County Court (Chapter I Amendment No. 10) Rules 2015FILE/15-129sr.docx · Web viewOCPC-VIC, Word...

County Court (Chapter I Amendment No. 10) Rules 2015

S.R. No. 129/2015

TABLE OF PROVISIONSRule Page

1 Object 12 Authorising provisions 13 Commencement 14 Principal Rules 15 Revocations 26 Definitions 27 Effect of non-compliance 28 Application to set aside for irregularity 29 Proceedings after a year 310 Office hours 311 Urgent case 312 Service on particular defendants 313 How ordinary service effected 314 Identity of person served 315 Acceptance of service by solicitor 416 Service of other process by leave 417 Application for leave 418 Rule 8.09 substituted 419 Addition, removal, substitution of party 520 Defendant dead at commencement of proceeding 521 When counterclaim allowed 522 Stay of claim 523 Time for appearance 524 Other requirements for service 625 Appearance by third party 626 Counterclaim by third party 627 Default by third party 628 Claim against another party 629 Fourth and subsequent parties 630 Counterclaim 731 Definitions for Order 12 732 Sheriff's interpleader 733 Admission of claim 734 Interpleader summons 735 Neutrality of applicant 736 Trial of interpleader question 7

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37 Content of pleading 838 Matter which must be pleaded 839 Particulars of pleading 840 Admission and denials 841 Denial by joinder of issue 942 Counterclaim 943 Heading to Order 15 amended 944 Definitions for Order 15 945 Litigation guardian of person under disability 946 Appointment of litigation guardian 947 Discovery 1048 Execution against money in court 1049 Counterclaim and claim by third party notice 1050 Representation of unascertained persons 1051 Appearance under objection of person sued as partner 1052 Enforcement of judgment 1153 Charge on partner's interest 1154 Effect of judgment 1155 Solicitor ceasing to act 1156 Removal of solicitor from record 1157 Address for service 1158 Judgment for recovery of debt, damages or property 1259 Stay or judgment in proceeding 1260 Rule 24.01 substituted 1261 Counterclaim and third party claim 1262 Inherent jurisdiction 1263 Discontinuance or withdrawal of proceeding or claim 1364 Heading to Order 26 amended 1365 Heading to Part 2 of Order 26 amended 1366 Disclosure of offer to court 1367 Party under disability 1368 Heading of document 1369 Form of document 1370 Seal of Court 1371 New Rule 28.04A inserted 1472 Inspection of documents 1473 Documents that may not be filed electronically 1474 Scope of discovery 1475 Notice for discovery 1476 Rule 29.03 substituted 1577 Co-defendants and third party 1578 Default notice 1579 Default on discovery 1580 Source for answers to interrogatories 1581 Who to answer interrogatories 1582 Default notice 1583 Non-compliance with order 16

84 Effect of consent 1685 Party an applicant, inspection of documents and direction of

documents 1686 Counterclaim 1687 Expenses 1688 No evidence unless disclosed in report 1689 Voluntary admission of facts 1690 General 1691 Amendment of judgment or order 1792 Payment into Court in discharge of lien 1793 Default by receiver 1794 Deposition as evidence 1795 Attendance and production 1796 Objection 1797 Authentication and filing 1798 Report of examiner 1799 Heading to Order 41A substituted 18100 Payment of costs 18101 Application of Order 42A 18102 Objection by party to inspection by other party 18103 Removal of document 18104 Return or disposal of document 18105 Form of affidavit 18106 Affidavit by illiterate or blind person 19107 Application of Order 44 19108 Report of expert 19109 No evidence unless disclosed in report 19110 Pre-trial conferences 20111 Procedure on assessment 20112 Value of goods 20113 Restrictive covenant 20114 Heading to Rule 53.01 amended 20115 Parties 20116 Judgment in administration proceeding 20117 Mortgage, exchange or partition 21118 Date of effect 21119 Time for compliance 21120 Consent judgment or order by filing 22121 Minor amendments to Order 60A 22122 Rule 61.01 substituted 22123 Application under section 6 or section 8 23124 Instalment agreement under section 7 23125 When security for costs may be ordered 23126 Heading to Order 64A amended 23127 Attendance of natural person 23128 Attendance of corporation 23129 Attendance before another court etc. 24

130 Contempt 24131 Order in aid of enforcement 24132 Definitions for Order 67 24133 Definitions for Order 68 24134 Duration 24135 Provision for enforcing payment of money 25136 Definitions for Order 69 25137 Minor amendments to Order 69 25138 Removal of goods on warrant of possession 25139 Definitions and application of Order 71 26140 Bank account 26141 Evidence on application for garnishee summons 26142 Money in court 26143 Attendance of or information about judgment debtor 26144 Contents of order 27145 Determination of earnings 27146 Definitions for Order 73 27147 Effect of service of summons 27148 Order charging funds in court 27149 Stop order for funds in court 28150 Stop notice on corporation stock not in court 28151 Prohibition of transfer of or payment on stock 28152 Contempt in face of the Court and arrest of respondent 28153 Arrest pending contempt hearing 28154 Discharge 29155 Application of money 29156 Notice of application for suppression order 29157 Minor amendments to Order 5 Forms 29158 Form 7A substituted 30159 Minor amendments to Forms 8B, 10B, 11A and 11B 30160 Notice of claim to goods taken in execution 31161 Notice of a constitutional matter 31162 Form 28 substituted 31163 Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and

35B 32164 Form 39A substituted 33165 Order for examination out of Victoria 34166 Form 41AA substituted 34167 Minor amendments to Forms 45A, 46A, 48A, 48B, 53B, 59A,

60A and 60D 35168 Order 61 Forms amended 36169 Form 61N substituted 38170 Minor amendments to Forms 61P and 61Q 38171 Form 61R substituted 39172 Application for copy of judge's notes 39173 Minor amendments to Forms 68A, 68B, 68C, 71A, 72A, 72B,

72E, 72F, 72G and 72H 39

174 Form 72K substituted 40175 Notice of cessation of attachment of earnings order 40176 Minor amendments to Forms 73A, 73C, 75A, 75B and 75BA 41177 Form 75C substituted 41

Schedule 1—Revoked Statutory Rules 42

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Endnotes 44

STATUTORY RULES 2015

S.R. No. 129/2015

County Court Act 1958

County Court (Chapter I Amendment No. 10) Rules 2015

A majority of the Judges of the County Court makes the following Rules:

1 Object

The object of these Rules is to amend Chapter I of the Rules of the County Court—

(a) to enable greater use of electronic filing by parties in civil matters; and

(b) to ensure that, as far as possible, that Chapter is consistent with the recently remade Chapter I of the Rules of the Supreme Court; and

(c) as a consequence of the commencement of the Legal Profession Uniform Law Application Act 2014.

