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Practice Notes

Every Issue

Cite as: (2008) 82(6) LIJ, p. 73

Federal Court

Cite as: (2008) 82(6) LIJ, p. 73

Revocation of Practice Note No 20

On 2 April 2008 the Chief Justice revoked Practice Note No 20: “Guidelines – Disclosure by insolvency practitioners of fees to be charged”.

Practice Note No 20 was issued on 18 December 2003. It set out the information to be disclosed by insolvency practitioners in relation to their remuneration as liquidators or provisional liquidators.

The Corporations Amendment (Insolvency) Act 2007 (Cth) has amended various provisions of the Corporations Act 2001 (Cth), including those dealing with the disclosure, determination and review of the remuneration of administrators, provisional liquidators, liquidators and special managers.

The practice note is no longer considered to be necessary in light of the new and extensive disclosure provisions that have been inserted in the Corporations Act.

Philip Kellow
Deputy Registrar
3 April 2008

Federal Court

Cite as: (2008) 82(6) LIJ, p. 73

Federal Court (Corporations) Amendment Rules 2008 (No 1)

The Federal Court (Corporations) Amendment Rules 2008 (No 1) (the Amendment Rules) were registered on the Federal Register of Legislative Instruments on 14 April 2008. The Amendment Rules commenced the day after registration.

A copy of the Amendment Rules is available at http://www.comlaw.gov.au.

The Amendment Rules make the following amendments to the Federal Court (Corporations) Rules:

  • amend Div 9 of the Corporations Rules to reflect the new provisions of the Corporations Act in relation to the determination and review of the remuneration of administrators, provisional liquidators, liquidators and special managers;
  • insert a new Div 11A and Form 17A which prescribe the form of a warrant under sub-s486B(1) of the Corporations Act;
  • amend the disclosure requirements in Form 8 (the prescribed form of consent of a liquidator);
  • amend Schedule 2 to the Corporations Rules, which sets out the powers of the Court that a registrar may be directed to exercise, to reflect the changes to the Corporations Act and Div 9 of the Corporations Rules;
  • amend a number of rules and forms to replace each reference to “Commission” with a reference to “ASIC” to reflect the terminology used in the Corporations Act; and
  • update cross-references to a number of provisions of the Corporations Act and Corporations Regulations.

Philip Kellow
Deputy Registrar
11 April 2008

Federal Court

Cite as: (2008) 82(6) LIJ, p. 73

List of authorities and legislation proceedings generally

Practice Note No 19

Practice Note No 19 issued on 9 August 2006 is revoked and the following practice note is substituted.

This practice note applies to all final hearings, including appeals, unless and to the extent that the Court or a judge otherwise orders. It applies to all parties, including those who are not represented by a legal practitioner.

The Court or a judge may direct that this practice note also apply to an interlocutory hearing.

1. In this practice note:

  • applicant includes appellant.
  • required number of copies is the number of copies necessary to provide the judge (and in a matter before a Full Court, each judge) with a copy of the document and a copy for the court file.

2. The applicant must file, and serve on each other party, the required number of copies of its list of authorities and legislation, no later than 4pm, three clear working days before the hearing date.

3. The respondent must file, and serve on each other party, the required number of copies of its list no later than 4pm, two clear working days before the hearing date.

4. If a case in the list of authorities has been reported, a reference to the report of the case must be given, and if it has been reported in an authorised series of reports, the reference must be to the report in that series.

5. A reference to a case must include:

(a) the name under which the case is reported;

(b) its citation;

(c) a reference to the relevant page and part of the page (e.g. A v B 112 CLR 210 at 212.5) or, if the report contains numbered paragraphs that sufficiently identify the passage relied on, the relevant paragraph; and

(d) the medium neutral citation of the case (if any) and a reference to the relevant paragraph numbers.

6. References to legislation must specify the legislature and the relevant sections, regulations, rules or clauses. If the legislation is to be considered as it was at a particular point of time, the reference should state the point of time.

7. The list of authorities and legislation must be divided into Parts “A” and “B”. Part “A” must contain only authorities and legislation from which passages are to be read. Part “B” must contain authorities and legislation to which a party might refer, but from which passages are not to be read.

