Magistrates' Court (Miscellaneous Civil Proceedings) Rules ...FILE/10-141sr004.docx · Web...

Version No. 004

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010

S.R. No. 141/2010

Version incorporating amendments as at1 January 2013

TABLE OF PROVISIONSRegulation Page

ORDER 1 1

PRELIMINARY 1

1.01 Title and object 11.02 Authorising provisions 11.03 Commencement 11.04 Definitions 11.05 Application 21.06 Rules of general procedure 2

ORDER 2 3

ARBITRATION 3

2.01 Application 32.02 Statement of claim 32.03 Defence 32.04 No pleadings, discovery, interrogatories etc. 32.05 Parties to serve a list of documents 42.06 Service of reports and assessments in relation to proceedings

relating to motor vehicle accidents 42.07 Plaintiff may join third party 5

ORDER 3 6

SERVICE AND EXECUTION OF PROCESS RULES 6

3.01 Definitions 63.02 How application made 63.03 Sealed copy of order 63.04 Enforcement of order 73.05 Fees 7

1

3.06 Costs 73.07 Interest 7

ORDER 4 9

REGISTRARS 9

4.01 Reference to a magistrate 94.02 Appeal from registrar 9

ORDER 5 10

APPEALS 10

5.01 Application of order 105.02 Notice of appeal 105.03 Amendment of grounds 105.04 Affidavit 105.05 Date for hearing 11

ORDER 6 12

PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 12

6.01 Definition 126.02 Application for appointment of nominal defendant—Forms 6A

and 6B 136.03 Application for discharge 146.04 Request for referral of a medical question to a Medical Panel—

Form 6C 146.05 Application for revocation of direction of Conciliation Officer 15

ORDER 7 16

PARTICULAR RULES AS TO THE CORPORATIONS ACT 16

7.01 Definition 167.02 Commencement of originating process 167.03 Notice to defendant 167.04 Service of complaint and notices 167.05 Application for order in default of defence 17

ORDER 8 18

IMPRISONMENT OF FRAUDULENT DEBTORS 18

8.01 Application for summons 18

2

ORDER 9 19

INSTRUMENTS ACT RULES 19

9.01 Definition 199.02 Application of Order 199.03 Form of complaint 199.04 Leave to defend 199.05 Order where leave not granted or notice of defence not given 209.06 Notice to parties 209.07 Leave to defend after order made 20

ORDER 10 22

PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 22

10.01 Definitions 2210.02 Commencement of proceeding under section 28R of the

Act 2210.03 Power of registrar to make order in proceedings under

section 28R of the Act 2210.04 Setting aside an order 2310.05 Certification of debt by Court 2310.06 Application for stay of payments 23

ORDER 11 24

MISCELLANEOUS RULES 24

11.01 Civil registry courts 2411.02 Jurisdiction of Neighbourhood Justice Division 2411.03 General power of amendment 2411.04 Registrar's power of amendment 2411.05 Directions 2511.06 Preservation of property 2511.07 Practice notes 26

__________________

FORMS FOR CHAPTER II 27

Form 3A—Service and Execution of Process Act 1992 27

Form 3B—Service and Execution of Process Act 1992 29

Form 3C—Service and Execution of Process Act 1992 30

Form 5A—Notice of Appeal 32

Form 6A—Application for Appointment of Nominal Defendant 33

3

Form 6B—Notice of Appointment of Nominal Defendant 34

Form 6C—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 35

Form 6D—Application 36

Form 7A—Notice to Defendant under Corporations Act 37

Form 8A—Affidavit in Support of Summons for Commitment 38

Form 9A—Complaint 39

Form 9B—Application for Leave to Defend 41

Form 9C—Application for Order 42

Form 9D—Notification of Decision 43

Form 9E—Application for Leave to Defend after Order Made 44

__________________

APPENDIX—Civil Registry Courts 45

═══════════════

ENDNOTES 47

1. General Information 47

2. Table of Amendments 48

3. Explanatory Details 49

4

Version No. 004

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010

S.R. No. 141/2010

Version incorporating amendments as at1 January 2013

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

ORDER 1

PRELIMINARY

1.01 Title and object

(1) These Rules constitute Chapter II of the Rules of the Magistrates' Court of Victoria and are entitled the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010.

(2) The object of these Rules is to further provide for rules of civil procedure in the Magistrates' Court.

1.02 Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.

1.03 Commencement

These Rules come into operation on 1 January 2011.

1.04 Definitions

In these Rules—

the Act means the Magistrates' Court Act 1989, unless the context otherwise requires.

1

1.05 Application

These Rules apply to any proceeding in the Court with respect to which provision is made by these Rules, whether the proceeding was commenced before, on or after the day on which they come into operation.

1.06 Rules of general procedure

Except so far as is otherwise provided by these Rules or any Act, Chapter I of the Rules of the Magistrates' Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.

