Untitled document

Supreme Court (Associate Judges Appeals Amendment) Rules 2012

S.R. No. 121/2012

TABLE OF PROVISIONS

Rule  Page

PART 1—PRELIMINARY

1Object

2Authorising provisions

3Commencement

PART 2—AMENDMENTS TO CHAPTER I

4New Rules 77.06 to 77.06.9 substituted for Rule 77.06

77.06Appeals generally

77.06.1Bringing an appeal

77.06.2Time for notice of appeal

77.06.3Contents of notice of appeal

77.06.4Service of notice of appeal

77.06.5Filing of notice of appeal and list

77.06.6Stay

77.06.7Cross-appeal

77.06.8Notice of contention

77.06.9Powers of Judge of the Court hearing appeal

5New Form 77A inserted

Form 77A—Notice of Address for Service

6Consequential amendments

PART 3—AMENDMENTS TO CHAPTER V

7Rule 16.5 substituted

16.5Appeals

8Schedule 2 substituted

SCHEDULE 2—Powers of the Court that may be Exercised by an Associate Judge

═══════════════

ENDNOTES

STATUTORY RULES 2012

S.R. No. 121/2012

Supreme Court Act 1986
Corporations (Ancillary Provisions) Act 2001

Supreme Court (Associate Judges Appeals Amendment) Rules 2012

The Judges of the Supreme Court make the following Rules:

PART 1—PRELIMINARY

1Object

The object of these Rules is to amend Chapter I and Chapter V of the Rules of the Supreme Court in relation to appeals from judgments and orders of Associate Judges.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, section 23 of the Corporations (Ancillary Provisions) Act 2001 and all other enabling powers.

3Commencement

These Rules come into operation on 1 January 2013.

__________________

PART 2—AMENDMENTS TO CHAPTER I

4New Rules 77.06 to 77.06.9 substituted for Rule 77.06

For Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005[1] substitute—

77.06Appeals generally"

Subject to section 17A of the Supreme Court Act 1986 and to Rule 16.5 of Chapter V of the Rules, an appeal from any judgment or order of an Associate Judge made under any Chapter of the Rules lies to the Trial Division constituted by a Judge of the Court, except in any case where an appeal lies to the Court of Appeal.

77.06.1Bringing an appeal

An appeal under Rule 77.06 shall be brought by notice in accordance with this Order.

77.06.2Time for notice of appeal

(1)Subject to paragraph (2), a notice of appeal shall be served—

(a)within 14 days after the day the judgment or order of the Associate Judge was given or made; or

(b)if leave to appeal is necessary, within 14 days of leave being granted.

(2)A notice of appeal from an order dismissing an application made without notice to any person shall be filed—

(a)within 14 days after the order was made; or

(b)if leave to appeal is necessary, within 14 days of leave being granted.

(3)An application for leave to appeal shall be made within 14 days after the day the judgment or order of the Associate Judge was given or made.

(4)If leave to appeal is necessary and notice of appeal is served before leave has been granted, any person on whom the notice of appeal has been served may apply to a Judge of the Court for an order dismissing the appeal as incompetent.

(5)The hearing of an application for leave to appeal may be treated as the hearing of the appeal.

(6)A Judge of the Court or an Associate Judge may extend the time allowed under this Rule at any time.

77.06.3Contents of notice of appeal

(1)A notice of appeal shall state—

(a)whether the whole or part only and, if as to part, which part, of the judgment or order of the Associate Judge is the subject of the appeal; and

(b)specifically and concisely the grounds of appeal and the judgment or order sought in place of that from which the appeal is brought.

(2)A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal.

(3)A notice of appeal may be amended at any time by leave of a Judge of the Court.

77.06.4Service of notice of appeal

(1)Subject to paragraph (2), a notice of appeal shall be served on all parties affected by the appeal.

(2)A notice of appeal under Rule 77.06.2(2) shall not be served.

(3)Despite paragraphs (1) and (2), a Judge of the Court may direct that notice of appeal be served on—

(a)any party to the proceeding; or

(b)a person not a party.

(4)A notice of appeal may be served on a party personally or at the party's address for service under these Rules, including Rule 1.19.

