and the order is not opposed, at the hearing, by any supporting creditor or other interested party. Parties should not expect that the Court will adjourn a matter more than once in their absence. (Refer to paragraph [11] of this Guide on adjournment applications).

10.3 Where all parties consent to orders varying directions previously made, a Registrar may agree to make those orders in open court without the parties having to attend in person. However, should the Registrar decline to make the proposed orders, the parties are expected to appear when the matter is listed before the court.

Dismissals / Leave to Discontinue

 

10.4 Where, after an originating process has been served, the parties reach agreement that the proceeding should be dismissed, the Court may (on approval of the Registrar) dismiss (or, as appropriate, grant leave to discontinue) the application (with or without costs) without the parties having to attend provided that the proposed (or agreed) order is eLodged no later than 2pm the day prior to the hearing and the order (including any costs order) is not opposed, at the hearing, by any supporting creditor or other interested party.

New hearing date has been allocated by the Registry

10.5 Where a winding up application has not been served, no notice of appearance has been filed (for example, by a supporting creditor) and where the plaintiff has obtained a new hearing date at least 24 hours before the hearing date, the winding up application will remain in the List and where approved the Registrar will announce in open court that the winding up application has not been served and announce the new hearing date. The procedure for obtaining a new court date from the registry is outlined in paragraph [13.1].

Other Orders made without attendance

10.6 Where a matter has been referred to a Judge's Docket and allocated a different court date, the Registrar may announce the new listing in open court without the parties having to attend.

10.7 Where proceedings have been adjourned for the purpose of making final costs orders which are not opposed (refer to paragraph [17] of this Guide), the Registrar may make orders in open court without the parties having to attend.

Submitting a request for an Order without attendance

10.8 These arrangements are designed to save expense to the parties, the time of the Court, and for the convenience of practitioners and are subject to the overriding discretion of the Registrar as to whether it is appropriate to deal with a matter in the absence of the parties. 

10.9 Any request to be excused from appearing when a matter is listed before the Court should be made in writing no later than 2pm the day before the proceeding is listed. The Registrar will endeavour to review the request to consider whether to make the proposed orders without the parties having to appear in court when the matter is next listed.

Note: Parties are to put their requests in writing by eLodging the request as correspondence and sending an email to the Legal Case Manager copying in each other party to the proceeding confirming that the request has been eLodged. Protocols for emailing a Registrar are set out below at paragraph [19].

10.10 It is the responsibility of the parties (and lawyers representing each party) to enquire of the relevant Registry whether the Registrar will agree to make orders in their absence in open court. In the absence of confirmation from the Registry the parties are expected to attend court when the matter is listed.

11. Adjournments

11.1 Winding up proceedings are listed for hearing on the first court date and not simply for directions. Parties should come prepared to have the application heard on the first court date and should not expect that the court will automatically grant an adjournment.

11.2 A party who seeks an adjournment is expected to confer with the other parties with a view to reaching agreement in advance of a court listing on the orders the Court will be asked to make.

11.3 Generally, a party applying for an adjournment or for orders varying or amending previous orders would be expected to satisfy the Court of the basis of the adjournment or other order, and the Court may require the party to file and serve an affidavit setting out the factual basis, and explain the reasons, for the adjournment and any other matters the Court will be asked to consider.

 

11.4 Parties should not expect that the Court will adjourn an originating process, even if by consent, more than once. Unless the Registrar agrees, practitioners are expected to attend court in person where an adjournment is sought.

12. Written notification of adjournments to non-appearing parties

12.1 On any adjourned hearing of a proceeding, the applying party will be required to file evidence of the date, manner and address to which notice of the adjournment order has been sent to a party who was not present when the adjournment order was made.

12.2 Where the absent party is self-represented, written notice of the adjourned orders must be sent to that party's last known address/ registered office, or where the party has filed a Notice of Appearance, at the address referred to in the Notice. Where a represented party has filed a Notice of Appearance, the written notice can be sent to the address for service referred to in the Notice.

