Supreme Court (Chapter I Amendment No. 4) Rules 1997 (Vic)
Supreme Court (Chapter I Amendment No. 4)
Rules 1997
S.R. No. 137/1997
TABLE OF PROVISIONS
Rule Page
1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Heading of document 1 6. Form of document 2 7. Subpoena for production before Prothonotary 2 42. 10 Subpoena before Prothonotary 2 42. 11 Subpoena for attendance before another court, etc. 5 8. Annexures and exhibits 6 9. New Forms 42E, 42F and 43A inserted 6 10. Amendment to Forms 61D and 61K 11
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NOTES 13
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STATUTORY RULES 1997
S.R. No. 137/1997
Supreme Court Act 1986
Supreme Court (Chapter I Amendment No. 4)
Rules 1997
The Judges of the Supreme Court make the following Rules:
1. Object
The object of these Rules is to make miscellaneous amendments to the Principal Rules.
2. Authorising provisions
These Rules are made under section 25 of the powers.
3. Commencement
These Rules come into operation on 2 February
1998.
4. Principal Rules
In these Rules, the General Rules of Procedure in
Civil Proceedings 19961 are called the PrincipalRules.
5. Heading of document2
(1) For Rule 27.02(3) of the Principal Rules
substitute—
"(3) Subject to paragraphs (5) and (6), the
heading of a document shall include the title
to the proceeding and the title to the
proceeding shall name all the parties.".
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(2) In Rule 27.02(5) of the Principal Rules, for
"Notwithstanding paragraphs (3) and (4), where
there are more than two plaintiffs the title to"
substitute "Where there are more than twoplaintiffs the heading of".
(3) In Rule 27.02(6) of the Principal Rules—
(a)
for "the document is entitled" substitute "the heading of the document is"; and
(b) in paragraph (a), omit "attached".
6. Form of document
(1) In Rule 27.03(5) of the Principal Rules for "and
the title to the proceeding" substitute "of the
document".
(2) In Rule 27.03(6) of the Principal Rules omit "and the title to the proceeding".
7. Subpoena for production before Prothonotary
For Rule 42.10 of the Principal Rules substitute—
"42.10 Subpoena before Prothonotary
(1) This Rule applies where a party who has a
solicitor in the proceeding seeks to require a person not a party to produce any document in writing for evidence before the trial of the proceeding.
(2) A party may file a subpoena for production
requiring the person named to produce to the Prothonotary on or before a day specified by the Prothonotary in the subpoena the
document identified in the subpoena.(3) A subpoena under this Rule shall be in Form 42E or Form 42F.
(4) A party who files a subpoena under this Rule
shall, forthwith after service, serve a copy on
Supreme Court (Chapter I Amendment No. 4) Rules 1997
S.R. No. 137/1997 r. 7 each other party to the proceeding, but it
shall not be necessary that the copy served
be sealed or be served personally.(5) A party who serves a copy of a subpoena under paragraph (4) shall forthwith file an affidavit of service.
(6) The person named may comply with the
subpoena by producing the document to the post, the document shall be sent so that the Prothonotary receives it before the day specified in the subpoena.
(7) Where a document is produced in
compliance with a subpoena under this Rule the Prothonotary shall, if requested to do so, give a receipt to the person producing the
document.
(8) If the person named has any objection to
producing a document identified in the before the day specified in the subpoena.
subpoena or to its being inspected by any
one or more of the parties to the proceeding,
the person named shall notify the(9) If a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Prothonotary in writing of
that objection before the day specified in the
subpoena.
(10) Upon receiving notice under paragraph (8) or (9), the Prothonotary shall refer the subpoena to a Judge or Master for the hearing and
determination of the objection.
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(11) The Prothonotary shall notify the party who
filed the subpoena in writing of the objection and the time and place at which the objection will be heard and that party shall notify the
person named and all other partiesaccordingly.
(12) If no objection is notified under paragraph
(8) or (9) or to the extent that any such appointment with the Prothonotary inspect and take copies of a document produced in compliance with a subpoena under this Rule.
objection is disallowed, each party unless a
(13) The Prothonotary shall not permit any
document produced in compliance with a subpoena under this Rule to be removed from his custody except upon application in
writing signed by the solicitor for a party.
