Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010

i Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 1.01 Title and object 1 1.02 Authorising provisions 1 1.03 Commencement 1 1.04 Definitions 2 1.05 Application 2 1.06 Rules of general procedure 2 ORDER 2 3 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 ORDER 3 5 SERVICE AND EXECUTION OF PROCESS RULES 5 3.01 Definitions 5 3.02 How application made 5 3.03 Sealed copy of order 5 3.04 Enforcement of order 6 3.05 Fees 6 3.06 Costs 6 3.07 Interest 6 -- 1 of 49 -- Rule Page ii ORDER 4 8 REGISTRARS 8 4.01 Reference to a magistrate 8 4.02 Appeal from registrar 8 ORDER 5 9 APPEALS 9 5.01 Application of order 9 5.02 Notice of appeal 9 5.03 Amendment of grounds 9 5.04 Affidavit 9 5.05 Date for hearing 10 ORDER 6 11 PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 11 6.01 Definition 11 6.02 Application for appointment of nominal defendant— Forms 6A and 6B 12 6.03 Application for discharge 13 6.04 Request for referral of a medical question to a Medical Panel—Form 6C 13 6.05 Application for revocation of direction of Conciliation Officer 14 ORDER 7 15 PARTICULAR RULES AS TO THE CORPORATIONS ACT 15 7.01 Definition 15 7.02 Commencement of originating process 15 7.03 Notice to defendant 15 7.04 Service of complaint and notices 15 7.05 Application for order in default of defence 16 ORDER 8 17 IMPRISONMENT OF FRAUDULENT DEBTORS 17 8.01 Application for summons 17 -- 2 of 49 -- Rule Page iii ORDER 9 18 INSTRUMENTS ACT RULES 18 9.01 Definition 18 9.02 Application of Order 18 9.03 Form of complaint 18 9.04 Leave to defend 18 9.05 Order where leave not granted 19 9.06 Notice to parties 19 9.07 Leave to defend after order made 19 ORDER 10 21 PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 21 10.01 Definitions 21 10.02 Commencement of proceeding under section 28R of the Act 21 10.03 Power of registrar to make order in proceedings under section 28R of the Act 21 10.04 Setting aside an order 22 10.05 Certification of debt by Court 22 10.06 Application for stay of payments 22 ORDER 11 23 MISCELLANEOUS RULES 23 11.01 Civil registry courts 23 11.02 Jurisdiction of Neighbourhood Justice Division 23 11.03 General power of amendment 23 11.04 Registrar's power of amendment 23 11.05 Directions 24 11.06 Preservation of property 24 11.07 Practice notes 25 __________________ FORMS FOR CHAPTER TWO 26 Form 3A—Service and Execution of Process Act 1992 26 Form 3B—Service and Execution of Process Act 1992 28 Form 3C—Service and Execution of Process Act 1992 29 Form 5A—Notice of Appeal 31 Form 6A—Application for Appointment of Nominal Defendant 32 Form 6B—Notice of Appointment of Nominal Defendant 33 -- 3 of 49 -- Rule Page iv Form 6C—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 34 Form 6D—Application 35 Form 7A—Notice to Defendant under Corporations Act 36 Form 8A—Affidavit in Support of Summons for Commitment 37 Form 9A—Complaint 38 Form 9B—Application for Leave to Defend 40 Form 9C—Application for Order 41 Form 9D—Notification of Decision 42 Form 9E—Application for Leave to Defend after Order Made 43 __________________ APPENDIX—Civil Registry Courts 44 ═══════════════ -- 4 of 49 -- 1 STATUTORY RULES 2010 S.R. No. 141/2010 Magistrates' Court Act 1989 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 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. -- 5 of 49 -- Order 1 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 2 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. 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. __________________ r. 1.04 -- 6 of 49 -- Order 2 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 3 ORDER 2 ARBITRATION 2.01 Application 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 Rule 2.01 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; r. 2.01 -- 7 of 49 -- Order 2 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 4 (f) serve an expert witness statement; (g) apply to the Court for a summary order. 2.05 Parties to serve a list of documents (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 pre-hearing 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 14 days before the date fixed for a pre-hearing conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration. __________________ r. 2.05 -- 8 of 49 -- Order 3 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 5 ORDER 3 SERVICE AND EXECUTION OF PROCESS RULES 3.01 Definitions In this Order— appropriate court has the same meaning as in Part 6 of the Act; court of rendition has the same meaning as in Part 6 of the Act; place of rendition has the same meaning as in Part 6 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. r. 3.01 -- 9 of 49 -- Order 3 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 6 3.04 Enforcement of order 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. (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 Order 10 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. r. 3.04 -- 10 of 49 -- Order 3 