Untitled document

Supreme Court (Chapter I Judicial Review Amendment) Rules 2016

S.R. No. 51/2016

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Form of originating process

6Appearance

7Proceedings after appearance

8Judgment or order instead of writ

9New Form 5G

═══════════════

Endnotes

STATUTORY RULES 2016

S.R. No. 51/2016

Supreme Court Act 1986

Supreme Court (Chapter I Judicial Review Amendment) Rules 2016

The Judges of the Supreme Court make the following Rules:

1Object

The object of these Rules is to amend Chapter I of the Rules of the Supreme Court to provide for a new mode of commencement of proceedings in judicial review matters.

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 July 2016.

4Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 2015[1] are called the Principal Rules.

5Form of originating process

In Rule 5.02(2) of the Principal Rules, for "or 5E" substitute ", 5E or 5G".

6Appearance

In Rule 5.03(3) of the Principal Rules, after "Order 53" insert "or Order 56".

7Proceedings after appearance

In Rule 45.04(3) of the Principal Rules, after "Order 53" insert "or Order 56".

8Judgment or order instead of writ

(1)In Rule 56.01(2) of the Principal Rules, after "originating motion" insert "in Form 5G".

(2)After Rule 56.01(5) of the Principal Rules insert—

"(5.1)There shall be included as exhibits to the affidavit—

(a)a copy of any judgment, order, conviction, determination or decision in respect of which relief is sought; and

(b)a copy of any reasons given for any such judgment, order, conviction, determination or decision—

or their absence as exhibits shall be accounted for in the affidavit.".

(3)After Rule 56.01(6) of the Principal Rules insert—

"(7)An originating motion under this Order which has not been served may, at the request of the plaintiff, be amended, on or before the day named in the originating motion for the hearing of the application before the Associate Judge, to name another day.

(8)The originating motion may be so amended by an Associate Judge, an Associate Judge's Associate or the Prothonotary.

(9)Unless the Court constituted by a Judge or an Associate Judge otherwise orders, the originating motion may not be amended under paragraph (7) more than once.

(10)Nothing in paragraph (7), (8) or (9) limits the powers of the Court under Rule 36.01.".

9New Form 5G

After Form 5F of the Principal Rules insert—

"FORM 5G—ORIGINATING MOTION FOR JUDICIAL REVIEW

Rules 5.02(2), 56.01(2)

ORIGINATING MOTION FOR JUDICIAL REVIEW

[heading as in Form 5A]

TO THE DEFENDANT

TAKE NOTICE that this proceeding by originating motion has been commenced by the plaintiff for the relief or remedy set out below.

THE PLAINTIFF CLAIMS:

[Set out the relief or remedy sought and the Act, if any, under which the claim is made, and where it includes the answer to any question, state the question.]

THE GROUNDS RELIED UPON ARE:

[State the grounds upon which the relief or remedy is sought, and where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, specify the mistake or omission.]

FURTHER PARTICULARS of the claim appear in the affidavit made in support of the claim.  A copy of the affidavit and of any exhibit to the affidavit is served with this originating motion.

AND TAKE NOTICE that the plaintiff will apply to an Associate Judge 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.  At that time the Associate Judge may, as appropriate—

(a)where the Associate Judge has authority to give the judgment sought by the plaintiff, hear and determine the application or refer it to another Associate Judge for hearing and determination;

(b)by consent of the defendant, give the judgment;

(c)refer the application to a Judge of the Court for hearing and determination;

(d)place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise.

IF YOU INTEND TO DEFEND THIS PROCEEDING you must:

(a)     give notice of your intention by filing an appearance on or before the day specified above; and

(b)     attend before the Associate Judge as specified above.

YOU OR YOUR SOLICITOR may file the appearance.  An appearance is filed by:

(a)     filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion.

IF YOU FAIL to file an appearance on or before the day specified above or to attend before the Associate Judge on that day, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice.

FILED [insert date].

Prothonotary

1.    Place of trial:

(If no place of trial is specified, trial will be held in Melbourne.)

2.*    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].

3.    The address of the plaintiff is:

4.    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 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria.]

5.    The address of the defendant is:

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

*Complete or strike out as appropriate.".

Dated:    26 May 2016

CHRISTOPHER MAXWELL, P

R. S. OSBORN, J.A.

SIMON P. WHELAN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

EMILIOS KYROU, J.A.

STEPHEN KAYE, J.A.

S. G. E. McLEISH, J.A.

KEVIN H. BELL, J.

ANTHONY CAVANOUGH, J.

ROSS ROBSON, J.

JACK FORREST, J.

PETER VICKERY, J.

TERRY FORREST, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

PETER ALMOND, J.

JOHN R. DIXON, J.

C. MACAULAY, J.

KATE McMILLAN, J.

GREG GARDE, J.

G. J. DIGBY, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

JOANNE CAMERON, J.

CHRISTOPHER W. BEALE, J.

MICHAEL McDONALD, J.

RITA ZAMMIT, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

═══════════════

ENDNOTES

[1] Rule 4: S.R. No. 103/2015 as amended by S.R. Nos 143/2015, 144/2015 and 14/2016.