8. The Court will supply for the use of the judge or judges hearing the matter up to, but not more than, 10 cases on Part “A” of the list that are reported in the Commonwealth Law Reports, Federal Court Reports, Australian Law Reports and the authorised reports of the Supreme Court of the state or territory in which the application is to be heard. Where more than 10 cases are listed in Part “A” of the party’s list, the party must identify with a single asterisk the 10 cases that the party wishes the Court to provide for the judges.

8A. The Court will, unless a contrary indication is given, supply for the use of the judge or judges hearing the case a copy of the current compilation of the legislation referred to in Part “A” of the list. A party wishing to refer to legislation as at a particular point of time must provide the judge or judges with a copy of that legislation.

9. A party may identify in Part “A” up to five cases in addition to those referred to in para 8 to which the party wishes to refer at some length. These cases should be identified by a double asterisk. It is the responsibility of the party to hand up photocopies of those cases (or the relevant parts) for the use of the judge or judges during argument.

10. A party who intends to cite from:

(a) an unreported case; or

(b) the report of a case other than a case reported in the reports mentioned in para 8; or

(c) a book,

must provide photocopies of the case or of the relevant parts of the book for the use of the Court and each party during argument. A photocopy of part of a book must include a photocopy of the page or pages identifying its author, title, publisher, edition and year of publication.

11. A party may refer to an electronic version of a judgment that has been published in an authorised report, provided that the party has given a reference to the judgment in accordance with paras 4 and 5 and:

(a) if the judgment has a medium neutral citation – the passages to be relied on are identified by paragraph numbers; and

(b) for any other judgment – the passages to be relied on are identified by page numbers in the authorised report.

Chief Justice MEJ Black
18 April 2008

Federal Court

Cite as: (2008) 82(6) LIJ, p. 74

Tax List directions

Notice to practitioners and litigants (taxation) issued by the Chief Justice.

1. Conduct of tax proceedings in the Federal Court of Australia

1.1 This notice sets out revised arrangements for the management of tax cases. These will be coordinated regionally, within a national framework, by designated Tax List Coordinating Judges.

1.2 This notice deals with:

  • an improved approach to the national and regional management of tax cases;
  • the role of the Tax List Coordinating Judge in each region;
  • revised arrangements for the management of tax cases to promote the just and efficient determination of tax disputes in a timely manner.

1.3 These directions operate concomitantly with the Federal Court Rules; that is, practitioners may expect that the judges will administer cases in the Tax List in accordance with these directions.

2. National and regional framework

2.1 In each registry a judge has been appointed as the “Tax List Coordinating Judge”.

2.2 The initial Tax List Coordinating Judges are:

NSW & ACT – Edmonds J

Queensland – Dowsett J

South Australia & Northern Territory – Mansfield J

Victoria & Tasmania – Gordon J

Western Australia – French J

2.3 Practitioners may expect that the Tax List Coordinating Judges will emphasise the national and regional management of tax cases with the aim that the progress of cases is coordinated and expedited nationally and also within regions.

2.4 The Tax List Coordinating Judges will examine all tax cases in their respective registries and will liaise with each other regularly so that:

like cases are heard together;

common issues, wherever they arise, are heard together or sequentially;

information is disseminated, where appropriate, universally and uniformly to all judges hearing tax cases; and

the work of the Court is undertaken efficiently and expeditiously.

3. Commencement of proceedings

3.1 Application – Except as otherwise provided in these Directions, proceedings are to be commenced by the filing of an application in accordance with O.52B r4 of the Federal Court Rules. Save in a case to which O.52B r4(4A) applies, a sealed copy of the application must be served within five days after filing the application.

4. Appeal statements/O.52B r5 documents/pro forma questionnaire

4.1 Appeal statements – In addition to satisfying the requirements of O.52B r5(2), any appeal statement shall, avoiding undue formality, state in summary form:

(a) the basic elements of the party’s case or defence;

(b) where applicable, the relief sought;

(c) the issues the party believes are likely to arise;

(d) the principal matters of fact on which the party intends to rely; and

(e) the party’s contentions (including the legal grounds for any relief claimed) and the leading authorities supporting those contentions.

4.2 Time for filing and serving of appeal statements/O.52B r5 documents/pro forma questionnaire

(a) Commissioner’s appeal statement and O.52B documents – The Commissioner’s appeal statement (or appeal affidavit) and O.52B r5 documents must be filed and served on the applicant within 28 days of the date on which the application was served on the Commissioner.