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 7 (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. (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. __________________ r. 3.07 -- 11 of 49 -- Order 4 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 8 ORDER 4 REGISTRARS 4.01 Reference to a magistrate 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 14 days 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. __________________ r. 4.01 -- 12 of 49 -- Order 5 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 9 ORDER 5 APPEALS 5.01 Application of order 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— r. 5.01 -- 13 of 49 -- Order 5 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 10 (a) the order or decision appealed against; and (b) the grounds of appeal. 5.05 Date for hearing At the time of filing the notice of appeal the registrar must fix a date for the hearing of the appeal. __________________ r. 5.05 -- 14 of 49 -- Order 6 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 11 ORDER 6 PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 6.01 Definition In this Part, unless the context or subject-matter otherwise requires— 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 52D of the Accident Compensation Act 1985; 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 3(1) 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; plaintiff includes a claimant under section 44(1) of the Workers Compensation Act 1958; the Act means the Workers Compensation Act 1958. r. 6.01 -- 15 of 49 -- Order 6 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 12 6.02 Application for appointment of nominal defendant—Forms 6A and 6B (1) An application for the appointment of a nominal defendant under section 5A, 16 or 25E of the Act must be— (a) made after the filing of a complaint; (b) accompanied by an affidavit in support of the application; (c) in Form 6A. (2) The affidavit in support of the application must— (a) state the reasons for the application; (b) give details of any attempts to identify or find the employer or the employer's insurer; (c) if the employer was a company which has been wound up, exhibit advice from the Australian Securities and Investment Commission that the company has been wound up; (d) except where the application is to have the Authority named as the nominal defendant, exhibit the consent in writing of the person proposed for appointment as nominal defendant. (3) If the Court makes an order for the appointment of a nominal defendant on an application under subrule (1), unless the Court directs otherwise, the party obtaining the order must give notice of the appointment to all parties to the complaint and serve on the nominal defendant— (a) a notice of the appointment in Form 6B; (b) a copy of the application; (c) a copy of the affidavit in support; r. 6.02 -- 16 of 49 -- Order 6 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 13 (d) notice of any hearing date subsequent to the appointment, fixed in the proceeding, if any; (e) a copy (including any amended copies) of the complaint (if any) showing the nominal defendant as defendant and giving full particulars of the claim against the alleged employer in respect of whom the nominal defendant was appointed; (f) where appropriate, particulars of the claim for contribution. 6.03 Application for discharge (1) At any time after receiving notice of appointment, the nominal defendant appointed by the Court may apply to the Court to be discharged from acting in that capacity. (2) Unless the Court directs otherwise, or the application is by consent, the application must be supported by an affidavit setting out the facts on which the discharge is requested. 6.04 Request for referral of a medical question to a Medical Panel—Form 6C (1) A request by a party for the Court to refer a medical question to a Medical Panel for an opinion under section 45(1)(b) of the Accident Compensation Act 1985 must— (a) state clearly the medical question for referral; (b) be in Form 6C. (2) A copy of the request must be served on all other parties to the proceeding who have an address for service not less than 14 days before the request is to be considered by the Court. r. 6.03 -- 17 of 49 -- Order 6 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 14 6.05 Application for revocation of direction of Conciliation Officer An application under section 60(2) of the Accident Compensation Act 1985 for the revocation of a direction given by a Conciliation Officer pursuant to Division 2 of Part 3 of that Act must be— (a) in Form 6D with such modification as is necessary; and (b) accompanied by an affidavit in support of the application. __________________ r. 6.05 -- 18 of 49 -- Order 7 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 15 ORDER 7 PARTICULAR RULES AS TO THE CORPORATIONS ACT 7.01 Definition In this Order— corporations proceeding means a proceeding under the Act that is brought in the Court; the Act means the Corporations Act. 7.02 Commencement of originating process (1) An originating process under the Act in the Court must be commenced by a complaint in accordance with Order 5 of the Magistrates' Court General Civil Procedure Rules 2010. (2) A complaint to which subrule (1) applies, when lodged for filing, must be accompanied by a supporting affidavit, in accordance with Rule 2.4 of the Supreme Court (Corporations) Rules 2003. (3) An affidavit to which subrule (2) applies, subject to that subrule, must comply with the Magistrates' Court General Civil Procedure Rules 2010. 