Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015

Authorised by the Chief Parliamentary Counsel Authorised Version i Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 TABLE OF PROVISIONS Rule Page Part 1—Preliminary 1 1 Object 1 2 Authorising provisions 1 3 Commencement 2 4 Principal Rules 2 Part 2—Affidavit of service amendments 3 5 Personal service on particular parties 3 6 Affidavit or declaration of service 3 7 New Rule 67.01AA inserted 4 8 Examination of judgment debtor 4 9 Form 6A substituted 5 Part 3—Summary judgment amendments 7 10 Order 22 substituted 7 11 Stay or judgment in proceeding 16 12 Rule 23.03 revoked 16 13 Affidavit evidence 17 14 Form 22A substituted and new Form 22B inserted 17 Part 4—Other amendments 19 15 Definition 19 16 How ordinary service effected 19 17 Costs consequences of failure to accept 19 18 Definition—acceptable mediator 19 19 Consent to order by parties not in attendance 20 20 Definitions and application 20 ═══════════════ Endnotes 21 -- 1 of 22 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2015 S.R. No. 164/2015 Magistrates' Court Act 1989 Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: Part 1—Preliminary 1 Object The object of these Rules is to amend the Magistrates' Court General Civil Procedure Rules 2010— (a) to make service related amendments including the substitution of the form for an Affidavit or Declaration of Service; and (b) to update Orders 22 and 23 providing for summary judgment, stay of proceedings and striking out of pleadings; and (c) to make consequential amendments arising out of the enactment of the Legal Profession Uniform Law (Victoria); and (d) to make a consequential amendment arising out of the application of the Co-operatives National Law (Victoria); and (e) to make other minor technical amendments. 2 Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. -- 2 of 22 -- Part 1—Preliminary Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 2 3 Commencement These Rules come into operation on 1 February 2016. 4 Principal Rules In these Rules, the Magistrates' Court General Civil Procedure Rules 20101 are called the Principal Rules. -- 3 of 22 -- Part 2—Affidavit of service amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 3 Part 2—Affidavit of service amendments 5 Personal service on particular parties (1) For the heading to Rule 6.04 of the Principal Rules substitute— "Personal service on particular parties". (2) For Rule 6.04(a)(iii) of the Principal Rules substitute— "(iii) by serving the document in accordance with any provision of an Act or legislation of the Commonwealth, another State or a Territory that provides for the service of that corporation; Examples Section 109X of the Corporations Act and section 9 of the Service and Execution of Process Act 1992 of the Commonwealth.". 6 Affidavit or declaration of service For Rule 6.17(1) of the Principal Rules substitute— "(1) An affidavit or declaration of service must state— (a) what document was served; and (b) who served the document; and (c) the hour of the day, day of the week and date on which the document was served; and (d) the place the document was served; and (e) how the document was served on the person served; and -- 4 of 22 -- Part 2—Affidavit of service amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 4 (f) in the case of personal service, how the person served was identified; and (g) all relevant facts that support paragraphs (a) to (f). (1A) An affidavit or declaration of service must be in Form 6A.". 7 New Rule 67.01AA inserted Before Rule 67.01 of the Principal Rules insert— "67.01AA Definition In this Order— conduct money means a sum of money or its equivalent, such as prepaid travel, sufficient to meet the reasonable expenses of the person to be examined of attending court as required by the summons and returning after so attending.". 8 Examination of judgment debtor (1) For Rule 67.01(3) of the Principal Rules substitute— "(3) The judgment creditor must serve a summons under paragraph (1) on a judgment debtor together with— (a) in the case of a natural person, a copy of Form 67B; or (b) in the case of corporation, a copy of Form 67C.". (2) After Rule 67.01(3) of the Principal Rules insert— "(3A) A summons and the relevant Form referred to in paragraph (3) must be served personally on the judgment debtor not less than 7 days before the day named for the examination. -- 5 of 22 -- Part 2—Affidavit of service amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 5 (3B) The judgment creditor must ensure that conduct money is given to a judgment debtor served with documents in accordance with paragraph (3).". 