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Practice notes

Practice notes

By Law Institute Journal

Practice & Procedure 


Family Law Courts Biennial Increase to Court Fees – 1 July 2016 The family law fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2016 as a result of the biennial increase. The “latest news” section on the websites have been updated with notices about the revised fees (as well as the existing fee information): www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/2016-biennial-fee-increase www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/news/2016-biennial-fee-increase. The existing fees will be removed on 1 July 2016 when the new fees come into effect. Family Court of Australia, 7 June 2016 Federal Circuit Court of Australia Federal Circuit Court Amendment (Costs and Other Measures) Rules 2016 The Judges of the Federal Circuit Court have agreed to amendments to the Federal Circuit Court Rules 2001 (the rules) by way of the Federal Circuit Court Amendment (Costs and Other Measures) Rules 2016. The Amendment rules include the following: Amendments increasing the itemised amounts of costs comprised in Schedule 1 of the rules. These increases follow recommendations made by the Joint Costs Advisory Committee in their seventh report (which recommended a 2.7 per cent increase) and their eighth report (which recommended a 2.8 per cent increase). Part 1A provides that these increases apply to work done or services performed after the commencement of the Schedule. An amendment which inserts a new paragraph (ba) to subrule 2.08(1)(b) extending the list of people who, in family law/child support proceedings, can search the Court records to a child welfare officer of a state or territory, if the case affects or may affect the welfare of a child. An amendment to the response rules. The amendment makes no substantive change to the rules but better clarifies the procedural requirements by combining the requirements previously set out in rules 4.03 and 4.04 into a consolidated rule 4.03. Amendment to rules 13.11 and 13.11A (which set out procedural requirements in respect of vexatious proceedings orders) to include a reference to the relevant Family Law Act provisions whenever reference is made to the relevant Federal Circuit Court of Australia Act provision. This ensures the application of these rules to family law proceedings as well as general federal law proceedings. Amendments to Part 25A (rules in respect of child support and child maintenance) as a consequence of the merger of Commonwealth tribunals made by the Tribunals Amalgamation Act 2015. This Act merged a number of tribunals under the Administrative Appeals Tribunal (AAT). The merger established the Social Services and Child Support Division of the AAT which took over the jurisdiction of the Social Security Appeals Tribunal (SSAT). The SSAT was abolished at the commencement of the Tribunals Amalgamation Act 2015. The source of jurisdiction of the Federal Circuit Court in relation to judicial review of child support matters is now found in s44AAA of the AAT Act. Rule 43.01 has also been amended to reflect the structural changes to the AAT following the merger of the tribunals. Previously the term Registrar of the Tribunal for the purposes of Part 42 was defined to include the District Registrar or Deputy Registrar of the AAT or an officer for the time being performing the duties of such. The amendments made to the structure of the AAT removed references to district and deputy registrars so it has been necessary to make amendments to rule 43.01 and insert a new definition of Registrar of the Tribunal with the dictionary to the rules. Rule 44.15, which provides for costs in relation to migration proceedings, has been repealed and replaced to better clarify processes when a notice of discontinuance is filed in a proceeding in which a respondent has sought costs in the response. As a consequence of this amendment the previously approved forms Bill of Cost (Rule 44.15) and Request for costs order pursuant to r44.15 are no longer required. The amendment is intended to facilitate the current procedures by providing for orders for costs in accordance with Division 2 of Part 3 of Schedule 1 to be made in chambers without hearing the parties. The rules and explanatory statement are available at www.legislation.gov.au and commenced on 21 May 2016. Adele Byrne, Principal Registrar, 20 May 2016 County Court of Victoria PNCLD 4 – 2016 Common Law Division – Serious Injury List – Referral of medical questions to a medical panel This Practice Note, effective 16 May 2016, applies the following procedures where, in applications to the County Court for leave to bring proceedings for damages at common law pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) or s134AB(16)(b) of the Accident Compensation Act 1985 (AC Act) (generally “serious injury applications”), a party seeks to refer medical questions to a medical panel pursuant to s274 of the WIRC Act. It should be noted these provisions supersede paragraphs 66 and 67 of Practice Note PNCLD 1-2016. 1. Practitioners who seek to refer medical questions to a medical panel must ensure the questions are relevant to the issues to be determined in the serious injury application. 2. Pursuant to s274(1)(b)(ii) of the WIRC Act, the Court has determined that the time by which a party must notify the Court of the party’s intention to request the Court to refer questions to a medical panel (“the referral application”) is a date 150 days before the trial date fixed for the hearing of the serious injury application. The purpose of fixing such a date is to ensure, so far as it is practicable: a) the overarching obligations of the Civil Procedure Act 2010 are met, in particular the need: to avoid delay and expense for the efficient conduct and disposal of serious injury applications to ensure costs incurred are proportionate to the complexity and importance of the issues in dispute b) that the trial date fixed by administrative orders is not disturbed by the process of the referral and the answering of the questions by a medical panel. 