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Supreme Court (Judicial Registrars Amendment) Rules 2015

S.R. No. 10/2015

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Object 12 Authorising provisions 13 Commencement 14 Principal Rules 1

Part 2—Amendment of Chapter I 2

5 Definitions—Order 61 26 Application under section 6 or 8 27 Instalment agreement under section 7 28 Summons for oral examination of judgment debtor 29 Order for examination or production 310 Record of examination 311 New Order 84 312 Forms for Order 61 amended 1213 New Form 84A 14

Form 84A—Notice of Address for Service 14

Part 3—Amendment of Chapter V 15

14 RedCrest Corporations List 1515 Heading to Rule 5.9 amended 1516 Rule 5.9 amended 1517 Heading to Part 3 of Order 16 amended 1518 Rule 16.8 substituted 1519 Heading to Rule 16.9 amended 1620 Rule 16.9 amended 1621 New Order 16B inserted 1722 New Schedule 2A inserted 19

SCHEDULE 2A—Powers of the Court that may be exercised by a judicial registrar 19

═══════════════

ENDNOTES 23

1

STATUTORY RULES 2015

S.R. No. 10/2015

Supreme Court Act 1986Constitution Act 1975

Corporations (Ancillary Provisions) Act 2001

Supreme Court (Judicial Registrars Amendment) Rules 2015

The Judges of the Supreme Court make the following Rules:

PART 1—PRELIMINARY

1 Object

The object of these Rules is to amend Chapter I and Chapter V of the Rules of the Supreme Court to further provide for the performance of functions and the exercise of powers by judicial registrars in the Supreme Court.

2 Authorising provisions

These Rules are made under section 75A(5) of the Constitution Act 1975, sections 17AA, 25 and 113M of the Supreme Court Act 1986, section 23 of the Corporations (Ancillary Provisions) Act 2001 and all other enabling powers.

3 Commencement

These Rules come into operation on 1 March 2015.

4 Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 20051 are called the Principal Rules.

1

__________________

PART 2—AMENDMENT OF CHAPTER I

5 Definitions—Order 61

In Rule 61.01(2) of the Principal Rules after "Associate Judge" insert "or a judicial registrar".

6 Application under section 6 or 8

(1) In Rule 61.02(1) of the Principal Rules after "Associate Judge" insert "or a judicial registrar".


(3) In Rule 61.02(7)(b) of the Principal Rules after "Associate Judge" insert "or a judicial registrar".



7 Instalment agreement under section 7

(1) In Rule 61.03(1)(b) and (3) of the Principal Rules after "Associate Judge" insert "or with a judicial registrar".


8 Summons for oral examination of judgment debtor


(2) In Rule 61.04(5) of the Principal Rules for "or an Associate Judge" substitute ", an Associate Judge or a judicial registrar".

Part 3—Amendment of Chapter V

Supreme Court (Judicial Registrars Amendment) Rules 2015S.R. No. 10/2015

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9 Order for examination or production

In Rule 67.02(2) of the Principal Rules after "Associate Judge" insert "or a judicial registrar".

10 Record of examination

In Rule 67.06 of the Principal Rules for "or Associate Judge" substitute ", Associate Judge or judicial registrar".

11 New Order 84

After Order 83 of the Principal Rules insert—

"ORDER 84

AUTHORITY OF JUDICIAL REGISTRARS

84.01 Interpretation

In this Order, a reference to a determination is a reference to a judgment, order or direction.

