county court (chapter i amendment no. 3) rules web views.r. no. 82/2011. county court (chapter i...

County Court (Chapter I Amendment No. 3) Rules 2011

S.R. No. 82/2011

TABLE OF PROVISIONSRule Page

PART 1—PRELIMINARY 1

1 Objects 12 Authorising provisions 23 Commencement 24 Principal Rules 2

PART 2—AMENDMENTS RELATING TO PRE-LITIGATION REQUIREMENTS 3

5 Pre-litigation requirements compliance certification 36 Form 4C revoked 3

PART 3—AMENDMENTS RELATING TO FORM OF COURT DOCUMENTS 4

7 Form of document 4

PART 4—AMENDMENTS RELATING TO HEALTH PRACTITIONER TERMINOLOGY 5

8 Definitions for Order 33 amended 5

PART 5—AMENDMENTS RELATING TO THE TRANSFER OF THE FAMILY PROPERTY DIVISION TO THE DAMAGES AND COMPENSATION LIST 7

9 Damages and Compensation List 710 Divisions of Damages and Compensation List 711 Divisions of Commercial List 7

PART 6—AMENDMENTS RELATING TO SUBPOENAS 8

12 Form of subpoena 813 Compliance with subpoena 814 Disposal of documents and things produced 815 Rule 42A.03 amended 916 Compliance with subpoena 10

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17 Rule 42A.12 amended 1018 Form 42A amended 1119 New Form 42B inserted 11

Form 42B—Notice to Addressee and Declaration 11

20 Form 42AA amended 1221 New Form 42AB inserted 13

Form 42AB—Notice to Addressee and Declaration 13

PART 7—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS 15

22 Form 37AA—freezing order 1523 Form 37BA—search order 16

PART 8—STATUTE LAW REVISION 18

24 Scale of costs amended 18═══════════════

ENDNOTES 19

STATUTORY RULES 2011

S.R. No. 82/2011

County Court Act 1958

County Court (Chapter I Amendment No. 3) Rules 2011

A majority of the Judges of the County Court makes the following Rules:

PART 1—PRELIMINARY

1 Objects

The objects of these Rules are to amend the County Court Civil Procedure Rules 2008—

(a) to revoke the Rule and Form relating to pre-litigation requirements, as a consequence of the repeal of Chapter 3 of the Civil Procedure Act 2010 by the Civil Procedure and Legal Profession Amendment Act 2011;

(b) to address an inconsistency in Rule 27.03 in relation to the fastening of documents;

(c) to update terminology referring to various health practitioners as a consequence of the commencement of the Health Practitioner Regulation National Law (Victoria) Act 2009;

(d) to provide for the transfer of the Family Property Division from the Commercial List to the Damages and Compensation List;

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(e) to further provide for the manner of delivering documents for the purposes of subpoena rules harmonised with like rules in other Australian jurisdictions;

(f) to provide that the forms of freezing orders and search orders harmonised with like rules in other Australian jurisdictions are consistent with the Evidence Act 2008;

(g) to make a statute law revision amendment to the scale of costs.

2 Authorising provisions

These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.

3 Commencement

These Rules come into operation on 1 September 2011.

4 Principal Rules

In these Rules, the County Court Civil Procedure Rules 20081 are called the Principal Rules.

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Part 8—Statute Law Revision

County Court (Chapter I Amendment No. 3) Rules 2011S.R. No. 82/2011

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PART 2—AMENDMENTS RELATING TO PRE-LITIGATION REQUIREMENTS

5 Pre-litigation requirements compliance certification

Rule 4.11 of the Principal Rules is revoked.

6 Form 4C revoked

Form 4C of the Principal Rules is revoked.

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PART 3—AMENDMENTS RELATING TO FORM OF COURT DOCUMENTS

7 Form of document

(1) For Rule 27.03(2)(b) of the Principal Rules substitute—

"(b) the sheets of the document shall be securely fastened—

(i) at the top left hand corner; and

(ii) without obscuring the writing or the margin;".

