County Court (Chapter II Amendment No. 6) Rules 2006

i County Court (Chapter II Amendment No. 6) Rules 2006 S.R. No. 166/2006 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. New Order 10 2 ORDER 10—CONFISCATION OF PROPERTY AND PROCEEDS OF CRIME 2 10.01 Definitions 2 10.02 Application of this Order 2 10.03 Making of application to the Court 3 10.04 Notice and service generally 3 10.05 Applications for restraining orders and monitoring orders 4 10.06 Application without notice under the Act 4 10.07 Other applications generally under Commonwealth Act 5 10.08 Notice of application 5 10.09 Filing and directions 6 10.10 Notice of opposition to an application 7 10.11 Evidence 7 10.12 Notice of order or declaration 8 10.13 Notice of discharge 9 6. Forms—amendment, substitution and revocation 10 Form 2–10B—Application Under Section [insert relevant section and relevant Act] for Restraining Order 10 Form 2–10FA—Notice of Application to be Made Under Section 37 for Civil Forfeiture Order 14 Form 2–10O—Application Under Section [insert relevant section and relevant Act] for Monitoring Order 19 ═══════════════ ENDNOTES 22 -- 1 of 23 -- 1 STATUTORY RULES 2006 S.R. No. 166/2006 County Court Act 1958 County Court (Chapter II Amendment No. 6) Rules 2006 A majority of the Judges of the County Court makes the following Rules: 1. Object The object of these Rules is to make further provision in relation to the confiscation of property and the proceeds of crime mainly as a result of— (a) changes made to the Confiscation Act 1997; and (b) the enactment of the Proceeds of Crime Act 2002 of the Commonwealth. 2. Authorising provisions These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers. 3. Commencement These Rules come into operation on 1 January 2007. 4. Principal Rules In these Rules, the County Court Miscellaneous Rules 19991 are called the Principal Rules. -- 2 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 2 5. New Order 10 For Order 10 and Order 10A of the Principal Rules substitute— 'ORDER 10—CONFISCATION OF PROPERTY AND PROCEEDS OF CRIME 10.01 Definitions In this Order— "the Act" means the Confiscation Act 1997; "the Commonwealth Act" means the Proceeds of Crime Act 2002 of the Commonwealth. 10.02 Application of this Order (1) This Order applies to a proceeding in the Court under the Confiscation Act 1997. (2) This Order applies, with any necessary modification, to a proceeding under the Commonwealth Act. (3) Unless a Judge orders or directs otherwise, or the Act, the Commonwealth Act or the Rules otherwise provide, Rules 10.03 to 10.12 apply, with any necessary modification, in relation to— (a) an application to the Court under Part 2, 3, 4, 5, 6, 8 or 13 of the Act (as the case requires); (b) an application to the Court under the Commonwealth Act. r. 5 -- 3 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 3 (4) Order 10 of the County Court Miscellaneous Rules 1999 as in force immediately before the commencement of the County Court (Chapter II Amendment No. 2) Rules 1999 continues to apply to proceedings under the Crimes (Confiscation of Profits) Act 1986. (5) Order 10A, as in force immediately before the commencement of the County Court (Chapter II Amendment No. 6) Rules 2006, continues to apply to any application or proceeding under the Proceeds of Crime Act 1987 of the Commonwealth— (a) made or commenced before the commencement of the Commonwealth Act; or (b) continued pursuant to the Commonwealth Act or the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 of the Commonwealth. 10.03 Making of application to the Court (1) Where, under the Act, notice of an application is required to be given, the application is taken to be made when the notice of application is filed. (2) An application under the Commonwealth Act is taken to have been made when it is filed. 10.04 Notice and service generally (1) Where notice is required by or under the Act or this Order to be given to any person, it shall be in writing and served on that person in accordance with section 137 of the Act. r. 5 -- 4 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 4 (2) Where notice is required by or under the Commonwealth Act to be given it shall be in writing. (3) A copy of an application, a copy of an affidavit and a notice given in a proceeding under the Commonwealth Act shall be served personally or in such other manner as the Court directs. 10.05 Applications for restraining orders and monitoring orders (1) An application for an examination order under section 98 of the Act shall be in Form 2–10A. (2) An application for a restraining order under the Act or the Commonwealth Act shall be in Form 2–10B with any necessary modification supported by an affidavit. (3) An application for a monitoring order under the Commonwealth Act may be in Form 2–10O with any necessary modification. 