Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2016
S.R. No. 17/2016
table of provisions
RulePage
RulePage
1Object
2Authorising provisions
3Commencement
4Principal Rules
5Definition
6Effect of noncompliance
7Application to set aside for irregularity
8Urgent cases
9Duration
10Personal service on particular parties
11How ordinary service effected
12Acceptance of service by Australian lawyer
13Substituted service
14Application for leave
15Joinder of claims
16Addition, removal, substitution of party
17Defendant dead at commencement of proceeding
18Change of party on death, bankruptcy
19Failure to proceed after death of party
20Amendment of proceedings after change of party
21Procedure after counterclaim against another person
22Default by third party
23Claim against another party
24Definitions for Order 12
25Admission of claim
26Interpleader summons
27Neutrality of applicant
28Order in several proceedings
29Heading to Order 15 amended
30Definitions for Order 15
31Litigation guardian of person under disability
32Appointment of litigation guardian
33Discovery
34Rule 17.06 substituted
35Heading to Order 26
36Heading to Part 2 of Order 26
37Party under disability
38Form of document
39Seal of Court
40Scope of discovery
41Co-defendants and third party
42Inspection of documents referred to in pleadings and affidavits
43Source for answers to interrogatories
44Who to answer interrogatories
45Party an applicant
46Inspection of documents
47Costs
48Voluntary admission of facts
49General power of amendment
50Inspection from prospective defendant
51Procedure
52Examination on affidavit
53Deposition as evidence
54Heading to Order 41A substituted
55 Payment of costs
56Application of Order 42A
57Objection by party to inspection by other party
58Removal of document
59Return of document
60Form of affidavit
61Affidavit by illiterate, blind or incapacitated person
62Annexures and exhibits
63Application of Order 44
64Report of expert
65No evidence unless disclosed in report
66Time for compliance
67Authentication of warrants
68Adjournment
69When security for costs may be ordered
70Time for costs order and payment
71Bases of taxation
72Standard basis
73Indemnity basis
74Heading to Rule 63.68 amended
75Gross sum for costs
76Order in aid of enforcement
77Definitions in Order 68
78Notional possession of goods
79Examination of judgment debtor
80Minor amendments to Forms 4B, 5A, 7A, 7AA, 7AB, 7AC, 8A, 10A, 11A, 11B and 12A
81Notice of claim to goods taken in execution
82Minor amendments to Forms 12C, 19A, 21A, 21B and 22A
83Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and35B
84Minor amendments to Forms 46A, 46B, 61D to 61I
85Minor amendments to Forms 61J, 61K, 61L, 61M, 67A and67D
86Minor amendments to Forms 68A, 68B, 69A, 71A to72E
87Minor amendments to Forms 82A and 82B
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Endnotes
1
statutory rules 2016
S.R. No. 17/2016
1
Magistrates' Court Act 1989
1
Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2016
1
Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2016
S.R. No. 17/2016
The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:
1Object
The object of these Rules is to amend the Magistrates' Court General Civil Procedure Rules2010—
(a)to ensure that, as far as possible, the Magistrates' Court General Civil Procedure Rules 2010 are consistent with the Supreme Court (General Civil Procedure) Rules 2015; and
(b)to make other miscellaneous amendments.
2Authorising provisions
These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.
3Commencement
These Rules come into operation on 11 April 2016.
4Principal Rules
In these Rules, the Magistrates' Court General Civil Procedure Rules 2010[1] are called the Principal Rules.
5Definition
Insert the following definition in Rule 1.13 of the Principal Rules—
"sheriff includes—
(a)the sheriff employed under section 6 of the Sheriff Act 2009; and
(b)any person to whom a warrant referred to in these Rules is directed;".
6Effect of noncompliance
(1)In Rule 2.01(1) of the Principal Rules, for "or a" substitute "or any".
(2)In Rule 2.01(1) of the Principal Rules, for "therein" substitute "in the proceeding".
7Application to set aside for irregularity
In Rule 2.03 of the Principal Rules, for "therein" substitute "in any proceeding".
