Magistrates' Court Civil Procedure Rules 2009

i Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 PART 1—GENERAL 1 1.01 Object 1 1.02 Authorising provisions 1 1.03 Commencement 1 1.04 Revocation 1 PART 2—APPLICATION OF RULES 2 1.05 Definitions 2 1.06 Application 2 1.07 Proceedings in another court 2 1.08 Order in pending proceeding 3 1.09 Costs 3 PART 3—INTERPRETATION 4 1.10 Definitions 4 PART 4—MISCELLANEOUS 6 1.11 Proceedings other than in open court 6 1.12 Procedure wanting or in doubt 7 1.13 Act by corporation 8 1.14 Corporation a party 8 1.15 Power to act by solicitor 8 1.16 Filing of documents 9 1.17 Seal of Court 9 1.18 Use of electronic messages for lodging Court documents 9 PART 5—OVERRIDING OBJECTIVE AND CASE MANAGEMENT 9 1.19 Overriding objective 9 1.20 Duty of parties 10 1.21 Exercise of power 10 1.22 Case management 10 -- 1 of 324 -- Rule Page ii ORDER 2 12 NON-COMPLIANCE WITH THE RULES 12 2.01 Effect of non-compliance 12 2.02 Originating process 12 2.03 Application to set aside for irregularity 12 2.04 Dispensing with compliance 13 ORDER 3 13 TIME, SITTINGS, COURT OFFICE AND DOCUMENTS 13 3.01 Calculating time 13 3.02 Extension and abridgement 13 3.03 Fixing time 14 3.04 Time for service 14 3.04.1 Process in vacation 14 3.05 Content and form of documents 14 3.06 Registrar refusing to accept documents 16 3.07 Scandalous matter 16 ORDER 4 17 PROCESS IN THE COURT 17 4.01 Claim not to be divided 17 4.02 Names, addresses and representation of parties 17 4.02.1 Statement of claim 18 4.02.2 Motor vehicle collision 18 4.02.3 Form of complaint 19 4.02.4 Requirements for filing a complaint by an electronic message 19 4.02.5 Complaints by electronic message to comply with Rules 19 4.02.6 Copy of complaint commenced by electronic message to be provided upon request 20 4.03 Costs to be specified 20 4.04 Filing of process 21 4.05 Duration 21 4.06 Interlocutory application 22 4.07 Names of parties 22 4.08 Urgent cases 22 4.09 Discontinuance and withdrawal 22 4.10 Costs on discontinuance or withdrawal 23 4.11 Stay on new proceeding 23 -- 2 of 324 -- Rule Page iii ORDER 5 23 SERVICE 23 5.01 When personal service necessary 23 5.02 Complaint to be served personally 23 5.03 How personal service effected 24 5.04 Service on particular defendants 24 5.05 Service on persons jointly sued 25 5.06 Claims for personal injury 26 5.07 How ordinary service effected 26 5.08 Acceptance of service by solicitor 27 5.09 Substituted service 28 5.10 Service of document by the Court 28 5.11 Affidavit of service 28 ORDER 5A 29 SERVICE OUT OF AUSTRALIA 29 5A.01 For what claims 29 5A.02 Form of complaint and indorsement 30 5A.03 Mode of service out of Australia 31 5A.04 Leave to apply for an order 31 5A.05 Stay, setting aside service, etc. 32 5A.06 Service of counterclaim or third party notice 32 5A.07 Application for order under Rule 5A.05 or 5A.06 33 ORDER 6 34 CLAIMS AND PARTIES 34 PART 1—JOINDER AND SEVERANCE 34 6.01 Joinder of claims 34 6.02 Joinder of parties permitted 34 6.03 Plaintiff suing for numerous persons 35 6.04 Business or firm name 35 6.04.1 Plaintiff suing owner or charterer of ship 35 6.05 Additions, removal, substitutions of party 35 PART 2—CONSOLIDATION 36 6.06 Consolidation of proceedings 36 6.07 Where several complaints against one defendant 36 -- 3 of 324 -- Rule Page iv ORDER 7 37 COUNTERCLAIM 37 7.01 When counterclaim allowed 37 7.02 Form of counterclaim 37 7.03 Trial of counterclaim 37 7.04 Counterclaim on stay etc. of original proceeding 37 ORDER 8 38 THIRD PARTY PROCEDURE 38 8.01 Claims by third party notice 38 8.02 Filing and service of third party notice 38 8.03 Plaintiff may join third party 39 8.04 Separate disposal or stay of third party proceeding 39 8.05 Directions 39 8.06 Trial 40 8.07 Subsequent parties 40 8.08 Counterclaim 40 8.09 Contribution proceedings 40 8.10 Proceedings to enforce order for contribution or indemnity 40 ORDER 9 41 DEFENCE, REPLY AND PARTICULARS 41 9.01 Notice of defence after service 41 9.02 Content of defence 42 9.02.1 Reply 44 9.02.2 Alternative allegations 44 9.03 Particulars from plaintiff 44 9.04 Particulars from defendant 44 9.05 Time for giving notice 45 9.06 Particulars to be filed 45 9.07 Counterclaim and third party claim 45 9.08 Failure to give particulars 45 9.09 Request for referral of a medical question to a Medical Panel—Form 9B 46 ORDER 9A 46 SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE 46 9A.01 Stay or order in proceeding 46 9A.02 Striking out pleading 47 -- 4 of 324 -- Rule Page v ORDER 10 48 ORDER IN DEFAULT OF DEFENCE OR COMPLIANCE 48 PART 1—ORDER IN DEFAULT OF DEFENCE 48 10.01 Plaintiff may apply for order 48 10.02 Affidavit required 48 10.02.1 Application by electronic message 49 10.03 Registrar may make order or refer to Court 50 PART 2—ORDER IN DEFAULT OF COMPLIANCE 51 10.04 Defendant may apply for costs order 51 10.05 Applications under Rule 10.04 51 10.06 Registrar may make order or refer to Court 51 PART 3—SUMMARY ORDERS FOR PLAINTIFF 52 10.07 Application 52 10.08 Application for an order 52 10.09 Affidavit in support 53 10.10 Service 54 10.11 Defendant to show cause 54 10.12 Affidavit in reply 54 10.13 Hearing of application 54 10.14 Cross-examination on affidavit 55 10.15 Order on counterclaim 55 10.16 Order where amount unascertained 56 10.17 Directions 56 10.18 Continuing for other claim or against other defendant 56 10.19 Setting aside order 56 PART 4—DISMISSAL OF CERTAIN PROCEEDINGS 57 10.20 Dismissal of complaints 57 10.21 Dismissal of certain adjourned proceedings 58 10.22 Reinstatement 58 ORDER 11 58 DISCOVERY 58 11.01 Definition 58 11.02 Notice for discovery 58 11.02.1 Discovery requiring leave of Court 59 11.03 Time for notice 59 11.04 Affidavit of documents 59 11.05 Time for making discovery 60 11.05.1 Continuing obligation to make discovery 60 11.06 Inspection of documents 60 11.07 Failure to make discovery 61 -- 5 of 324 -- Rule Page vi ORDER 12 62 INTERROGATORIES 62 12.01 When interrogatories allowed 62 12.01.1 Interrogatories requiring leave of Court 62 12.02 Time for serving interrogatories 62 12.03 Statement as to who to answer 62 12.04 Time for answering interrogatories 62 12.05 Answers and objections 63 12.06 Who to answer 63 12.07 Failure to answer interrogatories 64 12.08 Answers as evidence 65 ORDER 13 65 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY 65 13.01 Definitions 65 13.02 Privilege 66 13.03 Discovery to identify a defendant 66 13.04 Party an applicant 67 13.05 Discovery from prospective defendant 67 13.06 Party an applicant 68 13.07 Discovery from non-party 68 13.08 Procedure 68 13.09 Inspection of documents 69 13.10 Costs 69 ORDER 14 69 ADMISSIONS 69 14.01 Definition 69 14.02 Voluntary admission of facts 70 14.03 Notice for admission of facts 70 14.04 Notice for admission of documents 71 14.05 Cost of non-admission of fact or document 71 14.06 Restrictive effect of admission 72 -- 6 of 324 -- Rule Page vii ORDER 15 72 OFFER OF COMPROMISE 72 PART 1—INTERPRETATION 72 15.01 Definitions 72 PART 2—OFFER OF COMPROMISE 72 15.02 Application 72 15.03 Time for making, accepting, etc. offer 73 15.04 Time for payment 74 15.05 Effect of offer 75 15.06 Disclosure of offer to Court 75 15.07 Failure to comply with accepted offer 75 15.08 Costs consequences of failure to accept 76 15.09 Multiple defendants 78 15.10 Offer to contribute 79 15.11 Transitional 79 ORDER 16 80 EVIDENCE GENERALLY 80 16.01 Evidence of witness 80 16.01.1 Quotation or assessment as evidence 80 16.02 When affidavit may be used 81 16.03 Use of affidavits when practicable 81 16.04 Attendance and production 81 16.05 View 82 16.06 Admission of documents 82 16.07 Person about to leave Victoria may be ordered to be examined or to produce documents 82 ORDER 16A 83 APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 83 16A.01 Application of Order 83 16A.02 Form of application 83 16A.03 Filing 83 16A.04 Service 83 16A.05 Duty of applicant 84 16A.06 Payment of costs 84 -- 7 of 324 -- Rule Page viii ORDER 17 84 WITNESS SUMMONSES 84 17.01 Attendance by summons 84 17.02 Filing summons 84 17.03 Service 85 17.04 Conduct money 85 17.05 Expenses of witnesses 85 17.06 Setting aside 86 17.07 Books of account 86 17.08 Production before date of attendance 86 ORDER 18 87 AFFIDAVITS 87 18.01 Form of affidavit 87 18.02 Affidavit by illiterate, blind or incapacitated person 88 18.03 Content of affidavit 89 18.04 Affidavit by two or more deponents 89 18.05 Alterations 89 18.06 Annexures and exhibits 89 18.07 Time for swearing 90 18.08 Irregularity 90 18.09 Filing 90 18.10 Affidavit sworn before party, solicitor 90 ORDER 19 91 EXPERT EVIDENCE 91 19.01 Application 91 19.02 Service of statement or copy of a report of an expert 91 19.03 Making a statement or copy of a report of other party evidence 92 ORDER 19A 92 SERVICE OF MEDICAL REPORTS 92 19A.01 Application 92 19A.02 Counterclaim 92 19A.03 Definitions 93 19A.04 Notice for examination 95 19A.05 Expenses 95 19A.06 Report of examination 95 19A.07 Service of reports 95 19A.08 Time for service 96 19A.09 Other medical reports to be served 97 -- 8 of 324 -- Rule Page ix 19A.10 Proceeding against medical expert 97 19A.11 Medical report admissible 97 19A.12 No evidence unless disclosed in report 98 ORDER 20 99 APPLICATIONS 99 PART 1—GENERAL 99 20.01 Application of Order 99 20.02 Form of application 99 20.03 Form and filing 99 20.04 Service 99 20.05 Adjournment 100 20.06 Absence of party to application 100 PART 2—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 100 20.07 Definition 100 20.08 Application for appointment of nominal defendant— Forms 20B and 20C 100 20.09 Application for discharge 102 20.10 Application for revocation of direction of Conciliation Officer 102 ORDER 21 102 ARBITRATION 102 21.01 Application 102 21.02 Statement of claim 103 21.03 Defence 103 21.04 No pleadings, discovery, interrogatories etc. 103 21.05 Parties to serve a list of documents 103 21.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents 104 ORDER 22 104 PRE-HEARING CONFERENCES 104 22.00 Referral of complaint for pre-hearing conference 104 22.01 Parties must attend a pre-hearing conference 105 22.02 Confidentiality 108 -- 9 of 324 -- Rule Page x ORDER 22A 108 MEDIATION 108 22A.01 Referral of proceeding or part of a proceeding to mediation 108 22A.02 Definitions 108 22A.03 Parties must attend mediation 109 22A.04 Consequences of failure to attend 110 22A.05 Orders by consent 110 22A.06 Mediator may adjourn a mediation 111 22A.07 Mediation report 111 22A.08 Confidentiality 111 22A.09 Extension of time limits 111 22A.10 Costs 111 ORDER 23 112 HEARING 112 23.01 Order of hearing 112 23.02 No addresses 112 23.03 Absence of party 112 23.04 Adjournment of hearing 112 ORDER 24 112 INSTRUMENTS ACT RULES 112 24.01 Definition 112 24.02 Application of Order 113 24.03 Form of complaint 113 24.04 Leave to defend 113 24.05 Order where leave not granted 113 24.06 Notice to parties 114 24.07 Leave to defend after order made 114 ORDER 25 115 ORDERS 115 25.01 General relief 115 25.02 Date of effect 115 25.03 Time for compliance 115 25.04 Orders may be drawn up; certified extract 115 25.05 Consent orders 116 25.06 Order where excess abandoned 116 25.07 Setting aside or varying self-executing order 116 -- 10 of 324 -- Rule Page xi ORDER 26 117 COSTS 117 26.01 Costs to be fixed on day of hearing 117 26.02 Costs in accordance with Appendix A 118 26.03 Application of scale 118 26.04 Costs on counterclaim 118 26.05 Costs of discovery, particulars 119 26.06 Complaint not referred to arbitration 119 26.07 Costs after defence struck out 119 26.08 Costs after complaint dismissed 119 ORDER 26A 120 ASSESSMENT OF COSTS 120 26A.01 Application 120 26A.02 Definitions 120 26A.03 Bases of assessment 120 26A.04 Party and party basis 121 26A.05 Solicitor and client basis 121 26A.06 Indemnity basis 121 26A.07 General basis 121 26A.08 By whom costs to be assessed 121 26A.09 Costs of assessment 122 26A.10 Application for assessment 122 26A.11 Filing of bill 123 26A.12 Service of bill 123 26A.13 Undefended proceeding 123 26A.14 Content of bill 123 26A.15 Disbursement or fee not paid 124 26A.16 Charge of lawyer outside of Victoria 124 26A.17 Amendment of bill 125 26A.18 Agreement as to part of bill 125 26A.19 Objection to bill 125 26A.20 Discretionary costs 125 26A.21 Assessment where no objection 126 26A.22 Attendance of parties 127 26A.23 Costs in proceedings before registrar 127 26A.24 Costs reserved 127 26A.25 Reference to a magistrate 127 26A.26 Application by person liable to pay 128 26A.27 Solicitor at fault 128 26A.28 Cross costs 130 26A.29 Order on assessment 130 26A.30 Review by magistrate 131 -- 11 of 324 -- Rule Page xii 26A.31 Necessary or proper costs 132 26A.32 Unnecessary etc. work 132 26A.33 Increased allowance 132 26A.34 Copy documents 132 26A.35 Service of several documents 133 26A.36 Defendants with same solicitor 133 26A.37 Negotiations 133 26A.38 Retainer of counsel 133 26A.39 Advice and other work of counsel 133 26A.40 Premature brief 134 26A.41 Barrister and solicitor 134 ORDER 27 134 ENFORCEMENT OF ORDERS 134 PART 1—DEFINITIONS 134 27.01 Definitions 134 PART 2—WARRANTS GENERALLY 137 27.02 Issue of warrant 137 27.02.1 Issue of warrant consequent to request by electronic message 138 27.03 Duration 139 27.04 Costs of prior execution 139 27.05 Interpleader 139 27.06 When interpleader decided against the claimant 140 27.07 Order against two or more persons 141 27.08 Order against partners 141 PART 3—WARRANTS TO SEIZE PROPERTY 142 27.09 Warrant to seize property 142 27.10 Form of warrant 143 27.10.1 Notice to person responsible for safekeeping of seized property 143 PART 4—WARRANTS OF DELIVERY 143 27.11 Warrant of delivery 143 27.12 Form of warrant 143 PART 4A—ORAL EXAMINATION 144 27.12.1 Examination of judgment debtor 144 27.12.2 Issue of summons for oral examination consequent to application by electronic message 146 -- 12 of 324 -- Rule Page xiii PART 5—ATTACHMENT OF EARNINGS ORDERS 147 27.12.3 Definition 147 27.13 Attachment of earnings order 147 27.15 Application for attachment of earnings order 148 27.16 Examination of judgment debtor 149 27.17 Making an order in absence of debtor 150 27.18 Contents of order 151 27.19 Service of order 153 27.20 Employer to make payments 153 27.21 Discharge or variation of order 154 27.22 Cessation of attachment of earnings order 154 27.23 Two or more attachment of earnings orders in force 155 27.24 Notice to judgment debtor of payments 155 27.25 Determination of earnings 156 27.26 Service 157 PART 6—ATTACHMENT OF DEBTS 157 27.27 Attachable debts 157 27.30 Order for attachment of debt 157 27.31 Dispute of liability by garnishee 158 27.33 Claim by another person 158 27.34 Discharge of garnishee 159 PART 7—IMPRISONMENT OF FRAUDULENT DEBTORS 159 27.35 Application for summons 159 ORDER 27A 159 SERVICE AND EXECUTION OF PROCESS RULES 159 27A.01 Definitions 159 27A.02 How application made 160 27A.03 Sealed copy of order 160 27A.04 Enforcement of order 160 27A.05 Fees 160 27A.06 Costs 161 27A.07 Interest 161 ORDER 28 162 JUDGMENT DEBT RECOVERY RULES 162 28.01 Definition 162 28.02 Application under section 5 162 28.03 Application under section 6 or 8 162 28.04 Notice of objection 163 28.05 Agreement under section 7 163 28.06 Order in absence of parties 163 -- 13 of 324 -- Rule Page xiv 28.07 Summons for examination 163 28.08 Warrant of apprehension 164 28.09 Forms of notice 164 28.10 Warrant of commitment 164 28.11 Payments to be made to registrar 164 28.12 Certificate of discharge 164 28.13 Service and notification 164 28.14 Adjournment 164 ORDER 28A 165 PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 165 28A.01 Definitions 165 28A.02 Commencement of proceeding under section 28R of the Act 165 28A.03 Power of registrar to make order in proceedings under section 28R of the Act 165 28A.04 Setting aside an order 166 28A.05 Certification of debt by Court 166 28A.06 Application for stay of payments 166 ORDER 29 166 VENUE AND TRANSFER OF PROCEEDINGS 166 29.01 Venue of Court 166 29.02 Transfer of proceeding to the Court 167 ORDER 30 168 RE-HEARING 168 30.01 Application for re-hearing 168 30.02 Form of application 169 30.03 Re-hearing date 169 ORDER 31 169 SECURITY FOR COSTS 169 31.01 Definitions 169 31.02 When security for costs may be ordered 170 31.03 Manner of giving security 170 31.04 Failure to give security 170 31.05 Variation or setting aside 171 31.06 Payment by way of irrevocable guarantee 171 31.07 Requirements of guarantee 171 31.08 Liability of bank 171 -- 14 of 324 -- Rule Page xv ORDER 32 172 PERSON UNDER DISABILITY 172 32.01 Litigation guardian of minor 172 32.02 Person with a disability 172 32.03 Litigation guardian of defendant 173 32.04 Power of litigation guardian 173 32.05 Compromise of claim by minor or a person with a disability 173 32.06 Money to be paid into court 174 32.07 Investment of money 175 ORDER 33 175 REGISTRARS 175 33.01 Reference to a magistrate 175 33.02 Appeal from registrar 175 ORDER 34 176 APPEALS 176 34.01 Application of order 176 34.02 Notice of appeal 176 34.03 Amendment of grounds 176 34.04 Affidavit 176 34.05 Date for hearing 177 ORDER 35 177 MISCELLANEOUS RULES 177 35.01 Civil registry courts 177 35.01.1 Jurisdiction of Neighbourhood Justice Division 177 35.02 General power of amendment 177 35.02.1 Registrar's power of amendment 178 35.03 Directions 178 35.04 Injunctions 178 35.05 Preservation of property 178 35.06 Practice notes 179 __________________ -- 15 of 324 -- Rule Page xvi FORMS 180 Form 1A—Electronic Lodgment Authorisation 180 Form 4A—Complaint 181 Form 5A—Affidavit/Declaration of Service 183 Form 5AB—Complaint 184 Form 7A—Counterclaim 188 Form 7AB—Counterclaim 190 Form 8A—Third Party Notice 192 Form 8B—Notice Claiming Contribution 194 Form 9A—Notice Of Defence 195 Form 9B—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 197 Form 10A—Application for Order 198 Form 10B—Application for an Order for Costs 199 Form 10C—Application for Summary Order 200 Form 10D—Application for *Setting Aside/*Variation of Summary Order 201 Form 11A—Notice for Discovery 201 Form 11B—Affidavit of Documents 202 Form 11C—Notice to Produce 204 Form 14A—Notice to Admit 205 Form 14B—Notice of Dispute 206 Form 16AA—Notice of Application under Section 42E(1) of the Evidence Act 1958 207 Form 17A—Witness Summons to give Evidence 209 Form 17B—Witness Summons for Production 210 Form 17C—Witness Summons for Production and to give Evidence 212 Form 17D—Witness Summons for Production 214 Form 20A—Application 216 Form 20B—Application for Appointment of Nominal Defendant 216 Form 20C—Notice of Appointment of Nominal Defendant 217 Form 22AA—Mediation Report 218 -- 16 of 324 -- Rule Page xvii Form 24A—Complaint 220 Form 24B—Application for Leave to Defend 222 Form 24C—Application for Order 223 Form 24D—Notification of Decision 224 Form 24E—Application for Leave to Defend after Order made 225 Form 27A—Interpleader Summons 226 Form 27B—Warrant to Seize Property 227 Form 27BA—Notice to Person Responsible for Safekeeping of Property Seized under a Warrant to Seize Property 229 Form 27C—Warrant of Delivery 230 Form 27CA—Summons to Attend for Oral Examination 232 Form 27CB—Summons to Attend to give Evidence or Produce Documents 234 Form 27CC—Examination of a Judgment Debtor 235 Form 27CD—Examination of an Officer of a Judgment Debtor which is a Corporation 242 Form 27D—Attachment of Earnings Summons 247 Form 27E—Affidavit in Support of Application for Attachment of Earnings Order 248 Form 27F—Judgment Debtor's Statement of Financial Position 249 Form 27J—Order that Judgment Debtor Attend for Examination 253 Form 27K—Order that Person Indebted or Employer of Judgment Debtor give Statement 253 Form 27L—Attachment of Earnings Order 254 Form 27P—Garnishee Order 257 Form 27Q—Garnishee Order 258 Form 27R—Affidavit in Support of Summons for Commitment 259 Form 27AA—Order 260 Form 27AB—Default Order for Debt 261 Form 27AC—Affidavit in Support of Enforcement 262 Form 28A—Application 264 Form 28B—Statement of Affairs by an Individual 267 Form 28BA—Statement of Affairs by an Officer of a Corporation 272 -- 17 of 324 -- Rule Page xviii Form 28C—Notice of Objection 275 Form 28D—Instalment Agreement 276 Form 28E—Summons for Examination 278 Form 28F—Application for Issue of Summons 280 Form 28G—Warrant of Apprehension 281 Form 28H—Notice 282 Form 28J—Notice 283 Form 28K—Notice 284 Form 28L—Warrant of Commitment 285 Form 28M—Certificate of Discharge 286 Form 30A—Application for Re-hearing 287 Form 31A—Irrevocable Bank Guarantee 288 Form 31B—Notice of Discharge and Payment into Court 288 Form 32A—Consent to Act as Litigation Guardian 289 Form 34A—Notice of Appeal 290 __________________ APPENDIX A 291 APPENDIX B 304 __________________ SCHEDULE 1—Rules Revoked 305 ═══════════════ -- 18 of 324 -- 1 STATUTORY RULES 2009 S.R. No. 49/2009 Magistrates' Court Act 1989 Magistrates' Court Civil Procedure Rules 2009 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: ORDER 1 PRELIMINARY PART 1—GENERAL 1.01 Object The object of these Rules is to re-make with amendments the rules of procedure in civil proceedings in the Magistrates' Court of Victoria. 1.02 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 16 May 2009. 1.04 Revocation The Rules in Schedule 1 to these Rules are revoked. -- 19 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 2 PART 2—APPLICATION OF RULES 1.05 Definitions In this Part— commencement date means the date referred to in Rule 1.03; former Rules means the Magistrates' Court Civil Procedure Rules 1999; pending proceeding means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied. 1.06 Application (1) These Rules apply to every civil proceeding commenced in the Court on or after the commencement date except where inconsistent with any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984. (2) These Rules apply, with any necessary modification, to a pending proceeding and anything required or permitted to be done under these Rules with respect to a proceeding commenced on or after the commencement date shall or may be done in a pending proceeding. 1.07 Proceedings in another court (1) Except as the Court otherwise orders these Rules apply, with any necessary modification, to proceedings commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date as if they were a proceeding commenced in the Court on the day they were remitted, transferred or removed. r. 1.05 -- 20 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 3 (2) For the purposes of this Part a proceeding commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date shall be taken to be a pending proceeding. 1.08 Order in pending proceeding (1) Except as provided in this Rule, these Rules apply to an order made in a pending proceeding as if it had been given in a proceeding commenced after the commencement date. (2) An order made in a pending proceeding before the commencement date may be enforced in accordance with these Rules, but otherwise the order shall have the same force and effect as if it were made under any Act or Rules previously in force. (3) Without limiting paragraph (2)— (a) no appeal may be brought, application to set aside or vary made or other proceeding taken in respect of an order made before the commencement date which could not have been brought, made or taken in respect of that order under the former Rules immediately before the commencement date; (b) process commenced under the former Rules to enforce an order made before the commencement date may be continued or carried out and aided in accordance with those Rules. 1.09 Costs (1) The amount of costs for work done in a pending proceeding before the commencement date shall be determined in accordance with the former Rules and the amount of costs for work done in the proceeding on or after that date shall be determined in accordance with these Rules. r. 1.08 -- 21 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 4 (2) For the purpose of this Rule work done in a pending proceeding on or after the commencement date in accordance with the former Rules shall, so far as practicable, be taken to have been done in accordance with these Rules. PART 3—INTERPRETATION 1.10 Definitions In these Rules, unless the context or subject matter otherwise requires— authorised user means a person or body authorised by the Chief Magistrate under Rule 1.18 to file documents by lodging electronic messages with the Court; Authority means the Victorian WorkCover Authority established under section 18(1) of the Accident Compensation Act 1985; Conciliation Officer means a person nominated as a Conciliation Officer under section 52D of the Accident Compensation Act 1985; corporation means any body corporate, whether formed within or out of Victoria; discovery includes discovery and inspection of documents and discovery by written interrogatories or oral examination and make discovery of documents means make an affidavit of documents complying with the requirements of these Rules, file the affidavit and serve a copy on the party or person entitled to the discovery; electronic message means data transmitted electronically by an authorised user to the Court; r. 1.10 -- 22 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 5 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; order made means an order made by the Court at the hearing of a proceeding or on the hearing of an application in a proceeding; personal injury includes any impairment of mental condition or any disease; plaintiff includes a claimant under section 44(1) of the Workers Compensation Act 1958; proceeding means any matter in the Court commenced by complaint or as otherwise provided by or under any Act or these Rules; registrar means the principal registrar or the registrar or deputy registrar of the Court at the proper venue of the Court in relation to a proceeding; self-insurer has the same meaning as in section 5(1) of the Accident Compensation Act 1985; solicitor means an Australian lawyer as defined in the Legal Profession Act 2004, other than a barrister as defined in that Act, and includes an incorporated legal practice as defined in that Act; the Act means the Magistrates' Court Act 1989; r. 1.10 -- 23 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 6 worker in a proceeding under the Accident Compensation Act 1985 has the same meaning as in section 5(1) of that Act and in a proceeding under the Workers Compensation Act 1958 has the same meaning as in section 3(1) of that Act. PART 4—MISCELLANEOUS 1.11 Proceedings other than in open court Unless the Court otherwise orders, the following proceedings need not be conducted in open court— (a) an application to extend the validity of a complaint, summons or witness summons under Rule 4.05(2); (b) an application for substituted service under Rule 5.09; (c) an application for an order in default of defence or compliance under Part 1 or Part 2 of Order 10; (d) an application for an order upon default of compliance of the provisions of the compromise of a proceeding; (e) a pre-hearing conference conducted by a magistrate, judicial registrar or registrar; (f) a mediation conducted by an acceptable mediator; (g) an application for an order (subsequent to a party failing to attend a mediation) under Rule 22A.04; (h) an application to extend the validity of a warrant under Rule 27.03(2); (i) an examination of a judgment debtor conducted by a registrar under Rule 27.12.1; r. 1.11 -- 24 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 7 (j) an attachment of earnings order under Rule 27.13 or an examination of the judgment debtor or another person under Rule 27.16; (k) an application for an order for attachment of debt under Rule 27.30; (l) an application to approve a compromise and for any other orders under Rule 32.05; (m) a case transfer application and an application to review a case transfer decision under the Courts (Case Transfer) Act 1991; (n) an application for leave to defend under section 5 of the Instruments Act 1958; (o) an application under section 5, 6 or 7 of the Judgment Debt Recovery Act 1984; (p) an application for the issue of a warrant to arrest under section 134(5) of the Act; (q) an application for the issue of an entry permit under section 83 of the Occupational Health and Safety Act 2004; (r) any application, notice of which is not required to be given by or under any Act or these Rules to another person, whether or not a party. 1.12 Procedure wanting or in doubt Where the manner or form of the procedure— (a) for commencing, or for taking any step, in a proceeding; or (b) by which the jurisdiction, power or authority of the Court is exercisable— is not prescribed by these Rules or by or under any Act the general principles of practice and the Rules and forms observed and used in the r. 1.12 -- 25 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 8 Supreme Court may, at the discretion of the Court, be adopted and applied to any proceeding with such modification as may be necessary. 1.13 Act by corporation Where the Court makes an order that a corporation do any act, it may order that the act be done by the corporation by its appropriate officer. 1.14 Corporation a party (1) Subject to paragraph (2), a corporation must not take any step in a proceeding except by a solicitor. (2) Paragraph (1) does not apply— (a) if by or under any Act or these Rules a corporation is permitted to act other than by a solicitor; and (b) to the filing of a complaint, the giving of a notice of defence and, in a case to which Order 10 applies, obtaining an order by a corporation which is a party or by an employee, authorised in writing, of a corporation which is a party. 1.15 Power to act by solicitor (1) Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party's solicitor. (2) Where a solicitor ceases to act for a party in a proceeding the solicitor must forthwith file notice of ceasing to act and serve a copy on all parties including the party for whom the solicitor has ceased to act. r. 1.13 -- 26 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 9 1.16 Filing of documents Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by its being lodged with the registrar in the office of the Court at the proper venue of the Court. 1.17 Seal of Court (1) The principal registrar and every registrar shall each have in his or her custody a stamp the design of which shall as near as practicable be the same as the design of the seal of the Court with the addition of, in the case of— (a) the principal registrar, the words "Principal Registrar"; (b) a registrar, the word "Registrar". (2) Making a document or a copy of a document with a stamp referred to in paragraph (1) is sufficient compliance with any requirements of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court. 1.18 Use of electronic messages for lodging Court documents (1) The Chief Magistrate may authorise a person or body to file documents in the Court by lodging electronic messages with the Court. (2) Any authorisation under paragraph (1) must be in Form 1A. PART 5—OVERRIDING OBJECTIVE AND CASE MANAGEMENT 1.19 Overriding objective (1) The overriding objective of these Rules is to enable the Court to deal with a case justly. r. 1.16 -- 27 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 10 (2) Dealing with a case justly includes, so far as is practicable— (a) effectively, completely, promptly and economically determining all the issues in the case; (b) avoiding unnecessary expense; (c) dealing with the case in ways which are proportionate to— (i) the amount of money involved; (ii) the complexity of the issues; (d) allocating to the case an appropriate share of the Court's resources, while taking into account the need to allocate resources to other cases. 1.20 Duty of parties The parties are required to help the Court to further the overriding objective. 1.21 Exercise of power (1) In exercising any power under these Rules or in interpreting any Rule the Court must seek to give effect to the overriding objective. (2) In exercising any power under these Rules the Court may give any direction or impose any term or condition it thinks fit. (3) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person having a sufficient interest. 1.22 Case management (1) The Court must further the overriding objective by actively managing cases. r. 1.20 -- 28 of 324 -- Order 1 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 11 (2) Active case management includes— (a) encouraging the parties to cooperate with each other in the conduct of proceedings; (b) identifying the issues at an early stage; (c) deciding promptly which issues need full investigation and a hearing and accordingly disposing summarily of the others; (d) deciding the order in which the issues are to be resolved; (e) encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating the use of such procedure; (f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step justify the cost of taking it; (i) dealing with as many aspects of the case as it can on the same occasion; (j) dealing with the case without the parties needing to attend court; (k) making use of technology; (l) giving directions to ensure that the hearing of a case proceeds quickly and efficiently; (m) limiting the time for the hearing or other part of a case, including at the hearing the number of witnesses and the time for the examination or cross-examination of a witness. r. 1.22 -- 29 of 324 -- Order 2 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 12 ORDER 2 NON-COMPLIANCE WITH THE RULES 2.01 Effect of non-compliance (1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein a nullity. (2) Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may— (a) set aside the proceeding, either wholly or in part; (b) set aside any step taken in the proceeding, or any document or order therein; (c) exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally. 2.02 Originating process The Court must not wholly set aside any proceeding or the complaint by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process. 2.03 Application to set aside for irregularity The Court must not set aside any proceeding or any step in any proceeding or any document or order therein on the ground of a failure to comply with these Rules on the application of any party unless the application is made— (a) within a reasonable time after the applicant becomes aware of the failure; and r. 2.01 -- 30 of 324 -- Order 3 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 13 (b) before the applicant has taken any fresh step (save for filing a defence) after becoming aware of the failure. 2.04 Dispensing with compliance The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. ORDER 3 TIME, SITTINGS, COURT OFFICE AND DOCUMENTS 3.01 Calculating time (1) Any period of time fixed by these Rules or by any order or by any document in any proceeding must be calculated in accordance with this Rule. (2) Where a time of one day or longer is to begin on, or to be calculated from, a day or event, the day or the day of the event shall be excluded. (3) Where a time of one day or longer is to end on, or to be calculated to, a day or event, the day or the day of the event shall be included. (4) Where a period of five days or less would include a day on which an office of the Court is closed, that day shall be excluded. (5) Where the last day for doing any act at an office of the Court is a day on which the office is closed, the act may be done on the next day the office is open. 3.02 Extension and abridgement (1) The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time. r. 2.04 -- 31 of 324 -- Order 3 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 14 (2) Subject to Rule 4.05, the Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires. 3.03 Fixing time Where no time is fixed by these Rules or by order for doing any act in a proceeding, the Court may fix a time. 3.04 Time for service (1) In this Rule document does not include a complaint. (2) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time any document which is served after 4.00 p.m. or on any day an office of the Court is closed shall be taken to have been served on the next day the office is open. 3.04.1 Process in vacation (1) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 7 January next following shall be excluded, unless the Court otherwise orders. (2) Where the Court makes an order under paragraph (1), it may give any direction as to service as it thinks fit. 3.05 Content and form of documents (1) A document prepared by a party for use in the Court shall be prepared in accordance with this Rule. (2) A document must be headed "In the Magistrates' Court of Victoria at", or, if the document is in a proceeding in the Industrial Division of the Court or a proceeding to be commenced in the Industrial r. 3.03 -- 32 of 324 -- Order 3 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 15 Division of the Court "In the Magistrates' Court of Victoria (Industrial Division) at" stating the proper venue of the Court in which the proceeding is or is to be commenced and must show any identifying number assigned by the Court to the proceeding. (3) A document must be of durable paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4, and be capable of receiving writing in ink. (4) Both sides of the paper may be used, with double spacing between the lines and a left-hand margin of at least 40 millimetres. (5) The text of a document must be clear, sharp, legible and permanent. (6) A document must not bear any erasure or alteration that causes material disfigurement. (7) A document, other than a complaint, must be endorsed on the front sheet with— (a) the title of the proceeding and any identifying number; (b) a short description of the document; (c) the name of the party on whose behalf it is filed; (d) if a solicitor prepares the document, the name, address, telephone number, document exchange number, code reference of the solicitor's firm and the solicitor's reference or name of an individual in the firm to whom reference can be made in respect of the proceeding; (e) if the party on whose behalf the document is filed acts without a solicitor, the name address and telephone number of that party. r. 3.05 -- 33 of 324 -- Order 3 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 16 (8) The Court may require any document in a proceeding to be prepared in any manner it thinks fit. (9) Dates, amounts and other numbers must be expressed in figures and not in words. 3.06 Registrar refusing to accept documents (1) A registrar may refuse to accept a document where the registrar considers that the form or contents of the document show that were the document to be accepted the proceeding so commenced would be an abuse of the process of the Court. (2) Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court— (a) the registrar may refuse to accept it for filing without the direction of the Court; (b) the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is properly prepared is filed. (3) The Court may direct the registrar to accept a document for filing. 3.07 Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order— (a) that the offending matter be deleted; or (b) if the document has been filed, that it be taken off the file. r. 3.06 -- 34 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 17 ORDER 4 PROCESS IN THE COURT 4.01 Claim not to be divided (1) A plaintiff must not divide a claim or cause of action for the purpose of making two or more complaints. (2) A plaintiff who has a claim for more than the amount for which a claim may be made in the Court may abandon the excess by so stating in the particulars of the claim. 4.02 Names, addresses and representation of parties A complaint must— (a) state the full name and address of the plaintiff and an address for service of notices and documents on the plaintiff; and (b) if the plaintiff sues in person, state an address for service of notices and documents on the plaintiff within Victoria; and (c) if the plaintiff sues or the defendant is sued in a representative capacity, state the capacity in which the plaintiff sues or the defendant is sued in a representative capacity; and (d) state the name and address of the defendant; and (e) if the plaintiff sues by a solicitor, state the name or firm and business address within Victoria of the solicitor and also, if the solicitor is the agent of another, the name or firm and business address of the principal. r. 4.01 -- 35 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 18 4.02.1 Statement of claim (1) A complaint must contain a statement of claim. (2) A statement of claim must— (a) contain in a summary form a statement of all the material facts on which the plaintiff relies, but not the evidence by which those facts are to be proved; (b) contain the necessary particulars of every fact or matter; (c) if the claim arises by or under any Act, identify the specific provision relied on; (d) state specifically the amount or other relief or remedy sought; (e) state the place where and the date when the claim arose. (3) A statement of claim may make inconsistent allegations of fact if it makes clear that the allegations are made in the alternative. (4) A statement of claim must be divided into paragraphs numbered consecutively, and each fact or matter stated so far as practicable must be contained in a separate paragraph. 4.02.2 Motor vehicle collision (1) This Rule applies if the plaintiff's claim arises out of a motor vehicle collision and the claim includes a claim for the cost of repairs to the vehicle or for the total loss of the vehicle. (2) If the claim includes a claim for the cost of repairs, an itemised quotation of the cost of repairs must be attached to the complaint. (3) If the claim includes a claim for the total loss of the vehicle, an assessment of the loss must be attached to the complaint. r. 4.02.1 -- 36 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 19 4.02.3 Form of complaint (1) Unless subrule (2) applies, a complaint must be in Form 4A. (2) Where a complaint is to be served out of Australia, the complaint must be in the form required by Rule 5A.02(1). 4.02.4 Requirements for filing a complaint by an electronic message If a complaint (including a complaint upon a bill of exchange) is filed by lodging an electronic message, the electronic message must specify— (a) whether or not the complaint is under the Instruments Act 1958; and (b) the full name of the plaintiff and an address for service of notices and documents upon the plaintiff; and (c) the name and address of the defendant; and (d) if the plaintiff sues by a solicitor, the name or firm and business address within Victoria of the solicitor; and (e) the nature of the claim; and (f) the place where and the date when the claim arose; and (g) the amount (if any) claimed and costs claimed; and (h) the proper venue of the Court. 4.02.5 Complaints by electronic message to comply with Rules A complaint which was filed by the lodgement of an electronic message and is to be served on a party must comply with these Rules. r. 4.02.3 -- 37 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 20 4.02.6 Copy of complaint commenced by electronic message to be provided upon request A copy of a complaint which was filed by lodging an electronic message must be retained by or on behalf of the plaintiff and the copy must be provided to the Court at the request of the registrar. 