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Practice notes

Every Issue

Cite as: (2009) 83(03) LIJ, p. 65


New practice notes

Due to space constraints the following new notices to practitioners have not been able to be included in this edition of the LIJ. Practitioners should refer to the relevant court or tribunal website for the full versions.

Federal Court

  • Conduct of admiralty and maritime work in the Federal Court of Australia
  • Federal Court Amendment Rules 2008 (No 2)

Supreme Court

  • Commercial Court
  • Judicial Review and Appeals List (Practice Note No 4 of 2008)
  • Personal Injuries List (Practice Note No 5 of 2008)
  • Court
  • Operation and management of the Damages (Medical) Division

Victims of Crime Assistance Tribunal

  • Access to files (Practice Direction 9/2008)
  • Koori VOCAT List (Practice Direction 10/2008)
  • Engagement of counsel assisting the Tribunal (Practice Direction 11/2008)

County Court

Proceedings under the Confiscation Act 1997 (Vic) and Proceeds of Crime Act 2002 (Cth)

Introduction

1. This practice note applies to proceedings under the Confiscation Act 1997 (Vic) and Proceeds of Crime Act 2002 (Cth). It is intended to be read in conjunction with the provisions of:

(a) the Confiscation Act 1997 (Vic) and the Proceeds of Crime Act 2002 (Cth);

(b) the Confiscation Regulations 1998 (and any successor Regulations) and the Proceeds of Crime Regulations 2002 (and any successor Regulations); and

(c) Order 10 of the County Court Miscellaneous Rules 1999 (and any successor rules) (Rules).

2. In 2009, the judge in charge of the Confiscation List of the County Court will be Judge McInerney or such other judge as may for the time being have charge of the list.

Making of an application under the Confiscation Act or Proceeds of Crime Act – general matters

3. The Rules provide that an application under the Confiscation Act (from 1 January 2007) or Proceeds of Crime Act is made on filing.

4. Applications shall be in the form prescribed by the Rules (see rls 10.05–10.08).

5. Where notice of an application is required by or under either Act to be given to any person, it shall be in writing and served on that person as follows:

(a) in proceedings under the Confiscation Act, in accordance with s137; or

(b) in proceedings under the Proceeds of Crime Act, personally or in such other manner as the Court directs.

6. Notice of any application to be made shall be given not less than 5 days before the day nominated for the hearing of the application (r10.08(3)).

7. Evidence to be adduced in support of an application under either Act shall be in accordance with r10.11 and the specific provisions of the Acts.

8. The first return of an application under either Act shall ordinarily proceed as a directions hearing (see below).

Appearances

9. Any party seeking to be heard in a proceeding under either Act shall be required to file and serve an appearance.

Applications for exclusion/revocation orders

10. Applicants for an exclusion order and, in respect of the Proceeds of Crime Act, a revocation order shall be in the prescribed form and:

(a) specify the nature and extent of the interest claimed by the applicant in the property sought to be excluded or made subject to revocation (as the case may be); and

(b) provide particulars of the grounds on which exclusion or revocation is sought unless, in respect of an exclusion application made under s20 of the Confiscation Act in relation to a Schedule 2 offence, the defendant does not wish to give such notice until the charge against the defendant is finally determined or is withdrawn.

11. Where the application lacks such particularity the Court may, on an application by the DPP/CDPP, direct the applicant for an exclusion or revocation order to provide further and better particulars. A failure to comply with such a requirement could result in the striking out of the relevant application.

12. Evidence in support of an application for an exclusion order under either Act shall be by affidavit and served on any person to whom notice of the application has been given (see r10.11).

13. The first return of an application for an exclusion/revocation order shall proceed as a directions hearing (see below).

Time limits for making exclusion/revocation applications

14. Practitioners should be aware of the specific requirements of the application to be made and the time limits applying to exclusion or (in respect of the Proceeds of Crime Act) revocation applications as contained in the Confiscation Act and Proceeds of Crime Act. Set out below is a guide to some of those requirements and time limits but is not intended to be exhaustive.