7.03 Notice to defendant In any corporations proceeding the plaintiff must prepare a notice to the defendant in the form of Form 7A. 7.04 Service of complaint and notices In a corporations proceeding, the complaint and any notice of defence, affidavit of service and notice to the defendant under Rule 7.03 must be served on the defendant at least 7 days before the mention date for the proceedings. r. 7.01 -- 19 of 49 -- Order 7 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 16 7.05 Application for order in default of defence In a corporations proceeding, an application for an order in default of defence must not be made before the mention date for the proceeding. __________________ r. 7.05 -- 20 of 49 -- Order 8 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 17 ORDER 8 IMPRISONMENT OF FRAUDULENT DEBTORS 8.01 Application for summons (1) An application for the issue of a summons under Part III of the Imprisonment of Fraudulent Debtors Act 1958 must be made by affidavit in Form 8A. (2) An affidavit under subrule (1) may contain statements of fact based on information and belief if the grounds are set out. __________________ r. 8.01 -- 21 of 49 -- Order 9 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 18 ORDER 9 INSTRUMENTS ACT RULES 9.01 Definition In this Order— the Act means the Instruments Act 1958. 9.02 Application of Order (1) This Order applies to any proceeding in the Court under Part 1 of the Act. (2) Except where inconsistent with the Act or this Order, the Magistrates' Court General Civil Procedure Rules 2010 and the remaining provisions of these Rules apply to any proceeding under Part I of the Act. 9.03 Form of complaint (1) A complaint upon a bill of exchange commenced after the bill has become due must be in Form 9A. (2) The amount of costs stated in the indorsement on the complaint must be the amount of scale costs applicable to the amount claimed plus the fees (if any) for the filing and service of the complaint. 9.04 Leave to defend (1) Leave to defend under section 5 of the Act may be given by the Court. (2) An application for leave to defend must be made without notice to any person, within the time allowed by section 5 of the Act. (3) An application for leave must be in Form 9B and must be filed. r. 9.01 -- 22 of 49 -- Order 9 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 19 (4) The applicant for leave must file in support of the application an affidavit sworn by himself or herself or by another person who can depose to the facts from his or her own knowledge. 9.05 Order where leave not granted (1) A plaintiff who is entitled to an order under section 4 of the Act may apply to the registrar for an order for the amount claimed together with costs and fees (if any) for filing and service of the complaint as the scale allows. (2) An application for such an order must be filed and must be in Form 9C. (3) Where the registrar is satisfied that— (a) the complaint has been served in accordance with section 4 of the Act; and (b) the defendant has not been given leave to defend under section 5 of the Act— the registrar must make an order. 9.06 Notice to parties As soon as practicable after the Court has made a decision on an application for leave to defend, the registrar must notify the parties by notice in Form 9D. 9.07 Leave to defend after order made (1) A defendant who wishes to apply under section 6 of the Act must— (a) file an application in Form 9E; and (b) not less than 5 days before the day for hearing of the application serve a copy of the application on the complainant personally. (2) An application under section 6 must state the special circumstances relied upon by the applicant. r. 9.05 -- 23 of 49 -- Order 9 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 20 (3) The Court may set aside the order on such terms as the Court thinks fit. (4) Upon filing an application under section 6, no steps to enforce the order shall be taken for 14 days from the date of filing or until the application is heard (whichever is the earlier). (5) An applicant who fails to appear on the hearing of the application must not make a further application without the leave of the Court. __________________ r. 9.07 -- 24 of 49 -- Order 10 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 21 ORDER 10 PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 10.01 Definitions In this Order— adjudication certificate has the same meaning as in section 4 of the Act; authorised nominating authority has the same meaning as in section 4 of the Act; claimant has the same meaning as in section 4 of the Act; principal has the same meaning as in section 4 of the Act; the Act means the Building and Construction Industry Security of Payment Act 2002. 