__________________

2

r. 1.05

ORDER 2

ARBITRATION

2.01 Application

This Order applies to a proceeding in which the monetary relief sought is less than the amount set out in section 102(1) of the Act and which the Court must refer to arbitration in accordance with that section.

2.02 Statement of claim

The statement of claim in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances and cause of action upon which the claim is based together with the amount or other relief or remedy sought.

2.03 Defence

The notice of defence in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances facts or matters relied on in defence of the claim.

2.04 No pleadings, discovery, interrogatories etc.

No party in a proceeding referred to in Rule 2.01 may—

(a) serve a request for further and better particulars of claim, counterclaim or defence;

(b) serve and file a reply;

(c) serve a notice to admit any fact or the authenticity of any document;

(d) serve a notice for discovery;

(e) serve interrogatories;

(f) serve an expert witness statement.

r. 2.01

Rule 2.04(f) amended by S.R. No. 124/2011 rule 3(1).

Order 1

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010S.R. No. 141/2010

3

* * * * *

2.05 Parties to serve a list of documents

(1) If the amount of the claim or the counterclaim in a proceeding referred to arbitration in accordance with this Order is $5000 or more, each party must serve on each other party a list of documents not less than 14 days before the date fixed for a pre-hearing conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.

(2) A list of documents must identify each document in the possession of the party serving the list that—

(a) supports the claim, defence, or counterclaim; or

(b) is injurious to that claim, defence or counterclaim.

2.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents

(1) If in any proceeding that has been referred to arbitration in accordance with this Order there is a claim or counterclaim for damages arising out of a motor vehicle accident, each party (the serving party) must serve on each other party a copy of any assessor's report or documents relating to such an assessment in the possession of the serving party.

(2) Any report or documents required to be served under subrule (1) must be served not less than 14 days before the date fixed for a pre-hearing

Rule 2.04(g) revoked by S.R. No. 124/2011 rule 3(2).

r. 2.05Order 1


4

conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.

r. 2.07Rule 2.07 inserted by S.R. No. 27/2012 rule 4.

2.07 Plaintiff may join third party

(1) If in any proceeding that has been referred to arbitration in accordance with this Order the defendant files a third party notice against a person, the plaintiff may join that person as a defendant.

(2) The plaintiff must give notice in writing to the third party, the defendant or defendants and the registrar that the third party is joined as defendant.

(3) When the notice is filed and served the third party becomes a defendant to the proceeding.

__________________

Order 1


5

ORDER 3

SERVICE AND EXECUTION OF PROCESS RULES

3.01 Definitions

In this Order—

appropriate court has the same meaning as in Part 6 of the Act;

court of rendition has the same meaning as in Part 6 of the Act;

place of rendition has the same meaning as in Part 6 of the Act;

the Act means the Service and Execution of Process Act 1992 of the Commonwealth.

3.02 How application made

(1) An application to the Court under the Act must be made in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.

(2) Where an application under subrule (1) is filed by facsimile transmission, the address for service of the applicant must include a facsimile telephone number.

(3) When an application is filed the registrar must forthwith fix a hearing date and as soon as practicable notify the applicant.

3.03 Sealed copy of order

For the purpose of registration of an order of the Court in the appropriate court of another State or Territory, the registrar may provide a sealed copy of the judgment in Form 3A or Form 3B, as the case requires.

r. 3.01Order 1


6

3.04 Enforcement of order

A person who seeks to enforce an order registered under the Act must before taking any step under the Act or these Rules for such enforcement file an affidavit in Form 3C stating that the order is capable of being enforced in or by the court of rendition or a court in the place of rendition and the extent to which it is so capable.

3.05 Fees

(1) The fees to be allowed in relation to the service under the Act of the process of the Court must be calculated on the same basis as fees allowable in the appropriate court for service of process at the place where the process was served.

(2) The same fees must be paid in relation to the enforcement under the Act by the Court of the process or order of a court of another part of Australia as are charged for the like enforcement of the process or judgment of the Court, together with the fees set out in the Schedule to Order 10 of Chapter II of the Rules of the Supreme Court.

3.06 Costs

The same costs must be allowed in relation to the enforcement of an order registered under the Act as are allowed upon the enforcement of an order of the Court.

3.07 Interest

(1) A person who seeks to recover interest payable under section 108 of the Act must specify by affidavit the interest rate or rates applying to the order in the court of rendition and must include a calculation showing the amount of interest recoverable under the order.

r. 3.04Order 1


7

(2) The interest rate or rates applying in the court of rendition specified in an affidavit pursuant to subrule (1) must be endorsed on a warrant to seize property which is filed to enforce an order registered under the Act.

(3) The person to whom a warrant to seize property is directed must calculate and recover interest on an order registered under the Act at the rate or rates specified in the warrant.

