Law Institute Journal (Victoria)
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The Melbourne pilot scheme for the individual docket system involves each case in the Melbourne registry which is not in the "ready for hearing" list being allocated to a judge who will ordinarily be responsible for the management of the case until its disposition by that judge. The list of cases allocated to each judge is that judge's docket. In certain circumstances the case may be assigned to another judge's docket after commencement of the proceeding.
Allocation of cases to judges' dockets and specialist panels
Generally, cases will be allocated on a random basis, but panels of judges will be created for specialist categories such as admiralty, intellectual property, industrial law, native title, Part IV TPA, taxation and takeover cases. Cases in these categories will be allocated on a rotational basis to members of the relevant panel.
Procedure on filing an application
Generally, first directions hearings will be returnable before the judge to whose docket the case has been allocated. New cases will be allocated to an individual judge's docket at the time of lodgment of the initiating application with the Court. The application will be given a first directions date in the near future, returnable before the relevant judge.
Existing cases
Existing cases will be allocated gradually to the dockets of individual judges.
Filing a notice of motion and interlocutory applications
The Thursday "notice of motion" day ceased at the end of 1996. Notices of motion and interlocutory applications should be made returnable before the relevant docket judge. The party making the application should contact the judge's associate to ascertain a suitable date for listing the application. Where the case has not been allocated to a docket or the docket judge is not available, the application will be listed before the duty judge.
Cases in the ready for hearing list
Cases that are currently in the ready for hearing list are not expected to be allocated to the dockets of individual judges. Applications in regard to these cases will be made returnable before the duty judge.
Directions hearings
The Tuesday and Friday directions lists ceased at the end of 1996. Once a case is allocated to a docket, the judge to whose docket the case has been allocated will continue to deal with all directions hearings in that matter. If the docket judge is not available, the duty judge will deal with the directions hearing.
It is expected that directions hearings may be listed at 9.30am, Monday to Friday, or at later times on Fridays, but particular listings will be subject to arrangements made with individual judges. Some flexibility in the time and place for listing of directions hearings has to be expected.
Registrar's lists
Bankruptcy and corporations matters will continue to be included in registrar's lists on Wednesdays and referred to the duty judge or allocated to an individual judge's docket where appropriate.
The Melbourne pilot project
Although the Federal Court has decided in principle to adopt the individual docket system on a national basis, the Melbourne pilot scheme has been developed in order to examine and overcome any practical difficulties involved in the implementation of a docket system throughout the Court.
Consultation with the profession will continue throughout the period of the docket pilot project.
PI SECCOMBE District registrar
New Sheriff's fees came into effect on 1 December 1996. For details see Supreme Court (Sheriff's Fees) Regulations 1996 SR No 133.
LIQUOR LICENSING COMMISSION
Practice Note No 22
1. Operation of s58
Section 58 of the Liquor Control Act 1987 (the Act) contains the following pro-visions:
"(1)A club licence is subject to the following conditions:
(a) The rules of the club must comply with Schedule 1 except as other-wise authorised in writing by the Commission.
(h) If the rules of the club are amended or altered -
in the secretary of the club must, within 14 days after the making of the amendment or alteration, give to the Chief Executive Officer a certified copy of the amendment or alteration; and}subject to sub-section (2), the amendment or alteration does not have effect until the expiration of 28 days after the certified copy is given to the Chief Executive Officer.
(2) The Commission may, by notice in writing given to the secretary to a club within 28 days after receiving a certified copy of an amendment or alteration of the rules (other than a rule relating only to the number of members of the club), disallow the amendment or alteration."
The effect of s58(1)(a) is that clubs are under a continuing obligation to ensure that their rules comply with Schedule 1 of the Act notwithstanding that the rules may previously been approved by the Liquor Licensing Commission (the Commission) or the previous Liquor Control Commission. Failure to do so is a breach of the terms and conditions of the licence.
Sub-section 58(1)(b) sets out the procedure for a club in notifying the Commission of alterations and amendments to its rules and sub-sec 58(2) provides for the Commission to disallow amendments or alterations.
