Supreme Court Amendment Rules 2015

Supreme Court Amendment Rules 2015

10 December 2015

We, the Honourable Alan Michael Blow, OAM, Chief Justice, and the Honourable Shan Eve Tennent, the Honourable David James Porter, the Honourable Helen Marie Wood, the Honourable Stephen Peter Estcourt and the Honourable Robert William Pearce, 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 Rules 2015 .

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 29 amended (Removal of documents from registry)

Rule 29 of the Principal Rules is amended by inserting after subrule (1) the following subrule:

(1A)  A judge, the Principal Registrar, a District Registrar, or an officer of the Court with the approval of the Principal Registrar, may temporarily remove a record of the Court or other document from a registry.

5.    Rule 624 amended (General orders to show cause)

Rule 624 of the Principal Rules is amended by omitting subrule (2) and substituting the following subrule:

(2)  A general order to show cause and any subsequent proceedings are to be titled with the name of the applicant against the authority or the person specified under subrule (1)(c) .

6.    Part 32, Division 1 substituted

Division 1 of Part 32 of the Principal Rules is rescinded and the following Divisions are substituted:

Division 1 - Proceedings in arbitration

Subdivision 1 - Domestic proceedings under Commercial Arbitration Act 2011

771.   Interpretation

(1)  In this Subdivision –

arbitration means an arbitration to which the Commercial Arbitration Act applies;

Commercial Arbitration Act means the Commercial Arbitration Act 2011 .

(2)  Unless the contrary intention appears, expressions used in this Subdivision have the same meaning as in the Commercial Arbitration Act.

772.   Application for referral to arbitration

An application under section 8 of the Commercial Arbitration Act to refer the parties to arbitration must be accompanied by an affidavit –

(a) exhibiting a copy of the arbitration agreement; and

(b) stating the material facts on which the application for relief is based.

772A.   Subpoenas

(1)  An application under section 27A of the Commercial Arbitration Act for the issue of a subpoena must be accompanied by –

(a) a draft subpoena; and

(b) an affidavit stating –

(i) the names of the parties to the arbitration; and

(ii) the name of the arbitrator or the names of the arbitrators constituting the arbitral tribunal conducting the arbitration; and

(iii) the place where the arbitration is being conducted; and

(iv) the nature of the arbitration; and

(v) the terms of the permission given by the arbitral tribunal for the application; and

(vi) the conduct money (if appropriate) to be paid to the addressee; and

(vii) the witness expenses payable to the addressee.

(2)  The Court may –

(a) fix an amount that represents the reasonable loss and expenses the addressee will incur in complying with the subpoena; and

(b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena.

(3)  An amount fixed under subrule (2) may be in addition to any conduct money or witness expenses referred to in subrule (1)(b) .

(4)  A person served with a subpoena under this section must comply with the subpoena in accordance with its terms.

(5)  Division 3 of Part 19 applies so far as is practicable to a subpoena referred to in this Subdivision.

772B.   Application relating to evidence for arbitration

An application for an order under section 27B of the Commercial Arbitration Act must be accompanied by an affidavit stating –

(a) the name of the person against whom the order is sought; and

(b) the order sought; and

(c) the grounds under section 27B of the Commercial Arbitration Act relied on; and

(d) the terms of the permission given by the arbitral tribunal for the application as required under that section; and

(e) the material facts relied on.

772C.   Application relating to disclosure of confidential information

An application under section 27H or 27I of the Commercial Arbitration Act for an order prohibiting or allowing the disclosure of confidential information must be accompanied by an affidavit stating –

(a) the name of the person against whom the order is sought; and

(b) the order sought; and

(c) the material facts relied on; and

(d) if the application is made under section 27H of the Commercial Arbitration Act, the terms of the order of the arbitral tribunal under section 27G of that Act allowing disclosure of the information and the date the order was made; and

(e) if the application is made under section 27I of the Commercial Arbitration Act –

(i) the date the arbitral tribunal's mandate was terminated under section 32 of that Act; or

(ii) the date and the terms –

(A) of the request made to the arbitral tribunal for an order under section 27G of that Act for disclosure of the confidential information; and

(B) of the arbitral tribunal's refusal to make the order.

