Version No. 006
Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010
S.R. No. 141/2010
Version incorporating amendments as at
1 July 2014
table of provisions
Regulation Page
iv
Regulation Page
Order 1—PRELIMINARY 1
1.01 Title and object 1
1.02 Authorising provisions 1
1.03 Commencement 1
1.04 Definitions 1
1.05 Application 2
1.06 Rules of general procedure 2
Order 2—ARBITRATION 3
2.01 Application 3
2.02 Statement of claim 3
2.03 Defence 3
2.04 No pleadings, discovery, interrogatories etc. 3
2.05 Parties to serve a list of documents 4
2.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents 4
2.07 Plaintiff may join third party 5
Order 3—SERVICE AND EXECUTION OF PROCESS RULES 6
3.01 Definitions 6
3.02 How application made 6
3.03 Sealed copy of order 6
3.04 Enforcement of order 7
3.05 Fees 7
3.06 Costs 7
3.07 Interest 7
Order 4—REGISTRARS 9
4.01 Reference to a magistrate 9
4.02 Appeal from registrar 9
Order 5—APPEALS 10
5.01 Application of order 10
5.02 Notice of appeal 10
5.03 Amendment of grounds 10
5.04 Affidavit 10
5.05 Date for hearing 11
Order 6—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958,THE ACCIDENT COMPENSATION ACT 1985 AND THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013 12
6.01 Definitions 12
6.02 Application for appointment of nominal defendant—Forms6A and6B 13
6.03 Application for discharge 14
6.04 Request for referral of a medical question to a Medical Panel—Form6C 15
6.05 Application for revocation of direction of Conciliation Officer 15
Order 7—PARTICULAR RULES AS TO THE CORPORATIONS ACT 17
7.01 Definition 17
7.02 Commencement of originating process 17
7.03 Notice to defendant 17
7.04 Service of complaint and notices 17
7.05 Application for order in default of defence 18
Order 8—IMPRISONMENT OF FRAUDULENT DEBTORS 19
8.01 Application for summons 19
Order 9—INSTRUMENTS ACT RULES 20
9.01 Definition 20
9.02 Application of Order 20
9.03 Form of complaint 20
9.04 Leave to defend 20
9.05 Order where leave not granted or notice of defence not given 21
9.06 Notice to parties 21
9.07 Leave to defend after order made 21
Order 10—PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT2002 23
10.01 Definitions 23
10.02 Commencement of proceeding under section 28R of the Act 23
10.03 Power of registrar to make order in proceedings under section28R of the Act 23
10.04 Setting aside an order 24
10.05 Certification of debt by Court 24
10.06 Application for stay of payments 24
Order 11—MISCELLANEOUS RULES 25
11.01 Civil registry courts 25
11.02 Jurisdiction of Neighbourhood Justice Division 25
11.03 General power of amendment 25
11.04 Registrar's power of amendment 26
11.05 Directions 26
11.06 Preservation of property 26
11.07 Practice notes 27
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FORMS FOR CHAPTER II 28
Form 3A—Service and Execution of Process Act 1992 28
Form 3B—Service and Execution of Process Act 1992 30
Form 3C—Service and Execution of Process Act 1992 31
Form 5A—Notice of Appeal 33
Form 6A—Application for Appointment of Nominal Defendant 34
Form 6B—Notice of Appointment of Nominal Defendant 35
Form 6C—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985*/ SECTION 304 OF THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013* 36
Form 6D—Application 37
Form 7A—Notice to Defendant under Corporations Act 38
Form 8A—Affidavit in Support of Summons for Commitment 39
Form 9A—Complaint 40
Form 9B—Application for Leave to Defend 42
Form 9C—Application for Order 43
Form 9D—Notification of Decision 44
Form 9E—Application for Leave to Defend after Order Made 45
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APPENDIX A—Civil Registry Courts 46
APPENDIX B—Civil Registry Courts—Proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies 47
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ENDNOTES 48
1. General Information 48
2. Table of Amendments 49
3. Explanatory Details 50
iv
Version No. 006
Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010
S.R. No. 141/2010
Version incorporating amendments as at
1 July 2014
6
Order 3
Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010
S.R. No. 141/2010
The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:
Order 1
PRELIMINARY
1.01 Title and object
(1) These Rules constitute Chapter II of the Rules of the Magistrates' Court of Victoria and are entitled the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010.