In considering changes to the rules of a club already holding a club licence, the Commission will review the whole of the rules for compliance with Schedule 1 as well as considering the changes, notwithstanding any prior consideration by the Commission.
2. Documents required for approval of club rules of a new club or changes in rules of a licensed club
In an application for a new full club or restricted club licence, or a request by a licensed club for approval of changes to its rules under s58(1)(b), the Commission requires in relation to approval of the rules of the club:
These are in addition to any other documents required for a new club application.
3. Application of club rules under Schedule 1 - guidelines and issues.
Set out below are some guidelines for compliance with Schedule 1, some comments on issues commonly arising in the Commission's consideration of club rules, and suggested solutions. However; amendments to rules suggested in this practice note are options only, and it is open to a club or its advisers to propose alternatives. suhiect to the Commission's approval.
Schedule 1(a)
Club rules, particularly where the club is a company limited by guarantee. often contain rules specifying that the club is a non-profit organisation and that distributions of capital or income shall not he made to particular members except in accordance with the objects of the club, and also making some limited provisions for the payment of salaries or honorariums to office bearers or members for work done or goods and services provided.
However, these provisions do not satisfy the requirements of Schedule 1(a). To comply with Schedule 1(a) the insertion of a specific rule following or to the effect of the words of the paragraph is required.
The following is suggested:
"No amount shall be paid to an officer or servant of the club by way of commission or allowance from receipts of the club for the sale and disposal of liquor."
Schedule 1(b)
There should be a provision in all club rules in accordance with paragraph (i) of Schedule 1(b) that:
"A visitor to the club must not be supplied with liquor in the club's premises unless the visitor is a guest in the company of a member of a club."
In addition, clubs with gaming or proposed gaming should be aware that unless the effect of paragraph (b)(ii) of Schedule 1 is incorporated in the rules permitting the supply of liquor to an authorised gaming visitor, the club's rules will not authorise the serving of liquor to an authorised, gaming visitor unless he or she is a guest in the company of a member.
It is also recommended that clubs consider adding to their rules a provision that a visitor can be supplied with liquor pursuant to a limited licence issued under s52 of the Liquor Control Act.
A suggested rule is:
"A visitor to the club must not be supplied with liquor in the club premises unless the visitor is:
(a)a guest in the company of a member of the club;
(b)an authorised gaming visitor admitted in accordance with the rules of the club; or
(c) present at an occasion or function in the club premises in respect of which a limited licence pursuant to s52 of the Liquor Control Act 1987 has issued authorising the sale and disposal of liquor to that visitor."
Note: (b) can be deleted if the club has no gaming machines and does not propose to install them; (c) is not strictly required, but the club may consider it a useful option. See "Authorised gaming visitors" below for the definition of authorised gaming visitors.
Schedule 1(c)
Paragraph (c) (i) has the effect that if the rules provide for honorary or temporary membership, the rules must set out the classes of persons who may be admitted as honorary or temporary members.
However, paragraph (c)(i) is not satisfied merely because this provision is made, as it also requires that a specific rule in the terms or to the effect of paragraph (c)(i) should be set out in the rules. The following form is suggested:
"A person shall not be admitted as an honorary or temporary member of the club unless the person is of a class specified in the rules and the admission is in accordance with the rules."
Paragraph (c) (ii) is not satisfied by a rule which merely sets out the provisions for payment of subscriptions for membership. The schedule requires that there be a specific provision in the terms of or to the effect of paragraph (ii). A suggested pro-vision is as follows:
"A person shall not be exempted from the obligation to pay the ordinary subscription for membership of the club unless the person is of a class specified in the rules and the admission or exemption is in accordance with the rules."
Club rules often fail to comply with Schedule 1(c)(i) and (ii) because they do not set out the classes of persons who may become honorary and temporary members or who may be exempted from payment of subscriptions. This should be done if the rules provide for either of these categories of membership.
The rule relating to both sub-paragraphs (c)(i) and (ii) is often combined, and if so can read as follows:
" person shall not:
(a)be admitted as an honorary or temporary member of the club, or
(b)be exempted from the obligation to pay the ordinary subscription for member-ship of the club;
unless the person is of a class specified in the rules and the admission or exemption is in accordance with the rules."
