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Supreme Court (Associate Judges Appeals Amendment) Rules 2012

S.R. No. 121/2012

TABLE OF PROVISIONSRule Page

PART 1—PRELIMINARY 1

1 Object 12 Authorising provisions 13 Commencement 1

PART 2—AMENDMENTS TO CHAPTER I 2

4 New Rules 77.06 to 77.06.9 substituted for Rule 77.06 277.06 Appeals generally 277.06.1 Bringing an appeal 277.06.2 Time for notice of appeal 277.06.3 Contents of notice of appeal 377.06.4 Service of notice of appeal 477.06.5 Filing of notice of appeal and list 477.06.6 Stay 577.06.7 Cross-appeal 577.06.8 Notice of contention 677.06.9 Powers of Judge of the Court hearing appeal 7

5 New Form 77A inserted 8

Form 77A—Notice of Address for Service 8

6 Consequential amendments 8

PART 3—AMENDMENTS TO CHAPTER V 9

7 Rule 16.5 substituted 916.5 Appeals 9

8 Schedule 2 substituted 10

SCHEDULE 2—Powers of the Court that may be Exercised by an Associate Judge 10

═══════════════ENDNOTES 20

1

STATUTORY RULES 2012

S.R. No. 121/2012

Supreme Court Act 1986

Corporations (Ancillary Provisions) Act 2001

Supreme Court (Associate Judges Appeals Amendment) Rules 2012

The Judges of the Supreme Court make the following Rules:

PART 1—PRELIMINARY

1 Object

The object of these Rules is to amend Chapter I and Chapter V of the Rules of the Supreme Court in relation to appeals from judgments and orders of Associate Judges.

2 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, section 23 of the Corporations (Ancillary Provisions) Act 2001 and all other enabling powers.

3 Commencement

These Rules come into operation on 1 January 2013.

__________________

1

PART 2—AMENDMENTS TO CHAPTER I

4 New Rules 77.06 to 77.06.9 substituted for Rule 77.06

For Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 20051 substitute—

"77.06 Appeals generally

Subject to section 17A of the Supreme Court Act 1986 and to Rule 16.5 of Chapter V of the Rules, an appeal from any judgment or order of an Associate Judge made under any Chapter of the Rules lies to the Trial Division constituted by a Judge of the Court, except in any case where an appeal lies to the Court of Appeal.

77.06.1 Bringing an appeal

An appeal under Rule 77.06 shall be brought by notice in accordance with this Order.

77.06.2 Time for notice of appeal

(1) Subject to paragraph (2), a notice of appeal shall be served—

(a) within 14 days after the day the judgment or order of the Associate Judge was given or made; or

(b) if leave to appeal is necessary, within 14 days of leave being granted.

(2) A notice of appeal from an order dismissing an application made without notice to any person shall be filed—

(a) within 14 days after the order was made; or

(b) if leave to appeal is necessary, within 14 days of leave being granted.

Part 3—Amendments to Chapter V

Supreme Court (Associate Judges Appeals Amendment) Rules 2012S.R. No. 121/2012

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(3) An application for leave to appeal shall be made within 14 days after the day the judgment or order of the Associate Judge was given or made.

(4) If leave to appeal is necessary and notice of appeal is served before leave has been granted, any person on whom the notice of appeal has been served may apply to a Judge of the Court for an order dismissing the appeal as incompetent.

(5) The hearing of an application for leave to appeal may be treated as the hearing of the appeal.

(6) A Judge of the Court or an Associate Judge may extend the time allowed under this Rule at any time.

77.06.3 Contents of notice of appeal

(1) A notice of appeal shall state—

(a) whether the whole or part only and, if as to part, which part, of the judgment or order of the Associate Judge is the subject of the appeal; and

(b) specifically and concisely the grounds of appeal and the judgment or order sought in place of that from which the appeal is brought.

(2) A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal.

(3) A notice of appeal may be amended at any time by leave of a Judge of the Court.



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77.06.4 Service of notice of appeal

(1) Subject to paragraph (2), a notice of appeal shall be served on all parties affected by the appeal.

(2) A notice of appeal under Rule 77.06.2(2) shall not be served.

(3) Despite paragraphs (1) and (2), a Judge of the Court may direct that notice of appeal be served on—

(a) any party to the proceeding; or

(b) a person not a party.

