magistrates' court (judicial registrars) rules 2015file/15-154sr.docx · web...

Magistrates' Court (Judicial Registrars) Rules 2015S.R. No. 154/2015

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Object 12 Authorising provisions 13 Commencement 14 Revocation 25 Definition 2

Part 2—Powers of judicial registrars 3

Division 1—Criminal matters 3

6 Criminal proceedings and related proceedings that may be dealt with by judicial registrars 3

7 Powers of judicial registrars in certain criminal proceedings and certain related proceedings 4

Division 2—Civil matters 5

8 Civil proceedings that may be dealt with by judicial registrars 59 Judicial registrars may make final orders by consent 710 Judicial registrars cannot deal with claims for equitable relief

in any proceeding 711 Restrictions on certain powers of judicial registrars in civil

proceedings 712 Judicial registrars cannot deal with proceedings under the

Family Violence Protection Act 2008 or Family Law Act 1975 813 Judicial registrars cannot exercise powers under Part 8 of the

Personal Safety Intervention Orders Act 2010 8

Division 3—General 8

14 Judicial registrars may deal with and exercise the powers of a registrar 8

15 Judicial registrars constitute and are delegated the powers of the Court 9

Part 3—Review of determinations of judicial registrars 10

16 Review of determination of Court constituted by judicial registrar 10

17 Stay 10

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18 Direction for review of determination operates as stay of order of judicial registrar 11

19 Notification of direction for review 11

Form 1—Application for review 12

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Endnotes 14

STATUTORY RULES 2015

S.R. No. 154/2015

Magistrates' Court Act 1989

Magistrates' Court (Judicial Registrars) Rules 2015

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

Part 1—Preliminary1 Object

The object of these Rules is—

(a) to prescribe proceedings that may be dealt with by the Court constituted by a judicial registrar; and

(b) to delegate to judicial registrars some of the powers of the Court; and

(c) to establish a procedure for the review by the Court of a hearing and determination of a proceeding by the Court constituted by a judicial registrar.

2 Authorising provisions

These Rules are made under sections 16 and 16I of the Magistrates' Court Act 1989 and all other enabling powers.

3 Commencement

These Rules come into operation on 14 December 2015.

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4 Revocation

The following Rules are revoked—

(a) the Magistrates' Court (Judicial Registrars) Rules 20051;

(b) the Magistrates' Court (Judicial Registrars) (Amendment) Rules 20072;

(c) the Magistrates' Court (Judicial Registrars) Amendment Rules 20093;

(d) the Magistrates' Court (Judicial Registrars) Amendment Rules 20104;

(e) the Magistrates' Court (Reference Amendment) Rules 20115;

(f) the Magistrates' Court Miscellaneous Amendment Rules 20116;

(g) the Magistrates' Court (Judicial Registrars) Amendment Rules 20127;

(h) the Magistrates' Court (Judicial Registrars) Amendment Rules 20138;

(i) the Magistrates' Court (Judicial Registrars) (Personal Safety Intervention Orders Amendment) Rules 20149;

(j) the Magistrates' Court (Judicial Registrars) Amendment Rules 201410;

(k) the Magistrates' Court (Judicial Registrars) Amendment Rules 201511.

5 Definition

In these Rules—

the Act means the Magistrates' Court Act 1989.

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Part 2—Powers of judicial registrars

Division 1—Criminal matters6 Criminal proceedings and related proceedings that

may be dealt with by judicial registrars

A judicial registrar may deal with and exercise all or any powers of the Court in any of the following proceedings—

(a) a proceeding under Division 3 of Part 4 of the Act in relation to which a registrar may exercise a power under that Division;

(b) a proceeding dealing with any article, thing or material brought before the Court under a search warrant in accordance with section 78(1)(b)(ii) of the Act;

(c) a proceeding under section 88 of the Criminal Procedure Act 2009 and to which section 94(1) of that Act applies;

(d) a proceeding for an offence which is an infringement offence or a lodgeable infringement offence within the meaning of the Infringements Act 2006, except for a proceeding under section 49 of the Road Safety Act 1986;

(e) a proceeding under the Infringements Act 2006 that is not a proceeding of a kind referred to in subparagraph (d), except for a proceeding under section 87(2), 107, 127(1), 128(1), 133(1), 139, 143(2), 155, 156(4) or (5), 160(1), (3) or (4), 161A or 167 of that Act;

(f) an application—

(i) under section 31B of the Road Safety Act 1986 for a licence eligibility order,


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including the powers referred to in sections 31D, 31G and 31H and the power to give an alcohol interlock condition direction under section 50AAA(2) or (3) of that Act; or

(ii) under section 50AAAC(3) of the Road Safety Act 1986 for a direction that the applicant was not responsible for a failed attempt to start a motor vehicle that failed because the alcohol interlock prevented the motor vehicle from being started as a result of it detecting alcohol; or

(iii) under section 50AAB(4) of the Road Safety Act 1986 for an alcohol interlock condition removal order;

(g) a proceeding for an order to remove a prisoner from a prison and to have the prisoner brought before the Court under regulation 20(1) of the Corrections Regulations 200912.

