County Court (Chapters I and III Confidential Communications and Protected Health Information Amendment) Rules 2023 (Vic)

County Court (Chapters I and III Confidential Communications and Protected Health Information Amendment) Rules 2023

S.R. No. 77/2023

table of provisions

Rule  Page

Part 1—Preliminary

1Object

2Authorising provisions

3Commencement

Part 2—Amendment of Chapter I

4New Order 41B inserted

5New Forms 41BA and 41BB inserted

Part 3—Amendment of Chapter III

6New Order 5A inserted

7New Forms 5BB, 5BC and 5BD inserted

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Endnotes

statutory rules 2023

S.R. No. 77/2023

County Court Act 1958

County Court (Chapters I and III Confidential Communications and Protected Health Information Amendment) Rules 2023

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

PART 1—PRELIMINARY

1Object

The object of these Rules is to amend Chapters I and III of the Rules of the County Court to provide for applications for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958.

2Authorising provisions

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

3Commencement

These Rules come into operation on 14 August 2023.

PART 2—AMENDMENT OF CHAPTER I

4New Order 41B inserted

After Order 41A of the County Court Civil Procedure Rules 2018[1] insert—

"ORDER 41B—APPLICATION FOR LEAVE IN RELATION TO CONFIDENTIAL COMMUNICATION

41B.01Form of notice of application for leave

For the purposes of section 32CA(1) of the Evidence (Miscellaneous Provisions) Act 1958, notice of an application for leave under section 32C(1) of that Act shall be in Form 41BA.

41B.02Service

(1)In addition to the persons on whom notice is required to be served under section 32CA(1) of the Evidence (Miscellaneous Provisions) Act 1958, a person who makes an application for leave under section 32C(1) of that Act shall serve notice on the protected person (within the meaning of section 32B(1) of that Act).

(2)The applicant shall serve notice under paragraph (1) not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.

41B.03Declaration by proposed recipient of subpoena

If the Court makes an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958 and the proposed recipient of the subpoena physically produces the document, the proposed recipient of the subpoena must complete the declaration attached to the order in Form 41BB.

41B.04Disposal of documents produced by proposed recipient of subpoena

(1)This Rule applies if, in compliance with an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958, the proposed recipient of the subpoena produces the document.

(2)If the Court does not grant leave to compel the production of the document under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958, the Registrar may cause to be destroyed after the expiry of three days from the determination of the application for leave all—

(a)the electronic copies of documents produced in compliance with the order; or

(b)the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies.

(3)Subject to paragraph (4), if the Court does grant leave to compel the production of the document under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958, the Registrar may cause to be destroyed after the expiry of four months from the conclusion of the proceeding all—

(a)the electronic copies of documents produced in compliance with the order; or

(b)the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies.

(4)The Registrar may cause to be destroyed the electronic copies and documents referred to in paragraph (3) which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

5New Forms 41BA and 41BB inserted

After Form 41AA of the County Court Civil Procedure Rules 2018 insert—

"Form 41BA—Notice of intention to apply for leave in relation to confidential communication

Rule 41B.01

[heading as in originating process]

NOTICE OF INTENTION TO APPLY FOR LEAVE IN RELATION TO CONFIDENTIAL COMMUNICATION

(Section 32CA(1) of the Evidence (Miscellaneous Provisions) Act 1958)

To [name]

of [address]

I, [name of applicant]                

intend to apply on [date] at [time] in the County Court, 250 William Street, Melbourne for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958:

*to issue a subpoena for the production of a document which may contain

*to produce a document which may disclose

*to adduce evidence of, or to adduce a document which may record,

a confidential communication (as defined in section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958).

The nature of the confidential communication sought to be produced or adduced is: [provide details]

The matters to be taken into account to determine whether leave should be granted are as set forth in section 32D of the Evidence (Miscellaneous Provisions) Act 1958.

*You are not required to produce the document which may contain a confidential communication unless the Court makes an order under section 32C(1)(a) or 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958.

Date:

[Signature]

NOTE:

This notice duly completed must be served upon:

·each other party to the proceeding; and

·the medical practitioner or counsellor (as the case requires, if not a party); and

·the protected person

not less than 14 days before the date for the hearing of the application.

*Delete if not applicable.

Form 41BB—Declaration by proposed recipient of the subpoena—physical production

Rule 41B.03

[heading as in originating process]

DECLARATION BY PROPOSED RECIPIENT OF THE SUBPOENA—PHYSICAL PRODUCTION

You must complete the declaration below if the Court makes an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958 requiring you to produce the document to the Court and you physically produce the document. The completed declaration must accompany the documents you produce to the Court in compliance with the order.

If you declare that the material you produce is copies of documents, the Registrar may, without further notice to you, destroy the copies—

(a)if leave is not granted by the Court under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 to compel you to produce a document containing a confidential communication, after the expiry of three days from the determination of the application for leave; or

(b)if leave is granted by the Court under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 to compel you to produce a document containing a confidential communication, after the expiry 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 you declare that the material you produce 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.