(4) The person to whom a warrant to seize property is directed must not calculate or recover interest on an order registered under the Act where the warrant does not contain a statement of the interest rate or rates applying to the order in the court of rendition and does not contain a calculation of the interest recoverable under the order.

__________________

r. 3.07Order 1


8

ORDER 4

REGISTRARS

4.01 Reference to a magistrate

If on an application to a registrar under the Act, the Magistrates' Court General Civil Procedure Rules 2010 or these Rules, the registrar considers that it is proper that the application be determined by a magistrate, the registrar may refer the application to a magistrate.

4.02 Appeal from registrar

(1) Any person affected by any order made by a registrar may appeal to a magistrate.

(2) An appeal must be commenced within 14 days after the day the registrar made the order.

(3) An appeal may be made by application in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.

(4) An appeal is a re-hearing of the application to the registrar.

(5) Unless a magistrate otherwise orders, an appeal does not operate as a stay on the order of the registrar.

(6) This Rule does not apply to an order in default of defence made by a registrar under Order 21 of the Magistrates' Court General Civil Procedure Rules 2010 or any corresponding previous enactment.

__________________

r. 4.01Order 1


9

ORDER 5

APPEALS

5.01 Application of order

Where by or under any Act a person (in this Order called the appellant) may appeal to a magistrate or to the Magistrates' Court, this Order applies.

5.02 Notice of appeal

(1) Except as provided by any Act, an appeal must be commenced by filing a notice of appeal at the proper venue of the Court.

(2) The notice of appeal must—

(a) be in Form 5A; and

(b) set out—

(i) the order or decision of the person from whom or the body from which the appeal is brought (in this order called the respondent);

(ii) concisely the grounds of appeal.

(3) As soon as practicable after filing the notice of appeal the appellant must serve a copy on the respondent.

5.03 Amendment of grounds

The Magistrates' Court or a magistrate may give leave to amend the grounds of appeal.

5.04 Affidavit

Within 14 days after filing the notice of appeal the appellant must file in the Court and serve on the respondent an affidavit setting out the facts, matters and circumstances relating to—

(a) the order or decision appealed against; and

r. 5.01Order 1


10

(b) the grounds of appeal.

5.05 Date for hearing

At the time of filing the notice of appeal the registrar must fix a date for the hearing of the appeal.

__________________

r. 5.05Order 1


11

ORDER 6

PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT

COMPENSATION ACT 1985

6.01 Definition

In this Part, unless the context or subject-matter otherwise requires—

Authority means the Victorian WorkCover Authority established under section 18(1) of the Accident Compensation Act 1985;

Conciliation Officer means a person nominated as a Conciliation Officer under section 52D of the Accident Compensation Act 1985;

employer in a proceeding under the Accident Compensation Act 1985 has the same meaning as in section 5(1) of that Act and in a proceeding under the Workers Compensation Act 1958 has the same meaning as in section 3(1) of that Act;

Medical Panel means a Medical Panel under the Accident Compensation Act 1985;

medical question has the same meaning as in section 5(1) of the Accident Compensation Act 1985;

plaintiff includes a claimant under section 44(1) of the Workers Compensation Act 1958;

the Act means the Workers Compensation Act 1958.

r. 6.01Order 1


12

6.02 Application for appointment of nominal defendant—Forms 6A and 6B

(1) An application for the appointment of a nominal defendant under section 5A, 16 or 25E of the Act must be—

(a) made after the filing of a complaint;

(b) accompanied by an affidavit in support of the application;

(c) in Form 6A.

(2) The affidavit in support of the application must—

(a) state the reasons for the application;

(b) give details of any attempts to identify or find the employer or the employer's insurer;

(c) if the employer was a company which has been wound up, exhibit advice from the Australian Securities and Investment Commission that the company has been wound up;

(d) except where the application is to have the Authority named as the nominal defendant, exhibit the consent in writing of the person proposed for appointment as nominal defendant.

(3) If the Court makes an order for the appointment of a nominal defendant on an application under subrule (1), unless the Court directs otherwise, the party obtaining the order must give notice of the appointment to all parties to the complaint and serve on the nominal defendant—

(a) a notice of the appointment in Form 6B;

(b) a copy of the application;

(c) a copy of the affidavit in support;

r. 6.02Order 1


13

(d) notice of any hearing date subsequent to the appointment, fixed in the proceeding, if any;

(e) a copy (including any amended copies) of the complaint (if any) showing the nominal defendant as defendant and giving full particulars of the claim against the alleged employer in respect of whom the nominal defendant was appointed;

(f) where appropriate, particulars of the claim for contribution.

6.03 Application for discharge

(1) At any time after receiving notice of appointment, the nominal defendant appointed by the Court may apply to the Court to be discharged from acting in that capacity.

(2) Unless the Court directs otherwise, or the application is by consent, the application must be supported by an affidavit setting out the facts on which the discharge is requested.