Schedule 1(d)
A check should be made as to whether the club is primarily for sporting purposes. If it is, paragraph (d) of the schedule can be disregarded. However, if the club is not a club primarily for sporting premises, the rules must contain a provision in the terms of paragraph (d). The following is suggested:
"A person under the age of eighteen years shall not be admitted to membership of the club."
Schedule 1(e) and (f)
It would be most unusual for the rules of the club not to provide for the affairs of the club to be under the control of a management committee. However, if they do not contain such a provision, the club should amend its rules to do so.
Likewise, any limitations on the power of the management committee to manage the affairs of the club should not be so great as to effectively reduce management committee powers.
There are a number of issues arising under these paragraphs of the schedule which need to be highlighted:
It is the view of the Commission that junior membership (being members under the age of eighteen years) can be exempted from the classes of members which must be included in the 60 percent of the total membership of the club with voting rights needed for the election of the committee under paragraph (f) of Schedule 1. The view is that it is appropriate for the Commission not to require that junior members have a vote on the election of the committee, because it is almost universal practice in club rules to do so, and the Commission in the past appears to have always approved club rules in this form. Paragraph (e) of Schedule 1 provides that the affairs and business of the club must be under the control of a management committee, and paragraph (f) contains provisions for members of the management committee to be elected from the members of the club and other matters,
Some rules provide for sections of members, e.g. men's and ladies' sect-ions in bowling clubs. These sections are often set up with their own general meeting and committee structures and sometimes appear to operate independently of the management committee. Some issues need attention:
(a) In order to comply with paragraph (e) of the schedule, the rules should provide that sections and their committees are responsible to and subject at all times to the direction and control of the management committee.
(b)Paragraph (f) of the schedule is not complied with if members of the management committee are appointed by or consist of office bearers of the men's and ladies' sections or their respective committees. All members of the management committee must be elected by the members as a whole.
(c) ft is appropriate to include a pro-vision that membership of a section or a section committee is a qualification for election to a relatively small number of positions on the management committee, although it is considered that confining the qualification to being the president or an office bearer of a section is not acceptable as being equivalent to nomination.
Consideration of the 60 percent rule in paragraph (f) of Schedule 1 is a complex matter. One approach is to make a list of all the classes of members, and then identify those classes which have the right to vote on the election of the committee.
Sometimes rules provide that some classes can vote on the election of the committee but not on other matters. This does not conflict with paragraph (0.
The next step is to identify which classes of members need not be taken into account for the purposes of the 60 percent rule. These classes are listed in paragraph (f) as honorary members, temporary members, persons who are members by reason only of reciprocal arrangements with another club and persons whose rights area limited to rights as social, gaming or neighbourhood members.
Sometimes classes of members fall within these categories even though they may not bear the same names.
Mentioned above is the Commission's practice under s58(1) to exempt junior members from being taken into account for the 60 percent rule. Application can be made to exempt other non-voting classes of membership in special cases.
Having considered the above, one can identify any other classes of members which are not entitled to vote on the election of the committee and which are not excluded by paragraph (f) for the 60 percent rule. In this case the following options are open to the club:
to amend the rules to entitle the relevant class or classes of members to vote; to amend the rules to provide that if and for so long as the number of members of the club entitled to vote for the election of the committee is below 60 percent of the total membership of the club (excluding temporary or honorary members and persons who are members by reason only of reciprocal arrangements with another club and persons whose rights as social, gaming or neighbourhood members, hereafter called "the excluded members"), then all members of the club (excluding the excluded members) shall be entitled to vote on the election of the committee; or
to amend the membership entitlements of the relevant class or classes of members so that they fall within one of the categories excluded by Schedule 1 If) from being taken into account for the 60 percent rule, such as persons who
are honorary or temporary members or members by reasons only of reciprocal arrangements. with another club or persons whose rights as members are limited to rights as social. gaming or neighbourhood members.
Schedule 1(g)
This paragraph does not apply if a club is a corporation or is registered under the associations Incorporation Act 1.991. A new club licence will not be granted to an unincorporated body.