(14) A solicitor signing such an application
undertakes to the Court by force of this Rule if removing the document from the office of the Prothonotary—
(a)
to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and
(b)
to return the document to the Prothonotary at the time appointed by him.
(15) The Prothonotary may, in his discretion,
decline to accede to any application under
paragraph (13).
Supreme Court (Chapter I Amendment No. 4) Rules 1997
S.R. No. 137/1997 r. 7 (16) Subject to any order of the Court, the
Prothonotary may in his discretion, but not earlier than three months after the day specified in a subpoena under this Rule for production of the document, return to the person named any document produced by him in compliance with the subpoena.
(17) The Prothonotary shall not return any
document under paragraph (16) until after he has given to the party who filed the subpoena 14 days' notice in writing of his intention to
do so.
(18) Subject to paragraphs (16) and (17) and any
produce or hand to the Associate of the trial
order of the Court, the Prothonotary shall proceeding each document produced to the Prothonotary in compliance with a subpoena under this Rule. (19) The filing of a subpoena under this Rule to produce a document for evidence shall not preclude the filing of a subpoena otherwise than under this Rule to produce the same
document for evidence.
42.11 Subpoena for attendance before another
court, etc.
This Order, except Rules 42.06, 42.09 and 42.10, shall, with any necessary modification, apply where by or under any Act the Court has authority to compel by subpoena the attendance of a person for the purpose of giving evidence or producing any document or thing for evidence in any court or before any person having by law or by consent of parties authority to hear, receive and examine evidence.".
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8. Annexures and exhibits
(1) In Rule 43.06(2) of the Principal Rules for "title"
substitute "heading".
(2) After Rule 43.06(2) of the Principal Rules
insert—
"(3) The certificate shall be in Form 43A andshall contain in the bottom right hand corner of the page in bold type and in a font size not less than 20 points the distinguishing mark
of the exhibit and a brief and specific
description of the exhibit.".
9. New Forms 42E, 42F and 43A inserted
After Form 42D to the Principal Rules insert—
'RULE 42.10(3) FORM 42E
SUBPOENA FOR PRODUCTION TO PROTHONOTARY
(Subpoena to a natural person)
[heading as in originating process]
To [name]
of [address]:THE COURT ORDERS that you do produce this subpoena (or a copy of this subpoena) and the documents described in the Schedule to the Prothonotary of the Supreme Court, Level 2, 436 Lonsdale Street, Melbourne, by hand or by post, on or before [date for compliance].
If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Prothonotary, they must be sent so that he receives them before the date mentioned above.
SCHEDULE
[description of documents]
[If necessary, attach schedule describing documents]
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S.R. No. 137/1997 r. 9
NOTES
(1) If you do not comply with this subpoena you may be
arrested.(2) Any documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or
attached to this subpoena (or a copy) request that the
documents be posted to you at another address given by you
or that you be informed when they are available to be
collected by you.(3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena.
FURTHER NOTES
All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken.
1. If you are the person required by this subpoena to produce documents:
If you have any objection to producing the documents or to
their being inspected by any one or more of the parties to
the proceeding, you must notify the Prothonotary in writing
of your objection before the day specified in the subpoena
for the production of the documents. The party filing this
subpoena is required to inform you of the time and place
when your objection will be heard by a Judge or a Master of
the Court.
2. If you are a party to the proceeding and have been served with a copy of this subpoena:
If you object to the documents being inspected by another party to the proceeding, you must notify the Prothonotary of your objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court.
3. If you are the party who filed this subpoena:
If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Prothonotary of the objection and of the time and
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place when the objection will be heard. You are required promptly to inform the person named in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is
determined.
Documents produced in compliance with this subpoena may not be removed from the custody of the Prothonotary, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant:
"(14) A solicitor signing such an application undertakes to the
Court by force of this Rule if removing the document from the office of the Prothonotary—
(a)
to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and
(b)
to return the documents to the Prothonotary at the time appointed by him.".
A breach of this undertaking may be dealt with as a contempt of court.
