Version No. 021
Magistrates' Court Civil Procedure Rules 1999
S.R. No. 58/1999
Version incorporating amendments as at 1 January 2004
table of provisions
RulePage
1
RulePage
Order 1
PRELIMINARY
PART 1—GENERAL
1.01Object
1.02Authorising provisions
1.03Commencement
1.04Revocation
PART 2—APPLICATION OF RULES
1.05Definitions
1.06Application
1.07Proceedings in another court
1.08Order in pending proceeding
1.09Costs
PART 3—INTERPRETATION
1.10Definitions
PART 4—MISCELLANEOUS
1.11Exercise of power
1.12Procedure wanting or in doubt
1.13Act by corporation
1.14Corporation a party
1.15Power to act by solicitor
1.16Filing of documents
1.17Seal of Court
1.18Use of electronic messages for lodging Court documents
Order 2
NON-COMPLIANCE WITH THE RULES
2.01Effect of non-compliance
2.02Originating process
2.03Application to set aside for irregularity
2.04Dispensing with compliance
Order 3
TIME, SITTINGS, COURT OFFICE AND DOCUMENTS
3.01Calculating time
3.02Extension and abridgement
3.03Fixing time
3.04Time for service
3.04.1Process in vacation
3.05Content and form of documents
3.06Registrar refusing to accept documents
3.07Scandalous matter
Order 4
PROCESS IN THE COURT
4.01Claim not to be divided
4.02Form of complaint
4.02.1Requirements for filing a complaint by an electronic message
4.02.2Complaints by electronic message to comply with Rules
4.02.3Copy of complaint commenced by electronic message to be provided upon request
4.03Costs to be specified
4.04Filing of process
4.05Duration
4.06Interlocutory application
4.07Names of parties
4.08Urgent cases
4.09Discontinuance and withdrawal
4.10Costs on discontinuance or withdrawal
4.11Stay on new proceeding
Order 5
SERVICE
5.01When personal service necessary
5.02Complaint to be served personally
5.03How personal service effected
5.04Service on particular defendants
5.05Service on persons jointly sued
5.06Claims for personal injury
5.07How ordinary service effected
5.08Acceptance of service by solicitor
5.09Substituted service
5.10Service of document by the Court
5.11Affidavit of service
Order 5A
SERVICE OUT OF AUSTRALIA
5A.01.For what claims
5A.02.Form of complaint and indorsement
5A.03.Mode of service out of Australia
5A.04.Leave to apply for an order
5A.05.Stay, setting aside service, etc.
5A.06.Service of counterclaim or third party notice
5A.07.Application for order under Rule 5A.05 or 5A.06
Order 6
CLAIMS AND PARTIES
PART 1—JOINDER AND SEVERANCE
6.01Joinder of claims
6.02Joinder of parties permitted
6.03Plaintiff suing for numerous persons
6.04Business or firm name
6.04.1Plaintiff suing owner or charterer of ship
6.05Additions, removal, substitutions of party
PART 2—CONSOLIDATION
6.06Consolidation of proceedings
6.07Where several complaints against one defendant
Order 7
COUNTERCLAIM
7.01When counterclaim allowed
7.02Form of counterclaim
7.03Trial of counterclaim
7.04Counterclaim on stay etc. of original proceeding
Order 8
THIRD PARTY PROCEDURE
8.01Claims by third party notice
8.02Filing and service of third party notice
8.03Plaintiff may join third party
8.04Separate disposal or stay of third party proceeding
8.05Directions
8.06Trial
8.07Subsequent parties
8.08Counterclaim
8.09Contribution proceedings
8.10Proceedings to enforce order for contribution or indemnity
Order 9
DEFENCES AND PARTICULARS
9.01Notice of defence after service
9.03Particulars from plaintiff
9.04Particulars from defendant
9.05Time for giving notice
9.06Particulars to be filed
9.07Counterclaim and third party claim
9.08Failure to give particulars
9.09Request for referral of a medical question to a Medical Panel—Form 9B
Order 10
ORDER IN DEFAULT OF DEFENCE OR COMPLIANCE
PART 1—ORDER IN DEFAULT OF DEFENCE
10.01Plaintiff may apply for order
10.02Affidavit required
10.02.1Application by electronic message