8Urgent cases
In Rule 4.08 of the Principal Rules—
(a)omit"the Court may,";
(b)after "directs," insert "the Court may".
9Duration
In Rule 5.12(4) of the Principal Rules, for "mustadjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise." substitute—
"must—
(a)adjourn the further hearing; and
(b)direct the plaintiff to give notice to the defendant by summons or otherwise.".
10Personal service on particular parties
For Rule 6.04(d) of the Principal Rules substitute—
"(d)the Crown in right of the Commonwealth or the Commonwealth, on the Attorney-General of the Commonwealth or on a person appointed by the Attorney-General to receive service in accordance with section 63 of the Judiciary Act 1903 of the Commonwealth;".
11How ordinary service effected
In Rule 6.07(2)(a) of the Principal Rules, for "hisor her" substitute "the individual's".
12Acceptance of service by Australian lawyer
In Rule 6.09(2) of the Principal Rules—
(a)omit ", unless the Australian lawyer is shown not to have had authority to accept service,";
(b)after "made the note" insert ", unless the Australian lawyer is shown not to have had authority to accept service".
13Substituted service
For Rule 6.10(3) of the Principal Rules substitute—
"(3)The Court may make an order under paragraph (1) even though the person to be served—
(a)is out of Victoria; or
(b)was out of Victoria when the proceeding commenced.".
14Application for leave
For Rule 7.08(4) of the Principal Rules substitute—
"(4)If any document is served out of Australia byorder of the Court made under Rule 7.06 or 7.07(3), the following must 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;
(b)unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit.".
15Joinder of claims
For Rule 9.01 of the Principal Rules substitute—
"9.01 Joinder of claims
A plaintiff may join any number of claims against a defendant—
(a)whether the plaintiff makes the claims in the same or in different capacities; and
(b)whether the claims are made against the defendant in the same or in different capacities.".
16Addition, removal, substitution of party
In Rule 9.06(b) of the Principal Rules—
(a)omit ", namely";
(b)for "upon; or" substitute "upon;".
17Defendant dead at commencement of proceeding
In Rule 9.08(4) of the Principal Rules, after "Aproceeding" insert "commenced".
18Change of party on death, bankruptcy
For Rule 9.09(2) and (3) of the Principal Rules substitute—
"(2)If at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order—
(a)that the other person be added as a party to the proceeding or be made a party in substitution for the original party; and
(b)that the proceeding be carried on as so constituted.
(3)Unless the Court otherwise directs, the person on whose application an order is made under paragraph (2)—
(a)must serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order; and
(b)in the case of a person who becomes a defendant, must serve that person personally with the order and with the complaint.".
19Failure to proceed after death of party
In Rule 9.10(2) of the Principal Rules—
(a)for "(i)" substitute "(a)";
(b)for "(ii)" substitute "(b)".
20Amendment of proceedings after change of party
For Rule 9.11(1) of the Principal Rules substitute—
"(1)If an order is made under Rule 9.06 or9.08—
(a)the complaint filed in the Court must, subject to Rule27.02(5), be amended accordingly within the time specified in the order, and otherwise within 10days after the making of the order; and
(b)a reference to the order, the date of the order and the date on which the amendment is made must be indorsed upon the complaint or the other originating process.".
21Procedure after counterclaim against another person
In Rule 10.04(1) of the Principal Rules, for "showing who is plaintiff to the counterclaim andwho are defendants to the counterclaim." substitute—
"showing—
(a)who is plaintiff to the counterclaim; and
(b)who are defendants to the counterclaim.".
22Default by third party
In Rule 11.11(2) of the Principal Rules, after "such order" insert "as".
23Claim against another party
In Rule 11.15(3) of the Principal Rules—
(a)after "this Order" insert "applies";
(b)for "applies as if" substitute "as if".
24Definitions for Order 12
In Rule 12.01 of the Principal Rules—
(a)in the definition of property in dispute, for "proceedings" substitute "a proceeding";
(b)the definition of sheriff is revoked.