84.02 Authority of judicial registrars

(1) Without limiting any other powers of a judicial registrar, a judicial registrar may, subject to this Order, hear and determine—

(a) an application under Rule 5.12 to extend the period of validity for service of a writ or an originating motion that has not been served;

(b) an application under Rule 6.10 for substituted service;

(c) an application under Rule 9.09 to change a party on death, bankruptcy, assignment or transmission;



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(d) an application under Rule 20.03 (except paragraph (4)) for leave for a solicitor to cease to act for a party in a proceeding;

(e) an application under Rule 67.02 or 67.03 for an order that a person bound by a judgment attend for examination or produce documents or things;

(f) an application under Rule 68.02 for leave to issue a warrant of execution;

(g) an application under Rule 68.05 to extend the period of validity of a warrant of execution;

(h) an application under Rule 69.03 for leave to issue a warrant while another warrant issued in respect of the same judgment is in force;

(i) an application under Rule 69.06(5) to dispense with service of a copy of an advertisement for sale by the Sheriff;

(j) an application under Rule 71.04 for the filing and service of a garnishee summons;

(k) an application under any provision of Order 72 (attachment of earnings).

(2) For the purposes of hearing and determining an application referred to in paragraph (1)—

(a) the judicial registrar constitutes the Court; and



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(b) all the powers of the Court in relation to the hearing and determination of such an application are delegated to the judicial registrar.

Note

A judicial registrar in the Costs Court may perform the functions and exercise the powers conferred on a judicial registrar by and under Division 2B of Part 2 of the Act. A judicial registrar who is the Registrar of the Court of Appeal has the duties, powers and authorities imposed or conferred on the Registrar of the Court of Appeal by or under section 113O of the Act and Order 64 of these Rules. A judicial registrar who is the Registrar of Criminal Appeals has the duties, powers and authorities imposed or conferred on the Registrar of Criminal Appeals by or under section 113P of the Act and Chapter VI of the Rules of the Supreme Court.

By virtue of Order 61 of these Rules, a judicial registrar is the proper officer of the Court for the purposes of the Judgment Debt Recovery Act 1984 and in that capacity has the powers and duties conferred by Order 61 on a judicial registrar.

See also the further powers of a judicial registrar set out in Order 67 of these Rules and in Chapter V of the Rules of the Supreme Court.

84.03 Reference by Judge of the Court to judicial registrar

(1) If a matter before a Judge of the Court, which matter would not otherwise be within the authority of a judicial registrar, appears to the Judge to be proper for determination by a judicial registrar, the Judge, by order, may refer the matter to a judicial registrar.

(2) If a Judge of the Court refers a matter to a judicial registrar, the judicial registrar may—



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(a) hear and determine the matter, subject to any directions in the order referring the matter; or

(b) refer the matter back to the Judge for determination.

(3) In hearing and determining a matter referred by a Judge of the Court to a judicial registrar—

(a) the judicial registrar constitutes the Court for that purpose; and

(b) subject to any directions in the order referring the matter, all the powers of the Court in relation to the hearing and determination of such a matter are delegated to the judicial registrar.

(4) Despite paragraph (1), a Judge of the Court shall not refer to a judicial registrar any matter under Part 2 or Part 2A of the Confiscation Act 1997.

84.04 Reference by Associate Judge to judicial registrar

(1) If a matter before an Associate Judge, which matter would not otherwise be within the authority of a judicial registrar, appears to the Associate Judge to be proper for determination by a judicial registrar, the Associate Judge, by order, may refer the matter to a judicial registrar.

(2) If an Associate Judge refers a matter to a judicial registrar, the judicial registrar may—

(a) hear and determine the matter, subject to any directions in the order referring the matter; or

(b) refer the matter back to the Associate Judge for determination.



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(3) In hearing and determining a matter referred by an Associate Judge to a judicial registrar—


(b) subject to any directions in the order referring the matter, all the powers of the Court in relation to the hearing and determination of such a matter are delegated to the judicial registrar.

(4) Despite paragraph (1), an Associate Judge shall not refer to a judicial registrar any matter referred to an Associate Judge under Rule 77.05.

84.05 Appeal from determination by a judicial registrar

(1) Subject to paragraph (2), this Rule applies to any determination given or made by the Court constituted by a judicial registrar (including a determination in a matter referred to a judicial registrar under Rule 84.03 or 84.04).

