County Court (Chapters I, Ii and Iii Miscellaneous Amendments) Rules 2022 (Vic)

County Court (Chapters I, II and III Miscellaneous Amendments) Rules 2022

S.R. No. 90/2022

table of provisions

Rule  Page

Part 1—Preliminary

1Objects

2Authorising provisions

3Commencement

Part 2—Amendment of Chapter I

Division 1—Review by Judge of judicial registrar determinations

4Rule 84.03 substituted

Division 2—Production and retention of documents filed in the Court

5Production of original document

6Retention of original documents

Division 3—Filing of summons

7Form and filing of summons

Division 4—Joinder

8Permissive joinder of parties

Division 5—Correction of typographical error

9Separate execution for costs

Part 3—Amendment of Chapter II

Division 1—Applications for family provision orders

10Application by originating motion

Division 2—Electronic provision of documents

11Production of probate

12Rule 13.10 amended

13New Rule 13.11 inserted

Part 4—Amendment of Chapter III

14Pre-trial hearings

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Endnotes

statutory rules 2022

S.R. No. 90/2022

County Court Act 1958

County Court (Chapters I, II and III Miscellaneous Amendments) Rules 2022

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

Part 1—Preliminary

1Objects

The objects of these Rules are—

(a)to amend Chapter I of the Rules of the County Court—

(i)to make further provision in relation to the reviews of orders of the Court constituted by a judicial registrar;

(ii)to amend provisions relating to the production and retention of documents filed in the Court to reflect that such documents may be created electronically;

(iii)to provide that when an application to a judicial registrar is made by summons, the summons is to be filed with the Registrar;

(iv)to amend Order 9 in relation to permissive joinder of parties to align with both the Rules of the Supreme Court and harmonised rules in other Australian jurisdictions; and

(v)to correct a typographical error in the Rule entitling a person to separate execution to enforce payment of costs; and

(b)to amend Chapter II of the Rules of the County Court—

(i)to remove the provisions that set out what must be stated in an affidavit in support of an application for a family provision order; and

(ii)to provide for the delivery of electronic copies of documents if a family provision order is made in favour of a plaintiff; and

(c)to amend Chapter III of the Rules of the County Court to enable judicial registrars to grant leave permitting the taking of certain evidence at a pre-trial hearing before the Court constituted by a judicial registrar.

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 25 October 2022.

Part 2—Amendment of Chapter I

Division 1—Review by Judge of judicial registrar determinations

4Rule 84.03 substituted

For Rule 84.03 of the County Court Civil Procedure Rules 2018[1] substitute—

"84.03   Review by Judge of judicial registrar determinations

(1)In this Rule, a reference to a determination includes a reference to a judgment, a direction or an order.

(2)This Rule does not apply to a determination of the Court constituted by a judicial registrar under Order 2A of Chapter III of the Rules of the County Court.

Note

Rule 2A.29 of Chapter III of the Rules of the County Court provides for a review of such a determination.

(3)A determination of the Court constituted by a judicial registrar may be reviewed by the Court constituted by a Judge, on the motion of the Court constituted by a Judge or on application by a party to the proceeding.

(4)An application under paragraph (3) shall be made by notice filed with the Court, stating—

(a)whether the whole or part only of the determination is the subject of the review;

(b)if part only of the determination is the subject of the review, which part;

(c)briefly, the grounds on which the review is sought; and

(d)what determination is sought in place of the determination that is the subject of the review.

(5)A copy of the notice under paragraph (4) shall be served on each other party to the proceeding within 14 days after the date of the determination.

(6)A review under this Rule—

(a)shall be conducted by way of hearing de novo; and

(b)accordingly, is not limited by reference to—

(i)the grounds specified in the application in accordance with paragraph (4)(c); or

(ii)the reasons given by the judicial registrar.

(7)In conducting a review in accordance with this Rule, the Court constituted by the Judge may—

(a)exercise all the powers and discretions of the Court with respect to the subject matter of the review; and

(b)confirm, set aside or vary the determination of the Court constituted by the judicial registrar or make such further or other determination as may be necessary or as the case requires.

(8)On the review, each party may, subject to any proper objections to admissibility—

(a)rely upon—

(i)any affidavit used before the judicial registrar; and

(ii)a transcript of any evidence given orally before the judicial registrar; and

(b)by leave of the court, rely upon—

(i)in accordance with paragraph (9), an audio or audio visual recording of any evidence given orally before the judicial registrar; and

(ii)any affidavit or oral evidence not used or given before the judicial registrar.

(9)If a party seeks to rely on evidence given orally before the judicial registrar, the Judge may refer to an audio or audio visual recording of that evidence (rather than only the transcript of that evidence) if the Judge considers that it is appropriate to do so in order to assess the witness's credibility.

(10)Except so far as the Court constituted by a Judge otherwise orders, a review under this Rule shall not operate as a stay of execution or of proceedings under the determination of the Court constituted by the judicial registrar to which the review relates.".

