Courts Legislation Miscellaneous Amendments Act 2014

Courts Legislation Miscellaneous Amendments Act 2014

No. 62 of 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Civil Appeals

Division 1—Supreme Court Act 1986

3Way in which Court of Appeal may be constituted

4New sections 14A to 14D inserted

14ALeave to appeal required for civil appeals

14BCommencing a civil appeal

14CAppeal must have real prospect of success

14DDetermination of application for leave to appeal

5Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge

6Restriction on appeals

7Power to make Rules

8New sections 154 to 156 inserted

154Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014

155Power to resolve transitional difficulties in proceeding

156Regulations dealing with transitional matters

Division 2—Consequential Amendments to Other Acts

9Accident Compensation Act1985—Effect of decision on application

10Casino Control Act 1991—Appeals

11County Court Act 1958—Appeal to the Court of Appeal

12Disability Act 2006—Appeals regarding extended leave

13Disability Act 2006—Appeals regarding revocation of extendedleave

14Fisheries Act 1995—Determination of claim

15Imprisonment of Fraudulent Debtors Act 1958—Judgment debtor may appeal to Full Court

16Judgment Debt Recovery Act 1984—Persistent wilful default

17Land Acquisition and Compensation Act 1986—Determination of claim

18Legal Profession Act 2004—Order disqualifying persons

19Legal Profession Act 2004—Appeal against appointment

20Status of Children Act 1974—Appeals

21Urban Renewal Authority Victoria Act 2003—Grounds of review or appeal

22Valuation of Land Act 1960—Powers on review or appeal

23Victorian Civil and Administrative Tribunal Act1998—Appeals from the Tribunal

24Workplace Injury Rehabilitation and Compensation Act2013—Effect of decision on application

Part 3—Victorian Civil and Administrative Tribunal

Division 1—Amendments to Victorian Civil and Administrative Tribunal Act 1998

25Definitions

26New section 16B inserted

16BAmendment of appointment of sessional and nonsessional members

27New section 25B inserted

25BMember or former member may not appear as expert witness

28Joinder of parties

29Constitution of Tribunal in proceedings

30Intervention

31Mediation

32New section 93A inserted

93AParty may object to mediator hearing the proceeding

33General procedure

34Power to award costs

35Orders as to reimbursement or payment of fees

36New section 115CA inserted

115CAPresumption of order for reimbursement of fees in certain planning matters

37Re-opening an order on substantive grounds

38Power to make rules

39New section 168 inserted

168Transitional provisions—Courts Legislation Miscellaneous Amendments Act2014

40Definition of planning enactment in Schedule 1

41Parties to lodge grounds

42Member of Tribunal can mediate

43New clause 97A inserted in Schedule 1

97AValuer-general may intervene and be represented

44Subject matter for rules

45Statute law revision

Division 2—Further amendments to Victorian Civil and Administrative Tribunal Act 1998

46Definitions

47Deputy Presidents, senior members and ordinary members

48Appointment of members

49Remuneration and allowances

50Prohibition on outside employment

51New sections 18A, 18B and 18C inserted

18AEntry into part-time service arrangement

18BVariation of part-time service arrangement

18CTermination of part-time service arrangement

52Transitional provisions—Courts Legislation Miscellaneous Amendments Act2014

Division 3—Amendment of Enabling Enactments

53Planning and Environment Act 1987—Parties to review

54Planning and Environment Act 1987—Injunctions

55Retail Leases Act 2003—Meaning of retail tenancy dispute

56Retail Leases Act 2003—Referral of retail tenancy disputes foralternative dispute resolution

