Supreme Court (Chapter I Amendment No. 26) Rules 2004

Victorian Legislation Parliamentary Documents i Supreme Court (Chapter I Amendment No. 26) Rules 2004 S.R. No. 100/2004 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Change of name by corporation 2 6. New Part 3 of Order 58 substituted 2 PART 3—APPEALS ON A QUESTION OF LAW 2 58.06 Application of Part 2 58.07 Commencement of appeal 3 58.08 Notice of appeal 3 58.09 Appellant to file affidavit 4 58.10 Directions 5 58.11 Leave to appeal 6 58.12 Stay 6 58.13 Expedition 6 58.14 Report 7 7. Consent to judgment or order by parties not in attendance 7 8. Costs 8 9. Limitation on authority of Masters 8 10. Delay 8 ═══════════════ ENDNOTES 10 -- 1 of 11 -- Victorian Legislation Parliamentary Documents 1 STATUTORY RULES 2004 S.R. No. 100/2004 Supreme Court Act 1986 Supreme Court (Chapter I Amendment No. 26) Rules 2004 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to make miscellaneous amendments to the Principal Rules. 2. Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers. 3. Commencement (1) These Rules, except Rules 6 and 9, come into operation on 1 September 2004. (2) Rules 6 and 9 come into operation on 1 October 2004. 4. Principal Rules In these Rules, the Supreme Court (General Civil Procedure) Rules 1996 1 are called the Principal Rules. -- 2 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 2 5. Change of name by corporation At the end of Rule 1.17 of the Principal Rules insert— '(2) If a corporation a party to a proceeding in the Court changes its name it shall— (a) file written notice of the change of name in the Prothonotary's Office; and (b) serve a copy of that notice on all other parties to the proceeding. (3) The notice shall— (a) bear the title of the proceeding showing the name of the corporation before the change; and (b) specify the new name of the corporation and the date on which the name was changed. (4) After a corporation has filed a notice of change of name, the corporation shall be given its new name in all documents filed in the proceeding followed by the phrase "(formerly [old name])".'. 6. New Part 3 of Order 58 substituted For Part 3 of Order 58 of the Principal Rules substitute— "PART 3—APPEALS ON A QUESTION OF LAW 58.06 Application of Part This Part applies to any appeal and to any application for leave to appeal— (a) under section 92 or 109 of the Magistrates' Court Act 1989; r. 5 -- 3 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 3 (b) under section 117 or 200 of the Children and Young Persons Act 1989; (c) to which by another Act section 92 or 109 of the Magistrates' Court Act 1989 applies. 58.07 Commencement of appeal An appeal under this Part is instituted by filing a notice of appeal in the Trial Division. 58.08 Notice of appeal (1) A notice of appeal under this Part shall— (a) be in writing signed by the appellant or the appellant's solicitor; (b) set out or state— (i) the order which is the subject of appeal; (ii) whether the appeal is from the whole or part only of the order and, if so, what part; (iii) the question of law upon which the appeal is brought; (iv) concisely the grounds of appeal; (v) the order sought in place of that from which the appeal is brought; and (c) at its end, name all the persons on whom it is proposed to serve the notice of appeal. r. 6 -- 4 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 4 (2) As soon as practicable after filing the notice of appeal, the appellant shall— (a) deliver a copy to the registrar or other proper officer of the court that made the order the subject of the appeal; (b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal. (3) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal. 58.09 Appellant to file affidavit (1) Within seven days after filing notice of appeal, the appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to— (a) the order under appeal; (b) the grounds set out in the notice of appeal; and (c) if leave to appeal is needed, why leave to appeal should be given. (2) There shall be included as exhibits to the affidavit— (a) a copy of the order under appeal; and (b) a copy of any reasons given for the order— or their absence as exhibits shall be accounted for in the affidavit. r. 6 -- 5 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 5 58.10 Directions (1) Within seven days after filing notice of appeal, the appellant shall apply on summons to a Master for directions and, if necessary, for leave to appeal. (2) The application is taken to be made when the summons is filed. (3) Not less than 14 days before the day for hearing named in the summons, the appellant shall serve on the respondent to the appeal the summons together with a copy of the affidavit filed under Rule 58.09 and any exhibit. (4) Not less than five days before the day for hearing named in the