12.3 The written notice must inform the absent party of the details of the adjourned date, time and place (including address) of the next court date and of any other orders made by the Registrar. Where the Plaintiff intends to proceed on its application at the next court date, it may be prudent to state in the written notification that if the debtor is not present or represented at the adjourned court date, the Court may make a winding up order in their absence without further notice.

12.4 An Affidavit of Service of the written notification will generally be required where orders including costs orders are sought at the adjourned hearing. Where written notification is sent by prepaid post, the Affidavit must state whether the document was sent by Express Post; Priority Post; Registered Post; Regular Post or other method of post that was used. 

12.5 Practitioners must allow sufficient time for documents which are sent by prepaid post to be delivered. General Information on Australia Post's delivery timeframes can be found online at the Australia Post website

13. New Court dates for applications not served

13.1 Where an originating process such as a winding up application is unserved before the Court hearing date, an application for a new hearing date can be made of the Registry by eLodging an amended originating process with a request for a new hearing date. The applicant will need to select the amended document option, using an unsealed copy of the originating process (NOT the sealed court copy) with a request for a new listing including any request for a particular date. The practitioner can obtain a copy of the amended originating process once accepted by the Registry by printing a sealed copy from eLodgment or via the Commonwealth Courts Portal. (Refer to paragraph [10.5] of this Guide in relation to appearing in court at the return date of an unserved application).

 

13.2 Practitioners should note that for service to be effective, the originating process must be endorsed by the registry with the correct hearing date.

14. Amendments to Court documents

14.1 Handwritten amendments to court documents (including an originating process for winding up orders) are not considered appropriate now that Registrar files are electronic. All amendments to court documents should be lodged electronically through the eLodgment facility.

 

14.2 The procedure for endorsing an originating process with the correct hearing date is outlined in paragraph [13.1] above. Parties and practitioners must also ensure that the listing information on an originating or interlocutory process is endorsed with the correct court date, time and location where the proceeding is listed. The procedure for amending an originating or interlocutory process is outlined above at paragraph [13.1].

15. Court Orders

 

15.1 Orders are produced by the Court electronically and can be accessed directly by parties via the Federal Law Search or through the Commonwealth Courts Portal (the "CCP"). Parties can view and print a sealed copy of all orders from the CCP. Parties can expect that sealed winding up orders will be available within 1 day of the order being made, and all other court orders within 2 days of the order being made.

16. Standard Form of Orders

16.1 The Court uses a standard form of order in most Registrar corporations matters including standard forms of winding up and adjournment orders. Wherever appropriate, the Court will use the standard form of orders.

16.2 Where non-standard orders are proposed, the parties are expected to cooperate and communicate with each other in advance of the hearing to reach agreement on the orders the Court is being asked to make. The parties should eLodge any agreed orders or (where the parties cannot agree) their competing proposed orders by 2pm the day before the court list.

 

16.3 Standard orders are available on the Federal Court website.

17. Costs Orders

17.1 In all matters, the Court will make a lump sum order unless it is not appropriate to do so.

17.2 In matters where a winding up order is made, the Court will generally fix costs in accordance with the short form amount. This will include any costs reserved on adjournment. Parties are to eLodge a statement of costs and disbursements in accordance with the short form amount in advance of the court hearing. The statement of costs should not be eLodged as a short form bill as this will attract a filing fee.

17.3 The short form amount allowed for winding up orders can be found in Schedule 3 of the Court Rules.

17.4. Guidance on how to address GST related costs issues is provided in the Costs Practice Note (GPN-Costs). Generally a GST amount will be excluded for any party who is registered for GST purposes and entitled to claim an input tax credit. In the absence of a GST disclosure the court will generally not allow a GST amount.

17.5. Where a winding up proceeding is dismissed, the Court may in appropriate circumstances, on application, make a costs order in accordance with (or consistent with) the short form amount. The Court will generally require proof that the statement of costs and disbursements has been served on all relevant parties/ persons. Parties applying for a costs order should eLodge a statement of costs and disbursements and any affidavit of service of the schedule in advance of the hearing.

