County Court Rules of Procedure in Civil Proceedings 1999
i
County Court Rules of Procedure in Civil
Proceedings 1999
S.R. No. 20/1999
TABLE OF PROVISIONS
Rule Page
ORDER 1 1
PRELIMINARY 1
PART 1—GENERAL 1
1.01 Title 1
1.02 Object 1
1.03 Authorising provisions 1
1.03.1 Commencement 1
1.03.2 Revocation 2
PART 2—APPLICATION OF RULES 2
1.05 Application 2
1.06 Jurisdiction not affected 2
PART 3—INTERPRETATION 2
1.13 Definitions 2
PART 4—MISCELLANEOUS 5
1.14 Exercise of power 5
1.15 Procedure wanting or in doubt 5
1.16 Act by corporation 6
1.17 Corporation a party 6
1.18 Power to act by solicitor 6
1.19 Continuation of address for service 6
ORDER 2 6
NON-COMPLIANCE WITH THE RULES 6
2.01 Effect of non-compliance 6
2.02 Originating process 7
2.03 Application to set aside for irregularity 7
2.04 Dispensing with compliance 7
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ORDER 3 7
TIME, SITTINGS AND COURT OFFICE 7
3.01 Calculating time 7
3.02 Extension and abridgement 8
3.03 Fixing time 8
3.04 Process in vacation 9
3.05 Time for service 9
3.06 Proceedings after a year 9
3.07 Sittings and vacation 9
3.08 Office 10
3.09 Office hours 10
ORDER 4 10
PROCESS IN THE COURT 10
4.01 How proceeding commenced 10
4.02 Interlocutory application 10
4.03 Names of parties 10
4.04 When writ required 11
4.05 When originating motion required 11
4.06 Optional commencement by originating motion 11
4.07 Continuation as writ of proceeding by originating motion 11
4.08 Urgent case 12
ORDER 5 13
CONTENT, FILING AND DURATION OF ORIGINATING
PROCESS 13
5.01 Definition 13
5.02 Form of originating process 13
5.03 Appearance 13
5.04 Indorsement of claim on writ 13
5.05 Indorsement of claim on motion 14
5.06 Indorsement as to capacity 14
5.07 Address of parties 14
5.08 Place and mode of trial 15
5.09 Stay on payment of costs 15
5.10 Petition 16
5.11 Filing of originating process 16
5.12 Duration and renewal of originating process 17
ORDER 6 18
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SERVICE 18
6.01 When personal service necessary 18
6.02 Personal service of originating process 18
6.03 How personal service effected 18
6.04 Service on particular defendants 18
6.05 Motor car or accidental death or bodily injury 19
6.06 Address for service 20
6.06.1 Solicitor changing address 21
6.07 How ordinary service effected 21
6.08 Identity of person served 24
6.09 Acceptance of service by solicitor 24
6.10 Substituted service 24
6.11 Confirmation of informal service 25
6.12 Service by filing 25
6.13 Service on agent 25
6.14 Service under contract 26
6.15 Recovery of vacant land 26
6.16 Service of notice by the Court 27
6.17 Affidavit of service 27
ORDER 7 28
SERVICE OUT OF AUSTRALIA 28
PART 1—WHEN SERVICE OUT IS ALLOWED 28
7.01 For what claims 28
7.02 Indorsement on originating process 30
7.03 Mode of service out of Australia 31
7.04 Leave to proceed where no appearance 31
7.05 Stay, setting aside service etc. 31
7.06 Service of other process by leave 32
7.07 Service of counterclaim or third party notice 32
7.08 Application for leave 33
PART 2—SERVICE IN FOREIGN COUNTRY 33
7.09 Application 33
7.10 Documents required 34
7.11 Translation 34
7.12 Request and undertaking 35
7.13 Procedure on lodgment and filing 35
7.14 Evidence of service 35
7.15 Order for payment of expenses 36
ORDER 8 36
APPEARANCE 36
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8.01 Application 36
8.02 Appearance before taking step 36
8.03 Who to file appearance 37
8.04 Time for appearance 37
8.05 Mode of filing appearance 37
8.06 Address for service of defendant 38
8.07 Late appearance 39
8.08 Conditional appearance 39
8.09 Setting aside writ or originating motion 39
ORDER 9 40
JOINDER OF CLAIMS AND PARTIES 40
9.01 Joinder of claims 40
9.02 Permissive joinder of parties 40
9.03 Joinder of necessary parties 40
9.04 Joinder inconvenient 41
9.05 Effect of misjoinder or non-joinder of party 42
9.06 Addition, removal, substitution of party 42
9.07 Procedure for addition of party 43
9.08 Defendant dead at commencement of proceeding 43
9.09 Change of party on death, bankruptcy 45
9.10 Failure to proceed after death of party 46
9.11 Amendment of proceedings after change of party 47
9.12 Consolidation or trial together 48
9.13 Conduct of proceeding 48
ORDER 10 49
COUNTERCLAIM 49
10.01 Application of Order 49
10.02 When counterclaim allowed 49
10.03 Counterclaim against plaintiff and another person 49
10.04 Procedure after counterclaim against another person 49
10.05 Trial of counterclaim 51
10.06 Counterclaim inconvenient 51
10.07 Stay of claim 51
10.08 Counterclaim on stay etc. of original proceeding 51
10.09 Judgment for balance 52
ORDER 11 52
THIRD PARTY PROCEDURE 52
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11.01 Claim by third party notice 52
11.02 Statement of claim on third party notice 52
11.03 Time for appearance 53
11.04 Filing and service of third party notice 53
11.05 Time for third party notice 53
11.06 Leave to file third party notice 54
11.07 Other requirements for service 54
11.08 Appearance by third party 55
11.09 Defence of third party 55
11.10 Counterclaim by third party 56
11.11 Default by third party 56
11.12 Discovery and trial 57
11.13 Third party directions 58
11.14 Judgment between defendant and third party 58
11.15 Claim against another party 59
11.16 Fourth and subsequent parties 60
11.17 Counterclaim 60
ORDER 12 60
INTERPLEADER 60
12.01 Definitions 60
12.02 Stakeholder's interpleader 61
12.03 Sheriff's interpleader 62
12.04 Sheriff's summons to state claim 62
12.05 Notice to execution creditor 63
12.06 Admission of claim 63
12.07 Interpleader summons 63
12.08 Powers of Court 64
12.09 Default by claimant 65
12.10 Neutrality of applicant 65
12.11 Order in several proceedings 66
12.12 Trial of interpleader question 66
ORDER 13 66
PLEADINGS 66
13.01 Formal requirements 66
13.02 Content of pleading 67
13.03 Document or conversation 67
13.04 Fact presumed true 67
13.05 Condition precedent 68
13.06 Implied contract or relation 68
13.07 Matter which must be pleaded 68
13.08 Subsequent fact 69
13.09 Inconsistent pleading 69
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13.10 Particulars of pleading 69
13.11 Order for particulars 71
13.12 Admission and denials 71
13.13 Denial by joinder of issue 72
13.14 Money claim as defence 72
13.15 Counterclaim 72
ORDER 14 73
SERVICE OF PLEADINGS 73
14.01 Statement of claim indorsed on writ 73
14.02 Statement of claim not indorsed on writ 73
14.03 Alteration of claim as indorsed on writ 73
14.04 Service of defence 73
14.05 Reply 74
14.06 Pleading after reply 74
14.07 Defence to counterclaim 74
14.08 Close of pleadings 74
14.09 Order as to pleadings 75
14.10 Filing of pleadings 75
ORDER 15 75
PERSON UNDER DISABILITY 75
15.01 Definitions 75
15.02 Litigation guardian of person under disability 76
15.03 Appointment of litigation guardian 76
15.04 No appearance by person under disability 77
15.05 Application to discharge or vary certain orders 77
15.06 Pleading admission by person under disability 78
15.07 Discovery 78
15.08 Compromise of claim by a person under disability 78
15.09 Execution against money in court 79
15.10 Counterclaim and claim by third party notice 80
ORDER 16 81
EXECUTORS, ADMINISTRATORS AND TRUSTEES 81
16.01 Representation of unascertained persons 81
16.02 Beneficiaries 82
16.03 Deceased person 83
ORDER 17 83
PARTNERS AND SOLE PROPRIETORS 83
17.01 Partners 83
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17.02 Disclosure of partners 84
17.03 Service of originating process 84
17.04 Appearance by partners 85
17.05 No appearance except by partners 85
17.06 Appearance under objection of person sued as partner 85
17.07 Enforcement of judgment 86
17.08 Enforcement between partners 87
17.09 Attachment of debts 87
17.10 Person using the business name 88
17.11 Charge on partner's interest 88
ORDER 18 89
REPRESENTATIVE PROCEEDING 89
18.01 Application 89
18.02 Proceeding by or against representative 89
18.03 Order for representation by defendant 89
18.04 Effect of judgment 90
ORDER 19 90
NOTICE OF CONSTITUTIONAL MATTER 90
19.01 Definitions 90
19.02 Notice 90
19.03 Filing and service 91
ORDER 20 91
CHANGE OF SOLICITOR 91
20.01 Notice of change 91
20.02 Party appointing solicitor 92
20.03 Solicitor ceasing to act 92
20.04 Removal of solicitor from record 93
20.05 Address for service 94
20.06 Death, retirement etc., of Victorian Government Solicitor etc. 95
ORDER 21 95
JUDGMENT IN DEFAULT OF APPEARANCE OR PLEADING 95
21.01 Default of appearance 95
21.02 Default of defence 96
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21.03 Judgment for recovery of debt, damages or property 96
21.04 Judgment other than for recovery for debt, damages or
property 98
21.05 Proceeding continued against other defendants 98
21.06 Default of defence to counterclaim 98
21.07 Setting aside judgment 98
ORDER 22 99
SUMMARY JUDGMENT FOR PLAINTIFF 99
22.01 Scope of Order 99
22.02 Application for judgment 99
22.03 Affidavit in support 99
22.04 Defendant to show cause 100
22.05 Affidavit in reply 101
22.06 Hearing of application 101
22.07 Cross-examination on affidavit 101
22.08 Judgment on counterclaim 102
22.09 Assessment of damages 102
22.10 Judgment where debt amount unascertained 102
22.11 Directions 103
22.12 Continuing for other claim or against other defendant 103
22.13 Judgment for delivery up of chattel 103
22.14 Relief against forfeiture 103
22.15 Setting aside judgment 103
ORDER 23 104
SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING
OUT PLEADING 104
23.01 Stay or judgment in proceeding 104
23.02 Striking out pleading 104
23.03 Summary judgment for defendant 105
23.04 Affidavit evidence 105
23.05 Declaratory judgment 105
ORDER 24 106
JUDGMENT ON FAILURE TO PROSECUTE OR OBEY
ORDER FOR PARTICULARS OR DISCOVERY 106
24.01 Judgment on dismissal 106
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24.02 Failure to obey order 106
24.03 Stay on non-payment of costs 107
24.04 Counterclaim and third party claim 107
24.05 Inherent jurisdiction 107
24.06 Setting aside judgment 107
ORDER 25 108
DISCONTINUANCE AND WITHDRAWAL 108
25.01 Withdrawal of appearance 108
25.02 Discontinuance or withdrawal of proceeding or claim 108
25.03 Proceeding not commenced by writ 109
25.04 Notice of discontinuance or withdrawal 109
25.05 Costs 109
25.06 Discontinuance or withdrawal no defence 109
25.07 Stay on non-payment of costs 110
ORDER 26 110
OFFER OF COMPROMISE 110
PART 1—INTERPRETATION 110
26.01 Definitions 110
PART 2—OFFER OF COMPROMISE 110
26.02 Application 110
26.03 Time for making, accepting etc. offer 111
26.03.1 Time for payment 112
26.04 Effect of offer 113
26.05 Disclosure of offer to Court 113
26.06 Party under disability 113
26.07 Failure to comply with accepted offer 113
26.08 Costs consequences of failure to accept 114
26.09 Multiple defendants 116
26.10 Offer to contribute 116
PART 3—OTHER COMPROMISE OFFERS 117
26.11 Costs consequences where other claim by plaintiff 117
26.12 Costs consequences where counterclaim 118
ORDER 27 119
CONTENT AND FORM OF COURT DOCUMENTS 119
27.01 Conformity with Rules 119
27.02 Heading of document 119
27.03 Form of document 120
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27.04 Numbers 122
27.05 Copies on request 122
27.06 Registrar refusing to seal or accept document 122
27.07 Scandalous matter 123
ORDER 28 123
FILING AND SEALING OF COURT DOCUMENTS 123
28.01 How document filed 123
28.02 Proceedings commenced outside Melbourne 124
28.03 Date of filing 124
28.04 Seal of Court 124
28.05 Inspection of documents 124
28.06 Production of Court document 125
28.07 Offices of the Court 125
ORDER 29 125
DISCOVERY AND INSPECTION OF DOCUMENTS 125
29.01 Application and definition 125
29.02 Notice for discovery 125
29.03 Discovery after notice 126
29.04 Affidavit of documents 126
29.05 Order limiting discovery 127
29.06 Co-defendants and third party 127
29.07 Order for discovery 128
29.08 Order for particular discovery 128
29.09 Inspection of documents referred to in affidavit of
documents 129
29.10 Inspection of documents referred to in pleadings and
affidavits 130
29.11 Order for discovery 131
29.12 Direction as to documents 132
29.12.1 Default notice 132
29.13 Inspection of document by Court 133
29.14 Default on discovery 133
29.15 Continuing obligation to make discovery 134
ORDER 30 134
INTERROGATORIES 134
30.01 Definitions 134
30.02 When interrogatories allowed 134
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30.03 Statement as to who to answer 135
30.04 Filing interrogatories and time for answers 135
30.05 Source for answers to interrogatories 135
30.06 How interrogatories to be answered 137
30.07 Ground of objection to answer 138
30.08 Who to answer interrogatories 138
30.09 Failure to answer interrogatories 139
30.09.1 Default notice 139
30.10 Non-compliance with order 140
30.11 Answers as evidence 140
ORDER 31 141
DISCOVERY BY ORAL EXAMINATION 141
31.01 Definitions 141
31.02 When available 142
31.03 Party a corporation 142
31.04 How consent given 142
31.05 Effect of consent 142
31.06 Appointment of examiner 143
31.07 Attendance on examination 143
31.08 Party a corporation 143
31.09 Powers of examiner 144
31.10 Record of examination 144
31.11 How party to be examined 144
31.12 Procedure on objection to question 145
31.13 Order to answer question 145
31.14 Costs 146
ORDER 32 146
PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-
PARTY 146
32.01 Definitions 146
32.02 Privilege 147
32.03 Discovery to identify a defendant 147
32.04 Party an applicant 148
32.05 Discovery from prospective defendant 148
32.06 Party an applicant 149
32.07 Discovery from non-party 149
32.08 Procedure 149
32.09 Inspection of documents 150
32.10 Directions as to documents 150
32.11 Costs 150
ORDER 33 151
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MEDICAL EXAMINATION AND SERVICE OF HOSPITAL
AND MEDICAL REPORTS 151
33.01 Application 151
33.02 Counterclaim 151
33.03 Definitions 151
33.04 Notice for examination 153
33.05 Expenses 154
33.06 Report of examination 154
33.07 Service of reports 154
33.08 Time for service 155
33.08.1 Other medical reports to be served 155
33.09 Proceeding against medical expert 155
33.10 Material for Court 156
33.11 Medical report admissible 157
33.12 No evidence unless disclosed in report 158
ORDER 34 158
DIRECTIONS 158
34.01 Powers of Court 158
34.02 Nature of directions 158
34.03 Admissions and agreements 159
34.04 Duty to obtain directions 159
ORDER 34A 159
CASE MANAGEMENT 159
PART 1—COURT LISTS 159
34A.01 Provisions of Order 34A to prevail 159
34A.02 Court Lists 160
34A.03 Damages List 160
34A.04 Divisions of Damages List 161
34A.05 Business List 161
34A.06 Divisions of Business List 162
34A.07 WorkCover List 163
34A.08 Long Cases List 163
34A.09 Entry of proceeding in list 164
34A.10 Mode of entry in list 164
34A.11 Transfer from one list to another 165
PART 2—LIST JUDGES 165
34A.12 Judges in charge 165
34A.13 Other Judges 165
34A.14 Control of proceedings 165
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PART 3—DISMISSAL OF PROCEEDING 166
34A.15 Dismissal of proceeding 166
34A.16 Reinstatement 167
PART 4—DISCOVERY BY LEAVE 167
34A.17 Discovery of documents and interrogatories 167
34A.17.1 Discovery other than by affidavit 167
PART 5—DIRECTIONS HEARING 167
34A.18 Application 167
34A.19 Directions 167
34A.19.1 Expert reports 168
34A.20 Admissions and agreements 169
34A.21 Mediation or arbitration 169
34A.22 Reference to special referee 169
34A.23 Personal attendance of parties 169
34A.24 Time for first directions hearing 170
34A.25 Other directions hearing 170
PART 6—SETTING DOWN FOR TRIAL 170
34A.26 No certificate of readiness 171
PART 7—COURT BOOK 171
34A.27 No trial without court book 171
34A.28 Time for serving and filing court book 171
34A.29 Failure to include document in court book 171
34A.30 Court book of each party 171
34A.31 Court book of plaintiff 171
34A.32 Court book of defendant 172
34A.33 Court book of third party 172
34A.34 Court book of fourth or subsequent party 173
ORDER 35 173
ADMISSIONS 173
35.01 Definition 173
35.02 Voluntary admission of facts 174
35.03 Notice for admission of facts 174
35.04 Judgment on admissions 174
35.05 Notice for admission of documents 175
35.06 Cost of non-admission of fact or document 175
35.07 Restrictive effect of admission 176
35.08 Notice to produce documents 176
ORDER 36 176
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AMENDMENT 176
36.01 General 176
36.02 Failure to amend within time limited 178
36.03 Amendment of pleading 178
36.04 Disallowance of pleading amendment 178
36.05 How pleading amendment made 178
36.06 Pleading to an amended pleading 179
36.07 Amendment of judgment or order 179
ORDER 37 179
INSPECTION, DETENTION AND PRESERVATION OF
PROPERTY 179
37.01 Inspection, detention etc. of property 179
37.02 Inspection from prospective defendant 180
37.03 Procedure 181
37.04 Disposal of perishable property 182
37.05 Payment into Court in discharge of lien 182
37.06 Interim distribution of property or income 183
37.07 Jurisdiction of Court not affected 183
ORDER 38 183
INJUNCTIONS 183
38.01 When Court may grant 183
38.02 Application before trial 184
38.03 Costs and expenses of non-party 184
ORDER 39 184
RECEIVERS 184
39.01 Application and definitions 184
39.02 Appointment of receiver 185
39.03 Service of order 185
39.04 Consent of receiver 185
39.05 Security by receiver 185
39.06 Remuneration of receiver 186
39.07 Receiver's accounts 186
39.08 Default by receiver 186
39.09 Directions to receivers 187
ORDER 40 187
EVIDENCE GENERALLY 187
40.01 Definition 187
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40.02 Evidence of witness 188
40.03 Contrary direction as to evidence 188
40.04 Examination on affidavit 189
40.05 Evidence of particular facts 189
40.06 Revocation or variation of order 190
40.07 Deposition as evidence 190
40.08 Proof of Court documents 191
40.09 Evidence of consent 191
40.10 Defamation 191
40.11 Subsequent use of evidence at trial 192
40.12 Attendance and production 192
40.13 View 192
ORDER 41 192
EVIDENCE BY DEPOSITION 193
41.01 Order for witness examination 193
41.02 Documents for examiner 193
41.03 Appointment for examination 193
41.04 Conduct of examination 194
41.05 Examination of additional persons 194
41.06 Objection 194
41.07 Taking of depositions 195
41.08 Authentication and filing 196
41.09 Report of examiner 196
41.10 Default of witness 196
41.11 Witness allowance 197
41.12 Perpetuation of testimony 197
ORDER 41A—APPLICATION UNDER SECTION 42E(1) OF
THE EVIDENCE ACT 1958 198
41A.01 Application of Order 198
41A.02 Form of application 198
41A.03 Filing 198
41A.04 Service 198
41A.05 Duty of applicant 198
41A.06 Payment of costs 199
ORDER 42 199
SUBPOENAS 199
42.01 Definitions 199
42.02 Attendance by subpoena 199
42.03 Filing subpoena 200
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42.04 Service 200
42.05 Conduct money 201
42.06 Production before date for attendance 201
42.07 Setting aside 201
42.08 Conduct money insufficient to meet expense and loss 201
42.08.1 Witnesses' fees and expenses 202
42.09 Production of wages records 203
42.10 Subpoena for attendance before another court etc. 203
ORDER 43 204
AFFIDAVITS 204
43.01 Form of affidavit 204
43.02 Affidavit by illiterate or blind person 205
43.03 Content of affidavit 205
43.04 Affidavit by two or more deponents 206
43.05 Alterations 206
43.06 Annexures and exhibits 206
43.07 Time for swearing 207
43.08 Irregularity 207
43.09 Filing 207
43.10 Affidavit sworn before party, solicitor 207
ORDER 44 208
EXPERT EVIDENCE 208
44.01 Definition 208
44.02 Application 208
44.03 Service of statement of expert evidence 209
44.04 Making statement of other party evidence 209
44.05 No evidence unless disclosed in statement 209
ORDER 45 210
ORIGINATING MOTION 210
45.01 Definitions 210
45.02 Evidence by affidavit 210
45.03 Judgment where no appearance 210
45.04 Proceedings after appearance 211
45.05 Special procedure 211
ORDER 46 212
APPLICATIONS 213
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46.01 Application 213
46.02 Application by summons 213
46.03 Notice of application 213
46.04 Form and filing of summons 213
46.05 Service 214
46.05.1 Day for hearing 214
46.06 Adjournment 215
46.07 Absence of party to summons 215
46.08 Setting aside 216
ORDER 47 216
PLACE AND MODE OF TRIAL 216
47.01 Place of trial 216
47.02 Mode of trial 216
47.03 Payment of jury fees 217
47.04 Separate trial of question 217
47.05 Judgment after determination of preliminary question 218
47.06 Directions 218
ORDER 48 219
SETTING DOWN FOR TRIAL 219
48.01 Application 219
48.02 Setting down by plaintiff 219
48.03 Setting down by defendant and dismissal for want of
prosecution 220
48.04 Certificate of readiness 220
48.05 Interlocutory steps after setting down 220
48.06 Order for setting down 221
48.07 Order for setting down of country case 221
48.08 Entry in list for trial 222
48.09 Sittings for which trial set down 222
48.10 Further consideration 222
48.11 Papers for Judge 223
48.12 Pre-trial conferences 224
ORDER 49 225
TRIAL 225
49.01 Order of evidence and addresses' 225
49.02 Absence of party 226
49.03 Adjournment of trial 227
49.04 Death before judgment 227
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ORDER 50 227
REFERENCES OUT OF COURT 227
50.01 Reference to special referee 227
50.02 Directions as to procedure 228
50.03 Report on reference 228
50.04 Use of report 229
50.05 Committal 229
50.06 Remuneration of special referee 229
50.07 Reference to mediator 229
50.08 Reference to arbitration 230
ORDER 51 231
ASSESSMENT OF DAMAGES OR VALUE 231
51.01 Mode of assessment 231
51.02 Notice to other party 231
51.03 Procedure on assessment 232
51.04 Order for damages 232
51.05 Default judgment against some defendants 232
51.06 Continuing cause of action 232
51.07 Value of goods 232
ORDER 52 232
ACCOUNTS AND INQUIRIES 232
52.01 Account or inquiry at any stage 232
52.02 Directions for account 233
52.03 Form and verification of account 233
52.04 Filing and service of account 234
52.05 Notice of charge, error in account 234
52.06 Allowances 234
52.07 Delay 234
52.08 Fund distribution before all entitled ascertained 234
52.09 Restrictive covenant 235
ORDER 53 235
SUMMARY PROCEEDING FOR RECOVERY OF LAND 235
53.01 Application 235
53.02 Originating process 236
53.03 Who to be defendant 236
53.04 Affidavit in support 236
53.05 Service 236
53.06 Occupier made a party 237
53.07 Judgment for possession 237
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53.08 Warrant of possession 237
ORDER 54 238
ADMINISTRATION OF ESTATES AND EXECUTION OF
TRUSTS 238
54.01 Definitions 238
54.02 Relief without general administration 238
54.03 Parties 239
54.04 Notice of proceeding and judgment 240
54.05 Relief in proceeding by originating motion 241
54.06 Judgment in administration proceeding 241
54.07 Conduct of sale 242
ORDER 55 242
SALE OF LAND BY ORDER OF COURT 242
55.01 Definition 242
55.02 Power to order sale 242
55.03 Notice of application 242
55.04 Manner of sale 243
55.05 Certifying result of sale 244
55.06 Mortgage, exchange or partition 244
ORDER 58 245
APPEALS FROM INFERIOR JURISDICTIONS 245
58.02 Appeals from inferior courts 245
ORDER 59 246
JUDGMENTS AND ORDERS 246
59.01 General relief 246
59.02 Date of effect 246
59.03 Time for compliance 246
59.04 Statement of reasons for judgment 247
59.05 Notice of judgment to non-party 247
59.06 Consent judgment or order by filing 249
59.07 Consent to judgment or order by party not in attendance 251
ORDER 60A 252
AUTHENTICATION OF JUDGMENTS AND ORDERS 252
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60A.01 Definition 252
60A.02 How judgment or order authenticated 252
60A.03 When authentication required or permitted 252
60A.04 Judge, Master or Registrar to authenticate judgment given
or order 253
60A.05 Registrar to authenticate judgment entered or order of the
Registrar 253
60A.06 Form of judgment or order 253
60A.07 Drawing up and lodging of judgment or order 253
60A.08 Recitals in judgments and orders 254
60A.09 Drawing up of judgment or order by Registrar 254
60A.10 Copy of judgment or order 255
ORDER 61 255
JUDGMENT DEBT INSTALMENT ORDERS 255
61.01 Definitions 255
61.02 Application under section 6 or 8 255
61.03 Instalment agreement under section 7 257
61.04 Summons for oral examination of judgment debtor 257
61.05 Notice of instalment order confirmed, varied or cancelled 259
61.06 Order for imprisonment 259
61.07 Certificate of payment 259
61.08 Notices 259
ORDER 62 260
SECURITY FOR COSTS 260
62.01 Definitions 260
62.02 When security for costs may be ordered 260
62.03 Manner of giving security 261
62.04 Failure to give security 261
62.05 Variation or setting aside 261
ORDER 63A 262
COSTS 262
PART 1—PRELIMINARY 262
63A.01 Definitions and application 262
63A.02 General powers of Court 263
63A.03 Time for costs order and payment 263
63A.04 Costs of question or part of proceeding 264
63A.05 By whom costs to be taxed 264
63A.06 Officers of Court to assist each other 265
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63A.07 Taxed or other costs provision 265
63A.08 Default judgment 265
63A.09 Costs in other court or tribunal 266
63A.10 No order for taxation required 266
63A.11 Enforcement of order of taxing officer 267
63A.12 Costs in account 267
PART 2—ENTITLEMENT TO COSTS 267
63A.13 Order for payment 267
63A.14 Extension or abridgment of time 267
63A.15 Discontinuance or withdrawal 267
63A.16 Offer of compromise 268
63A.16.1 Failure to make discovery or answer interrogations 268
63A.16.2 Proceeding or counterclaim dismissed 268
63A.17 Amendment 268
63A.18 Non-admission of fact or document 268
63A.19 Interlocutory injunction 269
63A.20 Interlocutory application 269
63A.21 Inquiry as to ownership of property 269
63A.21.1 Costs in proceedings before Registrar 269
63A.22 Costs reserved 270
63A.22.1 Evidence transcript costs 270
63A.23 Costs liability of lawyer 270
63A.24 Money claim in wrong court 272
63A.25 Other claim in wrong court 273
63A.26 Trustee or mortgagee 273
PART 3—COSTS OF PARTY IN A PROCEEDING 273
63A.27 Application 273
63A.28 Bases of taxation 274
63A.29 Party and party basis 274
63A.30 Solicitor and client basis 274
63A.31 General basis 274
63A.32 Where solicitor and client basis applicable 274
63A.33 Party as trustee 275
63A.34A Costs and fees 275
PART 4—COSTS OF TAXATION 278
63A.36 Costs of taxation 278
PART 5—PROCEDURE ON PARTY AND PARTY TAXATION 279
63A.37 Application 279
63A.38 Summons for taxation 279
63A.39 Filing of bill 280
63A.40 Service of bill 280
63A.41 Defendant not appearing 280
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63A.42 Content of bill of costs 281
63A.43 Disbursement or fee not paid 281
63A.44 Charge of lawyer out of Victoria 282
63A.45 Amendment of bill 282
63A.46 Agreement as to part of bill 282
63A.47 Objection to bill 282
63A.48 Discretionary costs 283
63A.49 Taxation where no objection 284
63A.50 Attendance of parties 284
63A.51 Reference to Judge 284
63A.52 Notice to person interested in fund 284
63A.53 Application by person liable to pay 285
63A.54 Solicitor at fault 285
63A.55 Cross costs 286
63A.56 Order on taxation 287
63A.57 Review by Judge 287
PART 6—COSTS OF SOLICITOR 289
63A.58 Application 289
63A.59 Basis of taxation of costs payable by client 289
63A.60 Basis of taxation of costs payable otherwise than by client 289
63A.61 Solicitor and client basis 290
63A.63 Procedure on taxation 290
63A.64 Appointment to tax 290
63A.65 Reference for taxation 291
63A.66 Inclusion in bill of disbursement not made 291
63A.67 Failure to serve bill or tax 291
PART 7—ALLOWANCES ON TAXATION GENERALLY 292
63A.68 Application and interpretation 292
63A.69 Necessary or proper costs 292
63A.70 Unnecessary etc. work 293
63A.71 Gross sum for costs 293
63A.72 Increased allowance 293
63A.73 Copy documents 293
63A.74 Folio 294
63A.75 Service of several documents 294
63A.76 Defendants with same solicitor 294
63A.77 Procuring evidence 294
63A.78 Negotiations 294
63A.79 Conference 295
63A.80 Retainer of counsel 295
63A.81 Advice and other work of counsel 295
63A.82 Refreshers 295
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63A.83 Premature brief 297
63A.84 Barrister and solicitor 297
63A.85 Bill reduced by a sixth 297
ORDER 64A 298
APPEALS TO THE COURT OF APPEAL OF THE SUPREME
COURT 298
64A.01 Definitions 298
64A.02 Application 298
64A.03 Notice of Appeal 298
64A.04 Statements of evidence etc. to be submitted to trial judge 298
64A.05 Judge's notes 299
ORDER 66 299
ENFORCEMENT OF JUDGMENTS AND ORDERS 299
66.01 Definitions 299
66.02 Payment of money 299
66.03 Possession of land 300
66.04 Delivery of goods 301
66.05 Doing or abstaining from doing any act 301
66.06 Attendance of natural person 302
66.07 Attendance of corporation 303
66.08 Attendance before another court etc. 303
66.09 Contempt 304
66.10 Service before committal or sequestration 304
66.11 Substituted performance 305
66.12 Enforcement by or against non-party 306
66.13 Non-performance of condition 306
66.14 Matters occurring after judgment 306
66.15 Order in aid of enforcement 306
66.16 Stay of execution 307
ORDER 67 307
DISCOVERY IN AID OF ENFORCEMENT 307
67.01 Definitions 307
67.02 Order for examination or production 307
67.03 Corporation 308
67.04 Procedure 308
67.05 Conduct money 309
67.06 Record of examination 309
ORDER 68 309
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WARRANTS OF EXECUTION GENERALLY 309
68.01 Definitions 309
68.02 Leave to issue warrant 309
68.03 Separate execution for costs 311
68.04 Issue of warrant of execution 311
68.05 Duration 312
68.06 Costs of prior execution 313
68.07 Provision for enforcing payment of money 313
68.08 Form of warrant of execution 313
ORDER 69 314
WARRANT OF SEIZURE AND SALE 314
69.01 Definitions 314
69.03 Two or more warrants 314
69.04 Order of sale 314
69.05 Time, place and mode of sale 315
69.06 Advertisement of sale 315
69.07 Notional possession of goods 317
ORDER 70 317
WARRANT OF POSSESSION 318
70.01 Payment of money 318
70.02 Removal of goods on warrant of possession 318
ORDER 71 318
ATTACHMENT OF DEBTS 318
71.01 Definitions and application 318
71.02 What debts attachable 319
71.03 Bank account 319
71.04 Filing and service of garnishee summons 320
71.05 Evidence on application for garnishee summons 321
71.06 Garnishee summons 322
71.07 Service of summons 322
71.08 What debts attached, when and to what extent 323
71.09 Payment to judgment creditor 323
71.10 Dispute of liability by garnishee 324
71.11 Claim by other person 324
71.12 Discharge of garnishee 325
71.13 Money in court 325
71.14 Costs 325
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ORDER 72 326
ATTACHMENT OF EARNINGS 326
72.01 Definitions 326
72.02 Application for attachment of earnings order 328
72.03 Making of order 329
72.04 Attendance of or information about judgment debtor 329
72.05 Contents of order 332
72.06 Service of order 333
72.07 Employer to make payments 334
72.08 Attachment of earnings in place of other orders 334
72.09 Execution after attachment of earnings 335
72.10 Discharge or variation of order 335
72.11 Cessation of attachment of earnings order 335
72.12 Two or more orders in force 336
72.13 When varied order taken to be made 336
72.14 Notice to judgment debtor of payments 337
72.15 Determination of earnings 337
72.16 Service 338
ORDER 73 338
CHARGING ORDERS AND STOP ORDERS AND NOTICES 338
73.01 Definitions 338
73.02 Order charging securities 340
73.03 Filing and service of charging summons 340
73.04 Evidence on application for charging summons 340
73.05 Charging summons 341
73.06 Service of summons 341
73.07 Effect of service of summons 341
73.08 Order on summons hearing 342
73.09 Effect and enforcement of charge 342
73.10 Variation or discharge of order 342
73.11 Order charging funds in court 342
73.12 Stop order for funds in court 343
73.13 Stop notice on corporation stock not in court 344
73.14 Effect of stop notice 345
73.15 Withdrawal or discharge of stop notice 345
73.16 Prohibition of transfer of or payment on stock 345
ORDER 74 346
ENFORCEMENT BY APPOINTMENT OF RECEIVER 346
74.01 Procedure 346
74.02 Appointment of receiver by way of equitable execution 346
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ORDER 75 346
CONTEMPT 346
PART 1—INTERPRETATION 347
75.01 Definition 347
PART 2—SUMMARY PROCEEDINGS FOR CONTEMPT 347
75.02 Contempt in face of the Court 347
75.03 Procedure on hearing of charge 347
75.04 Custody pending disposal of charge 347
PART 3—OTHER PROCEDURE FOR CONTEMPT 347
75.05 Application 347
75.06 Procedure 348
75.07 Application by Registrar 348
75.08 Arrest of respondent 349
75.08.1 Arrest pending contempt hearing 348
75.09 Warrant for arrest 350
PART 4—COMMITTAL AND COSTS 350
75.10 Application 350
75.11 Punishment for contempt 350
75.12 Discharge 350
75.13 Warrant for committal 351
75.14 Costs 351
ORDER 76 351
SEQUESTRATION 351
76.01 Definitions 351
76.03 Order for sequestration 351
76.04 Application 352
ORDER 77A 353
AUTHORITY OF MASTERS 353
77A.01 Authority 353
77A.02 Limitation upon authority 353
77A.03 Reference by Master to Judge 353
ORDER 78 354
PROCEEDINGS UNDER JUDGMENT 354
78.01 Definition 354
78.02 Directions in judgment 353
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78.03 Claims 355
78.04 Interest on debts 357
78.05 Interest on legacies 357
78.06 Account or inquiry by Master 357
78.07 Master's order 358
ORDER 79 357
FUNDS IN COURT 358
PART 1—INTERPRETATION 358
79.01 Definition 358
PART 2—GENERAL 358
79.02 Application of money 358
79.03 Money in court for person under disability 359
79.04 Payment into court for person under disability 358
79.05 Certificate of receipt 360
79.06 Delay 360
PART 3—FUNDS 361
79.10 Proceeding in another court 360
__________________
FORMS 363
Form 5A—Writ 363
Form 5B—Originating motion between parties 366
Form 5C—Originating motion between parties 368
Form 5D—Originating motion 369
Form 5E—Originating motion for recovery of land under Order 53 370
Form 7A—Letter of request for service of document 373
Form 8A—Notice of appearance 374
Form 8B—Notice of conditional appearance 374
Form 10A—Heading and notice of counterclaim where defendant new
party 375
Form 10B—Notice of appearance to counterclaim 377
Form 11A—Third party notice 378
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Form 11B—Person liable in respect of damage claiming contribution
against another 381
Form 12A—Notice of claim to goods taken in execution 382
Form 14AA—Third party notice 383
Form 15A—Order approving compromise of claim of minor 386
Form 15B—Order approving compromise of claim under Part III of
Wrongs Act for benefit of minor 388
Form 19A—Notice of a constitutional matter 390
Form 29A—Notice for discovery 390
Form 29B—Affidavit of documents 391
Form 29C—Notice to produce 393
Form 29D—Notice of default in making discovery of documents 393
Form 30A—Notice of default in answering interrogatories 394
Form 35A—Notice to admit 395
Form 35B—Notice of dispute 396
Form 39A—Deed of guarantee 397
Form 41A—Order for examination within Victoria 398
Form 41B—Order for examination out of Victoria 399
Form 41AA—Notice of application under section 42E(1) of the Evidence
Act 1958 401
Form 42A—Subpoena to give evidence 404
Form 42B—Subpoena for production 405
Form 42C—Subpoena for production and to give evidence 407
Form 42D—Subpoena for production 409
Form 43A—Certificate identifying exhibit 411
Form 45A—Summons on originating motion 412
Form 46A—Summons 413
Form 48A—Notice of trial 413
Form 48B—Certificate of readiness for trial 414
Form 48C—Indorsement on certificate of readiness for trial 418
Form 53A—Judgment in summary proceeding for recovery of land 418
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Form 53B—Warrant of possession in summary proceeding for recovery
of land 419
Form 59A—Notice of judgment 420
Form 60A—General form of judgment given 421
Form 60B—General form of judgment entered 422
Form 60C—General form of order 423
Form 60D—Judgment at trial by judge without a jury 424
Form 60E—Judgment at trial by judge with a jury 425
Form 60F—Judgment or order at trial of preliminary question 426
Form 60G—Default judgment for debt 427
Form 60H—Default judgment for recovery of land 427
Form 60J—Interlocutory or interlocutory and final judgment for damages
or value in default 428
Form 60K—Final judgment for damages or value in default 429
Form 60L—Interlocutory or interlocutory and final judgment for
detention of goods in default 430
Form 61A—Application to master for order for payment of judgment debt
by instalments 431
Form 61B—Application to master for order in substitution for order for
payment of judgment debt by instalments 432
Form 61C—Application to the court for variation or cancellation or order
for payment of judgment debt by instalments 434
Form 61D—Order relating to payment of judgment debt by instalments 436
Form 61E—Notice of order or refusal of order by master for payment of
judgment debt by instalments 437
Form 61F—Notice of objection 438
Form 61G—Notice of hearing of objection 439
Form 61H—Notice by court relating to payment of judgment debt by
instalments 440
Form 61J—Instalment agreement 442
Form 61K—Order for instalment payment of judgment debt after
agreement 444
Form 61L—Notice of order for instalment payment of judgment debt after
agreement 445
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Form 61M—Summons to attend for oral examination 446
Form 61N—Warrant of apprehension on disobedience to summons 447
Form 61P—Notice to judgment creditor of summons or warrant to
judgment debtor 448
Form 61Q—Notice by court of confirmation, variation or cancellation
of judgment debt instalment order 449
Form 61R—Certificate of payment 450
Form 63AA—Summons for taxation of costs 451
Form 64AA—Notice of appeal 452
Form 64AB—Application for copy of judge's notes 452
Form 68A—Warrant of seizure and sale 453
Form 68B—Warrant of possession 454
Form 68C—Warrant of delivery 455
Form 69A—Advertisement of sale by the sheriff 457
Form 71A—Garnishee summons 458
Form 71B—Garnishee order 460
Form 71C—Garnishee order 461
Form 72A—Attachment of earnings summons 462
Form 72B—Affidavit in support of application for attachment of earnings
orders 463
Form 72C—Judgment debtor's statement of financial situation 464
Form 72D—Summons for an order to attend for examination or
furnish particulars 468
Form 72E—Affidavit support of summons for an order to attend for
examination or furnish particulars 469
Form 72F—Order that judgment debtor attend or give statement 470
Form 72G—Order that person indebted to or employer of judgment
debtor give statement 471
Form 72H—Attachment of earnings order 472
Form 72J—Notice to employer 474
Form 72K—Notice by employer that judgment debtor is not in his employ476
Form 72L—Notice of cessation of attachment of earnings order 477
Form 73A—Charging summons 478
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Form 73B—Affidavit as to stock 480
Form 73C—Notice as to stock 481
Form 75A—Arrest warrant in summary proceedings for contempt in
face of County Court 482
Form 75AA—Arrest warrant pending contempt hearing 482
Form 75B—Arrest warrant in contempt proceedings by summons or
originating motion 483
Form 75C—Committal warrant 484
__________________
APPENDIX A—Scale of Costs 485
NOTES 515
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1
STATUTORY RULES 1999
S.R. No. 20/1999
County Court Act 1958
County Court Rules of Procedure in Civil
Proceedings 1999
A majority of the Judges of the County Court makes the
following Rules:
ORDER 1
PRELIMINARY
PART 1—GENERAL
1.01 Title
These Rules constitute Chapter I of the Rules of
the County Court and are entitled the County
Court Rules of Procedure in Civil Proceedings
1999.
1.02 Object
The object of these Rules is to re-make with
amendments the rules of procedure in civil
proceedings in the County Court of Victoria.
1.03 Authorising provisions
These Rules are made under section 78 of the
County Court Act 1958 and all other powers.
1.03.1 Commencement
These Rules come into operation on 27 February
1999.
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1.03.2 Revocation
Chapter I of the Rules of the County Court, the
County Court Rules of Procedure in Civil
Proceedings 19891 are revoked.
PART 2—APPLICATION OF RULES
1.04 * * * * *
1.05 Application
(1) Subject to this Rule, these Rules apply to every
civil proceeding commenced in the Court
whenever commenced.
(2) These Rules do not apply to a civil proceeding to
which Chapter II of the Rules of the County Court
applies except as that Chapter provides.
1.06 Jurisdiction not affected
Nothing in these Rules shall limit the jurisdiction,
power or authority which the Court had
immediately before the commencement of these
Rules.
1.07–1.12 * * * * *
PART 3—INTERPRETATION
1.13 Definitions
(1) In these Rules, unless the context or subject matter
otherwise requires—
"Act" includes any Act passed by the Parliament
of the Commonwealth;
"Australia" has the meaning ascribed by the
Service and Execution of Process Act 1992
of the Commonwealth;
"bodily injury" includes any impairment of
mental condition or disease;
r. 1.03.2
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3
"Convention" means a Convention with a foreign
country, made with or made and extended to
the Commonwealth of Australia or the State
of Victoria, with respect to legal proceedings
in civil or criminal matters;
"Convention country" means a foreign country
to which a Convention applies;
"corporation" means any body corporate,
whether formed within or out of Victoria;
"defendant" includes respondent;
"discovery" includes discovery and inspection of
documents and discovery by written
interrogatories or oral examination and
"make discovery of documents" means
make an affidavit of documents complying
with the requirements of the Rules, file the
affidavit and serve a copy on the party or
person entitled to the discovery;
"judgment given" means a judgment given by
the Court at the trial of a proceeding or on
the hearing of an application in a proceeding;
"Master" means a Master of the County Court;
"officer", in relation to a corporation, means
director, secretary, receiver, receiver and
manager, official manager, liquidator and
trustee administering a compromise or
arrangement made between the corporation
and another person or persons;
"order made" means an order made by the Court
at the trial of a proceeding or on the hearing
of an application in a proceeding;
"originating process" means any process by
which a proceeding is commenced, and
includes a third party notice and, where a
r. 1.13
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counterclaim is made against a person not
previously a party to the proceeding in which
the counterclaim is made, the counterclaim;
"pleading" includes an indorsement of claim on a
writ which constitutes a statement of claim,
and includes particulars of any pleading;
"proceeding" means any matter in the Court
commenced by writ or originating motion or
as otherwise provided by or under any Act or
these Rules;
"question" means any question, issue or matter
for determination by the Court, whether of
fact or law or of fact and law, raised by the
pleadings or otherwise at any stage of a
proceeding by the Court, by any party or by
any person not a party who has a sufficient
interest;
"solicitor" means a legal practitioner within the
meaning of the Legal Practice Act 1996 not
being a legal practitioner who practises as a
barrister only;
"the Act" means the County Court Act 1958.
(2) In these Rules, unless the context or subject matter
otherwise requires, a reference to a Judge is a
reference to the Court constituted by a Judge and a
reference to a Master is a reference to the Court
constituted by a Master.
(3) Where by these Rules a form is prescribed for use,
that form shall be used with any necessary
variation or modification.
r. 1.13
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5
PART 4—MISCELLANEOUS
1.14 Exercise of power
(1) In exercising any power under these Rules the
Court—
(a) shall endeavour to ensure that all questions
in the proceeding are effectively, completely,
promptly and economically determined;
(b) may give any direction or impose any term or
condition it thinks fit.
(2) The Court may exercise any power under these
Rules of its own motion or on the application of a
party or of any person who has a sufficient
interest.
1.15 Procedure wanting or in doubt
(1) Where the manner or form of the procedure—
(a) for commencing, or for taking any step, in a
proceeding; or
(b) by which the jurisdiction, power or authority
of the Court is exercisable—
is not prescribed by these Rules or by or under any
Act, or for any other reason there is doubt as to the
manner or form of that procedure, the Court shall
determine what procedure is to be adopted and
may give directions.
(2) An act done in accordance with a determination or
direction under paragraph (1) is regular and
sufficient.
(3) An application for directions with respect to the
commencement of a proceeding shall be made by
originating motion in which no person is named as
defendant and an application for directions with
respect to a proceeding already commenced shall
be made by summons.
r. 1.14
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1.16 Act by corporation
Where the Court makes an order that a corporation
do any act, it may order that the act be done by the
corporation by its appropriate officer.
1.17 Corporation a party
Except where otherwise provided by or under any
Act or these Rules, a corporation, whether or not a
party, shall not take any step in a proceeding save
by a solicitor.
1.18 Power to act by solicitor
Unless the context or subject matter otherwise
requires, any act, matter or thing which under the
Act or these Rules or otherwise by law is required
or permitted to be done by a party may be done by
his solicitor.
1.19 Continuation of address for service
Subject to these Rules, where in relation to a
proceeding a party has an address for service
under these Rules, that is the address for service of
the party until the conclusion of the proceeding
whether at first instance or on appeal.
ORDER 2
NON-COMPLIANCE WITH THE RULES
2.01 Effect of non-compliance
(1) A failure to comply with these Rules is an
irregularity and does not render a proceeding or a
step taken, or any document, judgment or order
therein a nullity.
(2) Subject to Rules 2.02 and 2.03, where there has
been a failure to comply with these Rules, the
Court may—
r. 1.16
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(a) set aside the proceeding, either wholly or in
part;
(b) set aside any step taken in the proceeding, or
any document, judgment or order therein;
(c) exercise its powers under these Rules to
allow amendments and to make orders
dealing with the proceeding generally.
2.02 Originating process
The Court shall not wholly set aside any
proceeding or the originating process by which the
proceeding was commenced on the ground that the
proceeding was commenced by the wrong process.
2.03 Application to set aside for irregularity
The Court shall not set aside any proceeding or
any step taken in any proceeding or any document,
judgment or order therein on the ground of a
failure to which Rule 2.01 applies on the
application of any party unless the application is
made within a reasonable time and before the
applicant has taken any fresh step after becoming
aware of the irregularity.
2.04 Dispensing with compliance
The Court may dispense with compliance with any
of the requirements of these Rules, either before or
after the occasion for compliance arises.
ORDER 3
TIME, SITTINGS AND COURT OFFICE
3.01 Calculating time
(1) Any period of time fixed by these Rules or by any
judgment or order or by any document in any
r. 2.02
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proceeding shall be calculated in accordance with
this Rule.
(2) Where a time of one day or longer is to begin on,
or to be calculated from, a day or event, the day or
the day of the event shall be excluded.
(3) Where a time of one day or longer is to end on, or
to be calculated to, a day or event, the day or the
day of the event shall be included.
(4) Where a period of five days or less would include
a day on which the office of the Court is closed,
that day shall be excluded.
(5) Where the last day for doing any act at the office
of the Court is a day on which the office is closed,
the act may be done on the next day the office is
open.
3.02 Extension and abridgement
(1) The Court may extend or abridge any time fixed
by these Rules or by any order fixing, extending or
abridging time.
(2) The Court may extend time under paragraph (1)
before or after the time expires whether or not an
application for the extension is made before the
time expires.
(3) Any time fixed by these Rules or by any order
fixing, extending or abridging time may be
extended by consent without an order of the Court.
3.03 Fixing time
Where no time is fixed by these Rules or by any
judgment or order for doing any act in a
proceeding, the Court may fix a time.
r. 3.02
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3.04 Process in vacation
(1) In calculating the time fixed by these Rules or by
any order fixing, extending or abridging time, the
period from 24 December to 9 January next
following shall be excluded, unless the Court
otherwise orders.