4.03 Costs to be specified (1) If the plaintiff claims a sum of money only, the complaint must be indorsed with a statement as follows: "If you pay the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs.". (2) The amount of costs in the indorsement must be— (a) in the case of a claim for debt, liquidated demand or claim arising from a motor vehicle collision for cost of repairs only or for total loss of vehicle only, the amount of scale costs in item 1 in Appendix A applicable to the amount claimed; or (b) in any other case, the amount of scale costs in item 2 in Appendix A applicable to the amount claimed— plus the fees (if any) for the filing and service of the complaint. (3) A registrar, upon application made before service of any complaint, may fix an amount in respect of additional disbursements reasonably and necessarily incurred which amount must be included in the indorsement on the complaint. r. 4.02.6 -- 38 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 21 4.04 Filing of process (1) Unless otherwise provided in these Rules, a proceeding must be commenced by the filing of a complaint— (a) in the office of the Court at the proper venue of the Court; or (b) by an authorised user lodging an electronic message with the Court. (2) If an office of the Court is closed, a complaint may be produced by the plaintiff to the magistrate and upon the plaintiff's undertaking that the complaint will be lodged in the office on the day that office is next open and giving such other undertaking as the magistrate requires the magistrate may initial the complaint and it shall thereupon be taken to have been filed. (3) A complaint is valid for all purposes if it bears the allocated Court number and the date of filing. (4) Data contained in electronic messages must be stored by the Court in a computer database or other device so as to be capable of being reproduced therefrom. (5) The date of filing of a complaint lodged by an electronic message which complies with the Act and the Rules is the date the electronic message is received at the Court. 4.05 Duration (1) A complaint, summons or witness summons is valid for service for one year after the day it is filed. (2) If a complaint or summons has not been served on a defendant or if a witness summons has not been served on a witness, the Court may from time to time extend the validity of the complaint, summons or witness summons for such period r. 4.04 -- 39 of 324 -- Order 4 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 22 from the day of the order as the Court directs, not being more than one year from that day. (3) An application for an extension under paragraph (2) must be made on or before a day on which a complaint, summons or witness summons would cease to be valid and no order for extension shall be made after a complaint summons or witness summons ceases to be valid. 4.06 Interlocutory application Unless the Court otherwise orders an interlocutory or other application in a proceeding must be by application. 4.07 Names of parties (1) A person who commences a proceeding is called a plaintiff and a person against whom a proceeding is commenced is called a defendant. (2) On an interlocutory or other application in a proceeding the person making the application is called an applicant and the person to whom notice is given is called a respondent. 4.08 Urgent cases In an urgent case, the Court may, on the application of a person who intends to commence a proceeding and upon the person's undertaking to commence the proceeding within such time as the Court directs, make any order which the Court might make if the applicant had commenced the proceeding and the application were made in the proceeding. 4.09 Discontinuance and withdrawal (1) A complaint, counterclaim or claim by third party notice may be discontinued and a notice of defence may be withdrawn at any time before the day of hearing without the leave of the Court. r. 4.06 -- 40 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 23 (2) Notice in writing of discontinuance or withdrawal must be filed and served on each other party. (3) Discontinuance or withdrawal is not effective until the notice under paragraph (2) is filed. 4.10 Costs on discontinuance or withdrawal Unless the Court otherwise orders, a party who discontinues or withdraws in accordance with Rule 4.09 must pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal. 4.11 Stay on new proceeding If by reason of discontinuance or withdrawal under this Order a party is liable to pay the costs of any other party, and the party, before paying those costs, commences another proceeding for the same or substantially the same cause of action, the Court may by order stay the proceeding until those costs are paid. ORDER 5 SERVICE 5.01 When personal service necessary Any document required or permitted to be served in a proceeding may be served personally, but unless personal service is required by these Rules or by order, need not be served personally. 5.02 Complaint to be served personally Except where otherwise provided by these Rules, a complaint must be served personally on each defendant, together with two notices of defence. r. 4.10 -- 41 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 24 5.03 How personal service effected (1) Personal service of a document is effected— (a) by leaving a copy of the document with the person to be served or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document; or (b) by delivering a copy of the document to the place of residence of the person to be served to a person apparently above the age of sixteen years who resides at that place but when the place of residence is an hotel, boarding house or similar establishment, to some person apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment; or (c) if the person to be served conducts a business, by delivering a copy of the document to the place of business of the person to be served to a person apparently above the age of sixteen years who is apparently in charge of that business or is employed in the office of that business. (2) To effect personal service it shall not be necessary to produce the original document at the time of service. 5.04 Service on particular defendants Personal service of a document may be effected by serving the document in accordance with Rule 5.03, in the case of— (a) a corporation, on the mayor, chairman, president or other head officer of the corporation, or on the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation or, where provision r. 5.03 -- 42 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 25 is made by or under any Act for service on a corporation, by serving the document in accordance with that provision; (b) a minor, on a parent or guardian of the minor, and, if there is none, on the person with whom he or she resides or in whose care he or she is; (c) the Crown in the right of the Commonwealth or the Commonwealth, on the Secretary to the Attorney-General's Department or any person authorised under section 55E(4) of the Commonwealth Act known as the Judiciary Act 1903 as amended from time to time to act in the name of the Australian Government Solicitor; (d) the Crown in the right of Victoria or the State of Victoria, on the Victorian Government Solicitor; (e) the owner or charterer of a ship— (i) on the owner, charterer or manager for the time being; or (ii) on the Victorian agent for the ship; or (iii) in the case of a claim by a sailor, including a seaman as defined in section 3 of the Workers Compensation Act 1958, other than the master or the dependants of such a sailor, on the master. 5.05 Service on persons jointly sued Notwithstanding Rule 5.02, if a person makes a claim against partners in the name of their firm, it is sufficient if any of those partners is served with the complaint and an order may be obtained and enforced against the person or persons so served, r. 5.05 -- 43 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 26 notwithstanding that others jointly liable have not been served. 5.06 Claims for personal injury (1) In any proceeding in which the plaintiff claims damages in respect of personal injury caused by or arising out of the use of a motor car, a complaint shall not be taken to have been served on the defendant unless a copy of the complaint is served on the defendant in accordance with these Rules and also on the Transport Accident Commission. (2) If in a proceeding to which paragraph (1) applies a copy of the complaint has been duly served on the defendant but not on the Transport Accident Commission the Court may, notwithstanding paragraph (1), order that the complaint be taken to have been served on the defendant. (3) Service on the Transport Accident Commission for the purposes of this Rule may be by ordinary service. 5.07 How ordinary service effected (1) If personal service of a document is not required, the document may be served— (a) by leaving the document at the address for service of the person to be served; or (b) by posting the document to the person to be served at that person's address for service; or (c) where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision; or (d) when the solicitor for a party has facilities for the reception of documents in a document exchange, by delivering the document into those facilities; or r. 5.06 -- 44 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 27 (e) where the solicitor for a party has a facility for the reception of documents by facsimile transmission, by transmitting the document to that facility. (2) The day of service of a document shall, where the document— (a) is sent by post in accordance with paragraph (1)(b)—be taken to be the day it would be delivered in the normal course of post; (b) is delivered into the facilities of a document exchange in accordance with paragraph (1)(d)—be taken to be the day following the day upon which it is so delivered or, where a document is delivered on a Friday or a day preceding a public holiday, be taken to be the following Monday or the next working day after the public holiday, as the case requires— or on such other day as may be proved. (3) In this Rule, document exchange means any document exchange for the time being approved by the Chief Justice on the recommendation of the Council of the Law Institute of Victoria. 5.08 Acceptance of service by solicitor If in a proceeding a document is required or permitted to be served on any person, and a solicitor makes on a copy of the document a note that the solicitor accepts service of the document on behalf of the person served, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been duly served on that person on the day on which the solicitor makes the note or on such other day as may be proved. r. 5.08 -- 45 of 324 -- Order 5 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 28 5.09 Substituted service (1) If for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that such steps be taken as the Court specifies for the purposes of bringing the document to the notice of the person to be served. (2) If the Court makes an order under paragraph (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time. (3) The Court may make an order under paragraph (1) notwithstanding that the person to be served is out of Victoria or was out of Victoria when the proceeding commenced. 5.10 Service of document by the Court If, under these Rules or under an order of the Court, any notice or other document is to be given to or served on any person by the Court, then, unless the Rules otherwise provide or the Court otherwise orders, the notice or document is sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order. 5.11 Affidavit of service (1) An affidavit or declaration of service of any document must state by whom the document was served, the hour of the day, day of the week and date on which it was served and the place and mode of service and must be in Form 5A. (2) A document purporting to be an affidavit or declaration of service shall be taken to be evidence of the proper service of a document unless the contrary is proved. r. 5.09 -- 46 of 324 -- Order 5A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 29 (3) An affidavit of service must be filed as soon as practicable after service of an application or summons. ORDER 5A SERVICE OUT OF AUSTRALIA 5A.01 For what claims (1) A complaint may be served out of Australia without leave of the Court where— (a) the proceeding is one brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a contract, or to recover damages or other relief in respect of the breach of a contract, and the contract— (i) was made within Victoria; (ii) was made by or through an agent carrying on business or residing within Victoria on behalf of a principal carrying on business or residing out of Victoria; or (iii) is governed by the law of Victoria; (b) the proceeding is brought in respect of a breach committed within Victoria of a contract wherever made, even though that breach was preceded or accompanied by a breach out of Victoria that rendered impossible the performance of that part of the contract which ought to have been performed within Victoria; (c) the proceeding is founded on a contract the parties to which have agreed that the Court shall have jurisdiction to entertain a proceeding in respect of the contract; r. 5A.01 -- 47 of 324 -- Order 5A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 30 (d) the proceeding is founded on a tort committed within Victoria; (e) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring; (f) an injunction is sought ordering the defendant to do or refrain from doing anything within Victoria, whether or not damages are also claimed in respect of a failure to do or the doing of that thing; (g) the proceeding is properly brought against a person duly served within or out of Victoria and another person out of Australia is a necessary or proper party to the proceeding. (2) A complaint may be served out of Australia under subrule (1) notwithstanding that part of the cause of action arose outside Victoria provided that a material part of it arose in Victoria. 5A.02 Form of complaint and indorsement (1) A complaint served on any defendant out of Australia in accordance with this Order must be in Form 5AB and, at the time of service on that defendant, contain an indorsement stating the facts and the particular paragraph of Rule 5A.01(1) relied upon in support of such service. (2) If the complaint is not in Form 5AB or does not contain the indorsement referred to in subrule (1) at the time it is filed, the plaintiff may, in accordance with subrule (3), amend the complaint to conform with Form 5AB and to include the indorsement. r. 5A.02 -- 48 of 324 -- Order 5A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 31 (3) The complaint must be taken to be amended upon the filing by the plaintiff of a copy of the complaint to conform with Form 5AB with the indorsement included. (4) Upon the filing of an amended copy of the complaint under subrule (3) or at any later time, the registrar on the request of the plaintiff shall seal a sufficient number of copies of the complaint as amended for service and proof of service. 5A.03 Mode of service out of Australia A complaint which is to be served out of Australia must be served in accordance with Rule 5.03(1)(a). 5A.04 Leave to apply for an order (1) Where no notice of defence is given within 42 days of a party being served with a complaint out of Australia, the Court, if satisfied so far as it concerns that party— (a) that the subject matter of the complaint is within Rule 5A.01; (b) that the complaint complies with the requirements of Rule 5A.02; and (c) that the complaint was duly served on that party— may order that the plaintiff be at liberty to apply for an order under Rule 10.01(1). (2) An application for an order under subrule (1) must be supported by affidavit or other evidence showing the grounds on which the application is made. r. 5A.03 -- 49 of 324 -- Order 5A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 32 5A.05 Stay, setting aside service, etc. (1) The Court may make an order on application by a party served with a complaint outside Australia to— (a) set aside the complaint or its service; (b) set aside or vary an order made under Rule 5A.04 where the application for an order— (i) was made on notice to the party, but the party did not attend the hearing of the application; or (ii) was not made on notice to that party; (c) stay the complaint. (2) Without limiting subrule (1), the Court may make an order under this Rule on the ground— (a) that service out of Australia is not authorised by these Rules; or (b) that Victoria is not a convenient forum for the hearing of the proceeding. (3) The Court may make an order under this Rule before an application is made under Rule 5A.04 or before an order of the Court is made on such an application. 5A.06 Service of counterclaim or third party notice (1) This Rule applies to— (a) a counterclaim against the plaintiff and another person joined as defendant where the person joined is not already a party to the proceeding; and (b) a third party notice filed in accordance with Order 8. r. 5A.05 -- 50 of 324 -- Order 5A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 33 (2) A counterclaim or third party notice may be served out of Australia without leave where the claim made by the defendant in the counterclaim or third party notice is of such a kind that if the claim were made by complaint, the complaint could be served out of Australia. (3) Where subrule (2) applies the counterclaim must be in Form 7AB. (4) Where subrule (2) does not apply, the Court may by order allow service out of Australia of a counterclaim or third party notice. 5A.07 Application for order under Rule 5A.05 or 5A.06 (1) An application under Rule 5A.05 or 5A.06 shall be supported by affidavit or other evidence showing the grounds upon which the application is made. (2) Upon making an order under Rule 5A.05 or 5A.06 the Court may give directions with respect to service and the time for filing a notice of defence or for attendance before the Court or otherwise. (3) Where a document is served out of Australia by order of the Court made under Rule 5A.05 or 5A.06, a copy of the order, a copy of any affidavit made in support of the application for the order and, unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit shall be served with the document. r. 5A.07 -- 51 of 324 -- Order 6 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 34 ORDER 6 CLAIMS AND PARTIES PART 1—JOINDER AND SEVERANCE 6.01 Joinder of claims (1) A plaintiff may join any number of claims against a defendant whether the plaintiff makes the claims in the same or in different capacities and whether the claims are made against the defendant in the same or in different capacities. (2) If the Court considers that it is appropriate and convenient to hear separately any claims joined in one complaint, the Court may order that the claims be heard separately. (3) The total amount claimed where claims are joined in the same complaint shall not exceed the jurisdiction of the Court. 6.02 Joinder of parties permitted Two or more persons may be joined as plaintiffs or defendants in any proceeding— (a) where— (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court, before or after the joinder, gives leave to do so. r. 6.01 -- 52 of 324 -- Order 6 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 35 6.03 Plaintiff suing for numerous persons If, in a proceeding for a debt or liquidated demand or for unliquidated damages there are numerous parties who have the same interest, one or more of the persons may sue on behalf of or for the benefit of all the parties so interested. 6.04 Business or firm name If, in a proceeding for a debt or liquidated demand or for unliquidated damages a person carries on business in a name or style other than the person's own name, that person may sue or be sued in that name or style. 6.04.1 Plaintiff suing owner or charterer of ship It is sufficient in a proceeding to describe the owner or charterer of a ship as the owner or charterer of the named ship and the provisions of Order 17 of Chapter I of the Rules of the County Court with respect to the disclosure of names of partners apply, with any necessary modification, to the disclosure of the names of the owners or charterers. 6.05 Additions, removal, substitutions of party At any stage of a proceeding the Court may order that any person— (a) who ought to be a party be added as a party or substituted for a party; (b) who is not a proper or a necessary party cease to be a party. r. 6.03 -- 53 of 324 -- Order 6 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 36 PART 2—CONSOLIDATION 6.06 Consolidation of proceedings If two or more complaints are pending in the Court, and— (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed in those proceedings are in respect of or arise out of the same transaction or series of transactions; or (c) for any other reason it is desirable to make an order under this Rule— the Court may order the proceedings to be consolidated, or to be heard at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them. 6.07 Where several complaints against one defendant (1) If several complaints by different plaintiffs against the same defendant are pending in the Court and the claims arise out of the same circumstances, the defendant may apply to the Court for an order that all but one of the complaints be stayed. (2) An application under paragraph (1) must be accompanied by an undertaking by the defendant that the defendant will be bound to be heard in respect of all other proceedings to be stayed by the order. (3) On an application under paragraph (1) the court shall select the proceeding to be heard. r. 6.06 -- 54 of 324 -- Order 7 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 37 ORDER 7 COUNTERCLAIM 7.01 When counterclaim allowed (1) A defendant who has a claim against a plaintiff may counterclaim in the proceedings. (2) These Rules apply to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall file and serve the counterclaim no later than 21 days after notice of defence is given unless the Court otherwise orders. 7.02 Form of counterclaim (1) Unless subrule (2) applies, a counterclaim must be in Form 7A. (2) Where a counterclaim is to be served out of Australia, the counterclaim must be in Form 7AB. (3) Two notices of defence in Form 9A, with any necessary modification, must be served with a counterclaim. 7.03 Trial of counterclaim A counterclaim shall be heard at the hearing of the claim unless the Court otherwise orders. 7.04 Counterclaim on stay etc. of original proceeding If the original complaint is stayed, dismissed, discontinued or struck out or if a decision is given for the plaintiff, a counterclaim nevertheless may be prosecuted. r. 7.01 -- 55 of 324 -- Order 8 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 38 ORDER 8 THIRD PARTY PROCEDURE 8.01 Claims by third party notice If a defendant claims as against a person not already a party to the proceeding (in this Order called the third party)— (a) any contribution or indemnity; (b) any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party— the defendant may join the third party as a party to the proceeding and make the claim against the third party by filing and serving a third party notice in Form 8A. 8.02 Filing and service of third party notice (1) A claim against a third party must be commenced by filing a third party notice. (2) A third party notice together with a copy of the complaint must be served on the third party in the same manner as a complaint is served on a defendant. (2.1) A third party notice served under paragraph (2) must also be served on the plaintiff and on any other party who has given a notice of defence. r. 8.01 -- 56 of 324 -- Order 8 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 39 (3) A third party becomes a party to the proceeding when served with the notice. (3.1) A third party who has a claim against any other party in the proceeding may counterclaim and Order 7 shall apply as if the third party is a defendant who counterclaims. (4) A third party notice must not be served more than 42 days after the day on which notice of defence is given unless the Court otherwise orders. 8.03 Plaintiff may join third party (1) If a 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. 8.04 Separate disposal or stay of third party proceeding If a third party notice has been filed and served the Court may at any time before the complaint is determined— (a) order that the defendant's claim or any part of the claim or the facts on which the claim or any part of the claim depends be dealt with or inquired into separately; or (b) stay proceedings on the defendant's claim. 8.05 Directions The Court may give directions or make any order for directions in the proceeding involving the defendant and the third party. r. 8.03 -- 57 of 324 -- Order 8 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 40 8.06 Trial Unless the Court otherwise orders— (a) the third party may attend and take part at the hearing of the complaint; and (b) the third party shall be bound by the result of the hearing. 8.07 Subsequent parties With the leave of the Court, a third party who wishes to obtain relief of the kind mentioned in Rule 8.01 against any other person, may file and serve a notice on that person or persons and on every other person who is then a party to the proceeding and, if the other person or persons are not parties, must also serve a copy of the complaint. 8.08 Counterclaim If a defendant has served a counterclaim, this Order with any necessary modification, applies as if the defendant were the plaintiff and the plaintiff were the defendant. 8.09 Contribution proceedings If a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice claiming relief of the kind described in Rule 8.01 must be in Form 8B. 8.10 Proceedings to enforce order for contribution or indemnity (1) Where an order is made for a plaintiff against a defendant, any order made in favour of the defendant against a third party or co-defendant (other than an order under Part IV of the Wrongs Act 1958) shall not be enforced, without leave of the Court, to any greater extent than that to which the order against the defendant has been satisfied. r. 8.06 -- 58 of 324 -- Order 9 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 41 (2) Where a defendant seeks to enforce an order for contribution or indemnity by the issue of a warrant to seize property or a warrant of delivery the defendant shall file with the registrar an affidavit stating either— (a) that the defendant has paid the whole or part (stating what part) of the sum in respect of which the defendant is entitled to contribution or indemnity; or (b) that the defendant has by order of the Court under Rule 8.10(1) been granted leave to enforce the order against the third party or co-defendant— and the registrar may then issue either a warrant to seize property or a warrant of delivery. ORDER 9 DEFENCE, REPLY AND PARTICULARS 9.01 Notice of defence after service (1) A defendant may give notice of defence at any time after the service of a complaint, but except by leave of the Court a notice of defence must not be given if— (a) the plaintiff has obtained an order under Part 1 of Order 10; or (b) by order of the Court the defendant's notice of defence has been struck out. (2) Notice of defence is given by serving a notice of defence in Form 9A on the plaintiff at the address for service stated in the complaint and by filing a copy with the registrar. (3) A copy of a notice of defence may be filed with the registrar by means of facsimile transmission. r. 9.01 -- 59 of 324 -- Order 9 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 42 (4) A notice of defence must— (a) contain a statement that the defendant intends to defend the complaint; and (b) contain a defence as provided by Rule 9.02; and (c) state the name and address of the defendant, and the address for service of the defendant; and (d) if the defendant defends by a solicitor, state the name or firm and business address within Victoria of the solicitor and also, if the solicitor is an agent of another, the name or firm and business address of the principal. (4.1) Despite subrule (4), if the complaint was served on the defendant under the Service and Execution of Process Act 1992 of the Commonwealth, the address for service of the defendant duly stated in a notice of defence in accordance with that Act is the address for service of the defendant. (5) If the complaint was served on the defendant out of Australia, the notice of defence must state an address for service within Victoria. 9.02 Content of defence (1) A defence must state which of the facts stated in the statement of claim are— (a) admitted; (b) denied; (c) not admitted. (2) A defendant who in the defence does not state whether a fact stated in the statement of claim is— (a) admitted; (b) denied; r. 9.02 -- 60 of 324 -- Order 9 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 43 (c) not admitted— must be taken to admit the fact. (3) A defendant who states that a fact stated in the statement of claim is denied must— (a) give the reasons for denying the fact; and (b) if the defendant intends to prove a fact different from that stated in the statement of claim, state with necessary particulars the fact that the defendant intends to prove. (4) Save with the leave of the Court, a defendant who states that a fact stated in the statement of claim is not admitted must not except in cross-examination adduce any evidence with respect to that fact at the hearing of the proceeding. (5) The defendant must state specifically with particulars any fact or matter which— (a) makes the claim of the plaintiff not maintainable; or (b) if not stated specifically, might take the plaintiff by surprise; or (c) raises questions of fact not arising out of the statement of claim. (6) If the defence arises by or under any Act, the defence must identify the specific provision relied on. (7) A defence must be divided into paragraphs numbered consecutively, and each fact or matter stated so far as practicable must be contained in a separate paragraph. (8) The defendant cannot rely upon the defence of tender unless within 7 days after giving notice of defence the defendant pays to the registrar the amount alleged to have been tendered. r. 9.02 -- 61 of 324 -- Order 9 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 44 9.02.1 Reply (1) If the defendant serves a notice of defence, and the plaintiff intends at the hearing to prove or establish any fact or matter which— (a) makes the defence stated in the notice of defence not maintainable; or (b) if not stated specifically in the notice, might take the defendant by surprise; or (c) raises questions of fact not arising out of the notice— the plaintiff must serve and file a reply. (2) A reply must be divided into paragraphs numbered consecutively, and each fact or matter stated so far as practicable must be contained in a separate paragraph. (3) A reply must be served and filed within 21 days after service of the notice of defence. 9.02.2 Alternative allegations The defendant in a defence and the plaintiff in a reply may make inconsistent allegations of fact if it is made clear that the allegations are made in the alternative. 9.03 Particulars from plaintiff (1) The defendant may give notice to the plaintiff that the defendant requires further particulars of the plaintiff's claim. (2) A notice seeking further particulars must be in writing and must specify in respect of which facts or matters alleged particulars are sought. 9.04 Particulars from defendant (1) The plaintiff may give notice to the defendant that the plaintiff requires further particulars of the defendant's defence. r. 9.02.1 -- 62 of 324 -- Order 9 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 45 (2) A notice seeking further particulars must be in writing and must specify in respect of which facts or matters alleged particulars are sought. 9.05 Time for giving notice Unless the Court otherwise orders, a notice under Rule 9.03 or 9.04 must not be given more than 14 days after the day on which notice of defence is given. 9.06 Particulars to be filed Within 14 days of receiving a notice seeking particulars, a party must file and serve the further particulars. 9.07 Counterclaim and third party claim This Order applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. 9.08 Failure to give particulars (1) If a party fails to comply with a notice requiring further particulars, the Court may make an order— (a) requiring the party to provide the further particulars within a time specified by the Court; or (b) requiring the party to provide the further particulars within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or r. 9.05 -- 63 of 324 -- Order 9A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 46 (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. 9.09 Request for referral of a medical question to a Medical Panel—Form 9B (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 9B. (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 two days before the request is to be considered by the Court. ORDER 9A SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE 9A.01 Stay or order in proceeding (1) If a proceeding generally or any claim in a proceeding— (a) does not disclose a cause of action; or r. 9.09 -- 64 of 324 -- Order 9A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 47 (b) is scandalous, frivolous or vexatious; or (c) 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 make an order for the defendant in the proceeding generally or in relation to any claim. (2) If the defence to any claim in a proceeding— (a) does not disclose an answer; or (b) is scandalous, frivolous or vexatious— the Court may make an order for the plaintiff in the proceeding generally or in relation to any claim. (3) In this Rule a claim in a proceeding includes a claim by counterclaim and a claim by third party notice, and a defence includes a defence to a counterclaim and a defence to a claim by third party notice. 9A.02 Striking out pleading (1) If a statement of claim, defence or reply or any part of a statement of claim, defence or reply— (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair hearing of the proceeding; (d) is otherwise an abuse of the process of the Court— the Court may order that the whole or part of the statement of claim, defence or reply be struck out or amended. r. 9A.02 -- 65 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 48 (2) This Rule, with any necessary modification, applies where the defendant counterclaims or claims against a third party. ORDER 10 ORDER IN DEFAULT OF DEFENCE OR COMPLIANCE PART 1—ORDER IN DEFAULT OF DEFENCE 10.01 Plaintiff may apply for order (1) If a defendant does not give notice of defence within 21 days after the service of a complaint or any other time fixed by the Court for giving notice of defence, the plaintiff may apply for an order. (2) An application under paragraph (1) must be— (a) in Form 10A; or (b) subject to Rule 10.02.1, made by electronic message by an authorised user. 10.02 Affidavit required An application under Rule 10.01 to which Rule 10.01(2)(a) applies must be filed with the registrar and must be accompanied by— (a) where the claim— (i) is for a debt or liquidated demand; or (ii) is a claim arising from a motor vehicle collision and the claim is— (A) for the cost of repairs only; or (B) for total loss of the vehicle only— an affidavit or declaration of service of the complaint; and r. 10.01 -- 66 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 49 (b) in any other case— (i) an affidavit or declaration of service of the complaint; (ii) an affidavit or affidavits verifying the complaint and the nature and extent of the injury loss or damage suffered by the plaintiff. 10.02.1 Application by electronic message (1) An application under Rule 10.01 to which Rule 10.01(2)(b) applies may be filed by an authorised user by lodging an electronic message where the claim is for a debt or liquidated demand. (2) The authorised user lodging the electronic message must possess, at the time of lodging the electronic message, an affidavit or declaration of service of the complaint to which the electronic message relates. (3) The electronic message must contain a statement containing the following details obtained from the affidavit or declaration of service— (a) name and address of person who effected service; (b) mode of service; (c) identity of person served; (d) hour of the day, day of the week, date and place of service; (e) distance travelled by person who effected service; (f) date and place of swearing; (g) name and authorisation of person before whom affidavit was sworn or declaration was declared. r. 10.02.1 -- 67 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 50 (4) If requested to do so by the Court or the registrar, the authorised user must file the affidavit or declaration of service. 10.03 Registrar may make order or refer to Court (1) If an application has been made to which paragraph (a) of Rule 10.02 or Rule 10.02.1(1) applies and the registrar is satisfied that an order should be made, the registrar must make such an order. (1.1) In an application under paragraph (1) the registrar must fix the amount of costs and interest as is appropriate in the circumstances in accordance with Appendix A. (2) If an application has been made to which paragraph (a) of Rule 10.02 or Rule 10.02.1(1) applies and the registrar is not satisfied that an order should be made, the registrar may, or if the plaintiff so requests must, refer the matter to the Court for decision. (2.1) If an application has been made to which paragraph (b) of Rule 10.02 applies, the registrar must refer the matter to the Court for decision. (3) If the registrar refers an application to the Court, the Court may— (a) make the order sought in the application; (b) direct that a further affidavit or affidavits be filed; (c) give directions as to the application; (d) refuse to make the order sought in the application; (e) make any other order it considers appropriate. r. 10.03 -- 68 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 51 (4) If the Court, under paragraph (3)(b), directs a further affidavit or affidavits to be filed, upon the filing of such affidavit or affidavits, the registrar may make an order. (5) The registrar must notify the plaintiff of any order made by him or her or (if the application has been referred to the Court) any decision or order of the Court. PART 2—ORDER IN DEFAULT OF COMPLIANCE 10.04 Defendant may apply for costs order (1) If a complaint is dismissed under Rule 9.08(1)(b)(i), Rule 9.08(1)(c), Rule 11.07(1)(b)(i), Rule 11.07(1)(c), Rule 12.07(1)(b)(i), Rule 12.07(1)(c), Rule 22.01(6)(a) or Rule 22A.04(1)(a), the defendant may apply for an order for costs. (2) An application under paragraph (1) must be in Form 10B. 10.05 Applications under Rule 10.04 (1) An application under Rule 10.04 must be filed with the registrar. (2) Where the complaint is dismissed under Rule 9.08(1)(b)(i), Rule 11.07(1)(b)(i) or Rule 12.07(1)(b)(i) the application under paragraph (1) must be accompanied by an affidavit in support of the order(s) sought in the application. 10.06 Registrar may make order or refer to Court (1) If an application has been made under Rule 10.04 and the registrar is satisfied that an order should be made, the registrar must make such an order and must fix the amount of costs as is appropriate in the circumstances in accordance with Appendix A. r. 10.04 -- 69 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 52 (2) If an application has been made under Rule 10.04 and the registrar is not satisfied that an order should be made, the registrar may, or if the defendant so requests must, refer the matter to the Court for decision. (3) If the registrar refers an application to the Court, the Court may— (a) make the order sought in the application; (b) direct that a further affidavit or affidavits be filed; (c) give directions as to the application; (d) refuse to make the order sought in the application; (e) make any other order it considers appropriate. (4) If the Court, under paragraph (3)(b), directs a further affidavit or affidavits to be filed, upon the filing of such affidavit or affidavits, the registrar may make an order. (5) The registrar must notify the defendant of any order made by him or her or (if the application has been referred to the Court) any decision or order of the Court. PART 3—SUMMARY ORDERS FOR PLAINTIFF 10.07 Application This Part applies only to a claim or counterclaim for a debt or liquidated demand. 10.08 Application for an order (1) Where the defendant has given a notice of defence, the plaintiff may at any time apply to the Court for an order against the defendant on the ground that the defendant has no defence to the r. 10.07 -- 70 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 53 whole or part of the claim, or no defence except as to the amount of the claim. (2) An application under paragraph (1) must be in Form 10C. (3) The application must be filed and, on filing, the application shall be taken to have been made. (4) An affidavit or affidavits in support of the application must be filed before the hearing of the application. (5) Except by order of the Court the plaintiff shall make only one application for an order under paragraph (1). 10.09 Affidavit in support (1) An application for an order shall be supported by an affidavit verifying the facts on which the claim or part of the claim to which the application relates is based and stating that in the belief of the deponent there is no defence to that claim or part, or no defence except as to the amount claimed. (2) Where a statement in a document tends to establish a fact within paragraph (1) and at the hearing of the proceeding the document would be admissible by or under the Evidence Act 1958 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. r. 10.09 -- 71 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 54 10.10 Service The plaintiff shall serve the application and a copy of the affidavit or affidavits in support and of any exhibit referred to therein on the defendant not less than 14 days before the day for hearing named in the application. 10.11 Defendant to show cause (1) The defendant may show cause against the orders sought in 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 shall serve a copy of any affidavit and of any exhibit referred to therein on the plaintiff not less than 3 days before the day for hearing named in the application. 10.12 Affidavit in reply Where the defendant serves an affidavit under Rule 10.11, the Court may by order allow the plaintiff to rely upon an affidavit in reply. 10.13 Hearing of application (1) On the hearing of the application the Court may— (a) dismiss the application; (b) make an order in favour of the plaintiff against the defendant on the claim or part of the claim unless the defendant satisfies the Court that in respect of that claim or part a question ought to be heard and determined at a hearing or that there ought for some other reason be a hearing of that claim or part; r. 10.10 -- 72 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 55 (c) give the defendant leave to defend with respect to the claim or part of the claim either unconditionally or on terms as to giving security, paying money into court, time, the mode of hearing or otherwise. (2) The Court may stay execution of any order made under paragraph (1)(b) until after the hearing of any counterclaim made by the defendant in the proceeding. 