Law Institute Journal (Victoria)
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Law Institute Journal (Victoria) |
|
New filing, setting down, daily hearing and bankruptcy fees came into effect from 1 December 1996. Full details of these fees were published in the December 1996 Law Institute News.
Amendments to the Bankruptcy Act which came into force on 16 December 1996 have introduced major changes to bankruptcy procedures. The major changes as they affect the functions of the Registrar in Bankruptcy and the registries of the Federal Court are:
1. The Registrar in Bankruptcy
This position will be abolished and the functions divided between the Insolvency Trustee Service of Australia (ITSAA) and the Federal Court.
2. Bankruptcy notices
The following functions will be under-taken by the staff of ITSA at Level 9, Melbourne Central, 360 Elizabeth Street, Melbourne, tel (03) 9272 4800:
issue of bankruptcy notices; and amendment of unserved bankruptcy notices.
The following functions will be exercised by the Federal Court:
3. Creditors' petitions
The existing procedures for filing and hearing by the Court remain largely unaltered:
practitioners will still need to file an affidavit of service of the bankruptcy notice; petitioners are required to provide a copy of the petition to ITSA within three days of filing together with a trustee's consent to act (if any); and
applications for substituted service or other interlocutory applications such as extending the life of a petition are to be initiated by notice of motion.
4. Bankruptcy searches
Searches (including searches for the purpose of sequestration order) of the bankruptcy database will only be available at the ITSA offices. Searches of creditors' petitions or other court process arising under the Bankruptcy Act may still be done at the registry of the Court.
5. Section 81 public examinations
Examinations will continue to be con-ducted before registrars or before the Court. There is a fee of $500 if an application is made to the Court to issue summonses.
6. Taxation of costs
The Court's taxing officers will continue to tax costs where there is a court order for taxation. Solicitor/client bills relating to the costs of solicitors or others acting on behalf of trustees will now be dealt with by ITSA.
7. Debtors' petitions
These must be filed with ITSA.
8. Notices of intention to declare bankruptcy
To be filed with ITSA.
9. Debtor's agreements
To be filed with ITSA.
10. Part X documentation
All documentation must be filed at ITSA.
11. Requests for certificates of discharge To be made to ITSA.
12. Trustees' remuneration
The fees payable to trustees in administering estates are now to be determined by ITSA.
13. Fees
Some of the fees applicable on and after 16 December are:
Bankruptcy notices
|
Application to set aside:
|
$500
|
|
Application to extend time for compliance:
|
$500
|
|
Application for counterclaim set off and cross demand:
|
$500
|
|
Creditors' petitions
|
$500 individual
$1200 corporation
|
|
Extend life of petition:
|
$123 individual
$246 corporation
|
|
Substituted service: l
|
$123 individual
$246 corporation
|
|
Applications (e.g. preference applications)
|
$500 individual
$1200 corporation
|
|
Notices of motion:
|
$123 individual
$246 corporation.
|
New Court rules will be introduced in 1997. In the interim period the existing Bankruptcy Rules will be adopted as the Court rules where appropriate. From 16 December 1996 all interlocutory applications in bankruptcy matters must be made by notice of motion.
PI SECCOMBE
District Registrar
Court fees have been reviewed by the government and the following fees apply as at 1 December 1996:
Applications
|
Application for divorce (Form 4):
|
$500
|
|
Application for nullity (Form 2):
|
$500
|
|
Application for declaration as to validity (Form 6):
|
$500
|
|
Application for final orders (Form 7):
|
$150
|
|
Response to application for final orders (Form 7A):
|
$150
|
Hearing
|
Fixing of hearing date (defended matters):
|
$300
|
Appeals
|
Notice of appeal from court of summary jurisdiction (Form 43):
|
$300
|
|
Notice of appeal to Full Court (Form 42):
|
$616
|
The new regulations provide for a refund of fees where the payment was made in accordance with the fee structure that existed during the period 1 September 1996 to 30 November 1996. The fees affected by this provision are the filing fee of $250 for a Form 7 or Form 7A and the fees of $400 for the fixing of a hearing date in defended matters and the notice of appeal from court of summary jurisdiction (Form 43). If you paid one of these fees you are able to apply for a partial refund of that fee. The refund is not automatic and parties must request that the refund be made. The request is to be in writing and a copy of the receipt or evidence of payment must be attached. To assist parties, the Court has prepared an application form which is available at the counter in each registry.
Practice Court
The new out of hours number for the Practice Court is 0412 251 575.
Applications for leave to appeal against sentence
The following Practice Statement CAl of 1996 is to apply to all applications for leave to appeal against sentence heard on or after the first day of first term 1997.
