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

═══════════════

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".