2 Authorising provisions

These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.

3 Commencement

These Rules come into operation on 23 November 2015.

4 Principal Rules

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In these Rules, the County Court Civil Procedure Rules 20081 are called the Principal Rules.

5 Revocations

The Rules listed in Schedule 1 are revoked.

6 Definitions

(1) In Rule 1.13(1) of the Principal Rules—

(a) insert the following definitions—

"CITEC Confirm means the authorised provider of civil electronic filing services as in operation in the Court from time to time;

sheriff includes—

(a) the sheriff employed under section 6 of the Sheriff Act 2009; and

(b) any person to whom a warrant referred to in these Rules is directed;";

(b) the definition of solicitor is revoked.

(2) In Rule 1.13(2)(a) of the Principal Rules omit "and".

(3) In Rule 1.13(3) of the Principal Rules, for "If by these Rules a form is prescribed" substitute "If these Rules prescribe a form".

7 Effect of non-compliance

(1) In Rule 2.01(1) of the Principal Rules, for "or a" substitute "or any".

(2) In Rule 2.01(1) and (2)(b) of the Principal Rules, for "therein" substitute "in the proceeding".

8 Application to set aside for irregularity

In Rule 2.03 of the Principal Rules, for "therein" substitute "in any proceeding".

County Court (Chapter I Amendment No. 10) Rules 2015S.R. No. 129/2015

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9 Proceedings after a year

In Rule 3.06 of the Principal Rules, for "his" substitute "that party's".

10 Office hours

In Rule 3.09 of the Principal Rules, for "shall be" substitute "are".

11 Urgent case

In Rule 4.08 of the Principal Rules—

(a) omit "the Court may,";

(b) after "directs," insert "the Court may".

12 Service on particular defendants

For Rule 6.04(d)(i) and (ii) of the Principal Rules substitute—

"(i) on the Attorney-General of the Commonwealth; or

(ii) on a person appointed by the Attorney-General to receive service in accordance with section 63 of the Judiciary Act 1903 of the Commonwealth;".

13 How ordinary service effected

(1) In Rule 6.07(1)(b) of the Principal Rules, for "his" substitute "the person's".

(2) In Rule 6.07(2)(a) of the Principal Rules, for "his or her" substitute "the individual's".

14 Identity of person served

In Rule 6.08 of the Principal Rules, for "his identity or that he holds some office is evidence of his identity or that he" substitute "that person's identity or that the person holds some office is evidence of that person's identity or that the person".


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15 Acceptance of service by solicitor

In Rule 6.09(2) of the Principal Rules, for "shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been served on the person on the day the solicitor made the note." substitute "shall be taken to have been served on the person on the day the solicitor made the note, unless the solicitor is shown not to have had authority to accept service.".

16 Service of other process by leave

In Rule 7.06(a)(ii) of the Principal Rules, for "his or her" substitute "that person's".

17 Application for leave

For Rule 7.08(4) of the Principal Rules substitute—

"(4) Where any document is served out of Australia by order of the Court made under Rule 7.06 or 7.07, the following shall be served with the document—

(a) a copy of the order, a copy of any affidavit made in support of the application for the order; and

(b) unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit.".

18 Rule 8.09 substituted

For Rule 8.09 of the Principal Rules substitute—

"8.09 Setting aside writ or originating motion

Notwithstanding Rule 8.08, the Court, on application made by the defendant before filing an appearance, whether conditional or not, may exercise its jurisdiction to—


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(a) set aside a writ or originating motion or its service;

(b) make an order under Rule 46.08; or

(c) stay a proceeding.".

19 Addition, removal, substitution of party

In Rule 9.06(b) of the Principal Rules omit ", namely".

20 Defendant dead at commencement of proceeding

In Rule 9.08(4) of the Principal Rules, after "A proceeding" insert "commenced".

21 When counterclaim allowed

In Rule 10.02(3) of the Principal Rules, for "his" substitute "the defendant's".

22 Stay of claim

In Rule 10.07 of the Principal Rules, for "his" substitute "the defendant's".

23 Time for appearance

For Rule 11.03(2)(b) of the Principal Rules substitute—

"(b) where the notice is to be served out of Victoria—

(i) the time limited by Rule 8.04(b), (c), (d) or (e) in the case of appearance by a defendant to a writ, whichever is appropriate; or

(ii) the time limited by any order of the Court authorising service of the notice.".


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24 Other requirements for service

In Rule 11.07(5) of the Principal Rules, for paragraphs (a) to (c) substitute—

"(a) any order or consent under Rule 11.05(2);

(b) any order under paragraph (2) of this Rule made before the third party notice was filed fixing a period for service of the notice;

(c) any order under paragraph (3) of this Rule;

(d) the writ or other originating process;

(e) any pleadings or affidavits filed and served in the proceeding.".

25 Appearance by third party

In Rule 11.08(3) of the Principal Rules omit "shall".

26 Counterclaim by third party

In Rule 11.10(1) of the Principal Rules, for "shall apply" substitute "applies".

27 Default by third party

In Rule 11.11(2) of the Principal Rules, after "order" insert "as".

28 Claim against another party

(1) In Rule 11.15(2) of the Principal Rules, for "shall" substitute "does".

(2) In Rule 11.15(3) of the Principal Rules, for "shall apply" substitute "applies".

29 Fourth and subsequent parties



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30 Counterclaim


(a) for "shall" substitute "applies";

(b) omit "apply".