Schedule 1(h)
This paragraph requires that the rules of a club must provide for the. keeping of records of guests: Often there are specific provisions relating to authorised gaming visitors separate from the other provisions for keeping of records of guests. The two should not. he confused. A suggested rule is:
"The club shall keep a record of each guest and visitor to the club, including his or her name..address, date of visit and, except in the case of an authorised gaming. visitor, the name of' the member introducing the guest or visitor."
There is no objection to the rules containing separate provisions for the keeping of records of guests and visitors who are not authorised gaming visitors on the one hand and authorised gaming visitors on the other hand.
Note: See below for the definition of authorised gaming visitors.
Schedule 1(i)
If a club is or is proposing to obtain a venue operator's licence, this paragraph of the schedule requires that a rule in its terms must be included in the rules. A suggested rule is:
"An authorised gaming visitor must:
(a) produce evidence of his or her residential address before being admitted to the licensed premises;
(b) carry identification at all times while on the licensed premises; and
(a) comply with any relevant rules of the
club while on the licensed premises."
Note: See below for the definition of authorised gaming visitors.
Corporate members
Club rules often provide for a company or firm to be given corporate membership and for that member to nominate persons to enjoy the benefits of membership.
There is no reason why a company should not be a member of a club, but the problem is the status of the nominee.
The nominee is neither a member nor a guest and so is prohibited from being served with liquor unless he or she is a guest in the company of a member.
Assuming the club wishes to give corporate nominees the status of member, the rules should provide that these nominees, on being approved by the management committee, be a member of some kind while they remain nominated. It is the club's discretion to select that class of membership or create a new class, but in that context it must consider the 60 per-cent rule in paragraph (f) of the schedule.
Authorised gaming visitors
1. Definition
An authorised gaming visitor is defined in s3 of the Act as follows:
"Authorised gaming visitor" means a person -
(a)who is on licensed premises in respect of which a venue operator's licence under the Gaming Machine Control Act 1991 is in force; and
(b)inthe case of licensed premises within the municipal district of a council mentioned in Schedule 5 to the Public Service Act 1974, who resides more than 5 kilometres from the licensed premises; and
(c) in the case of licensed premises which are not within the municipal district of a council mentioned in Schedule 5 to the Public Service Act 1974, who re-sides more than 10 kilometres, or any other distance which is determined by
the Minister under s4A, from the licensed premises;
and
(d)whose name and residential address and date of admission to the licensed premises is recorded on the register of authorised gaming visitors required to be kept under s58(1)(c)(ii)."
Club rules often include a provision defining or repeating the statutory definition of an authorised gaming visitor.
Schedule 1 of the Act does not require that a definition be included, but a club may consider it desirable for interpretation purposes.
An appropriate definition would be: "For the purposes of these rules an authorised gaming visitor is a person who: (a) is over the age of eighteen years;
(b)is present on the licensed premises of
the club;
(c) whose place of residence is more than * kilometres from the licensed premises *(for clubs within the metropolitan area (see attached schedule) insert five kilometres, all others insert ten kilometres); and
(d)whose name and residential address and date of admission to the licensed premises is recorded on the register of authorised gaming visitors required to be kept under s58(1) (c)(ii) of the Liquor Control Act 1987."
2. Metropolitan area
The question arises as to whether the particular club is within the metropolitan area (enabling it to admit authorised visitors residing outside a radius of five kilometres from the club) or outside the metropolitan area (enabling it to admit authorised gaming visitors residing out-side a radius of ten kilometres from the club).
Before the municipal reorganisation the listed municipalities were set out in Schedule 5 to the Public Service Act 1974. That schedule was replaced by the schedule to the Public Holidays Act 1993, as amended by Act No 100/1995 s50, to refer to councils by their new names.
The schedule to this document sets out the amended schedule, which is the schedule to be referred to in the definition of authorised gaming visitors for the purposes of defining the metropolitan area.
