Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004

Victorian Legislation and Parliamentary Documents i Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 S.R. No. 153/2004 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 2 3. Commencement 2 4. Principal Rules 2 5. Revocation of Rule 1.11 2 6. New Part 5 to Order 1 inserted 2 PART 5—OVERRIDING OBJECTIVE AND CASE MANAGEMENT 2 1.19 Overriding objective 2 1.20 Duty of parties 3 1.21 Exercise of power 3 1.22 Case management 4 7. Amendments to Order 4 5 4.02 Names, addresses and representation of parties 5 4.02.1 Statement of claim 6 4.02.2 Motor vehicle collision 6 4.02.3 Form of complaint 7 4.02.4 Requirements for filing a complaint by an electronic message 7 4.02.5 Complaints by electronic message to comply with Rules 8 4.02.6 Copy of complaint commenced by electronic message to be provided upon request 8 8. Amendments to Order 7 8 7.02 Form of counterclaim 8 9. Amendments to Order 9 9 DEFENCE, REPLY AND PARTICULARS 9 9.01 Notice of defence after service 9 9.02 Content of defence 10 9.02.1 Reply 11 9.02.2 Alternative allegations 12 -- 1 of 61 -- Victorian Legislation and Parliamentary Documents Rule Page ii 10. New Order 9A inserted 12 ORDER 9A—SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE 12 9A.01 Stay or order in proceeding 12 9A.02 Striking out pleading 13 11. Limit on pleadings, discovery and interrogatories 14 21.01 Application 14 21.02 Statement of claim 14 21.03 Defence 14 21.04 No pleadings, discovery, interrogatories etc. 14 21.05 Parties to serve a list of documents 15 12. New Order 22A inserted 15 ORDER 22A—MEDIATION 15 22A.01 Referral of proceeding or part of a proceeding to mediation 15 22A.02 Definitions 16 22A.03 Parties must attend mediation 16 22A.04 Consequences of failure to attend 17 22A.05 Orders by consent 18 22A.06 Mediator may adjourn a mediation 18 22A.07 Mediation report 18 22A.08 Confidentiality 18 22A.09 Extension of time limits 19 13. New Rule 26.01(2) inserted 19 14. New Order 26A inserted 19 ORDER 26A—ASSESSMENT OF COSTS 19 26A.01 Application 19 26A.02 Definitions 20 26A.03 Bases of assessment 20 26A.04 Party and party basis 20 26A.05 Solicitor and client basis 20 26A.06 Indemnity basis 21 26A.07 General basis 21 26A.08 By whom costs to be assessed 21 26A.09 Costs of assessment 21 26A.10 Application for assessment 22 26A.11 Filing of bill 22 26A.12 Service of bill 23 26A.13 Undefended proceeding 23 26A.14 Content of bill 23 26A.15 Disbursement or fee not paid 24 26A.16 Charge of lawyer outside of Victoria 24 26A.17 Amendment of bill 25 -- 2 of 61 -- Victorian Legislation and Parliamentary Documents Rule Page iii 26A.18 Agreement as to part of bill 25 26A.19 Objection to bill 25 26A.20 Discretionary costs 26 26A.21 Assessment where no objection 27 26A.22 Attendance of parties 27 26A.23 Costs in proceedings before registrar 27 26A.24 Costs reserved 27 26A.25 Reference to a magistrate 28 26A.26 Application by person liable to pay 28 26A.27 Solicitor at fault 28 26A.28 Cross costs 30 26A.29 Order on assessment 31 26A.30 Review by magistrate 31 26A.31 Necessary or proper costs 33 26A.32 Unnecessary etc. work 33 26A.33 Increased allowance 33 26A.34 Copy documents 33 26A.35 Service of several documents 33 26A.36 Defendants with same solicitor 34 26A.37 Negotiations 34 26A.38 Retainer of counsel 34 26A.39 Advice and other work of counsel 34 26A.40 Premature brief 35 26A.41 Barrister and solicitor 35 15. Substitution of Form 4A 35 Form 4A—Complaint 35 16. Substitution of Forms 7A and 7AB 37 Form 7A—Counterclaim 37 Form 7AB—Counterclaim 39 17. Substitution of Form 9A 40 Form 9A—Notice Of Defence 40 18. New Form 22AA inserted 42 Form 22AA—Mediation Report 42 19. Substitution of Appendix A 44 Appendix A—Institution of proceedings 45 ═══════════════ ENDNOTES 58 -- 3 of 61 -- Victorian Legislation and Parliamentary Documents 1 STATUTORY RULES 2004 S.R. No. 153/2004 Magistrates' Court Act 1989 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: 1. Object The object of these Rules is to— (a) set out an overriding objective to the Principal Rules and to provide for active case management consistent with this objective; (b) amend the requirements for the form and content of a complaint and for the form and content of a counterclaim; (c) revise the provisions relating to the content of and service of a notice of defence and to provide for a reply to a notice of defence; (d) provide for applications for orders for the summary stay or dismissal of a claim or a defence to a claim; (e) restrict pleadings, discovery and interrogatories in a proceeding that has been referred to arbitration; (f) facilitate the referral of a proceeding or any part of a proceeding to mediation; -- 4 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 2 (g) provide for the assessment of costs by the registrar and to substitute a new and revised Scale of Costs consequential to the increase in the civil jurisdiction of the Court. 2. Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 3. Commencement (1) These Rules (apart from Rules 7, 8, 9, 15, 16 and 17) come into operation on 1 January 2005. (2) Rules 7, 8, 9, 15, 16 and 17 come into operation on 1 March 2005. 4. Principal Rules In these Rules the Magistrates' Court Civil Procedure Rules1 1999 are called the Principal Rules. 5. Revocation of Rule 1.11 Rule 1.11 of the Principal Rules is revoked. 6. New Part 5 to Order 1 inserted In Order 1 of the Principal Rules, at the end of Part 4 insert— "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. 2 -- 5 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 3 (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. r. 6 -- 6 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 4 1.22 Case management (1) The Court must further the overriding objective by actively managing cases. (2) Active case management includes— (a) encouraging the parties to co-operate 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; r. 6 -- 7 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 5 (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. 