20 Application under section 26 of the Act—transfer to lower court 8
21 Application under section 27 of the Act—transfer to higher court 8
22 Transfer order 8
Part 6—Other transfers 9
23 Application by party 9
24 Order not on application of party 9
Part 7—General 10
25 Delegation of powers or duties 10
26 Extension of time 10
27 Copy document to be served 10
28 Manner of giving notice or serving 10
29 Noncompliance with Rules 10
30 Dispensing with compliance 11
Form 1—Notice of selection under section 9 under the Courts (Case Transfer) Act 1991 12
Form 2—Notice of objection under the Courts (Case Transfer) Act 1991 13
Form 3—Notice of election 14
Form 4—Referral under Part 3 of the Courts (Case Transfer) Act 1991 15
Form 5—Notice of referral under Part 3 of the Courts (Case Transfer) Act 1991 16
Form 6—Notice of determination under Part 3 of the Courts (Case Transfer) Act 1991 17
Form 7—Notice of determination not to transfer after objection under Part 3 of the Courts (Case Transfer) Act 1991 18
Form 8—Plaintiff's application under Part 5 of the Courts (Case Transfer) Act 1991 19
Form 9—Defendant's application under Part 5 of the Courts (Case Transfer) Act 1991 20
═════════════
Endnotes 21
1 General information 21
2 Table of Amendments 23
3 Amendments Not in Operation 24
4 Explanatory details 25
Version No.001
Courts (Case Transfer) Rules 2021
S.R. No. 115/2021
Version as at
14 September 2021
Part 1—Preliminary
1 Object
The object of these Rules is to make provision for the transfer of civil proceedings between courts under the Courts (Case Transfer) Act 1991.
2 Authorising provisions
These Rules are made under section 34 of the Courts (Case Transfer) Act 1991 and all other enabling powers.
3 Commencement
These Rules come into operation on 14 September 2021.
4 Revocation
The Courts (Case Transfer) Rules 2011[1] are revoked.
5 Definition
In these Rules, the Act means the Courts (Case Transfer) Act 1991.
Part 2—General transfers
6 Notice of selection to transfer
(1) Notice under section 9 of the Act to the parties to a proceeding selected for transfer shall be in Form 1.
(2) The transferor court shall cause a copy of the notice to be filed in the proceeding.
7 Objection
(1) A notice of objection under section 10 of the Act shall be filed within—
(a) 14 days after notice to the party under section 9 of the Act; or
(b) such further time as the senior judicial officer of the higher court may allow.
(2) The notice shall—
(a) include a statement of the grounds of the objection and any submissions in support; and
(b) be in Form 2.
8 Determination
If a determination is made under section 11 of the Act that a proceeding is not to be transferred, the court in which the proceeding is pending shall cause—
(a) notice of the determination to be given to the parties to the proceeding; and
(b) a copy of the notice to be filed in the proceeding.
9 Transfer order
(1) If an order is made under section 12 of the Act, the order shall be drawn up by the transferor court.
(2) In respect of each proceeding to which the order relates the transferor court shall cause a copy of the order—
(a) to be filed in the proceeding; and
(b) to be given to the parties to the proceeding within 14 days after the making of an order.
(3) For the purposes of section 12(2)(b) of the Act, the record and all documents relating to the proceeding to which the order applies are to be sent to the transferee court by the transferor court within 14 days after the making of an order.
10 Election as to costs
An election as to costs under section 13(1)(g) of the Act by a party to a proceeding which is transferred under Part 2 of the Act shall be made by filing in the proceeding a notice in Form 3 within 28 days after the making of the transfer order.
Part 3—Individual transfers
11 Reference by a party
A party to a proceeding in a court may refer the proceeding to the designated judicial officer of that court by filing a notice in Form 4.
12 Notice of reference
(1) If a matter is referred under section 17(1) of the Act, the designated judicial officer shall cause notice of the reference to be given to the parties to the proceeding.
(2) The notice shall—
(a) be in Form 5; and
(b) specify a date by which the parties to the proceeding may make written submissions.
(3) The date specified in the notice shall be not less than 21 days after the date of the notice.
(4) The time specified in the notice may be extended by the designated judicial officer who caused the notice to be given.