(4) A notice of appeal may be served on a party personally or at the party's address for service under these Rules, including Rule 1.19.

(5) Where notice of appeal is served on a person not a party—

(a) that person shall not take any step in the appeal without first filing and serving a notice of address for service in Form 77A; and

(b) a Judge of the Court may give any judgment or make any order on the appeal that might have been given or made if the person served with the notice of appeal had been originally a party.

77.06.5 Filing of notice of appeal and list

Where notice of appeal is served, the appellant shall, within seven days after service, file a copy of the notice accompanied by a list signed by or on behalf of the appellant of—



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(a) the persons upon whom the notice has been served; and

(b) the dates of such service.

77.06.6 Stay

Unless a Judge of the Court otherwise orders—

(a) an appeal under Rule 77.06 shall not operate as a stay of execution, or of proceedings, under the judgment or order;

(b) no intermediate act or step shall be invalidated.

77.06.7 Cross-appeal

(1) Subject to Rule 77.06.8, a respondent to an appeal under Rule 77.06 who desires to appeal from the decision from which the appellant has appealed shall do so by notice of cross-appeal.

(2) Within 14 days after the service upon the respondent of the notice of appeal, the respondent shall serve a copy of the notice of cross-appeal on—

(a) the appellant; and

(b) any other party directly affected by the cross-appeal.

(3) Rule 77.06.3 and Rule 77.06.4(3), (4) and (5) apply to a notice of cross-appeal as if it were a notice of appeal.

(4) A cross-appeal may be discontinued.



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(5) Within seven days after service of the notice of cross-appeal, the respondent shall file a copy of the notice accompanied by a list signed by or on behalf of the respondent of—

(a) the persons upon whom the notice has been served; and

(b) the dates of such service.

(6) Where an appeal is discontinued or is taken to be abandoned—

(a) a respondent who has given notice of cross-appeal may proceed with the cross-appeal; and

(b) a Judge of the Court may give directions for its conduct.

77.06.8 Notice of contention

If a party to an appeal under Rule 77.06 does not seek to have the judgment or order actually given or made by the Associate Judge discharged or varied, but proposes to contend that it should be affirmed on a ground, whether of fact or law, which—

(a) was not decided; or

(b) was erroneously decided; or

(c) was not raised for decision before the Associate Judge—

the party, not less than 14 days before the day fixed for the hearing of the appeal, shall file and serve a notice of contention, stating the ground to be relied upon.



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77.06.9 Powers of Judge of the Court hearing appeal

(1) On an appeal under Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.

(2) On an appeal under Rule 77.06, a Judge of the Court shall have power to—

(a) draw inferences of fact; and

(b) give any judgment and make any order which ought to have been given or made; and

(c) make any further or other order as the case may require.

(3) On an appeal under Rule 77.06, a Judge of the Court shall have power to receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner.

(4) The powers of a Judge of the Court under this Rule may be exercised notwithstanding—

(a) that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of appeal under Rule 77.06 or by any particular party to the proceeding before the Associate Judge; or

(b) that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.".



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5 New Form 77A inserted

After Form 75C of the Supreme Court (General Civil Procedure) Rules 2005 insert—

"FORM 77A

Rule 77.06.4(5)(a)

NOTICE OF ADDRESS FOR SERVICE

[Heading as in notice of appeal or notice of contention]

The address in Victoria for service of [full name of person or party] is:

[If the person or party is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person or party] is:

Dated:

[signed]

__________________".

6 Consequential amendments

In the Supreme Court (General Civil Procedure) Rules 2005—

(a) in Rule 59.08(2) for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(b) in Rule 63.08(3)—

(i) for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(ii) for "applies" substitute "apply";

(c) in Rule 78.08 for "Rule 77.06" substitute "Rules 77.06 to 77.06.9";

(d) in Rule 79.06(4) for "Rule 77.06" substitute "Rules 77.06 to 77.06.9".

__________________



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PART 3—AMENDMENTS TO CHAPTER V

7 Rule 16.5 substituted

For Rule 16.5 of the Supreme Court (Corporations) Rules 20032 substitute—

"16.5 Appeals

(1) Save in the cases provided for by paragraphs (a) and (b) of subrule (3) and subject to section 17A of the Supreme Court Act 1986, an appeal lies to the Trial Division constituted by a Judge of the Court from any judgment or order of an Associate Judge made under these Rules.

