County Court (Chapter I Amendment No. 5) Rules 2001

i County Court (Chapter I Amendment No. 5) Rules 2001 S.R. No. 122/2001 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Update of definition 2 6. Subpoena for production before Registrar 2 42.10 Subpoena before Registrar 2 42.11 Subpoena for attendance before another court, etc. 5 7. Evidence transcript costs 5 8. Provision for taxation on an indemnity basis 5 9. New Rule 63A.30.1 inserted 6 63A.30.1 Indemnity basis 6 10. Taxation of disbursements 6 11. Consequential amendments following enactment of Corporations Act 6 12. New Forms 42E, 42F inserted 7 ═══════════════ ENDNOTES 13 -- 1 of 14 -- 1 STATUTORY RULES 2001 S.R. No. 122/2001 County Court Act 1958 County Court (Chapter I Amendment No. 5) Rules 2001 A majority of the Judges of the County Court makes the following Rules: 1. Object The object of these Rules is to facilitate the production by subpoena of certain documents before the Registrar before the trial and to make other miscellaneous amendments to the Principal Rules. 2. Authorising provisions These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers. 3. Commencement (1) These Rules, apart from Rules 6 and 12, come into operation on 1 December 2001. (2) Rules 6 and 12 come into operation on 1 July 2002. 4. Principal Rules In these Rules, the County Court Rules of Procedure in Civil Proceedings 19991 are called the Principal Rules. -- 2 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 2 5. Update of definition In Rule 33.03 of the Principal Rules, for the definition of "psychologist" substitute— ' "psychologist" means— (a) a registered psychologist within the meaning of the Psychologists Registration Act 2000; or (b) a person qualified to be registered under Part 2 of the Psychologists Registration Act 2000; or (c) a person who practises psychology in a place outside Victoria;'. 6. Subpoena for production before Registrar For Rule 42.10 of the Principal Rules substitute— "42.10 Subpoena before Registrar (1) This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document in writing for evidence before the trial of the proceeding. (2) A party may file a subpoena for production requiring the person named to produce to the Registrar on or before a day specified by the Registrar in the subpoena the document identified in the subpoena. (3) A subpoena under this Rule shall be in Form 42E or Form 42F. (4) A party who files a subpoena under this Rule shall, forthwith after service, serve a copy on each other party to the proceeding, but it shall not be necessary that the copy served be sealed or be served personally. r. 5 -- 3 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 3 (5) A party who serves a copy of a subpoena under paragraph (4) shall forthwith file an affidavit of service. (6) The person named may comply with the subpoena by producing the document to the Registrar by hand or by post and, if by post, the document shall be sent so that the Registrar receives it before the day specified in the subpoena. (7) Where a document is produced in compliance with a subpoena under this Rule the Registrar shall, if requested to do so, give a receipt to the person producing the document. (8) If the person named has any objection to producing a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding, the person named shall notify the Registrar in writing of that objection before the day specified in the subpoena. (9) If a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Registrar in writing of that objection before the day specified in the subpoena. (10) Upon receiving notice under paragraph (8) or (9), the Registrar shall refer the subpoena to a Judge or Master for the hearing and determination of the objection. (11) The Registrar shall notify the party who filed the subpoena in writing of the objection and the time and place at which the objection will be heard and that party shall notify the r. 6 -- 4 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 4 person named and all other parties accordingly. (12) If no objection is notified under paragraph (8) or (9) or to the extent that any such objection is disallowed, each party unless a Judge or Master otherwise orders may by appointment with the Registrar inspect and take copies of a document produced in compliance with a subpoena under this Rule. (13) The Registrar shall not permit any document produced in compliance with a subpoena under this Rule to be removed from his custody except upon application in writing signed by the solicitor for a party. (14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Registrar— (a) to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Registrar; and (b) to return the document to the Registrar at the time appointed by him. (15) The Registrar may, in his discretion, decline to accede to any application under paragraph (13). (16) Subject to any order of the Court, the Registrar may in his discretion return to the person named any document produced by him in compliance with the subpoena. (17) The Registrar shall not return any document under paragraph (16) until after he has given r. 6 -- 5 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 5 to the party who filed the subpoena 14 days' notice in writing of his intention to do so. (18) Subject to paragraphs (16) and (17) and any order of the Court, the Registrar shall produce or hand to the Associate of the trial Judge for production at the trial of the proceeding each document produced to the Registrar in compliance with a subpoena under this Rule. (19) The filing of a subpoena under this Rule to produce a document for evidence shall not preclude the filing of a subpoena otherwise than under this Rule to produce the same document for evidence. 42.11 Subpoena for attendance before another court, etc. This Order, except Rules 42.06, 42.09 and 42.10, shall, with any necessary modification, apply where by or under any Act the Court has authority to compel by subpoena the attendance of a person for the purpose of giving evidence or producing any document or thing for evidence in any court or before any person having by law or by consent of parties authority to hear, receive and examine evidence.". 7. Evidence transcript costs In Rule 63A.22.1 of the Principal Rules, omit "in a manner authorised by Part VI of the Evidence Act 1958". 8. Provision for taxation on an indemnity basis In Rule 63A.28 of the Principal Rules, for paragraph (c) substitute— "(c) an indemnity basis; or r. 7 -- 6 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 6 (d) such other basis as the Court may direct.". 9. New Rule 63A.30.1 inserted After Rule 63A.30 of the Principal Rules insert— "63A.30.1 Indemnity basis (1) Subject to paragraph (2), on a taxation on an indemnity basis all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred. (2) Any doubt which the Registrar may have as to whether the costs were unreasonably incurred or were unreasonable in amount shall be resolved in favour of the party to whom the costs are payable.". 