25Admission of claim
In Rule 12.06 of the Principal Rules—
(a)in paragraph (a), for "given;" substitute "given; and";
(b)in paragraph (b), for "claimed;" substitute"claimed; and";
(c)in paragraph (c)—
(i) omit "the Court,";
(ii)after "the sheriff," insert "the Court".
26Interpleader summons
In Rule 12.07(1) of the Principal Rules—
(a)omit "the Court may";
(b)after "withdrawn," insert "the Court may".
27Neutrality 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 "mustaffect" substitute "affects".
28Order in several proceedings
For Rule 12.11(2) of the Principal Rules substitute—
"(2)An order made under paragraph (1)—
(a)must be entitled in all the proceedings in which it is made; and
(b)must be binding on all the parties to them.".
29Heading to Order 15 amended
In the heading to Order 15 of the Principal Rules, for "PERSON" substitute "PERSONS".
30Definitions 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".
31Litigation guardian of person under disability
In Rule 15.02(1) and (2) of the Principal Rules, for "his or her" substitute "the person's".
32Appointment 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".
33Discovery
In Rule 15.07(2) of the Principal Rules, for "hisorher" substitute "the person's".
34Rule 17.06 substituted
For Rule 17.06 of the Principal Rules substitute—
"17.06 Notice of defence under objection of person sued as partner
A person served with a complaint as a partner may file a notice of defence 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.".
35Heading to Order 26
In the heading to Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".
36Heading to Part 2 of Order 26
In the heading to Part 2 of Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".
37Party under disability
In Rule 26.06 of the Principal Rules, for
"him or her" substitute "the person".
38Form of document
(1)For Rule 27.03(5) of the Principal Rules substitute—
"(5)Subject to Rule 27.02(4) and (5), the heading of the document—
(a)must be indorsed on the first sheet of the document; and
(b)must be followed immediately by a short description of the document.".
(2)In Rule 27.03(12) of the Principal Rules, for"andtelephone number" substitute ",telephone number and email address".
39Seal of Court
In Rule 28.04(1) of the Principal Rules, for
"his or her" substitute "that person's".
40Scope of discovery
In Rule 29.01.1(4)(b) of the Principal Rules, for "his, her or its" substitute "the party's".
41Co-defendants and third party
In Rule 29.06(2) of the Principal Rules, for "shallapply" substitute "applies".
42Inspection of documents referred to in pleadings and affidavits
In Rule 29.10(2) of the Principal Rules—
(a)for "other party may" substitute "otherparty";
(b)after "that party," insert "may".
43Source for answers to interrogatories
For Rule 30.05(1)(b) of the Principal Rules substitute—
"(b)a party who has no knowledge of the fact or matter inquired after must be taken not to have a belief as to the fact or matter—
(i)where the party has no information relating to the fact or matter on which to form a belief; or
(ii)where, if the party has such information, for reasonable cause the party has no belief that the information is true;".
44Who to answer interrogatories
In Rule 30.08(1)(a)(ii) of the Principal Rules, for "his or her" substitute "that person's".
45Party an applicant
For Rule 32.06 of the Principal Rules substitute—
"32.06 Party an applicant
Rule 32.05 applies, with any necessary modification, if—
(a)the applicant is a party to a proceeding; and
(b)there is reasonable cause to believe thatthe applicant has or may have the right to obtain against a person who is not a party relief which the applicant could properly have claimed in the proceeding had the person been a party.".
46Inspection of documents
In Rule 32.09 of the Principal Rules, for "mentioned" substitute "referred to".
47Costs
In Rule 32.11(1)(c) of the Principal Rules omit "of".
48Voluntary admission of facts
(1)In Rule 35.02(1) of the Principal Rules—
(a)omit"may";
(b)after "another party," insert "may".
(2)In Rule 35.02(2) of the Principal Rules—
(a)omit"may";
(b)after "Court," insert "may".
49General power of amendment
(1)For Rule 36.01(2) of the Principal Rules substitute—
"(2)In this Part document includes—
(a)a complaint; and
(b)an application; and
(c)a pleading.".