7 Powers of judicial registrars in certain criminal proceedings and certain related proceedings

(1) A judicial registrar may exercise all or any powers of the Court under section 59 of the Criminal Procedure Act 2009 in a criminal proceeding for a summary offence or an indictable offence triable summarily.

(2) A judicial registrar may exercise all or any powers of the Court under the following provisions, if the exercise of the power is incidental to the exercise by a judicial registrar of the Court's powers referred to in paragraph (1)—

(a) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997;


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(b) section 151 of the Firearms Act 1996.

(3) A judicial registrar may exercise all or any powers of the Court under section 83AT of the Sentencing Act 1991 in relation to a contravention of section 83AC of that Act, if the contravention under section 83AC relates to an order made by a judicial registrar under section 72 or 75 of the Sentencing Act 1991.

Division 2—Civil matters8 Civil proceedings that may be dealt with by judicial

registrars

A judicial registrar may deal with and exercise all or any powers of the Court in any of the following proceedings—

(a) subject to Rules 10, 11 and 12—

(i) a proceeding for a cause of action for damages or a debt or a liquidated demand or under an Act if the amount claimed, or value of relief sought, is less than $10 000;Examples

Subparagraph (i) includes the following—

complaints referred to arbitration in accordance with Division 2 of Part 5 of the Act;

applications for summary judgment under section 63 of the Civil Procedure Act 2010;

proceedings under section 5, 6 or 7 of the Instruments Act 1958.

(ii) an interlocutory or other application—

(A) within a proceeding of a kind referred to in subparagraph (i); or


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(B) within any other proceeding for a cause of action for damages or a debt or a liquidated demand or under an Act where the amount claimed, or value of relief sought, is $10 000 or more and within the jurisdictional limit;

Examples

Subparagraph (ii) includes the following—

a proceeding or part of a proceeding that has been referred under section 107(1) of the Act;

an application under section 110 of the Act for an order to set aside a final order in a proceeding made against a person who did not appear in the proceeding and that the proceeding be re-heard;

a proceeding to which section 128(1) or (3) of the Act applies (power to adjourn proceeding).

(b) subject to Rules 10 and 11, a proceeding under the Fences Act 1968 for an order of the Court under section 30C(1) of that Act (other than a proceeding for an order under that section where the amount claimed, or value of relief sought, is $10 000 or more);

(c) a proceeding under section 5(1), 6(7)(b), 6(8), 13, 14, 17(2) or 18 of the Judgment Debt Recovery Act 1984;

(d) subject to Rule 13, a proceeding under the Personal Safety Intervention Orders Act 2010;

(e) an application referred to in Rule 17(2).


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9 Judicial registrars may make final orders by consent

Without limiting Rule 8 but subject to Rules 10, 11, 12 and 13, a judicial registrar may, with the consent of the parties to a proceeding, deal with and exercise all or any powers of the Court to make final orders in the proceeding.

10 Judicial registrars cannot deal with claims for equitable relief in any proceeding

A judicial registrar cannot deal with and exercise any powers of the Court in any proceeding for a claim for equitable relief.

Examples

A judicial registrar cannot, in a proceeding, do any of the following—

make a freezing order under Order 37A of the Magistrates' Court General Civil Procedure Rules 2010;

make a search order under Order 37B of the Magistrates' Court General Civil Procedure Rules 2010;

grant an injunction under Order 38 of the Magistrates' Court General Civil Procedure Rules 2010.

11 Restrictions on certain powers of judicial registrars in civil proceedings

The powers of a judicial registrar in a proceeding to which Rule 8 applies do not include a power of the Court under any of the following Rules under the Magistrates' Court General Civil Procedure Rules 2010—

(a) Rules 12.02 and 12.07, if the amount claimed, or value of relief sought, in the proceeding is $10 000 or more;

(b) Rule 15.08(1);


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(c) Rule 37.01, other than the power in relation to the inspection of property;

(d) Rule 37.02.

