Supreme Court (Chapter I Amendment No. 28) Rules 2004

Victorian Legislation and Parliamentary Documents i Supreme Court (Chapter I Amendment No. 28) Rules 2004 S.R. No. 145/2004 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Order 48 substituted 2 ORDER 48 2 FIXING A DATE FOR TRIAL 2 48.01 Application 2 48.02 Fixing a date 2 48.03 Notice of trial 2 48.04 Default by plaintiff 3 48.05 Subsequent interlocutory steps 3 48.06 Vacating date for trial 4 48.07 Pre-trial conferences 4 6. Consequential amendments 5 7. Consequential amendment—Rule 47.03 substituted 6 47.03 Payment of jury fees 6 8. Forms 48A and 48B substituted 6 9. Form 48C revoked 8 ═══════════════ ENDNOTES 10 -- 1 of 11 -- Victorian Legislation and Parliamentary Documents 1 STATUTORY RULES 2004 S.R. No. 145/2004 Supreme Court Act 1986 Supreme Court (Chapter I Amendment No. 28) Rules 2004 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to amend the Principal Rules— (a) to make new provision in relation to fixing a date for trial of a proceeding under Order 48; and (b) to make a minor amendment to Rule 59.04. 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 January 2005. 4. Principal Rules In these Rules, the Supreme Court (General Civil Procedure) Rules 19961 are called the Principal Rules. -- 2 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 2 5. Order 48 substituted For Order 48 of the Principal Rules substitute— "ORDER 48 FIXING A DATE FOR TRIAL 48.01 Application (1) Subject to this Rule, this Order applies to a proceeding in the Court commenced by writ or originating motion. (2) This Order does not apply to a proceeding in any of the following lists— (a) Admiralty List; (b) Building Cases List; (c) Commercial List; (d) Corporations List; (e) Intellectual Property List; (f) Valuation, Compensation and Planning List. 48.02 Fixing a date The Court may fix a date for the trial of a proceeding— (a) after notice of trial has been filed and served; or (b) subject to the plaintiff's filing and serving notice of trial. 48.03 Notice of trial Notice of trial shall be in Form 48A or, if the Court so orders, Form 48B. r. 5 -- 3 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 3 48.04 Default by plaintiff (1) If the plaintiff does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding, the defendant may file and serve notice of trial or may apply to the Court under Rule 24.01 to dismiss the proceeding for want of prosecution. (2) If the Court fixes a date for the trial of the proceeding subject to the plaintiff's filing and serving notice of trial within a certain time and the plaintiff fails to file and serve notice of trial within that time, the defendant may within seven days thereafter file and serve notice of trial or may apply to the Court under Rule 24.01 to dismiss the proceeding for want of prosecution. 48.05 Subsequent interlocutory steps (1) After notice of trial— (a) has been filed, the party filing the notice; and (b) has been served, the party so served— shall not seek— (c) amendment to a pleading; (d) particulars or further particulars; (e) answers to interrogatories or further answers; or (f) discovery or inspection of documents or further discovery or inspection— without the leave of the Court. r. 5 -- 4 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 4 (2) Nothing in paragraph (1) shall— (a) in a proceeding for damages for or arising out of death or bodily injury affect the obligation of the plaintiff to give particulars of the damages claimed or the obligation of the parties under Order 33 with respect to the medical examination of the plaintiff and the service of hospital and medical reports; (b) prevent the service of an offer in writing in accordance with Part 2 of Order 26; or (c) limit the power of the Court at the trial to make an order for amendment or otherwise. 48.06 Vacating date for trial At any time after a date has been fixed for the trial of a proceeding, the Court may vacate the date so fixed and give further directions for the conduct of the proceeding. 