10.14 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit to attend and be examined and cross- examined, or to produce any papers, books or documents, or copies of or extracts therefrom. (2) Where 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 thereof or any person purporting to act in any such capacity. 10.15 Order on counterclaim (1) Where a plaintiff has given a notice of defence to a counterclaim, the defendant may at any time apply to the Court for an order against the plaintiff on the ground that the plaintiff has no defence to the whole or part of the counterclaim or no defence except as to the amount of the counterclaim. (2) This Part shall, with any necessary modification, apply to an application under paragraph (1) as if the plaintiff were the defendant and the defendant the plaintiff. r. 10.14 -- 73 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 56 10.16 Order where amount unascertained Where on an application under this Part for an order the amount of the debt or liquidated demand is not established to the satisfaction of the Court, and where if the amount were established the Court would make an order, the Court may make a declaration as to liability for the debt or liquidated demand and order that its amount be ascertained in such manner as the Court directs, and give leave to apply for an order for the debt or liquidated demand once the amount is ascertained. 10.17 Directions Where leave is given to defend, or where an order is made on a claim or part of a claim but execution of the order is stayed pending the hearing of a counterclaim or of the proceeding, as the case may be, the Court may give directions as to the further conduct of the proceeding. 10.18 Continuing for other claim or against other defendant Where a plaintiff obtains an order on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for the remainder of the claim or any other claim against that defendant or any other defendant. 10.19 Setting aside order (1) The Court may set aside or vary any order given against a party who does not attend on the hearing of an application under Rule 10.08 or 10.15 and may give directions as to the future conduct of the proceeding. r. 10.16 -- 74 of 324 -- Order 10 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 57 (2) An application referred to in paragraph (1) must be— (a) filed; (b) in Form 10D; (c) supported by affidavit or affidavits. (3) The affidavit or affidavits in support must be filed before the hearing of the application. (4) The applicant must serve a copy of the application and a copy of any affidavit and of any exhibit referred to therein on the respondent to the application not less than 3 days before the day for hearing named in the application. (5) The Court may adjourn the hearing of the application on such terms as it thinks fit. PART 4—DISMISSAL OF CERTAIN PROCEEDINGS 10.20 Dismissal of complaints (1) A complaint stands dismissed as against any defendant at the expiration of three months after the period of the validity for service of the complaint, or, if that period has been extended, after the expiration of any extension of the period, if, at the time of expiration, that defendant has not filed a notice of defence and an order in default of defence has not been made against that defendant. (2) The Court may from time to time, by order, extend the period of three months referred to in subrule (1) for a period of not more than six months after the day of the order. (3) If an order is made under subrule (2), the period of three months in subrule (1) is to be taken to be substituted by the extended period ordered by the Court. r. 10.20 -- 75 of 324 -- Order 11 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 58 10.21 Dismissal of certain adjourned proceedings A complaint, counterclaim or third party procedure that is adjourned to a day to be fixed (however expressed) stands dismissed at the expiration of six years after the adjournment of the complaint, counterclaim or third party procedure. 10.22 Reinstatement (1) The Court may reinstate any complaint that stands dismissed by operation of Rule 10.20. (2) The Court may reinstate any— (a) complaint; or (b) counterclaim; or (c) third party procedure— that stands dismissed by operation of Rule 10.21. ORDER 11 DISCOVERY 11.01 Definition In this Order possession means possession, custody or power. 11.02 Notice for discovery (1) Except where these Rules otherwise provide, any party to a proceeding may serve on any other party a notice for discovery requiring the party served to make discovery of all documents which are or have been in that party's possession relating to the proceeding. (2) A notice for discovery must be in Form 11A. r. 10.21 -- 76 of 324 -- Order 11 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 59 11.02.1 Discovery requiring leave of Court (1) Despite Rule 11.03 a notice for discovery shall not be served without leave of the Court in— (a) a proceeding under the Accident Compensation Act 1985; (b) a proceeding under the Workers Compensation Act 1958. (2) If leave is granted under paragraph (1) Rule 26.05 shall not apply, unless the Court otherwise orders. 11.03 Time for notice A notice for discovery must not be served more than 28 days after the day on which notice of defence is given unless the Court otherwise orders. 11.04 Affidavit of documents An affidavit of documents for the purpose of making discovery of documents must be in Form 11B and must— (a) identify the documents which are or have been in the possession of the party making the affidavit; (b) enumerate the documents in convenient order and describe each document or, in the case of a group of documents of the same nature, describe the group, sufficiently to enable the document or group to be identified; (c) distinguish those documents which are in possession of the party making the affidavit from those that have been but are no longer in the party's possession, and as to any document which has been but is no longer in the possession of the party, state when the r. 11.02.1 -- 77 of 324 -- Order 11 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 60 party parted with the document and the party's belief as to what has become of it; (d) if the party making the affidavit claims that any document in the party's possession is privileged from production, state sufficiently the grounds of the privilege. 11.05 Time for making discovery A party on whom a notice for discovery is served must, within 28 days after service of the notice, make discovery of documents. 11.05.1 Continuing obligation to make discovery A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit. 11.06 Inspection of documents (1) A party may by notice to produce served on another party require that that party produce for inspection any document in that party's possession referred to— (a) in an affidavit of documents; (b) in particulars of claim, notice of defence or counterclaim or in any affidavit. (2) The party on whom a notice to produce is served in accordance with paragraph (1) shall within 7 days after service, serve on the party requiring production a notice appointing a time within 7 days after service of the notice under this paragraph when and a place where the documents may be inspected. (3) A notice to produce must be in Form 11C. r. 11.05 -- 78 of 324 -- Order 11 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 61 11.07 Failure to make discovery (1) If a party fails to comply with a notice for discovery, the Court may make an order— (a) requiring the party to make discovery of documents within a time specified by the Court; or (b) requiring the party to make discovery of documents within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) This Rule applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (4) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. r. 11.07 -- 79 of 324 -- Order 12 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 62 ORDER 12 INTERROGATORIES 12.01 When interrogatories allowed Except where these Rules otherwise provide any party to a proceeding may serve on any other party interrogatories relating to any question between them in the proceeding. 12.01.1 Interrogatories requiring leave of Court (1) Despite Rule 12.02 interrogatories shall not be served without leave of the Court in— (a) a proceeding under the Accident Compensation Act 1985; (b) a proceeding under the Workers Compensation Act 1958. (2) If leave is granted under paragraph (1) Rule 26.05 shall not apply, unless the Court otherwise orders. 12.02 Time for serving interrogatories Interrogatories must not be served more than 28 days after the day on which notice of defence is given except with the leave of the Court. 12.03 Statement as to who to answer If interrogatories are to be answered by two or more parties, the interrogating party must state in the document containing the interrogatories which of them each party is required to answer. 12.04 Time for answering interrogatories If interrogatories are served on a party, the party within 28 days after service must answer by affidavit and serve a copy on the party who served the interrogatories. r. 12.01 -- 80 of 324 -- Order 12 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 63 12.05 Answers and objections (1) A party interrogated must answer each interrogatory specifically by answering the substance of the interrogatory without evasion unless it is objectionable on any of the grounds in paragraph (2). (2) If a party objects to answering any interrogatory the party must state briefly on which of the following grounds the party objects to answer— (a) the interrogatory does not relate to any question between the party and the interrogating party; (b) the interrogatory is unclear or vague or too wide; (c) the interrogatory is oppressive; (d) the interrogatory requires the party to express an opinion which the party is not qualified to give; (e) privilege, and must also state sufficiently the grounds of privilege. 12.06 Who to answer Interrogatories shall be answered— (a) where the person on whom the interrogatories are served is— (i) a natural person, by that party; (ii) a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or (b) by any person as the Court may direct. r. 12.05 -- 81 of 324 -- Order 12 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 64 12.07 Failure to answer interrogatories (1) If a party fails to answer interrogatories, the Court may make an order— (a) requiring the party to answer the interrogatories within a time specified by the Court; or (b) requiring the party to answer the interrogatories within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) This Rule applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (4) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. r. 12.07 -- 82 of 324 -- Order 13 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 65 12.08 Answers as evidence (1) On an application in or at the hearing of a proceeding a party may tender as evidence— (a) one or more answers to interrogatories given by another party without tendering the others; (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) Upon the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless that other answer or part is also tendered. ORDER 13 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY 13.01 Definitions In this Order, unless the context or subject matter otherwise requires— applicant means applicant for an order under this Order; description includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation; possession means possession, custody or power. r. 12.08 -- 83 of 324 -- Order 13 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 66 13.02 Privilege An order made under this Order shall not operate to require the person against whom the order is made to produce any document which, on the ground of privilege, the person could not be required to produce— (a) in the case of an order under Rule 13.03 or 13.05, if the applicant had commenced a proceeding against that person; (b) in the case of an order under Rule 13.04 or 13.06, if the applicant had made that person a party to the proceeding; (c) in the case of an order made under Rule 13.07, if that person had been served with a witness summons for production of the document at the trial of the proceeding. 13.03 Discovery to identify a defendant (1) If an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called the person concerned) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in the person's possession any document or thing, tending to assist in such ascertainment, the Court may make an order under paragraph (2). (2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, must— (a) attend before the Court to be orally examined in relation to the description of the person concerned; r. 13.02 -- 84 of 324 -- Order 13 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 67 (b) make discovery to the applicant of all documents which are or have been in the possession of the person or the corporation relating to the description of the person concerned. (3) If the Court makes an order under paragraph (2)(a), it may order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in the person's or the corporation's possession relating to the description of the person concerned. 13.04 Party an applicant Rule 13.03 applies, with any necessary modification, where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which the applicant could properly have made in the proceeding had the person been a party. 13.05 Discovery from prospective defendant Where— (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in the person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the r. 13.04 -- 85 of 324 -- Order 13 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 68 document by the applicant would assist the applicant to make the decision— the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 13.06 Party an applicant Rule 13.05 applies, with any necessary modification, where the applicant is a party to a proceeding and there is reasonable cause to believe that the 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. 13.07 Discovery from non-party On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that the person has or is likely to have or has had or is likely to have had in the person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document. 13.08 Procedure (1) An application under Rule 13.03, 13.04, 13.05, 13.06 or 13.07 must be made by application served on every party to the proceeding and served personally on the person against whom the order is sought. (2) An application under paragraph (1) must be supported by an affidavit— (a) stating the facts on which the application is made; and r. 13.06 -- 86 of 324 -- Order 14 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 69 (b) specifying or describing the documents or any class of documents in respect of which the order is sought. (3) A copy of the supporting affidavit must be served on every person on whom the application is served. 13.09 Inspection of documents Rule 11.06 applies, with any necessary modification, to the inspection of the documents referred to in an affidavit of documents made and served in accordance with this Order as if the affidavit were an affidavit of documents as mentioned in Rule 11.06. 13.10 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of any party to the proceeding, including the costs of making and serving any affidavit of documents, or of producing any document for inspection in accordance with Rule 13.09. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. ORDER 14 ADMISSIONS 14.01 Definition In this Order, authenticity of a document means that a document— (a) is what it purports to be; r. 13.09 -- 87 of 324 -- Order 14 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 70 (b) if an original or described as such, is an original document and was printed, written, signed or executed as it purports to have been; (c) if a copy or described as such, is a true copy. 14.02 Voluntary admission of facts (1) A party may, by notice served on another party, admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice. (2) A party may, by leave of the Court, withdraw an admission made in accordance with paragraph (1). 14.03 Notice for admission of facts (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts. (2) If the party served with the notice does not dispute any fact specified by serving notice that the party disputes the fact within the time allowed for that purpose, the party shall, for the purpose of the proceeding only, be taken to admit that fact. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 14A, and a notice under paragraph (2) shall be in Form 14B. r. 14.02 -- 88 of 324 -- Order 14 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 71 14.04 Notice for admission of documents (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the authenticity of the documents mentioned in the notice, that party shall, for the purpose of the proceeding only, be taken to admit the authenticity of those documents. (2) If the party served with the notice does not dispute the authenticity of any document mentioned by serving notice that the party disputes its authenticity within the time allowed for that purpose, the party shall, for the purpose of the proceeding only, be taken to admit its authenticity. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 14A, and a notice under paragraph (2) shall be in Form 14B. 14.05 Cost of non-admission of fact or document If a party serves a notice— (a) under Rule 14.03(2) disputing a fact, and afterwards that fact is proved in the proceeding; or (b) under Rule 14.04(2) disputing the authenticity, and afterwards the authenticity of that document is proved in the proceeding— that party shall pay the costs of proof, unless the Court otherwise orders. r. 14.04 -- 89 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 72 14.06 Restrictive effect of admission An admission made by a party under this Order is for the purpose of the particular proceeding only and shall not be used against the party as an admission in any other civil proceeding. ORDER 15 OFFER OF COMPROMISE PART 1—INTERPRETATION 15.01 Definitions In this Order— claim includes a counterclaim and any claim made in accordance with Order 8; defendant includes a defendant by counterclaim and a party against whom a claim is made in accordance with Order 8; plaintiff includes a defendant who serves a counterclaim and a party who makes a claim in accordance with Order 8. PART 2—OFFER OF COMPROMISE 15.02 Application (1) The plaintiff and the defendant may in respect of any claim in a proceeding serve on one another an offer of compromise on the terms specified in the offer. (2) An offer of compromise in respect of a claim may be on terms that take into account any other claim between the plaintiff and the defendant made in the proceeding. r. 14.06 -- 90 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 73 (3) An offer of compromise must— (a) be in writing and be prepared in accordance with Rule 3.05; and (b) contain a statement to the effect that it is served in accordance with this Order. (4) For the avoidance of any doubt, the making of or acceptance of an offer of compromise under this Order does not affect the operation of— (a) section 105 of the Act; and (b) any regulations made under section 105— concerning the awarding of costs. 15.03 Time for making, accepting, etc. offer (1) An offer of compromise may be served at any time before an order in respect of the claim to which it relates. (2) A party may serve more than one offer of compromise. (3) An offer of compromise may be expressed to be limited as to the time the offer is open to be accepted after service on the party to whom it is made, but the time expressed shall not be less than 7 days after such service. (4) A party on whom an offer of compromise is served must within 3 days after service serve a written acknowledgment of service on the party serving the offer. (5) A party on whom an offer of compromise is served may accept the offer by serving notice of acceptance in writing on the party who made the offer before— r. 15.03 -- 91 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 74 (a) the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 7 days after service of the offer; or (b) an order in respect of the claim to which the offer relates— whichever event is the sooner. (6) An offer of compromise must not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders. (7) An offer of compromise is open to be accepted within the period referred to in subrule (5) notwithstanding that during that period the party on whom the offer is served makes an offer of compromise to the party who served the offer of compromise, whether or not the offer made by the party served is made in accordance with this Part. (8) Upon the acceptance of an offer of compromise in accordance with subrule (5), unless the Court otherwise orders, the defendant must pay the costs of the plaintiff in respect of the claim up to and including the day the offer was served. (9) If an offer of compromise contains a term which purports to negative or limit the operation of subrule (8), that term has no effect for any purpose under this Part. 15.04 Time for payment An offer of compromise providing for payment of a sum of money to a plaintiff must, unless it otherwise provides, be taken to be an offer providing for payment of that sum within 30 days after acceptance of the offer. r. 15.04 -- 92 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 75 15.05 Effect of offer An offer of compromise made in accordance with this Part must be taken to be an offer of compromise made without prejudice, unless the offer otherwise provides. 15.06 Disclosure of offer to Court (1) No statement of the fact that an offer of compromise has been made must be contained in any document filed in the proceeding. (2) Where an offer of compromise has not been accepted, then, except as provided by Rule 15.08(6), communication with respect to the offer must not be made to the Court on the hearing of the proceeding until after all questions of liability and the relief to be granted have been determined. (3) Subrules (1) and (2) do not apply where an offer of compromise provides that the offer is not made without prejudice. 15.07 Failure to comply with accepted offer (1) If a party to an accepted offer of compromise fails to comply with the terms of the offer, then, unless for special cause the Court otherwise orders, the other party is entitled, as that other party may elect, to— (a) an order in the proceeding in the terms of the accepted offer; or (b) where the party in default is the plaintiff, an order that the proceeding be dismissed, and where the party in default is the defendant, an order that the plaintiff be permitted to proceed as if a notice of defence had not been filed, and in either case to an order accordingly. r. 15.05 -- 93 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 76 (2) If a party to an accepted offer of compromise fails to comply with the terms of the offer, and a defendant in the proceeding has made a claim by counterclaim or third party notice which is not the subject of the accepted offer, the Court may make such order in the proceeding under subrule (1) and make an order that the proceeding, counterclaim or claim by third party notice be continued as it thinks fit. 15.08 Costs consequences of failure to accept (1) This Rule applies to an offer of compromise which has not been accepted at the time of an order on the claim to which the offer relates. (2) If an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff is entitled— (a) if the claim of the plaintiff is for damages for or arising out of death or bodily injury, to an order against the defendant for costs in respect of the claim to be fixed on a party and party basis in accordance with paragraph (c); (b) in the case of any other claim of the plaintiff, to an order against the defendant for costs in respect of the claim up to and including the day the offer was served to be fixed on a party and party basis and for costs thereafter to be fixed on a party and party basis in accordance with paragraph (c); (c) unless scale G in Table 1 of Appendix A applies to a claim, party and party costs must be fixed on the next highest scale in that r. 15.08 -- 94 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 77 Table to the scale that, if not for this Rule, would apply. (3) If an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for costs in respect of the claim up to and including the day the offer was served fixed on a party and party basis and the defendant is entitled to an order against the plaintiff for costs in respect of the claim thereafter fixed on a party and party basis. (4) For the purpose of subrule (3), if the offer of compromise was served on the first or a later day of the hearing of the proceeding, then, unless the Court otherwise orders, the plaintiff is entitled to costs in respect of the claim to the opening of the court next after the day on which the offer was served fixed on a party and party basis, and the defendant is entitled to costs in respect of the claim thereafter fixed on a party and party basis. (5) If a plaintiff obtains an order of the Court for the recovery of a debt or damages and— (a) the order includes an amount for interest or damages in the nature of interest; or (b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest— for the purpose of determining the consequences as to costs referred to in subrules (2) and (3) the Court must disregard so much of the amount recovered by or awarded to the plaintiff for interest or damages in the nature of interest as r. 15.08 -- 95 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 78 relates to the period after the day the offer of compromise was served. (6) For the purpose only of subrule (5), the Court may be informed of the fact that the offer of compromise was served, and of the date of service, but must not be informed of its terms. (7) Subrules (2) and (3) do not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all material times willing and able to carry out that party's part of what was proposed in the offer. (8) Where the plaintiff obtains an order for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, subrule (2) does not apply unless the Court is satisfied that the plaintiff's offer was of a genuine compromise. 15.09 Multiple defendants If 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, the consequences as to costs referred to in Rule 15.08 do not apply to an offer of compromise unless— (a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer of compromise of the claim against all of them; (b) in the case of an offer made to the plaintiff— (i) the offer is to compromise the claim against all defendants; and r. 15.09 -- 96 of 324 -- Order 15 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 79 (ii) where the offer is made by two or more defendants, by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer. 15.10 Offer to contribute (1) Where in any proceeding a defendant makes a claim (in this Rule called a contribution claim) to recover contribution or indemnity against any person, whether a defendant to the proceeding or not, in respect of any claim for a debt or damages made by the plaintiff in the proceeding, any party to the contribution claim may serve on any other party to the contribution claim an offer to contribute toward a compromise of the claim made by the plaintiff on the terms specified in the offer. (2) The Court may take an offer to contribute into account in determining whether it should order that the party on whom the offer to contribute was served should pay the whole or part of— (a) the costs of the party who made the offer; (b) any costs which that party is liable to pay to the plaintiff. (3) Rules 15.05 and 15.06 apply, with any necessary modification, to an offer to contribute as if it were an offer of compromise. 15.11 Transitional Order 15 as in force immediately before 1 January 2001 continues to apply to an offer of compromise served before that date. r. 15.10 -- 97 of 324 -- Order 16 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 80 ORDER 16 EVIDENCE GENERALLY 16.01 Evidence of witness Except where otherwise provided by any Act or by these Rules or unless the Court otherwise orders, the evidence of a witness— (a) at the hearing of a complaint must be taken orally on oath or by affirmation; and (b) on any other application must be by affidavit. 16.01.1 Quotation or assessment as evidence (1) In a complaint, counterclaim or claim by third party notice which arises from a motor vehicle collision and includes a claim— (a) for the cost of repairs to a motor vehicle, an itemised quotation of the cost of repairs; or (b) for total loss of a motor vehicle, an assessment of the loss— attached to the complaint, counterclaim or claim by third party notice is evidence of the cost of repairs or the loss (as the case may be). (2) A party against whom damages are sought may, by notice in writing served on the party claiming relief not more than 42 days after service of the complaint counterclaim or claim by third party notice to which an itemised quotation or assessment is attached, require the maker of the quotation or assessment to attend the hearing for the purposes of cross-examination. r. 16.01 -- 98 of 324 -- Order 16 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 81 16.02 When affidavit may be used At the hearing of a complaint a party may use an affidavit by any particular witness or an affidavit as to particular facts if— (a) at least 21 days before the hearing that party serves notice of intention to do so, with a copy of the affidavit annexed on the party against whom the affidavit is to be used; and (b) the party on whom the notice is served does not at least 10 days before the hearing serve notice on the party who served the notice that objection is taken to the use of the affidavit. 16.03 Use of affidavits when practicable A party must whenever practicable use affidavits in accordance with Rule 16.02. 16.04 Attendance and production (1) The Court may in any proceeding make an order for— (a) the attendance of any person for the purpose of being examined; or (b) the attendance of any person and production by that person of any document or thing specified or described in the order; or (c) the production by any corporation of any document or thing described in the order. (2) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could properly object to produce on the ground of privilege. r. 16.02 -- 99 of 324 -- Order 16 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 82 16.05 View The Court may during the proceeding inspect any place, process or thing. 16.06 Admission of documents (1) If any document is produced to the Court from proper custody it shall be read without further proof if it appears genuine and if no objection to its admission is made. (2) If objection is taken to a document produced under paragraph (1), the Court may adjourn the hearing for proof of the document and if the document is afterwards proved then, unless the Court otherwise orders, the party who made the objection shall pay the costs incurred by the objection. (3) The Court may, on the hearing of a complaint, if it considers it is proper to do so and there is no real dispute as to the contents or authenticity of an original document, admit as evidence a copy of the document without enquiring into the non- production of the original document. 16.07 Person about to leave Victoria may be ordered to be examined or to produce documents (1) If the Court on the application of any party is satisfied by evidence upon oath that any person— (a) is able to give material evidence or to produce relevant or material documents or things relating to a pending complaint; and (b) is likely to be absent from Victoria at the time the complaint comes on for hearing— the Court may order that, before the hearing— (c) the evidence of that person be taken; or (d) the documents or things be produced by that person. r. 16.05 -- 100 of 324 -- Order 16A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 83 (2) An order under paragraph (1) must be served on— (a) the person named in the order; and (b) all other parties to the complaint. (3) An order under paragraph (1) must be served on the person named in the order personally. (4) The person named in the order must, at a reasonable time before the evidence is to be taken or documents are to be produced, be given a reasonable sum for expenses and Rules 17.04 and 17.05 shall, with any necessary modification, apply to an order under this Rule. ORDER 16A APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 16A.01 Application of Order This Order applies to an application for a direction under section 42E(1) of the Evidence Act 1958. 16A.02 Form of application Notice of an application must be in Form 16AA. 16A.03 Filing The applicant must file the notice at least 7 days before the person the subject of the application is due to appear before or give evidence or make a submission to the Court. 16A.04 Service As soon as practicable after the filing of the notice the applicant must serve a copy on every other party. r. 16A.01 -- 101 of 324 -- Order 17 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 84 16A.05 Duty of applicant If, whether before or after a direction has been given, an applicant no longer requires the person the subject of the application to appear before or give evidence or make a submission to the Court by audio visual link or audio link, the applicant must notify the Registrar forthwith. 16A.06 Payment of costs Unless the Court otherwise orders, the appropriate amount prescribed by the regulations under section 42H(1) of the Evidence Act 1958 shall be paid in the first instance by the applicant. ORDER 17 WITNESS SUMMONSES 17.01 Attendance by summons (1) In any proceeding the Court may by witness summons order that a person to whom the witness summons is addressed attend at the hearing or at any stage of the proceeding for the purpose of giving evidence or of producing any document or thing or for both purposes. (2) A witness summons shall be in Form 17A, 17B, 17C or 17D whichever is appropriate. 17.02 Filing summons (1) An order by witness summons for the attendance of a person in a proceeding shall be taken to be made upon the signing of the witness summons by a registrar. (2) A witness summons requiring a person to attend for the purpose of giving evidence may be addressed to any number of persons. r. 16A.05 -- 102 of 324 -- Order 17 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 85 (3) A witness summons requiring the production of a document or thing must be addressed to one person only except in the case of partners where all the members of a firm may be addressed in the witness summons. 17.03 Service Service of a witness summons— (a) if the person to whom the witness summons is addressed is a natural person, shall be by personal service of a copy on the person to whom the witness summons is addressed in accordance with Rule 5.03; (b) if the person to whom the witness summons is addressed is a corporation, shall be by service of a copy in accordance with Rule 5.04(a) or, where provision is made by or under any Act for service of a document on a corporation, in accordance with that provision. 17.04 Conduct money A person to whom a witness summons is addressed shall be excused from complying with the summons unless conduct money, sufficient to meet the person's reasonable expenses of complying is given or tendered to that person at the time of service of the witness summons or a reasonable time before the day the witness is required to attend in answer to the summons. 17.05 Expenses of witnesses (1) A party must pay to— (a) a person not a party who attends before the Court, whether in compliance with a witness summons or not, and whom the party calls as a witness; or r. 17.03 -- 103 of 324 -- Order 17 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 86 (b) a person not a party who attends before the Court, in compliance with a witness summons served by the party, and is not called as a witness by any party— the fees and expenses of and income lost by that person. (2) The Court may order that a party pay to a person referred to in subrule (1) the fees, expenses and income lost to which, by virtue of that subrule, the person is entitled. (3) Where an order is made under subrule (2), the Court must fix the amount of the fees, expenses and income lost. (4) If a person not a party who attends before the Court whether in compliance with a witness summons or not, before being sworn, requests the Court to fix an amount to be paid to him or her as a witness, the Court must do so. (5) Unless the Court otherwise orders, no witness must be compelled to give evidence until the amount fixed by the Court under subrule (4) has been paid. 17.06 Setting aside The Court may set aside a witness summons either wholly or in part. 17.07 Books of account Nothing in this Order shall affect the provisions of Division 3A of Part III of the Evidence Act 1958 relating to books of account. 17.08 Production before date of attendance (1) A witness summons for production requiring production before the Court or an officer of the Court shall, unless the Court otherwise orders, permit the person to whom the witness summons r. 17.06 -- 104 of 324 -- Order 18 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 87 is addressed, instead of producing the document or thing before the Court or officer of the Court, to produce it to the registrar by hand or by post, in either case so that the registrar receives it not later than 2 days before the day on which production is required by the witness summons to be made. (2) This Rule does not apply to so much of a witness summons as requires a person to attend for the purpose of giving evidence. ORDER 18 AFFIDAVITS 18.01 Form of affidavit (1) An affidavit must be made in the first person. (2) Unless the Court otherwise orders, an affidavit must state the place of residence of the deponent and his or her occupation or, if he or she has none, his or her description, and that he or she is a party to the proceeding or employed by a party, if such be the case. (3) Notwithstanding paragraph (2), where 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 the address of his or her place of business, the position he or she holds and the name of his or her firm or employer, if any. (4) An affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. r. 18.01 -- 105 of 324 -- Order 18 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 88 (5) Every affidavit must be signed by the deponent, except as provided by Rule 18.02(1), and the jurat must be completed and signed by the person before whom it is sworn. (6) Each page of an affidavit must be signed by the person before whom it is sworn. (7) The first page of an affidavit must be headed immediately beneath the title of the proceeding with the name of the deponent and the date of swearing. (8) An affidavit must on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date of swearing. 18.02 Affidavit by illiterate, blind or incapacitated person (1) If it appears to the person before whom an affidavit is sworn that the deponent is illiterate, blind or physically incapacitated he or she must certify in or below the jurat that— (a) the affidavit was read in his or her presence to the deponent; and (b) the deponent seemed to him or her to understand it; and (c) the deponent made his or her signature or mark in the person's presence. (2) If an affidavit is made by an illiterate, blind or physically incapacitated deponent and a certificate in accordance with paragraph (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed perfectly to understand it. r. 18.02 -- 106 of 324 -- Order 18 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 89 18.03 Content of affidavit (1) Except where otherwise provided by or under these Rules an affidavit must be confined to facts which the deponent is able to state of his or her own knowledge. (2) In an application in a proceeding an affidavit may contain a statement of fact based on information and belief if the grounds are set out in the affidavit. 18.04 Affidavit by two or more deponents If an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn by "each of the abovenamed" deponents. 18.05 Alterations Notwithstanding any interlineation, erasure or other alteration in the jurat or body, an affidavit— (a) may be filed, unless the Court otherwise orders; but (b) may not be used without the leave of the Court unless the person before whom it is sworn has initialled the alteration. 18.06 Annexures and exhibits (1) A document referred to in an affidavit must not be annexed to the affidavit but may be referred to as an exhibit. (2) An exhibit to an affidavit must be identified by a separate certificate annexed to it bearing the same title as the affidavit and signed by the person before whom the affidavit is sworn. r. 18.03 -- 107 of 324 -- Order 18 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 90 18.07 Time for swearing Unless the Court otherwise orders an affidavit may be used in a proceeding notwithstanding that it was sworn before the commencement of the proceeding. 18.08 Irregularity Notwithstanding any irregularity in form an affidavit may— (a) unless the Court otherwise orders, be filed; (b) with the leave of the Court, be used in evidence. 18.09 Filing (1) An affidavit must be filed. (2) Unless the Court otherwise orders, an affidavit— (a) which has not been filed; or (b) which has not been served or filed in compliance with an order in respect of its service or filing— must not be used by the party by or on whose behalf it was made. 18.10 Affidavit sworn before party, solicitor (1) An affidavit sworn before— (a) a party; (b) a partner in a firm which is a party; or (c) an employee of a party— shall not be used in evidence by or on behalf of the party. (2) Paragraph (1) shall not apply where the Crown is the party on whose behalf the affidavit is to be used and the affidavit is sworn before an employee of the Crown. r. 18.07 -- 108 of 324 -- Order 19 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 91 ORDER 19 EXPERT EVIDENCE 19.01 Application This Order does not apply— (a) to any itemised quotation or assessment to which Rule 16.01.1 applies; or (b) if an affidavit made by an expert witness is served pursuant to Rule 16.02. 19.02 Service of statement or copy of a report of an expert (1) A party who intends at the hearing to adduce the evidence of a person as an expert witness must, not later than 10 days before the day fixed for the hearing, serve on every other party a statement in accordance with subrule (2) or a copy of a report in accordance with subrule (2.1). (2) The statement must— (a) give the name and address of the witness; (b) describe the qualifications to give evidence as an expert; and (c) give the substance of the evidence it is proposed to adduce from the witness as an expert. (2.1) In— (a) any claim for damages for personal injury; or (b) a proceeding under the Accident Compensation Act 1985; or (c) a proceeding under the Workers Compensation Act 1958— a party may serve on another party a copy of a report of an expert witness. r. 19.01 -- 109 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 92 (2.2) The report must— (a) give the name of the witness; and (b) describe the qualifications to give evidence as an expert. (3) Save with the leave of the Court or by consent of the parties, a party must not except in cross- examination adduce at the trial of a proceeding any evidence from a witness as an expert unless that party has served a statement under subrule (1) or a copy of a report under subrule (2.1). 