Supreme Court (Chapter I Amendment No. 10) Rules 1999 (Vic)

Supreme Court (Chapter I Amendment No. 10)

Rules 1999

S.R. No. 96/1999

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Amendment of title	2
6.	Offer of compromise	2
7.	Costs consequences	3
8.	New Rule 26.11	3
26.11 Transitional	4
9.	Offer to compromise on appeal	4
10.	Medical and hospital reports	5
11.	Revocation of Rule 33.09(1)	8
12.	Amendment of Rule 33.11	8
13.	Amendment of Rule 44.02(2)	9
14.	Statement of expert evidence	9
15.	WorkCover appeals	9
16.	Leave to issue warrant	9
17.	Masters' authority	10

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NOTES 11

i

STATUTORY RULES 1999

S.R. No. 96/1999

Supreme Court Act 1986

Supreme Court (Chapter I Amendment No. 10)

Rules 1999

The Judges of the Supreme Court make the following Rules:

1. Object

The object of these Rules is to amend the provisions in the Principal Rules concerning—

(a) the title to Chapter I;

(b) offers of compromise;

(c) medical reports, hospital reports and expert witness statements—

and to make other miscellaneous amendments.

2. Authorising provisions

These Rules are made under section 25 of the powers.

3. Commencement

These Rules come into operation on 1 September

1999.

4. Principal Rules

In these Rules, Chapter I of the Rules of the
Supreme Court1 is called the Principal Rules.

Supreme Court (Chapter I Amendment No. 10) Rules 1999

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5. Amendment of title

(1) The title of the General Rules of Procedure in

Civil Proceedings 19962 is changed to "Supreme

Court (General Civil Procedure) Rules 1996".

(2) For Rule 1.01 of the Principal Rules substitute—

"1.01 Title

These Rules constitute Chapter I of the Rules
of the Supreme Court and are entitled the
Supreme Court (General Civil Procedure)

Rules 1996.".

6. Offer of compromise

For Rule 26.02 of the Principal Rules substitute—

"26.02 Application

(1) The plaintiff and the defendant may in

respect of any claim in a proceeding serve on
one another an offer of compromise on the
terms specified in the offer.

(2) An offer of compromise in respect of a claim

may be on terms that take into account any
other claim between the plaintiff and the
defendant made in the proceeding.

(3) An offer of compromise shall—

(a)	be in writing and prepared in accordance with Rules 27.02 to 27.04; and
(b)	contain a statement to the effect that it is served in accordance with this Order.".

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7. Costs consequences

(1) In Rule 26.08 of the Principal Rules, for

paragraph (2) substitute—
"(2) Where an offer of compromise is made by a

plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less

favourable to him than the terms of the offer,
then, unless the Court otherwise orders, the

plaintiff shall be entitled—

(a)	if the claim of the plaintiff is for damages for or arising out of death or bodily injury, to an order against the defendant for his costs in respect of the claim taxed on a solicitor and client basis;
(b)	in the case of any other claim of the plaintiff, to an order against the defendant for his costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis and for his costs thereafter taxed on a solicitor and client basis.".

(2) In Rule 26.08 of the Principal Rules, after

paragraph (7) insert—

"(8) Where the plaintiff obtains judgment for the

recovery of a debt or damages, and the of a genuine compromise.".

amount of the debt or the damages was not in
dispute, but only the question of liability,
paragraph (2) shall not apply unless the

8. New Rule 26.11

Supreme Court (Chapter I Amendment No. 10) Rules 1999

S.R. No. 96/1999

After Rule 26.10 of the Principal Rules insert—

"26.11 Transitional

This Order as in force immediately before 1 September 1999 continues to apply to—

(a)	an offer of compromise served under Part 2 of this Order; and
(b)	an offer to compromise served under Part 3 of this Order—

before that date.".

