District Court Amendment Rules 2011 (WA)

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17 June '2011 GOVERNMENT GAZETTE, WA 2153
JUSTICE
J U302*
District Court of Western Australia Act 1969

District Court Amendment Rules 2011

Made by the Judges of the District Court.
1.            Citation
These rules are the District Court Amendment Rules 2011.
2.            Commencement
These rules come into operation as follows —

(a) rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b) the rest of the rules — on the day after the day on which these rules are published in the Gazette.
3.            Rules amended
These rules amend the District Court Rules 2005.
4.            Rule 23A inserted
At the end of Part 3 Division 4 insert:

23A. Affidavits, form of
An affidavit filed in the Court may be in the form of
Form 1A.

Act 2010 section 5.

5. Rule 61 amended
In rule 61(2)(b):

(a) in subparagraph (iii) delete "Court." and insert:
Court;

(b) after subparagraph (iii) insert:
(iv) the hearing of an application made
under the Prohibited Behaviour Orders

2154

GOVERNMENT GAZETTE, WA

17 June 2011

6. Part 10A inserted
After Part 9 insert:
Part 10A - Prohibited Behaviour Orders

Act 2010 rules

71A. Terms used

(1) In this Part, unless the contrary intention appears -
Act means the Prohibited Behaviour Orders Act 2010;
section means a section of the Act.
(2) If a term used in this Part is defined in the Act, it has
the same meaning in this Part as it has in the Act,
unless the contrary intention appears.

71B. Application under Act s. 5, how to make
(1) Before making an application under section 5 for a
PBO, the prosecutor must -

(a)

complete a Form 4 in accordance with subrule (2); and

(b)

submit the original and 2 copies of the completed Form 4 to a registry; and

(c)

after the registry returns those documents bearing the hearing details and the Court's seal, retain them until the application is made under subrule (3).

(2) An application for a PBO must state the following -

(a)

the constraints the applicant wants the Court to specify in the PBO under section 10;
(b) the period of the PBO the applicant wants the

Court to specify in the PBO under section 12.

(3) To make an application under section 5 for a PBO, the

prosecutor must -

(a)

give the original of a sealed Form 4, completed in accordance with this rule, to the Judge presiding at the hearing at which the accused person (the respondent) is to be sentenced; and

(b)

give a copy of that document to the respondent personally at that hearing.

(4) As soon as practicable after an application made under

section 5 is adjourned, a Registrar must give the
respondent a copy of it in accordance with section 33.

(5) Within 14 days after the date on which an application
for a PBO is made, the applicant must file and serve an
affidavit in support of the application.

17 June 2011 GOVERNMENT GAZETTE, WA 2155
(6) Unless the Court permits otherwise, the supporting

affidavit must state the following -

(a)

details of the respondent's Convictions of relevant offences on which the applicant relies to allege the respondent is a person described in section 8(2)(a);

(b)

if any such conviction is of a relevant offence that is not a prescribed offence, the material facts of the offence;

(c)

details of the matters listed in section 9(3)(a), (c), (e) and (f);

(d)

any other facts on which the applicant intends to rely in support of the application.
(7) Unless the Court permits otherwise, the supporting
affidavit must refer to and have attached to it each of
these documents -

(a) the respondent's criminal record;

(b)

any order referred to in section 9(3)(d) that is in force against the respondent;

(c)

any order listed in section 10(7) that is in force against the respondent.

71C. Application under Act s. 21, how to make

To make an application under section 21 to vary or cancel a PBO, a person must file the original and 2 copies of—

(a) a completed Form 5; and
(b) an affidavit in support of the application.

71D. Responding to applications

(1) The respondent to an application made under section 5

or 21 may file an affidavit in response to the affidavit
filed in support of the application.

(2) Any such affidavit must be -

(a)

filed within 21 days after the date on which the respondent is served with the affidavit filed in support of the application; and

(b)

served on the applicant at least 5 clear days before the hearing of the application.

71E. Corrected PBO, registrar's duties as to

If a PBO is corrected under section 25, a registrar must cause a copy of the corrected PBO to be given -

(a) to each party to the PBO proceedings; and
(b) to the Commissioner of Police.

2156

GOVERNMENT GAZETTE, WA

17 .June 2011

7. Schedule I amended

(1) At the beginning of Schedule 1 insert:

1A. Affidavit (r. 23A)

District Court of Western Australia

Appeal No: Affidavit'
Parties
Person making
affidavit
Date made
Purpose 2

Filed by [Party]
Index

Contents Page

1. Affidavit of Vincent van Gogh I
2. Attachment VVG 1—MJ Citizen's birth 7
certificate

3. Attachment VVG 2—Letter from J Smith to 8
T,Jones dated 3 March 1999

Page 1

I, [name, address and occupation ofperson making the affidavit],
[insert words of oath or affirmation in accordance with the Oaths, Affidavits
and Statutory Declarations Act 2005] as follows -
I.      [insert content of affidavit in numbered paragraphs]
2. the presence of an authorised witness at [place] on [date].
Authorised witness
[Name of authorised witness]
[Qualification of authorised witness]
Notes to Form 1A -
1.     The affidavit must comply with the RSC Order 37.
2.     Example: To support summons by plaintiff dated 1 May 2010 for summary judgment.
3.     The index must comply with the RSC Order 37 rule 2(7). Form IA contains in italics an example of an index.
4.      Page 1 must be on a separate sheet of paper from the above.
5.     The Oaths, Affidavits and Statutory Declarations Act 2005 Part 3 sets out the requirements for affidavits and who are authorised witnesses for affidavits.