10.02 Commencement of proceeding under section 28R of the Act A proceeding under section 28R of the Act may be commenced by a person, who has been provided with an adjudication certificate by an authorised nominating authority, applying to the Court by filing in the Court the certificate and affidavit that are required to be filed under section 28R of the Act. 10.03 Power of registrar to make order in proceedings under section 28R of the Act In any proceeding commenced under Rule 10.02, the Court constituted by a registrar may make an order that the respondent pay the person applying under that Rule the unpaid amount if the registrar is satisfied that— r. 10.01 -- 25 of 49 -- Order 10 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 22 (a) the adjudication certificate has been provided by the authorised nominating authority; and (b) an amount payable under section 28M or 28N of the Act has not been paid. 10.04 Setting aside an order Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modifications, applies to making an application to set aside an order in any proceeding under section 28R of the Act. 10.05 Certification of debt by Court (1) For the purposes of section 33 of the Act, the court may be constituted by a registrar. (2) An application for an order under section 33(1) of the Act may be made in writing and Order 46 of the Magistrates' Court General Civil Procedure Rules 2010 does not apply to any such application. 10.06 Application for stay of payments (1) For the purposes of section 37(1) of the Act, an application by a principal for a stay of payments under that section must be made in the proceeding in which the claimant has obtained an order for the adjudicated amount or part of the adjudicated amount as referred to in section 30(c) of the Act. (2) Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modification, applies to an application under section 37(1) of the Act. __________________ r. 10.04 -- 26 of 49 -- Order 11 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 23 ORDER 11 MISCELLANEOUS RULES 11.01 Civil registry courts The civil registry courts are those venues of the Court listed in the Appendix to these Rules. 11.02 Jurisdiction of Neighbourhood Justice Division For the purposes of section 4O(3)(d) of the Act, with respect to the civil jurisdiction of the Court, the following are specified— (a) a proceeding under the Fences Act 1968; and (b) a proceeding under the Family Law Act 1975 of the Commonwealth in which the Court has federal jurisdiction under section 39(6) or 69J of that Act. 11.03 General power of amendment For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including a complaint) in a proceeding be amended or that any party have leave to amend any document in the proceeding. 11.04 Registrar's power of amendment (1) At the request of a party made before service of a complaint, the registrar may amend the complaint. (2) The registrar must record on the complaint the date of any amendment. r. 11.01 -- 27 of 49 -- Order 11 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 24 11.05 Directions At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. 11.06 Preservation of property (1) In any proceeding, the Court may make an order for the inspection, detention or preservation of any property whether or not in the possession, custody or power of a party. (2) An order under subrule (1) may authorise any person to— (a) enter any land or do any other thing for the purpose of obtaining access to the property; (b) take samples of the property; (c) make observations (including the photographing) of the property; (d) conduct any experiment on or with the property; (e) observe any process. (3) If the Court makes an order under subrule (1) the Court may make an order for the costs and expenses of any person who is not a party to the proceeding. (4) The Court may make an order under this Rule on condition that the person applying for the order gives security for the costs and expenses of any person, whether or not a party, who will be affected by the order. r. 11.05 -- 28 of 49 -- Order 11 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 25 11.07 Practice notes The Chief Magistrate may from time to time issue practice directions or notes not inconsistent with the Act or these Rules. __________________ r. 11.07 -- 29 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 26 FORMS FOR CHAPTER II CHAPTER II RULE 3.03 FORM 3A SERVICE AND EXECUTION OF PROCESS ACT 1992 ORDER IN THE MAGISTRATES' COURT Court Number OF VICTORIA AT BETWEEN A.B. Plaintiff (full name) OF (address of plaintiff) and C.D. Defendant (full name) OF (address of defendant) Magistrate: Date of order: Nature of complaint: How obtained: [state whether on hearing or arbitration or on application before hearing, identifying party filing application] Attendances: [set out attendance or non-attendance of any person entitled to attend and, if attending, whether by counsel or solicitor] Other matters: [state any finding of jurisdictional fact, undertaking of party or other matter as directed by Court] Form 3A -- 30 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 27 The Court orders that: 1. 