9. Offer to compromise on appeal

In Order 26 of the Principal Rules, for Part 3 substitute—

"PART 3—OFFER TO COMPROMISE ON

APPEAL

26.12 Appeal to Court of Appeal

(1) Where notice of appeal to the Court of

Appeal has been served, a party may serve on another party an offer to compromise the appeal on the terms specified in the offer.

(2) The offer to compromise may be on terms

that take into account any cross-appeal.

(3) Where on an appeal—

(a)	a party has made an offer in writing to the other party (whether or not expressed to be without prejudice) to compromise the appeal on the terms specified in the offer;
(b)	the offer was open to be accepted for a reasonable time, but was not accepted; and

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S.R. No. 96/1999 r. 10

(c) the party making the offer obtains an order on the appeal no less favourable to that party than the terms of the offer—

the Court of Appeal shall take those matters, and also the stage of the appeal at which the offer was made, into account in determining what order for costs to make in respect of the appeal.

(4) The Court of Appeal may, in exercising its

discretion as to costs in accordance with
paragraph (3), order that the party on whom
the offer was served pay the costs of the
party who made the offer, taxed on a
solicitor and client basis, from the
commencement of the appeal, from the day
the offer was served or from any other time
that the Court thinks fit.

(5) Unless the offer to compromise provides that

the offer is not made without prejudice, no
statement of the fact that an offer to
compromise has been made shall be
contained in any affidavit and no
communication with respect to the offer shall
be made to the Court of Appeal until the
appeal has been determined save as to
costs.".

10. Medical and hospital reports

For Rules 33.06, 33.07, 33.08 and 33.08.1 of the

Principal Rules substitute—

'33.06 Report of examination of plaintiff

(1) A defendant for whom a plaintiff is

examined under Rule 33.04 shall as soon as
practicable after the examination obtain from
the medical expert a medical report.

Supreme Court (Chapter I Amendment No. 10) Rules 1999

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(2) Upon obtaining the medical report the

defendant shall forthwith serve the medical
report on the plaintiff.

(3) If the defendant later obtains another medical

report from the medical expert concerning
the plaintiff, whether or not the other report
is consequent upon a further examination by
the medical expert of the plaintiff, the
defendant shall forthwith serve the medical
report on the plaintiff.

33.07 Service of reports by plaintiff

(1) A plaintiff shall serve on each other party

who has an address for service in the
proceeding any hospital or medical report
(other than a hospital or medical report
served on or supplied to him by another
party) which he intends to tender or the
substance of which he intends to adduce in
evidence or which otherwise he intends to
use at the trial.

(2) The plaintiff shall serve the hospital report or medical report—

(a)	within seven days after notice of trial under Order 48 is given, or, if the proceeding is set down for trial by order of the Court made under Rule 48.06, within seven days after the order; and
(b)	in the case of a hospital report or medical report made to or obtained by or for the plaintiff after the time referred to in paragraph (a), forthwith—

or at such other time as the Court directs.

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S.R. No. 96/1999 r. 10

33.08 Service of reports by defendant

(1) A defendant shall serve on each other party who has an address for service in the proceeding any hospital report or medical report (other than a hospital report or medical report served on or supplied to him by another party) which he intends to tender or the substance of which he intends to adduce in evidence or which otherwise he intends to use at the trial.

(2) Paragraph (1) does not require the defendant to serve on the plaintiff a medical report served on the plaintiff under Rule 33.06, but the defendant shall by notice to the plaintiff in writing identify any medical report so served which he intends to tender or the substance of which he intends to adduce in evidence or which otherwise he intends to use at the trial.

(3) The defendant shall serve the hospital report or medical report and give any notice under paragraph (2)—

(a)	within 14 days after notice of trial under Order 48 is given, or, if the proceeding is set down for trial by order of the Court made under Rule
48.06, within 14 days after the order; and
(b)	in the case of a hospital report or medical report made to or obtained by or for the defendant after the time referred to in paragraph (a), forthwith—

or at such other time as the Court directs.

