Version No. 013

Supreme Court (Miscellaneous Civil Proceedings) Rules 1998

S.R. No. 110/1998

Version incorporating amendments as at 12 December 2005

table of provisions

Rule Page

ix

Rule Page

Order 1 1

PRELIMINARY 1

PART 1—GENERAL 1

1.01 Title 1

1.02 Object 1

1.03 Authorising provisions 1

1.04 Commencement 1

1.05 Revocation 2

1.06 Application 2

1.07 Rules of general procedure 2

PART 2—TRIAL DIVISION 2

1.08 Application of Part 2

1.09 Process 2

1.10 Address for service 3

1.11 Jurisdiction of Master 3

1.12 Application to be supported by affidavit 4

Order 2 4

COMMERCIAL LIST 4

2.01 Definitions 4

2.02 Judge to control List 5

2.03 Entry into Commercial List 6

2.04 Summons for directions 6

2.05 No certificate of readiness 7

2.06 Removal from Commercial List 7

Order 3 7

BUILDING CASES 7

3.01 Definitions 7

3.02 Judge to control List 8

3.03 Entry into Building Cases List 9

3.04 Summons for directions 9

3.05 Removal from Building Case List 9

Order 4 10

APPEALS FROM TRIBUNALS 10

PART 1—INTRODUCTION 10

4.01 Application 10

4.02 Definitions 10

PART 2—APPEAL TO TRIAL DIVISION 10

4.03 Appeal to Court constituted by a Judge 10

4.04 Commencement of appeal 10

4.05 Leave to appeal 11

4.06 Application for leave 11

4.07 Affidavit in support 12

4.08 Summons before Master 12

4.09 Hearing of application 13

4.10 Appeal 13

4.11 Notice of appeal 13

4.12 Appellant to file affidavit 14

4.13 Directions 15

4.14 Expedition 16

PART 3—APPEAL TO COURT OF APPEAL 16

4.15 Commencement of Appeal 16

4.16 Application for leave to appeal 17

4.17 Notice of appeal 17

4.17.1 Affidavit to be filed if leave not needed 18

4.18 Application of Order 64 of Chapter I 18

4.19 Exercise of jurisdiction and powers 19

Order 5 19

CASE STATED BY A TRIBUNAL 19

5.01 Application 19

5.02 Definitions 19

5.03 Preparation of draft 20

5.04 Approved or altered draft 20

5.05 Settling of the draft 20

5.06 Delivery to recording officer 21

5.07 Delivery of special case and certification of copies 21

5.08 Reference to documents 22

5.09 Copies of documents 22

Order 6 22

REFERENCE BY A TRIBUNAL OF A QUESTION OF LAW 22

6.01 Application 22

6.02 Procedure on reference 22

Order 7 23

VICTORIAN TAXATION APPEALS 23

PART 1—GENERAL 23

7.01 Definitions 23

7.02 Application 23

7.03 Procedure 24

7.04 Interlocutory applications in Trial Division 24

PART 2—APPEALS FROM THE COMMISSIONER 24

7.05 Setting down 24

7.06 Relevant documents 25

7.07 Affidavit and directions 25

Order 8 26

VALUATION OF LAND 26

PART 1—GENERAL 26

8.01 Definitions 26

8.02 Application of Order 26

8.03 List 27

8.04 Judge in Charge 27

8.05 Directions 28

8.06 Application of Orders 4 and 6 29

PART 2—VALUATION OF LAND ACT 1960 29

8.07 Definitions 29

8.08 Application of Part 2 29

8.09 Section 23(3) 29

8.10 Setting Down 29

8.11 Rating authority to file documents 30

8.12 Affidavit and directions 31

PART 3—LAND ACQUISITION AND COMPENSATION ACT1986 32

8.13 Definitions 32

8.14 Application of Part 3 32

8.15 Section 81(1)(c) 32

8.16 Filing of notice of referral 32

8.17 Directions 32

Order 9 33

COMMERCIAL ARBITRATION RULES 33

9.01 Definition 33

9.02 Application of Order 33

9.03 Jurisdiction 33

9.04 Enforcement of award 33

9.05 Indorsement and service of Order 34

9.06 Appeal under section 38 34

9.07 Application under section 39(1) 35

9.08 Application under section 42 or 43 35

9.09 Offer of compromise 35

9.10 Form of offer 35

9.11 Time for making, accepting, payment under etc. offer 35

9.12 Effect of offer 37

9.13 Disclosure of offer 37

9.14 Failure to comply with accepted offer 37

9.15 Costs where offer not accepted 38

9.16 Hearing on costs 38

Order 10 38

SERVICE AND EXECUTION OF PROCESS RULES 38

10.01 Definitions 38

10.02 How application made 39

10.03 Enforcement of judgment 39

10.04 Fees 39

10.05 Costs 40

Order 11 40

REGISTRATION OF JUDGMENTS 40

PART 1—Revoked 40

11.01–11.12 Revoked 40

PART 2—FOREIGN JUDGMENTS ACT 1991 OF THE COMMONWEALTH 40

11.13 Definition 40

11.14 Application of Part 40

11.15 Application under section 6 by originating motion 41

11.16 Affidavit 41

11.17 Security for costs may be ordered 43

11.18 Order on application 43

11.19 Notice of registration 43