12 Judicial registrars cannot deal with proceedings under the Family Violence Protection Act 2008 or Family Law Act 1975

A judicial registrar cannot deal with and exercise any powers of the Court in a proceeding under—

(a) the Family Violence Protection Act 2008; or

(b) the Family Law Act 1975 of the Commonwealth.

13 Judicial registrars cannot exercise powers under Part 8 of the Personal Safety Intervention Orders Act 2010

A judicial registrar cannot deal with and exercise any powers of the Court under Part 8 of the Personal Safety Intervention Orders Act 2010 in a proceeding under that Act.

Division 3—General14 Judicial registrars may deal with and exercise the

powers of a registrar

The powers of a judicial registrar include a power to deal with and exercise all or any of the powers of a registrar under the Act and any other Act or the Rules.


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15 Judicial registrars constitute and are delegated the powers of the Court

In hearing and determining any proceeding to which this Part applies—

(a) the judicial registrar constitutes the Court for that purpose; and

(b) the same powers that the Court has in hearing and determining the proceeding are delegated to the judicial registrar.


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Part 3—Review of determinations of judicial registrars

16 Review of determination of Court constituted by judicial registrar

(1) An application under section 16K(3)(a) of the Act for review of a determination of the Court constituted by a judicial registrar must be—

(a) in Form 1; and

(b) accompanied by an affidavit that must state the reasons for the application.

(2) The application and the affidavit must be filed within 14 days after the day on which the determination was made.

(3) The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.

(4) The application for the review must be determined by the Court—

(a) after consideration of the application and the accompanying affidavit; and

(b) unless the Court otherwise directs, without notice to any person.

17 Stay

(1) The filing of an application referred to in Rule 16 does not operate as a stay of any order made by the Court constituted by a judicial registrar.

(2) A party to a proceeding making an application referred to in Rule 16 may apply to either of the following for a stay of any order referred to in paragraph (1)—


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(a) the Court constituted by the judicial registrar which made the order;

(b) the Court constituted by a magistrate.

18 Direction for review of determination operates as stay of order of judicial registrar

If the Court directs that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed, the direction operates as a stay on any order made by the judicial registrar in the proceeding, unless the Court otherwise orders.

19 Notification of direction for review

A person who obtains from the Court a stay of an order by a judicial registrar must notify all other parties of the stay.


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Form 1—Application for reviewRule 16(1)

In the Magistrates' Court of Victoria at [venue of Court] No.

In the matter of an application under section 16K(3)(a) of the Magistrates' Court Act 1989.

BETWEEN [name of party] [title of party e.g. Plaintiff orDefendant or Informant]

AND [name of party] [title of party]

APPLICATION FOR REVIEW

Date of document:

Filed on behalf of the: [title of party]

Prepared by: [insert details]

TAKE NOTICE that the abovementioned [title of party] applies, under section 16K(3)(a) of the Magistrates' Court Act 1989, for review of the hearing and determination of this proceeding constituted by [name of judicial registrar], a judicial registrar, on [insert date] by the Court constituted by a magistrate.

*The order made by the judicial registrar in the proceeding was that [insert details of order made].

OR

*A copy of the order made by the judicial registrar in the proceeding is attached [attach copy of order].

Dated:

(Signed by the party making the applicationor the party's Australian lawyer)

*Delete if inapplicable


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Dated: 11 December 2015

PETER LAURITSEN, Chief Magistrate

BARRY BRAUN, Deputy Chief Magistrate

DANIEL MULING, Deputy Chief Magistrate

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Endnotes

Endnotes


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1 Rule 4(a): S.R. No. 166/2005 as amended by S.R. Nos 86/2007, 34/2009, 6/2010, 123/2011, 150/2011, 119/2012, 120/2013, 28/2014, 179/2014 and 32/2015.

2 Rule 4(b): S.R. No. 86/2007.3 Rule 4(c): S.R. No. 34/2009.4 Rule 4(d): S.R. No. 6/2010.5 Rule 4(e): S.R. No. 123/2011.6 Rule 4(f): S.R. No. 150/2011.7 Rule 4(g): S.R. No. 119/2012.8 Rule 4(h): S.R. No. 120/2013.9 Rule 4(i): S.R. No. 28/2014.10 Rule 4(j): S.R. No. 179/2014.11 Rule 4(k): S.R. No. 32/2015.12 Rule 6(k): S.R. No. 40/2009. Reprint No. 1 as at 18 August 2015. Reprinted to S.R. No. 95/2015.

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