Supreme Court (Chapters I and VI Dual Commission Holder and Joinder Amendments) Rules 2022 (Vic)

Supreme Court (Chapters I and VI Dual Commission Holder and Joinder Amendments) Rules 2022

S.R. No. 34/2022

TABLE OF PROVISIONS

Rule  Page

Part 1—Preliminary

1Objects

2Authorising provisions

3Commencement

Part 2—Amendment of Chapter I—Dual commission holder

4Application of Part

5Part 5 of Order 58 and related Forms revoked

Part 3—Amendment of Chapter VI—Dual commission holder

6Application of Order and definitions

7Commencement of appeal on a question of law

8Application of Order

9Statute law revision

10Rule 3C.01 substituted

11References to Trial Division omitted

12Heading to Order 3D amended

13Application of this Order

14Appeals by DPP against sentence or failure to fulfil undertaking

15Rule 3D.05 amended

16Abandonment of appeal

17Application to set aside an order striking out appeal for failure to appear

18Recording and notification of result of appeal

19Legal practitioner to notify that practitioner acts

20Order 3D Forms amended

Part 4—Amendment of Chapter I—Joinder

21Permissive joinder of parties

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Endnotes

STATUTORY RULES 2022

S.R. No. 34/2022

Supreme Court Act 1986

Supreme Court (Chapters I and VI Dual Commission Holder and Joinder Amendments) Rules 2022

The Judges of the Supreme Court make the following Rules:

Part 1—Preliminary

1Objects

The objects of these Rules are—

(a)to amend Chapters I and VI as a result of the enactment of the Justice Legislation Amendment (Criminal Procedure Disclosures and Other Matters) Act 2022 providing for the Chief Magistrate to be a dual commission holder as a Supreme Court Judge; and

(b)to amend Order 9 of Chapter I in relation to permissive joinder of parties to align with harmonised rules in other Australian jurisdictions.

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 6 June 2022.

Part 2—Amendment of Chapter I—Dual commission holder

4Application of Part

At the end of Rule 58.06 of the Supreme Court (General Civil Procedure) Rules 2015[1] insert—

"(2)This Part does not apply to an appeal, or an application for leave to appeal, under any provision referred to in paragraph (1) if the appeal is to the Court of Appeal from—

(a)the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or

(b)the Children's Court constituted by the Chief Magistrate who is a dual commission holder.

(3)Order 64 applies with any necessary modifications to an appeal or application referred to in paragraph (2).".

5Part 5 of Order 58 and related Forms revoked

(1)Part 5 of Order 58 of the Supreme Court (General Civil Procedure) Rules 2015 is revoked.

(2)Forms 58B, 58D and 58G of the Supreme Court (General Civil Procedure) Rules 2015 are revoked.

Part 3—Amendment of Chapter VI—Dual commission holder

6Application of Order and definitions

After Rule 3A.01(1) of the Supreme Court (Criminal Procedure) Rules 2017[2] insert—

"(1.1)This Order does not apply to an appeal or an application for leave to appeal on a question of law under a provision referred to in paragraph (1) if the appeal is to the Court of Appeal from—

(a)the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or

(b)the Children's Court constituted by the Chief Magistrate who is a dual commission holder.

(1.2)Order 2 applies with any necessary modifications to an appeal or application referred to in paragraph (1.1).".

7Commencement of appeal on a question of law

In Rule 3A.02 of the Supreme Court (Criminal Procedure) Rules 2017, for "An appeal" substitute "Except as otherwise provided by any Act or Rule, an appeal".

8Application of Order

At the end of Rule 3B.01 of the Supreme Court (Criminal Procedure) Rules 2017 insert—

"(2)This Order applies, with any necessary modifications, to appeals under Divisions 1, 2 and 2A of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 if the appeal is to the Court of Appeal from the Children's Court constituted by the Chief Magistrate who is a dual commission holder.".

9Statute law revision

In Rule 3B.12(1)(d) of the Supreme Court (Criminal Procedure) Rules 2017, for "Regulation" substitute "Community Safety".

10Rule 3C.01 substituted

For Rule 3C.01 of the Supreme Court (Criminal Procedure) Rules 2017 substitute—

"3C.01   Application of Order 3C

(1)This Order applies to appeals under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to the Trial Division from the Children's Court constituted by the President of that Court.

(2)This Order applies, with any necessary modifications, to appeals under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 if the appeal is to the Court of Appeal from the Children's Court constituted by the Chief Magistrate who is a dual commission holder.".

11References to Trial Division omitted

In Rules 3C.02, 3C.03, 3C.04, 3C.05 and 3C.06 of the Supreme Court (Criminal Procedure) Rules 2017, omit "to the Trial Division".

12Heading to Order 3D amended

In the heading to Order 3D of the Supreme Court (Criminal Procedure) Rules 2017, omit "to Trial Division".

13Application of this Order

In Rule 3D.01 of the Supreme Court (Criminal Procedure) Rules 2017, for "Trial Division of the Court" substitute "Court of Appeal".

14Appeals by DPP against sentence or failure to fulfil undertaking

In Rule 3D.04(2) and (4) of the Supreme Court (Criminal Procedure) Rules 2017, for "Supreme Court" substitute "Court of Appeal".

15Rule 3D.05 amended

(1)In the heading to Rule 3D.05 of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary to fix" substitute "Fixing of".

(2)In Rule 3D.05 of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary" substitute "Registrar".