(2) Where the Court makes an order under paragraph
(1), the party on whose application the order was
made shall serve a copy of the order—
(a) in the case of an order with respect to the
time for appearance to originating process,
with the originating process;
(b) in any other case, on every other party
forthwith.
3.05 Time for service
(1) In this Rule "document" does not include
originating process.
(2) In calculating the time fixed by these Rules or by
any order fixing, extending or abridging time any
document which is served after 4.00 p.m. or on
any day the office of the Court is closed shall be
taken to have been served on the next day the
office is open.
3.06 Proceedings after a year
Where a year or more has elapsed since any party
has taken any step in a proceeding, any party
desiring the proceeding to continue shall give to
every other party not less than one month's notice
in writing of his desire.
3.07 Sittings and vacation
The sittings and vacations of the Court shall be
held at such times as the Judges shall direct.
r. 3.04
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3.08 Office
The office of the Court shall be open on every day
of the year except Saturdays, Sundays, the
Tuesday following Easter, and every day duly
appointed as a general public holiday.
3.09 Office hours
The hours of the office of the Court shall be from
9.30 a.m. to 4.00 p.m.
ORDER 4
PROCESS IN THE COURT
4.01 How proceeding commenced
Except where otherwise provided by or under any
Act or these Rules a proceeding in the Court shall
be commenced by writ or by originating motion.
4.02 Interlocutory application
Unless the Court otherwise orders an interlocutory
or other application in a proceeding made on
notice to any person shall be by summons and, if
not on notice, shall be made orally.
4.03 Names of parties
(1) Except as provided by paragraph (2), a person
who commences a proceeding shall be called a
plaintiff and a person against whom a proceeding
is commenced shall be called a defendant.
(2) A person who commences a proceeding under
Rule 32.03, 32.05, 37.02 or 75.06(3) shall be
called an applicant and the person against whom
the proceeding is commenced shall be called a
respondent.
(3) * * * * *
r. 3.08
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(4) A person who appeals shall be called an appellant
and any other party to the appeal shall be called a
respondent.
(5) Where any appellant or respondent is a party, the
appellant or respondent shall be so identified in
any document in the proceeding in relation to the
appeal by the expression "(Plaintiff)",
"(Defendant)", "(Applicant)" or other description
of party after the word "Appellant" or
"Respondent" in the title of the document.
4.04 When writ required
Except as provided by Rules 4.05 and 4.06, every
proceeding shall be commenced by writ.
4.05 When originating motion required
A proceeding shall be commenced by originating
motion—
(a) where there is no defendant to the
proceeding; or
(b) where by or under any Act an application is
authorised to be made to the Court; or
(c) where required by these Rules.
4.06 Optional commencement by originating motion
A proceeding may be commenced by originating
motion where—
(a) it is unlikely that there will be any substantial
dispute of fact; and
(b) for that reason it is appropriate that there be
no pleadings or discovery.
4.07 Continuation as writ of proceeding by originating
motion
(1) Where a proceeding in which there is a defendant
is commenced by originating motion, but ought by
r. 4.04
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or under any Act or these Rules to have been
commenced by writ, or might in the opinion of the
Court more conveniently continue as if
commenced by writ—
(a) the Court may order that the proceeding
continue as if it had been commenced by writ
and may, in particular, order that any
affidavits already filed in the proceeding
shall stand in place of pleadings, with or
without liberty to any of the parties to add
thereto or to apply for particulars thereof or
that pleadings be served between the parties,
and that the parties have discovery of each
other; and
(b) by virtue of that order, the proceeding shall
be taken to have been duly commenced for
all purposes on the day the originating
motion was filed.
(2) Any reference in these Rules to a proceeding
commenced by writ shall, unless the context
otherwise requires, be taken to include a reference
to a proceeding in respect of which an order has
been made under paragraph (1).
4.08 Urgent case
In an urgent case, the Court may, on the
application of a person who intends to commence
a proceeding and upon his undertaking to
commence the proceeding within such time as the
Court directs, make any order which the Court
might make if the applicant had commenced the
proceeding and the application were made in the
proceeding.
r. 4.08
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ORDER 5
CONTENT, FILING AND DURATION OF
ORIGINATING PROCESS
5.01 Definition
In this Order—
"originating process" means writ, originating
motion or other process by which a
proceeding is commenced.
5.02 Form of originating process
(1) A writ shall be in Form 5A.
(2) An originating motion shall be in Form 5B, 5C,
5D or 5E, whichever is appropriate.
5.03 Appearance
(1) A writ and, unless there is no defendant, an
originating motion shall be indorsed with a
statement to the effect that if the defendant does
not file an appearance within the time stated in the
originating process the plaintiff may obtain
judgment against him without further notice.
(2) Except as provided in paragraph (3) the time for
appearance to be stated in the originating process
shall be as provided by Rule 8.04.
(3) An originating motion under Order 53 which
names a defendant shall state that the defendant
may file an appearance on or before the day
specified in the originating motion for application
to the Master.
5.04 Indorsement of claim on writ
(1) A writ shall contain an indorsement of claim.
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(2) The indorsement of claim shall be—
(a) a statement of claim; or
(b) a statement sufficient to give with reasonable
particularity notice of the nature of the claim
and the cause thereof and of the relief or
remedy sought in the proceeding.
(3) An indorsement of claim on a writ shall constitute
a statement of claim if, but only if, it is headed
"Statement of Claim".
5.05 Indorsement of claim on motion
An originating motion shall specify the relief or
remedy sought and the Act, if any, under which
the claim is made, and, where it includes any
question to be answered, the question shall be
stated.
5.06 Indorsement as to capacity
Where a party sues or is sued in a representative
capacity, the originating process shall be indorsed
with a statement showing that capacity.
5.07 Address of parties
(1) An originating process shall be indorsed with—
(a) the address of the plaintiff, and, where the
plaintiff sues in person and that address is
outside Victoria, also an address within
Victoria for service in accordance with
Rule 6.06;
(b) the address of any defendant;
(c) where the plaintiff sues by a solicitor, the
name or firm and the business address within
Victoria of the solicitor and also, if the
solicitor is the agent of another, the name or
firm and the business address of the
principal.
r. 5.05
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(2) Where any originating process is indorsed with the
name of a solicitor—
(a) the solicitor shall, on request in writing by a
defendant declare in writing whether the
originating process was filed by him; and
(b) if the solicitor declares in writing that the
originating process was not filed by him, the
Court may stay the proceeding.
5.08 Place and mode of trial
(1) A writ shall be indorsed with a statement of the
place and mode of trial desired.
(2) If the writ is not indorsed with a statement as to
the place of trial, the plaintiff shall be taken to
desire trial in Melbourne, and, if the writ is not
indorsed with a statement as to the mode of trial,
the plaintiff shall be taken to desire trial without a
jury.
(3) The plaintiff may indorse an originating motion
with a statement of the place of trial desired, and,
if the originating motion is not so indorsed, he
shall be taken to desire trial in Melbourne.
5.09 Stay on payment of costs
(1) Where in a proceeding commenced by writ the
plaintiff claims a debt only, the writ shall be
indorsed with a statement of the amount of the
debt and the amount claimed for costs and a
statement that the proceeding will come to an end
if, within the time limited for filing an appearance,
the defendant pays the amounts so claimed to the
plaintiff or his solicitor.
(2) Where a writ is indorsed in accordance with
paragraph (1), and the defendant pays the amounts
claimed within the time limited for filing an
r. 5.08
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appearance, then, except as provided by paragraph
(3), the proceeding shall come to an end.
(3) The defendant may, notwithstanding the payment,
have the costs taxed, and, if more than one-sixth
shall be disallowed, the plaintiff's solicitor shall
pay the costs of taxation.
5.10 Petition
A petition shall include at the end a statement of
the person intended to be served, if any, or, if no
person is intended to be served, a statement to that
effect.
5.11 Filing of originating process
(1) (a) A proceeding shall be commenced by filing
the originating process;
(b) A proceeding is filed when the Registrar or
his proper officer receives the originating
process and seals and dates the same.
(2) The originating process filed shall be signed by
the solicitor for the plaintiff or by the plaintiff
where the plaintiff sues in person.
(3) Upon an originating process being filed or at any
later time, the Registrar on the request of the
plaintiff shall seal a sufficient number of copies of
the originating process for service and proof of
service.
(4) In a proceeding commenced by originating
motion, where the relief or remedy sought
includes the construction of any instrument other
than an Act, a copy of the instrument or, where it
exceeds 25 pages, of the relevant parts shall be
lodged with the Registrar at the time the
originating motion is filed.
(5) If the Registrar's office is closed and the plaintiff
produces an originating process to the Court and
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undertakes that the originating process will be
lodged in the Registrar's office on the day the
office is next open, the Court may initial the
originating process and such number of copies as
are required for service or proof of service, and
upon such initialling the originating process shall
be taken to have been filed.
5.12 Duration and renewal of originating process
(1) A writ or an originating motion shall be valid for
service for one year after the day it is filed.
(2) Where a writ or an originating motion has not
been served on a defendant, the Court may from
time to time by order extend the period of validity
for such period from the day of the order as the
Court directs, being not more than one year from
that day.
(3) An order may be made under paragraph (2) before
or after expiry.
(4) The plaintiff may apply under paragraph (2)
without notice to the defendant, but if the Court
considers that the defendant ought to be heard the
Court shall adjourn the further hearing and direct
the plaintiff to give notice to the defendant by
summons or otherwise.
(5) Where an order is made under paragraph (2), the
Registrar shall stamp any sealed copy originating
process for service with the date of the order and
the extended date of validity.
r. 5.12
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ORDER 6
SERVICE
6.01 When personal service necessary
Any document required or permitted to be served
in a proceeding may be served personally, but
unless personal service is required by these Rules
or by order, need not be served personally.
6.02 Personal service of originating process
(1) Except where otherwise provided by or under any
Act or these Rules, originating process shall be
served personally on each defendant.
(2) Where a defendant to any originating process files
an unconditional appearance, the originating
process shall be taken to have been served on him
personally on the day on which the appearance is
filed or on such earlier day as may be proved.
6.03 How personal service effected
(1) Personal service of a document is effected by
leaving a copy of the document with the person to
be served or, if he does not accept the copy, by
putting the copy down in his presence and telling
him the nature of the document.
(2) In the case of originating process, the copy for
service shall be sealed in accordance with
Rule 5.11.
(3) To effect personal service it shall not be necessary
to show the original document.
6.04 Service on particular defendants
Personal service of a document may be effected by
serving the document in accordance with
Rule 6.03, in the case of—
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(a) a corporation, on the mayor, chairman,
president or other head officer of the
corporation, or on the town clerk, clerk,
treasurer, manager, secretary or other similar
officer of the corporation or, where provision
is made by or under any Act for service on a
corporation by serving the document in
accordance with that provision;
(b) a minor, on a parent or guardian of the
minor, and, if there is none, on the person
with whom he resides or in whose care he is;
(c) a handicapped person as defined in
Rule 15.01, on—
(i) the person who, in accordance with
Rule 15.03(2), would be entitled to be
litigation guardian in any proceeding to
which the handicapped person was
party; or
(ii) if there is no such person, the person
with whom the handicapped person
resides or in whose care he is;
(d) the Crown in right of the Commonwealth or
the Commonwealth, on the Secretary to the
Attorney-General's Department or any person
authorised under section 55E(4) of the
Judiciary Act 1903 of the Commonwealth to
act in the name of the Australian
Government Solicitor;
(e) the Crown in right of Victoria or the State of
Victoria, on the Victorian Government
Solicitor.
6.05 Motor car or accidental death or bodily injury
(1) In any proceeding in which the plaintiff claims
damages in respect of death or bodily injury
caused by or arising out of the use of a motor car,
r. 6.05
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originating process shall not be taken to have been
served on the defendant unless a copy of the
originating process is served on the defendant in
accordance with these Rules and also on the
Transport Accident Commission.
(1.1) In any proceeding in which the plaintiff claims
damages in respect of death or bodily injury
suffered on or after 1 September 1985 arising out
of or in the course of employment, originating
process shall not be taken to have been served on
the defendant unless a copy of the originating
process is served on the defendant in accordance
with these Rules and also on the Accident
Compensation Commission.
(2) Where in a proceeding to which paragraph (1) or
(1.1) applies a copy of the originating process has
been duly served on the defendant but not on the
Transport Accident Commission or the Accident
Compensation Commission (as the case requires)
the Court may, notwithstanding paragraph (1),
order that the originating process be taken to have
been served on the defendant.
6.06 Address for service
(1) The address for service of a plaintiff shall be—
(a) where the plaintiff sues by a solicitor, the
business address of that solicitor indorsed on
the originating process or, where the solicitor
acts by an agent, the business address of the
agent;
(b) where the plaintiff sues in person, his address
in Victoria indorsed on the originating
process.
(2) The address for service of a defendant shall be as
provided in Rule 8.06.
r. 6.06
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6.06.1 Solicitor changing address
(1) Where the business address of a solicitor or of the
agent of a solicitor given in accordance with
Rule 6.06 or 8.06 is changed, the solicitor shall
forthwith file notice of the change and serve a
copy of the notice on every party.
(2) Upon the filing and service of notice in
accordance with paragraph (1) the address for
service of the party for whom the solicitor acts
shall be the new business address of the solicitor
or, if the business address of the agent of the
solicitor is changed, the new business address of
the agent, stated in the notice.
(3) If a solicitor required under paragraph (1) to file
and serve notice does not do so, a document not
required to be served personally on the party for
whom the solicitor acts may, until notice is filed
and served, be served on the party either at—
(a) the address given in accordance with
Rule 6.06; or
(b) the new business address of the solicitor or
of the agent, as the case may be.
6.07 How ordinary service effected
(1) Where personal service of a document is not
required, the document may be served—
(a) by leaving the document at the proper
address of the person to be served on any day
on which the Registrar's office is open;
(b) by posting the document to the person to be
served at his proper address;
(c) where provision is made by or under any Act
for service of a document on a corporation,
by serving the document in accordance with
that provision;
r. 6.06.1
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(d) where the solicitor for a party has facilities
for the reception of documents in an
exchange box in a document exchange, by
leaving the document in that exchange box
or in another exchange box for transmission
to that exchange box; or
(e) where the solicitor for a party has facilities
for the reception by telephone transmission
of a facsimile of a document, by telephone
transmission of the document in accordance
with paragraph (2.1).
(2) For the purpose of paragraph (1), the proper
address of a person shall be the address for service
of that person in the proceeding, but if at the time
service is to be effected that person has no address
for service, the proper address shall be—
(a) in the case of an individual, his usual or last
known place of residence or of business;
(b) in the case of individuals suing or being sued
in the name of a firm, the principal or last
known place of business of the firm;
(c) in the case of a corporation, the registered or
principal office of the corporation.
(2.1) A document that is served by telephone
transmission shall include a cover page stating—
(a) the name, address and telephone number of
the sender;
(b) the name of the solicitor to be served;
(c) the date and time of transmission;
(d) the total number of pages transmitted,
including the cover page;
(e) the telephone number from which the
document is transmitted;
r. 6.07
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(f) the name and telephone number of a person
to contact in the event of any problem in
transmission of the document;
(g) that the transmission is by way of service
under Rule 6.07(1)(e).
(3) Where no person can be found at the address for
service of a plaintiff who sues or a defendant who
has appeared in person, any document in the
proceeding may be served on that plaintiff or
defendant by leaving one copy at such address and
by filing another copy.
(3.1) A party who serves a document by filing in
accordance with paragraph (3) shall indorse upon
a backsheet or on the back of the last sheet a
statement that the document is filed as such
service.
(4) Service in accordance with paragraph (1)(a) or
(1)(e) which is effected after 4.00 p.m. shall for
the purpose of calculating any period of time after
that service be taken to have been effected on the
next day the Registrar's office is open.
(5) The day of service of a document shall, where the
document—
(a) is sent by post in accordance with paragraph
(1)(b)—be taken to be the day it would be
delivered in the normal course of post;
(b) is delivered into the facilities of a document
exchange in accordance with paragraph
(1)(d)—be taken to be the day following the
day upon which it is so delivered or, where a
document is delivered on a Friday, be taken
to be the following Monday—
or on such other day as may be proved.
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(6) In this Rule, "document exchange" means any
document exchange for the time being approved
by the Chief Justice on the recommendation of the
Council of the Law Institute of Victoria.
6.08 Identity of person served
For the purposes of proof of service, evidence of a
statement by a person of his identity or that he
holds some office is evidence of his identity or
that he holds that office.
6.09 Acceptance of service by solicitor
(1) This Rule applies to service of a document
whether or not required to be served personally.
(2) If a solicitor makes a note on a copy of a
document that service of the document is accepted
on behalf of a person, the document shall, unless
the solicitor is shown not to have had authority to
accept service, be taken to have been served on the
person on the day the solicitor made the note.
(3) Paragraph (2) does not limit other service of the
document on the person or proof of such service.
6.10 Substituted service
(1) Where for any reason it is impracticable to serve a
document in the manner required by these Rules,
the Court may order that, instead of service, such
steps be taken as the Court specifies for the
purpose of bringing the document to the notice of
the person to be served.
(2) Where the Court makes an order under paragraph
(1), the Court may order that the document be
taken to have been served on the happening of any
specified event, or on the expiry of any specified
time.
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(3) The Court may make an order under paragraph (1)
notwithstanding that the person to be served is out
of Victoria or was out of Victoria when the
proceeding commenced.
6.11 Confirmation of informal service
Where for any reason a document has not been
served in the manner required by these Rules, but
the document has come to the notice of the person
to be served, the document shall be taken to have
been served on the day it came to his notice.
6.12 Service by filing
(1) Where the service of a document on a party to a
proceeding is required or permitted, but personal
service is not required, and that party is in default
of appearance or has no address for service in the
proceeding, the filing of the document shall,
unless the Court otherwise orders, have effect as
service of the document on that person.
(2) A party who serves a document by filing in
accordance with paragraph (1) shall indorse upon
a backsheet or on the back of the last sheet a
statement that the document is filed as such
service.
6.13 Service on agent
(1) Where a contract has been entered into within
Victoria by or through an agent residing or
carrying on business within Victoria on behalf of a
principal residing or carrying on business out of
Victoria, originating process in a proceeding
relating to or arising out of such contract may by
leave of the Court given before the determination
of such agent's authority or of his business
relations with the principal be served on such
agent.
r. 6.11
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(2) Where an order giving leave is made under
paragraph (1)—
(a) the order shall limit a time within which the
defendant must file an appearance; and
(b) a copy of the order and of the originating
process shall forthwith be sent by pre-paid
post to the defendant at his address out of
Victoria.
6.14 Service under contract
Where the parties to any proceeding have, before
or after the commencement of the proceeding,
agreed that originating process or any other
document in the proceeding may be served on a
party or on a person on behalf of a party in a
manner or at a place (whether within or outside
Victoria) specified in the agreement, service in
accordance with the agreement shall be sufficient
service.
6.15 Recovery of vacant land
(1) In a proceeding for the recovery of land, the Court
may—
(a) if satisfied that no person appears to be in
possession of the land and that service of
originating process cannot be otherwise
effected on any defendant without undue
delay or expense, authorise service on that
defendant to be effected by affixing a copy of
the originating process to some conspicuous
part of the land;
(b) if satisfied that no person appears to be in
possession of the land and that service could
not otherwise have been effected on any
defendant without undue delay or expense,
order that service already effected by affixing
a copy of the originating process to some
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conspicuous part of the land shall be taken to
be good service on that defendant.
(2) This Rule has effect notwithstanding that the
defendant is outside Victoria at the time of
affixing the copy of the originating process.
6.16 Service of notice by the Court
Where, under these Rules or under an order of the
Court, any notice or other document is to be given
to or served on any person by the Court, the notice
or document shall, unless the Rules otherwise
provide or the Court otherwise orders, be
sufficiently given or served in any manner in
which a document not requiring personal service
may be served under this Order.
6.17 Affidavit of service
(1) In the case of personal service of a document, an
affidavit of service of the document shall state by
whom the document was served, the hour of the
day, day of the week and date on which it was
served, the place of service and the manner of
identification of the person served.
(2) In any other case of service of a document, an
affidavit of service of the document shall state
with relevant dates the facts constituting service.
(3) An affidavit of service of originating process shall
exhibit a sealed copy of the originating process.
r. 6.16
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ORDER 7
SERVICE OUT OF AUSTRALIA
PART 1—WHEN SERVICE OUT IS ALLOWED
7.01 For what claims
(1) Originating process may be served out of
Australia without order of the Court where—
(a) the whole subject-matter of the proceeding is
land situate within Victoria (with or without
rents or profits) or the perpetuation of
testimony relating to land so situate;
(b) any act, deed, will, contract, obligation or
liability affecting land situate within Victoria
is sought to be construed, rectified, set aside
or enforced in the proceeding;
(c) any relief is sought against a person
domiciled or ordinarily resident within
Victoria;
(d) the proceeding is for the administration of
the estate of a person who died domiciled
within Victoria or is for any relief or remedy
which might be obtained in any such
proceeding;
(e) the proceeding is for the execution, as to
property situate within Victoria, of the trusts
of a written instrument of which the person
to be served is a trustee and which ought to
be executed according to the law of Victoria;
(f) the proceeding is one brought to enforce,
rescind, dissolve, rectify, annul or otherwise
affect a contract, or to recover damages or
other relief in respect of the breach of a
contract, and the contract—
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(i) was made within Victoria;
(ii) was made by or through an agent
carrying on business or residing within
Victoria on behalf of a principal
carrying on business or residing out of
Victoria; or
(iii) is governed by the law of Victoria;
(g) the proceeding is brought in respect of a
breach committed within Victoria of a
contract wherever made, even though that
breach was preceded or accompanied by a
breach out of Victoria that rendered
impossible the performance of that part of
the contract which ought to have been
performed within Victoria;
(h) the proceeding is founded on a contract the
parties to which have agreed that the Court
shall have jurisdiction to entertain a
proceeding in respect of the contract;
(i) the proceeding is founded on a tort
committed within Victoria;
(j) the proceeding is brought in respect of
damage suffered wholly or partly in Victoria
and caused by a tortious act or omission
wherever occurring;
(k) an injunction is sought ordering the
defendant to do or refrain from doing
anything within Victoria, whether or not
damages are also claimed in respect of a
failure to do or the doing of that thing;
(l) the proceeding is properly brought against a
person duly served within or out of Victoria
and another person out of Australia is a
necessary or proper party to the proceeding;
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(m) the proceeding is either brought by a
mortgagee of property situate within Victoria
(other than land) and seeks the sale of the
property, the foreclosure of the mortgage or
delivery by the mortgagor of possession of
the property or brought by a mortgagor of
property so situate (other than land) and
seeks redemption of the mortgage,
reconveyance of the property or delivery by
the mortgagee of possession of the property,
but does not seek except so far as
permissible under any other paragraph of this
Rule any personal judgment or order for the
payment of any moneys due under the
mortgage;
(n) the proceeding is brought under the
Commonwealth Act known as the Civil
Aviation (Carrier's Liability) Act 1959.
(2) In paragraph (1)(m) "mortgage" includes a
charge or lien, "mortgagee" means a person
entitled to, or interested in, a mortgage and
"mortgagor" means a person entitled to, or
interested in, property subject to a mortgage.
7.02 Indorsement on originating process
(1) Originating process served on any defendant out
of Australia in accordance with this Order shall, at
the time of service on that defendant, contain an
indorsement stating the facts and the particular
paragraph of Rule 7.01 relied upon in support of
such service.
(2) If the originating process does not contain the
indorsement referred to in paragraph (1) at the
time it is filed, the plaintiff may, in accordance
with paragraph (3), amend the originating process
to include the indorsement.
r. 7.02
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(3) The originating process shall be taken to be
amended upon the filing by the plaintiff of a copy
of the originating process with the indorsement
included.
(4) Upon the filing of an amended copy of originating
process under paragraph (3) or at any later time,
the Registrar on the request of the plaintiff shall
seal a sufficient number of copies of the
originating process as amended for service and
proof of service.
7.03 Mode of service out of Australia
Originating process which is to be served out of
Australia need not be served personally as long as
it is served in accordance with the law of the
country in which service is effected.
7.04 Leave to proceed where no appearance
(1) Where no appearance is filed by a party served
with originating process out of Australia, the
Court, if satisfied that the subject matter of the
proceeding so far as it concerns that party is
within Rule 7.01 and that the originating process
was duly served on that party, may order that the
plaintiff shall be at liberty to proceed.
(2) An application for an order under paragraph (1)
shall be supported by affidavit or other evidence
showing the grounds on which the application is
made.
7.05 Stay, setting aside service etc.
(1) The Court may make an order of a kind referred to
in Rule 8.09 on application by a party served with
originating process out of Australia.
(2) Without limiting paragraph (1), the Court may
make an order under this Rule on the ground—
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(a) that service out of Australia is not authorised
by these Rules; or
(b) that Victoria is not a convenient forum for
the trial of the proceeding.
(3) The Court may make an order under this Rule
before an application is made under Rule 7.04 or
before an order of the Court is made on such an
application.
7.06 Service of other process by leave
The Court may by order allow service out of
Australia of the following—
(a) originating process in a proceeding in
relation to the wardship, custody,
management or welfare of a minor or the
custody, management or welfare of a person
who is incapable of managing his affairs;
(b) an originating motion in a proceeding
brought under any Act;
(c) any summons, order or notice in any
proceeding.
7.07 Service of counterclaim or third party notice
(1) This Rule applies to—
(a) a counterclaim against the plaintiff and
another person joined as defendant under
Rule 10.03 where the person joined is not
already a party to the proceeding; and
(b) a third party notice filed in accordance with
Order 11.
(2) A counterclaim or third party notice may be
served out of Australia without leave where the
claim made by the defendant in the counterclaim
or third party notice is of such a kind that if the
claim were made by writ or other originating
r. 7.06
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process, the originating process could be served
out of Australia without order of the Court under
Rule 7.01.
(3) Where paragraph (2) does not apply, the Court
may by order allow service out of Australia of a
counterclaim or third party notice.
7.08 Application for leave
(1) An application for leave under Rule 7.06 or 7.07
shall be supported by affidavit or other evidence
showing the grounds upon which the application
is made.
(2) The Court may grant such leave if the case is a
proper one for service out of Australia.
(3) Upon making an order under Rule 7.06 or 7.07 the
Court may give directions with respect to service
and the time for filing an appearance or for
attendance before the Court or otherwise.
(4) Where any document is served out of Australia by
order of the Court made under Rule 7.06 or 7.07, a
copy of the order, a copy of any affidavit made in
support of the application for the order and, unless
the Court otherwise orders, a copy of any exhibit
referred to in the affidavit shall be served with the
document.
PART 2—SERVICE IN FOREIGN COUNTRY
7.09 Application
This Part applies to the service of any document
for the purpose of a proceeding in the Court—
(a) in a Convention country pursuant to a
Convention; or
(b) in such other country as the Attorney-
General, by instrument filed in the
proceeding, specifies.
r. 7.08
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7.10 Documents required
A person (in this Part called "the applicant")
requiring a document to be served in another
country under this Part shall—
(a) lodge with the Registrar—
(i) the document to be served;
(ii) unless English is an official language in
the country concerned, a translation of
the document in accordance with
Rule 7.11;
(iii) a copy of the document and of any
translation;
(iv) such further copies of the document and
of the translation as the Registrar
directs; and
(v) if any special manner of service is
required, a request for service in that
manner and, unless English is an
official language of the country
concerned, a translation of the request;
and
(b) file—
(i) a copy of each of the documents
mentioned in paragraph (a); and
(ii) a request and undertaking in accordance
with Rule 7.12.
7.11 Translation
A translation of a document lodged under Rule
7.10 shall—
(a) be a translation into an official language of
the country in which service is required; and
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(b) bear a certificate of the translator, in that
language, stating that it is an accurate
translation of the document.
7.12 Request and undertaking
(1) A request and undertaking filed under Rule 7.10
shall contain—
(a) a request by the applicant to the Registrar
that a sealed copy of the document to be
served be transmitted to the country
concerned for service on a specified person;
and
(b) if the applicant requires service pursuant to a
Convention, a reference to the Convention;
and
(c) an undertaking by the solicitor for the
applicant or, where there is no solicitor, by
the applicant, to pay to the Registrar an
amount equal to the expenses incurred in
consequence of the request for service.
(2) The Registrar may require the applicant or his
solicitor to give security to his satisfaction for the
expenses referred to in paragraph (1)(c).
7.13 Procedure on lodgment and filing
(1) Where documents are lodged and filed in
accordance with Rule 7.10, the Registrar shall seal
the documents lodged with the seal of the Court
and shall send them to the Attorney-General for
transmission for service, together with such letter
of request, if any, as may be necessary.
(2) A letter of request shall be in Form 7A.
7.14 Evidence of service
Where the Registrar has sent documents to the
Attorney-General in accordance with Rule 7.13,
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and afterwards a certificate purporting to be a
certificate of a judicial authority or other
responsible person in the country concerned or of
a British or Australian consular authority in that
country as to service or attempted service or non-
service is filed, the certificate shall be evidence of
the matters stated in the certificate.
7.15 Order for payment of expenses
Where a person has given an undertaking in
accordance with Rule 7.10 and 7.12, and does not
within 14 days after service on him of an account
of expenses incurred in consequence of the request
for service pay to the Registrar the amount of the
expenses, the Court may, on application by the
Registrar—
(a) order the applicant or his solicitor (where the
undertaking was given by the solicitor) or
both of them to pay the amount of the
expenses to the Registrar; and
(b) stay the proceeding until payment so far as
concerns the whole or any part of any claim
for relief by the applicant.
ORDER 8
APPEARANCE
8.01 Application
This Order applies to a proceeding commenced by
writ or originating motion.
8.02 Appearance before taking step
Except as provided by Rule 8.08 or 8.09 or by
leave of the Court, a defendant shall not take any
step in a proceeding unless he has first filed an
appearance.
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8.03 Who to file appearance
(1) Except as provided in Rule 15.02, a defendant
may file an appearance by a solicitor or in person.
(2) A corporation may file an appearance by any
person duly authorised by it to so act.
8.04 Time for appearance
Unless the Court otherwise orders, the time stated
in the writ or originating motion for the defendant
to file an appearance shall be—
(a) where the originating process is to be served
in Victoria, not less than 10 days after
service;
(b) where the originating process is to be served
out of Victoria and in another part of
Australia, 21 days after service;
(c) where the originating process is to be served
in New Zealand or in Papua New Guinea,
not less than 28 days after service;
(d) in any other case, not less than 42 days after
service.
8.05 Mode of filing appearance
(1) An appearance shall be filed by filing a notice of
appearance in Form 8A.
(2) Upon the filing of a notice of appearance the
Registrar shall seal with the seal of the Court a
sufficient number of copies of the notice for
service.
(3) The defendant shall, on the day the defendant files
a notice of appearance, take an appropriate step in
accordance with Rule 6.07(1) to serve a sealed
copy of the notice on the plaintiff.
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(4) The Court may order the defendant to pay any
costs of the plaintiff occasioned by the failure of
the defendant to comply with paragraph (3).
8.06 Address for service of defendant
(1) A notice of appearance shall state—
(a) if the defendant appears by a solicitor, the
address of the defendant and the name or
firm and the business address within Victoria
of the solicitor and also, if the solicitor is an
agent of another, the name or firm and the
business address of the principal;
(b) if the defendant appears in person, the
address of the defendant and, if that address
is out of Victoria, an address of the
defendant within Victoria.
(2) The address for service of a defendant shall be—
(a) where the defendant appears by a solicitor,
the business address of the solicitor stated in
the notice of appearance or, where the
solicitor acts by an agent, the business
address of the agent;
(b) where the defendant appears in person, the
address of the defendant in Victoria stated in
the notice of appearance.
(3) Notwithstanding paragraphs (1) and (2), the
address for service of the defendant duly stated in
a notice of appearance to which the Service and
Execution of Process Act 1992 of the
Commonwealth applies shall be such address for
service.
r. 8.06
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(4) Where the address of a defendant stated in a notice
of appearance is not genuine, the Court may set
aside the appearance and allow the plaintiff to
continue the proceeding as if the appearance had
not been filed.
8.07 Late appearance
(1) A defendant may file an appearance at any time,
but after judgment an appearance shall not be filed
without the leave of the Court.
(2) A defendant who files an appearance after the time
for appearance stated in the writ or originating
motion shall, unless the Court otherwise orders,
have the same time for serving a defence or for
any other purpose as if he had filed an appearance
on the last day so stated.
8.08 Conditional appearance
(1) A defendant may file a conditional appearance.
(2) A notice of conditional appearance shall be in
Form 8B.
(3) A conditional appearance shall have effect for all
purposes as an unconditional appearance, unless
on application by the defendant the Court
otherwise orders.
(4) Application under paragraph (3) shall be made by
summons within 14 days after the day the
conditional appearance is filed.
8.09 Setting aside writ or originating motion
Notwithstanding Rule 8.08 the Court may exercise
its jurisdiction to—
(a) set aside a writ or originating motion or its
service;
(b) make an order under Rule 46.08;
r. 8.07
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(c) stay a proceeding—
on application made by the defendant before filing
an appearance, whether conditional or not.
ORDER 9
JOINDER OF CLAIMS AND PARTIES
9.01 Joinder of claims
A plaintiff may join any number of claims against
a defendant whether the plaintiff makes the claims
in the same or in different capacities and whether
the claims are made against the defendant in the
same or in different capacities.
9.02 Permissive joinder of parties
Two or more persons may be joined as plaintiffs
or defendants in any proceeding—
(a) where—
(i) if separate proceedings were brought by
or against each of them, some common
question of law or fact would arise in
all the proceedings; and
(ii) all rights to relief claimed in the
proceeding (whether they are joint,
several or alternative) are in respect of
or arise out of the same transaction or
series of transactions; or
(b) where the Court, before or after the joinder,
gives leave to do so.
9.03 Joinder of necessary parties
(1) Except by order of the Court or as provided by or
under any Act, where the plaintiff claims any
relief to which any other person is entitled jointly
with him, all persons so entitled shall be parties to
r. 9.01
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the proceeding, and any person who does not
consent to being joined as a plaintiff shall be made
a defendant.
(2) Where the plaintiff claims relief against a
defendant who is liable jointly with some other
person and also liable severally, that other person
need not be made a defendant to the proceeding.
(3) Where persons are liable jointly, but not severally,
under a contract, and the plaintiff in respect of that
contract claims against some but not all of those
persons, the Court may stay the proceeding until
the other persons so liable are added as
defendants.
(4) The Court may make an order under paragraph (1)
before or after the non-joinder.
9.04 Joinder inconvenient
Notwithstanding Rules 9.01 and 9.02, where any
joinder of claims or of parties may embarrass or
delay the trial of the proceeding or cause prejudice
to any party or is otherwise inconvenient, the
Court may order that—
(a) there be separate trials;
(b) any claim be excluded;
(c) any party be compensated by an award of
costs or otherwise for being required to
attend, or be relieved from attending, any
part of a trial in which he has no interest;
(d) any person made a party cease to be a party
on condition that he be bound by the
determination of the questions in the
proceeding or without any such condition.
r. 9.04
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9.05 Effect of misjoinder or non-joinder of party
A proceeding shall not be defeated by reason of
the misjoinder or non-joinder of any party or
person, and the Court may determine all questions
in the proceeding so far as they affect the rights
and interests of the parties.
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order
that—
(a) any person who is not a proper or necessary
party, whether or not he was one originally,
cease to be party;
(b) any of the following persons be added as a
party, namely—
(i) a person who ought to have been joined
as a party or whose presence before the
Court is necessary to ensure that all
questions in the proceeding are
effectually and completely determined
and adjudicated upon; or
(ii) a person between whom and any party
to the proceeding there may exist a
question arising out of or relating to or
connected with any claim in the
proceeding which it is just and
convenient to determine as between that
person and that party as well as between
the parties to the proceeding;
(c) a person to whom paragraph (b) applies be
substituted for one to whom paragraph (a)
applies.
r. 9.05
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9.07 Procedure for addition of party
(1) A person shall not be added as a plaintiff without
his consent signified in writing or in such other
manner as the Court orders.
(2) An application by a person for an order adding
him as a party shall, unless the Court otherwise
orders, be supported by an affidavit showing his
interest in the questions in the proceeding or the
question to be determined as between him and any
party to the proceeding.
(3) Without limiting Rule 9.06(b), where a person not
a party to a proceeding for the recovery of land is
in possession by himself or by a person claiming
under him of the whole or any part of the land, the
Court may order that he be added as a defendant.
9.08 Defendant dead at commencement of proceeding
(1) Where a cause of action survives against the estate
of a deceased person, a person wishing to obtain a
judgment in respect of that cause of action may, if
no grant of representation has been made, bring a
proceeding against the estate of the deceased.
(2) Without limiting paragraph (1), a proceeding
brought against "the estate of A.B. deceased" shall
be taken to have been brought against his estate in
accordance with that paragraph.
(3) A proceeding commenced naming as defendant a
person who was dead when the proceeding
commenced shall, if the cause of action survives
and no grant of representation had been made at
the time the proceeding commenced, be taken to
have been commenced against the estate of the
deceased in accordance with paragraph (1).
(4) A proceeding naming as defendant a person who
was dead when the proceeding commenced shall,
if the cause of action survives and a grant of
r. 9.07
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representation had been made at the time the
proceeding commenced, be taken to have been
commenced against the personal representative of
the deceased as representing the estate of the
deceased.
(5) In a proceeding within paragraph (1) or (3), the
Court may appoint a person to represent the estate
of the deceased for the purpose of the proceeding
or, if a grant of representation has been made since
the commencement of the proceeding, order that
the personal representative of the deceased be
made a party to the proceeding, and order that the
proceeding be carried on against the person so
appointed or against the personal representative,
as if he had been substituted for the estate.
(6) * * * * *
(7) In any proceeding within paragraph (4), the Court
may order that the personal representative of the
deceased be made a party, and that the proceeding
be carried on against the personal representative as
representing the estate of the deceased.
(8) An application for an order under paragraph (5) or
(7) shall be made during the period of validity for
service of the writ or other originating process,
unless the Court otherwise orders.
(9) Before making an order under paragraph (5) the
Court may require notice to be given to any
insurer of the deceased who has an interest in the
proceeding and to any person having an interest in
the estate.
(10) Where no grant of representation has been made
any judgment or order given or made in the
proceeding shall bind the estate of the deceased to
the same extent as it would have been bound if a
grant had been made and a personal representative
r. 9.08
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of the deceased had been a party to the
proceeding.
(11) In this Rule "grant of representation" means a
grant of probate or administration in Victoria or
the resealing of a foreign grant in Victoria.
9.09 Change of party on death, bankruptcy
(1) Where a party to a proceeding dies, but the cause
of action survives, or where a party becomes
bankrupt, the proceeding shall not abate by reason
of the death or bankruptcy, but may be carried on
in accordance with paragraph (2).
(2) Where at any stage of a proceeding the interest or
liability of any party is assigned or transmitted to
or devolves upon some other person, the Court
may order that the other person be added as a
party to the proceeding or made a party in
substitution for the original party and that the
proceeding be carried on as so constituted.
(3) Unless the Court otherwise directs, the person on
whose application an order is made under
paragraph (2) shall serve the order on every party
to the proceeding and on every person who ceases
to be a party or becomes a party as plaintiff by
virtue of the order, and in the case of a person who
becomes a defendant, shall serve that person
personally with the order and with the writ or
other originating process sealed in accordance
with Rule 5.11.
(4) A person upon whom originating process is served
in accordance with paragraph (3) shall file an
appearance in the proceeding within such time as
the Court directs.
r. 9.09
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(5) Where an order is made without notice to a person
on whom the order is served, an application by
that person to set aside or vary the order shall be
made within 10 days after service.
9.10 Failure to proceed after death of party
(1) Where a party dies, and a cause of action in the
proceeding survives, but no order is made under
Rule 9.09(2) substituting a personal representative
of the deceased party as party, the Court may, on
application by a party or by a person to whom
liability on the cause of action survives on the
death, order that unless an order for substitution is
made within a specified time the proceeding be
dismissed so far as concerns relief on the cause of
action for or against the person to whom the cause
of action or the liability thereon survives on the
death.
(2) On making an order under paragraph (1) the Court
may, whether or not a grant of representation
within the meaning of Rule 9.08(11) has been
made, direct that if the proceeding is dismissed by
virtue of the order, costs of the proceeding be
awarded as follows—
(i) if the plaintiff dies, to the defendant against
the personal representative of the deceased
out of the estate of the deceased;
(ii) if the defendant dies, to the personal
representative of the deceased against the
plaintiff.
(3) Where the plaintiff dies, the Court shall not make
an order under paragraph (1) unless due notice of
the application for it has been given to the
personal representative, if any, of the deceased and
to any other person having an interest in the estate
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of the deceased who, in the opinion of the Court,
should be notified.
(4) Where a defendant serves a counterclaim, this
Rule shall, with any necessary modifications,
apply as if the plaintiff were the defendant and the
defendant were the plaintiff.
9.11 Amendment of proceedings after change of party
(1) Where an order is made under Rule 9.06 or 9.08,
the writ or other originating process filed in the
Court shall be amended accordingly within the
time specified in the order, and otherwise within
10 days after the making of the order, and a
reference to the order, the date of the order and the
date on which the amendment is made shall be
indorsed upon such originating process.
(2) The filing of a copy of the originating process
amended and indorsed as required by paragraph
(1) shall be a sufficient compliance with that
paragraph.
(3) Where an order is made under Rule 9.06 or 9.08
adding or substituting a person as defendant—
(a) the proceeding against the new defendant
commences upon the amendment of the filed
originating process in accordance with
paragraph (1) or (2);
(b) the plaintiff shall serve the amended
originating process on that defendant within
such time as the Court directs, and, unless
the Court otherwise orders, it shall be served
personally;
(c) unless otherwise ordered, where the new
defendant is an added defendant, the
proceeding shall be continued as if the new
defendant were an original defendant, and
where the new defendant is a substituted
r. 9.11
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defendant, all things done in the course of
the proceeding before it was commenced
against the new defendant shall have effect in
relation to the new defendant as they had in
relation to the old defendant, except that the
filing of appearance by the old defendant
shall not dispense with the filing of
appearance by the new.
9.12 Consolidation or trial together
(1) Where two or more proceedings are pending in the
Court, and—
(a) some common question of law or fact arises
in both or all of them;
(b) the rights to relief claimed therein are in
respect of or arise out of the same transaction
or series of transactions; or
(c) for any other reason it is desirable to make an
order under this Rule—
the Court may order the proceedings to be
consolidated, or to be tried at the same time or one
immediately after the other, or may order any of
them to be stayed until after the determination of
any other of them.
(2) Any order for the trial together of two or more
proceedings or for the trial of one immediately
after the other, shall be subject to the discretion of
the trial Judge.
9.13 Conduct of proceeding
The Court may give the conduct of the whole or
any part of a proceeding to such person as it thinks
fit.
r. 9.12
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ORDER 10
COUNTERCLAIM
10.01 Application of Order
This Order applies only to a proceeding
commenced by writ and to a proceeding in respect
of which an order has been made under
Rule 4.07(1).
10.02 When counterclaim allowed
(1) A defendant who has a claim against the plaintiff
may counterclaim in the proceeding.
(2) Rule 9.01 applies to a counterclaim as if the
plaintiff were the defendant and the defendant
were the plaintiff.
(3) A defendant who counterclaims shall plead his
defence and the counterclaim in one document
called a defence and counterclaim.
10.03 Counterclaim against plaintiff and another person
A defendant may join with the plaintiff as
defendant to the counterclaim any other person,
whether a party to the proceeding or not, who, if
the defendant were to bring a separate proceeding,
could be properly joined with the plaintiff as a
party in accordance with Rule 9.02.
10.04 Procedure after counterclaim against another person
(1) Where a defendant joins a person as defendant to
the counterclaim under Rule 10.03, the defence
and counterclaim shall contain a second title of the
proceeding showing who is plaintiff to the
counterclaim and who are defendants to the
counterclaim.
r. 10.01
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(2) The defendant shall serve on the person joined as
defendant to the counterclaim a copy of the
defence and counterclaim as follows—
(a) where the person so joined is already a party
to the proceeding, the copy shall be served
within the time fixed by Rule 14.04 for
serving a defence;
(b) where the person joined is not already a
party, the copy shall be served personally
and, unless the Court otherwise orders, shall
be served within 30 days after the expiration
of the time fixed by Rule 14.04 for serving a
defence.
(3) The person joined as a defendant to the
counterclaim shall, upon service of a copy of the
defence and counterclaim, if not already a party,
become a party and be in the same position as if
he had been sued as defendant in the ordinary way
by the defendant making the counterclaim.
(4) Without limiting paragraph (3), where the person
joined as defendant to the counterclaim is not
already a party to the proceeding, Orders 8, 11, 14
and 21 shall apply as if the counterclaim were a
writ the indorsement of claim on which
constituted a statement of claim in accordance
with Rule 5.04, the defendant making the
counterclaim were a plaintiff and the person
joined were a defendant in the proceeding.
(5) A counterclaim served on a defendant to the
counterclaim who is not already a party shall
commence with a notice in Form 10A.
(6) A notice of appearance by a defendant to a
counterclaim who is not already a party shall be in
Form 10B.
r. 10.04
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10.05 Trial of counterclaim
A counterclaim shall be tried at the trial of the
claim of the plaintiff unless the Court otherwise
orders.
10.06 Counterclaim inconvenient
Notwithstanding Rules 10.02 and 10.03, where a
counterclaim may embarrass or delay the trial of
the claim of the plaintiff or cause prejudice to any
party or otherwise cannot conveniently be tried
with that claim, the Court may—
(a) order separate trials of the counterclaim and
the claim of the plaintiff;
(b) order that any claim included in the
counterclaim be excluded;
(c) strike out the counterclaim without prejudice
to the right of the defendant to assert the
claim in a separate proceeding;
(d) order that any person joined as defendant to
the counterclaim cease to be a party to the
counterclaim.
10.07 Stay of claim
Where the defendant by his defence admits the
claim of the plaintiff and counterclaims, the Court
may stay the original proceeding until the
counterclaim is disposed of.
10.08 Counterclaim on stay etc. of original proceeding
A counterclaim may be prosecuted
notwithstanding that judgment is given for the
plaintiff in the original proceeding or that the
original proceeding is stayed, discontinued or
dismissed.
r. 10.05
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10.09 Judgment for balance
Where the plaintiff succeeds on the claim and the
defendant succeeds on the counterclaim and a
balance in favour of one of them results, the Court
may give judgment for the balance.
ORDER 11
THIRD PARTY PROCEDURE
11.01 Claim by third party notice
Where a defendant claims as against a person not
already a party to the proceeding (in this Order
called "the third party")—
(a) any contribution or indemnity;
(b) any relief or remedy relating to or connected
with the original subject-matter of the
proceeding and substantially the same as
some relief or remedy claimed by the
plaintiff; or
(c) that any question relating to or connected
with the original subject-matter of the
proceeding should be determined not only as
between the plaintiff and the defendant but
also as between either or both of them and
the third party—
the defendant may join the third party as a party to
the proceeding and make the claim against him by
filing and serving a third party notice.
11.02 Statement of claim on third party notice
A third party notice shall be in Form 11A, and
shall be indorsed with a statement of claim.
r. 10.09
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11.03 Time for appearance
(1) A third party notice shall state a time within which
the third party may file an appearance in the
proceeding.
(2) The time under paragraph (1) shall be—
(a) where the notice is to be served within
Victoria—not less than 10 days after service;
(b) where the notice is to be served out of
Victoria—within the time limited by Rule
8.04(b), (c) or (d) in the case of appearance
by a defendant to a writ, whichever is
appropriate, or within the time limited by any
order of the Court authorising service of the
notice.
11.04 Filing and service of third party notice
(1) A claim by third party notice shall be commenced
by filing a third party notice in the Court
whereupon the third party shall become a party to
the proceeding.
(2) A third party notice shall be filed and served on
the third party in the same manner as originating
process is filed and served on a defendant.
11.05 Time for third party notice
(1) In a proceeding commenced by writ or a
proceeding in respect of which an order has been
made under Rule 4.07(1) a defendant may not file
a third party notice until he has first served a
defence.
(2) A defendant may file a third party notice—
(a) within 30 days after the time limited for the
service of a defence; or
r. 11.03
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(b) at any time with the leave of the Court or the
consent in writing of the plaintiff and any
other party who has appeared.
11.06 Leave to file third party notice
An application for leave to file a third party notice
shall be made on notice to the plaintiff but the
Court may direct notice to be given to any other
party who has appeared.
11.07 Other requirements for service
(1) A third party notice shall be served on the third
party within 60 days after it is filed.
(2) Notwithstanding paragraph (1), the Court may fix
another period for the service of a third party
notice either before the notice is filed or at the
time it grants leave under Rule 11.05(2) to file the
notice.
(3) Where a third party notice has not been served on
the third party, the Court from time to time by
order may extend the period for service of the
notice for such further period it thinks fit.
(4) An order may be made under paragraph (3) before
or after expiry of the period for service.
(5) At the time of service of a third party notice on a
third party there shall also be served a copy of—
(a) any order or consent under Rule 11.05(2);
(ab) any order under paragraph (2) of this Rule
made before the third party notice was filed
fixing a period for service of the notice;
(ac) any order under paragraph (3) of this Rule;
(b) the writ or other originating process;
(c) any pleadings or affidavits filed and served
in the proceeding.