(2)In Rule 36.01(6) of the Principal Rules—
(a)for "The Court may, notwithstanding" substitute "Notwithstanding";
(b)after "commenced," insert "the Court may".
50Inspection from prospective defendant
For Rule 37.02(5) of the Principal Rules substitute—
"(5)On an application under this Rule, the Court may make an order for the costs and expenses of—
(a)the applicant; and
(b)the person against whom the order is sought.".
51Procedure
For Rule 37.03(1) of the Principal Rules substitute—
"(1)An application for an order under Rule 37.01 must be made by application—
(a)served on all parties to the proceeding; and
(b)served personally on each person who would be affected by the order if made.".
52Examination on affidavit
In Rule 40.04 of the Principal Rules—
(a)omit"may" (where first occurring);
(b)in paragraph (a), before "order" insert "may".
53Deposition as evidence
In Rule 40.07(1)(a)(ii) of the Principal Rules, for "his or her" substitute "the deponent's".
54Heading to Order 41A substituted
For the heading to Order 41A of the Principal Rules substitute—
"APPLICATION TO USE AUDIO VISUAL LINK OR AUDIO LINK".
55 Payment of costs
In Rule 41A.06 of the Principal Rules—
(a)after "amount" insert "(if any)";
(b)after "regulations" insert "(if any)".
56Application of Order 42A
In Rule 42A.01 of the Principal Rules, for "Rule" substitute "Order".
57Objection by party to inspection by other party
In Rule 42A.08(2) of the Principal Rules, for "hisor her" substitute "the plaintiff's".
58Removal of document
In 42A.11(3) of the Principal Rules, for
"his or her" substitute "the registrar's".
59Return of document
(1)In Rule 42A.12(1)(a) and (2) of the Principal Rules, for "his or her" substitute "the registrar's".
(2)In Rule 42A.12(3)(b) of the Principal Rules, for "his or her" substitute "the plaintiff's".
60Form of affidavit
(1)For Rule 43.01(2) of the Principal Rules substitute—
"(2)Unless the Court otherwise orders, an affidavit must state—
(a)the place of residence of the deponent and the deponent's occupation or, if the deponent has none, the deponent's description; and
(b)that the deponent is a party to the proceeding or employed by a party, if such be the case.".
(2)For Rule 43.01(3) of the Principal Rules substitute—
"(3)Notwithstanding paragraph (2), if a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state—
(a)the address of the deponent's place of business; and
(b)the position the deponent holds; and
(c)the name of the deponent's firm or employer, if any.".
(3)In Rule 43.01(7) of the Principal Rules—
(a)for "his or her" (where twice occurring) substitute "the person's";
(b)for "he or she" substitute "the person".
61Affidavit by illiterate, blind or incapacitated person
In Rule 43.02(1) of the Principal Rules—
(a)for "he or she" substitute "the person";
(b)in paragraph (c), for "his or her" substitute "the deponent's".
62Annexures and exhibits
For Rule 43.06(2) and (3) of the Principal Rules substitute—
"(2)An exhibit to an affidavit must be identified by a separate certificate annexed to it—
(a)bearing the same heading as the affidavit; and
(b)signed by the person before whom the affidavit is sworn.
(3)The certificate must—
(a)be in Form 43A; and
(b)contain in the bottom right-hand cornerof the page in bold type and in afont size not less than 20 points the distinguishing mark of the exhibit and a brief and specific description of the exhibit.".
63Application of Order 44
In the heading to Rule 44.02 of the Principal Rules, after "Application" insert "of Order".
64Report of expert
(1)For Rule 44.03(2)(e) of the Principal Rules substitute—
"(e)in respect of the opinion—
(i)the reasons for it;
(ii)any literature or other materials utilised in support of it;
(iii)a summary of it;".
(2)In Rule 44.03(3) of the Principal Rules, for
"his or her" substitute "the expert's".
65No evidence unless disclosed in report
In Rule 44.05 of the Principal Rules, for "Save" substitute "Except".
66Time for compliance
In Rule 59.03(5) of the Principal Rules—
(a)omit"may";
(b)after "order," insert "may".