10.06 Application without notice under the Act (1) An application to the Court under the Act which is made without notice to any other person shall be in writing. (2) Any application to the Court under the Act which is made without notice and for which a Form is not prescribed in this Order may be in Form 2–10B with any necessary modification. (3) If under section 17(1) of the Act the Court requires notice to be given that the application has been made, the notice shall be in Form 2–10E. r. 5 -- 5 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 5 10.07 Other applications generally under Commonwealth Act An application to the Court under the Commonwealth Act for which a Form is not prescribed in this Order may be in Form 2–10B with any necessary modification. 10.08 Notice of application (1) Notice of an application to be made— (a) under section 20 of the Act for an exclusion order shall be in Form 2–10C; (b) under section 26 of the Act for further orders in relation to a restraining order shall be in Form 2–10D; (c) under section 32 of the Act for a forfeiture order shall be in Form 2–10E; (d) under section 37 of the Act for a civil forfeiture order shall be in Form 2–10F; (e) under section 45 of the Act for relief from hardship shall be in Form 2–10G; (f) under section 49, 51 or 53 of the Act for an exclusion order shall be in Form 2–10H; (g) under section 58 of the Act for a pecuniary penalty order shall be in Form 2–10J; (h) under section 98 of the Act shall be in Form 2–10K. (2) Notice of any other application to be made to the Court for an order or declaration may be in Form 2–10L with any necessary modification. r. 5 -- 6 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 6 (3) Notice of an application to be made shall be given not less than five days before the day named in the notice for the hearing of the application. 10.09 Filing and directions (1) In a proceeding to which this Order applies— (a) in the case of a proceeding under the Act— (i) an application made without notice; (ii) a notice of an application or any other notice given; (iii) an affidavit to be relied on; (iv) an order made; and (b) in the case of a proceeding under the Commonwealth Act— (i) an application; (ii) an affidavit; and (iii) a copy of a notice given— shall be filed in the Court, unless the Court otherwise orders. (2) At the time when an application or notice of an application is filed, the Registrar shall insert the time and place at which the application is to be heard and such time and place shall be included in any copy which is served. r. 5 -- 7 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 7 (3) After an application or notice of an application has been filed, a Judge may give directions for the hearing of the application, including directions for the production to the Court of any transcript of proceedings relating to a conviction relied upon in the application. 10.10 Notice of opposition to an application A person who intends to oppose an application for an order or declaration under the Act or the Commonwealth Act shall give notice to the applicant of the grounds on which the application will be opposed. 10.11 Evidence (1) Evidence in support of an application for a restraining order under the Act shall be by affidavit, unless the application is brought on for hearing during or at the conclusion of the trial of the defendant. (2) Evidence in support of an application for a restraining order under the Commonwealth Act shall be by affidavit. (3) Evidence in support of an application for an exclusion order under the Act or the Commonwealth Act shall be by affidavit. (4) Subject to paragraphs (1), (2) and (3), evidence on the hearing of an application under the Act or the Commonwealth Act may be by affidavit and shall be by affidavit if the Court so directs. (5) A copy of an affidavit on which the applicant intends to rely shall be served on any person to whom notice of the application has been given. r. 5 -- 8 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 8 (6) A copy of an affidavit on which a person other than the applicant intends to rely shall be served on the applicant and any other person, if known, to whom notice of the application has been given. 10.12 Notice of order or declaration (1) Subject to paragraph (2) and Rule 10.13, where notice is required to be given to any person of an order made by the Court under the Act or the Commonwealth Act, notice shall be given— (a) by serving a copy of the order on that person; and (b) in the case of notice of an order under the Act, in accordance with section 137 of the Act. (2) In the case of a restraining order made under Part 2 of the Act for the purpose of automatic forfeiture, a copy of the order shall be accompanied by a notice in Form 2–10M. (3) Where a restraining order, forfeiture order or order for civil forfeiture under the Act is made by the Court upon the application of any person, notice of the order shall be given by the applicant to— (a) each person who the applicant has reason to believe has an interest in any of the property which is subject to the order, unless that person was present when the order was made or was given notice of the making