19.03 Making a statement or copy of a report of other party evidence A party may put in evidence a statement or a copy of a report served on that party by another party in accordance with Rule 19.02. ORDER 19A SERVICE OF MEDICAL REPORTS 19A.01 Application This Order applies to a proceeding— (a) under the Accident Compensation Act 1985; (b) under the Workers Compensation Act 1958; (c) in which the plaintiff claims damages for personal injury. 19A.02 Counterclaim This Order shall, with any necessary modification, apply to a counterclaim in a proceeding of the kind referred to in Rule 19A.01. r. 19.03 -- 110 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 93 19A.03 Definitions In this Order, unless the context or subject matter otherwise requires— dentist means— (a) a person registered or qualified to be registered in the dentists' division of the register kept by the Dental Practice Board of Victoria under the Health Professions Registration Act 2005 or registered or qualified to be registered as a dentist under any corresponding enactment of another State or a Territory; (b) a person entitled to practise dentistry in a place out of Australia under an enactment of that place corresponding to the Health Professions Registration Act 2005, whether or not the person does so practise; examination means an examination for medical, dental or psychological purposes as the case requires; hospital report means a statement in writing concerning the plaintiff made by or on behalf of a hospital, rehabilitation centre or other like institution; medical expert means medical practitioner, dentist, or psychologist as the case requires; medical matters includes dental matters and psychological matters; medical practitioner means— (a) a medical practitioner registered or qualified to be registered by the Medical Practitioners Board of Victoria under the Health Professions r. 19A.03 -- 111 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 94 Registration Act 2005 or registered or qualified to be registered as a medical practitioner under any corresponding enactment of another State or a Territory; (b) a person entitled to practise medicine in a place out of Australia under an enactment of that place corresponding to the Health Professions Registration Act 2005, whether or not the person does so practise; medical report— (a) means a statement on medical matters concerning the plaintiff whether in writing or oral made by a medical expert; and (b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the medical expert obtained or caused to be brought into existence subsequently; psychologist means— (a) a psychologist registered or qualified to be registered as a psychologist under the Health Professions Registration Act 2005 or registered or qualified to be registered as a psychologist under any corresponding enactment of another State or a Territory; or (b) a person who practises psychology in a place outside Victoria; r. 19A.03 -- 112 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 95 serve, in relation to the service of a medical report, means— (a) where the medical report was in writing, serve a copy; and (b) where the medical report was oral, serve notice in writing of its substance. 19A.04 Notice for examination (1) The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places. (2) Where a plaintiff refuses or neglects without reasonable cause to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding. 19A.05 Expenses (1) The costs of and incidental to the examination shall be costs in the proceeding. (2) Without limiting paragraph (1), the defendant shall, on request by the plaintiff whether before or after the plaintiff is examined, pay to the plaintiff, a reasonable sum to meet his or her travelling and other expenses of and incidental to the examination. 19A.06 Report of examination A defendant for whom a plaintiff is examined under Rule 19A.04 shall as soon as practicable after the examination obtain from the medical expert a medical report. 19A.07 Service of reports (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to the plaintiff by another party) r. 19A.04 -- 113 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 96 which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence at the hearing. (2) Where a plaintiff obtains possession, custody or power of a hospital report which the plaintiff intends to call at the hearing, this Rule and Rule 19A.08, with any necessary modification, applies as if the report were a medical report. (3) A defendant or a third or subsequent party must serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to the defendant or a third or subsequent party by another party) in the possession, custody or power of or made to or obtained by or for the defendant, third or subsequent party. 19A.08 Time for service Unless the Court otherwise orders, the time for service of a medical report by a party required under Rule 19A.07 to serve a medical report shall be— (a) in a proceeding under the Accident Compensation Act 1985 or the Workers Compensation Act 1958, within 14 days of the proceeding being given a date for hearing; (b) in a proceeding involving a claim for damages for personal injury, not less than 14 days before the date fixed for a pre- hearing conference, mediation or hearing (whichever occurs first); (c) in the case of a medical report made to or obtained by or for a party after the times referred to in paragraphs (a) or (b), forthwith. r. 19A.08 -- 114 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 97 19A.09 Other medical reports to be served Where after a plaintiff has served a medical report under Rule 19A.07(1) the medical expert who made the report makes another medical report to the plaintiff, then, notwithstanding that the plaintiff no longer intends to tender the medical report so served or to adduce its substance in evidence at the hearing, or does not intend to tender the other medical report or to adduce its substance in evidence at the hearing, the plaintiff shall serve the other medical report forthwith. 19A.10 Proceeding against medical expert (1) This Rule applies to a proceeding in which the plaintiff claims damages for personal injury sustained as a result of medical or the like treatment or advice given in respect of any physical or mental condition of the plaintiff. (2) Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under this Order may exclude from the copy served any expression of opinion in the original report on the question of liability and, if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact that relates only to the question of liability. 19A.11 Medical report admissible (1) This Rule applies in the case of a medical report sought to be admitted pursuant to section 47 of the Accident Compensation Act 1985. (2) A medical report a copy of which was served under this Order is admissible as evidence of the opinion of the medical expert who gave the report and, where the medical expert's oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. r. 19A.09 -- 115 of 324 -- Order 19A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 98 (3) Subject to paragraphs (4) and (5), a medical report may be used in evidence by the party who served a copy of the report or by any party on whom the copy was served. (4) If a medical report is tendered by the party who served a copy of the report, that party shall cause the medical expert who gave the report to attend at the hearing of the proceeding to be cross- examined if notice that such attendance is required is served on the party by any other party not later than five days before the commencement of the hearing, and if the medical expert does not attend for cross-examination the Court may order that the medical report be not received in evidence. (5) If a medical report is tendered by a party on whom a copy of the report was served— (a) that party shall cause the medical expert who gave the report to attend at the hearing of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence; (b) if the report is received in evidence and the medical expert is cross-examined by any party against whom the report is received, at the conclusion of the cross-examination the party who tendered the report may examine the expert as if by re-examination. 19A.12 No evidence unless disclosed in report Save with the leave of the Court or by consent of the parties, a party shall not except in cross- examination adduce evidence from a medical expert on medical matters concerning the plaintiff unless that evidence is disclosed by a medical report served in accordance with this Order. r. 19A.12 -- 116 of 324 -- Order 20 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 99 ORDER 20 APPLICATIONS PART 1—GENERAL 20.01 Application of Order Unless otherwise provided by these Rules this Order applies to any interlocutory or other application in a proceeding other than an application under Order 10. 20.02 Form of application An application in a proceeding made on notice to any person must be by application, unless the Court otherwise orders, and must be supported by an affidavit or affidavits. 20.03 Form and filing (1) Unless otherwise provided by these Rules, an application in a proceeding must be in Form 20A. (2) An application must be filed and, on filing, an application shall be taken to have been made. (3) An affidavit or affidavits in support of an application must be filed before the hearing of the application. 20.04 Service (1) The applicant must serve a copy of an application and a copy of any affidavit in support on every person to whom notice of the application is to be given unless otherwise provided by these Rules. (2) Every application must be served within a reasonable time before the day for hearing named in the application, and in no case later than 2.00 p.m. on the previous day, or where the office of the Court was closed on the day before the day r. 20.01 -- 117 of 324 -- Order 20 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 100 for hearing, not later than 2.00 p.m. on the day the office was last open. 20.05 Adjournment The Court may adjourn the hearing of an application on such terms as it thinks fit. 20.06 Absence of party to application (1) If any person to whom an application is addressed fails to attend, the Court may hear the application if satisfied that the application was duly served. (2) If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit. PART 2—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 20.07 Definition In this Part, unless the context or subject matter otherwise requires— the Act means the Workers Compensation Act 1958; 20.08 Application for appointment of nominal defendant—Forms 20B and 20C (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 20B. r. 20.05 -- 118 of 324 -- Order 20 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 101 (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 Investments 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 paragraph (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 20C; (b) a copy of the application; (c) a copy of the affidavit in support; (d) notice of any hearing date subsequent to the appointment, fixed in the proceeding, if any; and (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. r. 20.08 -- 119 of 324 -- Order 21 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 102 20.09 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. 20.10 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 20A with such modification as is necessary; and (b) accompanied by an affidavit in support of the application. ORDER 21 ARBITRATION 21.01 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. r. 20.09 -- 120 of 324 -- Order 21 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 103 21.02 Statement of claim The statement of claim in a proceeding referred to in Rule 21.01 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. 21.03 Defence The notice of defence in a proceeding referred to in Rule 21.01 must state with particularity the date, place, circumstances, facts or matters relied on in defence of the claim. 21.04 No pleadings, discovery, interrogatories etc. No party in a proceeding referred to in Rule 21.01 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; (f) serve an expert witness statement; (g) apply to the Court for an order under Part 3 of Order 10. 21.05 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, r. 21.02 -- 121 of 324 -- Order 22 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 104 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. 21.06 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 paragraph (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. ORDER 22 PRE-HEARING CONFERENCES 22.00 Referral of complaint for pre-hearing conference For the purposes of section 107(1) of the Act, the Court constituted by— (a) a magistrate; or r. 21.06 -- 122 of 324 -- Order 22 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 105 (b) a registrar— may order that a complaint be referred to a magistrate or a registrar for a pre-hearing conference. 22.01 Parties must attend a pre-hearing conference (1) For the avoidance of any doubt, in this Rule a complaint includes a claim by counterclaim and a claim by third party notice, and a notice of defence includes a notice of defence to a counterclaim and a notice of defence to a claim by third party notice. (2) If a proceeding or any part of a proceeding is referred to a pre-hearing conference, all parties must attend the pre-hearing conference— (a) personally; and (b) if a party has appointed a legal practitioner or other person empowered by law to appear for the party, together with that legal practitioner or other person. (3) If a party referred to in subrule (2) is a corporation— (a) a legal practitioner; and (b) a person in the exclusive employment of the corporation who is authorised in writing to attend the pre-hearing conference on behalf of the corporation— must attend the pre-hearing conference. (4) In addition to the requirements of subrules (2) and (3), all parties must have present at the pre-hearing conference a person who has the authority to decide whether or not to settle the proceeding or settle the part of the proceeding that has been referred to a pre-hearing conference. r. 22.01 -- 123 of 324 -- Order 22 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 106 (5) If an insurer is indemnifying a party, the person referred to in subrule (4) may be an officer or employee of the insurer. (6) If a party does not attend a pre-hearing conference after receiving notice to attend, the magistrate or the Court constituted by a registrar may— (a) in the case of failure by a plaintiff, dismiss the complaint; or (b) in the case of failure by a defendant or other party, make an order that that party's notice of defence be struck out. (7) Where at a pre-hearing conference, the Court, including the Court constituted by a registrar, dismisses a complaint or strikes out a notice of defence the Court may also— (a) make an order for the defendant's costs of the proceeding; or (b) make an order on the claim, if the claim is for a debt or liquidated demand or is a claim arising from a motor vehicle collision and the claim is for the cost of repairs only or for total loss of the vehicle only. (8) Where the Court, whether constituted by a magistrate or a registrar, adjourns a pre-hearing conference, the Court may make an order as to the costs of the adjournment in accordance with the scale of costs in Appendix A. (9) A party whose notice of defence is struck out in accordance with paragraph (6)(b) shall, for the purposes of Rule 10.01, be taken to be a defendant who does not give notice of defence. (10) If all the parties to a proceeding (including any third parties) agree at a pre-hearing conference upon the terms in which an order should be made, including an order for the final disposition of a r. 22.01 -- 124 of 324 -- Order 22 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 107 complaint, the Court constituted by a registrar, if satisfied that the order sought is one proper to be made under this Rule, may make the order. (11) Where a proceeding or part of a proceeding is referred to a pre-hearing conference, the Court constituted by a registrar may exercise the powers of the Court under— (a) Rule 3.02; (b) Rule 6.06; (c) Rule 8.07; (d) Rule 9.08(1), unless the adequacy of further particulars is in issue; (e) Rule 11.07(1), unless the adequacy of discovery is in issue; (f) Rule 12.07(1), unless the adequacy of answers to interrogatories is in issue; (g) Rule 29.01(6); (h) Rule 35.02, but not as to costs, except to order that the question of costs be reserved; (i) Rule 35.03; (j) Rule 35.05(1) for an order for inspection of property, but excluding an order for detention or preservation of property; (k) section 102(3) of the Act (to order that a complaint be heard and determined by the Court and not referred to arbitration). (12) The Court constituted by a registrar may dispense with compliance with any of the requirements of this Rule, either before or after the occasion for compliance arises. Note Also refer to Rule 2.04. r. 22.01 -- 125 of 324 -- Order 22A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 108 22.02 Confidentiality The proceedings of a pre-hearing conference shall be confidential and no answers given or admissions made at a pre-hearing conference shall be used or referred to at the hearing nor be disclosed to the Court or arbitrating magistrate at the hearing without the consent of all parties. ORDER 22A MEDIATION 22A.01 Referral of proceeding or part of a proceeding to mediation A magistrate or a registrar may refer a proceeding or any part of a proceeding to an acceptable mediator for mediation under section 108(1) of the Act. 22A.02 Definitions In this Order— acceptable mediator means a person whom a magistrate or a registrar decides is acceptable to mediate a complaint, including, but not restricted to, a person who is— (a) a registrar or deputy registrar; (b) a local legal practitioner (within the meaning of the Legal Profession Act 2004), who has been approved as a mediator by the Law Institute (within the meaning of that Act); (c) a local legal practitioner (within the meaning of the Legal Profession Act 2004), who has been approved as a mediator by the Victorian Bar (within the meaning of that Act); r. 22.02 -- 126 of 324 -- Order 22A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 109 (d) a mediator accredited by The Institute of Arbitrators and Mediators Australia, ACN 008 520 045; (e) if the amount of monetary relief sought in a complaint is less than $10 000, a mediator within the meaning of section 21K of the Evidence Act 1958, or a person working with or for the body known as the Dispute Settlement Centre of Victoria, established by Order of the Governor in Council of 7 June 1994 under section 21K of the Evidence Act 1958; mediation report means a notice in Form 22AA. 22A.03 Parties must attend mediation (1) If a proceeding or any part of a proceeding is referred to mediation, all parties must attend the mediation— (a) personally; and (b) if a party has appointed a legal practitioner or other person empowered by law to appear for the party, together with that legal practitioner or other person. (2) If a party referred to in subrule (1) is a corporation— (a) a legal practitioner; and (b) a person in the exclusive employment of the corporation who is authorised in writing to attend the mediation on behalf of the corporation— must attend the mediation. (3) In addition to the requirements of subrules (1) and (2), all parties must have present at the mediation a person who has the authority to r. 22A.03 -- 127 of 324 -- Order 22A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 110 decide whether or not to settle the proceeding or settle the part of the proceeding that has been referred to mediation. (4) If an insurer is indemnifying a party, the person referred to in subrule (1) may be an officer or employee of the insurer. 22A.04 Consequences of failure to attend (1) If a party does not attend a mediation at the time and place nominated by the mediator, a magistrate or a registrar may— (a) if the party is a plaintiff, dismiss the proceeding; or (b) if the party is a defendant or other party, make an order that the party's notice of defence be struck out. (2) In this Rule a proceeding includes a claim by counterclaim and a claim by third party notice, and a notice of defence includes a notice of defence to a counterclaim and a notice of defence to a claim by third party notice. (3) An order under subrule (1) may include an order for the costs of the mediation that may be in accordance with the scale of costs in Appendix A. (4) For the purposes of Rule 10.01, a party whose notice of defence is struck out in accordance with subrule (1)(b), is to be taken to be a defendant who does not give notice of defence. 22A.05 Orders by consent If all the parties to a proceeding (including any third parties) agree at mediation upon the terms of an order to be made, including an order for the final disposition of a proceeding, a registrar may make the order. r. 22A.04 -- 128 of 324 -- Order 22A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 111 22A.06 Mediator may adjourn a mediation On or before the day fixed for mediation, the mediator may, with the consent of the parties, adjourn a mediation to another date. 22A.07 Mediation report Within 7 days of a mediation having been completed, the mediator must file a mediation report in Form 22AA and provide a copy of the report to each party who attended the mediation. 22A.08 Confidentiality Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of anything said or done by any person at the mediation. 22A.09 Extension of time limits Despite Rules 8.02(4), 9.05, 11.03 and 12.02, but subject to any order made under Rule 22A.04, if a proceeding is referred to mediation, the time for taking any step in a proceeding under any of those Rules must be calculated from the date of filing of a mediation report and not the day on which notice of defence is given. 22A.10 Costs If a proceeding where the monetary relief sought is less than $10 000 is mediated, the costs of the parties of the mediation are in accordance with Appendix A, in addition to any other amount, whether under the Magistrates' Court (Arbitration) Regulations 2000 or otherwise. r. 22A.06 -- 129 of 324 -- Order 23 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 112 ORDER 23 HEARING 23.01 Order of hearing The Court may give directions as to the order of evidence and generally as to the conduct of the hearing of a complaint. 23.02 No addresses Unless the Court otherwise orders, no opening or closing addresses may be made at the hearing of any complaint. 23.03 Absence of party If, when the hearing of a proceeding is called on, any party is absent, the Court may— (a) proceed with the hearing; (b) strike out or dismiss the complaint; (c) adjourn the hearing; or (d) make any other order which the Court considers appropriate. 23.04 Adjournment of hearing The Court may at any time adjourn a hearing on such terms as it thinks fit. ORDER 24 INSTRUMENTS ACT RULES 24.01 Definition In this Order— the Act means the Instruments Act 1958. r. 23.01 -- 130 of 324 -- Order 24 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 113 24.02 Application of Order (1) This Order applies to any proceeding in the Court under Part I of the Act. (2) Except where inconsistent with the Act or this Order the Rules apply to any proceeding under Part I of the Act. 24.03 Form of complaint (1) A complaint upon a bill of exchange commenced after the bill has become due shall be in Form 24A. (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. 24.04 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 24B and must be filed. (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. 24.05 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. r. 24.02 -- 131 of 324 -- Order 24 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 114 (2) An application for such an order must be filed and must be in Form 24C. (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. 24.06 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 24D. 24.07 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 24E; and (b) not less than five 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. (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 fourteen 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 shall not make a further application without the leave of the Court. r. 24.06 -- 132 of 324 -- Order 25 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 115 ORDER 25 ORDERS 25.01 General relief The Court may at any stage of a proceeding on the application of any party make such order as the case requires notwithstanding that the order was not sought in the complaint. 25.02 Date of effect An order made by the Court must, unless the Court otherwise orders, bear the date of and take effect on and from the day it is made. 25.03 Time for compliance (1) Subject to paragraph (2), an order which requires a person to do an act shall be taken to mean, unless the Court otherwise orders, that the act must be done within 14 days after service of an order or of a certified extract from the register of the order. (2) Paragraph (1) does not apply to— (a) so much of an order as requires a person to pay money otherwise than into Court; or (b) an order for the delivery of goods. 25.04 Orders may be drawn up; certified extract (1) An order may be drawn up by a party and verified by the registrar if a party so desires. (2) Except where a special form of order is prescribed by these Rules, a certified extract from the Court record of any order shall be sufficient for any purpose for which an order is required. r. 25.01 -- 133 of 324 -- Order 25 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 116 25.05 Consent orders (1) If all parties to a complaint (including any third parties) agree to the making of an order for the final disposition of a complaint (not being an order relating to enforcement of an order) and written consent of all parties is filed, the Court constituted by a registrar may make an order in the terms set out in the consents without appearance by any party. (1.1) Except as provided in paragraph (1) or as otherwise provided by these Rules, the Court constituted by a registrar may make any order (which order may include an order for costs) in any proceeding, summons or application with or without appearance of any party if satisfied that the order sought is by the consent of the parties to the proceeding, summons or application. (2) If the registrar is not satisfied that an order should be made under paragraph (1.1), the registrar may, or if a party requests must, refer the matter to the Court for decision. 25.06 Order where excess abandoned An order of the Court in a complaint referred to in Rule 4.01(2) is conclusive evidence for any purpose of abandonment of the excess of a claim above the jurisdictional limit of the Court. 25.07 Setting aside or varying self-executing order (1) In this Rule, self-executing order means an order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step— (a) if the party is a plaintiff, that the complaint be dismissed; r. 25.05 -- 134 of 324 -- Order 26 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 117 (b) if the party is a defendant, that the defence of the party, if any, be struck out. (2) A defendant whose defence is struck out upon the failure to comply with a self-executing order is, for the purpose of Rule 10.01, taken to be a defendant who does not give notice of defence. (3) The Court may set aside or vary, as the case requires— (a) a self-executing order; (b) the dismissal of a complaint upon the failure of a plaintiff to comply with a self-executing order; (c) the striking out of a notice of defence upon the failure of a defendant to comply with a self-executing order; (d) an order made under Rule 10.01 upon the failure of a defendant to comply with a self- executing order; (e) an order made under Rule 10.04 upon the failure of a plaintiff to comply with a self- executing order. ORDER 26 COSTS 26.01 Costs to be fixed on day of hearing (1) Unless it is impracticable to do so, the Court must fix the costs of any complaint or application on the day on which the complaint or application is heard and determined. (2) If costs are not fixed by the Court as provided for by subrule (1), Order 26A applies. r. 26.01 -- 135 of 324 -- Order 26 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 118 26.02 Costs in accordance with Appendix A (1) Subject to paragraph (2), costs must be fixed in accordance with the scale of costs in Appendix A to these Rules. (2) If in any case the Court thinks that any item in the scale is inadequate or excessive, the Court may allow a greater or lesser sum than the scale provides. (3) If the scale of costs does not provide for any case, the Court may allow reasonable costs. 26.03 Application of scale In applying the scale of costs between party and party, the amount recovered shall determine the scale of the plaintiff's costs and the amount sought to be recovered shall determine the scale of the defendant's costs. 26.04 Costs on counterclaim If a counterclaim is made, the scale upon which the costs of the parties are to be fixed must, unless the Court otherwise orders, be determined— (a) if the plaintiff succeeds on both the claim and the counterclaim, by the amount which the plaintiff recovers on the claim, unless the amount of the counterclaim is the larger, in which case the costs incurred after service of the counterclaim shall be determined by the amount of the counterclaim; (b) if the defendant succeeds on both the claim and the counterclaim, by the amount which the defendant recovers on the counterclaim or the amount of the plaintiff's claim, whichever is the larger; (c) if both parties are successful, by the amounts which they recover on their respective claims; r. 26.02 -- 136 of 324 -- Order 26 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 119 (d) if both claim and counterclaim fail, by the amount claimed by the opposite party. 26.05 Costs of discovery, particulars Unless the Court otherwise orders— (a) the costs of and incidental to discovery or interrogatories and answers thereto must be borne by the party requiring discovery or interrogating; (b) the costs of and incidental to seeking particulars under Rule 9.03 or 9.04 must be borne by the party seeking particulars. 26.06 Complaint not referred to arbitration If the Court orders under section 102(3) of the Act that a complaint be heard and determined otherwise than by referring it to arbitration, the Court may make such order concerning the costs of the complaint as it thinks fit. 26.07 Costs after defence struck out Where an order is made under Rule 9.08(1)(b)(ii), Rule 9.08(1)(d), Rule 11.07(1)(b)(ii), Rule 11.07(1)(d), Rule 12.07(1)(b)(ii), Rule 12.07(1)(d), Rule 22.01(6)(b) or Rule 22A.04(1)(b), costs fixed consequent on the making of the order may include scale costs in the proceeding up to and including the order striking out the notice of defence. 26.08 Costs after complaint dismissed Where an order is made under Rule 9.08(1)(b)(i), Rule 9.08(1)(c), Rule 11.07(1)(b)(i), Rule 11.07(1)(c), Rule 12.07(1)(b)(i), Rule 12.07(1)(c), Rule 22.01(6)(a) or Rule 22A.04(1)(a), costs consequent upon the complaint being dismissed may include scale costs in the proceeding up to and including the application for an order for costs. r. 26.05 -- 137 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 120 ORDER 26A ASSESSMENT OF COSTS 26A.01 Application (1) Unless the Court has fixed costs as provided by Order 26, this Order applies to costs in a proceeding which by these Rules or any order of the Court are to be paid to a party to the proceeding by another party. (2) Nothing in this Order operates to prevent the Court from fixing the costs of any proceeding. (3) This Order does not apply to a proceeding under Division 2 of Part 5 of the Act. 26A.02 Definitions In this Order— assessed costs means costs assessed in accordance with this Order; bill means a bill of costs; costs includes disbursements; folio means 100 words and any number, however set out must count as one word; registrar includes the principal registrar and a deputy registrar. 26A.03 Bases of assessment Subject to this Order, costs in a proceeding which are to be assessed must be assessed on— (a) a party and party basis; or (b) a solicitor and client basis; or (c) an indemnity basis; or (d) such other basis as the Court may direct. r. 26A.01 -- 138 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 121 26A.04 Party and party basis On an assessment on a party and party basis, all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed must be allowed. 26A.05 Solicitor and client basis On an assessment on a solicitor and client basis, all costs reasonably incurred and of reasonable amount must be allowed. 26A.06 Indemnity basis (1) Subject to subrule (2), on an assessment on an indemnity basis, all costs must be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred. (2) Any doubt which the registrar may have as to whether the costs were unreasonably incurred or were unreasonable in amount must be resolved in favour of the party to whom the costs are payable. 26A.07 General basis Except as provided by these Rules or any order of the Court, costs must be assessed on a party and party basis. 26A.08 By whom costs to be assessed (1) Unless the Court otherwise orders, costs assessed in accordance with this Order must be assessed by the registrar. (2) A registrar may assist another registrar to assess a bill. r. 26A.04 -- 139 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 122 26A.09 Costs of assessment (1) Costs to be assessed under an order must include the costs of the assessment. (2) After service of an application under Rule 26A.10 for the assessment of costs, the party entitled to costs and the party liable for them may serve on one another an offer of compromise in respect of the amount of the costs to be assessed, and Order 15 is, with any necessary modification, applicable as if the order of the registrar on the assessment were an order at the hearing. (3) Subject to this Rule and to any order of the Court, the registrar may make orders for the costs of an assessment. (4) The registrar may allow any fee, cost or disbursement in full, or in part. (5) Should the registrar consider the fee, cost or disbursement provided by the Scale of Fees in Appendix A to be inadequate to compensate for the work actually done, the registrar may allow an appropriate fee which the registrar considers to be fair and reasonable in the circumstances. 26A.10 Application for assessment (1) An application to the registrar for costs to be assessed must be made by application in accordance with Order 20, save that no affidavit in support is required. (2) Unless the registrar otherwise directs, the application must be served not less than 21 days before the day for hearing named in the application. r. 26A.09 -- 140 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 123 26A.11 Filing of bill (1) A party who applies for costs to be assessed must file a bill in respect of the costs with the registrar at the time the application under Rule 26A.10 is filed. (2) The bill must be prepared in accordance with Rule 26A.14. (3) The registrar may direct the party to lodge before the day for hearing named in the application any documents in the party's possession, custody or power that will be required for the purpose of evidence on the assessment. 26A.12 Service of bill The registrar must not assess costs unless the party entitled to costs serves a copy of the bill on the party liable for the costs before or at the time of service of the application under Rule 26A.10. 26A.13 Undefended proceeding A party who applies for costs to be assessed need not serve an application or copy of a bill on a defendant who has not filed a notice of defence. 26A.14 Content of bill (1) In a bill for assessment under this Order, charges and disbursements must be set out in separate columns, and the amounts in each column must be totalled at the foot of each page and the total carried forward to the top of the next page. (2) The bill must contain— (a) items numbered in chronological order describing briefly the work done by the solicitor for the party entitled to costs, and stating beside each item the amount claimed for the work and the amount of any disbursement made; r. 26A.11 -- 141 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 124 (b) at the conclusion of the chronological description of the work done, a description, having regard to the matters referred to in Rule 26A.20, of work done justifying an allowance under Appendix A of the amount claimed beside that item. (3) For the purpose of paragraph (2)(a), work done in Victoria by an employee or agent of the solicitor is to be taken to have been done by the solicitor. (4) If work for which costs are claimed was done by a clerk of the solicitor and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk must be stated in the bill. 26A.15 Disbursement or fee not paid (1) A disbursement may be included in a bill notwithstanding that it has not been paid if the bill states that fact. (2) On the assessment, the disbursement may be allowed if— (a) it is paid before assessment; or (b) an undertaking to the Court, satisfactory to the registrar, is given that it will be paid within a time specified in the undertaking. 26A.16 Charge of lawyer outside of Victoria If a bill includes a charge for work done by a lawyer practising in a place out of Victoria— (a) the charge must be shown as a disbursement; and (b) so far as practicable, the charge must, if allowed, be allowed in an amount appropriate to the place where the lawyer practises. r. 26A.15 -- 142 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 125 26A.17 Amendment of bill A magistrate or the registrar may at any stage— (a) give leave to a party to amend or withdraw a bill; (b) order that a party file another bill. 26A.18 Agreement as to part of bill If the parties agree in writing that part of the costs to be assessed may be allowed at a specified amount and the agreement is subscribed to the bill or filed— (a) Rule 26A.14 does not apply to what is agreed unless the registrar otherwise directs; (b) Rules 26A.16 and 26A.17 apply to the agreement as they apply to a bill. 26A.19 Objection to bill (1) A party on whom an application under Rule 26A.10 and a bill is served may by notice object to any item in the bill. (2) The notice must state by a list each item in the bill to which the party objects, and must also state specifically and concisely the grounds of objection to each item. (3) The notice must be filed with the registrar and served on the party filing the bill and on any other party to whom the application for the assessment is addressed not less than 7 days before the day for hearing named in the application. 26A.20 Discretionary costs (1) Except as these Rules or any order of the Court otherwise provides, the fees and allowances which are discretionary that are referred to in Appendix A must be allowed at the discretion of the registrar. r. 26A.17 -- 143 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 126 (2) In exercising the discretion under subrule (1) the registrar must have regard to— (a) the complexity of the item or of the proceeding in which it arose and the difficulty or novelty of the questions involved; (b) the nature and importance of the proceeding; (c) the skill, specialised knowledge and responsibility involved; (d) the number and importance of the documents prepared or perused, without regard to length; (e) the place where and the circumstances in which the business involved was transacted; (f) the labour involved and the time spent by the solicitor or counsel; (g) the amount or value of any money or property involved; (h) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same proceeding; (i) any other relevant circumstances. 26A.21 Assessment where no objection If no objection to a bill is made in accordance with Rule 26A.19, the registrar may allow or disallow the amount of the costs in whole or in part. r. 26A.21 -- 144 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 127 26A.22 Attendance of parties (1) The registrar may give directions with respect to— (a) the parties to whom an application under Rule 26A.10 must be addressed; (b) the parties who should attend or be represented on any assessment. (2) The registrar may disallow the costs of attendance on an assessment of any party whose attendance is unnecessary. (3) Despite subrules (1) and (2), any party interested may attend an assessment before the registrar. 26A.23 Costs in proceedings before registrar If in any proceeding before the registrar any party is guilty of neglect or delay, or puts any other party to unnecessary or improper expense relative to the proceeding, the registrar may direct that party to pay any costs that the registrar thinks proper. 26A.24 Costs reserved (1) Where by order of the Court the costs of any interlocutory or other application or of any step in a proceeding are reserved, and the Court does not thereafter direct by and to whom those costs are to be paid, then unless the Court otherwise orders, the registrar may by order so direct. (2) Subrule (1) must not apply where after the order that costs be reserved is made the Court determines that no further order be made with respect to those costs. 26A.25 Reference to a magistrate The registrar may refer to a magistrate for directions any question arising on an assessment. r. 26A.22 -- 145 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 128 26A.26 Application by person liable to pay (1) If a party who is entitled to be paid costs and to have the costs assessed under this Order does not apply to have the costs assessed within 30 days after service on the party of a request in writing to do so by a party liable for the costs, the registrar may order the party entitled to file and serve an application under Rule 26A.10 and may fix a time for compliance. (2) If a party in respect of whom an order is made under subrule (1) fails to comply with the order, the registrar may— (a) disallow the costs of the party or allow a nominal or other sum for costs; (b) order the party to pay the costs of any other party. 