10.03Registrar may make order or refer to Court
PART 2—ORDER IN DEFAULT OF COMPLIANCE
10.04Defendant may apply for costs order
10.05Applications under Rule 10.04
10.06Registrar may make order or refer to Court
PART 3—SUMMARY ORDERS FOR PLAINTIFF
10.07Application
10.08Application for an order
10.09Affidavit in support
10.10Service
10.11Defendant to show cause
10.12Affidavit in reply
10.13Hearing of application
10.14Cross-examination on affidavit
10.15Order on counterclaim
10.16Order where amount unascertained
10.17Directions
10.18Continuing for other claim or against other defendant
10.19Setting aside order
Order 11
DISCOVERY
11.01Definition
11.02Notice for discovery
11.02.1Discovery requiring leave of Court
11.03Time for notice
11.04Affidavit of documents
11.05Time for making discovery
11.05.1Continuing obligation to make discovery
11.06Inspection of documents
11.07Failure to make discovery
Order 12
INTERROGATORIES
12.01When interrogatories allowed
12.01.1Interrogatories requiring leave of Court
12.02Time for serving interrogatories
12.03Statement as to who to answer
12.04Time for answering interrogatories
12.05Answers and objections
12.06Who to answer
12.07Failure to answer interrogatories
12.08Answers as evidence
Order 13
PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY
13.01Definitions
13.02Privilege
13.03Discovery to identify a defendant
13.04Party an applicant
13.05Discovery from prospective defendant
13.06Party an applicant
13.07Discovery from non-party
13.08Procedure
13.09Inspection of documents
13.10Costs
Order 14
ADMISSIONS
14.01Definition
14.02Voluntary admission of facts
14.03Notice for admission of facts
14.04Notice for admission of documents
14.05Cost of non-admission of fact or document
14.06Restrictive effect of admission
Order 15
OFFER OF COMPROMISE
PART 1—INTERPRETATION
15.01Definitions
PART 2—OFFER OF COMPROMISE
15.02Application
15.03Time for making, accepting, etc. offer
15.04Time for payment
15.05Effect of offer
15.06Disclosure of offer to Court
15.07Failure to comply with accepted offer
15.08Costs consequences of failure to accept
15.09Multiple defendants
15.10Offer to contribute
15.11Transitional
Order 16
EVIDENCE GENERALLY
16.01Evidence of witness
16.01.1Quotation or assessment as evidence
16.02When affidavit may be used
16.03Use of affidavits when practicable
16.04Attendance and production
16.05View
16.06Admission of documents
16.07Person about to leave Victoria may be ordered to be examinedor to produce documents
Order 16A—Application Under Section 42E(1) of theEvidence Act 1958
16A.01Application of Order
16A.02Form of application
16A.03Filing
16A.04Service
16A.05Duty of applicant
16A.06Payment of costs
Order 17
WITNESS SUMMONSES
17.01Attendance by summons
17.02Filing summons
17.03Service
17.04Conduct money
17.05Expenses of witnesses
17.06Setting aside
17.07Books of account
17.08Production before date of attendance
Order 18
AFFIDAVITS
18.01Form of affidavit
18.02Affidavit by illiterate, blind or incapacitated person
18.03Content of affidavit
18.04Affidavit by two or more deponents
18.05Alterations
18.06Annexures and exhibits
18.07Time for swearing
18.08Irregularity
18.09Filing
18.10Affidavit sworn before party, solicitor
Order 19
EXPERT EVIDENCE
19.01Application
19.02Service of statement or copy of a report of an expert
19.03.Making a statement or copy of a report of other party
evidence
Order 19A
SERVICE OF MEDICAL REPORTS
19A.01Application
19A.02Counterclaim
19A.03Definitions
19A.04Notice for examination
19A.05Expenses
19A.06Report of examination
19A.07Service of reports
19A.08Time for service
19A.09Other medical reports to be served
19A.10Proceeding against medical expert
19A.11Medical report admissible
19A.12No evidence unless disclosed in report
Order 20
APPLICATIONS
