Supreme Court (Chapter I Amendment No. 1) Rules 1996

i Supreme Court (Chapter I Amendment No. 1) Rules 1996 S.R. No. 137/1996 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Amendment of Rule 1.13 1 6. Amendment of Rule 20.03 2 7. Amendment of Rule 33.03 2 8. Amendment of Rule 64.04 2 9. Amendment of Rule 64.16 2 10. Substitution of Order 65 2 ORDER 65 3 APPLICATIONS TO COURT OF APPEAL 3 65.01 Definition 3 65.02 Application by summons 3 65.03 Expedition 3 65.04 Filing and service 4 65.05 Delivery of documents to Registrar 4 65.06 Further copies 5 65.07 Documents for inclusion 5 65.08 Preparation of documents 5 65.09 Time 5 65.10 Procedure on application 6 11. Amendment of Rule 68.02 6 12. Amendment of Rule 68.06 6 13. Amendment of Rule 81.01 6 14. Substitution of Appendix A and Appendix B 6 ═══════════════ NOTES 18 -- 1 of 19 -- 1 STATUTORY RULES 1996 S.R. No. 137/1996 Supreme Court Act 1986 Supreme Court (Chapter I Amendment No. 1) Rules 1996 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 These Rules come into operation on 1 January 1997. 4. Principal Rules In these Rules, the General Rules of Procedure in Civil Proceedings 19961 are called the Principal Rules. 5. Amendment of Rule 1.13 In Rule 1.13(1) of the Principal Rules insert the following definition— ' "solicitor" means a legal practitioner within the meaning of the Legal Practice Act 1996 not being a legal practitioner who practises as a barrister only;' -- 2 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 2 6. Amendment of Rule 20.03 (1) In Rule 20.03(3) of the Principal Rules, in sub- paragraph (c), for "21" substitute "28". (2) For Rule 20.03(4) of the Principal Rules substitute— "(4) Except by leave of the Court of Appeal, a solicitor shall not file a notice under paragraph (1) where in the proceeding— (a) a summons for leave to appeal to the Court of Appeal has been filed; or (b) notice of appeal to the Court of Appeal has been served.". 7. Amendment of Rule 33.03 In Rule 33.03 of the Principal Rules, for the definition of "psychologist" substitute— ' "psychologist" means a registered psychologist as defined by the Psychologists Registration Act 1987;'. 8. Amendment of Rule 64.04 In Rule 64.04(5) of the Principal Rules, in sub- paragraph (a), after "filing" insert "and serving". 9. Amendment of Rule 64.16 In Rule 64.16(1) of the Principal Rules, in paragraph (a), for "notice" substitute "note". 10. Substitution of Order 65 For Order 65 of the Principal Rules substitute— r. 6 -- 3 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 3 'ORDER 65 APPLICATIONS TO COURT OF APPEAL 65.01 Definition In this Order, unless the context or subject matter otherwise requires, "application" means any application other than an application by way of appeal or an application for a new trial or to set aside a judgment, order, verdict or finding. 65.02 Application by summons (1) An application to the Court of Appeal, whether on notice or not, shall be made by summons supported by affidavit. (2) The application is taken to be made when the summons is filed. (3) If an application is made on notice, the summons and affidavit shall be served on all persons interested. 65.03 Expedition (1) Where it is satisfied that the delay caused by proceeding in accordance with Rule 65.02 would or might entail injustice, the Court of Appeal may make an order 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 of Appeal may set aside any order made under paragraph (1) on the application of any party affected. r. 10 -- 4 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 4 65.04 Filing and service (1) The applicant shall file the affidavit in support of an application not less than four days before the day for hearing named in the summons. (2) If an application is made on notice, the applicant shall serve a sealed copy of the summons and a copy of the affidavit in support and of any exhibit on each person to whom notice of the application is to be given not less than four days before the day for hearing named in the summons. (3) The respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit not less than two days before the day for hearing named in the summons. 