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PROTECTION ORDERS REGULATIONS 2002 (2002 NO 6)
2002
LEGISLATIVE ASSEMBLY FOR
THE AUSTRALIAN CAPITAL TERRITORY
PROTECTION ORDERS REGULATIONS
2002
SUBORDINATE LAW 2002 No 6
EXPLANATORY
STATEMENT
Circulated by authority of
the
Attorney-General
Jon Stanhope MLA
These regulations are made under section 106 of the Protection Orders
Act 2001 (“the Act”). The purpose of the Act was to
consolidate the provisions in part 10 of the Magistrates Court Act 1930
dealing with restraining orders and the provisions of the Domestic Violence
Act 1986 dealing with protection orders into one Act. Both the Domestic
Violence Act 1986 and part 10 of the Magistrates Court Act 1930 rely
on a modified version of the rules in the Magistrates Court (Civil
Jurisdiction) Act 1982 as procedural rules for proceedings under those Acts.
Many of the provisions in the Magistrates Court (Civil Jurisdiction)
Act 1982 have no application to protection order proceedings. These
regulations extract the applicable rules from the Magistrates Court (Civil
Jurisdiction) Act 1982 as modified by the Domestic Violence Act
1986 and part 10 of the Magistrates Court Act 1930 so that the Act
has its own stand alone rules that are readily ascertainable.
Regulation 1 is a formal regulation setting out the name of the
regulations.
Regulation 2 provides for commencement of the
regulations. The commencement is linked to the commencement of the
Act.
Regulation 3 provides that the dictionary is part of the
regulations.
Regulation 4 provides that the notes to the
regulations are included as an explanatory aid and are not part of the
regulations.
Part 2 – Applicant’s obligation
Regulation 5 carries over the requirement from the Domestic
Violence Act 1986 for an applicant for a protection order to advise the
Magistrates Court of any family contact order of which they are aware.
Part 3 – Preliminary conferences.
Regulation 6 sets out the objects of a preliminary conference.
Essentially, these objects are to delineate the issues in contention. These
regulations carry over the existing procedures that are set out in practice
directions issued under the Magistrates Court (Civil Jurisdiction) Act
1982.
Regulation 7 provides that a preliminary conference need
not be held in the case of an application for an emergency order (as this would
be impracticable) or if the registrar is satisfied that the conference will not
achieve its objects.
Regulation 8 sets out administrative
requirements for the registrar to notify the parties of preliminary
conferences.
Regulation 9 provides that statements made during a
preliminary conference evidence are not admissible except in particular
circumstances.
Regulation 10 carries over the existing requirement that hearings be
in public. This regulation should be read in conjunction with the provisions
about restrictions on the publication of reports about proceedings in part 12 of
the Act.
Regulation 11 sets out the circumstances in which public
hearing is not required.
Regulation 12 provides that the presiding
magistrate may direct that a hearing or part of a hearing be held in private if
satisfied that it is in the public interest or in the interests of justice to do
so.
Regulation 13 provides for the order in which the parties to
an application may present their case.
Regulation 14 provides that
if the applicant is not present at the time set down for hearing, then the
Magistrates Court may either dismiss or adjourn the
application.
Regulation 15 provides for the procedure to be
followed by the Magistrates Court where the respondent to an application is not
present. The court may either hear the application in the respondent’s
absence or adjourn the proceedings and issue a warrant for the respondent to be
apprehended and brought before the court. This provision is carried over from
both the Domestic Violence Act 1986 and part 10 of the Magistrates
Court Act 1930.
Regulation 16 provides that if neither the
applicant nor respondent appears, then the court may dismiss the
proceedings.
Regulation 17 allows the court to join a child as a
party to an application where the applicant for a protection order has sought a
condition in the order to restrain the respondent from engaging in particular
conduct in relation to the child. The joining of a child as a party may be
appropriate, for example, where the court considers that the interests of the
child should be considered separately to the interests of the
applicant.
Regulation 18 allows the court to hear one or more
applications together if there is a common question to be decided.
Regulation 19 requires the respondent in proceedings to advise of an
address for service or to file a notice of intention to appear.
Regulation 20 carries over the existing requirement that evidence in
protection order proceedings must be given orally. The exception to this
requirement is where the parties agree that evidence may be given by affidavit,
or with the leave of the Magistrates Court.
Regulation 21 provides
that the Magistrates Court may inform itself in any way that it considers
appropriate. This provision is carried over from the Domestic Violence Act
1986.
Regulation 22 provides that an affidavit for use in
proceedings may be sworn at any stage during the proceedings. In respect of an
affidavit of service, the affidavit must not be sworn more than two weeks after
the date of service. This regulation should be read in conjunction with
regulation 27.
Regulation 23 provides for the particular form for
an affidavit. The registrar may also approve a form for affidavits under
section 96 of the Act. All approved forms are notified on the Legislation
Register.