Confiscation Act – applications for exclusion orders

15. A time limit applies to the making of:

(a) an application under s20 by any person (including the defendant) for exclusion from a restraining order (see ss20(1A) and in relation to seeking an extension of time, s20(1B));

(b) an application under s49 by a person (other than the defendant) for exclusion from a forfeiture order (see s49);

(c) an application under s51 by a person (other than the defendant) for exclusion from automatic forfeiture (see s51).

Confiscation Act – automatic forfeiture of property following conviction

16. Automatic forfeiture of property to which a restraining order relates will occur in the circumstances specified in s35 of the Confiscation Act unless an application under s20 for an exclusion order is made within 60 days of the date of conviction or the making of the restraining order (whichever is later).

Proceeds of Crime Act – applications for exclusion/revocation orders

17. Applications may be made by the suspect or interested third parties for (inter alia):

(a) revocation of a restraining order pursuant to s42. Time limits apply to the making of the application or the seeking of an extension of time to make the application (see s42(1A));

(b) exclusion of property from a restraining order pursuant to ss30 or 31. A time limit applies to an exclusion application under s30 (see s30(1));

(c) exclusion of property from forfeiture pursuant to s74. A time limit applies to the making of the application (see s74(2)).

Proceeds of Crime Act – forfeiture on conviction of a serious offence

18. Under Part 2-3, forfeiture may occur where property is subject to a restraining order against the person and the person is convicted of a serious offence (as defined by the Proceeds of Crime Act) to which the restraining order relates. Practitioners should be aware of the following requirements:

(a) where forfeiture may occur under Part 2-3, the convicted person may make an application pursuant to s94 for an order pursuant to that section excluding property from forfeiture under that Part;

(b) an order cannot be made under s94 if the property has already been forfeited under Part 2-3 of the Act (see s94(2));

(c) forfeiture under Part 2-3 will occur at the end of the period of six months starting on the day of conviction, or if an extension order is in force, the end of that extended period (see s92(3));

(d) the meaning of “convicted” for the purposes of the Proceeds of Crime Act (see ss331(1)(a) and 333(2));

(e) time limits apply to the making of applications under ss102 and 103 for the transfer of or the buying back of forfeited property (see s104(1)).

Notice of grounds of opposition generally

19. Rule 10.10 provides that a person intending to oppose an application for an order or declaration shall give notice to the applicant of the grounds on which the application will be opposed. This requirement also applies to the DPP/CDPP when opposing applications for exclusion/revocation orders (for example, see ss20(4), 49(6), 51(8), 54(8) Confiscation Act and ss30(4), 31(6), 75(3), 94(5) Proceeds of Crime Act).

Files

20. Registry will allocate a file number to each new proceeding commenced under the Confiscation Act and Proceeds of Crime Act. Where applications are made within that proceeding for a revocation order (in respect of the Proceeds of Crime Act) or an exclusion order, each such application shall bear the same proceeding number but shall be allocated a different suffix. Where parties are specified in the originating process, those parties shall remain the same throughout the various applications to be made in the proceeding.

Management of the list

21. The Confiscation List is a specialist list set up to manage proceedings instituted under the Confiscation Act and Proceeds of Crime Act.

22. Directions hearings are held every Tuesday at 9.30am or such other time as the associate to the list judge advises or publishes (save for during the Court vacation period when urgent directions hearings should be listed in the Practice Court).

23. OPP and CDPP solicitors making applications for a restraining order should contact the Practice Court registrar to ensure that there is sufficient time in the next scheduled list for the hearing of the restraining order application.

24. Where there is an increased level of urgency in relation to an application for a restraining order, the associate to the list judge should be contacted with a view to having that application heard by the list judge at the judge’s earliest opportunity, failing which the associate to the judge in the Practice Court should be contacted to arrange for the restraining order application to be heard by the Practice Court judge (presently Judge Holt).

Directions

25. A directions hearing in relation to an application for an exclusion order will be listed by the registrar on the date requested by the applicant if available or as soon as practicable by the registrar if the requested date is unavailable.

