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Practice Notes

Practice Notes

By Law Institute Journal

Family Court Practice & Procedure 


High Court of Australia HIGH COURT AMENDMENT (2016 MEASURES NO 1) RULES 2016 These Amendment Rules of Court are made by the Justices under the Judiciary Act 1903, the Commonwealth Electoral Act 1918, the Nauru (High Court Appeals) Act 1976 and the High Court of Australia Act 1979. The High Court has reviewed the procedures governing the filing and determination of applications for leave and special leave to appeal to the Court and has decided to streamline some of the processes in order to reduce the time between filing and determination of applications and to reduce the cost to the parties. The Amendment Rules incorporate the new special leave procedures (in Part 41) and the amendments required to bring Part 26 (dealing with applications for removal of proceedings pending in other courts) into line with the new procedures. The Amendment Rules also provide a new form for the outline of oral submissions required in Full Court hearings. The Amendment Rules amend the following parts of the High Court Rules: Part 26 – Applications for removal pursuant to s40 of the Judiciary Act 1903 Part 41 – Applications for leave or special leave to appeal Part 44 – Written and oral submissions Schedule 1 – Forms. The amendment provisions commenced on 1 July 2016. High Court of Australia, 21 June 2016 Family Law Courts E-DIVORCE As part of the Family Court of Australia and Federal Circuit Court of Australia’s eDivorce strategy, there have been some recent changes related to process and website information for filing divorce applications and the availability of the Application for Divorce Kit from the Courts. The Courts are moving to a completely electronic divorce file, which means a significant shift away from paper filing to eFiling using the interactive online form in the Commonwealth Courts Portal (www.comcourts.gov.au). eFiling has many benefits – there is no need to visit or queue at registries, filing fee payments are processed securely online, 24/7 access to court files, less chance for errors in applications (step-bystep guide), option to select the most suitable court date and the option to receive email notifications and alerts about the status of matters. As part of this strategy the How do I Apply for Divorce? webpage has been redeveloped as a dynamic interactive page to assist clients with applying for divorce and a new How do I register for the Commonwealth Courts Portal and eFile an Application for Divorce? (www.federalcircuitcourt. gov.au) has also been launched. Some of the new features include interactive steps to assess a client’s eligibility to apply for divorce in Australia and to ensure they have all the documents and/or evidence that is required to complete their online application. Additional information that is relevant to specific cases, for example “married less than two years” or “can’t locate your spouse” are also now dynamic with concertina content that expands when clicked. The Application for Divorce Kit is no longer available on the websites. Clients who for some reason (including no internet, no credit card, fee reduction for financial hardship, no printer/scanner) cannot eFile their divorce application can contact the National Enquiry Centre by livechat on the websites or email enquiries@familylawcourts.gov.au (during business hours) to request an electronic or hard copy of the kit. The kit will no longer be provided as a “form” to precedent holders. Divorce applications should be eFiled using the interactive online Application for Divorce in the Commonwealth Courts Portal. National Communication, Family Court of Australia | Federal Circuit Court of Australia, 15 June 2016 Federal Circuit Court of Australia PRACTICE DIRECTION 1 OF 2016 – CONSENT ORDERS IN PROCEEDINGS INVOLVING A FEDERAL TRIBUNAL This Practice Direction applies to any proceeding in which there is a challenge to a decision of the Commonwealth Administrative Appeals Tribunal or any other tribunal established under a law of the Commonwealth (the Tribunal). If the parties propose that an order be made with their consent, the effect of which is to set aside or vary an order of the Tribunal (consent order), they must file the proposed consent order and, with it, a notation concisely setting out the matters said to justify the making of the proposed order and giving references to any authorities or statutory provisions relied on. The proposed order must be signed on behalf of all parties. As well, the two original copies must be filed. If the proposed consent order relates only to costs, only the proposed consent order need be filed. If the Court makes a consent order the parties must, within seven days of the order being made, serve a copy of the order and the supporting statement (if any – see paragraph 2) on the Tribunal. Note: The Practice Direction does not apply to migration proceedings in which there is a challenge to a decision of the Minister or a delegate of the Minister or a report recommendation to the Minister. In respect of those proceedings, the current practice will continue to apply, that is, for the submission of a note to accompany the draft consent order explaining the legal reasoning for the consent order. J Pascoe, Chief Judge, 31 May 2016 Magistrates’ Court of Victoria PRACTICE DIRECTION NO 5 OF 2016 – DIRECTIONS CONCERNING CONDUCT