17.6. Where proceedings are to be dismissed because the debt has been repaid at very short notice, and a statement of costs and disbursements has not been served or the costs agreed by the other party, a Registrar may, in appropriate circumstances, consider fixing costs with a direction that the costs orders be served with leave granted to any interested party to apply to have the costs order set aside or varied within seven days of receiving the order. Alternatively, the parties may request that a Registrar adjourn the matter for a short period so that the statement of costs and disbursements can be served and any other steps taken to finalise the matter. If not opposed, the Registrar may announce the final costs order on the adjourned date in open court without the parties having to attend.

17.7. A standard form of costs orders the Court may make in appropriate circumstances are available online.

18. Further practice information

18.1 This Guide applies to all Registrar corporations matters. Winding up applications and all corporate related insolvency matters within a Registrars' delegated authority fall within the Corporations and Corporate Insolvency Sub area of the Court's Commercial and Corporations National Practice Area (NPA). More practice information on proceedings commenced within this NPA, including corporate insolvency matters, and the Court's National Court Framework (NCF) is available online in Practice Notes.

18.2. Information and guidance on costs related matters can be found in the Costs Practice Note (GPN-Costs).

18.3 Parties are also referred to the following Information sheets that are released with this Guide:

18.4 The Corporations Information Sheets are available online under Guides.

19. Communications in a Registrar matter

19.1 In communicating with the Registry about a Registrar matter, practitioners are to put their requests in writing by eLodging the request as correspondence and sending an email to the Legal Case Manager to the Registrar hearing the matter (or to the Registry if there is no Legal Case Manager) copying in each other party to the proceeding confirming that the request has been eLodged. Practitioners are referred to Central Practice Note: National Court Framework and Case Management (CPN-1) (paragraph 15.3]) for further guidance about communicating with chambers and the registry in matters before the Court.

19.2 When sending an email message in a Registrar matter, it is expected that a party will: 

a) Address the email to the relevant Legal Case Manager and not to the Registrar directly.

b) Clearly state the Court's file number, parties' names and any court dates in the subject heading.

c) Provide a clear description of any attached documents in the body of the email message. 

d) Copy the message to all other parties (if applicable).

Note:

  • Parties should, wherever practicable, eLodge any documents (including correspondence) relevant to a Registrar matter. 
  • Parties should not email applications or documents which require a fee to be paid; these should be eLodged and not emailed.
  • A party may not file a document by email; documents submitted by email will not be accepted for filing by the Registry and will not form part of the court file.

20. Publication of the Registrar Court List

20.1 Listing information for a Registrars' corporations list is available online at Daily Court Lists

20.2 The Registry aims to publish the Registrars' List for the following day by 4pm.

21. Enquiries and contact information

21.1 Contact details for the Court's registries are available on the Court's website.

22. Self-Represented litigants

 

22.1 Self-Represented Litigants will be supported by the Registry to assist them through the court process efficiently. Further information to assist Self-Represented Litigants is available in Going to Court.

23. Information on the Court's Online Services

eLodgment

23.1 The Court provides an electronic lodgement (eLodgment) facility through which a document that commences a proceeding or is relevant to an existing proceeding may be lodged for filing online.

23.2 The use of eLodgment provides many benefits to court users. It is available from each user's computer at any time and provides a complete record of all lodgement transactions with the court.

23.3 eLodgment also allows court users to lodge other documents regarding a proceeding, for example: a draft order, terms of consent and case management correspondence.

23.4 A party must be registered to use eLodgment. Information about registering, preparing and lodging documents using eLodgment can be found under Online Services.

Commonwealth Courts Portal

 

23.5 Filed documents in a matter can be viewed by parties or those authorised by a party on the Commonwealth Courts Portal. The Commonwealth Courts Portal (CCP) provides web-based services for court users to access information about cases before the Court. Parties may register for the CCP to gain access to documents which have been eLodged, as well as orders of the Court, judgments and listing events (past or future). More information about the CCP can be found under Online Services.

Federal Law Search

23.6 Alternatively, stamped court orders are also available online via Federal Law Search. The Federal Law Search facility provides selected information on cases to members of the public.