772D.   Application for relief under miscellaneous provisions of Commercial Arbitration Act

An application for relief under section 11(3), 11(4), 13(4), 14, 16(9), 17H, 17I, 17J, 19(6) or 27 of the Commercial Arbitration Act must be accompanied by an affidavit stating the material facts on which the application for relief is based.

772E.   Application for determination of preliminary point of law

(1)  An application under section 27J of the Commercial Arbitration Act for leave to apply for the determination of a question of law arising in the course of an arbitration and, if leave is granted, for the determination of the question of law must be accompanied by an affidavit –

(a) exhibiting –

(i) a copy of the arbitration agreement; and

(ii) evidence of the consent of the arbitrator, or the consent of all the other parties, as required by section 27J(2) of the Commercial Arbitration Act; and

(b) identifying –

(i) the name and usual or last-known place of residence or business of any person whose interest might be affected by the proposed determination of the question of law or, if the person is a company, the last-known registered office of the company; and

(ii) the nature of the dispute with sufficient particularity to give an understanding of the context in which the question of law arises; and

(iii) the facts on the basis of which the question of law is to be determined and the basis on which those facts are stated, including whether they are agreed, assumed, found by the arbitral tribunal or otherwise; and

(iv) the detailed grounds on which it is contended that leave should be granted.

(2)  The application and supporting affidavit are to be served on any person whose interest might be affected by the determination of the question of law.

(3)  The Court may, if it thinks fit, hear and determine the question of law at the same time as the application for leave to apply for the determination of the question.

(4)  If the Court first hears and grants the application for leave, it may make such orders as it thinks fit for the hearing and determination of the question of law.

772F.   Application to set aside award

(1)  An application under section 34 of the Commercial Arbitration Act to set aside an award must identify –

(a) if the applicant relies on section 34(2)(a) of the Commercial Arbitration Act, which subparagraph of section 34(2)(a) is relied upon; and

(b) if the applicant relies on section 34(2)(b) of the Commercial Arbitration Act, which subparagraph of section 34(2)(b) is relied upon; and

(c) brief grounds for seeking the order.

(2)  The application must be accompanied by an affidavit –

(a) exhibiting –

(i) a copy of the arbitration agreement; and

(ii) a copy of the award including the reasons of the arbitral tribunal for the award; and

(b) identifying –

(i) the detailed grounds for seeking the order; and

(ii) the material facts relied on; and

(iii) the date on which the applicant received the award or, if a request was made to the arbitral tribunal under section 33 of the Commercial Arbitration Act to correct the award, the date on which that request was disposed of by the arbitral tribunal.

(3)  The application and supporting affidavit are to be served on any person whose interest might be affected by the setting aside of the award.

(4)  An application by a party to the arbitration under section 34(4) of the Commercial Arbitration Act is to be made by interlocutory application in the proceeding commenced under subrule (1) .

772G.   Appeal

(1)  An application under section 34A of the Commercial Arbitration Act for leave to appeal on a question of law arising out of an award must state –

(a) the question of law to be determined; and

(b) the grounds on which it is alleged that leave to appeal should be granted.

(2)  The application must be accompanied by an affidavit –

(a) showing that, before the end of the appeal period referred to in section 34A(6) of the Commercial Arbitration Act, the parties agreed that an appeal may be made under section 34A of that Act; and

(b) exhibiting –

(i) a copy of the arbitration agreement; and

(ii) a copy of the award, including the reasons of the arbitral tribunal for the award.