(b) Applicant’s appeal statement – The applicant’s appeal statement must be filed and served on the Commissioner within 40 days of the date on which the application was served on the Commissioner.

(c) Pro forma questionnaire – The pro forma questionnaire (not reproduced here) must be completed, filed and served by each party within 40 days of the date on which the application was served on the Commissioner.

4.3 Non-compliance – Failure to adhere to these requirements may result in sanctions, including adverse costs orders and, in exceptional cases, recourse to the remedies available under the Federal Court of Australia Act 1976 and the Rules by way of summary or default judgment.

5. Initial directions hearing/scheduling conference

5.1 Date for scheduling conference – Save in a case to which O.52B r4(5)(a) applies, an initial directions hearing, called the “scheduling conference”, will be set down not less than 45 days from the date of the filing of the application. In urgent cases, the scheduling conference may, subject to O.52B r4(5)(b), be set down earlier.

5.2 Endorsement – The date for the scheduling conference must be obtained from the registry and must be stated on the application.

5.3 Attendance – The lawyers acting for each party are expected to attend the scheduling conference.

5.4 Scheduling conference – The scheduling conference will be conducted by the Tax List Coordinating Judge. At the scheduling conference, the parties will be expected to address the following:

(a) narrowing of issues – in clear outline, the issues and facts that appear to be in dispute;

(b) initial witness list – each party must bring to the scheduling conference an initial witness list with the name of each witness the party intends to call at trial. The list must include a very brief summary of each witness’s expected evidence and, unless it is otherwise obvious, must state the relevance of the evidence. Each party must provide a copy of the initial witness list to the Tax List Coordinating Judge and to the other party. The initial witness lists will be combined to create the “preliminary witness list”. The parties have an ongoing obligation to update the preliminary witness list by adding any additional witnesses that are expected to be called, or removing witnesses that are no longer expected to be called. The parties must, in a timely manner, notify the Court and all other parties of any updates to the preliminary witness list. The judge will determine whether the trial will be a “trial by affidavit” or a “trial by witnesses” with summaries of the expected evidence of each witness;

(c) pre-trial schedule – with the assistance of the lawyers, the Tax List Coordinating Judge will establish a pre-trial schedule for all interlocutory steps needed to bring the proceeding to trial including (when appropriate) a time by which the parties shall submit to and attempt mediation. The parties must adhere strictly to the timetable. Failure to adhere to the timetable may result in sanctions including adverse costs orders, rejection of late filings and, in exceptional cases, recourse to the remedies available under the Act and Rules by way of summary or default judgment.

(d) matters raised by the pro forma questionnaire – the parties will be asked to address any of the matters raised in the pro forma questionnaire including, in particular, any matter that either party considers will or may affect the work of the Court either generally or in relation to the particular case being undertaken efficiently and expeditiously.

(e) fixed trial date – a trial date will be set for as soon as practicable but, in any event, for no later than 12 months from the date of the scheduling conference. For urgent cases the trial date will be much sooner.

5.5 Reference to docket judge – After the conclusion of the scheduling conference, the Tax List Coordinating Judge will refer the matter to the registry for allocation to a judge (the docket judge) in accordance with the usual procedure for further management and trial.

5.6 Alteration of dates – Applications for adjournment of a trial or other hearing date or for an extension of time to comply with a timetable or the Federal Court Rules will not be granted merely on the agreement of the lawyers. No adjournment or extension of time will be granted other than for good cause and on such terms as the Court may impose.

6. Discovery

6.1 Limited discovery – Except where expanded or limited by the Tax List Coordinating Judge at the scheduling conference or the docket judge, discovery in cases in the Tax List will be confined to documents in the following categories:

(a) documents on which a party intends to rely;

(b) documents that materially affect the party’s own case adversely;

(c) documents that materially affect another party’s case adversely; and

(d) documents that materially support another party’s case.

6.2 Material effect and material support – Documents that materially affect or materially support a party’s case are documents that would enable a judge to reach a sound, complete and just decision in the case.

6.3 Reasonable search effort

(a) Parties are required to provide discovery of any document within the limited discovery categories that a party knows of at the time of the scheduling conference, or that the party becomes aware of at a later point in the pre-trial or trial process, or that the party discovers in the course of a good-faith proportionate search of its documents and records.

