Authorised Version Courts Legislation Miscellaneous ... · PDF fileCourts Legislation Miscellaneous Amendments Act ... Leases Act 2003—Referral of retail tenancy disputes ... Courts

Authorised by the Chief Parliamentary Counsel

Authorised Version

i

Courts Legislation Miscellaneous Amendments Act 2014

No. 62 of 2014

TABLE OF PROVISIONS Section Page

PART 1—PRELIMINARY 1

1 Purposes 1 2 Commencement 2

PART 2—CIVIL APPEALS 4

Division 1—Supreme Court Act 1986 4

3 Way in which Court of Appeal may be constituted 4 4 New sections 14A to 14D inserted 5

14A Leave to appeal required for civil appeals 5 14B Commencing a civil appeal 6 14C Appeal must have real prospect of success 6 14D Determination of application for leave to appeal 6

5 Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge 7

6 Restriction on appeals 7 7 Power to make Rules 8 8 New sections 154 to 156 inserted 9

154 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014 9

155 Power to resolve transitional difficulties in proceeding 10 156 Regulations dealing with transitional matters 10

Division 2—Consequential Amendments to Other Acts 12

9 Accident Compensation Act 1985—Effect of decision on application 12

10 Casino Control Act 1991—Appeals 12 11 County Court Act 1958—Appeal to the Court of Appeal 13 12 Disability Act 2006—Appeals regarding extended leave 14 13 Disability Act 2006—Appeals regarding revocation of

extended leave 14 14 Fisheries Act 1995—Determination of claim 15 15 Imprisonment of Fraudulent Debtors Act 1958—Judgment

debtor may appeal to Full Court 15 16 Judgment Debt Recovery Act 1984—Persistent wilful default 16

Section Page

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17 Land Acquisition and Compensation Act 1986—Determination of claim 16

18 Legal Profession Act 2004—Order disqualifying persons 16 19 Legal Profession Act 2004—Appeal against appointment 17 20 Status of Children Act 1974—Appeals 17 21 Urban Renewal Authority Victoria Act 2003—Grounds of

review or appeal 17 22 Valuation of Land Act 1960—Powers on review or appeal 18 23 Victorian Civil and Administrative Tribunal Act 1998—

Appeals from the Tribunal 18 24 Workplace Injury Rehabilitation and Compensation

Act 2013—Effect of decision on application 19

PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL 20

Division 1—Amendments to Victorian Civil and Administrative Tribunal Act 1998 20

25 Definitions 20 26 New section 16B inserted 20

16B Amendment of appointment of sessional and non-sessional members 20

27 New section 25B inserted 21 25B Member or former member may not appear as expert

witness 21 28 Joinder of parties 22 29 Constitution of Tribunal in proceedings 22 30 Intervention 23 31 Mediation 23 32 New section 93A inserted 23

93A Party may object to mediator hearing the proceeding 23 33 General procedure 24 34 Power to award costs 24 35 Orders as to reimbursement or payment of fees 25 36 New section 115CA inserted 25

115CA Presumption of order for reimbursement of fees in certain planning matters 25

37 Re-opening an order on substantive grounds 26 38 Power to make rules 27 39 New section 168 inserted 27


40 Definition of planning enactment in Schedule 1 28 41 Parties to lodge grounds 28 42 Member of Tribunal can mediate 29 43 New clause 97A inserted in Schedule 1 29

97A Valuer-general may intervene and be represented 29

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44 Subject matter for rules 29 45 Statute law revision 29

Division 2—Further amendments to Victorian Civil and Administrative Tribunal Act 1998 30

46 Definitions 30 47 Deputy Presidents, senior members and ordinary members 30 48 Appointment of members 31 49 Remuneration and allowances 31 50 Prohibition on outside employment 32 51 New sections 18A, 18B and 18C inserted 32

18A Entry into part-time service arrangement 32 18B Variation of part-time service arrangement 34 18C Termination of part-time service arrangement 34


Division 3—Amendment of Enabling Enactments 36

53 Planning and Environment Act 1987—Parties to review 36 54 Planning and Environment Act 1987—Injunctions 36 55 Retail Leases Act 2003—Meaning of retail tenancy dispute 37 56 Retail Leases Act 2003—Referral of retail tenancy disputes

for alternative dispute resolution 37 57 Retail Leases Act 2003—Jurisdiction of Tribunal 38 58 Transport Accident Act 1986—Application to Tribunal 39 59 Transport Accident Act 1986—New Division 9 inserted in

Part 11 40

Division 9—Courts Legislation Miscellaneous Amendments Act 2014 40

228 Application to Tribunal 40 60 Valuation of Land Act 1960—Functions of valuer-general 40

PART 4—CORONERS 41

61 Certain reportable deaths do not require investigation 41 62 Objections to autopsy 41 63 Documents and prepared statements requested by coroner 42 64 Inquest into a death 42 65 Publication of findings and reports 43 66 Appeal in relation to determination that death not a reportable

death 43 67 Appeal in relation to determination of coroner not to investigate

a fire 43 68 Appeal in relation to determination not to hold an inquest 44 69 Appeal against refusal by coroner to re-open investigation 44 70 Appeal to Supreme Court is on a question of law 44

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71 New section 87A inserted 44 87A Appeal to Supreme Court in the interests of justice 44

72 Rules of the Coroners Court 45 73 Access to documents 45 74 New section 120 inserted 46

120 Transitional provision—Courts Legislation Miscellaneous Amendments Act 2014 46

PART 5—COURT SECURITY 48

75 Definitions 48 76 Heading to section 4 inserted 49 77 New sections 4A, 4B and 4C inserted 49

4A Offence to record proceeding 49 4B Offence to publish recording of proceeding 50 4C Offence to transmit to or give recording of proceeding

to another person 51 78 Regulations 52 79 Consequential amendment to Legal Profession Uniform Law

Application Act 2014 53 26A Court Security Act 1980 53

PART 6—JUDICIAL REGISTRARS 54


80 Guidelines relating to the appointment of judicial registrars 54 81 Appointment by the Governor in Council 54 82 Remuneration and terms and conditions of appointment 54 83 New section 113GB inserted 54

113GB Oath or affirmation of office 54 84 Section 113M substituted 55

113M Appeal from or review of determination of Court constituted by judicial registrar 55

Division 2—County Court Act 1958 57

85 Guidelines relating to the appointment of judicial registrars 57 86 Appointment by the Governor in Council 57 87 Remuneration and terms and conditions of appointment 57 88 New section 17PA inserted 58

17PA Oath or affirmation of office 58 89 Section 17V substituted 58

17V Appeal from or review of determination of court constituted by judicial registrar 58

Division 3—Magistrates' Court Act 1989 60

90 Guidelines relating to the appointment of judicial registrars 60 91 Appointment of judicial registrars 60

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92 Terms and conditions of appointment 60 93 New section 16DB inserted 61

16DB Oath or affirmation of office 61 94 Rules of Court 61 95 Section 16K substituted 61

16K Appeal from or review of determination of Court constituted by judicial registrar 61

Division 4—Children, Youth and Families Act 2005 63

96 Guidelines relating to the appointment of judicial registrars 63 97 Appointment by Governor in Council 63 98 Remuneration and terms and conditions of appointment 63 99 New section 542EA inserted 64

