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Practice notes

Every Issue

Cite as: December 2013 87 (12) LIJ, p.69

Federal Court of Australia

Replacement of Approved Form 21 and Practice Note CM 17

On 9 October 2013 the Chief Justice revoked Approved Form 21 – Opt Out Notice approved for the purposes of the Federal Court Rules 2011. At the same time he approved a revised version of this form.

The amendment to this form inserts an address to which the completed form should be sent.

Approved Form 21 is reproduced as the last page in Schedule A to Practice Note CM 17 “Representative Proceedings commenced under part IVA of the Federal Court of Australia Act 1976 (Cth)”. Consequential on the replacement of Approved Form 21 and, with effect from the same date, Practice Note CM 17 was also revised. There are two changes. Firstly the revised Approved Form 21 replaced the old form in Schedule A. Second, an explanatory paragraph is inserted into the Introduction of the practice note as a new para 1.1. The existing paragraphs in the Introduction are renumbered as paras 1.2 and 1.3 respectively.

The Approved Form and Practice Note are available from the Federal Court’s website at www.fedcourt.gov.au.

If you have any queries, please contact me on (02) 9230 8336.

JOHN MATHIESON, 10 October 2013

Federal Circuit Court of Australia

Change to Federal Circuit Court Migration Form

By way of the recent administrative arrangements, the department currently known as the Department of Immigration and Citizenship has changed to the Department of Immigration and Border Protection.

The Minister’s title has changed from the Minister for Immigration, Multicultural Affairs and Citizenship to the Minister for Immigration and Border Protection.

The Federal Circuit Court’s Migration Application has been updated to incorporate these changes.

The updated form is available at www.federalcircuitcourt.gov.au/forms/html/migration_application.html.

ADELE BYRNE, Principal Registrar, 1 October 2013

Federal Circuit Court of Australia

Change to Federal Circuit Court form – application – draft Consent Parenting Orders and allegations of abuse or family violence

Please be advised that the Chief Judge has approved changes to the above form.

In Part C Questions 3 and 4 have been expanded to include additional questions 3(b) and 4(b).

The updated form is available at www.federalcircuitcourt.gov.au/forms/html/application_parenting.html.

ADELE BYRNE, Principal Registrar, 15 October 2013

Federal Circuit Court of Australia

Change to Federal Circuit Court fees

Please be advised that pursuant to amendments made to the Federal Court and Federal Circuit Court Regulation 2012 and the Family Law (Fees) Regulation 2012, fees in the Federal Circuit Court have changed.

Please note new items 214A of the Federal Court and Federal Circuit Court Regulation 2012 and 10A of the Family Law (Fees) Regulation 2012, the new fee for filing of an application to register a New Zealand judgment under the Trans-Tasman Proceedings Act 2010, is $95.

Information on the Federal Circuit Court’s website has been updated at www.federal circuitcourt.gov.au/html/fees_general.html and www.federalcircuitcourt.gov.au/html/fees_family.html.

ADELE BYRNE, Principal Registrar, 22 October 2013

Magistrates’ Court of Victoria

Practice Direction No. 4 of 2013 – Mediation program (Ararat)

Background

Practice Direction 6 of 2007 created a mediation pilot program for certain defended civil proceedings at the Magistrates’ Court of Victoria (the Court) at Broadmeadows. The Purpose of this Practice Direction is to extend the civil mediation program to the Court at Ararat.

Directions

1. From 1 November 2013, the Court will commence a mediation program at the Magistrates’ Court at Ararat (the Program) for all defended civil disputes where the amount sought in the complaint is less than $40,000 or where the dispute is under the Associations Incorporation Act 1981 (irrespective of the amount or matter of dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989.

2. The Program will involve only those proceedings where a notice of defence is filed at the Court at Ararat on or after 1 November 2013.

3. In addition to serving upon a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve upon the defendant a document entitled “Information About Court-Annexed Mediation”, which is set out in the appendix of this Practice Direction.

4. Where a defendant seeks to defend a complaint and files and serves a notice of defence in order to do so, that person must return to Magistrates’ Court at Ararat at the same time as the notice of defence is filed a completed Section A, which is contained in the “Information About Court-Annexed Mediation”.

This Practice Direction commences from 1 November 2013.

PETER LAURITSEN, Chief Magistrate, 1 October 2013

Magistrates’ Court of Victoria

Practice Direction No. 5 of 2013 – Mediation program (Stawell)

Background

Practice Direction 6 of 2007 created a mediation pilot program for certain defended civil proceedings at the Magistrates’ Court of Victoria (the Court) at Broadmeadows. The purpose of this Practice Direction is to extend the civil mediation program to the Court at Stawell.

Directions

1. From 1 November 2013, the Court will commence a mediation program at the Magistrates’ Court at Stawell (the Program) for all defended civil disputes where the amount sought in the complaint is less than $40,000 or where the dispute is under the Associations Incorporation Act 1981 (irrespective of the amount or matter of dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989.

2. The Program will involve only those proceedings where a notice of defence is filed at the Court at Stawell on or after 1 November 2013.

3. In addition to serving upon a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve upon the defendant a document entitled “Information About Court-Annexed Mediation”, which is set out in the appendix of this Practice Direction.