PART 1—GENERAL
20.01Application of Order
20.02Form of application
20.03Form and filing
20.04Service
20.05Adjournment
20.06Absence of party to application
PART 2—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENTCOMPENSATION ACT 1985
20.07Definitions
20.08Application for appointment of nominal defendant—Forms20B and 20C
20.09Application for discharge
20.10Application for reference of question to medical referee—Forms 20D, 20E, 20F, 20G, 20H, 20J and20K
20.11Application for revocation of direction of Conciliation
Officer
Order 21
ARBITRATION
21.01Application
21.02Discovery and interrogatories
Order 22
PRE-HEARING CONFERENCES
22.00Referral of complaint for pre-hearing conference
22.01Procedure
22.02Confidentiality
Order 23
HEARING
23.01Order of hearing
23.02No addresses
23.03Absence of party
23.04Adjournment of hearing
Order 24
INSTRUMENTS ACT RULES
24.01Definition
24.02Application of Order
24.03Form of complaint
24.04Leave to defend
24.05Order where leave not granted
24.06Notice to parties
24.07Leave to defend after order made
Order 25
ORDERS
25.01General relief
25.02Date of effect
25.03Time for compliance
25.04Orders may be drawn up; certified extract
25.05Consent orders
25.06Order where excess abandoned
25.07Setting aside or varying self-executing order
Order 26
COSTS
26.01Costs to be fixed on day of hearing
26.02Costs in accordance with Appendix A
26.03Application of scale
26.04Costs on counterclaim
26.05Costs of discovery, particulars
26.06Complaint not referred to arbitration
26.07Costs after defence struck out
26.08Costs after complaint dismissed
Order 27
ENFORCEMENT OF ORDERS
PART 1—DEFINITIONS
27.01Definitions
PART 2—WARRANTS GENERALLY
27.02Issue of warrant
27.02.1Issue of warrant consequent to request by electronic
message
27.03Duration
27.04Costs of prior execution
27.05Interpleader
27.06When interpleader decided against the claimant
27.07Order against two or more persons
27.08Order against partners
PART 3—WARRANTS TO SEIZE PROPERTY
27.09Warrant to seize property
27.10Form of warrant
27.10.1Notice to person responsible for safe-keeping of seized property
PART 4—WARRANTS OF DELIVERY
27.11Warrant of delivery
27.12Form of warrant
PART 4A—ORAL EXAMINATION
27.12.1Examination of judgment debtor
27.12.2Issue of summons for oral examination consequent to application by electronic message
PART 5—ATTACHMENT OF EARNINGS ORDERS
27.12.3Definition
27.13Attachment of earnings order
27.15Application for attachment of earnings order
27.16Examination of judgment debtor
27.17Making an order in absence of debtor
27.18Contents of order
27.19Service of order
27.20Employer to make payments
27.21Discharge or variation of order
27.22Cessation of attachment of earnings order
27.23Two or more attachment of earnings orders in force
27.24Notice to judgment debtor of payments
27.25Determination of earnings
27.26Service
PART 6—ATTACHMENT OF DEBTS
27.27Attachable debts
27.30Order for attachment of debt
27.31Dispute of liability by garnishee
27.33Claim by another person
27.34Discharge of garnishee
PART 7—IMPRISONMENT OF FRAUDULENT DEBTORS
27.35Application for summons
Order 27A
SERVICE AND EXECUTION OF PROCESS RULES
27A.01Definitions
27A.02How application made
27A.03Sealed copy of order
27A.04Enforcement of order
27A.05Fees
27A.06Costs
27A.07Interest
Order 28
JUDGMENT DEBT RECOVERY RULES
28.01Definition
28.02Application under section 5
28.03Application under section 6 or 8
28.04Notice of objection
28.05Agreement under section 7
28.06Order in absence of parties
28.07Summons for examination
28.08Warrant of apprehension
28.09Forms of notice
28.10Warrant of commitment
28.11Payments to be made to registrar
28.12Certificate of discharge
28.13Service and notification
28.14Adjournment
Order 29
VENUE AND TRANSFER OF PROCEEDINGS