(2) Rules 77.06.1 to 77.06.9 of Chapter I of the Rules apply to an appeal referred to in subrule (1) with any necessary modification.

(3) For the purposes of sections 10(1)(ab) and 17(3) of the Supreme Court Act 1986 and subject to section 17A of that Act, an appeal lies to the Court of Appeal from any judgment or order of an Associate Judge—

(a) in any application under section 459G of the Corporations Act; and

(b) in respect of any matter referred to an Associate Judge by a Judge of the Court under rule 16.1(3).

(4) Order 64 of Chapter I of the Rules applies to an appeal referred to in subrule (3) with any necessary modification.".



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8 Schedule 2 substituted

For Schedule 2 to the Supreme Court (Corporations) Rules 2003 substitute—

"SCHEDULE 2Rule 16.1

POWERS OF THE COURT THAT MAY BE EXERCISED BY AN ASSOCIATE JUDGE

Item No.

Column 1Provision

Column 2Description

THE ASIC ACT

1 s. 79(4) To extend time for service of notice.

THE CORPORATIONS ACT

2 s. 227 Declaration that conditions prescribed by Division 3 of Part 2E.1 have been satisfied.

3 s. 247A To order inspection of books.

4 s. 247B To make ancillary order about inspection of books.

5 s. 252E To order meeting of members of registered scheme.

6 s. 266(4) For extension of time for registration of charge.

7 s. 267(3) To give leave to enforce charge.

8 s. 274 To rectify omission or misstatement.

9 s. 283AE(2) For appointment of corporation to be trustee.

10 s. 283EC To order meeting of debenture holders.

11 s. 283HA To give directions and make declarations about trustee's functions or interests of debenture holders.

12 s. 411(16) To restrain further proceedings.



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13 s. 418A Declaration as to validity of controller's appointment and in relation to control of property.

Item No.

Column 1Provision

Column 2Description

14 s. 420B To authorise managing controller to dispose of property despite prior security interest.

15 s. 420C To authorise receiver to carry on corporation's business during the winding up.

16 s. 425 To fix remuneration of receiver.

17 s. 429(3) To extend time for report.

18 s. 434 That receiver remedy default.

19 s. 438D(3) To direct administrator to lodge a report.

20 s. 439A(6) For extension of convening period.

21 s. 440B To grant leave to exercise third party property rights.

22 s. 440D(b) For leave to begin or proceed with proceeding against company during administration.

23 s. 440F For leave to begin or proceed with enforcement process re property of company during administration.

24 s. 440G(7) To permit a court officer to take action or make a payment during administration.

25 s. 440J To grant leave to take enforcement action under a guarantee.

26 s. 442C To grant leave to administrator to dispose of encumbered property.

27 s. 443B(8) To excuse administrator from personal liability for rent.

28 s. 444B(2)(b) To extend time for company to execute deed.

29 s. 444E(3)(c) For leave to person bound by deed to begin or proceed with proceeding against company etc. or enforcement process against company.



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30 s. 447A(1) (where winding up order to be made by an Associate Judge)

To end administration of company.

31 s. 447C To declare whether administrator is validly appointed.

Item No.

Column 1Provision

Column 2Description

32 s. 447E(2) For order where office of administrator is vacant or no administrator is acting.

33 s. 449C(6) For appointment of an administrator of company under administration when none is acting.

34 s. 449D(1) To fill vacancy in office of administrator of deed.

35 s. 449D(2) For appointment of an administrator of deed where none is acting.

36 s. 449E(1)(c) and (1A)(c)

To determine the remuneration of an administrator.

37 s. 449E(2) For review etc. of administrator's remuneration.

38 s. 459F(2)(a) For order extending period for compliance with demand.

39 s. 459G For order on application to set aside a demand.

40 s. 459P(2) For leave to apply for winding up.

41 s. 459R For extension of time for determination of application for winding up in insolvency.

42 s. 459S For leave to company to oppose application.

43 s. 465B(1) For order substituting applicant.

44 s. 465C (if the application is pending before an Associate Judge)

For leave to oppose application when there has been failure to file and serve notice of grounds of opposition and verifying affidavit.