Supreme Court (Chapter I Amendment No. 10) Rules 1999

r. 11 S.R. No. 96/1999

(4) In this Rule "defendant" includes a third or subsequent party.

33.08.1 Other medical reports to be served

Where after a party has served a medical
report under Rule 33.07 or Rule 33.08 the
medical expert who made the report makes
another medical report to the party, then,
notwithstanding that the party no longer
intends to tender the medical report so
served or to adduce its substance in evidence
or to otherwise use it at the trial, or does not
intend to tender the other medical report or
to adduce its substance in evidence or to
otherwise use it at the trial, the party shall
serve the other medical report forthwith on
each other party who has an address for

service in the proceeding.'.

11. Revocation of Rule 33.09(1)3

In Rule 33.09 of the Principal Rules, paragraph

(1) is revoked.

12. Amendment of Rule 33.11

(1) In Rule 33.11(2) of the Principal Rules omit "a

copy of".

(2) For Rule 33.11(3) of the Principal Rules

substitute—

"(3) Subject to paragraphs (4) and (5), a medical

report may be used in evidence by the party
who served the report or by any party on

whom it was served.".

(3) In Rule 33.11(4) of the Principal Rules omit "a

copy of".

(4) In Rule 33.11(5) of the Principal Rules omit "a

copy of".

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S.R. No. 96/1999 r. 13

13. Amendment of Rule 44.02(2)

In Rule 44.02(2) of the Principal Rules for ", if not subject to Order 33, is subject to this Order" substitute "is subject to this Order, save to the extent that the evidence has been disclosed by the service of a report under Order 33".

14. Statement of expert evidence4

(1) For Rule 44.03(1) of the Principal Rules

substitute—
"(1) Unless otherwise ordered, a party who

intends at trial to adduce the evidence of a person as an expert witness shall, not later than 30 days before the day fixed for trial, serve on each other party a statement in

accordance with paragraph (2) and deliver a

copy for the use of the Court.".

(2) After Rule 44.03(2) of the Principal Rules

insert—

'(3) Copies of statements shall be delivered by

delivering them to the Prothonotary in a
sealed envelope bearing the title of the
proceeding and stating "Statements delivered
by [identify party] pursuant to Rule

44.03(1)".'.

15. WorkCover appeals

In Rule 58.01(3) of the Principal Rules, for

"Order 4 of Chapter II" substitute "Order 64".

16. Leave to issue warrant

In Rule 68.02(1) of the Principal Rules, omit paragraph (g).

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r. 17 S.R. No. 96/1999

17. Masters' authority

In Rule 77.02 of the Principal Rules, paragraph

(6) is revoked.

Dated: 29 July 1999

J. H. PHILLIPS, C.J.
ROBERT BROOKING, J.A.
R. C. TADGELL, J.A.
W. F. ORMISTON, J.A.
JOHN D. PHILLIPS, J.A.
J. M. BATT, J.A.
PETER BUCHANAN, J.A.
ALEX CHERNOV, J.A.
BARRY BEACH, J.
F. H. R. VINCENT, J.
BERNARD G. TEAGUE, J.
ALLAN W. McDONALD, J.
T. H. SMITH, J.
DAVID ASHLEY, J.
JOHN J. HEDIGAN, J.
DAVID BYRNE, J.
G. M. EAMES, J.
H. R. HANSEN, J.
PHILIP MANDIE, J.
ROSEMARY BALMFORD, J.

M. L. WARREN, J.

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Supreme Court (Chapter I Amendment No. 10) Rules 1999

S.R. No. 96/1999 Notes

NOTES

1 Rule 4: Rule 4 of S.R. No. 19/1996. Reprint No. 1 as at 1 September 1998.

Further amended by S.R. Nos 121/1998 and 150/1998.

2 Rule 5: S.R. No. 19/1996. See note 1.

3 The heading to Rule 33.09 is changed to "Opinion on liability".

4 The heading to Rule 44.03 is changed to "Statement of expert evidence".