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

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

£Some original documents
Some or all of the material I am providing in compliance with the order of the Court 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 proposed recipient]

[name of proposed recipient]".

PART 3—AMENDMENT OF CHAPTER III

6New Order 5A inserted

After Order 5 of the County Court Criminal Procedure Rules 2019[2] insert—

"ORDER 5A—EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

5A.01Application of Order

This Order applies to a criminal proceeding.

5A.02Form of notice of application for leave

For the purposes of section 32CC(1) of the Evidence (Miscellaneous Provisions) Act 1958, notice of an application for leave under section 32C(1) of that Act shall be in Form 5BB.

5A.03Form of notice to protected person

For the purposes of section 32CD(3)(b) of the Evidence (Miscellaneous Provisions) Act 1958, notice referred to under section 32CD(1) of that Act shall be in Form 5BC.

5A.04Declaration by proposed recipient of subpoena

If the Court makes an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958 and the proposed recipient of the subpoena physically produces the document, the proposed recipient of the subpoena must complete the declaration attached to the order in Form 5BD.

5A.05Disposal of documents produced by proposed recipient of subpoena

(1)This Rule applies if the proposed recipient of the subpoena produces the document in compliance with an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958.

(2)If the Court does not grant leave to compel the production of the document under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958, the Registrar may cause to be destroyed after the expiry of three days from the determination of the application for leave all—

(a)the electronic copies of documents produced in compliance with the order; or

(b)the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies.

(3)Subject to paragraph (4), if the Court does grant leave to compel the production of the document under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958, the Registrar may cause to be destroyed after the expiry of four months from the conclusion of the proceeding all—

(a)the electronic copies of documents produced in compliance with the order; or

(b)the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies.

(4)The Registrar may cause to be destroyed the electronic copies and documents referred to in paragraph (3) which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

7New Forms 5BB, 5BC and 5BD inserted

After Form 5H of the County Court Criminal Procedure Rules 2019 insert—

"Form 5BB—Notice of intention to apply under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958

Rule 5A.02

IN THE COUNTY COURT   CASE No.:

OF VICTORIA

AT

IN THE MATTER OF:

NOTICE OF INTENTION TO APPLY UNDER SECTION 32C(1) OF THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

THIS FORM IS FILED ON BEHALF OF:

ADDRESS:

THIS MATTER IS NEXT LISTED ON: [date] FOR [type of hearing]

CONTACT DETAILS

[If represented, please complete the legal practitioner details below]

Contact no.:  Email address:

Address for service:

*I have legal representation [complete below]

*I do not have legal representation

*I represent the applicant

Firm:  Practitioner's name:

Solicitor code:  Ref.:

To: [name]

of [address]

I, [name of applicant]

intend to apply on [date] at [time] in the County Court, 250 William Street, Melbourne for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958:

*to issue a subpoena for the production of a document which may contain

*to produce a document which may disclose

*to adduce evidence of, or to adduce a document which may record,

*a confidential communication (as defined in section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958)/*protected health information (as defined in section 32BA of the Evidence (Miscellaneous Provisions) Act 1958).

The nature of the *confidential communication/*protected health information sought to be produced or adduced is:

[provide details]

The matters to be taken into account to determine whether leave should be granted are as set forth in section 32D of the Evidence (Miscellaneous Provisions) Act 1958.

*You are not required to produce the document which may contain *a confidential communication/*protected health information unless the Court makes an order under section 32C(1)(a) or 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958.

Date:

[signature of applicant]

NOTE:

This notice must be served on:

·each other party to the proceeding;

·the informant;

·if the notice relates to a confidential communication, the medical practitioner or counsellor (as the case requires, if not a party);

·if the notice relates to protected health information, whichever of the following entities the applicant for leave considers appropriate—

·the person who recorded or collected the information (or, if the information is an opinion, formed that opinion);

·if the information is held by an organisation, that organisation

not less than 14 days before the date for the hearing of the application.

*Delete if not applicable.

Form 5BC—Notice to protected person of application for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958

Rule 5A.03

IN THE COUNTY COURT   CASE No.:

OF VICTORIA

AT

IN THE MATTER OF:

NOTICE TO PROTECTED PERSON OF APPLICATION FOR LEAVE UNDER SECTION 32C(1) OF THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

NOTICE IS GIVEN BY:

ADDRESS:

THIS MATTER IS NEXT LISTED ON: [date] FOR [type of hearing]

CONTACT DETAILS

Contact no.:  Email address:

[name of applicant] intends to apply on [date] at [time] in the County Court at [venue] for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958:

*to issue a subpoena for the production of a document which may contain

*to produce a document which may disclose

*to adduce evidence of, or to adduce a document which may record,

*a confidential communication (as defined in section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958) that you have made/*protected health information (as defined in section 32BA of the Evidence (Miscellaneous Provisions) Act 1958) about you.

The nature of the *confidential communication/*protected health information sought to be produced or adduced is:

[provide details]

The matters to be taken into account to determine whether leave should be granted are as set forth in section 32D of the Evidence (Miscellaneous Provisions) Act 1958.