45 s. 467(7) For stay of proceedings.



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46 s. 468 For validation of disposition of property, attachments etc.

47 s. 468A For order authorising transfer of shares after commencement of winding up.

48 s. 470(2)(b) To serve a copy order on another person.

49 s. 471A For approval by the Court to perform or exercise a function or power as an officer of the company.

Item No.

Column 1Provision

Column 2Description

50 s. 471B For leave to begin or proceed with a proceeding or begin or proceed with enforcement process against a company being wound up in insolvency or by the Court or in respect of which a provisional liquidator is acting.

51 s. 472(1) (where winding up order made by an Associate Judge)

For appointment of liquidator.

52 s. 472(2) For appointment of provisional liquidator.

53 s. 472(6) For order on application with respect to the exercise or proposed exercise of a power of a provisional liquidator.

54 s. 473(2) Determination of provisional liquidator's remuneration.

55 s. 473(3), (5), (6) Determination or review of liquidator's remuneration.

56 s. 473(7) To fill vacancy in office of liquidator.

57 s. 473(8) To declare what may be done by liquidator, where more than one appointed.

58 s. 474(2) To vest property in liquidator.

59 s. 477(2A) For approval of liquidator's compromising a debt.

60 s. 477(2B) For approval of liquidator's entering an agreement which may last or obligations which may be performable more than 3 months later.



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61 s. 477(6) For order on application with respect to the exercise or proposed exercise of a power by liquidator.

62 s. 480 To release liquidator and deregister company.

63 s. 481 To order auditor's report and liquidator to make good any loss.

64 s. 482(1) To stay or terminate winding up.

Item No.

Column 1Provision

Column 2Description

65 s. 483(1) For delivery of property etc. to liquidator.

66 s. 483(2) To direct contributory to pay money.

67 s. 483(3) To make calls for payment by contributories and order payment of calls made by court or liquidator.

68 s. 483(4) To order payment to bank to the liquidator's account.

69 s. 484 To appoint or remove special manager, to fix security or remuneration.

70 s. 486 For inspection of books.

71 s. 488(2) To grant special leave to distribute a surplus.

72 s. 490 For leave to company to resolve that it be wound up voluntarily.

73 s. 495(4) As to manner of holding meeting.

74 s. 496(3) For order that list of creditors be sent.

75 s. 497(3) For order that list of creditors be sent.

76 s. 500(2) For leave to proceed.

77 s. 500(3) For delivery of property etc. to liquidator.

78 s. 502 To appoint liquidator.

79 s. 504 To review liquidator's remuneration.

80 s. 507(6) To sanction resolution.

81 s. 507(9) For directions for initiation and conduct of arbitration.

82 s. 507(10) For approval for exercise of powers.



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83 s. 509(6) To order deregistration on a specified day.

84 s. 510(3) To settle dispute.

85 s. 511(1)(b) For exercise of powers.

86 s. 532(2) To grant leave for person to be appointed as liquidator.

87 s. 542(3)(a) As to destruction of books.

88 s. 543(1) As to investment of funds.

Item No.

Column 1Provision

Column 2Description

89 s. 544 As to accounts or payment of unclaimed funds.

90 s. 545(2) To direct liquidator to incur a particular expense.

91 s. 547(1) To direct meeting.

92 s. 551 Leave to member of Committee of Inspection to accept benefit.

93 s. 552 To give direction or permission.

94 s. 554A To estimate, or determine method to be applied in working out, value of debts and claims of uncertain value in liquidation.

95 s. 554G To grant leave to secured creditor to amend valuation of security in proof of debt.

96 s. 564 To make an order in favour of certain creditors.

97 s. 568 For leave to disclaim.

98 s. 568B To set aside disclaimer of property before disclaimer takes effect.

99 s. 568E To set aside disclaimer of property after disclaimer has taken effect.

100 s. 568F For orders re vesting of disclaimed property.

101 s. 583 To wind up Part 5.7 bodies.

102 s. 587 To stay proceedings or for leave to commence or proceed.

103 s. 588FF To make order about voidable transactions.



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104 s. 588T(2)(b) For leave to creditor to begin proceeding.

105 s. 596A For mandatory examination.

