78Power to make rules of practice

78 Power to make rules of practice S. 78(1) amended by Nos 16/1986 s. 9(2)(b), 9/1995 s. 8(5), 14/2006 s. 10, 24/2008 s. 71(1)(a), 5/2013 s. 28, 63/2013 s. 38. (1) A majority of the judges (other than reserve judges or associate judges or reserve associate judges) for the time being may make rules for all or any of the following purposes— S. 78(1)(aaa) inserted by No. 47/2010 s. 87(a). (aaa) furthering the overarching purpose set out in the **Civil Procedure Act 2010** and the conduct of civil proceedings in accordance with the principles set out in that Act, including the overarching obligations; S. 78(1)(aab) inserted by No. 47/2010 s. 87(a). (aab) the conduct of civil proceedings and parties to civil proceedings generally, including, but not limited to, the imposition of limits, restrictions or conditions on any party in respect of any aspect of the conduct of civil proceedings; S. 78(1)(aac) inserted by No. 47/2010 s. 87(a). (aac) case management; S. 78(1)(aaca) inserted by No. 25/2014 s. 10. (aaca) discovery and disclosure; S. 78(1)(aad) inserted by No. 47/2010 s. 87(a). (aad) any other matter or thing required or permitted by or under the **Civil Procedure Act 2010** to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act; (a) for regulating any matters relating to the costs of proceedings in the court, and for regulating and prescribing the scales of fees and costs to be paid to counsel and practitioners; S. 78(1)(aa) inserted by No. 9947 s. 6, amended by No. 19/1989 s. 13(a)(i). (aa) for prescribing forms and regulating service, procedure and costs with respect to a proceeding in the County Court under Part I of the **Instruments Act 1958**; (b) for regulating and prescribing the expenses to be paid to witnesses; (c) for regulating the keeping of all registers, books, entries and accounts by registrars and other officers; S. 78(1)(ca) inserted by No. 10013 s. 5. (ca) for regulating the investment of moneys under section 21A; S. 78(1)(d) amended by No. 19/1989 s. 13(a)(ii). (d) for regulating the sittings of the court; S. 78(1)(da) inserted by No. 58/2013 s. 44. (da) any other matter or thing required or permitted by or under the **Open Courts Act 2013** to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act; S. 78(1)(db) inserted by No. 42/2014 s. 104. (db) any matter or thing required or permitted by or under the **Vexatious Proceedings Act 2014** to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act; S. 78(1)(dc) inserted by No. 18/2018 s. 17. (dc) the conduct of civil proceedings and parties to civil proceedings conducted in accordance with the **Legal Identity of Defendants (Organisational Child Abuse) Act 2018**, including, but not limited to— (i) the imposition of limits, restrictions or conditions on any party (including proper defendants) in respect of any aspect of the conduct of those proceedings; and (ii) the direction or ordering of parties (including proper defendants) to those proceedings; and (iii) the modification of any rule, practice or procedure in its application to proper defendants under that Act; and (iv) any other matter or thing necessary or required for the purposes of that Act or arising from civil proceedings conducted in accordance with that Act; S. 78(1)(dd) inserted by No. 31/2021 s. 9. (dd) the conduct of, and procedure for, or in relation to, substituted proceedings to which Part 3A of the **Victorian Civil and Administrative Tribunal Act 1998** applies; S. 78(1)(e) amended by Nos 7705 s. 9(q), 19/1989 s. 13(a)(iii). (e) for prescribing in what civil proceedings trials in the court are to be with a jury and in what proceedings they are to be without a jury; S. 78(1)(ea) inserted by No. 6951 s. 7. (ea) for prescribing the defences or other matters of which notice shall be given and regulating the manner of giving such notice; (f) for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given in any proceedings or on any application in connexion with or at any stage of any proceedings; S. 78(1)(fa) inserted by No. 10117 s. 4(2), amended by No. 19/1989 s. 13(a)(iv), substituted by No. 24/2008 s. 71(1)(b). (fa) regulating the exercise by associate judges of the jurisdiction of the court; S. 