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(6) Within the period for service of the third party
notice on the third party a copy of the notice shall
be served on the plaintiff and on any other party
who has appeared.
(7) If a copy of the third party notice is not served in
accordance with paragraph (6), the Court may, on
application by the plaintiff or the third party, order
that the questions between the plaintiff and the
defendant be tried before and separately from the
questions between the defendant and the third
party.
11.08 Appearance by third party
(1) A third party may file an appearance within the
time limited for appearance or within such further
time as the Court may allow.
(2) A third party who files an appearance shall, on the
same day, serve a sealed copy of the notice of
appearance on the plaintiff.
(3) Rules 8.05 and 8.06 shall, with any necessary
modification, apply to an appearance by a third
party under this Rule.
11.09 Defence of third party
(1) A third party who files an appearance shall serve a
defence to the statement of claim indorsed on the
third party notice within 30 days after filing the
appearance.
(2) The third party may serve a defence to the
statement of claim of the plaintiff by which he
disputes the liability to the plaintiff of the
defendant by whom the third party was joined on
any ground not raised by that defendant in his
defence.
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(3) Rules 14.05 to 14.10 shall, with any necessary
modification, apply as if the claim by third party
notice were a proceeding commenced by writ.
(4) Where a third party files an appearance, the
defendant by whom he was joined shall serve on
the third party a copy of any pleading that may
from time to time thereafter be served between the
plaintiff and that defendant.
11.10 Counterclaim by third party
(1) A third party who has a claim against the
defendant may assert the claim in the proceeding
by way of counterclaim and Rule 10.02 shall apply
as if the claim by third party notice were a
proceeding commenced by writ.
(2) A third party who counterclaims may join the
plaintiff as defendant to the counterclaim along
with the defendant if the plaintiff and defendant
could be joined properly as defendants in
accordance with Rule 9.02 in a separate
proceeding brought against them by the third
party.
11.11 Default by third party
(1) Where at the time any judgment is entered or
given for the plaintiff against the defendant by
whom the third party was joined the third party
has not filed an appearance or after appearance has
not served a defence, and the time limited for
filing an appearance or serving a defence has
expired—
(a) the third party shall be taken to admit any
claim stated in the third party notice and
shall be bound by the judgment between the
plaintiff and the defendant insofar as it is
relevant to any claim or question stated in the
notice;
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(b) the defendant may at any time after
satisfaction of that judgment or, with the
leave of the Court, before satisfaction, enter
judgment against the third party for any
contribution or indemnity claimed in the
notice, and with the leave of the Court, for
any other relief or remedy claimed therein.
(2) If a third party or the defendant by whom he was
joined fails to serve any pleading within the time
limited, the Court may give such judgment for the
party not in default or make such order it thinks
fit.
(3) The Court may set aside or vary any judgment or
order under paragraph (1)(b) or (2).
11.12 Discovery and trial
Where the third party files an appearance—
(a) the third party and the defendant by whom he
was joined may have discovery of one
another; and
(b) unless the Court otherwise orders—
(i) the third party may attend and take part
at the trial of the proceeding;
(ii) at the trial the questions between the
defendant and the third party shall be
tried concurrently with the questions
between the plaintiff and the defendant;
and
(iii) the third party shall be bound by the
result of the trial.
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11.13 Third party directions
(1) Where the third party files an appearance, the
Court may make any order or give any direction as
follows—
(a) where the liability of the third party to the
defendant by whom he was joined as third
party is established, give judgment for that
defendant against the third party;
(b) order that any claim or question stated in the
third party notice be tried in such manner as
it directs;
(c) give the third party leave to defend the
proceeding, either alone or jointly with any
defendant, or to attend and take part at the
trial;
(d) generally make such orders and give such
directions as are necessary to ensure that all
questions in the proceeding are effectually
and completely determined and adjudicated
upon and as to the extent to which the third
party is to be bound by any judgment or
decision in the proceeding.
(2) The Court may make any order or give any
direction under paragraph (1) either before or after
any judgment in the proceeding has been entered
or given for the plaintiff against the defendant, and
may at any time vary or rescind any such order or
direction.
11.14 Judgment between defendant and third party
(1) Where a third party has been joined under this
Order, the Court may at or after the trial of the
proceeding or on its determination otherwise than
by trial give judgment for the defendant by whom
the third party was joined against the third party or
for the third party against that defendant.
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(2) Where judgment is given for the plaintiff against
the defendant and judgment is given for that
defendant against a third party, unless the Court
otherwise orders, the judgment against the third
party shall not be enforced until the judgment
against the defendant has been satisfied.
11.15 Claim against another party
(1) Where a party claims as against another party to
the proceeding any relief of the kind described in
Rule 11.01, the party may make the claim against
the other party by filing and serving a notice in
accordance with this Rule—
(a) within 60 days after the service on the party
of the document in the proceeding by which
the claim in respect of which the notice is
served was made; or
(b) if when the document was served the other
party was not a party, then within 60 days
after the party became a party.
(2) Paragraph (1) shall not apply where the claim
could be made by counterclaim in the proceeding.
(3) No appearance to a notice under paragraph (1)
shall be necessary if the party on whom it is
served has filed an appearance in the proceeding
or is a plaintiff, but otherwise this Order shall,
with any necessary modification, apply as if the
defendant had filed and served a third party notice
under Rule 11.01 and the party on whom the
notice is served were a third party joined under
that Rule.
(4) Except as provided by paragraph (5), a notice
under paragraph (1) shall, with any necessary
modification, be in accordance with Form 11A
and be indorsed with a statement of claim.
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(5) Where a party claims against another party to the
proceeding contribution pursuant to Part IV of the
Wrongs Act 1958, a notice under paragraph (1)
shall be in accordance with Form 11B.
11.16 Fourth and subsequent parties
(1) Where a third party has filed an appearance this
Order shall, with any necessary modification,
apply as if the third party were a defendant.
(2) Where a person joined as a party (in this Order
called a "fourth party") by a third party under this
Order has filed an appearance, this Order as
applied by this Rule shall have effect as regards
such further person and any other further person or
persons so joined and so on successively.
(3) A third or subsequent party may not make a claim
against another person whether that person is a
party to the proceeding or not by notice under this
Order without the leave of the Court.
11.17 Counterclaim
Where a defendant has served a counterclaim, this
Order shall, with any necessary modification,
apply as if the defendant were the plaintiff and the
plaintiff were the defendant.
ORDER 12
INTERPLEADER
12.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"claimant" means a person making a claim to or
in respect of property in dispute;
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"execution creditor" means a person for whom a
warrant is issued;
"property in dispute" means any debt or other
property which is the subject of proceedings
under this Order;
"sheriff" includes a person to whom a warrant of
execution is directed;
"stakeholder" means an applicant under Rule
12.02;
"warrant" means warrant of execution under
these Rules.
12.02 Stakeholder's interpleader
(1) Where—
(a) a person is under a liability (otherwise than
as a sheriff) in respect of a debt or other
personal property; and
(b) he is sued or expects to be sued in any court
for or in respect of the debt or property by
two or more persons making adverse claims
to or in respect of the debt or property—
the Court may, on application by him, grant relief
by way of interpleader.
(2) Where a stakeholder is sued in a proceeding in the
Court for or in respect of the property in dispute,
an application under paragraph (1) shall be made
by summons in the proceeding.
(3) A summons under paragraph (2) shall be served
on each party to the proceeding who is a claimant
and shall be served personally on each claimant
who is not a party.
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(4) Where paragraph (2) does not apply, an
application under paragraph (1) shall be
commenced by originating motion in which all
claimants are joined as defendants.
12.03 Sheriff's interpleader
(1) Where a sheriff takes or intends to take any
personal property under a warrant, a person
making a claim to or in respect of the property or
the proceeds or value of the property may give
notice in writing of his claim to the sheriff.
(2) A notice of claim under paragraph (1) shall—
(a) state the name and address of the claimant,
which address shall be the address for
service;
(b) identify each item of personal property the
subject of the claim; and
(c) state the grounds of the claim.
12.04 Sheriff's summons to state claim
(1) Where a person who is entitled to give notice
under Rule 12.03 does not, within a reasonable
time after having knowledge of the facts, give
notice under that Rule, the Court may, on
application by the sheriff, restrain the
commencement or stay or restrain the continuance
by that person of proceedings in any court against
the sheriff for or in respect of anything done by
the sheriff in execution of the warrant after the
time when that person might reasonably have
given notice under the Rule.
(2) A sheriff may apply for an order under paragraph
(1) by summons in the proceeding in which the
warrant is issued and, if he so applies, he shall
serve the summons personally on the person
against whom the order is sought.
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12.05 Notice to execution creditor
(1) A sheriff shall, on being given a notice of claim
under Rule 12.03, serve forthwith a copy of the
notice and also a notice in accordance with
Form 12A on the execution creditor.
(2) The execution creditor may serve on the sheriff
notice in writing that he admits or disputes the
claim.
12.06 Admission of claim
Where an execution creditor admits a claim by
notice under Rule 12.05(2)—
(a) he shall not be liable for any fees or expenses
incurred by the sheriff under the warrant
after the notice is given;
(b) the sheriff shall withdraw from possession of
the property claimed;
(c) the Court may, on application by the sheriff,
restrain the commencement or stay or
restrain the continuance by the person whose
claim is admitted of proceedings in any court
against the sheriff for or in respect of
anything done by the sheriff in execution of
the warrant.
12.07 Interpleader summons
(1) Where under Rule 12.05 a sheriff has served a
notice of claim and a notice in accordance with
Form 12A on the execution creditor, the sheriff
may by summons in the proceeding in which the
warrant is issued apply to the Court for relief by
way of interpleader if the execution creditor—
(a) does not within five days after the service of
the notices under Rule 12.05 serve on the
sheriff notice in writing that he admits the
claim; or
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(b) within that period of five days serves on the
sheriff notice in writing that he disputes the
claim—
and the Court may, if the claim has not been
withdrawn, grant relief by way of interpleader.
(2) A summons under paragraph (1) shall be served
on each party to the proceeding who claims an
interest in the property in dispute and shall be
served personally on each claimant who is not a
party.
12.08 Powers of Court
On application for relief by way of interpleader
the Court may—
(a) where a proceeding in the Court is pending
in which the applicant is sued for or in
respect of any of the property in dispute,
order that any claimant be added as a
defendant in that proceeding in addition to or
in substitution for the applicant, or order that
the proceeding be stayed or dismissed;
(b) order that a question between the claimants
be stated and tried and direct which of the
claimants is to be plaintiff and which
defendant;
(c) * * * * *
(d) order the applicant to pay or transfer any of
the property in dispute into court or
otherwise to dispose of any of the property;
(e) where a claimant claims to be entitled by
way of security for debt to any of the
property in dispute, make orders for the sale
of any of the property and for the application
of the proceeds of sale;
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(f) summarily determine any question of fact or
law arising on the application; and
(g) make such order or give such judgment it
thinks fit.
12.09 Default by claimant
(1) Where—
(a) a claimant has been given due notice of the
hearing of an application for relief by way of
interpleader and does not attend on the
hearing; or
(b) a claimant does not comply with an order
made on such an application—
the Court may order that the claimant and all
persons claiming under him be barred from
prosecuting his claim against the applicant and all
persons claiming under him.
(2) An order under paragraph (1) shall not affect the
rights of the claimants as between themselves.
12.10 Neutrality of applicant
(1) Where a stakeholder applies for relief by way of
interpleader, the Court may dismiss the
application or give judgment against the applicant
unless the Court is satisfied that the applicant—
(a) claims no interest in the property in dispute
except for charges or costs; and
(b) does not collude with any claimant.
(2) Where a sheriff applies for relief by way of
interpleader, the Court may require the sheriff to
satisfy the Court on the matters mentioned in
paragraph (1) and the Court may, if not satisfied
on those matters, dismiss the application.
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(3) Nothing in this Rule shall affect the power of the
Court in other cases to dismiss the application or
to give judgment against the applicant.
12.11 Order in several proceedings
(1) Where an application for relief by way of
interpleader is made and several proceedings are
pending in the Court for or in respect of any of the
property in dispute, the Court may make an order
in any two or more of those proceedings.
(2) An order made under paragraph (1) shall be
entitled in all the proceedings in which it is made
and shall be binding on all the parties to them.
12.12 Trial of interpleader question
(1) Order 49 shall, with any necessary modification,
apply to the trial of an interpleader question.
(2) On the trial of an interpleader question the Court
may finally determine all questions arising on the
application for relief by way of interpleader.
(3) An interpleader question, including any other
question arising on the application for relief, may
with the consent of all parties be tried by a Master.
ORDER 13
PLEADINGS
13.01 Formal requirements
(1) Every pleading shall bear on its face the
description of the pleading and the date on which
it is served.
(2) A pleading shall be divided into paragraphs
numbered consecutively, and each allegation so
far as practicable shall be contained in a separate
paragraph.
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(3) A pleading which is settled by counsel shall be
signed by him, and if it is not so settled, it shall be
signed by the solicitor for the party, or if there is
none, by the party.
13.02 Content of pleading
(1) Every pleading shall—
(a) contain in a summary form a statement of all
the material facts on which the party relies,
but not the evidence by which those facts are
to be proved;
(b) where any claim, defence or answer of the
party arises by or under any Act, identify the
specific provision relied on;
(c) state specifically any relief or remedy
claimed.
(2) A party may by his pleading—
(a) raise a point of law;
(b) plead a conclusion of law if the material facts
supporting the conclusion are pleaded.
13.03 Document or conversation
The effect of any document or the purport of any
conversation, if material, shall be pleaded as
briefly as possible, and the precise words of the
document or conversation shall not be pleaded
unless those words are themselves material.
13.04 Fact presumed true
A party need not plead any fact if it is presumed
by law to be true or the burden of disproving it lies
on the opposite party unless the other party has
specifically denied it in his pleading.
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13.05 Condition precedent
An allegation of the performance or occurrence of
any condition precedent necessary for the claim or
defence of a party shall be implied in his pleading.
13.06 Implied contract or relation
Where it is alleged that a contract or relation
between any persons is to be implied from a series
of letters or conversations or other circumstances,
it shall be sufficient to allege the contract or
relation as a fact, and to refer generally to the
letters, conversations or circumstances without
setting them out in detail.
13.07 Matter which must be pleaded
(1) A party shall in any pleading subsequent to a
statement of claim plead specifically any fact or
matter which—
(a) he alleges makes any claim or defence of the
opposite party not maintainable; or
(b) if not pleaded specifically, might take the
opposite party by surprise; or
(c) raises questions of fact not arising out of the
preceding pleading.
(2) In a proceeding for the recovery of land—
(a) the indorsement of claim on the writ or, if
that indorsement does not constitute a
statement of claim, the statement of claim
shall describe the land so that it is physically
identifiable;
(b) the defendant shall plead specifically every
ground of defence on which he relies and a
plea that he is in possession of the land by
himself or his tenant is not sufficient.
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(3) A claim for exemplary damages shall be
specifically pleaded together with the facts on
which the party pleading relies.
13.08 Subsequent fact
A party may plead any fact or matter which has
arisen at any time, whether before or since the
commencement of the proceeding.
13.09 Inconsistent pleading
(1) A party may in any pleading make inconsistent
allegations of fact if the pleading makes it clear
that the allegations are pleaded in the alternative.
(2) A party shall not in any pleading make any
allegation of fact, or raise any new claim,
inconsistent with any allegation made or claim
raised in a previous pleading by him.
(3) Paragraph (2) shall not affect the right of a party to
amend, or apply for leave to amend, his previous
pleading so as to plead the allegations or claims in
the alternative.
13.10 Particulars of pleading
(1) Every pleading shall contain the necessary
particulars of any fact or matter pleaded.
(2) Without limiting paragraph (1), particulars shall
be given if they are necessary to enable the
opposite party to plead or to define the questions
for trial or to avoid surprise at trial.
(3) Without limiting paragraph (1), every pleading
shall contain particulars of any—
(a) misrepresentation, fraud, breach of trust,
wilful default or undue influence; or
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(b) disorder or disability of the mind, malice,
fraudulent intention or other condition of the
mind, including knowledge or notice—
which is alleged.
(4) The pleading of a party who claims damages for
bodily injury shall state—
(a) particulars, with dates and amounts, of all
earnings lost in consequence of the injury
complained of;
(b) particulars of any loss of earning capacity
resulting from the injury;
(c) the date of the party's birth;
(d) the name and address of each of the party's
employers commencing from the day being
12 months before he sustained the injury, the
time of commencement and the duration of
each employment and the total net amount,
after deduction of tax, that was earned in
each employment.
(5) In a proceeding for libel the indorsement of claim
on the writ or, if that indorsement does not
constitute a statement of claim, the statement of
claim shall state sufficient particulars to identify
the publication in respect of which the proceeding
is commenced.
(6) Particulars of debt, damages or expenses which
exceed three folios shall be set out in a separate
document referred to in the pleading and the
pleading shall state whether the document has
already been served and, if so, when, or is to be
served with the pleading.
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13.11 Order for particulars
(1) The Court may order a party to serve on any other
party particulars or further and better particulars of
any fact or matter stated in his pleading or in an
affidavit filed on his behalf ordered to stand as a
pleading.
(2) The Court shall not make an order under
paragraph (1) before service of the defence unless
the order is necessary or desirable to enable the
defendant to plead or for some other special
reason.
(3) The Court may refuse to make an order under
paragraph (1) if the party applying for the order
did not first apply by letter for the particulars he
requires.
13.12 Admission and denials
(1) Except as provided in paragraph (4), every
allegation of fact in any pleading shall be taken to
be admitted unless it is denied specifically or by
necessary implication or is stated to be not
admitted in the pleading of the opposite party, or
unless a joinder of issue under Rule 13.13
operates as a denial of it, and a general denial of
the allegations, or a general statement that they are
not admitted, shall not be sufficient.
(2) * * * * *
(3) Where the party pleading intends to prove facts
which are different to those pleaded by the
opposite party, it shall not be sufficient for the
party merely to deny or not to admit the facts so
pleaded, but the party shall plead the facts he
intends to prove.
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(4) Any allegation that a party has suffered damage
and any allegation as to the amount of damages
shall be taken to be denied unless specifically
admitted.
13.13 Denial by joinder of issue
(1) No reply or subsequent pleading merely joining
issue shall be served.
(2) At the close of pleadings a joinder of issue on the
pleading last served shall be implied.
(3) No joinder of issue, express or implied, shall be
made on a statement of claim or counterclaim.
(4) A joinder of issue shall operate as a denial of
every material allegation of fact made in the
pleading upon which issue is joined unless, in the
case of an express joinder of issue, any such
allegation is excepted from the joinder and is
stated to be admitted, in which case the joinder of
issue shall operate as a denial of every other
allegation.
13.14 Money claim as defence
Where a defendant has a claim against a plaintiff
for the recovery of a debt or damages, the claim
may be relied on as a defence to the whole or part
of a claim made by the plaintiff for the recovery of
a debt or damages and may be included in the
defence and set off against the plaintiff's claim,
whether or not the defendant also counterclaims
for that debt or damages.
13.15 Counterclaim
This Order shall, with any necessary modification,
apply to a counterclaim as if it were a statement of
claim, and to a defence to counterclaim as if it
were a defence.
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ORDER 14
SERVICE OF PLEADINGS
14.01 Statement of claim indorsed on writ
Where the indorsement of claim on a writ
constitutes a statement of claim in accordance
with Rule 5.04, no statement of claim shall be
served.
14.02 Statement of claim not indorsed on writ
Where the indorsement of claim on a writ does not
constitute a statement of claim in accordance with
Rule 5.04 and a defendant files an appearance, the
plaintiff shall serve a statement of claim on that
defendant within 30 days after his appearance,
unless the Court otherwise orders.
14.03 Alteration of claim as indorsed on writ
(1) Where a statement of claim is served in a
proceeding commenced by writ, the plaintiff may
therein alter, modify or extend the claim as
indorsed on the writ without amendment of the
indorsement.
(2) The Court may by order allow the plaintiff to
serve a statement of claim the effect of which will
be to add a new cause of action to or substitute a
new cause of action for a cause of action disclosed
in the writ.
(3) Where the Court makes an order under paragraph
(2), it may further order that the plaintiff shall
amend the indorsement of claim on the writ to
make it conform to the statement of claim.
14.04 Service of defence
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In a proceeding commenced by writ, a defendant
who files an appearance shall serve a defence as
follows—
(a) where the indorsement of claim on the writ
constitutes a statement of claim in
accordance with Rule 5.04, within 30 days
after filing the appearance;
(b) where the plaintiff serves a statement of
claim, within 30 days after service of the
statement of claim; or
(c) within such time as the Court directs.
14.05 Reply
Where the plaintiff is required to serve a reply, it
shall be served within 30 days after service of the
defence, unless the Court otherwise orders.
14.06 Pleading after reply
No pleading subsequent to reply shall be served
without an order of the Court.
14.07 Defence to counterclaim
Where the defendant sets up a counterclaim in the
defence, the plaintiff or any person joined as
defendant to the counterclaim who is already a
party to the proceeding shall serve a reply and
defence to counterclaim or a defence to
counterclaim within 30 days after service of the
defence and counterclaim, unless the Court
otherwise orders.
14.08 Close of pleadings
Unless the Court otherwise orders, pleadings shall
be closed—
(a) where no pleading beyond a defence is
ordered or served, at the expiration of
30 days after service of the defence;
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(b) where pleadings beyond a defence are
ordered or served, at the expiration of
30 days after service of the last of those
pleadings.
14.09 Order as to pleadings
Notwithstanding anything contained in this Order,
in a proceeding commenced by writ, the Court
may order that—
(a) any party serve any pleading;
(b) the service of any pleading be dispensed
with; or
(c) the proceeding be tried without pleadings.
14.10 Filing of pleadings
A party who serves a pleading on another party
shall forthwith after service file a copy of the
pleading.
ORDER 15
PERSON UNDER DISABILITY
15.01 Definitions
In this Order—
"handicapped person" means a person who is
incapable by reason of injury, disease,
senility, illness or physical or mental
infirmity of managing his affairs in relation
to the proceeding;
"person under disability" means minor or
handicapped person.
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15.02 Litigation guardian of person under disability
(1) Except where otherwise provided by or under any
Act, a person under disability shall commence or
defend a proceeding by his litigation guardian.
(2) Except where otherwise provided by these Rules,
anything in a proceeding that is required or
permitted by the Rules to be done by a party shall
or may, if the party is a person under disability, be
done by his litigation guardian.
(3) A litigation guardian of a person under disability
shall act by a solicitor.
15.03 Appointment of litigation guardian
(1) A person may be a litigation guardian of a person
under disability if he is not himself a person under
disability and he has no interest in the proceeding
adverse to that of the person under disability.
(2) Where a person is authorised by or under any Act
to conduct legal proceedings in the name of or on
behalf of a handicapped person, that person shall,
unless the Court otherwise orders, be entitled to be
litigation guardian of the handicapped person in
any proceeding to which his authority extends.
(3) Where after a proceeding is commenced a party to
the proceeding becomes a handicapped person, the
Court shall appoint a litigation guardian of that
party.
(4) Where the interests of a party who is a person
under disability so require, the Court may appoint
or remove a litigation guardian or substitute
another person as litigation guardian.
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(5) Where a party has a litigation guardian in a
proceeding, no other person shall act as litigation
guardian, unless the Court otherwise orders.
(6) Except where a litigation guardian has been
appointed by the Court, the name of a person shall
not be used in a proceeding as litigation guardian
of a person under disability unless there is first
filed in the office of the Registrar—
(a) the written consent of the person to be the
litigation guardian; and
(b) a certificate by the solicitor for the person
under disability certifying that he knows or
believes that—
(i) the person to whom the certificate
relates is a minor or is a handicapped
person, giving the grounds of his
knowledge or belief; and
(ii) the litigation guardian of the person
under disability has signed the said
written consent and has no interest in
the proceeding adverse to that person.
15.04 No appearance by person under disability
Where a defendant who is a person under
disability does not file an appearance within the
time limited, the plaintiff shall not continue the
proceeding unless a person is made litigation
guardian of the defendant in accordance with Rule
15.03(6) or is appointed litigation guardian by
order of the Court.
15.05 Application to discharge or vary certain orders
An application to the Court on behalf of a person
under disability served with an order made
without notice under Rule 9.09 for the discharge
or variation of the order shall be made—
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(a) if a litigation guardian is acting for that
person in the proceeding in which the order
is made, within 10 days after the service of
the order on that person;
(b) if no litigation guardian is acting for that
person in that proceeding, within 10 days
after the appointment of a litigation guardian
to act for him.
15.06 Pleading admission by person under disability
Notwithstanding anything in Rule 13.12(1), a
person under disability shall not be taken to admit
the truth of any allegation of fact made in the
pleading of the opposite party unless in his
pleading the person states that the allegation is
admitted.
15.07 Discovery
(1) Subject to paragraph (2), a party shall be entitled
to have discovery of a person under disability as if
that person were not under disability.
(2) The discovery shall be given by the person under
disability or his litigation guardian, whichever is
appropriate.
15.08 Compromise of claim by a person under disability
(1) Where in a proceeding a claim is made by or on
behalf of or against a person under disability, no
compromise, payment of money or acceptance of
an offer of compromise under Order 26, whenever
entered into or made, shall so far as it relates to
that claim be valid without the approval of the
Court.
(2) Unless the Court otherwise orders, application for
approval shall be without notice to any other party
by filing—
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(a) affidavits, including affidavits of—
(i) the litigation guardian of the person
under disability; and
(ii) the solicitor for the person under
disability; and
(b) two copies of the proposed order—
not later than 30 days after the compromise,
payment or acceptance.
(2.1) A copy of an affidavit in support of the application
shall not be served.
* * * * *
(4) On the application, evidence shall be given of the
date of the compromise, payment or acceptance
and the date of birth of the person under disability,
and the dates shall be stated in any order
approving the compromise, payment or
acceptance.
(5) Where the acceptance of an offer of compromise
is approved, the person under disability shall be
taken to have made or accepted the offer at the
time of approval.
(6) Where an order is made approving a compromise
by which money is to be paid to a person under
disability, the forms of order in Forms 15A and
15B shall, where appropriate, be used.
15.09 Execution against money in court
(1) This Rule applies where—
(a) a person under disability is required by a
judgment to pay money;
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(b) money stands in court to the credit of that
person or that person has a beneficial interest
in money or funds in court; and
(c) under these Rules, the Court may, on the
application of the person entitled to enforce
the judgment, order that the money in court
or so much thereof as is sufficient to satisfy
the judgment be paid to that person or, as the
case may be, make an order imposing a
charge on the beneficial interest of the person
under disability in the money or funds in
court to secure the payment of the sum due
under the judgment.
(2) In determining whether to make an order for
payment or an order imposing a charge, as the
case may be, the Court shall have regard to the
fact that the person liable under the judgment is a
person under disability, the purpose for which
payment of the money or funds into court was
made and the purpose for which the money or
funds are held.
(3) In this Rule—
"judgment" includes order;
"funds in court" has the meaning it bears in
Rule 73.01.
15.10 Counterclaim and claim by third party notice
This Order shall, with any necessary modification,
apply to a counterclaim against a person under
disability who is joined as defendant to the
counterclaim under Rule 10.03 and to a claim by
third party notice by or on behalf of or against a
person under disability.
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ORDER 16
EXECUTORS, ADMINISTRATORS AND TRUSTEES
16.01 Representation of unascertained persons
(1) This Rule applies to a proceeding relating to—
(a) the administration of the estate of a deceased
person;
(b) property subject to a trust; or
(c) the construction of an instrument, including
an Act.
(2) The Court may appoint one or more persons to
represent any person (including an unborn person)
who or class which is or may be interested
(whether presently or for any future, contingent or
unascertained interest) in or affected by the
proceeding where—
(a) the person, the class or some members of the
class cannot be ascertained or cannot readily
be ascertained;
(b) the person, class or some member of the
class, though ascertained, cannot be found;
or
(c) though the person or the class and the
members thereof can be ascertained and
found, it appears to the Court expedient,
regard being had to all the circumstances,
including the amount at stake and the degree
of difficulty of the point to be determined, to
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make the order for the purpose of saving
expense.
(3) Where the Court makes an order under paragraph
(2), a judgment or order in the proceeding shall
bind the person or class represented as if he or
they were parties.
(4) Where a compromise of a proceeding is proposed
and some of the persons who are interested in, or
who may be affected by, the compromise are not
parties (including unborn or unascertained
persons) but—
(a) there is a party in the same interest who
assents to the compromise or on whose
behalf the Court sanctions the compromise;
or
(b) the absent persons are represented by a
person appointed under paragraph (2) and he
so assents—
the Court, if satisfied that the compromise is for
the benefit of the absent persons, may approve the
compromise and order that it shall be binding on
the absent persons, and they shall be bound
accordingly except where the order is obtained by
fraud or non-disclosure of material facts.
16.02 Beneficiaries
(1) Where a party sues or is sued as executor,
administrator or trustee—
(a) it shall not be necessary to join as a party any
of the persons having a beneficial interest in
the estate or under the trust;
(b) a judgment or order in the proceeding shall
bind those persons as it does the executor,
administrator or trustee.
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(2) Paragraph (1) does not limit the power of the
Court to order the addition of a party under Rule
9.06 or to make an order under Rule 16.01(2).
16.03 Deceased person
(1) Where a deceased person was interested, or the
estate of a deceased person is interested, in any
question in a proceeding and the deceased person
has no personal representative, the Court may—
(a) proceed in the absence of such personal
representative; or
(b) by order (with the consent of the person
appointed) appoint a person to represent the
estate for the purpose of the proceeding.
(2) An order under paragraph (1), and any judgment
or order subsequently given or made in the
proceeding, shall bind the estate of the deceased
person as it would had a personal representative of
the deceased been a party.
(3) Before making an order under this Rule, the Court
may require notice of the application for the order
to be given to any person having an interest in the
estate.
ORDER 17
PARTNERS AND SOLE PROPRIETORS
17.01 Partners
(1) Where two or more persons carry on business as
partners within Victoria, a proceeding may be
commenced by or against them in the name (if
any) of the firm of which they were partners when
the cause of action accrued.
(2) Paragraph (1) applies where partners sue or are
sued by—
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(a) any partner of the same firm;
(b) partners of another firm, and any partner of
the one firm is a partner of the other.
17.02 Disclosure of partners
(1) Where a proceeding is commenced by or against
partners in the firm name under Rule 17.01, any
party other than the partners may by notice served
at the address for service of the partners in the
proceeding require the partners to disclose in
writing within 14 days of service the name and the
address of the usual or last known place of
residence or of business of each person
constituting the firm at the time when the cause of
action accrued and whether since that time there
has been any and what change in the membership
of the firm.
(2) Where partners fail to comply with a notice under
paragraph (1), the Court may order—
(a) if the partners are plaintiffs, that the
proceeding be dismissed;
(b) if the partners are defendants, that their
defence be struck out.
17.03 Service of originating process
(1) Originating process in a proceeding commenced
against partners in the firm name under Rule 17.01
may be served on—
(a) any one or more of the partners; or
(b) any person at the principal place of business
of the partnership within Victoria who
appears to have control or management of
the partnership business there.
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(2) Originating process served under paragraph (1)
shall be taken to have been duly served on the
partners whether or not any partner is out of
Victoria.
(3) Where a partnership has to the knowledge of the
plaintiff been dissolved before the proceeding
against the partners has commenced, the
originating process shall be served on every
person sought to be made liable in the proceeding.
(4) Every person upon whom originating process is
served under paragraph (1) shall be informed by
notice in writing given at the time of service
whether he is served as a partner or as a person
having the control or management of the
partnership business or in both characters and, in
default of such notice, the person served shall be
taken to be served as a partner.
17.04 Appearance by partners
Partners sued in the name of their firm shall
appear individually in their own names, but the
proceeding shall, nevertheless, continue in the
name of the firm.
17.05 No appearance except by partners
A person served with originating process as a
person having the control or management of the
partnership business may not file an appearance
unless he is a partner.
17.06 Appearance under objection of person sued as partner
(1) A person served with originating process as a
partner may file an appearance stating that he does
so as a person served as a partner and that he
denies that he was a partner at any material time or
is liable as such.
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(2) An appearance filed under paragraph (1) shall not
preclude the plaintiff from otherwise serving the
partners, and, if no party has filed an appearance
in the ordinary form, obtaining judgment against
the partners in the name of the firm in default of
appearance.
(3) Where an appearance is filed under paragraph
(1)—
(a) the plaintiff may either apply to set it aside
on the ground that the person filing it was a
partner or is liable as a partner, or leave that
question to be determined at a later stage of
the proceeding;
(b) the person filing the appearance may either
apply to set aside the service on him on the
ground that he was not a partner at a material
time or liable as such, or at the proper time
serve a defence on the plaintiff denying in
respect of the plaintiff's claim either his
liability as a partner or the liability of the
partners or both;
(c) the Court may give directions as to the mode
and time of trial of any question of the
liability of the person who filed the
appearance or of the liability of the partners.
(4) Rule 8.08 does not apply to an appearance filed
under this Rule.
17.07 Enforcement of judgment
(1) A judgment given or order made against partners
suing or sued in the name of their firm may,
subject to paragraph (2) and Rule 17.08, be
enforced against—
(a) any property of the partnership; and
(b) any person who—
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(i) filed an appearance as a partner;
(ii) having been served as a partner with
originating process, failed to file an
appearance;
(iii) admitted in his pleading that he is a
partner; or
(iv) was served with originating process as a
partner and was adjudged to be a
partner.
(2) Where a party who has obtained a judgment or
order against partners suing or sued in the name of
their firm claims that a person is liable to satisfy
the judgment or order as a partner, and paragraph
(1) does not apply in relation to that person, the
Court—
(a) if liability is not disputed, may order that the
judgment or order be enforced against that
person; or
(b) if the liability is disputed, may give
directions for the trial of the question of
liability.
(3) An application under paragraph (2) shall be made
by summons served personally on the person
against whom enforcement of the judgment or
order is sought.
17.08 Enforcement between partners
A judgment given or order made against partners
suing or being sued in the name of their firm in a
proceeding of the kind referred to in Rule
17.01(2)(a) or (b) shall not be enforced without
the leave of the Court, and on application for leave
the Court may make an order that any necessary
accounts and inquiries be taken and made.
17.09 Attachment of debts
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(1) A debt due or accruing due from partners may be
attached under these Rules notwithstanding that
any partner is resident out of Victoria, if a partner
or some person apparently having the control or
management of the partnership business within
Victoria is served with the garnishee summons.
(2) The attendance of a partner before the Court on
the hearing of a garnishee summons is a sufficient
attendance by the partners.
17.10 Person using the business name
Any person carrying on business within Victoria
in a name or style other than his own may be sued
in that name or style as if it were the name of a
firm, and Rules 17.02 to 17.09 shall, with any
necessary modification, apply as if he were a
partner and the name in which he carries on
business were the name of his firm.
17.11 Charge on partner's interest
(1) An application to the Court by a judgment creditor
of a partner for an order charging his interest in
the partnership property and profits under section
27 of the Partnership Act 1958, and for such
other orders as are thereby authorised to be made,
and every application to the Court by a partner of
a judgment debtor made in consequence of the
first mentioned application shall be made by
summons.
(2) A summons filed by the judgment creditor under
this Rule and an order made on the summons shall
be served on the judgment debtor and on such of
his partners as are within Victoria.
(3) A summons filed by a partner of a judgment
debtor under this Rule and an order made on the
summons shall be served—
(a) on the judgment creditor;
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(b) on the judgment debtor; and
(c) on such of the other partners of the judgment
debtor as do not join in the application and
are within Victoria.
(4) A summons or order served under this Rule on
some only of the partners of the judgment debtor
shall be taken to have been served on all of the
partners.
ORDER 18
REPRESENTATIVE PROCEEDING
18.01 Application
This Order applies where numerous persons have
the same interest in any proceeding, but does not
apply to—
(a) a proceeding under section 34 and 35 of the
Supreme Court Act 1986;
(b) a proceeding concerning—
(i) the administration of the estate of a
deceased person; or
(ii) property subject to a trust.
18.02 Proceeding by or against representative
A proceeding may be commenced, and, unless the
Court otherwise orders, continued, by or against
any one or more persons having the same interest
as representing some or all of them.
18.03 Order for representation by defendant
(1) At any stage of a proceeding under Rule 18.02
against one or more persons having the same
interest the Court may appoint any one or more of
the defendants or the persons as representing
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whom the defendants are sued to represent some
or all of those persons in the proceeding.
(2) Where the Court appoints a person who is not a
defendant, the Court shall make an order under
Rule 9.06 adding him as a defendant.
18.04 Effect of judgment
(1) A judgment given or order made in a proceeding
to which this Order applies shall bind the parties
and all persons as representing whom the parties
sue or are sued, as the case may be.
(2) The judgment or order shall not be enforced
against a person not a party except by leave of the
Court.
(3) An application for leave shall be made by
summons served personally on the person against
whom enforcement of the judgment or order is
sought.
ORDER 19
NOTICE OF CONSTITUTIONAL MATTER
19.01 Definitions
In this Order—
"the Act" means the Judiciary Act 1903 of the
Commonwealth;
"State" has the meaning ascribed in section
78AA of the Act.
19.02 Notice
(1) Where a proceeding involves a matter arising
under the Constitution or involving its
interpretation within the meaning of section 78B
of the Act, the party whose case raises the matter
shall, unless the Court directs another party to do
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so, forthwith file a notice of a constitutional
matter.
(2) A notice under paragraph (1) shall state—
(a) specifically the nature of the matter; and
(b) the facts showing that the matter is one to
which paragraph (1) applies.
(3) The notice shall be in Form 19A.
19.03 Filing and service
(1) Subject to paragraph (3), the party required or
directed under Rule 19.02 to file the notice shall
serve a copy on—
(a) every other party; and
(b) (i) the Attorney-General for the
Commonwealth, if he or the
Commonwealth is not a party;
(ii) the Attorney-General of each State, if
he or that State is not a party.
(2) Unless the Court otherwise orders, the copy shall
be served forthwith after the notice is filed.
(3) Service of a copy of the notice need not be
effected on an Attorney-General if steps have been
taken that could reasonably be expected to cause
the matters to be notified to be brought to the
attention of that Attorney-General.
(4) The party serving a copy of the notice shall
forthwith file an affidavit of service.
ORDER 20
CHANGE OF SOLICITOR
20.01 Notice of change
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Where a solicitor acts for a party in a proceeding
and the party changes his solicitor, the party shall
forthwith file notice of the change and serve a
copy of the notice on the other parties and, where
practicable, his former solicitor.
20.02 Party appointing solicitor
Where a party who has no solicitor in a
proceeding appoints a solicitor to act for him in
the proceeding, the solicitor shall forthwith file
notice of the appointment and serve a copy of the
notice on the other parties.
20.03 Solicitor ceasing to act
(1) Where a solicitor ceases to act for a party in a
proceeding, unless a notice of change is filed and
served under Rule 20.01, the solicitor shall
forthwith file notice that he has ceased to act and
serve a copy on all parties.
(2) A notice under paragraph (1) shall state the
address of the party last known to the solicitor
and—
(a) if a proceeding has been set down for trial in
Melbourne, the day on which the proceeding
is fixed for hearing; or
(b) if a proceeding has been set down for trial
elsewhere than in Melbourne, the first day of
the next sitting of the Court at the place for
which it is set down for trial.
(3) Except by leave of the Court a solicitor shall not
file a notice under paragraph (1)—
(a) where the address of the party in the notice is
outside Victoria;
(b) where a proceeding has been set down for
trial—
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(i) in Melbourne, within 60 days of the day
on which the proceeding has been fixed
for hearing; or
(ii) elsewhere than in Melbourne, within
60 days of the next sitting of the Court
at the place for which it is set down for
trial;
(c) within 28 days after a proceeding has been
finally determined subject only to an appeal,
if any, to the Court of Appeal.
(4) Except by leave of the Court of Appeal, a solicitor
shall not file a notice under paragraph (1) where in
the proceeding—
(a) a summons for leave to appeal to the Court
of Appeal has been filed; or
(b) notice of appeal to the Court of Appeal has
been served.
20.04 Removal of solicitor from record
(1) Where a solicitor who has acted for a party in a
proceeding has died or become bankrupt, or
cannot be found, or has ceased to have the right of
practising in the Court, or for any other reason has
ceased to practise, and the party has not given
notice under Rule 20.01 or the solicitor has not
given notice under Rule 20.03, the Court may, on
application made by any other party to the
proceeding, by order declare that the solicitor has
ceased to be the solicitor acting for the first-
mentioned party in the proceeding.
(2) An application under paragraph (1) shall be made
by summons supported by affidavit stating the
facts on which the application is made and, unless
the Court otherwise orders, the summons and a
copy of the affidavit shall be served on the party to
whose solicitor the application relates.
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(3) Where an order is made under paragraph (1), the
party on whose application it was made shall
forthwith serve a copy of the order on every other
party to the proceeding, and file an affidavit of
service.
20.05 Address for service
(1) The address for service of a party—
(a) who changes his solicitor and files and
serves notice under Rule 20.01, shall be the
business address of the new solicitor;
(b) who appoints a solicitor in the circumstances
referred to in Rule 20.02, shall be the
business address of the solicitor;
(c) for whom a solicitor has ceased to act, where
notice is filed and served by the solicitor
under Rule 20.03 without leave, shall be the
address stated in the notice.
(2) Where the Court under—
(a) Rule 20.03(3)(a) gives a solicitor leave to file
notice that he has ceased to act;
(b) Rule 20.04(1) by order declares that a
solicitor has ceased to act—
the Court may by order direct what address shall
be the address for service of the party for whom
the solicitor has ceased to act.
(3) Where the Court makes no order under paragraph
(2), any document in the proceeding which is not
required to be served personally may be served on
the party for whom the solicitor has ceased to act
by filing it.
(3.1) A party who serves a document by filing in
accordance with paragraph (3) shall indorse upon
a backsheet or on the back of the last sheet a
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statement that the document is filed as such
service.
20.06 Death, retirement etc., of Victorian Government
Solicitor etc.
Where the solicitor who occupies or acts in the
office of Victorian Government Solicitor or
Solicitor to the Public Trustee or the Australian
Government Solicitor acts as solicitor for a party
in a proceeding and the solicitor dies or retires or
otherwise ceases to occupy or act in that office, it
shall not be necessary to file and serve notice
under Rule 20.01.
ORDER 21
JUDGMENT IN DEFAULT OF APPEARANCE OR
PLEADING
21.01 Default of appearance
(1) This Rule applies only to a proceeding
commenced by writ.
(2) Where a defendant does not file an appearance
within the time limited, the plaintiff may enter or
apply for judgment against that defendant in
accordance with this Order.
(3) Judgment shall not be entered or given for the
plaintiff unless there is filed—
(a) a notice to the Registrar requesting him to
search for an appearance by the defendant;
(b) an affidavit proving service of the writ on the
defendant; and
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(c) where the plaintiff applies for judgment in
accordance with Rule 21.04 and the
indorsement of claim on the writ does not
constitute a statement of claim in accordance
with Rule 5.04, a statement of claim.
21.02 Default of defence
(1) Where any defendant, being required to serve a
defence, does not do so within the time limited,
the plaintiff may enter or apply for judgment
against that defendant in accordance with this
Order.
(2) Judgment shall not be entered or given for the
plaintiff unless an affidavit proving the default is
filed.
(3) Paragraphs (1) and (2) shall, with any necessary
modification, apply where the defendant has
served a defence and by or under an order of the
Court the defence is struck out.
21.03 Judgment for recovery of debt, damages or property
(1) Where a claim is made for the recovery of a debt,
damages or any property, whether or not another
claim is also made in the proceeding, and the
plaintiff is entitled to judgment on that claim
against any defendant in accordance with Rule
21.01 or Rule 21.02, the plaintiff may—
(a) for the recovery of a debt, enter final
judgment against that defendant for an
amount not exceeding the amount claimed in
the writ or, if the plaintiff has served a
statement of claim, the amount claimed in
the statement of claim, together with interest
from the commencement of the proceeding
to the date of the judgment—
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(i) on any debt which carries interest, at
the rate it carries;
(ii) on any other debt, at the rates payable
on judgment debts during that time;
(b) for the recovery of damages, enter
interlocutory judgment against that defendant
for the damages to be assessed;
(c) for the recovery of land, enter judgment for
possession of the land against that defendant;
(d) for the detention of goods, enter interlocutory
judgment against that defendant—
(i) either for the delivery of goods or their
value to be assessed or for the value of
the goods to be assessed; and
(ii) if a claim is made for the recovery of
damages for the detention of goods, for
the damages to be assessed.
(1.1) Where a claim is made for the recovery of land,
and the plaintiff also claims mesne profits, if the
indorsement of claim on the writ or statement of
claim shows that the amount claimed for mesne
profits is calculated according to rent which had
been payable by the defendant to the plaintiff in
respect of the land, the claim for mesne profits
shall, for the purpose of paragraph (1), be taken to
be a claim for the recovery of a debt.
(1.2) Paragraph (1) shall not apply to a claim for the
recovery of a debt or damages in a currency not
Australian dollars, and if the plaintiff is entitled to
judgment on the claim against any defendant in
accordance with Rule 21.01 or Rule 21.02, the
Court may give judgment for the plaintiff under
Rule 21.04 as if the claim were a claim to which
that Rule applies.
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(2) Upon entering judgment under paragraph (1) the
plaintiff may also enter judgment for costs.
(3) Where under paragraph (1) damages or the value
of goods are to be assessed, the assessment shall,
unless the Court otherwise orders, be made by a
Master in accordance with Order 51.
21.04 Judgment other than for recovery for debt, damages
or property
(1) Where a claim is made other than for the recovery
of a debt, damages or any property, whether or not
a claim for such recovery is also made in the
proceeding, and the plaintiff is entitled to
judgment on that claim against any defendant in
accordance with Rule 21.01 or 21.02, the Court
may give judgment for the plaintiff upon the
statement of claim.
(2) An application for judgment under paragraph (1)
may be made without notice to the defendant.
21.05 Proceeding continued against other defendants
A plaintiff who enters or obtains judgment against
a defendant in accordance with this Order may
enforce the judgment and continue the proceeding
against any other defendant, but in a proceeding
for the recovery of land against more than one
defendant a judgment for possession of the land
shall not be enforced against any defendant unless
judgment for possession has been entered or given
against all defendants.
21.06 Default of defence to counterclaim
Where a defendant serves a counterclaim, Rule
21.02 shall apply as if the defendant were the
plaintiff, the defence were the defence to
counterclaim and the plaintiff were the defendant.
21.07 Setting aside judgment
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The Court may set aside or vary any judgment
entered or given in accordance with this Order.
ORDER 22
SUMMARY JUDGMENT FOR PLAINTIFF
22.01 Scope of Order
This Order applies only to a proceeding
commenced by writ.
22.02 Application for judgment
(1) Where the defendant has filed an appearance, the
plaintiff may at any time apply to the Court for
judgment against that defendant on the ground that
the defendant has no defence to the whole or part
of a claim included in the writ or statement of
claim, or no defence except as to the amount of a
claim.
(2) Paragraph (1) shall not apply to a claim for libel,
slander, malicious prosecution, false
imprisonment or seduction or to a claim based on
an allegation of fraud.
(3) Where the writ or statement of claim includes a
claim within paragraph (2), the plaintiff may apply
for judgment in respect of any other claim and
continue the proceeding for the first-mentioned
claim.
(4) Except by order of the Court the plaintiff shall
make only one application for judgment under this
Order.
22.03 Affidavit in support
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(1) An application for judgment shall be made by
summons supported by an affidavit verifying the
facts on which the claim or the part of the claim to
which the application relates is based and stating
that in the belief of the deponent there is no
defence to that claim or part, or no defence except
as to the amount claimed.
(2) Where a statement in a document tends to
establish a fact within paragraph (1) and at the
trial of the proceeding the document would be
admissible by or under the Evidence Act 1958 or
any other Act to verify the fact, the affidavit under
paragraph (1) may set forth the statement.
(3) An affidavit under paragraph (1) may contain a
statement of fact based on information and belief
if the grounds are set out and having regard to all
the circumstances the Court considers that the
statement ought to be permitted.
(4) The plaintiff shall serve the summons and a copy
of the affidavit or affidavits in support and of any
exhibit referred to therein on the defendant not
less than 14 days before the day for hearing named
in the summons.
22.04 Defendant to show cause
(1) The defendant may show cause against the
application by affidavit or otherwise to the
satisfaction of the Court.
(2) An affidavit under paragraph (1) may contain a
statement of fact based on information and belief
if the grounds are set out.
(3) Unless the Court otherwise orders, the defendant
shall serve a copy of any affidavit and of any
exhibit referred to therein on the plaintiff not less
than three days before the day for hearing named
in the summons.
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22.05 Affidavit in reply
Where the defendant serves an affidavit under
Rule 22.04, the Court may by order allow the
plaintiff to rely upon an affidavit in reply.
22.06 Hearing of application
(1) On the hearing of the application the Court may—
(a) dismiss the application;
(b) give such judgment for the plaintiff against
the defendant on the claim or the part of the
claim to which the application relates as is
appropriate having regard to the nature of the
relief or remedy claimed unless the
defendant satisfies the Court that in respect
of that claim or part a question ought to be
tried or that there ought for some other
reason be a trial of that claim or part;
(c) give the defendant leave to defend with
respect to the claim or the part of the claim to
which the application relates either
unconditionally or on terms as to giving
security, paying money into court, time, the
mode of trial or otherwise; or
(d) with consent of all parties, and
notwithstanding Rule 77A.03(1), dispose of
the proceeding finally in a summary manner.