(2) For Rule 27.03(13) of the Principal Rules substitute—

"(13) A document or copy document which is to be filed shall not be folded.".

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PART 4—AMENDMENTS RELATING TO HEALTH PRACTITIONER TERMINOLOGY

8 Definitions for Order 33 amended

In Rule 33.03 of the Principal Rules—

(a) for the definition of dentist substitute—

"dentist means—

(a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law—

(i) to practise in the dentistry profession (other than as a student); and

(ii) in the dentists division of that profession; or

(b) a person entitled to practise dentistry in a place out of Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise;";

(b) for the definition of medical practitioner substitute—

"medical practitioner means—

(a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); or

(b) a person entitled to practise medicine in a place out of



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Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise;";

(c) for the definition of psychologist substitute—

"psychologist means—

(a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); or

(b) a person who is qualified or registered to practise psychology in a place out of Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise;".

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PART 5—AMENDMENTS RELATING TO THE TRANSFER OF THE FAMILY PROPERTY DIVISION TO THE DAMAGES

AND COMPENSATION LIST

9 Damages and Compensation List

After Rule 34A.03(d) of the Principal Rules insert—

"(da) any proceeding in which orders are sought pursuant to—

(i) the Relationships Act 2008; or

(ii) Part IV of the Administration and Probate Act 1958;".

10 Divisions of Damages and Compensation List

(1) After Rule 34A.04(1)(d) of the Principal Rules insert—

"(da) the Family Property Division;".

(2) After Rule 34A.04(2)(c) of the Principal Rules insert—

"(ca) the Family Property Division;".

(3) After Rule 34A.04(7) of the Principal Rules insert—

"(8) The Family Property Division shall consist of any proceeding referred to in Rule 34A.03(da).".

11 Divisions of Commercial List

In Rule 34A.06 of the Principal Rules, paragraphs (1)(d) and (6) are revoked.

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PART 6—AMENDMENTS RELATING TO SUBPOENAS

12 Form of subpoena

At the foot of Rule 42.03(9) of the Principal Rules insert—"Note

See also Rule 42.10(3) regarding notice and declaration in Form 42B to accompany a subpoena to produce dealing with copies and disposal of documents.".

13 Compliance with subpoena

After Rule 42.06(5) of the Principal Rules insert—

"(6) Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.

(7) The copy of a document may be—

(a) a photocopy; or

(b) in PDF format on a CD-Rom.".

14 Disposal of documents and things produced

After Rule 42.10(2) of the Principal Rules insert—

"(3) The issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 42B.

(4) The addressee must—

(a) complete the notice and declaration referred to in paragraph (3); and

(b) attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.



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(5) Subject to paragraph (6), the Registrar may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.

(6) The Registrar may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

15 Rule 42A.03 amended

(1) In the heading to Rule 42A.03 of the Principal Rules, after "subpoena" insert "and notice to addressee and declaration".

(2) At the end of Rule 42A.03 of the Principal Rules insert—

"(2) The issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 42AB.

(3) The addressee must—

(a) complete the notice and declaration referred to in paragraph (2); and

(b) attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.".



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16 Compliance with subpoena

After Rule 42A.05(2) of the Principal Rules insert—

"(3) If the document is in writing then, unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.

(4) The copy of a document referred to in paragraph (3) may be—

(a) a photocopy; or


17 Rule 42A.12 amended

(1) In the heading to Rule 42A.12 of the Principal Rules, after "Return" insert "or disposal".

(2) After Rule 42A.12(3) of the Principal Rules insert—

"(4) Subject to paragraph (5), the Registrar may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.

(5) The Registrar may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".



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18 Form 42A amended

In the Notes to Form 42A of the Principal Rules, for Note 9 substitute—"9. If the subpoena requires you to produce a document,

you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

9A. The copy of a document may be—

(a) a photocopy; or


19 New Form 42B inserted

After Form 42A of the Principal Rules insert—

"FORM 42B

Rule 42.10(3)

NOTICE TO ADDRESSEE AND DECLARATION

[heading as in originating process]

To: [name of person to whom the subpoena is addressed and who will be the recipient of the subpoena]

of [address]:

You may produce copies of any subpoenaed documents, unless the subpoena specifically requires you to produce originals. A copy of a document may be—

(a) a photocopy; or

(b) in PDF format on a CD-Rom.