65.05 Delivery of documents to Registrar At or about the time of service under Rule 65.04— (a) the applicant shall deliver to the Registrar for the use of the members of the Court of Appeal two copies of the summons and of the affidavit in support and, unless the Registrar otherwise directs, of the exhibits thereto; and (b) each respondent shall deliver to the Registrar for the use of the members of the Court of Appeal two copies of any affidavit in answer and, unless the Registrar otherwise directs, of the exhibits thereto. r. 10 -- 5 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 5 65.06 Further copies At any time the Registrar may require the applicant or the respondent to deliver additional copies of any of the documents referred to in Rule 65.05. 65.07 Documents for inclusion On any application relating to an appeal or a proposed appeal, the applicant shall include as exhibits to an affidavit— (a) a copy of the judgment or order from which the appeal is or is proposed to be brought, (b) a copy of any reasons given for that judgment or order, and (c) a copy of the notice of appeal or proposed notice of appeal— or shall account in an affidavit for their absence as exhibits. 65.08 Preparation of documents In the preparation of documents for the purpose of an application, regard shall be had to any notes published by the Registrar for the guidance of applicants. 65.09 Time (1) The Court of Appeal may extend or abridge any time fixed by or under this Order. (2) The jurisdiction and powers of the Court of Appeal under this Rule may be exercised by a single Judge of Appeal. r. 10 -- 6 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 6 65.10 Procedure on application Order 46 shall with any necessary modification apply to an application to the Court of Appeal under this Order.'. 11. Amendment of Rule 68.02 In Rule 68.02(1) of the Principal Rules, after sub- paragraph (f) insert— "(g) where the warrant is against property in consequence of a determination of the Domestic Building Tribunal registered in the Court under section 112 of the Domestic Building Contracts and Tribunal Act 1995.". 12. Amendment of Rule 68.06 In Rule 68.06 of the Principal Rules omit "as amended and in force for the time being". 13. Amendment of Rule 81.01 In Rule 81.01(1) of the Principal Rules for "1858" substitute "1958". 14. Substitution of Appendix A and Appendix B For Appendix A and Appendix B to the Principal Rules substitute— "APPENDIX A SCALE OF COSTS Instructions $ 1. To institute or defend any originating proceeding (including a petition) or appeal, or to make or oppose any motion or application in the Court in its probate jurisdiction or under the Companies (Victoria) Code or the Corporations Law 168.00 r. 11 -- 7 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 7 $ 2. To make or oppose any interlocutory application not otherwise provided for 40.00 3. For statement of claim whether indorsed on writ or third party notice or served separately, or counterclaim 83.00 4. For any other pleading, particulars in lieu of pleading or amended pleading 40.00 5. For counsel to advise or give an opinion 40.00 6. For counsel to make an interlocutory application where no other brief 40.00 7. For interrogatories, answers to interrogatories, oral examination for discovery, affidavit or other document for filing on an interlocutory application other than a short, formal affidavit or other document 83.00 8. For a necessary document not otherwise provided for, such fee as may be reasonable in the circumstances No allowance for instructions shall be made under the above items where an allowance for the work is claimed in detail and allowed on that basis Instead of the fees for instructions above, such larger sum may be allowed as the Taxing Master thinks reasonable in the circumstances 9. Instructions for brief on trial of proceedings, including an assessment of damages or value or a trial before special referee, or an appeal, such allowances as the Taxing Master thinks reasonable in the circumstances Originating Process 10. Writ or originating motion or summons (where filed as originating process) 95.00 11. If any of the above exceed three folios (when not drawn by counsel) for each extra folio 17.00 The above allowances include all indorsements of claim, copy for filing and one copy for service and attendance to file, but not Court fees r. 14 -- 8 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 8 $ Corporations Law Short Form Bill 11A. Costs of obtaining a winding-up order up to and including authentication, filing and service of the order under section 470 of the Corporations Law and the obtaining from the Taxing Master of an order as to costs 1929.00 Additional costs are allowable for any adjournment in accordance with item 34 or 35 in respect of which costs have been reserved by the Court Interlocutory Process 12. Summons before Judge or