(2) The object of these Rules is to further provide for rules of civil procedure in the Magistrates' Court.
1.02 Authorising provisions
These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.
1.03 Commencement
These Rules come into operation on 1 January 2011.
1.04 Definitions
In these Rules—
the Act means the Magistrates' Court Act 1989, unless the context otherwise requires.
1.05 Application
These Rules apply to any proceeding in the Court with respect to which provision is made by these Rules, whether the proceeding was commenced before, on or after the day on which they come into operation.
r. 1.05
1.06 Rules of general procedure
Except so far as is otherwise provided by these Rules or any Act, Chapter I of the Rules of the Magistrates' Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.
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Order 2
ARBITRATION
2.01 Application
r. 2.01
This Order applies to a proceeding in which the monetary relief sought is less than the amount set out in section 102(1) of the Act and which the Court must refer to arbitration in accordance with that section.
2.02 Statement of claim
The statement of claim in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances and cause of action upon which the claim is based together with the amount or other relief or remedy sought.
2.03 Defence
The notice of defence in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances facts or matters relied on in defence of the claim.
2.04 No pleadings, discovery, interrogatories etc.
No party in a proceeding referred to in Rule2.01 may—
(a) serve a request for further and better particulars of claim, counterclaim or defence;
(b) serve and file a reply;
(c) serve a notice to admit any fact or the authenticity of any document;
(d) serve a notice for discovery;
(e) serve interrogatories;
Rule 2.04(f) amendedby S.R. No. 124/2011 rule3(1).
(f) serve an expert witness statement.
Rule 2.04(g) revokedby S.R. No. 124/2011 rule3(2).
* * * * *
2.05 Parties to serve a list of documents
r. 2.05
(1) If the amount of the claim or the counterclaim in a proceeding referred to arbitration in accordance with this Order is $5000 or more, each party must serve on each other party a list of documents not less than 14 days before the date fixed for a prehearing conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.
(2) A list of documents must identify each document in the possession of the party serving the list that—
(a) supports the claim, defence, or counterclaim; or
(b) is injurious to that claim, defence or counterclaim.
2.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents
(1) If in any proceeding that has been referred to arbitration in accordance with this Order there is a claim or counterclaim for damages arising out of a motor vehicle accident, each party (the serving party) must serve on each other party a copy of any assessor's report or documents relating to such an assessment in the possession of the serving party.
(2) Any report or documents required to be served under subrule (1) must be served not less than 14days before the date fixed for a pre-hearing conference or, if no such date is fixed, then 14days before the date fixed for the arbitration.
r. 2.07
Rule 2.07 insertedby S.R. No. 27/2012 rule4.
2.07 Plaintiff may join third party
(1) If in any proceeding that has been referred to arbitration in accordance with this Order the defendant files a third party notice against a person, the plaintiff may join that person as a defendant.
(2) The plaintiff must give notice in writing to the third party, the defendant or defendants and the registrar that the third party is joined as defendant.
(3) When the notice is filed and served the third party becomes a defendant to the proceeding.
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Order 3
SERVICE AND EXECUTION OF PROCESS RULES
3.01 Definitions
r. 3.01
In this Order—
appropriate court has the same meaning as in Part6 of the Act;
court of rendition has the same meaning as in Part6 of the Act;
place of rendition has the same meaning as in Part6 of the Act;
the Act means the Service and Execution of Process Act 1992 of the Commonwealth.
3.02 How application made
(1) An application to the Court under the Act must be made in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.