3. Applications in which a party intends to refer questions to a medical panel where the trial date is listed before 28 November 2016 need not comply with paragraph (2) but shall otherwise comply with this Practice Note. 4. The notice to the Court shall be in the form attached and be directed to the Directions Group of the Civil Registry of the Court (directions.group@countycourt.vic.gov.au). A copy of the notice must be served upon each other party to the serious injury application. Applications to the directions group by email attaching the notice must copy in each other party in the proceeding. 5. The notice shall have attached the medical questions which the party proposes to refer to a medical panel. 6. On the next available date for directions the referral application will be listed before the judge in charge of the WorkCover List, or such other judge or judicial registrar as the judge in charge of the WorkCover List shall determine, and the parties will be notified of the date and time of the directions hearing. 7. The parties or their practitioners are required to attend the directions hearing and it is expected they will be in a position to advise the Court: a) whether the referral is opposed b) as to how the medical questions relate to the issues to be determined c) in the case of the party opposing the referral, whether the opposition is on the grounds that: (i) it is an abuse of process (as per s274(3) of the WIRC Act) or (ii) the opinion of a medical panel would depend substantially on the resolution of factual issues more appropriately determined by the Court than a medical panel (as per s274(5) of the WIRC Act). 8. The judge or judicial registrar at the directions hearing shall make such directions as are necessary for the further conduct of the referral application, including: a) the fixing of a date for a contested referral hearing (which will be set down as a half day cause unless the parties otherwise advise) (“the contested referral hearing”) b) whether the trial date fixed for the serious injury application should be extended to accommodate the referral process c) such other matters as the judge or judicial registrar deems appropriate. 9. At the contested referral hearing, each party shall provide documents complying with s304(a)(i) and (ii) and an index containing a list of all the documents that it is proposed to provide to the Convenor of the Medical Panel as required by s304(b). The parties are reminded that s304(b) requires the production of “ . . . all documents relating to the medical question in the possession of that person or body” whether those documents assist the cause of that party or otherwise. 10. Any inquiries as to the operation of this Practice Note should be directed to the associate to the Judge in Charge of the WorkCover List. County Court of Victoria, 17 May 2016 County Court of Victoria PNCLD 5 – 2016 Common Law Division – Self-represented litigation This Practice Direction applies to the management of matters within the Common Law Division where one or more of the parties are self-represented litigants. For details, go to www.countycourt.vic.gov.au/common-law-division-0. Judge Saccardo, 26 May 2016 County Court of Victoria Mandatory EFiling at the County Court in its civil jurisdictions from 1 August 2016 Effective 1 August 2016, eFiling will be the mandatory method of filing documents in the civil jurisdictions of the County Court (with some limited exceptions). The introduction of mandatory eFiling will enable documents to be filed in an expeditious and cost-effective manner. eFiling will also build the Court’s capacity to maintain electronic case files, enhance case management and ultimately increase access to information for those participating in legislation. Training and information sessions are being held in Melbourne and throughout the state to ensure solicitors and their staff are familiar with the eFiling system prior to 1 August 2016. For dates and locations, and more information about eFiling, please visit www.countycourt.vic.gov.au/eFiling. If you have any comments, questions or other enquiries about this proposal please contact Client Services at the County Court on 8636 6543 or civil.counter@countycourt.vic.gov.au. The Court’s eFiling provider CITEC Confirm can be contacted 1800 773 773. County Court of Victoria, 2 June 2016 Magistrates’ Court of Victoria Practice Direction No. 4 of 2016 – Mediation Program Background Practice Direction 6 of 2007 created a mediation pilot program for certain defended civil proceedings at the Magistrates’ Court of Victoria at Broadmeadows. The purpose of the Practice Direction is to extend the civil mediation program to the Court at Benalla. Directions 1. From 1 July 2016 the Court will commence a mediation program at Benalla 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. 2. The program will involve only those proceedings where a notice of defence is filed at the Court at Benalla on or after 1 July 2016. 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”. 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 the Magistrates’ Court at Benalla 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 commences from 1 July 2016. Peter Lauritsen, Chief Magistrate, 20 May 2016 Cash rate target 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 1.75 per cent (from 4 May 2016). To monitor changes between editions of the LIJ, practitioners should check www.rba.gov.au/statistics/cash-rate. Penalty and fee units For the financial year commencing 1 July 2016, the value of a penalty unit is $155.46. The value of a fee unit is $13.94 (Government Gazette GG15, 14 April 2016). Penalty interest rate The penalty interest rate is 9.5 per cent per annum (from 1 June 2015). To monitor changes to this rate between editions of the LIJ, practitioners should check the Magistrates’ Court of Victoria website at www.magistratescourt.vic.gov.au/procedural-information/penalty-interest-rates.

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