Commercial and Corporations Practice Note (C&C-1)
Schedule 1: Corporations and Corporate Insolvency Sub-Area
Scope of Sub-area - Corporations Matters
1. The expression "corporations matters" applies to matters in the Corporations and Corporate Insolvency Sub-area and includes matters arising under or in relation to:
- the Corporations Act 2001 (Cth) ("Corporations Act");
- the Australian Securities and Investments Commission Act 2001 (Cth);
- the Cross-Border Insolvency Act 2008 (Cth); and
- all corporate insolvency matters, but not personal bankruptcy matters (the latter being in the General and Personal Insolvency Sub-area).
Operation of Sub-area
2. The Commercial and Corporations Practice Note (C&C-1) (to which this schedule is attached) applies to all corporations matters.
Corporations Lists and Corporations Judges
3. All registries nationally have a corporations list and dedicated corporations judges. The corporations judges in each registry are set out on the Court's website. The corporations list in each registry will operate on consistent NCF principles for corporations matters and according to the workflow and needs of the particular registry. Information regarding the corporations list, including the corporations judges, is available on the Court's website.
4. On the return date for the application (which will be in accordance with the allocation procedure for the weekly Corporations List or otherwise generally between 2 – 5 weeks from the date of filing), depending on the needs of the parties and the character of the matter, the corporations judge will either substantively determine the matter or deal with any case management, interlocutory or procedural matters that arise and explore the suitability of making a mediation order.
5. Shorter corporations matters (eg. an application for extension of a convening period for a meeting of a company's creditors) will likely be dealt with on the return date or soon after. For larger or more complex corporations matters, parties should consider whether the innovative case management procedures set out in the Commercial and Corporations Practice Note may be applied.
Weekly Corporations List
6. The purpose of the weekly Corporations List is to provide efficient triaging of corporations matters. The weekly Corporations List will be conducted on the basis that short matters will usually be heard and determined when first returned. Longer matters will be programmed for hearing and allocated to a docket judge for hearing on a date to be fixed by that judge. Where appropriate, matters may be referred to a registrar.
7. If the matter is allocated to a docket judge, rather than made returnable in the weekly Corporations List, then the parties will be notified of the date for a first case management hearing by the docket judge.
8. More urgent matters may be referred to the Commercial and Corporations Duty Judge.
New South Wales and Western Australia
9. The Corporations List in New South Wales and Western Australia is conducted at 9.30am (local time) on Thursday of each week. Corporations matters filed in the New South Wales and Western Australian registries will be returned in the weekly Corporations List as follows:
(a) Applications filed on or before 12 noon on a Wednesday in any week will be returned in the Corporations List for the Thursday of the next week; and
(b) Applications filed after 12 noon on a Wednesday in any week will be returned in the Corporations List for the Thursday of the week after the next week.
Queensland and Victoria[3]
10. The Corporations List in Queensland and Victoria is conducted at 9.30am (local time) on Friday of each week. Corporations matters filed in the Queensland and Victorian registries will be returned in the weekly Corporations List as follows:
(a) Applications filed on or before 12 noon on a Thursday in any week will be returned in the Corporations List for the Friday of the next week; and
(b) Applications filed after 12 noon on a Thursday in any week will be returned in the Corporations List for the Friday of the week after the next week.
South Australia[4]
11. The Corporations List in South Australia is conducted at 9.30am (local time) on Tuesday of each week. Corporations matters filed in the South Australian registry will be returned in the weekly Corporations List as follows:
(a) Applications filed on or before 12 noon on a Wednesday in any week will be returned in the Corporations List for the Tuesday of the next week; and
(b) Applications filed after 12 noon on a Wednesday in any week will be returned in the Corporations List for the Tuesday of the week after the next week.
Urgent Applications
12. The following originating corporations applications may be dealt with by the Commercial and Corporations Duty Judge:
- any urgent Commercial and Corporations NPA matters;
- ex parte applications in respect of corporations matters, such as abridgement of time for service, interlocutory injunctions, search and freezing orders;
- any other application that may arise in respect of a corporations matter that is not conveniently accommodated by filing a corporations matter in the corporations list in the usual way; and
- so far as is practicable, a referral from a registrar's corporations list on the same day the application is listed for hearing before a registrar.
Commercial and Corporations Duty Judges
13. Originating commercial and corporations duty matters will be heard by dedicated commercial and corporations judges who will be regularly available to the parties for genuinely urgent matters based on a regular roster system.
14. Arrangements for hearing urgent originating applications in respect of Commercial and Corporations Duty Judge matters and relevant contact information is set out in Part 4 of the Commercial and Corporations Practice Note.
Urgent Interlocutory Applications
15. Urgent interlocutory matters will be heard by the docket judge as set out in Part 4 of the Commercial and Corporations Practice Note.