13 Notice to parties after determination
(1) On a determination being made under section 17(3) of the Act, the designated judicial officer of the court in which the proceeding is pending shall cause—
(a) notice of the determination to be given to the parties to the proceeding; and
(b) a copy of the notice to be filed in the proceeding.
(2) The notice of determination shall be in Form 6.
14 Undertaking under Part 3
An undertaking required of a party under section 17(6) or section 20(4) of the Act may be given by the party filing the undertaking in the proceeding.
15 Order under section 17(8) of the Act
A party to a proceeding may apply to a court for an order under section 17(8) of the Act in the manner prescribed by, and subject to the rules of, that court for the making of an interlocutory application in the proceeding, notice of which is not required to be served personally.
16 Objection
(1) A notice of objection under section 19 of the Act by a party to a proceeding shall be filed within—
(a) 14 days after notice to the party of the determination under section 17 of the Act; or
(b) such further time as the senior judicial officer of the higher court may allow.
(2) The notice of objection shall—
(a) include a statement of the grounds of the objection and any submissions in support; and
(b) be in Form 2.
17 Determination after objection
(1) If a determination is made under section 20 of the Act that a proceeding is not to be transferred, the court in which the proceeding is pending shall cause—
(a) notice of the determination to be given to the parties to the proceeding; and
(b) a copy of the notice to be filed in the proceeding.
(2) The notice of the determination shall be in Form 7.
18 Transfer order
(1) If an order is made under section 21 of the Act, the order shall be drawn up by the transferor court.
(2) The transferor court shall cause a copy of the order—
(a) to be filed in the proceeding; and
(b) to be given to the parties to the proceeding within 7 days after the making of the order.
(3) For the purposes of section 21(2)(b) of the Act, the record and all documents relating to the proceeding are to be sent to the transferee court by the transferor court within 7 days after the making of the order.
Part 4—Circuit transfers
19 Transfer order (circuit transfers)
(1) If an order is made under section 24 of the Act, the order shall be drawn up by the transferor court.
(2) In respect of each proceeding to which the order relates the transferor court shall cause a copy of the order—
(a) to be filed in the proceeding; and
(b) to be given to the parties to the proceeding within 14 days after the making of an order.
(3) For the purposes of section 24(4) of the Act, the record and all documents relating to the proceeding to which the order applies are to be sent to the transferee court by the transferor court within 14 days after the making of an order.
Part 5—Administrative transfers
20 Application under section 26 of the Act—transfer to lower court
(1) An application under section 26 of the Act shall be in Form 8.
(2) If the written consent of the parties to the proceeding is required under section 26 of the Act, the application shall not be made unless that consent is filed before or at the time the application is filed.
21 Application under section 27 of the Act—transfer to higher court
(1) An application under section 27 of the Act shall be in Form 9.
(2) The application shall not be made before the defendant's counterclaim has been filed and served in the proceeding.
22 Transfer order
(1) If an order is made under section 26 or 27 of the Act, the order shall be drawn up by the transferor court.
(2) The transferor court shall cause a copy of the order—
(a) to be filed in the proceeding; and
(b) to be given to the parties to the proceeding within 7 days after the making of the order.
(3) The record and all documents relating to the proceeding are to be sent to the transferee court by the transferor court within 7 days after the making of the order.
Part 6—Other transfers
23 Application by party
An application for an order under section 30 of the Act in relation to a proceeding pending in the Supreme Court or the County Court shall be made in the manner prescribed by, and subject to, the rules of that court for the making of an interlocutory application in the proceeding notice of which is not required to be served personally.
24 Order not on application of party
(1) The Supreme Court or the County Court may make an order under section 30 of the Act of its own motion only upon notice to the parties.
(2) If the Supreme Court or the County Court makes an order under section 30 of the Act of its own motion, the order shall be drawn up by the transferor court.
(3) The transferor court shall cause a copy of the order—
(a) to be filed in the proceeding; and
(b) to be given to the parties to the proceeding within 7 days after the making of the order.
(4) The record and all documents relating to the proceeding are to be sent to the transferee court by the transferor court within 7 days after the making of the order.
Part 7—General
25 Delegation of powers or duties
The senior judicial officer of a court may delegate to another judicial officer of that court any of the senior judicial officer's powers or duties under these Rules, other than this power of delegation.