(b) A good-faith proportionate search is a search undertaken by a party in which the party makes a good-faith effort to locate discoverable documents, while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexity of issues raised by the case, including the type of relief sought and the quantum of the claim.

(c) If requested by any party, a party must describe briefly the kind of good-faith proportionate search it has undertaken to locate discoverable documents.

6.4 Additional discovery – A party may seek additional discovery in relation to discrete issues. In that event the judge will make a separate order for that purpose. The order may include a requirement that discovery be by inspection alone.

6.5 Discovery disputes – Before filing any application relating to a discovery dispute, the parties must meet and confer and attempt to resolve the dispute in good faith. If the parties are unable to resolve the dispute, any application to the Court must include a certificate by the moving party’s lawyer that the “meet and confer” requirement was completed, though unsuccessful. Failure to so certify will result in the application being immediately refused.

7. Interrogatories and particulars

7.1 Elimination of interrogatories – Interrogatories will not be permitted other than in exceptional circumstances.

7.2 Elimination of requests for particulars – Requests for particulars will not be permitted except in exceptional circumstances, it being expected that such questions will have been discussed at the scheduling conference.

8. Interlocutory applications/motions

8.1(a) Briefs required – Unless otherwise directed, interlocutory applications, whether or not made by motion, must be in writing and must be accompanied by a written brief (not exceeding five pages) setting forth a concise statement of the facts (if necessary verified by affidavit) and supporting arguments, with a citation of the authorities on which the moving party relies. The opposing party must file a responsive brief (not exceeding five pages) and such supporting documents as are appropriate within five days after service of the moving party’s brief. The moving party may file a short rebuttal brief within two days after service of the opposing party’s response brief.

8.1(b) Exceptions to brief requirement – Briefs need not accompany applications for simple directions.

8.2 Determination of applications without oral hearing – The general rule for interlocutory applications is that they are to be determined on written briefs. A party may request an oral hearing but it is intended that the process for determination with written briefs will usually make an oral hearing unnecessary.

8.3 Extensions of time – A request for an extension of time relating to an interlocutory application must be made in writing. It is intended that timetables be strictly adhered to and it may be expected that applications for extension of time will, generally, be looked on with disfavour.

9. Pre-trial conference

9.1 Time of pre-trial conference – A pre-trial conference with the docket judge will be held approximately three weeks prior to the scheduled trial date. The conference must be attended by the lawyers involved in the case and a representative, with authority, of each party. The pre-trial conference is intended to provide an opportunity for the parties and the judge to deal with any outstanding matters or applications before the start of the trial. At the pre-trial conference:

(a) agreed facts – the parties will be required to identify the material facts that are agreed and the material facts in dispute.

(b) finalise witness list – the parties will finalise the list of witnesses to be called at trial. The judge retains the authority to revisit the final witness list at any time to discuss any issues or concerns arising during the trial. It may be expected that witnesses who are not on the final witness list will not, save in exceptional circumstances, be permitted to give evidence.

(c) objections to evidence – the parties should be ready to deal with any objections to the evidence proposed to be tendered. The judge will rule on those objections, unless they are more conveniently dealt with at the trial.

(d) joint exhibit list – the parties will jointly submit a numbered list of the exhibits the parties intend to use at trial. The list will include a copy of the exhibit and, where not obvious, a short description of the exhibit and a statement of its relevance. The judge will examine the list with the parties and discuss any perceived issues or concerns with the proposed exhibits.

The judge retains the authority to revisit the joint exhibit list at any time to discuss any issues or concerns arising during the trial. Exhibits that are not on the joint exhibit list will not, save in exceptional circumstances, be permitted to be tendered at trial.

10. Judgment

10.1 In accordance with the Court’s general protocol for the disposition of cases, the Court will endeavour to deliver judgment promptly, and in urgent cases very quickly. In urgent cases, if the circumstance make it desirable to do so, the Court may deliver a judgment with reasons to follow later.

Chief Justice MEJ Black
4 April 2008

Magistrates’ Court

Cite as: (2008) 82(6) LIJ, p. 76

Listing protocols

1. Listing protocols

These protocols are established to support the purposes of the Magistrates’ Court Act 1989 (the Act). Section 1 of the Act states:

“The main purposes of this Act are:

(a) to establish the Magistrates’ Court of Victoria; and

(b) to amend and consolidate for the purposes of the new Court the law relating to the jurisdiction and procedure of Magistrates’ Courts; and

(c) to provide for the fair and efficient operation of the Magistrates’ Court; and

(d) to abolish inefficient and unnecessary court process and procedures; and

(e) to allow for the Magistrates’ Court to be managed in a way that will ensure –

(i) fairness to all parties to court proceedings; and

(ii) the prompt resolution of court proceedings; and

(iii) that optimum use is made of the Court’s resources”.