6.04 Request for referral of a medical question to a Medical Panel—Form 6C

(1) A request by a party for the Court to refer a medical question to a Medical Panel for an opinion under section 45(1)(b) of the Accident Compensation Act 1985 must—

(a) state clearly the medical question for referral;

(b) be in Form 6C.

(2) A copy of the request must be served on all other parties to the proceeding who have an address for service not less than 14 days before the request is to be considered by the Court.

r. 6.03Order 1


14

6.05 Application for revocation of direction of Conciliation Officer

An application under section 60(2) of the Accident Compensation Act 1985 for the revocation of a direction given by a Conciliation Officer pursuant to Division 2 of Part 3 of that Act must be—

(a) in Form 6D with such modification as is necessary; and

(b) accompanied by an affidavit in support of the application.

__________________

r. 6.05Order 1


15

ORDER 7

PARTICULAR RULES AS TO THE CORPORATIONS ACT

7.01 Definition

In this Order—

corporations proceeding means a proceeding under the Act that is brought in the Court;

the Act means the Corporations Act.

7.02 Commencement of originating process

(1) An originating process under the Act in the Court must be commenced by a complaint in accordance with Order 5 of the Magistrates' Court General Civil Procedure Rules 2010.

(2) A complaint to which subrule (1) applies, when lodged for filing, must be accompanied by a supporting affidavit, in accordance with Rule 2.4 of the Supreme Court (Corporations) Rules 2003.

(3) An affidavit to which subrule (2) applies, subject to that subrule, must comply with the Magistrates' Court General Civil Procedure Rules 2010.

7.03 Notice to defendant

In any corporations proceeding the plaintiff must prepare a notice to the defendant in the form of Form 7A.

7.04 Service of complaint and notices

In a corporations proceeding, the complaint and any notice of defence, affidavit of service and notice to the defendant under Rule 7.03 must be served on the defendant at least 7 days before the mention date for the proceedings.

r. 7.01Order 1


16

7.05 Application for order in default of defence

In a corporations proceeding, an application for an order in default of defence must not be made before the mention date for the proceeding.

__________________

r. 7.05Order 1


17

ORDER 8

IMPRISONMENT OF FRAUDULENT DEBTORS

8.01 Application for summons

(1) An application for the issue of a summons under Part III of the Imprisonment of Fraudulent Debtors Act 1958 must be made by affidavit in Form 8A.

(2) An affidavit under subrule (1) may contain statements of fact based on information and belief if the grounds are set out.

__________________

r. 8.01Order 1


18

ORDER 9

INSTRUMENTS ACT RULES

9.01 Definition

In this Order—

the Act means the Instruments Act 1958.

9.02 Application of Order

(1) This Order applies to any proceeding in the Court under Part 1 of the Act.

(2) Except where inconsistent with the Act or this Order, the Magistrates' Court General Civil Procedure Rules 2010 and the remaining provisions of these Rules apply to any proceeding under Part I of the Act.

9.03 Form of complaint

(1) A complaint upon a bill of exchange commenced after the bill has become due must be in Form 9A.

(2) The amount of costs stated in the indorsement on the complaint must be the amount of scale costs applicable to the amount claimed plus the fees (if any) for the filing and service of the complaint.

9.04 Leave to defend

(1) Leave to defend under section 5 of the Act may be given by the Court.

(2) An application for leave to defend must be made without notice to any person, within the time allowed by section 5 of the Act.

(3) An application for leave must be in Form 9B and must be filed.

(4) The applicant for leave must file in support of the application an affidavit sworn by himself or

r. 9.01Order 1


19

herself or by another person who can depose to the facts from his or her own knowledge.

9.05 Order where leave not granted or notice of defence not given

(1) A plaintiff who is entitled to an order under section 4 of the Act may apply to the registrar for an order for the amount claimed together with costs and fees (if any) for filing and service of the complaint as the scale allows.

(2) An application for such an order must be filed and must be in Form 9C.

(3) Where the registrar is satisfied that—

(a) the complaint has been served in accordance with section 4 of the Act; and

(b) the defendant—

(i) has not been given leave to defend under section 5 of the Act; or

(ii) has been given leave to defend under section 5 of the Act, but has not given notice of defence to the plaintiff within 21 days after the date on which leave to defend was given—

the registrar must make an order.

9.06 Notice to parties

As soon as practicable after the Court has made a decision on an application for leave to defend, the registrar must notify the parties by notice in Form 9D.

9.07 Leave to defend after order made

(1) A defendant who wishes to apply under section 6 of the Act must—

(a) file an application in Form 9E; and

Rule 9.05 (Heading) amended by S.R. No. 158/2012 rule 6(1).

r. 9.05

Rule 9.05(3)(b) substituted by S.R. No. 158/2012 rule 6(2).

Order 1


20

(b) not less than 5 days before the day for hearing of the application serve a copy of the application on the complainant personally.

