Supreme Court Amendment (Miscellaneous) Rules 2012

Supreme Court Amendment (Miscellaneous) Rules 2012

15 October 2012

We, the Honourable Ewan Charles Crawford, Chief Justice, and the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, the Honourable Shan Eve Tennent, the Honourable David James Porter and the Honourable Helen Marie Wood, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .

1.   Short title

These Rules of Court may be cited as the Supreme Court Amendment (Miscellaneous) Rules 2012 .

2.   Commencement

These Rules of Court take effect on the day on which their making is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.

4.    Rule 78 amended (Requirements for documents)

Rule 78 of the Principal Rules is amended by omitting paragraph (c) .

5.    Rule 89 amended (Applications to Court)

Rule 89 of the Principal Rules is amended as follows:

(a) by inserting the following paragraph after paragraph (p) :

(q) proceedings for a grant of probate or letters of administration where the only reason for seeking the grant in solemn form is the need to rely on section 26 of the Wills Act 1992 or section 10 of the Wills Act 2008 ;

(b) by omitting from paragraph (u) "hearing." and substituting "hearing;";

(c) by inserting the following paragraph after paragraph (u) :

(v) proceedings under the Vexatious Proceedings Act 2011 , other than an application for leave to institute proceedings.

6.    Rule 90 amended (Applications to judge in chambers)

Rule 90(1) of the Principal Rules is amended as follows:

(a) by omitting from paragraph (n) " Commercial Arbitration Act 1986 " and substituting " Commercial Arbitration Act 2011 ";

(b) by omitting from paragraph (zp) "applies." and substituting "applies;";

(c) by inserting the following paragraph after paragraph (zp) :

(zq) application for leave to institute proceedings under section 11 of the Vexatious Proceedings Act 2011 .

7.    Rule 154 amended (Appearance generally)

Rule 154(2)(b) of the Principal Rules is amended by omitting " Commercial Arbitration Act 1986 " and substituting " Commercial Arbitration Act 2011 ".

8.    Rule 502 amended (Affidavits generally)

Rule 502 of the Principal Rules is amended as follows:

(a) by omitting subparagraph (i) from subrule (3)(c) and substituting the following subparagraphs:

(i) an acknowledgement by the deponent that he or she has read this subrule and subrule (4) and will comply with –

(A) the requirements of those subrules; and

(B) any order made under subrule (6)(a) , (b) or (d) ; and

(ia) the qualifications of the deponent to give evidence as an expert; and

(b) by inserting the following subrules after subrule (3) :

(4)  If a deponent has provided an opinion contained in an affidavit and that deponent changes his or her opinion on a material matter in that affidavit, he or she must, as soon as practicable, provide the party who engaged him or her (or that party's legal representative) with a report to that effect which contains such of the information referred to in subrule (3)(c) as is appropriate.

(5)  If a party (or that party's legal representative) receives a report from a deponent under subrule (4) , that party must as soon as practicable serve a copy of that report on any other party to the proceeding.

(6)  If 2 or more parties to a proceeding intend to read affidavits from experts containing opinion evidence about a similar question, and any of the deponents is required to submit to cross-examination, the Court or a judge may, either on or without application, make one or more of the following orders:

(a) that the experts confer, either before or after the filing of their affidavits;

(b) that the experts produce to the Court a document identifying where the expert opinions agree or differ;

(c) that all factual evidence relevant to an expert's opinion be adduced before the expert is called to give evidence;

(d) that, on the completion of the factual evidence referred to in paragraph (c) , each expert provide a supplementary report stating –

(i) whether the expert adheres to the previously expressed opinion; or

(ii) if the expert holds a different opinion –

(A) the opinion; and

(B) the factual evidence on which the opinion is based;

(e) that the experts give evidence one after another;

(f) that each expert be sworn at the same time and that the cross-examination and re-examination be conducted by putting to each expert in turn each question relevant to one subject or issue at a time, until the cross-examination or re-examination is completed;

(g) that an expert give an opinion about another expert's opinion;

(h) that the experts be cross-examined and re-examined in any particular manner or sequence;

(i) any other order convenient to the manner in which the opinion evidence is received.

