Division 8 Referred questions of law and stated cases

6.33   Definitions

(1)  In this Division:

original proceedings, in relation to a referred question of law or stated case, means the proceedings (if any) in which the question or case has arisen.

referred matter means a question of law or stated case that has been referred to the Supreme Court for determination.

referring body means the court or other authority by which a question of law or stated case is referred to the Supreme Court for determination.

(2)  A reference in this Division to the Supreme Court includes a reference to the Court of Appeal where the proceedings concerned are assigned to or in the Court of Appeal.

6.34   Application of Division

This Division applies to proceedings in the Supreme Court for an order with respect to a referred matter under a legislative provision, including (but not limited to) the following provisions:

Administrative Decisions Tribunal Act 1997, section 79A, 118 or 118D,

Constitution Further Amendment (Referendum) Act 1930, section 28,

Consumer, Trader and Tenancy Tribunal Act 2001, section 66,

Powers of Attorney Act 2003, section 39,

Real Property Act 1900, section 123 or 124,

Note. This Division also applies by force of rules 12.1A and 15.1 of the Supreme Court (Corporations) Rules 1999 to questions referred to the Supreme Court under the following Commonwealth legislation:

Australian Securities and Investments Commission Act 2001, section 61,

Corporations Act 2001, section 659A.

6.35   Originating process

(1)  (Repealed)

(2)  The originating process:

(a)  in the case of proceedings to which the Supreme Court (Corporations) Rules 1999 apply, must be in the form of the originating process prescribed by rule 2.2 of those rules, and

(b)  in any other case, must be in the form of a summons.

(3)  The referred matter:

(a)  must be in the form of a special case, and

(b)  must be filed with the originating process.

(4)  The originating process must join as defendants (or as respondents where the proceedings are in the Court of Appeal):

(a)  if the referred matter has arisen in original proceedings, all of the parties to the original proceedings, or

(b)  in any other case, all of the persons who may be directly affected by the Supreme Court’s determination of the referred matter.

(5)  In the case of proceedings under section 123 of the Real Property Act 1900, the originating process must also join the Registrar-General as a defendant.

(6)  The Supreme Court may order that such other persons as it considers appropriate be joined as defendants (or as respondents where the proceedings are in the Court of Appeal).

6.36   Form of special case

(cf Federal Court Rules Order 50, rule 1)

A special case:

(a)  must be divided into consecutively numbered paragraphs, and

(b)  must state concisely the questions to be decided and the facts from which those questions arise, and

(c)  must annex all documents necessary to enable the Supreme Court to decide those questions.

6.37   Procedure for preparing special case

(cf Federal Court Rules Order 50, rule 2)

(1)  In the case of a referred matter that has arisen in original proceedings, a special case:

(a)  must be prepared in draft by the party having the conduct of the original proceedings in consultation with the other parties to those proceedings, and

(b)  must be settled by the referring body,

      unless the referring body otherwise directs.

(2)  In the case of a referred matter that has arisen otherwise than in original proceedings, a special case must be prepared:

(a)  in the case of proceedings under section 123 of the Real Property Act 1900, by the applicant referred to in that section, or

(b)  in any other case, by the referring body.

6.38   Conduct of proceedings

(cf Federal Court Rules Order 50, rule 4)

(1)  This rule applies to any proceedings with respect to a referred matter that has arisen in original proceedings.

(2)  Subject to rule 7.8, the party at whose instance the matter has been referred is to have the conduct of the proceedings.

6.39   Insufficient case

(cf SCR Part 32, rule 7)

(1)  This rule applies to any proceedings in which it appears to the Supreme Court that a special case:

(a)  does not sufficiently state the questions to be decided or the facts from which those questions arise, or

(b)  does not annex sufficient documents,

      to enable it to determine the proceedings.

(2)  In these circumstances, the Supreme Court:

(a)  may add to or otherwise alter the special case, or

(b)  may send the special case back to the referring body for the purpose of addition or other alteration.

(c)  (Repealed)

6.40   Inferences

(cf FCR Ord 50, rule 1 (3))

The Supreme Court may draw from the facts stated in, and the documents annexed to, a special case any inference, whether of fact or law, that might have been drawn from them if proved at a trial.

6.41   Referred matters under section 28 of the Constitution Further Amendment (Referendum) Act 1930

(1)  This rule applies to any question that is referred to the Supreme Court under section 28 of the Constitution Further Amendment (Referendum) Act 1930.

(2)  Proceedings on the question are commenced by transmission to the Prothonotary of a statement of the question, as provided for in section 29 of the Constitution Further Amendment (Referendum) Act 1930.

(3)  On receiving the statement, the Prothonotary must list the matter before a Judge of the Supreme Court for directions.

(4)  The Supreme Court may give all such directions as are necessary for the conduct and disposal of the proceedings on the question.

(5)  Rules 6.35–6.40 do not apply to the proceedings on the question.