31 Definitions for Order 12

In Rule 12.01 of the Principal Rules the definition of sheriff is revoked.

32 Sheriff's interpleader

In Rule 12.03(1) of the Principal Rules, for "his" substitute "that person's".

33 Admission of claim


(a) in paragraph (b), after "claimed;" insert "and";

(b) in paragraph (c)—

(i) omit "the Court";

(ii) before "may" insert "the Court".

34 Interpleader summons

In Rule 12.07(1) of the Principal Rules—

(a) omit "the Court may";

(b) after "withdrawn," insert "the Court may".

35 Neutrality of applicant

(1) In Rule 12.10(2)(a) of the Principal Rules, for "mentioned" substitute "referred to".

(2) In Rule 12.10(3) of the Principal Rules, for "shall affect" substitute "affects".

36 Trial of interpleader question



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37 Content of pleading

In Rule 13.02(1)(b) of the Principal Rules, after "on;" insert "and".

38 Matter which must be pleaded

In Rule 13.07(2)(b) of the Principal Rules, for "is in possession of the land by himself or herself or the defendant's tenant" substitute "or the defendant's tenant is in possession of the land".

39 Particulars of pleading


"(3) Without limiting paragraph (1), every pleading shall contain particulars of any—

(a) misrepresentation, fraud, breach of trust, wilful default or undue influence which is alleged; or

(b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice which is alleged.".

40 Admission and denials

(1) In Rule 13.12(1) of the Principal Rules, for "(4)" substitute "(3)".

(2) For Rule 13.12(2) to (4) of the Principal Rules substitute—

"(2) Where the party pleading intends to prove facts which are different to those pleaded by the opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts the party intends to prove.


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(3) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be taken to be denied unless specifically admitted.".

41 Denial by joinder of issue

In Rule 13.13(4) of the Principal Rules, for "shall operate" (where twice occurring) substitute "operates".

42 Counterclaim



(b) omit "apply".

43 Heading to Order 15 amended

In the heading to Order 15 of the Principal Rules, for "PERSON" substitute "PERSONS".


In Rule 15.01 of the Principal Rules, in the definition of handicapped person, for "his or her" substitute "that person's".

45 Litigation guardian of person under disability

In Rule 15.02(1) and (2) of the Principal Rules, for "his or her" substitute "the person's".

46 Appointment of litigation guardian

(1) For Rule 15.03(1) of the Principal Rules substitute—

"(1) A person may be a litigation guardian of a person under disability if the first-mentioned person—

(a) is not a person under disability; and

(b) has no interest in the proceeding adverse to that of the person under disability.".


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(2) In Rule 15.03(6)(b)(ii) of the Principal Rules omit "said".

47 Discovery

In Rule 15.07(2) of the Principal Rules, for "his or her" substitute "the person's".

48 Execution against money in court

In Rule 15.09(1)(c) of the Principal Rules, for "thereof" substitute "of the money".

49 Counterclaim and claim by third party notice

In Rule 15.10 of the Principal Rules, for "shall apply" substitute "applies".

50 Representation of unascertained persons

(1) In Rule 16.01(2)(c) of the Principal Rules, for "thereof" substitute "of the class".

(2) In Rule 16.01(3) of the Principal Rules, after "judgment or" insert "an".

51 Appearance under objection of person sued as partner


"(1) A person served with originating process as a partner may file an appearance stating—

(a) that the person does so as a person served as a partner; and

(b) that the person denies that the person was a partner at any material time or is liable as such.".

(2) In Rule 17.06(3)(b) of the Principal Rules—

(a) in subparagraph (i), for "he or she" substitute "the person";

(b) in subparagraph (ii), for "his or her" substitute "the person's".


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52 Enforcement of judgment


(a) after "given or" insert "an";

(b) for paragraph (b)(iii) substitute—

"(iii) admitted in the person's pleading that the person is a partner; or".

(2) In Rule 17.07(2) of the Principal Rules, after "a judgment or" insert "an".

53 Charge on partner's interest

In Rule 17.11(4) of the Principal Rules, after "or" insert "an".

54 Effect of judgment

In Rule 18.04(1) of the Principal Rules, after "given or" insert "an".

55 Solicitor ceasing to act

In Rule 20.03(3)(b) of the Principal Rules, after "trial;" insert "or".

56 Removal of solicitor from record

In Rule 20.04(1)(a)(i) of the Principal Rules omit "or" (where thirdly occurring).

57 Address for service

(1) In Rule 20.05(1)(a) of the Principal Rules, for "his" substitute "the party's".


"(2) The Court may by order direct what address shall be the address for service of a party for whom a solicitor has ceased to act where the Court—


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(a) under Rule 20.03(3) or (4) gives a solicitor leave to file notice that the solicitor has ceased to act; or

(b) under Rule 20.04(1) by order declares that a solicitor has ceased to act.".

58 Judgment for recovery of debt, damages or property

In Rule 21.03(1.2) of the Principal Rules, for "shall" substitute "does".

59 Stay or judgment in proceeding


(a) in paragraph (b), for "(b)" substitute "(a)";

(b) in paragraph (c), for "(c)" substitute "(b)".



"24.01 Judgment on dismissal

The Court may order that a proceeding be dismissed for want of prosecution if the plaintiff—

(a) being required to serve a statement of claim, fails to do so within the time limited; or

(b) being entitled under Rule 48.02 to set the proceeding down for trial, does not do so within 28 days after the time the plaintiff becomes entitled.".

61 Counterclaim and third party claim


62 Inherent jurisdiction

In Rule 24.05 of the Principal Rules, for "shall affect" substitute "affects".


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63 Discontinuance or withdrawal of proceeding or claim

In Rule 25.02(4) of the Principal Rules, for "his" substitute "the defendant's".

64 Heading to Order 26 amended

In the heading to Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".

65 Heading to Part 2 of Order 26 amended

In the heading to Part 2 of Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".

66 Disclosure of offer to court

In Rule 26.05(3) of the Principal Rules, for "shall" substitute "do".