Lists of authorities
1. Three copies of a typewritten list of authorities are to be lodged with the registrar of the Court of Appeal no later than loam on the working day before the date fixed for the hearing. At the same time copies are to be exchanged with the other party to the application.
2. Where a case is reported in an authorised series of law reports, that citation should be given. For example, the Commonwealth Law Reports are to be cited rather than the Australian Law Reports and the Queensland Reports are to be cited rather than the Australian Criminal Reports.
Photocopies
3. The copies of the list of authorities lodged with the registrar are to be accompanied by three photocopies of any unreported authorities on which counsel proposes to rely. Leave is required to rely on an unreported authority, but the current practice of the Criminal Division with respect to such authorities will continue.
Outlines of submissions
4. Counsel for the applicant is to provide three copies of a typewritten outline of submissions to the registrar and one copy to counsel for the respondent no later than loam on the working day before the date fixed for the hearing. Counsel for the respondent is to pro-vide three copies of a responsive type-written outline of submissions to the registrar and one copy to counsel for the applicant as soon as practicable thereafter, but no later than loam on the date fixed for the hearing.
5. Outlines of submissions should contain a succinct statement of each major contention of fact or law, together with the relevant references to pages of the plea or sentence, authorities and legislation. They should not take the form of a written argument or be of inordinate length. Their purpose is to identify and summarise the points, not to argue them fully on paper.
6. It is not intended that outlines should replace (other than by shortening) oral argument. They will not inhibit the development of the argument in the course of a hearing in a manner consistent with the grounds of appeal.
7. The applicant's outline must identify the precise criticisms that are made of the sentence. Where a ground is that the sentence is manifestly excessive, the outline should particularise the reasons why that is said to be the case.
8. Manifest excess is not to be used as an umbrella under which to shelter discrete contentions such as that the judge made a mistake as to the facts or that the sentence violates the principle of parity.
Previous practice notes
9. This practice statement replaces, in relation to applications for leave to appeal against sentence, the directions contained in the practice notes published at [1985] VR 332 and 417 and [1993] 1 VR 129.
MH WINNEKE
Associate to the president
This practice note is issued for the purpose of assisting practitioners to under-stand the Court's priorities and intentions and to better use the Court for the expeditious resolution of civil process.
1.1 Morwell
At present, the Morwell civil list is being regularly called over on a date fixed by the Court in consultation with practitioners during a video conferencing link-up. The actual date fixed is dependent on the availability of the video conferencing system at Moe, the roster of civil sittings at the Morwell Court and the general availability of practitioners. This system appears to be working well. It is intended that similar arrangements will continue during 1997.
1.2 Mildura
As with the Morwell civil list, the Mildura civil list has been called over regularly via video conferencing. As with Morwell, the arrangements in place during 1996 have worked satisfactorily. It is intended that similar arrangements will continue during 1997.
1.3 Sale and Bairnsdale
Until video conferencing becomes generally available, the Sale and Bairnsdale civil lists will be regularly called over via video conferencing from Moe. In order to save costs, and for the conven
ience of practitioners, it is intended that during 1997 the Sale and Bairns-dale lists will be called over by the judge conducting the callover of the Morwell civil list on the same day and time as the video conferencing link-up arranged to perform this callover. The callover will be conducted between Moe and Melbourne. The callover will commence with Sale cases, followed by Bairnsdale cases, and will conclude with Morwell cases.
Should the volume of work justify it, a special day may be arranged whereby the Sale/Bairnsdale civil callover may be conducted either by a judge travel-ling to Sale or by video conferencing link-up at Moe.
Liaison between the judge in charge and the registrar of Bairnsdale and Sale County Courts will determine the date, time and place of each callover.
2.1 South-west: Ballarat, Geelong, Warrnambool
During 1996, a monthly callover in each circuit city was conducted by a judge. These callovers were on a date certain fixed in advance and were usually held on the Wednesday, Thursday and Friday of the third or fourth week of each month by the same judge travelling to each city. Dates were pre-determined at an early stage during 1996 and regular callovers were held.
In general, the 1996 arrangements proved satisfactory to the Court, the registry office and to practitioners. It is proposed that similar arrangements will continue during 1997 and will remain until the installation in each circuit court of a video conferencing linkage with (inter alia) the County Court in Melbourne.
Subject to court availability, the callovers will be held as follows: Warrnambool: Wednesdays
Geelong: Thursdays
Ballarat: Fridays.
Practitioners will be advised of specific dates in due course.