9.    Rule 516 amended (Service of statement of expert evidence)

Rule 516 of the Principal Rules is amended as follows:

(a) by omitting paragraphs (a) , (b) and (c) from subrule (2) and substituting the following paragraphs:

(a) an acknowledgement by the witness that he or she has read this subrule and subrule (4) and will comply with –

(i) the requirements of those subrules; and

(ii) any order made under subrule (6)(a) , (b) or (d) ; and

(b) the name and address of the witness; and

(c) the qualifications of the witness to give evidence as an expert; and

(b) by inserting the following subrules after subrule (3) :

(4)  If an expert witness has provided an opinion to the party engaging him or her (or the party's legal representative) and the expert witness changes his or her opinion on a material matter, he or she must, as soon as practicable, provide the party who engaged him or her (or that party's legal representative) with a report to that effect which contains such of the information referred to in subrule (2) as is appropriate.

(5)  A party (or the party's legal representative) who receives a report from an expert witness under subrule (4) must as soon as practicable serve that report on any other party to the proceeding if that report relates to a statement which has been signed by that expert witness and served under subrule (2) .

(6)  If 2 or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, the Court or a judge may, either on or without application, make one or more of the following orders:

(a) that the experts confer, either before or after writing their expert reports;

(b) that the experts produce to the Court a document identifying where the expert opinions agree or differ;

(c) that all factual evidence relevant to any expert's opinion be adduced before the expert is called to give evidence;

(d) that on the completion of the factual evidence referred to in paragraph (c) , each expert provide a supplementary report stating –

(i) whether the expert adheres to the previously expressed opinion; or

(ii) if the expert holds a different opinion –

(A) the opinion; and

(B) the factual evidence on which the opinion is based;

(e) that the experts give evidence one after another;

(f) that each expert be sworn at the same time and that the cross-examination and re-examination be conducted by putting to each expert in turn each question relevant to one subject or issue at a time, until the cross-examination or re-examination is completed;

(g) that each expert give an opinion about the other expert's opinion;

(h) that the experts be cross-examined and re-examined in any particular manner or sequence;

(i) any other order convenient to the manner in which the opinion evidence is received.

10.    Rule 518 substituted

Rule 518 of the Principal Rules is rescinded and the following rule is substituted:

518.   Referral for mediation or neutral evaluation not to operate as a stay

Unless otherwise ordered, an order under section 5(1) of the Alternative Dispute Resolution Act 2001 referring a matter to mediation or neutral evaluation does not operate as a stay of proceedings.

11.    Rule 520 rescinded

Rule 520 of the Principal Rules is rescinded.

12.    Rule 522 rescinded

Rule 522 of the Principal Rules is rescinded.

13.    Rule 523 substituted

Rule 523 of the Principal Rules is rescinded and the following rule is substituted:

523.   Costs of mediation or neutral evaluation

A judge may order that a party recover costs of and incidental to mediation or neutral evaluation if those costs have been unnecessarily incurred by the conduct of another party.

14.    Rule 556 amended (Mode of trial)

Rule 556 of the Principal Rules is amended by omitting " Commercial Arbitration Act 1986 " and substituting " Commercial Arbitration Act 2011 ".

15.    Rule 765 amended (Consent of Attorney-General to stay)

Rule 765 of the Principal Rules is amended by inserting "under section 37A of the Supreme Court Civil Procedure Act 1932 " after "arbitration".

16.    Part 32, Division 1 substituted

Division 1 of Part 32 of the Principal Rules is rescinded and the following Division is substituted:

Division 1 - Proceedings under the Commercial Arbitration Act 2011

771.   Interpretation of Division 1 of Part 32

In this Division –

arbitral tribunal has the same meaning as in the Commercial Arbitration Act 2011 ;

arbitration has the same meaning as in the Commercial Arbitration Act 2011 ;

arbitration agreement has the same meaning as in the Commercial Arbitration Act 2011 ;

award means an arbitral award under the Commercial Arbitration Act 2011 .