7. Amendments to Order 4 For Rules 4.02, 4.02.1, 4.02.2 and 4.02.3 of the Principal Rules substitute— "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. 7 -- 8 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 6 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. r. 7 -- 9 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 7 (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. 4.02.3 Form of complaint (1) Unless sub-rule (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 r. 7 -- 10 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 8 (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. 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.". 8. Amendments to Order 7 For Rule 7.02(1) and (2) of the Principal Rules substitute— "7.02 Form of counterclaim (1) Unless sub-rule (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.". r. 8 -- 11 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 9 9. Amendments to Order 9 (1) Insert the following heading to Order 9 of the Principal Rules— "DEFENCE, REPLY AND PARTICULARS". (2) For Rule 9.01 of the Principal Rules substitute— "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. (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 r. 9 -- 12 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 10 (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. (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; (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. r. 9 -- 13 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 11 (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. 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 r. 9 -- 14 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 12 (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.". 10. New Order 9A inserted After Rule 9.09 of the Principal Rules insert— "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 (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 r. 10 -- 15 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 13 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. (2) This Rule, with any necessary modification, applies where the defendant counterclaims or claims against a third party.". r. 10 -- 16 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 14 11. Limit on pleadings, discovery and interrogatories For Rules 21.01 and 21.02 of the Principal Rules substitute— "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. 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; r. 11 -- 17 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 15 (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, 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.". 12. New Order 22A inserted After Order 22 of the Principal Rules insert— '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. r. 12 -- 18 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 16 22A.02 Definitions In this Order— "acceptable mediator" means a person or a class of persons whom the parties and a magistrate or a registrar agree, or in default of any such agreement a magistrate or a registrar decides, is acceptable to mediate a complaint including a person or class of persons, but not restricted to— (a) a registrar or deputy registrar; (b) a barrister and solicitor holding a current practising certificate and who has been approved as a mediator by the Law Institute of Victoria; (c) a barrister at law approved as a mediator by the Victorian Bar; "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. r. 12 -- 19 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 17 (2) If a party referred to in sub-rule (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 sub- rules (1) and (2), all parties must have present at the mediation a person who has the authority to decide whether or not to settle the proceeding or settle the part of proceeding that has been referred to mediation. (4) If an insurer is indemnifying a party, the person referred to in sub-rule (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. r. 12 -- 20 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 18 (3) An order under sub-rule (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 sub-rule (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. 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. r. 12 -- 21 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 19 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.'. 13. New Rule 26.01(2) inserted At the end of Rule 26.01 of the Principal Rules insert— "(2) If costs are not fixed by the Court as provided for by sub-rule (1), Order 26A applies.". 14. New Order 26A inserted After Order 26 of the Principal Rules insert— '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. r. 13 -- 22 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 20 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. 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. r. 14 -- 23 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 21 26A.06 Indemnity basis (1) Subject to sub-rule (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. 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. r. 14 -- 24 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 22 (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. 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. r. 14 -- 25 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 23 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; (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. r. 14 -- 26 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 24 (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. 