57Retail Leases Act 2003—Jurisdiction of Tribunal

58Transport Accident Act 1986—Application to Tribunal

59Transport Accident Act 1986—New Division 9 inserted in Part11

Division 9—Courts Legislation Miscellaneous Amendments Act2014

228Application to Tribunal

60Valuation of Land Act 1960—Functions of valuer-general

Part 4—Coroners

61Certain reportable deaths do not require investigation

62Objections to autopsy

63Documents and prepared statements requested by coroner

64Inquest into a death

65Publication of findings and reports

66Appeal in relation to determination that death not a reportable death

67Appeal in relation to determination of coroner not to investigate afire

68Appeal in relation to determination not to hold an inquest

69Appeal against refusal by coroner to re-open investigation

70Appeal to Supreme Court is on a question of law

71New section 87A inserted

87AAppeal to Supreme Court in the interests of justice

72Rules of the Coroners Court

73Access to documents

74New section 120 inserted

120Transitional provision—Courts Legislation Miscellaneous Amendments Act2014

Part 5—Court Security

75Definitions

76Heading to section 4 inserted

77New sections 4A, 4B and 4C inserted

4AOffence to record proceeding

4BOffence to publish recording of proceeding

4COffence to transmit to or give recording of proceeding toanother person

78Regulations

79Consequential amendment to Legal Profession Uniform Law Application Act2014

26ACourt Security Act 1980

Part 6—Judicial Registrars

Division 1—Supreme Court Act 1986

80Guidelines relating to the appointment of judicial registrars

81Appointment by the Governor in Council

82Remuneration and terms and conditions of appointment

83New section 113GB inserted

113GBOath or affirmation of office

84Section 113M substituted

113MAppeal from or review of determination of Court constituted by judicial registrar

Division 2—County Court Act 1958

85Guidelines relating to the appointment of judicial registrars

86Appointment by the Governor in Council

87Remuneration and terms and conditions of appointment

88New section 17PA inserted

17PAOath or affirmation of office

89Section 17V substituted

17VAppeal from or review of determination of court constituted by judicial registrar

Division 3—Magistrates' Court Act 1989

90Guidelines relating to the appointment of judicial registrars

91Appointment of judicial registrars

92Terms and conditions of appointment

93New section 16DB inserted

16DBOath or affirmation of office

94Rules of Court

95Section 16K substituted

16KAppeal from or review of determination of Court constituted by judicial registrar

Division 4—Children, Youth and Families Act 2005

96Guidelines relating to the appointment of judicial registrars

97Appointment by Governor in Council

98Remuneration and terms and conditions of appointment

99New section 542EA inserted

542EAOath or affirmation of office

100Section 542K substituted

542KAppeal from or review of determination of Court constituted by judicial registrar

Division 5—Coroners Act 2008

101Guidelines relating to the appointment of judicial registrars

102Appointment by Governor in Council

103Remuneration and terms and conditions of appointment

104New section 102EA inserted

102EAOath or affirmation of office

105Section 102K substituted

102KAppeal from or review of decisions of judicial registrar

Division 6—Victims of Crime Assistance Act 1996

106Rules

107Review of delegated Tribunal decisions

Part 7—Further Miscellaneous Amendments and Repeal

Division 1—Supreme Court Act 1986

108Regulations

Division 2—Interpretation of Legislation Act 1984

109Prescribing matters by reference to other documents

Division 3—Repeal of amending Act

110Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Courts Legislation Miscellaneous Amendments Act 2014[†]

No. 62 of 2014

[Assented to 9 September 2014]

Courts Legislation Miscellaneous Amendments Act 2014
No. 62 of 2014

The Parliament of Victoriaenacts:

Part 7—Further Miscellaneous Amendments and Repeal

Courts Legislation Miscellaneous Amendments Act 2014
No. 62 of 2014

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Supreme Court Act 1986—

(i) to provide for appeals to the Court of Appeal in civil proceedings to be generally by leave of the Court of Appeal;

(ii)to make other procedural amendments in relation to appeals to the Court of Appeal in civil proceedings;

(iii) to provide for additional regulation making powers in relation to court fees;

(b)to amend the Victorian Civil and Administrative Tribunal Act 1998in relation to the service arrangements and the terms and conditions of appointment of non-judicial members and to enhance further the powers and efficiency of VCAT and to make related amendments to certain enabling enactments;