542EA Oath or affirmation of office 64 100 Section 542K substituted 64

542K Appeal from or review of determination of Court constituted by judicial registrar 64

Division 5—Coroners Act 2008 65

101 Guidelines relating to the appointment of judicial registrars 65 102 Appointment by Governor in Council 66 103 Remuneration and terms and conditions of appointment 66 104 New section 102EA inserted 66

102EA Oath or affirmation of office 66 105 Section 102K substituted 67

102K Appeal from or review of decisions of judicial registrar 67

Division 6—Victims of Crime Assistance Act 1996 68

106 Rules 68 107 Review of delegated Tribunal decisions 68

PART 7—FURTHER MISCELLANEOUS AMENDMENTS AND REPEAL 69


108 Regulations 69

Division 2—Interpretation of Legislation Act 1984 71

109 Prescribing matters by reference to other documents 71

Division 3—Repeal of amending Act 71

110 Repeal of amending Act 71 ═══════════════

ENDNOTES 72


Authorised Version

1

Courts Legislation Miscellaneous

Amendments Act 2014† No. 62 of 2014

[Assented to 9 September 2014]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes 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;

Victoria

Part 1—Preliminary

Courts Legislation Miscellaneous Amendments Act 2014 No. 62 of 2014

2


(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 1998 in 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—

(i) to further provide for various coronial processes;

(ii) to further 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.

2 Commencement (1) This Act (except Part 2, Division 2 of Part 3 and

Parts 4, 5 and 6) comes into operation on the day after the day on which it receives the Royal Assent.

s. 2

Part 1—Preliminary


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(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


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PART 2—CIVIL APPEALS

Division 1—Supreme Court Act 1986

3 Way in which Court of Appeal may be constituted (1) After section 11(1B) of the Supreme Court Act

1986 insert—

"(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 1986 omit "a single Judge of Appeal or".

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

"(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 1986 omit "a single Judge of Appeal or".

(5) In section 11(6) of the Supreme Court Act 1986 for "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)".

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



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

"(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.".

4 New sections 14A to 14D inserted After section 14 of the Supreme Court Act 1986 insert—

"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.

s. 4



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14B Commencing a civil appeal (1) An applicant for leave to appeal under

section 14A 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.

14C Appeal must have real prospect of success The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.

14D Determination 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 section 14A 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

s. 4



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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.".

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

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

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

6 Restriction 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

s. 5



8


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 1986 is repealed.

7 Power to make Rules After section 25(1)(ca) of the Supreme Court Act 1986 insert—

"(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;".

s. 7



9


8 New sections 154 to 156 inserted After section 153 of the Supreme Court Act 1986 insert—

"154 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014

(1) The amendments made to this Act by Part 2 of the Courts Legislation Miscellaneous Amendments Act 2014 apply in relation to any application or proceeding in the Court of Appeal, including any appeal referred to in section 14A (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 section 14A (other than an appeal referred to in section 14A(2)) by Part 2 of the Courts Legislation Miscellaneous Amendments Act 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 Amendments Act 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 section 14A (other than an appeal referred to in section 14A(2)) has commenced before

s. 8



10


the commencement of Part 2 of the Courts Legislation Miscellaneous Amendments Act 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.

155 Power to resolve transitional difficulties in proceeding

(1) If any difficulty arises because of the operation of Part 2 of the Courts Legislation Miscellaneous Amendments Act 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 (other than the Charter of Human Rights and Responsibilities Act 2006).

156 Regulations 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

s. 8



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Courts Legislation Miscellaneous Amendments Act 2014, including any repeals and amendments made by that Part.

(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 Amendments Act 2014 receives the Royal Assent;

(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 Amendments Act 2014 or 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.".

s. 8



12


Division 2—Consequential Amendments to Other Acts

9 Accident Compensation Act 1985—Effect of decision on application

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

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

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

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



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

(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 1958 substitute—

"(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.

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



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12 Disability Act 2006—Appeals regarding extended leave

(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".


13 Disability Act 2006—Appeals regarding revocation of 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



15


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

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

(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—

(a) for "order to the Full Court" substitute "order to the Court of Appeal with leave of the Court of Appeal";

(b) for "Full Court" (where twice occurring) substitute "Court of Appeal".

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

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



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16 Judgment Debt Recovery Act 1984—Persistent wilful default

In section 19(4)(b) of the Judgment Debt Recovery Act 1984, after "Court of Appeal" insert "with leave of the Court of Appeal".

17 Land Acquisition and Compensation Act 1986—Determination of claim

In section 89(2) of the Land Acquisition and Compensation Act 1986 after "law" insert "and with leave of the Court of Appeal".

18 Legal Profession Act 2004—Order disqualifying persons

In section 2.2.6(5) of the Legal Profession Act 2004, after "law" insert "with leave of the Court of Appeal".

s. 16

See: Act No. 10063. Reprint No. 2 as at 14 February 2008. LawToday: www. legislation. vic.gov.au

See: Act No. 121/1986. Reprint No. 5 as at 16 May 2013. LawToday: www. legislation. vic.gov.au

See: Act No. 99/2004. Reprint No. 4 as at 1 July 2011 and amending Act Nos 36/2011, 15/2012, 20/2012, 21/2012, 68/2013 and 17/2014. LawToday: www. legislation. vic.gov.au



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19 Legal Profession Act 2004—Appeal against appointment

In section 5.6.4(3)(b) of the Legal Profession Act 2004, after "Court of Appeal" insert "with leave of the Court of Appeal,".

20 Status of Children Act 1974—Appeals In section 30(1) of the Status of Children Act 1974, after "Court of Appeal" insert "with leave of the Court of Appeal".

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

In section 51ZR(2) of the Urban Renewal Authority Victoria Act 2003, after "law" insert "and with leave of the Court of Appeal".

s. 19

See: Act No. 8602. Reprint No. 3 as at 1 May 2013. LawToday: www. legislation. vic.gov.au

See: Act No. 59/2003. Reprint No. 2 as at 25 October 2011 and amending Act Nos 61/2011 and 34/2013. LawToday: www. legislation. vic.gov.au



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

In section 25(2) of the Valuation of Land Act 1960, after "law" insert "and with leave of the Court of Appeal".

23 Victorian Civil and Administrative Tribunal Act 1998—Appeals from the Tribunal

(1) For section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 substitute—

"(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.".

(2) In section 148(3) of the Victorian Civil and Administrative Tribunal Act 1998, after "If leave" insert "to appeal to the Trial Division of the Supreme Court".

s. 22

See: Act No. 6653. Reprint No. 13 as at 19 May 2011 and amending Act Nos 69/2011, 58/2012 and 34/2014. LawToday: www. legislation. vic.gov.au

See: Act No. 53/1998. Reprint No. 9 as at 1 January 2014 and amending Act Nos 11/2010, 67/2013, 1/2014, 17/2014 and 23/2014. LawToday: www. legislation. vic.gov.au



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24 Workplace Injury Rehabilitation and Compensation Act 2013—Effect of decision on application

Section 351 of the Workplace Injury Rehabilitation and Compensation Act 2013 is repealed.