48.07 Pre-trial conferences (1) Where a date for the trial of a proceeding has been fixed or the proceeding has otherwise been entered into a list for trial, the Court may direct, or the Prothonotary may give notice, that the parties and their solicitors or counsel attend before a person named in the notice for the purpose of a pre-trial conference. (2) At the time and place designated for the pre-trial conference or at any stage of the pre-trial conference the person conducting the pre-trial conference may if it appears to him to be necessary or desirable refer the proceeding to a Master. r. 5 -- 5 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 5 (3) Upon a reference under paragraph (2), the Master may make any order or give any direction— (a) to ensure that a party or his solicitor or counsel attend before a nominated person for the purpose of the pre-trial conference; (b) to ensure that the proceeding is ready for trial. (4) Except as all the parties who attend the conference in writing agree, no evidence shall be admitted of anything said or done by any person at the conference. (5) The agreement may be made at the conference or later.". 6. Consequential amendments (1) For Rule 24.01(b) of the Principal Rules substitute— "(b) does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding; or (c) fails to file and serve notice of trial within the time allowed to the plaintiff by the Court when fixing a date for the trial of the proceeding under Rule 48.01(b)—". (2) In Rule 33.07(2)(a) of the Principal Rules, for "given, or, if the proceeding is set down for trial by order of the Court made under Rule 48.06, within seven days after the order" substitute "filed and served". r. 6 -- 6 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 6 (3) In Rule 33.08(3)(a) of the Principal Rules, for "given, or, if the proceeding is set down for trial by order of the Court made under Rule 48.06, within 14 days after the order" substitute "filed and served". 7. Consequential amendment—Rule 47.03 substituted For Rule 47.03 of the Principal Rules substitute— "47.03 Payment of jury fees (1) If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff. (2) If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the proper jury fees shall be paid by the defendant to the plaintiff within 14 days after a date is fixed for the trial of the proceeding. (3) In case of default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury.". 8. Forms 48A and 48B substituted For Forms 48A and 48B of the Principal Rules substitute— "FORM 48A RULE 48.03 NOTICE OF TRIAL [heading as in originating process] To the [identify parties] TAKE NOTICE that this proceeding is ready for trial in that to the best of the knowledge, information and belief of the *plaintiff/*defendant— r. 7 -- 7 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 7 (1) the trial is to proceed without pleadings OR pleadings are closed and it is not proposed to apply before trial for any amendment; (2) particulars are not being sought OR all particulars of the defence/statement of claim that have been sought have been served (*save as to damages, in so far as these are to be updated closer to trial) and it is not proposed to seek further particulars; (3) it is not proposed to interrogate OR interrogatories have been served and answers obtained and it is not proposed to seek to serve further interrogatories or to seek further answers; (4) it is not proposed to serve a notice for discovery OR discovery has been obtained and inspection had and it is not proposed to seek further discovery or further inspection of documents. As for the trial itself— (5) this proceeding is defended by [insert names of parties defending] OR this proceeding is undefended; (6) the *plaintiff/*defendant is ready to proceed to trial upon not less that 14 days' notice; (7) the trial is to be conducted at [insert place of trial]; (8) the trial can reasonably be expected to take [insert number] days and no longer. Dated [insert] * delete if inapplicable [Signed] __________________ r. 8 -- 8 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 8 FORM 48B RULE 48.03 NOTICE OF TRIAL [heading as in originating process] To the [identify parties] TAKE NOTICE that this proceeding is fixed for trial on the day of 20 . Dated [insert] [Signed] __________________". 9. Form 48C revoked Form 48C of the Principal Rules is revoked. Dated: 25 November 2004 M. L. WARREN, C.J. JOHN WINNEKE, P. 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. DAVID ASHLEY, J. JOHN COLDREY, J. D. L. HARPER, J. PHILIP MANDIE, J. E. W. GILLARD, J. r. 9 -- 9 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 9 MURRAY B. KELLAM, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. JULIE DODDS-STREETON, J. R. F. REDLICH, J. K. WILLIAMS, J. STUART MORRIS, J. STEPHEN KAYE, J. ELIZABETH HOLLINGWORTH, J. ═══════════════ r. 9 -- 10 of 11 -- Victorian Legislation and Parliamentary Documents S.R. No. 145/2004 Supreme Court (Chapter I Amendment No. 28) 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, 142/2003, 100/2004 and 144/2004. Endnotes -- 11 of 11 --