Filing Applications and Supporting Material
16. When filing an originating application in a corporations matter, an originating process should be used (Form 2 of the Federal Court (Corporations) Rules 2000(Cth) ("Corporations Rules")).
17. When filing an interlocutory application in a corporations matter, an interlocutory process should be used (Form 3 of the Corporations Rules). This includes interlocutory applications seeking final relief, such as:
(a) a claim by a defendant in the nature of a cross-claim;
(b) a claim for indemnity by the Commissioner of Taxation against a company director where certain payments have been set aside (see s 588FGA(4) of the Corporations Act and Condon v Commissioner of Taxation [2004] NSWSC 481)
18. In some circumstances it may not be immediately apparent to a filing party whether an application should be properly commenced by way of an interlocutory process (brought within a current or pre-existing proceeding in this Court) or an originating process (commencing a new proceeding). This can be an important decision which may affect the case management of the matter and the applicable filing fee.
Prescribed Circumstances
19. As to whether an interlocutory or originating process should be filed may be prescribed by relevant Acts or Rules, namely the Corporations Act, the Federal Court Rules 2011 (Cth) ("Federal Court Rules") and the Corporations Rules. The following are two (non-exhaustive) illustrations where the form of the application is prescribed:
- Originating process required – an application concerning an act or omission of a receiver, or a controller appointed by the Court (see s 423(1)(b) of the Corporations Act and r 4.1 of the Corporations Rules);
- Interlocutory process required – seeking a determination of a liquidator's remuneration (See s 473(b)(ii) of the Corporations Act and r 9.4(2)(a) of the Corporations Rules)
Non-prescribed Circumstances
20. In circumstances where the relevant Acts or Rules do not expressly prescribe which type of application should be used, regard should be had to the following when deciding whether it is appropriate to file an interlocutory process (rather than an originating process) in a current or pre-existing proceeding:
(a) whether the parties in the earlier proceeding and the application are common;
(b) the legal and factual nexus between the earlier proceeding and the application;
(c) whether the earlier proceeding has been finally determined; and
(d) the length and complexity of the application.
Request for Pleadings
21. Given that originating and interlocutory processes are accompanied by supporting affidavits, any application seeking an order for pleadings should be included in an originating or interlocutory process. An originating or interlocutory process should not be amended so as to be converted into a pleading.
Oppressive Conduct of Affairs of a Company
22. Subject to options available to parties as set out in the Commercial and Corporations Practice Note, applications for relief under s 233 of the Corporations Act (whether or not other relief is sought) are to be made by originating process supported by an affidavit which:
(a) should be as brief as possible and in any event no more than 5 pages in length;
(b) sets out a clear and succinct summary of the facts alleged to constitute the acts of oppression;
(c) exhibits only a current ASIC search of the company, and no other exhibits.
23. The application will be returnable before the Commercial and Corporations Duty Judge. The parties (as well as their legal representatives) will be expected to attend that hearing.
24. At that initial hearing, in addition to the case management imperatives (referred to in paragraph 6.7 of the Commercial and Corporations Practice Note) the parties will be expected to have considered the following and be in a position to address the Court on:
(a) whether the matter can be resolved at that hearing and, if so, on what terms;
(b) what steps, if any, are necessary before the matter can be resolved (eg. access to the books of the company, a valuation required etc);
(c) what information, if any, is required before the dispute can be resolved, and why.
25. If the matter does not resolve at that initial hearing, the matter will usually be referred to a registrar for mediation. In the event that the matter does not settle at the mediation, the registrar may conduct a case management conference immediately following the mediation to consider the most economic and efficient means of proceeding to and conducting the trial, at which conference the registrar may make case management orders.
Schemes of Arrangement - Form of Notice for Meeting
26. When making an order under s 411(1) of the Corporations Act the Court will require that the explanatory statement or a document accompanying the explanatory statement, prominently display a notice in the following form or to the following effect:
"IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SUBSECTION 411(1) OF CORPORATIONS ACT 2001 (Cth)
The fact that under subsection 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court:
(a) has formed any view as to the merits of the proposed scheme or as to how members / creditors should vote (on this matter members / creditors must reach their own decision); or
(b) has prepared, or is responsible for the content of, the explanatory statement."
Corporations Matters Before a Registrar
27. A significant proportion of corporations matters are heard and determined by registrars of the Court. This includes winding up applications, applications to set aside a statutory demand and examinations pursuant to ss 596A and 596B of the Corporations Act. Corporations matters within the delegated jurisdiction of a registrar are set out in Schedule 2 of the Corporations Rules.
28. Arrangements for hearing corporations matters before a registrar and relevant information for registrar corporations lists in each registry is available on the Court's website.
9 November 2022
[3] Scheduled to commence on 6 February 2023.
[4] Scheduled to commence on 6 February 2023.