(2) An application under section 6 must state the special circumstances relied upon by the applicant.

(3) The Court may set aside the order on such terms as the Court thinks fit.

(4) Upon filing an application under section 6, no steps to enforce the order shall be taken for 14 days from the date of filing or until the application is heard (whichever is the earlier).

(5) An applicant who fails to appear on the hearing of the application must not make a further application without the leave of the Court.

__________________

r. 9.07Order 1


21

ORDER 10

PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT

ACT 2002

10.01 Definitions

In this Order—

adjudication certificate has the same meaning as in section 4 of the Act;

authorised nominating authority has the same meaning as in section 4 of the Act;

claimant has the same meaning as in section 4 of the Act;

principal has the same meaning as in section 4 of the Act;

the Act means the Building and Construction Industry Security of Payment Act 2002.

10.02 Commencement of proceeding under section 28R of the Act

A proceeding under section 28R of the Act may be commenced by a person, who has been provided with an adjudication certificate by an authorised nominating authority, applying to the Court by filing in the Court the certificate and affidavit that are required to be filed under section 28R of the Act.

10.03 Power of registrar to make order in proceedings under section 28R of the Act

In any proceeding commenced under Rule 10.02, the Court constituted by a registrar may make an order that the respondent pay the person applying under that Rule the unpaid amount if the registrar is satisfied that—

r. 10.01Order 1


22

(a) the adjudication certificate has been provided by the authorised nominating authority; and

(b) an amount payable under section 28M or 28N of the Act has not been paid.

10.04 Setting aside an order

Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modifications, applies to making an application to set aside an order in any proceeding under section 28R of the Act.

10.05 Certification of debt by Court

(1) For the purposes of section 33 of the Act, the court may be constituted by a registrar.

(2) An application for an order under section 33(1) of the Act may be made in writing and Order 46 of the Magistrates' Court General Civil Procedure Rules 2010 does not apply to any such application.

10.06 Application for stay of payments

(1) For the purposes of section 37(1) of the Act, an application by a principal for a stay of payments under that section must be made in the proceeding in which the claimant has obtained an order for the adjudicated amount or part of the adjudicated amount as referred to in section 30(c) of the Act.

(2) Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modification, applies to an application under section 37(1) of the Act.

__________________

r. 10.04Order 1


23

ORDER 11

MISCELLANEOUS RULES

11.01 Civil registry courts

The civil registry courts are those venues of the Court listed in the Appendix to these Rules.

11.02 Jurisdiction of Neighbourhood Justice Division

For the purposes of section 4O(3)(d) of the Act, with respect to the civil jurisdiction of the Court, the following are specified—

(a) a proceeding under the Fences Act 1968; and

(b) a proceeding under the Family Law Act 1975 of the Commonwealth in which the Court has federal jurisdiction under section 39(6) or 69J of that Act.

11.03 General power of amendment

For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including a complaint) in a proceeding be amended or that any party have leave to amend any document in the proceeding.

11.04 Registrar's power of amendment

(1) At the request of a party made before service of a complaint, the registrar may amend the complaint.

(2) The registrar must record on the complaint the date of any amendment.

r. 11.01Order 1


24

11.05 Directions

At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

11.06 Preservation of property

(1) In any proceeding, the Court may make an order for the inspection, detention or preservation of any property whether or not in the possession, custody or power of a party.

(2) An order under subrule (1) may authorise any person to—

(a) enter any land or do any other thing for the purpose of obtaining access to the property;

(b) take samples of the property;

(c) make observations (including the photographing) of the property;

(d) conduct any experiment on or with the property;

(e) observe any process.

(3) If the Court makes an order under subrule (1) the Court may make an order for the costs and expenses of any person who is not a party to the proceeding.

(4) The Court may make an order under this Rule on condition that the person applying for the order gives security for the costs and expenses of any person, whether or not a party, who will be affected by the order.

r. 11.05Order 1


25

11.07 Practice notes

The Chief Magistrate may from time to time issue practice directions or notes not inconsistent with the Act or these Rules.

__________________

r. 11.07Order 1


26

FORMS FOR CHAPTER IICHAPTER II

RULE 3.03 FORM 3A

SERVICE AND EXECUTION OF PROCESS ACT 1992

ORDER

IN THE MAGISTRATES' COURT Court Number

OF VICTORIA

AT

BETWEEN A.B. Plaintiff

(full name)

OF

(address of plaintiff)

and

C.D. Defendant

(full name)

OF

(address of defendant)

Magistrate:

Date of order:

Nature of complaint:

How obtained: [state whether on hearing or arbitration or on application before hearing, identifying party filing application]

Attendances: [set out attendance or non-attendance of any person entitled to attend and, if attending, whether by counsel or solicitor]

Other matters: [state any finding of jurisdictional fact, undertaking of party or other matter as directed by Court]

Form 3AOrder 1


27

The Court orders that:

1.