Section 136 of the Act provides the Court with the power to control its proceedings.

The procedures prescribed by these protocols are subject to, and do not take precedence over, legislative requirements or the principles of natural justice.

These protocols apply to cases heard by magistrates, acting magistrates and judicial registrars.

1.1 Purpose

To list cases within specified timeframes to achieve:

  • consistency of practice within the Court;
  • standardisation of coordination procedures throughout the state;
  • timely hearing and disposal of cases;
  • flexible listings;
  • reduction of waiting times at court; and
  • improved safety and security at courts.

Although the principles applicable to listings are principles that apply statewide, the detailed practice will need to reflect local conditions, including travel to and from country courts.

1.2 Therapeutic jurisprudence/restorative justice

It is recognised that in cases where therapeutic jurisprudence or restorative justice is given greater weight, compliance with these protocols will frequently not be appropriate. Additional adjournments and/or the deferral of sentence will frequently be appropriate and necessary in these cases.

1.3 Court hours

The Court’s ordinary hours of business are between 9am and 4.30pm. Most cases are heard between 10am and 4pm.

The Court controls all case listing by reference to both the nature of the case and appropriate listing times.

The Court maintains an after hours service,1 i.e. after 5pm until the next sitting day as well as weekends and public holidays.

2. Criminal

2.1 Summary crime

Listing timeframes

The Court aims to list criminal cases in accordance with the following timeframes:

  • First mention hearing to further mention hearing: 2-4 weeks;
  • First/second mention hearing to plea: 2-4 weeks;
  • From first mention hearing to contest mention hearing: 4-8 weeks;
  • From mention to hearing (less than three hours with no contest mention): 6-10 weeks;
  • From contest mention to hearing:
    10-14 weeks.

* The above timeframes do not apply to cases involving persons in custody.

Proceedings may be adjourned at the discretion of the Court. There is no right to an “automatic” adjournment on the first mention date2 of a case. One of the case management objectives of the Court is to reduce delay.

Summary mentions

Prosecuting agencies are to list cases for mention by arrangement with the appropriate coordinating registrars.

The maximum number of cases listed on any particular day will be set by the coordinating registrar in consultation with the regional coordinating magistrate and senior registrar.

Co-defendants must be listed on the same return day where practicable.

The Court aims to finalise 85 per cent of criminal cases within six months of the original filing of the charges.

2.2 Procedural matters

Appearances

The Court expects all practitioners and representatives involved in matters to notify the Court of their appearance no later than 3.30pm the day before the hearing. This can be via telephone, fax or email. Any request for a “not before time” or “preferred hearing time” should be made on this notification.

Time estimates: practitioners/parties are expected to give accurate time estimates in all cases and provide the following information:

  • whether pre-sentence reports are available;
  • whether witnesses will be called; and
  • whether pre-sentence assessment reports will be required.

Administrative adjournment

A registrar may adjourn a proceeding on the application of a defendant pursuant to Schedule 2 cls 3 (a) and (b) of the Act. A registrar should only adjourn the first mention of a matter to a subsequent further mention, contest mention or hearing within the above timeframes. Any application for adjournment outside the timeframes should be referred to a magistrate, irrespective of whether it is the first mention date. The reason for the granting of the adjournment will be noted on the court file.

Parties should consult prosecution agencies prior to the making of an application for adjournment.

Subsequent adjournments by a registrar of proceedings listed for further mention should not exceed 2-3 weeks.

Unrepresented defendants who wish to plead not guilty should go before the Court for an adjournment of the matter. (This enables the Court to case manage “in person” defendants.)

Any application for an adjournment subsequent to a Bench warrant being executed should be referred to a magistrate.

Adjournment of summary contest 3

Any application for an adjournment should be listed prior to the date of hearing where practicable. All applications must be determined by a magistrate.

Matters listed for contest mention4

Cases should not be listed for contest mention unless a plea of not guilty has been indicated to the charges filed. This indication must be from the defendant in person or a properly instructed legal practitioner.

