Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules 2016
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Supreme Court (Chapter I and Chapter VI Dual
Commission Holder Amendments) Rules 2016
S.R. No. 105/2016
TABLE OF PROVISIONS
Rule Page
Part 1—Preliminary 1
1 Object 1
2 Authorising provisions 1
3 Commencement 1
Part 2—Amendment of Chapter I 2
4 Application of Part 5 of Order 58 2
Part 3—Amendment of Chapter VI 3
5 Rule 3C.01 substituted 3
6 Form 6–3CA amended 3
7 Form 6–3CB amended 3
8 Form 6–3CC amended 3
9 Form 6–3CD amended 4
10 Form 6–3CE amended 4
11 New Order 3D inserted 4
12 New Forms 6–3DA to 6–3DH inserted 8
═══════════════
Endnotes 21
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
STATUTORY RULES 2016
S.R. No. 105/2016
Supreme Court Act 1986
Supreme Court (Chapter I and Chapter VI Dual
Commission Holder Amendments) Rules 2016
The Judges of the Supreme Court make the following Rules:
Part 1—Preliminary
1 Object
The object of these Rules is to amend Chapter I
and Chapter VI of the Rules of the Supreme Court
as a consequence of changes made by the Justice
Legislation Further Amendment Act 2016 in
relation to the Chief Magistrate who is a dual
commission holder.
2 Authorising provisions
These Rules are made under section 25 of the
Supreme Court Act 1986 and all other enabling
powers.
3 Commencement
These Rules come into operation on 1 September
2016.
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Part 2—Amendment of Chapter I
4 Application of Part 5 of Order 58
In Rule 58.22 of the Supreme Court
(General Civil Procedure) Rules 20151 , after
"of that Court" insert "or by the Chief
Magistrate who is a dual commission holder".
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Part 3—Amendment of Chapter VI
5 Rule 3C.01 substituted
For Rule 3C.01 of the Supreme Court
(Criminal Procedure) Rules 2008 2 substitute—
"3C.01 Application of Order 3C
This Order applies to appeals to the Trial
Division under Part 5A of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997 from the Children's Court
constituted by the President of that Court or
by the Chief Magistrate who is a dual
commission holder.".
6 Form 6–3CA amended
In Form 6–3CA of the Supreme Court
(Criminal Procedure) Rules 2008, for
"the President" substitute "the *President/
*Chief Magistrate who is a dual commission
holder".
7 Form 6–3CB amended
In Form 6–3CB of the Supreme Court
(Criminal Procedure) Rules 2008, for
"the President" substitute "the *President/
*Chief Magistrate who is a dual commission
holder".
8 Form 6–3CC amended
In Form 6–3CC of the Supreme Court
(Criminal Procedure) Rules 2008, for
"the President" substitute "the *President/
*Chief Magistrate who is a dual commission
holder".
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9 Form 6–3CD amended
In Form 6–3CD of the Supreme Court
(Criminal Procedure) Rules 2008, for
"the President" substitute "the *President/
*Chief Magistrate who is a dual commission
holder".
10 Form 6–3CE amended
In Form 6–3CE of the Supreme Court
(Criminal Procedure) Rules 2008, for
"the President" substitute "the *President/
*Chief Magistrate who is a dual commission
holder".
11 New Order 3D inserted
After Order 3C of the Supreme Court
(Criminal Procedure) Rules 2008 insert—
"ORDER 3D
APPEALS TO TRIAL DIVISION UNDER
PART 6.1 OF CHAPTER 6 OF THE
CRIMINAL PROCEDURE ACT 2009
3D.01 Application of this Order
This Order applies to any appeal under
Part 6.1 of Chapter 6 of the Criminal
Procedure Act 2009 to the Trial Division
of the Court from the Magistrates' Court
constituted by the Chief Magistrate who
is a dual commission holder.
3D.02 Definitions
In this Order, unless the context or subject
matter otherwise requires—
the Act means the Criminal Procedure
Act 2009.
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3D.03 Notice of appeal by offender
(1) A notice of appeal and undertaking to
proceed under section 255 of the Act shall be
in Form 6–3DA.