14 -- 27 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 25 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. r. 14 -- 28 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 26 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. (2) In exercising the discretion under sub- rule (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. r. 14 -- 29 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 27 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. 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 sub-rules (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. r. 14 -- 30 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 28 (2) Sub-rule (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. 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 sub-rule (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 r. 14 -- 31 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 29 (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; (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 sub-rule (2), the solicitor may apply for review of the order. (4) An application under sub-rule (3) must be made by notice. (5) The notice under sub-rule (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. r. 14 -- 32 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 30 (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. 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. r. 14 -- 33 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 31 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. (6) Sub-rule (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 sub-rule (1) must be made by notice. (3) The application must be made to a magistrate. r. 14 -- 34 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 32 (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. (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. r. 14 -- 35 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 33 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 sub-rule (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 sub-rule (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. 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 1 must be allowed. r. 14 -- 36 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 34 26A.36 Defendants with same solicitor If 2 or more defendants are represented by the same solicitor, and the solicitor does work for 1 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. (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. r. 14 -- 37 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 35 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.'. 15. Substitution of Form 4A For Form 4A to the Principal Rules substitute— "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) r. 15 -- 38 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 36 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 (eg. 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.) 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. r. 15 -- 39 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 37 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. _______________". 16. Substitution of Forms 7A and 7AB For Forms 7A and 7AB to the Principal Rules substitute— "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. r. 16 -- 40 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 38 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. 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. _______________ r. 16 -- 41 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 39 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. r. 16 -- 42 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 40 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. 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. _______________". 17. Substitution of Form 9A For Form 9A to the Principal Rules substitute— "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). r. 17 -- 43 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 41 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 arising out of the statement of claim—see Rule 9.02(5). 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]; r. 17 -- 44 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 42 * 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. _______________". 18. New Form 22AA inserted After Form 20K to the Principal Rules insert— "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 r. 18 -- 45 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 43 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. 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. _______________". r. 18 -- 46 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 44 19. Substitution of Appendix A For Appendix A to the Principal Rules substitute— '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 $500 142 (b) $500 to less than $5000 296 (c) $5000 to less than $7500 364 (d) $7500 to less than $20 000 435 (e) $20 000 to less than $40 000 543 (f) $40 000 to less than $70 000 653 (g) Over $70 000 781 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). r. 19 -- 47 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 45 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Institution of proceedings 3. Complaint, including instructions to sue, letter before action, attendances on counsel, copies for service, issuing, and attendances on process server. 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. r. 19 -- 48 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 46 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Interrogatories 16. Interrogatories for examination including instructions, attendances on counsel, copies, filing, service and perusal of answers. 