Cases should not be listed for contest mention if the Court’s estimated time for a contested hearing of the charges is less than three hours, unless the defendant’s legal practitioner requests that the case go before a magistrate.

Cases should not be listed for contest mention without confirmation that the prosecution brief has been received by the defendant’s practitioner or the defendant in person.

Any request to list a case for contest mention contrary to these protocols will be determined at the discretion of the Court.

Matters listed for a special mention5

Special mentions may be listed at any time prior to any matter that has been booked in for hearing and is estimated to take three days or more. Special mentions are to be listed before the magistrate allocated to hear the case and should, where practicable, be listed at 9.30am or 2pm.

Serious/complex criminal cases

Any criminal case identified by the Court or parties to be a serious or complex matter may require case management by a magistrate and should be booked in with the coordinator. These cases will be listed/scheduled at a time that takes account of their nature, duration and complexity.

Consolidations and lengthy pleas

Lengthy consolidations6 or lengthy pleas (total time greater than 30 minutes) must be booked in for hearing. The primary consideration when assessing where a consolidated matter should be heard is “proper venue”.

Prior to a court transferring a file to another venue, the party requesting the consolidation and transfer must confirm that they have sought and obtained consent of the coordinating registrar of the hearing court.

2.3 Bail applications

Bail application on first remand date

It is not necessary for practitioners to file an application for bail where it is proposed to make application at the first remand hearing.

It is the expectation of the Court that the informant or their representative will be present at a first remand hearing.

Where possible, such applications will proceed on the day, subject to duration and available hearing time.

Applications for bail after first remand hearing

Practitioners must contact the relevant coordinator, at the proper venue for the application to be listed, and obtain a suitable hearing date and time for any application for bail.

The faxing of an application without contacting the relevant coordinator to obtain a date may result in the application not being listed.

Practitioners must advise as to estimated duration, number of witnesses and any other information requested by the coordinator.

Where bail has previously been refused by a magistrate, the practitioner must advise the coordinator of the date of the hearing and the name of the presiding magistrate. Such applications will be listed before the magistrate who refused bail where this is possible, within acceptable timeframes.

Jail orders are the responsibility of the practitioner listing the application.

Practitioners are to notify the informant and prosecuting agency of the date allocated for hearing of the application a “reasonable time” prior to hearing.

The coordinator will, in listing, seek to accommodate date requests by practitioners, but will list according to resource availability.

Co-defendant applications will be listed before the same magistrate where this is possible within acceptable time frames.

These applications for bail will be listed at 10am. It is the expectation of the Court that all listed applications will be ready to proceed at that time.

2.4 Committal proceedings

The conduct of committal proceedings is governed by Schedule 5 of the Act and the Magistrates’ Court (Committal) Rules 1999.

The Court will list committal hearings at suburban courts pursuant to the Chief Magistrate’s Practice Direction 2 of 2006.

When a committal of one day’s duration or less (excluding sex offence committals) is to be listed as a contested committal, the Melbourne Committal Coordinator’s Office will determine whether the matter is to be listed at Melbourne or a suburban court by applying proper venue principles and listing on the earliest available date.

Listing timeframes

  • Filing hearing to committal mention: 8-12 weeks;
  • Committal mention to committal: 10-14 weeks.

All applications for adjournment of matters within the committal stream must be determined by a magistrate.

Case conferences7 are to be listed at 9.15am.

2.5 Sex Offences List

Sexual offences listed in the committal stream where the complainant is a child or a person with a cognitive impairment are subject to the provisions of Schedule 5 cl 10A of the Act, which requires the determination of the proceeding within 60 days of the first or final committal mention date.

(For further detail regarding listing practices for the Sex Offences Management List, refer to Chief Magistrate’s Practice Directions 2, 3 and 4 of 2007.)

Listing timeframes

  • Committal mention to committal (child or cognitively impaired witness): 60 days.

3. Civil and WorkCover

3.1 Civil timeframes

  • Filing of notice of defence to pre-hearing/hearing/arbitration: 8-12 weeks;
  • Pre-hearing to hearing: 12 weeks.

These timeframes will apply whether or not the proceeding is as an arbitration of a small claim.

A pre-hearing conference is to be listed where the claim is for a sum of $10,000 or more.