29.01Venue of Court
29.02Transfer of proceeding to the Court
Order 30
RE-HEARING
30.01Application for re-hearing
30.02Form of application
30.03Re-hearing date
Order 31
SECURITY FOR COSTS
31.01Definitions
31.02When security for costs may be ordered
31.03Manner of giving security
31.04Failure to give security
31.05Variation or setting aside
31.06Payment by way of irrevocable guarantee
31.07Requirements of guarantee
31.08Liability of bank
Order 32
PERSON UNDER DISABILITY
32.01Litigation guardian of minor
32.02Person with a disability
32.03Litigation guardian of defendant
32.04Power of litigation guardian
32.05Compromise of claim by minor or a person with a disability
32.06Money to be paid into court
32.07Investment of money
Order 33
REGISTRARS
33.01Reference to a magistrate
33.02Appeal from registrar
Order 34
APPEALS
34.01Application of order
34.02Notice of appeal
34.03Amendment of grounds
34.04Affidavit
34.05Date for hearing
Order 35
MISCELLANEOUS RULES
35.01Civil registry courts
35.02General power of amendment
35.02.1Registrar's power of amendment
35.03Directions
35.04Injunctions
35.05Preservation of property
35.06Practice notes
______
FORMS
Form 1A—Electronic Lodgment Authorisation
Form 4A—Complaint
Form 5A—Affidavit/Declaration of Service
Form 5AB—Complaint (for Service out of Australia)
Form 7A—Counterclaim
Form 7AB—Counterclaim (for Service out of Australia)
Form 8A—Third Party Notice
Form 8B—Notice Claiming Contribution
Form 9A—Notice of Defence
Form 9B—Notice of Request Pursuant to Section 45(1)(b) of the AccidentCompensation Act 1985
Form 10A—Application for Order
Form 10B—Application for an Order for Costs
Form 10C—Application for Summary Order
Form 10D—Application for *Setting Aside/*Variation of Summary Order
Form 11A—Notice for Discovery
Form 11B—Affidavit of Documents
Form 11C—Notice to Produce
Form 14A—Notice to Admit
Form 14B—Notice of Dispute
Form 16AA—Notice of Application under Section 42E(1) of the EvidenceAct 1958
Form 17A—Witness Summons to give Evidence
Form 17B—Witness Summons for Production
Form 17C—Witness Summons for Production and to give Evidence
Form 17D—Witness Summons for Production
Form 20A—Application
Form 20B—Application for Appointment of Nominal Defendant
Form 20C—Notice of Appointment of Nominal Defendant
Form 20D—Application for Reference of Question to Medical Referee
Form 20E—Order of Reference
Form 20F—Certificate of Identity
Form 20G—Notice to be given to Worker Intending to Cease to Reside inAustralia
Form 20H—Form of Medical Certificate to be Obtained by Worker Residing out of Australia
Form 20J—Declaration of Identity by Worker Residing out of Australia
Form 20K—Notice by Registrar to Employer of Receipt of Medical Certificate and Declaration of Identity
Form 24A—Complaint
Form 24B—Application for Leave to Defend
Form 24C—Application for Order
Form 24D—Notification of Decision
Form 24E—Application for Leave to Defend after Order Made
Form 27A—Interpleader Summons
Form 27B—Warrant to Seize Property
Form 27BA—Notice to Person Responsible for Safe-keeping of PropertySeized under a Warrant to Seize Property
Form 27C—Warrant of Delivery
Form 27CA—Summons to Attend for Oral Examination
Form 27CB—Summons to Attend to give Evidence or Produce
Documents
Form 27CC—Examination of a Judgment Debtor
Form 27CD—Examination of an Officer of a Judgment Debtor which isaCorporation
Form 27D—Attachment of Earnings Summons
Form 27E—Affidavit in Support of Application for Attachment of EarningsOrder
Form 27F—Judgment Debtor's Statement of Financial Position
Form 27J—Order that Judgment Debtor Attend for Examination
Form 27K—Order that Person Indebted or Employer of Judgment Debtorgive Statement
Form 27L—Attachment of Earnings Order
Forms 27M, 27N—Revoked238
Form 27P—Garnishee Order