78(1)(fb) inserted by No. 10117 s. 4(2), amended by No. 19/1989 s. 13(a)(v), repealed by No. 24/2008 s. 71(1)(c), new s. 78(1)(fb) inserted by No. 34/2010 s. 35. (fb) the prescription of the proceedings or class of proceedings which may be dealt with by the court constituted by a judicial registrar; S. 78(1)(fc) inserted by No. 34/2010 s. 35, substituted by No. 65/2011 s. 107(Sch. item 3). (fc) delegating to the judicial registrars all or any of the powers of the court specified by the Rules in relation to proceedings prescribed under paragraph (fb), including, but not limited to, the exercise by the judicial registrars of the jurisdiction of the court other than the power— (i) to impose a sentence of imprisonment; or (ii) to impose a sentence of detention in a youth justice centre or youth residential centre within the meaning of the **Sentencing Act 1991**; or S. 78(1)(fc)(iii) amended by No. 43/2020 s. 4. (iii) to make a drug and alcohol treatment order within the meaning of the **Sentencing Act 1991**; or (iv) to make a community correction order within the meaning of the **Sentencing Act 1991**; or (v) to make a hospital security order within the meaning of the **Sentencing Act 1991**; S. 78(1)(fd) inserted by No. 34/2010 s. 35. (fd) the transfer or referral of matters between the court constituted by a judicial registrar and the court constituted by a judge or an associate judge; S. 78(1)(fe) inserted by No. 34/2010 s. 35. (fe) reviews of, and appeals from, the court constituted by a judicial registrar; (g) for regulating the enforcement of judgments and orders; (h) for regulating and prescribing the form of cases upon appeal to the Supreme Court and the time within which such appeal shall be prosecuted; S. 78(1)(ha) inserted by No. 19/1989 s. 13(a)(vi). (ha) any matter dealt with in any Rules of Court in force on the day on which the **County Court (Amendment) Act 1989** comes into operation; S. 78(1)(hb) inserted by No. 19/1989 s. 13(a)(vi). (hb) the reinstatement of any proceeding, counterclaim or third-party claim that stands dismissed by operation of the rules— (i) whether the dismissal occurred before or after the commencement of the **County Court (Amendment) Act 1989**; and (ii) whether or not any relevant period of limitation has expired; S. 78(1)(hc) inserted by No. 19/1989 s. 13(a)(vi). (hc) the reference of any question arising in a proceeding to a special referee or officer of the court for decision or opinion; S. 78(1)(hca) inserted by No. 64/1990 s. 9(2). (hca) the reference of any civil proceeding or of any part of a civil proceeding to mediation or arbitration; S. 78(1)(hcb) inserted by No. 50/2009 s. 11(a). (hcb) judicial resolution conferences, including, but not limited to the practice and procedure of the Court in relation to judicial resolution conferences; S. 78(1)(hcc) inserted by No. 47/2010 s. 87(b). (hcc) without limiting paragraphs (hca) and (hcb), the referral, direction or ordering of parties to a civil proceeding to any form of appropriate dispute resolution, whether with or without the consent of the parties; S. 78(1)(hd) inserted by No. 19/1989 s. 13(a)(vi). (hd) any of the matters set out in section 39A; S. 78(1)(he) inserted by No. 19/1989 s. 13(a)(vi). (he) the payment of money into and out of the court in satisfaction of claims to which arbitration agreements apply and the investment of such money; S. 78(1)(hea) inserted by No. 51/2008 s. 8(1). (hea) any matter relating to the practice and procedure of the Koori Court Division; S. 78(1)(heb) inserted by No. 51/2008 s. 8(1). (heb) the transfer of proceedings to and from the Koori Court Division; S. 78(1)(hec) inserted by No. 51/2008 s. 8(1), amended by No. 68/2009 s. 97(Sch. item 35.14). (hec) the place at which an appeal under section 254 or 257 of the **Criminal Procedure Act 2009** may be heard by the Koori Court Division, being a place of the court in respect of which a notice has been published under section 4A; and S. 78(1)(hed) inserted by No. 51/2008 s. 8(1), amended by No. 68/2009 s. 97(Sch. item 35.15). (hed) the venues of the Magistrates' Court where sentences were imposed against which an appeal may be heard by the Koori Court Division. S. 78(1)(hf) inserted by No. 4/1997 s. 