9 Form 6A substituted For Form 6A of the Principal Rules substitute— "FORM 6A Rule 6.17 AFFIDAVIT/DECLARATION OF SERVICE [heading as in Form 5A] I, [full name] of [address and occupation], *make oath and say *declare that I served [describe each document and whether it was a copy of a document or an original document] on [name of the person served] [State all relevant information and facts as required by Rule 6.17(1) in numbered paragraphs which may include answers to the following: How did you identify the person you served and establish the person's identity? Was the person you served the person named in the document/s to be served? At what time, day of the week and date did you serve the document/s on the person? Where was the person served the document/s? For example, was it at the residence or the business of the person? How was/were the document/s served on the person? For example, by hand or by post?] *I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury. -- 6 of 22 -- Part 2—Affidavit of service amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 6 *Sworn/Declared at [place] in the State of Victoria on [date] Before      [Signed by person] *authorised under section 107A(1) of the Evidence (Miscellaneous Provisions) Act 1958 to witness the signing of a statutory declaration. *authorised under section 123C(1) of the Evidence (Miscellaneous Provisions) Act 1958 to take an affidavit. [Name and address in legible writing, typing or stamp] * Delete if not applicable.". -- 7 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 7 Part 3—Summary judgment amendments 10 Order 22 substituted For Order 22 of the Principal Rules substitute— "Order 22—Summary judgment Part 1—General 22.01 Scope of Order This Order applies to all civil proceedings in the Court to which, in accordance with section 4 of the Civil Procedure Act 2010, that Act applies. 22.02 Interpretation (1) In this Order, a reference— (a) to a plaintiff includes a reference to a plaintiff by counterclaim; and (b) to a defendant includes a reference to a defendant by counterclaim. (2) Without limiting paragraph (1), expressions used in this Order, unless the contrary intention appears, have the same meaning as in Part 4.4 of Chapter 4 of the Civil Procedure Act 2010. Part 2—Application by plaintiff for summary judgment 22.03 Application by plaintiff for judgment An application under section 61 of the Civil Procedure Act 2010 by a plaintiff in a civil proceeding for summary judgment in the proceeding must be made in accordance with this Part of this Order. -- 8 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 8 22.04 Summons and affidavit in support (1) An application must be made by summons supported by an affidavit— (a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and (b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim— (i) has no real prospect of success; or (ii) has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim. (1A) A summons under paragraph (1) must be in Form 22A. (2) If a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement. (3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. -- 9 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 9 (4) The plaintiff must serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons. 22.05 Defendant to show cause (1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the defendant must serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than 3 days before the day for hearing named in the summons. 22.06 Affidavit in reply (1) If the defendant serves an affidavit under Rule 22.05, the Court may by order allow the plaintiff to rely upon an affidavit in reply. (2) Rule 22.04(2) and (3) apply, with any necessary modification, to an affidavit in reply made under this Rule. 22.07 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit— (a) to attend and be examined and cross-examined; or (b) to produce any documents, or copies of or extracts from those documents. -- 10 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 10 (2) If a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer of the corporation or any person purporting to act in any such capacity. 22.08 Hearing of application (1) Subject to Part 4.4 of the Civil Procedure Act 2010, on the hearing of an application the Court may— (a) dismiss the application; or (b) give such judgment for the plaintiff against the defendant on the claim or the part of the claim to which the application relates as is appropriate, having regard to the nature of the relief or remedy claimed; or (c) give the defendant leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or (d) with the consent of all parties, dispose of the proceeding finally in a summary manner. (2) The Court may stay execution of any judgment given under paragraph (1)(b) until after the trial of any other claim or counterclaim which remains outstanding in the proceeding as between the relevant parties. 22.09 * * * * * -- 11 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 11 22.10 Judgment where debt amount unascertained If on an application under section 61 of the Civil Procedure Act 2010 for summary judgment on a claim for a debt the amount of the debt is not established to the satisfaction of the Court, and where if the amount were established the Court would give summary judgment on the claim under section 63 of that Act, the Court may— (a) make a declaration as to liability for the debt and order that its amount be ascertained in such manner as the Court directs; and (b) give leave to enter judgment for the debt once the amount is ascertained. 