(5)Where notice of appeal is served on a person not a party—

(a)that person shall not take any step in the appeal without first filing and serving a notice of address for service in Form 77A; and

(b)a Judge of the Court may give any judgment or make any order on the appeal that might have been given or made if the person served with the notice of appeal had been originally a party.

77.06.5Filing of notice of appeal and list

Where notice of appeal is served, the appellant shall, within seven days after service, file a copy of the notice accompanied by a list signed by or on behalf of the appellant of—

(a)the persons upon whom the notice has been served; and

(b)the dates of such service.

77.06.6Stay

Unless a Judge of the Court otherwise orders—

(a)an appeal under Rule 77.06 shall not operate as a stay of execution, or of proceedings, under the judgment or order;

(b)no intermediate act or step shall be invalidated.

77.06.7Cross-appeal

(1)Subject to Rule 77.06.8, a respondent to an appeal under Rule 77.06 who desires to appeal from the decision from which the appellant has appealed shall do so by notice of cross-appeal.

(2)Within 14 days after the service upon the respondent of the notice of appeal, the respondent shall serve a copy of the notice of cross-appeal on—

(a)the appellant; and

(b)any other party directly affected by the cross-appeal.

(3)Rule 77.06.3 and Rule 77.06.4(3), (4) and (5) apply to a notice of cross-appeal as if it were a notice of appeal.

(4)A cross-appeal may be discontinued.

(5)Within seven days after service of the notice of cross-appeal, the respondent shall file a copy of the notice accompanied by a list signed by or on behalf of the respondent of—

(a)the persons upon whom the notice has been served; and

(b)the dates of such service.

(6)Where an appeal is discontinued or is taken to be abandoned—

(a)a respondent who has given notice of cross-appeal may proceed with the cross-appeal; and

(b)a Judge of the Court may give directions for its conduct.

77.06.8Notice of contention

If a party to an appeal under Rule 77.06 does not seek to have the judgment or order actually given or made by the Associate Judge discharged or varied, but proposes to contend that it should be affirmed on a ground, whether of fact or law, which—

(a)was not decided; or

(b)was erroneously decided; or

(c)was not raised for decision before the Associate Judge—

the party, not less than 14 days before the day fixed for the hearing of the appeal, shall file and serve a notice of contention, stating the ground to be relied upon.

77.06.9Powers of Judge of the Court hearing appeal

(1)On an appeal under Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.

(2)On an appeal under Rule 77.06, a Judge of the Court shall have power to—

(a)draw inferences of fact; and

(b)give any judgment and make any order which ought to have been given or made; and

(c)make any further or other order as the case may require.

(3)On an appeal under Rule 77.06, a Judge of the Court shall have power to receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner.

(4)The powers of a Judge of the Court under this Rule may be exercised notwithstanding—

(a)that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of appeal under Rule 77.06 or by any particular party to the proceeding before the Associate Judge; or

(b)that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.".

5New Form 77A inserted

After Form 75C of the Supreme Court (General Civil Procedure) Rules 2005 insert—

FORM 77A"

Rule 77.06.4(5)(a)

NOTICE OF ADDRESS FOR SERVICE

[Heading as in notice of appeal or notice of contention]

The address in Victoria for service of [full name of person or party] is:

[If the person or party is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person or party] is:

Dated:

[signed]

__________________".

6Consequential amendments

In the Supreme Court (General Civil Procedure) Rules 2005—

(a)in Rule 59.08(2) for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(b)in Rule 63.08(3)—

(i)for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(ii)for "applies" substitute "apply";

(c)in Rule 78.08 for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(d)in Rule 79.06(4) for "Rule 77.06" substitute "Rules 77.06 to 77.06.9".

__________________

PART 3—AMENDMENTS TO CHAPTER V

7Rule 16.5 substituted

For Rule 16.5 of the Supreme Court (Corporations) Rules 2003[2] substitute—

16.5Appeals"

(1)Save in the cases provided for by paragraphs (a) and (b) of subrule (3) and subject to section 17A of the Supreme Court Act 1986, an appeal lies to the Trial Division constituted by a Judge of the Court from any judgment or order of an Associate Judge made under these Rules.

(2)Rules 77.06.1 to 77.06.9 of Chapter I of the Rules apply to an appeal referred to in subrule (1) with any necessary modification.