772.   Applications

(1)  An application under the Commercial Arbitration Act 2011 must specify the relief claimed by the applicant and the provision of the Act under which the relief is claimed.

(2)  An application referred to in subrule (1) must be accompanied by –

(a) a copy of the arbitration agreement; and

(b) if the application relates to an award, a copy of that award; and

(c) an affidavit –

(i) stating the material facts on which the claim for relief is based; and

(ii) to which is attached any documents in support of the relief claimed.

(3)  An application referred to in subrule (1) is to –

(a) be served on each person who may be affected by any order made on the application; or

(b) contain a request for directions as to who is to be served with the application.

773.   Determination of preliminary point of law

An application to the Court for a determination under section 27J of the Commercial Arbitration Act 2011 must be made within 14 days after the date on which the consent of the arbitrator or the consent of all other parties has been obtained.

774.   Referral to mediation

A request under section 8 of the Commercial Arbitration Act 2011 to refer the parties to arbitration is to be made by filing an interlocutory application.

775.   Subpoena

(1)  Subject to this rule, Division 3 of Part 19 applies, with any necessary modification, to the issue of a subpoena under section 27A of the Commercial Arbitration Act 2011 .

(2)  The material to be lodged with the Court in accordance with Division 3 of Part 19 must be accompanied by a letter –

(a) addressed to the registrar requesting the issue of the subpoena; and

(b) setting out –

(i) the Act and the provisions of the Act under which the request for the issue of the subpoena is made; and

(ii) details of the arbitration agreement pursuant to which the subpoena is requested; and

(iii) details of the connection of the person or documents sought to be subpoenaed to the arbitration proceedings; and

(c) to which is attached a document signed by the members of the arbitral tribunal indicating that the request for the issue of a subpoena is made with the permission of the arbitral tribunal.

(3)  On receipt of a letter under subrule (2) , and prior to issuing the subpoena, the registrar may refer the letter to a judge who is to –

(a) determine the request; and

(b) endorse the determination on the letter.

(4)  A subpoena for production before an arbitral tribunal may, with the leave of the Court or the arbitral tribunal, require production at such time, date and place as specified in the subpoena.

(5)  Unless the Court or a judge otherwise orders, a subpoena requiring production of any document or thing before an arbitral tribunal must permit the person named, instead of attending and producing it before the arbitral tribunal, to produce the document or thing –

(a) to a person, and at a place, nominated in writing by the arbitral tribunal and stated in the subpoena; and

(b) by hand or by post –

so that the person nominated receives it no later than 2 days before the first date on which the production before the arbitral tribunal is required.

(6)  If a document or thing is produced in accordance with subrule (5) the person nominated –

(a) if required to do so, must give a receipt to the person producing the document or thing; and

(b) must produce the document or thing as the nature of the case requires or as the arbitral tribunal may direct.

(7)  Subrule (5) does not apply to a requirement in a subpoena that a person attend before an arbitral tribunal to give evidence.

776.   Court assistance in taking of evidence

(1)  Subject to this rule, Division 2 of Part 19 applies, with any necessary modification, to any arbitration when a request for the assistance of the Court is made in accordance with section 27 of the Commercial Arbitration Act 2011 .

(2)  At the conclusion of the examination of any witness before an examiner, the Court may make orders relating to the transmission of depositions which vary from the rules relating to the transmission prescribed in rule 485 .

(3)  The Court may make orders for the transmission of depositions to an arbitral tribunal.

776A.   Appeal and application for leave for appeal

(1)  An appeal pursuant to section 34A of the Commercial Arbitration Act 2011 is –

(a) commenced by notice of appeal stating the grounds of appeal; and

(b) accompanied by a statement –

(i) briefly setting out the question of law that arises out of the award to which the appeal relates and the essential facts found by the arbitral tribunal from which that question arises; and

(ii) any other material relevant to the determinations required under section 34A(3) of that Act; and

(iii) the date relevant to the calculation of the appeal period specified in section 34A(6) of that Act; and

(iv) if applicable, stating that the parties agree that an appeal can be brought under section 34A of that Act and providing the date that the parties reached such agreement.