22.11 Directions (1) If on an application under section 61 of the Civil Procedure Act 2010 for summary judgment leave is given to defend or summary judgment is given on a claim or part of a claim but execution of the judgment is stayed pending the trial of an outstanding claim or counterclaim or of the proceeding, as the case may be, the Court may give directions as to the further conduct of the proceeding. (2) The Court— (a) may direct that an affidavit made under this Order must serve as a defence or defence and counterclaim; and (b) may order the proceeding to be forthwith set down for trial; and (c) may define the questions to be tried. -- 12 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 12 22.12 Continuing for other claim or against other defendant If the plaintiff obtains summary judgment under section 63 of the Civil Procedure Act 2010 on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for any other claim or for the remainder of the claim or against any other defendant. 22.13 Judgment for delivery up of chattel If the Court gives summary judgment under section 63 of the Civil Procedure Act 2010 for the delivery up of a specific chattel, it may order the party against whom judgment is given to deliver up the chattel without giving the party an option to retain it on paying the assessed value of the chattel. 22.14 * * * * * 22.15 Setting aside judgment The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under section 61 of the Civil Procedure Act 2010. Part 3—Application by defendant for summary judgment 22.16 Application by defendant for judgment An application under section 62 of the Civil Procedure Act 2010 by a defendant in a civil proceeding for summary judgment in the proceeding must be made in accordance with this Part of this Order. -- 13 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 13 22.17 Summons The application must be made by summons, which must be in Form 22B. 22.18 Affidavit in support (1) If the defendant intends to rely on an affidavit in support of the application, the affidavit must be filed with the summons. (2) If a statement in a document tends to establish a fact upon which the defendant relies and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit may set forth the statement. (3) An affidavit relied upon by the defendant may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. (4) The defendant must serve the summons and a copy of any affidavit in support and of any exhibit referred to in the affidavit on the plaintiff not less than 14 days before the day for hearing named in the summons. 22.19 Plaintiff to show cause (1) The plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. -- 14 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 14 (3) Unless the Court otherwise orders, the plaintiff must serve a copy of any affidavit and of any exhibit referred to in the affidavit on the defendant not less than 3 days before the day for hearing named in the summons. 22.20 Affidavit in reply (1) If the plaintiff serves an affidavit under Rule 22.19, the Court may by order allow the defendant to rely upon an affidavit in reply. (2) Rule 22.18(2) and (3) apply, with any necessary modification, to an affidavit in reply made under this Rule. 22.21 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit— (a) to attend and be examined and cross- examined; or (b) to produce any documents, or copies of or extracts from those documents. (2) If a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer of the corporation or any person purporting to act in any such capacity. 22.22 Hearing of application Subject to Part 4.4 of the Civil Procedure Act 2010, on the hearing of an application the Court may— (a) dismiss the application; or (b) give such judgment for the defendant against the plaintiff on the claim or the part of the claim to which the application relates as is appropriate -- 15 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 15 (including the grant of any appropriate stay of the proceeding), having regard to the nature of the relief or remedy claimed; or (c) with the consent of all parties, dispose of the proceeding finally in a summary manner. 22.23 Setting aside judgment The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under section 62 of the Civil Procedure Act 2010. Part 4—Application by or against third or subsequent party 22.24 Third or subsequent party (1) A party who has joined a third or subsequent party to a civil proceeding may apply to the Court for summary judgment against the third or subsequent party on the ground that the defence or part of the defence of that party has no real prospect of success. (2) A party joined as a third or subsequent party to a civil proceeding may apply to the Court for summary judgment on the ground that the claim made against the party or part of that claim has no real prospect of success. (3) Part 2 of this Order applies, with any necessary modifications, to an application under paragraph (1). (4) Part 3 of this Order applies, with any necessary modifications, to an application under paragraph (2). -- 16 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 16 (5) The Court may order that a claim made by or against a third or subsequent party proceed to trial if the Court is satisfied that, despite there being no real prospect of success, the claim should not be disposed of summarily because— (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate.". 