26. Pursuant to r10.09(3), the List judge may give directions for the hearing of an application under each of the Acts which may include directions for:

(a) the filing and service of affidavits;

(b) the filing and serving of a party’s notice of grounds of opposition;

(c) the provision of further and better particulars;

(d) discovery of documents relevant to a dispute that are in the possession of a party;

(e) return of a subpoena;

(f) the making of a notice to admit or notice to produce;

(g) the fixing of an examination hearing under the Confiscation Act.

27. Standard civil forms of order should be used as required and amended as appropriate.

28. The parties are expected to negotiate the directions orders sought to be made in each case prior to the directions hearing.

Consent matters

29. Typed minutes of proposed consent orders signed by all parties together with a draft order may be delivered, faxed or sent by email to the list judge’s associate prior to 12 noon on the day preceding the date of the directions hearing. If such a course is followed, his Honour’s associate will advise the parties whether an attendance at the directions hearing is required. If an attendance is not required, the list judge will proceed to make the orders “on the papers” and the authenticated order of the Court will be available for collection from the associate to the list judge by prior arrangement.

30. Pro forma draft orders may be accessed on the County Court website at http://www.countycourt.vic.gov.au. Parties are encouraged to use such forms, amended as necessary, where possible.

Orders generally

31. The practice of the list judge’s associate sealing orders in court and handing them to practitioners shall continue where draft orders are tendered to the Court. Where draft orders are not tendered to the Court, the list judge will endeavour to sign forms of order in chambers after such orders have been emailed or faxed to the list judge’s associate. Where time constraints do not permit the foregoing, authenticated orders should be requested from the Court registry where sealed orders are required by a party.

32. Orders should be tendered to the Court in triplicate with the Court retaining one copy for the court file and two copies handed back to the parties.

Contested matters

33. Contested matters will be dealt with as advertised by the Law List. Where appropriate, the List judge may hear contested matters not exceeding 20 minutes (other than exclusion applications which are to be listed as a cause) in their order and such matters may, in the judge’s discretion, be heard on a directions list day. More lengthy contested matters may be put to the end of the list or adjourned to another day or listed as a cause as the case may require.

Liberty to apply

34. Parties in the Confiscation List are generally granted liberty to apply and are encouraged to do so if difficulties arise between dates set for directions hearings on application to the list judge’s associate (not to the County Court registry) by telephone, letter, email or facsimile. In an appropriate case, an application may be brought before his Honour on short notice.

Setting down for trial (and where necessary vacation of trial dates)

35. In the ordinary course, trial dates will not be allocated to a matter unless the list judge is satisfied that all of the interlocutory steps and affidavit evidence sought to be relied on by the parties has been filed in the matter.

36. On occasions, trial dates will need to be vacated. Applications to vacate trial dates should be made at the earliest opportunity and only in exceptional cases should this be within 14 days of the trial. The application should be made in the first instance to the list judge, or in the event of his unavailability, to the judge in charge of the Practice Court. Callovers of cases fixed for trial are not conducted.

37. If a case is set down for trial and a practitioner is seeking leave to file a notice of cessation to act, that application must be made at the earliest opportunity, as otherwise the practitioner may not be released from their obligations.

Settlements

38. If an action resolves, the Court should be informed at the earliest opportunity to enable hearing dates to be backfilled in order to maximise the use of judicial resources.

Circuit courts

39. The Confiscation List operates in the Melbourne registry only.

County Court contact

40. All inquiries regarding this practice note should be referred to the associate to Judge McInerney on ph 8636 6668.

Magistrates’ Court

Applications for summary hearing of indictable offences

Practice Direction No 3 of 2008

1. An application for the summary hearing of an indictable offence listed in the committal stream must be in writing and filed and served in the usual manner, unless the Court otherwise directs.

2. If the application for summary jurisdiction is granted in relation to the hearing of an indictable offence, so far as practicable the matter will thereafter proceed before that magistrate.

3. Where a defendant does not consent to a charge being heard summarily, the case shall be adjourned for filing hearing.

This practice direction has effect from 2 February 2009.