2. [terms of order] I certify that this is a true and correct record. Registrar __________________ Form 3A -- 31 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 28 CHAPTER II RULE 3.03 FORM 3B SERVICE AND EXECUTION OF PROCESS ACT 1992 DEFAULT ORDER FOR DEBT [heading as in Form 3A] Date of order: Nature of proceedings: How obtained: In default of notice of defence. The order of the Court is that: [e.g.: The defendant pay the plaintiff $ and $ interest and $ costs]. I certify that this is a true and correct record. Registrar __________________ Form 3B -- 32 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 29 CHAPTER II RULE 3.04 FORM 3C SERVICE AND EXECUTION OF PROCESS ACT 1992 AFFIDAVIT IN SUPPORT OF ENFORCEMENT [heading as in Form 3A] I, [name] of [address] in the State of MAKE OATH AND SAY: 1. I am *the plaintiff *a solicitor in the firm of [name of firm], solicitors for the plaintiff, and I have the care and conduct of this matter and make this affidavit according to my information and belief. 2. Judgment was entered in the [name of court] at [place] in the State of [State] on [date]. The terms of the judgment were that the defendant pay the plaintiff the sum of $ [claim] with $ [interest] and $ [costs]. 3. The nature of the proceedings was for [describe the nature of proceedings/cause of action]. 4. The amount of the judgment which is sought to be enforced is $ [amount] and is the extent the judgment is capable of being enforced in the court of rendition. 5(a). The reasonable costs and expenses of and incidental to obtaining and lodging the copy of the judgment are $ [amount], being the sum paid to obtain a sealed copy of the judgment and $ [amount], being the cost of registering the judgment in Victoria, making a total of $ [amount]. 5(b). The costs and expenses reasonably incurred in attempting to execute the judgment in the court of rendition or in another State are— [set out details of the costs and expenses]. 6. Pursuant to section [description] of the [name of the relevant legislation], interest is payable on the judgment from [date] to the date of payment of the judgment [describe the provisions of the legislation referred to which provides the basis of interest calculation]. Form 3C -- 33 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 30 7. At the date of judgment the applicable interest rate was [percentage figure] %. On [date] the interest rate *will be/was* varied to [percentage figure] %. 8. At the date of swearing this affidavit, interest in the sum of $ [amount] has accrued and is calculated as follows— [date of judgment] to [date], [number] days @ [percentage figure] % = $ . [If relevant, provide additional calculations taking into account payments or variations in interest rate e.g.— [date] to [date], [number] days @ [percentage figure] % = $ .] Sworn etc. *Delete if inapplicable __________________ Form 3C -- 34 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 31 CHAPTER II RULE 5.02(2) FORM 5A NOTICE OF APPEAL IN THE MAGISTRATES' COURT 20 No. OF VICTORIA AT In the matter of an appeal pursuant to [name of the Act and section of Act under which appeal is brought]. APPLICANT: [name and address] RESPONDENT: [name and address] The appellant appeals against [set out briefly the substance of the order or decision appealed against]. Date of order or decision: Grounds of appeal: [set out specifically the grounds of appeal] Dated: [e.g. 5 September 20 ]. [Signed by appellant] __________________ Form 5A -- 35 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 32 CHAPTER II RULE 6.02(1)(c) FORM 6A APPLICATION FOR APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 3A] TO: [Identify each party (if any) to whom application is addressed] YOU are summoned to attend before the Court on the hearing of an application by the [identify party]. The [identify party] applies to the Court for an order to appoint a nominal defendant for the purposes of a claim for compensation. The circumstances and grounds of the application are set out in the accompanying affidavit. FILED: [e.g. 5 September 20 ]. This application was filed by , Australian lawyer for the [identify party]. __________________ Form 6A -- 36 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 33 CHAPTER II RULE 6.02(3)(a) FORM 6B NOTICE OF APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 3A] In the matter of the Workers Compensation Act 1958 TAKE NOTICE THAT: At the request of [identify party] the Court