2. [terms of order]

I certify that this is a true and correct record.

Registrar

__________________

Form 3AOrder 1


28

CHAPTER II

RULE 3.03 FORM 3B


DEFAULT ORDER FOR DEBT

[heading as in Form 3A]

Date of order:

Nature of proceedings:

How obtained: In default of notice of defence.

The order of the Court is that:

[e.g.: The defendant pay the plaintiff $ and $ interest and $ costs].

I certify that this is a true and correct record.

Registrar

__________________

Form 3BOrder 1


29

CHAPTER II

RULE 3.04 FORM 3C


AFFIDAVIT IN SUPPORT OF ENFORCEMENT


I, [name] of [address]

in the State of MAKE OATH AND SAY:

1. I am *the plaintiff*a solicitor in the firm of [name of firm], solicitors for the

plaintiff, and I have the care and conduct of this matter and make this affidavit according to my information and belief.

2. Judgment was entered in the [name of court] at [place] in the State of [State] on [date]. The terms of the judgment were that the defendant pay the plaintiff the sum of $ [claim] with $ [interest] and $ [costs].

3. The nature of the proceedings was for [describe the nature of proceedings/cause of action].

4. The amount of the judgment which is sought to be enforced is $ [amount] and is the extent the judgment is capable of being enforced in the court of rendition.

5(a). The reasonable costs and expenses of and incidental to obtaining and lodging the copy of the judgment are $ [amount], being the sum paid to obtain a sealed copy of the judgment and $ [amount], being the cost of registering the judgment in Victoria, making a total of $ [amount].

5(b). The costs and expenses reasonably incurred in attempting to execute the judgment in the court of rendition or in another State are—

[set out details of the costs and expenses].

6. Pursuant to section [description] of the [name of the relevant legislation], interest is payable on the judgment from [date] to the date of payment of the judgment [describe the provisions of the legislation referred to which provides the basis of interest calculation].

7. At the date of judgment the applicable interest rate was [percentage figure] %. On [date] the interest rate *will be/was* varied to [percentage figure] %.

Form 3COrder 1


30

8. At the date of swearing this affidavit, interest in the sum of $ [amount] has accrued and is calculated as follows—

[date of judgment] to [date], [number] days @ [percentage figure] % = $ .

[If relevant, provide additional calculations taking into account payments or variations in interest rate e.g.—

[date] to [date], [number] days @ [percentage figure] % = $ .]

Sworn etc.

*Delete if inapplicable

__________________

Form 3COrder 1


31

CHAPTER II

RULE 5.02(2) FORM 5A

NOTICE OF APPEAL

IN THE MAGISTRATES' COURT 20 No.

OF VICTORIA

AT

In the matter of an appealpursuant to [name of theAct and section of Act under which appeal is brought].

APPLICANT: [name and address]

RESPONDENT: [name and address]

The appellant appeals against [set out briefly the substance of the order or decision appealed against].

Date of order or decision:

Grounds of appeal: [set out specifically the grounds of appeal]

Dated: [e.g. 5 September 20 ].

[Signed by appellant]

__________________

Form 5AOrder 1


32

CHAPTER II

RULE 6.02(1)(c) FORM 6A

APPLICATION FOR APPOINTMENT OF NOMINAL DEFENDANT


TO: [Identify each party (if any) to whom application is addressed]

YOU are summoned to attend before the Court on the hearing of an application by the [identify party]. The [identify party] applies to the Court for an order to appoint a nominal defendant for the purposes of a claim for compensation. The circumstances and grounds of the application are set out in the accompanying affidavit.

FILED: [e.g. 5 September 20 ].

This application was filed by , Australian lawyer for the [identify party].

__________________

Form 6AOrder 1


33

CHAPTER II

RULE 6.02(3)(a) FORM 6B

NOTICE OF APPOINTMENT OF NOMINAL DEFENDANT


In the matter of the Workers Compensation Act 1958

TAKE NOTICE THAT:

At the request of [identify party] the Court has this day appointed [name of nominal defendant] of [address] as a nominal defendant for the purposes of these proceedings, *in place of an alleged employer—[name of alleged employer]

*in the place of an employer who cannot be identified [or as the case may be].

A copy of the application for appointment and the accompanying affidavit, together with a copy of the originating process in these proceedings is attached to this Notice.

The complaint is listed for [nature of hearing] by the Court at [venue] at [time] on [date].


[Signature of party or Australian lawyer for party who obtained order]

* Delete if inapplicable.

__________________

Form 6BOrder 1


34

CHAPTER II

RULE 6.04(1)(b) FORM 6C

NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985


In the matter of the Accident Compensation Act 1985.