(2) The Court may stay execution of any judgment
given under paragraph (1)(b) until after the trial of
any counterclaim made by the defendant in the
proceeding.
22.07 Cross-examination on affidavit
(1) The Court may order any party or the maker of
any affidavit to attend and be examined and cross-
examined, or to produce any papers, books or
documents, or copies of or extracts therefrom.
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(2) Where a party is a corporation, the Court may
make an order under paragraph (1) in respect of
any director, manager, secretary or other similar
officer thereof or any person purporting to act in
any such capacity.
22.08 Judgment on counterclaim
(1) Where a defendant serves a counterclaim, the
defendant may at any time after service, on the
ground that the plaintiff has no defence to the
whole or part of a claim made in the counterclaim,
or no defence except as to the amount of a claim,
apply to the Court for judgment against the
plaintiff.
(2) This Order shall, with any necessary modification,
apply to an application under paragraph (1) as if
the plaintiff were the defendant and the defendant
the plaintiff.
22.09 Assessment of damages
Where judgment is given under this Order for
damages or the value of goods to be assessed, the
assessment shall be made in accordance with
Order 51.
22.10 Judgment where debt amount unascertained
Where on an application under this Order for
judgment on a claim for a debt the amount of the
debt is not established to the satisfaction of the
Court, and where if the amount were established
the Court would give judgment on the claim, the
Court may make a declaration as to liability for
the debt and order that its amount be ascertained
in such manner as the Court directs, and give
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leave to enter judgment for the debt once the
amount is ascertained.
22.11 Directions
(1) Where leave is given to defend, or where
judgment is given on a claim or part of a claim but
execution of the judgment is stayed pending the
trial of a counterclaim or of the proceeding, as the
case may be, the Court may give directions as to
the further conduct of the proceeding.
(2) The Court may direct that an affidavit made under
this Order shall serve as a defence or defence and
counterclaim, and may order the proceeding to be
forthwith set down for trial, and may define the
questions to be tried.
22.12 Continuing for other claim or against other defendant
Where the plaintiff obtains judgment on a claim or
part of a claim against any defendant, he may
continue with the proceeding for any other claim
or for the remainder of the claim or against any
other defendant.
22.13 Judgment for delivery up of chattel
Where the Court gives judgment under this Order
for the delivery up of a specific chattel, it may
order the party against whom judgment is given to
deliver up the chattel without giving him an option
to retain it on paying the assessed value thereof.
22.14 Relief against forfeiture
A tenant may apply for relief after judgment for
possession of land on the ground of forfeiture for
non-payment of rent has been given under this
Order as if the judgment were given after trial.
22.15 Setting aside judgment
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The Court may set aside or vary any judgment
given against a party who does not attend on the
hearing of an application under Rule 22.02 or
22.08.
ORDER 23
SUMMARY STAY OR DISMISSAL OF CLAIM AND
STRIKING OUT PLEADING
23.01 Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a
proceeding—
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in
relation to any claim or give judgment in the
proceeding generally or in relation to any claim.
(2) Where the defence to any claim in a proceeding—
(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious—
the Court may give judgment 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.
23.02 Striking out pleading
Where an indorsement of claim on a writ or
originating motion or a pleading or any part of an
indorsement of claim or pleading—
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(a) does not disclose a cause of action or
defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair
trial of the proceeding; or
(d) is otherwise an abuse of the process of the
Court—
the Court may order that the whole or part of the
indorsement or pleading be struck out or amended.
23.03 Summary judgment for defendant
On application by a defendant who has filed an
appearance the Court at any time may give
judgment for that defendant against the plaintiff if
the defendant has a good defence on the merits.
23.04 Affidavit evidence
(1) On an application under Rule 23.01 or 23.03
evidence shall be admissible for any party by
affidavit or, if the Court thinks fit, orally.
(2) On an application under Rule 23.02 no evidence
shall be admissible on the question whether an
indorsement of claim or pleading offends against
that Rule.
(3) Rule 22.07 applies to an affidavit under
paragraph (1).
23.05 Declaratory judgment
No proceeding shall be open to objection on the
ground that a merely declaratory judgment or
order is sought thereby, and the Court may make
binding declarations of right whether or not any
consequential relief is or could be claimed.
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ORDER 24
JUDGMENT ON FAILURE TO PROSECUTE OR OBEY
ORDER FOR PARTICULARS OR DISCOVERY
24.01 Judgment on dismissal
Where the plaintiff—
(a) being required to serve a statement of claim,
fails to do so within the time limited; or
(b) being entitled under Rule 48.02 to set the
proceeding down for trial, does not do so
within 28 days after the time he becomes
entitled—
the Court may order that the proceeding be
dismissed for want of prosecution.
24.02 Failure to obey order
(1) Where a party fails to comply with an order to
give particulars of any pleading or with an order
for the discovery or inspection of documents or for
answers to interrogatories, the Court may order—
(a) if the party is the plaintiff, that the
proceeding be dismissed;
(b) if the party is a defendant, that his defence, if
any, be struck out.
(2) A defendant whose defence is struck out in
accordance with paragraph (1)(b) shall, for the
purpose of Rule 21.02(1), be taken to be a
defendant who, being required to serve a defence,
does not do so within the time limited for that
purpose.
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24.03 Stay on non-payment of costs
Where a proceeding is dismissed for want of
prosecution and the plaintiff is liable to pay the
costs of the defendant of the proceeding, and the
plaintiff, before paying those costs commences
another proceeding for the same, or substantially
the same, cause of action, the Court may by order
stay the proceeding until those costs are paid.
24.04 Counterclaim and third party claim
This Order shall, with any necessary modification,
apply to a counterclaim and to a claim by third
party notice as if the counterclaim or the third
party claim were a proceeding.
24.05 Inherent jurisdiction
Nothing in this Order shall affect the inherent
power of the Court to dismiss any proceeding for
want of prosecution or to order that upon the
failure of a party to do any act or to take any step
which under these Rules he is required to do or
take or to comply with an order that he do any
such act or take any such step the proceeding shall
be dismissed or the defence struck out and that
judgment may be entered or that there be
judgment accordingly.
24.06 Setting aside judgment
The Court may set aside or vary—
(a) an order under this Order or an order referred
to in Rule 24.05;
(b) a judgment entered or given upon the failure
of a party to do any act or take any step
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which under these Rules he is required to do
or take or to comply with an order that he do
any such act or take any such step.
ORDER 25
DISCONTINUANCE AND WITHDRAWAL
25.01 Withdrawal of appearance
A party who has filed an appearance in a
proceeding may withdraw the appearance at any
time with the leave of the Court.
25.02 Discontinuance or withdrawal of proceeding or claim
(1) This Rule applies only to a proceeding
commenced by writ.
(2) A plaintiff may discontinue a proceeding or
withdraw any part of it—
(a) before the close of pleadings; or
(b) at any time, by leave of the Court or with the
consent of all other parties.
(3) A defendant may discontinue a counterclaim or
withdraw any part of it—
(a) before the close of pleadings; or
(b) at any time, by leave of the Court or with the
consent of all other parties to the
counterclaim.
(4) At any time the plaintiff may withdraw a defence
to counterclaim or any part of it and a defendant
may withdraw his defence or any part of it.
(5) Paragraph (4) does not enable a party to withdraw
an admission or any other matter operating for the
benefit of another party without the consent of that
party or the leave of the Court.
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(6) A defendant who has joined a third party may
discontinue the claim made against the third party
by the third party notice or withdraw any part of
the claim at any time by leave of the Court or with
the consent of the third party.
25.03 Proceeding not commenced by writ
A proceeding not commenced by writ may be
discontinued and any part of a proceeding not
commenced by writ may be withdrawn at any time
by leave of the Court or with the consent of all
other parties.
25.04 Notice of discontinuance or withdrawal
(1) A discontinuance or withdrawal without the leave
of the Court shall be made by filing a notice
stating the extent of the discontinuance or
withdrawal.
(2) When the discontinuance or withdrawal is with
the consent of other parties the notice under
paragraph (1) shall be indorsed with the consent of
each party who consents.
(3) On the day the notice is filed a copy shall be
served on each other party.
25.05 Costs
Where a proceeding, counterclaim or claim by
third party notice is discontinued, or where part of
a proceeding, counterclaim or third party notice is
withdrawn, liability for costs shall be determined
in accordance with Rule 63A.15.
25.06 Discontinuance or withdrawal no defence
The discontinuance of a proceeding, counterclaim
or claim by third party notice or the withdrawal of
any part of a proceeding, counterclaim or claim by
third party notice shall not be a defence to a
subsequent proceeding for the same, or
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substantially the same, cause of action, unless the
Court otherwise provides by any order granting
leave to discontinue or withdraw.
25.07 Stay on non-payment of costs
Where by reason of a discontinuance or a
withdrawal under this Order a party is liable to pay
the costs of any other party, and the party, before
paying those costs, commences another
proceeding for the same, or substantially the same,
cause of action, the Court may by order stay the
proceeding until those costs are paid.
ORDER 26
OFFER OF COMPROMISE
PART 1—INTERPRETATION
26.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"claim" includes a counterclaim and any claim
made in accordance with Order 11;
"defendant" includes a defendant by
counterclaim and a party against whom a
claim is made in accordance with Order 11;
"plaintiff" includes a defendant who serves a
counterclaim and a party who makes a claim
in accordance with Order 11.
PART 2—OFFER OF COMPROMISE
26.02 Application
(1) Where in any proceeding the plaintiff makes a
claim for damages for or arising out of death or
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bodily injury, the plaintiff and the defendant may
serve on one another an offer of compromise of
that claim on the terms specified in the offer.
(2) Where in any proceeding the plaintiff makes a
claim not of the kind referred to in paragraph (1),
the defendant may serve on the plaintiff, but the
plaintiff may not serve on the defendant, an offer
of compromise of that claim on the terms
specified in the offer.
(3) For the purpose of this Part an offer of
compromise shall—
(a) be in writing and be prepared in accordance
with Rules 27.02 to 27.04; and
(b) contain a statement to the effect that it is
served in accordance with this Part.
26.03 Time for making, accepting etc. offer
(1) An offer of compromise may be served at any time
before verdict or judgment in respect of the claim
to which it relates.
(2) A party may serve more than one offer of
compromise.
(3) An offer of compromise may be expressed to be
limited as to the time the offer is open to be
accepted after service on the party to whom it is
made, but the time expressed shall not be less than
14 days after such service.
(3.1) A party on whom an offer of compromise is
served shall within three days after service serve a
written acknowledgment of service on the party
serving the offer.
(4) A party on whom an offer of compromise is
served may accept the offer by serving notice of
acceptance in writing on the party who made the
offer before—
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(a) the expiration of the time specified in
accordance with paragraph (3) or, if no time
is specified, the expiration of 14 days after
service of the offer; or
(b) verdict or judgment in respect of the claim to
which the offer relates—
whichever event is the sooner.
(5) An offer of compromise shall not be withdrawn
during the time it is open to be accepted, unless
the Court otherwise orders.
(6) An offer of compromise is open to be accepted
within the period referred to in paragraph (4)
notwithstanding that during that period the party
on whom the offer is served makes an offer of
compromise to the party who served the offer of
compromise, whether or not the offer made by the
party served is made in accordance with this Part.
(7) Upon the acceptance of an offer of compromise in
accordance with paragraph (4), unless the Court
otherwise orders, the defendant shall pay the costs
of the plaintiff in respect of the claim up to and
including the day the offer was served.
(8) If an offer of compromise contains a term which
purports to negative or limit the operation of
paragraph (7), that term shall be of no effect for
any purpose under this Part.
26.03.1 Time for payment
An offer of compromise providing for payment of
a sum of money to a plaintiff shall, unless it
otherwise provides, be taken to be an offer
providing for payment of that sum within 14 days
after acceptance of the offer.
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26.04 Effect of offer
An offer of compromise made in accordance with
this Part shall be taken to be an offer of
compromise made without prejudice, unless the
offer otherwise provides.
26.05 Disclosure of offer to Court
(1) No statement of the fact that an offer of
compromise has been made shall be contained in
any pleading or affidavit.
(2) Where an offer of compromise has not been
accepted, then, except as provided by
Rule 26.08(6), no communication with respect to
the offer shall be made to the Court on the trial of
the proceeding until after all questions of liability
and the relief to be granted have been determined.
(3) Paragraphs (1) and (2) shall not apply where an
offer of compromise provides that the offer is not
made without prejudice.
26.06 Party under disability
A person under disability may make or accept an
offer of compromise, but no acceptance of an offer
made by him and no acceptance by him of an offer
shall be binding until the Court has approved the
compromise.
26.07 Failure to comply with accepted offer
(1) Where a party to an accepted offer of compromise
fails to comply with the terms of the offer, then,
unless for special cause the Court shall otherwise
order, the other party shall be entitled, as he may
elect, to—
(a) judgment in the terms of the accepted offer;
or
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(b) where the party in default is the plaintiff, an
order that the proceeding be dismissed, and
where the party in default is the defendant,
an order that his defence be struck out, and in
either case to judgment accordingly.
(2) Where a party to an accepted offer of compromise
fails to comply with the terms of the offer, and a
defendant in the proceeding has made a claim by
counterclaim or third party notice which is not the
subject of the accepted offer, the Court may make
such order or give such judgment under
paragraph (1) and make such order that the
proceeding, counterclaim or claim by third party
notice be continued as it thinks fit.
26.08 Costs consequences of failure to accept
(1) This Rule applies to an offer of compromise
which has not been accepted at the time of verdict
or judgment.
(2) Where an offer of compromise is made by a
plaintiff and not accepted by the defendant, and
the plaintiff obtains a judgment on the claim to
which the offer relates no less favourable to him
than the terms of the offer, then, unless the Court
otherwise orders, the plaintiff shall be entitled to
an order against the defendant for his costs in
respect of the claim taxed on a solicitor and client
basis.
(3) Where an offer of compromise is made by a
defendant and not accepted by the plaintiff, and
the plaintiff obtains a judgment on the claim to
which the offer relates not more favourable to him
than the terms of the offer, then, unless the Court
otherwise orders, the plaintiff shall be entitled to
an order against the defendant for his costs in
respect of the claim up to and including the day
the offer was served taxed on a party and party
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basis and the defendant shall be entitled to an
order against the plaintiff for his costs in respect
of the claim thereafter taxed on a party and party
basis.
(4) For the purpose of paragraph (3), where the offer
of compromise was served on the first or a later
day of the trial of the proceeding, then, unless the
Court otherwise orders, the plaintiff shall be
entitled to his costs in respect of the claim to the
opening of the court next after the day on which
the offer was served taxed on a party and party
basis, and the defendant shall be entitled to his
costs in respect of the claim thereafter taxed on a
party and party basis.
(5) Where a plaintiff obtains judgment for the
recovery of a debt or damages and—
(a) the amount for which the Court pronounces
judgment includes an amount for interest or
damages in the nature of interest; or
(b) by or under any Act the Court awards the
plaintiff interest or damages in the nature of
interest in respect of the judgment amount—
for the purpose of determining the consequences
as to costs referred to in paragraph (2) and (3) the
Court shall disregard so much of the amount
recovered by or awarded to the plaintiff for
interest or damages in the nature of interest as
relates to the period after the day the offer of
compromise was served.
(6) For the purpose only of paragraph (5), the Court
may be informed of the fact that the offer of
compromise was served, and of the date of
service, but shall not be informed of its terms.
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(7) Paragraphs (2) and (3) shall not apply unless the
Court is satisfied by the party serving the offer of
compromise that he was at all material times
willing and able to carry out his part of what was
proposed in the offer.
26.09 Multiple defendants
Where two or more defendants are alleged to be
jointly or jointly and severally liable to the
plaintiff in respect of a debt or damages and rights
of contribution or indemnity appear to exist
between the defendants, the consequences as to
costs referred to in Rule 26.08 shall not apply to
an offer of compromise unless—
(a) in the case of an offer made by the plaintiff,
the offer is made to all the defendants, and is
an offer of compromise of the claim against
all of them;
(b) in the case of an offer made to the plaintiff—
(i) the offer is to compromise the claim
against all defendants; and
(ii) where the offer is made by two or more
defendants, by the terms of the offer the
defendants who made the offer are
jointly or jointly and severally liable to
the plaintiff for the whole amount of the
offer.
26.10 Offer to contribute
(1) Where in any proceeding a defendant makes a
claim (in this Rule called "a contribution claim")
to recover contribution or indemnity against any
person, whether a defendant to the proceeding or
not, in respect of any claim for a debt or damages
made by the plaintiff in the proceeding, any party
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to the contribution claim may serve on any other
party to the contribution claim an offer to
contribute toward a compromise of the claim
made by the plaintiff on the terms specified in the
offer.
(2) The Court may take an offer to contribute into
account in determining whether it should order
that the party on whom the offer to contribute was
served should pay the whole or part of—
(a) the costs of the party who made the offer;
(b) any costs which that party is liable to pay to
the plaintiff.
(3) Rules 26.04 and 26.05 shall, with any necessary
modification, apply to an offer to contribute as if it
were an offer of compromise.
PART 3—OTHER COMPROMISE OFFERS
26.11 Costs consequences where other claim by plaintiff
(1) Where in a proceeding in which the plaintiff
makes a claim not of the kind referred to in
Rule 26.02(1)—
(a) the plaintiff has made an offer in writing to
the defendant (whether or not expressed to
be without prejudice) to compromise the
claim on the terms specified in the offer;
(b) the offer was open to be accepted for a
reasonable time; and
(c) the plaintiff obtains a judgment on the claim
no less favourable to him than the terms of
the offer—
the Court shall take those matters, and also the
stage of the proceeding at which the offer was
made, into account in determining what order for
costs to make in respect of the claim.
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(2) The Court may, in exercising its discretion as to
costs in accordance with paragraph (1), order that
the defendant pay the costs of the plaintiff in
respect of the claim, taxed on a solicitor and client
basis, from the commencement of the proceeding,
from the day the offer was made or from such
other time as the Court thinks fit.
26.12 Costs consequences where counterclaim
(1) Where a plaintiff claims against a defendant the
recovery of a debt or damages and by
counterclaim the defendant claims against the
plaintiff the recovery of a debt or damages
(whether or not the claim of the defendant is also
included in the defence in accordance with Rule
13.14), and—
(a) one party has made an offer in writing to the
other (whether or not expressed to be without
prejudice) to compromise the claim of each
of them on terms specified in the offer;
(b) the offer was open to be accepted for a
reasonable time; and
(c) the judgment of the Court (whether or not it
gives judgment in accordance with Rule
10.09) is no less favourable to the party who
made the offer than the terms of the offer—
the Court shall take those matters, and also the
stage of the proceeding at which the offer was
made, into account in determining what order to
make for costs in respect of the party who served
the offer.
(2) The Court may, in exercising its discretion as to
costs in accordance with paragraph (1), order that
the party to whom the offer was made pay the
costs of the party who made the offer, taxed on a
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solicitor and client basis, from the commencement
of the proceeding, from the day the offer was
made or from such other time as the Court thinks
fit.
ORDER 27
CONTENT AND FORM OF COURT DOCUMENTS
27.01 Conformity with Rules
Except to the extent that the nature of the
document renders compliance impracticable, a
document prepared by a party for use in the Court
shall be prepared in accordance with these Rules.
27.02 Heading of document
(1) A document shall be headed "In the County Court
of Victoria at", stating in which office of the Court
the proceeding commenced, and shall show any
identifying number assigned by the Court to the
proceeding.
(2) Where a proceeding is commenced by originating
motion and the claim of the plaintiff arises under
any Act, the heading of a document shall also state
"In the matter of", identifying the specific
provision relied on.
(3) Subject to paragraphs (5) and (6), the heading of a
document shall include the title to the proceeding
and the title to the proceeding shall name the
parties.
(4) Except where otherwise provided by these Rules,
a document in a proceeding in which there is no
defendant shall be entitled "The application of",
naming the plaintiff.
(5) Where there are more than two plaintiffs the
heading of a document shall state the full name of
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the first plaintiff followed by the words "and
others" and similarly with respect to defendants
and other parties.
(6) In the case of originating process or a judgment or
order authenticated in accordance with Order 60A
or process of execution, if the heading of the
document is in accordance with paragraph (5)—
(a) immediately after the words "and others" in
the title to the document there shall follow
the words "according to the schedule"; and
(b) a schedule stating the full names of all the
parties to the proceeding, and dated, shall be
part of the document.
27.03 Form of document
(1) A document shall be of durable white paper 297
millimetres by 210 millimetres, the size known as
International Paper Size A4, and be capable of
receiving writing in ink.
(2) Except in the case of a form published by a law
stationer, one side only of the paper shall be used,
with double spacing between the lines and a left-
hand margin of at least 40 millimetres.
(3) The text of a document shall be printed or
typewritten in at least 12 point type and shall be
clear, sharp, legible and permanent.
(4) A document shall not bear any erasure or
alteration that causes material disfigurement.
(5) Subject to Rule 27.02(5) and (6), the heading of
the document shall be indorsed on the first sheet
of the document and shall be followed
immediately by a short description of the
document.
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(6) The heading shall occupy a space at the top of the
first sheet of the document not exceeding
100 millimetres in depth.
(7) The description of the document shall, in the case
of an affidavit, include the name of the deponent.
(8) A document shall also be indorsed on the first
sheet with—
(a) the date of the document;
(b) the party or other person on whose behalf it
is filed;
(c) if a solicitor prepares the document,
particulars in accordance with paragraph
(11); and
(d) if the party or person on whose behalf the
document is filed is acting without a
solicitor, particulars in accordance with
paragraph (12).
(9) The indorsements referred to in paragraph (8)
shall occupy a space immediately following the
description of the document and not exceeding
50 millimetres in depth.
(10) Paragraph (8)(a) is satisfied by indorsement
with—
(a) in the case of originating process or a
summons, the date of filing;
(b) in the case of a pleading, the date the
document was made;
(c) in the case of an affidavit, the date of
swearing.
(11) The particulars referred to in paragraph (8)(c) are
the name, address, telephone number, document
exchange number and code reference of the
solicitor's firm and the name of an individual in
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the firm to whom reference can be made in respect
of the proceeding.
(12) The particulars referred to in paragraph (8)(d) are
the name, address and telephone number of the
party or other person on whose behalf the
document is filed.
(13) A document or copy document which is to be filed
shall not be folded and, if comprising more than
one sheet, shall be fastened only at the top left
hand corner.
(14) The Court may require any document to be
prepared in any other manner it thinks fit.
27.04 Numbers
Dates, amounts and other numbers shall be
expressed in figures and not in words.
27.05 Copies on request
(1) A party who prepares a document for use in the
Court shall, on the request of any other party
entitled to a copy of the document and on payment
of a charge at the rate set forth in Appendix A for
photocopying a document, supply that party with a
photocopy of the document.
(2) A person against whom an order is made without
notice shall be entitled to a copy of any document
used in support of the application for the order,
and paragraph (1) shall apply accordingly.
27.06 Registrar refusing to seal or accept document
(1) The Registrar may refuse to seal an originating
process without the direction of the Court where
the Registrar considers that the form or contents of
the document show that were the document to be
sealed the proceeding so commenced would be
irregular or an abuse of the process of the Court.
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(2) Where a document for use in the Court is not
prepared in accordance with these Rules or any
order of the Court—
(a) the Registrar may refuse to accept it for filing
without the direction of the Court;
(b) the Court may order that the party
responsible shall not be entitled to rely upon
it in any manner in the proceeding until a
document which is duly prepared is made
available.
(3) The Court may direct the Registrar to seal an
originating process or accept a document for
filing.
27.07 Scandalous matter
Where a document for use in the Court contains
scandalous, irrelevant or otherwise oppressive
matter, the Court may order—
(a) that the matter be struck out; or
(b) if the document has been filed, that it be
taken off the file.
ORDER 28
FILING AND SEALING OF COURT DOCUMENTS
28.01 How document filed
(1) Subject to paragraph (2), a document in a
proceeding is filed by filing it—
(a) in the office of the Registrar or, where a
proceeding is commenced in an office of the
Court outside Melbourne, in that office; or
(b) with the proper officer in court.
(2) * * * * *
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28.02 Proceedings commenced outside Melbourne
Unless the Court otherwise orders or the Registrar
allows—
(a) a document filed in an office of the Court
outside Melbourne shall remain in the
custody of the Registrar at that office;
(b) a document in a proceeding commenced in
an office of the Court outside Melbourne
shall not be filed in any other office.
28.03 Date of filing
The Registrar shall indorse the date and time of
filing on every document filed.
28.04 Seal of Court
(1) Every Master, and the Registrar shall each have in
his custody a stamp the design of which shall as
near as practicable be the same as the design of the
seal of the Court with the addition of, in the case
of—
(a) a Master, the word "Master";
(b) the Registrar, the word "Registrar".
(2) * * * * *
(3) Making a document or a copy of a document with
a stamp referred to in paragraph (1) is sufficient
compliance with any requirement of these Rules
or an order of the Court that the document or copy
be sealed with the seal of the Court.
28.05 Inspection of documents
(1) When the office of the Court is open, any person
may, on payment of the proper fee, inspect and
obtain a copy of any document filed in a
proceeding.
(2) Notwithstanding paragraph (1)—
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(a) no person may inspect or obtain a copy of a
document which the Court has ordered
remain confidential;
(b) a person not a party may not without leave of
the Court inspect or obtain a copy of a
document which in the opinion of the
Registrar ought to remain confidential to the
parties.
28.06 Production of Court document
Production to the Court of a document in a
proceeding shall be obtained by filing a notice to
produce the document in the office of the
Registrar or, where the document is in an office of
the Court outside Melbourne, in that office.
28.07 Offices of the Court
For the purpose of this Order the office of the
Court in Melbourne includes the offices of the
Court in Frankston and Dandenong.
ORDER 29
DISCOVERY AND INSPECTION OF DOCUMENTS
29.01 Application and definition
(1) Except where the Rules of this Order otherwise
provide, the Order applies only to a proceeding
commenced by writ and to a proceeding in respect
of which an order has been made under
Rule 4.07(1).
(2) In this Order "possession" means possession,
custody or power.
29.02 Notice for discovery
(1) Where the pleadings between any parties are
closed, any of those parties may, by notice for
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discovery served on any other of those parties,
require the party served to make discovery of all
documents which are or have been in his
possession relating to any question raised by the
pleadings.
(2) A notice for discovery shall be in Form 29A.
(3) A notice for discovery served before the pleadings
are closed shall be taken to have been served on
the day after the pleadings close.
(4) Notwithstanding paragraph (1), a notice for
discovery shall not be served without leave of the
Court in—
(a) a proceeding under the Workers
Compensation Act 1958; or
(b) a proceeding under the Accident
Compensation Act 1985.
29.03 Discovery after notice
A party upon whom a notice for discovery is
served shall make discovery of documents within
42 days after—
(a) service of the notice; or
(b) the day upon which the notice is taken by
virtue of Rule 29.02(3) to have been
served—
whichever is the later.
29.04 Affidavit of documents
An affidavit of documents for the purpose of
making discovery of documents shall be in
Form 29B and shall—
(a) identify the documents which are or have
been in the possession of the party making
the affidavit;
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(b) enumerate the documents in convenient
order and shall describe each document or, in
the case of a group of documents of the same
nature, shall describe the group, sufficiently
to enable the document or group to be
identified;
(c) distinguish those documents which are in the
possession of the party making the affidavit
from those that have been but are no longer
in his possession, and shall as to any
document which has been but is no longer in
the possession of the party, state when he
parted with the document and his belief as to
what has become of it;
(d) where the party making the affidavit claims
that any document in his possession is
privileged from production, state sufficiently
the grounds of the privilege.
29.05 Order limiting discovery
In order to prevent unnecessary discovery, the
Court may, before or after any party is required to
make discovery by virtue of a notice for discovery
served in accordance with Rule 29.02, order that
discovery by any party shall not be required or
shall be limited to such documents or classes of
document, or to such of the questions in the
proceeding, as are specified in the order.
29.06 Co-defendants and third party
(1) A defendant who has pleaded shall be entitled to
obtain from the party making discovery a copy of
any affidavit of documents served on—
(a) the plaintiff by any other defendant to the
proceeding;
(b) any other defendant by the plaintiff.
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(2) Where the defendant has served a counterclaim
joining another person with the plaintiff as
defendant to the counterclaim in accordance with
Rule 10.03, paragraph (1) shall, with any
necessary modification, apply as if the defendant
were the plaintiff and the plaintiff and the other
person were the defendants.
(3) A third party who has pleaded shall be entitled to
obtain from the party making discovery a copy of
any affidavit of documents served—
(a) by the plaintiff on the defendant by whom he
was joined;
(b) on the plaintiff by that defendant.
29.07 Order for discovery
(1) In a proceeding within Rule 29.01,
notwithstanding that the pleadings between any
parties are not closed, the Court may order that
any of those parties make discovery of documents
to any other of those parties.
(2) In a proceeding not within Rule 29.01 the Court
may at any stage order any party to make
discovery of documents.
(3) An order under paragraph (1) or (2) may be
limited to such documents or classes of document,
or to such questions in the proceeding, as the
Court thinks fit.
29.08 Order for particular discovery
(1) This Rule applies to any proceeding in the Court.
(2) Where, at any stage of a proceeding, it appears to
the Court from evidence or from the nature or
circumstances of the case or from any document
filed in the proceeding that there are grounds for a
belief that some document or class of document
relating to any question in the proceeding may be
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or may have been in the possession of a party, the
Court may order that party to make and serve on
any other party an affidavit stating whether that
document or any and if so what document or
documents of that class is or has been in his
possession and, if it has been but is no longer in
his possession, when he parted with it and his
belief as to what has become of it.
(3) An order may be made against a party under
paragraph (2) notwithstanding that he has already
made or been required to make an affidavit of
documents.
29.09 Inspection of documents referred to in affidavit of
documents
(1) A party upon whom an affidavit of documents is
served in accordance with Rule 29.03 or in
accordance with an order made under Rule 29.07
or 29.08 and a party to whom an affidavit of
documents is supplied in accordance with
Rule 29.06 may, by notice to produce served on
the party making the affidavit, require that the
party produce the documents in his possession
referred to in the affidavit (other than any which
he objects to produce) for inspection.
(2) A party upon whom a notice to produce is served
in accordance with paragraph (1) shall, within
seven days after that service, serve on the party
requiring production a notice appointing a time
within seven days after service of the notice under
this paragraph when, and a place where, the
documents may be inspected.
(3) A notice to produce under paragraph (1) shall be
in Form 29C.
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(4) A party to whom documents are produced for
inspection under this Rule may take copies of the
documents.
(5) For the purpose of paragraph (4), taking a copy of
a document includes photocopying the document,
and if the party to whom a document is produced
states that he wishes to have it photocopied, the
party producing the document shall at his option
either allow the other party to photocopy the
document at such place as the parties agree or
supply the other party with a photocopy of the
document.
(6) Unless the Court otherwise orders, the cost of a
photocopy of a document supplied to a party in
accordance with paragraph (5) shall—
(a) be borne by that party in the first instance
and be ultimately a cost in the proceeding;
and
(b) be in the amount allowed in Appendix A for
copy documents.
29.10 Inspection of documents referred to in pleadings and
affidavits
(1) This Rule applies to any proceeding.
(2) Where in the originating process filed by a party
or in any pleading, interrogatories or answers,
affidavit, or notice filed by a party reference is
made to a document, any other party may, by
notice to produce served on that party, require him
to produce the document for inspection.
(3) Except as provided by paragraph (4), Rule 29.09
shall, with any necessary modification, apply to
the production and inspection of a document
under this Rule.
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(4) A party upon whom a notice to produce is served
under paragraph (2) shall not be required to
produce a document for inspection where—
(a) he claims that the document is privileged
from production, and he makes and serves on
the other party an affidavit in which he
makes that claim and states sufficiently the
grounds of the privilege;
(b) the document is not in his possession, and he
makes and serves on the other party an
affidavit in which he states that fact and
states to the best of his knowledge,
information and belief where the document is
and in whose possession it is, and, where the
document has been but is no longer in his
possession, when he parted with it and his
belief as to what has become of it.
(5) A notice to produce under paragraph (2) shall be
in Form 29C.
29.11 Order for discovery
Where a party—
(a) fails to make discovery of documents in
accordance with Rules 29.03 and 29.04;
(b) fails to serve a notice appointing a time for
inspection of documents as required by
Rule 29.09 or 29.10;
(c) objects to produce any document for
inspection;
(d) offers inspection unreasonable as to time or
place; or
(e) objects to allow any document to be
photocopied or to supply a photocopy of the
document—
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the Court may order the party to do such act as the
case requires.
29.12 Direction as to documents
(1) Where a party is entitled under this Order to
inspect a document which consists of—
(a) a video tape, audio tape, disc, film or other
means of recording, the Court may give
directions for the screening or playing
thereof and for the making by or supply to
the party of a transcript of the recording
(insofar as it can be transcribed) or a copy of
the recording;
(b) information which has been processed by or
is stored in a computer, the Court may give
directions for making the information
available.
(2) On an application under paragraph (1) the Court
may make an order for the costs and expenses of
the party against whom an order giving directions
is sought.
(3) The Court may make an order giving directions on
condition that the party applying give security for
the costs and expenses of the party against whom
the order is made.
29.12.1 Default notice
(1) This Rule shall not limit the power of the Court
under Rule 24.02.
(2) If a party required to make discovery of
documents fails to make discovery within the time
limited by these Rules or fixed by any order of the
Court, the party entitled to the discovery may
serve on that party a notice in Form 29D.
(3) If within seven days after service of a notice under
paragraph (2) the party on whom the notice is
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served does not make discovery, the Court may
order—
(a) if the party required to make discovery is the
plaintiff, that the proceeding be dismissed;
(b) if the party required to make discovery is a
defendant, that his defence, if any, be struck
out.
(4) This Rule shall, with any necessary modification,
apply to a counterclaim and to a claim by third
party notice as if the counterclaim or the third
party claim were a proceeding.
(5) A defendant whose defence is struck out in
accordance with paragraph (3) shall, for the
purpose of Rule 21.02(1), be taken to be a
defendant who, being required to serve a defence,
does not do so within the time limited for that
purpose.
(6) The Court may set aside or vary an order made
under paragraph (3).
29.13 Inspection of document by Court
Where an application is made for an order under
Rule 29.11 and a claim is made that the document
is privileged from production or objection to
production is made on any other ground, the Court
may inspect the document for the purpose of
deciding the validity of the claim or objection.
29.14 Default on discovery
(1) Without limiting Rule 24.02, a party who does not
within the time limited comply with an order
under Rule 29.08(2) or 29.11, or an order under
Rule 29.12(1) giving directions shall be liable to
committal.
(2) Service on the solicitor for a party of an order for
discovery or production of documents made
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against that party shall be sufficient service to
found an application for committal of the party
disobeying the order but the party may show in
answer to the application that he had no notice or
knowledge of the order.
(3) A solicitor on whom such an order made against
his client is served and who fails without
reasonable excuse to give notice thereof to his
client shall be liable to committal.
29.15 Continuing obligation to make discovery
A party who has made an affidavit of documents
is under a continuing obligation to make discovery
of documents with respect to documents of which
the party obtains possession after making the
affidavit.
ORDER 30
INTERROGATORIES
30.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"interrogating party" means a party who serves
interrogatories;
"party interrogated" means a party on whom
interrogatories are served;
"servant or agent", in relation to a corporation,
includes officer and member.
30.02 When interrogatories allowed
(1) Subject to the other paragraphs of this Rule, any
party may serve interrogatories on another party
relating to any question between them in the
proceeding.
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(2) Where the pleadings between any parties are
closed, interrogatories may be served without
leave of the Court by any of those parties on any
other of them.
(3) Where paragraph (2) does not apply, the Court
may order that any party may serve interrogatories
on any other party.
(4) By leave of the Court an interrogating party may
serve further interrogatories.
(5) An interrogatory served without reasonable cause
is, for the purpose of Rule 63A.70, work which is
not necessary.
(6) Interrogatories shall not be served on any other
party without leave of the Court in—
(a) a proceeding under the Workers
Compensation Act 1958; or
(b) a proceeding under the Accident
Compensation Act 1985.
30.03 Statement as to who to answer
Where interrogatories are to be answered by two
or more parties, the interrogating party shall state
in the document containing the interrogatories
which of them each party is required to answer.
30.04 Filing interrogatories and time for answers
Where interrogatories are served—
(a) the interrogating party shall forthwith file a
copy;
(b) the party interrogated shall within 42 days
after service answer by affidavit, file it and
serve a copy on the interrogating party.
30.05 Source for answers to interrogatories
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(1) A party interrogated shall answer each
interrogatory insofar as it is not objectionable in
accordance with the following provisions—
(a) the party shall answer from his own
knowledge of the fact or matter which is
inquired after by the interrogatory, and, if he
has no such knowledge, from any belief he
has as to that fact or matter;
(b) a party who has a knowledge of the fact or
matter inquired after shall be taken not to
have a belief as to the fact or matter where he
has no information relating to the fact or
matter on which to form a belief or where, if
he has such information, for reasonable
cause he has no belief that the information is
true;
(c) except as provided by paragraph (d), the
party shall answer from any belief he has as
to the fact or matter inquired after
irrespective of the source of the information
on which the belief is formed;
(d) the party shall not be required to answer
from his belief as to any fact or matter where
the belief is formed on information that was
given to him in a communication the
contents of which he could not, on the
ground of privilege, be compelled to
disclose;
(e) where the party has no knowledge himself of
the fact or matter inquired after, he shall, for
the purpose of enabling himself to form a
belief as to the fact or matter (so far as he
can), make all reasonable inquiries to
determine—
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(i) whether any person has knowledge of
the fact or matter which was acquired
by that person in the capacity of his
servant or agent; and
(ii) if that is the case, what that knowledge
is;
(f) the party shall make the inquiries referred to
in paragraph (e) notwithstanding that at the
time he is required to answer the
interrogatory any person having the relevant
knowledge has ceased to be his servant or
agent;
(g) where the party is a corporation, this Rule
shall, with any necessary modification, apply
as if the person who answers the
interrogatories on behalf of the corporation
were that party, and, in particular, as if the
reference in paragraph (e) to a servant or
agent of the party were a reference to a
servant or agent of the corporation.
(2) Where an interrogatory relates to a fact or matter
alleged in the pleading of the party interrogated,
nothing in paragraph (1)(d) shall affect the right of
the interrogating party to obtain information as to
that fact or matter pursuant to an application of the
kind referred to in Rule 13.11.
30.06 How interrogatories to be answered
(1) A party interrogated shall answer each
interrogatory specifically by answering the
substance of the interrogatory without evasion
except insofar as it is objectionable on any of the
grounds referred to in Rule 30.07.
(2) Where the party objects to answer an interrogatory
he shall state briefly the ground of objection and
the facts, if any, on which it is based.
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30.07 Ground of objection to answer
(1) A party interrogated shall answer each
interrogatory except to the extent that it may be
objected to on any of the following grounds—
(a) the interrogatory does not relate to any
question between him and the interrogating
party;
(b) the interrogatory is unclear or vague or is too
wide;
(c) the interrogatory is oppressive;
(d) the interrogatory requires him to express an
opinion which he is not qualified to give;
(e) privilege.
(2) Without limiting paragraph (1)(a), an interrogatory
that does not relate to any question include an
interrogatory the sole purpose of which is to—
(a) impeach the credit of the party interrogated;
(b) enable the interrogating party to ascertain
whether he has a claim or defence other than
that which he has raised in the proceeding;
(c) enable the interrogating party to ascertain the
evidence by which the party interrogated
intends to prove his case, including the
identity of witnesses.
(3) A party may not object to answer an interrogatory
on the ground that he cannot answer without going
to a place which is not his usual place of residence
or business if the interrogating party undertakes to
pay the reasonable cost of his going there, unless
the Court otherwise orders.
30.08 Who to answer interrogatories
(1) Interrogatories shall be answered—
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(a) where the party interrogated is—
(i) a natural person, by the party;
(ii) a person under disability, but that
person or his litigation guardian,
whichever is appropriate;
(iii) a corporation, by an officer of the
corporation or by any person duly
authorised by it to answer; or
(b) by such person as the Court may direct.
(2) The answers of a person made in accordance with
a direction given under paragraph (1)(b) shall be
as effective and binding in all respects as if made
by the party interrogated.
30.09 Failure to answer interrogatories
Where a party interrogated fails to answer the
interrogatories within the time limited or does not
answer the interrogatories sufficiently, the Court
may order that he answer or answer further, as the
case may be, within such time as it directs.
30.09.1 Default notice
(1) This Rule shall not limit the power of the Court
under Rule 24.02.
(2) If a party interrogated fails to answer
interrogatories within the time limited by the
Rules or fixed by any order of the Court, the
interrogating party may serve on that party a
notice in Form 30A.
(3) If within seven days after service of a notice under
paragraph (2) the party interrogated does not
answer the interrogatories, the Court may order—
(a) if the party interrogated is the plaintiff, that
the proceeding be dismissed;
r. 30.09
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(b) if the party interrogated is a defendant, that
his defence, if any, be struck out.
(4) This Rule shall, with any necessary modification,
apply to a counterclaim and to a claim by third
party notice as if the counterclaim or the third
party claim were a proceeding.
(5) A defendant whose defence is struck out in
accordance with paragraph (3) shall, for the
purpose of Rule 21.02(1), be taken to be a
defendant who, being required to serve a defence,
does not do so within the time limited for that
purpose.
(6) The Court may set aside or vary an order made
under paragraph (3).
30.10 Non-compliance with order
(1) Without limiting Rule 24.02, a party who does not
within the time limited comply with an order
made under Rule 30.09 shall be liable to
committal.
(2) Service on the solicitor for a party of an order
made against that party under Rule 30.09 shall be
sufficient service to found an application for
committal of the party disobeying the order, but
the party may show in answer to the application
that he had no notice or knowledge of the order.
(3) A solicitor on whom such an order made against
his client is served and who fails without
reasonable excuse to give notice thereof to his
client shall be liable to committal.
30.11 Answers as evidence
(1) On an application in or at the trial of a proceeding
a party may tender as evidence—
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(a) one or more answers to interrogatories given
by another party without tendering the
others;
(b) part of an answer to an interrogatory without
tendering the whole of the answer.
(2) Upon the tender of the whole or part of an answer
to an interrogatory, the Court may look at the
whole of the answers and if any other answer or
any part of an answer is so connected with the
matter tendered that the matter tendered ought not
to be used without the other answer or part, the
Court may reject the tender unless that other
answer or part is also tendered.
(3) Where the answer of a party interrogated is stated
to be given on the basis of belief, and the answer
is received into evidence, the Judge or the jury, as
the case may be, shall give the answer such weight
as the circumstances require.
ORDER 31
DISCOVERY BY ORAL EXAMINATION
31.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"examining party" means a party who orally
examines or is to examine orally another
party in accordance with this Order;
"examiner" means examiner appointed under this
Order;
"party examined" means a party orally examined
or to be orally examined by another party in
accordance with this Order, and includes,
where the party is a corporation, the officer
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of the corporation or other person attending
to be examined in accordance with
Rule 31.08(1).
31.02 When available
(1) Where under these Rules a party may serve
interrogatories on another party relating to any
question between them in the proceeding, that
party may, subject to this Rule, orally examine the
other party in relation to that question.
(2) A party shall not be orally examined by another
except with his consent given in accordance with
Rule 31.04.
(3) A party who has consented to be orally examined
by another shall not be required to answer written
interrogatories served by the other unless he has
undertaken to do so.
31.03 Party a corporation
A party which is a corporation may be orally
examined under this Order.
31.04 How consent given
The consent of a party to be orally examined shall
be in writing, state the name of the examiner and
be filed.
31.05 Effect of consent
Where the consent of a party to be orally
examined is filed under Rule 31.04—
(a) the party shall be liable to be examined in
accordance with this Order;
(b) if the party fails to comply with an order of
the Court to attend an examination or answer
a question, Rule 24.02 shall, with any
necessary modification, apply as if the failure
r. 31.03
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were a failure of a kind referred to in that
Rule;
(c) at the trial of or on the hearing of an
application in the proceeding the examining
party may, in accordance with Rule 30.11,
use in evidence the answers given under this
Order by the party examined, and that Rule
shall, with any necessary modification, apply
as if the answers were answers of the party
examined to written interrogatories served by
the examining party.
31.06 Appointment of examiner
(1) An examination shall be held before an examiner
who has been appointed by agreement of the
parties and who consents to be appointed.
(2) The consent of the examiner shall be in writing
and be filed.
31.07 Attendance on examination
(1) The time and place of the examination shall be
determined by the examiner.
(2) The party examined shall attend the examination
to be examined by the examining party.
(3) Counsel and solicitor for each party may attend
the examination.
(4) If the party examined fails to attend an
examination, the Court may order that the party
attend to be examined in accordance with this
Order at such time and place as it directs.
31.08 Party a corporation
(1) Where the party examined is a corporation—
(a) an officer of the corporation; or
r. 31.06
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(b) by agreement of the party examined and the
examining party, a person who is not an
officer—
shall be examined and any answer given shall be
taken to be the answer of the corporation.
(2) Unless the party examined and the examining
party otherwise agree, nothing in paragraph (1)
shall be taken to authorise the examination of
more than one person.
31.09 Powers of examiner
The examiner may administer oaths and receive
affirmations and may adjourn the examination
from time to time and from place to place.
31.10 Record of examination
(1) A deposition of the examination of the party
examined shall be made.
(2) Where objection is taken to any question,
proceedings before the examiner with respect to
the objection shall be recorded in the deposition.
(3) The deposition shall be authenticated by the
signature of the examiner, and forthwith after
signing the deposition the examiner shall give
notice in writing to the party examined and the
examining party of the authentication.
31.11 How party to be examined
(1) On the examination the party examined shall be
questioned by or on behalf of the examining party
and no questions shall be asked of the party
examined by his own counsel or solicitor.
r. 31.09
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(2) The examination shall be in the nature of an
examination-in-chief of the party examined by the
examining party.
(3) The party examined shall answer each question
asked of him unless it may be objected to on any
of the grounds referred to in Rule 30.07, and that
Rule shall, with any necessary modification, apply
as if the examination were an examination of the
party by written interrogatories.
(4) Where the party examined answers a question, the
party shall answer in accordance with Rules 30.05
and 30.06(1), and those Rules shall, with any
necessary modification, apply as if the
examination were an examination of the party by
written interrogatories.
(5) A question may be answered by the counsel or
solicitor for the party examined, and the answer
shall be taken to be the answer of the party.
(6) Where Rule 30.05(1)(e) applies, the examiner may
adjourn the examination to enable the party
examined to make the inquiries referred to in that
Rule.
31.12 Procedure on objection to question
(1) This Rule applies where objection is taken to
answering a question on the examination.
(2) The party examined shall state each ground of
objection to answering, but, unless the Court
otherwise orders, shall not be required to answer
the question.
(3) The examining party may apply to the Court under
Rule 31.13 for an order that the party examined
answer the question.
31.13 Order to answer question
r. 31.12
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(1) An application by the examining party under
Rule 31.12(3) shall be made to a Master by
summons identifying each question to which the
application relates.
(2) The Master may order that the party examined
shall answer any question in respect of which the
application is made.
(3) If an order is made under paragraph (2), unless the
Master otherwise orders, the party shall answer the
question before the examiner, and the Master may
direct that the examining party be at liberty to ask
such further questions of the party examined as
the case requires.
(4) The Master may order that the party examined
shall answer the question in writing and may
direct whether that answer shall be given on oath
or not.
31.14 Costs
The costs of an examination shall be costs in the
proceeding, unless the Court otherwise orders.
ORDER 32
PRELIMINARY DISCOVERY AND DISCOVERY FROM
NON-PARTY
32.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"applicant" means applicant for an order under
this Order;
"description" includes the name, place of
residence, place of business, occupation and
sex of the person against whom the applicant
r. 31.14
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desires to bring a proceeding and whether
that person is an individual or a corporation;
"possession" means possession, custody or
power.
32.02 Privilege
An order made under this Order shall not operate
to require the person against whom the order is
made to produce any document or answer any
question which, on the ground of privilege, he is
not required to produce or answer.
32.03 Discovery to identify a defendant
(1) Where an applicant, having made reasonable
inquiries, is unable to ascertain the description of
a person sufficiently for the purpose of
commencing a proceeding in the Court against
that person (in this Rule called "the person
concerned") and it appears that some person has or
is likely to have knowledge of facts, or has or is
likely to have or has had or is likely to have had in
his possession any document or thing, tending to
assist in such ascertainment, the Court may make
an order under paragraph (2).
(2) The Court may order that the person, and in the
case of a corporation, the corporation by an
appropriate officer, shall—
(a) attend before the Court to be orally examined
in relation to the description of the person
concerned;
(b) make discovery to the applicant of all
documents which are or have been in his or
its possession relating to the description of
the person concerned.
(3) Where the Court makes an order under paragraph
(2)(a), it may—
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(a) order that the person or corporation against
whom or which the order is made shall
produce to the Court on the examination any
document or thing in his or its possession
relating to the description of the person
concerned;
(b) direct that the examination be held before a
Master.