(2) This Rule does not apply to any determination given or made or any other thing done by a judicial registrar where the judicial registrar is—

(a) acting as a judicial registrar in the Costs Court pursuant to Division 2B of Part 2 of the Act;

(b) acting as the Registrar of the Court of Appeal or as the Registrar of Criminal Appeals pursuant to Division 2B of Part 7 of the Act; or



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(c) acting as the proper officer of the Court for the purposes of the Judgment Debt Recovery Act 1984.

(3) Subject to sections 14A and 17A of the Act and without limiting section 11(5) of the Act, an appeal from any determination to which this Rule applies lies to the Trial Division constituted by a Judge of the Court, except in the case of a determination of the Court of Appeal constituted by a judicial registrar in which case an appeal lies to the Court of Appeal constituted by a Judge of Appeal.

(4) An appeal under this Rule shall be conducted by way of hearing de novo.

(5) An appeal under this Rule shall be—

(a) brought by filing a notice of appeal in accordance with this Order; and

(b) otherwise in accordance with this Order.

84.06 Filing of notice of appeal

(1) A notice of appeal, including a notice of appeal from a determination of a judicial registrar dismissing an application made without notice to any person, shall be filed—

(a) within 14 days after the determination was given or made; or

(b) if leave to appeal is necessary, within 14 days of leave being granted.

(2) If leave to appeal is necessary, an application for leave to appeal shall be made within 14 days after the determination of the judicial registrar was given or made.



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(3) An application for leave to appeal shall be made by summons supported by affidavit and a draft notice of appeal shall be exhibited to the affidavit.

(4) On an application for leave to appeal, the Court shall be constituted in the same way as it would be constituted for an appeal from the determination of the judicial registrar.

(5) If the Court as so constituted thinks fit, the hearing of an application for leave to appeal may be treated as the hearing of the appeal.

84.07 Contents of notice of appeal

(1) A notice of appeal shall state—

(a) whether the whole or part only and, if as to part, which part, of the determination is the subject of the appeal; and

(b) what determination is sought in place of the determination from which the appeal is brought.

(2) A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal.

(3) In the case of an appeal to the Trial Division constituted by a Judge of the Court, a notice of appeal may be amended at any time by leave of a Judge of the Court or an Associate Judge.

(4) In the case of an appeal to the Court of Appeal constituted by a Judge of Appeal, a notice of appeal may be amended at any time by leave of a Judge of Appeal or an Associate Judge.

84.08 Service of notice of appeal



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(1) Subject to paragraph (2), a copy of the notice of appeal shall be served on all parties affected by the appeal within five days of the filing of the notice of appeal.

(2) A copy of a notice of appeal from a determination of a judicial registrar dismissing an application made without notice to any person shall not be served.

(3) Despite paragraphs (1) and (2), a Judge of the Court (in the case of an appeal to the Trial Division constituted by a Judge of the Court) or a Judge of Appeal (in the case of an appeal to the Court of Appeal constituted by a Judge of Appeal) may direct that a copy of the notice of appeal be served on—

(a) any party to the proceeding; or

(b) a person not a party—

and may specify a time to be allowed for such service.

(4) A copy of the notice of appeal may be served on a party personally or at the party's address for service under these Rules, including Rule 1.19.

(5) Where a copy of the notice of appeal is served on a person not a party—

(a) that person shall not take any step in the appeal without first filing and serving a notice of address for service in Form 84A; and

(b) on the appeal, the Court may give or make any determination that might have been given or made if the person served with the notice of appeal had been originally a party.

84.09 Extension of time



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A Judge of the Court or an Associate Judge (in the case of an appeal to the Trial Division constituted by a Judge of the Court) or a Judge of Appeal or an Associate Judge (in the case of an appeal to the Court of Appeal constituted by a Judge of Appeal) may extend the time allowed by or under this Order for the filing of a notice of appeal or for the service of a copy of the notice of appeal, either before or after the expiry of that time.