67 Party under disability

In Rule 26.06 of the Principal Rules, for "him or her and no acceptance by him or her" substitute "a person under disability and no acceptance by a person under disability".

68 Heading of document

In Rule 27.02(6) of the Principal Rules, after "judgment or" insert "an".

69 Form of document

In Rule 27.03(12) of the Principal Rules, for "and telephone number" substitute ", telephone number and email address".

70 Seal of Court

In Rule 28.04(1) of the Principal Rules, for "his or her" substitute "that person's".


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71 New Rule 28.04A inserted

After Rule 28.04 of the Principal Rules insert—

"28.04A Requirements for seal of the Court if electronic filing used

(1) The seal of the Court shall not be required to be affixed to any document prior to it being uploaded into CITEC Confirm.

(2) The affixing by CITEC Confirm of an electronic watermark or electronic stamp containing a facsimile of the seal of the Court to a document filed in CITEC Confirm is sufficient compliance with any requirement of these Rules or any order of the Court that the document be sealed with the seal of the Court.

(3) This Rule applies despite anything to the contrary in Rule 28.04.".

72 Inspection of documents

In Rule 28.05(1) of the Principal Rules, for "may, on payment of the proper fee," substitute ", on payment of the proper fee, may".

73 Documents that may not be filed electronically

In Rule 28.13(1)(a) of the Principal Rules, after "any" insert "rules or".

74 Scope of discovery

In Rule 29.01.1(4)(b) of the Principal Rules, for "his, her or its" substitute "the party's".

75 Notice for discovery


(a) omit "may";

(b) after "those parties" insert ", may".


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"29.03 Discovery after notice

A party upon whom a notice for discovery is served shall make discovery of documents within 42 days after the later of—

(a) service of the notice; or

(b) the day upon which the notice is taken by virtue of Rule 29.02(3) to have been served.".

77 Co-defendants and third party


78 Default notice

In Rule 29.12.1(4) of the Principal Rules, for "shall apply" substitute "applies".

79 Default on discovery

In Rule 29.14(3) of the Principal Rules, for "thereof" substitute "of the order".

80 Source for answers to interrogatories

In Rule 30.05(1)(g) of the Principal Rules, for "shall apply" substitute "applies".

81 Who to answer interrogatories

In Rule 30.08(1)(a)(ii) of the Principal Rules, for "his or her" substitute "that person's".

82 Default notice

In Rule 30.09.1(4) of the Principal Rules, for "shall apply" substitute "applies".


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83 Non-compliance with order

In Rule 30.10(3) of the Principal Rules, for "thereof" substitute "of the order".

84 Effect of consent

In Rule 31.05(b) and (c)(ii) of the Principal Rules, for "shall apply" substitute "applies".

85 Party an applicant, inspection of documents and direction of documents

In Rules 32.04, 32.06, 32.09 and 32.10 of the Principal Rules, for "shall apply" substitute "applies".

86 Counterclaim


87 Expenses


(a) omit "shall";

(b) after "examined," insert "shall".

88 No evidence unless disclosed in report

In Rule 33.12 of the Principal Rules, for "Save" substitute "Except".

89 Voluntary admission of facts


(a) omit "may";

(b) after "Court," insert "may".

90 General


(a) for "The Court may, notwithstanding" substitute "Notwithstanding";

(b) after "commenced," insert "the Court may".


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(2) In Rule 36.01(8) of the Principal Rules, for "shall apply" substitute "applies".

(3) In Rule 36.01(9) of the Principal Rules, after "or" insert "an".

91 Amendment of judgment or order

In Rule 36.07 of the Principal Rules, before "order" (where twice occurring) insert "an".

92 Payment into Court in discharge of lien


93 Default by receiver


(a) omit "may" (where second occurring);

(b) after "into court," insert "may".

94 Deposition as evidence

In Rule 40.07(1)(b)(ii) of the Principal Rules, for "his or her" substitute "the deponent's".

95 Attendance and production

In Rule 40.12 of the Principal Rules, for "him or her" substitute "the person".

96 Objection

In Rule 41.06 of the Principal Rules omit "shall".

97 Authentication and filing

(1) In Rule 41.08(3) of the Principal Rules, for "him or her" substitute "the examiner".

(2) In Rule 41.08(6) of the Principal Rules, for "shall" substitute "do".

98 Report of examiner

In Rule 41.09 of the Principal Rules, for "him" substitute "the examiner".


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99 Heading to Order 41A substituted

For the heading to Order 41A of the Principal Rules substitute "APPLICATION TO USE AUDIO VISUAL OR AUDIO LINK".

100 Payment of costs

In Rule 41A.06 of the Principal Rules—

(a) after "amount" insert "(if any)";

(b) after "regulations" insert "(if any)".

101 Application of Order 42A

In Rule 42A.01(1) of the Principal Rules, for "Rule" substitute "Order".

102 Objection by party to inspection by other party

In Rule 42A.08(2) of the Principal Rules, for "his or her" substitute "the plaintiff's".

103 Removal of document

In Rule 42A.11(3) of the Principal Rules, for "his or her" substitute "the Registrar's".

104 Return or disposal of document

(1) In Rule 42A.12(1)(a) and (2) of the Principal Rules, for "his or her" substitute "the Registrar's".

(2) In Rule 42A.12(3)(b) of the Principal Rules, for "his or her" substitute "the plaintiff's".

105 Form of affidavit

(1) In Rule 43.01(2) and (3) of the Principal Rules—

(a) for "his or her" substitute "the deponent's";

(b) for "he or she" substitute "the deponent".

(2) In Rule 43.01(7) of the Principal Rules, for "his or her" (where twice occurring) substitute "the person's".


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106 Affidavit by illiterate or blind person


(a) for "he or she" substitute "the person";

(b) in paragraph (a), for "his or her" substitute "the person's";

(c) in paragraph (b), for "him or her" substitute "the person";

(d) in paragraph (c), for "his or her" substitute "the deponent's".

107 Application of Order 44


"(2) This Order does not apply to the evidence of a party who would, if called as a witness at the trial, be qualified to give evidence as an expert in respect of any question in the proceeding.".