You are entitled to:

·appear in person at court on the hearing of the application for leave;

·make submissions to the Court about the application;

·provide the court with a confidential statement (in the form of an affidavit) that describes the harm that is likely to be caused to you if the application is granted.

If you provide the Court with a confidential statement, the Court must not make any part of it available to any person other than you or your legal representative unless the Court considers that it is in the interests of justice to do so.

If you wish to appear in person at court to be heard on the application, please contact:

*[if Judge or judicial registrar has been allocated] the presiding *Judge/*judicial registrar, [name], by email at [email].

*[if no Judge or judicial registrar has been allocated] the Criminal

Registry by either calling [phone] or by email at [email protected].

If you intend to provide the Court with a confidential statement, it must be filed with the Court by emailing a copy of the confidential statement, no later than [date that is two days before the hearing of the application].

*[if Judge or judicial registrar has been allocated] The statement must be provided to the presiding *Judge/*judicial registrar, [name], by email at [email].

*[if no Judge or judicial registrar has been allocated] You will need to contact the Criminal Registry by either calling [phone] or by email at [email protected] to obtain an email address to which the statement is to be sent.

If you provide the Court with a confidential statement, please use the following as the subject line of the email: 'Case Number [case number] - Confidential Statement of the Protected Person'.

You may wish to consider whether to obtain legal advice in relation to the application.

·

If you do not have a lawyer, the Law Institute of Victoria can assist in connecting you through the 'Find Your Lawyer' referral service. The Find Your Lawyer Referral telephone service operates

9 a.m. to 5 p.m. Monday to Friday and can be reached by calling

03 9607 9550. For further information visit

·

Victoria Legal Aid (VLA) can provide preliminary assistance through their Legal Help referral service. The Legal Help service operates

8 a.m. to 6 p.m. Monday to Friday and can be reached by calling

1300 972 387, or you may leave a message via the 'Legal Help Chat' function that can be accessed through VLA's website by visiting you may wish to seek assistance through your local community legal centre. The Federation of Community Legal Centres (Vic) ('FCLC') can assist finding your local centre and how to contact them for an appointment. The FCLC can be reached by calling [phone]. For more information visit align="right">[signature]

*Delete if not applicable.

Form 5BD—Declaration by proposed recipient of the subpoena—physical production

Rule 5A.04

IN THE COUNTY COURT   CASE No.:

OF VICTORIA

AT

IN THE MATTER OF:

DECLARATION BY PROPOSED RECIPIENT OF THE SUBPOENA—PHYSICAL PRODUCTION

You must complete the declaration below if the Court makes an order under section 32CF(1) of the Evidence (Miscellaneous Provisions) Act 1958 requiring you to produce the document to the Court and you physically produce the document. The completed declaration must accompany the documents you produce to the Court in compliance with the order.

If you declare that the material you produce is copies of documents, the Registrar may, without further notice to you, destroy the copies—

(a)if leave is not granted by the Court under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 to compel you to produce a document containing *a confidential communication/*protected health information, after the expiry of three days from the determination of the application for leave; or

(b)if leave is granted by the Court under section 32C(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 to compel you to produce a document containing *a confidential communication/*protected health information, after the expiry 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 you declare that the material you produce 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.

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

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

£Some original documents
Some or all of the material I am providing in compliance with the order of the Court 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 proposed recipient]

[name of proposed recipient]".

Dated: 27 July 2023

PETER KIDD, Chief Judge	M G O'CONNELL
M. E. SEXTON, Deputy Chief Judge	A M RYAN
J G MORRISH	P J F HIGHAM
K L BOURKE	P R RIDDELL
P M E WISCHUSEN	MICHAEL CAHILL
FRANK GUCCIARDO	S. DAWES
MARK GAMBLE	S. JOHNS
MICHAEL H. TINNEY	MARTINE MARICH
G CANNON	ELIZABETH BRIMER
P COSGRAVE	G A GEORGIOU
C M QUIN	A S PILLAY
SARA HINCHEY	R E CARLIN
A J CHAMBERS	ANNE HASSAN
SAMANTHA L MARKS	KEVIN DOYLE
GREGORY LYON	JOHN CAIN
D A TRAPNELL	F. L. DALZIEL
S LEIGHFIELD	NOLA KARAPANAGIOTIDIS
DAVID J. N. PURCELL	DANIEL P HOLDING
MY ANH TRAN	ANDREW FRAATZ
J VANDERSTEEN	MARIA TSIKARIS
JULIE CLAYTON	SIMON MOGLIA
M DEMPSEY	GARY CLARK
S BURCHELL	CAITLIN ENGLISH
P TIWANA	A M MAGEE
KATE HAWKINS	B A MYERS
K BLAIR	ROBYN L HARPER

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ENDNOTES

[1] Rule 4: S.R. No. 170/2018 as amended by S.R. Nos 29/2019, 69/2019, 106/2019, 142/2019, 16/2020, 27/2020, 28/2021, 158/2021, 99/2022 and 131/2022.

[2] Rule 6: S.R. No. 126/2019 as amended by S.R. Nos 16/2020, 98/2021, 90/2022 and 16/2023.