__________________

See: Act No. 67/2013 and amending Act Nos 17/2014 and 26/2014. Statute Book: www. legislation. vic.gov.au

s. 24

Part 3—Victorian Civil and Administrative Tribunal


20


PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

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

25 Definitions Insert the following definition in section 3 of the Victorian Civil and Administrative Tribunal Act 1998—

"interim order means an order of an interim or interlocutory nature;".

26 New section 16B inserted After section 16A of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"16B Amendment of appointment of sessional and non-sessional members

(1) The Governor in Council may amend the appointment of a senior member or ordinary member who was appointed on a sessional basis so that the member's appointment continues on a non-sessional basis.

(2) The Governor in Council may amend the appointment of a senior member or ordinary member who was appointed on a non-sessional basis so that the member's appointment continues on a sessional basis.

(3) The Governor in Council may amend an appointment under this section only with the member's prior consent.

(4) Subsection (1) does not apply to a sessional member who has attained the age of 70 years.

s. 25



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(5) If a member's appointment is amended under subsection (1), the member's term of office expires on whichever of the following first occurs—

(a) the date that is 7 years after the original date of appointment;

(b) the date that the member attains the age of 70 years.

(6) If a member's appointment is amended under subsection (2), the member's term of office expires on the date that is 7 years after the original date of appointment.".

27 New section 25B inserted After section 25A of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"25B Member or former member may not appear as expert witness

(1) If the rules provide for proceedings to be entered in or transferred to lists of the Tribunal and for members to be assigned to those lists—

(a) a member must not appear as an expert witness in any proceeding that has been entered into or transferred to a list to which the member has been assigned, except with the approval of the President; and

(b) for a period of 2 years after a member ceases to be a member, the former member must not appear as an expert witness in any proceeding that has been entered into or transferred to a list to which the former member was assigned, except with the approval of the President.

s. 27



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(2) This section is subject to any other provision of this Act or an enabling enactment that allows a member or former member to appear as a witness. Note

See, for example, section 30 of the Valuation of Land Act 1960.".

28 Joinder of parties After section 60(2) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(3) On the application of a person who is entitled under section 73(4) to be joined as a party the Tribunal must order that the person be joined as a party.".

29 Constitution of Tribunal in proceedings After section 64(3) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(4) If a provision of this Act, the rules or an enabling enactment provides that a power of the Tribunal is exercisable by any member, then any member of the Tribunal may exercise that power in a proceeding despite any provision of this Act or an enabling enactment that requires the Tribunal to be constituted in a particular way for the purposes of the proceeding. Example

As section 80(2) provides that the Tribunal's power to give directions is exercisable by any member, any member may give directions in a proceeding under Division 5 of Part 3 of the Pharmacy Regulation Act 2010 even though clause 51AE of Schedule 1 requires the Tribunal to be constituted by at least 3 members for the purposes of proceedings under that Division.

s. 28



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(5) If a provision of this Act, the rules or an enabling enactment provides that a power of the Tribunal is exercisable by the principal registrar, then the principal registrar may exercise that power in a proceeding despite any provision of this Act or an enabling enactment that requires the Tribunal to be constituted in a particular way for the purposes of the proceeding.".

30 Intervention After section 73(3) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(4) A person (other than the Small Business Commissioner) who is entitled under this Act or an enabling enactment to intervene in a proceeding and who does intervene is entitled to be joined as a party to the proceeding.".

31 Mediation Section 88(6) of the Victorian Civil and Administrative Tribunal Act 1998 is repealed.

32 New section 93A inserted After section 93 of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"93A Party may object to mediator hearing the proceeding

(1) This section applies in a proceeding that has been the subject of unsuccessful mediation by a mediator who is a member of the Tribunal.

(2) If it is proposed that the mediator constitute the Tribunal (whether with or without others) for the purpose of hearing the proceeding, the Tribunal must notify each party to the proceeding of the party's right to object.

s. 30



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(3) A party to the proceeding may object to the mediator constituting the Tribunal (whether with or without others) for the purpose of hearing the proceeding.

(4) The objection must be made to the Tribunal before or at the commencement of the hearing.

(5) If an objection is made, the mediator must take no part, or no further part, in the proceeding and, if necessary, the Tribunal must be reconstituted.".

33 General procedure After section 98(2) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.

(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding. Example

Section 85 provides that evidence of anything said or done in the course of a compulsory conference is not admissible except in certain circumstances.".

34 Power to award costs After section 109(6) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(7) A power of the Tribunal under this section is exercisable by any member.".

s. 33



25


35 Orders as to reimbursement or payment of fees (1) In section 115B(3) of the Victorian Civil and

Administrative Tribunal Act 1998, after "section 115C" insert "or 115CA".

(2) In the heading to section 115C of the Victorian Civil and Administrative Tribunal Act 1998, after "fees" insert "to successful party".

36 New section 115CA inserted After section 115C of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"115CA Presumption of order for reimbursement of fees in certain planning matters

(1) Subject to subsections (2) and (3), an applicant to the Tribunal under section 79 of the Planning and Environment Act 1987 is entitled to an order under section 115B that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding. Note

Section 79 of the Planning and Environment Act 1987 enables an applicant for a planning permit to apply to the Tribunal for review of a failure of the responsible authority to grant the permit within the prescribed time.

(2) If different fees are payable in a proceeding under section 79 of the Planning and Environment Act 1987 depending on an election made by the applicant, subsection (1) applies to entitle the applicant to an order for reimbursement of only the amount of the lowest of those fees. Example

If different fees are payable depending on the list of the Tribunal in which the applicant elects to have the proceeding entered, then if the applicant elects to have

s. 35



26


the proceeding entered in a list that attracts a higher fee, the applicant would only be entitled under subsection (1) to an order for reimbursement of the amount of the lowest of those fees.

(3) Subsection (1) does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to—

(a) the nature and complexity of the permit application; and

(b) the conduct of the applicant in relation to the permit application; and

(c) any other matter beyond the reasonable control of the responsible authority.".

37 Re-opening an order on substantive grounds (1) For section 120(4)(a) of the Victorian Civil and

Administrative Tribunal Act 1998 substitute—

"(a) hear and determine the application if it is satisfied that—

(i) the applicant had a reasonable excuse for not attending or being represented at the hearing; and

(ii) it is appropriate to hear and determine the application having regard to the matters specified in subsection (4A); and".

(2) After section 120(4) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(4A) For the purposes of subsection (4)(a)(ii), the matters are—

s. 37



27


(a) whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and

(b) any prejudice that may be caused to another party if the application is heard and determined.

(4B) The Tribunal may hear and determine an application under this section despite subsection (4A)(b) if the Tribunal is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under section 109 or an order for reimbursement of fees under section 115B or both.

(4C) In deciding to hear and determine an application under this section the Tribunal may require the applicant to give any undertaking as to costs or damages that the Tribunal considers appropriate.".

38 Power to make rules After section 157(3) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(4) Rules made in relation to service of documents may provide for service outside Australia of applications to the Tribunal only with leave of the Tribunal constituted by a member who is a legal practitioner.".

