Untitled document

Supreme Court (Chapter I Amendment No. 15) Rules 2009

S.R. No. 109/2009

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Part 7 of Order 58

PART 7—APPEALS UNDER PART 7 OF THE CORONERS ACT 2008

58.33Definitions

58.34Commencement of appeal

58.35Notice of appeal

58.36Appeal out time taken to be application for leave to appeal

58.37Appellant to file affidavit

58.38Certain appeals do not require directions

58.39Directions

58.40Expedition

58.41Report from Coroners Court

6Revocation of Order 22 of Chapter II

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ENDNOTES

STATUTORY RULES 2009

S.R. No. 109/2009

Supreme Court Act 1986
Coroners Act 2008

Supreme Court (Chapter I Amendment No. 15) Rules 2009

The Judges of the Supreme Court make the following Rules:

1Object

The object of these Rules is to provide for appeals to the Supreme Court on a question of law under Part 7 of the Coroners Act 2008.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, section 87 of the Coroners Act 2008 and all other enabling powers.

3Commencement

These Rules come into operation on 1 November 2009.

4Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 2005[1] are called the Principal Rules.

5New Part 7 of Order 58

After Part 6 of Order 58 of the Principal Rules insert—

"PART 7—APPEALS UNDER PART 7 OF THE CORONERS ACT 2008

58.33Definitions

In this Part—

determination includes a refusal, direction or authorisation which is subject to appeal under Part 7 of the Coroners Act 2008.

58.34Commencement of appeal

An appeal under Part 7 of the Coroners Act 2008 is brought by filing a notice of appeal in the Trial Division.

58.35Notice 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 or state—

(i)the determination which is the subject of appeal;

(ii)whether the appeal is from the whole or part only of the determination and, if so, what part;

(iii)the question of law upon which the appeal is brought;

(iv)concisely the grounds of appeal;

(v)the order sought in place of the determination from which the appeal is brought;

(c)where applicable, identify the person who was given leave to appear at the inquest as an interested party under section 56 of the Coroners Act 2008; and

(d)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 Coroners Court;

(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.

58.36Appeal out time taken to be application for leave to appeal

An appeal brought out of time is taken to be an application for leave to appeal out of time under section 86 of the Coroners Act 2008.

58.37Appellant to file affidavit

(1)The appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to—

(a)the determination under appeal;

(b)the grounds set out in the notice of appeal;

(c)if leave is sought under section 86 of the Coroners Act 2008 to appeal out of time, the grounds on which the leave is sought.

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

(a)a copy of the determination under appeal; and

(b)a copy of any reasons given for the determination—

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

(3)An affidavit under paragraph (1) shall be filed—

(a)in the case of an appeal under section 79(1), 79(3), 81(1) or 85 of the Coroners Act 2008, within 24 hours after filing notice of appeal; or

(b)in the case of any other appeal under Part 7 of the Coroners Act 2008, within seven days after filing notice of appeal.

58.38Certain appeals do not require directions

An appeal under section 79(1), 79(3), 81(1) or 85 of the Coroners Act 2008 shall be heard and determined by a Judge of the Court and Rule 58.39 does not apply to such an appeal.

58.39Directions

(1)In the case of an appeal under Part 7 of the Coroners Act 2008, other than appeal under section 79(1), 79(3), 81(1) or 85, within seven days after filing notice of appeal, the appellant shall apply on summons to an Associate Judge—

(a)for directions; and

(b)if necessary, for leave to appeal out of time in accordance with section 86 of the Coroners Act 2008.

(2)The application is taken to be made when the summons is filed.

(3)Not less than 14 days before the day for hearing named in the summons, the appellant shall serve on the respondent to the appeal the summons together with a copy of the affidavit filed under Rule 58.37 and any exhibit.

(4)Not less than five days before the day for hearing named in the summons the respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit.

(5)If at any time the Associate Judge is satisfied that the hearing of the summons should be expedited, the Associate Judge may of his or her own motion or on application bring the summons on for hearing.

(6)Subject to paragraphs (7) and (8), the Associate Judge shall give directions with respect to the appeal.

(7)If leave to appeal out of time is required—

(a)the Associate Judge shall determine whether leave to appeal is given; and

(b)if leave to appeal is refused, the Associate Judge shall dismiss the appeal.

(8)The Associate Judge may dismiss the appeal if satisfied that—

(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b)the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c)the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

58.40Expedition

(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 it thinks 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.

58.41Report from Coroners Court

The Court may call for a report from the Coroners Court and, if the contents of that report have first been made available to the parties to the appeal, the Court may act upon the report.".

6Revocation of Order 22 of Chapter II

Order 22 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008[2] is revoked.

Dated:    24 September 2009

M. L. WARREN, C.J.

GEOFFREY NETTLE, J.A.

DAVID ASHLEY, J.A.

MARCIA NEAVE, J.A.

ROBERT REDLICH, J.A.

PHILIP MANDIE, J.A.

P. D. CUMMINS, J.

D. L. HARPER, J.

D. J. HABERSBERGER, J.

K. WILLIAMS, J.

SIMON P. WHELAN, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

KIM HARGRAVE, J.

ANTHONY CAVANOUGH, J.

ELIZABETH CURTAIN, J.

TONY PAGONE, J.

JACK FORREST, J.

PETER VICKERY, J.

EMILIOS KYROU, J.

DAVID F. R. BEACH, J.

JENNIFER DAVIES, J.

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ENDNOTES

[1] Rule 4: S.R. No. 148/2005.  Reprint No. 1 as at 3 September 2007.  Reprinted to S.R. No. 91/2007 and subsequently amended by S.R. Nos 128/2007, 32/2008, 100/2008, 149/2008, 151/2008, 44/2009 and 60/2009.

[2] Rule 6: S.R. No. 94/2008 as amended by S.R. Nos 100/2008, 42/2009 and 44/2009.