(2) The notice of appeal and undertaking to
proceed shall be signed by the appellant in
the presence of—
(a) the Registrar of the Magistrates' Court
with whom the notice of appeal is filed;
(b) if the appellant is in a prison, youth
justice centre or youth residential
centre—
(i) the officer in charge of the prison,
youth justice centre or youth
residential centre; or
(ii) any prison officer of or above the
rank of senior prison officer; or
(c) if the appellant is in a police gaol, a
police officer—
(i) of or above the rank of sergeant;
or
(ii) for the time being in charge of a
police station.
(3) A notice under section 255(6)(a) of the Act
shall be in Form 6–3DB.
3D.04 Appeals by DPP against sentence or
failure to fulfil undertaking
(1) A notice of appeal referred to in section 258
of the Act in respect of an appeal by the DPP
under section 257 of the Act shall be in
Form 6–3DC.
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(2) Within 7 days after serving a copy of
the notice of appeal in accordance with
section 258(2) of the Act, the DPP shall
file in the Supreme Court—
(a) a copy of the notice of appeal; and
(b) an affidavit of service.
(3) A notice of appeal referred to in section 261
of the Act in respect of an appeal by the DPP
under section 260 of the Act shall be in
Form 6–3DD.
(4) Within 7 days after serving a copy of
the notice of appeal in accordance with
section 261(2) of the Act, the DPP shall
file in the Supreme Court—
(a) a copy of the notice of appeal; and
(b) an affidavit of service.
3D.05 Prothonotary to fix date for hearing of
appeal
The Prothonotary shall—
(a) fix the date and place for hearing of
each appeal to which this Order applies
and of each application referred to in
Rule 3D.08; and
(b) notify in writing each party and each
legal practitioner who has given notice
under Rule 3D.10 of the date and place
of hearing within a reasonable time
before the hearing.
3D.06 Abandonment of appeal
(1) A notice of abandonment of appeal
under section 266 of the Act shall be in
Form 6–3DE.
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(2) For the purposes of the striking out of an
appeal under section 266(4) of the Act,
the Court may be constituted by the
Prothonotary or a Judge of the Court.
3D.07 Written notice of abandonment of
appeal—conviction only
Written notice under section 266(2) of the
Act that an appeal against conviction is
abandoned, but an appeal against sentence
is pursued, shall be in Form 6–3DF.
3D.08 Application to set aside an order striking
out appeal for failure to appear
(1) An application under section 267(3) of
the Act to set aside an order striking out
an appeal for failure to appear shall be in
Form 6–3DG.
(2) The Prothonotary shall, as soon as
practicable, forward a copy of the application
to the court where the original sentence or
order was imposed.
3D.09 Recording and notification of result of
appeal
(1) The Court shall record the result of each
appeal to which this Order applies in a result
of appeal form in Form 6–3DH.
(2) The Prothonotary shall forward a copy of the
result of appeal form to—
(a) the court where the original sentence or
order was imposed;
(b) the parties; and
(c) any person or authority concerned
with the administration of any sentence
or order originally imposed in the
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Magistrates' Court, or any sentence or
order imposed by the Court on appeal.
(3) If more than one appeal is heard together,
it is not necessary to record the sentence on
a separate result of appeal form, but the
outcome of each appeal, the particulars of
each charge and the sentences imposed shall
be recorded in full.
(4) Where the Court has imposed a sentence
of imprisonment or detention, the result of
appeal form shall be sufficient to authorise
the keeping of the appellant for the period
and in the manner set out in the form.
3D.10 Legal practitioner to notify that
practitioner acts
(1) If a legal practitioner is engaged to act on
behalf of an appellant or a respondent to an
appeal to which this Order applies, the legal
practitioner, without delay, shall notify the
Prothonotary in writing that the practitioner
so acts and provide an address for service.
(2) If a legal practitioner ceases to act on behalf
of an appellant or a respondent or the address
for service is changed, the legal practitioner
shall without delay so notify the
Prothonotary in writing.".
12 New Forms 6–3DA to 6–3DH inserted
After Form 6–3CE of the Supreme Court
(Criminal Procedure) Rules 2008 insert—
"Rule 3D.03(1) FORM 6–3DA
NOTICE OF APPEAL
MAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
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IN THE MATTER OF
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm: Practitioner's name:
Solicitor Code: Ref.:
TO the Prothonotary of the Supreme Court at: [place]
AND TO the Respondent: [name]
Address for Respondent:
I appeal under section 254 of the Criminal Procedure Act 2009 against a
decision made by the Magistrates' Court constituted by the Chief Magistrate
who is a dual commission holder at [place] on [date].