(2) Where an application under subrule (1) is filed by facsimile transmission, the address for service of the applicant must include a facsimile telephone number.
(3) When an application is filed the registrar must forthwith fix a hearing date and as soon as practicable notify the applicant.
3.03 Sealed copy of order
For the purpose of registration of an order of the Court in the appropriate court of another State or Territory, the registrar may provide a sealed copy of the judgment in Form 3A or Form 3B, as the case requires.
3.04 Enforcement of order
r. 3.04
A person who seeks to enforce an order registered under the Act must before taking any step under the Act or these Rules for such enforcement file an affidavit in Form 3C stating that the order is capable of being enforced in or by the court of rendition or a court in the place of rendition and the extent to which it is so capable.
3.05 Fees
(1) The fees to be allowed in relation to the service under the Act of the process of the Court must be calculated on the same basis as fees allowable in the appropriate court for service of process at the place where the process was served.
Rule 3.05(2) amended by S.R. No. 70/2014 rule24.
(2) The same fees must be paid in relation to the enforcement under the Act by the Court of the process or order of a court of another part of Australia as are charged for the like enforcement of the process or judgment of the Court, together with the fees set out in the Schedule to Rule 10.05 of Chapter II of the Rules of the Supreme Court.
3.06 Costs
The same costs must be allowed in relation to the enforcement of an order registered under the Act as are allowed upon the enforcement of an order of the Court.
3.07 Interest
(1) A person who seeks to recover interest payable under section 108 of the Act must specify by affidavit the interest rate or rates applying to the order in the court of rendition and must include a calculation showing the amount of interest recoverable under the order.
(2) The interest rate or rates applying in the court of rendition specified in an affidavit pursuant to subrule(1) must be endorsed on a warrant to seize property which is filed to enforce an order registered under the Act.
r. 3.07
(3) The person to whom a warrant to seize property is directed must calculate and recover interest on an order registered under the Act at the rate or rates specified in the warrant.
(4) The person to whom a warrant to seize property is directed must not calculate or recover interest on an order registered under the Act where the warrant does not contain a statement of the interest rate or rates applying to the order in the court of rendition and does not contain a calculation of the interest recoverable under the order.
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Order 4
REGISTRARS
4.01 Reference to a magistrate
r. 4.01
If on an application to a registrar under the Act, the Magistrates' Court General Civil Procedure Rules 2010 or these Rules, the registrar considers that it is proper that the application be determined by a magistrate, the registrar may refer the application to a magistrate.
4.02 Appeal from registrar
(1) Any person affected by any order made by a registrar may appeal to a magistrate.
(2) An appeal must be commenced within 14days after the day the registrar made the order.
(3) An appeal may be made by application in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.
(4) An appeal is a re-hearing of the application to the registrar.
(5) Unless a magistrate otherwise orders, an appeal does not operate as a stay on the order of the registrar.
(6) This Rule does not apply to an order in default of defence made by a registrar under Order 21 of the Magistrates' Court General Civil Procedure Rules 2010 or any corresponding previous enactment.
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Order 5
APPEALS
5.01 Application of order
r. 5.01
Where by or under any Act a person (in this Order called the appellant) may appeal to a magistrate or to the Magistrates' Court, this Order applies.
5.02 Notice of appeal
(1) Except as provided by any Act, an appeal must be commenced by filing a notice of appeal at the proper venue of the Court.
(2) The notice of appeal must—
(a) be in Form 5A; and
(b) set out—
(i) the order or decision of the person from whom or the body from which the appeal is brought (in this order called the respondent);
(ii) concisely the grounds of appeal.
(3) As soon as practicable after filing the notice of appeal the appellant must serve a copy on the respondent.
5.03 Amendment of grounds
The Magistrates' Court or a magistrate may give leave to amend the grounds of appeal.
5.04 Affidavit
Within 14 days after filing the notice of appeal the appellant must file in the Court and serve on the respondent an affidavit setting out the facts, matters and circumstances relating to—