39 New section 168 inserted After section 167 of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"168 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014

(1) Subject to subsection (2), each amendment made to this Act by Division 1 of Part 3 of

s. 38



28


the Courts Legislation Miscellaneous Amendments Act 2014 (except section 26) applies, on and after the coming into operation of the amendment, in relation to all proceedings in the Tribunal, whether those proceedings were commenced before or after the coming into operation of the amendment.

(2) Section 115CA applies only in relation to an application to the Tribunal under section 79 of the Planning and Environment Act 1987 that is made on or after the coming into operation of section 36 of the Courts Legislation Miscellaneous Amendments Act 2014.".

40 Definition of planning enactment in Schedule 1 In clause 2 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, in the definition of planning enactment—

(a) paragraph (e) is repealed;

(b) in paragraph (g) omit "and sections 36 and 39".

41 Parties to lodge grounds (1) Insert the following heading to clause 56 of

Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998—

"Person wishing to contest proceeding to lodge grounds".

(2) After clause 56(4) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(5) A person who lodges a statement under subclause (1) may lodge with the statement a written notice that the person does not intend to participate in the hearing of the proceeding.

s. 40



29


(6) If a person lodges a notice under subclause (5), the person is not, or ceases to be, a party to the proceeding (as the case requires).".

42 Member of Tribunal can mediate Clause 70 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 is repealed.

43 New clause 97A inserted in Schedule 1 After clause 97 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—

"97A Valuer-general may intervene and be represented The valuer-general may intervene, and be represented by a professional advocate, at any time in a proceeding for review under Division 4 of Part III of the Valuation of Land Act 1960.".

44 Subject matter for rules In Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998, after "Service of documents" insert ", including service outside Victoria (including outside Australia)".

45 Statute law revision In clause 5(2) of Schedule 3 to the Victorian Civil and Administrative Tribunal Act 1998, for "subsection (1)" substitute "subclause (1)".

s. 42



30


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

46 Definitions In section 3 of the Victorian Civil and Administrative Tribunal Act 1998—

(a) insert the following definition—

"part-time service arrangement means an arrangement entered into under section 18A;";

(b) for the definition of full-time member substitute—

"full-time member means—

(a) the President or a Vice President, other than a Vice President who is undertaking the duties of a Vice President on a part-time or sessional basis under section 11A(2A); or

(b) a Deputy President, senior member or ordinary member who is appointed on a non-sessional basis and who is not undertaking the duties of office on a part-time basis;";

(c) the definition of part-time member is repealed.

47 Deputy Presidents, senior members and ordinary members


"(4) A Deputy President may only be appointed on a non-sessional basis.".

s. 46



31



"(4) A senior member may be appointed on a sessional or a non-sessional basis.".


"(4) An ordinary member may be appointed on a sessional or a non-sessional basis.".

48 Appointment of members After section 16(7) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(8) The instrument of appointment of a Deputy President, senior member or ordinary member may indicate that the member is to commence undertaking the duties of office on a part-time basis and, if so, may specify the proportion of full-time duties to be worked by the member.

(9) If a member's instrument of appointment indicates that the member is to commence undertaking the duties of office on a part-time basis, the member is taken to have entered into a part-time service arrangement, which may be varied or terminated accordingly.".

49 Remuneration and allowances

(1) Insert the following heading to section 17 of the Victorian Civil and Administrative Tribunal Act 1998—

"Terms and conditions of service".

(2) For section 17(1) and (2) of the Victorian Civil and Administrative Tribunal Act 1998 substitute—

s. 48



32


"(1) A member is subject to the terms and conditions, including remuneration and allowances, that are determined from time to time by Order of the Governor in Council.

(2) The Governor in Council may under subsection (1) determine different terms and conditions for different classes of members.".

(3) After section 17(3) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(3A) An Order of the Governor in Council under this section may apply, adopt or incorporate by reference any document formulated or published by a person or body, whether—

(a) without modification or as modified by the Order; or

(b) as formulated or published on or before the date when the Order is made; or

(c) as formulated or published from time to time.".

50 Prohibition on outside employment In section 18 of the Victorian Civil and Administrative Tribunal Act 1998, for "appointed on a full-time basis" substitute "a full-time member".

51 New sections 18A, 18B and 18C inserted After section 18 of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"18A Entry into part-time service arrangement

(1) A Deputy President, senior member or ordinary member may enter into an arrangement with the President to undertake the duties of office on a part-time basis.

s. 50



33


(2) A part-time service arrangement—

(a) must be in writing; and

(b) must specify the proportion of full-time duties to be worked by the member, which must be a minimum of 0·4 of full-time duties; and

(c) may specify an expiry date, but is not required to do so.

(3) The President may have regard to the following factors in considering whether to enter into a part-time service arrangement—

(a) the operational needs of the Tribunal;

(b) the personal and professional circumstances of the member;

(c) parity and equity with other members;

(d) any other relevant consideration.

(4) A part-time service arrangement takes effect from the date specified in the part-time service arrangement.

(5) A Deputy President, senior member or ordinary member to whom a part-time service agreement applies is entitled to receive a pro-rata amount of the remuneration applicable to a Deputy President, senior member or ordinary member (as the case requires) appointed on a non-sessional basis who is undertaking the duties of office on a full-time basis.

(6) This section does not apply to a senior member or ordinary member who is appointed on a sessional basis.

s. 51



34


18B Variation of part-time service arrangement

(1) A part-time service arrangement may be varied by agreement between the member to whom the arrangement applies and the President.

(2) A variation of a part-time service arrangement—

(a) must be in writing; and

(b) must specify the proportion of full-time duties to be worked by the member, which must be a minimum of 0·4 of full-time duties.

(3) The President may have regard to the factors referred to in section 18A(3) in considering whether to vary a part-time service arrangement.

(4) A variation of a part-time service arrangement takes effect from the date specified in the written variation of the part-time service arrangement.

18C Termination of part-time service arrangement

(1) A part-time service arrangement is terminated if the appointment of the member to whom the arrangement applies is amended from a non-sessional basis to a sessional basis. Note

See section 16B(2).

(2) A part-time service arrangement may be terminated by agreement between the member to whom the arrangement applies and the President.".

s. 51



35


52 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014

After section 168(2) of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"(3) A Deputy President, senior member or ordinary member who was appointed on a part-time basis and who held office immediately before the commencement of section 47 of the Courts Legislation Miscellaneous Amendments Act 2014, on and after that commencement—

(a) continues to hold office as a Deputy President, senior member or ordinary member (as the case requires); and

(b) is taken to be serving under a part-time service arrangement on the same terms as applied to the person immediately before that commencement.

(4) A Deputy President, senior member or ordinary member who was appointed on a full-time basis and who held office immediately before the commencement of section 47 of the Courts Legislation Miscellaneous Amendments Act 2014, on and after that commencement continues to hold office as a Deputy President, senior member or ordinary member (as the case requires) on the same terms as applied to the person immediately before that commencement.

(5) To avoid doubt, nothing in this Act prevents a person referred to in subsection (4) from entering into a part-time service arrangement.".

s. 52



36


Division 3—Amendment of Enabling Enactments

53 Planning and Environment Act 1987—Parties to review

(1) After section 83(2) of the Planning and Environment Act 1987 insert—

"(2A) Subsection (2) does not apply if the objector lodges notice under clause 56(5) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.".

