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Practice notes

Every Issue

Cite as: November 2011 85(11) LIJ, p.65

FEDERAL COURT

New Practice Notes – CM 18 & CM 19

The Chief Justice has issued the following revised practice notes:

  • Practice Note CM 18 – Title of proceedings for relief under s39B of the Judiciary Act 1903 against Fair Work Australia; and
  • Practice Note CM 19 – Appointment of a judge as an examiner to take evidence overseas.

CM 18 applies to any proceeding in which relief is claimed in the nature of a constitutional writ under s39B of the Judiciary Act 1903 against Fair Work Australia (FWA), whether constituted by a single or more FWA members, a Full Bench or a person holding a delegation from the President or the General Manager of FWA to perform the relevant act or function. This practice note is to clarify the appropriate title of proceedings against FWA and was the subject of consultation with FWA. It is in similar terms to Practice Note 25, which was repealed on 25 September 2009 following the abolition of the Australian Industrial Commission.

CM 19 applies to applications for an order to appoint a judge to take evidence out of Australia and should be read in conjunction with Division 29.2 of the Federal Court Rules 2011. This practice note was developed in light of the decision in Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 and is similar to a practice note which has operated in the NSW Supreme Court since 2005.

The practice notes are available from the Federal Court’s website www.fedcourt.gov.au.

FEDERAL MAGISTRATES COURT

Amendments to FMC forms

Fair Work forms

In regard to applications in the Fair Work division of the Federal Magistrates Court (FMC), there have been minor amendments to Forms 2, 3 and 4.

In Part H of forms 2 and 3 and in Part I of form 4 an additional sentence has been added under the injunction tick box as follows:

Please specify on an attached sheet the terms of the injunction or injunctions sought.

The amended forms are available at www.fmc.gov.au/forms/html/workplace.html.

Draft Consent Parenting Orders

The Application – Draft Consent Parenting Orders and allegations of abuse or family violence has been amended. Aside from some formatting changes, the new form has a new explanatory paragraph at the bottom of page one and now allows for additional parties, and the ICL, to sign the same form.

The amended form is available at www.fmc.gov.au/forms/html/application_ parenting.html.

Adele Byrne, Principal Registrar, 21 September 2011

MAGISTRATES’ COURT

Civil Mediation Program

Practice Direction No 6 of 2011

Background

Practice Direction No 6 of 2007 created a mediation pilot program for certain defended civil proceedings at the Magistrates’ Court of Victoria (the Court) at Broadmeadows. Since then, the program has been extended to other venues of the Court. The purpose of this practice direction is two-fold:

(a) to change the name of the program to the Civil Mediation Program; and

(b) to extend it to the Court at Sale.

Since 2007, the program has been examined. It is successful and no longer should be described as a “pilot program”.

Directions

From 5 September 2011, the program will be known as the Civil Mediation Program.

From 3 October 2011, the Court will commence the program at Sale for all defended civil proceedings 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 in dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989.

The program will involve only those complaints where a notice of defence is filed at the Court at Sale on or after 3 October 2011.

In addition to serving on 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 to this practice direction (available on the Magistrates’ Court website www.magistratescourt.vic.gov.au).

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 the Court at Sale, 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 5 September 2011.

Ian L Gray, Chief Magistrate, 5 September 2011

MAGISTRATES’ COURT

2012 WorkCover country circuits

Ballarat

6–10 February

16–19 April (4 days)

30 July – 3 August

17–21 September

3–7 December

Bendigo

13–16 March (4 days)

21–25 May

6–10 August

15–19 October

Geelong

6–10 February

16–19 April (4 days)

16–20 July

15–19 October

3–7 December

Latrobe Valley (Morwell)

13–17 February

16–19 April (4 days)

2–13 July (2 weeks)

10–14 September

22–26 October

3–7 December

Mildura

16–19 April (4 days)

16–20 July

26–29 November (4 days)

Wangaratta

13–17 February

14–18 May

13–17 August

12–16 November

Warrnambool

30 January – 3 February

30 April – 11 May (2 weeks)

6–10 August

29 October – 2 November

Magistrates

Ballarat & Bendigo – B. Wright

Geelong & Warrnambool – Saines

Latrobe Valley – Garnett

Wangaratta – Barrett

Mildura: April – Lauritsen; July – Garnett; November – TBA.

STATE REVENUE OFFICE

New web page: Duties Act s42 and testamentary trusts

In recent times, the State Revenue Office (SRO) has seen a rise in the frequency of transactions lodged involving testamentary trusts.

What is a testamentary trust?

A testamentary trust is a trust which arises on the death of the testator, and which is specified in their will. In these circumstances the testator intends for the trustee to hold certain assets (commonly dutiable property such as land) in accordance with the terms of the testamentary trust for specified beneficiaries. At some future time the trustee distributes the land to the beneficiaries of that trust.

Duty implications

The question has arisen as to whether the deceased estates exemption in s42(1)(a) of the Duties Act 2000 would apply to exempt the transfer of dutiable property from the executor of the will to the trustee of the testamentary trust, where the trustee is someone other than the executor.

To ensure that customers are fully aware of how the SRO will treat such transactions, we have developed a new web page which provides detailed information on this issue. The new web page can be accessed at: www.sro.vic.gov.au/SRO/sronav.nsf/LinkView/ FAEA002D6C6EB3DFCA2578FE0081 902618E490D796850F8ECA2575C10 08187C7.

If you have any queries in relation to this information, please contact the SRO on ph 13 21 61.

Adrian Polizzi, Manager, Tax Information and Review (PTX/LTX), SRO Technical Advice and Review Branch

STATE REVENUE OFFICE

GAIC Practitioner’s Guide

The State Revenue Office (SRO) has issued an updated version of the Growth Areas Infrastructure Contribution (GAIC) Practitioner’s Guide. The Practitioner’s Guide has been updated to reflect the recent changes to the GAIC introduced by the Planning and Environment Amendment (Growth Areas Infrastructure Contribution) Act 2011 and provides a detailed summary of how the GAIC provisions are administered.

The Practitioner’s Guide can be accessed at http://bit.ly/sro-publication-gaic-02-11. If you have any queries in relation to the GAIC, please contact the SRO on ph 13 21 61 or email gaic@sro.vic.gov.au.

Adrian Polizzi, Manager, Tax Information and Review (PTX/LTX), SRO Technical Advice and Review Branch, 22 September 2011

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