Take notice that [identify party] will request the Magistrates' Court at [venue] on [date] at [time] to refer the following medical questions to a medical panel for an opinion—

(a)

(b)

(c)

Signed:


__________________

Form 6COrder 1


35

CHAPTER II

RULE 6.05(a) FORM 6D

APPLICATION


TO: [identify each party to whom application is addressed]

YOU are summoned to attend before the Court on the hearing of an application by the [party] for [describe the order sought].

The application will be heard by the Court at [venue] at [time] on [date].

Registrar

FILED: [e.g. 5 September 20 ].

This application was filed by , Australian lawyer for [identify party].

__________________

Form 6DOrder 1


36

CHAPTER II

RULE 7.03 FORM 7A

NOTICE TO DEFENDANT UNDER CORPORATIONS ACT


TO: [name and address of each defendant (if any)]

This complaint will be mentioned at [venue] at [time] on [date].

If you intend to defend the complaint you must attend:

(a) in person or instruct a legal practitioner to attend on your behalf on the mention date; and

(b) give a notice of defence in accordance with Order 8 of the Magistrates' Court General Civil Procedure Rules 2010.

If you or your legal practitioner do not attend on the mention date the Court may:

(a) make a final order;

(b) give directions as to the future conduct of the proceeding; or

(c) hear any application.

Dated: [e.g. 5 September, 20 ].

Registrar

__________________

Form 7AOrder 1


37

CHAPTER II


AFFIDAVIT IN SUPPORT OF SUMMONS FOR COMMITMENT


I, of , the abovenamed plaintiff [or Australian lawyer for the abovenamed plaintiff] make oath and say:

1. By an order dated [e.g. 5 September, 20 ] it was ordered that [judgment debtor] should pay me [or the plaintiff] the sum of $ [amount] together with $ [amount] costs [or as the case may be].

2. The sum of $ [amount] ordered to be paid [or $ [amount]], part of the sum ordered to be paid is still due and unpaid.

3. I am informed by [name and address] and believe that since the date of the order made against the defendant, the defendant has had sufficient means and ability to pay the sum in respect of which the defendant has made default and has refused or neglected and still refuses or neglects to pay.

Sworn, etc.

__________________

Form 8AOrder 1


38

CHAPTER II


COMPLAINT

(Instruments Act 1958)


TO THE DEFENDANT

TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this complaint.

IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by first obtaining the leave of the Court to defend the claim and then giving notice of defence.

IF YOU DO NOT OBTAIN THE LEAVE OF THE COURT TO DEFEND, the plaintiff may OBTAIN AN ORDER AGAINST YOU on the claim without further notice.

THE PROPER TIME FOR OBTAINING LEAVE TO DEFEND is as follows—

(a) where you reside within 80 kilometres of the post office corner of Bourke and Elizabeth Streets, Melbourne, within 16 days of service;

(b) where you reside beyond that distance, within 21 days after service.

IF YOU PAY the amount of the claim, namely $ [amount] and $ [amount] for legal costs to the plaintiff or to the plaintiff's Australian lawyer within the proper time stated above, this proceeding will come to an end. Notwithstanding the payment you may have the costs fixed by the Court.

APPLICATION FOR LEAVE TO DEFEND must be made within the proper time stated above to the Court at the venue of the Court at which this complaint was filed.

THE COURT MAY GIVE LEAVE TO DEFEND if you—

(a) pay into Court the amount claimed, namely, $ [amount]; or

(b) file affidavits satisfactory to the Court which disclose—

(i) a defence; or

(ii) such facts as would make it incumbent on the holder to prove consideration; or

Form 9AOrder 1


39

(iii) such other facts as the Court considers sufficient to support the application.

DATE OF FILING:

THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING

Particulars of Claim

The Plaintiff claims $ [amount] principal and interest [or $ [amount] balance of principal and interest] due to the payee [indorsee or bearer] of a bill of exchange [promissory note or order for the payment of money] of which the following is a copy.

[Here copy bill and all indorsements on it]

1. This Complaint was filed by—

* the plaintiff in person;

* for the plaintiff by [name of firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer].

2. The address of the plaintiff is—

3. The address for service of the plaintiff is—[If the plaintiff sues by an Australian lawyer, the business address of the Australian lawyer. If the plaintiff sues in person, the address in 2.]

4. The address of the defendant is—


__________________

Form 9AOrder 1


40

CHAPTER II

RULE 9.04(3) FORM 9B

APPLICATION FOR LEAVE TO DEFEND



THE DEFENDANT APPLIES for leave to defend this claim.

* On [date] the sum of $ [amount] (being the sum claimed in the complaint) was paid into Court by the defendant.

* The affidavit(s) of [names of deponents] setting out the facts upon which the defendant relies in the application are filed herewith.

* Defendant

* Defendant's Australian lawyer

FILED: [e.g. 5 September, 20 ].

1. This application was filed by—

* the defendant in person;

* for the defendant by [name or firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer].