Chief Magistrate Ian L Gray
11 December 2008

Magistrates’ Court

Applications for bail after committal for trial

Practice Direction No 4 of 2008

Background

Practice Direction 3 of 2002 is hereby revoked.

New practice direction

An application for the granting, variation or revocation of trial bail after the date on which the committal proceedings have been concluded must be in writing and filed and served, unless the Court otherwise directs.

This practice direction has effect from 2 February 2009.

Chief Magistrate Ian L Gray
11 December 2008

Magistrates’ Court

Sexual Offences List: summary contest listings

Practice Direction No 5 of 2008

1. This practice direction applies with respect to criminal proceedings which relate wholly or partly to a charge of a sexual offence and where the proceedings are to be listed for a summary contested hearing.

2. A contest mention information form for summary contested hearings must be in Form A.* Before the date for a final summary contested hearing is fixed, this form must be filed with the Court either at the contest mention hearing or any other hearing where it is sought to fix the proceeding for a final summary contested hearing.

3. A notice of readiness for hearing must be in Form B.* This form must be filed with the Court not less than 14 days before the date for the summary contested hearing.

This practice direction commences on 1 January 2009.

Acting Chief Magistrate Daniel Muling
19 December 2008

* Due to space constraints these forms have not been reproduced here. The full practice direction (including forms) can be found at http://www.magistratescourt.vic.gov.au under Practice & Procedure.

Victims of Crime Assistance Tribunal

Extension of time for lodgment of application

Practice Direction No 6 of 2008

Purpose

The purpose of this practice direction is to specify the procedure to be followed when making an application to extend the time for lodging an application for assistance with the Victims of Crime Assistance Tribunal.

Background

Section 29 of the Victims of Crime Assistance Act 1996 provides as follows:

“29 Time for making application

(1) An application must be made within 2 years after the occurrence of the act of violence or, in the case of an application by a related victim or a person who has incurred funeral expenses, within 2 years after the death of the primary victim.

(2) The Tribunal must strike out an application made out of time unless it considers that, in the particular circumstances, the application ought not to be struck out”.

Procedure for making an application for extension of time

An application for extension of time shall be made in writing by filing an application for extension of time form.*

Such applications will generally be determined at the hearing of an application for assistance or at an earlier date if a Tribunal member is satisfied that the application should be granted on the basis of material filed, or lists the application for an extension of time hearing.

Revocation of previous practice direction

This practice direction revokes Practice Direction 3/2003 “Extension of time”.

Commencement

This practice direction has effect from 1 January 2009.

Chief Magistrate Ian L Gray
11 December 2008

* Due to space constraints the form has not been reproduced here. The full practice direction (including forms) can be found at http://www.vocat.vic.gov.au under Practice Directions & Guidelines.

Victims of Crime Assistance Tribunal

Directions hearings

Practice Direction No 7 of 2008

Purpose

The purpose of this practice direction is to provide guidance as to when it is appropriate to conduct a directions hearing.

When directions hearings may be held

Directions hearings may be held at any time when the Tribunal considers it appropriate.

The circumstances in which a directions hearing may be held include, but are not limited to, the following:

  • where the Tribunal has determined that a person with a legitimate and/or substantial interest (including an alleged offender) will or may be a party to the proceedings (see Practice Direction No 4 of 2008);
  • counsel assisting the Tribunal has been appointed;
  • access is sought to classified documents (as per Practice Direction No 9 of 2008) in a Tribunal file or access to a file is sought by a third party;
  • an application has been made for an extension of time;
  • there has been a delay or other deficiency in reporting the act of violence to the police;
  • pecuniary loss or a dependency award is claimed;
  • the Tribunal has been provided with adverse police material;
  • the application does not appear to disclose a relevant offence within the meaning of s3(1) of the Victims of Crime Act 1996; and
  • the application is incomplete or deficient.

The Tribunal may hold a directions hearing on its own initiative or at the request of a practitioner.

Applicants who are legally represented need not attend a directions hearing unless required to do so by the Tribunal.

In appropriate circumstances, the Tribunal may make final orders at a directions hearing.