Master 83.00 13. Subpoena 50.00 If a subpoena exceeds three folios, for each extra folio 6.50 These allowances include preparation of document, copy for filing and one copy for service and attendance to file Execution Process 14. Warrant of execution 95.00 This allowance includes preparation of the warrant, copy for filing and one copy for service and attendance to file Notices and Memoranda 15. Notice to produce or any other necessary or proper notice or memorandum not otherwise provided for, or any demand 32.00 This allowance does not apply to a short notice or memorandum indorsed on another document, but an allowance may be made therefor as part of the allowance for the document 16. If the notice is special, or necessarily exceeds three folios, for each folio 17.00 The above allowances include preparation of the notice and one copy for filing or service $ r. 14 -- 9 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 9 Appearance 17. Preparing and attending filing notice of appearance (including one copy for service) 58.00 Drawing Pleadings And Other Documents 18. (a) Pleadings, including petitions, indorsement constituting statement of claim on writ or third party notice, including particulars 83.00 (b) If exceeding three folios, for each extra folio 17.00 19. Any other necessary document, per folio 17.00 No allowance is to be made to a solicitor for drawing a document drawn by counsel, but a fee may be allowed for drawing matter necessary to instruct counsel In allowing for drawing, the Taxing Master may disallow anything which is a repetition or adaptation of matter for the drawing of which allowance has otherwise been made in the proceeding. The Taxing Master may increase these allowances if in the circumstances he thinks it reasonable to do so 20. For preparing each exhibit 3.20 Engrossment and Copies 21. Engrossment of documents, per folio 3.20 22 (a) Copy or photocopy of document, per page 1.20 (b) Reproduction of document from microfiche, microfilm or like process, per page, the actual cost or 1.20 23. Where under the Rules or any order of the Court or for other sufficient cause any document is printed out and it would not have been reasonable to send the original to the printer, a copy for the printer shall be allowed, per page 1.20 $ r. 14 -- 10 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 10 24. Where more than ten copies of the same document are required, the amount actually and properly paid to a printer (in addition to all necessary attendances on the printer), or, if reproduced by the solicitor, the equivalent amount or such lesser amount as the Taxing Master considers fair and reasonable having regard to commercial rates for similar services, shall be allowed Where it is necessary to print any part of a document in a foreign language, or as a facsimile, or in any unusual or special manner, or where any alteration in the document printed becomes necessary after the first proof, such further allowance shall be made as the Taxing Master thinks reasonable Perusals 25. Of all pleadings, amendments of pleadings (which exceed three folios), third party notices, interrogatories, answers thereto, transcripts of discovery by oral examination, notices, affidavits, draft orders submitted for approval by another party, drafts of documents to be settled by an officer of the Court, orders (unless an allowance has been made previously for perusal of a draft), opinions or advices of counsel where requested, bills of costs necessarily perused by the solicitor for the party on whom it was served 26.00 Or per folio 3.60 26. Of all other documents, including deeds, correspondence (including incoming correspondence), exhibits, per folio 2.80 If the solicitor is or ought to be familiar with the contents of the document or if it is not necessary to read all of it carefully, the Taxing Master shall allow such smaller amount as he thinks reasonable. No allowance shall be made for the solicitor perusing letters which he receives unless the Taxing Master considers there are special circumstances for doing so $ 27. Alternatively, for examining a document or checking a r. 14 -- 11 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 11 proof or print or examining an appeal book Solicitor, per quarter hour 40.00 Clerk, per quarter hour 24.00 Service 28. Service of any document where necessary, and not able to be served by post 39.00 Or such charge as is reasonable having regard to the number of necessary attendances, the time taken, the distance travelled and any