Regulation 24 provides that an irregularity in the form
of an affidavit will not necessarily be fatal to the affidavit’s use in
the proceedings.
Regulation 25 stipulates when documents may be
either attached or made an exhibit to an affidavit.
Regulation 26
provides that if an affidavit contains an alteration on its face, then the
affidavit may still be used in proceedings if the person before whom the
affidavit is sworn has initialled the alteration.
Regulation 27
provides that if an affidavit is to be used in proceedings, it must be filed and
a copy served on the other party in sufficient time before the
hearing.
Regulation 28 provides for the issuing of summons in
proceedings. There are two types of summons, a summons to give evidence, and a
summons for production of a document or thing.
Regulation 29
provides for the manner in which a party to proceedings may request the
registrar to issue a summons.
Regulation 30 provides that a
summons must be served within a reasonable time to allow the served party to
comply with the summons.
Regulation 31 provides that a person must
not fail to comply with a summons. Regulation 31 also specifies the
circumstances in which a person is not required to comply with a
summons.
Regulation 32 provides for the manner in which a person
outside the Territory may satisfy a summons through the provisions of the
Evidence (Miscellaneous Provisions) Act 1991.
Regulation 33
provides that a person who is not a party to proceedings may satisfy the
requirements of a summons to produce if the person produces the document or
thing to the registrar in accordance with the regulation.
Regulation
34 provides that a summons may be set aside on application to the
Magistrates Court.
Regulation 35 provides for the production of a
document or thing pursuant to a notice rather than a summons. This regulation
only applies if the person served with the notice is also a party to the
proceedings.
Regulation 36 provides that the Magistrates Court may
make an order for the examination of a witness for the purpose of a proceeding.
Such an order may be made, for example, where it is not reasonably practical for
the person to appear before the court.
Regulation 37 sets out the
procedure to be followed by the examiner in carrying out an order of the
Magistrates Court made under regulation 36.
Regulation 38 provides
for the steps to be followed by an examiner in relation to entering evidence
into the record of the court after conducting an examination.
Regulation 39 provides for the payment of persons attending
before an examiner in the same way as if the person was required to attend
before the court.
Regulation 40 provides that, in addition to the
entering of evidence into the record of the court, an examiner may also make a
report to the Magistrates Court about the examination.
Regulation
41 provides that a respondent in a proceeding may file a notice of defence
in proceedings at any time before the proceeding is finally decided. This
regulation should be read in conjunction with regulation
42.
Regulation 42 provides that if the respondent does not file a
notice of defence, then they may only rely on an undisclosed defence with the
leave of the Magistrates Court, or with the consent of the
applicant.
Regulation 43 provides for the applicant to file a
reply where the respondent files a notice of defence. The applicant is not
required to file a reply, but may do so.
Part 6 – Discontinuance and adjournments.
Regulation 44 provides that an applicant may discontinue a proceeding
at any time before the proceeding is finally decided. Discontinuance does not
prevent a further application being made in relation to the same
matter.
Regulation 45 provides that the Magistrates Court may
adjourn a hearing at any time as it considers the adjournment to be
appropriate.
Regulation 46 provides that if a hearing is
adjourned, then the return date notice must be amended to state the new time for
the hearing. This provision is carried over from the Domestic Violence Act
1986.
Regulation 47 provides for the adjournment of
proceedings by the registrar where a magistrate is not available at the time
fixed for the hearing.
Part 7 – People with legal disability.
This part should be read in conjunction with section 12 of the Act. Section
12 provides that a person with a legal disability (defined as a child or
a person with mental disability) may only make an application for a
protection order by a next friend.
Regulation 48 provides that a
respondent with a legal disability may defend the proceeding only by a
litigation guardian.
Regulation 49 specifies who may be
appointed as next friend or litigation guardian of a person with a legal
disability, and how they may be appointed.
Regulation 50 specifies
what a next friend or litigation guardian may do in respect of proceedings under
the Act.
Regulation 51 sets out the responsibilities of a next
friend or litigation guardian in respect of proceedings under the
Act.
Regulation 52 provides that the Magistrates Court may remove
a person who is a litigation guardian or next friend. This may be necessary
where, for example, the Magistrates Court is satisfied that the person is no
longer capable of representing the interests of the person under a legal
disability.
Regulation 53 specifies how a party to a proceeding under the Act may
appear before the Magistrates Court or the registrar. A party may choose to
represent themself, use a lawyer, or, with the leave of the court, be
represented by another person. A corporation may be represented by an
authorised officer of the corporation.
Regulation 54 provides
that the Magistrates Court may adjourn proceedings so as to allow a person under
a legal disability to obtain representation.
Regulation 55
provides that the Magistrates Court may specifically ask the Legal Aid Office to
arrange representation for a child in proceedings. Under section 12 of the Act,
a child may make an application for a domestic violence order in their own right
and in this type of case, the court may consider that representation would
better protect the interests of the child.