You must complete the declaration below, attach it to the subpoena or a copy of the subpoena and return them with the documents or things you provide to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Registrar may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.



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If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.

DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

[tick the relevant option below, provide your address as appropriate, sign and date]

All of the material I am providing to the Court in compliance with the attached subpoena is copies of documents. I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.

Some or all of the material I am providing to the Court in compliance with the attached subpoena is an original document. Once the material is no longer required, all of the material should be returned to me at the following address—

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]

__________________".

20 Form 42AA amended

In the Notes to Form 42AA of the Principal Rules, after Note 4 insert—"Document in writing

4A. In the case of a document in writing, if the subpoena requires you to produce a document, you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

4B. The copy of a document may be—

(a) a photocopy; or




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21 New Form 42AB inserted

After Form 42AA of the Principal Rules insert—

"FORM 42AB

Rule 42A.03(2)

NOTICE TO ADDRESSEE AND DECLARATION

[heading as in originating process]

To: [name of person to whom the subpoena is addressed and who will be the recipient of the subpoena]

of [address]:

You may produce copies of any subpoenaed documents, unless the subpoena specifically requires you to produce originals. A copy of a document may be—

(a) a photocopy; or

(b) in PDF format on a CD-Rom.

You must complete the declaration below, attach it to the subpoena or a copy of the subpoena and return them with the documents or things you provide to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Registrar may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.

DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

[tick the relevant option below, provide your address as appropriate, sign and date]

All of the material I am providing to the Court in compliance with the attached subpoena is copies of



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documents. I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.

Some or all of the material I am providing to the Court in compliance with the attached subpoena is an original document. Once the material is no longer required, all of the material should be returned to me at the following address—

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]

__________________".

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PART 7—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS

22 Form 37AA—freezing order

In Form 37AA of the Principal Rules, for paragraph 9 substitute—

"9. (a) This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i) have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii) are liable to a civil penalty.

(b) This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—



(c) You must—

(i) disclose so much of the information required to be disclosed to which no objection is taken; and

(ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii) file and serve on each other party a separate affidavit setting out the basis of the objection.".



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23 Form 37BA—search order

(1) In Form 37BA of the Principal Rules, for paragraph 21 substitute—"21. (a) This

paragraph 21 applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you—






(c) You must—






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(2) In Form 37BA of the Principal Rules, for paragraph 24 substitute—"24. (a) This paragraph 24 applies if you are not a

corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you—






(c) You must—




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PART 8—STATUTE LAW REVISION

24 Scale of costs amended

In Item 9(a) of Appendix A to the Principal Rules, for "$4138.00" substitute "$438.00".

Dated: 11 August 2011

M. ROZENES, Chief Judge D. L. ALLEN

M. G. McINERNEY P. G. MISSO

P. D. JENKINS K. L. BOURKE

J. R. BOWMAN P. M. E. WISCHUSEN

J. A. SMALLWOOD P. G. LACAVA

S. M. COHEN C. A. THORNTON

M. E. SEXTON F. SACCARDO

M. P. BOURKE M. A. GAMBLE

E. M. GAYNOR H. MASON

J. A. CAMPTON G. P. MULLALY

R. F. PUNSHON T. J. GINNANE

W. A. WILMOTH K. E. KINGS

S. S. DAVIS J. L. PARRISH

D. A. PARSONS M. H. TINNEY

S. E. PULLEN G. T. CANNON

A. J. HOWARD J. F. CARMODY

L. A. HANNAN R. J. H. MAIDMENT

M. D. MURPHY R. H. SMITH

M. E. KENNEDY J. T. DUGGAN═══════════════



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ENDNOTES

Endnotes


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1 Rule 4: S.R. No. 148/2008 as amended by S.R. Nos 182/2009, 184/2009, 185/2009, 145/2010 and 146/2010.

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