Supreme Court (Chapter Ii Amendment No. 15) Rules 1998 (Vic)
Supreme Court (Chapter II Amendment No. 15)
Rules 1998
S.R. No. 60/1998
TABLE OF PROVISIONS
Rule Page
1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Substitution of Order 4 1 ORDER 4 2 APPEALS FROM TRIBUNALS 2 PART 1—INTRODUCTION 2 4.01 Application 2 4.02 Definitions 2 PART 2—APPEAL TO TRIAL DIVISION 2
4.03 Appeal to Court constituted by a Judge 2 4.04 Commencement of appeal 2 4.05 Leave to appeal 3 4.06 Application for leave 3 4.07 Affidavit in support 3 4.08 Summons before Master 4 4.09 Hearing of application 5
4.10 Appeal 5
4.11 Notice of appeal 5 4.12 Appellant to file affidavit 6
4.13 Directions 7 4.14 Expedition 8 PART 3—APPEAL TO THE COURT OF APPEAL 9
4.15 Commencement of Appeal 9 4.16 Application for leave to appeal 9 4.17 Notice of appeal 10
i
Rule Page
4.18 Application of Order 64 of Chapter I 11 4.19 Exercise of jurisdiction and powers 11
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NOTES 13
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STATUTORY RULES 1998
S.R. No. 60/1998
Supreme Court Act 1986
Supreme Court (Chapter II Amendment No. 15)
Rules 1998
The Judges of the Supreme Court make the following Rules:
1. Object
The object of these Rules is to provide new and revised rules in relation to appeals to the Court from tribunals.
2. Authorising provisions
These Rules are made under section 25 of the powers.
3. Commencement
These Rules come into operation on 1 July 1998.
4. Principal Rules
In these Rules, the Rules of Procedure in the Principal Rules.
5. Substitution of Order 4
For Order 4 of the Principal Rules substitute—
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'ORDER 4
APPEALS FROM TRIBUNALS
PART 1—INTRODUCTION
4.01 Application
(1) Subject to paragraph (2), this Order applies to an appeal to the Court from a tribunal and an application for leave to appeal from a tribunal.
(2) This Order does not apply to a proceeding to which Order 7, 12 or 14 applies.
4.02 Definitions
In this Order—
"order" includes decision or determination;"tribunal" means any person or body, not
being a court, in relation to whose
orders a right of appeal to the Court isconferred by an Act.
PART 2—APPEAL TO TRIAL DIVISION
4.03 Appeal to Court constituted by a Judge
Except as otherwise provided by any Act or Rule, an appeal to the Court from a tribunal shall be heard by a Judge.
4.04 Commencement of appeal
Except as otherwise provided by any Act or
Rule—
(a) an appeal under this Part is commenced Court;
Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 r. 5
(b)
the appeal shall be commenced within 28 days after the day of the order of the tribunal or, if leave to appeal is necessary, within 14 days of leave being granted;
(c)
the appeal shall not operate as a stay of proceedings unless the Court otherwise orders.
4.05 Leave to appeal
Except as otherwise provided by any Act or Rule, an application for leave to appeal from a tribunal shall be made in accordance with
Rules 4.06, 4.07, 4.08 and 4.09.
4.06 Application for leave
(1) An application for leave to appeal shall be made within 28 days after the day of the order of the tribunal.
(2) An application for leave to appeal shall be made by originating motion.
(3) The application is taken to be made when the originating motion is filed.
(4) As soon as practicable after filing the
originating motion, the applicant shall—
(a) deliver a sealed copy of the originating motion to the registrar or other proper officer of the tribunal; and (b) serve the originating motion on the proposed respondent to the appeal. 4.07 Affidavit in support
(1) Within seven days after filing the originating
motion, the applicant shall file an affidavit in
support of the application for leave to appeal.
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(2) The affidavit shall set out the acts, facts,
matters and circumstances relating to—
(a) the order of the tribunal;
(b)
the grounds in the proposed notice of appeal.
(3) There shall be included as exhibits to the
affidavit—
(a)
a copy of the order from which the appeal is to be brought;
(b)
a copy of any reasons given for the order; and
(c)
a copy of the proposed notice of appeal—
or their absence as exhibits shall be
accounted for in the affidavit.4.08 Summons before Master
(1) Within seven days after filing the originating motion, the applicant shall apply on summons to a Master for the leave sought in the originating motion.