(c)to amend the Coroners Act 2008—

s. 2

(i) tofurther provide for various coronial processes;

(ii)tofurther provide for appeals to the Supreme Court;

(iii)to amend the periods for bringing an appeal in respect of certain decisions of a coroner;

(d)to amend the Court Security Act 1980 to provide for certain offences in relation to the recording of court proceedings;

(e)to amend court and tribunal Acts to make further provision in relation to the office of judicial registrar, including review of, and appeals from, determinations of judicial registrars.

2Commencement

(1)This Act (except Part 2, Division 2 of Part 3and Parts 4, 5 and 6) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Subject to subsection (3), Part 2, Division 2 of Part 3 and Parts 4, 5 and 6 come into operation on a day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 1 September 2015, it comes into operation on that day.

s. 2

______

Part 2—Civil Appeals

Division 1—Supreme Court Act 1986

3Way in which Court of Appeal may be constituted

s. 3

See:
Act No.
110/1986.
Reprint No. 8
as at
1 December 2013
and amending
Act Nos 110/1986, 63/2013, 68/2013, 1/2014, 17/2014 and 25/2014.
LawToday:
www.
legislation.
vic.gov.au

(1)After section 11(1B) of the Supreme Court Act 1986insert—

"(1C) Subject to subsection (9), the Rules may provide that a single Judge of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal—

(a) in particular kinds of applications and appeals to or proceedings in the Court of Appeal; or

(b)generally.".

(2)In section 11(4) of the Supreme Court Act 1986omit "asingle Judge of Appeal or".

(3)After section 11(4A) of the Supreme Court Act 1986insert—

"(4B) The Rules may provide that in particular kinds of applications, appeals or proceedings, the Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal.".

(4)In section 11(5) of the Supreme Court Act 1986omit "asingle Judge of Appeal or".

(5)In section 11(6) of the Supreme Court Act 1986for "Subject to subsection (5)" substitute "Unless the Court of Appeal discharges or varies a judgment, order or direction in accordance with any Rules made under subsection (4B)".

(6)After section 11(8) of the Supreme Court Act 1986insert—

"(9)Subsection (1C) does not apply in relation to—

(a)an appeal from a refusal to grant habeas corpus; or

(b)an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009.".

4New sections 14A to 14D inserted

s. 4

After section 14 of the Supreme Court Act 1986insert—

"14A Leave to appeal required for civil appeals

(1)Subject to subsection (2), any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

(2)Leave to appeal is not required—

(a)for an appeal from a refusal to grant habeas corpus; or

(b)for an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009; or

(c)if the Rules provide that leave to appeal is not required, whether in any particular class of application or proceeding or generally.

(3)For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

14BCommencing a civil appeal

(1)An applicant for leave to appeal under section14A must file an application for leave to appeal within 28 days from the date of the judgment, order, determination or other decision which is the subject of appeal unless the Rules otherwise provide.

(2)Unless this Act, any other Act or the Rules otherwise provide, an application for leave to appeal is commenced by filing the application for leave to appeal.

14CAppeal must have real prospect of success

s. 4

The Court of Appeal may grant an application for leave to appeal under section14A only if it is satisfied that the appeal has a real prospect of success.

14DDetermination of application for leave to appeal

(1)The Court of Appeal constituted by one or more Judges of Appeal may determine an application for leave to appeal under section14A with or without an oral hearing of the parties.

(2)Subject to subsection (3), if the Court of Appeal dismisses an application for leave to appeal without an oral hearing, the applicant, in accordance with the Rules, may apply to have the dismissal set aside or varied at an oral hearing before the Court of Appeal constituted by two or more Judges of Appeal.

(3)If the Court of Appeal dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.

(4)This section does not apply to—

(a)an appeal from a refusal to grant habeas corpus; or

(b)an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009.".

5Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge

s. 5

At the foot of section 17(2) of the Supreme Court Act 1986insert—

"Note

See, for example, section 14A which requires leave of the Court of Appeal for civil appeals as defined in that section.".

6Restriction on appeals

(1)In section 17A of the Supreme Court Act 1986—

(a)subsections (1) and (5) are repealed;

(b)in subsection (3A) omit "or by leave of the Judge of the Court or Associate Judge constituting the Trial Division";

(c)in subsection (3C)—

(i) for "except—" substitute "except by leave of the Court of Appeal.";

(ii)paragraphs (a) and (b) are repealed;

(d)for subsection (4)(b) substitute—

"(b)without leave of the Court of Appeal, from a judgment or an order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge of the Court or by an Associate Judge in a criminal proceeding or quasi-criminal proceeding except in the following cases—

(i) when the liberty of the subject or the custody of minors is concerned;

(ii)a decision dismissing a proceeding for want of prosecution;

(iii)any cases prescribed by the Rules.".

(2)Section 17A(7) of the Supreme Court Act 1986is repealed.

7Power to make Rules

s. 7

After section 25(1)(ca) of the Supreme Court Act 1986insert—

"(cab)without limiting paragraph (ca), in accordance with section 11, providing for the constitution of the Court of Appeal by a single Judge of Appeal—

(i) in particular kinds of applications and appeals to or proceedings in the Court of Appeal; or

(ii)generally;

(cac) without limiting paragraph (ca), in accordance with section 11, providing for the particular kinds of applications, appeals or proceedings in respect of which the Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal;".

8New sections 154 to 156 inserted

s. 8

After section 153 of the Supreme Court Act 1986insert—

"154 Transitional provisions—Courts Legislation Miscellaneous AmendmentsAct 2014

(1)The amendments made to this Act by Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014 apply in relation to any application or proceeding in the Court of Appeal, including any appeal referred to in section14A (other than an appeal referred to in section 14A(2)) commenced on or after the commencement of that Part.

(2)The amendments made to this Act and to any other Act under which an application or a proceeding in the Court of Appeal may be commenced, including any appeal referred to in section14A (other than an appeal referred to in section 14A(2)) by Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014 do not apply in relation to that application or proceeding if—

(a)the application or proceeding commenced before the commencement of Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014; and

(b)the Court of Appeal has begun to hear and determine that application or proceeding before the commencement of that Part.

(3)If an application or a proceeding in the Court of Appeal, including any appeal referred to in section14A (other than an appeal referred to in section 14A(2)) has commenced before the commencement of Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014 but the Court of Appeal has not begun to hear and determine that application or proceeding before the commencement of that Part, the amendments made to this Act and any other Act under which that application or proceeding is commenced do not apply in relation to that application or proceeding, unless the Court of Appeal otherwise orders.

155Power to resolve transitional difficulties in proceeding

s. 8

(1)If any difficulty arises because of the operation of Part2 of the Courts Legislation Miscellaneous AmendmentsAct 2014 in relation to an application or a proceeding, the Court may make any order it considers appropriate to resolve the difficulty.

(2)An order made under subsection (1)—

(a)may be made on application of a party to the application or proceeding or on the Court's own motion; and

(b) has effect despite any provision to the contrary made by or under any Act (otherthan the Charter of Human Rights and Responsibilities Act 2006).

156Regulations dealing with transitional matters

(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014, including any repeals and amendments made by thatPart.

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on or from the date that the Courts Legislation Miscellaneous AmendmentsAct 2014receives the Royal Assent;

s. 8

(b)be of limited or general application;

(c)differ according to differences in time, place or circumstances;

(d)leave any matter or thing to be decided by a specified person or specified class of persons;

(e)provide for the exemption of persons, applications or proceedings or a class of persons, applications or proceedings from any of the regulations made under this section.