84.10 Evidence

On the appeal, each party may, subject to any proper objections to admissibility—

(a) rely upon any affidavit used before the judicial registrar and upon any evidence given orally before the judicial registrar;

(b) by leave of the Court, rely upon an affidavit or oral evidence not used or given before the judicial registrar.

84.11 Appeal incompetent

If leave to appeal is necessary and a notice of appeal is filed before leave has been granted, any person on whom a copy of the notice of appeal has been served may apply for an order dismissing the appeal as incompetent—

(a) in the case of an appeal to the Trial Division, to a Judge of the Court; or

(b) in the case of an appeal to the Court of Appeal, to a Judge of Appeal.

84.12 Appeal does not operate as stay

Except so far as the Court otherwise orders, an appeal under Rule 84.05 shall not operate



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as a stay of execution or of proceedings under the determination by the judicial registrar.

84.13 Judicial registrar may act for another

If circumstances so require, a judicial registrar may hear and determine an application instead of the judicial registrar by whom it would otherwise be heard and determined.

__________________".

12 Forms for Order 61 amended

(1) In Form 61A of the Principal Rules—

(a) omit "TO ASSOCIATE JUDGE";

(b) for "made to an Associate Judge" substitute "made to *an Associate Judge/*a judicial registrar";

(c) at the end of the Form insert "*Delete if not applicable".

(2) In Form 61B of the Principal Rules—

(a) omit "TO ASSOCIATE JUDGE";

(b) for "made to an Associate Judge" substitute "made to *an Associate Judge/*a judicial registrar";


(3) In Form 61E of the Principal Rules—

(a) omit "BY ASSOCIATE JUDGE";

(b) for "Associate Judge" (where first occurring) substitute "*Associate Judge/*Judicial Registrar";



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(c) for "the Associate of the Associate Judge" substitute "*an Associate Judge/*a judicial registrar";

(d) at the end of the Form insert "*Delete if not applicable".

(4) In Form 61F of the Principal Rules—

(a) for "To Associate Judge" substitute "To *Associate Judge/*Judicial Registrar";

(b) at the end of the Form insert "*Delete if not applicable".

(5) In Form 61G of the Principal Rules—

(a) for "Associate Judge" (where first and secondly occurring) substitute "*Associate Judge/*Judicial Registrar";

(b) for "Associate Judge" (where thirdly occurring) substitute "*Associate Judge/*Judicial Registrar";


(6) In Form 61H of the Principal Rules—

(a) after "an Associate Judge" (where twice occurring) insert "or a judicial registrar";

(b) for "On 20 Associate Judge" (where twice occurring) substitute "On 20 *Associate Judge/*Judicial Registrar";

(c) for "the Associate Judge" (wherever occurring) substitute "the *Associate Judge/*judicial registrar";

(d) at the end of the Form insert "*Delete if not applicable".

(7) In Form 61L of the Principal Rules—



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(a) for "Associate Judge" substitute "*Associate Judge/*Judicial Registrar";


(8) In Form 61P of the Principal Rules—



(9) In Form 61R of the Principal Rules—



13 New Form 84A

After Form 83K of the Principal Rules insert—

"FORM 84A

Rule 84.08(5)(a)

NOTICE OF ADDRESS FOR SERVICE

[Heading as in notice of appeal]

The address in Victoria for service of [full name of person or party] is:

[If the person or party is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person or party] is:

Dated:

[signed]

__________________".

__________________



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15

PART 3—AMENDMENT OF CHAPTER V

14 RedCrest Corporations List

In Rule 2.1.1(1) of the Supreme Court (Corporations) Rules 20132 after "Order 16," insert "or by a judicial registrar pursuant to Part 3 of Order 16 or Rule 16B.2(1),".

15 Heading to Rule 5.9 amended

In the heading to Rule 5.9 of the Supreme Court (Corporations) Rules 2013 after "Judge" insert "or judicial registrar".