(3)For the purposes of sections 10(1)(ab) and 17(3) of the Supreme Court Act 1986 and subject to section 17A of that Act, an appeal lies to the Court of Appeal from any judgment or order of an Associate Judge—

(a)in any application under section 459G of the Corporations Act; and

(b)in respect of any matter referred to an Associate Judge by a Judge of the Court under rule 16.1(3).

(4)Order 64 of Chapter I of the Rules applies to an appeal referred to in subrule (3) with any necessary modification.".

8Schedule 2 substituted

For Schedule 2 to the Supreme Court (Corporations) Rules 2003 substitute—

"SCHEDULE 2

Rule 16.1

POWERS OF THE COURT THAT MAY BE EXERCISED BY AN ASSOCIATE JUDGE

Item No.	Column 1 Provision	Column 2 Description
THE ASIC ACT
1	s. 79(4)	To extend time for service of notice.
THE CORPORATIONS ACT
2	s. 227	Declaration that conditions prescribed by Division 3 of Part 2E.1 have been satisfied.
3	s. 247A	To order inspection of books.
4	s. 247B	To make ancillary order about inspection of books.
5	s. 252E	To order meeting of members of registered scheme.
6	s. 266(4)	For extension of time for registration of charge.
7	s. 267(3)	To give leave to enforce charge.
8	s. 274	To rectify omission or misstatement.
9	s. 283AE(2)	For appointment of corporation to be trustee.
10	s. 283EC	To order meeting of debenture holders.
11	s. 283HA	To give directions and make declarations about trustee's functions or interests of debenture holders.
12	s. 411(16)	To restrain further proceedings.
13	s. 418A	Declaration as to validity of controller's appointment and in relation to control of property.
Item No.	Column 1 Provision	Column 2 Description
14	s. 420B	To authorise managing controller to dispose of property despite prior security interest.
15	s. 420C	To authorise receiver to carry on corporation's business during the winding up.
16	s. 425	To fix remuneration of receiver.
17	s. 429(3)	To extend time for report.
18	s. 434	That receiver remedy default.
19	s. 438D(3)	To direct administrator to lodge a report.
20	s. 439A(6)	For extension of convening period.
21	s. 440B	To grant leave to exercise third party property rights.
22	s. 440D(b)	For leave to begin or proceed with proceeding against company during administration.
23	s. 440F	For leave to begin or proceed with enforcement process re property of company during administration.
24	s. 440G(7)	To permit a court officer to take action or make a payment during administration.
25	s. 440J	To grant leave to take enforcement action under a guarantee.
26	s. 442C	To grant leave to administrator to dispose of encumbered property.
27	s. 443B(8)	To excuse administrator from personal liability for rent.
28	s. 444B(2)(b)	To extend time for company to execute deed.
29	s. 444E(3)(c)	For leave to person bound by deed to begin or proceed with proceeding against company etc. or enforcement process against company.
30	s. 447A(1) (where winding up order to be made by an Associate Judge)	To end administration of company.
31	s. 447C	To declare whether administrator is validly appointed.

Item No.	Column 1 Provision	Column 2 Description
32	s. 447E(2)	For order where office of administrator is vacant or no administrator is acting.
33	s. 449C(6)	For appointment of an administrator of company under administration when none is acting.
34	s. 449D(1)	To fill vacancy in office of administrator of deed.
35	s. 449D(2)	For appointment of an administrator of deed where none is acting.
36	s. 449E(1)(c) and (1A)(c)	To determine the remuneration of an administrator.
37	s. 449E(2)	For review etc. of administrator's remuneration.
38	s. 459F(2)(a)	For order extending period for compliance with demand.
39	s. 459G	For order on application to set aside a demand.
40	s. 459P(2)	For leave to apply for winding up.
41	s. 459R	For extension of time for determination of application for winding up in insolvency.
42	s. 459S	For leave to company to oppose application.
43	s. 465B(1)	For order substituting applicant.
44	s. 465C (if the application is pending before an Associate Judge)	For leave to oppose application when there has been failure to file and serve notice of grounds of opposition and verifying affidavit.
45	s. 467(7)	For stay of proceedings.
46	s. 468	For validation of disposition of property, attachments etc.
47	s. 468A	For order authorising transfer of shares after commencement of winding up.
48	s. 470(2)(b)	To serve a copy order on another person.
49	s. 471A	For approval by the Court to perform or exercise a function or power as an officer of the company.