Form 27Q—Garnishee Order
Form 27R—Affidavit in Support of Summons for Commitment
Form 27AA—Order
Form 27AB—Default Order for Debt
Form 27AC—Affidavit in Support of Enforcement
Form 28A—Application
Form 28B—Statement of Affairs by an Individual
Form 28BA—Statement of Aaffairs by an Officer of a Corporation
Form 28C—Notice of Objection
Form 28D—Instalment Agreement
Form 28E—Summons for Examination
Form 28F—Application for Issue of Summons
Form 28G—Warrant of Apprehension
Form 28H—Notice
Form 28J—Notice
Form 28K—Notice
Form 28L—Warrant of Commitment
Form 28M—Certificate of Discharge
Form 30A—Application for Re-hearing
Form 31A—Irrevocable Bank Guarantee
Form 31B—Notice of Discharge and Payment into Court
Form 32A—Consent to Act as Litigation Guardian
Form 34A—Notice of Appeal
______
APPENDIX A
APPENDIX B
______
SCHEDULE 1—Rules Revoked
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endnotes
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 021
Magistrates' Court Civil Procedure Rules 1999
S.R. No. 58/1999
Version incorporating amendments as at 1 January 2004
1
Magistrates' Court Civil Procedure Rules 1999
S.R. No. 58/1999
The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:
Order 1
PRELIMINARY
PART 1—GENERAL
1.01Object
The object of these Rules is to re-make with amendments the rules of procedure in civil proceedings in the Magistrates' Court of Victoria.
1.02Authorising provisions
These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.
1.03Commencement
These Rules come into operation on 1 June 1999.
1.04Revocation
The Rules in Schedule 1 to these Rules are revoked.
PART 2—APPLICATION OF RULES
1.05Definitions
r. 1.05
In this Part—
"commencement date" means the date referred to in Rule 1.03;
"former Rules" means the Magistrates' Court Civil Procedure Rules 1989;
"pending proceeding" means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied.
1.06Application
(1)These Rules apply to every civil proceeding commenced in the Court on or after the commencement date except where inconsistent with any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984.
(2)These Rules apply, with any necessary modification, to a pending proceeding and anything required or permitted to be done under these Rules with respect to a proceeding commenced on or after the commencement date shall or may be done in a pending proceeding.
1.07Proceedings in another court
(1)Except as the Court otherwise orders these Rules apply, with any necessary modification, to proceedings commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date as if they were a proceeding commenced in the Court on the day they were remitted, transferred or removed.
(2)For the purposes of this Part a proceeding commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date shall be taken to be a pending proceeding.
1.08Order in pending proceeding
r. 1.08
(1)Except as provided in this Rule, these Rules apply to an order made in a pending proceeding as if it had been given in a proceeding commenced after the commencement date.
(2)An order made in a pending proceeding before the commencement date may be enforced in accordance with these Rules, but otherwise the order shall have the same force and effect as if it were made under any Act or Rules previously in force.
(3)Without limiting paragraph (2)—
(a)no appeal may be brought, application to set aside or vary made or other proceeding taken in respect of an order made before the commencement date which could not have been brought, made or taken in respect of that order under the former Rules immediately before the commencement date;
(b)process commenced under the former Rules to enforce an order made before the commencement date may be continued or carried out and aided in accordance with those Rules.