expense incurred 29. Where by reason of the location of the person to be served it is proper to effect service through an agent, instead of an allowance for service— (a) for correspondence with the agent 26.00 (b) the amount actually and reasonably charged by the agent Where more than one attendance is necessary to effect service, or to ground an application for substituted service, the Taxing Master may make such further allowance under items 28 and 29 as he thinks reasonable For service out of Victoria, the Taxing Master shall make such allowance as he thinks reasonable 30. Service of document on a party by filing or leaving at the office of his solicitor or other address for service, where that mode of service is necessary 24.00 31. Service of document on a party by post or leaving at document exchange 12.00 Only one fee for service shall be allowed where two or more documents are or could have been served together $ Attendances 32. (a) On counsel with brief on trial of proceeding, r. 14 -- 12 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 12 including an assessment of damages or value or a trial before a special referee or on appeal 51.00 (b) On counsel with any other brief or papers or to appoint consultation or conference (including all attendances to settle counsel's fees) 32.00 33. (a) On consultation or conference with counsel 83.00 (b) Where a consultation or conference occupies more than one half hour, if the Taxing Master thinks it reasonable, for each subsequent half hour 83.00 (c) If the solicitor does not attend personally, the allowance shall be as the Taxing Master thinks reasonable, but not exceeding, for— the first half hour 40.00 each half hour thereafter 40.00 34. On any application or attendance before a Judge, a Master or the Taxing Master, Listing Master, or Prothonotary, examination of a witness, discovery by oral examination, assessment of damages or value, trial or inquiry, trial of a proceeding or hearing of an appeal, where in list or likely to be heard 83.00 35. (a) At trial or hearing, for each hour 168.00 But, according to circumstances, not to exceed per day of six hours (including luncheon and dinner adjournments) 802.00 or, If attended by clerk 400.00 (b) To hear reserved judgment, for each half hour 83.00 (c) By appointment or on short or formal application to a Judge or Master or the Taxing Master, Listing Master or Prothonotary 83.00 $ 36. Where in the opinion of the Taxing Master the attendance of two principals or of a solicitor and clerk at trial is necessary, an additional allowance may be made not exceeding per day of six hours (including r. 14 -- 13 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 13 luncheon and dinner adjournments) 802.00 37. To settle judgment or order, per half hour 83.00 38. In addition to reasonable expenses for travel and sustenance, allowance may be made for a solicitor travelling to a place more than 50 kilometres distant from his place of residence or business where— (a) the journey was necessary and proper for the purpose of the proceeding and what was done by the solicitor could not have been done satisfactorily by an agent; and (b) the solicitor was necessarily absent from his office, and for that time no charge could otherwise be made, and having regard to what other allowances may be made to the solicitor in the proceeding Not exceeding per day 802.00 If the journey is not undertaken solely for the purpose of the proceeding, the Taxing Master may allow a proportion of the fee as he thinks reasonable 39. To file or lodge any document, to obtain an appointment from an officer of the Court, or to insert an advertisement or other attendance of a similar nature capable of performance by a junior clerk 24.00 40. If the exercise of skill or legal knowledge is involved so as to require the personal attendance of the solicitor, per quarter hour 40.00 Or, if attendance by solicitor's clerk, per quarter hour 24.00 Or such larger amount as the Taxing Master thinks reasonable having regard to the importance or difficulty of the subject matter of attendance $ 41. Making an appointment or similar attendance by telephone, at the discretion of the Taxing Master 10.00 42. Arranging attendance of a witness or any attendance for which no other provision is made, per quarter hour 24.00 r. 14 -- 14 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 14 43 Sending or receiving telex, telegram or facsimile documents 24.00 Or such larger amount as is reasonable in the circumstances having regard to the length