of the application for the order; and (b) such other person as the Court directs. r. 5 -- 9 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 9 (4) Where a declaration is made by the Court— (a) under section 35(3) of the Act, of the date on which a person (in respect of whom a restraining order has been made) is deemed to have been convicted of a Schedule 2 offence; or (b) under section 36 of the Act, that property has been forfeited— notice of the order containing the declaration shall be given by the applicant to— (c) each person who the applicant has reason to believe had an interest in any of the property which is forfeited immediately before the property was forfeited, unless that person was present when the declaration was made or was given notice of the application for the declaration; and (d) such other person as the Court directs. 10.13 Notice of discharge (1) Notice under section 46(2), 47(2) or 48(2) of the Act of discharge of a forfeiture order, automatic forfeiture or a civil forfeiture order, as the case may be, shall be in Form 2–10N. (2) If a pecuniary penalty order registered under the Service and Execution of Process Act 1992 of the Commonwealth is discharged, notice of discharge shall be given by the person who procured the registration of the order. (3) Notice of discharge under paragraph (2) shall be given by sending a sealed copy of the order of discharge to the, registrar or other r. 5 -- 10 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 10 proper officer of the court in which the order was registered.'. 6. Forms—amendment, substitution and revocation (1) In Form 2–10A to the Principal Rules— (a) for Rule for "Rule 10.05" substitute "Rule 10.05(1)"; (b) in particular 1, for— "* a forfeiture offence * an automatic forfeiture offence * a civil forfeiture offence." substitute— "* a Schedule 1 offence * a Schedule 2 offence * a court has made a restraining order against property under section 18 of the Confiscation Act in relation to a Schedule 2 offence."; (c) for "223 William Street" substitute "250 William Street". (2) For Form 2–10B to the Principal Rules substitute— 'Rules 10.05(2), 10.06(2) and 10.07 FORM 2–10B IN THE COUNTY COURT OF VICTORIA IN THE MATTER of the *Confiscation Act 1997/ *Proceeds of Crime Act 2002 of the Commonwealth and IN THE MATTER of * an offender or alleged offender, XY [name in full] * a suspect, CD [name in full] * the property [insert details] r. 6 -- 11 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 11 and IN THE MATTER of an Application by AB [name in full] Applicant APPLICATION UNDER SECTION [insert relevant section and relevant Act] FOR RESTRAINING ORDER TO: the Registrar of the County Court of Victoria TAKE NOTICE THAT [name of the person making the application] ("the Applicant") MAKES APPLICATION under * section *16(1), *16(2)(a), *16(2)(b), *16(2)(c) or *16(2)(d) of the Confiscation Act 1997 ("the Confiscation Act") FOR A RESTRAINING ORDER in respect of property in which the said XY has an interest or which is tainted property within the meaning of the Confiscation Act. * section *17, *18, *19 or *20 of the Proceeds of Crime Act 2002 of the Commonwealth ("the Commonwealth Act") FOR A RESTRAINING ORDER in respect of property which may be the subject of a restraining order under that Act [insert relevant details]. THE ADDRESS FOR SERVICE of the Applicant is: [insert address] PARTICULARS OF APPLICATION 1. THE JURISDICTION to make the order(s) sought arises because— * XY has been charged with * within the next 48 hours, XY will be charged with * XY has been convicted of [state offence and, if relevant, details of conviction] and that offence is, within the meaning of the Confiscation Act— * a Schedule 1 offence * a Schedule 2 offence r. 6 -- 12 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 12 * in the case of an application under section 16(2)(a) of the Confiscation Act, a member of the police force suspects on reasonable grounds that property is tainted property in relation to a Schedule 2 offence. * pursuant to the Commonwealth Act [insert relevant details] 2. THE APPLICANT is— * the Director of Public Prosecutions * a prescribed person * a person belonging to a prescribed class of persons, namely [identify class] * in the case of an application under the Commonwealth Act, the Director of Public Prosecutions within the meaning of the Commonwealth Act. 3. THE APPLICATION IS IN RESPECT OF the following property— [describe the property in detail] 4. THE GROUNDS on which this application is made are as follows— [set out in detail the grounds of the application] 5. THE PURPOSE OF THE ORDER SOUGHT is so that— * in the case of an application under the Confiscation Act, the property the subject of the order will be available— * to satisfy any forfeiture order that may be made under Division 1 of Part 3 of the Confiscation Act * to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act * to satisfy any civil forfeiture order that may be made under Part 4 of the Confiscation