Supreme Court (Chapter II Amendment No. 8) Rules 2007 (Vic)

Supreme Court (Chapter II Amendment No. 8) Rules 2007

S.R. No. 121/2007

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Application of Order 4

6Application of Order 5

7Application of Order 6

8New Order 23

ORDER 23—CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

23.01Application

23.02Definitions

23.03Originating motion

23.04Summons for directions

23.05Service

23.06Directions

23.07Dismissal for non-attendance or non-compliance

9New Forms 2–23A and 2–23B

Form 2–23A—Originating Motion

Form 2–23B—Summons for Directions

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ENDNOTES

STATUTORY RULES 2007

S.R. No. 121/2007

Supreme Court Act 1986

Supreme Court (Chapter II Amendment No. 8) Rules 2007

The Judges of the Supreme Court make the following Rules:

1Object

The object of these Rules is to amend Chapter II of the Rules of the Supreme Court to provide for procedures with respect to referrals under section 33 of the Charter of Human Rights and Responsibilities Act 2006.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3Commencement

These Rules come into operation on 1 January 2008.

4Principal Rules

In these Rules, the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998[1] are called the Principal Rules.

5Application of Order 4

In Rule 4.01(2) of the Principal Rules for "or 15A" substitute ", 15A or 23".

6Application of Order 5

At the end of Rule 5.01 of the Principal Rules insert—

"(2)This Order does not apply to a referral under section 33 of the Charter of Human Rights and Responsibilities Act 2006.".

7Application of Order 6

At the end of Rule 6.01 of the Principal Rules insert—

"(2)This Order does not apply to a referral under section 33 of the Charter of Human Rights and Responsibilities Act 2006.".

8New Order 23

After Order 22 of the Principal Rules insert—

"ORDER 23—CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

23.01Application

This Order applies to a referral under section 33 of the Charter of Human Rights and Responsibilities Act 2006 to the Trial Division of the Supreme Court.

23.02Definitions

In this Order—

applicant means the party who made the application for referral in a proceeding before a court or tribunal;

Charter means the Charter of Human Rights and Responsibilities Act 2006;

plaintiff means the applicant or, if Rule 23.03(4) applies, the party implementing the referral;

referral means referral under section 33 of the Charter from a proceeding in a court or tribunal of—

(a)a question of law that relates to the application of the Charter; or

(b)a question with respect to the interpretation of a statutory provision in accordance with the Charter.

23.03Originating motion

(1)When a court or tribunal makes a referral to the Trial Division of the Supreme Court, the applicant shall implement that referral by filing an originating motion in Form 2–23A.

(2)The originating motion shall name as defendant each other party to the proceeding from which the referral is made.

(3)Any party named as a defendant pursuant to paragraph (2) may notify the Court and the plaintiff in writing that the party does not wish to be heard and will abide the decision of the Court on the referral.

(4)If the applicant does not implement the referral within seven days, any other party to the proceeding from which the referral was made may implement the referral by filing an originating motion in Form 2–23A.

(5)The implementation of a referral under paragraph (4) does not—

(a)constitute acceptance by the party who implements the referral that the subject matter of the referral is a matter to which section 33 of the Charter applies; or

(b)prevent that party opposing, whether in whole or in part, any matter to which the referral relates.

(6)An originating motion shall have attached a copy of the order, direction or other document recording the referral from the court or tribunal from which the referral is made.

23.04Summons for directions

At the time of filing the originating motion under Rule 23.03, the plaintiff shall also file a summons for directions in Form 2–23B returnable before a Master.

23.05Service

(1)The plaintiff shall serve the originating motion and the summons for directions on each defendant—

(a)within seven days of filing the originating motion; or

(b)within such further time as the Court by order allows.

(2)An address for service in the proceeding from which the referral was made is sufficient for service of an originating motion under this Order.

23.06Directions

At the directions hearing the Court may—

(a)ascertain whether notice has been given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission as required under the Charter;

(b)require any party to provide such information, and in such form, as the Court thinks necessary to enable the Court to give proper consideration to the question referred to it;

(c)give directions with respect to the filing and serving of affidavits or any other material verifying the facts relating to the question referred to the Court;

(d)give any other directions for the conduct of the proceeding which the Court thinks conducive to its effective, prompt and economical determination.

