Supreme Court (Chapter I Amendment No. 14) Rules 2000

i Supreme Court (Chapter I Amendment No. 14) Rules 2000 S.R. No. 75/2000 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Procedure relating to preliminary discovery and discovery from non-party 2 6. Amendment of heading 2 7. New Parts inserted into Order 2 PART 5—APPEALS UNDER SECTIONS 116 AND 197 OF THE CHILDREN AND YOUNG PERSONS ACT 1989 2 58.22 Application 2 58.23 Definitions 2 58.24 Notice of appeal and undertaking to prosecute 2 58.25 Solicitor to notify that he or she acts 3 58.26 Prothonotary to fix hearing 3 58.27 Abandonment of appeal 3 58.28 Order striking out appeal 4 58.29 Recording of decision on appeal under section 197 4 58.30 Application to set aside order striking out appeal for failure to appear 5 58.31 Application for rehearing of appeal under section 116 5 PART 6—APPEALS UNDER SECTIONS 20 AND 21 OF THE CRIMES (FAMILY VIOLENCE) ACT 1987 5 58.32 Appeals to the Trial Division from the Children's Court 6 8. New forms inserted 6 -- 1 of 20 -- Rule Page ii Form 58B—Notice of appeal and undertaking to prosecute 6 Form 58C—Notice of abandonment of appeal 8 Form 58D—Notice of abandonment of appeal 9 Form 58E—Order striking out appeal 10 Form 58F—Notice of Supreme Court's decision on appeal 11 Form 58G—Application to set aside order striking out appeal for failure to appear 12 Form 58H—Application for rehearing of appeal 14 Form 58J—Application for leave to apply out of time for rehearing of appeal 16 ═══════════════ NOTES 18 -- 2 of 20 -- 1 STATUTORY RULES 2000 S.R. No. 75/2000 Supreme Court Act 1986 Supreme Court (Chapter I Amendment No. 14) Rules 2000 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to amend the Principal Rules to— (a) provide for appeals to the Trial Division from the Children's Court when constituted by the President of that Court; and (b) authorise Masters to hear certain further applications for discovery. 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 August 2000. 4. Principal Rules In these Rules, Chapter I of the Rules of the Supreme Court1 is called the Principal Rules. -- 3 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 2 5. Procedure relating to preliminary discovery and discovery from non-party In Rule 32.08 of the Principal Rules, paragraph (3) is revoked. 6. Amendment of heading In Order 58 of the Principal Rules, for "PART 4—OTHER APPEALS" substitute "PART 4—APPEALS UNDER SECTION 80B OF THE CHILDREN AND YOUNG PERSONS ACT 1989". 7. New Parts inserted into Orders After Rule 58.21 of the Principal Rules insert— 'PART 5—APPEALS UNDER SECTIONS 116 AND 197 OF THE CHILDREN AND YOUNG PERSONS ACT 1989 58.22 Application This Part applies to an appeal to the Trial Division under section 116 or 197 of the Children and Young Persons Act 1989 from the Children's Court constituted by the President of that Court. 58.23 Definitions In this Part— "appeal" means an appeal to which this Part applies; and "appellant" has a corresponding meaning. 58.24 Notice of appeal and undertaking to prosecute A notice of appeal and undertaking to prosecute an appeal shall be in Form 58B. r. 5 -- 4 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 3 58.25 Solicitor to notify that he or she acts (1) If a solicitor is engaged to act on behalf of an appellant or a respondent to an appeal, the solicitor shall without delay notify the Prothonotary in writing that he or she so acts and furnish an address for service. (2) If a solicitor ceases to act on behalf of an appellant or a respondent or the address for service is changed, the solicitor shall without delay so notify the Prothonotary in writing. 58.26 Prothonotary to fix hearing (1) The Prothonotary shall— (a) fix the date and place for hearing of the appeal; and (b) notify in writing each party and each solicitor who has given notice under Rule 58.25 of the date and place of hearing a reasonable time before the hearing. (2) Notification in writing under paragraph (1)(b) may be by pre-paid ordinary mail, or where a solicitor for a party has facilities for the reception of documents in a document exchange, by delivering the notification into those facilities. 58.27 Abandonment of appeal (1) A notice of abandonment of an appeal against a sentencing order which imposed a period of detention shall be in Form 58C. (2) A notice of abandonment of any other appeal shall be in Form 58D. (3) When a notice of abandonment of appeal is filed, the Prothonotary shall make the order striking out the appeal. r. 7 -- 5 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 4 58.28 Order striking out appeal (1) An order under section 86 of the Magistrates' Court Act 1989 striking out an appeal shall be in Form 58E. (2) The Prothonotary shall cause a copy of the order to be forwarded to the registrar of the Children's Court at the venue of the court from which the appeal was brought. 58.29 Recording of decision on appeal under section 197 (1) When an appeal under section 197 of the Children and Young Persons Act 1989 is determined, the Associate to the Judge who heard the appeal shall record the sentence or particulars of the decision, in quadruplicate, in Form 58F, which record shall constitute the final record of the order of the Court on the appeal. (2) If a number of appeals is heard together, it is not necessary to record the sentence or particulars required by paragraph (1) on separate forms for each appeal but it is necessary for the sentence or such particulars in respect of each charge to be recorded in full. (3) The Associate to the Judge shall deliver— (a) three copies of the record of the order of the Court to the Prothonotary who shall— (i) file one copy; (ii) send one copy to the registrar of the Children's Court at the venue of the court from which the appeal was brought; and r. 7 -- 6 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 5 (iii) if the appellant is required to serve a period of detention, deliver one copy to the person responsible for keeping the appellant; and (b) if the appellant is required to serve a period of detention, one copy of the record of the order of the Court to the prison officer responsible for conveying the appellant to the place of detention. (4) The record shall be sufficient to authorise the keeping of the appellant for the period and in the manner set out in the record. 