(2) After section 83(3) of the Planning and Environment Act 1987 insert—

"(4) In addition to any other party to a proceeding for review under section 82, the applicant for the permit is a party to the proceeding.".

54 Planning and Environment Act 1987—Injunctions (1) In section 125 of the Planning and Environment

Act 1987, after "jurisdiction" insert "or to the Tribunal".

(2) At the end of section 125 of the Planning and Environment Act 1987 insert—

"(2) Section 123 of the Victorian Civil and Administrative Tribunal Act 1998 applies on an application to the Tribunal under subsection (1).".

s. 53

See: Act No. 45/1987. Reprint No. 11 as at 28 October 2013 and amending Act Nos 70/2013 and 17/2014. LawToday: www. legislation. vic.gov.au



37


55 Retail Leases Act 2003—Meaning of retail tenancy dispute

After section 81(1) of the Retail Leases Act 2003 insert—

"(1A) In addition, a retail tenancy dispute includes—

(a) a dispute between a landlord and a guarantor of a tenant's obligations under a lease arising in circumstances referred to in subsection (1)(a), (b) or (c); and

(b) a dispute between a landlord and a person who has given an indemnity to the landlord for loss or damage arising as a result of a breach by a tenant of a lease in circumstances referred to in subsection (1)(a), (b) or (c).".

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

After section 86(1) of the Retail Leases Act 2003 insert—

"(1A) A guarantor of a tenant's obligations under a lease who has been called on to perform any of those obligations may refer a retail tenancy dispute referred to in section 81(1A) to the Small Business Commissioner for mediation.

(1B) A person who has given an indemnity to a landlord for loss or damage arising as a result of a breach by a tenant of a lease and who has been called on to indemnify the landlord accordingly may refer a retail tenancy dispute referred to in section 81(1A) to the Small Business Commissioner for mediation.".

s. 55

See: Act No. 4/2003. Reprint No. 2 as at 16 May 2013 and amending Act No. 17/2014. LawToday: www. legislation. vic.gov.au



38


57 Retail Leases Act 2003—Jurisdiction of Tribunal (1) For section 89(1) of the Retail Leases Act 2003

substitute—

"(1) The Tribunal has jurisdiction to hear and determine an application by any of the following persons seeking resolution of a retail tenancy dispute—

(a) a landlord or tenant under a retail premises lease;

(b) a guarantor of a tenant's obligations under a retail premises lease;

(c) a person who has given an indemnity to a landlord for loss or damage arising as a result of a breach by a tenant of a retail premises lease;

(d) a specialist retail valuer.".

(2) In section 89(4) of the Retail Leases Act 2003—

(a) in paragraph (b), for "Conduct)—" substitute "Conduct); or";

(b) after paragraph (b) insert—

"(c) a retail tenancy dispute referred to in section 81(1A)—".

s. 57



39


58 Transport Accident Act 1986—Application to Tribunal

(1) In section 77(1) of the Transport Accident Act 1986 omit ", within 12 months after becoming aware of the decision,".

(2) After section 77(1) of the Transport Accident Act 1986 insert—

"(1A) An application under subsection (1) must be made by the later of—

(a) 12 months after the person becomes aware of the decision; or

(b) if the decision has been the subject of an application for a pre-issue review under the Protocols, 3 months after the Commission notifies the person in accordance with the Protocols of its decision on the application.".

(3) After section 77(4) of the Transport Accident Act 1986 insert—

"(5) In this section—

Protocols means the No Fault Dispute Resolution Protocols agreed between the Commission, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005 as amended from time to time.".

s. 58

See: Act No. 111/1986. Reprint No. 13 as at 1 January 2014 and amending Act Nos 30/2013, 67/2013 and 26/2014. LawToday: www. legislation. vic.gov.au



40


59 Transport Accident Act 1986—New Division 9 inserted in Part 11

At the end of Part 11 of the Transport Accident Act 1986 insert—

"Division 9—Courts Legislation Miscellaneous Amendments Act 2014

228 Application to Tribunal (1) Section 77(1) as amended by the amending

Act and section 77(1A) as inserted by the amending Act apply to—

(a) a decision of which a person becomes aware on or after the commencement day; and

(b) a decision of which a person became aware within 12 months before the commencement day, unless the person had applied for review of the decision under section 77(1) before the commencement day.

(2) In this section—

amending Act means the Courts Legislation Miscellaneous Amendments Act 2014;

commencement day means the day on which section 59 of the amending Act comes into operation.".

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

For section 5(1)(a) of the Valuation of Land Act 1960 substitute—

"(a) to carry out the duties and functions conferred by this or any other Act;".

__________________

s. 59

Part 4—Coroners


41


PART 4—CORONERS

61 Certain reportable deaths do not require investigation

(1) In section 17(1) of the Coroners Act 2008, for "A coroner" substitute "Subject to subsection (3), a coroner".

(2) After section 17(2) of the Coroners Act 2008 insert—

"(3) This section does not apply to a reportable death of a person who, immediately before death, was a person placed in custody or care. Note

See section 52 which provides for the investigatory requirements in respect of a death due to natural causes where the deceased was, immediately before death, a person placed in custody or care.".

62 Objections to autopsy (1) For section 26(2) of the Coroners Act 2008

substitute—

"(2) Within 48 hours after receiving notice under subsection (1), the senior next of kin may—

(a) ask the coroner to reconsider the direction that an autopsy be performed; or

(b) if the senior next of kin does not object to the autopsy and would like the autopsy to be performed without delay, consent, in accordance with the rules, to the waiver of the period remaining for the senior next of kin to make a request under paragraph (a).".

(2) In section 26(3) of the Coroners Act 2008, for "subsection (2)" substitute "subsection (2)(a)".

s. 61

See: Act No. 77/2008. Reprint No. 1 as at 21 July 2011 and amending Act Nos 52/2012, 83/2012, 5/2013 and 63/2013. LawToday: www. legislation. vic.gov.au

Part 4—Coroners


42


(3) For section 26(4)(b) of the Coroners Act 2008 substitute—

"(b) subject to paragraph (c), if—

(i) a request has been made under subsection (2)(a), 48 hours after the notice is given under subsection (3); or

(ii) the remainder of the period specified in subsection (2) has been waived by the senior next of kin under subsection (2)(b), on the giving of the waiver; or".

63 Documents and prepared statements requested by coroner

(1) In the heading to section 42 of the Coroners Act 2008, for "requested" substitute "required".

(2) In section 42(2) of the Coroners Act 2008—

(a) for "request made by the coroner" substitute "requirement";

(b) in paragraph (b) for "request" substitute "requirement".


(a) for "requested" substitute "required";

(b) for "request" substitute "requirement".

64 Inquest into a death (1) In section 52(2) of the Coroners Act 2008, for

"subsection (3)" substitute "subsections (3) and (3A)".

(2) After section 52(3) of the Coroners Act 2008 insert—

"(3A) The coroner is not required to hold an inquest in the circumstances set out in subsection (2)(b) if the coroner considers that the death was due to natural causes.

s. 63

Part 4—Coroners


43


(3B) For the purposes of subsection (3A), a death may be considered to be due to natural causes if the coroner has received a report from a medical investigator, in accordance with the rules, that includes an opinion that the death was due to natural causes.".