2.2 North central: Bendigo, Shepparton, Wangaratta
In an identical manner to that applicable to the south-west, a second judge in charge has, at the same time as the south-west callovers have occurred, con-ducted callovers during 1996 in each circuit city. Identical arrangements occurred as were in place for the south west, which arrangements have appeared to be entirely satisfactory.
During 1997, the Court proposes that until the introduction of video conferencing occurs, similar arrangements will continue to apply, i.e. a judge in charge will visit each circuit city during the third or fourth week of each month for the purpose of judicial case management of the civil lists. The weeks involved in each month will be identical to those referred to in the calendar set for the south-west area.
Subject to court availability, the callovers will be held as follows:
Wangaratta: Wednesdays
Shepparton: Thursdays
Bendigo: Fridays.
2.3 The dates in 1997 proposed for the judge in charge to travel to the south-west circuit and the north central circuit are the following weeks commencing Wednesday:
22 January 23 July
26 February 27 August
19 March 24 September
16 April 22 October
21 May 26 November
25 June 10 December
2.4 1997 civil roster
For the information of practitioners the civil roster for 1997 has now been fixed. Some circuit courts have had specific civil months fixed whereas others are listed for crime and civil with crime having priority.
The roster is as follows:
Bairnsdale (crime and civil)
March: 3.3.97-4.4.97
October: 29.9.97-24.10.97
Ballarat (civil)
February: 3.2.97-28.2.97
April: 7.4.97-2.5.97
November: 29.10.97-21.11.97
Bendigo (civil)
May: 5.5.97-30.5.97
October: 29.9.97-24.10.97
Geelong (civil)
April: 7.4.97-2.5.97
August: 28.7.97-29.8.97
October: 29.9.97-24.10.97
December: 24.11.97-19.12.97
Hamilton (crime and civil)
May: 5.5.97-30.5.97
October: 29.9.97-24.10.97
Horsham (crime and civil)
April: 7.4.97-2.5.97
September: 1.9.97-26.9.97
Kerang (crime and civil)
April: 7.4.97-2.5.97
September: 1.9.97-26.9.97
Mildura (civil)
June: 2.6.97-27.6.97
Morwell (civil)
March: 3.3.97-4.4.97
Sitting at Traralgon (causes only)
March: 3.3.97-4.4.97
June: 2.6.97-27.6.97 (2 courts)
Sale (civil)
June: 2.6.97-27.6.97
Shepparton (civil)
June: 2.6.97-27.6.97
December: 24.11.97-19.12.97
Wangaratta (civil)
May: 5.5.97-30.5.97
December: 24.11.97-19.12.97
Warrnambool (civil)
June: 2.6.97-27.6.97
November: 27.10.97-21.11.97
Morwell practitioners should note that two circuits will occur simultaneously in March and June 1997.
During 1996, a number of callovers were conducted in each circuit city either via video conferencing or by a judge in charge visiting that circuit on a regular basis. Experience has shown that a number of basic requirements and practices are necessary to enable the smooth and expeditious conduct of a callover to occur.
The judges in charge feel that it will be helpful to particularise these matters so that all practitioners may become familiar with the Court's requirements during civil callovers.
3.1 Order of proceeding
3.1.1 In general, the judge in charge will conduct the civil callover in the following order:
(a) trial list, including applications to vacate trial dates;
(b)directions list;
(c) Practice Court applications.
3.1.2 Trial list
3.1.2.1 Where a trial list has already been fixed for a forthcoming circuit the judge in charge will call over the list of cases fixed for trial and inquire whether:
it has settled or not;
it is proceeding;
it is ready to proceed;
all relevant witnesses are available; and will hear any application for vacation of a previously fixed trial date.
3.1.2.2 Where cases are removed from a fixed trial list, the judge in charge will replace those cases to ensure that a full list is available to be listed during the next civil sittings. These replacement cases will be:
cases already fixed for trial that are able to be advanced in date fixed for trial;
cases fixed in a reserve list (if any); cases that have been previously fixed in a trial list but which had not previously been placed in a reserve trial list; and
cases from the directions callover that are in fact ready for trial.
3.1.3 Directions list
3.1.3.1 The judge in charge will call over all cases in which an appearance has been entered or which have otherwise come into the list and give directions as to the future conduct of the litigation. Such directions may include:
3.1.3.2 In every case where directions are given by the judge in charge, practitioners will be given a fixed date by which time the order made will be expected to have been carried out. This date will be fixed by the judge in charge after consultation with those practitioners attending the callover.