32.04 Party an applicant
Rule 32.03 shall, with any necessary modification,
apply where the applicant is a party to a
proceeding and wishes to make in the proceeding
against a person who is not a party a claim which
he could properly have made in the proceeding
had the person been a party.
32.05 Discovery from prospective defendant
Where—
(a) there is reasonable cause to believe that the
applicant has or may have the right to obtain
relief in the Court from a person whose
description he has ascertained;
(b) after making all reasonable inquiries, the
applicant has not sufficient information to
enable him to decide whether to commence a
proceeding in the Court to obtain that relief;
and
(c) there is reasonable cause to believe that that
person has or is likely to have or has had or
is likely to have had in his possession any
document relating to the question whether
the applicant has the right to obtain the relief
and that inspection of the document by the
applicant would assist him to make the
decision—
r. 32.04 r. 32.05
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the Court may order that that person shall make
discovery to the applicant of any document of the
kind described in paragraph (c).
32.06 Party an applicant
Rule 32.05 shall, with any necessary modification,
apply where the applicant is a party to a
proceeding and there is reasonable cause to
believe that he has or may have the right to obtain
against a person who is not a party relief which he
could properly have claimed in the proceeding had
the person been a party.
32.07 Discovery from non-party
On the application of any party to a proceeding the
Court may order that a person who is not a party
and in respect of whom it appears that he has or is
likely to have or has had or is likely to have had in
his possession any document which relates to any
question in the proceeding shall make discovery to
the applicant of any such document.
32.08 Procedure
(1) An application under Rule 32.03 or 32.05 shall be
made by originating motion to which the person
against whom the order is sought shall be made
respondent.
(2) An application under Rule 32.04, 32.06 or 32.07
shall be made by summons served on every party
to the proceeding and served personally on the
person against whom the order is sought.
(3) An order shall not be made under any of the Rules
referred to in paragraphs (1) and (2) except by a
Judge.
(4) An originating motion under paragraph (1) or a
summons under paragraph (2) shall be supported
by an affidavit—
r. 32.08
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(a) stating the facts on which the application is
made; and
(b) specifying or describing the documents or
any class of documents in respect of which
the order is sought.
(5) A copy of the supporting affidavit shall be served
on every person on whom the originating motion
or the summons is served.
32.09 Inspection of documents
Rule 29.09 shall, with any necessary modification,
apply to the inspection of the documents referred
to in an affidavit of documents made and served in
accordance with this Order as if the affidavit were
an affidavit of documents as mentioned in
Rule 29.09(1).
32.10 Directions as to documents
Rule 29.12 shall, with any necessary modification,
apply to the inspection of a document under this
Order.
32.11 Costs
(1) On an application under this Order the Court may
make an order for the costs and expenses of the
applicant, of the person against whom the order is
made or sought and of any party to the proceeding,
including the costs of making and serving any
affidavit of documents, of producing any
document for inspection in accordance with Rule
32.09 or of complying with any direction given
under Rule 32.10.
(2) The Court may make an order under this Order on
condition that the applicant give security for the
costs and expenses of the person against whom the
order is made.
r. 32.10
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ORDER 33
MEDICAL EXAMINATION AND SERVICE OF
HOSPITAL AND MEDICAL REPORTS
33.01 Application
This Order applies to—
(a) a proceeding in which the plaintiff claims
damages for bodily injury;
(b) a proceeding under the Accident
Compensation Act 1985;
(c) a proceeding under the Workers
Compensation Act 1958.
33.02 Counterclaim
This Order shall, with any necessary modification,
apply to a counterclaim by which the defendant
makes a claim of the kind referred to in
Rule 33.01.
33.03 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"dentist" means—
(a) a person registered or qualified to be
registered as a dentist under the
Dentists Act 1972 or any
corresponding enactment of another
State or a Territory of the
Commonwealth;
(b) a person entitled to practise dentistry in
a place out of Australia under an
r. 33.02
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enactment of that place corresponding
to the Dentists Act 1972, whether or
not the person does so practise;
"examination" means an examination for
medical, dental, or psychological purposes as
the case requires;
"hospital report" means a statement in writing
concerning the plaintiff made by or on behalf
of a hospital, rehabilitation centre or other
like institution;
"medical expert" means medical practitioner,
dentist or psychologist as the case requires;
"medical matters" includes dental matters and
psychological matters;
"medical practitioner" means—
(a) a person registered or qualified to be
registered as a medical practitioner
under the Medical Practice Act 1994
or any corresponding enactment of
another State or a Territory of the
Commonwealth;
(b) a person entitled to practise medicine in
a place out of Australia under an
enactment of that place corresponding
to the Medical Practice Act 1994,
whether or not the person does so
practise;
"medical report"—
(a) means a statement on medical matters
concerning the plaintiff whether in
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writing or oral made by a medical
expert; and
(b) includes any document which the
medical expert intends should be read
with the statement whether the
document was in existence at the time
the statement was made or was a
document which he obtained or caused
to be brought into existence
subsequently;
"psychologist" means—
(a) a registered psychologist as defined by
the Psychologists Registration Act
1987;
(b) a person who meets the requirements of
paragraphs (b) and (c) of section 13 of
the Psychologists Registration Act
1987;
(c) a person who practises psychology in a
place out of Victoria;
"serve" in relation to the service of a medical
report means—
(a) where the medical report was in
writing, serve a copy; and
(b) where the medical report was oral,
serve notice in writing of its substance.
33.04 Notice for examination
(1) The defendant may request the plaintiff in writing
to submit to appropriate examinations by a
medical expert or experts at specified times and
places.
(2) Where a plaintiff refuses or neglects without
reasonable cause to comply with a request under
r. 33.03 r. 33.04
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paragraph (1), the Court may, if the request was
on reasonable terms, stay the proceeding.
33.05 Expenses
(1) The costs of and incidental to the examination
shall be costs in the proceeding.
(2) Without limiting paragraph (1), the defendant
shall, on request by the plaintiff whether before or
after the plaintiff is examined, pay to the plaintiff
a reasonable sum to meet his travelling and other
expenses of and incidental to the examination.
33.06 Report of examination
A defendant for whom a plaintiff is examined
under Rule 33.04 shall as soon as practicable after
the examination obtain from the medical expert a
medical report.
33.07 Service of reports
(1) A plaintiff shall serve on each other party who has
an address for service in the proceeding any
medical report (other than a medical report served
on or supplied to him by another party) which he
intends to tender or the substance of which he
intends to adduce in evidence at the trial.
(2) Where a plaintiff obtains possession, custody or
power of a hospital report which he intends to
tender or the maker of which he intends to call at
the trial, this Rule and Rule 33.08 shall, with any
necessary modification, apply as if the report were
a medical report.
(3) A defendant or a third or subsequent party shall
serve on each other party who has an address for
service in the proceeding any medical report (other
than a medical report served on or supplied to him
by another party) in his possession, custody or
power or made to him or obtained by or for him.
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33.08 Time for service
Unless the Court otherwise orders, the time for
service of a medical report by a party required
under Rule 33.07 to serve a medical report shall
be—
(a) if the party is a plaintiff, within 7 days after
notice of trial under Order 48 is given, or, if
the proceeding is set down for trial by order
of the Court made under Rule 48.06, within
7 days after the order or within such other
times as the Court directs;
(b) if the party is a defendant or a third or
subsequent party, within 14 days after notice
of trial under Order 48 is given, of, if the
proceeding is set down for trial by order of
the Court made under Rule 48.06, within
14 days after the order or within such other
time as the Court directs; and
(c) in the case of a medical report made to or
obtained by or for a party after the time
referred to in paragraph (a) or (b), forthwith.
33.08.1 Other medical reports to be served
Where after a plaintiff has served a medical report
under Rule 33.07(1) the medical expert who made
the report makes another medical report to the
plaintiff, then, notwithstanding that the plaintiff no
longer intends to tender the medical report so
served or to adduce its substance in evidence at
the trial, or does not intend to tender the other
medical report or to adduce its substance in
evidence at the trial, the plaintiff shall serve the
other medical report forthwith.
33.09 Proceeding against medical expert
(1) This Rule applies to a proceeding in which the
plaintiff claims damages for bodily injury
r. 33.08 r. 33.08.1
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sustained as a result of medical or the like
treatment or advice given in respect of any
physical or mental condition of the plaintiff.
(2) Unless the Court otherwise orders, a party who is
required to serve a copy of a hospital report or
medical report under this Order may exclude from
the copy served any expression of opinion in the
original report on the question of liability and, if
the original report contains any statement with
respect to the facts on which the opinion is based,
any statement with respect to a fact that relates
only to the question of liability.
33.10 Material for Court
(1) This Rule applies only to a proceeding which is to
be tried by a Judge without a jury.
(2) If for the purpose of evidence at the trial a party
intends to—
(a) use a medical report or a hospital report a
copy of which was served under this Order;
(b) call the maker of a medical report or a
hospital report a copy of which was served
under this Order—
the party shall deliver a copy of the report for the
use of the Court.
(3) Copies of reports shall be delivered by delivering
them in a sealed envelope bearing the title of the
proceeding and stating "Reports delivered by
[identify party] pursuant to Rule 33.10"—
(a) where Melbourne is the place of trial, to the
Registrar not less than two days before the
day fixed for trial;
(b) where the place of trial is other than
Melbourne, to the Registrar not less than two
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days before the commencement of the
sittings at that place.
33.11 Medical report admissible
(1) This Rule does not apply in the case of the trial of
a proceeding before a Judge with a jury.
(2) A medical report a copy of which was served
under this Order is admissible as evidence of the
opinion of the medical expert who gave the report
and, where the medical expert's oral evidence of a
fact upon which the opinion was based would be
admissible, as evidence of that fact.
(3) Subject to paragraphs (4) and (5), a medical report
may be used in evidence by the party who served a
copy of the report or by any party on whom the
copy was served.
(4) If a medical report is tendered by the party who
served a copy of the report, that party shall cause
the medical expert who gave the report to attend at
the trial of the proceeding to be cross-examined if
notice that such attendance is required is served on
the party by any other party not later than five days
before the commencement of the trial, and if the
medical expert does not attend for cross-
examination the Court may order that the medical
report be not received in evidence.
(5) If a medical report is tendered by a party on whom
a copy of the report was served—
(a) that party shall cause the medical expert who
gave the report to attend at the trial of the
proceeding to be cross-examined, and if the
medical expert does not attend the Court may
order that the medical report be not received
in evidence;
(b) if the report is received in evidence and the
medical expert is cross-examined by any
r. 33.11
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party against whom the report is received, at
the conclusion of the cross-examination the
party who tendered the report may examine
the expert as if by re-examination.
33.12 No evidence unless disclosed in report
Save with the leave of the Court or by consent of
the parties, a party shall not except in cross-
examination adduce evidence from a medical
report on medical matters concerning the plaintiff
unless that evidence is disclosed by a medical
report served in accordance with this Order.
ORDER 34
DIRECTIONS
34.01 Powers of Court
(1) At any stage of a proceeding the Court may give
any direction for the conduct of the proceeding
which it thinks conducive to its effective,
complete, prompt and economical determination.
(2) A party may apply for directions on the hearing
either of a summons filed for the purpose or of a
summons for other relief.
34.02 Nature of directions
Without limiting Rule 34.01(1), the Court may
give directions relating to—
r. 33.12 r. 34.01
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(a) amendment of a document, under Rule
36.01;
(b) evidence under section 55(7) of the
Evidence Act 1958 or under Order 40.
34.03 Admissions and agreements
(1) On an application for directions the Court may
take steps with a view to securing that the parties
make all admissions and all agreements as to the
conduct of the proceeding which ought reasonably
to be made by them and may, by order, record any
admission or agreement so made.
(2) The Court may, by order, record any refusal to
make an admission or an agreement as to the
conduct of the proceeding so that the refusal may
later, if the Court thinks fit, be taken into account
on any question of costs.
34.04 Duty to obtain directions
Where a party applies for directions any other
party who attends on the application shall apply at
the same time for any direction which he requires
and which may be given before trial.
ORDER 34A
CASE MANAGEMENT
PART 1—COURT LISTS
34A.01 Provisions of Order 34A to prevail
Despite anything to the contrary in these Rules or
Chapter II of the Rules of the County Court, this
r. 34.04
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Order applies to every civil proceeding in the
Court.
34A.02 Court Lists
The Registrar shall establish and maintain the
following Court Lists—
(a) the Damages List;
(b) the Business List;
(c) the WorkCover List;
(d) the Long Cases List.
34A.03 Damages List
The Damages List shall consist of—
(a) any proceeding commenced by writ in which
the plaintiff has in accordance with
Rule 47.02(1) signified that he desires to
have the proceeding tried with a jury;
(b) any proceeding commenced by writ in which
the plaintiff claims the recovery of
damages—
(i) founded on tort (including breach of
statutory duty);
(ii) for wrongful dismissal;
(c) any proceeding commenced by originating
motion in which the plaintiff applies for an
order under—
(i) section 23A of the Limitation of
Actions Act 1958;
(ii) section 93 of the Transport Accident
Act 1986;
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(iii) section 135A of the Accident
Compensation Act 1985;
(iv) Order 32;
(v) section 6 of the Choice of Law
(Limitation Periods) Act 1993.
34A.04 Divisions of Damages List
(1) The Damages List shall be divided into the
General Division, the Defamation Division, the
Damages (Medical) Division and the Damages
(Applications) Division.
(2) The General Division shall consist of any
proceeding in the Damages List not in the
Defamation Division, Damages (Medical)
Division or the Damages (Applications) Division.
(3) The Defamation Division shall consist of any
proceeding commenced by writ that includes a
claim for libel or slander.
(4) The Damages (Medical) Division shall consist of
any proceeding that includes a claim for damages
in respect of death or bodily injury resulting from
medical or the like treatment or advice given in
respect of any physical or mental condition.
(5) The Damages (Applications) Division shall
consist of any proceeding referred to in Rule
34A.03(c).
34A.05 Business List
The Business List shall consist of—
(a) any proceeding commenced by writ in which
the plaintiff claims the recovery of a debt,
damages (other than damages founded on
tort or breach of statutory duty or for
wrongful dismissal) or any property;
r. 34A.04 r. 34A.05
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(b) any proceeding commenced by originating
motion in which—
(i) the plaintiff applies for a judgment or
an order under any Act (other than an
Act referred to in Rule 34A.03);
(ii) the relief or remedy claimed by the
plaintiff includes any question to be
answered;
(c) any appeal from or review of an order,
decision or determination of a court or of a
person or body, not being a court, in a civil
proceeding which may be brought in or made
by the Court by or under any Act;
(d) any proceeding not entered in any other list.
34A.06 Divisions of Business List
(1) The Business List shall be divided into the
Commercial Division, the Building Cases
Division and the Miscellaneous Division.
(2) The Commercial Division shall consist of any
proceeding commenced by writ or originating
motion—
(a) which arises out of ordinary commercial
transactions, including any proceeding
relating to—
(i) the construction of commercial,
shipping or transport documents;
(ii) the export or import of merchandise;
(iii) the carriage of goods for the purpose of
trade or commerce;
(iv) insurance;
(v) banking;
(vi) finance;
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(vii) commercial agency;
(viii) commercial usage; or
(b) in which there is a question that has
importance in trade and commerce.
(3) The Building Cases Division shall consist of those
proceedings commenced by writ arising out of or
in any way concerning any agreement expressed or
implied for—
(a) the design or carrying out of building works;
(b) the supervision or inspection of the
construction of building works;
(c) the performance by an architect, designer,
engineer, quantity surveyor or other expert of
any other services in relation to the design or
construction or the supervision or inspection
of building works;
(d) the manufacture or provision of any
materials for inclusion in building works.
(4) In paragraph (3), "building works" means
building or engineering works of any description
whatever.
(5) The Miscellaneous Division shall consist of any
proceeding in the Business List not entered in the
Commercial Division or the Building Cases
Division.
34A.07 WorkCover List
The WorkCover List shall consist of any
proceeding under—
(a) the Workers Compensation Act 1958;
(b) the Accident Compensation Act 1985.
34A.08 Long Cases List
r. 34A.06 r. 34A.07
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The Court may order that there be transferred to
the Long Cases List from another list referred to in
Rule 34A.02 a proceeding—
(a) the hearing of which is expected to exceed
10 sitting days; or
(b) which involves a complex question of law or
fact; or
(c) which for special reasons ought to be heard
expeditiously.
34A.09 Entry of proceeding in list
Every proceeding shall be entered in—
(a) a division of the Damages List; or
(b) a division of the Business List; or
(c) the WorkCover List.
34A.10 Mode of entry in list
(1) A proceeding commenced on or after the day this
Order comes into operation shall upon
commencement be entered by the Registrar in a
list or division of a list referred to in Rule 34A.09.
(2) In the case of a proceeding remitted or transferred
to the Court after the commencement of this
Order, the Registrar shall enter the proceeding in a
list or a division of a list referred to in Rule
34A.09 and shall notify the parties of a date and
time for a directions hearing.
(3) A proceeding commenced before the day this
Order comes into operation may upon the written
request of a party directed to the Registrar be
entered by the Registrar in a list or a division of a
list referred to in Rule 34A.09 if the Registrar is
satisfied that the list or division specified in the
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request is the appropriate list or division for the
proceeding.
(4) A proceeding commenced before the day this
Order comes into operation that is not entered in a
list or a division of a list before the expiration of
one year after that day shall stand dismissed at the
expiration of that period.
(5) The Court may reinstate any proceeding that
stands dismissed by the operation of paragraph
(4).
34A.11 Transfer from one list to another
(1) The Court may by order transfer a proceeding
from a list (including the Long Cases List) to
another list.
(2) The Registrar may, with the consent of the parties,
transfer a proceeding from a list (including the
Long Cases List) to another list (other than the
Long Cases List).
(3) In this Rule, "transfer a proceeding from a list
to another list" includes a transfer from a
division of a list to another division of the list or
to a division of another list.
PART 2—LIST JUDGES
34A.12 Judges in charge
In each list referred to in Rule 34A.02 and in each
division of a list a Judge nominated by the Chief
Judge shall be in charge.
34A.13 Other Judges
The Chief Judge may nominate any other Judge or
Judges to sit in a list or division of a list.
34A.14 Control of proceedings
r. 34A.11 r. 34A.12
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(1) Subject to any order of the Court in special
circumstances, the Judge in charge of a list or
division of a list shall have control of every
proceeding in the list or the division, and subject
to any direction of the Chief Judge, any directions
hearing or application in a proceeding shall be
held by or made to the Judge.
(2) The powers of the Judge in charge in relation to a
proceeding in a list or division of a list may be
exercised by another Judge sitting in the list or the
division if the Judge in charge requests that Judge
to do so or if in special circumstances that other
Judge thinks fit to do so.
(3) The powers of the Judge or the other Judge in
charge of a list or division of a list may in relation
to a directions hearing or application in a
proceeding in the list or division be exercised by a
Master if the Judge or the other Judge requests the
Master to do so.
PART 3—DISMISSAL OF PROCEEDING
34A.15 Dismissal of proceeding
(1) A proceeding shall stand dismissed as against any
defendant at the expiration of fifteen months after
the day the proceeding commenced if at that time
the defendant has not filed an appearance and
judgment has not been entered or given against the
defendant.
(2) The Court may by order made before a proceeding
is dismissed under paragraph (1) extend the period
of fifteen months referred to in that paragraph for
such period from the day of the order as the Court
directs, being not more than three months from
that day.
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(3) If an order is made under paragraph (2), there shall
in the particular case be taken to be substituted for
the period of fifteen months in paragraph (1) the
period as extended by the Order.
(4) This Rule shall not apply to a proceeding
commenced before the day this Order comes into
operation.
34A.16 Reinstatement
The Court may reinstate any proceeding that
stands dismissed by operation of Rule 34A.15.
PART 4—DISCOVERY BY LEAVE
34A.17 Discovery of documents and interrogatories
Unless the Court otherwise orders, a party shall
not—
(a) be required to make discovery of documents;
(b) serve written interrogatories.
34A.17.1 Discovery other than by affidavit
Rule 29.15 shall, with any necessary modification,
apply where a party has by order of the Court, or
with the consent of another party, given discovery
of documents other than by making an affidavit of
documents.
PART 5—DIRECTIONS HEARING
34A.18 Application
This Part applies to any proceeding in the
Damages List, the Business List, the WorkCover
List or the Long Cases List.
34A.19 Directions
At a directions hearing held in accordance with
this Order the Court may give any direction for the
r. 34A.16 r. 34A.18
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conduct of the proceeding which it thinks
conducive to its effective, complete, prompt and
economical determination.
34A.19.1 Expert reports
(1) In this Rule—
"expert" means a person who would, if called as
a witness at the trial, be qualified to give
evidence as an expert in respect of any
question in the proceeding;
"report" means a communication in writing by
an expert to a party that contains a statement
by the expert as an expert in respect of any
question in the proceeding, and whether or
not the statement contains the opinion of the
expert in respect of the question and whether
or not it sets out the acts, facts, matters and
circumstances on which any opinion is
formed and includes any document which the
expert intends should be read with the
statement whether the document was in
existence at the time the statement was made
or was a document which he obtained or
caused to be brought into existence
subsequently.
(2) At a directions hearing the Court may order that a
party who has now or may later have in his or her
possession, custody or power the report of an
expert from whom the party intends to adduce
evidence as an expert at the trial serve a copy of
the report on any other party.
(3) Save with leave of the Court or by consent of the
parties, a party shall not except in cross-
examination adduce evidence from a person as an
expert witness at the trial of a proceeding unless
that evidence is covered by a report served by the
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party in accordance with an order made under
paragraph (2).
(4) For the purpose of paragraph (3), evidence is
covered by a report if the report contains the
substance of the matters sought to be adduced in
evidence.
34A.20 Admissions and agreements
(1) At a directions hearing the Court may take steps
with a view to securing that the parties make all
admissions and all agreements as to the conduct of
the proceeding which ought reasonably to be made
by them and may, by order, record any admission
or agreement so made.
(2) The Court may, by order, record any refusal to
make an admission or an agreement as to the
conduct of the proceeding so that the refusal may
later, if the Court thinks fit, be taken into account
on any question of costs.
34A.21 Mediation or arbitration
At a directions hearing the Court may with or
without the consent of any party refer the whole or
any part of the proceeding to—
(a) mediation in accordance with Rule 50.07;
(b) arbitration in accordance with Rule 50.08.
34A.22 Reference to special referee
At a directions hearing the Court may with the
consent of the parties refer any question in the
proceeding to a special referee in accordance with
Rules 50.01 to 50.06 for the special referee to
decide the question or to give his or her opinion
with respect to it.
34A.23 Personal attendance of parties
r. 34A.20 r. 34A.22
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Any party to whom notice of a directions hearing
is given by the Court in accordance with this
Order shall if required by the Judge in charge of
the list or division of a list attend the hearing in
person whether legally represented or not.
34A.24 Time for first directions hearing
(1) Unless the Court or the Judge in charge of the list
or division of a list otherwise orders, not less than
35 days after the defendant has filed an
appearance or, if there are two or more defendants,
after the defendant who appears first has filed an
appearance the Court shall hold a directions
hearing in the proceeding at a time and place
which the Court appoints.
(2) The Court shall serve notice of the time and place
of the directions hearing on the plaintiff and on
any party who has filed an appearance at the
address for the service of the party in the
proceeding.
(3) Nothing in this Rule shall affect the right of the
plaintiff to enter or apply for judgment if the
defendant does not serve a defence within the time
limited.
34A.25 Other directions hearing
(1) The Court may adjourn a directions hearing or
hold a further directions hearing on such terms as
it thinks fit.
(2) Unless a notice under Rule 20.01 has been filed
and served, a solicitor for a party to whom a notice
of a directions hearing is given under
paragraph (1) shall not file a notice of ceasing to
act for that party under Rule 20.03, except by
leave of the Court.
PART 6—SETTING DOWN FOR TRIAL
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34A.26 No certificate of readiness
A proceeding shall not be set down for trial except
by order of the Court.
PART 7—COURT BOOK
34A.27 No trial without court book
Unless the Court otherwise orders, the trial of a
proceeding shall not be held if any court book
required to be filed and served in accordance with
this Order has not been filed and served.
34A.28 Time for serving and filing court book
A party shall file and serve a court book at such
time as the Court directs.
34A.29 Failure to include document in court book
Save with the leave of the Court or by consent of
the parties, a party shall not tender in evidence at
the trial of a proceeding a document a copy of
which the party was required to include in the
court book of the party but which the party did not
include.
34A.30 Court book of each party
(1) The plaintiff shall file and serve a court book.
(2) Subject to paragraph (3), each defendant shall file
and serve a court book.
(3) Where a solicitor acts for two or more defendants,
those defendants shall file and serve a single court
book.
(4) A third party who has filed an appearance shall
file and serve a court book.
(5) A party to whom Rule 34A.34 applies shall file
and serve a court book.
34A.31 Court book of plaintiff
r. 34A.26 r. 34A.31
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The court book of the plaintiff, unless the Court
otherwise orders, shall contain and contain only—
(a) an index of its contents;
(b) a copy of the writ or originating motion;
(c) a copy of the latest version of any pleadings
served between the plaintiff and the
defendant and particulars of any such
pleading served between the plaintiff and the
defendant given pursuant to an order of the
Court or the request of a party, and any such
order or request by a party in writing for
particulars;
(d) a copy of each document the plaintiff intends
to tender in evidence.
34A.32 Court book of defendant
The court book of a defendant, unless the Court
otherwise orders, shall contain and contain only—
(a) an index of its contents;
(b) a copy of the latest version of any pleadings
served between the defendant and any party
other than the plaintiff and particulars of any
such pleading served between the defendant
and the other party other than the plaintiff
given pursuant to an order of the Court or the
request of the other party, and any such order
or request by the other party in writing for
particulars;
(c) a copy of each document the defendant
intends to tender in evidence.
34A.33 Court book of third party
The court book of a third party, unless the Court
otherwise orders, shall contain and contain only—
(a) an index of its contents;
r. 34A.33
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(b) a copy of the third party notice;
(c) a copy of the latest version of any pleadings
served between the third party and any party
other than the defendant and particulars of
any pleading served between the third party
and the other party given pursuant to an
order of the Court or the request of the other
party, and any such order or request by the
other party in writing for particulars;
(d) a copy of each document the third party
intends to tender in evidence.
34A.34 Court book of fourth or subsequent party
(1) Rule 34A.33 shall apply to a person joined by the
third party as if that party were a third party.
(2) Paragraph (1) shall, with any necessary
modification, apply where a person joined as party
by a third party joins another person as party and
so on successively.
ORDER 35
ADMISSIONS
35.01 Definition
In this Order "authenticity of a document"
means that a document—
(a) is what it purports to be;
r. 35.01
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(b) if an original or described as such, is an
original document and was printed, written,
signed or executed as it purports to have
been;
(c) if a copy or described as such, is a true copy.
35.02 Voluntary admission of facts
(1) A party may, by notice served on another party,
admit, in favour of the other party, for the purpose
of the proceeding only, the facts specified in the
notice.
(2) A party may, by leave of the Court, withdraw an
admission made in accordance with paragraph (1).
35.03 Notice for admission of facts
(1) A party may serve on another party a notice
stating that unless that party, within a time to be
expressed in the notice (which shall not be less
than 14 days after service), disputes the facts
specified in the notice, he shall, for the purpose of
the proceeding only, be taken to admit those facts.
(2) If the party served with the notice does not dispute
any fact specified by serving notice that he
disputes the fact within the time allowed for that
purpose, he shall, for the purpose of the
proceeding only, be taken to admit that fact.
(3) A party may, by leave of the Court, withdraw an
admission which is taken to have been made under
paragraph (2).
(4) A notice under paragraph (1) shall be in
Form 35A, and a notice under paragraph (2) shall
be in Form 35B.
35.04 Judgment on admissions
(1) Where a party makes admissions of fact in a
proceeding, whether by his pleading or otherwise,
r. 35.04
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the Court may, on the application of any other
party, give the judgment or make the order to
which the applicant is entitled on those
admissions.
(2) The Court may exercise its powers under
paragraph (1) without waiting for the
determination of any other question in the
proceeding.
35.05 Notice for admission of documents
(1) A party may serve on another party a notice
stating that unless that party, within a time to be
expressed in the notice (which shall not be less
than 14 days after service), disputes the
authenticity of the documents mentioned in the
notice, he shall, for the purpose of the proceeding
only, be taken to admit the authenticity of those
documents.
(2) If the party served with the notice does not dispute
the authenticity of any document mentioned by
serving notice that he disputes its authenticity
within the time allowed for that purpose, he shall,
for the purpose of the proceeding only, be taken to
admit its authenticity.
(3) A party may, by leave of the Court, withdraw an
admission which is taken to have been made under
paragraph (2).
(4) A notice under paragraph (1) shall be in
Form 35A, and a notice under paragraph (2) shall
be in Form 35B.
35.06 Cost of non-admission of fact or document
Where a party serves a notice under Rule 35.03(2)
or 35.05(2) disputing a fact or the authenticity of a
document, and afterwards that fact or document is
proved in the proceeding, liability for costs shall
be determined in accordance with Rule 63A.18.
r. 35.06
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35.07 Restrictive effect of admission
An admission made by a party under this Order is
for the purpose of the pending proceeding only
and shall not be used against him as an admission
in any other proceeding.
35.08 Notice to produce documents
(1) A party to a proceeding may serve on any other
party a notice requiring him to produce the
documents mentioned in the notice on any
application in or at the trial of the proceeding.
(2) Unless the Court otherwise orders, the party on
whom the notice is served shall produce on the
application or at the trial such of the documents
mentioned in the notice as are in his possession,
custody or power, and which he does not object to
produce on the ground of privilege.
(3) Where the party on whom the notice is served fails
to comply with the notice, the Court may order
that the party produce the document or give such
directions for the proof of any matter in relation to
the document, including the contents of the
document and its making, delivery or receipt, as it
thinks fit.
ORDER 36
AMENDMENT
36.01 General
(1) For the purpose of determining the real question in
controversy between the parties to any proceeding,
or of correcting any defect or error in any
proceeding, or of avoiding multiplicity of
proceedings, the Court may at any stage order that
r. 36.01
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any document in the proceeding be amended or
that any party have leave to amend any document
in the proceeding.
(2) In this Order "document" includes originating
process, an indorsement of claim on originating
process and a pleading.
(3) An indorsement of claim or pleading may be
amended under paragraph (1) notwithstanding that
the effect is to add or substitute a cause of action
arising after the commencement of the proceeding.
(4) A mistake in the name of a party may be corrected
under paragraph (1), whether or not the effect is to
substitute another person as a party.
(5) Where an order to correct a mistake in the name of
a party has the effect of substituting another
person as a party, the proceeding shall be taken to
have commenced with respect to that person on
the day the proceeding commenced.
(6) The Court may, notwithstanding the expiry of any
relevant limitation period after the day a
proceeding is commenced, make an order under
paragraph (1) where it is satisfied that any other
party to the proceeding would not by reason of the
order be prejudiced in the conduct of his claim or
defence in a way that could not be fairly met by an
adjournment, an award of costs or otherwise.
(7) For the purpose of paragraph (6) "any other
party to the proceeding" includes a person who
is substituted as a party by virtue of an order made
to correct a mistake in the name of a party.
(8) Paragraph (6) shall, with any necessary
modification, apply to an application under Rule
14.03(2).
(9) Paragraph (1) shall not apply to the amendment of
a judgment or order.
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36.02 Failure to amend within time limited
An order giving a party leave to amend a
document shall cease to have effect if the party
has not amended the document in accordance with
the order at the expiration of the time limited by
the order for making the amendment, or if no time
was limited, of 21 days from the date of the order.
36.03 Amendment of pleading
A party may amend any pleading served by him—
(a) once before the close of pleadings; or
(b) at any time, by leave of the Court or with the
consent of all other parties.
36.04 Disallowance of pleading amendment
Where a party amends a pleading in accordance
with Rule 36.03(a), the Court may, on application
by any other party made within 21 days after
service of the amended pleading on that party,
disallow the amendment or allow it either wholly
or in part.
36.05 How pleading amendment made
(1) Unless the Court otherwise orders, an amendment
to a pleading shall be made by—
(a) amending the copy of the pleading filed in
the Court or filing a copy of that pleading as
amended; and
(b) serving a copy of the amended pleading on
all parties.
(2) A party who files an amended copy of a pleading
in accordance with paragraph (1)(a) shall indorse
the copy pleading previously filed with a
r. 36.02 r. 36.05
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statement to the effect that the amended copy has
been substituted.
(3) Where either of the requirements of paragraph
(1)(a) is complied with, the Registrar shall, as the
case requires, indorse the copy of the pleading
filed in the Court with the date it is amended or
the copy of the pleading as amended with the date
it is filed.
(4) Each amendment to a pleading shall be made in
such a way as to distinguish the amendment from
the original pleading and from any previous
amendment to the original.
36.06 Pleading to an amended pleading
(1) A party shall plead to an amended pleading within
30 days after it is served on him.
(2) Where a party has pleaded to a pleading which is
subsequently amended, he shall be taken to rely on
his original pleading in answer to the amended
pleading unless he pleads to it within the time
limited for so doing.
36.07 Amendment of judgment or order
The Court may at any time correct a clerical
mistake in a judgment or order or an error arising
in a judgment or order from any accidental slip or
omission.
ORDER 37
INSPECTION, DETENTION AND PRESERVATION OF
PROPERTY
37.01 Inspection, detention etc. of property
r. 36.07
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(1) In any proceeding the Court may make an order
for the inspection, detention, custody or
preservation of any property, whether or not in the
possession, custody or power of a party.
(2) An order under paragraph (1) may authorise any
person to—
(a) enter any land or do any other thing for the
purpose of obtaining access to the property;
(b) take samples of the property;
(c) make observations (including the
photographing) of the property;
(d) conduct any experiment on or with the
property;
(e) observe any process.
(3) On an application under paragraph (1) the Court
may make an order for the costs and expenses of
any person not being a party where—
(a) that person attends on the hearing of the
application pursuant to a summons served
under Rule 37.03(1); or
(b) the Court makes an order under paragraph
(1) which will affect that person.
(4) The Court may make an order under this Rule on
condition that the party applying for the order give
security for the costs and expenses of any person,
whether or not a party, who will be affected by the
order.
37.02 Inspection from prospective defendant
(1) This Rule applies to any property not being a
document.
(2) In this Rule "applicant" means an applicant for
an order under the Rule.
r. 37.02
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(3) Where—
(a) there is reasonable cause to believe that the
applicant has or may have the right to obtain
relief in the Court from an identified person;
(b) after making all reasonable enquiries, the
applicant has not sufficient information to
enable him to decide whether to commence a
proceeding in the Court to obtain that relief;
and
(c) there is reasonable cause to believe that that
person has or is likely to have in his
possession, custody or power any property
relating to the question whether the applicant
has the right to obtain the relief and that
inspection of the property by the applicant
would assist him to make the decision—
the Court may make an order for the inspection,
detention, custody or preservation of the property.
(4) An order under paragraph (3) may authorise any
person to do any of the things referred to in Rule
37.01(2).
(5) On an application under this Rule the Court may
make an order for the costs and expenses of the
applicant and the person against whom the order is
sought.
(6) The Court may make an order under this Rule on
condition that the applicant give security for the
costs and expenses of the person against whom the
order is made.
37.03 Procedure
(1) An application for an order under Rule 37.01 shall
be made by summons served on all parties to the
proceeding and served personally on each person
who would be affected by the order if made.
r. 37.03
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(2) The Court may make an order under Rule 37.01
notwithstanding that any person not being a party
who will be affected by the order has not been
served with the summons personally or at all.
(3) An application under Rule 37.02 shall be made by
originating motion to which the person against
whom the order is sought shall be made
respondent.
(4) An order shall not be made under Rule 37.02
except by a Judge.
(5) A summons under paragraph (1) or an originating
motion under paragraph (3) shall be supported by
an affidavit—
(a) stating the facts on which the application is
made; and
(b) specifying or describing the property in
respect of which the order is sought.
(6) A copy of the supporting affidavit shall be served
on every person on whom the summons or
originating motion is served.
37.04 Disposal of perishable property
Where, in a proceeding concerning any property
(other than land) or in a proceeding in which any
question may arise as to any property (other than
land), the property is of a perishable nature or is
likely to deteriorate or diminish in value if kept,
the Court may make an order for the sale or other
disposal of the whole or any part of the property.
37.05 Payment into Court in discharge of lien
(1) Where in any proceeding the plaintiff claims the
recovery of specific property (other than land) and
it appears from the pleadings or otherwise that the
defendant does not dispute the title of the plaintiff
but claims to be entitled to retain the property by
r. 37.04
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virtue of a lien or otherwise as security for any
sum of money, the Court may order that the
plaintiff be at liberty to pay into court, to abide the
event of the proceeding, the amount of money in
respect of which the security is claimed and such
further amount, if any, for interest and costs as the
Court may direct and that, upon the making of
such payments, the property claimed be given up
to the plaintiff.
(2) This Rule shall, with any necessary modification,
apply to a counterclaim.
37.06 Interim distribution of property or income
Where in a proceeding concerning any property
the property will be more than sufficient to answer
the claims on the property for which provision
ought to be made in the proceeding, the Court may
by order allow the whole or part of the annual
income of the property or any part thereof to be
paid, during such period as the Court may
determine, to all or any of the persons having an
interest in the income, or may direct that any part
of the property be conveyed, transferred or
delivered to any person having an interest in the
property.
37.07 Jurisdiction of Court not affected
The provisions of this Order shall not affect the
exercise by the Court of any power to make orders
with respect to the inspection, detention, custody
or preservation of property which is exercisable
apart from those provisions.
ORDER 38
INJUNCTIONS
38.01 When Court may grant
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The Court may grant an injunction at any stage of
a proceeding or, in the circumstances referred to in
Rule 4.08, before the commencement of a
proceeding.
38.02 Application before trial
(1) In an urgent case, the Court may grant an
injunction on application made without notice.
(2) Where a plaintiff applies for an injunction against
a defendant, service of notice of application on
that defendant may be made at the time of service
of originating process in the proceeding.
38.03 Costs and expenses of non-party
(1) This Rule applies where an application for an
injunction is made before the trial of a proceeding.
(2) The Court may grant an injunction on condition
that the party applying for the injunction give
security for the costs and expenses of any person
who might be affected.
(3) The Court may make such order as it thinks fit for
the payment, either in the first instance or finally,
of the costs and expenses of any person not being
a party who might be affected by the grant of an
injunction.
38.04 * * * * *
ORDER 39
RECEIVERS
39.01 Application and definitions
(1) This Order applies in relation to the appointment
of a receiver by the Court.
(2) In this Order—
r. 39.01
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"bank" has the meaning ascribed by the Banking
Act 1959 of the Commonwealth;
"insurer" means a body corporate authorised
under the Insurance Act 1973 of the
Commonwealth, to carry on insurance
business or an underwriting member of
Lloyd's so authorised;
"Lloyd's" means the society of that name
incorporated by the Imperial Act known as
Lloyd's Act 1871;
"receiver" means a receiver or receiver and
manager.
39.02 Appointment of receiver
(1) The Court may appoint a receiver at any stage of a
proceeding or, in the circumstances referred to in
Rule 4.08, before the commencement of a
proceeding.
(2) In an urgent case, the Court may appoint a
receiver on application made without notice.
39.03 Service of order
The party obtaining the appointment of a receiver,
or such other party as the Court may direct, shall
serve a copy of the order on the receiver.
39.04 Consent of receiver
Before a person is appointed receiver his written
consent to the appointment shall, unless the Court
otherwise orders, be filed.
39.05 Security by receiver
Unless the Court otherwise orders—
(a) a receiver shall give security approved by the
Court that he will account for what he
r. 39.03
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receives as receiver and deal with it as the
Court directs;
(b) the security shall be given by guarantee in
Form 39A and filed;
(c) the guarantee shall be given by a bank or an
insurer.
39.06 Remuneration of receiver
The Court may provide for the remuneration of a
receiver.
39.07 Receiver's accounts
(1) Unless the Court otherwise orders, a receiver shall
submit accounts in accordance with this Rule.
(2) A receiver shall submit accounts to such parties
and at such intervals or on such dates as the Court
may direct.
(3) Any party to whom a receiver is required to
submit accounts may, on giving reasonable notice
to the receiver, inspect, either personally or by an
agent, the documents or things on which the
accounts are based.
(4) Any party who objects to the accounts may serve
notice in writing on the receiver specifying the
items to which objection is taken and requiring the
receiver within not less than 14 days to lodge his
accounts with the Court, and upon such service
the party shall file a copy of the notice.
(5) The Court may examine the items to which
objection is taken.
(6) The Court shall by order declare what is the result
of an examination under paragraph (5) and may
make an order for the costs and expenses of any
party or the receiver.
39.08 Default by receiver
r. 39.08
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(1) Where a receiver fails to submit any account,
provide access to any books or papers or do any
other thing which as receiver he ought to do, or
fails to attend for the examination of any account
of his, he and any party to the proceeding in which
he was appointed may be required to attend before
the Court to show cause for the failure, and the
Court may give such directions as it thinks fit,
including, if necessary, directions for the
discharge of the receiver and the appointment of
another and the payment of costs.
(2) Without limiting paragraph (1), where a receiver
fails to submit any account or fails to attend for
the examination of any account of his or fails to
pay into court on the date fixed by the Court any
amount required to be so paid, the Court may
disallow any remuneration claimed by the receiver
and may, where he has failed to pay any such
amount into court, charge him with interest at the
rate currently payable in respect of judgment debts
in the Court on that amount while in his
possession as receiver.
39.09 Directions to receivers
(1) A receiver may apply to the Court for directions
by summons stating the matters on which
directions are required.
(2) Unless the Court otherwise orders, the receiver
shall serve a copy of the summons and of any
affidavit in support on any person who may be
affected.
ORDER 40
EVIDENCE GENERALLY
40.01 Definition
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In this Order, unless the context or subject matter
otherwise requires, "a proceeding commenced
by writ" includes—
(a) a proceeding in respect to which an order has
been made under Rule 4.07(1);
(b) a trial or inquiry under Order 50;
(c) an assessment of damages or value under
Order 51.
40.02 Evidence of witness
Except where otherwise provided by an Act or
these Rules, and subject to any agreement between
the parties, evidence shall be given—
(a) on an interlocutory or other application in
any proceeding, by affidavit;
(b) at the trial of a proceeding commenced by
writ, orally;
(c) at the trial of a proceeding commenced by
originating motion, by affidavit.
40.03 Contrary direction as to evidence
(1) Notwithstanding Rule 40.02, the Court may order
that evidence be given—
(a) orally on the hearing of an interlocutory or
other application in any proceeding or at the
trial of a proceeding commenced by
originating motion;
(b) by affidavit at the trial of a proceeding
commenced by writ.
(2) Where the Court makes an order under paragraph
(1)(a), it may direct that the party on whose
application the order is made give such notice as it
r. 40.03
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thinks fit to the other parties of the oral evidence
the party proposes to adduce.
(3) Where the Court makes an order under paragraph
(1)(b), it may order that the deponent shall attend
at the trial to be examined or that his attendance
be dispensed with.
40.04 Examination on affidavit
(1) Where an affidavit is filed in any proceeding, the
Court may order that the deponent be examined
before the Court and may order that he attend for
that purpose at such time and place as it directs.
(2) Unless the Court otherwise orders, a party to a
proceeding commenced by originating motion on
whose behalf an affidavit is filed in the proceeding
shall cause the deponent to attend at the trial of the
proceeding to be examined if notice that such
attendance is required is served on the party by
any other party a reasonable time before the
commencement of the trial.
(3) Where a deponent in respect of whom an order is
made under paragraph (1) or a notice is served
under paragraph (2) does not attend for
examination the Court may order that the affidavit
be not received into evidence.
40.05 Evidence of particular facts
(1) The Court may order that evidence of any
particular fact shall be given at the trial or at any
other stage of a proceeding in such manner as it
directs.
(2) Without limiting paragraph (1), the Court may
order that evidence of any particular fact be
given—
r. 40.05
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(a) by statement on oath of information and
belief;
(b) by the production of documents or entries in
books;
(c) by the production of copies of documents or
entries in books.
40.06 Revocation or variation of order
The Court may, at or before the trial of any
proceeding, revoke or vary any order made under
Rules 40.03 to 40.05.
40.07 Deposition as evidence
(1) No deposition taken in a proceeding shall be
admissible as evidence at the trial of the
proceeding unless—
(a) the deposition was taken pursuant to an order
made under Rule 41.01(1)(a);
(b) either the person against whom the evidence
is offered consents or the deponent is dead or
is unfit by reason of his bodily or mental
condition to attend the trial and testify as a
witness, or is out of Victoria and it is not
reasonably practicable to secure his
attendance, or cannot with reasonable
diligence be found; and
(c) the party who applies to have the deposition
received into evidence has given reasonable
notice of the application to the other party.
(2) A deposition purporting to be signed by the person
before whom it was taken shall be receivable in
evidence without proof of the signature of that
person.
(3) Unless the Court otherwise orders—
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(a) evidence of facts within paragraph (1)(b)
may be given by affidavit; and
(b) the affidavit may be made from belief as to
those facts, if the grounds for the belief are
given.
40.08 Proof of Court documents
(1) A document purporting to be sealed with the seal
of the Court shall be admissible in evidence
without further proof.
(2) An office copy of a document filed in or issued
out of the Court shall be admissible in evidence in
any proceeding between all parties to the same
extent as the original would be admissible.
(3) A document purporting to be sealed with the seal
of the Court and to be a copy of a document filed
in or issued out of the Court shall be admissible as
an office copy of the latter document without
further proof.
40.09 Evidence of consent
The consent of a person to act in a particular
capacity whether as trustee, receiver or otherwise
or to be added as a plaintiff shall be sufficiently
evidenced by a written consent signed by him,
dated and verified by the indorsed certificate of a
solicitor.
40.10 Defamation
A defendant in a proceeding for libel or slander
who has not by his defence alleged the truth of the
statement complained of shall not, except by leave
of the Court at the trial, give evidence in chief at
the trial with respect to mitigation of damages, the
circumstances of publication or the character of
the plaintiff unless he gives particulars of the
r. 40.08 r. 40.10
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evidence to the plaintiff by notice served not less
than seven days before the trial.
40.11 Subsequent use of evidence at trial
The Court may order that any evidence that has
been taken at the trial of a proceeding may be used
at any subsequent stage of that proceeding.
40.12 Attendance and production
(1) The Court may in any proceeding make an order
for—
(a) the attendance of any person for the purpose
of being examined;
(b) the attendance of any person and production
by him of any document or thing specified or
described in the order; or
(c) the production by any corporation of any
document or thing specified or described in
the order.
(2) An order under paragraph (1) may be made for
attendance before or production to the Court or
any officer of the Court, examiner, special referee,
arbitrator or other person authorised to take
evidence.
(3) An order under paragraph (1) shall not operate to
require the person against whom the order is made
to produce any document which he could properly
object to produce on the ground of privilege.
40.13 View
The Court may inspect, or, on a trial with a jury,
may authorise the jury to inspect any place,
process or thing.
ORDER 41
r. 40.13
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EVIDENCE BY DEPOSITION
41.01 Order for witness examination
(1) The Court may, for the purpose of any proceeding,
make an order for—
(a) the examination of any person before a
Judge, Master or Registrar or such other
person as the Court appoints as examiner at
any place whether within or out of Victoria.
(b) * * * * *
(2) An order under paragraph (1)(a) shall be in Form
41A or 41B as the case requires.
(3) * * * * *
41.02 Documents for examiner
The party obtaining an order for examination
under Rule 41.01(1)(a) shall furnish the examiner
with copies of such of the documents in the
proceeding as are necessary to inform the
examiner of the question in the proceeding to
which the examination is to relate.
41.03 Appointment for examination
(1) The examiner shall appoint a place and time for
the examination.
(2) The time appointed shall be as soon as practicable
after the making of the order.
(3) The examiner shall give notice of an appointment
under this Rule to the party obtaining the order not
less than seven days before the time of the
appointment, and that party shall forthwith serve
notice of the appointment on each other party.
r. 41.03
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41.04 Conduct of examination
(1) The examiner shall permit each party, his counsel
and his solicitor to attend the examination.
(2) Unless the Court otherwise orders, the person
examined shall be examined, cross-examined and
re-examined in like manner as at trial.
(3) The examiner may put any question to the person
examined as to the meaning of any answer made
by that person or as to any matter arising in the
course of the examination.
(4) The examiner may adjourn the examination from
time to time and from place to place.
41.05 Examination of additional persons
(1) Where the examiner is a Judge or a Master, the
examiner may, on the application of a party to the
proceeding, take the examination of any person
not named or described in the order for
examination.
(2) Where the examiner is not a Judge or a Master,
the examiner may, with the consent in writing of
each party to the proceeding, take the examination
of any person not named or described in the order
for examination and, if he does so, he shall annex
to the deposition of that person the consent of
each of the parties.
41.06 Objection
Where a person being examined before an
examiner, not being a Judge or a Master, objects
to answer any question put to him or to produce
any document or thing, or objection is taken to any
such question or production, the following
provisions shall apply—
(a) where the objection is taken to a question—
r. 41.06
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(i) unless the question is objected to on the
ground of privilege, the person being
examined shall answer the question;
(ii) the question, the ground for the
objection and the answer, if any, shall
be set out in the deposition;
(b) where the objection is taken to the
production of a document or thing, the
ground for the objection shall be set out in
the deposition and, where the objection is to
the production of a document, unless
production is objected to on the ground of
privilege, the document or a copy shall be
attached to the deposition;
(c) the validity of the objection shall be decided
by the Court;
(d) if the Court disallows the objection, the
Court may order that the costs occasioned by
the objection be paid by the person being
examined or the party taking the objection or
by both of them as the case requires.