1.09Costs
(1)The amount of costs for work done in a pending proceeding before the commencement date shall be determined in accordance with the former Rules and the amount of costs for work done in the proceeding on or after that date shall be determined in accordance with these Rules.
(2)For the purpose of this Rule work done in a pending proceeding on or after the commencement date in accordance with the former Rules shall, so far as practicable, be taken to have been done in accordance with these Rules.
PART 3—INTERPRETATION
1.10Definitions
r. 1.10
(1)In these Rules, unless the context or subject matter otherwise requires—
"authorised insurer" has the same meaning as in section 5(1) of the Accident Compensation Act 1985;
"authorised user" means a person or body authorised by the Chief Magistrate under Rule 1.18 to file documents by lodging electronic messages with the Court;
"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 54 of the Accident Compensation Act 1985;
"corporation" means any body corporate, whether formed within or out of Victoria;
"discovery" includes discovery and inspection of documents and discovery by written interrogatories or oral examination and "make discovery of documents" means make an affidavit of documents complying with the requirements of these Rules, file the affidavit and serve a copy on the party or person entitled to the discovery;
"electronic message" means data transmitted electronically by an authorised user to the Court;
"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 2 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;
"order made" means an order made by the Court at the hearing of a proceeding or on the hearing of an application in a proceeding;
"personal injury" includes any impairment of mental condition or any disease;
r. 1.10
"plaintiff" includes a claimant under section 44(1) of the Workers Compensation Act 1958;
"proceeding" means any matter in the Court commenced by complaint or as otherwise provided by or under any Act or these Rules;
"registrar" means the principal registrar or the registrar or deputy registrar of the Court at the proper venue of the Court in relation to a proceeding;
"self-insurer" has the same meaning as in section5(1) of the Accident Compensation Act 1985;
"solicitor" means a legal practitioner within the meaning of the Legal Practice Act 1996 not being a legal practitioner who practises as a barrister only;
"the Act" means the Magistrates' Court Act 1989;
"worker" 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.
PART 4—MISCELLANEOUS
1.11Exercise of power
r. 1.11
The Court may exercise any power under these Rules of its own motion or on application.
1.12Procedure wanting or in doubt
Where the manner or form of the procedure—
(a)for commencing, or for taking any step, in a proceeding; or
(b)by which the jurisdiction, power or authority of the Court is exercisable—
is not prescribed by these Rules or by or under any Act the general principles of practice and the Rules and forms observed and used in the Supreme Court may, at the discretion of the Court, be adopted and applied to any proceeding with such modification as may be necessary.
1.13Act by corporation
Where the Court makes an order that a corporation do any act, it may order that the act be done by the corporation by its appropriate officer.
1.14Corporation a party
r. 1.14
(1)Subject to paragraph (2), a corporation must not take any step in a proceeding except by a solicitor.
(2)Paragraph (1) does not apply—
(a)if by or under any Act or these Rules a corporation is permitted to act other than by a solicitor; and
(b)to the filing of a complaint, the giving of a notice of defence and, in a case to which Order 10 applies, obtaining an order by a corporation which is a party or by an employee, authorised in writing, of a corporation which is a party.
1.15Power to act by solicitor
(1)Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party's solicitor.
(2)Where a solicitor ceases to act for a party in a proceeding the solicitor must forthwith file notice of ceasing to act and serve a copy on all parties including the party for whom the solicitor has ceased to act.
1.16Filing of documents
Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by its being lodged with the registrar in the office of the Court at the proper venue of the Court.
1.17Seal of Court
r. 1.17
(1)The principal registrar and every registrar shall each have in his or her custody a stamp the design of which shall as near as practicable be the same as the design of the seal of the Court with the addition of, in the case of—
(a)the principal registrar, the words "Principal Registrar";
(b)a registrar, the word "Registrar".