16Abandonment of appeal

In Rule 3D.06(2) of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary or a Judge of the Court" substitute "Registrar or a single Judge of Appeal".

17Application to set aside an order striking out appeal for failure to appear

In Rule 3D.08(2) of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary" substitute "Registrar".

18Recording and notification of result of appeal

In Rule 3D.09(2) of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary" substitute "Registrar".

19Legal practitioner to notify that practitioner acts

In Rule 3D.10 of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary" (where twice occurring) substitute "Registrar".

20Order 3D Forms amended

(1)In Form 6–3DA of the Supreme Court (Criminal Procedure) Rules 2017—

(a)for "TO the Prothonotary of the Supreme Court at:" substitute "TO the Registrar of Criminal Appeals";

(b)for "my appeal the Supreme Court" substitute "my appeal the Court of Appeal";

(c)in the Undertaking to proceed with appeal, for paragraphs (a) and (b) substitute—

"(a)appear at the Court of Appeal to proceed with the appeal at a place and on a day fixed by the Registrar of Criminal Appeals and to appear at the Court of Appeal for the duration of the appeal;

(b)notify the Registrar of Criminal Appeals in writing of any change of address from that appearing in this notice of appeal.";

(d)under the heading "Abandoning an Appeal", for "file in the Supreme Court" (where twice occurring) substitute "file in the Court of Appeal";

(e)under the heading "Abandoning an Appeal", for "Prothonotary of the Supreme Court" substitute "Registrar of Criminal Appeals";

(f)under the heading "Failure to Appear at an Appeal", for "the Supreme Court" substitute "the Court of Appeal";

(g)under the heading "Costs of an Appeal", for "the Supreme Court" substitute "the Court of Appeal";

(h)under the heading "Application for Leave to Appeal", for "Supreme Court" (where twice occurring) substitute "Court of Appeal".

(2)In Form 6–3DB of the Supreme Court (Criminal Procedure) Rules 2017, for "the Supreme Court" (where twice occurring) substitute "the Court of Appeal".

(3)In Forms 6–3DC and 6–3DD of the Supreme Court (Criminal Procedure) Rules 2017, for "Prothonotary of the Supreme Court" substitute "Registrar of Criminal Appeals".

(4)In Forms 6–3DE and 6–3DF of the Supreme Court (Criminal Procedure) Rules 2017 for "TO the Prothonotary of the Supreme Court at:" substitute "TO the Registrar of Criminal Appeals".

(5)In Form 6–3DG of the Supreme Court (Criminal Procedure) Rules 2017—

(a)for "TO the Prothonotary of the Supreme Court at:" substitute "TO the Registrar of Criminal Appeals";

(b)for "to appear at the Supreme Court" substitute "to appear at the Court of Appeal";

(c)for "Prothonotary of the Supreme Court" substitute "Registrar of Criminal Appeals".

(6)In Form 6–3DH of the Supreme Court (Criminal Procedure) Rules 2017—

(a)for "TO the Prothonotary of the Supreme Court at:" substitute "TO the Registrar of Criminal Appeals";

(b)for "Magistrates' Court at;" substitute "Magistrates' Court";

(c)for "The order was made by [*Judge/*Prothonotary] on [date]." substitute "The order was made by [*Judge of Appeal/*Registrar of Criminal Appeals] on [date].";

(d)for "[Signature of *Judge/*Prothonotary]" substitute "[Signature of *Judge of Appeal/*Registrar of Criminal Appeals]".

Part 4—Amendment of Chapter I—Joinder

21Permissive joinder of parties

In Rule 9.02(a)(i) of the Supreme Court (General Civil Procedure) Rules 2015, for "proceedings; and" substitute "proceedings; or".

Dated:   26 May 2022

ANNE FERGUSON, C.J.

CHRISTOPHER MAXWELL, P.

DAVID F. R. BEACH, J.A.

EMILIOS KYROU, J.A.

S. G. E. MCLEISH, J.A.

R. NIALL, J.A.

KARIN EMERTON, J.A.

MAREE KENNEDY, J.A.

KRISTEN WALKER, J.A.

C. MACAULAY, J.

ANTHONY CAVANOUGH, J.

JOHN DIXON, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

CHRISTOPHER W. BEALE, J.

MICHAEL MCDONALD, J.

RITA INCERTI, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

M. N. CONNOCK, J.

LESLEY TAYLOR, J.

S. J. MOORE, J.

ANDREW J. TINNEY, J.

JACINTA FORBES, J.

L. M. NICHOLS, J.

JIM DELANY, J.

JAMES GORTON, J.

MICHAEL OSBORNE, J.

STEPHEN O'MEARA, J.

RICHARD ATTIWILL, J.

CATHERINE BUTTON, J.

AMANDA FOX, J.

ANDREA TSALAMANDRIS, J.

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Endnotes

[1] Rule 4: S.R. No. 103/2015. Reprint No. 2 as at 2 January 2018. Reprinted to S.R. No. 127/2017. Subsequently amended by S.R. Nos 32/2018, 33/2018, 58/2018, 131/2018, 132/2018, 168/2018, 19/2019, 21/2019, 38/2019, 73/2019, 90/2019, 122/2019, 124/2019, 29/2020, 30/2020, 57/2020, 98/2020, 16/2021, 17/2021, 105/2021 and 144/2021.

[2] Rule 6: S.R. No. 126/2017 as amended by S.R. Nos 32/2018, 33/2018, 133/2018, 168/2018, 21/2019, 73/2019, 123/2019 and 17/2021.