(3) In section 52(4) of the Coroners Act 2008, for "subsection (3)" substitute "subsections (3) and (3A)".

65 Publication of findings and reports After section 73(1) of the Coroners Act 2008 insert—

"(1A) Subject to subsection (1B), the findings, comments and recommendations made following an investigation may be published on the Internet in accordance with the rules.

(1B) A finding made following an investigation of a death of a deceased who was, immediately before the death, a person placed in custody or care that the death was due to natural causes must be published on the Internet in accordance with the rules.".

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

In section 78(2) of the Coroners Act 2008, for "3 months" substitute "28 days".

67 Appeal in relation to determination of coroner not to investigate a fire

In section 80(2) of the Coroners Act 2008, for "3 months" substitute "28 days".

s. 65

Part 4—Coroners


44


68 Appeal in relation to determination not to hold an inquest

At the foot of section 82 of the Coroners Act 2008 insert— "Note

See also section 87A.".

69 Appeal against refusal by coroner to re-open investigation

(1) In section 84(2) of the Coroners Act 2008, for "3 months" substitute "28 days".

(2) At the foot of section 84 of the Coroners Act 2008 insert— "Note

See also section 87A.".

70 Appeal to Supreme Court is on a question of law (1) In the heading to section 87 of the Coroners Act

2008 omit "is on a question of law".

(2) In section 87(1) of the Coroners Act 2008, for "An appeal" substitute "Subject to section 87A, an appeal".

71 New section 87A inserted After section 87 of the Coroners Act 2008 insert—

"87A Appeal to Supreme Court in the interests of justice

(1) An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by—

s. 68

Part 4—Coroners


45


(a) the senior next of kin of the deceased; or

(b) a person with sufficient interest.

(2) The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.".

72 Rules of the Coroners Court After section 105(1)(ba) of the Coroners Act 2008 insert—

"(bb) the manner of making a waiver under section 26(2)(b) and the recording of such of a waiver;".

73 Access to documents (1) For section 115(1) of the Coroners Act 2008

substitute—

"(1) Unless otherwise ordered by the coroner, the principal registrar must—

(a) provide the senior next of kin of a deceased person written notice, in accordance with the rules, specifying—

(i) that reports have been given to a coroner as a result of a medical examination performed on the deceased; and

(ii) that the senior next of kin may request copies of those reports; and

(iii) the manner in which the senior next of kin may request copies of those reports; and

s. 72

Part 4—Coroners


46


(b) if an inquest is to be held, provide an interested party with a copy of the coronial brief.".


(a) for "inquest brief" substitute "coronial brief";

(b) in paragraph (c), for "an inquest" substitute "a coronial investigation";

(c) in paragraph (d), for "the inquest" substitute "the coronial investigation".


(a) for "an inquest brief" substitute "a coronial brief";

(b) for "the inquest" substitute "the coronial investigation".

74 New section 120 inserted After section 119 of the Coroners Act 2008 insert—

"120 Transitional provision—Courts Legislation Miscellaneous Amendments Act 2014

(1) In this section—

amending Act means the Courts Legislation Miscellaneous Amendments Act 2014;

commencement day means the day on which section 64 of the amending Act comes into operation.

(2) Section 52, as in force on the commencement day, applies to a death of a deceased who was, immediately before the death, a person placed in custody or care if, immediately before the commencement day,

s. 74

Part 4—Coroners


47


an investigation into that death has not been completed by the coroner.".

__________________

s. 74

Part 5—Court Security


48


PART 5—COURT SECURITY

75 Definitions In section 2(1) of the Court Security Act 1980 insert the following definitions—

"Australian legal practitioner has the same meaning as in the Legal Profession Act 2004;

Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014;

judicial officer includes a non-judicial member of VCAT;

news media organisation has the same meaning as in the Open Courts Act 2013;

proceeding means a proceeding in the Supreme Court, the County Court, the Magistrates' Court, the Children's Court, the Coroners Court, VCAT or the Victims of Crime Assistance Tribunal;

publish means disseminate or provide access to the public by any means, including—

(a) by publication in a book, newspaper, magazine or other written publication; or

(b) broadcast by radio or television; or

(c) by electronic communication; or

(d) by public exhibition;

recording means all or part of an audio, visual or audiovisual recording and includes a photograph;".

s. 75

See: Act No. 9499. Reprint No. 3 as at 7 August 2013 and amending Act Nos 68/2013 and 37/2014. LawToday: www. legislation. vic.gov.au



49


76 Heading to section 4 inserted Insert the following heading to section 4 of the Court Security Act 1980—

"Offence to carry or possess firearm, explosive substance or offensive weapon on court premises".

77 New sections 4A, 4B and 4C inserted After section 4 of the Court Security Act 1980 insert—

"4A Offence to record proceeding

(1) A person must not intentionally make a recording of a proceeding except in accordance with subsection (2), (3) or (4).

Penalty: 20 penalty units.

(2) An officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria may make a recording of a proceeding if that person does so in the course of the person's engagement, employment or contract. Example

To enable the preparation of an official transcript of a court proceeding.

(3) Subject to any direction of a judicial officer—

(a) a representative of a news media organisation may make an audio recording of a proceeding for the purpose of preparing a media report; and

(b) an Australian legal practitioner or other prescribed person may make an audio recording of a proceeding for the

s. 76



50


purposes of the legal representation of a person in that proceeding.

(4) A person may make a recording of a proceeding if—

(a) express written permission is given by a judicial officer, whether in respect of—

(i) a specific proceeding or class of proceedings; or

(ii) generally; or

(b) required by or authorised under any other Act or subordinate instrument; or

(c) the recording is of a prescribed class of recordings.

4B Offence to publish recording of proceeding

(1) A person must not intentionally publish a recording of a proceeding except in accordance with subsection (2).


(2) A person may publish a recording of a proceeding if express written permission is given by a judicial officer, whether—

(a) in respect of a specific proceeding or class of proceedings or generally; or

(b) for a specific purpose; or

(c) subject to specified conditions; or

(d) in respect of a specific recording or class of recordings; or

(e) as provided for in any combination of paragraphs (a), (b), (c) or (d).

s. 77



51


(3) A person who, after publishing a recording of a proceeding, becomes aware that the recording is not a recording permitted to be made under section 4A(2), (3) or (4) or permitted to be published under subsection (1) must take all reasonable steps within that person's power to remove from publication or take down that recording.


(4) A person is not liable to be prosecuted for an offence against both subsection (1) and section 4C(1) in respect of the same recording.

4C Offence to transmit to or give recording of proceeding to another person

(1) A person must not intentionally transmit to or give a recording of a proceeding to another person except in accordance with subsection (2), (3) or (4).


(2) An officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria may transmit a recording of a proceeding if that person does so in the course of the person's engagement, employment or contract. Example

To enable the preparation of an official transcript of a court proceeding.