26A.27 Solicitor at fault (1) This Rule applies if— (a) a party fails to have costs assessed within the time fixed under Rule 26A.26(1) and the failure is occasioned by the neglect or delay of the party's solicitor; or (b) in any proceedings before the registrar the solicitor for any party— (i) is guilty of neglect or delay; or (ii) causes any other party unnecessary expense. (2) The registrar may— (a) order the solicitor to pay costs to any party in respect of the proceedings before the registrar; r. 26A.26 -- 146 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 129 (b) refuse to allow the fees to which the solicitor would otherwise be entitled for drawing any bill or for any attendance before the registrar. (3) If the solicitor objects to an order made by the registrar under subrule (2), the solicitor may apply for review of the order. (4) An application under subrule (3) must be made by notice. (5) The notice under subrule (4) must state specifically and concisely the grounds of objection to the order. (6) The solicitor must file a copy of the notice on each party interested within 14 days after the order of the registrar. (7) On the review, unless the Court otherwise orders— (a) further evidence must not be received; (b) the solicitor giving notice must not raise any ground of objection not stated in the notice. (8) On the review, the Court may— (a) exercise all the powers and discretions of the registrar with respect to the subject matter of the review; (b) set aside or vary the order of the registrar; (c) remit any matter to the registrar; (d) make such order as the case requires. (9) Except so far as a magistrate or a registrar otherwise orders, a review under this Rule must not operate as a stay of execution or of proceedings under the order of the registrar to which the review relates. r. 26A.27 -- 147 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 130 26A.28 Cross costs (1) If a party entitled to be paid costs is also liable to pay costs, the registrar may— (a) assess the costs which that party is liable to pay and set off the amount allowed against the amount the party is entitled to be paid and by order state the amount of the balance and the parties by whom and to whom the balance is payable; or (b) decline to make an order as to the costs which the party is entitled to be paid until that party has paid or tendered the amount that party is liable to pay. (2) Costs may be set off under paragraph (1)(a) despite a solicitor for a party having a lien for costs in the proceeding. 26A.29 Order on assessment (1) If the registrar assesses a bill or otherwise fixes an amount for costs, the result must be stated in the form of an order. (2) The registrar may, after the conclusion of the assessment of any bill, make a final order with respect to the amount at which the registrar allows the costs or disallows the costs. (3) In the course of the assessment the registrar may make separate and interim orders in respect of any item in a bill. (4) The registrar may at any time correct a clerical mistake in an order made under this Rule or an error arising in an order from any accidental slip or omission. (5) If costs are assessed, an order of the registrar for payment of any amount found to be due may be enforced in the same manner as an order for the payment of money. r. 26A.28 -- 148 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 131 (6) Subrule (5) applies to an interim order for payment of any item in a bill of costs made under this Rule. 26A.30 Review by magistrate (1) If any party interested objects to an order of the registrar allowing or disallowing, wholly or in part, any item in a bill, or allowing some amount in respect of any item, the Court may, on the application of that party, review the order of the registrar. (2) An application under subrule (1) must be made by notice. (3) The application must be made to a magistrate. (4) The notice must state by a list each item in the bill in respect of which the party objects to the order of the registrar, and must also state specifically and concisely the grounds of objection to that order and the order sought in its place. (5) The applicant must file and serve a copy of the notice on each party interested within 14 days after the order of the registrar. (6) On the review, unless the Court otherwise orders— (a) further evidence must not be received; (b) the party giving notice must not raise any ground of objection not stated in the notice. (7) On the review, the Court may— (a) exercise all the powers and discretions of the registrar with respect to the subject matter of the review; (b) set aside or vary the order of the Registrar; (c) remit any item in the bill to the registrar; (d) make such other order as the case requires. r. 26A.30 -- 149 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 132 (8) Except so far as a magistrate or registrar otherwise orders, a review under this Rule must not operate as a stay of execution or of proceedings under the order of the registrar to which the review relates. 26A.31 Necessary or proper costs All costs must be allowed as are necessary or proper for the attainment of justice or for enforcing or defending the rights of any party. 26A.32 Unnecessary etc. work (1) The Court by order or the registrar on an assessment may disallow the costs of any work which is not necessary or is done without due care. (2) If a document is of unnecessary length, for the purpose of subrule (1), work which is not necessary includes work for that part of the document which is not necessary. (3) A party whose costs for work is disallowed under subrule (1) must, unless the Court or the registrar otherwise orders, pay costs for any work by another party occasioned by the work for which the costs are disallowed. 26A.33 Increased allowance The registrar may increase the amount of value of any allowance or expense in Appendix A as he or she thinks fit. 26A.34 Copy documents The fees allowed in Appendix A for drawing any document must include not more than 3 copies of the document made for the use of the party, the party's solicitor or the agent of the solicitor, or for counsel to settle. r. 26A.31 -- 150 of 324 -- Order 26A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 133 26A.35 Service of several documents Two or more documents in the same proceeding which can be served together must be so served, and a fee for the service of one must be allowed. 26A.36 Defendants with same solicitor If 2 or more defendants are represented by the same solicitor, and the solicitor does work for one or some of them separately which could have been done for some or all of them together, on assessment of the solicitor's bill of costs the registrar may disallow costs for unnecessary work. 26A.37 Negotiations Costs reasonably and properly incurred with respect to negotiations for compromise must be allowed whether or not the negotiations were successful. 26A.38 Retainer of counsel A retaining fee to counsel must not be allowed on assessment as between party and party. 26A.39 Advice and other work of counsel (1) If they are reasonably and properly incurred, costs with respect to the following matters must be allowed— (a) the advice of counsel on the pleadings, evidence or other matter in a proceeding; (b) counsel drawing or settling any pleading or other document in a proceeding which is proper to be drawn or settled by counsel; (c) counsel engaging in any preparation, view, conference or consultation. r. 26A.35 -- 151 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 134 (2) If affidavits or interrogatories which are proper to be drawn or settled by counsel are or could have been drawn or settled at the same time, only one fee must be allowed. 26A.40 Premature brief Costs with respect to the preparation and delivery of a brief to counsel for a hearing which did not take place must not be allowed if the costs were incurred prematurely. 26A.41 Barrister and solicitor (1) This Rule applies if a barrister and solicitor acts in both capacities or appears as a barrister, instructed by a partner or employee. (2) The person so acting or appearing or that person's partner must not be allowed a fee for any instructions for a brief or for drawing or engrossing a brief, but the registrar may allow one of them for preparing for hearing. ORDER 27 ENFORCEMENT OF ORDERS PART 1—DEFINITIONS 27.01 Definitions (1) In this Order— attachment of earnings order means an order under Part 5 or such order as varied from time to time; earnings, in relation to a judgment debtor, means any amounts payable to the judgment debtor— r. 26A.40 -- 152 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 135 (a) by way of wages or salary, including any fees, bonus commission, overtime pay or other emoluments payable in addition to wages or salary; or (b) by way of pension, including— (i) an annuity in respect of past services whether or not the services were rendered to the person paying the annuity; and (ii) periodical payments in respect of or by way of compensation for the loss, abolition or relinquishment, or any diminution in the emoluments, of any office or employment— but does not include any pension payable to the judgment debtor under the Social Security Act 1991 of the Commonwealth or the Veterans' Entitlements Act 1986 of the Commonwealth; employer, in relation to a judgment debtor, means a person (including the Crown, a Minister of the Crown, and any statutory authority representing the Crown) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the judgment debtor; garnishee means a person from whom a judgment creditor claims that a debt is due or accruing to a judgment debtor; judgment creditor means the person entitled to enforce an order; judgment debt means the amount of money payable under an order and includes the costs of recovering that amount; r. 27.01 -- 153 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 136 judgment debtor means the person liable under an order; net earnings, in relation to a payday means the amount of the earnings becoming payable by a particular employer on that payday after making all proper deductions under income tax legislation of the Commonwealth; normal deduction, in relation to an attachment of earnings order and in relation to a payday, means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that payday and either the last preceding payday or, where there is no last preceding payday, the date on which the employer became, or last became, the judgment debtor's employer; officer, in relation to a corporation, has the same meaning as in section 9 of the Corporations Law; order means an order made by the Court— (a) for the payment of money, with or without costs; or (b) for the payment of costs alone; or (c) under Rule 27.11(1); payday means an occasion on which earnings to which the attachment of earnings order relates become payable; protected earnings, in relation to an attachment of earnings order and in relation to a payday, means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that payday and either the last preceding payday or, where there is no last preceding payday, r. 27.01 -- 154 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 137 the date on which the employer became, or last became, the judgment debtor's employer. (2) For the purposes of the definition of garnishee in paragraph (1), an amount standing to the credit of a judgment debtor in an account in a bank, building society, cooperative housing society or similar society, credit union, credit society or investment fund or corporation is a debt due or accruing to the judgment debtor, whether or not a demand or notice is required before money may be withdrawn. PART 2—WARRANTS GENERALLY 27.02 Issue of warrant (1) A warrant other than a warrant referred to in Rule 27.02.1, shall not be issued unless the person requesting it to be issued— (a) produces to a registrar a form of the warrant; (b) where the warrant is to enforce an order for the payment of money, files a request to issue a warrant which must state— (i) the date of the order; and (ii) the amount for which the order was made; and (iii) the amount, including any interest accrued and any costs due and payable in respect of the order at the date of request with particulars stating how that amount is calculated or made up; and (iv) the daily amount of interest, if any, which subject to any future payment under the order, will accrue after the date of request in respect of the amount of the order and costs; and r. 27.02 -- 155 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 138 (v) particulars of any amounts paid on account or recovered under any previous warrant or other proceeding. (2) A warrant referred to in paragraph (1) is issued when the warrant is sealed by the registrar with the seal of the Court. (3) A warrant referred to in paragraph (1) shall bear the date of its issue. 27.02.1 Issue of warrant consequent to request by electronic message (1) A request for the issue of a warrant to enforce an order for the payment of money may be made by an authorised user lodging an electronic message with the Court. (2) A request by electronic message under paragraph (1) must state— (a) the name of the judgment creditor; (b) the name of the judgment debtor; (c) the Court number; (d) the date of the order; (e) particulars, including dates, of any amounts paid or recovered under any previous warrant or other proceeding since the date of the order; (f) whether interest is being sought from the date of the order. (3) A warrant is issued when a request lodged by electronic message, which complies with the requirements of paragraph (2), is received at the Court. r. 27.02.1 -- 156 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 139 (4) A warrant issued under paragraph (3) is valid for all purposes if it bears— (a) the name of the Principal Registrar; and (b) the date of its issue. 27.03 Duration (1) A warrant shall be valid for the purpose of execution for one year after the day it is issued. (2) Notwithstanding paragraph (1), a registrar may from time to time extend the period of the validity of the warrant for the purpose of execution for a period of not more than one year from the day on which it would otherwise expire and so on from time to time. (3) An extension under paragraph (2) shall not be made after the day of expiry of the warrant. (4) The priority of a warrant in respect of which an extension under paragraph (2) had been made shall be determined by reference to the date on which the warrant was originally delivered to the person to whom it is directed. 27.04 Costs of prior execution The amount for which a warrant may be issued shall include the costs, fees and expenses (including the costs of any unsuccessful previously attempted execution of the order) incurred in respect of any prior warrant of execution on the same order, whether the prior warrant was or was not productive. 27.05 Interpleader (1) If a claim is made to or in respect of property seized under a warrant, or in respect of the proceeds or value of that property, by any person other than the judgment debtor, a registrar may, on the application of the person to whom the r. 27.03 -- 157 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 140 warrant is directed, issue a summons directed to the judgment creditor and the person making the claim seeking relief by way of interpleader. (2) The person to whom the warrant is directed may apply under paragraph (1) whether or not proceedings have been brought against him or her in the Court or any other court. (3) A claimant under paragraph (1) must within a reasonable time after the claimant has become aware or ought reasonably to have been aware of the seizure of the property give the person to whom the warrant is directed a notice in writing showing— (a) particulars of the property alleged to be the property of the claimant; and (b) the grounds of the claim; and (c) the claimant's usual address and occupation and an address for service in Victoria. (4) A summons under paragraph (1) must be in Form 27A. (5) A summons may be served on the judgment creditor and the claimant by leaving a copy of the summons at the address for service or by sending a copy by security post to that address. 27.06 When interpleader decided against the claimant If the claim to any property the subject of a warrant to seize property is decided against the claimant, the costs of the person to whom the warrant is directed in the interpleader shall be retained by the person to whom the warrant is directed out of the proceeds of the execution of the warrant unless— r. 27.06 -- 158 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 141 (a) the party who procured the issue of the warrant requests the Court to order that those costs be paid by the claimant and the Court so orders; or (b) the Court otherwise orders. 27.07 Order against two or more persons (1) If in a complaint an order is made against two or more defendants jointly, the order may be enforced by warrant or otherwise against any of the defendants as if the order had been made against that defendant separately. (2) If an order against two or more defendants jointly is satisfied by any of the defendants, no further steps may be taken by the party in whose favour the order so satisfied was made against any other defendant. 27.08 Order against partners (1) An order made against a firm may be enforced against any or all of the persons who were members of the firm at the time the cause of action arose. (2) If a person is sued under Rule 6.04 in a name or style other than the person's own name and an order is made against the person in that name or style, the order may be enforced against the person. (3) No enforcement proceeding shall be commenced under an order referred to in paragraph (1) or (2) against a person whose name is not mentioned in the order or complaint unless the person in whose favour the order was made files with the registrar an affidavit stating— (a) the name and address of the person against whom it is proposed to commence the proceeding; and r. 27.07 -- 159 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 142 (b) that, at the time the cause of action arose, that person was a member of the firm or was carrying on business in the name or style in which the order was made; and (c) the proceeding it is desired to take under the order. PART 3—WARRANTS TO SEIZE PROPERTY 27.09 Warrant to seize property (1) If an order is made by the Court, a registrar may, in the circumstances referred to in paragraph (2), issue a warrant to seize property for the purpose of satisfying the judgment debt. (2) Paragraph (1) applies where the Act under which the order is made either specifies no method of enforcement of the order or provides for enforcement by distress. (3) A warrant to seize property authorises the person to whom it is directed to seize and sell any personal property belonging to the judgment debtor. (4) Money or bank notes belonging to a judgment debtor may be seized under a warrant to seize property but need not be sold. (5) Cheques, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to a judgment debtor may be seized under a warrant to seize property and held as security for the judgment debt or the unsatisfied part of the judgment debt and when the time of payment arrives the person to whom the warrant is directed may demand and receive payment of them and may sue in any proper court in the name of the judgment debtor or in the name of any person in whose name the judgment debtor might r. 27.09 -- 160 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 143 have sued for the recovery of the money secured or made payable by them. (6) Subject to this Order and except where otherwise expressly provided by these Rules, the rules, practice and procedure of the Supreme Court which apply to or are adopted by the sheriff in the execution of warrants of execution apply, with such modifications as are necessary, to the execution of warrants to seize property. 27.10 Form of warrant A warrant to seize property must be in Form 27B. 27.10.1 Notice to person responsible for safekeeping of seized property The prescribed form of notice under section 111(7A) of the Act is Form 27BA. PART 4—WARRANTS OF DELIVERY 27.11 Warrant of delivery (1) If an order is made by the Court— (a) for delivery of goods; or (b) for delivery of goods or recovery of their assessed value— a registrar may issue a warrant of delivery. (2) If the order of the Court is for the assessed value of goods only, the order may be enforced by the same means as any other order for the payment of money. (3) Rule 27.09(6) applies to execution of a warrant of delivery. 27.12 Form of warrant A warrant of delivery must be in Form 27C. r. 27.10 -- 161 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 144 PART 4A—ORAL EXAMINATION 27.12.1 Examination of judgment debtor (1) If an order has been made for the recovery or payment of money (with or without costs) or for costs alone a registrar may upon application of the judgment creditor issue a summons requiring the judgment debtor (or, if the judgment debtor is a corporation, an officer of the corporation) to appear before the Court to be orally examined by the registrar as to— (a) the amount and source of the income of the judgment debtor; (b) the property and assets of the judgment debtor; (c) the cash that is readily available to the judgment debtor or that can be made so available; (d) the debts, liabilities and other financial obligations of the judgment debtor— and the registrar may examine the person as to any other matter related to the financial circumstances generally of the judgment debtor and the judgment debtor's means and ability to satisfy the order. (2) A summons under paragraph (1) must be in Form 27CA. (2A) The judgment creditor must serve a summons under paragraph (1) and a copy of Form 27CC, or Form 27CD if the judgment debtor is a corporation, not less than 7 days before the day named for the examination. (3) The person must be examined on oath. r. 27.12.1 -- 162 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 145 (4) The registrar may issue a summons calling on other persons to give evidence or produce documents or to give evidence and produce documents. (5) A summons under paragraph (4) must be in Form 27CB. (6) An examination under this Part must be conducted by the registrar or counsel for the judgment creditor (if present) and no persons other than the judgment debtor being examined and his, her or its counsel and the judgment creditor and his, her or its counsel may be present without the consent of both parties. (7) If the examination is conducted by the registrar a copy of the record in Form 27CC or 27CD must be sent to the judgment creditor. (8) At an examination the registrar may make an order as to the costs of the examination in accordance with the scale of costs in Appendix A, the fees, if any, for filing and service of the summons and any other prescribed fees. (9) A registrar may adjourn an examination under this Rule as he or she thinks fit. (10) Where a summons under this Rule has not been served, the registrar may, on application of the judgment creditor— (a) in the case of a summons under subrule (1), alter, to a later day, the day named in the summons for the examination of the judgment debtor; or (b) in the case of a summons under subrule (4), alter, to a later day, the day named in the summons for the person to give evidence or produce documents, or to give evidence and produce documents. r. 27.12.1 -- 163 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 146 (11) Despite subrule (10), the registrar must not— (a) alter, to a later day, a day named in a summons under this Rule more than once unless the registrar is satisfied that reasonable efforts have been made to serve the summons; or (b) alter a day named in a summons under this Rule when the summons has ceased to be valid under Rule 4.05. 27.12.2 Issue of summons for oral examination consequent to application by electronic message (1) An application to the registrar under Rule 27.12.1 for the issue of a summons under that Rule may be made by an authorised user lodging an electronic message with the Court. (2) The electronic message must state— (a) the allocated Court number for the proceeding in which the order was made; (b) the name of the judgment debtor (and, if the judgment debtor is a corporation, the name of an officer of the corporation who is to appear before the Court to be orally examined); (c) the address of the judgment debtor (and, if the judgment debtor is a corporation, the address of the officer of the corporation who is to appear before the Court to be orally examined); (d) the date of the order; (e) particulars, including dates, of any amounts recovered since the date of the order; (f) whether further penalty interest is being claimed. r. 27.12.2 -- 164 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 147 (3) The date of issue of a summons issued consequent to an application by electronic message as provided for in paragraph (1), and which complies with the requirements of paragraph (2), is the date the electronic message is received at Court. (4) The summons is valid for all purposes if it bears the— (a) allocated Court number; (b) name of the Principal Registrar; (c) date of its issue; (d) hearing venue; (e) date and time for the person named in the summons to be orally examined. (5) A copy of the summons must be retained by or on behalf of the authorised user and such copy must be provided to the Court at the request of the registrar. PART 5—ATTACHMENT OF EARNINGS ORDERS 27.12.3 Definition In this Part, the Court includes the Court constituted by a registrar. 27.13 Attachment of earnings order (1) If the Court is satisfied— (a) that a judgment debtor is a person to whom earnings are payable or are likely to become payable; and (b) that a judgment debtor has failed to comply with an order with respect to a judgment debt— the Court may order a person who appears to the Court to be the judgment debtor's employer in respect of those earnings or part of those earnings r. 27.12.3 -- 165 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 148 to make out of those earnings or that part of those earnings payments in accordance with Rule 27.20. (1.1) If the Court constituted by a registrar is not satisfied that an order should be made under this Part, the registrar may, or if a party requests must, refer the matter to the Court for decision. (2) Unless the Court otherwise orders, if an attachment of earnings order is in force, no warrant or other process of execution shall issue and no order shall be made for the enforcement of the order to which the attachment of earnings order relates. 27.15 Application for attachment of earnings order (1) A judgment creditor may apply for an attachment of earnings order. (2) An application under paragraph (1) must be by summons in Form 27D and must be supported by affidavit which may contain statements of fact based on information and belief if the grounds are set out. (3) The affidavit must be in Form 27E. (4) The summons, a copy of the affidavit and a notice in Form 27F as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor shall be served on the judgment debtor not less than 14 days before the day for hearing named in the summons. (5) The Court must not make an attachment of earnings order to secure the payment of a judgment debt if a warrant has been issued in that case committing the judgment debtor to prison under the Imprisonment of Fraudulent Debtors Act 1958 and has not been executed, but in that case the Court may discharge the warrant with a r. 27.15 -- 166 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 149 view to making an attachment of earnings order instead. 27.16 Examination of judgment debtor (1) On an application for an attachment of earnings order the Court may— (a) direct the judgment debtor to attend for an oral examination at the time and place specified in the direction; or (b) direct any person who appears to the Court to owe money to the judgment debtor or to be the employer of the judgment debtor to give the Court a statement signed by or on behalf of that person containing such particulars as are specified in the direction of money owed by that person to the judgment debtor that became payable during a period specified in the direction. (2) On an oral examination the Court must examine a judgment debtor as to the following matters— (a) the amount and source of the income of the judgment debtor; (b) the property and assets of the judgment debtor; (c) the cash that is readily available to the judgment debtor or can be made so available; (d) the debts, liabilities and other financial obligations of the judgment debtor— and may examine a judgment debtor as to any other matter related to the financial circumstances generally of the judgment debtor and the judgment debtor's means and ability to satisfy the judgment debt. r. 27.16 -- 167 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 150 (3) A document purporting to be a statement referred to in paragraph (1)(b) is admissible in evidence in any proceedings for the enforcement of the order. (4) The provisions of paragraph (1)(a) are without prejudice to any other mode of enforcing the attendance of the judgment debtor before the Court. (5) An order under paragraph (1) must be in Form 27J or 27K, whichever is appropriate. 27.17 Making an order in absence of debtor (1) If an application is made to the Court for an attachment of earnings order and the Court is satisfied— (a) that the judgment debtor has been served with a copy of the application; and (b) that the judgment debtor has had a reasonable opportunity of attending the hearing; and (c) that the judgment debtor is employed by a known employer; and (d) as to the earnings of the judgment debtor— the Court may make an attachment of earnings order in the absence of the judgment debtor. (2) For the purposes of this Rule the Court may act on— (a) evidence given by or on behalf of the judgment debtor's employer; or (b) evidence given by the judgment debtor's spouse; or (c) any statement or information furnished under Rule 27.16(1). r. 27.17 -- 168 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 151 (3) If the Court in considering an application for an attachment of earnings order in the absence of the judgment debtor or his or her spouse— (a) has before it sufficient evidence in the opinion of the Court on which to specify a protected earnings rate and a normal deduction rate, the Court must specify those rates; (b) does not have such evidence before it, the Court may, without specifying those rates, make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court. 27.18 Contents of order (1) An attachment of earnings order (except an order under Rule 27.17(3)(b)) must specify either generally or in relation to any particular payday or paydays the normal deduction rate, that is to say, the rate at which the Court considers it to be reasonable that the earnings of the judgment debtor should be applied in satisfying the order to which the attachment of earnings order relates but not exceeding a rate that appears to the Court to be necessary for the purpose of— (a) securing payment of the amount due and unpaid under the order; and (b) securing payment within a reasonable time of any costs ordered by the Court to be paid by the judgment debtor. (2) An attachment of earnings order may specify a normal deduction rate to apply for a specified number of paydays after the order comes into r. 27.18 -- 169 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 152 force and a lower or higher normal deduction rate to apply to subsequent paydays. (3) An attachment of earnings order (except an order under Rule 27.17(3)(b)) must also specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and needs of the judgment debtor and of any other person for whom the judgment debtor must or reasonably may provide, the Court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order. (4) An attachment of earnings order must specify an amount in respect of the clerical and administrative costs of making payments under the order which an employer is entitled to deduct in respect of each payment from the earnings of the judgment debtor in addition to any other amount. (5) Unless the Court— (a) has received from the judgment debtor a completed form pursuant to the notice in Form 27F given under Rule 27.15(4) as to the property and assets of the judgment debtor and the debts, liabilities and the financial obligations of the judgment debtor; or (b) has examined the judgment debtor as to those matters— the Court must not under paragraph (3) specify as the protected earnings rate a rate that is less than 80 per cent of the net earnings of the judgment debtor. (6) An attachment of earnings order must be in Form 27L. r. 27.18 -- 170 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 153 27.19 Service of order (1) An attachment of earnings order must be served on the judgment debtor and on the person to whom the order is directed. (2) The order shall not come into force until the expiration of seven days after the day on which the order is served on the person to whom the order is directed. 27.20 Employer to make payments (1) An employer to whom an attachment of earnings order is directed must, in respect of each payday whilst the order is in force, if the net earnings of the judgment debtor exceed the sum of— (a) the protected earnings of the judgment debtor; and (b) so much of any amount by which the net earnings that became payable on any previous payday were less than the protected earnings in relation to that payday as has not been made good on any other previous payday— pay, so far as that excess permits, to the person specified in the order the normal deduction in relation to that payday and so much of the normal deduction in relation to any previous payday as was not paid on that payday and has not been paid on any other previous payday. (1.1) If an employer fails to comply with a binding order under paragraph (1) the judgment creditor may apply to the Court to have the order enforced against the employer. (1.2) If at the time of an application under paragraph (1.1) the judgment debtor is not employed by the employer against whom an order is sought to be made, any order against the employer must not r. 27.19 -- 171 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 154 exceed the normal deductions that ought to have been deducted by the employer under a binding order under paragraph (1) whilst the judgment debtor was employed by that employer. (2) A payment made by an employer under paragraph (1) is a valid discharge to the employer as against the judgment debtor to the extent of the amount paid. 27.21 Discharge or variation of order (1) If an attachment of earnings order is in force the Court may, on the application of the judgment creditor or the judgment debtor, discharge, suspend or vary the order. (2) The order suspending or varying an attachment of earnings order must be served on the respondent to the application and the person to whom the attachment of earnings order is directed. (3) An order suspending or varying an attachment of earnings order does not come into force until the expiration of 7 days after the day on which the order is served on the person to whom it is directed. 27.22 Cessation of attachment of earnings order (1) An attachment of earnings order ceases to have effect— (a) on being discharged under Rule 27.21; or (b) unless the Court otherwise orders, on the making of any other order for the recovery of the money owing under the order in relation to which the attachment of earnings order was made. (2) If an attachment of earnings order ceases to have effect, the registrar must forthwith give notice accordingly to the person to whom the order was directed. r. 27.21 -- 172 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 155 (3) If an attachment of earnings order ceases to have effect, the person to whom the order is directed does not incur any liability in consequence of treating the order as still in force at any time before the expiration of 7 days after the day on which the notice required by paragraph (2) or a copy of the order discharging the attachment of earnings order, as the case requires, is served on that person. 27.23 Two or more attachment of earnings orders in force (1) If earnings become payable to a judgment debtor and there are in force 2 or more attachment of earnings orders, whether made under this Act or otherwise, in relation to those earnings, the person to whom the orders are directed— (a) must comply with those orders according to the respective dates on which they took effect and must disregard any order until the earlier order has been complied with; and (b) must comply with any order as if the earnings to which the order relates were the residue of the earnings of the judgment debtor after the making of any payment under an earlier order. (2) For the purpose of this Rule, an attachment of earnings order which has been varied under Rule 27.21 is to be taken to have been made as so varied on the day on which the attachment of earnings order was made. 27.24 Notice to judgment debtor of payments (1) A person who makes a payment in compliance with an attachment of earnings order must give to the judgment debtor a notice specifying the particulars of the payment. r. 27.23 -- 173 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 156 (2) If a person served with an attachment of earnings order directed to that person is not the employer of the judgment debtor at the time of service of the order, that person must, forthwith after service of the order, give notice in writing accordingly to the registrar and the judgment creditor. (3) If a person served with an attachment of earnings order directed to that person is the employer of the judgment debtor at the time of service of the order but ceases to be the judgment debtor's employer at any time thereafter, that person must, forthwith after ceasing to be the judgment debtor's employer, give notice in writing accordingly to the registrar and the judgment creditor. 27.25 Determination of earnings (1) The Court must, on the application of the person to whom an attachment of earnings order is directed, determine whether payments to the judgment debtor of a particular class or description specified in the application are earnings for the purpose of that order. (2) A person to whom an attachment of earnings order is directed who makes an application under paragraph (1) does not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by that person to the judgment debtor while the application, or any appeal from an order made on the application, is pending. (3) Paragraph (2) does not apply in respect of any payment made after an application is withdrawn or an appeal from an order made on the application is abandoned. r. 27.25 -- 174 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 157 27.26 Service An order or document that is required or permitted to be served on a person under this Part must be served on that person— (a) personally; or (b) by registered post. PART 6—ATTACHMENT OF DEBTS 27.27 Attachable debts A debt may be attached under this Part if the debt is due or accruing to the judgment debtor from the garnishee on the day an application is made for a garnishee order. 27.30 Order for attachment of debt (1) The Court constituted by a registrar may, on the application of the judgment creditor, order that all debts (other than earnings within the meaning of this Order) due or accruing from a garnishee to a judgment debtor be attached to answer the judgment debt. (2) An application for an order under paragraph (1)— (a) must be made by affidavit accompanied by a draft form of the order sought; (b) may be made without notice to any person; and (c) may be made either before or after the examination of the judgment debtor under Rule 27.12.1 (3) An order must not be made under paragraph (1) unless it is shown by affidavit— (a) that the judgment debt is unsatisfied, either wholly or to a stated extent; and r. 27.26 -- 175 of 324 -- Order 27 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 158 (b) that— (i) a debt is due or accruing to the judgment debtor from the garnishee; and (ii) the garnishee is within Victoria. (4) The registrar may refuse to make an order under paragraph (1) if the registrar is of the opinion that the remedy being sought is worthless or vexatious on account of the smallness of the amount to be recovered or of the debt sought to be attached or otherwise. (5) The judgment creditor may appeal to a magistrate against the refusal of the registrar to make an order under paragraph (1). (6) Any order made under paragraph (1) must be served on the garnishee personally within 7 days of the making of the order and such order binds the debts to which it applies upon service of the order. (7) An order under paragraph (1) must be in Form 27P or 27Q whichever is appropriate. 27.31 Dispute of liability by garnishee A garnishee who disputes liability to pay the debt attached may make application to the Court, within 14 days of service of the order for attachment of debt, to determine liability or to give directions for its determination. 27.33 Claim by another person Any person other than the judgment debtor who claims to be entitled to the attached debt or to a charge or lien on it may make application to the Court to determine the claim of entitlement or to give directions for its determination. r. 27.31 -- 176 of 324 -- Order 27A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 159 27.34 Discharge of garnishee Any payment made by a garnishee in compliance with, and any execution levied against a garnishee under, an attachment of debts order is a valid discharge of the garnishee's liability to the judgment debtor to the extent of the amount paid or levied even if subsequently the garnishee proceedings are set aside or the order from which they arose is reversed or varied. PART 7—IMPRISONMENT OF FRAUDULENT DEBTORS 27.35 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 27R. (2) An affidavit under paragraph (1) may contain statements of fact based on information and belief if the grounds are set out. ORDER 27A SERVICE AND EXECUTION OF PROCESS RULES 27A.01 Definitions In this Order— Act means the Service and Execution of Process Act 1992 of the Commonwealth and— appropriate court court of rendition place of rendition have the same meanings as in Part 6 of the Act. r. 27.34 -- 177 of 324 -- Order 27A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 160 27A.02 How application made (1) An application to the Court under the Act must be made in accordance with Order 20. (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. 27A.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 27AA or Form 27AB, as the case requires. 27A.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 27AC 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. 27A.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 r. 27A.02 -- 178 of 324 -- Order 27A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 161 with the fees set out in the Schedule to Order 10 of Chapter II of the Rules of the Supreme Court. 27A.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. 27A.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. (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. 27A.06 -- 179 of 324 -- Order 28 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 162 ORDER 28 JUDGMENT DEBT RECOVERY RULES 28.01 Definition In this Order— Act means the Judgment Debt Recovery Act 1984. 