The details of the offences and Sentence/Order imposed are:
Offence Sentence/Order
I am appealing against:
*Conviction and sentence
*Sentence alone
STATEMENT REGARDING POWER TO IMPOSE A MORE
SEVERE SENTENCE
I am aware that on my appeal the Supreme Court may impose a more severe
sentence than the one imposed by the Magistrates' Court.
Date:
[Signature of Appellant]
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UNDERTAKING TO PROCEED WITH APPEAL
I [name]
of [address] undertake to:
(a) appear at the Supreme Court to proceed with the appeal at a place
and on a day fixed by the Prothonotary of the Supreme Court and to
appear at the Supreme Court for the duration of the appeal.
(b) notify the Prothonotary of the Supreme Court in writing of any change
of address from that appearing in this notice of appeal.
Date:
[Signature of Appellant]
In the presence of:
[Signature of Magistrates' Court Registrar/Prison Officer/Police Officer]
I am aware of all the additional information set out below in this notice of
appeal.
Date:
[Signature of Appellant]
SERVICE OF NOTICE OF APPEAL
A copy of the notice of appeal must be served on the respondent within
7 days after the day on which the notice is filed. The notice must be served:
(a) by giving a copy of the document to—
(i) the informant; or
(ii) a person representing the informant at a hearing in relation to
the charge; or
(b) by sending a copy of the document by prepaid ordinary post addressed
to the informant at the business address nominated by the informant
under section 18 of the Criminal Procedure Act 2009; or
(c) by sending a copy of the document by fax or email addressed to the
informant at the fax number or email address nominated by the
informant under section 18 of that Act; or
(d) by leaving a copy of the document for the informant at the informant's
business address with a person who appears to work there; or
(e) in any other manner agreed between the informant and the party
serving the document.
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ABANDONING AN APPEAL
If you decide to abandon your appeal against both conviction and sentence,
you must file in the Supreme Court a notice of abandonment of appeal in the
form required by the Supreme Court (Criminal Procedure) Rules.
If you decide to abandon your appeal against conviction but pursue your
appeal against sentence alone you must file in the Supreme Court a written
notice of abandonment of appeal in the form required by the Supreme Court
(Criminal Procedure) Rules.
You should contact the office of the Prothonotary of the Supreme Court for
further information.
FAILURE TO APPEAR AT AN APPEAL
If you fail to appear at the appeal hearing the Supreme Court may strike out
your appeal or adjourn the proceedings on any terms the Court thinks
appropriate.
COSTS OF AN APPEAL
If the Supreme Court strikes out or dismisses your appeal, it may order you to
pay all or a specified portion of the respondent's costs if it is satisfied that the
appeal was brought vexatiously or frivolously or in abuse of process.
APPLICATION FOR LEAVE TO APPEAL
If your notice of appeal has been filed more than 28 days after you were
sentenced, your appeal is deemed to be an application for leave to appeal.
The Supreme Court will consider your application prior to an appeal hearing
commencing. If your application is granted, the Supreme Court may
continue to hear your appeal on that day or adjourn the matter to a future
date.
LEGAL ASSISTANCE
If you wish to make application for legal assistance you must make
application in writing to Victoria Legal Aid (Melbourne—9269 0120)
(Rural Areas—1800 677 402). The staff of the Magistrates' Court or the staff
of the Supreme Court can advise you of the address of the nearest Victoria
Legal Aid office. Such application must be made immediately because it
may take some time to process. You should take all necessary steps promptly
so that, if you are granted legal aid, there will be enough time for advice to be
given to you by your lawyer about the appeal.
*Delete if not applicable
__________________
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Rule 3D.03(3) FORM 6–3DB
NOTICE UNDER SECTION 255(6)(a) OF THE CRIMINAL
PROCEDURE ACT 2009 FOR PROPOSED APPELLANT
To the proposed Appellant:
TAKE NOTICE that in relation to your proposed appeal to the Supreme
Court from the decision of the Magistrates' Court constituted by the Chief
Magistrate who is a dual commission holder, the Supreme Court may impose
a sentence which is more severe than the one imposed by the Magistrates'
Court.