26 Extension of time
Any time that may be extended under these Rules may be extended—
(a) before or after the time expires; and
(b) whether or not any application for the extension is made.
27 Copy document to be served
A party to a proceeding who files a document under the Act or these Rules shall serve a copy of the document on the other parties to the proceeding as soon as practicable after filing the document.
28 Manner of giving notice or serving
If, by or under the Act or these Rules, any notice is to be given or any document is to be served by a party on another party to a proceeding in a court, the notice may be given or the document served (as the case may be) in any manner allowed by the rules of that court for service of an interlocutory application in the proceeding where personal service is not required.
29 Noncompliance with Rules
Subject to the Act, a failure to comply with these Rules is an irregularity and does not render any step taken or any document or order a nullity.
30 Dispensing with compliance
Subject to the Act, the court in which a proceeding is pending may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
Form 1—Notice of selection under section 9 under the Courts (Case Transfer) Act 1991
Rule 6(1)
In the [transferor court]
In the matter of the Courts (Case Transfer) Act 1991
Notice Of Selection under Section 9 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that the proceeding or proceedings identified in the Schedule have been selected under section 8 of the Courts (Case Transfer) Act 1991 for transfer to the [transferee court] under Part 2 of the Act.
AND TAKE NOTICE that, as a party to one of the proceedings identified in the Schedule, you may object to the transfer of that proceeding by filing a notice of objection in accordance with the Courts (Case Transfer) Rules 2021.
Date:
This notice is given at the direction of the [transferor court]
Note
Any notice of objection should be filed within 14 days and be in Form 2 of the Rules. It should contain a statement of the grounds of the objection and any submissions in support.
Schedule
[Identify proceeding or proceedings to which this notice of selection applies].
Form 2—Notice of objection under the Courts (Case Transfer) Act 1991
Rules 7(2), 16(2)
[heading as in originating process]
Notice of Objection under the Courts (Case Transfer) Act 1991
TAKE NOTICE that the [title of party] in this proceeding objects to the transfer of this proceeding to the [transferee court] under the Courts (Case Transfer) Act 1991.
THE GROUNDS of the objection are as follows: [set out the grounds concisely in separate, numbered paragraphs].
THE FOLLOWING SUBMISSIONS are made in support of the objection: [set out the submissions, if any, that the party objecting wishes to have considered in support of the objection. Submissions should be set out concisely, in separate numbered paragraphs].
Date:
[Signature of objecting party or
legal practitioner]
Form 3—Notice of election
Rule 10
[heading as in originating process]
Notice of Election
TAKE NOTICE that the [title of party] in this proceeding elects under section 13(1)(g) of the Courts (Case Transfer) Act 1991 to take costs (if ordered in favour of the said party) on the court scale of the [transferee court].
Date:
[Signature of electing party or
legal practitioner]
Note
This notice of election must be filed in the proceeding and served on all other parties to the proceeding.
Form 4—Referral under Part 3 of the Courts (Case Transfer) Act 1991
Rule 11
[heading as in originating process]
Referral under Part 3 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that the [title of party] refers this proceeding to the [designated judicial officer] of this Court under section 17(1) of the Courts (Case Transfer) Act 1991 as a proceeding which is or may be suitable for transfer to the [suggested transferee court] under Part 3 of that Act.
Date:
[Signature of referring party or
legal practitioner]
Note
This referral must be filed in the proceeding and a copy served on all other parties to the proceeding.
Form 5—Notice of referral under Part 3 of the Courts (Case Transfer) Act 1991
Rule 12(2)
[heading as in originating process]
Notice of Referral under Part 3 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that this proceeding has been referred to the [title of the designated judicial officer] of this Court for consideration for transfer to [suggested transferee court] under Part 3 of the Courts (Case Transfer) Act 1991.
AND TAKE NOTICE that as a party to this proceeding you may make written submissions on the matter on or before [specify date not less than 21 days after the date of this notice].
Any submissions should be—
entitled in this proceeding;
set out concisely in separate, numbered paragraphs; and
filed in the Court as a document in this proceeding.