106 s. 596B For discretionary examination.

107 s. 596F(1)(a) For directions about matters to be inquired into at examination.

108 s. 596F(1)(b) to (g) For directions about examination.

109 s. 597(5B) To put, or allow to be put, questions to a person being examined.

Item No.

Column 1Provision

Column 2Description

110 s. 597(7) For direction to answer question.

111 s. 597(9) For direction to produce books.

112 s. 597(13) For order that questions and answers be recorded in writing, and that person sign that written record.

113 s. 597(15) For direction for examination to be held before another court.

114 s. 597(17) To adjourn the examination from time to time.

115 s. 597A For mandatory affidavit.

116 s. 597B For costs of unnecessary examination.

117 s. 600A To make order setting aside creditors' resolution or in respect of consideration and voting on proposed resolution or entitlement to vote on proposed resolution or amendment or variation of proposed resolution.

118 s. 600B To order setting aside or varying of creditors' resolution passed on casting vote of person presiding at meeting.

119 s. 600C To order proposed creditors' resolution to be taken as passed at meeting.

120 s. 600D To make interim order where application under section 600A(1), 600B(2) or 600C(2) not yet determined.

121 s. 601AH(2) For reinstatement of the registration of a company.



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122 s. 601BJ To approve modification of constitution.

123 s. 601CC(8) For restoration of name of registered Australian body.

124 s. 601CL(9) For restoration of name of registered foreign company.

125 s. 601FN For appointment of a temporary responsible entity of a scheme.

126 s. 1071D To issue summons and make consequential orders under section 1071D(5).

Item No.

Column 1Provision

Column 2Description

127 s. 1071F For order following failure by directors to register etc.

128 s. 1071H To remedy default in issuing certificate.

129 s. 1274(11) For order to remedy default.

130 s. 1303 To order immediate inspection of books.

131 s. 1319 For direction with respect to meeting.

132 s. 1321 To confirm, reverse or modify act or decision of receiver, receiver and manager, administrator or liquidator or remedy omission of receiver, receiver and manager, administrator or liquidator on appeal from aggrieved person.

133 s. 1322(4) For order in relation to irregularities etc.

134 s. 1335 To order security for costs.

135 s. 1341(3) For payment of money.

CORPORATIONS REGULATIONS

136 reg. 5.6.06 For order not to open liquidator's general account.

137 reg. 5.6.09 For directions with respect to money or securities and authorisation of payments to special bank accounts.

138 reg. 5.6.15(2) For repayment of costs of meeting.



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139 reg. 5.6.16(7) For declaration that adjourned meeting be taken to be incompetent to act.

140 reg. 5.6.18(3) For order as to place of adjourned meeting.

141 reg. 5.6.24(3) To determine whether security surrendered.

142 reg. 5C.2.02 To appoint a temporary responsible entity of a scheme.

__________________".

Dated: 25 October 2012

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

GEOFFREY NETTLE, J.A.

MARCIA NEAVE, J.A.

ROBERT REDLICH, J.A.

PAMELA TATE, J.A.

R. S. OSBORN, J.A.

SIMON P. WHELAN, J.A.

PHILLIP PRIEST, J.A.

D. J. HABERSBERGER, J.

STEPHEN KAYE, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

ANTHONY CAVANOUGH, J.

ELIZABETH CURTAIN, J.

TONY PAGONE, J.

ROSS ROBSON, J.

JAMES JUDD, J.



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PETER VICKERY, J.

EMILIOS KYROU, J.

DAVID F. R. BEACH, J.

JENNIFER DAVIES, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

ANNE FERGUSON, J.

M. L. SIFRIS, J.

PETER ALMOND, J.

JOHN DIXON, J.

C. MACAULAY, J.

GREG GARDE, J.═══════════════



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ENDNOTES

Endnotes


20

1 Rule 4: S.R. No. 148/2005. Reprint No. 4 as at 17 September 2012. Reprinted to S.R. No. 97/2012. Subsequently amended by S.R. No. 39/2012.

2 Rule 7: S.R. No. 107/2003. Reprint No. 1 as at 17 December 2008. Reprinted to S.R. No. 117/2008. Subsequently amended by S.R. Nos 43/2009, 44/2009, 97/2009 and 83/2010.

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