108 Report of expert

(1) For Rule 44.03(2)(e) of the Principal Rules substitute—

"(e) in respect of the opinion—

(i) the reasons for it;

(ii) any literature or other materials utilised in support of it; and

(iii) a summary of it.".

(2) In Rule 44.03(3) of the Principal Rules, for "his or her" substitute "the expert's".

109 No evidence unless disclosed in report

In Rule 44.05 of the Principal Rules, for "Save" substitute "Except".


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110 Pre-trial conferences

In Rule 48.12(3) of the Principal Rules, for "him or her" substitute "the person".

111 Procedure on assessment


(a) after "Order 49," insert "applies";

(b) omit "shall apply".

112 Value of goods


(a) after "Order" insert "applies";


113 Restrictive covenant

In Rule 52.09(3) of the Principal Rules, for "he or she" substitute "the Judge or associate judge".

114 Heading to Rule 53.01 amended

In the heading to Rule 53.01 of the Principal Rules, after "Application" insert "of Order".

115 Parties

In Rule 54.03 of the Principal Rules, for "within" substitute "referred to in".

116 Judgment in administration proceeding

For Rule 54.06(2)(a) and (b) of the Principal Rules substitute—

"(a) if it is alleged that no or no sufficient accounts have been furnished by the executors, administrators or trustees, order—

(i) that the proceeding be stayed for a period specified in the order; and


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(ii) that the executors, administrators or trustees shall, within that period, furnish the plaintiff with proper accounts;

(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust—

(i) give judgment or make an order for the administration of the estate or the execution of the trust under the direction of the Court; and

(ii) order that no steps be taken under the judgment or order, or under any account or inquiry directed, without the leave of the Court.".

117 Mortgage, exchange or partition


(a) after "Order" insert "applies";


118 Date of effect

In Rule 59.02 of the Principal Rules, after "judgment given or" insert "an".

119 Time for compliance


(a) omit "may";

(b) after "order," insert "may".


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120 Consent judgment or order by filing

(1) In Rule 59.06(4) of the Principal Rules, after "or" insert "an".

(2) In Rule 59.06(5) of the Principal Rules, after "or" (where first and secondly occurring) insert "an".


121 Minor amendments to Order 60A

(1) In Rule 60A.02(1) of the Principal Rules, after "or" (where first occurring) insert "an".

(2) In Rule 60A.03 of the Principal Rules, after "or" (where first occurring) insert "an".

(3) In Rule 60A.04(3) of the Principal Rules, after "or" insert "an".

(4) In Rule 60A.07(1) of the Principal Rules, after "or" insert "an".

(5) In Rule 60A.08(1) and (2) of the Principal Rules, after "or" (where first occurring) insert "an".

(6) In Rule 60A.08(3) of the Principal Rules, after "or" (where secondly occurring) insert "an".



"61.01 Definitions

(1) In this Order, unless the context or subject matter otherwise requires—

judgment includes a judgment or an order for the payment of money into Court;

the Act means the Judgment Debt Recovery Act 1984.


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(2) In this Order, unless the context or subject matter otherwise requires, references to an order that a judgment debt be paid by instalments include references to an order that any part of the judgment debt be so paid.

(3) The Registrar shall be the proper officer of the Court for the purpose of the Act.".

123 Application under section 6 or section 8

(1) In Rule 61.02(1) of the Principal Rules, after "section 6" insert "of the Act".

(2) In Rule 61.02(3)(a)(i) of the Principal Rules, for "his or her" substitute "the judgment debtor's".

124 Instalment agreement under section 7

In Rule 61.03(2) of the Principal Rules, for "his or her signature" substitute "the witness' signature".

125 When security for costs may be ordered

In Rule 62.02(1)(e) of the Principal Rules, for "his, her or its" substitute "the plaintiff's".

126 Heading to Order 64A amended

In the heading to Order 64A of the Principal Rules omit "OF THE SUPREME COURT".

127 Attendance of natural person

In Rule 66.06(2)(a) of the Principal Rules—

(a) for "his or her" substitute "that person's";

(b) for "his detention" substitute "that person's detention".

128 Attendance of corporation

In Rule 66.07(2)(a) of the Principal Rules, for "his or her" (where twice occurring) substitute "that person's".


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129 Attendance before another court etc.

In Rule 66.08 of the Principal Rules, for "shall, with any necessary modification, apply" substitute "apply, with any necessary modification,".

130 Contempt

In Rule 66.09 of the Principal Rules, for "shall affect" substitute "affects".

131 Order in aid of enforcement

In Rule 66.15(2) of the Principal Rules, for "Sheriff" substitute "sheriff".


In Rule 67.01 of the Principal Rules, for the definition of the material questions substitute—

"the material questions are—

(a) whether any and, if so, what debts are owing to the person bound;

(b) whether the person bound has any and, if so, what other property or means of satisfying the judgment; and

(c) any questions concerning or in aid of the enforcement or satisfaction of the judgment specified in the order for examination or production.".


In Rule 68.01 of the Principal Rules, the definition of Sheriff is revoked.

134 Duration

In Rule 68.05(5) and (6) of the Principal Rules, for "Sheriff" substitute "sheriff".


24

135 Provision for enforcing payment of money



(b) omit "apply".


In Rule 69.01 of the Principal Rules, the definition of Sheriff is revoked.

137 Minor amendments to Order 69

(1) In Rule 69.04(1) and (2) of the Principal Rules, for "Sheriff" (where three times occurring) substitute "sheriff".

(2) In Rule 69.05(1) and (2) of the Principal Rules, for "Sheriff" (where twice occurring) substitute "sheriff".


(4) In Rule 69.06(1) of the Principal Rules, for "Sheriff" (where twice occurring) substitute "sheriff".

(5) In Rule 69.06(2) of the Principal Rules, for "Sheriff" (where three times occurring) substitute "sheriff".

(6) In Rule 69.06(3) and (6) of the Principal Rules, for "Sheriff" (where twice occurring) substitute "sheriff".

(7) In Rule 69.07 of the Principal Rules, for "Sheriff" (where three times occurring) substitute "sheriff".