Correspondence 44. Letter making an appointment or forwarding document without explanation or the like 11.00 45. Letter, ordinary 21.00 46. Letter, special 29 00 Or such amount as the Taxing Master thinks reasonable 47. Circular letter, after the first 8.10 For each additional page after the first page, the photocopying charge shall apply The above allowances include the standard surface rate of postage, but, if any communication is necessarily made by telex, telegram or transmission of a facsimile, the appropriate statutory charges may be allowed as a disbursement 48. Where any agent is employed, for correspondence with the agent which the Taxing Master thinks reasonable, per quarter of the year 40.00 to 168.00 Or, if special or extensive, in the discretion of the Taxing Master. __________________ r. 14 -- 15 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 15 APPENDIX B WITNESSES' EXPENSES AND INTERPRETERS' ALLOWANCES WITNESSES' EXPENSES 1. Professional person including pharmaceutical and analytical chemists, psychologists, actuaries, valuers and accountants (carrying on business as principals) per hour or part thereof necessarily absent from professional rooms or place of business (during normal hours of business), $120–$240, but not in any event to exceed $1500 in any one day 2. Person other than a professional person who is engaged in business as a principal on his own behalf $75, or such fee as is reasonable in the circumstances but not in any event to exceed $250 per half day or part thereof or $450 in any one day 3. Any other witness per day, $75 But if the witness is remunerated in any employment by wages, salary or fees the amount lost by the attendance, but not in any event to exceed $250 per half day or part thereof or $450 in any one day The Taxing Master may allow in addition any appropriate necessary expense incurred by the witness, e.g. child minding expenses A witness attending in more than one proceeding shall be entitled to a proportionate part only of the expense of the proceeding. The Taxing Master may allow a country witness, in addition to the above expense, a reasonable sum for the actual expense of travel to and from the place of trial or hearing and for maintenance or sustenance. For this purpose a witness who does not reside within 50 kilometres of the place of trial or hearing is a country witness. Where a witness gives evidence as an expert, the Taxing Master may allow an amount reasonably and properly incurred and paid to the witness for qualifying to give that evidence. Notwithstanding anything in the above scale, the Taxing Master may allow to an expert witness a special fee for any attendance at court not covered by the scale when the witness assists counsel or solicitors as an expert for a period during the trial or hearing. Nothing in the scale shall affect the existing practice of allowing qualifying fees to witnesses. r. 14 -- 16 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 16 INTERPRETERS' ALLOWANCES 1. Attending professional, scientific or expert witness qualifying to give evidence, attending conference with solicitor or counsel $35 for each hour or part thereof but not in any event to exceed $185 in any one day 2. Attending court for absence from place of residence or business $125 for four hours or less and thereafter $35 per hour, or part thereof, but not in any event to exceed $185 in any one day The Taxing Master may allow a country interpreter, in addition to the above allowances, a reasonable sum for the actual expense of travel to and from the place of trial or hearing and for maintenance and sustenance. For this purpose, an interpreter who does not reside within 50 kilometres of the place of trial or hearing is a country interpreter. Notwithstanding anything in the above scale, the Taxing Master may allow an increased amount to a professional interpreter in special circumstances.". Dated: 28 November 1996 J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A. R. C. TADGELL, J.A. W. F. ORMISTON, J.A. JOHN D. PHILLIPS, J.A. K. M. HAYNE, J.A. STEPHEN CHARLES, J.A. F. H. CALLAWAY, J.A. G. HAMPEL, J. H. NATHAN, J. BERNARD G. TEAGUE, J. ALLAN W. McDONALD, J. r. 14 -- 17 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 17 T. H. SMITH, J. JOHN J. HEDIGAN, J. DAVID BYRNE, J. D. L. HARPER, J. G. M. EAMES, J. J. M. BATT, J. H. R. HANSEN, J. ROSEMARY BALMFORD, J. ═══════════════ r. 14 -- 18 of 19 -- S.R. No. 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 18 NOTES 1 S.R. No. 19/1996. Notes -- 19 of 19 --