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

S.R. No. 129/2015

table of provisions

RulePage

RulePage

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Revocations

6Definitions

7Effect of non-compliance

8Application to set aside for irregularity

9Proceedings after a year

10Office hours

11Urgent case

12Service on particular defendants

13How ordinary service effected

14Identity of person served

15Acceptance of service by solicitor

16Service of other process by leave

17Application for leave

18Rule 8.09 substituted

19Addition, removal, substitution of party

20Defendant dead at commencement of proceeding

21When counterclaim allowed

22Stay of claim

23Time for appearance

24Other requirements for service

25Appearance by third party

26Counterclaim by third party

27Default by third party

28Claim against another party

29Fourth and subsequent parties

30Counterclaim

31Definitions for Order 12

32Sheriff's interpleader

33Admission of claim

34Interpleader summons

35Neutrality of applicant

36Trial of interpleader question

37Content of pleading

38Matter which must be pleaded

39Particulars of pleading

40Admission and denials

41Denial by joinder of issue

42Counterclaim

43Heading to Order 15 amended

44Definitions for Order 15

45Litigation guardian of person under disability

46Appointment of litigation guardian

47Discovery

48Execution against money in court

49Counterclaim and claim by third party notice

50Representation of unascertained persons

51Appearance under objection of person sued as partner

52Enforcement of judgment

53Charge on partner's interest

54Effect of judgment

55Solicitor ceasing to act

56Removal of solicitor from record

57Address for service

58Judgment for recovery of debt, damages or property

59Stay or judgment in proceeding

60Rule 24.01 substituted

61Counterclaim and third party claim

62Inherent jurisdiction

63Discontinuance or withdrawal of proceeding or claim

64Heading to Order 26 amended

65Heading to Part 2 of Order 26 amended

66Disclosure of offer to court

67Party under disability

68Heading of document

69Form of document

70Seal of Court

71New Rule 28.04A inserted

72Inspection of documents

73Documents that may not be filed electronically

74Scope of discovery

75Notice for discovery

76Rule 29.03 substituted

77Co-defendants and third party

78Default notice

79Default on discovery

80Source for answers to interrogatories

81Who to answer interrogatories

82Default notice

83Non-compliance with order

84Effect of consent

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

86Counterclaim

87Expenses

88No evidence unless disclosed in report

89Voluntary admission of facts

90General

91Amendment of judgment or order

92Payment into Court in discharge of lien

93Default by receiver

94Deposition as evidence

95Attendance and production

96Objection

97Authentication and filing

98Report of examiner

99Heading to Order 41A substituted

100Payment of costs

101Application of Order 42A

102Objection by party to inspection by other party

103Removal of document

104Return or disposal of document

105Form of affidavit

106Affidavit by illiterate or blind person

107Application of Order 44

108Report of expert

109No evidence unless disclosed in report

110Pre-trial conferences

111Procedure on assessment

112Value of goods

113Restrictive covenant

114Heading to Rule 53.01 amended

115Parties

116Judgment in administration proceeding

117Mortgage, exchange or partition

118Date of effect

119Time for compliance

120Consent judgment or order by filing

121Minor amendments to Order 60A

122Rule 61.01 substituted

123Application under section 6 or section 8

124Instalment agreement under section 7

125When security for costs may be ordered

126Heading to Order 64A amended

127Attendance of natural person

128Attendance of corporation

129Attendance before another court etc.

130Contempt

131Order in aid of enforcement

132Definitions for Order 67

133Definitions for Order 68

134Duration

135Provision for enforcing payment of money

136Definitions for Order 69

137Minor amendments to Order 69

138Removal of goods on warrant of possession

139Definitions and application of Order 71

140Bank account

141Evidence on application for garnishee summons

142Money in court

143Attendance of or information about judgment debtor

144Contents of order

145Determination of earnings

146Definitions for Order 73

147Effect of service of summons

148Order charging funds in court

149Stop order for funds in court

150Stop notice on corporation stock not in court

151Prohibition of transfer of or payment on stock

152Contempt in face of the Court and arrest of respondent

153Arrest pending contempt hearing

154Discharge

155Application of money

156Notice of application for suppression order

157Minor amendments to Order 5 Forms

158Form 7A substituted

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

160Notice of claim to goods taken in execution

161Notice of a constitutional matter

162Form 28 substituted

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

164Form 39A substituted

165Order for examination out of Victoria

166Form 41AA substituted

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

168Order 61 Forms amended

169Form 61N substituted

170Minor amendments to Forms 61P and 61Q

171Form 61R substituted

172Application for copy of judge's notes

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

174Form 72K substituted

175Notice of cessation of attachment of earnings order

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

177Form 75C substituted

Schedule 1—Revoked Statutory Rules

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Endnotes

1

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

S.R. No. 129/2015

statutory rules 2015

S.R. No. 129/2015

1

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

S.R. No. 129/2015

County Court Act 1958

1

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

S.R. No. 129/2015

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

1

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

S.R. No. 129/2015

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

1Object

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.

2Authorising provisions

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

3Commencement

These Rules come into operation on 23 November 2015.