11.20 Application to set aside 44

11.21 Enforcement of judgment 44

11.22 Certified copy of Victorian judgment 45

11.23 Certificates 45

11.24 Master 46

Order 12 46

JURY SERVICE 46

PART 1—APPEALS 46

12.01 Definitions 46

12.02 Application 46

12.03 Lodgment of appeal under section 10 46

12.04 Papers for Judge 47

12.05 Judge to consider papers 47

12.06 Hearing of appeal 48

12.07 If appellant does not appear 48

PART 2—ABSENT JURORS 48

12.08 Application of Part 48

12.09 Juries Commissioner 49

12.10 Procedure 49

Order 13 49

CROSS-VESTING OF JURISDICTION RULES 49

13.01 Application 49

13.02 Definitions 49

13.03 Heading of documents 50

13.04 Application by Attorney-General 50

13.05 Removal of proceeding 50

13.06 Notice 50

13.07 Procedure after transfer 51

13.08 Conduct of proceeding 51

13.09 Directions 52

13.10 Exercise of powers of the Court 52

Order 14 52

ADMISSION TO PRACTISE AND SENIOR COUNSEL 52

Part 1—Admission to Practise 52

14.01 Definition 52

14.02 Revoked 53

14.03 Reference under section 341(3) 53

14.04 Appeal under section 2.3.11 54

14.05 Oath or affirmation of office—Form 2–14 54

14.06–14.09 Revoked 54

14.10 Application for admission 54

14.11 Applicants to appear in person 55

14.12 Objections 55

Part 2—SEnior Counsel 55

14.13 Qualification 55

14.14 Application 56

14.15 Appointment 56

Order 15 57

PROFESSIONAL PRACTICE 57

15.01 Definition 57

15.02 Appeal on a question of law 57

15.03 Removal from local roll 57

15.04 Revoked 58

Order 15A 58

PUBLIC NOTARIES 58

15A.01 Definitions 58

15A.02 Application for certificate of eligibility 59

15A.03 Certificate of eligibility 59

15A.04 Application for appointment as public notary 59

15A.05 Notice of application for appointment 59

15A.06 Oath of Office 59

15A.07 Notification after appointment 60

15A.08 Appeal from Board of Examiners 60

15A.09 Roll of public notaries 60

Order 16 61

FAMILY PROVISION 61

16.01 Definitions 61

16.02 Application of Order 61

16.03 Mode of application 62

16.04 Parties to application 62

16.05 Directions to be given 62

16.06 Summons for directions 62

16.07 Directions 63

16.08 Failure to comply with directions 63

16.09 Production of probate 63

16.10 Procedure after Order for plaintiff 64

Order 17 64

COURT AUTHORISED WILLS 64

17.01 Definition 64

17.02 Application of Order 64

17.03 Minors 65

17.04 Jurisdiction of Master under section 20 65

17.05 Want of testamentary capacity 65

17.06 If leave granted 67

17.07 Jurisdiction of Master under section 21 67

Order 18 67

WORKERS COMPENSATION 67

18.01 Definitions 67

18.02 Application of Order 67

18.03 Employer may join in proceeding 68

18.04 When further payments made 68

18.05 If payments are disputed 68

18.06 If payments are not disputed 68

18.07 Other party may seek reduction 69

18.08 When further payments made 69

18.09 If payments are disputed 69

18.10 If payments are not disputed 69

Order 19 70

WARDS OF COURT 70

19.01 Application of Order 70

19.02 Application 70

19.03 Notice by defendant 70

19.04 Evidence by affidavit 70

19.05 Minor ceases to be ward of Court 70

Order 20 71

COURT OF DISPUTED RETURNS 71

PART 1—INTERPRETATION 71

20.01 Definitions 71

20.02 Application of Order 71

PART 2—PETITIONS 71

20.03 Notice of petition 71

20.04 Summons for directions 71

20.05 Procedure on hearing 72

PART 3—REFERENCES OF QUESTIONS 72

20.06 Chief Justice to nominate Judge 72

20.07 Summons for directions 72

20.08 Parliamentary papers to be evidence 73

20.09 Procedure on hearing 73

Order 21 73

ALCOHOLICS AND DRUG-DEPENDENT PERSONS 73

21.01 Definition 73

21.02 Application of Order 73

21.03 Form of complaint 73

21.04 Form of order 73

21.05 Application for warrant 73

21.06 Application for retention of person in assessment centre 74

21.07 Evidence and procedure 74

21.08 Appeal against order to attend assessment centre 74

21.09 Stay of proceedings 75

21.10 Appeal against committal to treatment centre 75

21.11 Appeal under County Court Act 76

Order 22 76

CORONIAL INQUESTS 76

22.01 Application of Order 76

22.02 Notice 76

______

FORMS 77

Form 2-1A—Notice of Address for Service 77

Form 2–12A—Originating Motion 78

Form 2–12B—Affidavit in Support of Originating Motion to Deal With Absent Juror 79

