Magistrates' Court Civil Procedure (Amendment No. 4) Rules 2000
i
Magistrates' Court Civil Procedure (Amendment
No. 4) Rules 2000
S.R. No. 46/2000
TABLE OF PROVISIONS
Rule Page
1. Object 1
2. Authorising provisions 1
3. Commencement 1
4. Principal Rules 1
5. New Order 27A 2
ORDER 27A 2
SERVICE AND EXECUTION OF PROCESS RULES 2
27A.01 Definitions 2
27A.02 How application made 2
27A.03 Sealed copy of order 3
27A.04 Enforcement of order 3
27A.05 Fees 3
27A.06 Costs 3
27A.07 Interest 4
6. New Forms 27AA, 27AB and 27AC 4
7. Amendments to Appendix A (scale of costs) 8
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1
STATUTORY RULES 2000
S.R. No. 46/2000
Magistrates' Court Act 1989
Magistrates' Court Civil Procedure (Amendment
No. 4) Rules 2000
The Chief Magistrate together with 2 Deputy Chief
Magistrates jointly make the following Rules:
1. Object
The object of these Rules is to provide procedures
for applications to the Court and related matters
under the Service and Execution of Process Act
1992 of the Commonwealth and to substitute new
and increased Table in Appendix A to the
Principal Rules.
2. Authorising provisions
These Rules are made under section 16 of the
Magistrates' Court Act 1989 and all other
enabling powers.
3. Commencement
These Rules come into operation on 1 July 2000.
4. Principal Rules
In these Rules, the Magistrates' Court Civil
Procedure Rules 19991 are called the Principal
Rules.
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5. New Order 27A
After Order 27 of the Principal Rules insert—
'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.
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 sub-rule (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.
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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 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.
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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 sub-rule (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.'.
6. New Forms 27AA, 27AB and 27AC
After Form 27R of the Principal Rules insert—
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"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 if 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
_______________
Rule 27A.03 Form 27AB
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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
_______________
Rule 27A.04 Form 27AC
AFFIDAVIT IN SUPPORT OF ENFORCEMENT
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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]
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].
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[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".
7. Amendments to Appendix A (scale of costs)
In Appendix A to the Principal Rules—
(a) in Part 1—
(i) for item 1 substitute—
"1. Claim for debt, liquidated
demand or claim arising
from a motor vehicle
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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 $500 121.00
(b) $500 to less than
$5000 252.00
(c) $5000 to less than
$7500 310.00
(d) $7500 to less than
$20 000 371.00
(e) $20 000 up to and
including $40 000 463.00
(f) Over $40 000 556.00".
(ii) in the heading at the end of item 1, for
"28" (where twice occurring)
substitute "28A";
(b) in Part 3, for Table 1 substitute—
"TABLE 1
Costs for items 2 to 28A
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
up to and
including
$40 000
F
Over
$40 000
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2. 121 252 310 371 463 556
3. (a) 57 120 148 176 220 265
(b) 64 131 162 195 242 291
(c) 30 30 30 30 30 30
4. 41 41 41 62 77 92
5. 42 95 114 138 171 204
6. 37 80 96 114 143 172
7. (a) 29 45 57 66 83 99
(b) 35 63 75 94 117 140
(c) 66 142 172 206 258 308
(d) 29 42 57 66 83 99
8. (a) 56 111 135 162 203 243
(b) 73 155 195 233 291 348
9. 29 48 58 67 84 100
10. (a) 73 73 73 100 125 151
(b) 73 73 73 100 125 151
11. 62 62 62 91 114 138
12. (a) 13 22 33 33 42 51
(b) 13 13 13 22 26 31
(c) (i) 40 40 40 62 77 92
(ii) 11 11 11 30 37 45
(d) 56 99 135 162 203 243
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
up to and
including
$40 000
F
Over
$40 000
13. (a) 39 52 58 64 79 95
(b) 25 25 25 25 25 25
14. 56 111 135 162 203 243
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15. 22 22 22 22 22 22
16. 219 716 883 964 1061 1592
17. (a) 54 161 217 261 325 390
(b) 96 184 262 325 407 489
18. (a) 201 405 609 731 914 1095
(b) 42 80 96 117 145 174
(c) 58 127 157 188 236 283
(d) 68 68 68 68 68 68
19. (a) 91 157 195 233 291 348
(b) 30 54 66 79 98 118
20. 29 58 72 90 113 136
21. (a) 32 55 77 90 114 137
(b) 209 469 630 756 944 1133
(c) 140 313 420 504 630 754
(d) 32 59 77 90 114 137
22. 2.50 6.30 6.30 6.30 7.80 9.40
23. (a) 1.40 1.40 1.40 1.40 1.40 1.40
(b) 1.40 1.40 1.40 1.40 1.40 1.40
24. (a) 1.40 1.40 1.40 1.40 1.40 1.40
(b) 0.90 0.90 0.90 0.90 0.90 0.90
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
up to and
including
$40 000
F
Over
$40 000
25. (a) 22.60 22.60 22.60 22.60 22.60 22.60
(b) 15.90 15.90 15.90 15.90 15.90 15.90
(c) 9.00 9.00 9.00 9.00 9.00 9.00
26. (a) 15.90 15.90 15.90 15.90 15.90 15.90
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(b) 28 28 28 28 28 28
(c) 12.50 12.50 12.50 12.50 12.50 12.50
27. (a) 32 63 76 95 119 143
(b) 34 77 92 105 130 157
28. 91 186 233 279 348 417
28A. (a) 164 263 282 354 443 529
(b) 29 48 58 67 84 100
(c) 29 48 58 67 84 100 ".
(c) for item 29 substitute—
"Item Particulars of Service Costs
$
29. Service
In this item "Court documents" includes complaint,
summons, application or other document used in a
Court proceeding
(1) (a) For service of Court documents—
(i) For service on each person to be served 39
(ii) For service on each person to be served
where service is effected by post or by
leaving at a document exchange 2.50
(iii) For every necessary visit made in
attempting service and for each report of
non-service where the time, date and
number of visits attempting service are
shown by affidavit 28
Item Particulars of Service Costs
$
(iv) In addition to the abovementioned fees an
allowance at the rate of 50 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 Court document.
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(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 50 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.
(2) (a) 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.
(b) 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.
(3) 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.
Item Particulars of Service Costs
$
(4) (a) Order for substituted service including all
professional costs 140
(b) If advertisement in lieu of service is ordered, the
necessary and reasonable costs of advertisement
in addition.".
Dated: 13 June 2000
MICHAEL ANTHONY ADAMS QC,
Chief Magistrate
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DANIEL JOHN MULING,
Deputy Chief Magistrate
JELENA POPOVIC,
Deputy Chief Magistrate
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NOTES
1 Rule 4: S.R. No. 58/1999 as amended by S.R. Nos 121/1999, 149/1999
6/2000 and 22/2000.
Notes
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