4Principal Rules

In these Rules, the County Court Civil Procedure Rules 2008[1]are called the Principal Rules.

5Revocations

The Rules listed in Schedule 1 are revoked.

6Definitions

(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 section6 of the Sheriff Act 2009; and

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

(b) the definition of solicitoris 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 "Ifthese Rules prescribe a form".

7Effect 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".

8Application to set aside for irregularity

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

9Proceedings after a year

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

10Office hours

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

11Urgent case

In Rule 4.08 of the Principal Rules—

(a)omit "the Court may,";

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

12Service 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;".

13How 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 "hisor her" substitute "the individual's".

14Identity 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".

15Acceptance 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 tohave had authority to accept service.".

16Service of other process by leave

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

17Application 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.".

18Rule 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—

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

(b)make an order under Rule 46.08; or

(c)stay a proceeding.".

19Addition, removal, substitution of party

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

20Defendant dead at commencement of proceeding

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

21When counterclaim allowed

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

22Stay of claim

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

23Time 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.".

24Other requirements for service

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

"(a)any order or consent under Rule11.05(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.".

25Appearance by third party

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

26Counterclaim by third party

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

27Default by third party

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

28Claim 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 "shallapply" substitute "applies".

29Fourth and subsequent parties

In Rule 11.16(1) of the Principal Rules, for "shallapply" substitute "applies".

30Counterclaim

In Rule 11.17 of the Principal Rules—

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

(b)omit "apply".

31Definitions for Order 12

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

32Sheriff's interpleader

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

33Admission of claim

In Rule 12.06 of the Principal Rules—

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

(b)in paragraph (c)—

(i)omit "the Court";

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

34Interpleader summons

In Rule 12.07(1) of the Principal Rules—

(a)omit "the Court may";

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

35Neutrality 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 "shallaffect" substitute "affects".

36Trial of interpleader question

In Rule 12.12(1) of the Principal Rules, for "shallapply" substitute "applies".

37Content of pleading

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

38Matter which must be pleaded

In Rule 13.07(2)(b) of the Principal Rules, for "isin 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".

39Particulars of pleading

For Rule 13.10(3) of the Principal Rules substitute—

"(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.".

40Admission 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.

(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.".

41Denial by joinder of issue

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

42Counterclaim

In Rule 13.15 of the Principal Rules—

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

(b)omit "apply".

43Heading to Order 15 amended

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

44Definitions for Order 15

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

45Litigation guardian of person under disability

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

46Appointment 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.".

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

47Discovery

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

48Execution against money in court

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

49Counterclaim and claim by third party notice

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

50Representation 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".

51Appearance under objection of person sued as partner

(1)For Rule 17.06(1) of the Principal Rules substitute—

"(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".

52Enforcement of judgment

(1)In Rule 17.07(1) of the Principal Rules—

(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 "ajudgment or" insert "an".

53Charge on partner's interest

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

54Effect of judgment

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

55Solicitor ceasing to act

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

56Removal of solicitor from record

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

57Address for service

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

(2)For Rule 20.05(2) of the Principal Rules substitute—

"(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—

(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.".

58Judgment for recovery of debt, damages or property

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

59Stay or judgment in proceeding

In Rule 23.01(1) of the Principal Rules—

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

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

60Rule 24.01 substituted

For Rule 24.01 of the Principal Rules substitute—

"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.".

61Counterclaim and third party claim

In Rule 24.04 of the Principal Rules, for "shallapply" substitute "applies".

62Inherent jurisdiction

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

63Discontinuance or withdrawal of proceeding or claim

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

64Heading to Order 26 amended

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

65Heading to Part 2 of Order 26 amended

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

66Disclosure of offer to court

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

67Party 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".

68Heading of document

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

69Form of document

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

70Seal of Court

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

71New Rule28.04A 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.".

72Inspection 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".

73Documents that may not be filed electronically

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

74Scope of discovery

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

75Notice for discovery

In Rule 29.02(1) of the Principal Rules—

(a)omit "may";

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

76Rule 29.03 substituted

For Rule 29.03 of the Principal Rules substitute—

"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.".

77Co-defendants and third party

In Rule 29.06(2) of the Principal Rules, for "shallapply" substitute "applies".

78Default notice

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

79Default on discovery

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

80Source for answers to interrogatories

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

81Who to answer interrogatories

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

82Default notice

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

83Non-compliance with order

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

84Effect of consent

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

85Party 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".

86Counterclaim

In Rule 33.02 of the Principal Rules, for "shallapply" substitute "applies".

87Expenses

In Rule 33.05(2) of the Principal Rules—

(a)omit "shall";

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

88No evidence unless disclosed in report

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

89Voluntary admission of facts

In Rule 35.02(2) of the Principal Rules—

(a)omit "may";

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

90General

(1)In Rule 36.01(6) of the Principal Rules—

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

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

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

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

91Amendment of judgment or order

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

92Payment into Court in discharge of lien

In Rule 37.05(2) of the Principal Rules, for "shallapply" substitute "applies".

93Default by receiver

In Rule 39.08(2) of the Principal Rules—

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