__________________
Rule 3D.04(1) FORM 6–3DC
MAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
NOTICE OF APPEAL UNDER SECTION 257 OF THE CRIMINAL
PROCEDURE ACT 2009 BY DPP AGAINST SENTENCE IMPOSED
BY MAGISTRATES' COURT CONSTITUTED BY CHIEF
MAGISTRATE WHO IS A DUAL COMMISSION HOLDER
To the Registrar of the Magistrates' Court:
I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"),
being satisfied that the appeal should be brought in the public interest, appeal
under section 257 of the Criminal Procedure Act 2009 against a sentence
imposed by the Magistrates' Court constituted by the Chief Magistrate who is
a dual commission holder on [name of offender] of [address].
The general grounds of appeal are:
[state the general grounds of the appeal]
Date:
[Signed by or on behalf of DPP]
PARTICULARS
1. Name of offender on whom sentence imposed:
2. Offence for which offender convicted and sentenced to which this
appeal relates:
3. Convicted at: [place and court]
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4. Chief Magistrate:
5. Date of conviction:
6. Sentence:
7. Date of sentence:
8. Name and address of legal practitioner who represented offender at
summary proceeding:
9. Name of counsel (if any) who represented offender at summary
proceeding:
HEARING OF APPEAL
The Prothonotary of the Supreme Court will fix the date and place for the
hearing of this appeal and will, a reasonable time before the hearing, notify
the date and place of the hearing, in writing, to each party and to each legal
practitioner who has given notice that they act on behalf of a party.
__________________
Rule 3D.04(3) FORM 6–3DD
MAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
NOTICE OF APPEAL UNDER SECTION 260 OF THE CRIMINAL
PROCEDURE ACT 2009 BY DPP AGAINST SENTENCE IMPOSED
BY MAGISTRATES' COURT CONSTITUTED BY CHIEF
MAGISTRATE WHO IS A DUAL COMMISSION HOLDER
To the Registrar of the Magistrates' Court:
I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"),
appeal under section 260 of the Criminal Procedure Act 2009 against a
sentence imposed by the Magistrate's Court constituted by the Chief
Magistrate who is a dual commission holder on [name of offender] of
[address]. The respondent was convicted of an indictable offence that was
heard and determined summarily by the Magistrates' Court. The sentence
imposed on the respondent was less severe because of an undertaking given
by the respondent to assist, after sentencing, law enforcement authorities in
the investigation or prosecution of an offence. I consider that respondent has
failed, wholly or partly, to fulfil the undertaking.
Date:
[Signed by the DPP personally]
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PARTICULARS
1. Name of offender on whom sentence imposed:
2. Offence for which offender convicted and sentenced to which this
appeal relates:
3. Convicted at: [place and court]
4. Chief Magistrate:
5. Date of conviction:
6. Sentence:
7. Date of sentence:
8. Name and address of legal practitioner who represented offender at
summary proceeding:
9. Name of counsel (if any) who represented offender at summary
proceeding:
HEARING OF APPEAL
The Prothonotary of the Supreme Court will fix the date and place for the
hearing of this appeal and will, a reasonable time before the hearing, notify
the date and place of the hearing, in writing, to each party and to each legal
practitioner who has given notice that they act on behalf of a party.
__________________
Rule 3D.06 FORM 6–3DE
IN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
NOTICE OF ABANDONMENT OF APPEAL
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER IS NEXT LISTED ON: [date] FOR .
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
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Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm: Practitioner's name:
Solicitor Code: Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
I abandon my appeal against *the conviction and sentence/*the sentence
imposed in the Magistrates' Court constituted by the Chief Magistrate who is
a dual commission holder at [place] on [date].
The Magistrates' Court reference number is
The *conviction and sentence/*sentence/*orders imposed *was/*were
I acknowledge that as a result of filing this form, my appeal will be struck out
and the sentence of the Magistrates' Court will be reinstated and that it may
be enforced immediately.
Date:
[Signature of Appellant]
*Delete if not applicable
__________________
Rule 3D.07 FORM 6–3DF
IN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
WRITTEN NOTICE OF ABANDONMENT OF APPEAL—
CONVICTION ONLY
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER IS NEXT LISTED ON: [date] FOR .
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CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm: Practitioner's name:
Solicitor Code: Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
I appealed against the conviction and sentence imposed on me by the
Magistrates' Court constituted by the Chief Magistrate who is a dual
commission holder at [place] on [date].