138 Removal of goods on warrant of possession

In Rule 70.02 of the Principal Rules, for "Sheriff" substitute "sheriff".


25

139 Definitions and application of Order 71

In Rule 71.01(2) of the Principal Rules, for "shall" substitute "does".

140 Bank account


141 Evidence on application for garnishee summons

For Rule 71.05(1)(b) of the Principal Rules substitute—

"(b) that, as the case requires—

(i) a debt is due or accruing to the judgment debtor from the garnishee; or

(ii) a debt will or is likely to become due or accrue to the judgment debtor from the garnishee.".

142 Money in court


(a) for "Where" substitute "Subject to Rule 15.09, where";

(b) for "thereof" substitute "of the money".

(2) Rule 71.13(3) of the Principal Rules is revoked.

143 Attendance of or information about judgment debtor

(1) For Rule 72.04(1)(b)(i) of the Principal Rules substitute—

"(i) the name and address of the judgment debtor's employer or, if the judgment debtor has more employers than one, of each of the judgment debtor's employers;".

(2) In Rule 72.04(5) of the Principal Rules, for "his or her" substitute "the judgment debtor's".


26

144 Contents of order

(1) In Rule 72.05(1) and (3) of the Principal Rules, for "that is to say," substitute "being".

(2) In Rule 72.05(3) of the Principal Rules, for "he or she" substitute "the judgment debtor".

145 Determination of earnings

In Rule 72.15(3) of the Principal Rules, for "shall" substitute "does".


In Rule 73.01 of the Principal Rules, for the definition of securities substitute—

"securities means—

(a) any stock issued by or any funds of or annuity granted by the Commonwealth or by any State of the Commonwealth or any Territory; and

(b) any stock of any corporation registered or formed under any general Commonwealth Act or under any general Act of any State of the Commonwealth or any Territory; and

(c) any dividend or interest payable on any stock referred to in paragraph (a) or (b);".

147 Effect of service of summons

In Rule 73.07(1)(b) of the Principal Rules, for "thereon" substitute "on any of those securities".

148 Order charging funds in court

(1) In Rule 73.11(1) of the Principal Rules, for "For" substitute "Subject to Rule 15.09, for".

(2) Rule 73.11(4) of the Principal Rules is revoked.


27

149 Stop order for funds in court


(a) for "thereof" substitute "of funds in court";

(b) for "thereon" substitute "on funds in court".

150 Stop notice on corporation stock not in court


"(1) In this Rule and the following Rules of this Order, corporation means any corporation registered or formed under any general Commonwealth Act or under any general Act of any State of the Commonwealth or any Territory.".


(a) for "(in this and the following Rules called the claimant)" substitute "(the claimant)";

(b) for "thereon" substitute "on the stock";

(c) in paragraph (a)(i), for "therein" substitute "in the stock".

151 Prohibition of transfer of or payment on stock

In Rule 73.16(1) of the Principal Rules, for "thereon" substitute "on the stock".

152 Contempt in face of the Court and arrest of respondent

In Rules 75.02(3)(a) and 75.08(3)(a) of the Principal Rules, for "Sheriff" substitute "sheriff".

153 Arrest pending contempt hearing

(1) In Rule 75.08.1(1B)(a) of the Principal Rules, for "Sheriff" substitute "sheriff".


28

(2) In Rule 75.08.1(2)(b) of the Principal Rules—

(a) for "he or she" substitute "the person";

(b) for "his or her" substitute "the person's".

154 Discharge

In Rule 75.12 of the Principal Rules, for "his or her" substitute "the respondent's".

155 Application of money

In Rule 79.02(2) and (3) of the Principal Rules, for "thereof" substitute "of the money".

156 Notice of application for suppression order


(a) in paragraph (a), for "must" substitute "shall";

(b) in paragraph (b), for "must" substitute "is to".

157 Minor amendments to Order 5 Forms

(1) In Forms 5A, 5B, 5C, 5D and 5E of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

(2) In Form 5D of the Principal Rules, for "e.g. 20 June, 20" substitute "insert date".

(3) In Form 5E of the Principal Rules, for "e.g. 20 June 20" substitute "insert date".


29

158 Form 7A substituted

For Form 7A of the Principal Rules substitute—

"RULE 7.13(2)

FORM 7A

LETTER OF REQUEST FOR SERVICE OF DOCUMENT

[heading as in originating process]

To

A civil proceeding is now pending in the County Court of Victoria in which is plaintiff and is defendant and in which the plaintiff claims

And in order that the matters in dispute between the parties in the proceeding may be duly determined it is necessary that [describe the document] be served on and it has been made to appear that is a national of and is domiciled or resident in at

I the Registrar of the County Court of Victoria request that for the reasons stated above and for the assistance of the Court you will be pleased to cause the document [and a translation of it], [both of] which I send to you with this request, to be served on of

And I inform you that proper arrangements have been made by the Court and by the Commonwealth of Australia for the reimbursement of any expenses incurred in carrying out the service requested.

And I further inform you that legal assistance with respect to the service of documents in the State of Victoria can be given by this Court at the request of a foreign court if that request is duly transmitted to the Attorney-General of the State of Victoria.

Dated [insert date].

Registrar of the County Courtof the State of Victoria.

_______________".

159 Minor amendments to Forms 8B, 10B, 11A and 11B

In Forms 8B, 10B, 11A and 11B of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".


30

160 Notice of claim to goods taken in execution

In Form 12A of the Principal Rules—

(a) for "Sheriff" (where first, second, third, fourth, fifth, sixth and seventh occurring) substitute "sheriff";

(b) for "e.g. 15 June 20" substitute "insert date".

161 Notice of a constitutional matter

In Form 19A of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

162 Form 28 substituted

For Form 28 of the Principal Rules substitute—"RULE 28.11(2)

FORM 28

FILING CONFIRMATION NOTICE

IN THE COUNTY COURT

OF VICTORIA

AT [court location]

To [name of firm or legal practitioner]

An electronic copy of the following document—

[document name]

was filed in the County Court in this proceeding under Part 2 of Order 28 on [date/time].