(2) The application is taken to be made when the summons is filed.
(3) The applicant shall serve the summons and a
copy of the affidavit in support and of any exhibit on the proposed respondent to the appeal not less than 14 days before the day
for hearing named in the summons.(4) The proposed respondent shall file and serve
a copy of any affidavit in answer and shall
serve a copy of any exhibit not less than five
days before the day for hearing named in the
summons.
Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 r. 5 (5) If at any time the Master is satisfied that the
hearing of the summons should be expedited,
the Master may of his or her own motion or
on the application of the respondent bring
the summons on for hearing.
4.09 Hearing of application
(1) On the hearing of the summons the Master may grant or refuse leave to appeal.
(2) Without limiting paragraph (1), the Master may refuse leave to appeal if satisfied that the applicant does not have a prima facie
case on appeal or that to refuse leave would
impose no substantial injustice.(3) If leave to appeal is granted, the Master shall give directions with respect to the appeal.
(4) If directions are given with respect to
affidavits, no affidavit in respect of which
directions have not been complied with shall
be used without leave of the Court.(5) The Master may in a proper case grant a stay
of proceedings under the order of the
tribunal.
4.10 Appeal
Except as otherwise provided by any Act or brought in accordance with Rule 4.11 and, unless leave to appeal has been given, Rules 4.12 and 4.13.
4.11 Notice of appeal
(1) A notice of appeal under this Part shall—
(a)
be in writing signed by the appellant or the appellant's solicitor;
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(b) set out—
(i) the order of the tribunal;
(ii) whether the appeal is from the whole or part only of the order and, if so, what part;
(iii) if the appeal is brought by leave, when leave was given and by whom;
(iv) the question of law upon which the appeal is brought or which is involved in the order, as the case requires;
(v) concisely the grounds of appeal; and
(c) at its end, name all the persons on whom it is proposed to serve the notice of appeal. (2) As soon as practicable after filing the notice of appeal, the appellant shall—
(a)
deliver a copy to the registrar or other proper officer of the tribunal; and
(b)
unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal.
(3) The Court may give leave to amend the
grounds of appeal or make any other order to
ensure the proper determination of the
appeal.4.12 Appellant to file affidavit
(1) Within seven days after filing the notice of appeal, the appellant shall file an affidavit setting out the acts, facts, matters and
circumstances relating to—
Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 r. 5 (a) the order of the tribunal;
(b)
the grounds set out in the notice of appeal.
(2) There shall be included as exhibits to the
affidavit—
(a)
a copy of the order from which the appeal is or is proposed to be brought; and
(b)
a copy of any reasons given for the order—
or their absence as exhibits shall be
accounted for in the affidavit.4.13 Directions
(1) Within seven days after filing the notice of
appeal, the appellant shall apply on summons to a Master for directions.
(2) The application is taken to be made when the summons is filed.
(3) The appellant shall serve the summons and a
copy of the affidavit filed under Rule 4.12 and of any exhibit on the respondent to the appeal not less than 14 days before the day for hearing named in the summons.
(4) The respondent shall file and serve a copy of
any affidavit in answer and shall serve a
copy of any exhibit not less than five days
before the day for hearing named in the
summons.
(5) If at any time the Master is satisfied that the
hearing of the summons should be expedited,
the Master may of his or her own motion or
on the application of the respondent bring
the summons on for hearing.
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(6) Subject to paragraph (7), the Master shall
give directions with respect to the appeal.
(7) The Master may dismiss the appeal if
satisfied that the applicant does not have a
prima facie case on appeal or that to dismiss
the appeal would impose no substantialinjustice.
(8) If directions are given with respect to
affidavits, no affidavit in respect of which
the directions have not been complied with
shall be used without leave of the Court.(9) The Master may in a proper case grant a stay
of proceedings under the order of the
tribunal.
4.14 Expedition
(1) Where it is satisfied that the delay caused by proceeding in accordance with this Part would or might entail injustice, the Court may make an order under this Part without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as is thought fit.
(2) The Court may set aside any order made
under paragraph (1) on the application of any
person affected.