Act r. 6 -- 13 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 13 * to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act * to satisfy any order for restitution or compensation that may be made under the Sentencing Act 1991 * in the case of an application under the Commonwealth Act, to satisfy [insert relevant details] THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application and to be served herewith. Date: [Signed by Applicant] PARTICULARS OF HEARING This application will be heard— by *the Judge in the Practice Court/*the trial Judge in the [number] Court at 250 William Street, Melbourne, on [date] *at [time]/*after sentence. [Signed by Registrar] –––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable _______________'. (3) In Form 2–10C to the Principal Rules— (a) for "Rule 10.06(4)" substitute "Rule 10.08(1)(a)"; (b) for "223 William Street" substitute "250 William Street". (4) In Form 2–10D to the Principal Rules— (a) for "Rule 10.07(1)(a)" substitute "Rule 10.08(1)(b)"; (b) for "223 William Street" substitute "250 William Street". r. 6 -- 14 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 14 (5) In Form 2–10E to the Principal Rules— (a) for "Rule 10.07(1)(b)" substitute "Rule 10.08(1)(c)"; (b) for "223 William Street" substitute "250 William Street". (6) In Form 2–10F to the Principal Rules— (a) for "Rule 10.07(1)(c)" substitute "Rule 10.08(1)(d)"; (b) for "forfeiture offence" substitute "Schedule 1 offence"; (c) for "223 William Street" substitute "250 William Street". (7) After Form 2–10F of the Principal Rules insert— 'Rule 10.08(1)(g) FORM 2–10FA [heading as in Form 2–10D] NOTICE OF APPLICATION TO BE MADE UNDER SECTION 37 FOR CIVIL FORFEITURE ORDER TO: [name and address of the person(s) on whom this application is to be served] ("the Respondent(s)") TAKE NOTICE THAT [name of the person making the application] ("the Applicant") INTENDS TO APPLY under section 37(1) of the Confiscation Act 1997 ("the Confiscation Act") FOR A CIVIL FORFEITURE ORDER with respect to the following property: [describe in detail the property in respect of which the forfeiture order is sought] THE ADDRESS FOR SERVICE of the Applicant is: [insert address] r. 6 -- 15 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 15 PARTICULARS OF APPLICATION 1. THE JURISDICTION to make the order(s) sought arises because XY has been charged with the offence of [describe the offence] which is a Schedule 2 offence within the meaning of the Confiscation Act and a Restraining Order under section 18(2) was made by the [name] Court on [date]. 2. THE APPLICANT is— * the Director of Public Prosecutions * a prescribed person within the meaning of section 37 * a person belonging to a prescribed class of persons, namely: [identify class] 3. THE RESPONDENT(S) to this application is/are— * the person who has been charged with a Schedule 2 offence * the person in respect of whose property the Order is sought * a person who the Applicant has reason to believe has an interest in the property * the applicant for the Restraining Order which is in force * a person to whom the Court has required that notice be given 4. THE GROUNDS on which this application will be made are as follows— [set out in detail the grounds of the application] 5. HAS ANY PREVIOUS APPLICATION been made under section 37(1) of the Confiscation Act in relation to the same Schedule 2 offence? * No such application has been made * Such an application was made on [date] but that application has not been finally determined * Such an application was made on [date] and has been finally determined, but the Applicant will seek the leave of the Court to make this further application r. 6 -- 16 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 16 *THE APPLICANT WILL RELY upon the affidavit(s) made by [name of deponent(s)] filed in support of this application and to be served herewith. Date: [Signed by Applicant] PARTICULARS OF HEARING This application will be heard— by *the trial Judge/*the Judge in the Practice Court at the [number] Court, 250 William Street, Melbourne, on date] at [time of day or occasion]. [Signed by Registrar] NOTES FOR THE PERSON(S) ON WHOM THIS NOTICE IS SERVED You are entitled to appear and to give evidence at the hearing of the application, but your absence on that occasion will not prevent the Court from making an order. If you propose to contest this application, you are required to give the Applicant notice of the grounds on which the application is to be contested. The Rules of the County Court also provide that evidence may be given by affidavit. You must serve on the Applicant any affidavit(s) on which you intend to rely. –––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable. _______________'. (8) In Form 2–10G to the Principal Rules— (a) for "Rule 10.07(1)(d)" substitute "Rule 10.08(1)(e)"; (b) for "223 William Street" substitute "250 William Street". (9) In Form 2–10H to the Principal Rules— (a) for "Rule 10.07(1)(e)" substitute "Rule 10.08(1)(f)"; r. 6 -- 17 