has this day appointed [name of nominal defendant] of [address] as a nominal defendant for the purposes of these proceedings, *in place of an alleged employer—[name of alleged employer] *in the place of an employer who cannot be identified [or as the case may be]. A copy of the application for appointment and the accompanying affidavit, together with a copy of the originating process in these proceedings is attached to this Notice. The complaint is listed for [nature of hearing] by the Court at [venue] at [time] on [date]. Dated: [e.g. 5 September 20 ]. [Signature of party or Australian lawyer for party who obtained order] * Delete if inapplicable. __________________ Form 6B -- 37 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 34 CHAPTER II RULE 6.04(1)(b) FORM 6C NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985 [heading as in Form 3A] In the matter of the Accident Compensation Act 1985. Take notice that [identify party] will request the Magistrates' Court at [venue] on [date] at [time] to refer the following medical questions to a medical panel for an opinion— (a) (b) (c) Signed: Dated: [e.g. 5 September 20 ]. __________________ Form 6C -- 38 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 35 CHAPTER II RULE 6.05(a) FORM 6D APPLICATION [heading as in Form 3A] TO: [identify each party to whom application is addressed] YOU are summoned to attend before the Court on the hearing of an application by the [party] for [describe the order sought]. The application will be heard by the Court at [venue] at [time] on [date]. Registrar FILED: [e.g. 5 September 20 ]. This application was filed by , Australian lawyer for [identify party]. __________________ Form 6D -- 39 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 36 CHAPTER II RULE 7.03 FORM 7A NOTICE TO DEFENDANT UNDER CORPORATIONS ACT [heading as in Form 3A] TO: [name and address of each defendant (if any)] This complaint will be mentioned at [venue] at [time] on [date]. If you intend to defend the complaint you must attend: (a) in person or instruct a legal practitioner to attend on your behalf on the mention date; and (b) give a notice of defence in accordance with Order 8 of the Magistrates' Court General Civil Procedure Rules 2010. If you or your legal practitioner do not attend on the mention date the Court may: (a) make a final order; (b) give directions as to the future conduct of the proceeding; or (c) hear any application. Dated: [e.g. 5 September, 20 ]. Registrar __________________ Form 7A -- 40 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 37 CHAPTER II RULE 8.01(1) FORM 8A AFFIDAVIT IN SUPPORT OF SUMMONS FOR COMMITMENT [heading as in Form 3A] I, of , the abovenamed plaintiff [or Australian lawyer for the abovenamed plaintiff] make oath and say: 1. By an order dated [e.g. 5 September, 20 ] it was ordered that [judgment debtor] should pay me [or the plaintiff] the sum of $ [amount] together with $ [amount] costs [or as the case may be]. 2. The sum of $ [amount] ordered to be paid [or $ [amount]], part of the sum ordered to be paid is still due and unpaid. 3. I am informed by [name and address] and believe that since the date of the order made against the defendant, the defendant has had sufficient means and ability to pay the sum in respect of which the defendant has made default and has refused or neglected and still refuses or neglects to pay. Sworn, etc. __________________ Form 8A -- 41 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 38 CHAPTER II RULE 9.03(1) FORM 9A COMPLAINT (Instruments Act 1958) [heading as in Form 3A] TO THE DEFENDANT TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this complaint. IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by first obtaining the leave of the Court to defend the claim and then giving notice of defence. IF YOU DO NOT OBTAIN THE LEAVE OF THE COURT TO DEFEND, the plaintiff may OBTAIN AN ORDER AGAINST YOU on the claim without further notice. THE PROPER TIME FOR OBTAINING LEAVE TO DEFEND is as follows— (a) where you reside within 80 kilometres of the post office corner of Bourke and Elizabeth Streets, Melbourne, within 16 days of service; (b) where you reside beyond that distance, within 21 days after service. IF YOU PAY the amount of the claim, namely $ [amount] and $ [amount] for legal costs to the plaintiff or to the plaintiff's Australian lawyer within the proper time stated above, this proceeding will come to an end. Notwithstanding the payment you may have the costs fixed by the Court. APPLICATION FOR LEAVE TO DEFEND must be made within the proper time stated above to the Court at the venue of the Court at which this complaint was filed. THE COURT MAY GIVE LEAVE TO DEFEND if you— (a) pay into Court the amount claimed, namely, $ [amount]; or (b) file affidavits satisfactory to the Court which disclose— (i) a defence; or (ii) such facts as would make it incumbent on the holder to prove consideration; or Form 9A -- 42 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 39 (iii) such other facts as the Court considers sufficient to support the application. DATE OF FILING: THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING Particulars of Claim The Plaintiff claims $ [amount] principal and interest [or $ [amount] balance of principal and interest] due to the payee [indorsee or bearer] of a bill of exchange [promissory note or order for the payment of money] of which the following is a copy. [Here copy bill and all indorsements on it] 1. This Complaint was filed by— * the plaintiff in person; * for the plaintiff by [name of firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer]. 