(3) Subject to any direction of a judicial officer—

(a) a representative of a news media organisation may transmit an audio recording of a proceeding made in accordance with section 4A(3)(a) to

s. 77



52


another employee or agent of that news media organisation to enable that news media organisation to prepare a media report; and

(b) an Australian legal practitioner or other prescribed person may transmit an audio recording of a proceeding made in accordance with section 4A(3)(b) to another person assisting with the legal representation of the person referred to in that section in that proceeding.

(4) A person may transmit or give a recording of a proceeding to another person if—

(a) express written permission is given by a judicial officer, whether in respect of—

(i) a specific proceeding or class of proceedings; or

(ii) generally; or

(b) required by or authorised under any other Act or subordinate instrument; or

(c) the recording is of a prescribed class of recordings.".

78 Regulations At the end of section 6 of the Court Security Act 1980 insert—

"(2) The regulations—

(a) may be of general or limited application;

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

s. 78



53


(c) without limiting paragraph (b), may make different provision for different courts or tribunals or classes of courts or tribunals.".

79 Consequential amendment to Legal Profession Uniform Law Application Act 2014

After item 26 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 insert—

"26A Court Security Act 1980

26A.1 In section 2(1), the definition of Australian legal practitioner is repealed.".

__________________

s. 79

See: Act No. 17/2014 and amending Act No. 37/2014. StatuteBook: www. legislation. vic.gov.au

Part 6—Judicial Registrars


54


PART 6—JUDICIAL REGISTRARS


80 Guidelines relating to the appointment of judicial registrars

In section 113D(1)(a) of the Supreme Court Act 1986, after "appointment" insert "(including re-appointment)".

81 Appointment by the Governor in Council In section 113F(5) of the Supreme Court Act 1986, after "re-appointment" insert "in accordance with section 113E and this section if the Chief Justice recommends to the Attorney-General that the person be re-appointed".

82 Remuneration and terms and conditions of appointment

At the end of section 113G of the Supreme Court Act 1986 insert—

"(8) Nothing in this section authorises the salary or the aggregate value of the allowances payable to a judicial registrar to be reduced.".

83 New section 113GB inserted Before section 113H of the Supreme Court Act 1986 insert—

"113GB Oath or affirmation of office

(1) A judicial registrar must take an oath or affirmation of office in the prescribed form and manner.

(2) Subsection (1) only applies to a person who is appointed or re-appointed as a judicial registrar on or after the commencement of section 83 of the Courts Legislation Miscellaneous Amendments Act 2014.

s. 80



55


(3) A failure by a person to take an oath or affirmation of office in accordance with this section does not invalidate anything done by that person as a judicial registrar.".

84 Section 113M substituted For section 113M of the Supreme Court Act 1986 substitute—

"113M Appeal from or review of determination of Court constituted by judicial registrar

(1) The Rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—

(a) whether in respect of—

(i) the hearing and determination of any proceeding (whether criminal or civil); or

(ii) any interlocutory application; and

(b) whether in respect of specified kinds of application or proceeding or generally; and

(c) by specifying whether the procedure is by way of appeal or review or both; and

(d) by specifying the way in which the Court may be constituted for those appeals or reviews.

(2) The powers in subsection (1) are in addition to and do not limit any power to make Rules under section 25.

(3) Unless the Rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—

s. 84



56


(a) on application of a party to the proceeding; or

(b) on the Court's own motion.

(4) If the Rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—

(a) by way of hearing de novo by the Court constituted—

(i) in the case of a determination of the Court of Appeal constituted by a judicial registrar, by a Judge of Appeal; and

(ii) in the case of a determination of the Trial Division constituted by a judicial registrar, by a Judge of the Court; and

(b) otherwise in accordance with the Rules, if any.

(5) This section does not apply to a determination of the Costs Court constituted by a judicial registrar under Division 2B of Part 2 which is to be dealt with in accordance with section 17HA and the Rules.".

s. 84



57


Division 2—County Court Act 1958


In section 17M(1)(a) of the County Court Act 1958, after "appointment" insert "(including re-appointment)".

86 Appointment by the Governor in Council In section 17O(5) of the County Court Act 1958, after "re-appointment" insert "in accordance with section 17N and this section if the Chief Judge recommends to the Attorney-General that the person be re-appointed".


At the end of section 17P of the County Court Act 1986 insert—


s. 85

See: Act No. 6230. 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, 25/2014 and 37/2014. LawToday: www. legislation. vic.gov.au



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88 New section 17PA inserted After section 17P of the County Court Act 1958 insert—

"17PA Oath or affirmation of office




89 Section 17V substituted For section 17V of the County Court Act 1958 substitute—

"17V Appeal from or review of determination of court constituted by judicial registrar

(1) The Rules may provide for appeals from or reviews of a determination of the court constituted by a judicial registrar—





s. 88



59



(d) by specifying the way in which the court may be constituted for those appeals or reviews.

(2) The powers in subsection (1) are in addition to and do not limit any power to make Rules under section 78.

(3) Unless the Rules otherwise provide, a determination of the court constituted by a judicial registrar may be appealed from or reviewed—


(b) on the court's own motion.

(4) If the Rules do not provide for an appeal from or a review of a determination of the court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—

(a) by way of hearing de novo by the court constituted by a judge of the court; and

(b) otherwise in accordance with the Rules, if any.".

s. 89



60


Division 3—Magistrates' Court Act 1989


In section 16B(1)(a) of the Magistrates' Court Act 1989, after "appointment" insert "(including re-appointment)".

91 Appointment of judicial registrars In section 16C(7) of the Magistrates' Court Act 1989, after "re-appointment" insert "in accordance with this section if the Chief Magistrate recommends to the Attorney-General that the person be re-appointed".

92 Terms and conditions of appointment At the end of section 16D of the Magistrates' Court Act 1989 insert—


s. 90

See: Act No. 51/1989. Reprint No. 18 as at 7 March 2014 and amending Act Nos 51/1989, 12/2010, 32/2013, 67/2013, 1/2014, 17/2014, 25/2014, 26/2014, 32/2014 and 37/2014. LawToday: www. legislation. vic.gov.au



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93 New section 16DB inserted Before section 16E of the Magistrates' Court Act 1989 insert—

"16DB Oath or affirmation of office




94 Rules of Court In section 16I of the Magistrates' Court Act 1989—

(a) in paragraph (b)(vi) for "1991." substitute "1991;";

(b) after paragraph (b) insert—

"(c) reviews of, and appeals from, the court constituted by a judicial registrar.".

95 Section 16K substituted For section 16K of the Magistrates' Court Act 1989 substitute—

"16K Appeal from or review of determination of Court constituted by judicial registrar

(1) The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—

s. 93



62








(2) The powers in subsection (1) are in addition to and do not limit any power to make rules under section 16I.

(3) Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—



(4) If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—

(a) by way of hearing de novo by the Court constituted by a magistrate; and

(b) otherwise in accordance with the rules, if any.".

s. 95



63


Division 4—Children, Youth and Families Act 2005


In section 542B(1)(a) of the Children, Youth and Families Act 2005, after "appointment" insert "(including re-appointment)".

97 Appointment by Governor in Council In section 542D(5) of the Children, Youth and Families Act 2005, after "re-appointment" insert "in accordance with section 542C and this section if the President recommends to the Attorney-General that the person be re-appointed".