31

CASE DETAILS

Case Number: [case number]

Case Description: [case description]

Court Location: [court location]

Case Type: [case type]

Cause of Action: [cause of action]

Your Reference: [your reference]

[facsimile of Court seal]

The attached document has been filed in the County Court of Victoria.

This document must be retained as proof of filing of the attached document—refer to Rules 28.14 and 40.08.

DATED: [filing date/time] Registrar

_______________".

163 Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and 35B

(1) In Forms 29A and 29C of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

(2) In Forms 29D and 30A of the Principal Rules, for "Dated [e.g. 20 June 20 ]" substitute "Dated [insert date]".

(3) In Forms 35A and 35B of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".


32

164 Form 39A substituted

For Form 39A of the Principal Rules substitute—"Rule 39.05(b)

FORM 39A

DEED OF GUARANTEE


THIS guarantee is made the day of 20 , between [name] of [address], called "the guarantor", and the Registrar of the County Court of the State of Victoria.

By an order of the County Court of the State of Victoria made [insert date of order], in the abovementioned proceeding, [name] of [address], called "the receiver", has been appointed to receive [or receive and manage] [follow words of the order].

And pursuant to the said order the receiver is required to give security approved by the Court.

And the guarantor has agreed at the request of the receiver to give a guarantee in consideration of the annual premium mentioned below, which guarantee has been approved by the Court in testimony whereof an associate judge of the County Court has signed an allowance in the margin of this deed.

This guarantee witnesses that the guarantor promises the Registrar that if the receiver does not account to the Court for what the receiver receives as receiver or does not deal with what the receiver receives as the Court directs the guarantor will pay to the Registrar whatever is required to make good the default to a limit of $ .

Guarantee for $ . Annual premium $ .

The Common Seal of)

was)

affixed to this deed in)

the presence of)

_______________".


33

165 Order for examination out of Victoria

In Form 41B of the Principal Rules—

(a) for "therein" substitute "in the depositions";

(b) for "therefrom" substitute "from those documents".

166 Form 41AA substituted

For Form 41AA of the Principal Rules substitute—

"RULE 41A.02

FORM 41AA

NOTICE OF APPLICATION FOR AUDIO VISUAL LINK OR AUDIO LINK


PART 1—PARTICULARS OF APPLICATION

I, [name of applicant]

of [address of applicant or firm of solicitor for applicant]

request an *audio visual/*audio link under section 42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 in accordance with the following details:

1. *Audio visual/*Audio link:

From [originating city/town]

To [receiving city/town]

2. Type of hearing: [e.g. *Hearing/*Practice Court Hearing/*Directions Hearing/*Taxation of Costs/*Other]

3. Number of persons to appear before, or give evidence by *audio visual/*audio link:

4. Suggested time (if any) for link:

5. Estimate of duration of link:

6. Is this application being made with the consent of the parties to the proceeding?

7. If the answer to question 6 is No, what parties have not given consent?


34

8. If a hearing date has been fixed, what is the date of the hearing?

I undertake to pay, in the first instance, the appropriate amount (if any) prescribed by the regulations (if any) under section 42H(1) of the Act.

Date:

[Signature]

PART 2—PARTICULARS OF HEARING

(to be completed by the Registrar)

The application will be heard before the Judge in the Court, [or the associate judge in the Court] County Court, William Street, Melbourne on [insert date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows.

FILED [insert date].

*delete if not applicable.

_______________".

167 Minor amendments to Forms 45A, 46A, 48A, 48B, 53B, 59A, 60A and 60D

(1) In Forms 45A and 46A of the Principal Rules—

(a) for "e.g. 20 June 20" substitute "insert date";


(2) In Form 48A of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

(3) In Form 48B of the Principal Rules—

(a) for "e.g. 15 June 20" (where twice occurring) substitute "insert date";

(b) for "e.g. 20 June 20" (where twice occurring) substitute "insert date";

(c) for "Dated 20 ." substitute "Dated [insert date]".


35

(4) In Forms 53B and 59A of the Principal Rules—

(a) for "e.g. 20 April 20" substitute "insert date";


(5) In Form 60A of the Principal Rules, for "e.g. 20 June 20" substitute "insert date".

(6) In Form 60D of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

168 Order 61 Forms amended

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


(b) for "Dated 20" substitute "Dated [insert date]".

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


(b) for "Date 20" substitute "Dated [insert date]".

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

(a) in the heading, for "OR ORDER" substitute "OF ORDER";

(b) for "e.g. 20 June 20" substitute "insert date";

(c) for "20 an" substitute "[insert date] an";

(d) for "20 be" substitute "[insert date] be";

(e) for "20 at" substitute "[insert date] at";

(f) for "Date 20" substitute "Dated [insert date]".


36

(4) In Form 61D of the Principal Rules, for "e.g. 20 June 20" (where four times occurring) substitute "insert date".

(5) In Form 61E of the Principal Rules, for "e.g. 20 June 20" (where twice occurring) substitute "insert date".

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

(a) omit "hereby";

(b) for "Dated 20" substitute "Dated [insert date]";

(c) for "Objector or Objector's Solicitor" substitute "objector or objector's solicitor".

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

(a) for "20 on" substitute "[insert date] on";

(b) for "20 of" substitute "[insert date] of";

(c) for "20 at" substitute "[insert date] at";

(d) for "Dated 20 ." substitute "Dated [insert date]".

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


(b) for "Dated 20 ." substitute "Dated [insert date]".

(9) In Forms 61J, 61K and 61L of the Principal Rules, for "e.g. 20 June 20" substitute "insert date".

(10) In Form 61M of the Principal Rules, for "e.g. 20 June 20" (where twice occurring) substitute "insert date".


37

169 Form 61N substituted

For Form 61N of the Principal Rules substitute—"RULE 61.04(4)

FORM 61N

WARRANT OF APPREHENSION ON DISOBEDIENCE TO SUMMONS


To all police officers of the State of Victoria.