2. The address of the plaintiff is— 3. The address for service of the plaintiff is—[If the plaintiff sues by an Australian lawyer, the business address of the Australian lawyer. If the plaintiff sues in person, the address in 2.] 4. The address of the defendant is— * Delete if inapplicable. __________________ Form 9A -- 43 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 40 CHAPTER II RULE 9.04(3) FORM 9B APPLICATION FOR LEAVE TO DEFEND (Instruments Act 1958) [heading as in Form 3A] THE DEFENDANT APPLIES for leave to defend this claim. * On [date] the sum of $ [amount] (being the sum claimed in the complaint) was paid into Court by the defendant. * The affidavit(s) of [names of deponents] setting out the facts upon which the defendant relies in the application are filed herewith. * Defendant * Defendant's Australian lawyer FILED: [e.g. 5 September, 20 ]. 1. This application was filed by— * the defendant in person; * for the defendant by [name or firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address of the Australian lawyer. If the defendant sues in person, the address in 2.] 4. The date of service of the complaint was [date]. * Delete if inapplicable. __________________ Form 9B -- 44 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 41 CHAPTER II RULE 9.05(2) FORM 9C APPLICATION FOR ORDER (Instruments Act 1958) [heading as in Form 3A] 1. The plaintiff requests that an order be made for $ [amount] plus interest at the rate of [rate]% to the date of the order. 2. The defendant has not been given leave to defend this complaint within the time provided for in section 5 of the Instruments Act 1958. 3. An affidavit stating the matter in which the complaint was served has been previously filed with the Court. 4. The plaintiff's costs are— FILED: [e.g. 5 September, 20 ]. * Plaintiff * Plaintiff's Australian lawyer * Delete if inapplicable. __________________ Form 9C -- 45 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 42 CHAPTER II RULE 9.06 FORM 9D NOTIFICATION OF DECISION (Instruments Act 1958) [heading as in Form 3A] TO THE PLAINTIFF AND TO THE DEFENDANT APPLICATION FOR LEAVE TO DEFEND was filed on [date] and has been considered by the Court. The Court orders as follows— * Application for leave to defend refused. * Application for leave to defend granted upon condition—[set out conditions, if any]. Dated: [e.g. 5 September, 20 ]. Registrar * Delete if inapplicable. __________________ Form 9D -- 46 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 43 CHAPTER II RULE 9.07(1)(a) FORM 9E APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE (Instruments Act 1958) [heading as in Form 3A] TO THE PLAINTIFF THE DEFENDANT did not obtain leave to defend the above complaint and on [date] an order was made against the defendant for $ [amount] with $ [amount] costs. TAKE NOTICE that the defendant will apply to the Court at [time] on [date] for an order that the order made be set aside and that leave to defend the complaint be granted. The special circumstances upon which the defendant relies in support of this application are—[set out special circumstances]. FILED: [e.g. 5 September, 20 ]. * Defendant * Defendant's Australian lawyer Registrar 1. This application was filed by— *the defendant in person; *for the defendant by [name or firm or Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address of the Australian lawyer. If the defendant sues in person, the address in 2.] * Delete if inapplicable. __________________ Form 9E -- 47 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 44 APPENDIX CIVIL REGISTRY COURTS Ararat Hamilton Orbost Bacchus Marsh Heidelberg Ouyen Bairnsdale Hopetoun Portland Ballarat Horsham Ringwood Benalla Kerang Robinvale Bendigo Korumburra St. Arnaud Broadmeadows Kyneton Sale Castlemaine Latrobe Valley Seymour Cobram Mansfield Shepparton Colac Maryborough Stawell Neighbourhood Justice Centre, Collingwood Melbourne Sunshine Corryong Mildura Swan Hill Dandenong Moe Wangaratta Dromana Moorabbin Justice Centre Warrnambool Echuca Myrtleford Werribee Frankston Nhill Wodonga Geelong Omeo Wonthaggi Appendix -- 48 of 49 -- Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 45 Dated: 26 October 2010 I GRAY, Chief Magistrate L MARTIN, Deputy Chief Magistrate PETER LAURITSEN, Deputy Chief Magistrate ═══════════════ Appendix -- 49 of 49 --