16 Rule 5.9 amended

In Rule 5.9 of the Supreme Court (Corporations) Rules 2013—

(a) in paragraph (a), after "an Associate Judge" insert "or a judicial registrar";

(b) in paragraphs (a) and (b), after "the Associate Judge" insert "or the judicial registrar, as the case requires".

17 Heading to Part 3 of Order 16 amended

In the heading to Part 3 of Order 16 of the Supreme Court (Corporations) Rules 2013 omit "AND OPPRESSION".

18 Rule 16.8 substituted

For Rule 16.8 of the Supreme Court (Corporations) Rules 2013 substitute—

"16.8 Application to Associate Judge or judicial registrar

Every application to which this Part applies must, unless the Court otherwise orders, be made in the first instance to either an Associate Judge or a judicial registrar, as the application may be listed.



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Note

See also section 113C of the Supreme Court Act 1986 as to the assignment of duties to a judicial registrar and section 113L of that Act as to the performance of duties by a judicial registrar.".

19 Heading to Rule 16.9 amended

In the heading to Rule 16.9 of the Supreme Court (Corporations) Rules 2013 after "Judge" insert "or judicial registrar".

20 Rule 16.9 amended

(1) In Rule 16.9 of the Supreme Court (Corporations) Rules 2013—

(a) in paragraph (1), after "Associate Judge" insert "or the judicial registrar, as the case requires,";

(b) in paragraph (2)—

(i) after "The Associate Judge" insert "or the judicial registrar, as the case requires,"; and

(ii) omit "if the Associate Judge is";

(c) in paragraph (3), after "Associate Judge" insert "or the judicial registrar";

(d) in paragraph (4), for "If" substitute "In the case of an application to an Associate Judge, if".

(2) At the foot of Rule 16.9(4) of the Supreme Court (Corporations) Rules 2013 insert the following note—"Note

In relation to an application to a judicial registrar, see section 113L of the Supreme Court Act 1986.".



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(3) In Rule 16.9(5) of the Supreme Court (Corporations) Rules 2013, after "Associate Judge" insert "or a judicial registrar".

21 New Order 16B inserted

After Order 16A of the Supreme Court (Corporations) Rules 2013 insert—

"ORDER 16B—POWERS OF JUDICIAL REGISTRARS

16B.1 Powers of Associate Judges not limited by powers of judicial registrars

Nothing in this Order limits any power of an Associate Judge under these Rules.

16B.2 Powers of judicial registrars

(1) A judicial registrar may hear and determine any matter consisting of the exercise of any power conferred on the Court, a Judge of the Court or an Associate Judge by any provision listed in column 1 of Schedule 2A, subject to any qualification set out in that column.

(2) The descriptions in column 2 of Schedule 2A are inserted for convenience of reference only and do not affect the operation of this Rule.

(3) A judicial registrar may also hear and determine any application under these Rules referred, by order, to a judicial registrar by a Judge of the Court or an Associate Judge, subject to any directions contained in the order referring the application.

16B.3 Matters within judicial registrars' jurisdiction not to be brought before Judge of the Court except in certain cases



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If these Rules authorise a matter to be dealt with by a judicial registrar, the matter may only be brought before a Judge of the Court—

(a) pursuant to section 113L of the Supreme Court Act 1986;

(b) on appeal from the judicial registrar (where an appeal lies to a Judge of the Court);

(c) by special leave of a Judge of the Court; or

(d) upon the trial of a proceeding.

16B.4 Judicial registrar may constitute Court

(1) In hearing and determining any matter or class of matter which a judicial registrar is empowered or authorised by these Rules to hear and determine—


(b) all the powers of the Court in relation to the hearing and determining of such a matter are delegated to the judicial registrar.

(2) In hearing and determining a matter referred to a judicial registrar under Rule 16B.2(3)—


(b) subject to any directions in the order referring the matter, all the powers of the Court in relation to the hearing and determining of such a matter are delegated to the judicial registrar.