10. Taxation of disbursements In Rule 63A.43 of the Principal Rules, for paragraph (2) substitute— "(2) On the taxation, the disbursement may be allowed if— (a) it is paid before taxation; or (b) an undertaking to the Court, satisfactory to the Registrar, is given that it will be paid within a time specified in the undertaking.". 11. Consequential amendments following enactment of Corporations Act (1) In Rule 62.02(1)(f) of the Principal Rules omit "or the Corporations Law". (2) In Rule 73.01 of the Principal Rules, in the definition of "securities", in paragraph (a)(ii) omit "or under the Corporations Law". r. 9 -- 7 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 7 (3) In Rule 73.13(1) of the Principal Rules omit "or Companies Code". 12. New Forms 42E, 42F inserted After Form 42D to the Principal Rules insert— 'RULE 42.10(3) FORM 42E SUBPOENA FOR PRODUCTION TO REGISTRAR (Subpoena to a natural person) [heading as in originating process] To [name] of [address]: THE COURT ORDERS that you do produce this subpoena (or a copy of this subpoena) and the documents described in the Schedule to the Registrar of the County Court at, [address], by hand or by post, on or before [date for compliance]. If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Registrar, they must be sent so that he receives them before the date mentioned above. SCHEDULE [description of documents] [If necessary, attach schedule describing documents] NOTES (1) If you do not comply with this subpoena you may be arrested. (2) Any documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena (or a copy) request that the documents be posted to you at another address given by you or that you be informed when they are available to be collected by you. r. 12 -- 8 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 8 (3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. FURTHER NOTES All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken. 1. If you are the person required by this subpoena to produce documents: If you have any objection to producing the documents or to their being inspected by any one or more of the parties to the proceeding, you must notify the Registrar in writing of your objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. 2. If you are a party to the proceeding and have been served with a copy of this subpoena: If you object to the documents being inspected by another party to the proceeding, you must notify the Registrar of your objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. 3. If you are the party who filed this subpoena: If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Registrar of the objection and of the time and place when the objection will be heard. You are required promptly to inform the person named in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined. Documents produced in compliance with this subpoena may not be removed from the custody of the Registrar, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant: r. 12 -- 9 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 9 "(14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Registrar— (a) to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Registrar; and (b) to return the documents to the Registrar at the time appointed by him.". A breach of this undertaking may be dealt with as a contempt of court. RULE 42.10(3) FORM 42F SUBPOENA FOR PRODUCTION TO REGISTRAR (Subpoena to a corporation) [heading as in originating process] To [name of corporation] of [address]: THE COURT ORDERS that [name of corporation] (called "the corporation") do produce this subpoena (or a copy of this subpoena) and the documents described in the Schedule by causing its proper officer to produce them to the Registrar of the County Court at, [address], by hand or by post, on or before [date for compliance]. If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Registrar, they must be sent so that he receives them before the date mentioned above. SCHEDULE [description of documents] [If necessary, attach schedule describing documents] NOTES (1) If the corporation does not comply with this subpoena, the subpoena may be enforced by arrest of an officer of the corporation. r. 12 -- 10 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 10 (2) Any documents produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but the corporation may in writing on or attached to this subpoena (or a copy) request that the documents be posted to it at another address given by it or that it be informed when they are available to be collected by it. (3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. FURTHER NOTES All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken. 1. Notice to the corporation: If the corporation has any objection to producing the documents or to their being inspected by one or all of the parties to the proceeding, it must notify the Registrar in writing of its objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform the corporation of the time and place when its objection will be heard by a Judge or a Master of the Court. 2. If you are a party to the proceeding and have been served with a copy of this subpoena: If you have any objection to producing the documents or to their being inspected by any one or more of the parties to the proceeding, you must notify the Prothonotary in writing of your objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. 3. If you are the party who filed this subpoena: If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Registrar of the objection and of the time and place when the objection will be heard. You are required promptly to inform the corporation named in the subpoena and all other parties to the proceeding accordingly so that r. 12 -- 11 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 11 they may be heard, if they wish, before the objection is determined. Documents produced in compliance with this subpoena may not be removed from the custody of the Registrar, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant: "(14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Registrar— (a) to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Registrar; and (b) to return the documents to the Registrar at the time appointed by him.". A breach of this undertaking may be dealt with as a contempt of court.'. Dated: 20 November 2001 G. R. D. WALDRON, Chief Judge B. R. DOVE F. G. DYETT MARILYN HARBISON JOHN K. NIXON J. M. PANNAM L. S. OSTROWSKI IAN C. ROBERTSON J. T. DUGGAN G. R. ANDERSON G. R. G. CROSSLEY P. D. JENKINS D. A. T. JONES K. M. WILLIAMS J. H. BARNETT R. LEWITAN E. H. CURTAIN G. G. HICKS FRED DAVEY J. A. SMALLWOOD M. G. McINERNEY S. M. COHEN T. G. WODAK M. E. SEXTON F. J. SHELTON F. E. HOGAN WILLIAM R. WHITE r. 12 -- 12 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 12 ═══════════════ -- 13 of 14 -- S.R. No. 122/2001 County Court (Chapter I Amendment No. 5) Rules 2001 13 ENDNOTES 1 Rule 4: S.R. No. 20/1999. Reprint No. 1 as at 27 September 2001. Endnotes -- 14 of 14 --