OF CIVIL LITIGATION Background On 31 July 2009, the Chief Magistrate issued Practice Direction No 4 of 2009. It dealt with three matters affecting the orderly conduct of civil litigation: the number and nature of certain documents filed with the Court and appearing on its files the absence of a copy of the complaint on the Court’s files where the complaint is lodged by electronic transfer and the plaintiff wishes to take some step in the proceeding or the proceeding is defended the failure of parties to attend Court events and claiming that they were not notified of the event. The purpose of the Practice Direction is to revoke Practice Direction No 4 of 2009 and re-issue its contents with minor changes regarding electronic transfer. Directions Practice Direction No 4 of 2009 is revoked. Except where provided for in the Magistrates’ Court Civil Procedure Rules 2009 (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 or where not possible, destroyed. Where a facsimile is accepted, the original document need not be filed except by direction of the Court or registrar. No affidavit or exhibit or annexure 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 of the Court. A party wishing to rely on any exhibit to an affidavit may tender it to the Court in the course of the hearing of the proceeding. Where a complaint is filed by lodging an electronic message in accordance with r4.02.4 of the Rules, a true copy of the complaint, together with certificates pursuant to ss41 and 42 of the Civil Procedure Act 2010, must be filed in the relevant registry of the Court: at the time of taking any further step in the proceeding, or where a notice of defence is filed, within 21 days after the giving of notice by the defendant. On receipt of a “notice of hearing”, whether for a hearing of a proceeding, arbitration, pre-hearing conference, mediation or interlocutory application or summons, a party must, as soon as practicable thereafter, notify each of the other parties to the proceeding of the time, date and place of hearing. This Practice Direction commenced on 1 July 2016. Peter Lauritsen, Chief Magistrate, 17 June 2016 Magistrates’ Court of Victoria PRACTICE DIRECTION NO 6 OF 2016 – MEDIATION PROGRAM 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. The purpose of this Practice Direction is to extend the civil mediation program to the Court at Dandenong. Direction From 8 July 2016, the Court commenced a mediation program at Dandenong (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 unless the Court determines otherwise on application by any party. The Program involves only those proceedings where a notice of defence has been filed at the Court at Dandenong on or after 8 July 2016. In addition to serving on a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve on the defendant a document entitiled “Information About Court-Annexed Mediation”, which is set out in the appendix of this Practice Direction. 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 Magistrates’ Court at Dandenong at the same time as the notice of defence is filed with a completed Section A, which is contained in the “Information About Court-Annexed Mediation”. This Practice Direction commenced on 8 July 2016. Peter Lauritsen, Chief Magistrate, 1 July 2016 Magistrates’ Court of Victoria PRACTICE DIRECTION NO 7 OF 2016 – MEDIATION PROGRAM 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 expanded to a number of other venues of the Court. Over the last year it has become clear that certain types of disputes are less suited to the mediation process: claims for damage to property arising out of motor vehicle accidents where the amount sought is less than $10,000; and claims for the recovery of hire car costs only, irrespective of the amount sought. The purpose of this Practice Direction is to exclude these claims from the program. Direction From 8 July 2016 the following claims are excluded from the program: claims for damage to property arising out of motor vehicle accidents where the amount sought is less than $10,000, and claims for the recovery of hire car costs only, irrespective of the amount sought. This Practice Direction applies to all venues of the Court where the program is conducted including Dandenong. This Practice Direction only applies to proceedings issued on or after 8 July 2016. This Practice Direction commenced on 8 July 2016. Peter Lauritsen, Chief Magistrate, 1 July 2016 State Revenue Office CHANGES TO DUTIES FORM 62 – PURCHASER STATEMENT The definition of residential property in Duties Form 62 – Purchaser Statement has been clarified following changes set out in the State Taxation and Other Acts Amendment Act 2016. The definition of transferee in Part A of the form has also been changed to clarify the relevant types of leases. The updated form (www.sro.vic.gov.au/ forms/Duties-Form-62) must be used for all transactions and arrangements entered into after 1 July 2016. Our updated calculators (www.sro.vic. gov.au/calculators/land-transfer-calculator) also take into account the changes by the Amendment Act. SRO, 29 June 2016 VicRoads PROPERTY SEARCH FEE INCREASE From 1 July 2016 the fee for a property inquiry that is applied by the Road Management (General) Regulations 2016 is $17.70 (being 1.27 fee units). The increase reflects the revised value of a fee unit pursuant to the Monetary Units Act 2004. Lyn Barnes, 27 June 2016

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