6, amended by No. 69/2009 s. 54(Sch. Pt 2 item 16). (hf) requirements for the purposes of Part IIA of the **Evidence (Miscellaneous Provisions) Act 1958** for or with respect to[[8]](#endnote-9)— (i) the form of audio visual or audio link; (ii) the equipment, or class of equipment, used to establish the link; (iii) the layout of cameras; (iv) the standard, or speed, of transmission; (v) the quality of communication; (vi) any other matter relating to the link; S. 78(1)(hg) inserted by No. 4/1997 s. 6, amended by No. 69/2009 s. 54(Sch. Pt 2 item 16). (hg) applications to the court under Division 2 or 3 of Part IIA of the **Evidence (Miscellaneous Provisions) Act 1958**[[9]](#endnote-10); S. 78(1)(hh) inserted by No. 8/2008 s. 10, repealed by No. 8/2008 s. 12(3), new s. 78(1)(hh) inserted by No. 33/2018 s. 61. (hh) electronic communication and electronic processes, including, but not limited to— (i) applications by electronic means, electronic filing and electronic service of documents in any proceeding; and (ii) the transmission and issuing of orders, judgments and other documents by electronic communication; and (iii) use of electronic signatures and seals; S. 78(1)(i) amended by No. 10117 s. 5(c)(i). (i) for regulating and prescribing the pleading, practice and procedure of the court in any case within the cognizance of the court as to which rules of the Supreme Court have been or might lawfully be made for cases within the cognizance of the Supreme Court; and S. 78(1)(j) amended by No. 10117 s. 5(c)(ii). (j) generally for regulating and prescribing the pleading, practice and procedure of the court and the forms of proceedings therein, and any matters incidental to or relating to such pleading, practice or procedure. S. 78(2) amended by Nos 16/1986 s. 9(2)(b), 9/1995 s. 8(5), 14/2006 s. 10, 24/2008 s. 71(2), 5/2013 s. 28, 63/2013 s. 38. (2) A majority of the judges (other than reserve judges or associate judges or reserve associate judges) for the time being may frame forms of proceedings in the court and may fix scales of fees costs and expenses to be paid to counsel practitioners and witnesses. (3) The power given by this section shall extend and apply to all proceedings by or against the Crown. S. 78(4) amended by No. 16/1986 s. 9(2)(b), substituted by No. 19/1989 s. 13(b). (4) The power to make Rules of Court extends to the repeal and amendment of rules even if they have been ratified, validated and approved by the Parliament. S. 78(5) substituted by No. 6886 s. 3, amended by No. 16/1986 s. 16(e), substituted by No. 19/1989 s. 13(b). (5) In any case not provided for in this Act or by the Rules of Court, the general principles of practice and the rules observed in the Supreme Court may be adopted and applied to any proceeding with such modifications as may be necessary at the discretion of the court before which the proceeding is being or to be heard. S. 78(6) substituted by No. 19/1989 s. 13(b), repealed by No. 10/1999 s. 31(6), new s. 78(6) inserted by No. 51/2008 s. 8(2), amended by No. 50/2009 s. 11(b). (6) Without limiting subsection (1), a power conferred by subsection (1)(hcb), (1)(hea) or (1)(heb) to make rules may be exercised— (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, in respect of the cases in relation to which it is exercised— (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or (ii) any such provision either unconditionally or subject to any specified condition. S. 78(7) substituted by No. 19/1989 s. 13(b), repealed by No. 10/1999 s. 31(6), new s. 78(7) inserted by No. 51/2008 s. 8(2), amended by No. 50/2009 s. 11(c). (7) Without limiting subsection (1), rules made under subsection (1)(hcb), (1)(hea) or (1)(heb) may be made so as— (a) to require a matter affected by the rules to be approved by or to the satisfaction of a specified court official or a specified class of court official; and (b) to confer a discretionary authority or impose a duty on a specified person or a specified class of person; and (c) to provide in a specified case or class of case for the exemption of proceedings or a class of proceeding from any of the provisions of the rules, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified. S. 78A inserted by No. 16/1986 s. 14.