Item No.	Column 1 Provision	Column 2 Description
50	s. 471B	For leave to begin or proceed with a proceeding or begin or proceed with enforcement process against a company being wound up in insolvency or by the Court or in respect of which a provisional liquidator is acting.
51	s. 472(1) (where winding up order made by an Associate Judge)	For appointment of liquidator.
52	s. 472(2)	For appointment of provisional liquidator.
53	s. 472(6)	For order on application with respect to the exercise or proposed exercise of a power of a provisional liquidator.
54	s. 473(2)	Determination of provisional liquidator's remuneration.
55	s. 473(3), (5), (6)	Determination or review of liquidator's remuneration.
56	s. 473(7)	To fill vacancy in office of liquidator.
57	s. 473(8)	To declare what may be done by liquidator, where more than one appointed.
58	s. 474(2)	To vest property in liquidator.
59	s. 477(2A)	For approval of liquidator's compromising a debt.
60	s. 477(2B)	For approval of liquidator's entering an agreement which may last or obligations which may be performable more than 3 months later.
61	s. 477(6)	For order on application with respect to the exercise or proposed exercise of a power by liquidator.
62	s. 480	To release liquidator and deregister company.
63	s. 481	To order auditor's report and liquidator to make good any loss.
64	s. 482(1)	To stay or terminate winding up.

Item No.	Column 1 Provision	Column 2 Description
65	s. 483(1)	For delivery of property etc. to liquidator.
66	s. 483(2)	To direct contributory to pay money.
67	s. 483(3)	To make calls for payment by contributories and order payment of calls made by court or liquidator.
68	s. 483(4)	To order payment to bank to the liquidator's account.
69	s. 484	To appoint or remove special manager, to fix security or remuneration.
70	s. 486	For inspection of books.
71	s. 488(2)	To grant special leave to distribute a surplus.
72	s. 490	For leave to company to resolve that it be wound up voluntarily.
73	s. 495(4)	As to manner of holding meeting.
74	s. 496(3)	For order that list of creditors be sent.
75	s. 497(3)	For order that list of creditors be sent.
76	s. 500(2)	For leave to proceed.
77	s. 500(3)	For delivery of property etc. to liquidator.
78	s. 502	To appoint liquidator.
79	s. 504	To review liquidator's remuneration.
80	s. 507(6)	To sanction resolution.
81	s. 507(9)	For directions for initiation and conduct of arbitration.
82	s. 507(10)	For approval for exercise of powers.
83	s. 509(6)	To order deregistration on a specified day.
84	s. 510(3)	To settle dispute.
85	s. 511(1)(b)	For exercise of powers.
86	s. 532(2)	To grant leave for person to be appointed as liquidator.
87	s. 542(3)(a)	As to destruction of books.
88	s. 543(1)	As to investment of funds.

Item No.	Column 1 Provision	Column 2 Description
89	s. 544	As to accounts or payment of unclaimed funds.
90	s. 545(2)	To direct liquidator to incur a particular expense.
91	s. 547(1)	To direct meeting.
92	s. 551	Leave to member of Committee of Inspection to accept benefit.
93	s. 552	To give direction or permission.
94	s. 554A	To estimate, or determine method to be applied in working out, value of debts and claims of uncertain value in liquidation.
95	s. 554G	To grant leave to secured creditor to amend valuation of security in proof of debt.
96	s. 564	To make an order in favour of certain creditors.
97	s. 568	For leave to disclaim.
98	s. 568B	To set aside disclaimer of property before disclaimer takes effect.
99	s. 568E	To set aside disclaimer of property after disclaimer has taken effect.
100	s. 568F	For orders re vesting of disclaimed property.
101	s. 583	To wind up Part 5.7 bodies.
102	s. 587	To stay proceedings or for leave to commence or proceed.
103	s. 588FF	To make order about voidable transactions.
104	s. 588T(2)(b)	For leave to creditor to begin proceeding.
105	s. 596A	For mandatory examination.
106	s. 596B	For discretionary examination.
107	s. 596F(1)(a)	For directions about matters to be inquired into at examination.
108	s. 596F(1)(b) to (g)	For directions about examination.
109	s. 597(5B)	To put, or allow to be put, questions to a person being examined.