58.30 Application to set aside order striking out appeal for failure to appear An application to set aside an order striking out an appeal because of the failure of the appellant to appear shall be in Form 58G. 58.31 Application for rehearing of appeal under section 116 (1) An application for the rehearing of an appeal under section 116 of the Children and Young Persons Act 1989 which has been heard and determined in the appellant's absence shall be in Form 58H. (2) An application for leave to apply out of time for the rehearing of such an appeal shall be in Form 58J. PART 6—APPEALS UNDER SECTIONS 20 AND 21 OF THE CRIMES (FAMILY VIOLENCE) ACT 1987 r. 7 -- 7 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 6 58.32 Appeals to the Trial Division from the Children's Court On an appeal to the Trial Division under section 20 or 21 of the Crimes (Family Violence) Act 1987 from the Children's Court constituted by the President of that Court, Part 5 of this Order shall apply with any necessary modification.'. 8. New forms inserted After Form 58A of the Principal Rules insert— "RULE 58.24 FORM 58B NOTICE OF APPEAL AND UNDERTAKING TO PROSECUTE [under section 116 or section 197 of the Children and Young Persons Act 1989] The name of the appellant is: The name and address of the respondent is: 1. To the Registrar of the Children's Court at: 2. To the Prothonotary at: 3. And to the abovenamed respondent: A. The proceeding(s) appealed from— 1. Venue of the Children's Court appealed from: 2. Date(s) of order(s) made in the Children's Court: 3. Particulars of order(s) [if space insufficient attach extra page(s)] B. The appeal is to be heard by the Supreme Court *at a.m. [or p.m.] on [date] , at , [or] *at a time and place to be fixed by the Prothonotary. C. General Grounds of Appeal [insert particulars] D. 1. Appellant's personal address for service: 2. Solicitor's name and address for service: r. 8 -- 8 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 7 E. The appellant requests the Prothonotary to list the appeal. Dated: Signature of *Appellant/*Solicitor for Appellant * Delete if inapplicable. UNDERTAKING TO PROSECUTE I, [name] of [address] UNDERTAKE to (i) (a) *appear at the Supreme Court to prosecute the appeal at a.m. [or p.m.] on [date] , at 210 William Street, Melbourne, to be present in the Supreme Court for the duration of the appeal; and OR (b) *appear at the Supreme Court sitting at to prosecute the appeal on a day to be fixed by the Prothonotary and to be present for the duration of the appeal; and (ii) to notify the Prothonotary in writing of any change of address from that appearing in the notice of appeal. Dated: Signature of appellant In the presence of: [Qualification of witness: see clause 2(2), Schedule 6, Magistrates' Court Act 1989 as amended by section 116 of the Children and Young Persons Act 1989] * Delete if inapplicable. _______________ r. 8 -- 9 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 8 RULE 58.27(1) FORM 58C NOTICE OF ABANDONMENT OF APPEAL [When sentence of detention imposed] In the Supreme Court of Victoria at The name of the appellant is: The name and address of the respondent is: 1. To the Prothonotary at: 2. To the abovenamed respondent: I wish to abandon my appeal against *conviction/*sentence/*order. I give notice of the abandonment of the appeal, particulars of which are set out below: 1. Venue of Children's Court at which *conviction/*sentence/*order was imposed or made: 2. Date of charge: 3. Nature of offence (state shortly): 4. Date of *conviction/*sentence/*order: 5. Particulars of *conviction/*sentence/*order: I acknowledge that the *conviction/*sentence/*order appealed from shall now take effect. [*and I surrender myself to the Prothonotary at .] Dated: Signature of appellant * Delete if inapplicable. _______________ r. 8 -- 10 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 9 RULE 58.27(2) FORM 58D NOTICE OF ABANDONMENT OF APPEAL [Other than when sentence of detention imposed] In the Supreme Court of Victoria at The name of the appellant is: The name and address of the respondent is: 1. To the Prothonotary at: 2. To the abovenamed respondent: I wish to abandon my appeal against the order(s) made by the Children's Court. I give notice of the abandonment of the appeal, particulars of which are set out below: 1. Venue of Children's Court at which order(s) made: 2. *Date of charge(s): 3. *Nature of offence (state shortly): 4. Date of order(s) appealed from: 5. Particulars of order(s) [if space insufficient attach extra page(s)] I acknowledge that the order(s) appealed from shall now take effect. Dated: Signature of appellant * Delete if inapplicable. _______________ r. 8 -- 11 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 10 RULE 58.28(1) FORM 58E ORDER STRIKING OUT APPEAL In the Supreme Court of Victoria at In the matter of the Children and Young Persons Act 1989 and In the matter of an appeal by [name of appellant] ORDER *Judge/*Prothonotary Date made: The Appellant *failed to appear at the