67Authentication of warrants
In Rule 60.07(a) of the Principal Rules, for
"his or her" substitute "the person's".
68Adjournment
In Rule 61.13 of the Principal Rules, for
"he or she" substitute "the proper officer".
69When security for costs may be ordered
In Rule 62.02(1)(e) of the Principal Rules, for "his, her or its" substitute "the plaintiff's".
70Time for costs order and payment
For Rule 63.03(1) of the Principal Rules substitute—
"(1)The Court may in any proceeding exercise its power and discretion as to costs—
(a)at any stage of the proceeding; or
(b)after the conclusion of the proceeding.".
71Bases of taxation
In Rule 63.28 of the Principal Rules—
(a)in paragraph (a), for "a" substitute "the";
(b)in paragraph (b), for "an" substitute "the".
72Standard basis
In Rule 63.30 of the Principal Rules, for "a" (where secondly occurring) substitute "the".
73Indemnity basis
In Rule 63.30.1(1) of the Principal Rules, for "an" (where firstly occurring) substitute "the".
74Heading to Rule 63.68 amended
In the heading to Rule 63.68 of the Principal Rules omit "and interpretation".
75Gross sum for costs
In Rule 63.71(1) of the Principal Rules, for "isexcessive, only costs that were reasonable andproper must be allowed, and a registrar may assess those costs at a gross sum." substitute—
"is excessive—
(a)only costs that were reasonable and proper must be allowed; and
(b)a registrar may assess those costs at a gross sum.".
76Order in aid of enforcement
In Rule 66.15(2) of the Principal Rules, for "Sheriff" substitute "sheriff".
77Definitions in Order 68
(1)For the heading to Rule 68.01 of the Principal Rules substitute—
"Definition".
(2)In Rule 68.01 of the Principal Rules, the definition of Sheriff is repealed.
78Notional possession of goods
In Rule 69.07 of the Principal Rules, for "Sheriff" (where three times occurring) substitute "sheriff".
79Examination of judgment debtor
In Rule 72.04(6) of the Principal Rules, for
"his or her" substitute "the judgment debtor's".
80Minor amendments to Forms 4B, 5A, 7A, 7AA, 7AB, 7AC, 8A, 10A, 11A, 11B and 12A
(1)In Form 4B of the Principal Rules, for
"e.g. 5 September, 20" substitute "insert date".
(2)In Forms 5A and 7A of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".
(3)In Forms 7AA, 7AB, 7AC and 8A of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".
(4)In Forms 10A, 10B and 11A of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".
(5)In Forms 11B and 12A of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".
81Notice of claim to goods taken in execution
(1)In Form 12B of the Principal Rules, for "Sheriff" (wherever occurring) substitute "sheriff".
(2)In Form 12B of the Principal Rules, for
"e.g. 5 September 20" substitute "insert date".
82Minor amendments to Forms 12C, 19A, 21A, 21B and 22A
(1)In Form 12C of the Principal Rules, for
"e.g. 5 September, 20" substitute "insert date".
(2)In Forms 19A, 21A and 21B of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".
(3) In Form 22A of the Principal Rules—
(a)for "e.g. 20 June 20" substitute "insertdate";
(b)for "e.g. 15 June 20" substitute "insertdate".
83Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and35B
(1)In Forms 29A and 29C of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".
(2)In Form 29D of the Principal Regulations, for "e.g. 20 June 20" (where twice occurring) substitute "insert date".
(3)In Form 30A of the Principal Regulations—
(a)for "e.g.20 June 20 ]" (where first occurring) substitute "[insert date]";
(b)for "e.g.20 June 20" (where secondly occurring) substitute "insert date".
(4)In Form 35A of the Principal Rules, for
"e.g. 15 June 20" substitute "insert date".
(5)In Form 35B of the Principal Rules, for
"e.g. 15 June, 20" substitute "insert date".
84Minor amendments to Forms 46A, 46B, 61D to 61I
(1)In Form 46A of the Principal Regulations—
(a)for "e.g. 20 June 20" substitute "insertdate";