3.2 Civil adjournments

Pre-hearing conferences

Any application for an adjournment of a pre-hearing conference (whether by consent or otherwise) must be made in writing to the registrar before whom the conference is fixed. The application must fully describe the reasons on which the application is based and must be filed no later than 4pm on the day before.

Any subsequent application for an adjournment of a pre-hearing conference (whether by consent or otherwise) may be made to the registrar before whom the pre-hearing conference is fixed.

Civil hearings

Any application for an adjournment of a civil hearing (by consent or otherwise) must be approved by a magistrate or coordinating registrar. A registrar should not administratively adjourn any civil hearing on more than one occasion. All subsequent requests for adjournments of civil hearings must be referred to a magistrate.

Matters listed for a special mention8

Special mentions may be listed at any time prior to any matter that has been booked in for hearing and is estimated to take three days or more. Special mentions are to be listed before the magistrate allocated to hear the case and should, where practicable, be listed at 9.30am or 2pm.

3.3 WorkCover timeframes

  • Filing of a notice of defence to directions hearing: 10 weeks;
  • First mention to hearing: 8 weeks.

Please note: Pre-hearing conferences are not conducted in proceedings under the Workers Compensation Act 1958 or Accident Compensation Act 1985.

The Court aims to finalise 75 per cent of defended civil claims within six months of a notice of defence being filed.

4. Family violence

The following protocols for the listing of intervention order proceedings within the Magistrates’ Court of Victoria were developed in recognition of the need to simplify access to the justice system and increase the protection of people who have experienced family violence.

Intervention order proceedings are to be listed as follows:

4.1 Family violence timeframes

Complaint and summons for an intervention order

  • Summons, application to extend, revoke or vary an intervention order
  • For service in Victoria: within 7 to 14 days of summons being issued;
  • For service interstate: within 21 days of summons being issued.

Complaint and warrant for an intervention order

  • Where defendant has been arrested and remanded in custody on the execution of the warrant: next business day.
  • Where defendant has been arrested and remanded on bail on the execution of the warrant: as soon as possible, preferably on a day designated for family violence proceedings at the relevant court venue.
  • Application for substituted service: on the same day the application is filed or next suitable sitting date.

Proceedings

  • Interim intervention orders: on the same day that the application is filed.
  • Contested complaint for an intervention order: within 4 to 6 weeks of the date the complaint is adjourned from.
  • Contested application to extend, revoke or vary an intervention order: within 4 to 6 weeks of the date that the application is adjourned from.
  • Application for substituted service: on the same day the application is filed or next suitable sitting day.

Dedicated courtroom

Where practicable, a dedicated courtroom is to be allocated to the hearing of all complaints for an intervention order and other related applications.

Specific weekdays for the return of proceedings

Specific weekdays are required to be identified at each court venue for the hearing of intervention order proceedings. Where practicable, this is to include a Monday to cater for the hearing of complaints for intervention orders that were made over the weekend.

Separating proceedings relating to family members and s21A of the Crimes Act 1958

Intervention order proceedings relating to family members, and those that arise pursuant to s21A of the Crimes Act 1958, are to be listed separately (where practicable).

Note: The Court has commenced a number of family violence pilot programs operating at Melbourne, Heidelberg, Sunshine, Frankston and Ballarat. Confirmation of listing practices at these venues is advisable.

The Court aims to finalise 97 per cent of all complaints within six months of initiation.

4.2 Family law

Family law timeframes

l Applications: 28 days;

l Respondent interstate: 42 days;

l Consent applications (must be accompanied by all supporting documentation and draft orders): 7 days.

5. Victims of Crime Assistance Tribunal (VOCAT)

VOCAT was established by the Victims of Crime Assistance Act 1996 (VOCAT Act) to acknowledge and provide financial assistance to victims of crime to assist them in their recovery from an act of violence.

These listing protocols recognise that VOCAT is intended to provide a sympathetic and compassionate forum for applicants to relate their experience as victims of violent crime, and that a hearing often provides an avenue for victims to receive open acknowledgment and validation that they have been a victim of crime.

5.1 VOCAT timeframes

VOCAT aims to list hearings in relation to applications for financial assistance within the following timeframes:

  • Where VOCAT member decides to conduct a hearing of an application: 6-10 weeks of advice from VOCAT member that hearing is to be conducted.
  • Where applicant elects for application to proceed to hearing rather than proceeding pursuant to s33 of the VOCAT Act: 6-10 weeks of receipt of advice from applicant that hearing is required. VOCAT aims to finalise 60 per cent of applications within nine months of the application being lodged.