If a practitioner fails, without a reason-able excuse, to comply with the order of the judge in charge as to the time frame fixed by the judge, then that practitioner can expect to be ordered to pay costs personally if an application for the same is made or if the judge in charge so determines.
This is particularly appropriate with respect to ADR orders. The Court has found that, notwithstanding previous orders, in many cases ADR has not been conducted prior to a trial date arriving. In these situations practitioners have usually applied for an order vacating the trial date. Unless special circumstances arise, practitioners can expect such applications to fail, and in those circumstances the litigation will be fixed for trial without a mediation or some other form of ADR having first been conducted.
3.1.3.3 All consent orders are subject to the approval of the judge in charge. The judge in charge will accept appropriate consent orders at any time. If practitioners reach agreement as to direct-ions, save as to discovery and interrogatories, consent orders may be faxed to the judge in charge. Insofar as discovery and interrogatories are concerned, the judge in charge will accept faxed schedules as to documents to be discovered and faxed draft interrogatories and will determine their appropriateness.
In these circumstances, no appearance at the directions hearing in that case will be required and consent orders will be made by the judge in charge.
3.1.4 Practice Court applications
At the conclusion of the directions callover, or at any other time convenient to the judge in charge, Practice Court applications may be dealt with by the judge in charge. It should be realised that lengthy matters are not appropriate to be dealt with at a directions hearing, but must be dealt with either by the circuit trial judge or in the Practice Court. Such matters may include summonses for final judgment and injunction applications.
4.1 Practitioners must realise that all applications relating to the civil circuit ought to be made to the judge in charge during directions hearings held prior to the civil circuit commencing.
4.2 Unless special circumstances occur subsequent to the last directions hearing held prior to the circuit commencing, it should not be expected that an application for an order vacating a trial date made to a trial judge will prevail.
Practitioners must realise that an efficient listing of cases for trial cannot occur if they assume, rather than accurately determine, the availability of important witnesses. If a date is not suitable, application to change the date or adjourn the trial to the following sittings must be made to the judge in charge rather than to the trial judge.
Nevertheless, if a practitioner, without good intervening cause, successfully applies to the trial judge for an adjournment, then that practitioner can expect to be personally required to pay costs thrown away, probably on a solicitor client basis. Indeed, in particular cases, the question of costs may be referred back to the judge in charge by the trial judge for determination.
CHIEF JUDGE WALDRON, JUDGES JONES, FB LEWIS AND KEON-COHEN
Section 9 of the Legal Profession Practice (Amendment) Act 1995 came into operation on 1 April 1996. It removed the ability of Victorians to obtain compensation from the Solicitors' Guarantee Fund in circumstances where funds are left with a solicitor for investing in mortgages, other than direct mortgages.
A direct mortgage is defined in the amending Act as:
" ... a mortgage in relation to which:
(a) the mortgagee is a financial
institution; or
(b) the lender and the mortgagor are
the only parties to the document or
documents creating, or setting out
the terms of, the mortgage."
Following the amendment to the Act, the Australian Securities Commission revised the class order that allowed all solicitors to operate contributor or nominee mortgage practices. The new class order granted an exemption from the fundraising provisions of the Corporations Law as they apply to contributory mortgages, but limited the exemption to members who are registered with the Law Institute's Solicitors' Mortgage Practice Section.
The new restrictions apply only to money lent on or after 1 April 1996. Contributory mortgages funded prior to that date may continue their term, how-ever there cannot be any variations unless . the solicitor either complies with the provisions of the Corporations Law or is registered with the Law Institute's Solicitors' Mortgage Practice Section and the variations to these mortgages comply with the rules of the Section.
The amendments to the Mortgage Register and Nominee Company Rules reflect the changes in the Act and were published in the Victoria Government Gazette of 17 October 1996.
Members wishing to join the Solicitors' Mortgage Practice Section should contact the Section secretary, Dan FitzGerald on (03) 9607 9382.
Rule 8 regulates a solicitor's right to borrow from a client.
The previous rule provided an exempt-ion in cases where the client was a corporation or a natural person whose business included the lending of money to members of the public.
The amendment to r8 was necessary to remove uncertainty about interpretation. The categories of lenders who are exempt in the amended rule have been taken from r10; they do not include a client who is a natural person whose business is or includes the lending of money to members of the public.
Rule 10(5) of the Solicitors' (Professional Conduct and Practice) Rules has been repealed.
These amendments were published in the Victoria Government Gazette of 17 October 1996.
The current penalty interest rate is
13.2% (from 30 October 1991). A list of the
previous rates can be found on page 8 of
the 1997 Law Institute Diary.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/LawIJV/1997/16.html