4. Where a defendant seeks to defend a complaint and files and serves a notice of defence in order to do so, that person must return to Magistrates’ Court at Stawell at the same time as the notice of defence is filed a completed Section A, which is contained in the “Information About Court-Annexed Mediation”.

This Practice Direction commences from 1 November 2013.

PETER LAURITSEN, Chief Magistrate, 1 October 2013

Magistrates’ Court of Victoria

Practice Direction No. 6 of 2013 – Directions concerning the case direction notice

Background

The legislative structure in the Criminal Procedure Act 2009 of the function of the committal mention is contained in parts 4.5 and 4.6 of the Act. Central to this is the case direction notice which is to be signed by both parties and filed with the Court seven days prior to the first committal mention (section 118(1)).

The underlying philosophy of the legislation is that during the period from filing hearing to first committal mention the parties would either resolve the charges and proceed by way of summary hearing or straight hand-up brief; or alternatively, identify the issues in the case and the witnesses requested for cross-examination at the committal hearing.

The purpose of this practice direction is to ensure the parties address necessary issues prior to the committal mention and comply with their legislative obligations. The Court’s expectation will be that the direction of a particular case will be determined at the committal mention.

Direction

1. Commencing 4 November 2013, at least 14 days prior to the committal mention, the legal practitioners with conduct of the file representing the accused and the DPP respectively, will engage in discussion to explore resolution of the case.

2. In the event that resolution cannot be achieved, the parties will identify the relevant issues in the case and the witnesses requested for a contested committal.

3. In the Form 32 filed with the Court, the parties will provide details of the issues which prevented the case from resolving.

4. This practice direction will apply to all cases listed for committal mention on or after 4 November 2013, irrespective of when proceedings commenced.

PETER LAURITSEN, Chief Magistrate, 10 October 2013

Magistrates’ Court of Victoria

Practice Direction No. 7 of 2013 – Committal case conference

Background

The Court is concerned to reduce the number of committal proceedings which resolve at the door of the court, with the consequent non-utilisation of court time. It will therefore commence a pilot program in court 12 at the Court at Melbourne, with the purpose of exploring the resolution of the charges against an accused without the need of a committal hearing. The Court will use its powers under s127 of the Criminal Procedure Act 2009 to conduct committal case conferences.

Direction

1. The Court will commence a pilot program at the Court at Melbourne. On every committal mention hearing date, the Court will list four cases at 2.00pm for a committal case conference. These cases will have as their principal offence:

(a) an offence under Sub-Division 4 of Part 1 of the Crimes Act 1958; or

(b) the offences of robbery, armed robbery and aggravated burglary.

2. Both the informant and the accused will be represented by a legal practitioner who will be entirely conversant with the case and has authority to deal with it.

3. This pilot program will apply to all cases listed for a filing hearing on or after 4 November 2013. The pilot program will operate for nine months and will be evaluated after six months.

PETER LAURITSEN, Chief Magistrate, 10 October 2013

Magistrates’ Court of Victoria

Practice Direction No.8 of 2013 – Directions concerning Conduct of Civil Litigation

Background

Practice Direction No. 4 of 2009, in part, referred to the Magistrates’ Court Civil Procedure Rules 2009 S.R. No. 49 of 2009 (“the former Rules”). The former Rules were revoked on 1 January 2011 by R.1.04 of Magistrates’ Court General Civil Procedure Rules 2010 S. R. No. 140 of 2010 (“the Rules”).

The Court remains concerned as to three matters affecting the orderly conduct of civil litigation:

(a) the quantity and nature of certain documents filed with the Court remaining in its files;

(b) the absence of a copy of the Complaint from the Court’s file when it has been lodged by electronic transfer;

(c) the assertion by a party of the non-receipt from the Court of a Notice of hearing as being the reason for non-attendance at a proceeding.

Although there have been some improvements, these problems continue to exist and consequently, it is necessary to republish that Practice Direction with some modifications.

Directions

1. Practice Direction 4 of 2009 is revoked.

2. Except where provided for in the Rules or otherwise directed, no facsimile or other copy of a document shall be sent to or received in any Civil Registry of the Court. Any document which offends against this Direction will be rejected, and, wherever possible, returned. If not possible for any reason to return the document in question, it may be destroyed without notice to the sender. Where a facsimile is accepted, the original document need not be filed except on direction to do so by the Court or a Registrar.

3. No affidavit or exhibit referred to in an affidavit shall be lodged in the Court for filing unless required to be filed by the Rules or by an order or direction of the Court. A party wishing to rely upon an affidavit and any exhibits to a affidavit may tender them to the Court in the course of the hearing of the proceeding.

4. Where a complaint is filed by lodging an electronic message in accordance with the R4.04 (2) (b) of the Rules, a true copy of the complaint must be filed in the relevant registry of the Court prior to the plaintiff taking any further step in the proceeding.

5. Upon receipt of a “Notice of Hearing”, the party who has received it must, as soon as practicable thereafter, notify each of the other parties to the proceeding of the time, date and place of the hearing.

6. This practice direction operates from 4 November 2013.

PETER LAURITSEN, Chief Magistrate, 23 October 2013

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