23.07Dismissal for non-attendance or non-compliance

The Court, whether constituted by a Judge or a Master, may dismiss the proceeding if the applicant does not—

(a)attend at the directions hearing; or

(b)comply with any order made or direction given in the proceeding.".

9New Forms 2–23A and 2–23B

After Form 2–21B of the Principal Rules insert—

"__________________

FORM 2–23A

Rule 23.03(1) and (4)

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION    

IN THE MATTER of the Charter of Human Rights and Responsibilities Act 2006

IN THE MATTER of a referral to the Supreme Court under section 33 of the Charter of Human Rights and Responsibilities Act 2006

A.B.            Plaintiff(s)

and

C.D.          Defendant(s)

ORIGINATING MOTION

TO:  the Defendant(s) 

TAKE NOTICE that this proceeding by originating motion has been brought by the plaintiff(s) pursuant to *Rule 23.03(1)/*Rule 23.03(4) of Chapter II of the Rules of the Supreme Court to implement a referral under section 33 of the Charter of Human Rights and Responsibilities for the determination of a question of law relating to the application of the Charter of Human Rights and Responsibilities, or a question with respect to the interpretation of a statutory provision in accordance with the Charter of Human Rights and Responsibilities.

The referral was made by [identify the court or tribunal] on [state date] on the application of [identify the party who made the application for referral.]

A copy of the order or direction or other document recording the referral is attached to this originating motion.

ALSO TAKE NOTICE that this originating motion is served with a summons for a directions hearing at which the Court may give directions for the conduct of the proceeding.

FILED: [date]

PROTHONOTARY

THIS ORIGINATING MOTION is to be served within seven days from the date it is filed or within such further time as the Court orders.

1.   This originating motion was filed—

*(a)by the plaintiff in person;

*(b)for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor];

*(c)for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal].

2.   The address of the plaintiff is:

3.   The address for service of the plaintiff is:

[Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent.  Where the plaintiff sues without a solicitor, the address for service is stated in 2, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria.]

4.   The address of each defendant is:

[An address for service in the proceeding from which the referral was made may be stated as that defendant's address.]

*delete if inapplicable

__________________

FORM 2–23B

Rule 23.04

SUMMONS FOR DIRECTIONS

[heading as in Form 2–23A]

To:  [identify each party to whom summons is addressed].

You are summoned to attend before the Court for a hearing at which the Court may give directions for the conduct of the proceeding.

The hearing will be before the Master in Court No.      , Supreme Court, 436 Lonsdale Street, Melbourne, on [insert date] at [insert time] or so soon afterwards as the business of the Court allows.

NOTE:  Under Rule 23.03 of Chapter II of the Rules of the Supreme Court, a party named as a defendant and served with a copy of an originating motion may notify the Court and the plaintiff in writing that the party does not wish to be heard in this proceeding and will abide the decision of the Court on the referral under section 33 of the Charter of Human Rights and Responsibilities Act 2006.

FILED:  [date].

This summons was filed by [identify party].".

Dated:    25 October 2007

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PETER BUCHANAN, J.A.

GEOFFREY NETTLE, J.A.

DAVID ASHLEY, J.A.

MARCIA NEAVE, J.A.

ROBERT REDLICH, J.A.

MURRAY B. KELLAM, J.A

BERNARD G. TEAGUE, J.

P. D. CUMMINS, J.

JOHN COLDREY, J.

D. L. HARPER, J.

H. R. HANSEN, J.

PHILIP MANDIE, J.

BERNARD D. BONGIORNO, J.

D. J. HABERSBERGER, J.

R. S. OSBORN, J.

SIMON P. WHELAN, J.

KEVIN H. BELL, J.

ANTHONY CAVANOUGH, J.

ELIZABETH CURTAIN, J.

PAUL COGHLAN, J.

JACK FORREST, J.

LEX LASRY, J.

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ENDNOTES

[1] Rule 4: S.R. No. 110/1998.  Reprint No. 1 as at 6 June 2002.  Reprinted to S.R. No. 37/2002.  Subsequently amended by S.R. Nos 96/2003, 133/2004, 147/2005 and 92/2007.