41.07 Taking of depositions
(1) The deposition of a person examined before an
examiner shall be—
(a) taken down by the examiner;
(b) taken down by a shorthand writer or some
other person in the presence of the examiner;
or
(c) recorded by mechanical means in accordance
with Part VI of the Evidence Act 1958 in the
presence of the examiner.
(2) Subject to paragraph (3) and Rule 41.06(a), the
deposition need not set out every question and
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answer if it contains as nearly as may be the
statement of the person examined.
(3) The examiner may direct that the words of any
question and the answer to the question be set out
in the deposition.
41.08 Authentication and filing
(1) Except where the deposition is taken down by a
shorthand writer or is recorded by mechanical
means the examiner shall, if any party so requests,
ask the person examined to sign his deposition.
(2) The examiner shall authenticate and sign the
disposition.
(3) The examiner shall indorse on the deposition a
statement signed by him of the time occupied in
taking the examination and the fees received by
him in respect of the examination.
(4) The examiner shall send the deposition to the
Registrar and the Registrar shall file it in the
proceeding.
(5) The examiner shall, unless the Court otherwise
orders, send any exhibits to the Registrar and the
Registrar shall deal with them as the Court directs.
(6) Paragraphs (3), (4) and (5) shall not apply where
the examiner is a Judge or a Master.
41.09 Report of examiner
(1) The examiner may make to the Court a report
upon the examination before him or with regard to
the absence of any person from the examination.
(2) The Court may direct such proceedings to be
taken, or make such order, on the report as it
thinks fit.
41.10 Default of witness
r. 41.08 r. 41.09
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(1) Where a person has been required by subpoena to
attend before an examiner not being a Judge or a
Master and he fails or refuses to attend or he
refuses to be sworn for the purposes of the
examination or to answer any lawful question or
to produce any document or thing, the examiner
shall, at the request of any party, give to that party
a certificate, signed by the examiner, of the failure
or refusal.
(2) Upon the filing of the certificate the Court may
order that person—
(a) to attend before the examiner, or to be sworn,
or to answer the question or to produce the
document or thing as the case may be; and
(b) to pay any costs occasioned by his failure or
refusal.
(3) An application for an order under paragraph (2)
may be made without notice to the person against
whom the order is sought, unless the Court
otherwise orders.
41.11 Witness allowance
A person required to attend before an examiner
shall be entitled to payment for expenses and loss
of time as upon attendance at trial.
41.12 Perpetuation of testimony
(1) Witnesses shall not be examined to perpetuate
testimony unless a proceeding has been
commenced for that purpose.
(2) Any person who would, in the circumstances
alleged by him to exist, become entitled, upon the
happening of any future event, to any property, the
right or claim to which cannot be brought to trial
by him before the happening of the future event,
may commence a proceeding to perpetuate any
r. 41.12
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testimony which may be material for establishing
the right or claim.
(3) No proceeding to perpetuate the testimony of
witnesses shall be set down for trial.
41.13 * * * * *
41.14 * * * * *
41.15 * * * * *
41.16 * * * * *
ORDER 41A—APPLICATION UNDER SECTION 42E(1)
OF THE EVIDENCE ACT 1958
41A.01 Application of Order
This Order applies to an application for a direction
under section 42E(1) of the Evidence Act 1958.
41A.02 Form of application
Notice of an application shall be in Form 41AA.
41A.03 Filing
The applicant shall file the notice at least 14 days
before the person the subject of the application is
due to appear before, or give evidence or make a
submission to the Court.
41A.04 Service
As soon as practicable after the filing of the notice
the applicant shall serve a copy on every other
party.
41A.05 Duty of applicant
If, whether before or after a direction has been
given, an applicant no longer requires the person
the subject of the application to appear before or
give evidence or make a submission to the Court
r. 41A.04
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by audio visual link or audio link, the applicant
shall notify the Registrar forthwith.
41A.06 Payment of costs
Unless the Court otherwise orders, the appropriate
amount prescribed by the regulations under
section 42H(1) of the Act shall be paid in the first
instance by the applicant.
ORDER 42
SUBPOENAS
42.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"conduct money" means a sum of money or its
equivalent sufficient to meet the reasonable
expenses of a person named of complying
with a subpoena in relation to the day on
which he is required by the subpoena to
attend;
"person named" means a person to whom a
subpoena or a sealed copy is addressed;
"subpoena for production" means an order in
writing requiring a person named to attend as
directed by the order for the purpose of
producing a document or thing for evidence;
"subpoena to give evidence" means an order in
writing requiring a person named to attend as
directed by the order for the purpose of
giving evidence.
42.02 Attendance by subpoena
(1) In any proceeding the Court may by subpoena
order that a person named attend at the trial or any
r. 42.02
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other stage of the proceeding for the purpose of
giving evidence or of producing any document or
thing for evidence or for both purposes.
(2) A subpoena shall be in Form 42A, 42B, 42C or
42D, whichever is appropriate.
42.03 Filing subpoena
(1) An order by subpoena for the attendance of a
person in a proceeding shall be taken to be made
upon the filing of the subpoena by a party.
(2) Upon the filing of a subpoena, the Registrar on the
request of the party filing it shall seal with the seal
of the Court a sufficient number of copies for
service and proof of service.
(3) A subpoena to give evidence may be addressed to
any number of persons.
(4) Where a subpoena to give evidence is addressed to
a person or to a number of persons "and others",
the name of any additional person to whom it is to
be addressed may be inserted in a sealed copy
without resealing.
42.04 Service
Service of a subpoena—
(a) where the person named is a natural person,
shall be by personal service of a sealed copy
on the person named in accordance with
Rule 6.03;
(b) where the person named is a corporation,
shall be by service of a sealed copy in the
corporation in accordance with Rule 6.04(a)
or, where provision is made by or under any
Act for service of a document on a
corporation, in accordance with that
provision.
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42.05 Conduct money
A person named shall be excused from complying
with a subpoena requiring him to attend on any
day on which his attendance is required unless
conduct money is given or tendered to him at the
time of service of the subpoena or a reasonable
time before that day.
42.06 Production before date for attendance
(1) A subpoena for production requiring production
before the Court or an officer of the Court shall,
unless the Court otherwise orders, permit the
person named, instead of producing the document
or thing before the Court or officer of the Court, to
produce it to the Registrar by hand or by post, in
either case so that the Registrar receives it not
later than two days before the first day on which
production is required by the subpoena to be
made.
(2) Where a document or thing is produced to the
Registrar under paragraph (1), the Registrar
shall—
(a) if requested to do so, give a receipt to the
person producing the document or thing; and
(b) produce the document or thing as the nature
of the case requires or the Court directs.
(3) This Rule does not apply to so much of a
subpoena as requires a person to attend for the
purpose of giving evidence.
42.07 Setting aside
The Court may set aside a subpoena either wholly
or in part.
42.08 Conduct money insufficient to meet expense and loss
r. 42.05 r. 42.07
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(1) Where a person named not being a party
reasonably incurs in complying with a subpoena
expense or loss substantially exceeding the
amount of any conduct money given, the Court
may order that the party who filed the subpoena
pay to that person an amount in respect of the
expense or loss.
(2) Where an order is made under paragraph (1) the
Court shall either fix the amount or direct that the
amount be fixed by the Registrar.
(3) Order 63A shall, with any necessary modification,
apply to the fixing of any amount by the Registrar
under this Rule.
42.08.1 Witnesses' fees and expenses
(1) A party shall pay to—
(a) a person not a party who attends before the
Court, whether in compliance with a
subpoena or not, and whom the party calls as
a witness; or
(b) a person not a party who attends before the
Court, in compliance with a subpoena served
by the party, and is not called as a witness by
any party—
the fees and expenses of that person.
(2) The Court may order that a party pay to a person
referred to in paragraph (1) the fees and expenses
to which by virtue of that paragraph the person is
entitled.
(3) Where an order is made under paragraph (2) the
Court shall either fix the amount of the fees and
expenses or direct that the amount be fixed by the
Registrar.
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(4) Order 63A shall, with any necessary modification,
apply to the fixing of any amount by the Registrar
under this Rule.
42.09 Production of wages records
(1) This Rule applies to a proceeding for damages in
respect of death or bodily injury where it is alleged
that the deceased or the plaintiff was employed
during a specified period.
(2) Any party may file a subpoena for production
addressed to any employer or former employer of
the deceased or of the plaintiff requiring the
person named or some person on his behalf to
attend before the Registrar to produce all
documents in the possession, custody or power of
the person named relating to the earnings of the
deceased or the plaintiff during the specified
period.
(3) A party who files a subpoena under this Rule
shall, forthwith after service, serve a copy on each
other party to the proceeding.
(4) To comply with paragraph (3) it shall not be
necessary that the copy served be sealed or be
served personally.
(5) Any party may inspect and take copies of any
document produced to the Registrar in accordance
with the subpoena.
42.10 Subpoena for attendance before another court etc.
This Order, except Rules 42.06 and 42.09, shall,
with any necessary modification, apply where by
or under any Act the Court has authority to
compel by subpoena the attendance of a person for
the purpose of giving evidence or producing any
document or thing for evidence in any court or
before any person having by law or by consent of
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parties authority to hear, receive and examine
evidence.
ORDER 43
AFFIDAVITS
43.01 Form of affidavit
(1) An affidavit shall be made in the first person.
(2) Unless the Court otherwise orders, an affidavit
shall state the place of residence of the deponent
and his occupation or, if he has none, his
description, and that he is a party to the
proceeding or employed by a party, if such be the
case.
(3) Notwithstanding paragraph (2), where a deponent
makes an affidavit in a professional or other
occupational capacity, the affidavit may, instead
of stating the deponent's place of residence, state
the address of his place of business, the position
he holds and the name of his firm or employer, if
any.
(4) An affidavit shall be divided into paragraphs
numbered consecutively, each paragraph being as
far as possible confined to a distinct portion of the
subject.
(5) Every affidavit shall be signed by the deponent,
except as provided by Rule 43.02(1), and the jurat
shall be completed and signed by the person
before whom it is sworn.
(6) Each page of an affidavit shall be signed by the
person before whom it is sworn.
(7) The person before whom an affidavit is sworn
shall legibly write, type or stamp below his
signature in the jurat his name and address and a
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statement of the capacity in which he has authority
to take the affidavit.
(8) The first page of an affidavit shall be headed
immediately beneath the title of the proceeding
with the name of the deponent and the date of
swearing.
(9) An affidavit shall on the outside identify the party
on whose behalf it is filed and state the name of
the deponent and the date of swearing.
43.02 Affidavit by illiterate or blind person
(1) Where it appears to the person before whom an
affidavit is sworn that the deponent is illiterate or
blind, he shall certify in or below the jurat that—
(a) the affidavit was read in his presence to the
deponent;
(b) the deponent seemed to him perfectly to
understand it; and
(c) the deponent made his signature or mark in
his presence.
(2) Where an affidavit is made by an illiterate or blind
deponent and a certificate in accordance with
paragraph (1) does not appear on the affidavit, it
may not be used in evidence unless the Court is
satisfied that the affidavit was read to the
deponent and that he seemed perfectly to
understand it.
43.03 Content of affidavit
(1) Except where otherwise provided by or under
these Rules an affidavit shall be confined to facts
which the deponent is able to state of his own
knowledge.
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(2) On an interlocutory application an affidavit may
contain a statement of fact based on information
and belief if the grounds are set out.
43.04 Affidavit by two or more deponents
Where an affidavit is made by two or more
deponents, the names of the persons making the
affidavit shall be inserted in the jurat, except that,
if the affidavit is sworn by both or all the
deponents at one time before the same person, it
shall be sufficient to state that it was sworn by
"each of the abovenamed" deponents.
43.05 Alterations
(1) Notwithstanding any interlineation, erasure or
other alteration in that jurat or body, an affidavit—
(a) my be filed, unless the Court otherwise
orders; but
(b) may not be used without the leave of the
Court unless the person before whom it is
sworn has initialled the alteration.
(2) Paragraph (1) shall apply to an account verified by
affidavit as if the account were part of the
affidavit.
43.06 Annexures and exhibits
(1) A document referred to in an affidavit shall not be
annexed to the affidavit but may be referred to as
an exhibit.
(2) An exhibit to an affidavit shall be identified by a
separate certificate annexed to it bearing the same
heading as the affidavit and signed by the person
before whom the affidavit is sworn.
(3) The certificate shall be in Form 43A and shall
contain in the bottom right hand corner of the page
in bold type and in a font size not less than
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20 points the distinguishing mark of the exhibit
and a brief and specific description of the exhibit.
43.07 Time for swearing
Unless the Court otherwise orders an affidavit
may be used in a proceeding notwithstanding that
it was sworn before the commencement of the
proceeding.
43.08 Irregularity
Notwithstanding any irregularity in form an
affidavit may—
(a) unless the Court otherwise orders, be filed;
(b) with the leave of the Court, be used in
evidence.
43.09 Filing
(1) Unless the Court otherwise orders, an affidavit—
(a) which has not been filed; or
(b) which has not been served or filed in
compliance with an order in respect of its
service or filing—
shall not be used by the party by or on whose
behalf it was made.
(2) An affidavit may be filed with the Registrar or
with the proper officer in court.
43.10 Affidavit sworn before party, solicitor
(1) An affidavit sworn before—
(a) a party;
(b) a partner in a firm which is a party; or
(c) an employee of a party—
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shall not be used in evidence by or on behalf of
the party.
(2) Paragraph (1) shall not apply where the Crown is
the party on whose behalf the affidavit is to be
used and the affidavit is sworn before an employee
of the Crown.
(3) Except as provided in paragraph (1) an affidavit
may be sworn before any authorised person.
ORDER 44
EXPERT EVIDENCE
44.01 Definition
In this Order, unless the context or subject-matter
otherwise requires, "a proceeding commenced
by writ" includes—
(a) a proceeding in respect of which an order has
been made under Rule 4.07(1);
(b) a trial or inquiry under Order 50;
(c) an assessment of damages or value under
Order 51.
44.02 Application
(1) This Order applies only to a proceeding
commenced by writ.
(2) In a proceeding in which the plaintiff claims
damages for bodily injury, the evidence of a
person as an expert witness, if not subject to Order
33, is subject to this Order.
(3) This Order does not apply to the evidence of a
party who would, if called as a witness at the trial,
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be qualified to give evidence as an expert in
respect of any question in the proceeding.
44.03 Service of statement of expert evidence
(1) A party who intends at trial to adduce the evidence
of a person as an expert witness shall, not later
than 30 days before the day fixed for trial or
within such other time as the Court may direct,
serve on every other party a statement in
accordance with paragraph (2).
(2) The statement shall—
(a) give the name and address of the witness;
(b) describe the qualifications of the witness to
give evidence as an expert;
(c) give the substance of the evidence it is
proposed to adduce from the witness as an
expert, including the opinion of the witness
and the acts, facts, matters and circumstances
on which the opinion is formed.
44.04 Making statement of other party evidence
A party may put in evidence a statement served on
him by another party in accordance with
Rule 44.03.
44.05 No evidence unless disclosed in statement
(1) Save with the leave of the Court or by consent of
the parties, a party shall not except in cross-
examination adduce any evidence from a person
as an expert witness at the trial of a proceeding
unless that evidence is covered by a statement
which the party has served in accordance with this
Order.
(2) For the purpose of paragraph (1), evidence is
covered by a statement if the statement contains
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the substance of the matters sought to be adduced
in evidence.
ORDER 45
ORIGINATING MOTION
45.01 Definitions
In this Order—
"judgment" includes order;
"proceeding" means proceeding commenced by
originating motion.
45.02 Evidence by affidavit
(1) Except where otherwise provided by any Act or
these Rules, and subject to paragraph (2), evidence
at the trial of a proceeding shall be given by
affidavit.
(2) By agreement of the parties, evidence at the trial
of the proceeding may be given orally, unless the
Court otherwise orders.
45.03 Judgment where no appearance
(1) Where a defendant fails to file an appearance
within the time limited, the Court may, on
application made by the plaintiff without notice to
the defendant, and on proof of service of the
originating motion and of the failure, give
judgment against that defendant for the relief or
remedy sought in the originating motion.
(2) For the purpose of these Rules the hearing of the
application is the trial of the proceeding.
(3) Except for the purpose of proof of service of the
originating motion and of the failure of the
defendant to appear, the plaintiff shall not, unless
the Court otherwise orders, use in evidence on the
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application any affidavit made by him or on his
behalf and not served on the defendant with the
originating motion.
45.04 Proceedings after appearance
(1) Where a defendant has filed an appearance, no
judgment shall be given for the relief or remedy
sought except on application by the plaintiff in
accordance with this Rule.
(2) Except as provided in paragraph (3) application
shall be made to a Master by summons in
Form 45A served on the defendant.
(3) In a proceeding commenced by originating motion
under Order 53 the plaintiff may apply for
judgment on the day specified in the originating
motion for application to the Master.
(4) On an application under paragraph (2) or (3) the
Master may, as appropriate—
(a) where he has authority to give the judgment
sought by the plaintiff, hear and determine
the application;
(b) by consent of the defendant, give the
judgment;
(c) refer the application to a Judge for hearing
and determination;
(d) place the proceeding in the list of cases for
trial and give directions for the filing and
service of affidavits or otherwise.
45.05 Special procedure
(1) In this Rule "plaintiff" includes a person who
proposes to commence a proceeding by
originating motion.
(2) The Court may by order—
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(a) dispense with the requirements of
Rules 5.03(1) and 8.02; and
(b) authorise the plaintiff to commence a
proceeding by originating motion in
Form 5C.
(3) Without limiting paragraph (2), an order may be
made—
(a) in an urgent case;
(b) to save time and expense for the parties; or
(c) where the defendant consents.
(4) An order may be made on application by the
plaintiff before or after the proceeding is
commenced and, except where the originating
motion has been served on the defendant,
application may be made without notice to the
defendant.
(5) An application made before the proceeding is
commenced shall not constitute a proceeding for
the purpose of any requirement of these Rules
with respect to originating process.
(6) Where an order has been made under paragraph
(2), judgment shall not be given for the plaintiff
for the relief or remedy sought in the originating
motion or otherwise except on application on
notice to the defendant in Form 45A.
(7) At the time the order is made or later, the Court
may give directions with respect to the application
for judgment.
ORDER 46
r. 45.05
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APPLICATIONS
46.01 Application
This Order applies to an interlocutory or other
application in a proceeding.
46.02 Application by summons
(1) An application made on notice to any person shall
be by summons, unless the Court otherwise
orders.
(2) An application by summons is made when the
summons is filed in accordance with Rule 46.04.
(3) An application not by summons is made when it
comes on for hearing.
46.03 Notice of application
On the hearing of an application the Court may
order that the person making the application give
notice of it to any person having a sufficient
interest.
46.04 Form and filing of summons
(1) A summons shall be in Form 46A.
(2) A summons shall be filed—
(a) where application is made to a Judge, with
the Registrar;
(b) where application is made to a Master, with
the Registrar, or with the appropriate
secretary;
(c) where application is made to the Registrar
for costs to be taxed, with the Registrar.
(3) Upon the filing of a summons, or at any later time
on the request of the applicant, a sufficient number
of copies of the summons for service and proof of
service shall be sealed with the seal of the Court.
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(4) The copies shall be sealed—
(a) where the summons is filed with the
Registrar, by the Registrar;
(b) where the summons is filed with a Master's
secretary, by the secretary.
(c) * * * * *
46.05 Service
(1) The applicant shall serve a sealed copy of a
summons and, except where these Rules otherwise
provide, a copy of any affidavit in support on
every person to whom notice of the application is
to be given.
(2) Service under paragraph (1) shall be made within
a reasonable time before the day for hearing
named in the summons, and in no case later than
2.00 p.m. on the previous day or, where the
Registrar's office was closed on the day before the
day for hearing, not later than 2.00 p.m. on the day
the office was last open.
(3) A plaintiff may serve any summons on a
defendant personally before appearance.
46.05.1 Day for hearing
(1) A summons which has not been served may, at the
request of the party who filed it, be amended on or
before the day for hearing named in the summons
to name another day.
(2) The summons may be amended—
(a) if the summons is to be heard by the Court
constituted by a Judge, the Registrar or a
Judge's Associate;
(b) if the summons is to be heard by the Court
constituted by a Master, by a Master's
secretary.
r. 46.05
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(3) A summons shall not be amended under this Rule
more than once.
(4) This Rule does not limit the power of the Court
under Rule 36.01.
46.06 Adjournment
(1) The Court may adjourn the hearing of an
application on such terms as it thinks fit.
(2) The Associate of the Judge or, where an
application is to be heard by a Master, the Master's
secretary, may by consent adjourn the hearing of
an application to a particular date or for a
particular time or generally and reserve the costs
of the adjournment, and shall record the
adjournment and any reservation of the costs by
indorsement on the court file.
(3) If the hearing of an application is adjourned under
paragraph (2), the Court may thereafter, whether
the costs of the adjournment were reserved or not,
make an order in relation to the costs of or
occasioned by the adjournment as it thinks fit.
(4) Rule 63A.22 shall apply to costs reserved under
paragraph (2) as if the costs were reserved by
order of the Court.
46.07 Absence of party to summons
(1) Where any person to whom a summons is
addressed fails to attend, the Court may hear the
application if satisfied that the summons was duly
served.
(2) Where on an application by summons the
applicant fails to attend, the Court may dismiss the
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application or make such other order as it thinks
fit.
46.08 Setting aside
The Court may set aside or vary an order which
affects a person where the application for the
order—
(a) was made on notice to that person, but he did
not attend the hearing of the application; or
(b) was not made on notice to that person.
ORDER 47
PLACE AND MODE OF TRIAL
47.01 Place of trial
Unless the Court otherwise orders, the place of
trial of a proceeding shall be determined in
accordance with Rule 5.08.
47.02 Mode of trial
(1) A proceeding commenced by writ and founded on
contract (including contract implied by law) or on
tort (including a proceeding for damages for
breach of statutory duty) shall be tried with a jury
if the plaintiff in the writ or the defendant by
notice in writing to the plaintiff and to the
Registrar within 10 days after the last appearance
signifies that he desires to have the proceeding so
tried, and the proper jury fees are paid.
(1.1) Paragraph (1) does not apply to a proceeding
under the Accident Compensation Act 1985,
other than a common law proceeding as defined in
section 129N of that Act.
r. 46.08
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(2) Any proceeding to which paragraph (1) does not
apply shall be tried without a jury, unless the
Court otherwise orders.
(3) Notwithstanding any signification under
paragraph (1), the Court may direct trial without a
jury if in its opinion the proceeding should not in
all the circumstances be tried before a jury.
(4) Trial with a jury shall be with a jury of six.
47.03 Payment of jury fees
(1) At the time a proceeding is set down for trial,
otherwise than under Rule 48.06, with a jury the
proper jury fees shall be paid by the plaintiff.
(2) If the defendant signifies that he desires to have
the proceeding tried with a jury under Rule 47.02
(1), the defendant shall pay the amount of the
proper jury fees to the plaintiff within 14 days
after—
(a) completing and signing a certificate of
readiness for trial; or
(b) an order has been made under Rule 48.06
that the proceeding be set down for trial with
a jury.
(3) If the defendant does not pay the amount of the
proper jury fees to the plaintiff within the time
limited by paragraph (2), the plaintiff may set the
proceeding down for trial without a jury, unless
the Court otherwise orders.
47.04 Separate trial of question
The Court may order that—
(a) any question in a proceeding be tried before,
at or after the trial of the proceeding, and
may state the question or give directions as
to the manner in which it shall be stated;
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(b) different questions be tried at different times
or places or by different modes of trial.
47.05 Judgment after determination of preliminary question
If the determination of any question in a
proceeding and tried separately from the
proceeding substantially disposes of the
proceeding or renders the trial of the proceeding
unnecessary, the Court may dismiss the
proceeding or make such other order or give such
judgment as it thinks fit.
47.06 Directions
(1) A Judge may at any stage of a proceeding by
direction limit—
(a) the time to be taken in examining, cross-
examining or re-examining a witness;
(b) the number of witnesses (including expert
witnesses) that a party may call;
(c) the time to be taken in making any oral
submissions;
(d) the time to be taken by a party in presenting
his or her case;
(e) the time to be taken by a trial.
(2) A Judge may vary or revoke a direction under
paragraph (1).
(3) The discretion of a Judge to give a direction under
paragraph (1) shall be exercised having regard to
the following matters in addition to any other
relevant matter—
(a) the time or number limited shall be
reasonable;
(b) the direction shall not prejudice the right of
each party to a fair trial, and in particular, to
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a reasonable opportunity to adduce evidence
and cross-examine witnesses;
(c) whether the case is complex or simple;
(d) the number of witnesses a party intends or
seeks to call;
(e) the volume and character of the evidence a
party intends or seeks to adduce;
(f) the interests of other litigants in the Court;
(g) the time expected to be taken for the trial;
(h) the importance of the proceeding as a whole
or of any question in the proceeding.
ORDER 48
SETTING DOWN FOR TRIAL
48.01 Application
This Order applies only to a proceeding
commenced by writ and to a proceeding in respect
of which an order has been made under
Rule 4.07(1).
48.02 Setting down by plaintiff
In any proceeding at any time after the close of
pleadings or, if the Court makes an order that
there be no pleadings, at the expiration of 10 days
after the order or of such other time as the Court
appoints, the plaintiff may set the proceeding
down for trial by filing a duly completed and
signed certificate of readiness for trial and giving
and filing notice of trial in Form 48A.
r. 48.01
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48.03 Setting down by defendant and dismissal for want of
prosecution
If the plaintiff does not set the proceeding down
for trial within 28 days after the day it can be set
down for trial under Rule 48.02, the defendant
may before the plaintiff sets the proceeding down
for trial, set it down for trial by filing a duly
completed and signed certificate of readiness for
trial and giving and filing notice of trial, or may
apply to the Court under Rule 24.01 to dismiss the
proceeding for want of prosecution.
48.04 Certificate of readiness
(1) A certificate or readiness for trial shall be in
Form 48B and before it is filed shall be duly
completed by all parties to the proceeding in the
manner indicated in the form.
(2) Except with the leave of the Court a certificate of
readiness shall not be filed unless it states that the
parties are ready to proceed with the trial upon
having not less than 14 days' notice.
(3) The certificate of readiness shall state the place at
which the proceeding is to be set down for trial.
(4) Each person who signs the certificate of readiness
shall state in the certificate his opinion as to the
number of days the trial can reasonably be
expected to occupy.
48.05 Interlocutory steps after setting down
(1) After a certificate of readiness is filed, except as
provided under paragraph (2) or by order of the
Court no party to the proceeding shall do any act
or take any step in respect of the matters referred
to in the certificate which otherwise he would be
required or permitted to do or take under these
Rules.
r. 48.03
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(2) Nothing in paragraph (1) shall—
(a) in a proceeding for damages for or arising
out of death or bodily injury affect the
obligation of the plaintiff to give particulars
of the damages claimed or the obligation of
the parties under Order 33 with respect to the
medical examination of the plaintiff and the
service of hospital and medical reports;
(b) prevent the service of an offer in writing in
accordance with Part 2 or 3 of Order 26;
(c) limit the power of the Court at the trial to
make an order for amendment or otherwise.
48.06 Order for setting down
(1) If the plaintiff or any party who files an
appearance refuses or neglects to complete a
certificate of readiness for trial, any other party
may apply to the Court for an order that the
proceeding be set down for trial.
(2) The Court may by order set the proceeding down
for trial with such directions with respect to the
listing of the proceeding, the payment of jury fees
or other matters as it thinks fit.
48.07 Order for setting down of country case
(1) Where a proceeding is to be tried at a place other
than Melbourne, any party may serve on any other
party in any manner provided by Rule 6.07, for
completion by him and return to the party serving
it, a form of certificate of readiness for trial
bearing an indorsement in Form 48C.
(2) If a party on whom a form of certificate is served
under paragraph (1) does not complete and return
it within 21 days, the proceeding may,
notwithstanding anything to the contrary in Rules
48.02, 48.03 and 48.05, be set down for trial upon
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the filing of a certificate of readiness for trial
which is not completed by that party but which
bears an indorsement that it is filed pursuant to
this Rule and upon the giving and filing of notice
of trial in Form 48A.
(3) After a proceeding has been set down for trial
under paragraph (2), if the certificate filed
contains a material misstatement or there is other
good cause, the Registrar or the Court may direct
that the proceeding shall cease to be set down.
48.08 Entry in list for trial
(1) Where a proceeding is to be tried in Melbourne,
the Registrar shall not accept for filing a certificate
of readiness which is not duly completed and
signed.
(2) On the due setting down of a proceeding for
hearing the Registrar shall enter it in an
appropriate list for trial.
(3) The Registrar may remove a proceeding from or
restore a proceeding to a list or transfer a
proceeding from one list to another.
48.09 Sittings for which trial set down
(1) Setting down for trial in Melbourne shall be taken
to be for the day on which the proceeding comes
on for trial.
(2) Setting down for trial elsewhere than in
Melbourne shall be taken to be for the next sitting
of the Court at the place for which it is set down
for trial, unless the Court otherwise orders.
48.10 Further consideration
(1) This Rule applies where a proceeding has been
adjourned for further consideration pending the
taking of any account or the making of any inquiry
by a Master.
r. 48.08
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(2) Unless the Court otherwise orders—
(a) after the expiration of 14 and within 21 days
from the order of the Master on the taking of
the account or the making of the inquiry, any
party may set the proceeding down for
further consideration;
(b) the further consideration of the proceeding
shall not take place before the expiration of
14 days from the day it was set down under
paragraph (2)(a);
(c) the party setting down the proceeding under
paragraph (2)(a) shall give not less than
seven days' notice to the other party of the
day the proceeding may come on for further
consideration.
48.11 Papers for Judge
(1) Where there are pleadings between any parties, the
party setting the proceeding down for trial shall at
the time of doing so file—
(a) in a proceeding for damages for or arising
out of death or bodily injury, one copy;
(b) in any other proceeding, two copies—
of all the pleadings.
(2) For the purpose of paragraph (1) the pleadings
shall include—
(a) particulars of any pleading given pursuant to
an order of the Court or the request of a
party; and
(b) any request by a party in writing for
particulars.
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48.12 Pre-trial conferences
(1) This Rule applies to any proceeding whether
commenced by writ or otherwise.
(2) Where a proceeding has been set down or
otherwise entered into a list for trial, the Court
may direct, or the Registrar may give notice, that
the parties and their solicitors or counsel attend
before a person named in the notice for the
purpose of a pre-trial conference.
(3) At the time and place designated for the pre-trial
conference or at any stage of the pre-trial
conference the person conducting the pre-trial
conference may if it appears to him to be
necessary or desirable refer the proceeding to the
Court.
(4) Upon a reference under paragraph (3), the Court
may make any order or give any direction—
(a) to ensure that a party or his solicitor or
counsel attend before a nominated person for
the purpose of the pre-trial conference;
(b) to ensure that the proceeding is ready for
trial.
(5) Except as all the parties who attend the conference
in writing agree, no evidence shall be admitted of
anything said or done by any person at the
conference.
(6) The agreement may be made at the conference or
later.
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ORDER 49
TRIAL
49.01 Order of evidence and addresses'
(1) The Court may give directions as to the order of
evidence and addresses and generally as to the
conduct of the trial.
(2) Subject to any direction given under paragraph
(1)—
(a) where the burden of proof on any question
lies on the plaintiff, he shall begin;
(b) where the burden of proof on all the
questions lies on the defendant, he shall
begin.
(3) Subject to any direction given under paragraph
(1)—
(a) where the only parties are one plaintiff and
one defendant, and there is no counterclaim,
the order of evidence and addresses shall be
as provided by the following paragraphs of
this Rule; and
(b) in any other case, the order of evidence and
addresses shall be as provided by those
paragraphs with such modifications as the
nature of the case requires.
(4) The party who begins may make an address
opening his case and may then adduce his
evidence.
(5) When, in the course of the case for the party who
begins, no document or thing is admitted in
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evidence on tender by the opposite party, and at
the conclusion of that case—
(a) the opposite party adduces evidence, he may
first make an opening address and after
adducing his evidence, he may make a
closing address and thereafter the party who
began may make a closing address;
(b) the opposite party does not adduce evidence,
the party who began may make a closing
address and then the opposite party may
make an address.
(6) When, in the course of the case for the party who
begins, any document or thing is admitted in
evidence on tender by the opposite party, and at
the conclusion of that case—
(a) the opposite party adduces evidence, the
order of proceedings shall be as provided by
paragraph (5)(a);
(b) the opposite party does not adduce evidence,
he may make an address and then the party
who began may make a closing address.
49.02 Absence of party
(1) If, when the trial of a proceeding is called on, any
party is absent, the Court may—
(a) order that the trial be not had unless the
proceeding is again set down for trial, or
unless such other steps are taken as the Court
directs;
(b) proceed with the trial generally or so far as
concerns any claim for relief in the
proceeding; or
(c) adjourn the trial.
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(2) The Court may set aside or vary any judgment,
order or verdict obtained where a party is absent at
the trial.
(3) An application under paragraph (2) shall be made
within 14 days after the trial.
49.03 Adjournment of trial
The Court may adjourn a trial on such terms as it
thinks fit.
49.04 Death before judgment
(1) Where a party to a proceeding dies after the
verdict or finding on the questions of fact, the
Court may give judgment notwithstanding the
death.
(2) Paragraph (1) does not affect the power of the
Court under Rules 9.08 and 9.09.
ORDER 50
REFERENCES OUT OF COURT
50.01 Reference to special referee
(1) In any proceeding the Court may, subject to any
right to a trial with a jury, refer any question to a
special referee for him to—
(a) decide the question; or
(b) give his opinion with respect to it.
(2) Where an order is made under paragraph (1), the
Court—
(a) shall state the question referred;
(b) shall direct that the special referee make a
report in writing to the Court on the question
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referred to him stating, with reasons, his
decision or opinion;
(c) may direct that the special referee give such
further information in his report as it thinks
fit.
(3) The Court may upon application by a party or by
the special referee set aside or vary an order made
under this Rule.
50.02 Directions as to procedure
Where an order is made under Rule 50.01, the
Court may give directions for the conduct of the
reference, and in particular may direct that—
(a) the special referee have the same authority
with respect to discovery of documents and
interrogatories as the Court;
(b) evidence be taken by the referee and the
attendance of witnesses and the production
of documents be compelled by subpoena.
50.03 Report on reference
(1) The special referee may in his report submit any
question arising on the reference for the decision
of the Court or make a statement of facts found by
him from which the Court may draw such
inferences as it thinks fit.
(2) On the receipt of the special referee's report, the
Court—
(a) shall give notice thereof to the parties; and
(b) may by order—
(i) require the special referee to provide a
further report explaining any matter
mentioned or not mentioned in the
report;
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(ii) remit the whole or any part of the
question originally referred to the
special referee for further consideration
by him or any other special referee;
(iii) vary the report.
(3) An application by a party for an order under
paragraph (2)(b) shall be made on not less than
three days' notice to the other party or parties.
50.04 Use of report
The Court may as the interests of justice require
adopt the report of a special referee or decline to
adopt the report in whole or in part, and make
such order or give such judgment as it thinks fit.
50.05 Committal
Nothing in this Order shall authorise any special
referee to make an order of committal.
50.06 Remuneration of special referee
(1) The Court may determine the remuneration of a
special referee, and by what party or parties and in
what proportion the remuneration is to be paid
either in the first instance or finally.
(2) The Court may order any party to give security for
the remuneration of a special referee.
(3) The Court may order that the proceeding be stayed
until an order made under paragraph (2) is
complied with.
50.07 Reference to mediator
(1) The power and discretion of the Court as to
mediation under section 47A of the Act shall be
exercised subject to and in accordance with this
Rule.
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(2) An order for reference to mediation may be made
at any stage of a proceeding.
(3) Except so far as the Court otherwise orders, an
order for reference to mediation shall not operate
as a stay of the proceeding.
(4) Where a reference is made under paragraph (2) the
mediator shall endeavour to assist the parties to
reach a settlement of the proceeding or settlement
of that part of the proceeding referred to him.
(5) The mediator may and shall if so ordered report to
the Court whether the mediation is finished.
(6) The mediator shall not make any report to the
Court other than a report under paragraph (5).
(7) 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.
(8) The agreement may be made at the mediation or
later.
(9) The Court may determine the remuneration of the
mediator, and by what party or parties and in what
proportion the remuneration is to be paid either in
the first instance or finally.
(10) The Court may order any party to give security for
the remuneration of the mediator.
50.08 Reference to arbitration
(1) The power and discretion of the Court as to
arbitration under section 47A of the Act shall be
exercised subject to and in accordance with this
Rule.
(2) An order for reference to arbitration may be made
at any stage of a proceeding.
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(3) An arbitration ordered under paragraph (2) shall
be conducted in accordance with and subject to
the provisions of the Commercial Arbitration
Act 1984.
(4) The Court may subject to the provisions of the
Commercial Arbitration Act 1984 by order
made under paragraph (2) or at any time—
(a) give such directions and make such orders
for the conduct of the arbitration as the
parties may agree or as they might have
agreed had the arbitration been made
pursuant to an arbitration agreement;
(b) make such orders as to the remuneration of
the arbitrator and the giving of security for
such remuneration as it thinks fit.
ORDER 51
ASSESSMENT OF DAMAGES OR VALUE
51.01 Mode of assessment
Subject to Rule 51.05, damages under any
judgment or order for damages to be assessed
shall, unless the Court otherwise orders, be
assessed by a Master.
51.02 Notice to other party
(1) The party against whom the damages are to be
assessed may take part in the assessment.
(2) The party for whom the damages are to be
assessed shall, not less than 10 days before the
assessment is due, serve notice of the day, time
and place of the assessment on the other party to
the assessment.
(3) Notice under paragraph (2) may be served at the
address for service, but, if there is no address for
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service, the notice shall be served personally,
unless the Court otherwise orders.
51.03 Procedure on assessment
The attendance of witnesses and production of
documents may be compelled by subpoena in
accordance with Order 42, and Order 49 shall,
with any necessary modification, apply as if the
assessment were a trial of the proceeding.
51.04 Order for damages
Where damages are assessed by a Master, he shall
by order state the amount at which they are
assessed.
51.05 Default judgment against some defendants
Where judgment for damages to be assessed is
entered or given in default of appearance or
pleading, and the proceeding is continued against
other defendants, the damages shall be assessed at
the trial, unless the Court otherwise orders.
51.06 Continuing cause of action
Where damages are assessed, whether under this
Order or otherwise, in respect of any continuing
cause of action, they shall be assessed down to the
time of assessment.
51.07 Value of goods
This Order shall, with any necessary modification,
apply to a judgment or order for the value of
goods to be assessed, with or without damages to
be assessed.
ORDER 52
ACCOUNTS AND INQUIRIES
52.01 Account or inquiry at any stage
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(1) Except as provided in paragraph (3), the Court
may at any stage of a proceeding make an order
for the taking of any account or the making of any
inquiry.
(2) Where the Court makes an order for the taking of
an account, it may order payment of any amount
found to be due on taking the account.
(3) The Court shall not order that an account be
taken—
(a) as against a defendant who has not filed an
appearance unless he is in default of
appearance; or
(b) if it appears that there is some preliminary
question to be tried.
(4) Every direction for the taking of an account or the
making of an inquiry shall be numbered in the
judgment or order so that, as far as possible, each
distinct account and inquiry is designated by a
number.
52.02 Directions for account
Where the Court makes an order for the taking of
an account, the Court, by the same or later order—
(a) may give directions concerning the manner
of taking or verifying the account; and
(b) without limiting paragraph (a), may direct
that in taking the account the relevant books
of account shall be evidence of the matters
contained in them with liberty to the parties
interested to take objections thereto.
52.03 Form and verification of account
(1) The items on each side of an account shall be
numbered consecutively.
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(2) Unless the Court otherwise orders, an accounting
party shall verify his account by affidavit and the
account shall be made an exhibit to the affidavit.
52.04 Filing and service of account
An accounting party shall, unless the Court
otherwise orders—
(a) file his account and verifying affidavit; and
(b) forthwith serve a copy of the account and
affidavit on each other party.
52.05 Notice of charge, error in account
(1) A party who seeks to charge an accounting party
with an amount beyond what the accounting party
by his account admits receiving shall give to the
accounting party notice of the charge, stating, so
far as he is able, the amount which he seeks to
charge, with brief particulars.
(2) A party who alleges that any item in the account
of an accounting party is erroneous in amount or
otherwise shall give to the accounting party notice
of the allegation, stating the grounds.
52.06 Allowances
In taking an account under a judgment or order all
just allowances shall be made.
52.07 Delay
Where there is delay in the prosecution of any
account, inquiry or other matter under a judgment
or order, the Court may make orders for staying or
expediting the proceeding or for the conduct of the
proceeding as it thinks fit.
52.08 Fund distribution before all entitled ascertained
Where some of the persons entitled to share in a
fund are ascertained, and the ascertainment of the
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other persons so entitled may be delayed, the
Court may by order allow immediate payment of
their shares to the persons ascertained without
reserving any part of those shares to meet the
subsequent costs of ascertaining those other
persons.
52.09 Restrictive covenant
(1) This Rule applies where on an application under
section 84 of the Property Law Act 1958 an
order is made under sub-section (3) of that section
directing the plaintiff to make inquiries or give
notice.
(2) Whether the plaintiff has made inquiries and given
notice in accordance with the order and what the
results of the inquiries are shall be determined by
a Judge or Master after inquiry.
(3) The Judge or Master shall by order declare what
he has determined under paragraph (2) and the
application shall not proceed until the order is
made.
ORDER 53
SUMMARY PROCEEDING FOR RECOVERY OF LAND
53.01 Application
(1) Subject to paragraph (2), this Order applies where
the plaintiff claims the recovery of land which is
occupied solely by a person or persons who
entered into occupation or, having been a licensee
or licensees, remained in occupation without the
plaintiff's licence or consent or that of any
predecessor in title of his.
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(2) This Order does not apply where the land is
occupied by a mortgagor or successor in title and
the claim is made by the mortgagee or successor
in title.
53.02 Originating process
(1) The plaintiff may make the claim in a proceeding
in accordance with this Order.
(2) The proceeding shall be commenced by
originating motion.
(3) The originating motion shall be in Form 5E.
53.03 Who to be defendant
(1) Each person in occupation of the land whose name
the plaintiff knows shall be a defendant.
(2) If the plaintiff does not know the name of any
person in occupation the proceeding may be
commenced without naming any person as
defendant.
53.04 Affidavit in support
At the time the proceeding is commenced an
affidavit shall be filed stating—
(a) the interest of the plaintiff in the land;
(b) the circumstances in which the land has been
occupied without licence or consent and in
which the claim for recovery of the land
arises; and
(c) that the plaintiff does not know the name of
any person occupying the land who is not a
defendant.
53.05 Service
(1) The originating motion and a copy of the affidavit
and of any exhibit referred to therein shall be
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served on each defendant, if any, and on any
person occupying the land who is not a defendant.
(2) Service on a defendant shall be personal.
(3) Service on a person occupying the land who is not
a defendant shall be effected—
(a) by—
(i) affixing a copy of the originating
motion and a copy of the affidavit to
some conspicuous part of the land; and
(ii) if practicable, leaving in the letter-box
or other receptacle for mail on the land
a copy of the originating motion and a
copy of the affidavit enclosed in a
sealed envelope addressed to "The
Occupiers"; or
(b) in such other manner as the Court directs.
53.06 Occupier made a party
The Court may order that a person occupying the
land who is not a defendant be made defendant or
added as a defendant, as the case requires, and that
he file an appearance.
53.07 Judgment for possession
(1) In a proceeding under this Order no judgment for
possession shall be given except by a Judge.
(2) The judgment shall be in Form 53A.
53.08 Warrant of possession
(1) A warrant of possession to enforce a judgment for
possession in a proceeding under this Order shall
not be issued without the leave of a Judge where
three months have elapsed since the judgment
took effect.
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(2) An application for leave under paragraph (1) may
be made without notice to any person, unless the
Court otherwise orders.
(3) A warrant of possession to enforce a judgment for
possession in a proceeding under this Order shall
be in Form 53B.
ORDER 54
ADMINISTRATION OF ESTATES AND EXECUTION OF
TRUSTS
54.01 Definitions
In this Order—
"administration proceeding" means a
proceeding for the administration of an estate
or the execution of a trust under the direction
of the Court;
"estate" means the estate of a deceased person.
54.02 Relief without general administration
(1) A proceeding may be brought for any relief which
could be granted in an administration proceeding
and a claim need not be made for the
administration or execution under the direction of
the Court of the estate or trust in respect of which
the relief is sought.
(2) Without limiting paragraph (1), a proceeding may
be brought for—
(a) the determination of any question which
could be determined in an administration
proceeding, including any question—
(i) arising in the administration of an estate
or in the execution of a trust;
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(ii) as to the composition of any class of
persons having a claim against an estate
or a beneficial interest in an estate or in
property subject to a trust; or
(iii) as to the rights or interests of a person
claiming to be a creditor of an estate or
to be entitled under the will or on the
intestacy of a deceased person or to be
beneficially entitled under a trust;
(b) an order directing an executor, administrator
or trustee to—
(i) furnish and, if necessary, verify
accounts;
(ii) pay funds of the estate or trust into
court; or
(iii) do or abstain from doing any act;
(c) an order—
(i) approving any sale, purchase,
compromise or other transaction by an
executor, administrator or trustee; or
(ii) directing any act to be done in the
administration of an estate or in the
execution of a trust which the Court
could order to be done if the estate or
trust were being administered or
executed under the direction of the
Court.
54.03 Parties
(1) In an administration proceeding or a proceeding
within Rule 54.02—
(a) all the executors of the will of the deceased
or administrators of the estate or trustees of
the trust, as the case may be, shall be parties;
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(b) where the proceeding is brought by
executors, administrators or trustees, any of
them who does not consent to being joined
as a plaintiff shall be made a defendant;
(c) notwithstanding anything in Rule 9.03(1),
and without limiting the powers of the Court
under Order 9, all persons having a
beneficial interest in or claim against the
estate or having a beneficial interest under
the trust, as the case may be, need not be
parties, and the plaintiff may make such of
those persons parties as he thinks fit;
(d) where in the taking of an account of debts or
liabilities under a judgment or order in the
proceeding, a person not a party makes a
claim—
(i) a party other than the executors or
administrators or trustees shall not be
entitled to attend before the Court in
relation to that claim except by leave of
the Court; and
(ii) the Court may direct or allow any party
to attend before the Court either in
addition to or in substitution for the
executors, administrators or trustees.
54.04 Notice of proceeding and judgment
(1) In an administration proceeding or a proceeding
within Rule 54.02, notwithstanding anything in
Rule 54.03, the Court may order that any person
not a party be given notice of the proceeding and
of any judgment in the proceeding.
(2) On the application of a person given notice under
paragraph (1), the Court may, in accordance with
Rule 9.06(b), order that the person be added as a
party.
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54.05 Relief in proceeding by originating motion
(1) In an administration proceeding or a proceeding
within Rule 54.02 the Court may make any order
and grant any relief to which the plaintiff is
entitled by reason of any breach of trust, wilful
default or other misconduct of the defendant
notwithstanding that the proceeding was
commenced by originating motion.
(2) Paragraph (1) does not limit the power of the
Court under Rule 4.07(1).
54.06 Judgment in administration proceeding
(1) The Court need not give judgment or make an
order for the administration of an estate or the
execution of a trust under the direction of the
Court unless the judgment or order is necessary
for the determination of the questions arising
between the parties.
(2) Where an administration proceeding is brought by
a creditor of the estate or by a person claiming to
be entitled under the will or on the intestacy of the
deceased or to be beneficially entitled under the
trust, the Court may—
(a) if it is alleged that no or no sufficient
accounts have been furnished by the
executors, administrators or trustees, order
that the proceeding be stayed for a period
specified in the order and that the executors,
administrators or trustees shall within that
period furnish the plaintiff with proper
accounts;
(b) if necessary to prevent proceedings by other
creditors or by other persons claiming to be
entitled as aforesaid, give judgment or make
an order for the administration of the estate
or the execution of the trust under the
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direction of the Court and order that no steps
be taken under the judgment or order, or
under any account or inquiry directed,
without the leave of the Court.
54.07 Conduct of sale
Where the Court makes an order for the sale of
property comprised in an estate, or trust property,
the executors or administrators, or the trustees, as
the case requires, shall, unless the Court otherwise
orders, have the conduct of the sale.
ORDER 55
SALE OF LAND BY ORDER OF COURT
55.01 Definition
In this Order "land" includes any interest in or
right over land.
55.02 Power to order sale
In any proceeding relating to land, where it is
necessary or expedient for the purposes of the
proceeding, the Court at any stage of the
proceeding may order that the whole or any part of
the land be sold, and may further order that any
party in receipt of the rents or profits of the land or
otherwise in possession of the land deliver
possession to such person as the Court directs.
55.03 Notice of application
(1) Except for special reason an order for the sale of
land under Rule 55.02 shall not be made unless
notice in writing has been given to every person
interested in the land, whether or not a party.
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(2) An order for sale shall state whether notice has
been given to every person interested in the land,
and, if it has not, shall state what special reason
exists for making the order notwithstanding.
55.04 Manner of sale
(1) This Rule applies where the Court makes an order
under Rule 55.02 that land be sold.