28.02 Application under section 5 An application in writing under section 5 of the Act for an instalment order must— (a) be in Form 28A; (b) if made by a judgment debtor, be accompanied by a Statement of Affairs in Form 28B or in Form 28BA if the judgment debtor is a corporation; (c) be filed. 28.03 Application under section 6 or 8 (1) An application under section 6 or 8 of the Act must— (a) be in Form 28A; (b) if made by a judgment debtor, be accompanied by a Statement of Affairs in Form 28B or in Form 28BA if the judgment debtor is a corporation; (c) be filed. (2) An affidavit or declaration of service of an application under section 6 or 8 must be filed within a reasonable time after service of the application. r. 28.01 -- 180 of 324 -- Order 28 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 163 (3) If an applicant under section 8 of the Act fails to comply with paragraph (2)— (a) the applicant shall be taken to have abandoned the application; and (b) the proper officer shall give notice in writing to the applicant of that abandonment. 28.04 Notice of objection (1) The period for filing a notice of objection under section 6(5) of the Act is fourteen days. (2) A notice of objection must be in Form 28C. 28.05 Agreement under section 7 An instalment agreement under section 7 of the Act must— (a) be in Form 28D; (b) be accompanied by a Statement of Affairs in Form 28B or in Form 28BA if the judgment debtor is a corporation; (c) be filed. 28.06 Order in absence of parties An order made by a proper officer under section 7(3) of the Act may be made in the absence of the parties. 28.07 Summons for examination (1) A summons under section 14 or 17 of the Act must be in Form 28E. (2) An application for issue of a summons under section 17 of the Act must be made by affidavit in Form 28F. (3) An affidavit under paragraph (2) may contain statements of fact based on information and belief if the grounds are set out. r. 28.04 -- 181 of 324 -- Order 28 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 164 28.08 Warrant of apprehension A warrant of apprehension under section 14 or 17 of the Act must be in Form 28G. 28.09 Forms of notice A notice— (a) under section 6(4), 6(7), 7(4) or 18(2) of the Act must be in Form 28H; (b) under section 14(6) or 17(5) of the Act must be in Form 28J; (c) under section 6(6) or 8 of the Act must be in Form 28K. 28.10 Warrant of commitment A warrant of commitment under section 19 of the Act must be in Form 28L. 28.11 Payments to be made to registrar Payments under section 19(3) of the Act must be made to the proper officer. 28.12 Certificate of discharge A certificate under section 19(3) of the Act must be in Form 28M. 28.13 Service and notification (1) A summons required to be served under the Act or this Order must be served personally. (2) If any notice is required to be given or any document required to be served under this Order, it shall be sufficient to serve the notice or document by post. 28.14 Adjournment The proper officer may at any time adjourn an application or proceeding as he or she thinks fit. r. 28.08 -- 182 of 324 -- Order 28A Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 165 ORDER 28A PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 28A.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. 28A.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. 28A.03 Power of registrar to make order in proceedings under section 28R of the Act In any proceeding commenced under Rule 28A.02, the 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. 28A.01 -- 183 of 324 -- Order 29 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 166 (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. 28A.04 Setting aside an order Order 30, with any necessary modifications, applies to making an application to set aside an order in any proceeding under section 28R of the Act. 28A.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 20 does not apply to any such application. 28A.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 20, with any necessary modification, applies to an application under section 37(1) of the Act. ORDER 29 VENUE AND TRANSFER OF PROCEEDINGS 29.01 Venue of Court (1) A civil proceeding must be issued from the proper venue of the Court. r. 28A.04 -- 184 of 324 -- Order 29 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 167 (2) Subject to paragraph (3), if— (a) the defendant objects that the venue from which process is issued is not the proper venue of the Court; and (b) the Court is satisfied, having regard to the convenience of the parties, that the proceeding should be transferred— the Court may adjourn the proceeding to another venue of the Court. (3) If the defendant objects that the venue from which process is issued is not the proper venue of the Court the defendant must give notice of the objection to the plaintiff not more than 3 days after giving notice of defence. (4) Notwithstanding that a proceeding is issued from a venue of the Court which is not the proper venue within paragraph (1), the Court may proceed to hear and determine the proceeding at the venue from which the proceeding was issued or at any other venue as the Court thinks fit. (5) A proceeding is not void or in any other way affected by reason only that the proceeding was filed at or was heard and determined at a venue of the Court other than the proper venue within paragraph (1). (6) Notwithstanding anything in these Rules, the Court may on its own motion order the transfer of a proceeding from venue to venue of the Court. 29.02 Transfer of proceeding to the Court (1) Where the Supreme Court or the County Court orders that a proceeding be heard in the Magistrates' Court, the party who applied for the order shall file with the registrar at the appropriate venue of the Court within 14 days of r. 29.02 -- 185 of 324 -- Order 30 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 168 authentication of the order by the transferring court— (a) a copy of the order; and (b) a statement of the names and addresses of all the parties to the proceeding and their legal practitioners. (1.1) For the purposes of paragraph (1), appropriate venue means the venue of the Court which would have been the proper venue if the proceeding had been commenced in the Magistrates' Court. (2) If no statement of claim or particulars of claim have been filed in the other court, the plaintiff must file a concise statement of the particulars of the plaintiff's claim and must serve a copy on all parties within seven days after filing the statement. (3) If in these Rules a time is prescribed for the doing of any act by reference to the date of filing notice of defence, the time for the doing of that act shall be determined by reference to the date on which the order for transfer was made. ORDER 30 RE-HEARING 30.01 Application for re-hearing (1) An application under section 110 of the Act must be filed. (2) At least 14 days before the day specified in the application, a copy of the application and of any affidavit in support upon which the applicant intends to rely must be served on the other party or parties at the address for service in the complaint or notice of defence (as the case may be) unless the Court otherwise orders. r. 30.01 -- 186 of 324 -- Order 31 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 169 (3) If an application is struck out because the applicant failed to appear at the time fixed for hearing of the application, a further application for re-hearing is taken to be an application for leave to re-apply under section 110(5) of the Act. 30.02 Form of application (1) An application under Rule 30.01 must state— (a) why the applicant did not appear on the hearing of the complaint; and (b) if applicable, why notice of defence was not given. (2) An application under Rule 30.01 must be in Form 30A. 30.03 Re-hearing date If the Court sets aside an order the complaint must be re-heard on a date fixed by the registrar. ORDER 31 SECURITY FOR COSTS 31.01 Definitions In this Order, unless the context or subject-matter otherwise requires— defence includes defence to counterclaim and defence to statement of third party claim; defendant includes any person against whom a claim is made in a proceeding; plaintiff includes any person who makes a claim in a proceeding. r. 30.02 -- 187 of 324 -- Order 31 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 170 31.02 When security for costs may be ordered Where— (a) the plaintiff is ordinarily resident out of Victoria; (b) the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so; (c) a proceeding by the plaintiff in another court for the same claim against the same defendant is pending; (d) the plaintiff has changed address after the commencement of the proceeding in order to avoid the consequences of the proceeding; (e) under any Act or the Companies Code the Court may require security for costs— the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against the defendant be stayed until the security is given. 31.03 Manner of giving security Where an order is made requiring the plaintiff to give security for costs, security shall be given in the manner and at the time the Court directs. 31.04 Failure to give security Where a plaintiff fails to give the security required by an order, the Court may dismiss the plaintiff's claim. r. 31.02 -- 188 of 324 -- Order 31 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 171 31.05 Variation or setting aside The Court may set aside or vary any order requiring a plaintiff to give security for costs. 31.06 Payment by way of irrevocable guarantee If the Court makes an order requiring a plaintiff to pay money into Court as security for costs, it is sufficient compliance, subject to Rule 31.03, if the plaintiff files an irrevocable guarantee given by a bank to pay that sum. 31.07 Requirements of guarantee An irrevocable guarantee given by a bank must be— (a) given by a bank approved by the Principal Registrar; and (b) sealed by the bank or signed by an officer of the bank who has written authority from the bank to sign such a guarantee on behalf of the bank; and (c) in Form 31A. 31.08 Liability of bank (1) A bank guarantee which is filed pursuant to an order under Rule 31.06 may not be amended or revoked without the leave of the Court. (2) Unless the Court otherwise orders, a bank which has given a guarantee may discharge its liability under the guarantee only— (a) by payment into Court of the total sum guaranteed; and (b) by filing a Notice of Discharge and Payment into Court in Form 31B. r. 31.05 -- 189 of 324 -- Order 32 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 172 ORDER 32 PERSON UNDER DISABILITY 32.01 Litigation guardian of minor (1) Except where otherwise provided by or under any Act, a minor shall file a complaint by his or her litigation guardian. (2) A litigation guardian shall file a consent so to act in the Court at the same time as the complaint. (3) A litigation guardian under this Rule shall be liable for costs in the same manner and to the same extent as if the litigation guardian were the plaintiff. (4) A complaint filed by a litigation guardian must state that the proceeding is taken by the litigation guardian on behalf of the minor. (5) A consent to act as a litigation guardian under this Rule must be in Form 32A. 32.02 Person with a disability (1) In this Order— person with a disability means a person with a disability within the meaning of the Guardianship and Administration Act 1986. (2) If a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a person with a disability, that person shall, unless the Court otherwise orders, be entitled to be litigation guardian of the person with a disability in any proceeding to which that person's authority extends. (3) Subject to any Act, if there is no person authorised to conduct legal proceedings in the name of or on behalf of a person with a disability— r. 32.01 -- 190 of 324 -- Order 32 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 173 (a) a person may file a consent to act as a litigation guardian on behalf of the person with a disability and thereafter he or she shall be the appointed litigation guardian of that person; or (b) the Court may appoint a litigation guardian— and Rules 32.01(2) to (5) shall apply to such appointment. 32.03 Litigation guardian of defendant (1) In this Rule— defendant includes any party against whom relief is claimed in a proceeding. (2) If a minor or person with a disability is a defendant, Rules 32.01 and 32.02 apply with any necessary modification except that a litigation guardian for a defendant shall not, unless the Court otherwise orders, be responsible for costs. 32.04 Power of litigation guardian A litigation guardian under this Order may take any step or do any act in a proceeding that is required or permitted to be done by a party. 32.05 Compromise of claim by minor or a person with a disability (1) If in a proceeding a claim is made by or on behalf of or against a minor or a person with a disability, no compromise, payment of money or acceptance of an offer of compromise under Order 15, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. r. 32.03 -- 191 of 324 -- Order 32 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 174 (2) Application for approval must be made by application under Order 20 filed not later than 30 days after the compromise, payment or acceptance. (2.1) A copy of an affidavit in support of the application need not be served. (3) If application for approval is made at the hearing of a proceeding, the Court may dispense with the requirement of paragraph (2). (4) On the application, evidence must be given of the date of the compromise, payment or acceptance and the date of birth of the minor or person with a disability, and those dates must be stated in any order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the minor or person with a disability shall be taken to have made or accepted the offer at the time of the approval. 32.06 Money to be paid into court (1) All money or damages received by or awarded to a minor or person with a disability by settlement or compromise must, unless the Court otherwise orders, be paid into court without delay after approval by the Court of the compromise, payment or acceptance. (2) Money held in court on behalf of a minor or a person with a disability may be paid out of court from time to time to any person by order of the Court. (3) Nothing in this Order affects the lien of a solicitor for costs. r. 32.06 -- 192 of 324 -- Order 33 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 175 32.07 Investment of money Money held in court on behalf of a minor or a person with a disability must be invested— (a) on deposit with a bank approved by the Principal Registrar; or (b) in any manner in which trust money may be invested by a trustee under the Trustee Act 1958. ORDER 33 REGISTRARS 33.01 Reference to a magistrate If on an application to a registrar under the Act 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. 33.02 Appeal from registrar (1) Any person affected by any order made by a registrar may appeal to a magistrate. (1.1) An appeal must be commenced within 14 days after the day the registrar made the order. (2) An appeal may be made by application in accordance with Order 20. (3) An appeal is a re-hearing of the application to the registrar. (4) Unless a magistrate otherwise orders, an appeal does not operate as a stay on the order of the registrar. (5) This Rule does not apply to an order in default of defence made by a registrar under Order 10. r. 32.07 -- 193 of 324 -- Order 34 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 176 ORDER 34 APPEALS 34.01 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. 34.02 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 34A; and (b) must 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); and (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. 34.03 Amendment of grounds The Magistrates' Court or a Magistrate may give leave to amend the grounds of appeal. 34.04 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. 34.01 -- 194 of 324 -- Order 35 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 177 (a) the order or decision appealed against; and (b) the grounds of appeal. 34.05 Date for hearing At the time of filing the notice of appeal the registrar must fix a date for the hearing of the appeal. ORDER 35 MISCELLANEOUS RULES 35.01 Civil registry courts The civil registry courts are those venues of the Court listed in Appendix B to these Rules. 35.01.1 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. 35.02 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. r. 34.05 -- 195 of 324 -- Order 35 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 178 35.02.1 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. 35.03 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. 35.04 Injunctions The Court may grant an injunction at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. 35.05 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 paragraph (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. r. 35.02.1 -- 196 of 324 -- Order 35 Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 179 (3) If the Court makes an order under paragraph (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. 35.06 Practice notes The Chief Magistrate may from time to time issue practice directions or notes not inconsistent with the Act or these Rules. __________________ r. 35.06 -- 197 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 180 FORMS RULE 1.18 FORM 1A ELECTRONIC LODGMENT AUTHORISATION This is to certify that [name of authorised user] is authorised to file documents in the Magistrates' Court of Victoria by lodging electronic messages with the Court. Dated: Chief Magistrate _______________ Form 1A -- 198 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 181 RULE 4.02.3(1) FORM 4A COMPLAINT IN THE MAGISTRATES' COURT Court Number OF VICTORIA AT BETWEEN A.B. Plaintiff (full name) OF (address) and C.D. Defendant (full name) OF (address of defendant) 1. The address for service of the plaintiff is—(address must be within Victoria if the plaintiff sues in person) *2. Name and address of solicitor for the plaintiff— *3. The plaintiff sues (or the defendant is sued) in the following representative capacity (e.g. as administrator of the estate of ). STATEMENT OF CLAIM 1. (Here set out in numbered consecutive paragraphs all the material facts relied on for the claim against the defendant including particulars of every fact or matter. If the claim arises by or under any Act, identify the specific provision relied on. State specifically the amount or other relief or remedy sought. State the place where and the date when the claim arose. If the claim arises out of a motor vehicle collision and the claim includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost of the repairs or an assessment of the loss (whichever is relevant) must be attached to this complaint). 2. (etc.) Form 4A -- 199 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 182 TO THE DEFENDANT TAKE NOTICE that this complaint has been brought against you by the plaintiff as set out in the statement of claim. IF YOU INTEND TO DEFEND this complaint, YOU MUST GIVE NOTICE OF DEFENCE, within 21 days of service upon you of this complaint, to— (a) the plaintiff ; and (b) the registrar of the Magistrates' Court of Victoria at (insert proper venue) IF YOU GIVE NOTICE OF DEFENCE, the Court will write to you and tell you of the hearing date. IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the plaintiff may OBTAIN AN ORDER AGAINST YOU for the amount of the claim and costs without further notice. IF YOU PAY the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs. DATE OF FILING: THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING Dated: [e.g. 5 September 20 ]. [To be signed by the Plaintiff or the Plaintiff's Solicitor] * Delete if not applicable. _______________ Form 4A -- 200 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 183 RULE 5.11 FORM 5A AFFIDAVIT/DECLARATION OF SERVICE [heading as in Form 4A] I, [full name], [occupation] of [address], *make oath and say/declare that I served a copy of the [document] *together with two notices of defence on [name of person served] by: *leaving it with *him/her personally at [address] *delivering it to *his/her place of residence to [name] a person apparently above the age of 16 years and residing there at [address] *delivering it to *his/her place of business at [address] to [name] a person apparently above the age of 16 years and apparently in charge of that business or employed in the office of that business *posting it by prepaid ordinary post at [address] in an envelope addressed to *him/her at *his/her address for service at [address] *leaving it at *sending it by post to the registered office of the corporation at [address] on [day of week], the day of 20 at *a.m./p.m. *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. *Sworn/Declared at [place] in the State of Victoria on [date] Before ⎫ ⎪ ⎬ ⎪ ⎭ [Signed by person] *authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration. *authorised under section 123C(1) of the Evidence Act 1958 to take an affidavit. [Name and address in legible writing, typing or stamp] * Delete if not applicable. _______________ Form 5A -- 201 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 184 RULE 5A.02(2) FORM 5AB COMPLAINT (for service out of Australia) IN THE MAGISTRATES' COURT Court Number OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant OF (ADDRESS) NATURE OF COMPLAINT (STATE SHORTLY) STATE THE FACTS AND PARTICULAR PARAGRAPH OF RULE 5A.01(1) BEING RELIED ON TO SUPPORT SERVICE OUT OF AUSTRALIA— AMOUNT OF CLAIM TO THE DEFENDANT TAKE NOTICE that this complaint has been brought against you by the plaintiff for the claim set out in the pages attached. IF YOU INTEND TO DEFEND this complaint, YOU MUST GIVE NOTICE OF DEFENCE, within 42 days of service upon you of this complaint, to— (a) the plaintiff whose address for service is and (b) the registrar of the Magistrates' Court of Victoria at IF YOU GIVE NOTICE OF DEFENCE THE ADDRESS FOR SERVICE OF THE DEFENDANT MUST BE IN VICTORIA; and THE COURT will write to you and tell you of the hearing date. IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 42 DAYS OF SERVICE, the plaintiff may OBTAIN AN ORDER AGAINST YOU for the amount of the claim and costs without further notice. IF YOU PAY the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs. Form 5AB -- 202 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 185 DATE OF FILING: THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING [next page] Form 5AB -- 203 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 186 TO THE PLAINTIFF If your claim arises from a motor vehicle collision, complete Part A. If your claim does not arise from a motor vehicle collision complete Part B. If your claim combines Part A and Part B, complete the appropriate parts. PART A (CLAIM ARISING FROM A MOTOR VEHICLE COLLISION INCLUDING PERSONAL INJURY) WHAT IS THE NATURE OF YOUR CLAIM? (e.g. cost of repairs to motor vehicle; cost of repairs to damaged fence.) WHERE DID YOUR CLAIM ARISE? [Give the location of any collision, including a Melway reference if possible, and in the space below draw a sketch plan of the collision with names of roads, etc. Identify your vehicle as "1", the vehicle driven by the defendant as "2" and any other vehicles involved as "3", "4", "5", etc.] WHEN DID YOUR CLAIM ARISE? HOW DID THE COLLISION HAPPEN? [You must set out here in as much detail as you can how the collision happened and why you believe the defendant is at fault. If the space is insufficient you may attach other sheets.] HOW MUCH ARE YOU CLAIMING? Dated: [e.g. 5 September 20 ]. [To be signed by the Plaintiff or the Plaintiff's Solicitor] [next page] Form 5AB -- 204 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 187 PART B (ANY CLAIM NOT ARISING FROM A MOTOR VEHICLE COLLISION) WHAT IS THE NATURE OF YOUR CLAIM? (e.g. work done; money owed; goods or services supplied; personal injury other than that arising from a motor vehicle collision; application to fence; injunction.) WHERE DID YOUR CLAIM ARISE? WHEN DID YOUR CLAIM ARISE? PARTICULARS OF THE CLAIM: [You must set out here in as much detail as you can the substance of your claim. If the space is insufficient you may add other sheets.] HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING? WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING? Dated: [e.g. 5 September 20 ]. [To be signed by the Plaintiff or the Plaintiff's Solicitor] _______________ Form 5AB -- 205 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 188 RULE 7.02(1) FORM 7A COUNTERCLAIM NAME AND ADDRESS of solicitor for the defendant— [If no solicitor] Address for service of the defendant— STATEMENT OF COUNTERCLAIM 1. (Here set out in numbered consecutive paragraphs all the material facts relied on for the counterclaim against the plaintiff including particulars of every fact or matter. If the counterclaim arises by or under any Act, identify the specific provision relied on. State specifically the amount or other relief or remedy sought. State the place where and the date when the claim arose. If the counterclaim arises out of a motor vehicle collision and includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost or the repairs or an assessment of the loss (whichever is relevant) must be attached to this counterclaim). 2. (etc.) TO THE PLAINTIFF TAKE NOTICE that this counterclaim has been brought against you by the defendant as set out in the statement of counterclaim. IF YOU INTEND TO DEFEND this counterclaim, YOU MUST GIVE NOTICE OF DEFENCE, within 21 days of service upon you of this counterclaim, to— (a) the defendant; and (b) the registrar of the Magistrates' Court of Victoria at (insert proper venue). IF YOU GIVE NOTICE OF DEFENCE, the Court will write to you and tell you of the hearing date. IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the defendant may OBTAIN AN ORDER AGAINST YOU for the amount of the counterclaim and costs without further notice. Form 7A -- 206 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 189 DATE OF FILING: THIS COUNTERCLAIM IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING Dated: [e.g. 5 September 20 ]. [To be signed by the defendant or the defendant's solicitor] * Delete if not applicable. __________________ Form 7A -- 207 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 190 RULE 7.02(1) FORM 7AB COUNTERCLAIM NAME AND ADDRESS of solicitor for the defendant— [If no solicitor] Address for service of the defendant— STATEMENT OF COUNTERCLAIM 1. (Here set out in numbered consecutive paragraphs all the material facts relied on for the counterclaim against the plaintiff including particulars of every fact or matter. If the counterclaim arises by or under any Act, identify the specific provision relied on. State specifically the amount or other relief or remedy sought. State the place where and the date when the claim arose. If the counterclaim arises out of a motor vehicle collision and includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost or the repairs or an assessment of the loss (whichever is relevant) must be attached to this counterclaim). 2. (etc.) TO THE PLAINTIFF TAKE NOTICE that this counterclaim has been brought against you by the defendant as set out in the statement of counterclaim. IF YOU INTEND TO DEFEND this counterclaim, YOU MUST GIVE NOTICE OF DEFENCE, within 42 days of service upon you of this counterclaim, to— (a) the defendant ; and (b) the registrar of the Magistrates' Court of Victoria at (insert proper venue). IF YOU GIVE NOTICE OF DEFENCE THE ADDRESS FOR SERVICE OF THE DEFENDANT MUST BE IN VICTORIA; and THE COURT will write to you and tell you of the hearing date. IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 42 DAYS OF SERVICE, the defendant may OBTAIN AN ORDER AGAINST YOU for the amount of the counterclaim and costs without further notice. Form 7AB -- 208 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 191 DATE OF FILING: THIS COUNTERCLAIM IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING Dated: [e.g. 5 September 20 ]. [To be signed by the defendant or the defendant's solicitor] * Delete if not applicable. _______________ Form 7AB -- 209 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 192 RULE 8.01 FORM 8A THIRD PARTY NOTICE IN THE MAGISTRATES' COURT 20 No. OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant and E.F. Third Party To E.F. of [address] TAKE NOTICE that the plaintiff has brought this proceeding against the defendant for the claim set out in the complaint served herewith. AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the grounds set out in the Notice of Defence served herewith, and claims to be entitled to relief against you on the grounds set out in the particulars of claim indorsed on this notice. FILED: [e.g. 5 September, 20 ]. Registrar 1. This notice was filed— * by the defendant in person * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant sues by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2.] 4. The claim between the plaintiff and the defendant has been set down for hearing on [insert date of hearing, if known]. * Delete if inapplicable. Form 8A -- 210 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 193 [next page] Particulars of Claim [set out particulars of claim] _______________ Form 8A -- 211 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 194 RULE 8.09 FORM 8B NOTICE CLAIMING CONTRIBUTION [heading as in Form 4A] TO THE DEFENDANT TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained [give brief statement of plaintiff's claim]. AND TAKE NOTICE that the [identify party] claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover against that party in the proceeding [where appropriate to the extent of such amount as may be found by the Court to be just and equitable, having regard to your responsibility for such damages on the ground that [insert ground(s)]]. FILED: [e.g. 5 September, 20 ]. Registrar _______________ Form 8B -- 212 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 195 RULE 9.01(2) FORM 9A NOTICE OF DEFENCE TO THE PLAINTIFF AND TO THE REGISTRAR OF THE MAGISTRATES' COURT AT TAKE NOTICE that the defendant intends to defend this complaint. AND TAKE NOTICE that the defendant's defence is as follows [set out the defence of the defendant in paragraphs numbered consecutively with each fact or matter stated so far as practicable in a separate paragraph]. 1. 2. etc. Notes 1. A defence must state which of the facts in the statement of claim are admitted, denied or not admitted—see Rule 9.02(1). 2. A defendant who in the defence does not state whether a fact stated in the statement of claim is admitted, denied, or not admitted, will be taken to admit the fact—see Rule 9.02(2). 3. A defendant who states that a fact stated in the statement of claim is denied must— (a) give the reason for denying the fact; and (b) if the defendant intends to prove a fact different from that stated in the statement of claim, state with necessary particulars the fact that the defendant intends to prove—see Rule 9.02(3). 4. Save with the leave of the Court, a defendant who states that a fact stated in the statement of claim is not admitted must not except in cross-examination adduce any evidence with respect to that fact at the hearing of the proceeding—see Rule 9.02(4). 5. The defendant must state specifically with particulars any fact or matter which— (a) makes the claim of the plaintiff not maintainable; or (b) if not stated specifically, might take the plaintiff by surprise; or (c) raise questions of fact not arising out of the statement of claim— see Rule 9.02(5). Form 9A -- 213 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 196 6. If the defence arises by or under any Act, the defence must identify the specific provision relied on—see Rule 9.02(6). FILED: [e.g. 5 September, 20 ]. * Defendant [signed] * Defendant's solicitor [signed] 1. This notice was signed— * by the defendant in person; * for the defendant corporation by [name of person] of [address] who holds the position of [director, secretary or other person authorised in writing by the defendant corporation]; * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant defends in person, the address in 2]. * Delete if inapplicable. _______________ Form 9A -- 214 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 197 RULE 9.09 FORM 9B NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985 [heading as in Form 4A] In the matter of the Accident Compensation Act 1985 Take notice that will request the Magistrates' Court at on 20 at a.m./p.m. to refer the following medical questions to a medical panel for an opinion— (a) (b) (c) Signed: Dated: _______________ Form 9B -- 215 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 198 RULE 10.01(2) FORM 10A APPLICATION FOR ORDER [heading as in Form 4A] Nature of complaint [state shortly] 1. The plaintiff applies for an order for the claim with interest to the date of the order and costs shown below. 2. The defendant has not given notice of defence to the plaintiff. 3. An affidavit/declaration of service of the complaint has been filed. 4. Details of the order sought are: CLAIM Claim $ Less amounts paid since claim $ $ INTEREST Date of issue of complaint: to , days @ % $ to , days @ % $ $ [Attach schedule where necessary] COSTS Professional costs $ Fee on complaint $ Fee on this application $ Service fee $ Attempted service fee(s)—total $ Distance fee $ Search fee $ Necessary affidavit(s) [specify] $ Other(s) [specify] $ Sub-total $ Less any costs paid $ $ Dated: [e.g. 5 September 20 ]. [plaintiff or plaintiff's solicitor] _______________ Form 10A -- 216 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 199 RULE 10.04 FORM 10B APPLICATION FOR AN ORDER FOR COSTS [heading as in Form 4A] Nature of complaint [state shortly] 1. The defendant applies for an order for costs against the plaintiff. 2. The complaint was dismissed on [insert date or date of non- compliance]. 3. Details of the order sought are: COSTS Instructions to defend $ Fee on this application $ Necessary affidavit(s) [specify] $ Other(s) [specify] $ Dated: [e.g. 5 September 20 ]. [Defendant or defendant's solicitor] _______________ Form 10B -- 217 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 200 RULE 10.08(2) FORM 10C APPLICATION FOR SUMMARY ORDER [heading as in Form 4A] NATURE OF COMPLAINT—[state shortly] TO: The defendant. 1. The plaintiff applies for an order on the claim with interest to the date of the order 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 good defence to the claim, or disclose facts deemed by the Court sufficient to entitle you to defend the claim, the Court may make an order in favour of the plaintiff for the amount of the claim, or part of the claim. 3. The application will be heard by the Court at [venue] on [date]. FILED: [e.g. 5 September 20 ]. Registrar This application was filed by , solicitor for the [identify party]. _______________ Form 10C -- 218 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 201 RULE 10.19(2) FORM 10D APPLICATION FOR *SETTING ASIDE/*VARIATION OF SUMMARY ORDER [heading as in Form 4A] NATURE OF COMPLAINT—[state shortly] To: [identify party/parties] 1. The [identify party] applies for an order *setting aside/*varying the order of the Court dated [date of order]. 2. Details of the order referred to in paragraph 1 are—[set out details of order]. 3. The grounds for this application are set out in the accompanying affidavit(s). 4. The application will be heard by the Court at [venue] on [date]. FILED: [e.g. 5 September 20 ]. Registrar This application was filed by , solicitor for the [identify party]. * Delete if not applicable. _______________ RULE 11.02 FORM 11A NOTICE FOR DISCOVERY [heading as in Form 4A] To the [identify party]. YOU are required to make discovery of documents within 28 days after service of this notice on you. Dated: [e.g. 5 September 20 ]. [Signed] _______________ Form 10D -- 219 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 202 RULE 11.04 FORM 11B AFFIDAVIT OF DOCUMENTS [heading as in Form 4A] I, the abovenamed [party], make oath and say as follows— 1. I have in my possession, custody or power, the documents relating to the questions in this proceeding enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to producing them. The documents are privileged on the ground— [e.g. (a) as to documents numbered 4–6, that (grounds of privilege); (b) as to documents numbered 7–9, that (grounds of privilege).] 3. I have had, but no longer have, in my possession, custody or power, the documents relating to the questions in the proceeding enumerated in Schedule 2. 4. (a) Document numbered [e.g. 10], referred to in Schedule 2, was last in my possession, custody or power on [state when] and I believe that [state belief as to what has become of it]. 5. To the best of my knowledge, information and belief neither I nor my solicitor nor any other person on my behalf has now, or ever had, in my or his, her or its possession, custody or power, any document relating to any question in the proceeding, other than the documents enumerated in Schedules 1 and 2. [Describe each document in the Schedules as original or copy] SCHEDULE 1 PART 1 1. 2. 3. PART 2 4. 5. 6. Form 11B -- 220 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 203 SCHEDULE 2 7. Sworn, [etc.] _______________ Form 11B -- 221 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 204 RULE 11.06 FORM 11C NOTICE TO PRODUCE [heading as in Form 4A] To the [identify party]. TAKE NOTICE that the [party] requires you to produce for the inspection of the [party] the following documents referred to in your [complaint, defence, affidavit, etc.]. [describe documents required]. Dated: [e.g. 5 September, 20 ]. [Signed] NOTE: Within 7 days of service of this notice you must serve on the [party] a notice appointing a time within a further 7 days and a place where the documents may be inspected. _______________ Form 11C -- 222 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 205 RULE 14.03 14.04 FORM 14A NOTICE TO ADMIT [heading as in Form 4A] To the [identify party] TAKE NOTICE that if you do not, within [specify a number not less than 14] days after service of this notice on you, serve a notice on the [party] disputing any fact specified [or the authenticity of any document mentioned] below, that fact [or the authenticity of that document] shall, for the purpose of this proceeding only, be taken to be admitted by you in favour of the [party]. If you do serve a notice disputing that fact [or the authenticity of the document], and afterwards that fact [or the authenticity of the document] is proved, you must pay the costs of proof, unless the Court otherwise orders. 1. [specify each fact] or 2. [mention each document] Dated: [e.g. 5 September, 20 ]. [Signed] _______________ Form 14A -- 223 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 206 RULE 14.03 14.04 FORM 14B NOTICE OF DISPUTE [heading as in Form 4A] To the [identify party] The [party] disputes the following facts specified in the [party]'s notice dated [e.g. 5 September 20 ]. 1. [identify each document] 2. or The [party] disputes the authenticity of the following documents mentioned in the [party]'s notice dated [e.g. 5 September, 20 ]. 1. [identify document] 2. Dated: [e.g. 5 September, 20 ]. [Signed] _______________ Form 14B -- 224 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 207 RULE 16A.02 FORM 16AA NOTICE OF APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 [heading as in Form 4A] PART 1—PARTICULARS OF APPLICATION I, [name of applicant] of [address of applicant or firm of solicitor for applicant] hereby request an *audio visual/*audio link in accordance with the following details— 1. *Audio visual/*Audio link— From [originating city/town] To [receiving city/town] 2. Type of hearing—[e.g. *Hearing/*Contest Mention/*Other] 3. Number of persons to appear before, or give evidence by *audio visual/*audio link— 4. Suggested time (if any) for link— 5. Estimate of duration of link— 6. Is this application being made with the consent of the parties to the proceeding?— 7. If the answer to question 6 is No, what parties have not given consent?— 8. If a hearing date has been fixed, what is the date of the hearing?— I hereby undertake to pay, in the first instance, the appropriate amount prescribed by the regulations under section 42H(1) of the Act. Date— [Signature] Form 16AA -- 225 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 208 PART 2—PARTICULARS OF HEARING (to be completed by the Registrar) The applicant will be heard before the Magistrates' Court 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 ]. * delete as appropriate _______________ Form 16AA -- 226 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 209 RULE 17.01 FORM 17A WITNESS SUMMONS TO GIVE EVIDENCE [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend for the purpose of giving evidence— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. FILED [e.g. 5 September 20 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) any question concerning this summons should be addressed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17A -- 227 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 210 RULE 17.01 FORM 17B WITNESS SUMMONS FOR PRODUCTION (Note: Summons to a natural person) [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend and produce this summons and the documents and things described in the Schedule— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of so attending, you may produce this summons and the documents and things described in the Schedule to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the date on which you are required to attend. SCHEDULE [description of documents and things] FILED: [e.g. 5 September, 20 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) documents and things produced by you in accordance with this summons may be returned by post to you at your address shown on this summons but you may in writing on or attached to this summons request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; Form 17B -- 228 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 211 (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17B -- 229 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 212 RULE 17.01 FORM 17C WITNESS SUMMONS FOR PRODUCTION AND TO GIVE EVIDENCE [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend and produce this summons and the documents and things described in the Schedule and attend for the purpose of giving evidence— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of attending to produce the documents and things described in the Schedule, you may produce them and this summons to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the first date on which you are required to attend. Note, however, that if you produce the documents and things to the registrar you will still be required to give evidence as directed above. SCHEDULE [description of documents and things] FILED: [e.g. 5 September 20 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) documents and things produced by you in accordance with this summons may be returned by post to you at your address shown on this summons but you may in writing on or attached to this summons request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; Form 17C -- 230 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 213 (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17C -- 231 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 214 RULE 17.01 FORM 17D WITNESS SUMMONS FOR PRODUCTION (Summons to a corporation for production and for its proper officer to answer questions concerning possession, etc. of documents and things) [heading as in Form 4A] To [name of corporation]: of [address]: THE COURT ORDERS that— 1. [name of corporation], called "the corporation", shall produce this summons and the documents and things described in the Schedule by causing its proper officer to attend and produce them— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of so attending, the corporation may produce this summons and the documents and things described in the Schedule to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the first date on which the officer is required to attend. 