(2)  A notice of appeal is to –

(a) be served on any person who may be affected by any order made on the application; or

(b) contain a request for directions as to who is to be served with the application.

(3)  An application under section 34A(1) of the Commercial Arbitration Act 2011 for leave to appeal to the Court is to be served on each person who may be affected by the proposed appeal at least 7 days before the day appointed for the hearing of the application.

(4)  Subject to this rule, Division 4 of Part 27 applies, with any necessary modification, to an appeal under section 34A of the Commercial Arbitration Act 2011 .

776B.   Enforcement of awards

An application for an order under section 35 of the Commercial Arbitration Act 2011 for the enforcement of an award must –

(a) be accompanied by –

(i) the material, or the equivalent of the material, required to be produced to the Court under section 9 of the International Arbitration Act 1974 of the Commonwealth; and

(ii) an affidavit stating –

(A) the extent to which the award has not been complied with at the date the application is made; and

(B) the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if that is a corporation, its last known registered office; and

(b) be served on the person against whom enforcement is sought.

776C.   Payment into Court

(1)  A party to an arbitration agreement may pay into Court a sum of money in satisfaction of all or any of the claims made by an opposite party –

(a) within 28 days after the date fixed for the commencement of the arbitration; or

(b) with the leave of the arbitral tribunal, after the expiry of that period.

(2)  A person who pays a sum of money into Court under subrule (1) within the period set out in that subrule is to give notice of the payment in accordance with the prescribed form.

(3)  With the leave of the arbitral tribunal, a party may increase, decrease or withdraw a sum of money paid into Court by that party.

(4)  With the leave of the arbitral tribunal, the party in respect of whose claim the sum of money was paid may accept that sum of money in full satisfaction of the claim.

(5)  An arbitral tribunal who gives leave under subrule (3) or (4) is to deliver to the Principal Registrar a memorandum providing for the disposition of the money in Court.

(6)  The arbitral tribunal is to deliver to the Principal Registrar any part of an award providing for the disposition of money in Court.

(7)  The Principal Registrar may deal with money in Court in accordance with the instructions of the arbitral tribunal.

(8)  If any doubt or dispute arises as to the action to be taken by the Principal Registrar, the Principal Registrar, after giving notice to the parties, may refer the doubt or dispute to a judge.

(9)  Part 8 applies, with any necessary modifications, to a payment into Court under the Act.

776D.   Offers of compromise

Part 9 applies, with any necessary modification, to an offer of compromise of arbitration proceedings under the Commercial Arbitration Act 2011 .

777.   Application of rules to proceedings under the Commercial Arbitration Act 1986

(1)  In this rule –

commencement day means the day on which the Supreme Court Amendment (Miscellaneous) Rules 2012 commence;

former arbitration rules means the rules contained in this Division as in force immediately before the commencement day.

(2)  The former arbitration rules apply to any proceedings in respect of an arbitration to which the Commercial Arbitration Act 1986 applies.

17.    Rule 800 amended (Application to dispense with requirements for execution of wills )

Rule 800 of the Principal Rules is amended by omitting "under" and substituting "for a grant of probate or letters of administration relying on".

18.    Rule 962 amended (Jurisdiction of Associate Judge)

Rule 962(1)(f) of the Principal Rules is amended by omitting "section 39(1) of the Commercial Arbitration Act 1986 " and substituting " section 27J of the Commercial Arbitration Act 2011 ".

E. C. CRAWFORD

Chief Justice

P. E. EVANS

Puisne Judge

A. M. BLOW

Puisne Judge

S. E. TENNENT

Puisne Judge

D. J. PORTER

Puisne Judge

H. M. WOOD

Puisne Judge

Countersigned,

J. A. CONNOLLY

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 17 October 2012

These Rules of Court are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Supreme Court Rules 2000  –

(a) consequentially on the enactment of the Commercial Arbitration Act 2011 ; and

(b) in relation to the giving of opinion evidence; and

(c) in relation to mediation; and

(d) by updating requirements of the Court in relation to documents; and

(e) by amending the classes of proceedings that are to be commenced by application to the Court or to a judge in chambers.