(2) The Court may appoint a party or other person to
have the conduct of the sale.
(3) The Court may permit the person having the
conduct of the sale to sell the land in such manner
as he thinks fit.
(4) The Court may direct any party to join in the sale
and conveyance or transfer or in any other matter
relating to the sale.
(5) The Court may direct any party to join in the sale
and conveyance or transfer or in any other matter
relating to the sale.
(6) The Court may give further directions for the
purpose of the sale including directions—
(a) fixing the manner of sale, whether by
contract conditional on approval of the
Court, private treaty, public auction or tender
or otherwise;
(b) fixing a reserve or minimum price;
(c) requiring payment of the purchase money
into court or to a trustee or other person;
(d) for settling the particulars and conditions of
sale;
(e) for obtaining evidence of value; or
(f) fixing the remuneration to be allowed to any
auctioneer, estate agent or other person.
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55.05 Certifying result of sale
(1) Where the Court has directed payment of the
purchase money into court or the Court so orders,
the result of a sale by order of the Court shall be
certified—
(a) in the case of a sale by public auction, by the
auctioneer who conducted the sale;
(b) in any other case, by the person having the
conduct of the sale or his solicitor—
and the Court may require that the certificate be
verified by affidavit.
(2) The person having the conduct of the sale shall
file the certificate and affidavit.
(3) Unless the Court otherwise orders, the certificate
and affidavit shall be filed within 21 days after the
sale.
55.06 Mortgage, exchange or partition
This Order shall, with any necessary modification,
apply to the mortgage, exchange or partition of
any land under an order of the Court.
ORDER 56
* * * * *
ORDER 57
* * * * *
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ORDER 58
APPEALS FROM INFERIOR JURISDICTIONS
58.01 * * * * *
58.02 Appeals from inferior courts
Except where otherwise provided by any Act or by
Rules—
(a) an appeal from an inferior court of civil
jurisdiction or from a tribunal from whose
orders, decisions or determinations a right of
appeal to the Court is conferred by any Act,
shall be heard by a Judge;
(b) the appeal shall be brought by summons and
the summons shall state the grounds of the
appeal, and whether all or part only of the
judgment, order, decision or determination is
complained of;
(c) the summons shall be served on all parties
directly affected by the appeal and on the
Registrar or other proper officer of the court
or tribunal from which the appeal is brought;
(d) the summons shall be served within 21 days
from the day the judgment, order, decision,
or determination complained of was given or
made;
(e) the summons shall be served not less than
10 days before the day for hearing named in
the summons, unless a Judge otherwise
orders;
(f) the appeal shall not operate as a stay of
proceedings unless a Judge or the inferior
court or tribunal so orders;
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(g) the Court may give leave to amend the
grounds of appeal or make any other order to
ensure the proper determination of the
appeal.
58.03 * * * * *
ORDER 59
JUDGMENTS AND ORDERS
59.01 General relief
The Court may, at any stage of a proceeding, on
the application of any party, give such judgment or
make such order as the case requires
notwithstanding that the judgment or order had
not been sought in the originating process or other
document of the party in the proceeding.
59.02 Date of effect
(1) A judgment given or order made by the Court
shall bear the date of and shall take effect on and
from the day it is given or made, unless the Court
otherwise orders.
(2) Any other judgment shall bear the date of and
shall take effect on and from the day it is
authenticated in accordance with Order 60A.
59.03 Time for compliance
(1) Subject to paragraph (3), a judgment or order
which requires a person to do an act shall provide,
unless the Court otherwise orders, that the act be
done within 14 days after service of a copy of the
judgment or order on him.
(2) Where a judgment or order requires a person to do
an act within a fixed time, the Court may, by
order, fix another time.
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(3) Paragraph (1) does not apply to—
(a) so much of a judgment as requires a person
to pay money otherwise than into court;
(b) a judgment for possession of land; or
(c) a judgment for the delivery of goods.
(4) Where a judgment or order requires a person to do
an act but does not fix a time within which he is
required to do the act, the Court may, by order, fix
a time.
(5) Where the Court fixes a time under paragraph (4),
the Court may, by subsequent order, fix another
time.
59.04 Statement of reasons for judgment
Where the Court gives any judgment or makes any
order the reasons for which have been reduced to
writing, it shall be sufficient to state the result
orally without reasons, but the written reasons
shall then and there be published by delivery to
the Associate or, where a Master gives the
judgment or makes the order, to his secretary.
59.05 Notice of judgment to non-party
(1) This Rule applies where the Court gives judgment
or makes an order for—
(a) the administration of the estate of a deceased
person;
(b) the execution of a trust; or
(c) the sale of property.
(2) Where the judgment or order—
(a) affects the rights of any person not a party; or
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(b) directs the taking of an account or the
making of an inquiry—
the Court may by the judgment or order, or by
subsequent order, direct that notice of the
judgment be served on any person interested.
(3) The Court may direct that notice under
paragraph (2) be served personally or in some
other manner, and, where it appears that service is
impracticable, may dispense with service.
(4) A notice of judgment served under paragraph (2)
shall be endorsed in accordance with Form 59A.
(5) Where under this Rule notice of a judgment is
served on a person, or the Court dispenses with
service of notice of judgment on a person—
(a) subject to paragraph (3), that person shall be
bound by the judgment to the same extent as
if he were a party at the time the judgment or
order was given or made, except where the
judgment or order has been obtained by fraud
or non-disclosure of material facts;
(b) he may, after filing an appearance, attend on
the taking of the account or the making of
the inquiry under the judgment or order.
(6) The Court may set aside or vary the judgment or
order on the application of any person referred to
in paragraph (2).
(7) An application under paragraph (6) shall be made
by summons, which shall be filed—
(a) if notice of the judgment or order has been
served on the applicant, within 28 days after
service;
(b) if the Court has dispensed with service of
notice, within 28 days after the day the order
dispensing with service was made.
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59.06 Consent judgment or order by filing
(1) If all parties to a proceeding are agreed upon the
terms in which a judgment should be given, or an
order made, in the proceeding, a judgment or order
in those terms may be sought in accordance with
this Rule.
(2) A party may file with the Registrar—
(a) a form of judgment or order, set out in
accordance with the Rules, which states the
terms of the judgment or order sought, and is
expressed as being by consent; and
(b) a copy of the form of judgment or order
signed by the solicitor on the record for each
party.
(3) The Registrar shall, if satisfied that the judgment
or order sought is one proper to be made under
this Rule, seal the form of judgment or order with
the seal of the Court.
(4) A judgment or order in the terms of the form filed
in the Court is authenticated when the Registrar
seals the form with the seal of the Court.
(5) A judgment or order so authenticated shall be
taken to be a judgment given or order made by the
Court on the day the form of judgment or order
and the signed copy of the form were filed with
the Registrar.
(6) The judgment or order shall state that it is given or
made under this Rule and shall show at the date it
was given or made the day on which the form of
judgment or order and the signed copy of the form
were filed with the Registrar.
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(7) This Rule applies only—
(a) where a claim is made for the recovery of a
debt, damages or any property, and judgment
is sought for any of the following—
(i) the payment of a debt, where the
amount of the debt is agreed;
(ii) the payment of damages, or the value of
goods, where the amount of the
damages or the value is agreed;
(iii) the payment of damages to be assessed,
or the value of goods to be assessed;
(iv) the possession of land;
(v) the delivery of goods;
(vi) the delivery of goods or their value to
be assessed;
(b) to an order sought for any of the following—
(i) the dismissal of a proceeding;
(ii) the dismissal of an application in a
proceeding;
(iii) that a party be at liberty to discontinue
or withdraw any part of a proceeding,
or to discontinue a counterclaim or
withdraw any part of it;
(iv) the stay of a proceeding, either
conditionally or upon terms;
(v) to set aside or vary any judgment or
order to which Rule 21.07, 24.06 or
46.08 applies;
(vi) that a person cease to be a party;
(vii) for or with respect to costs including
the giving of security for costs;
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(viii) to stay execution of a judgment or
order, either conditionally or upon
terms.
(8) This Rule shall not apply to any judgment or order
in a proceeding—
(a) in which any party has no solicitor in the
proceeding or is a person under disability;
(b) to which Chapter II of the Rules of the
County Court applies.
59.07 Consent to judgment or order by party not in
attendance
(1) Where parties to a proceeding are agreed upon the
terms in which a judgment should be given, or an
order made, in the proceeding, the Court may, on
the application of a party, and if satisfied that any
other party to be bound who is not in attendance
consents, give judgment or make an order in those
terms without requiring that other party to attend.
(2) As evidence of the consent of a party not in
attendance, the Court may accept a document or a
facsimile copy of the document signed by the
solicitor on the record for that party which is
produced to the Court by the party applying for the
judgment or order.
(3) Any document accepted under paragraph (2) shall
be placed on the Court file.
ORDER 60
* * * * *
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ORDER 60A
AUTHENTICATION OF JUDGMENTS AND ORDERS
60A.01 Definition
In Rules 60A.07 and 60A.10, "party" includes
any person having a sufficient interest.
60A.02 How judgment or order authenticated
(1) A judgment or order other than a judgment or
order under Rule 59.06 is authenticated when a
form of the judgment or order, drawn up and
lodged with the Registrar in accordance with
Rule 60A.07, is—
(a) signed by a Judge or a Master; or
(b) sealed by the Registrar with the seal of the
Court—
and filed.
(2) A judgment or an order under Rule 59.06 is
authenticated as provided in that Rule.
60A.03 When authentication required or permitted
A judgment given or order other than a judgment
or order under Rule 59.06 shall not be
authenticated unless—
(a) the Court or the Registrar so directs;
(b) it is to be enforced;
(c) it is required by these Rules or by its terms to
be served; or
(d) an appeal has been instituted or an
application for leave to appeal made.
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60A.04 Judge, Master or Registrar to authenticate judgment
given or order
(1) Where a judgment given or an order other than a
judgment or order under Rule 59.06 is to be
authenticated, it shall be authenticated—
(a) in accordance with Rule 60A.02(1)(a) and
the form of the order shall be signed by the
Judge or Master who gave the judgment or
made the order; or
(b) by the Registrar in accordance with
Rule 60A.02(1)(b).
(2) Where that Judge or Master is unable for
sufficient cause to sign the judgment or order, it
may be signed by another Judge or Master, as the
case requires.
(3) The Court may direct that a judgment given or
order be authenticated by the Registrar in
accordance with Rule 60A.02(b).
60A.05 Registrar to authenticate judgment entered or order of
the Registrar
(1) Where a party is entitled to enter judgment, a
judgment is entered for the party when a judgment
is authenticated by the Registrar in accordance
with Rule 60A.02(b).
(2) Where an order made by the Registrar is to be
authenticated, the order shall be authenticated by
the Registrar in accordance with Rule 60A.02(b).
60A.06 Form of judgment or order
The forms of judgments and orders in Forms 60A
to 60L shall, where appropriate, be used.
60A.07 Drawing up and lodging of judgment or order
(1) The form of a judgment or order shall be drawn up
by the party requiring it to be authenticated.
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(2) In the case of a judgment given or an order, the
party shall lodge three copies of the form of
judgment or order with the Registrar.
(3) In the case of a judgment entered, the party shall
lodge with the Registrar a form of the judgment to
be sealed by the Registrar with the seal of the
Court.
60A.08 Recitals in judgments and orders
(1) A judgment or order shall not include by way of
recital any matter not provided for in paragraph
(2).
(2) A judgment or order shall by way of recital
specify—
(a) the originating or other process upon which
the judgment or order was obtained;
(b) whether any party who was entitled to attend
on the hearing of the application to which the
judgment or order relates did or did not
attend, and if he did, whether in person or by
counsel or solicitor;
(c) any finding by the Court of fact essential to
ground jurisdiction;
(d) the terms of any undertaking given by a
party;
(e) such other matters as the Court may direct.
(3) Where the Court so orders or any party so
requires, a judgment or order shall by way of
annexure identify the evidence before the Court.
60A.09 Drawing up of judgment or order by Registrar
Where a judgment has been given or an order
made, and no party has drawn up and lodged with
the Registrar a form of the judgment or order for
authentication, the Registrar may and, where the
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Court so directs, the Registrar shall draw up a
form of the judgment or order and seal it with the
seal of the Court.
60A.10 Copy of judgment or order
The Registrar, on the request of a party, shall seal
a reasonable number of copies of a judgment or
order.
* * * * *
ORDER 61
JUDGMENT DEBT INSTALMENT ORDERS
61.01 Definitions
(1) In this Order, unless the context or subject matter
otherwise requires—
"judgment" includes a judgment or order for the
payment of money into Court;
"the Act" means the Judgment Debt Recovery
Act 1984;
"section" means section of the Act;
references to an order that a judgment debt be paid
by instalments include references to an order that
any part of the judgment debt be so paid.
(2) The Registrar shall be the proper officer of the
Court for the purpose of the Act.
61.02 Application under section 6 or 8
(1) An application to the Registrar under section 6
for—
(a) an order that a judgment debt be paid by
instalments shall be in Form 61A;
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(b) an order in substitution for an order made
under section 5 shall be in Form 61B.
(2) An application to the Court under section 8 for the
variation or cancellation of an order that a
judgment debt be paid by instalments shall be in
Form 61C.
(3) Where an application is made under section 6 or
section 8 by a judgment debtor, the judgment
debtor shall—
(a) where the judgment debtor is—
(i) a natural person, file an affidavit of his
financial situation which gives the
information required by Form 72C;
(ii) a corporation, file an affidavit of its
financial situation; and
(b) serve a copy of the affidavit on the judgment
creditor at the time of service of the
application.
(3.1) Where an application is made under section 6 by a
judgment creditor the judgment creditor shall file
an affidavit stating the facts on which the
application is based and serve a copy of the
affidavit on the judgment debtor.
(4) A copy of the affidavit in support of an application
made under section 8 by a judgment creditor shall
be served on the judgment debtor at the time of
service of a copy of the application.
(5) An order under section 6 or section 8 shall be in
Form 61D.
(6) A notice by the Registrar under section 6(4) shall
be in Form 61E.
(7) A notice of objection by a judgment creditor or
judgment debtor under section 6(5) shall be in
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Form 61F and shall be filed within 14 days after
the judgment creditor or judgment debtor receives
notice from the Registrar under section 6(4).
(8) Where a notice of objection under section 6(5) is
filed, the Registrar shall set the matter down for
hearing before a Judge.
(9) A notice by the Registrar under section 6(6) shall
be in Form 61G.
(10) A notice by the Court under section 6(7) shall be
in Form 61H.
61.03 Instalment agreement under section 7
(1) An instalment agreement entered into between a
judgment creditor and a judgment debtor under
section 7(1) shall be in Form 61J and shall be filed
with the Registrar.
(2) Each party shall execute the agreement in the
presence of a witness who shall by his signature
attest that execution.
(3) An affidavit or affidavits verifying compliance
with paragraph (2) shall be filed with the
Registrar.
(4) An order under section 7(3) for the payment of a
judgment debt by instalments shall be in
Form 61K.
(5) A notice by the Registrar under section 7(4) shall
be in Form 61L.
61.04 Summons for oral examination of judgment debtor
(1) A summons under section 14(1) or section 17(1)
requiring a judgment debtor to attend before the
Court to be orally examined shall be in Form
61M.
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(2) Where the judgment debtor is a corporation the
summons may require an officer of the
corporation to attend to be orally examined.
(3) An application to the Registrar for the issue of a
summons under section 17(1) shall be supported
by affidavit evidence of—
(a) the making of the instalment order; and
(b) default in payment of any instalment under
that order.
(4) A warrant under section 14(2) or section 17(2) for
the apprehension of a judgment debtor shall be in
Form 61N.
(5) An application to the Court for the issue of a
warrant for the apprehension of a judgment debtor
shall be supported by affidavit evidence of—
(a) the making of an application for the making
or variation or cancellation of an instalment
order;
(b) the service of notice of any application of the
kind referred to in paragraph (5)(a), where
service is necessary;
(c) the service of the summons requiring the
judgment debtor to attend before the Court
and, where necessary, of the judgment or a
copy;
(d) the failure of the judgment debtor to attend
as required by that summons; and
(e) the usual or last known place of residence or
business of the judgment debtor or, where
the judgment debtor is a corporation, its last
known registered office.
(6) A notice under section 14(6) or 17(5) shall be in
Form 61P.
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61.05 Notice of instalment order confirmed, varied or
cancelled
A notice under section 18(2) shall be in Form
61Q.
61.06 Order for imprisonment
An order for imprisonment made under section
19(1) shall specify the instalments in the payment
of which default has been made.
61.07 Certificate of payment
(1) An application to the Registrar for a certificate of
payment under section 19(3) shall be supported by
affidavit evidence of—
(a) the making of an order for imprisonment;
and
(b) the payment of the instalments specified in
that order.
(2) A certificate of payment issued under section
19(3) shall be in Form 61R.
61.08 Notices
Where under the Act the Court or the proper
officer of the Court is required to cause the
judgment debtor or judgment creditor to be
notified of any matter, the notification may be
effected by the Court or the proper officer of the
Court causing notice in writing of the matter to
be—
(a) served personally on the judgment debtor or
judgment creditor;
(b) left at the usual or last known place of
residence or of business of the judgment
debtor or judgment creditor with a person
apparently over the age of sixteen years and
apparently residing there or, in the case of a
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place of business, apparently in charge of or
employed at that place; or
(c) sent by pre-paid post addressed to the
judgment debtor or the judgment creditor at
the address for service or the usual or last
known place of residence or of business of
the judgment debtor or judgment creditor, as
the case requires.
ORDER 62
SECURITY FOR COSTS
62.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"plaintiff" includes any person who makes a
claim in a proceeding;
"defendant" includes any person against whom a
claim is made in a proceeding.
* * * * *
62.02 When security for costs may be ordered
(1) Where—
(a) the plaintiff is ordinarily resident out of
Victoria;
(b) the plaintiff is a corporation or (not being a
plaintiff who sues in a representative
capacity) sues, not for his own benefit, but
for the benefit of some other person, and
there is reason to believe that the plaintiff has
insufficient assets in Victoria to pay the costs
of the defendant if ordered to do so;
(c) a proceeding by the plaintiff in another court
for the same claim is pending;
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(d) subject to paragraph (2), the address of the
plaintiff is not stated or is not stated correctly
in his originating process;
(e) the plaintiff has changed his address after the
commencement of the proceeding in order to
avoid the consequences of the proceeding;
(f) under any Act or the Corporations Law the
Court may require security for costs—
the Court may, on the application of a defendant,
order that the plaintiff give security for the costs
of the defendant of the proceeding and that the
proceeding as against that defendant be stayed
until the security is given.
(2) The Court shall not require a plaintiff to give
security by reason only of paragraph (1)(d) if in
failing to state his address or to state his correct
address the plaintiff acted innocently and without
intention to deceive.
62.03 Manner of giving security
Where an order is made requiring the plaintiff to
give security for costs, security shall be given in
the manner and at the time the Court directs.
62.04 Failure to give security
Where a plaintiff fails to give the security required
by an order, the Court may dismiss his claim.
62.05 Variation or setting aside
The Court may set aside or vary any order
requiring a plaintiff to give security for costs.
ORDER 63
* * * * *
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ORDER 63A
COSTS
PART 1—PRELIMINARY
63A.01 Definitions and application
(1) In this Order unless the context or subject matter
otherwise requires—
"bill" means bill of costs, account, or statement
of charges;
"costs" includes disbursements;
"order" includes judgment;
"party" includes—
(a) a person not a party to a proceeding by
or to whom costs in respect of the
proceeding are payable by or under any
Act or these Rules or any order of the
Court;
(b) in the case of a proceeding in another
court or before a tribunal or an
arbitration, a person whether or not a
party to that proceeding or arbitration
by or to whom costs in respect of the
proceeding or arbitration are payable
where by or under any Act or these
Rules or any order of the Court the
costs are to be taxed in the Court;
"taxed costs" means costs taxed in accordance
with this Order;
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"trustee" includes an executor of a will and an
administrator of the estate of a deceased
person.
(2) In this Order, unless the context or subject matter
otherwise requires—
(a) references to the Registrar include references
to another officer of the Court conducting a
taxation of costs under this Order;
(b) references to a fund, being a fund out of
which costs are to be paid, or being a fund
held by a trustee, include references to any
property held for the benefit of any person or
class of persons (including the assets of a
company in liquidation), or held on trust for
any purpose;
(c) references to a fund held by a trustee include
references to any property to which he is
entitled as trustee, whether alone or together
with any other person and whether the
property is for the time being in the
possession of the trustee or not.
(3) This Order applies to costs payable or to be taxed
under these Rules or under any order of the Court
and to costs to be taxed under any Act.
(4) This Order applies subject to the powers of the
Supreme Court and the Taxing Master of the
Supreme Court in relation to costs under
Division 1 and Division 2 of Part 6 of the
Supreme Court Act 1986.
63A.02 General powers of Court
The power and discretion of the Court as to costs
shall be exercised subject to and in accordance
with this Order.
63A.03 Time for costs order and payment
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(1) The Court may in any proceeding exercise its
power and discretion as to costs at any stage of the
proceeding or after the conclusion of the
proceeding.
(2) Costs which a party is required to pay under any of
these Rules or an order of the Court shall, unless
the Court otherwise orders, be paid forthwith.
(3) Where the Court makes an interlocutory order for
costs, the Court may then or thereafter order that if
the party liable to pay the costs fails to do so—
(a) if that party is the plaintiff, the proceeding
shall be stayed or dismissed;
(b) if that party is a defendant, his defence shall
be struck out.
(4) In paragraph (3)—
"plaintiff" includes any person who makes a
claim in a proceeding;
"defendant" includes any person against whom a
claim is made in a proceeding.
63A.04 Costs of question or part of proceeding
(1) The Court may make an order for costs in relation
to a particular question in or a particular part of a
proceeding.
(2) Where the Court makes an order under
paragraph (1), the Court shall by order fix the
proportion of the total costs of the proceeding
which is attributable to the particular question in
or the particular part of the proceeding.
63A.05 By whom costs to be taxed
Unless the Court otherwise orders, costs taxed in
accordance with this Order shall be taxed by the
Registrar.
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63A.06 Officers of Court to assist each other
The Registrars and other officers of the Court
shall assist each other in the taxation of costs
under these Rules, and, subject to Rule 63A.05,
any of them may tax or assist in the taxation of a
bill which has been referred by another of them
for taxation.
63A.07 Taxed or other costs provision
(1) Subject to this Order, where by or under these
Rules or any order of the Court costs are to be
paid to a party, that party shall be entitled to taxed
costs.
(2) Where the Court orders that costs be paid to a
party, the Court may then or thereafter order that
as to the whole or any part of the costs specified in
the order, instead of taxed costs, that party shall be
entitled to—
(a) a portion specified in the order of taxed
costs;
(b) taxed costs from or up to a stage of the
proceeding specified in the order;
(c) a gross sum specified in the order instead of
taxed costs;
(d) a sum in respect of costs to be determined in
such manner as the Court directs.
63A.08 Default judgment
Where judgment is entered for costs under Rule
21.03(2), unless the Court otherwise orders, the
costs shall not be taxed but shall be fixed by the
Registrar in accordance with the appropriate scale
in Appendix A.
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63A.09 Costs in other court or tribunal
Where proceedings in another court or before a
tribunal are remitted or transferred to or removed
into the Court or an appeal to the Court is brought
from another court or a tribunal, and the Court
makes an order as to the costs of proceedings in
that court or before that tribunal, the Court may—
(a) specify the amount of the costs to be
allowed;
(b) order that the costs be taxed in the Court in
accordance with this Order; or
(c) order that the amount of the costs be
determined in the court or tribunal in such
manner it directs.
63A.10 No order for taxation required
Where—
(a) the Court gives judgment, or makes an order,
for costs;
(b) a proceeding is dismissed with costs;
(c) an application in a proceeding is refused with
costs;
(d) a party is otherwise liable under these Rules
to pay the costs of another party;
(e) a party may tax costs under any of these
Rules;
(f) parties have agreed in writing that costs
payable by one party to another may be
taxed, and the agreement is filed—
the costs may be taxed without an order for
taxation.
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63A.11 Enforcement of order of taxing officer
(1) Where costs are taxed otherwise than under a
judgment or order for costs, an order of the
Registrar for payment of any amount found to be
due may be enforced in the same manner as a
judgment for the payment of money.
(2) Paragraph (1) applies to an interim order for
payment of any item in a bill of costs made under
Rule 63A.56.
63A.12 Costs in account
Where the Court orders that an account be taken
and the amount consists in part of costs, the Court
may, then or thereafter, direct that those costs be
fixed, or be taxed in accordance with this Order.
PART 2—ENTITLEMENT TO COSTS
63A.13 Order for payment
Subject to these Rules, a party to a proceeding
shall not be entitled to recover any costs of the
proceeding from any other party except by order
of the Court.
63A.14 Extension or abridgment of time
Where a party applies for an extension or
abridgment of any time fixed by these Rules or by
any order fixing, extending or abridging time, that
party shall, unless the Court otherwise orders, pay
the costs of and occasioned by the application.
63A.15 Discontinuance or withdrawal
Unless the Court otherwise orders, a party who
discontinues or withdraws part of a proceeding,
counterclaim or claim by third party notice shall
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pay the costs of the party to whom the
discontinuance or withdrawal relates to the time of
the discontinuance or withdrawal.
63A.16 Offer of compromise
Where an offer of compromise is served and the
offer has not been accepted at the time of verdict
or judgment, liability for costs shall be determined
in accordance with Rule 26.08.
63A.16.1 Failure to make discovery or answer interrogations
A party on whom a notice is served in accordance
with Rule 29.12.1 or 30.9.1 shall pay the costs of
the notice unless the Court otherwise orders.
63A.16.2 Proceeding or counterclaim dismissed
(1) A proceeding that is or stands dismissed by or
under an order of the Court or these Rules shall,
unless the Court otherwise orders, be taken to be a
proceeding that is dismissed with costs.
(2) Paragraph (1) shall, with any necessary
modification, apply to a counterclaim and to a
claim by third party notice as if the counterclaim
or third party claim were a proceeding.
63A.17 Amendment
(1) A party who amends a pleading without the leave
of the Court shall, unless the Court otherwise
orders, pay the costs of and occasioned by the
amendment.
(2) A party who amends a pleading or other document
by leave shall, unless the Court otherwise orders,
pay the costs of and occasioned by the
amendment.
63A.18 Non-admission of fact or document
Where a party serves a notice—
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(a) under Rule 35.03(2) disputing a fact, and
afterwards that fact is proved in the
proceeding;
(b) under Rule 35.05(2) disputing the
authenticity of a document, and afterwards
the authenticity of that document is proved in
the proceeding—
he shall pay the costs of proof, unless the Court
otherwise orders.
63A.19 Interlocutory injunction
Where the Court grants an interlocutory injunction
and afterwards grants a further interlocutory
injunction continuing the first injunction with or
without modification, an order as to the costs of
the further injunction shall, unless the Court
otherwise orders, include the costs of the first
injunction.
63A.20 Interlocutory application
Each party shall bear his own costs of an
interlocutory or other application in a proceeding,
whether made on or without notice, unless the
Court otherwise orders.
63A.21 Inquiry as to ownership of property
The costs of an inquiry to ascertain the person
entitled to any legacy, money, share or other
property shall be paid out of the property, unless
the Court otherwise orders.
63A.21.1 Costs in proceedings before Registrar
Where 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.
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63A.22 Costs reserved
(1) Where by order of the Court the costs of any
interlocutory or other application or of any step in
a proceeding are reserved, and the Court does not
thereafter direct by and to whom those costs are to
be paid, then, unless the Court otherwise orders,
the Registrar may by order so direct.
(2) Paragraph (1) shall 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.
63A.22.1 Evidence transcript costs
If any evidence in a proceeding is recorded and
transcribed in a manner authorised by Part VI of
the Evidence Act 1958, and the Court does not
direct by and to whom the costs of the recording
and transcribing are to be paid, then, unless the
Court otherwise orders, the Registrar may by order
so direct.
63A.23 Costs liability of lawyer
(1) Where a solicitor for a party, whether personally
or through a servant or agent, has caused costs to
be incurred improperly or without reasonable
cause or to be wasted by undue delay or
negligence or by any other misconduct or default,
the Court may make an order that—
(a) all or any of the costs between the solicitor
and the client be disallowed or that the
solicitor repay to the client the whole or part
of any money paid on account of costs;
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(b) the solicitor pay to his client all or any of the
costs which the client has been ordered to
pay to any party;
(c) the solicitor pay all or any of the costs
payable by any party other than the client.
(2) Without limiting paragraph (1), a solicitor is in
default for the purpose of that paragraph where
any application in or trial of a proceeding cannot
conveniently be heard or proceed, or fails or is
adjourned without any useful progress being
made, by reason of the failure of the solicitor to—
(a) attend in person or by a proper
representative;
(b) file any document which ought to have been
filed;
(c) lodge or deliver any document for the use of
the Court which ought to have been lodged
or delivered;
(d) be prepared with any proper evidence or
account; or
(e) otherwise proceed.
(3) The Court shall not make an order under
paragraph (1) without giving the solicitor a
reasonable opportunity to be heard.
(4) The Court may, before making an order under
paragraph (1), refer the matter to the Registrar for
inquiry and report.
(5) Order 50 shall, with any necessary modification,
apply to a reference to the Registrar for inquiry
and report made under paragraph (4).
(6) The Court may order that notice of any proceeding
or order against a solicitor under this Rule be
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given to the client in such manner as the Court
directs.
(7) This Rule shall, with any necessary modification,
apply to a barrister as it applies to a solicitor.
63A.24 Money claim in wrong court
(1) Where in a proceeding for debt or damages the
plaintiff recovers by judgment or otherwise an
amount (exclusive of costs) not exceeding one-
half of the amount of the jurisdictional limit of the
Magistrates' Court in a civil proceeding (at the
time the proceeding commenced) is limited, the
plaintiff shall, unless the Court otherwise orders,
be entitled only to the costs to which he would
have been entitled if he had brought the
proceeding in the Magistrates' Court less an
amount equal to the additional costs properly
incurred by the defendant by reason of the
proceeding having been brought in the County
Court instead of the Magistrates' Court, but shall
not be required to pay to the defendant any amount
by which the additional costs exceed the costs
payable to the plaintiff.
(2) For the purpose of paragraph (1) the amount
which a plaintiff recovers by judgment or
otherwise shall include any amount which under
section 66(1) of the Workers Compensation Act
1958 as amended by the Workers Compensation
(Actions) Act 1981 and in force for the time being
or pursuant to section 79(3) of the Workers
Compensation Act 1958 as in force immediately
before the commencement as the Workers
Compensation (Actions) Act 1981 is deducted
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from the amount for which the plaintiff would, but
for the deduction, be entitled to judgment.
(3) Paragraph (1) does not apply where a claim of the
defendant against the plaintiff for the recovery of a
debt or damages is set off against the claim of the
plaintiff under Rule 13.14 and the amount for
which the plaintiff would, but for the set-off and
any deduction of the kind referred to in
paragraph (2), be entitled to judgment exceeds
one-half of the amount of the jurisdictional limit
of the Magistrates' Court in a civil proceeding.
63A.25 Other claim in wrong court
Rule 63A.24 shall, with any necessary
modification, apply where the plaintiff recovers
judgment other than for a debt or damages and any
amount in dispute in the proceeding or the value
of any property to which the judgment relates does
not exceed one-half of the amount or value to
which the jurisdiction of a Magistrates' Court is
limited.
63A.26 Trustee or mortgagee
A party who sues or is sued as trustee or
mortgagee shall, unless the Court otherwise
orders, be entitled to the costs of the proceeding
out of the fund held by the trustee or out of the
mortgaged property in so far as the costs are not
paid by any other person.
PART 3—COSTS OF PARTY IN A PROCEEDING
63A.27 Application
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This Part applies to costs in a proceeding which by
or under any Act or these Rules or any order of the
Court are to be paid to a party to the proceeding
either by another party or out of a fund.
63A.28 Bases of taxation
Subject to this Part, costs in a proceeding which
are to be taxed shall be taxed on—
(a) a party and party basis;
(b) a solicitor and client basis; or
(c) such other basis as the Court may direct.
63A.29 Party and party basis
On a taxation 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 taxed shall be allowed.
63A.30 Solicitor and client basis
On a taxation on a solicitor and client basis all
costs reasonably incurred and of reasonable
amount shall be allowed.
63A.31 General basis
Except as provided by these Rules or any order of
the Court costs shall be taxed on a party and party
basis.
63A.32 Where solicitor and client basis applicable
(1) The Court may order that costs be taxed on a
solicitor and client basis.
(2) Without limiting paragraph (1), the Court may
order that costs be taxed on a solicitor and client
basis where the Court makes an order for—
(a) the payment to a party of costs out of a fund;
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(b) the payment of costs to a party who sues or is
sued as trustee.
63A.33 Party as trustee
Where a party who sues or is sued as trustee is
entitled to be paid costs out of any fund which he
holds in that capacity, the costs shall, unless the
Court otherwise orders, be taxed on a solicitor and
client basis.
63A.34 * * * * *
63A.34A Costs and fees
(1) (a) Subject to the provisions of these Rules, all
costs taxed by the Registrar shall be taxed as
follows—
(i) as to all business done on or after the
commencement of these Rules,
according to the Scale of Costs
contained in Appendix A;
(ii) as to all business done before the
commencement of these Rules,
according to the Scale of Costs in use in
the Court at the time the costs were
incurred.
(b) Subject to the provisions of any Act for the
time being in force in actions which have
been remitted or transferred to the County
Court from some other Court, the costs
incurred in such other Court before such
remission or transfer shall be taxed according
to the scale of costs and fees in use in such
other Court at the time such costs were
incurred, unless the Court or Judge otherwise
orders.
(2) In the taxation of costs, the appropriate scale of
costs to apply shall be determined as follows—
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(a) as between party and party, the amount
recovered or the value of the property in
litigation shall regulate the scale of the
plaintiff's costs, and the amount sought to be
recovered or the value of the property in
litigation the scale of the defendant's costs;
and as between solicitor and client unless the
Court otherwise orders the amount sued for,
or the value of the property in litigation, shall
regulate the scale without reference to the
result;
(b) in actions of ejectment when the rent or
annual value does not exceed $200 the
Scale "B" shall be applicable, and when the
rent or annual value exceeds $200 but does
not exceed $1000 the Scale "C" shall be
applicable, and when the rent or annual value
exceeds $1000 the Scale "D" shall be
applicable;
(c) in an action for an injunction coupled with a
claim for damages or without such claim or
in an action or matter within the equitable
jurisdiction of the Court or in an arbitration
proceeding under sections 46 or 47 of the
Act, the Court, may, notwithstanding the
provisions contained herein, either at the
hearing or within a reasonable time thereafter
at its discretion fix the scale of costs which
shall be applicable;
(d) where a counter-claim is raised the scale
upon which the costs of the parties are to be
taxed shall be determined as follows—
(i) if the plaintiff is successful on both
claim and counter-claim, by the amount
which he recovers on his claim, unless
the amount of the defendant's claim is
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the larger, in which case the costs
incurred subsequently to the delivery of
the counter-claim shall be determined
by the amount of such counter-claim;
(ii) if the defendant is successful on both
claim and counter-claim by the amount
which he recovers on his counter-claim,
or the amount of the plaintiff's claim,
whichever may be the larger;
(iii) if both parties are successful, by the
amounts which they recover on their
respective claims; and if both claims
fail, by the amount claimed by the
opposite party;
(e) in any action or matter for which no
provision has been specifically made, the
Court may direct any scale of costs which it
or he may specify to be applied;
(f) notwithstanding anything contained in these
Rules, if in any action or matter the Court
considers that the provisions of paragraphs
(a), (b) and (d) hereof are inappropriate or
unjust the Court may either at the hearing or
within a reasonable time thereafter fix the
scale of costs which shall be applicable.
(3) For the purposes of paragraph (2)(a) the amount
recovered shall be—
(a) the amount of the judgment or order in the
plaintiff's favour including any amount for
interest or damages in the nature of interest;
and
(b) any interest or damages in respect of the
judgment amount awarded by the Court
order any Act; and
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(c) any amount which has been deducted
pursuant to the Workers Compensation Act
1958 as amended by the Workers
Compensation (Actions) Act 1981 and in
force for the time being or pursuant to
section 79(3) of the Workers
Compensation Act 1958 as in force
immediately before the commencement of
the Workers Compensation (Actions) Act
1981—
but does not include any amount recovered by or
awarded to the plaintiff for interest or damages in
the nature of interest relating to the period after
the day the payment into Court was made or the
offer of compromise was served.
PART 4—COSTS OF TAXATION
63A.35 * * * * *
63A.36 Costs of taxation
(1) Costs to be taxed under these Rules shall include
the costs of the taxation.
(2) Costs to be taxed under a judgment or order shall,
unless the judgment or order otherwise provides,
include the costs of the taxation.
(3) After service of a summons under Rule 63A.38 for
the taxation 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 taxed, and Order 26 shall, with
any necessary modification, apply as if in Rule
26.03(3) and (4) "seven days" were substituted for
"14 days" and as if the order of the Registrar on
the taxation were a verdict or judgment at trial.
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(4) Subject to this Rule and to any order of the Court,
the Registrar may make orders for the costs of a
taxation.
(5) Paragraphs (1) to (4) apply subject to any Act and
to Rule 63A.85.
PART 5—PROCEDURE ON PARTY AND PARTY TAXATION
63A.37 Application
(1) This Part applies to—
(a) the costs of any proceeding in the Court,
including—
(i) * * * * *
(ii) in the case of an appeal to the Court
from another court or from a tribunal,
the costs of proceedings in that court or
before that tribunal;
(iii) in the case of a proceeding in another
court or before a tribunal which is
remitted or transferred to or removed
into the Court, the costs of the whole
proceeding, both before and after the
remission, transfer or removal, which
by or under these Rules or an order of
the Court are to be paid to any party by
another party or out of a fund;
(b) the costs of an arbitration which by or under
any Act are to be taxed in the Court.
(2) Subject to Part 6, this Part applies to the taxation
of costs payable to a solicitor by his client.
63A.38 Summons for taxation
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(1) An application to the Registrar for costs to be
taxed shall be made by summons filed in the
office of the Registrar.
(2) Where the taxation is made pursuant to an order or
judgment, a copy of the order or judgment shall be
lodged with the Registrar when the summons is
filed.
(3) The summons shall be in Form 63AA.
(4) Unless the Registrar otherwise directs, the
summons shall be served not less than 21 days
before the day for hearing named in the summons.
(5) Except as provided in paragraphs (1) to (4),
Order 46 shall, with any necessary modification,
apply to the application.
63A.39 Filing of bill
(1) A party who applies for costs to be taxed shall file
a bill in respect of the costs with the Registrar at
the time the summons under Rule 63A.38 is filed.
(2) The bill of costs shall be prepared in accordance
with Rule 63A.42.
(3) The Registrar may direct the party to lodge before
the day for hearing named in the summons any
documents in his possession, custody or power
that will be required for the purpose of evidence
on the taxation.
63A.40 Service of bill
The Registrar shall not tax costs unless the party
entitled to costs serves a copy of the bill of costs
on the party liable for the costs before or at the
time of service of the summons under
Rule 63A.38.
63A.41 Defendant not appearing
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Service of a summons and copy bill of costs on a
defendant who has not filed an appearance shall
not be necessary.
63A.42 Content of bill of costs
(1) In a bill of costs for taxation under this Order
charges and disbursements shall be set out in
separate columns, and the amounts in each column
shall be totalled at the foot of each page and the
total carried forward to the top of the next page.
(2) The bill shall 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 63A.48, of work done justifying an
allowance under Appendix A of the amount
claimed beside that item.
(3) For the purpose of paragraph (2)(a) work done in
Victoria by a servant or agent of the solicitor shall
be taken to have been done by the solicitor.
(4) Where 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 shall be stated in
the bill.
63A.43 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.
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(2) On the taxation the disbursement may be allowed
if it is paid before the taxation of that
disbursement takes place.
63A.44 Charge of lawyer out of Victoria
Where a bill includes a charge for work done by a
lawyer practising in a place out of Victoria—
(a) the charge shall be shown as a disbursement;
and
(b) so far as practicable, the charge shall, if
allowed, be allowed in an amount
appropriate to the place where the lawyer
practises.
63A.45 Amendment of bill
The Court 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.
63A.46 Agreement as to part of bill
Where the parties agree in writing that part of the
costs to be taxed may be allowed at a specified
amount and the agreement is subscribed to the bill
or filed—
(a) Rule 63A.42 shall not apply to what is
agreed unless the Registrar otherwise directs;
(b) Rules 63A.44 and 63A.45 shall apply to the
agreement as they apply to a bill.
63A.47 Objection to bill
(1) A party on whom a summons under Rule 63A.38
and a bill is served may by notice object to any
item in the bill.
(2) The notice shall state by a list each item in the bill
to which the party objects, and shall also state
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specifically and concisely the grounds of objection
to each item.
(3) The notice shall be filed with the Registrar and
served on the party filing the bill and on any other
party to whom the summons for the taxation is
addressed not less than 7 days before the day for
hearing named in the summons.
63A.48 Discretionary costs
(1) Except where these Rules or any order of the
Court otherwise provides, the fees and allowances
which are discretionary that are referred to in
Appendix A shall be allowed at the discretion of
the Registrar.
(2) In exercising the discretion under paragraph (1)
the Registrar shall 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;
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(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.
63A.49 Taxation where no objection
Where no objection to a bill is made in accordance
with Rule 63A.47 the Registrar may allow or
disallow the amount of the costs in the bill in
whole or in part.
63A.50 Attendance of parties
(1) The Registrar may give directions with respect
to—
(a) the parties to whom a summons under
Rule 63A.38 shall be addressed;
(b) the parties who should attend or be
represented on any taxation.
(2) The Registrar may disallow the costs of
attendance on a taxation of any party whose
attendance is unnecessary.
(3) Notwithstanding paragraphs (1) and (2), any party
interested may attend a taxation before the
Registrar.
63A.51 Reference to Judge
The Registrar may refer to a Judge for directions
any question arising on a taxation.
63A.52 Notice to person interested in fund
(1) Where costs are payable out of a fund, the
Registrar may—
(a) adjourn the taxation to a specified day; and
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(b) order that the party to whom the costs are
payable serve on any person interested in the
fund, without charge to that person, a copy of
the whole or any part of the bill and a notice
in accordance with paragraph (2).
(2) A notice under paragraph (1)(b) shall state—
(a) that the costs are payable out of the fund,
identifying it, and that the bill is being taxed;
(b) the day to which the taxation is adjourned;
and
(c) such other information as the Registrar may
direct.
(3) Unless the Registrar otherwise orders, service
under paragraph (1)(b) shall be personal.
63A.53 Application by person liable to pay
(1) Where a party who is entitled to be paid costs and
to have the costs taxed under this Part does not
apply to have the costs taxed within 30 days after
service on him 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 a summons
under Rule 63A.38 and may fix a time for
compliance.
(2) Where a party in respect of whom an order is
made under paragraph (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 him to pay the costs of any other party.
63A.54 Solicitor at fault
(1) This Rule applies where—
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(a) a party fails to apply to have costs taxed
within a time fixed under Rule 63A.53(1)
and the failure is occasioned by the neglect
or delay of his solicitor; or
(b) in any proceedings before the Registrar the
solicitor for any party—
(i) is guilty of neglect or delay; or
(ii) causes any other party unnecessary
expense.
(2) The Registrar may—
(a) order the solicitor to pay costs to any party in
respect of the proceedings before the
Registrar;
(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.
63A.55 Cross costs
(1) Where a party entitled to be paid costs is also
liable to pay costs, the Registrar may—
(a) tax the costs which that party is liable to pay
and set off the amount allowed against the
amount he 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 he
is liable to pay.
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(2) Costs may be set off under paragraph (1)(a)
notwithstanding that a solicitor for a party has a
lien for costs in the proceeding.
63A.56 Order on taxation
(1) Where the Registrar taxes a bill or otherwise fixes
or assesses an amount for costs, the result shall be
stated in the form of an order.
(2) The Registrar may, after the conclusion of the
taxation of any bill, make a final order with
respect to the amount at which he allows the costs
or of his disallowance of the costs.
(3) In the course of the taxation the Registrar may
make separate and interim orders in respect of any
item in a bill.
(4) * * * * *
(5) 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.
(6) In paragraphs (4) and (5) "order" means final or
interim order, as the case requires.
63A.57 Review by Judge
(1) Where 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 paragraph (1) shall be made
by notice.
(3) The application shall be made to a Judge.
(4) The notice shall state by a list each item in the bill
in respect of which the party objects to the order
r. 63A.57
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of the Registrar, and shall also state specifically
and concisely the grounds of objection to that
order and the order sought in its place.
(5) The notice shall be filed with a copy for the
Registrar and a copy served on each party
interested within 14 days after the order of the
Registrar.
(6) The Registrar shall, upon request by the party
giving or any party served with the notice, give
written reasons for the decision in respect of each
item in the bill to which objection is taken.
(7) A request under paragraph (6) shall be in writing,
and shall be made—
(a) in the case of the party giving the notice,
within 14 days after the notice is filed;
(b) in the case of a party served with notice,
within 14 days after service.
(8) On the review, unless the Court otherwise
orders—
(a) further evidence shall not be received;
(b) the party giving notice shall not raise any
ground of objection not stated in the notice.
(9) 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.
(10) Except so far as a Judge or the Registrar otherwise
orders a review under this Rule shall not operate
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as a stay of execution or of proceedings under the
order of the Registrar to which the review relates.
PART 6—COSTS OF SOLICITOR
63A.58 Application
This Part applies—
(a) where costs are payable to a solicitor by his
client in respect of a proceeding in the Court,
and by or under any Act or these Rules or
any order of the Court or any agreement
between the solicitor and the client the costs
are required or permitted to be taxed in the
Court;
(b) where any person not the client of a solicitor
is liable to pay or, having been so liable, has
paid costs which are or were chargeable by
the solicitor to the client, in respect of a
proceeding in the Court, and by or under any
Act or these Rules or any order of the Court
or any agreement between that person and
the client the costs are required or permitted
to be taxed in the Court.
63A.59 Basis of taxation of costs payable by client
(1) Costs payable to a solicitor by his client to which
this Part applies shall, subject to any Act or any
order of the Court or any agreement between the
solicitor and the client, be taxed on a solicitor and
client basis.
(2) The solicitor and client basis of taxation shall be
as provided by Rule 63A.61.
63A.60 Basis of taxation of costs payable otherwise than by
client
Costs payable to a solicitor by a person other than
the client to which this Part applies shall, subject
r. 63A.58 r. 63A.59
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to any Act or any order of the Court or any
agreement between that person and the client, be
taxed on a party and party basis in accordance
with Rule 63A.29.
63A.61 Solicitor and client basis
(1) On a taxation of the costs payable to a solicitor by
his client all costs reasonably incurred and of
reasonable amount shall be allowed.
(2) Costs not reasonably incurred or not of reasonable
amount may nevertheless be allowed if—
(a) the costs were incurred with the authority of
or the amount was authorised by the client;
and
(b) before the costs were incurred the solicitor
expressly warned the client that the costs
might not be allowed on a taxation of costs
on a party and party basis.
(3) Where the client is a person under disability,
references to the client in paragraph (2) include
references to the litigation guardian of the client.
63A.62 * * * * *
63A.63 Procedure on taxation
(1) Subject to the following Rules and to any Act or
order of the Court, costs under this Part shall be
taxed as provided by Part 5, and Part 5 shall, with
any necessary modification, apply to the taxation
accordingly.
(2) References in paragraph (1) to the application of
Part 5 of this Order to the taxation of costs under
this Part include references to a review of an order
of the Registrar on the taxation under Rule
63A.57.
63A.64 Appointment to tax
r. 63A.63
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(1) This Rule applies where by any Act a bill in
respect of costs to which this Part applies may be
taxed by the Registrar on an appointment obtained
as of course and without an order of the Court on
application by the client or other person liable to
pay the costs.
(2) Application to the Registrar to tax the bill shall be
made by summons in accordance with
Rule 63A.38.
63A.65 Reference for taxation
(1) This Rule applies where the Court by order,
whether or not made by or under any Act, refers a
bill of costs to the Registrar for taxation or directs
that a bill of costs be taxed.
(2) The taxation shall be brought before the Registrar
on application by summons in accordance with
Rule 63A.38.
(3) Unless the Court otherwise orders, the summons
shall be filed within 14 days after the day the order
is made.
63A.66 Inclusion in bill of disbursement not made
Where the solicitor acts as agent for a lawyer
practising in a place out of Victoria, the
professional fees of that lawyer shall not constitute
a disbursement of the solicitor for the purpose of
Rule 63A.43 so as to require payment of those
fees before the commencement of the taxation.
63A.67 Failure to serve bill or tax
(1) Where a solicitor who is entitled to be paid costs
fails or refuses to serve a bill for the costs on the
client, the Registrar may—
r. 63A.65
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(a) disallow the costs of the solicitor or allow a
nominal or other sum for costs;
(b) order him to pay any costs of the client
occasioned by the failure or refusal.
(2) Where a person who is entitled to have a bill of
costs taxed fails or refuses to do so, and any
person interested in the taxation is prejudiced
thereby, the Registrar may—
(a) disallow any costs which might otherwise be
payable to the person entitled to have the bill
taxed or allow a nominal or other sum for
costs;
(b) order him to pay any costs of the person
interested occasioned by the failure or
refusal.