Item No.	Column 1 Provision	Column 2 Description
110	s. 597(7)	For direction to answer question.
111	s. 597(9)	For direction to produce books.
112	s. 597(13)	For order that questions and answers be recorded in writing, and that person sign that written record.
113	s. 597(15)	For direction for examination to be held before another court.
114	s. 597(17)	To adjourn the examination from time to time.
115	s. 597A	For mandatory affidavit.
116	s. 597B	For costs of unnecessary examination.
117	s. 600A	To make order setting aside creditors' resolution or in respect of consideration and voting on proposed resolution or entitlement to vote on proposed resolution or amendment or variation of proposed resolution.
118	s. 600B	To order setting aside or varying of creditors' resolution passed on casting vote of person presiding at meeting.
119	s. 600C	To order proposed creditors' resolution to be taken as passed at meeting.
120	s. 600D	To make interim order where application under section 600A(1), 600B(2) or 600C(2) not yet determined.
121	s. 601AH(2)	For reinstatement of the registration of a company.
122	s. 601BJ	To approve modification of constitution.
123	s. 601CC(8)	For restoration of name of registered Australian body.
124	s. 601CL(9)	For restoration of name of registered foreign company.
125	s. 601FN	For appointment of a temporary responsible entity of a scheme.
126	s. 1071D	To issue summons and make consequential orders under section 1071D(5).

Item No.	Column 1 Provision	Column 2 Description
127	s. 1071F	For order following failure by directors to register etc.
128	s. 1071H	To remedy default in issuing certificate.
129	s. 1274(11)	For order to remedy default.
130	s. 1303	To order immediate inspection of books.
131	s. 1319	For direction with respect to meeting.
132	s. 1321	To confirm, reverse or modify act or decision of receiver, receiver and manager, administrator or liquidator or remedy omission of receiver, receiver and manager, administrator or liquidator on appeal from aggrieved person.
133	s. 1322(4)	For order in relation to irregularities etc.
134	s. 1335	To order security for costs.
135	s. 1341(3)	For payment of money.
CORPORATIONS REGULATIONS
136	reg. 5.6.06	For order not to open liquidator's general account.
137	reg. 5.6.09	For directions with respect to money or securities and authorisation of payments to special bank accounts.
138	reg. 5.6.15(2)	For repayment of costs of meeting.
139	reg. 5.6.16(7)	For declaration that adjourned meeting be taken to be incompetent to act.
140	reg. 5.6.18(3)	For order as to place of adjourned meeting.
141	reg. 5.6.24(3)	To determine whether security surrendered.
142	reg. 5C.2.02	To appoint a temporary responsible entity of a scheme.

__________________".

Dated:    25 October 2012

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

GEOFFREY NETTLE, J.A.

MARCIA NEAVE, J.A.

ROBERT REDLICH, J.A.

PAMELA TATE, J.A.

R. S. OSBORN, J.A.

SIMON P. WHELAN, J.A.

PHILLIP PRIEST, J.A.

D. J. HABERSBERGER, J.

STEPHEN KAYE, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

ANTHONY CAVANOUGH, J.

ELIZABETH CURTAIN, J.

TONY PAGONE, J.

ROSS ROBSON, J.

JAMES JUDD, J.

PETER VICKERY, J.

EMILIOS KYROU, J.

DAVID F. R. BEACH, J.

JENNIFER DAVIES, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

ANNE FERGUSON, J.

M. L. SIFRIS, J.

PETER ALMOND, J.

JOHN DIXON, J.

C. MACAULAY, J.

GREG GARDE, J.

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ENDNOTES

[1] Rule 4: S.R. No. 148/2005.  Reprint No. 4 as at 17 September 2012.  Reprinted to S.R. No. 97/2012.  Subsequently amended by S.R. No. 39/2012.

[2] Rule 7: S.R. No. 107/2003.  Reprint No. 1 as at 17 December 2008.  Reprinted to S.R. No. 117/2008.  Subsequently amended by S.R. Nos 43/2009, 44/2009, 97/2009 and 83/2010.