3. Limitations on use of facilities
It is common in club rules to include a provision regulating when authorised gaming visitors may be admitted to the club's premises, defining the extent to which the authorised gaming visitors may use the club facilities, or providing that authorised gaming visitors may not intro-duce guests. The Commission has no objection to provisions of this nature, but they are not required by the schedule or the Act.
General
Clubs should ensure that any references in their rules to the Liquor Control Act should be to the current Liquor Control Act 1987.
Reference to the Commission should be to the Liquor Licensing Commission not the Liquor Control Commission. References to permits for particular occasions and functions under s38 of the Liquor Control Act 1968 should be replaced with a reference to "a limited licence under s52 of the Liquor Control act 1987".
References to the annual subscriptions or other fees having to be approved by the Liquor Licensing Commission or the Liquor Control Commission should be deleted. The Act no longer empowers the Commission to regulate this area.
The election of honorary, temporary, gaming, social or any other class of member by a manager, employee or door manager, is not acceptable. New members must be accepted by the committee or an election sub-committee of two or more committee members.
The voting rights of each class of members to vote for the election of the management committee must be set out in the rules.
The general rights of each class of members should be set out in the rules. It is not sufficient that the substantive body of rights of any class of members be determined by the committee.
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Banyule
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Maroondah
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Bavside
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Melbourne
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Boroondara
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Melton
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Brimbank
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Monash
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Cardinia
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Moonee Valley
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Casey
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Moreland
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Darebin
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Mornington
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Frankston
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Peninsula
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Glen Eira
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Nillumbik
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Greater Dandenong
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Port Phillip
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Hobsons Bay
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Stonnington
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Hume
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Whitehorse
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Kingston
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Whittlesea
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Knox
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\Vvndham
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Manningham
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arra Maribyrnong
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Note:The checklist to be completed by applicants for a club licence and existing club licensees seeking approval of amendments to rules has not been reproduced here.
Practice Note No 23
1. This practice note will come into torte for applications lodged after I January 1997.
2. Section 72(1) provides:
"(I) An applicant for the grant, variation, transfer or removal of a licence or ex-tended hours permit must cause a copy of a notice of the application to be advertised in a newspaper circulated in the area
(a) in which the premises to which the application relates are or are to be situated; or
(b)to which the licensed premises are sought to be removed -
not later than 14 days after the day on which the application is lodged."
3. Section 72(2) provides:
"(2) An applicant for the grant, variation, transfer or removal of a licence or extended hours permit must ensure that a copy of a notice of the application is continuously displayed on the premises or site to which the application relates or premises to which the licence or permit is sought to be removed during the period of 28 days immediately after the application is lodged."
4. It is incumbent on applicants to ensure that the display notice is continuously displayed for the period of 28 days immediately after the application is lodged.
5. Section 72(3) requires that the notice must be displayed in a manner that invites public attention to the application.
6. Section 72(3A) provides:
"(3A) The Commission may require that the size and format of the notice comply with minimum requirements specified by the Commission in any particular case."
Requirements in respect of the display notice
7. In accordance with s72(3A) the Commission requires an applicant to comply with the following minimum requirements in respect to the notice of application that is to be displayed on the premises.
la) The display notice must be in the form and format of Schedule 1 and be on a minimum of A3 sized paper.
(b)The display notice must include the following information:
Ii) Where the applicant has applied for an on premises licence, the primary purpose of the business must be specified in accordance with the categories contained in s50(3) of the Act being:
(ii 1 If the applicant applies for an ex-tended hours permit or a variation of an extended hours permit, the old and proposed hours of trade should be clearly contrasted.
(iii)In a variation application, the old and proposed conditions of the licence should be clearly contrasted.
(iv) Where the applicant applies for a producer's or distributor's licence, the notice must disclose whether the licence is for a producer, a distributor or a vigneron.
(v) If a general licence is applied for the notice must disclose whether the applicant seeks a general (class 1) or a general (class 2) licence.
(vi) Where an applicant has applied for a transfer, the name of the transferor (vendor) and the transferee (purchaser) should be clearly disclosed and titled "transferor" and "transferee" as appropriate.
(vii)Where an applicant has applied for a removal of licence or permit, the address of both the existing licensed premises and the address of the premises to which it is proposed to move the licence or permit should he clearly disclosed and identified.