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. r. 19 -- 49 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 47 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 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. 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. r. 19 -- 50 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 48 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 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. 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). r. 19 -- 51 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 49 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 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. 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 or at the hearing of an application for revocation of a direction of a conciliation officer. NOTE: Costs for items 58 to 68 may be allowed in appropriate circumstances in substitution for the costs already provided for. 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—any carbon, photo or machine made copy—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). r. 19 -- 52 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 50 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 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. 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. r. 19 -- 53 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 51 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) 79. In addition to the above mentioned service fees an allowance at the rate of 55 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. 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 55 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. r. 19 -- 54 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 52 Item Particulars of Service (Costs for items 2 to 80 are set out in Table 1) Witnesses' expenses 82. Witnesses giving evidence in an expert or professional capacity, up to $204 per hour or part thereof, but not to exceed $1426 per day. Other witnesses—up to $51 per hour or part thereof, but not to exceed $255 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 First Schedule 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. r. 19 -- 55 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 53 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 Over $70 000 2. 48 48 48 73 91 108 126 3. 142 296 364 435 543 653 781 4. n/a n/a 105 139 142 151 160 5. 66 141 173 207 258 311 372 6. 75 154 191 227 283 341 408 7. 35 35 35 35 35 35 35 8. 49 111 135 163 201 240 285 9. 44 94 112 135 168 202 242 10. n/a n/a 114 156 170 191 215 11. n/a n/a 13 34 34 34 34 12. 34 53 66 77 98 115 132 13. 40 74 89 110 138 165 193 14. 77 167 202 242 304 362 429 15. 34 49 66 77 98 115 132 16. 65 131 160 191 239 284 329 17. 85 181 229 274 341 409 485 18. n/a n/a 114 156 170 191 214 19. 33 57 67 78 99 116 140 20. 85 85 85 116 146 176 210 21. 85 85 85 116 146 176 210 22. 73 73 73 107 135 163 193 23. 15 27 38 38 49 60 71 24. 15 15 15 27 31 36 41 r. 19 -- 56 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 54 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 Over $70 000 25. 47 47 47 73 90 108 128 26. 11 11 11 35 44 54 65 27. 65 115 160 191 239 284 329 28. 26 61 67 75 93 111 130 29. 30 30 30 30 30 30 30 30. 29 29 29 29 29 29 29 31. 65 131 160 191 239 284 329 32. 27 27 27 27 27 27 27 33. 257 840 1037 1246 1556 2250 3500 34. 63 190 254 307 381 458 524 35. 112 216 308 381 478 574 668 36. n/a n/a n/a n/a 374 449 515 37. n/a n/a n/a n/a 469 563 657 38. n/a n/a n/a n/a 117 140 164 39. n/a n/a n/a n/a 117 140 164 40. refer to item 40 41. refer to item 41 42. 67 148 183 221 277 332 397 43. 112 216 308 381 478 574 668 44. 100 100 100 100 100 100 100 45. 236 476 715 857 1075 1285 1492 46. 50 94 112 138 170 204 238 47. 107 183 228 274 341 409 475 48. 34 61 75 90 111 135 158 49. 34 67 84 106 134 161 188 50. 40 70 98 113 145 174 202 r. 19 -- 57 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 55 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 Over $70 000 51. 40 75 98 113 145 174 202 52. n/a n/a 129 195 210 235 260 53. 265 594 800 960 1198 1438 1572 54. 177 397 531 638 800 956 1116 55. n/a n/a n/a n/a 469 563 657 56. n/a n/a n/a n/a 117 140 164 57. 112 216 308 381 478 574 688 58. 3.00 7.40 7.40 7.40 9.20 11.00 13.00 59. 1.70 1.70 1.70 1.70 1.70 1.70 1.70 60. 1.70 1.70 1.70 1.70 1.70 1.70 1.70 61. 1.70 1.70 1.70 1.70 1.70 1.70 1.70 62. .90 .90 .90 .90 .90 .90 .90 63. 27 27 27 27 27 27 27 64. 18 18 18 18 18 18 18 65. 10.30 10.30 10.30 10.30 10.30 10.30 10.30 66. 18 18 18 18 18 18 18 67. 33 33 33 33 33 33 33 68. 14 14 14 14 14 14 14 69. 37 74 89 111 140 168 196 70. 39 90 108 121 152 183 214 71. 107 218 274 327 409 489 568 72. 193 309 331 416 520 622 722 73. 34 57 67 78 99 116 133 74. 34 57 67 78 99 116 133 75. 48 48 48 73 73 73 73 76. 46 46 46 45 46 46 46 r. 19 -- 58 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 56 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 Over $70 000 77. 3 3 3 3 3 3 3 78. 33 33 33 33 33 33 33 79. refer to item 79 80. 96 171 204 241 301 358 415 TABLE 2 CIRCUIT FEES Circuit Town Fee for first six hours Further fee for further six hours or part thereafter $ $ Ararat 320.00 211.00 Benalla 339.00 224.00 Colac 268.00 178.00 Echuca 339.00 224.00 Mansfield 268.00 178.00 Moe 250.00 167.00 Portland 369.00 246.00 Stawell 339.00 224.00 Swan Hill 339.00 224.00 ". r. 19 -- 59 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 57 Dated: 1 December 2004 IAN LESLIE GRAY, Chief Magistrate PAUL DOUGLAS GRANT, Deputy Chief Magistrate PETER HENRY LAURITSEN, Deputy Chief Magistrate ═══════════════ r. 19 -- 60 of 61 -- Victorian Legislation and Parliamentary Documents S.R. No. 153/2004 Magistrates' Court Civil Procedure (Amendment No. 11) Rules 2004 58 ENDNOTES 1 Rule 4: S.R. No. 58/1999. Reprint No. 2 incorporating amendments as at 13 March 2003. Subsequently amended by S.R. No. 144/2003. Endnotes -- 61 of 61 --