Form 2–14—Oath of Office 80

Form 2–14A, 2–14B—Revoked 80

Form 2–15AA—Application for Certificate of Eligibility 81

Form 2–15AB—Certificate of Eligibility 83

Form 2-15AC—Affidavit in Support of Application for Appointment 84

Form 2–15AD—Notice of Intention to Apply for Appointment as a Public Notary 85

Form 2–15AE—Oath of Office 85

Form 2–15AF—Notification of Particulars and Specimen Seal 86

Form 2–18A—Notice by Employer Seeking Judgment 87

Form 2–18B—Notice of Further Payments 88

Form 2–18C—Notice of Dispute 89

Form 2–18D—Notice to Reduce Payments 90

Form 2–18E—Notice of Further Payments 91

Form 2–18F—Notice to Dispute 92

Form 2–19A—Originating Motion 93

Form 2–21A—Complaint 95

Form 2–21B—Order 96

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EndnOTES 98

1. General Information 98

2. Table of Amendments 99

3. Explanatory Details 100

ix

Version No. 013

Supreme Court (Miscellaneous Civil Proceedings) Rules 1998

S.R. No. 110/1998

Version incorporating amendments as at 12 December 2005

100

Supreme Court (Miscellaneous Civil Proceedings) Rules 1998

S.R. No. 110/1998

The Judges of the Supreme Court make the following Rules:

Order 1

PRELIMINARY

PART 1—GENERAL

1.01 Title

These Rules constitute Chapter II of the Rules of the Supreme Court and are entitled the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998.

1.02 Object

The object of these Rules is to re-make with amendments the Rules which establish procedures for certain miscellaneous civil proceedings in the Court.

1.03 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

1.04 Commencement

These Rules come into operation on 31 August 1998.

1.05 Revocation

r. 1.05

Chapter II of the Rules of the Supreme Court, the Rules of Procedure in Miscellaneous Civil Proceedings 1988[1], is revoked.

1.06 Application

These Rules apply to any proceeding in the Court with respect to which provision is made by these Rules, whether the proceeding was commenced before, on or after the day on which they come into operation.

1.07 Rules of general procedure

Except so far as is otherwise provided by these Rules or any Act, Chapter I of the Rules of the Supreme Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.

PART 2—TRIAL DIVISION

1.08 Application of Part

This Part applies to any proceeding in the Trial Division of the Court to which these Rules apply.

1.09 Process

Subject to these Rules—

(a) a proceeding to which this Part applies shall be commenced by originating motion in accordance with Chapter I;

(b) an interlocutory or other application in a proceeding to which this Part applies and made on notice to any person shall be by summons in accordance with Chapter I.

1.10 Address for service

r. 1.10

A person served with any process by which a proceeding is commenced shall not take any step in the proceeding or be heard by the Court unless the person has first—

(a) when required to file an appearance, filed an appearance in accordance with Rule 8.05 of Chapter I; or

(b) when not required to file an appearance, filed and served a notice of address for service in Form 2–1A.

1.11 Jurisdiction of Master

(1) Except where otherwise provided by these Rules, a Master, in addition to exercising the powers and authorities conferred on a Master by any other provision of these Rules or by any Act may, in any proceeding to which this Part applies, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.

(2) Subject to paragraph (3) and these Rules, the trial of a proceeding shall not be held before a Master and a Master shall not give any judgment or make any order at the trial of a proceeding.

(3) Except as provided by paragraph (4), a Master may at the trial of a proceeding give judgment or make an order by consent of all parties.

(4) A Master shall not have authority to hear or determine—

(a) any application which by these Rules or any Act is required to be heard only by a Judge; or

(b) any proceeding relating to the liberty of the subject.

(5) This Rule has effect as if it contained, modified as necessary, Rules 77.02(6), 77.03, 77.04, 77.06, 77.07 and 77.08 of Chapter I.

1.12 Application to be supported by affidavit

r. 1.12

(1) In a proceeding to which this Part applies evidence shall be given by affidavit except where otherwise provided by any Act or these Rules or where the Court otherwise orders.

(2) An affidavit in support of an application made without notice to any person shall show the parties interested and their interests.

(3) Any document referred to as an exhibit to an affidavit shall be made available for inspection by any person on whom service of a copy of the affidavit is required.

Order 2

COMMERCIAL LIST

2.01 Definitions

In this Order—

"commercial proceeding" means any proceeding commenced by writ or originating motion—

(a) which arises out of ordinary commercial transactions, including any proceeding relating to—

(i) the construction of commercial, shipping or transport documents;

(ii) the export or import of merchandise;

(iii) the carriage of goods for the purpose of trade or commerce;

(iv) insurance;

(v) banking;

(vi) finance;

(vii) commercial agency;

(viii) commercial usage; or

(b) in which there is a question that has importance in trade or commerce;

"Commercial List" or "List" means a list of commercial proceedings compiled by the Prothonotary;

"Commercial List Judge" means a Judge, not being the Judge in charge, nominated by the Chief Justice;

"Judge in charge" means a Judge nominated by the Chief Justice to be in charge of the Commercial List.