(3)  The application must be accompanied by a submission setting out –

(a) the name and usual or last-known place of residence or business of any person whose interest might be affected by the proposed appeal or, if the person is a company, the last-known registered office of the company; and

(b) the nature of the dispute with sufficient particularity to give an understanding of the context in which the question of law arises; and

(c) when and how the arbitral tribunal was asked to determine the question of law and where in the award or the reasons, and in what way, the arbitral tribunal determined it; and

(d) the relevant facts found by the arbitral tribunal on the basis of which the question of law is to be determined by the Court; and

(e) the basis on which it is contended that the determination of the question of law will substantially affect the rights of one or more parties; and

(f) the basis on which it is contended that –

(i) the decision of the arbitral tribunal on the question of law is obviously wrong; or

(ii) the question of law is of general public importance and the decision of the arbitral tribunal is open to serious doubt; and

(g) the basis on which it is contended that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in the circumstances for the Court to determine the question; and

(h) a succinct statement of the argument in support of the application for leave and the appeal if leave is granted.

(4)  The application and the supporting material are to be served on any person whose interest might be affected by the proposed appeal.

(5)  Within 14 days after service on a party, or within such further period as the Court may allow, the party may file and serve any answering material, including a succinct statement of any argument in opposition to the application for leave and the appeal if leave is granted.

(6)  If it appears to the Court that an oral hearing of the application for leave to appeal is required, the Court may, if it thinks fit, hear and determine the appeal on the question of law at the same time as it hears the application for leave to appeal.

(7)  If the Court grants the application for leave before hearing the appeal, it may make such orders as it thinks fit for the hearing and determination of the appeal.

(8)  When an application for leave to appeal is brought or leave to appeal is granted, the Court may suspend or discharge any enforcement order made in respect of the award that is the subject of the proposed appeal.

773.   Application to enforce award

An application under section 35 of the Commercial Arbitration Act to enforce an award must be accompanied by –

(a) the documents referred to in section 35 of the Commercial Arbitration Act; and

(b) an affidavit stating –

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

(ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

Subdivision 2 - International proceedings under International Arbitration Act 1974

774.   Interpretation

(1)  In this Subdivision –

arbitration means an arbitration to which the International Arbitration Act applies;

International Arbitration Act means the International Arbitration Act 1974 of the Commonwealth;

Model Law means the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, as amended by the United Nations Commission on International Trade Law on 7 July 2006, the English text of which is set out in Schedule 2 to the International Arbitration Act.

(2)  Unless the contrary intention appears, expressions used in this Subdivision have the same meaning as in the International Arbitration Act.

774A.   Documents not in English

A party to a proceeding to which this Subdivision applies who seeks to rely on a document that is not in the English language must provide a certified English translation of the document –

(a) to the Court; and

(b) to any other party to the proceedings.

774B.   Application for stay and referral to arbitration – foreign arbitration agreements

An application under section 7 of the International Arbitration Act to stay the whole, or part, of a proceeding and to refer the parties to arbitration must be accompanied by –

(a) a copy of the arbitration agreement; and

(b) an affidavit stating the material facts on which the application for relief is based.

774C.   Application to enforce foreign award

An application under section 8(2) of the International Arbitration Act to enforce a foreign award must be accompanied by –

(a) the documents referred to in section 9 of the International Arbitration Act; and

(b) an affidavit stating –

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

(ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last-known registered office of the company.

774D.   Application for referral to arbitration – article 8 of Model Law

An application under article 8 of the Model Law to refer parties to arbitration must be accompanied by –

(a) a copy of the arbitration agreement; and

(b) an affidavit stating the material facts on which the application for relief is based.

774E.   Subpoenas

(1)  An application for the issue of a subpoena under section 23(3) of the International Arbitration Act must be accompanied by –

(a) a draft subpoena; and

(b) an affidavit stating –

(i) the names of the parties to the arbitration; and

(ii) the name of the arbitrator or the names of the arbitrators constituting the arbitral tribunal conducting the arbitration; and

(iii) the place where the arbitration is being conducted; and

(iv) the nature of the arbitration; and

(v) the terms of the permission given by the arbitral tribunal for the application; and

(vi) the conduct money (if appropriate) to be paid to the addressee; and

(vii) the witness expenses payable to the addressee.