2. The officer who is to attend must make enquiries for the purpose of answering, and, on attending, must answer, such questions as the Court requires the officer to answer concerning the possession or custody of those documents and things. SCHEDULE [description of documents and things] Registrar Filed by the [identify party]. NOTE that— (1) if the corporation fails to comply with this summons, the summons may be enforced by arrest of an officer of the corporation; Form 17D -- 232 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 215 (2) documents and things produced by the corporation in accordance with this summons may be returned by post to it at its address shown on this summons but it may in writing on or attached to this summons request that they be posted to it at another address given by it or that it be informed when they are available to be collected by it; (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17D -- 233 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 216 RULE 20.03 FORM 20A APPLICATION [heading as in Form 4A] 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 , solicitor for [identify party]. _______________ RULE 20.08(1) FORM 20B APPLICATION FOR APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 4A] 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 , solicitor for the [identify party]. _______________ Form 20A -- 234 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 217 RULE 20.08(3) FORM 20C NOTICE OF APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 4A] 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 20 . [Signature of party or solicitor for party who obtained order] * Delete if inapplicable. _______________ Form 20C -- 235 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 218 RULE 22A.07 FORM 22AA MEDIATION REPORT DATE OF MEDIATION: OUTCOME OF MEDIATION: *NOT HELD *Withdrawn prior to mediation; or *No appearance of— *Plaintiff *Defendant *Other (set out details) or *HELD *1. Resolved—no orders required *2. Resolved—orders will be sought *3. Not resolved APPEARANCES: *Mr/Ms of Counsel/*Solicitor for Plaintiff. *Instructed by *Mr/Ms Instructing Solicitor for Plaintiff. *Mr/Ms of *Counsel/Solicitor for Defendant. *Instructed by *Mr/Ms Instructing Solicitor for Defendant. *Mr/Ms of Counsel/Solicitor for other party. *Instructed by *Mr/Ms Instructing Solicitor for other party. Form 22AA -- 236 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 219 INFORMATION PROVIDED BY PARTIES NUMBER OF WITNESSES: Plaintiff: Defendant: *Other: ESTIMATE OF DURATION OF FINAL HEARING: Dated: (Signed) MEDIATOR Note: The mediator must complete this report and give a copy to the Court and to each of the parties within seven days of the date of conclusion of a mediation. * Delete if not applicable. _______________ Form 22AA -- 237 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 220 RULE 24.03 FORM 24A COMPLAINT (Instruments Act 1958) [heading as in Form 4A] 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 at the 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 $ and $ for legal costs to the plaintiff or to the plaintiff's solicitor 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, $ ; 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 24A -- 238 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 221 (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 $ principal and interest [or $ 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 solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the plaintiff is— 3. The address for service of the plaintiff is—[If the plaintiff sues by a solicitor, the business address of the solicitor. If the plaintiff sues in person, the address in 2.] 4. The address of the defendant is— * Delete if inapplicable. _______________ Form 24A -- 239 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 222 RULE 24.04 FORM 24B APPLICATION FOR LEAVE TO DEFEND (Instruments Act 1958) [heading as in Form 4A] THE DEFENDANT APPLIES for leave to defend this claim. * On [date] the sum of $ (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 solicitor FILED: [e.g. 5 September, 20 ]. 1. This application was filed by— * the defendant in person; * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2.] 4. The date of service of the complaint was [date]. * Delete if inapplicable. _______________ Form 24B -- 240 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 223 RULE 24.05 FORM 24C APPLICATION FOR ORDER (Instruments Act 1958) [heading as in Form 4A] 1. The plaintiff requests that an order be made for $ plus interest at the rate of % 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 solicitor * Delete if inapplicable. _______________ Form 24C -- 241 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 224 RULE 24.06 FORM 24D NOTIFICATION OF DECISION (Instruments Act 1958) [heading as in Form 4A] 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 24D -- 242 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 225 RULE 24.07 FORM 24E APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE (Instruments Act 1958) [heading as in Form 4A] 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 $ with $ 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 solicitor Registrar 1. This application was filed— *by the defendant in person; *for the defendant by [name or firm or solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2]. * Delete if inapplicable. _______________ Form 24E -- 243 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 226 RULE 27.05 FORM 27A INTERPLEADER SUMMONS (Instruments Act 1958) [heading as in Form 4A] To [judgment creditor] of [address] and To the [claimant] of [address] The claimant, [name of claimant] has claimed the goods [or certain goods] [if only certain goods are claimed, list them] [or the proceeds of sale of [goods]] taken in execution by [person to whom warrant was directed] under the warrant to seize property in this proceeding. TAKE NOTICE that the Court will hear the claim at [time] on [date]. Dated: [e.g. 5 September, 20 ]. Registrar _______________ Form 27A -- 244 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 227 RULE 27.10 FORM 27B WARRANT TO SEIZE PROPERTY [heading as in Form 4A] ORIGINAL/EXECUTION COPY REQUEST FOR WARRANT To the Registrar [name] is owed money. [name] of [address] was ordered to pay money in the above matter on [date] by the Magistrates' Court at [venue]. Please issue a warrant to seize property to recover [amount] which is the amount now owing. This amount is calculated— Amount ordered $ Costs ordered $ Interest ordered $ Subtotal $ Amount paid since order $ Subtotal $ Interest from order to this date to , days @ % $ to , days @ % $ Subtotal $ Prior costs of recovering amount ordered $ Fees on warrant $ Professional costs $ Subtotal $ Amount owing $ This request is made by [name of solicitor or person making request, address and telephone number]. It is believed that the personal property of the person ordered to pay can be found at [address]. Dated: [e.g. 5 September 20 ] Form 27B -- 245 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 228 WARRANT TO SEIZE PROPERTY To the Sheriff: You are authorised to seize the personal property of the person ordered to pay. If the amount and your costs of execution set out in the request for this warrant are not paid you are to sell the property and pay the amount due to [judgment creditor]. You or your officer must indorse details of execution on this warrant. Issued at: Dated: [e.g. 5 September 20 ]. Registrar _______________ Form 27B -- 246 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 229 RULE 27.10.1 FORM 27BA NOTICE TO PERSON RESPONSIBLE FOR SAFEKEEPING OF PROPERTY SEIZED UNDER A WARRANT TO SEIZE PROPERTY (Magistrates' Court Act 1989, section 111(7A)) To: [insert name] The personal property listed below belonging to [insert name] has been seized under a warrant to seize property dated [insert date]. You are now responsible for the safekeeping of this property. LIST OF PROPERTY: [description of property seized—add extra pages if space insufficient] Section 111(7B) of the Magistrates' Court Act 1989 provides— "(7B) A person who knows that the property has been seized under a warrant to seize property or is the subject of a notice served under subsection (7A) must not, except with the written consent of the person executing the warrant to seize property— (a) interfere with or dispose of that property; or (b) deface or remove any mark attached to that property indicating that it had been so seized; or (c) remove that property from the place at which it was situated when the notice was served. Penalty applying to this subsection: 25 penalty units or 6 months imprisonment or both." Signature of person executing warrant: Date: [e.g. 5 September 20 ]. _______________ Form 27BA -- 247 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 230 RULE 27.12 FORM 27C WARRANT OF DELIVERY [To be used for delivery of goods or, where the Court order was for the delivery of goods or for payment of their assessed value. If the Court order was for the payment of assessed value of goods only a warrant to seize property may be used.] [heading as in Form 4A] REQUEST FOR WARRANT To the Registrar: 1. Please issue a warrant for delivery of [specify goods] ordered to be delivered by the Court at [venue of Court] on [date] plus costs of [amount]. [Either paragraph 1 or 2 must be deleted.] 2. Please issue a warrant for delivery of [specify goods] or the payment of their assessed value [specify assessed value] ordered to be delivered or paid by the Court at [venue of Court] on [date], plus costs of [amount]. 3. The goods were ordered to be returned to [name and address] by [name and address] who has possession of the goods. It is believed that the goods are located at [address]. [Either paragraph 3 or 4 must be deleted]. 4. The goods were ordered to be returned to, or payment of their assessed value paid to [name and address] by [name and address] who has possession of the goods. It is believed the goods are located at [address.] 5. This request is made by [name of solicitor or person making request, address and telephone number]. Dated: [e.g. 5 September 20 ]. WARRANT OF DELIVERY To the Sheriff: 1. [name] is entitled to recovery of goods. [Either paragraph 1 or 2 must be deleted.] 2. [name] is entitled to recovery of goods or to payment of their assessed value. 3. [name] was ordered to deliver those goods. [Either paragraph 3 or 4 must be deleted.] 4. [name] was ordered to deliver those goods or pay their assessed value. Form 27C -- 248 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 231 5. You are authorised to seize the goods described above and demand costs as set out above together with your costs of execution. If those costs are not paid you are to seize and sell property belonging to that person sufficient to cover those costs. [Either paragraph 5 or 6 must be deleted.] 6. You are authorised to seize the goods described above and demand costs as set out above together with your costs of execution. If you cannot cause the goods described above to be so delivered, you are to seize and sell property belonging to that person sufficient to cover the assessed value of those goods, plus the costs as set out above together with your costs of execution. 7. You or your officer must indorse details of execution on this warrant. Issued at: Dated: [e.g. 5 September 20 ]. _______________ Form 27C -- 249 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 232 RULE 27.12.1 FORM 27CA SUMMONS TO ATTEND FOR ORAL EXAMINATION [heading as in Form 4A] To [judgment debtor, or if a corporation, an officer of the judgment debtor] of [address] On [date] the Court ordered you [or the corporation] to pay money. You are summoned to attend before the Court to be orally examined on the application of [judgment creditor] as to your [or the corporation's] income, property, assets, debts and other liabilities and your [or the corporation's] means and ability to pay the amount ordered to be paid. The examination will be heard by the Court at [venue] on [date] at a.m./p.m. You are required to produce to the Court on the examination all books of account, papers, documents, passbooks and current statements for all bank/building society/credit union accounts, and all relevant files dealing with your income, purchases and expenditure. IF YOU DO NOT ATTEND IN ANSWER TO THIS SUMMONS A WARRANT MAY BE ISSUED BY THE COURT FOR YOUR ARREST Dated: [e.g. 5 September 20 ]. Registrar The amount due and unpaid on the court order is— Amount awarded on the claim $ Costs ordered $ Interest awarded $ Subtotal $ Less amount paid since order $ Total $ Additional amounts that have been accrued against you since the court order are— Interest from order to this date— to , days @ % $ to , days @ % $ Form 27CA -- 250 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 233 Costs of this summons $ Filing fee $ Service fee $ Total $ _______________ Form 27CA -- 251 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 234 RULE 27.12.1 FORM 27CB SUMMONS TO ATTEND TO GIVE EVIDENCE OR PRODUCE DOCUMENTS [heading as in Form 4A] To [name] of [address] You are summoned to attend before the Court at [address of Court] at 10.00 a.m. [or as the case requires] on [date] to give evidence or produce the documents described in the Schedule or both to give evidence and produce those documents. SCHEDULE [description of documents] IF YOU DO NOT ATTEND IN ANSWER TO THIS SUMMONS A WARRANT MAY BE ISSUED BY THE COURT FOR YOUR ARREST Dated: [e.g. 5 September 20 ]. Registrar _______________ Form 27CB -- 252 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 235 RULE 27.12.1 FORM 27CC EXAMINATION OF A JUDGMENT DEBTOR [heading as in Form 4A] [name of person being examined], having been sworn, has answered the questions set out in Column 1 below in the manner set out in Column 2 below. Column 1 Questions Column 2 Answers 1. What is your full name? 2. What is your date of birth? 3. What is your home address and phone number? Do you own, rent or board at this address? Give name, address and phone number of the estate agent or landlord. 4. Do you propose to change your address in the near future? If so, state the new address. 5. Are you single, married or living in a defacto relationship? 6. How many dependants do you have in your care? What is their relationship to you and what are their ages? 7. Do you own or are you buying any land or building? If yes, give details, including— (a) address(es); (b) value; (c) mortgage (naming financier and balance due); (d) 2nd mortgage (naming financier and balance due); (e) caveat(s); Form 27CC -- 253 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 236 Column 1 Questions Column 2 Answers (f) when did you buy the property? (g) what was the price paid? (h) are you buying the land or building with any other person? (i) if yes, give the name and address of that other person; (j) are you intending to sell the land or building? 8. Do you own or are you buying a motor vehicle? If yes, give details, including— (a) the make; (b) the model; (c) the condition of the motor vehicle; (d) is the motor vehicle registered? If yes, what is the registration number? (e) is the vehicle subject to finance? If yes, state— —the name of the financier; —account reference number; —how much is owing? —when will payments be finalised? (f) value. Repeat the above information for all extra vehicles. 9. Are you owed any money? If yes, give details, including— (a) who owes you the money; (b) the address, telephone number and reference of the person or company; (c) how much is owed? (d) what circumstances give rise to that indebtedness? (e) when is the debt due and payable to you? 10. Are you employed? If yes, give details— (a) the position you hold? Form 27CC -- 254 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 237 Column 1 Questions Column 2 Answers (b) the name of your employer? (c) the address and telephone number of your employer? 11. What income do you receive after tax and compulsory superannuation is deducted? What is the nature of this income(e.g. wages, salary, commission, benefit, etc.)? Is this income received weekly, fortnightly, monthly, or otherwise? Do you receive overtime or other allowances? If you are unemployed, what is your source of income? (e.g. sole parent benefit, disability pension, WorkCover)? 12. (a) If unemployed, how long have you been unemployed? (b) What is the name of your previous employer? (c) Will you be starting employment in the near future? If so, give details. 13. What other source of income do you have? Give details of all sources and amounts (e.g. part- time work, casual work, dividends, rent, etc.). 14. Have you any accounts at any bank/building society/credit union, etc.? If yes, give details of each account— (a) name and address of financial institution; (b) name of account; (c) type of account; (d) account number; (e) present balance of account. If account is not held solely by you, state name/address/phone number of each other person with whom the account is jointly held. 15. How much cash money do you have readily available? Form 27CC -- 255 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 238 Column 1 Questions Column 2 Answers 16. Have you any personal property or assets not previously mentioned? If so, give details, including— (a) investments, shares, debentures; (b) superannuation, life insurance policy; (c) motor boats, caravans, trailers (give descriptions of the boat, caravan, trailer including the registration number and value). If any of this personal property or asset is held with another person, give the name and address of the other person. 17. Give details of your expenses calculated on a weekly basis, including— (a) rent/mortgage/board; (b) food; (c) gas/electricity; (d) clothing; (e) loan repayments etc. (give details of each loan and the balance owing) Balance $ (f) credit card repayments; (give details of each card and the balance owing) Balance $ (g) house and contents insurance; (h) municipal and water rates; (i) telephone; (j) car expenses; (including registration, insurance and maintenance) (k) fuel expenses of running your motor vehicle; (l) education expenses; (m) medical/dental/pharmaceutical; (n) entertainment expenses; (o) other (and what) expenses. Total: $____________ Are there any persons who contribute to the expenses detailed above? If so, who are they and how much do they contribute? $____________ Form 27CC -- 256 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 239 Column 1 Questions Column 2 Answers 18. Are there any other unpaid court orders/fines against you? If so, give details including— (a) name/address/phone number of party to whom money is owed; (b) date of court order; (c) amount outstanding; (d) court and reference number (if any). 19. What other moneys do you owe, not previously mentioned? 20. Are you an owner or do you have an interest in any business? If yes, give details, including— (a) What is the name of the business? Is it a registered business name? Is there an ACN and if so what is the ACN? (b) If you have partners give the full name and address of each partner and state each partner's percentage share (including your own) of the business; (c) If a private company, state the number of shares you hold and give the name and address and number of shares of each other shareholder; (d) What is the value of the goodwill of the business? When was the goodwill last valued? (e) What assets does the business have? Give details of all— (i) real estate, listing— (a) locations (addresses) (b) values (c) mortgages; (ii) plant and equipment (not included elsewhere) listing— (a) a description Form 27CC -- 257 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 240 Column 1 Questions Column 2 Answers (b) locations (c) values (d) are there any claims against these items (e.g. finance, etc.); (iii) motor vehicles, listing for each— (a) make/model/condition (b) registration number (c) lease or other finance details (d) value; (iv) stock (not included elsewhere), listing— (a) a description (b) locations (address) (c) values (d) are there any claims against these items (e.g. finance, etc.); (v) other deposits, investments, shares and debentures giving for each details of value and in what business/corporation/ firm; (vi) forward orders and/or pending contracts; (vii) trademarks, labels, intellectuals property. 21. Do you have an offer to pay this debt? 22. Have you paid any of the amount ordered? If so, how much and when? [Signature] Recorded at this / / before me: [Signature of Registrar] Form 27CC -- 258 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 241 I order the judgment debtor to pay the sum of $ being the costs of this examination. Filing fee $ Hearing fee $ Conduct money $ Service fee (including attempt(s) and travelling) $ Professional costs $ TOTAL $ [Signature of Registrar] IMPORTANT PRE-EXAMINATION INFORMATION To the judgment debtor You have been served with a Summons to Attend for Oral Examination (Form 27CA) and an Examination Sheet (Form 27CC). The Examination Sheet sets out the questions you will be asked. It may assist you to complete the answers to the questions before the examination is conducted. You will not have to swear that the answers on this Examination Sheet are true until the examination is conducted. Care must be taken to provide complete and accurate answers as you will be required to take an oath as to the accuracy of the answers on the day of the examination and the information you provide will be forwarded to the judgment creditor/judgment creditor's solicitors. If you have difficulty in completing any of the answers or have any other queries about the proceedings, you may contact the Magistrates' Court of Victoria for advice. Payment toward the judgment debt must be made to the judgment creditor/judgment creditor's solicitor. _______________ Form 27CC -- 259 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 242 RULE 27.12.1 FORM 27CD EXAMINATION OF AN OFFICER OF A JUDGMENT DEBTOR WHICH IS A CORPORATION [heading as in Form 4A] [name of person being examined], an officer of the judgment debtor corporation, having been sworn, has answered the questions set out in Column 1 below in the manner set out in Column 2 below. Column 1 Questions Column 2 Answers 1. What is your full name? 2. What is your address? 3. What position do you hold in the judgment debtor corporation? 4. What is the address of the registered office of the corporation? 5. Is the corporation— (a) registered; or (b) deregistered— at the Australian Securities and Investment Commission? 6. Is the corporation still trading? If not, when did it last trade? 7. What is the nature of the business of the corporation? 8. At what addresses does the corporation carry on business? If the premises are leased, give details of— (a) the name of the landlord; (b) the expiration date of the lease. 9. What is the corporation's average weekly turnover? 10. Is the company owed any money? If yes, give details including— (a) who owes the money? Form 27CD -- 260 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 243 Column 1 Questions Column 2 Answers (b) the address, telephone number and reference of the person or company; (c) how much is owed? (d) what are the circumstances that give rise to the indebtedness? (e) when is the debt due and payable to the corporation? (give details). 11. Give details of the corporation's accounts at any bank/building society/credit union/etc. For each account give details, including— (a) name of bank etc.; (b) type of account; (c) account number; (d) name of account; (e) present balance of account. 12. Do you produce a balance sheet of the corporation? If yes— (a) is it the most up to date balance sheet available? (b) does the balance sheet reflect the corporation's present position? (give differences). 13. What other assets does the corporation have? Give details of all— (1) real estate, listing— (a) locations (addresses); (b) values; (c) mortgages (and financier). (2) plant and equipment (not included elsewhere) listing— (a) a description; (b) locations (addresses); (c) values; (d) are there any claims against these items (e.g. finance, etc.). Form 27CD -- 261 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 244 Column 1 Questions Column 2 Answers (3) motor vehicles, listing for each— (a) make/model/condition; (b) registration number; (c) lease or other finance details; (d) value. (4) stock (not included elsewhere), listing— (a) a description; (b) locations (address); (c) values; (d) are there any claims against these items (e.g. finance, etc.). (5) other deposits, investments, shares and debentures, giving for each details of value and in what business/corporation/ firm. (6) forward orders and/or pending contracts. (7) trademarks, labels, intellectual property. 14. Is there a registered debenture over the assets of the corporation? If yes, identify the debenture holder, state when the debenture was given and state the amount secured by the debenture. 15. Are there any other unpaid court orders/fines against the corporation? If so, give details of each court order/fine including— (a) (for court orders) name/address/phone number of party to whom the money is owed; (b) date of court order/fine; (c) amount outstanding; (d) reference number (if any). 16. What other monies does the corporation owe, not previously mentioned? 17. Has the corporation paid any/all of the amount ordered? If so, how much and when? Form 27CD -- 262 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 245 Column 1 Questions Column 2 Answers 18. Do you produce a profit and loss statement for the corporation? If yes— (a) is it the most up to date profit and loss statement available? (b) does the profit and loss statement reflect the corporation's present position? (detail differences). 19. Does the corporation have a proposal to pay the amount claimed by the judgment creditor? [Signature] Recorded at this / / Before me: [Signature of Registrar] I order the judgment debtor to pay the sum of $ being the costs of this examination. Filing fee $ Hearing fee $ Conduct money $ Service fee (including attempt(s) and travelling) $ Professional costs $ TOTAL $ [Signature of Registrar] Form 27CD -- 263 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 246 IMPORTANT PRE-EXAMINATION INFORMATION To the officer of the judgment debtor corporation You have been served with a Summons to Attend for Oral Examination (Form 27CA) and an Examination Sheet (Form 27CD). The Examination Sheet sets out the questions you will be asked. It may assist you to complete the answers to the questions before the examination is conducted. You will not have to swear that the answers on the Examination Sheet are true until the examination is conducted. Care must be taken to provide complete and accurate answers as you will be required to take an oath as to the accuracy of the answers on the day of the examination and the information you provide will be forwarded to the judgment creditor/judgment creditor's solicitors. If you have difficulty in completing any of the answers or have any other queries about the proceedings, you may contact the Magistrates' Court of Victoria for advice. Payment toward the judgment debt must be made to the judgment creditor/judgment creditor's solicitor. _______________ Form 27CD -- 264 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 247 RULE 27.15 FORM 27D ATTACHMENT OF EARNINGS SUMMONS [heading as in Form 4A] To [judgment debtor] of [address] You are summoned to attend before the Magistrates' Court at [venue] on the hearing of an application by [judgment creditor] for an order that your earnings be attached to satisfy the order against you in favour of [judgment creditor] made by the Court at [venue] on [date] for [amount], in respect of which [amount] is due and unpaid, being— (a) [amount] due under the order; (b) [amount] costs of this attachment application; (c) [amount] other costs incurred subsequent to order; (d) [amount] interest to date. The application will be heard by the Court at [venue] at [time] on [date]. FILED: [e.g. 5 September 20 ]. Registrar This application was filed by , solicitor for [identify party]. _______________ Form 27D -- 265 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 248 RULE 27.15 FORM 27E AFFIDAVIT IN SUPPORT OF APPLICATION FOR ATTACHMENT OF EARNINGS ORDER [heading as in Form 4A] I, of the judgment creditor, make oath and say that: 1. By an order dated: [e.g. 5 September 20 ] it was ordered that [judgment debtor] pay me the sum of [amount] together with costs. 2. [amount] is due and unpaid in respect of the order, being— (a) [amount] due under the order; (b) [amount] costs of this attachment application; (c) [amount] other costs incurred subsequent to order; (d) [amount] interest to date. or [judgment debtor] has persistently failed to comply with an order with respect to the order made by the Court on [date] that [insert terms or order not complied with]. 3. [judgment debtor] is employed by [name and address of employer] as a [occupation]. 4. No warrant committing [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued. or A warrant committing [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued and has been returned unexecuted. Sworn, etc. _______________ Form 27E -- 266 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 249 RULE 27.15 FORM 27F JUDGMENT DEBTOR'S STATEMENT OF FINANCIAL POSITION [heading as in Form 4A] To [judgment debtor] of [address] TAKE NOTICE that you must complete this form by giving the information requested below. The completed forms signed by you must be sent to [judgment creditor] at [address for service] before [day of hearing named in the summons]. If you do not do this, the Court may make an order that you attend before the Court and give the information. Dated: [e.g. 5 September, 20 ]. [Signed by judgment creditor or solicitor]. 1. Amount and source of weekly income Occupation: If working for an employer: Name and address of employer: Gross wage: Current overtime (if any): Car and other allowances and commission: If self-employed or in partnership: Average pre-tax earnings for last 12 months: If unemployed: State length of last employment, when last employment ceased and gross weekly amount earned: Pension or other benefit received: Workers' compensation received: Maintenance received: Superannuation received: Board or rent received: Average weekly interest on bank or building society deposit, debentures etc.: Form 27F -- 267 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 250 Average weekly dividend on shares: Other income (give particulars): Total gross weekly income: 2. Property and assets Land, including vacant land: For each piece of land— Market value: Amount of mortgage: Net value: Motor vehicle: For each motor vehicle— Year, make and model: Market value: Amount owing to finance company: Net value: Deposit in bank, building society, etc.: Other investments including shares, debentures, bonds: Money owing to you: From , $ From , $ Total: Value of interest in partnership or business: Furniture, household and personal goods: Market value: Amount owing to finance company: Net value: Life insurance policies: Give particulars and state surrender value of each policy: Form 27F -- 268 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 251 Other assets (give particulars): Total property and assets: 3. Debts, liabilities and other financial obligations (a) Weekly expenses Income tax: Superannuation: Housing (mortgage, rent, board, hospital or institution): Municipal rates: Water and sewerage rates: Land tax: Child care expenses incurred for the purpose of earning income: Maintenance actually paid: Instalment payments such as for household goods or tools of trade: To , $ To , $ Total: Electricity and gas: Food: Other general household expenses: Motor vehicle expenses (registration, insurance, maintenance, fuel): Fares: Telephone: Insurance policy premiums: School fees and other school expenses: Clothing and shoes: Medical and chemist expenses: Entertainment: Payment on court orders and fines: Other expenses (give particulars): Total: Form 27F -- 269 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 252 (b) Other debts outstanding Give particulars of debts under hire purchase, leasing, credit card or other credit contracts, department store accounts, guarantee or personal loan: $ , to , due on $ , to , due on Total: 4. If any of the assets referred to in paragraph 2 above is owned jointly, identify each asset and give the name of the other owner or owners: 5. If any of the debts referred to in paragraph 3 is due jointly, identify each debt and give the name of the other debtor or debtors: 6. Give particulars of any other circumstances which affect the financial situation of the judgment debtor such as the number and age of dependants, marital status and health: Signature of judgment debtor: Date: _______________ Form 27F -- 270 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 253 RULE 27.16 FORM 27J ORDER THAT JUDGMENT DEBTOR ATTEND FOR EXAMINATION [heading as in Form 4A] THE COURT ORDERS that [judgment debtor] attend before the Court at on [date] to be examined concerning the means and ability of [judgment debtor] to comply with the order [state terms of order]. By the Court Dated: [e.g. 5 September, 20 ]. Registrar _______________ RULE 27.16 FORM 27K ORDER THAT PERSON INDEBTED OR EMPLOYER OF JUDGMENT DEBTOR GIVE STATEMENT [heading as in Form 4A] THE COURT ORDERS that [name of person indebted or employer] give to the Court on or before [date] a statement in writing signed by him or her or on his or her behalf containing the following particulars of indebtedness to [judgment debtor] that became payable during the period , 20 to , 20 . [complete appropriately] By the Court Dated: [e.g. 5 September, 20 ]. Registrar _______________ Form 27J -- 271 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 254 RULE 27.18(6) FORM 27L ATTACHMENT OF EARNINGS ORDER [heading as in Form 4A] THE COURT ORDERS THAT: 1. [name] of [address], the employer of the [judgment debtor] ("the judgment debtor") on each payday whilst this order is in force, subject to paragraph 2 of this order, deduct from the earnings of the judgment debtor, the sum of $ [amount per week/fortnight/month] ("the normal deduction rate") until a total sum of $ [amount] has been deducted and remit each payment made under this order to [name and address of person to whom payments are to be made]. 2. The protected earnings rate, that is, the rate below which the earnings of the judgment debtor may not be reduced by a payment under this order, shall be $ [amount] per [week/fortnight/month]. 3. A deduction on a payday is only to be made if the net earnings of the judgment debtor exceed the protected earnings. 4. If any deduction is not made from the judgment debtor's earnings on any payday (or is not made in full) by reason of the protected earnings rate, the employer shall make good such deduction from the excess of any subsequent earnings of the judgment debtor. 5. The employer may deduct each payday $ [amount] for clerical and administrative costs in complying with this order. 6. In the event that— (a) you are not the employer of the judgment debtor; (b) if you were the employer of the judgment debtor at the time of service of this order but have since ceased to be the employer— you must give written notice of such fact (and the date you ceased to be the employer of the judgment debtor), to the registrar of the Magistrates' Court of Victoria at [venue] and to the judgment creditor at [address of judgment creditor or judgment creditor's solicitor]. BY THE COURT Dated: Registrar Form 27L -- 272 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 255 NOTES: 1. The first deduction required to be made under this order is on the first payday following 7 days after the day of service of this order. 2. "Earnings" attached by this order means, in relation to a judgment debtor— (a) by way of wages or salary, including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary; or (b) by way of pension, including— (i) an annuity in respect of past services whether or not the services were rendered to the person paying the annuity; and (ii) periodical payments in respect of or by way of compensation for the loss, abolishment or relinquishment, or any diminution in the emoluments, of any office or employment— but does not include any pension payable to the judgment debtor under the Social Security Act 1991 of the Commonwealth or the Veterans' Entitlements Act 1986 of the Commonwealth. 3. Where you are or have been served with two or more attachment of earnings orders, you are required to— (a) comply with those orders according to the respective day on which they took effect and disregard a subsequent order until an earlier order has been complied with; and (b) comply with any order as if the earnings to which it relates were residue of the earnings of the judgment debtor after the making of any payment under an earlier order. 4. You are required to give the judgment debtor a notice specifying particulars of the payments made by you under this attachment of earnings order. 5. You are required to give the judgment debtor notice of any deductions made under paragraph 5 of this order. WARNING: 1. It is an offence to fail to comply with an attachment of earnings order. The maximum penalty for non-compliance is 60 penalty units or 6 months imprisonment or both. 2. It is an offence to dismiss an employee or injure an employee or alter an employee's position to the prejudice of the employee because of the making of an attachment of earnings order or because of a requirement Form 27L -- 273 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 256 to make payments under an attachment of earnings order. The maximum penalty is 5 penalty units. 3. If you fail to comply with this order, the judgment creditor may apply to the court to have you the employer liable to pay the deductions. _______________ Form 27L -- 274 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 257 RULE 27.30 FORM 27P GARNISHEE ORDER [where garnishee debt is less than judgment debt, interest and judgment creditor's costs] IN THE MAGISTRATES' COURT OF VICTORIA AT BETWEEN A.B. Judgment creditor and C.D. Judgment debtor and E.F. Garnishee THE COURT ORDERS that: 1. The garnishee [where appropriate insert here (after deducting therefrom $ for costs of the garnishee application)] pay to the judgment creditor without delay $ , the debt due from the garnishee to the judgment debtor and if the garnishee defaults in payment, execution may issue against the garnishee [or where the debt is not due but accruing] pay to the judgment creditor $ , the debt accruing from the judgment creditor to the judgment debtor, as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment, execution may issue against the garnishee. 2. $ , the costs of the judgment creditor of the garnishee application, be added to the judgment debt and the interest accrued thereon and be retained by the judgment creditor out of the money recovered by the judgment creditor under this order in priority to the judgment debt and interest. By the Court Dated: [e.g. 5 September, 20 ]. Registrar _______________ Form 27P -- 275 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 258 RULE 27.30 FORM 27Q GARNISHEE ORDER [where garnishee debt is greater than judgment debt, interest and judgment creditor's costs] [heading as in Form 27P] THE COURT ORDERS that: 1. The garnishee pay without delay to the judgment creditor $ , being so much of the debt due from the garnishee to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings and that in default of payment execution may issue against the garnishee [or where the debt is not due but accruing] pay to the judgment creditor $ , being so much of the debt accruing from time to time to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment execution may issue against the garnishee. [where appropriate add] 2. The garnishee be at liberty to retain $ being the garnishee's costs of the garnishee proceedings out of the balance of the debt due [or accruing] from time to time to the judgment debtor. By the Court Dated: [e.g. 5 September, 20 ]. Registrar _______________ Form 27Q -- 276 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 259 RULE 27.35 FORM 27R AFFIDAVIT IN SUPPORT OF SUMMONS FOR COMMITMENT [heading as in Form 4A] I, of , the abovenamed plaintiff [or solicitor 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 $ together with $ costs [or as the case may be]. 2. The sum of $ ordered to be paid [or $ , 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 27R -- 277 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 260 Rule 27A.03 FORM 27AA ORDER IN THE MAGISTRATES' COURT Case No: OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. 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] The Court orders that: 1. 2. [terms of order] I certify that this is a true and correct record. Registrar _______________ Form 27AA -- 278 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 261 Rule 27A.03 FORM 27AB DEFAULT ORDER FOR DEBT IN THE MAGISTRATES' COURT Case No: OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant 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 27AB -- 279 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 262 Rule 27A.04 FORM 27AC AFFIDAVIT IN SUPPORT OF ENFORCEMENT IN THE MAGISTRATES' COURT Case No: OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant 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] Form 27AC -- 280 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 263 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]. [e.g: Pursuant to section 39 of the Local Courts (Civil Claims) Act 1970 of the State of New South Wales interest is payable from the date of judgment or on so much of the amount of a judgment that is from time to time unpaid, provided that the judgment debt and costs are not paid in full within 21 days after the judgment date. 21 days has elapsed since the date of judgment. Neither the judgment debt nor the costs have been paid in full.] 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 27AC -- 281 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 264 RULE 28.02 28.03 FORM 28A APPLICATION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT Court Number Judgment Creditor and Judgment Debtor An order was made at the Court on / / This application is for— * an instalment order; * an instalment order in substitution of a previous instalment order; * the variation of an instalment order (section 8); * the cancellation of an instalment order (section 8). 