(3)Regulations made under this section have effect despite anything to the contrary—

(a)in any Act (other than Part 2 of the Courts Legislation Miscellaneous AmendmentsAct 2014or the Charter of Human Rights and Responsibilities Act 2006); or

(b)in any subordinate instrument.

(4)This section is repealed on the second anniversary of the day on which it comes into operation.".

Division 2—Consequential Amendments to Other Acts

9Accident Compensation Act1985—Effect of decision on application

s. 9

See:
Act No.
10191.
Reprint No. 19
as at
11 February 2013
and amending
Act Nos
76/2011, 9/2013, 30/2013, 43/2013, 55/2013, 67/2013, 76/2013, 17/2014 and 26/2014.
LawToday:
www.
legislation.
vic.gov.au

Section 134AC of the Accident Compensation Act 1985 is repealed.

10Casino Control Act 1991—Appeals

See:
Act No.
47/1991.
Reprint No. 8
as at
22 June 2011
and amending
Act Nos
29/2009, 84/2009, 74/2010, 58/2011, 32/2012, 65/2013, 4/2014 and 17/2014.
LawToday:
www.
legislation.
vic.gov.au

In section 155(3) of the Casino Control Act 1991, after "law" insert "with leave of the Court of Appeal".

11County Court Act 1958—Appeal to the Court of Appeal

s. 11

See:
Act No.
6320.
Reprint No. 15
as at
1 May 2013
and amending
Act Nos
6230,
28/2013, 58/2013, 63/2013, 67/2013, 68/2013, 70/2013, 17/2014 and 25/2014.
LawToday:
www. legislation.
vic.gov.au

(1)In section 74(1) of the County Court Act 1958, after "Court of Appeal" insert "with leave of the Court of Appeal".

(2)For section 74(2) of the County Court Act 1958 substitute—

"(2)An appeal by a party referred to in subsection (1) must be commenced by filing an application for leave to appeal in the Court of Appeal within 28 days after the date of the judgment or order of the court being appealed.".

(3)In section 74(2A) of the County Court Act 1958, for "appeal may be brought" substitute "appeal or an application for leave to appeal may be commenced".

(4)For section 74(2B) of the County Court Act 1958substitute—

"(2B) An application for leave to appeal must be made in accordance with the Rules of the Supreme Court.".

(5)In section 74(2C) of the County Court Act 1958, for "A notice" substitute "An application for leave to appeal or a notice".

(6)Section 74(2D), (2E) and (3) of the County Court Act 1958 are repealed.

12Disability Act 2006—Appeals regarding extended leave

s. 12

See:
Act No.
23/2006.
Reprint No. 1
as at
31 October 2012
and amending
Act Nos
20/2012, 9/2013, 13/2013, 75/2013 and 26/2014.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 163(1)(b) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

(2)In section 163(2) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

(3)In section 163(3) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

13Disability Act 2006—Appeals regarding revocation of extended leave

(1)In section 165(1) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

(2)In section 165(2) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

(3)In section 165(3) of the Disability Act 2006, after "Court of Appeal" insert "with leave of the Court of Appeal".

14Fisheries Act 1995—Determination of claim

s. 14

See:
Act No.
92/1995.
Reprint No. 7
as at
18 March 2013
and amending
Act Nos
9/2013, 64/2013, 70/2013 and 17/2014.
LawToday:
www.
legislation.
vic.gov.au

In section 210(2) of the Fisheries Act 1995, after "law" insert "and with leave of the Court of Appeal".

15Imprisonment of Fraudulent Debtors Act 1958—Judgment debtor may appeal to Full Court

See:
Act No.
6276.
Reprint No. 5
as at
16 September 1999
and amending
Act No. 68/2009.
LawToday:
www.
legislation.
vic.gov.au

(1)Insert the following heading to section 9 of the Imprisonment of Fraudulent Debtors Act 1958—

"Judgment debtor may appeal to Court of Appeal".

(2)In section 9 of the Imprisonment of Fraudulent Debtors Act 1958—