The Magistrates' Court reference number is
I abandon my appeal against conviction. I wish to proceed only with my
appeal against sentence.
Date:
[Signature of Appellant]
*Delete if not applicable
__________________
Rule 3D.08 FORM 6–3DG
IN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL
FOR FAILURE TO APPEAR
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER WAS LISTED ON: [date]
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CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
*I represent the applicant
Firm: Practitioner's name:
Solicitor Code: Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
An appeal was lodged against a decision of the Magistrates' Court constituted
by the Chief Magistrate who is a dual commission holder at [place] on [date].
The Magistrates' Court reference number is
The appellant applies under section 267(3) of the Criminal Procedure
Act 2009 for the setting aside of the order made on [date] striking out the
appeal for the failure of the appellant to appear at the Supreme Court at the
time listed for the hearing of the appeal.
Reasons for application
The application is made on the grounds that the failure to appear was not due
to fault or neglect on the part of the appellant. The appellant's reasons are:
[give details]
I understand that notice of this application must be served on the respondent
a reasonable time before the hearing of the application and that under
section 392 of the Criminal Procedure Act 2009, the notice must be served:
(a) by giving a copy of the document to—
(i) the informant; or
(ii) a person representing the informant at a hearing in relation to
the charge; or
(b) by sending a copy of the document by prepaid ordinary post addressed
to the informant at the business address nominated by the informant
under section 18 of that Act; or
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(c) by sending a copy of the document by fax or email addressed to the
informant at the fax number or email address nominated by the
informant under section 18 of that Act; or
(d) by leaving a copy of the document for the informant at the informant's
business address with a person who appears to work there; or
(e) in any other manner agreed between the informant and the party
serving the document.
I also understand that the filing of this application does not stay the
original sentence.
Date:
[Signature of Applicant/
Applicant's legal practitioner]
HEARING OF APPLICATION
The Prothonotary of the Supreme Court will fix the date and place for the
hearing of this application and will, a reasonable time before the hearing,
notify the date and place of the hearing, in writing, to each party and to each
legal practitioner who has given notice that they act on behalf of a party.
*Delete if not applicable
__________________
Rule 3D.09 FORM 6–3DH
IN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
APPELLANT RESPONDENT
RESULT OF APPEAL FORM
TO the Prothonotary of the Supreme Court at:
TO the Registrar of the Magistrates' Court at:
Regarding an appeal against
Recorded at the Magistrates' Court constituted by the Chief Magistrate who is
a dual commission holder [place] on [date].
Magistrates' Court reference number
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Result of Appeal/Application
The result of the appeal is:
Offence/Type of Order Original
Sentence/Order
Decision on Appeal
The order was made by [*Judge/*Prothonotary] on [date].
[Signature of *Judge/*Prothonotary]
*Delete if not applicable
__________________".
Dated: 25 August 2016
M. L. WARREN, C.J.
CHRISTOPHER MAXWELL, P.
R. S. OSBORN, J.A.
DAVID F. R. BEACH, J.A.
S. G. E. McLEISH, J.A.
ELIZABETH HOLLINGWORTH, J.
ANTHONY CAVANOUGH, J.
JACK FORREST, J.
JAMES JUDD, J.
PETER VICKERY, J.
TERRY FORREST, J.
KARIN EMERTON, J.
CLYDE CROFT, J.
JOHN R. DIXON, J.
C. MACAULAY, J.
KATE McMILLAN, J.
GREG GARDE, J.
G. J. DIGBY, J.
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JAMES D. ELLIOTT, J.
T. J. GINNANE, J.
MELANIE SLOSS, J.
JOANNE CAMERON, J.
MICHAEL McDONALD, J.
JANE A. DIXON, J.
A. J. KEOGH, J.
MAREE KENNEDY, J.
═══════════════
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Endnotes
Supreme Court (Chapter I and Chapter VI Dual Commission Holder
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Endnotes
1 Rule 4: S.R. No. 103/2015 as amended by S.R. Nos 143/2015, 144/2015,
14/2016, 51/2016 and 52/2016.
2 Rule 5: S.R. No. 12/2008. Reprint No. 2 as at 26 March 2015. Reprinted to
S.R. No. 207/2014 and subsequently amended by S.R. Nos 39/2015,
40/2015 and 143/2015.
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