Information provided at a directions hearing

The Tribunal may request the applicant or a person with a legitimate and/or substantial interest provide information at a directions hearing. The information that may be requested includes, but is not limited to, the following:

  • the number of witnesses to be called;
  • the estimated length of the hearing;
  • the need, if any, for alternative arrangements for giving evidence, including use of the remote witness facility or video conferencing facility;
  • details of documents to be exchanged or viewed;
  • details of the facts in dispute between the parties;
  • the need for interpreters; and
  • any other information which may affect the conduct of the final hearing.

Revocation of previous practice direction

This practice direction revokes Practice Direction 4/2003 “Directions hearings”.

Commencement

This guideline has effect from 1 January 2009.

Chief Magistrate Ian L Gray
11 December 2008

Victims of Crime Assistance Tribunal

Dependency claims

Practice Direction No 8 of 2008

Purpose

The purpose of this practice direction is to specify the procedure to be followed in relation to claims for financial assistance for dependency by a related victim of an act of violence.

Background

Section 13(1) of the Victims of Crime Assistance Act 1996 provides as follows:

“13 Assistance available to any one related victim

(1) Within the limit set by section 12, a related victim may be awarded by the Tribunal assistance of up to $50,000.

(2) The amount awarded to a related victim may be made up of amounts –

. . .

(d) for loss of money that, but for the death of the primary victim, the related victim would have been reasonably likely to receive from the primary victim during a period of up to 2 years after that death.

Section 3(1) of the Act provides that a “dependant, in relation to a deceased primary victim of an act of violence, means –

(a) an individual who was wholly or substantially dependent on the victim’s income at the time of the victim’s death or who would have been but for the incapacity of the victim due to the injury from which he or she died; or

(b) a child of the victim born after the victim’s death who would have been a dependant of the victim under paragraph (a) if he or she had been born before the victim’s death”.

Note: A related victim is only entitled to an award for dependency after exhausting all other entitlements available, including those available pursuant to Social Security, WorkCover and Transport Accident Commission legislation.

Procedure for making a claim for dependency

An application for an award for dependency shall be made in writing by filing a dependency claim form.* Claims for dependency must be supported by documentation that verifies the figures used to calculate the amount claimed. This may include:

  • details of gross pre-death earnings of the deceased primary victim, including how the pre-death earnings have been calculated;
  • tax returns of the applicant and the deceased primary victim for the three financial years before the death of the primary victim and the financial years between the date of death and the end date of the period for which the dependency claim is made;
  • details of potential eligibility entitlements and payments from WorkCover, Transport Accident Commission, Centrelink or any other payments received by the applicant or the deceased primary victim or to which the applicant or deceased primary victim’s estate may be entitled;
  • details of the assets and liabilities of the applicant, the estate of the deceased primary victim and the distribution of the estate assets;
  • details of the financial contributions made by the deceased primary victim to the applicant for the three financial years immediately before the death of the primary victim;
  • verification of the relationship between the applicant and the primary deceased victim, e.g. spouse, child, de facto relationship; and
  • all other information or documentation relevant to the claim.

Revocation of previous practice direction

This practice direction revokes Practice Direction 7/2003 “Dependency claim”.

Commencement

This practice direction has effect from 1 January 2009.

Chief Magistrate Ian L Gray
11 December 2008

* Due to space constraints the form has not been reproduced here. The full practice direction (including forms) can be found at http://www.vocat.vic.gov.au under Practice Directions & Guidelines.

AFP – Operations Coordination Centre (Canberra) Family Law

The Australian Federal Police Family Law Section is now known as the Australian Federal Police – Operations Coordination Centre (Canberra) Family Law. New contact details are:

Watch List Orders

Ph: (02) 6126 7999

Fax: (02) 6126 7914

Email: AOCC-PACE@afp.gov.au

Recovery Orders & Arrest Warrants

Ph: (02) 6126 7777

Fax: (02) 6126 7126

Email: AOCC-Family-Law@afp.gov.au

Web: http://www.afp.gov.au

(All sealed orders to be sent by fax only.)

These amendments should be made to the entry for the AFP – Family Law Section on p10 of the 2009 LIV Legal Directory and Diary.

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