time listed for the hearing of the appeal [or] *abandoned the appeal in accordance with clause 6 of Schedule 6 to the Magistrates' Court Act 1989. The Court orders that the appeal be struck out. [When a custodial order was imposed in the Children's Court—the Appellant *has/*has not been returned to custody] Date: *Judge/*Prothonotary * Delete if inapplicable. [A copy of this order is to be provided to: The Children's Court The respondent or to the respondent's solicitor]. _______________ r. 8 -- 12 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 11 RULE 58.29(1) FORM 58F NOTICE OF SUPREME COURT'S DECISION ON APPEAL To the Prothonotary at: To the Registrar of the Children's Court at: Regarding an appeal from order(s) recorded at the Children's Court at on [date] Appellant Respondent The details are as follows: Before the Honourable Justice at on [date] . Registrar's Number Order(s) Appealed Against Result of Appeal [When a custodial sentence was imposed or confirmed—the appellant *has/*has not been returned to custody] Associate * Delete if inapplicable. _______________ r. 8 -- 13 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 12 RULE 58.30 FORM 58G APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby apply for an order setting aside an order made on / / striking out my appeal for my failure to appear. The application is made on the ground that my failure to appear was not due to fault or neglect on my part. (Give details here of reasons for non-appearance) Dated: Signature of Appellant [Notice of this application must be served on the respondent a reasonable time before making of the application and in the same way as a notice of appeal—section 89 of the Magistrates' Court Act 1989] If the Supreme Court grants the application it must order the reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require the appellant to give a further undertaking to prosecute the appeal. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– [Office use only] r. 8 -- 14 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 13 To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for rehearing is listed for at a.m. Prothonotary _______________ r. 8 -- 15 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 14 RULE 58.31(1) FORM 58H APPLICATION FOR REHEARING OF APPEAL [Appeals under section 116 of the Children and Young Persons Act 1989] Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby apply for a rehearing of my appeal which was heard and determined on / / in my absence. The application is made on the ground that my failure to appear was not due to fault or neglect on my part—section 89A(6) of the Magistrates' Court Act 1989. (Give details here of reasons for non-appearance—section 89A(4)(a) of the Magistrates' Court Act 1989) Dated: Signature of Appellant [Notice of this application must be served on the respondent a reasonable time before the making of the application and in the same way as a notice of appeal—section 89A(4)(b) of the Magistrates' Court Act 1989] If the Supreme Court grants the application it must order the reinstatement of the Children's Court order and reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require r. 8 -- 16 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 15 the appellant to give a further undertaking to prosecute the appeal— section 89A(5)(a) and (b) of the Magistrates' Court Act 1989. The granting of the application for rehearing acts as a stay of the order of the Children's Court or the dismissal of the application by the Children's Court— section 89A(5)(c) of the Magistrates' Court Act 1989. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– [Office use only] To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for rehearing is listed for at a.m. Prothonotary _______________ r. 8 -- 17 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 16 RULE 58.31(2) FORM 58J APPLICATION FOR LEAVE TO APPLY OUT OF TIME FOR REHEARING OF APPEAL [Appeals under section 116 of the Children and Young Persons Act 1989] Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby seek leave to apply outside the prescribed period of 30 days from the date of hearing of the appeal for the rehearing of the appeal. My appeal was heard and determined on / / in my absence. The application is made on the ground that my failure to apply for a rehearing of the appeal within 30 days after being notified in writing of the determination of the appeal was due to the following exceptional circumstances—section 89A(3) of the Magistrates' Court Act 1989. State here the exceptional circumstances relied upon Dated: Signature of Appellant [Notice of this application must be served on the respondent a reasonable time before the making of the application and in the same way as a notice of appeal—section 89A(4)(b) of the Magistrates' Court Act 1989] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– r. 8 -- 18 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 17 [Office use only] To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for Leave is listed for at a.m. Prothonotary __________________". Dated: 27 July 2000 J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A. W. F. ORMISTON, J.A. JOHN D. PHILLIPS, J.A. STEPHEN CHARLES, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. BERNARD G. TEAGUE, J. P. D. CUMMINS, J. T. H. SMITH, J. D. L. HARPER, J. H. R. HANSEN, J. PHILIP MANDIE, J. ROSEMARY BALMFORD, J. M. L. WARREN, J. ═══════════════ r. 8 -- 19 of 20 -- S.R. No. 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 18 NOTES 1Rule 4: S.R. No. 19/1996. Reprinted incorporating amendments as at 1 June 2000 and subsequently amended by S.R. No. 63/2000. Notes -- 20 of 20 --