1. Rule 2.2(1) of the Supreme Court (Corporations) Rules 1999 (NSW) (‘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 final or interlocutory relief is claimed - by filing an interlocutory process.’
2. The words, ‘and whether final or interlocutory relief is claimed’, were inserted recently with effect from 24 June 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 on foot, to which the Rules apply, are required to be made by interlocutory process.
4. Two examples of claims for final relief which are required to be brought by interlocutory process are:
1. a claim by a defendant which would, if the general rules of court applied, be
brought by way of cross-claim;
2. 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 Supreme Court (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 will apply, an application for an order for pleadings may be made either 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.
24 June 2005
J J Spigelman
Chief Justice