[Name of judgment debtor] of [address] has failed to attend before the County Court at the time and place appointed by the summons issued on [insert date] to be examined concerning that person's financial circumstances:

I authorise you to enter and search by day or by night any dwelling-house, tenement, ship or place whatsoever [or the dwelling-house or tenement or ship situated at ] where the said person is suspected to be [or to be concealed or to be unlawfully detained] using all necessary force for that purpose and if necessary to break any outer door or window and to apprehend him or her and to bring that person before the [continue as in Form 61M, specifying the time and place as required by section 14(3) or 17(3) of the Judgment Debt Recovery Act 1984].

Issued [insert date]

Registrar

_______________".

170 Minor amendments to Forms 61P and 61Q

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

(a) for "e.g. 20 June 20" (where twice occurring) substitute "insert date";



38

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



171 Form 61R substituted

For Form 61R of the Principal Rules substitute—"RULE 61.07(2)

FORM 61R

CERTIFICATE OF PAYMENT


To the Governor of the prison at

By virtue of an order for imprisonment made by the County Court on [insert date] [name of judgment debtor] of [address] was committed to prison at [insert place].

This certifies that the said [name of judgment debtor] has paid the instalments of which default was made and is now entitled to be discharged out of custody.

Dated [insert date]

Registrar

_______________".

172 Application for copy of judge's notes

In Form 64AB of the Principal Rules omit "e.g. 16 July 20".

173 Minor amendments to Forms 68A, 68B, 68C, 71A, 72A, 72B, 72E, 72F, 72G and 72H

(1) In Forms 68A and 68B of the Principal Rules, for "e.g. 20 June 20" substitute "insert date".

(2) In Form 68C of the Principal Rules, for "e.g. 20 June 20" (where twice occurring) substitute "insert date".


39

(3) In Forms 71A, 72A, 72B, 72E, 72F, 72G and 72H of the Principal Rules, for "e.g. 20 June 20" substitute "insert date".

174 Form 72K substituted

For Form 72K of the Principal Rules substitute—"RULE 72.06(3)

FORM 72K

NOTICE BY EMPLOYER THAT JUDGMENT DEBTOR IS NOT IN EMPLOYER'S EMPLOY


To the Registrar,

And to the [judgment creditor] of [address].

An order was made on [insert date] that I make payments to the [judgment creditor] out of the earnings of the [judgment debtor].

I give notice that I am not the employer of the [judgment debtor] [or I ceased to be the employer of the [judgment debtor] on [insert date].]

Dated [insert date]

[Signature of employer]

_______________".

175 Notice of cessation of attachment of earnings order

In Form 72L of the Principal Rules—

(a) for "20 whereby" substitute "[insert date] by which";

(b) for "20 because" substitute "[insert date] because";

(c) for "Dated 20 ." substitute "Dated [insert date]".


40

176 Minor amendments to Forms 73A, 73C, 75A, 75B and 75BA

(1) In Form 73A of the Principal Rules—


(b) for "on 20" substitute "[insert date]".

(2) In Form 73C of the Principal Rules, for "thereon" (where twice occurring) substitute "on the stock".

(3) In Forms 75A, 75B and 75BA of the Principal Rules, for "Sheriff" substitute "sheriff".

177 Form 75C substituted

For Form 75C of the Principal Rules substitute—"RULE 75.13

FORM 75C

COMMITTAL WARRANT

[heading as in Form 75A, 75B or 75BA as appropriate]

TO THE SHERIFF

Take [name] to the prison at and deliver him or her to the Governor of that prison.

or

Arrest [name] and take him or her to the prison at and deliver the person to the Governor of that prison.

To the Governor of the prison at

Receive [name] into your custody and keep him or her person until the further order of this Court [as the case may be].

The committal of [name] for contempt of court in that [name] (state nature of his or her contempt).

Dated [insert date].

Judge

_______________".


41


42

Schedule 1—Revoked Statutory RulesRule 5

S.R. No. Title

182/2009 County Court (Costs Court Amendment) Rules 2009

184/2009 County Court (Chapter I Amendment No. 1) Rules 2009

185/2009 County Court (Evidence Amendments) Rules 2009


146/2010 County Court (Chapter I Scale of Costs Amendment) Rules 2010




156/2011 County Court (Chapter I Scale of Costs Increase Amendment) Rules 2011

85/2012 County Court (Chapter I Trans-Tasman Proceedings Amendment) Rules 2012

104/2012 County Court (Miscellaneous Amendments) Rules 2012






136/2013 County Court (Chapter I Trans-Tasman Proceedings Amendment) Rules 2013

166/2013 County Court (Chapters I and II Miscellaneous Amendments) Rules 2013


100/2014 County Court (Chapters I and III Miscellaneous Amendments) Rules 2014

150/2014 County Court (Chapter I Costs Amendment) Rules 2014

176/2014 County Court (Chapter I Circuit Fees, Expenses and Allowances Amendment) Rules 2014

210/2014 County Court (Miscellaneous Amendments) Rules 2014


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Dated: 17 November 2015

P. KIDD M. E. KENNEDY

M. G. McINERNEY D. L. ALLEN

G. R. ANDERSON P. G. MISSO

S. M. COHEN J. M. J. PATRICK

M. E. SEXTON P. M. E. WISCHUSEN

F. E. HOGAN P. G. LACAVA

I. E. LAWSON P. M. TAFT

E. M. GAYNOR H. T. MASON

P. J. COISH G. P. MULLALY

J. A. CAMPTON J. L. PARRISH

W. A. WILMOTH M. H. TINNEY

G. T. CHETTLE G. T. CANNON

F. MILLANE M. E. DEAN

S. S. DAVIS M. F. MACNAMARA

F. P. HAMPEL B. STUART

J. G. MORRISH D. G. BROOKES

P. D. GRANT C. J. RYAN

D. A. PARSONS P. J. COSGRAVE

S. E. PULLEN R. W. DYER

L. A. HANNAN S. L. HINCHEY

═══════════════


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Endnotes

Endnotes


45

1 Rule 4: S.R. No. 148/2008. Reprint No. 2 as at 1 January 2014. Reprinted to S.R. No. 167/2013. Subsequently amended by S.R. Nos 100/2014, 150/2014, 176/2014, 210/2014, 7/2015 and 34/2015.

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