The time taken to finalise an application will vary between applications. In determining an application for financial assistance, VOCAT is required by the VOCAT Act and legal precedent to have regard to certain matters which impact on the time taken to finalise an application. Before finalising an application, a VOCAT member may determine that it is appropriate to await the outcome of a criminal investigation or trial, may request that further inquiries be made or that the alleged offender be notified of the application, or decide that they will wait for an injury to stabilise so that an accurate prognosis can be provided to VOCAT.

6. Coroner’s Court

The State Coroner’s Office is committed to serving the people of Victoria by discharging its duty in a sensitive, courteous and professional manner.

The cornerstone of this service is respect for:

l the dignity of the person who has died;

l the family and friends of the deceased person; and

l a process aimed at assisting family and friends to understand what happened and why.

The website http://www.coronerscourt.vic.gov.au will help you become familiar with the role of the State Coroner’s Office and provide some information about the Coroner’s investigation process.

7. Children’s Court

The Children’s Court of Victoria operates under the Children, Youth and Families Act 2005 as a specialist court with three divisions to deal with matters relating to children and young people.

  • The Family Division hears applications relating to the protection and care of children and young persons at risk, and applications for intervention orders.
  • The Criminal Division hears matters relating to criminal offending by children and young persons.
  • The Children’s Koori Court (Criminal Division) hears matters relating to criminal offending by Koori children and young persons, other than sexual offences.

Family Court of Australia

On occasions, members of the public confuse the work of the Family Division of the Children’s Court of Victoria with that of the Family Court of Australia. The Family Court is a federal court established under the Family Law Act 1975 (Cth). The Family Court has responsibilities which include granting divorces (dissolution of marriage), and associated matters such as child residence and contact arrangements, maintenance and property issues.

The website http://www.childrenscourt.vic.gov.au provides detailed information concerning the Children’s Court of Victoria.

1. The Magistrates’ Court after hours service is confined to urgent applications for warrants and urgent applications for interim intervention orders.

2. Mention date: the first date on which the proceeding is listed before the Court.

3. Summary contest: a matter booked in to be heard as a plea of not guilty.

4. Contest mention: a procedural hearing before a magistrate designed to deal with issues between the prosecution and the defence.

5. Special mention: a procedural hearing before a magistrate designed to resolve preliminary issues that may affect the matter proceeding on the hearing date.

6. Consolidation: the listing of a plea of guilty of multiple cases involving a defendant.

7. Case conference: a procedural hearing before a magistrate designed to facilitate further discussion between parties and assist in case management.

8. Special mention: see note 5 above.

Cash rate target

Cite as: (2008) 82(6) LIJ, p. 79

From 6 December 2007 law practices whose matters are governed by the Legal Profession Act 2004 cannot use the penalty interest rate for their accounts. The maximum rate is the cash rate target plus 2 per cent. The cash rate target is currently 7.25 per cent (from 5 March 2008). To monitor any changes between editions of the LIJ, practitioners should check http://www.rba.gov.au/statistics/cashrate_target.html.

Value of penalty and fee units

Cite as: (2008) 82(6) LIJ, p. 79

For the financial year commencing 1 July 2007, the value of a fee unit is $11.02 and the value of a penalty unit is $110.12 (Victoria Government Gazette G12, 22 March 2007).

Penalty interest rate

Cite as: (2008) 82(6) LIJ, p. 79

The penalty interest rate is 12 per cent per annum (from 1 October 2006).

To monitor any changes to this rate between editions of the LIJ, practitioners should check The Age newspaper on Mondays under the Law List.

Court websites

Cite as: (2008) 82(6) LIJ, p. 79

To check for new court practice notes issued between editions of the LIJ, practitioners should refer to the following websites:

High Court http://www.highcourt.gov.au

Federal Court http://www.fedcourt.gov.au

Family Court http://www.familycourt.gov.au

Federal Magistrates Court http://www.fmc.gov.au

Supreme Court http://www.supremecourt.vic.gov.au

County Court http://www.countycourt.vic.gov.au

Magistrates’ Court http://www.magistratescourt.vic.gov.au

VCAT http://www.vcat.vic.gov.au

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