3. The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address of the Australian lawyer. If the defendant sues in person, the address in 2.]

4. The date of service of the complaint was [date].


__________________

Form 9BOrder 1


41

CHAPTER II

RULE 9.05(2) FORM 9C

APPLICATION FOR ORDER



1. The plaintiff requests that an order be made for $ [amount] plus interestat the rate of [rate]% to the date of the order.

2. The defendant—

* has not been given leave to defend this complaint within the time provided for in section 5 of the

Instruments Act 1958.

* has been given leave to defend this complaint within the time provided for in section 5 of the Instruments Act 1958, but has not given notice of defence to the plaintiff within 21 days after the date on which leave to defend was given.

3. An affidavit stating the matter in which the complaint was served has been previously filed with the Court.

4. The plaintiff's costs are—


* Plaintiff

* Plaintiff's Australian lawyer


__________________

Form 9C amended by S.R. No. 158/2012 rule 7.

Form 9COrder 1


42

CHAPTER II

RULE 9.06 FORM 9D

NOTIFICATION OF DECISION



TO THE PLAINTIFF AND TO THE DEFENDANT

APPLICATION FOR LEAVE TO DEFEND was filed on [date] and has been considered by the Court.

The Court orders as follows—

* Application for leave to defend refused.

* Application for leave to defend granted upon condition—[set out conditions, if any].

Dated: [e.g. 5 September, 20 ].

Registrar


__________________

Form 9DOrder 1


43

CHAPTER II

RULE 9.07(1)(a) FORM 9E

APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE



TO THE PLAINTIFF

THE DEFENDANT did not obtain leave to defend the above complaint and on [date] an order was made against the defendant for $ [amount] with $ [amount] costs.

TAKE NOTICE that the defendant will apply to the Court at [time] on [date] for an order that the order made be set aside and that leave to defend the complaint be granted.

The special circumstances upon which the defendant relies in support of this application are—[set out special circumstances].


* Defendant

* Defendant's Australian lawyer

Registrar

1. This application was filed by—

*the defendant in person;

*for the defendant by [name or firm or Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer].


3. The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address of the Australian lawyer. If the defendant sues in person, the address in 2.]


__________________

Form 9EOrder 1


44

APPENDIX

CIVIL REGISTRY COURTS

Ararat Hamilton Orbost

Bacchus Marsh Heidelberg Ouyen

Bairnsdale Hopetoun Portland

Ballarat Horsham Ringwood

Benalla Kerang Robinvale

Bendigo Korumburra St. Arnaud

Broadmeadows Kyneton Sale

Castlemaine Latrobe Valley Seymour

Cobram Mansfield Shepparton

Colac Maryborough Stawell

Neighbourhood Justice Centre, Collingwood

Melbourne Sunshine

Corryong Mildura Swan Hill

Dandenong Moe Wangaratta

Dromana Moorabbin Justice Centre

Warrnambool

Echuca Myrtleford Werribee

Frankston Nhill Wodonga

Geelong Omeo Wonthaggi

AppendixOrder 1


45

Dated: 26 October 2010

I GRAY, Chief Magistrate

L MARTIN, Deputy Chief Magistrate

PETER LAURITSEN, Deputy Chief Magistrate

═══════════════

AppendixOrder 1


46

ENDNOTES

1. General InformationThe Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010, S.R. No. 141/2010 were made on 26 October 2010 by the Chief Magistrate together with 2 Deputy Chief Magistrates jointly under section 16 of the Magistrates' Court Act 1989, No. 51/1989 and came into operation on 1 January 2011: rule 1.03.

The Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 will sunset 10 years after the day of making on 26 October 2020 (see section 5 of the Subordinate Legislation Act 1994).

EndnotesOrder 1


47

2. Table of AmendmentsThis Version incorporates amendments made to the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Magistrates' Court (Miscellaneous Civil Proceedings) (Amendment No. 1) Rules 2011, S.R. No. 124/2011

Date of Making: 3.11.11Date of Commencement: 3.11.11

Magistrates' Court (Miscellaneous Civil Proceedings) (Amendment No. 2) Rules 2012, S.R. No. 27/2012

Date of Making: 23.4.12Date of Commencement: 25.4.12: rule 3

Magistrates' Court General Civil Procedure and Miscellaneous Civil Proceedings (Scale of Costs and Other Amendments) Rules 2012, S.R. No. 158/2012

Date of Making: 12.12.12Date of Commencement: Rules 6, 7 on 1.1.13: rule 3

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

EndnotesOrder 1


48

3. Explanatory DetailsNo entries at date of publication.

EndnotesOrder 1


49

Magistrates' Court (Miscellaneous Civil Proceedings) Rules ...FILE/10-141sr004.docx · Web...

Documents

Transcript of Magistrates' Court (Miscellaneous Civil Proceedings) Rules ...FILE/10-141sr004.docx · Web...