16B.5 Judicial registrar not to hear complaint for offence



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Nothing in these Rules confers jurisdiction on a judicial registrar to hear and determine a complaint for an offence.

16B.6 Appeal of decision of judicial registrar

Rules 84.05 to 84.12 of Chapter I of the Rules of the Supreme Court apply, with any necessary modification, to a judgment, order or direction of a judicial registrar given or made under these Rules.

__________________".

22 New Schedule 2A inserted

After Schedule 2 to the Supreme Court (Corporations) Rules 2013 insert—

"SCHEDULE 2ARule 16B.2

POWERS OF THE COURT THAT MAY BE EXERCISED BY A JUDICIAL REGISTRAR

Item No.

Column 1Provision

Column 2Description

THE ASIC ACT

1 s. 79(4) To extend time for service of notice.

THE CORPORATIONS ACT

2 s. 425 To fix remuneration of receiver.

3 s. 440A To adjourn winding up application where company under administration.

4 s. 449E(1)(c) and (1A)(c)

To determine the remuneration of an administrator.

5 s. 449E(2) For review etc. of administrator's remuneration.

6 s. 459P(2) For leave to apply for winding up.



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7 s. 459R For extension of time for determination of application for winding up in insolvency.

8 s. 459S For leave to company to oppose application.

Item No.

Column 1Provision

Column 2Description

9 s. 465B(1) For order substituting applicant.

10 s. 473(2) Determination of provisional liquidator's remuneration.

11 s. 473(3), (5) and (6) Determination or review of liquidator's remuneration.

12 s. 484(2)(b) To fix remuneration of a special manager.

13 s. 596A For mandatory examination.

14 s. 596B For discretionary examination.

15 s. 596F(1)(a) For directions about matters to be inquired into at examination.

16 s. 596F(1)(b) to (g) For directions about examination.

17 s. 597(5B) To put, or allow to be put, questions to a person being examined.

18 s. 597(7) For direction to answer question.

19 s. 597(9) (if examination before the judicial registrar)

For direction to produce books.


For order that questions and answers be recorded in writing, and that person sign that written record.


For direction for examination to be held before another court.


To adjourn the examination from time to time.

23 s. 597A For mandatory affidavit.

24 s. 597B (if examination before the judicial registrar)

For costs of unnecessary examination.

__________________".



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Dated: 26 February 2015

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PAMELA TATE, J.A.

SIMON P. WHELAN, J.A.

PHILLIP PRIEST, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

EMILIOS KYROU, J.A.

ANNE FERGUSON, J.A.

STEPHEN KAYE, J.A.

KIM HARGRAVE, J.

ANTHONY CAVANOUGH, J.

ROSS ROBSON, J.

JACK FORREST, J.

JAMES JUDD, J.

PETER VICKERY, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

M. L. SIFRIS, J.

PETER ALMOND, J.

JOHN DIXON, J.

C. MACAULAY, J.

KATE McMILLAN, J.

GREG GARDE, J.



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JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

M. J. CROUCHER, J.

JOANNE CAMERON, J.

MICHAEL McDONALD, J.

RITA ZAMMIT, J.═══════════════



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ENDNOTES

Endnotes


24

1 Rule 4: S.R. No. 148/2005. Reprint No. 5 as at 11 October 2013. Reprinted to S.R. No. 119/2013. Subsequently amended by S.R. Nos 146/2013, 147/2013, 148/2013, 48/2014, 204/2014, 205/2014, 206/2014 and 209/2014.

2 Rule 14: S.R. No. 112/2013 as amended by S.R. No. 48/2014.

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Supreme Court (Judicial Registrars Amendment) Rules …FILE/15-010sr.docx · Web viewSupreme Court (Judicial Registrars Amendment) ... (4)Despite paragraph (1), ... Supreme Court