8. The Commission's field officers have been instructed (as required) to inspect and report to the Commission on the display of notices in regard to com pliance with the Act and this practice note with particular reference to the following matters:
9. The information that the display notice must contain in accordance with paragraph 7 above applies equally to a copy of the notice of application that is to be advertised in a newspaper in accordance with s72(1). The Commission may direct that an applicant readvertise where these requirements have not been met.
1O.The Commission requires that the copy of the application to be advertised in a newspaper must:
11.The Commission will require a statutory declarations in the form of Schedule 3. The statutory declaration must be accompanied by:
-- a full size copy of the display notice; and
a copy of the full page on which the newspaper advertisement appeared.
RICHARD HORSFALL
Commissioner
Note: Schedules 1, 2 and 3 have not been reproduced here.
Practice Note No 2
1. Where a proceeding has been referred to a hearing other than as a small claims proceeding, it will normally be referred after a case management conference (CMC) is held.
2. The standard directions given at a CMC involve the parties completing a number of interlocutory matters such as the completion of dispute schedules, witness statements, chronologies etc. Each of these activities must be completed by a specified date,
3. In order that the Tribunal can be assured that a matter listed for a particular date is able to commence on that date, the following procedures are to be adopted by the registry.
4. Not less than twelve working days prior to the date for hearing the registry must:
5. In the event that:
JUDGE DAVEY
Chairperson
Practice Note No 3
1. Under s85(2) of the Domestic Building Contracts and Tribunal Act 1995 (the Act) a party to a proceeding may re-quest a copy of the reasons for determination of the Tribunal in that proceeding.
2. A request under s85(2) must be made within fourteen days after the Tribunal makes the determination and on payment to the registrar of any required fee.
3. Under s3(1) of the Act a "determination" means the orders and findings the Tribunal makes to conclude a proceeding. It does not include any orders or directions which are made during the interlocutory stages of a proceeding.
4. Accordingly, written requests for reasons for a determination in a proceeding will only be entertained when the determination is one which concludes the proceeding.
In giving written reasons for a determination, s85(4) of the Act requires the Tribunal to include with those reasons
i Ls findings on material questions of fact and a reference to the evidence or other material on which those findings are based.
JUDGE DAVEY
Chairperson
Practice Note No 4
This practice note replaces Practice Note No 4 dated 16 August 1996.
1. The Tribunal will in appropriate proceedings refer matters of a technical nature which arise in the course of proceedings to an independent expert for investigation ("the reference") under s94 Domestic Building Contracts and Tribunal Act 1995 (the Act).
2 The expert will be required to carry out an examination which may include obtaining information either orally, by written submissions, or in the form of documents from the parties and their witnesses and to then report the results of the investigation to the Tribunal. In conducting the investigation the expert is required to observe the principles of natural justice.
3. The reference may be made by the Tribunal:
4. In the event of the parties to a proceeding making a joint application the parties may then be invited by the Tribunal to nominate an appropriate expert for the reference. The parties shall be required to make their own arrangements for the remuneration of the ex-pert and to file at the registry a consent to act by the expert. The expert shall be required to carry out an investigation and report to the Tribunal in accordance with the directions given by the Tribunal.
5. The reference by the Tribunal of a technical matter to an expert may be made at a case management conference or at any later stage in a proceeding. A technical matter for this purpose includes, but is not limited to, a matter requiring building expertise.
6 In the absence of a joint nomination of an expert which is acceptable to the Tribunal, the present practice of the Tribunal is to refer technical matters requiring building expertise to an independent expert who is selected by the Building Control Commission from its panel of experts.
7 Section 94 of the Act requires the parties to be responsible for any costs incurred in obtaining a report from an independent expert. Where the Tribunal
refers a matter to an expert selected by
the Building Control Commission the
costs of such a reference, which are
treated by the Tribunal as costs in the
cause, shall initially be paid as follows: Where the Tribunal makes a reference to an expert of its own motion, then the cost of the expert must be paid by the applicant to the Tribunal within fourteen days of the date that the Tribunal makes the reference.