1. Details of Applicant (*Debtor/*Creditor) Name: Address: Postcode: Telephone: Home Business 2. Details of Respondent (*Debtor/*Creditor) Name: 3. State: (a) amount ordered Claim Interest Costs $ $ $ Total (judgment debt) $ LESS (b) amount paid since order of / / [State amounts and dates paid] – $ Form 28A -- 282 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 265 EQUALS (c) balance of judgment debt owing = $ PLUS (d) interest on the judgment debt until the date of this application + $ PLUS (e) any other amounts recoverable or payable in respect of the order of / / (including any costs of warrant); Please specify— (i) (ii) $ $ _________ Subtotal $ + $ EQUALS (f) Total amount owing = $ (g) Amount to be paid per instalment: $ (h) Periodical time for payment: *weekly; *fortnightly; *monthly. (i) Proposed date of first instalment / / (j) Person/corporation/ firm to whom instalments are to be made— Name: Address: Form 28A -- 283 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 266 4. If this is an application for variation of an instalment order, state— (a) the date of the current instalment order / / (b) the amount of each instalment ordered $ *weekly; *fortnightly; *monthly. 5. Reasons for the application— 6. State any other relevant details— Dated: Signature of *Applicant/*Applicant's solicitor PLEASE NOTE: 1. IF THE APPLICANT IS THE JUDGMENT DEBTOR, A STATEMENT OF AFFAIRS TO THE EFFECT OF FORM 28B (OR FORM 28BA IF A CORPORATION) MUST BE FILED WITH THIS APPLICATION. 2. A COPY OF THIS APPLICATION AND, IF THE APPLICATION IS BY THE JUDGMENT DEBTOR A STATEMENT OF AFFAIRS, MUST BE SERVED ON THE RESPONDENT PARTY. 3. IF YOU DO NOT UNDERSTAND THIS DOCUMENT, YOU SHOULD OBTAIN LEGAL ADVICE IMMEDIATELY. YOU MAY ALSO NEED TO OBTAIN FINANCIAL COUNSELLING. * Delete if not applicable _______________ Form 28A -- 284 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 267 RULE 28.02 28.03 28.05 FORM 28B STATEMENT OF AFFAIRS BY AN INDIVIDUAL (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT Court Number Judgment Creditor and Judgment Debtor To the Registrar, 1. Amount and Source of Weekly Income (*Complete (a)—(c) where applicable) *(a) Employed persons Occupation: Name and address of employer: Gross wage: $ Current overtime (if any): $ Car and other allowances and commissions: $ $ *(b) Self-employed persons Average earnings from self-employment or partnership for last 12 months: $ *(c) Unemployed persons or persons not working If unemployed, state length of last employment, date when last employment ceased, and gross weekly amount earned: Pension or Benefit received: $ WorkCover received: $ $ Form 28B -- 285 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 268 (d) All persons Maintenance received: $ Superannuation received: $ Board or rent received: $ Average weekly income from investments in banks, building societies, shares, etc.: $ Other (e.g. family allowance—give details) $ TOTAL GROSS WEEKLY INCOME: $ 2. Weekly expenses Income tax: $ Superannuation: $ Health Insurance: $ Union fees: $ Housing (mortgage, board, rent): $ Municipal rates: $ Water and sewerage rates: $ Land tax: $ Child care costs (kindergarten, day care, etc.): $ Maintenance actually paid: $ Instalment payments: (state purpose) ...........................$ ...........................$ $ Electricity: $ Gas: $ Telephone: $ Food: $ Other general household expenses: $ Form 28B -- 286 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 269 Car expenses (registration, insurance, maintenance, fuel): $ Fares: $ Insurance Policies: $ School fees and other schooling costs: $ Clothing and shoes: $ Medical and chemist expenses: $ Entertainment: $ Payments on court orders and fines: $ Other expenses (give details): ...............................$ ...............................$ TOTAL WEEKLY EXPENSES: $ 3. Are there any persons who contribute to paying your expenses? If so, who are they and how much do they contribute? ............................................................................................................. ............................................................................................................. 4. Property and Assets Market value of house (place of residence) owned: $ Amount owing on mortgage $ Net value of interest on house: $ Market value of any other house or land owned: $ Amount owing on mortgage: $ Net value or interest in other house or land owned: $ Market value of motor vehicle(s): (a) Year: Make/Model: (b) Year: Make/Model: $ $ Form 28B -- 287 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 270 Amounts owing, under finance, on motor vehicles: (a) $ (b) $ Net value of interest(s) on motor vehicles: $ Cash in banks, building societies, etc: $ Cash on hand: $ Value of other investments including shares, debentures, bonds: $ Money owed to you: (state reason) ...................................................$ ...................................................$ $ Value of interest in partnership or business (including stock, goodwill equipment, debtors): $ State approximate resale value of furniture and personal goods: $ Amount owing on these furniture and personal goods: $ Net value of interest: $ Other assets (give details): $ TOTAL NET VALUE: $ Life insurance policies [specify insurer, policy number, surrender value(s)]: ...................................................................... $ TOTAL PROPERTY AND ASSETS: $ Are any assets jointly owned? Give details: ................................................................................................... ................................................................................................... ................................................................................................... Form 28B -- 288 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 271 5. Debts and liabilities (give details) (Hire purchase, leases, credit cards, credit contracts, personal loans, store accounts, guarantees being paid off, etc.): Total amount due: $ To: Total amount due: $ To: Total amount due: $ To: TOTAL OTHER DEBTS: $ 6. Have any of the above debts been jointly incurred with any other person? Give details: ............................................................................................................. ............................................................................................................. ............................................................................................................. 7. Give details of any other circumstances which affect your financial position (e.g. number and age of dependants, marital status, health, etc.): ............................................................................................................. ............................................................................................................. ............................................................................................................. Date: [Signature] WARNING AN INSTALMENT ORDER THAT IS MADE AS A RESULT OF A FALSE STATEMENT MAY BE VARIED OR CANCELLED _______________ Form 28B -- 289 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 272 RULE 28.02 28.03 28.05 FORM 28BA STATEMENT OF AFFAIRS BY AN OFFICER OF A CORPORATION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT Court number Judgment Creditor and Judgment Debtor 1. State the address of the registered office of the judgment debtor corporation. 2. Is the corporation still trading? If no, when did it last trade? 3. What is the corporation's average weekly turnover? 4. Is the corporation owed any money? If yes, give details including— (a) who owes the money? (b) the address, telephone number and reference of the person or corporation; (c) how much is owed? (d) what are the circumstances that give rise to the indebtedness? (e) when is the debt due and payable to the corporation? Give details. 5. Give details of the corporation's accounts at any bank/building society/credit union/etc. For each account give details, including— (a) name of bank etc.; (b) type of account; (c) account number; (d) name of account; (e) present balance of account. Form 28BA -- 290 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 273 6. Do you produce a balance sheet of the corporation? If yes— (a) is it the most up to date balance sheet available? (b) does the balance sheet reflect the corporation's present position? (give differences). 7. What other assets does the corporation have? Give details of all— (1) real estate, listing— (a) locations (addresses); (b) values; (c) mortgages. (2) plant and equipment (not included elsewhere), listing— (a) a description; (b) locations (addresses); (c) values; (d) are there any claims against these items, eg. finance, etc. (3) motor vehicles, listing for each— (a) make/model/condition; (b) registration number; (c) lease or other finance details; (d) value. (4) stock (not included elsewhere), listing— (a) a description; (b) locations (address); (c) values; (d) are there any claims against these items, eg. finance, etc. (5) other deposits, investments, shares and debentures, giving for each details of value and in what business/corporation/ firm. (6) forward orders and/or pending contracts. (7) trademarks, labels, intellectual property. Form 28BA -- 291 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 274 8. Is there a registered debenture over the assets of the corporation? If yes, identify the debenture holder, state when the debenture was given and state the amount secured by the debenture. 9. Are there any other unpaid court orders/fines against the corporation? If so, give details of each court order/fine including— (a) (for court orders) name/address/phone number of party to whom the money is owed; (b) date of court order/fine; (c) amount outstanding; (d) reference number (if any). 10. What other monies does the corporation owe, not previously mentioned? 11. Do you produce a profit and loss statement for the corporation? If yes— (a) is it the most up to date profit and loss statement available? (b) does the profit and loss statement reflect the corporation's present position [detail differences]? 12. Give details of any other circumstances which affect the financial position of the corporation. ............................................................................................................. ............................................................................................................. Date: [Signature] Full name: Position held in judgment debtor corporation: WARNING AN INSTALMENT ORDER THAT IS MADE AS A RESULT OF A FALSE STATEMENT MAY BE VARIED OR CANCELLED _______________ Form 28BA -- 292 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 275 RULE 28.04 FORM 28C NOTICE OF OBJECTION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To the Registrar, An application under section 6 of the Judgment Debt Recovery Act 1984 was *granted *refused by the proper officer on [date]. Notification of such *order/*refusal was received by me on [date]. TAKE NOTICE that I object to the *order made/*refusal to make the order on the grounds that [set out grounds]. Dated: [e.g. 5 September 20 ]. [Signed by judgment creditor or judgment debtor] * Delete if not applicable. _______________ Form 28C -- 293 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 276 RULE 28.05 FORM 28D INSTALMENT AGREEMENT IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor On [date] the Court ordered that [judgment debtor] pay [judgment creditor] the sum of $ and $ for interest and $ for costs. I, [judgment debtor] of [address] agree and undertake to pay to [judgment creditor] of [address] the sum of $ [total sum] in the following manner: Number of instalments: Amount of each instalment: $ Time of payment of each instalment: On or by the day of each *week/*fortnight/*month. First instalment is payable on or by the day of 20 . Last instalment is payable on or by the day of 20 . Person to whom payment is to be made: Address at which payment is to be made: I am aware that should I fail to keep to this agreement, I may be called before the Court. I attach a Statement of Affairs which I believe to be true and correct in every particular. Signature of judgment debtor: Witness: Date: [e.g. 5 September 20 ]. * Delete if not applicable. Form 28D -- 294 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 277 I agree that the judgment debt owing to me shall be paid in the manner set out above. Signature of judgment creditor: Witness: Date: [e.g. 5 September 20 ]. IMPORTANT NOTE TO DEBTOR IF YOU DO NOT UNDERSTAND THIS DOCUMENT YOU SHOULD OBTAIN LEGAL ADVICE IMMEDIATELY. BEFORE SIGNING THIS DOCUMENT YOU SHOULD OBTAIN FINANCIAL COUNSELLING. _______________ Form 28D -- 295 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 278 RULE 28.07 FORM 28E SUMMONS FOR EXAMINATION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To [judgment debtor] of [address] An order was made by the Court on [date] that you pay to [judgment creditor] the sum of $ and $ for interest and $ for costs, and *an application dated has been made to this Court for the *making/*confirming/*varying/*cancelling/*substituting of an instalment order by [full name of applicant] and this Court is not satisfied that in the circumstances an instalment order should be *made/*confirmed/*varied/*cancelled/*substituted or * An instalment order was made by [name of Court] dated for the payment of the judgment debt; and [Full name of judgment creditor] alleges that you have defaulted in the payment of instalment(s) ordered. YOU MUST ATTEND the Court at [venue] on [date] at [time] * to be examined concerning your financial circumstances and your means and ability to satisfy the order against you: or * to be examined according to your financial circumstances and, in the case of an alleged default, as to the circumstances of your alleged default. You are required to produce to the Court on the examination the following documents [description of documents]. Date: [e.g. 5 September 20 ]. Registrar Form 28E -- 296 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 279 WARNING IF YOU DO NOT ATTEND AS ORDERED BY THIS SUMMONS, A WARRANT MAY BE ISSUED FOR YOUR ARREST. * Delete if not applicable. _______________ Form 28E -- 297 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 280 RULE 28.07 FORM 28F APPLICATION FOR ISSUE OF SUMMONS (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor I, of , the judgment creditor make oath and say that: 1. By an order dated: [e.g. 5 September 20 ] it was ordered that [judgment debtor] pay me the sum of $ and $ for interest and $ for costs. 2. An instalment order for the payment of the sum was made on [date]. 3. The judgment debtor has defaulted in the payment of instalment(s) under the order in the following way [set out details of default]. 4. I seek the issue of a summons for the oral examination of the judgment debtor. Sworn, etc. _______________ Form 28F -- 298 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 281 RULE 28.08 FORM 28G WARRANT OF APPREHENSION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [named member or all members of the Police Force] [name of judgment debtor] of [address] has failed to appear at the time and place appointed in the summons dated to be examined regarding *his/*her financial circumstances. You are authorised to enter and search any place where you may suspect [judgment debtor] to be and you may use all necessary force for that purpose. When you have apprehended [judgment debtor] you are to bring *him/*her before a magistrate or the Court at [time] at [place] to be dealt with according to law. Dated: [e.g. 5 September 20 ]. Registrar NOTE: If apprehended before the date and time of hearing specified in this Warrant, the judgment debtor may be released on his or her own undertaking to appear for oral examination at the time and place specified in this Warrant. IF UNABLE TO EXECUTE BY THAT DATE PLEASE RETURN UNEXECUTED. * Delete if not applicable. _______________ Form 28G -- 299 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 282 RULE 28.09 FORM 28H NOTICE (Section 6(4); 6(7); 7(4); 18(2)) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name and address of judgment creditor or judgment debtor]. TAKE NOTICE THAT upon application by [name of applicant] for [type of application] and *a notice of objection filed by [name] having been heard, the proper officer of the Court has * ordered that [details of order] or * refused to make the order sought in the application. Dated: [e.g. 5 September 20 ]. Registrar * Delete if not applicable. _______________ Form 28H -- 300 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 283 RULE 28.09 FORM 28J NOTICE (Section 14(6); 17(5)) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name of judgment creditor] of [address]. A *warrant of apprehension/summons for oral examination was issued on [date] requiring the attendance of the judgment debtor at the Court on [date] for the *purposes of examination as to financial circumstances [and]/as to the circumstances of the alleged default in payment of instalments. Dated: [e.g. 5 September, 20 ]. Registrar * Delete if not applicable. _______________ Form 28J -- 301 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 284 RULE 28.09 FORM 28K NOTICE (Section 6(6), 8) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name of judgment creditor or judgment debtor] of [address]. An application for [type of application] was made by [identify party] on [date] and on [date] the proper officer of the Court *made an order in the terms of the application/refused to make an order. * And the [identify party] filed on [date] *a notice of objection/application for variation of instalment order/application for cancellation of instalment order. TAKE NOTICE that the matter will be heard on [date] at [time] by the Court at [venue]. Dated: [e.g. 5 September, 20 ]. Registrar * Delete if not applicable. _______________ Form 28K -- 302 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 285 RULE 28.10 FORM 28L WARRANT OF COMMITMENT (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT TO: All members of the Police Force and to the keeper of Her Majesty's Prison at You are commanded to take [judgment debtor] and to convey *him/her to the prison at and deliver *him/her to the keeper of that prison and you, the keeper are required to receive *him/her into your custody and keep *him/her there safely for [number] of days unless you receive a certificate signed by the registrar of the Court at [venue] that the judgment debt has been paid or satisfied or until the judgment debtor is discharged by due course of law. Dated: [e.g. 5 September, 20 ]. Registrar * Delete if not applicable. _______________ Form 28L -- 303 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 286 RULE 28.12 FORM 28M CERTIFICATE OF DISCHARGE (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: The Keeper of Her Majesty's Prison at This is to certify that [judgment debtor] presently held by you under a warrant dated has paid the debt owing [or has made satisfaction for the debt owing] for which the warrant issued and is now entitled to be discharged out of your custody. Dated: [e.g. 5 September, 20 ]. Registrar * Delete if not applicable. _______________ Form 28M -- 304 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 287 RULE 30.02 FORM 30A APPLICATION FOR RE-HEARING [heading as in Form 4A] To the Registrar and to [names and addresses of other parties to proceeding]. I did not appear at the hearing of the above complaint. The Court on [date] in my absence made an order against me for [set out terms of order] and for $ costs. TAKE NOTICE that I intend to apply to the Court for an order that that order be set aside and the complaint be re-heard as soon as possible. I did not appear at the hearing for the following reason(s) [set out reasons]. *I did not file a notice of defence for the following reason(s) [set out reasons]. My address for service is: [Signed] Filed: [e.g. 5 September, 20 ]. This application will be heard by the Court on [date] at [time]. Registrar * Delete if not applicable. _______________ Form 30A -- 305 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 288 RULE 31.07 FORM 31A IRREVOCABLE BANK GUARANTEE [heading as in Form 4A] The [name of bank] of [address] undertakes to hold itself responsible for the payment into Court of $ ordered to be paid by the *plaintiff/*defendant in the above matter by order of the Court on [date]. The bank acknowledges that this undertaking can be amended or revoked only with the leave of the Court or discharged by payment of $ into Court. [*sealed by the Bank or * Signed by an officer of the bank authorised in writing] Filed: [e.g. 5 September, 20 ]. * Delete if not applicable. _______________ RULE 31.08 FORM 31B NOTICE OF DISCHARGE AND PAYMENT INTO COURT [heading as in Form 4A] The [name of bank] of [address] which guaranteed the payment of $ into Court on behalf of the *plaintiff/*defendant in the above matter hereby discharges the guarantee and pays into Court the total sum of money so guaranteed. [*sealed by the Bank or * Signed by an officer of the bank authorised in writing] Filed: [e.g. 5 September, 20 ]. * Delete if not applicable. _______________ Form 31A -- 306 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 289 RULE 32.01 FORM 32A CONSENT TO ACT AS LITIGATION GUARDIAN IN THE MAGISTRATES' COURT OF VICTORIA AT To the Registrar I, [name of litigation guardian] of [address] give notice that I consent to act as litigation guardian for [name of minor or person with a disability] of [address] for the purposes of [set out brief details of proceeding in which litigation guardian consents to act]. [Signed] Dated: [e.g. 5 September 20 ]. _______________ Form 32A -- 307 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 290 RULE 34.02 FORM 34A 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 34A -- 308 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 291 APPENDIX A Scale of Costs Scale of costs and fees which may be claimed by Solicitors and Counsel as between party and party as well as between solicitor and client. If in any case the Court or registrar thinks that any item is inadequate or excessive, the Court or registrar may allow a greater or lesser sum than the scale provides. If the scale of costs does not provide for any case, the Court or registrar may allow reasonable costs. Item Particulars of Service $ 1. Claim for debt, liquidated demand or claim arising from a motor vehicle collision for costs of repairs only or for total loss of vehicle only including all professional costs where the amount claimed is— (a) Less than $500 164 (b) $500 to less than $5000 344 (c) $5000 to less than $7500 422 (d) $7500 to less than $20 000 506 (e) $20 000 to less than $40 000 629 (f) $40 000 to less than $70 000 757 (g) $70 000 and over 905 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Instructions 2. Instructions to make, issue or oppose an application or summons or any notice of objection under the Judgment Debt Recovery Act 1984 including instructions for any affidavit (not otherwise provided for). Institution of proceedings 3. Complaint, including instructions to sue, letter before action, attendances on counsel, copies for service, issuing, and attendances on process server. App. A -- 309 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 292 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 4. Consent of litigation guardian including preparation of memorandum, copies and obtaining signature of litigation guardian. 5. Notices of defence to claim, counterclaim or third party notice including instructions to defend, perusal of claim, counterclaim or third party notice, reply, attendances on counsel, copies, filing and service. 6. Counterclaim, third party notice, notice of contribution or any further pleading including instructions to issue, attendances on counsel, copies, filing and service. 7. Perusal of notice of defence, counterclaim, third party notice or any other pleading, and notice of contribution. Particulars 8. Request for particulars of any document including attendances on counsel, copies, filing, service and perusal of further particulars. 9. Further and better particulars of any documents including perusal of request, attendances on counsel, copies, filing and service. View 10. Attending view, including arranging view and attendance on counsel. 11. If the attendance exceeds half an hour—for each quarter hour thereafter. Discovery 12. Notice of discovery including filing and service. 13. Perusal of affidavit of documents and inspection of documents. 14. Affidavit of documents including instructions, attendances on counsel, copies, swearing, filing, service and production of documents for inspection. 15. Notice to produce documents including filing and service. Interrogatories 16. Interrogatories for examination including instructions, attendances on counsel, copies, filing, service and perusal of answers. App. A -- 310 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 293 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 17. Answers to interrogatories including perusal of interrogatories, instructions, attendances on counsel, copies, swearing, filing and service. Brief to advise 18. Brief to advise including preparation of memorandum to counsel, attendances on counsel and perusal of advice. Notices, undertakings, etc. 19. Any necessary notice (including notices before proceeding), undertaking, consent, order, memorandum (not otherwise provided for) including copies, filing and service. 20. Notice to admit including perusal of admissions, copies, filing and service. 21. Admissions, including perusal of notice to admit, copies, filing and service. 22. Offer of compromise or notice of acceptance of offer including copies, filing and service. Witnesses and Expert witnesses 23. Witness summons including instructions, copies and issuing. 24. Attendance on witness to arrange attendance to give evidence without witness summons, including reminders. 25. Arranging examination or inspection by an expert witness and notifying party, supplying relevant documents to witness, obtaining and perusing report. 26. Notifying party of examination or inspection arranged by opposite party. 27. Statement of expert witness (pursuant to Rule 19.02) including instructions, filing and service. Applications 28. Application or summons or any notice under the Judgment Debt Recovery Act 1984 including copies, issuing and affidavit of service. 29. Application for an order under Rule 10.01 (in addition to item 1 if applicable) or 10.04 including copies and issuing. App. A -- 311 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 294 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Notice of Objection 30. Notice of objection under the Judgment Debt Recovery Act 1984 including copies, issuing and affidavit of service. Affidavits 31. Affidavit including attendances on counsel, copies, swearing, filing and service. 32 Affidavit of service, including swearing and filing (not otherwise provided for). General Preparation 33. For work necessarily and properly done in preparing for hearing and not otherwise provided for, including— (a) taking instructions for examination of any party or witness; (b) considering the facts and the law; (c) attending on and corresponding with client; (d) interviewing and corresponding with witnesses and taking proofs of their evidence; (e) obtaining reports or advice from experts and maps, plans, photographs and models; (f) making search in any public office and elsewhere for relevant documents; (g) inspecting any property or place material to the proceeding; (h) perusing relevant documents; (i) general care and conduct of the proceeding. Pre-Hearing Conference 34. Preparation including all necessary instructions, instructions for brief for counsel or brief notes for solicitor, correspondence and perusals. 35. Attendance at conference whether by counsel or solicitor. Mediation 36. Preparation including all necessary instructions, instructions for brief for counsel or brief notes for solicitor, all necessary correspondence, perusals, etc. App. A -- 312 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 295 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 37. Attending mediation by solicitor, for first 4 hours or part thereof. 38. For each subsequent hour. 39. Attending mediation with counsel (where necessary) per hour. 40. If solicitor attends at a place more than 50 kilometres from his or her place of business, an additional fee may be allowed. 41. The reasonable costs of a mediation held before the commencement of proceedings may be allowed. Court Attendance 42. Attendance at Court or upon magistrate or officer of the Court on application, summons, appeal or to hear reserved judgment. 43. Attendance of solicitor without counsel at a WorkCover directions hearing or at the hearing of an application for revocation of a direction of a conciliation officer. 44. Attending WorkCover mentions. 45. Attendance at Court on hearing—solicitor without counsel for the first six hours (including any luncheon adjournment). 46. If attendance at Court exceeds six hours—for each hour thereafter. 47. Attendance at Court by solicitor on hearing with counsel for the first 3 hours. 48. If attendance exceeds 3 hours—for each hour thereafter. Conference with Counsel 49. Appointment and attendance per hour (when necessary). Fees to Counsel 50. To draw or settle any necessary document including notice before action, particulars of claim or defence (including special defence), counterclaim, interrogatories and medical panel referral documents including medical questions, section 65(6A) statements, lists of documents and submissions pursuant to the Accident Compensation Act 1985 etc. 51. To confer, prepare, view or consult—per hour. 52. To advise on evidence or give opinion. App. A -- 313 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 296 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 53. Brief on hearing. 54. For each six hours or part thereof after the first six hours of hearing (including any luncheon adjournment). 55. Attending mediation, for the first 4 hours or part thereof. 56. For each subsequent hour. 57. Attending at WorkCover directions hearing. 57A. Attending at the hearing of an application for revocation of a direction of a conciliation officer. Documents 58. Drawing any document or brief (where not otherwise provided for)—per folio. 59. Typing any document or brief (where not otherwise provided for)—per folio. 60. Copies— For the first 50 pages of photocopying in a proceeding, $2.00 per page. For any photocopying after the first 50 pages in a proceeding, 60 cents per page. Perusals 61. Of any document or part of a document (where not otherwise provided for)—per folio. 62. Examination or scanning any document which is not necessary to peruse—per folio. Correspondence 63. Special letter. 64. Ordinary letter (including an agency letter). 65. Circular letter. After the first, postage may be claimed as a disbursement. Attendances 66. Attendance—such as an attendance at the office of the Registrar or on a process server or to serve or an attendance which is capable of being made by a clerk. App. A -- 314 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 297 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 67. Attendance (personal or by telephone) of a solicitor or managing clerk and involving the exercise of skill or legal knowledge—for each quarter hour. 68. Attendance which does not involve the exercise of skill or legal knowledge—for each quarter hour. Warrant, summons, etc. 69. Warrant to seize property or of delivery including instructions, preparation and issuing. 70. Summons for oral examination, including instructions, preparation of summons and affidavit, issuing, arranging service, forwarding summons and affidavit to Registrar with letter. 71. Proceedings for attachment of debts including all professional costs. 72. Summons for attachment of earnings, including instructions, preparation of summons, affidavit and Form 27F, issuing summons, arranging service, forwarding summons and affidavit to registrar with a letter (including affidavit of service). 73. Form 27L, including preparation, filing and service. 74. Order to attend or to give a statement under Rule 27.16 including preparation, issuing and arranging service. 75. Registration of interstate judgment. Service 76. For service of Court documents on each person to be served. 77. For service of Court documents on each person to be served where service is effected by post or by leaving at a document exchange. 78. For every necessary visit made in attempting service of Court documents and for each report of non-service where the time, date and number of visits attempting service are shown by affidavit. 79. In addition to the above mentioned service fees an allowance at the rate of 60 cents for each 1 kilometre in respect of any distance measured both ways from the nearest court house or other building where the Court is held, or the residence of the person who served the court document, whichever is the closer, to the place of service or attempted service of the document. App. A -- 315 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 298 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Notes to items 76 to 79 inclusive: A In these items "Court documents" include complaint, summons, application or other document used in a court proceeding. B A registrar, upon application made before service of any Court document, may fix and endorse on the document an amount representing an allowance calculated at 60 cents for each kilometre of the distance both ways by the shortest practicable route, from the nearest court house or other building where the Court is held, or the residence of the process server, whichever is the closer to the place of service and the Court in assessing costs on the hearing shall have regard to the amount so fixed and endorsed. C For service of two or more Court documents in the same proceeding on the same person who was or could have been served at the same time and place, only one service fee shall be allowed. D For service of a Court document in the same proceeding on two or more persons who were or could have been served at the same time and place, only one service fee shall be allowed. E No costs shall be allowed for service of any Court document where service has been effected by an employee of the plaintiff or defendant, unless the Court is satisfied by evidence on oath or affidavit that the employee is exclusively engaged on the service of legal process for the employer. Substituted service 80. Order for substituted service including all professional costs. 81. If an advertisement in lieu of service is ordered, the necessary and reasonable costs of the advertisement in addition. Witnesses' expenses 82. Subject to item 82A, witnesses giving evidence in an expert or professional capacity, up to $231 per hour or part thereof, but not to exceed $1618 per day. Other witnesses—up to $58 per hour or part thereof, but not to exceed $289 per day. App. A -- 316 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 299 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 82A Witnesses giving evidence in the capacity of motor vehicle loss assessors, up to $120 per hour or part thereof, but not to exceed $660 per day. Circuit fees 83. (a) A circuit fee may be charged by counsel where the claim or the counterclaim is $40 000 or more. No circuit fee may be charged where the claim or the counterclaim is less than $40 000, unless the Court otherwise orders; (b) A circuit fee must be calculated on the same time basis as a fee for counsel on the hearing of a proceeding, namely, for each 6 hours or part thereof after the first 6 hours of hearing (including any luncheon adjournment); (c) Any circuit fee allowed under paragraph (a) or (b) must be in accordance with the Schedule 1 to Appendix A of the Scale of Costs in Chapter I of the Rules of the County Court unless the circuit town appears in Table 2, in which case Table 2 applies. Whether or not Appendix A or Table 2 applies, not more than one circuit fee must be allowed in any one day in relation to any proceeding or matter; (d) A circuit fee may be charged by a mediator who conducts a mediation following a referral of a proceeding or part of a proceeding to mediation. A circuit fee may also be charged for a pre-issue mediation held in accordance with a Practice Direction. A circuit fee may only be charged by a mediator with the agreement of the parties to the mediation. TABLE 1 (Costs in dollars for items 2 to 80) Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 to less than $40 000 F $40 000 to less than $70 000 G $70 000 and over 2. 56 56 56 85 105 126 147 3. 164 345 423 507 630 759 908 4. n/a n/a 123 161 164 175 186 App. A -- 317 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 300 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 to less than $40 000 F $40 000 to less than $70 000 G $70 000 and over 5. 76 163 201 240 300 361 433 6. 87 180 222 264 329 396 474 7. 40 40 40 40 40 40 40 8. 57 129 157 189 234 279 331 9. 52 108 130 157 195 235 281 10. n/a n/a 132 182 197 222 250 11. n/a n/a 15 38 38 38 38 12. 38 61 76 89 114 133 154 13. 46 86 103 128 160 191 224 14. 89 193 235 281 354 419 497 15. 38 57 76 89 114 133 154 16. 75 153 186 222 278 330 383 17. 99 210 266 319 396 476 564 18. n/a n/a 132 182 197 222 249 19. 37 66 77 91 115 134 162 20. 99 99 99 134 169 204 244 21. 99 99 99 134 169 205 244 22. 85 85 85 125 157 189 224 23. 18 31 44 44 56 68 81 24. 17 18 18 31 35 41 47 25. 53 54 54 83 103 123 147 26. 11 11 11 40 51 61 74 27. 72 131 182 218 274 324 376 28. 30 71 77 87 107 129 152 29. 34 34 34 34 34 34 34 30. 33 33 33 33 33 33 33 31. 75 153 186 222 278 329 382 App. A -- 318 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 301 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 to less than $40 000 F $40 000 to less than $70 000 G $70 000 and over 32. 31 31 31 31 31 31 31 33. 298 975 1203 1445 1806 2610 4059 34. 73 221 294 356 442 532 608 35. 130 251 357 442 553 667 775 36. 73 221 294 356 434 520 597 37. 130 251 357 442 544 652 763 38. 38 71 87 104 135 162 190 39. 38 71 87 104 135 162 190 40. refer to item 40 41. refer to item 41 42. 77 172 213 257 322 386 462 43. 130 251 358 443 556 669 777 44. 117 117 117 117 117 117 117 45. 274 553 832 998 1249 1491 1735 46. 58 108 130 160 197 237 277 47. 125 213 265 319 396 476 551 48. 38 71 87 104 129 157 184 49. 38 77 98 124 156 187 218 50. 48 84 117 135 175 209 242 51. 48 90 117 135 175 209 242 52. n/a n/a 155 234 253 283 422 53. 318 714 963 1155 1440 1730 1890 54. 214 477 639 767 963 1150 1343 55. 132 255 364 450 564 677 790 56. 40 72 89 106 142 168 197 57. 134 259 370 457 575 690 827 App. A App. A -- 319 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 302 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 to less than $40 000 F $40 000 to less than $70 000 G $70 000 and over 57A. 457 457 457 457 457 457 457 58. 3.4 8.6 8.6 8.6 10 12 16 59. 2.1 2.1 2.1 2.1 2.1 2.1 2.1 60. refer to item 60 61. 2.1 2.1 2.1 2.1 2.1 2.1 2.1 62. 1 1 1 1 1 1 1 63. 31 31 31 31 31 31 31 64. 22 22 22 22 22 22 22 65. 12 12 12 12 12 12 12 66. 22 22 22 22 22 22 22 67. 38 38 38 38 38 38 38 68. 18 18 18 18 18 18 18 69. 43 86 103 129 162 195 228 70. 45 104 126 139 176 213 249 71. 125 253 307 366 458 547 660 72. 224 345 370 465 581 696 840 73. 38 66 77 91 115 134 155 74. 38 66 77 91 115 134 155 75. 56 56 56 85 85 85 85 76. 54 54 54 54 54 54 54 77. 10 10 10 10 10 10 10 78. 37 37 37 37 37 37 37 79. refer to item 79 80. 110 198 237 280 351 416 483 App. A -- 320 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 303 TABLE 2 CIRCUIT FEES Circuit town Fee for first six hours Further fee for further six hours or part thereafter Ararat 378 250 Benalla 400 265 Colac 317 210 Echuca 400 265 Mansfield 317 210 Moe 296 197 Portland 436 292 Stawell 400 265 Swan Hill 400 265 _______________ App. A -- 321 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 304 APPENDIX B CIVIL REGISTRY COURTS Ararat Hamilton Ouyen Bacchus Marsh Heidelberg Portland Bairnsdale Hopetoun Ringwood Ballarat Horsham Robinvale Benalla Kerang St. Arnaud Bendigo Korumburra Sale Broadmeadows Kyneton Seymour Castlemaine Latrobe Valley Shepparton Cobram Mansfield Stawell Colac Maryborough Sunshine Collingwood Melbourne Swan Hill Corryong Mildura Wangaratta Dandenong Moe Warrnambool Dromana Moorabbin Justice Centre situated at 1140 Nepean Highway, Highett Werribee Echuca Myrtleford Wodonga Frankston Nhill Wonthaggi Geelong Omeo Orbost __________________ App. B -- 322 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 305 SCHEDULE 1 RULES REVOKED 1. Magistrates' Court Civil Procedure Rules 1999 S.R. No. 58/1999 2. Magistrates' Court Civil Procedure (Amendment No. 1) Rules 1999 S.R. No. 121/1999 3. Magistrates' Court Civil Procedure (Amendment No. 2) Rules 1999 S.R. No. 149/1999 4. Magistrates' Court Civil Procedure (Amendment No. 3) Rules 2000 S.R. No. 22/2000 5. Magistrates' Court Civil Procedure (Amendment No. 4) Rules 2000 S.R. No. 46/2000 6. Magistrates' Court Civil Procedure (Amendment No. 5) Rules 2000 S.R. No. 89/2000 7. Magistrates' Court Civil Procedure (Amendment No. 6) Rules 2000 S.R. No. 133/2000 8. Magistrates' Court Civil Procedure (Amendment No. 7) Rules 2001 S.R. No. 80/2001 9. Magistrates' Court Civil Procedure (Amendment No. 8) Rules 2001 S.R. No. 142/2001 10. Magistrates' Court Civil Procedure (Amendment No. 9) Rules 2002 S.R. No. 123/2002 11. Magistrates' Court Civil Procedure (Amendment No. 10) Rules 2003 S.R. No. 144/2003 12. Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 S.R. No. 153/2004 13. Magistrates' Court Civil Procedure (Amendment No. 12) Rules 2005 S.R. No. 5/2005 14. Magistrates' Court Civil Procedure (Amendment No. 13) Rules 2005 S.R. No. 15/2005 15. Magistrates' Court Civil Procedure (Amendment No. 14) Rules 2005 S.R. No. 165/2005 16. Magistrates' Court Civil Procedure (Amendment No. 15) Rules 2006 S.R. No. 87/2006 17. Magistrates' Court Civil Procedure (Amendment No. 16) Rules 2006 S.R. No. 164/2006 Sch. 1 -- 323 of 324 -- Magistrates' Court Civil Procedure Rules 2009 S.R. No. 49/2009 306 18. Magistrates' Court Civil Procedure (Amendment No. 17) Rules 2006 S.R. No. 170/2006 19. Magistrates' Court Civil Procedure (Amendment No. 18) Rules 2006 S.R. No. 178/2006 20. Magistrates' Court Civil Procedure (Amendment No. 19) Rules 2007 S.R. No. 103/2007 21. Magistrates' Court Civil Procedure (Amendment No. 20) Rules 2007 S.R. No. 119/2007 22. Magistrates' Court Civil Procedure (Amendment No. 21) Rules 2007 S.R. No. 142/2007 23. Magistrates' Court Civil Procedure (Amendment No. 22) Rules 2008 S.R. No. 43/2008 24. Magistrates' Court Civil Procedure (Amendment No. 23) Rules 2008 S.R. No. 64/2008 25. Magistrates' Court Civil Procedure (Amendment No. 24) Rules 2008 S.R. No. 139/2008 26. Magistrates' Court Civil Procedure (Amendment No. 25) Rules 2009 S.R. No. 39/2009 Dated: 12 May 2009 IAN L. GRAY, Chief Magistrate P. LAURITSEN, Deputy Chief Magistrate LANCE MARTIN, Deputy Chief Magistrate ═══════════════ Sch. 1 -- 324 of 324 --