Division 2—Production and retention of documents filed in the Court

5Production of original document

(1)In Rule 28.15(1) of the County Court Civil Procedure Rules 2018 omit "paper".

(2)In Rule 28.15(2) of the County Court Civil Procedure Rules 2018, for "paper version" substitute "original version".

6Retention of original documents

In Rule 28.16(2) of the County Court Civil Procedure Rules 2018 omit "paper" (where twice occurring).

Division 3—Filing of summons

7Form and filing of summons

In Rule 46.04(2)(a) of the County Court Civil Procedure Rules 2018, for "a Judge or an associate judge," substitute "a Judge, an associate judge or a judicial registrar,".

Division 4—Joinder

8Permissive joinder of parties

In Rule 9.02(a)(i) of the County Court Civil Procedure Rules 2018, for "proceedings; and" substitute "proceedings; or".

Division 5—Correction of typographical error

9Separate execution for costs

In Rule 68.03 of the County Court Civil Procedure Rules 2018, for "execution to endorse" substitute "execution to enforce".

Part 3—Amendment of Chapter II

Division 1—Applications for family provision orders

10Application by originating motion

Rule 13.03(3) of the County Court Miscellaneous Rules 2019[2] is revoked.

Division 2—Electronic provision of documents

11Production of probate

At the end of Rule 13.09 of the County Court Miscellaneous Rules 2019 insert—

"(2)This Rule does not apply to a grant of representation of a deceased's estate granted on or after 15 April 2020.

Note

On and after 15 April 2020, grants of representation will be issued in RedCrest-Probate: see Order 1A of Chapter III of the Rules of the Supreme Court.".

12Rule 13.10 amended

(1)In the heading to Rule 13.10 of the County Court Miscellaneous Rules 2019, after "plaintiff" insert "before 15 April 2020".

(2)After Rule 13.10(3) of the County Court Miscellaneous Rules 2019 insert—

"(4)This Rule applies to any order made in respect of a grant of representation made before the commencement of Part 2 of the Supreme Court (Probate E-filing and Other Amendments) Rules 2019.".

13New Rule 13.11 inserted

After Rule 13.10 of the County Court Miscellaneous Rules 2019 insert—

"13.11   Procedure after order for plaintiff on or after 15 April 2020

(1)This Rule applies to any order made in respect of a grant of representation made on or after the commencement of Part 2 of the Supreme Court (Probate E-Filing and Other Amendments) Rules 2019.

(2)If an order is made in favour of a plaintiff, the Registrar shall provide to the Registrar of Probates an electronic copy of the authenticated order.".

Part 4—Amendment of Chapter III

14Pre-trial hearings

(1)In Rule 2A.2(4)(f) of the County Court Criminal Procedure Rules 2019,[3] for "Act;" substitute "Act, except as described in paragraph (6);".

(2)After Rule 2A.2(5) of the County Court Criminal Procedure Rules 2019 insert—

"(6)Nothing in paragraph (4)(f) prevents the judicial registrar from exercising the power of the Court to grant leave under section 342 of the Act in respect of cross-examination and re-examination under section 198A or 198B of the Act at a pre-trial hearing before the Court constituted by a judicial registrar.".

Dated:   26 September 2022

PETER KIDD, Chief Judge	C. M. QUIN
M. E. SEXTON	SARA HINCHEY
S. S. DAVIS	A. J. CHAMBERS
F. P. HAMPEL	SAMANTHA L. MARKS
J. G. MORRISH	GREGORY LYON
K. L. BOURKE	TED WOODWARD
P. M. E. WISCHUSEN	C. R. GWYNN
FRANK GUCCIARDO	D. A. TRAPNELL
MARK GAMBLE	A. M. RYAN
GERARD MULLALY	P. J. F. HIGHAM
MICHAEL H. TINNEY	T. E. WRAIGHT
G. CANNON	P. R. RIDDELL
P. COSGRAVE	MICHAEL CAHILL
G. F. MEREDITH	S. DAWES
S. JOHNS	JULIE CLAYTON
D. A. SEXTON	A. ROBERTSON
P. J. GINNANE	M. DEMPSEY
ELIZABETH BRIMER	S. BURCHELL
G. A. GEORGIOU	P. TIWANA
A. S. PILLAY	KATE HAWKINS
R. E. CARLIN	S. BAYLES
KEVIN DOYLE	DANIEL P. HOLDING
JOHN CAIN	ANGELA ELLIS
F. L. DALZIEL	ANDREW FRAATZ
S. LEIGHFIELD	MARIA TSIKARIS
DAVID J. N. PURCELL	SIMON MOGLIA
F. H. TODD	GARY CLARK
MY ANH TRAN	CAITLIN ENGLISH
J. VANDERSTEEN	PETER ROZEN

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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 and 158/2021.

[2] Rule 10: S.R. No. 28/2019.

[3] Rule 14: S.R. No. 126/2019 as amended by S.R. Nos 16/2020 and 98/2021.