(3) Where it is satisfied that the justice of the
case requires, the Court may order that,
subject to any order otherwise, an
application for leave to appeal be heard and
determined by the Court which, if leave is
granted, is to hear and determine the appeal
and may give directions accordingly.
Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 r. 5 PART 3—APPEAL TO THE COURT OF
APPEAL
4.15 Commencement of Appeal
Except as otherwise provided by any Act or
Rule—
(a) an appeal to the Court of Appeal from a notice of appeal in the Court;
(b)
the appeal shall be commenced within 28 days after the day of the order of the tribunal or, if leave to appeal is necessary, within 14 days of leave being granted;
(c)
the appeal shall not operate as a stay of proceedings unless the Court of Appeal otherwise orders.
4.16 Application for leave to appeal
Except as otherwise provided by any Act or
Rule, if leave to appeal is necessary—
(a)
an application for leave to appeal shall be made within 28 days after the day of the order of the tribunal;
(b)
an application for leave to appeal shall be made by summons supported by affidavit and otherwise under and in accordance with Order 65 of Chapter I;
(c)
the application is taken to be made when the summons is filed;
(d)
as soon as practicable after filing the summons, the applicant shall deliver a sealed copy of the summons to the
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| registrar or other proper officer of the tribunal. |
4.17 Notice of appeal
(1) A notice of appeal under this Part shall—
(a)
be in writing signed by the appellant or the appellant's solicitor;
(b) set out—
(i) the order of the tribunal;
(ii) whether the appeal is from the whole or part only of the order and, if so, what part;
(iii) if the appeal is brought by leave, when leave was given and by whom;
(iv) the question of law upon which the appeal is brought or which is involved in the order, as the case requires;
(v) concisely the grounds of appeal; and
(c) at its end, name all the persons on whom it is proposed to serve the notice of appeal. (2) As soon as practicable after filing the notice of appeal, the appellant shall—
(a)
deliver a copy of the notice to the registrar or other proper officer of the tribunal; and
(b)
unless the Court of Appeal or a Judge of Appeal otherwise orders, serve a copy of the notice on all persons directly affected by the appeal.
Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 r. 5 (3) As soon as practicable after serving the
notice of appeal the appellant shall file a list signed by or on behalf of the appellant of the persons upon whom the notice has been
served.4.18 Application of Order 64 of Chapter I
(1) Except as otherwise provided by any Act and by this or any other Rule, Order 64 of Chapter I shall apply to an appeal under this Part.
(2) Order 64 shall apply as if in Order 64 a
reference to the court of first instance were a
reference to the tribunal.(3) Rules 64.02, 64.03, 64.04, 64.05 and 64.07 shall not apply to the appeal.
(4) Rule 64.08 shall apply to the appeal as if the time fixed by paragraph (1) of that Rule were 30 days after the filing of the notice of
appeal.
(5) Order 64 shall apply to the appeal with any other necessary modifications.
4.19 Exercise of jurisdiction and powers
The jurisdiction and powers of the Court of accordance with Rules 64.26 and 64.27.'.
Appeal under Order 64 as applied in relation
to an appeal under this Part may be exercised
by a single Judge of Appeal or by two
Dated: 28 May 1998
J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A.
R. C. TADGELL, J.A.
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JOHN D. PHILLIPS, J.A.
STEPHEN CHARLES, J.A.
F. H. CALLAWAY, J.A.
J. M. BATT, J.A.
SUSAN KENNY, J.A.
PETER BUCHANAN, J.A.
G. HAMPEL, J.
BERNARD G. TEAGUE, J.
P. D. CUMMINS, J.
ALLAN W. McDONALD, J.
T. H. SMITH, J.
JOHN J. HEDIGAN, J.
DAVID BYRNE, J.
D. L. HARPER, J.
G. M. EAMES, J.
PHILIP MANDIE, J.
ROSEMARY BALMFORD, J.
E. W. GILLARD, J.
ALEX CHERNOV, J.MURRAY B. KELLAM, J.
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Supreme Court (Chapter II Amendment No. 15) Rules 1998
S.R. No. 60/1998 Notes
NOTES
1 Rule 4: S.R. No. 334/1988. Reprinted to S.R. No. 70/1993 and
subsequently amended by S.R. Nos 41/1995, 71/1995, 156/1995,
139/1996 and 17/1997.
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