At the end of section 542E of the Children, Youth and Families Act 2005 insert—


s. 96

See: Act No. 96/2005. Reprint No. 4 as at 27 March 2013 and amending Act Nos 96/2005, 9/2013, 30/2013, 52/2013, 63/2013, 67/2013, 74/2013, 17/2014, 19/2014, 26/2014, 29/2014, 36/2014 and 37/2014. LawToday: www. legislation. vic.gov.au



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99 New section 542EA inserted After section 542E of the Children, Youth and Families Act 2005 insert—

"542EA Oath or affirmation of office




100 Section 542K substituted For section 542K of the Children, Youth and Families Act 2005 substitute—

"542K Appeal from or review of determination of Court constituted by judicial registrar

(1) The rules of court may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—


(i) the hearing and determination of any proceeding; or




s. 99



65



(2) The powers in subsection (1) are in addition to and do not limit any power to make rules of court under section 588.

(3) Unless the rules of court otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—



(4) If the rules of court do not provide for an appeal from or a review of a decision of the Court constituted by a judicial registrar, the decision is to be subject to a review or an appeal conducted—

(a) by way of hearing de novo by the court constituted by a magistrate for the Court; and

(b) otherwise in accordance with the rules of court, if any.".

Division 5—Coroners Act 2008


In section 102B(1)(a) of the Coroners Act 2008, after "appointment" insert "(including re-appointment)".

s. 101



66


102 Appointment by Governor in Council In section 102D(5) of the Coroners Act 2008, after "re-appointment" insert "in accordance with section 102C and this section if the State Coroner recommends to the Attorney-General that the person be re-appointed".


At the end of section 102E of the Coroners Act 2008 insert—


104 New section 102EA inserted After section 102E of the Coroners Act 2008 insert—

"102EA Oath or affirmation of office




s. 102



67


105 Section 102K substituted For section 102K of the Coroners Act 2008 substitute—

"102K Appeal from or review of decisions of judicial registrar

(1) The rules may provide for appeals from or reviews of a decision of the Coroners Court constituted by a judicial registrar—

(a) whether in respect of specified kinds of matters or generally; and

(b) by specifying whether decisions are by way of appeal or review; and

(c) by specifying the way in which the Coroners Court may be constituted for those appeals or reviews.

(2) The powers in subsection (1) are in addition to and do not limit any power to make rules under section 105.

(3) Unless the rules otherwise provide, a decision of the Coroners Court constituted by a judicial registrar may be appealed from or reviewed on the Coroner's Court's own motion.

(4) If the rules do not provide for an appeal from or a review of a decision of the Coroners Court constituted by a judicial registrar, the decision is to be subject to a review or an appeal conducted—

(a) by way of hearing de novo by the Coroners Court constituted by a coroner; and

(b) otherwise in accordance with the rules, if any.".

s. 105



68


Division 6—Victims of Crime Assistance Act 1996

106 Rules After section 57(1)(c) of the Victims of Crime Assistance Act 1996 insert—

"(ca) reviews under section 59A of decisions of the Tribunal constituted by a judicial registrar, including specifying whether the review is by way of hearing de novo or otherwise;".

107 Review of delegated Tribunal decisions (1) In section 59A(1) of the Victims of Crime

Assistance Act 1996 for "A person" substitute "In accordance with the rules, a person".

(2) In section 59A(2) of the Victims of Crime Assistance Act 1996—

(a) for "A review" substitute "Unless the rules otherwise provide, a review";

(b) after "novo" insert "by the Tribunal constituted by a magistrate and otherwise in accordance with the rules, if any".

__________________

s. 106

See: Act No. 81/1996. Reprint No. 5 as at 16 June 2011 and amending Act Nos 5/2013, 17/2014 and 26/2014. LawToday: www. legislation. vic.gov.au

Part 7—Further Miscellaneous Amendments and Repeal


69


PART 7—FURTHER MISCELLANEOUS AMENDMENTS AND REPEAL


108 Regulations (1) After section 129(2)(d) of the Supreme Court

Act 1986 insert—

"(da) different fees for different classes of proceedings or different classes of party;".


"(2A) The regulations may—

(a) be of general or limited application; and

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

(c) provide in a specified case or class of case for the exemption of any proceeding, person or thing or a class of proceeding, person or thing from any of the provisions of the regulations, whether—

(i) unconditionally or on specified conditions; and

(ii) either wholly or to such an extent as is specified; and

(d) provide for the payment in advance of any fee fixed under subsection (1)(a); and

(e) provide for proportionate consequences of failure to pay any fee fixed under subsection (1)(a); and

s. 108



70


(f) provide for the reduction, waiver, postponement, remission or refund, in whole or in part, of any fee fixed under subsection (1)(a); and

(g) provide, in specified circumstances, for the reinstatement or payment, in whole or in part, of any fee fixed under subsection (1)(a) which was reduced, waived, postponed, remitted or refunded by or in accordance with the regulations; and

(h) confer a discretionary authority or impose a duty on any Judge of the Court, an Associate Judge, a judicial registrar or a specified court official or a specified class of judge, class of judicial registrar or court official; and

(i) leave any matter or thing dealt with by or in accordance with the regulations to be decided by a specified court official or class of court official.".

(3) In section 129(3) of the Supreme Court Act 1986 for "The prothonotary" substitute "Subject to the regulations or any power to reduce, waive, postpone, remit or refund any fee fixed under subsection (1)(a), the prothonotary".


"(4) If the regulations provide for a remission or refund of a fee fixed under subsection (1)(a), the Consolidated Fund is appropriated to the necessary extent to enable any remission or refund to be paid.".

s. 108



71


Division 2—Interpretation of Legislation Act 1984

109 Prescribing matters by reference to other documents

After section 32(13) of the Interpretation of Legislation Act 1984 insert—

"(13A) If a subordinate instrument may prescribe, determine or fix any conditions of office for any person or class of persons, those conditions of office may be prescribed, determined or fixed by the subordinate instrument by reference in that subordinate instrument to the conditions of office applicable to any other person or class of persons prescribed, determined or fixed from time to time—

(a) by or under any other Act; or

(b) by or under any Commonwealth Act.

(13B) Subsection (13A) applies—

(a) whether or not the power to prescribe, determine or fix by subordinate instrument is subject to conditions, restrictions or limitations; and

(b) despite any rule of law to the contrary.".

Division 3—Repeal of amending Act

110 Repeal of amending Act

This Act is repealed on 1 September 2016. Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════

s. 109

See: Act No. 10096. Reprint No. 11 as at 17 January 2013 and amending Act Nos 7/2013, 22/2013, 30/2013, 36/2013, 57/2013, 70/2013, 17/2014 and 32/2014. LawToday: www. legislation. vic.gov.au


72


ENDNOTES

† Minister's second reading speech—

Legislative Assembly: 25 June 2014

Legislative Council: 20 August 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989, the Coroners Act 2008, the Children, Youth and Families Act 2005, the Victorian Civil and Administrative Tribunal Act 1998, the Victims of Crime Assistance Act 1996, the Court Security Act 1980 and the Interpretation of Legislation Act 1984, to make consequential amendments to other Acts and for other purposes."

Endnotes