Part 9 - Interlocutory matters
Regulation 56 provides that interlocutory applications may only be
made by motion filed in accordance with the regulation.
Regulation 57
provides that an applicant may move the Magistrates Court without having
filed a notice of motion in accordance with regulation 56 in certain
circumstances.
Regulation 58 specifies the matters that must be
contained in a notice of motion.
Regulation 59 provides for the
powers of the Magistrates Court on hearing a motion.
Regulation 60
provides a general power for the Magistrates Court to order that a document
filed in proceedings be amended.
Regulation 61 specifies the
manner in which simple amendments may be made to a document in
proceedings.
Regulation 62 requires that where the amendments
required are not simple amendments, then the amendments must be made by filing a
fresh document.
Regulation 63 requires that the party amending a
document that has already been served must also serve a copy of the amended
document on the previously served parties.
Regulation 64 provides
for the amendment of documents in certain circumstances where the relevant
limitation period has expired.
Regulation 65 provides for the
amendment of an order to correct a clerical mistake or error.
Regulation
66 provides that the Magistrates Court may stay or dismiss frivolous or
vexatious proceedings either on its own motion, or on
application.
Regulation 67 provides that the Magistrates court may
dismiss proceedings if the applicant does not take reasonable steps to have the
proceeding heard.
Regulation 68 provides a process by which a
party in proceedings may admit facts in favour of the other
party.
Regulation 69 provides a process for a party to
proceedings, by notice, to require the other party to admit the facts specified
in the notice. If the served party does not dispute the facts within 21 days of
being served with such a notice, the facts will be taken to have been admitted
by that party.
Regulation 70 provides that where a party makes
admissions, then the Magistrates Court may make an order consistent with that
admission.
Regulation 71 provides that admissions may only be used
for the purposes of the particular proceeding.
Regulation 72
provides that where a party allows discovery of a document pursuant to an
affidavit of discovery, then certain presumptions about the authenticity of the
document will follow.
Regulation 73 provides that any of the
parties to a proceeding may serve a notice requiring the other party to give
discovery of documents.
Regulation 74 provides for the manner in
which the party who is served with a notice of discovery must comply with the
notice through filing an affidavit of discovery. The period for compliance must
not be less than 21 days after the day the notice is
served.
Regulation 75 provides a mechanism through which a party
who is served with a notice of discovery may apply to the Magistrates Court to
have discovery limited.
Regulation 76 provides a general power
for the Magistrates Court to order a party to file an affidavit of discovery.
Regulation 77 specifies the manner in which the contents of an
affidavit of discovery must be arranged.
Regulation 78 provides
that a person may claim privilege from production only with the leave of the
Magistrates Court.
Regulation 79 provides a mechanism for the
Magistrates Court to order a party to file an affidavit stating whether a
particular document is, or has been, in the party’s
possession.
Regulation 80 specifies the process for a party to
inspect a document mentioned in an affidavit of discovery.
Regulation
81 provides a mechanism for the Magistrates Court to order the production of
a document, or a copy of a document to another party in the
proceedings.
Regulation 82 allows a party who has gained discovery
of a document to make a copy of the document.
Regulation 83
provides that the Magistrates Court may order a party to produce a document to
the court.
Regulation 84 allows the Magistrates to inspect a
document in respect of which there is an objection to production on either the
grounds of privilege or another ground. The court may inspect the document in
order to make a decision on the validity of the objection.
Regulation
85 specifies when a party to a proceeding may file and serve interrogatories
on another party.
Regulation 86 specifies when and how the party
on whom the interrogatories are served must answer the interrogatories. The
Magistrates Court may order that further and better answers be given to
interrogatories.
Regulation 87 provides that where a person fails
to attend pursuant to an order of the Magistrates Court under regulation 86,
then the court may make such orders as it considers just.
Regulation
88 stipulates the manner in which the answers to interrogatories may be used
as evidence in proceedings.
Regulation 89 provides a general
presumption that each party to a proceeding must bear their own costs. In the
event that the Magistrates Court does award costs, then those costs are
recoverable under the Magistrates Court (Civil Jurisdiction) Act
1982.
Regulation 90 is a general power that allows the Magistrates Court to
set aside an order if satisfied that it was made irregularly, illegally or
against good faith. The court may also set aside an order if the parties
consent to its being set aside.
Regulation 91 provides a mechanism
for the Magistrates Court to deal with an irregularity in a
proceeding.
Regulation 92 clarifies that an order takes effect on
the day it is made.
Regulation 93 provides that a magistrate may
reserve his or her decision on a matter.
Regulation 94 provides
that the magistrate making an order under the Act must sign a minute of the
order.
Regulation 95 provides that the registrar must arrange for
the order of the Magistrates Court to be formally drawn up and filed in the
court.