RULE 42.10(3) FORM 42F
SUBPOENA FOR PRODUCTION TO PROTHONOTARY
(Subpoena to a corporation)
[heading as in originating process]
To [name of corporation]
of [address]:
THE COURT ORDERS that [name of corporation] (called "the
corporation") do produce this subpoena (or a copy of this subpoena) and the
documents described in the Schedule by causing its proper officer to produce
them to the Prothonotary of the Supreme Court, Level 2, 436 Lonsdale
Street, Melbourne, by hand or by post, on or before [date for compliance].If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Prothonotary, they must be sent so that he receives them before the date mentioned above.
SCHEDULE
Supreme Court (Chapter I Amendment No. 4) Rules 1997
S.R. No. 137/1997 r. 9
[description of documents]
[If necessary, attach schedule describing documents]
NOTES
(1) If the corporation does not comply with this subpoena, the subpoena may be enforced by arrest of an officer of the corporation.
(2) Any documents produced by the corporation in accordance
with this subpoena may be returned by post to it at its
address shown on this subpoena but the corporation may in
writing on or attached to this subpoena (or a copy) request
that the documents be posted to it at another address given
by it or that it be informed when they are available to be
collected by it.
(3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena.
FURTHER NOTES
All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken.
1. Notice to the corporation:
If the corporation has any objection to producing the documents or to their being inspected by one or all of the parties to the proceeding, it must notify the Prothonotary in writing of its objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform the corporation of the time and place when its objection will be heard by a Judge or a Master of the Court.
2. If you are a party to the proceeding and have been served with a copy of this subpoena:
If you have any objection to producing the documents or to their being inspected by any one or more of the parties to the proceeding, you must notify the Prothonotary in writing of your objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place
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when your objection will be heard by a Judge or a Master of
the Court.
3. If you are the party who filed this subpoena:
If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Prothonotary of the objection and of the time and place when the objection will be heard. You are required promptly to inform the corporation named in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined.
Documents produced in compliance with this subpoena may not be removed from the custody of the Prothonotary, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant:
"(14) A solicitor signing such an application undertakes to the
Court by force of this Rule if removing the document from the office of the Prothonotary—
(a)
to keep the document in his personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and
(b)
to return the documents to the Prothonotary at the time appointed by him.".
A breach of this undertaking may be dealt with as a contempt of court.
RULE 43.06 FORM 43A
Supreme Court (Chapter I Amendment No. 4) Rules 1997
S.R. No. 137/1997 r. 10
CERTIFICATE IDENTIFYING EXHIBIT
[heading as in affidavit]
This is the exhibit marked [e.g. "ABC1"] now produced and shown to
[identify deponent] at the time of swearing his affidavit on [date].[Signature of person taking affidavit] [state distinguishing mark of exhibit
and briefly and specifically describe exhibit:
e.g. Exhibit "ABC1"
Letter BHP to CRA 15/6/09]*
* print distinguishing mark and description in bold type and in a font size not less than 20
points in lower right hand corner of the page.'.
10. Amendment to Forms 61D and 61K
(1) In Form 61D to the Principal Rules for
"[Follow Form 60C except as below.]
[heading as in originating process]"
substitute—
"[heading as in originating process][follow Form 60C except as below]".
(2) In Form 61K to the Principal Rules for
"[Follow Form 81C except as below.]
[heading as in originating process]"
substitute—
"[heading as in originating process][follow Form 60C except as below]".
Dated: 27 November 1997
J. H. PHILLIPS, C.J.
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| r. 10 | S.R. No. 137/1997 |
JOHN WINNEKE, P.
ROBERT BROOKING, J.A.
R. C. TADGELL, J.A.
W. F. ORMISTON, J.A.
JOHN D. PHILLIPS, J.A.
STEPHEN CHARLES, J.A.
F. H. CALLAWAY, J.A.
J. M. BATT, J.A.
PETER BUCHANAN, J.A.
BARRY BEACH, J.
G. HAMPEL, 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.
D. L. HARPER, J.
G. M. EAMES, J.
PHILIP MANDIE, J.
ROSEMARY BALMFORD, J.ALEX CHERNOV, J.
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Supreme Court (Chapter I Amendment No. 4) Rules 1997
S.R. No. 137/1997 Notes
NOTES
1 S.R. No. 19/1996 as amended by S.R. Nos 137/1996, 138/1996 and
31/1997.
2 The heading to Rule 27.02 is changed to "Heading of document".
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