(2)  The Court may –

(a) fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and

(b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena.

(3)  An amount fixed under subrule (2) may be in addition to any conduct money or witness expenses referred to in subrule (1)(b) .

(4)  A person served with a subpoena under this section must comply with the subpoena in accordance with its terms.

(5)  Division 3 of Part 19 applies so far as is practicable to a subpoena referred to in this Subdivision.

774F.   Application relating to evidence for arbitration

An application for an order under section 23A(3) of the International Arbitration Act must be accompanied by an affidavit stating –

(a) the name of the person against whom the order is sought; and

(b) the order sought; and

(c) the grounds relied on under section 23A(1) of the International Arbitration Act; and

(d) the terms of the permission given by the arbitral tribunal for the application if required under that section; and

(e) the material facts relied on.

774G.   Application relating to disclosure of confidential information

An application under section 23F or 23G of the International Arbitration Act for an order prohibiting or allowing the disclosure of confidential information must be accompanied by an affidavit stating –

(a) the name of the person against whom the order is sought; and

(b) the order sought; and

(c) the material facts relied on; and

(d) if the application is made under section 23F of the International Arbitration Act, the terms of the order of the arbitral tribunal under section 23E of that Act allowing disclosure of the information and the date the order was made; and

(e) if the application is made under section 23G of the International Arbitration Act either –

(i) the date the arbitral tribunal's mandate was terminated under article 32 of the Model Law; or

(ii) the date and the terms –

(A) of the request made to the arbitral tribunal for an order under section 23E of that Act for disclosure of the confidential information; and

(B) of the arbitral tribunal's refusal to make the order.

774H.   Application for relief under miscellaneous provisions of Model Law

An application for relief under article 11(3), 11(4), 13(3), 14, 16(3), 17H(3), 17I, 17J or 27 of the Model Law must be accompanied by an affidavit stating the material facts on which the application for relief is based.

774I.   Application to set aside award – Model Law

(1)  An application under article 34 of the Model Law to set aside an award must identify –

(a) if the applicant relies on article 34(2)(a) of the Model Law, which subparagraph of article 34(2)(a) is relied upon; and

(b) if the applicant relies on article 34(2)(b) of the Model Law, which subparagraph of article 34(2)(b) is relied upon; and

(c) brief grounds for seeking the order.

(2)  The application must be accompanied by an affidavit –

(a) exhibiting –

(i) a copy of the arbitration agreement; and

(ii) a copy of the award including the reasons of the arbitral tribunal for the award; and

(b) identifying –

(i) the detailed grounds for seeking the order; and

(ii) the material facts relied on; and

(iii) the date on which the applicant received the award or, if a request was made to the arbitral tribunal under article 33 of the Model Law to correct the award, the date on which that request was disposed of by the arbitral tribunal.

(3)  The application and the supporting affidavit are to be served on any person whose interest might be affected by the setting aside of the award.

(4)  Any application by a party to the arbitration under article 34(4) of the Model Law is to be made by interlocutory application in the proceedings commenced under subrule (1) .

774J.   Enforcement of award under Model Law

An application under article 35 of the Model Law to enforce an award must be accompanied by an affidavit –

(a) exhibiting the documents referred to in article 35(2) of the Model Law; and

(b) stating –

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

(ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

775.   Enforcement of Investment Convention award

An application under section 35(2) of the International Arbitration Act for leave to enforce an award to which Part IV of that Act applies must be accompanied by 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 the person is a company, the last-known registered office of the company.

Division 1AA - Proceedings under Crime (Confiscation of Profits) Act 1993

776.   Applications

(1)  A proceeding under Part 9 of the Crime (Confiscation of Profits) Act 1993 is to be commenced by an originating application to a judge in chambers.