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 17 (b) for particular 2 substitute— "2. THE APPLICANT is— *(a) in the case of an application under section 49 or 51, a person (other than the defendant) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited; *(b) in the case of an application under section 53, a person (other than a person who is suspected to have committed the Schedule 2 offence in relation to which a restraining order was made against the property) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited."; (c) for "223 William Street" substitute "250 William Street". (10) In Form 2–10J to the Principal Rules— (a) for "Rule 10.07(1)(f)" substitute "Rule 10.08(1)(g)"; (b) for "an automatic forfeiture offence" substitute "a Schedule 2 offence"; (c) for "a forfeiture offence other than an automatic forfeiture offence" substitute "a Schedule 1 offence other than a Schedule 2 offence"; (d) for "223 William Street" substitute "250 William Street". r. 6 -- 18 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 18 (11) In Form 2–10L to the Principal Rules— (a) for "Rule 10.07(2)" substitute "Rule 10.08(2)"; (b) for particular 1, substitute— "1. THE JURISDICTION to make the order(s) sought arises because [set out circumstances giving rise to the jurisdiction, e.g. XY was convicted on [date] in the [name] Court of the offence of [describe] which is a Schedule 2 offence within the meaning of the Confiscation Act OR XY will be charged within 48 hours with an offence which is a Schedule 2 offence OR in respect of a Schedule 2 offence, a member of the police force suspects on reasonable grounds that the property of XY is tainted property in relation to that offence OR the County Court of Victoria made a Restraining Order on [date] in relation to the property of XY OR application has been made to the County Court of Victoria for a Restraining Order in relation to the property of XY, OR as the case requires]"; (c) for "223 William Street" substitute "250 William Street". (12) In Form 2–10M to the Principal Rules— (a) for "Rule 10.11(2)" substitute "Rule 10.12(2)"; (b) for "automatic forfeiture offence" substitute "Schedule 2 offence"; (13) In Form 2–10N, for "Rule 10.12(1)" substitute "Rule 10.13(1)". r. 6 -- 19 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 19 (14) After Form 2–10N to the Principal Rules insert— 'Rule 10.05(3) FORM 2–10O IN THE COUNTY COURT OF VICTORIA IN THE MATTER of the Proceeds of Crime Act 2002 of the Commonwealth and IN THE MATTER of an Application by AB [name in full] Applicant APPLICATION UNDER SECTION [insert relevant section and relevant Act] FOR MONITORING ORDER TO: the Registrar of the County Court of Victoria TAKE NOTICE THAT [name of the person making the application] ("the Applicant") MAKES APPLICATION under section 219 of the Proceeds of Crime Act 2002 of the Commonwealth ("the Commonwealth Act") FOR A MONITORING ORDER directing a financial institution to give to [insert details of enforcement agency] information in respect of transactions conducted during a particular period through an account held by [specify details of account]. THE ADDRESS FOR SERVICE of the Applicant is: [insert address] PARTICULARS OF APPLICATION 1. THE JURISDICTION to make the order(s) sought arises because— [specify details which support the making of the application] 2. THE APPLICANT is an authorised officer of an enforcement agency within the meaning of the Commonwealth Act. 3. THE APPLICATION IS IN RESPECT OF the following account— [insert relevant details] r. 6 -- 20 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 20 4. THE GROUNDS on which this application is made are as follows— [set out in detail the grounds of the application] * THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application. Date: [Signed by Applicant] PARTICULARS OF HEARING This application will be heard— by *the Judge in the Practice Court/*the trial Judge in the [number] Court at 250 William Street, Melbourne, on [date] *at [time]/*after sentence. [Signed by Registrar] –––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable _______________'. (15) Forms 2–10AA and 2–10AB of the Principal Rules are revoked. Dated: 23 November 2006 M. ROZENES, Chief Judge T. M. HOLT L. S. OSTROWSKI C. D. DOUGLAS J. T. DUGGAN T. D. WOOD M. D. HIGGINS J. R. BOWMAN J. H. BARNETT J. A. NICHOLSON M. G. McINERNEY S. M. COHEN T. G. WODAK I. E. LAWSON F. J. SHELTON E. M. GAYNOR W. R. WHITE P. J. COISH A. P. DUCKETT K. R. HOWIE M. B. HARBISON J. A. CAMPTON r. 6 -- 21 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 21 R. F. PUNSHON D. A. PARSONS W. A. WILMOTH S. E. PULLEN F. MILLANE L. A. HANNAN F. P. HAMPEL M. D. MURPHY P. D. GRANT F. G. DYETT ═══════════════ r. 6 -- 22 of 23 -- S.R. No. 166/2006 County Court (Chapter II Amendment No. 6) Rules 2006 22 ENDNOTES 1 Rule 4: S.R. No. 78/1999. Reprint No. 1 as at 20 April 2000, incorporating amendments to S.R. No. 114/1999. Subsequently amended by S.R. Nos 77/2001, 123/2001 and 55/2002. Endnotes -- 23 of 23 --