Where the reference is made by the Tribunal as a consequence of an application by any of the parties to the proceeding, then the cost of engaging the expert must be paid by the party who made the application for the reference within fourteen days of the date of the reference.
. Where the reference made by the Tribunal is after a joint application by the parties to the proceeding, then the remuneration of the independent expert shall be the joint responsibility of the parties.
8. Experts selected by the Building Control Commission are presently paid a standard fee of $300 unless the issues in dispute are complex and will involve a lengthy report covering a large number of issues in which case the fee may be increased by the Building Control Commission up to a maximum sum of $500. In the event that a further technical report is required, an additional fee may be payable.
9. In the event of an independent expert reporting to the Tribunal that he or she is of the opinion that a further specialist technical report is required in order to enable him or her to properly report to the Tribunal, then the expert must:
10.Where a reference to an independent expert has been made by the Tribunal on its own motion or on an application by the applicant to the proceeding, then in the event that the applicant fails to pay to the Tribunal the said sum of $300 within the said period of fourteen days of the appointment, the proceeding shall be staved until payment is received by the Tribunal.
11.Where a respondent to the proceeding makes an application to the Tribunal for a reference to an independent ex-pert, then the respondent must pay to the Tribunal the sum of $300 at the time of making the application. The Tribunal will not make an order for the reference until the said sum of $300 has been lodged with the Tribunal.
12.Tn the event of the fee requested by the Building Control Commission being increased on the grounds set out in paragraph 8 of this practice note, the applicant or the respondent, as the case may be, will be required to pay an additional sum of up to $200 within fourteen days of receiving a request for such payment from the Tribunal.
The Tribunal will not authorise the obtaining of such a specialist technical report until it has received payment for the quoted cost thereof from the party who originally applied for a report from an independent expert, or in the case of a report directed to be obtained on the Tribunal's own motion, from the applicant.
13.At the conclusion of a hearing and as part of its determination the Tribunal may make an order for costs and it will at that stage determine which party shall pay the fees of the independent expert or the proportions in which the fee paid for the services of the independent expert shall be borne by each of the parties to the proceeding.
14.The independent expert to whom the reference is made will be required to carry out an on site inspection of the relevant premises in the presence of all parties or their representatives or both and to provide a report to each of those parties and to the Tribunal by a date specified in the directions made by the Tribunal. The expert must immediately advise the registrar in the event that he or she becomes aware that he or she will he unable to comply with the directions in relation to the date specified for providing a report.
JUDGE DAVEY
Chairperson
Practice Note No 5
1. Any application to the Tribunal by a builder under s90 Domestic Building Contracts and Tribunal Act 1995 for an order:
restraining a building owner from moving, selling or disposing of assets until permitted by the Tribunal; or
- against the Registrar of Titles not to register for the period specified in the order (without the written consent of the Tribunal) a transfer or mortgage of land owned by the building owner:
must be made by an application supported by affidavit(s).
2. The application must set out the order which is sought to be obtained against the respondent and must identify the property in respect of which the re-straining order is being sought.
3. All applications must be heard by the chairperson or deputy chairperson.
4. The application in urgent cases may be made ex parte.
5. In the event of an ex parte order being made, the Tribunal may;
JUDGE DAVEY
Chairperson
Practice Note No 6
1. In the absence of serious and compelling circumstances, the Tribunal will not on the application of one party only to the registry adjourn the date of a case management conference (CMC).
2. An adjournment of a CMC may be granted on the filing with the registry of the written consent of all parties to a proceeding provided that such consents are received by the registry at least five hearing days prior to the listing date of the CMC.
3. In the event that a party, having received at least ten days notice, fails to attend a CMC, the Tribunal may proceed with the hearing in that party's absence or adjourn the hearing and reserve any other parties their costs thrown away by reason of the adjournment.
JUDGE DAVEY
Chairperson
The current penalty interest rate is 13.2% (from 30 October 1991). A list of the previous rates can be found on page 8 of the 1997 Law Institute Diary.
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URL: http://www.austlii.edu.au/au/journals/LawIJV/1997/47.html