(2)  All subsequent applications in respect of such a proceeding are to be made by interlocutory application.

(3)  An application under Part 9 of the Crime (Confiscation of Profits) Act 1993 is to –

(a) be headed "In the Matter of" followed by a reference to the statutory provision under which the application is brought and "In the Matter of" followed by the name of the person to whom the application relates; and

(b) specify the order sought; and

(c) specify the grounds upon which the order is sought; and

(d) list the name and address of each person known to the applicant who might be directly adversely affected by the making of the order sought; and

(e) be accompanied by an affidavit containing the evidence relied upon in support of the application.

776A.   Directions as to service

The Court may give directions as to the service of an application under Part 9 of the Crime (Confiscation of Profits) Act 1993 .

776B.   Undertaking for damages for wealth-restraining order wrongly granted

Unless otherwise ordered, a wealth-restraining order, or an interim wealth-restraining order, under Part 9 of the Crime (Confiscation of Profits) Act 1993 is to contain an undertaking by the State to pay any person directly adversely affected by the order any damages that –

(a) may be sustained by that person because of the order; and

(b) the Court, or a judge, thinks ought to be paid by the State.

776C.   Searches

Despite rule 33, a person may not require the Registrar to search an index or register, and cannot inspect any document in proceedings under Part 9 of the Crime (Confiscation of Profits) Act 1993 , except with the leave of the Court, or a judge, which may only be granted after notice of the request has been given to the Director of Public Prosecutions.

777.   Conduct of examinations

(1)  In this rule –

examination officer means any officer of the Court holding authority as a taxing officer.

(2)  Upon making an examination order under Part 9 of the Crime (Confiscation of Profits) Act 1993 , the Court or a judge may direct that the examination under that order is to be conducted by an examination officer.

(3)  At any time during an examination conducted in accordance with Part 9 of the Crime (Confiscation of Profits) Act 1993  –

(a) if the examination is conducted by a judge, the judge may adjourn the examination to be continued before an examination officer; or

(b) if the examination is conducted by an examination officer, the examination officer may adjourn the examination to be continued before a judge.

7.    Rule 906 amended (Execution of writ of fieri facias)

Rule 906 of the Principal Rules is amended by omitting subrule (4) and substituting the following subrule:

(4)  If there is a reasonable possibility of satisfying the amount to be levied out of the personal property of the debtor, the Sheriff is to sell the personal property before proceeding to sell real property unless there is a contrary direction by the Court or a judge.

8.    Rule 907 amended (Application for private sale)

Rule 907 of the Principal Rules is amended by inserting after subrule (3) the following subrule:

(4)  Notwithstanding the Civil Process Act 1870 , if a writ has been issued –

(a) the Sheriff may apply to the Court or a judge for an order that a sale under the writ be made otherwise than by public auction; and

(b) an application under paragraph (a) is to –

(i) contain a short statement of the grounds of the application; and

(ii) be served on every person at whose instance any other writ of execution against the property of the debtor has been lodged with the Sheriff; and

(iii) be served at least 4 clear days before the return date.

A M BLOW

Chief Justice

S E TENNENT

Puisne Judge

D J PORTER

Puisne Judge

H M WOOD

Puisne Judge

S P ESTCOURT

Puisne Judge

R W PEARCE

Puisne Judge

Countersigned,

J A CONNOLLY

Registrar

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

Notified in the Gazette on 16 December 2015

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 by –

(a) updating the procedures relating to proceedings in arbitration under the Commercial Arbitration Act 2011, and the International Arbitration Act 1974 of the Commonwealth, to be consistent with other jurisdictions; and

(b) prescribing procedures to be followed in proceedings relating to unexplained wealth under Part 9 of the Crime (Confiscation of Profits) Act 1993 ; and

(c) providing the Sheriff with a discretion in relation to the execution of certain writs; and

(d) updating certain provisions relating to the procedures of the Supreme Court.