11 Stay or judgment in proceeding (1) In the heading to Rule 23.01 of the Principal Rules, for "order" substitute "judgment". (2) For Rule 23.01(1) and (2) of the Principal Rules substitute— "(1) If a proceeding generally or any claim in a proceeding— (a) is scandalous, frivolous or vexatious; or (b) is an abuse of the process of the Court— the Court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or give judgment for the defendant in the proceeding generally or in relation to any claim. (2) If the defence to any claim in a proceeding is scandalous, frivolous or vexatious, the Court may give judgment for the plaintiff in the proceeding generally or in relation to any claim.". 12 Rule 23.03 revoked Rule 23.03 of the Principal Rules is revoked. -- 17 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 17 13 Affidavit evidence In Rule 23.04 of the Principal Rules— (a) in paragraph (1), omit "or 23.03"; and (b) in paragraph (3), after "22.07" insert "or Rule 22.21, as the case requires,". 14 Form 22A substituted and new Form 22B inserted For Form 22A of the Principal Rules substitute— "FORM 22A Rule 22.04(1A) SUMMONS FOR APPLICATION FOR SUMMARY JUDGMENT BY PLAINTIFF (Section 61 of the Civil Procedure Act 2010) [heading as in Form 5A] To: [insert name of the defendant]. You are summoned to attend before the Court on the hearing of an application by the plaintiff for summary judgment in the proceeding. Nature of complaint [state shortly] 1. The plaintiff applies for summary judgment of the claim with interest to the date of the judgment and costs on the grounds set out in the accompanying affidavit(s). 2. UNLESS you satisfy the Court, by affidavit or otherwise, that you have a real prospect of success of defending the claim or part of the claim, or disclose facts deemed by the Court sufficient to entitle you to defend the claim, or part of the claim, the Court may give judgment in favour of the plaintiff for the amount of the claim, or part of the claim. 3. The application will be heard in the Magistrates' Court of Victoria at on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. FILED: [e.g. 15 June 20 ]. Registrar This summons was filed by , Australian lawyer for the [identify party]. -- 18 of 22 -- Part 3—Summary judgment amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 18 FORM 22B Rule 22.17 SUMMONS FOR APPLICATION FOR SUMMARY JUDGMENT BY DEFENDANT (Section 62 of the Civil Procedure Act 2010) [heading as in Form 5A] To: [insert name of the plaintiff]. You are summoned to attend before the Court on the hearing of an application by the defendant for summary judgment in the proceeding. 1. The defendant applies for summary judgment in the proceeding and costs [*on the grounds set out in the accompanying affidavit(s)]. 2. UNLESS you satisfy the Court, by affidavit or otherwise, that your claim, or part of your claim, has a real prospect of success, or disclose facts deemed by the Court sufficient to entitle you to make your claim, or part of your claim, the Court may give judgment in favour of the defendant. 3. The application will be heard in the Magistrates' Court of Victoria at on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. FILED: [e.g. 15 June 20 ]. Registrar This summons was filed by , Australian lawyer for the [identify party]. * Delete if not applicable.". -- 19 of 22 -- Part 4—Other amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 19 Part 4—Other amendments 15 Definition In Rule 1.13 of the Principal Rules, the definition of Australian lawyer is revoked. 16 How ordinary service effected At the foot of Rule 6.07(1) of the Principal Rules insert the following note— "Note The Electronic Transactions (Victoria) Act 2000 applies to enable a document to be served electronically, including facsimile transmission and email, in accordance with that Act.". 17 Costs consequences of failure to accept In Rule 26.08(7) of the Principal Rules, for "and (3)" substitute ", (3) and (4)". 18 Definition—acceptable mediator In Rule 50.05 of the Principal Rules, in the definition of acceptable mediator— (a) for paragraph (b) substitute— "(b) an Australian legal practitioner whose home jurisdiction is Victoria, who has been approved as a mediator by the Law Institute (within the meaning of the Legal Profession Uniform Law Application Act 2014);"; (b) for paragraph (c) substitute— "(c) an Australian legal practitioner whose home jurisdiction is Victoria, who has been approved as a mediator by the Victorian Bar (within the meaning of the Legal Profession Uniform Law Application Act 2014);". -- 20 of 22 -- Part 4—Other amendments Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 20 19 Consent to order by parties not in attendance In Rule 59.07(2) of the Principal Rules, for "the Legal Profession Act 2004" substitute "the Legal Profession Uniform Law (Victoria)". 20 Definitions and application In Rule 71.01(1) of the Principal Rules, in the definition of co-operative, for "Co-operatives Act 1996" substitute "Co-operatives National Law (Victoria)". Dated: 18 December 2015 PETER LAURITSEN, Chief Magistrate JELENA POPOVIC, Deputy Chief Magistrate BARRY BRAUN, Deputy Chief Magistrate ═══════════════ -- 21 of 22 -- Endnotes Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 S.R. No. 164/2015 Authorised by the Chief Parliamentary Counsel 21 Endnotes 1 Reg. 4: S.R. No. 140/2010. Reprint No. 2 as at 1 February 2015. Reprinted to S.R. No. 3/2015. -- 22 of 22 --