summons the respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit. (5) If at any time the Master is satisfied that the hearing of the summons should be expedited, the Master may of his or her own motion or on application bring the summons on for hearing. (6) Subject to paragraphs (7) and (8), the Master shall give directions with respect to the appeal. (7) If leave to appeal is required— (a) the Master shall determine whether leave to appeal is given; and (b) if leave to appeal is refused, the Master shall dismiss the appeal. r. 6 -- 6 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 6 (8) The Master may dismiss the appeal if satisfied that— (a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought; (b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or (c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court. 58.11 Leave to appeal (1) An appeal instituted more than 30 days after the day on which the order under appeal was made is to be taken to be an application for leave to appeal. (2) An application for leave to appeal shall be heard and determined by the Master under Rule 58.10. 58.12 Stay The Court may grant any stay necessary for the proper hearing and determination of the application or the appeal. 58.13 Expedition (1) Where it is satisfied that the delay caused by proceeding in accordance with this Part would or might entail injustice, the Court may make an order under this Part without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as it thinks fit. (2) The Court may set aside any order made under paragraph (1) on the application of any person affected. r. 6 -- 7 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 7 (3) Where it is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal and may give directions accordingly. 58.14 Report The Court may call for a report from the Court that made the order from which the appeal is brought and, if the contents of that report have first been made available to the parties to the appeal, the Court may act upon the report.". 7. Consent to judgment or order by parties not in attendance (1) Insert the following heading to Rule 59.07 of the Principal Rules— "Consent to judgment or order by parties not in attendance". (2) For Rule 59.07(1) of the Principal Rules substitute— "(1) Where parties to a proceeding are agreed upon the terms in which a judgment should be given, or an order made, in the proceeding, the Court may, if satisfied that the parties who are to be bound consent, give judgment or make an order in those terms without requiring the attendance of the parties.". (3) In Rule 59.07(2) of the Principal Rules omit "which is produced to the Court by the party applying for the judgment or order". r. 7 -- 8 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 8 (4) After Rule 59.07(3) of the Principal Rules insert— "(4) Notwithstanding paragraph (1), the Court may require a party to attend upon the giving of a judgment or the making of an order in the proceeding.". (5) For Rule 60.04(1) of the Principal Rules substitute— "(1) Notwithstanding anything in this Order, where a Judge or Master makes an order, he or she— (a) may sign the order; or (b) may direct that the order be drawn up by a party and signed by the Judge or Master.". 8. Costs After Rule 64.24(2) of the Principal Rules insert— "(3) An order under paragraph (2) may require the giving of security by payment into court to the Senior Master or in such other form as is satisfactory to the Prothonotary, without further specification.". 9. Limitation on authority of Masters In Rule 77.02(3)(d) of the Principal Rules, for "an application for an order under Rule 58.09" substitute "an appeal or an application for leave to appeal under Part 3 of Order 58". 10. Delay In Rule 79.06(2) of the Principal Rules, for "section 113(14) of the Act with respect to the common fund known as Common Fund No. 2" substitute "the Penalty Interest Rates Act 1983". r. 8 -- 9 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 9 Dated: 29 July 2004 M. L. WARREN, C.J. W. F. ORMISTON, J.A. F. H. CALLAWAY, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. ALEX CHERNOV, J.A. G. M. EAMES, J.A. GEOFFREY NETTLE, J.A. P. D. CUMMINS, J. T. H. SMITH, J. DAVID BYRNE, J. D. L. HARPER, J. H. R. HANSEN, J. PHILIP MANDIE, J. MURRAY B. KELLAM, J. BERNARD D. BONGIORNO, J. D. J. HABERSBERGER, J. JULIE DODDS-STREETON, J. R. F. REDLICH, J. K. WILLIAMS, J. STUART MORRIS, J. SIMON P. WHELAN, J. ELIZABETH HOLLINGWORTH, J. ═══════════════ r. 10 -- 10 of 11 -- Victorian Legislation Parliamentary Documents S.R. No. 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 10 ENDNOTES 1 Rule 4: S.R. No. 19/1996. Reprint No. 4 as at 20 March 2003. Reprinted to S.R. No. 121/2002 and subsequently amended by S.R. Nos 95/2003, 102/2003 and 142/2003. Endnotes -- 11 of 11 --