(2) In Schedule 1 after Form 3 insert:
4. Prohibited Behaviour Orders Act 2010 s. 5 application
(r. 71B)

District Court of Western Australia No:
Prohibited Behaviour Orders Act 2010 s. 5 Application for prohibited
behaviour order.
Hearing notice

17 June 2011 GOVERNMENT GAZETTE, WA 2157
Applicant
Respondent

Application

The applicant applies under the Prohibited Behaviour Orders Act 2010 section 5 for a prohibited behaviour order (PRO) against the respondent.
Proposed PBO ) The applicant applies for the following constraints in the
PBO against the respondent -

The applicant applies for the PBO for a period of [state period].'

Signature of Date:
applicant or

lawyer Applicant/Applicant's lawyer
Hearing details 2

This application will be heard at this date, Court seal:
time and place -

Date: Time:
Place:
Note to Form 4-
1.     The period stated here must comply with the Prohibited
Behaviour Orders Act 2010 s. 12.
2.     The Court will complete this row when the application is submitted.

5. Prohibited Behaviour Orders Act 2010 s. 21 application
(r. 71C)

District Court of Western Australia No:

Prohibited Behaviour Orders Act 2010 S. 21

Application to vary or cancel prohibited behaviour order. Hearing notice

PBO's details Date made:
Constrained person:
Applicant
Respondent
Application The applicant applies under the Prohibited Behaviour
Orders Act 2010 section 21 to 'vary/cancel the above PRO
(prohibited behaviour order).
wanted 2 Variation(s) 1.
Grounds for 1.

application

Signature of Date:
applicant or

lawyer Applicant/Applicant's lawyer
Hearing details

This application will be heard at this date, Court seal:
time and place -

Date: Time:
Place:
Notes to Form 5 -
1.     Delete the inapplicable.
2.      Omit this row if the application is to cancel a PBO.
3.     Set out the grounds in numbered paragraphs.
4.      The Court will complete this row when the application is filed.

2158

GOVERNMENT GAZETTE, WA

17 June 2011

Dated: 10 May 2011.
Judges' signatures:

Chief Judge P D Martino Judge M J Bowden
Senior Judge M A Yeats Judge A M I Schoombee
Judge H J Wisbey Judge C P Stevenson
Judge S M Deane (QC) Judge S G Scott
Judge P R Eaton Judge F C E Davis
Judge P P McCann Judge P B O'Neal
Judge J A Wager Judge S E Stone
Judge A S Stavrianou Judge J G Staude
Judge T D Sweeney Judge R E Birmingham (QC)
Judge B J H Goetze Judge A S Derrick
Judge R E Keen

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District Court Amendment Rules 2011 (WA)

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(a)	rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b)	the rest of the rules — on the day after the day on which these rules are published in the Gazette.

23A.	Affidavits, form of
An affidavit filed in the Court may be in the form of Form 1A.

(1)	In this Part, unless the contrary intention appears - Act means the Prohibited Behaviour Orders Act 2010; section means a section of the Act.
(2)	If a term used in this Part is defined in the Act, it has the same meaning in this Part as it has in the Act, unless the contrary intention appears.
71B.	Application under Act s. 5, how to make

(a)	complete a Form 4 in accordance with subrule (2); and
(b)	submit the original and 2 copies of the completed Form 4 to a registry; and
(c)	after the registry returns those documents bearing the hearing details and the Court's seal, retain them until the application is made under subrule (3).

(a)	the constraints the applicant wants the Court to specify in the PBO under section 10;
(b)	the period of the PBO the applicant wants the

(a)	give the original of a sealed Form 4, completed in accordance with this rule, to the Judge presiding at the hearing at which the accused person (the *respondent)* is to be sentenced; and
(b)	give a copy of that document to the respondent personally at that hearing.

(a)	details of the respondent's Convictions of relevant offences on which the applicant relies to allege the respondent is a person described in section 8(2)(a);
(b)	if any such conviction is of a relevant offence that is not a prescribed offence, the material facts of the offence;
(c)	details of the matters listed in section 9(3)(a), (c), (e) and (f);
(d)	any other facts on which the applicant intends to rely in support of the application.

(a)	the respondent's criminal record;
(b)	any order referred to in section 9(3)(d) that is in force against the respondent;
(c)	any order listed in section 10(7) that is in force against the respondent.

71C.	Application under Act s. 21, how to make
To make an application under section 21 to vary or cancel a PBO, a person must file the original and 2 copies of—

(a)	a completed Form 5; and
(b)	an affidavit in support of the application.

71D.	Responding to applications
(1)	The respondent to an application made under section 5

(a)	filed within 21 days after the date on which the respondent is served with the affidavit filed in support of the application; and
(b)	served on the applicant at least 5 clear days before the hearing of the application.

71E.	Corrected PBO, registrar's duties as to
If a PBO is corrected under section 25, a registrar must cause a copy of the corrected PBO to be given -

(a)	to each party to the PBO proceedings; and
(b)	to the Commissioner of Police.

3.	Attachment VVG 2—Letter from J Smith to	8
T,Jones dated 3 March 1999

Chief Judge P D Martino	Judge M J Bowden
Senior Judge M A Yeats	Judge A M I Schoombee
Judge H J Wisbey	Judge C P Stevenson
Judge S M Deane (QC)	Judge S G Scott
Judge P R Eaton	Judge F C E Davis
Judge P P McCann	Judge P B O'Neal
Judge J A Wager	Judge S E Stone
Judge A S Stavrianou	Judge J G Staude
Judge T D Sweeney	Judge R E Birmingham (QC)
Judge B J H Goetze	Judge A S Derrick
Judge R E Keen