Date:
This notice is given at the direction of the [designated judicial officer]
Form 6—Notice of determination under Part 3 of the Courts (Case Transfer) Act 1991
Rule 13(2)
[heading as in originating process]
NOTICE OF DETERMINATION under Part 3 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that on [date], pursuant to Part 3 of the Courts (Case Transfer) Act 1991, the designated judicial officers of the *Supreme/
*County/*Magistrates' Court of Victoria and the [insert transferee court] Court of Victoria determined that this proceeding *should/*should not be transferred to the [insert transferee court] Court of Victoria.
*[in the event of a transfer]
AND IT IS ORDERED THAT [insert any applicable orders or directions]
Under section 19 of the Courts (Case Transfer) Act 1991 and rule 16 of the Courts (Case Transfer) Rules 2021, as a party to the proceeding you may file in the the*Supreme/*County/*Magistrates' Court a notice of objection to the transfer within 14 days of the date of the receipt of this notice.
Date:
[signature of designated judicial officer]
This notice is given at the direction of the [designated judicial officer]
*Delete whichever is not applicable.
Form 7—Notice of determination not to transfer after objection under Part 3 of the Courts (Case Transfer) Act 1991
Rule 17(2)
[heading as in originating process]
NOTICE OF DETERMINATION Not to transfer case under section 20 of the Courts (Case Transfer) Act 1991 after objection
TAKE NOTICE that on [date], pursuant to Part 3 of the Courts (Case Transfer) Act 1991, the senior judicial officers of the *Supreme/*County/
*Magistrates' Court of Victoria and the [insertproposed transferee court] have determined, after considering objections, that this proceeding should not be transferred to the [insert relevant court] Court of Victoria.
Date:
[signature of senior judicial officer]
*Delete whichever is not applicable.
Form 8—Plaintiff's application under Part 5 of the Courts (Case Transfer) Act 1991
Rule 20(1)
[heading as in originating process]
Plaintiff's Application under Part 5 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that the plaintiff in this proceeding applies for an order under Part 5 of the Courts (Case Transfer) Act 1991 that this proceeding be transferred to [proposed transferee court].
*THE PLAINTIFF certifies that the [proposed transferee court] has jurisdiction to hear and determine this proceeding [including the counterclaim]
OR
*THE PLAINTIFF certifies that with the written consent of the parties to this proceeding the [proposed transferee court] will have jurisdiction to hear and determine this proceeding [including the counterclaim].
Date:
[Signature of plaintiff or legal practitioner]
Notes
If the jurisdiction of the proposed transferee court depends on the written consent of the parties, that consent must be filed with this application, if not previously filed.
This application must be filed in the proceeding and a copy served on all other parties to the proceeding.
*Delete whichever is not applicable.
Form 9—Defendant's application under Part 5 of the Courts (Case Transfer) Act 1991
Rule 21(1)
[heading as in originating process]
Defendant's Application under Part 5 of the Courts (Case Transfer) Act 1991
TAKE NOTICE that the defendant in this proceeding applies for an order under Part 5 of the Courts (Case Transfer) Act 1991 that the proceeding be transferred to [suggested transferee court] at [location of transferee court].
THE DEFENDANT certifies that the defendant's counterclaim in this proceeding involves a matter exceeding the jurisdiction of the [transferor court] and that the plaintiff does not consent to the [transferor court] having jurisdiction.
Date:
[Signature of defendant or legal practitioner]
Note
This application must be filed in the proceeding and a copy served on all other parties to the proceeding.
Dated: 10 September 2021
ANNE FERGUSON, Chief Justice
P. B. KIDD, Chief Judge
LISA HANNAN, Chief Magistrate
═════════════
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Courts (Case Transfer) Rules 2021, S.R. No. 115/2021 were made on 10 September 2021 by the Chief Justice of the Supreme Court (with the approval of the Council of Judges of the Supreme Court), the Chief Judge of the County Court (with the approval of the Council of Judges of the County Court) and the Chief Magistrate (with the approval of the Council of Magistrates) under section 34 of the Courts (Case Transfer) Act 1991, No. 43/1991 and came into operation on 14 September 2021: rule 3.
The Courts (Case Transfer) Rules 2021 will sunset 10 years after the day of making on 10 September 2031 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the Courts (Case Transfer) Rules 2021 by statutory rules, subordinate instruments and Acts.
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.