(3) For the purpose of the Rule—
(a) a solicitor shall be taken to have failed or
refused to serve a bill of costs if within
60 days after service on him of a request in
writing by the client that he serve a bill he
does not do so;
(b) a person shall be taken to have failed or
refused to have a bill of costs taxed if within
60 days after service on him of a request in
writing by any person interested that the bill
be taxed he does not apply in accordance
with Rule 63A.38 for the taxation of the bill.
PART 7—ALLOWANCES ON TAXATION GENERALLY
63A.68 Application and interpretation
This Part applies to any taxation of costs in the
Court.
63A.69 Necessary or proper costs
r. 63A.68
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All costs shall be allowed as are necessary or
proper for the attainment of justice or for
enforcing or defending the rights of any party.
63A.70 Unnecessary etc. work
(1) The Court by order or the Registrar on a taxation
may disallow the costs of any work which is not
necessary or is done without due care.
(2) Where a document is of unnecessary length, for
the purpose of paragraph (1) work which is not
necessary shall include work for that part of the
document which is not necessary.
(3) A party whose costs for work is disallowed under
paragraph (1) shall, unless the Court or the
Registrar otherwise orders, pay costs for any work
by another party occasioned by the work for which
the costs were disallowed.
63A.71 Gross sum for costs
(1) Where costs are incurred improperly or without
reasonable cause or are wasted by undue delay or
negligence or by any other misconduct or default
or where from any other cause the amount of costs
is excessive, only costs which were reasonable and
proper shall be allowed, and the Registrar may
assess those costs at a gross sum.
(2) The Registrar may apportion costs assessed under
paragraph (1) among different parties.
63A.72 Increased allowance
The Registrar may increase the amount of value of
any allowance or expense in Appendix A as he
thinks fit.
63A.73 Copy documents
The fees allowed in Appendix A for drawing any
document shall include not more than three copies
r. 63A.71
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of the document made for the use of the party, his
solicitor or the agent of the solicitor, or for
counsel to settle.
63A.74 Folio
For the purpose of calculating the allowance for a
document according to the length of the document
measured by folio, a folio shall comprise
100 words, and any number however set out shall
count as one word.
63A.75 Service of several documents
Two or more documents in the same proceeding
which can be served together shall be so served,
and a fee for the service of one only shall be
allowed.
63A.76 Defendants with same solicitor
Where two or more defendants are represented by
the same solicitor, and the solicitor does work for
one or some of them separately which could have
been done for some or all of them together, on
taxation of the solicitor's bill of costs, whether
between party and party or between solicitor and
client, the Registrar may disallow costs for the
unnecessary work.
63A.77 Procuring evidence
(1) Reasonable charges and expenses properly
incurred in procuring evidence, and the attendance
of witnesses, shall be allowed.
(2) For the purpose of paragraph (1) the attendance of
a witness includes attendance at a conference with
counsel before trial, and in the case of an expert
witness, includes qualifying to give evidence as an
expert.
63A.78 Negotiations
r. 63A.75
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Costs reasonably and properly incurred with
respect to negotiations for compromise shall be
allowed whether or not the negotiations were
successful.
63A.79 Conference
A fee for a conference shall not be allowed in
addition to the fee of a solicitor or counsel for
drawing and settling, or perusing, or advising on
any document, unless for special reason the
conference was necessary or proper.
63A.80 Retainer of counsel
A retaining fee to counsel shall not be allowed on
taxation as between party and party.
63A.81 Advice and other work of counsel
(1) Costs reasonably and properly incurred with
respect to—
(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—
shall be allowed.
(2) Where 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 shall be allowed.
63A.82 Refreshers
(1) Notwithstanding anything to the contrary in
Appendix A, the fees payable to counsel to appear
r. 63A.80
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at a hearing or trial shall be at the discretion of a
Judge who may fix such fees—
(a) on the basis of daily fees;
(b) on the basis of a brief fee and refreshers;
(c) as a lump sum fee covering the whole of the
hearing or trial; or
(d) on such other basis as the Judge considers
appropriate.
(2) Where such fees are fixed on the basis of daily
fees—
(a) the daily fee for the second or any
subsequent day of the hearing or trial, shall,
unless the Judge determines otherwise by
reason of the special circumstances of the
case, include all time spent by counsel in
preparation and conferences on that day of
the hearing or trial as well as the actual time
spent by counsel in Court on the hearing or
trial on that day; and
(b) the Judge may allow differing amounts in
respect of various days of the hearing or trial.
(3) Where such fees are fixed on the basis of a brief
fee and refreshers and where a hearing or trial
occupies either on the first day or partly on the
first day and partly on a subsequent day or days
more than six working hours (including any
luncheon adjournment) without being
concluded—
(a) the Judge may allow a refresher fee for every
five working hours (including any luncheon
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adjournment) subsequent to the expiration of
the first six hours; and
(b) the final refresher may be allowed for any
period less than five hours that the hearing or
trial may occupy.
63A.83 Premature brief
Costs with respect to the preparation and delivery
of a brief to counsel for a hearing or trial which
did not take place shall not be allowed if the costs
were incurred prematurely.
63A.84 Barrister and solicitor
(1) This Rule applies where 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 his partner
shall 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
trial.
63A.85 Bill reduced by a sixth
(1) This Rule applies to the taxation of a bill of costs
payable out of a fund.
(2) If the amount of the professional charges and
disbursements in the bill is reduced by a sixth part,
unless the Registrar otherwise orders, no costs
shall be allowed to the solicitor filing the bill for
taxation for preparing the bill and for attending the
taxation.
PART 8
63A.86 * * * * *
ORDER 64
r. 63A.83 r. 63A.85
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* * * * *
ORDER 64A
APPEALS TO THE COURT OF APPEAL OF THE
SUPREME COURT
64A.01 Definitions
In this Order—
"Judge" means the Judge from whose decision or
order an appeal is made;
"the Supreme Court Rules" means Chapter I of
the Rules of the Supreme Court.
64A.02 Application
Order 64 of the Supreme Court Rules and this
Order apply to appeals from a Judge of the County
Court under section 74 of the Act.
64A.03 Notice of Appeal
(1) A notice of Appeal under section 74 of the Act
shall be in Form 64AA.
(2) Within the time fixed by or under Order 64 of the
Supreme Court Rules for the filing of the notice of
appeal the appellant shall, in addition to
complying with Order 64, deliver a copy of the
notice to the Judge.
64A.04 Statements of evidence etc. to be submitted to trial
judge
Any rulings, charge to the jury or reasons for
judgment proposed to be included in the appeal
book shall be submitted to the Judge for revision
and shall be initialled by him as revised before
inclusion in the appeal book.
r. 64A.02
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64A.05 Judge's notes
Any party to an appeal may, by leave of the Judge
on application in Form 64AB, obtain a copy of the
Judge's notes taken at the hearing.
* * * * *
ORDER 65
* * * * *
ORDER 66
ENFORCEMENT OF JUDGMENTS AND ORDERS
66.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"judgment" includes order;
"judgment for the payment of money into
court" includes a judgment for the payment
of money to the Registrar;
"person bound" means a person against whom a
judgment is entered or given or an order is
made.
66.02 Payment of money
(1) A judgment for the payment of money not within
paragraph (2) may be enforced by one or more of
the following means—
(a) warrant of seizure and sale;
r. 66.01
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(b) attachment of debts under Order 71;
(c) attachment of earnings under Order 72;
(d) charging order under Order 73;
(e) appointment of a receiver under Order 74;
and
(f) where Rule 66.05 applies, and subject to
Rule 66.10—
(i) committal; and
(ii) sequestration.
(2) A judgment for the payment of money into court
may be enforced by one or more of the following
means—
(a) appointment of a receiver; and
(b) where Rule 66.05 applies, and subject to
Rule 66.10—
(i) committal; and
(ii) sequestration.
(3) Paragraphs (1) and (2) do not affect any other
means of enforcement of a judgment for the
payment of money.
(4) The Court may authorise or direct the Registrar or
a party to enforce a judgment for the payment of
money into court by one or more of the means
referred to in paragraph (1).
66.03 Possession of land
A judgment for possession of land may be
enforced by one or more of the following means—
(a) warrant of possession; and
(b) where Rule 66.05 applies, and subject to
Rule 66.10—
r. 66.03
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(i) committal; and
(ii) sequestration.
66.04 Delivery of goods
(1) A judgment for the delivery of goods and a
judgment for the delivery of goods or the payment
of their assessed value may be enforced by one or
more of the following means—
(a) warrant of delivery; and
(b) where Rule 66.05 applies, and subject to
Rule 66.10—
(i) committal; and
(ii) sequestration.
(2) The warrant of delivery shall, as the judgment
requires, be for—
(a) the delivery of the goods; or
(b) the delivery of the goods or recovery of their
assessed value.
(3) A warrant of delivery may include provision for
enforcing the payment of money required to be
paid by the judgment and money recoverable
under section 107(1) of the Service and Execution
of Process Act 1992 of the Commonwealth.
(4) A judgment for the payment of the assessed value
of goods may be enforced by the same means as
any other judgment for the payment of money
except a judgment for the payment of money into
court.
66.05 Doing or abstaining from doing any act
(1) This Rule applies where—
(a) a judgment requires a person to do an act and
the act is to be done within a time fixed in
the judgment or by subsequent order, and he
r. 66.05
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refuses or neglects to do the act within that
time;
(b) a judgment requires a person to abstain from
doing an act, and he disobeys the judgment.
(2) Where this Rule applies, a judgment may, subject
to Rule 66.10, be enforced by one or more of the
following means—
(a) committal of the person bound;
(b) sequestration of the property of the person
bound; and
(c) where the person bound is a corporation,
without limiting paragraph (2)(b)—
(i) committal of any officer of the
corporation; and
(ii) sequestration of the property of any
officer of the corporation.
(3) Paragraph (2) has effect subject to the
Imprisonment of Fraudulent Debtors Act 1958.
66.06 Attendance of natural person
(1) This Rule applies where the Court by subpoena or
otherwise makes an order in any proceeding for
the attendance of a natural person—
(a) for the purpose of giving evidence;
(b) for the production of any document or thing;
(c) to answer a charge of contempt; or
(d) for any other purpose—
and after service of the order the person defaults in
attendance in accordance with the order.
(2) In the circumstances referred to in paragraph (1)
the Court may—
r. 66.06
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(a) make an order for the issue of a warrant to
such person as the Court may appoint for the
arrest of the person in default and for his
production before the Court or before an
examiner or other person for the purpose of
the proceeding and for his detention in
custody in the meantime; and
(b) order the person in default to pay any costs
and expenses occasioned by the default.
66.07 Attendance of corporation
(1) This Rule applies where the Court by subpoena or
otherwise makes an order in any proceeding for
the production by a corporation of any document
or thing and after service of the order the
corporation defaults in producing the document or
thing in accordance with the order.
(2) In the circumstances referred to in paragraph (1)
the Court may—
(a) make an order for the issue of a warrant to
such person as the Court may appoint for the
arrest of any officer of the corporation and
for his production before the Court or before
an examiner or other person for the purpose
of the proceeding and for his detention in
custody in the meantime; and
(b) order the corporation to pay any costs and
expenses occasioned by the default.
66.08 Attendance before another court etc.
Rules 66.06 and 66.07 shall, with any necessary
modification, apply where by or under any Act the
Court has authority to compel by subpoena the
attendance of a person for the purpose of giving
evidence or producing any document or thing for
evidence in any court or before any person having
r. 66.08
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by law or by consent of parties authority to hear,
receive and examine evidence.
66.09 Contempt
Nothing in Rules 66.06 and 66.07 shall affect the
power of the Court to punish for contempt.
66.10 Service before committal or sequestration
(1) A judgment shall not be enforced by committal or
sequestration unless—
(a) a copy of the judgment is served personally
on the person bound; and
(b) if the judgment requires the person bound to
do an act within a fixed time, the copy of the
judgment is so served a reasonable time
before that time expires.
(2) Where the person bound is a corporation, the
judgment shall not be enforced by committal of an
officer of the corporation or by sequestration of
the property of an officer of the corporation
unless, in addition to service under paragraph (1)
on the corporation—
(a) a copy of the judgment is served personally
on the officer; and
(b) if the judgment requires the corporation to do
an act within a fixed time, the copy of the
judgment is so served a reasonable time
before that time expires.
(3) A copy of a judgment served under this Rule shall
be indorsed with a notice, naming the person
served, that the person served is liable to
imprisonment or to sequestration of property if—
(a) where the judgment requires the person
bound to do an act within a fixed time, the
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person bound refuses or neglects to do the
act within that time; or
(b) where the judgment requires the person
bound to abstain from doing an act, the
person disobeys the judgment.
(4) Where a judgment requires the person bound to do
an act and an order is made under Rule 59.03
fixing a time within which the act is to be done, a
copy of the judgment, indorsed as required by
paragraph (3)(a), and a copy of the order shall be
served on that person a reasonable time before the
expiry of that time.
(5) A judgment requiring a person to do an act within
a fixed time or a judgment requiring a person to
abstain from doing an act may be enforced under
Rule 66.05 notwithstanding that service has not
been effected under this Rule if the person against
whom the judgment is to be enforced has notice of
the judgment—
(a) by being present when the judgment was
given; or
(b) by being notified of the terms of the
judgment whether by telephone, telegram or
otherwise.
(6) The Court may dispense with service under this
Rule.
66.11 Substituted performance
(1) Where a judgment requires the person bound to do
an act and the person bound does not do the act,
the Court may—
(a) direct that the act be done by a person
appointed by the Court; and
(b) order the person bound to pay any costs and
expenses occasioned by the default.
r. 66.10 r. 66.11
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(2) Paragraph (1) does not affect—
(a) the power of the Court under section 22 of
the Act or section 60 of the Trustee Act
1958;
(b) the power of the Court to punish for
contempt.
66.12 Enforcement by or against non-party
(1) A person not being a party who obtains a
judgment or in whose favour a judgment is made
may enforce the judgment by the same means as if
he were a party.
(2) Where obedience to a judgment may be enforced
against a person not a party, the judgment may be
enforced against him by the same means as if he
were a party.
(3) Where obedience to a judgment may be enforced
against a corporation not a party, an officer of the
corporation shall be liable to the same processes
of enforcement as if the corporation were a party.
66.13 Non-performance of condition
A person entitled to a judgment subject to the
fulfilment of a condition who fails to fulfil the
condition shall be taken to have abandoned the
benefit of the judgment, and, unless the Court
otherwise orders, any other person interested may
take any steps which are warranted by the
judgment or which might have been taken if the
judgment or order had not been given or made.
66.14 Matters occurring after judgment
The Court may stay execution of a judgment, or
make such order as the nature of the case requires,
on the ground of matters occurring after judgment.
66.15 Order in aid of enforcement
r. 66.13
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(1) The Court may make such order as it thinks fit in
aid of the enforcement of a warrant of execution
and for that purpose may make an order that any
person, whether or not a party—
(a) attend before the Court to be examined;
(b) do or abstain from doing any act.
(2) An application for an order under paragraph (1)
may be made by the Sheriff or other person to
whom a warrant of execution is directed.
66.16 Stay of execution
The Court may stay execution of a judgment.
ORDER 67
DISCOVERY IN AID OF ENFORCEMENT
67.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"judgment" includes order;
"the material questions" are—
(i) whether any and, if so, what debts are
owing to the person bound;
(ii) whether the person bound has any and,
if so, what other property or means of
satisfying the judgment; and
(iii) any questions concerning or in aid of
the enforcement or satisfaction of the
judgment specified in the order for
examination or production.
67.02 Order for examination or production
r. 67.01
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(1) The Court or Registrar may, on application by a
person entitled to enforce a judgment, order a
person bound by the judgment to—
(a) attend before the Court or Registrar and be
orally examined on the material questions;
and
(b) produce any document or thing in the
possession, custody or power of the person
bound relating to the material questions.
(2) Where the Court makes an order under paragraph
(1), it may order that the person attend to be
examined before or produce the document or thing
to a Master or Registrar.
67.03 Corporation
Where the person bound is a corporation, the
Court or Registrar may make an order that—
(a) an officer or a former officer of the
corporation attend before the Court or
Registrar and be orally examined on the
material questions; and
(b) an officer of the corporation produce any
document or thing in the possession, custody
or power of the corporation relating to the
material questions.
67.04 Procedure
(1) An application for an order under Rule 67.02 or
67.03 may be made without notice to the person
bound by the judgment.
(2) An order under Rule 67.02 or 67.03 shall be
served personally on the person bound and on any
other person ordered to attend or to produce any
document or thing.
r. 67.03
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67.05 Conduct money
Rule 42.05 applies in relation to the service of an
order under Rule 67.02 or 67.03 as it does in
relation to the service of a subpoena.
67.06 Record of examination
The Judge, Master or Registrar before whom an
examination is conducted under Rule 67.02 or
67.03 shall take down, or cause to be taken down,
in writing the statement made by the person
examined at the examination.
ORDER 68
WARRANTS OF EXECUTION GENERALLY
68.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"judgment" includes order;
"Sheriff" includes a person to whom a warrant of
execution is directed;
"warrant of execution" means a warrant of
seizure and sale, a warrant of possession and
a warrant of delivery.
68.02 Leave to issue warrant
(1) Notwithstanding Order 66, a warrant of execution
to enforce a judgment shall not be issued without
the leave of the Court in the following cases—
r. 68.01
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(a) where six years have elapsed since the
judgment took effect;
(b) where any change has taken place, whether
by assignment or death or otherwise, in the
identity of the persons entitled or liable to
execution under the judgment;
(c) where the judgment is against the assets of a
deceased person coming to the hands of his
executor or administrator after the date of the
judgment, and it is sought to issue execution
against assets of that description;
(d) where under the judgment a person is
entitled to enforce it subject to the fulfilment
of a condition;
(e) where the warrant is against property in the
hands of a receiver appointed by the Court or
a sequestrator;
(f) where the judgment is for a sum in a
currency not Australian dollars.
(2) Paragraph (1) does not affect any provision of or
under any Act requiring the leave of the Court
before a judgment may be enforced.
(3) An application for leave under paragraph (1) may
be made without notice to any person, unless the
Court otherwise orders.
(4) The application shall be supported by evidence on
affidavit showing—
(a) where the judgment is for the payment of
money, the amount, including any interest,
due on the date of the application;
(b) where paragraph (1)(a) applies, the reasons
for the delay;
r. 68.02
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(c) where paragraph (1)(b) applies, the change
which has taken place;
(d) where paragraph (1)(b), (1)(c) or (1)(d)
applies, that a demand to satisfy the
judgment has been made on the person liable
to satisfy it and that he has not satisfied it;
(e) that the applicant is entitled to proceed to
execution on the judgment; and
(f) that the person against whom execution is
sought is liable to execution on the
judgment.
68.03 Separate execution for costs
A person entitled to enforce a judgment entered or
given with costs may have execution to endorse
the judgment and, when the costs become payable,
have execution separately to enforce payment of
the costs.
68.04 Issue of warrant of execution
(1) A warrant of execution is issued when the warrant
is sealed with the seal of the Court.
(2) A warrant of execution shall bear the date of its
issue.
(3) A warrant of execution shall not be issued unless
the person requesting it to be issued—
(a) produces to the Registrar a form of the
warrant;
(b) files a copy;
r. 68.03
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(c) where the warrant is to enforce a judgment
for the payment of money, files an affidavit,
sworn within 14 days before the request,
stating—
(i) the date of the judgment;
(ii) the amount for which the judgment was
entered or given;
(iii) the amount, including any interest
accrued and any costs, due and payable
in respect of the judgment at the date of
swearing of the affidavit with
particulars showing how that amount is
calculated or made up; and
(iv) the daily amount of interest, if any,
which, subject to any future payment
under the judgment, will accrue after
the date of swearing of the affidavit in
respect of the judgment amount and
costs.
(4) In the case of a warrant of execution to enforce a
judgment for the payment of money, the person to
whom the warrant is directed shall, when
executing the warrant, serve a copy of the affidavit
required under paragraph (3)(c) and of any
affidavit filed under Rule 15.03 of Chapter II on
the person against whom the warrant is executed
or leave it at the place where the warrant is
executed.
68.05 Duration
(1) A warrant of execution shall be valid for the
purpose of execution for one year after the day it
is issued.
(2) Notwithstanding paragraph (1), the Court may
from time to time by order extend the period of
the validity of the warrant for the purpose of
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execution for not more than one year at any one
time from the day on which it would otherwise
expire.
(3) An order under paragraph (2) shall not be made
after the day of expiry of the warrant.
(4) An application for an order under paragraph (2)
may be made without notice to any person.
(5) A copy of an order under paragraph (2) shall be
delivered to the Sheriff by the party obtaining the
order.
(6) The priority of a warrant of execution in respect of
which an order under paragraph (2) has been made
shall be determined by reference to the date on
which the warrant was originally delivered to the
Sheriff.
68.06 Costs of prior execution
The amount for which a warrant of execution may
be issued shall, unless the Court otherwise orders,
include the costs, fees and expenses incurred in
respect of any prior warrant of execution on the
same judgment, whether the prior warrant was or
was not productive, and money recoverable under
section 107(1) of the Service and Execution of
Process Act 1992 of the Commonwealth.
68.07 Provision for enforcing payment of money
Order 69 shall, with any necessary modification,
apply to a warrant of execution which includes a
provision for enforcing the payment of money
required to be paid by the judgment which is to be
enforced by the warrant.
68.08 Form of warrant of execution
r. 68.06
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A warrant of execution shall be in Form 53B,
68A, 68B or 68C, whichever is appropriate.
ORDER 69
WARRANT OF SEIZURE AND SALE
69.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"creditor" means a person for whom a warrant is
issued;
"debtor" means a person against whose property
a warrant is to be executed;
"judgment" includes order;
"Sheriff" includes a person to whom a warrant is
directed;
"warrant" means a warrant of seizure and sale.
69.02 * * * * *
69.03 Two or more warrants
Unless the Court otherwise orders, a warrant shall
not be issued while another warrant issued in
respect of the same judgment is in force except for
the purpose of Rule 68.03.
69.04 Order of sale
(1) Subject to paragraphs (2) and (3), where it appears
to the Sheriff that property subject to levy under a
warrant is more than sufficient to satisfy the
amount to be levied, he shall take or sell so much
of the property as appears to him to be sufficient.
r. 69.03
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(2) Subject to paragraph (3), the Sheriff shall take or
sell property—
(a) in such order as seems to him best for the
prompt execution of the warrant without
undue expense;
(b) subject to paragraph (2)(a), in such order as
the debtor directs; and
(c) subject to paragraph (2)(a) and (b), in such
order as seems to the Sheriff best for
minimising hardship to the debtor and other
persons.
(3) Land shall not be put up for sale under the warrant
until all other property liable to sale under the
warrant has been sold unless the debtor so
requests.
(4) The Court may order that property subject to levy
under the warrant be taken or sold otherwise than
in accordance with the preceding paragraphs.
69.05 Time, place and mode of sale
(1) The Sheriff shall put up for sale all property liable
to sale under a warrant—
(a) as early as may be having regard to the
interests of the parties; and
(b) at the place which seems to him best for a
beneficial sale of the property.
(2) In the case of property, other than land, which is
liable to sale under a warrant, the Sheriff may as
he thinks fit sell the property either by a private
contract or public auction.
(3) Rule 69.06 shall not apply to a sale by private
contract made in accordance with paragraph (2).
69.06 Advertisement of sale
r. 69.05
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(1) Before putting property up for sale under a
warrant the Sheriff shall advertise the sale by
giving notice of the time and place of sale and of
particulars of the property in the manner which
seems to him best to give publicity to the sale.
(2) The Sheriff shall not advertise the sale of any land
until the creditor has satisfied him by such means
as he may reasonably require that—
(a) in the case of land under the operation of the
Transfer of Land Act 1958, a copy of the
warrant has been served on the Registrar of
Titles and that a memorandum of that service
has been entered in the Register Book;
(b) in the case of other land, a copy of the
warrant has been left with the Registrar-
General.
(3) An advertisement relating to the intended sale of
land by the Sheriff shall be in Form 69A and
include—
(a) a concise description of the land, including
its location, stated in terms calculated to
enable interested persons to identify it;
(b) a statement in general terms of the
improvements, if any, believed by him to be
on the land;
(c) a statement of the last known address of the
debtor; and
(d) in the case of land under the operation of the
Transfer of Land Act 1958, a statement of
the interest, if any, of the debtor according to
the Register Book and of the entries in the
Register Book which affect or may affect the
land as at the date of service upon the
Registrar of Titles of the warrant.
r. 69.06
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(4) The creditor shall serve personally on the debtor a
copy of the advertisement not less than 14 days
before the date of the intended sale.
(5) The Court may dispense with service under
paragraph (4).
(6) Not less than three days or such lesser period as
the Sheriff may allow before the date advertised
for the sale the creditor shall—
(a) file an affidavit of service of a copy of the
advertisement or, where the Court makes an
order for substituted service of the
advertisement, an affidavit showing due
compliance with the order;
(b) deliver to the Sheriff—
(i) where a copy of the advertisement is
served on the debtor, a copy of the
affidavit of service;
(ii) where the Court makes an order
dispensing with service of a copy of the
advertisement, a copy of the order;
(iii) where the Court makes an order for
substituted service of the advertisement,
a copy of the order and of the affidavit
showing due compliance.
69.07 Notional possession of goods
Notwithstanding that the Sheriff leaves land on
which goods have been seized under a warrant, the
Sheriff shall be taken to remain in possession of
the goods if he leaves in a prominent position on
or about the land on which the goods were seized
or upon the goods seized a notice of the seizure
listing the items seized.
ORDER 70
r. 69.07
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WARRANT OF POSSESSION
70.01 Payment of money
A warrant of possession to enforce a judgment for
the possession of land may include provision for
enforcing the payment of money required to be
paid by the judgment and money recoverable
under the Service and Execution of Process Act
1992 of the Commonwealth.
70.02 Removal of goods on warrant of possession
On the execution of a warrant of possession the
Sheriff need not remove any of the goods found
on the land.
ORDER 71
ATTACHMENT OF DEBTS
71.01 Definitions and application
(1) In this Order, unless the context or subject matter
otherwise requires—
"co-operative" means a body registered or
deemed to be registered under the
Co-operatives Act 1996 as a co-operative;
"garnishee" means a person from whom a
judgment creditor claims—
(a) that a debt is due or accruing to the
judgment debtor on the day an order for
the filing and service of a garnishee
summons is made; or
r. 71.01
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(b) that a debt will or is likely to become
due or accrue to the judgment debtor
between the day an order for the filing
and service of a garnishee summons is
made and the day for hearing named in
the summons;
"judgment" includes an order;
"judgment creditor" means a person entitled to
enforce a judgment for the payment of
money other than a judgment for the
payment of money into court;
"judgment debtor" means a person required by a
judgment to pay money otherwise than into
court;
"society" means a society within the meaning of
the Building Societies Act 1986.
(2) This Order shall not apply to debts being earnings
within the meaning of Order 72 due or accruing to
the judgment debtor.
71.02 What debts attachable
A debt may be attached under this Order if the
debt—
(a) is due or accruing to the judgment debtor
from the garnishee on the day an order for
the filing and service of a garnishee
summons is made; or
(b) becomes due or accrues to the judgment
debtor from the garnishee between the day an
order for the filing and service of a garnishee
summons is made and the day for hearing
named in the summons.
71.03 Bank account
r. 71.02
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(1) An amount standing to the credit of a judgment
debtor in an account in a bank, co-operative or
society shall, for the purpose of this Order, be a
debt due or accruing to the judgment debtor,
notwithstanding that any of the following
conditions applicable to the account has not been
satisfied—
(a) that a demand or notice is required before
money is withdrawn;
(b) that a personal application must be made
before money is withdrawn;
(c) that a deposit book must be produced before
money is withdrawn;
(d) that a receipt for money deposited in the
account must be produced before money is
withdrawn.
(2) Paragraph (1) shall apply, with any necessary
modification, to an amount which is placed to the
credit of a judgment debtor in an account in a
bank, co-operative or society between the day an
order for the filing and service of a garnishee
summons is made and the day for hearing named
in the summons.
71.04 Filing and service of garnishee summons
(1) Subject to any Act, the Court may, on the
application of a judgment creditor, order that a
garnishee summons be filed and served on the
garnishee.
(2) A judgment creditor may apply for an order under
paragraph (1) without notice to any person.
(3) The Court shall, in making an order under
paragraph (1), fix an amount to be specified in the
garnishee summons for the purpose of Rule 71.06
having regard to—
r. 71.04
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(a) the amount due under the judgment on the
date of the order and any money then
recoverable under section 107(1) of the
Service and Execution of Process Act 1992
of the Commonwealth; and
(b) the amount of interest accrued and accruing
on the judgment debt; and
(c) the costs of the garnishee proceedings.
(4) Where an order is made under paragraph (1) in
respect of a debt not yet due or accruing to the
judgment debtor from the garnishee, the day for
hearing named in the summons shall be not more
than 30 days after the date of the order.
71.05 Evidence on application for garnishee summons
(1) An order shall not be made under Rule 71.04
unless it is shown by affidavit—
(a) that the judgment is unsatisfied, either
wholly or to a stated extent; and
(b) that—
(i) a debt is due or accruing to the
judgment debtor from the garnishee;
(ii) a debt will or is likely to become due or
accrue to the judgment debtor from the
garnishee—
as the case requires.
(2) Where an application is made for an order under
Rule 71.04 in respect of a debt within paragraph
(1)(b)(ii) of this Rule, the affidavit shall give
particulars identifying the transaction between the
judgment debtor and the garnishee under which
the debt will or is likely to become due or accrue
and state the date or likely date it will become due
or accrue.
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(3) An affidavit under this Rule may contain
statements of fact based on information and belief
if the grounds are set out.
71.06 Garnishee summons
(1) A garnishee summons shall identify each debt in
respect of which it is filed and state—
(a) (i) where the debt is due or accruing to the
judgment debtor from the garnishee,
that upon service of the summons the
debt shall be attached and bound in the
hands of the garnishee to the extent of
the amount specified in the summons;
(ii) where the debt is not yet due or
accruing to the judgment debtor from
the garnishee, that in the event that the
debt becomes due or accrues before the
day for hearing named in the summons
the debt shall be attached and bound in
the hands of the garnishee to the extent
of the amount specified in the summons
when it becomes due or accrues—
as the case requires; and
(b) that on the day for hearing named in the
summons the judgment creditor will apply
for an order that the garnishee pay to the
judgment creditor the debt attached to the
extent of the amount specified in the
summons.
(2) A garnishee summons shall be in Form 71A.
71.07 Service of summons
(1) Subject to paragraph (2), the judgment creditor
shall, not less than seven days before the day for
hearing named in the garnishee summons, serve
the summons and a copy of each affidavit used on
r. 71.06 r. 71.07
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the application for an order under Rule 71.04 on
the garnishee personally and on the judgment
debtor.
(2) A garnishee summons shall not be served on a
garnishee out of Victoria.
71.08 What debts attached, when and to what extent
(1) A debt due or accruing to the judgment debtor
from the garnishee in respect of which an order for
the filing and service of a garnishee summons is
made shall, upon service of the summons on the
garnishee, be attached and bound in the hands of
the garnishee to the extent of the amount specified
in the summons.
(2) A debt not yet due or accruing to the judgment
debtor from the garnishee in respect of which an
order for the filing and service of a garnishee
summons is made shall, in the event that the debt
becomes due or accrues before the day for hearing
named in the summons, be attached and bound in
the hands of the garnishee to the extent of the
amount specified in the summons when it
becomes due or accrues.
(3) Notwithstanding paragraphs (1) and (2), where,
after service of a garnishee summons on the
garnishee, the garnishee acts with reasonable
diligence for the purpose of giving effect to the
attachment but nevertheless pays to the judgment
debtor the whole or any part of the debt attached
or otherwise deals with the debt attached so as to
satisfy, as between the garnishee and the judgment
debtor, the whole or any part of the debt attached,
the Court may order that for the purpose of the
garnishee application the debt attached be reduced
to the extent of the payment or satisfaction.
71.09 Payment to judgment creditor
r. 71.09
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(1) Subject to Rules 71.10 and 71.11, the Court may
on the hearing of a garnishee summons order the
garnishee to pay to the judgment creditor—
(a) the debt attached to the extent specified in
the garnishee summons; or
(b) so much of the debt attached to the extent so
specified as is required to satisfy the
judgment in respect of which the summons is
filed and served together with interest, any
money recoverable under section 107(1) of
the Service and Execution of Process Act
1992 of the Commonwealth and such costs
of the application as may be specified in the
order.
(2) Where on the hearing of a garnishee summons the
garnishee does not dispute the debt, or where he
does not attend on the hearing, the Court may
make an order under paragraph (1) upon the
evidence in support of the application under Rule
71.04 for an order that the garnishee summons be
filed and served on the garnishee.
(3) An order under paragraph (1) may be enforced in
the same manner as any other order for the
payment of money.
(4) An order under paragraph (1) shall be in Form
71B or 71C as the case requires.
71.10 Dispute of liability by garnishee
If on the hearing of the garnishee summons the
garnishee disputes liability to pay the debt
attached, the Court may determine the question of
liability or give directions for the trial of the
question.
71.11 Claim by other person
r. 71.10
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Where it appears to the Court that any person
other than the judgment debtor may be entitled to
the debt attached or to a charge or lien upon it, the
Court may order that notice of the application be
given to that person and then determine the
entitlement or give directions for its
determination.
71.12 Discharge of garnishee
Any payment made by a garnishee in compliance
with, and any execution levied against him under,
an order made under Rule 71.09 shall be a valid
discharge of his liability to the judgment debtor to
the extent of the amount paid or levied
notwithstanding that subsequently the garnishee
proceedings are set aside or the judgment from
which they arose is reversed or varied.
71.13 Money in court
(1) Where money is standing to the credit of the
judgment debtor in court, the Court may, on the
application of the judgment creditor made by
summons, order that the money or so much
thereof as is sufficient to satisfy the judgment
sought to be enforced together with interest
accrued on the judgment debt and the costs of the
application be paid to the judgment creditor.
(2) The summons and a copy of any affidavit in
support shall be served on the judgment debtor not
less than seven days before the day for hearing
named in the summons.
(3) Paragraph (1) is subject to Rule 15.09.
71.14 Costs
The costs of the judgment creditor of a garnishee
application under this Order shall, unless the
Court otherwise orders, be retained by the
judgment creditor out of the money recovered by
r. 71.14
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him from the garnishee in priority to the debt
under the judgment in respect of which the
application arose and interest accrued thereon and
any money recoverable under section 107(1) of the
Service and Execution of Process Act 1992 of the
Commonwealth.
ORDER 72
ATTACHMENT OF EARNINGS
72.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"attachment of earnings order" means an order
under Rule 72.03 or such an order as varied
from time to time;
"earnings" in relation to a judgment debtor
means any amounts payable to the judgment
debtor—
(a) by way of wages or salary, including
any fees, bonus, commission, overtime
pay or other emoluments payable in
addition to wages or salary; or
(b) by way of pension, including—
(i) an annuity in respect of past
services whether or not the
services were rendered to the
person paying the annuity; and
(ii) periodical payments in respect of
or by way of compensation for the
loss, abolition or relinquishment,
or any diminution in the
emoluments, of any office or
employment—
r. 72.01
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but does not include any pension payable to
the judgment debtor under the Social
Security Act 1991 of the Commonwealth or
the Veterans' Entitlements Act 1986 of the
Commonwealth;
"employer" in relation to a judgment debtor
means a person (including the Crown in right
of the State of Victoria, a Minister of the
Crown in right of the State of Victoria, and
any statutory authority representing the
Crown in right of the State of Victoria) by
whom, as a principal and not as a servant or
agent, earnings are payable or are likely to
become payable to the judgment debtor;
"judgment" includes an order;
"judgment creditor" means a person entitled to
enforce a judgment for the payment of
money other than a judgment for the
payment of money into court;
"judgment debtor" means a person required by a
judgment to pay money otherwise than into
court;
"net earnings" in relation to a pay-day means the
amount of the earnings becoming payable by
a particular employer on that pay-day after
the deduction from those earnings of—
(a) any sum deducted from those earnings
under Division 2 of Part VI of the
Income Tax Assessment Act 1936 of
the Commonwealth; and
(b) any sum deducted from those earnings
that would be an allowable deduction—
(i) under section 82H of that Act
other than life insurance
premiums, not being life insurance
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premiums payable in respect of
superannuation; or
(ii) under section 82HA of that Act;
"normal deduction" in relation to an attachment
of earnings order and in relation to a pay-day
means an amount representing a payment at
the normal deduction rate specified in the
order in respect of the period between that
pay-day and either the last preceding pay-day
or, where there is no last preceding pay-day,
the date on which the employer became, or
last became, the judgment debtor's employer;
"pay-day" means an occasion on which earnings
to which the attachment of earnings order
relates become payable;
"protected earnings" in relation to an attachment
of earnings order and in relation to a pay-day
means the amount representing a payment at
the protected earnings rate specified in the
order in respect of the period between that
pay-day and either the last preceding pay-
day, or where there is no last preceding pay-
day, the date on which the employer became,
or last became, the judgment debtor's
employer.
72.02 Application for attachment of earnings order
(1) A judgment creditor may apply by summons to the
Court for an attachment of earnings order.
(2) The summons shall be supported by an affidavit,
which may contain statements of fact based on
information and belief if the grounds are set out.
(3) The summons shall be in Form 72A and the
affidavit shall be in Form 72B.
r. 72.01 r. 72.02
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(4) The summons, a copy of the affidavit and a notice
in Form 72C as to the property and assets of the
judgment debtor and the debts, liabilities and other
financial obligations of the judgment debtor shall
be served on the judgment debtor not less than
14 days before the day for hearing named in the
summons.
(5) The Court shall not make an attachment of
earnings order to secure the payment of money
payable under a judgment where a warrant has
been issued in that case committing the judgment
debtor to prison under the Imprisonment of
Fraudulent Debtors Act 1958 and has not been
executed, but in such case the Court may
discharge the warrant with a view to making an
attachment of earnings order instead.
72.03 Making of order
Where the Court is satisfied that the judgment
debtor is a person to whom earnings are payable
or are likely to become payable and—
(a) that at the time when the application was
made there was due and unpaid in respect of
the judgment which the judgment creditor is
entitled to enforce an amount of not less than
$20; or
(b) that the judgment debtor has persistently
failed to comply with an order with respect
to the judgment—
the Court may order a person who appears to the
Court to be the judgment debtor's employer in
respect of those earnings or part of those earnings
to make out of those earnings or that part of those
earnings payments in accordance with Rule 72.07.
72.04 Attendance of or information about judgment debtor
r. 72.03
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(1) In relation to an attachment of earnings order or
any application for such an order the Court may
order that—
(a) the judgment debtor attend before the Court
at a time specified in the order to be
examined concerning his means and ability
to comply with the judgment;
(b) the judgment debtor state to the Court or
furnish to the Court within the time fixed by
the Court a statement signed by him setting
forth—
(i) the name and address of his employer
or, if he has more employers than one,
of each of his employers;
(ii) particulars as to the judgment debtor's
earnings;
(iii) such other particulars as the Court
thinks necessary to enable the
enforcement of the order; or
(c) any person who appears to the Court to be
indebted to the judgment debtor or to be the
employer of the judgment debtor give to the
Court a statement signed by him or on his
behalf containing such particulars as are
specified in the direction of his indebtedness
to the judgment debtor that became payable
by that person during a specified period.
(2) A document purporting to be a statement referred
to in paragraph (1) shall be received in evidence in
any proceedings for the enforcement of the order.
(3) Where on an application for an attachment of
earnings order the Court is satisfied—
r. 72.04
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(a) that the judgment debtor has been served
with a copy of the summons;
(b) that the judgment debtor has had a
reasonable opportunity of attending the
hearing;
(c) that the judgment debtor is employed by an
ascertained employer; and
(d) as to the earnings of the judgment debtor—
the Court may make an attachment of earnings
order in the absence of the judgment debtor.
(4) For the purpose of this Rule the Court may act
upon evidence by or on behalf of the judgment
debtor's employer or by the judgment debtor's
spouse or any statement or information furnished
under paragraph (1).
(5) Where the Court considers an application in the
absence of the judgment debtor or his or her
spouse and the Court has before it sufficient
evidence in the opinion of the Court upon which
to specify a protected earnings rate and a normal
deduction rate, the Court shall so specify those
rates, but where the Court does not have sufficient
evidence, the Court may without specifying such
rates make an order requiring the payment by the
judgment debtor's employer to the judgment
creditor of such amount as the Court thinks
reasonable having regard to the circumstances of
the judgment debtor so far as they are known to
the Court.
(6) Nothing in paragraph (1)(a) shall affect any other
mode of enforcing the attendance of the judgment
debtor before the Court.
(7) An application for an order under paragraph (1)
shall be made by summons in Form 72D and shall
be supported by an affidavit in Form 72E.
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(8) An order under paragraph (1) shall be in Form 72F
or 72G, whichever is appropriate.
72.05 Contents of order
(1) An attachment of earnings order shall specify
either generally or in relation to any particular
pay-day or pay-days the normal deduction rate,
that is to say, the rate at which the Court considers
it to be reasonable that the earnings of the
judgment debtor should be applied in satisfying
the judgment to which the order relates but not
exceeding a rate that appears to the Court to be
necessary for the purpose of—
(a) securing payment of the amount due and
unpaid under the judgment; and
(b) securing payment within a reasonable time of
any costs ordered by the Court to be paid by
the judgment debtor.
(2) An attachment of earnings order may specify a
higher normal deduction rate to apply for a
specified number of pay-days after the order
comes into force and a lower normal deduction
rate to apply to subsequent pay-days.
(3) An attachment of earnings order shall also specify
the protected earnings rate, that is to say, the rate
below which, having regard to the resources and
needs of the judgment debtor and of any other
person for whom he must or reasonably may
provide, the Court considers it to be reasonable
that the earnings to which the order relates should
not be reduced by a payment under the order.
(4) Unless the Court—
(a) has received from the judgment debtor a
completed form pursuant to the notice in
Form 72C given under Rule 72.02(4) as to
the property and assets of the judgment
r. 72.05 r. 72.05
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debtor and the debts, liabilities and other
financial obligations of the judgment debtor;
or
(b) has examined the judgment debtor as to
those matters—
the Court shall not under paragraph (3) specify as
the protected earnings rate a rate that is less than
80 per cent of the net earnings of the judgment
debtor.
(5) An attachment of earnings order shall—
(a) provide that the payments under the order are
to be made to the person specified in the
order;
(b) contain such particulars as the Court thinks
necessary for enabling the person to whom
the order is directed to identify the judgment
debtor.
(6) An attachment of earnings order shall be in
Form 72H.
72.06 Service of order
(1) An attachment of earnings order shall be served
on the judgment debtor and on the person to
whom the order is directed.
(2) There shall also be served on the person to whom
an attachment of earnings order is directed—
(a) a notice informing him of the effect of the
order and of his obligations under this Order;
and
(b) two forms of notice that the judgment debtor
is not in his employ.
(3) A notice under paragraph (2)(a) shall be in
Form 72J and a notice under paragraph (2)(b)
shall be in Form 72K.
r. 72.06
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(4) The order shall not come into force until the
expiration of seven days after the day on which the
order is served on the person to whom the order is
directed.
72.07 Employer to make payments
(1) An employer to whom an attachment of earnings
order is directed shall, in respect of each pay-day
whilst the order is in force, if the net earnings of
the judgment debtor exceed the sum of—
(a) the protected earnings of the judgment
debtor; and
(b) so much of any amount by which the net
earnings that became payable on any
previous pay-day were less than the protected
earnings in relation to that pay-day as has not
been made good on any other previous pay-
day—
pay, so far as that excess permits, to the person
specified in the order the normal deduction in
relation to that pay-day and so much of the normal
deduction in relation to any previous pay-day as
was not paid on that pay-day and has not been
paid on any other previous pay-day.
(2) A payment made by an employer under paragraph
(1) shall be a valid discharge to him as against the
judgment debtor to the extent of the amount paid.
(3) An employer making payments in accordance with
an attachment of earnings order is entitled to
deduct from the earnings of the judgment debtor
in addition to any other amount an allowance of
$3 in respect of each payment towards the clerical
and administrative costs of making payments
under the order and shall give to the judgment
debtor notice of the amount deducted.
72.08 Attachment of earnings in place of other orders
r. 72.08
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Where an application is made to the Court to
enforce a judgment for the payment of money
otherwise than into Court, the Court may, instead
of making any other order, make an attachment of
earnings order.
72.09 Execution after attachment of earnings
Unless the Court otherwise orders, where an
attachment of earnings order is in force, no
warrant of execution shall issue and no order shall
be made for the enforcement of the judgment to
which the attachment of earnings order relates.
72.10 Discharge or variation of order
(1) Where an attachment of earnings order is in force
the Court may, on the application of the judgment
creditor or the judgment debtor, discharge,
suspend or vary the order.
(2) An order suspending or varying an attachment of
earnings order shall be served on the respondent to
the application and the person to whom the
attachment of earnings order is directed.
(3) An order suspending or varying an attachment of
earnings order shall not come into force until the
expiration of seven days after the day on which the
order is served on the person to whom it is
directed.
72.11 Cessation of attachment of earnings order
(1) An attachment of earnings order shall cease to
have effect—
(a) upon being discharged under Rule 72.10; or
(b) unless the Court otherwise orders, upon the
making of any other order for the recovery of
r. 72.10
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the moneys owing under the judgment in
relation to which the attachment of earnings
order was made.
(2) Where an attachment of earnings order ceases to
have effect, the Registrar shall forthwith give
notice accordingly to the person to whom the
order was directed.
(3) A notice under paragraph (2) shall be in Form
72L.
(4) Where an attachment of earnings order ceases to
have effect, the person to whom the order is
directed shall not incur any liability in
consequence of his treating the order as still in
force at any time before the expiration of seven
days after the day on which the notice required by
paragraph (2) or a copy of the order discharging
the attachment of earnings order, as the case may
be, is served on him.
72.12 Two or more orders in force
Where earnings become payable to a judgment
debtor and there are in force two or more
attachment of earnings orders, whether made
under these Rules or otherwise, in relation to those
earnings, the person to whom the orders are
directed—
(a) shall comply with those orders according to
the respective dates on which they took
effect and shall disregard any order until the
earlier order has been complied with; and
(b) shall comply with any order as if the earnings
to which the order relates were the residue of
the earnings of the judgment debtor after the
making of any payment under an earlier
order.
72.13 When varied order taken to be made
r. 72.12
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For the purpose of Rule 72.12 an attachment of
earnings order which has been varied under
Rule 72.10 shall be taken to have been made as so
varied on the day upon which the attachment of
earnings order was made.
72.14 Notice to judgment debtor of payments
(1) A person who makes a payment in compliance
with an attachment of earnings order shall give to
the judgment debtor a notice specifying the
particulars of that payment.
(2) Where a person served with an attachment of
earnings order directed to him is not the employer
of the judgment debtor at the time of service of the
order, that person shall, forthwith after service of
the order, give notice in writing accordingly to the
Registrar.
(3) Where a person served with an attachment of
earnings order directed to him is the employer of
the judgment debtor at the time of service of the
order but ceases to be his employer at any time
thereafter, that person shall, forthwith after he
ceases to be the judgment debtor's employer, give
notice in writing accordingly to the Registrar.
72.15 Determination of earnings
(1) The Court shall, on the application of the person
to whom an attachment of earnings order is
directed, determine whether payments to the
judgment debtor of a particular class or
description specified in the application are
earnings for the purpose of that order.
r. 72.15
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(2) A person to whom an attachment of earnings order
is directed who makes an application under
paragraph (1) shall not incur any liability for
failing to comply with the order with respect to
any payments of the class or description specified
in the application that are made by him to the
judgment debtor while the application, or any
appeal from an order made on the application, is
pending.
(3) Paragraph (2) shall not apply in respect of any
payment made after an application is withdrawn or
an appeal from an order made on the application is
abandoned.
72.16 Service
An order or document that is required or permitted
to be served on a person under this Order may be
served on that person—
(a) personally;
(b) by delivering a copy at the usual or last
known place of residence or business of that
person to some person who apparently
resides or is employed there and is
apparently over the age of 16 years; or
(c) by sending a copy to him at his usual or last
known place of residence or business by
registered post.
ORDER 73
CHARGING ORDERS AND STOP ORDERS AND
NOTICES
73.01 Definitions
r. 72.16
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In this Order, unless the context or subject matter
otherwise requires—
"corporation" includes a building society within
the meaning of the Building Societies Act
1986 and a body registered or deemed to be
registered under Part 2 of the Co-operatives
Act 1996 as a co-operative;
"funds" or "funds in court" means any money,
any stock issued by or any funds of or
annuity granted by any government, or any
stock of any corporation standing or to be
placed to the credit of an account in the
books of the Court;
"judgment" means a judgment or order for the
payment of an ascertained sum of money
otherwise than into court;
"judgment creditor" means a person entitled to
enforce a judgment;
"judgment debt" means the sum due under a
judgment and includes the amount of any
interest;
"judgment debtor" means a person against
whom a judgment may be enforced;
"securities" means—
(a) (i) any stock issued by or any funds
of or annuity granted by the
Commonwealth of Australia or by
any State or Territory of the
Commonwealth; and
(ii) any stock of any corporation
registered or formed under any
general Act of the Commonwealth
of Australia or under any general
Act of any State or Territory of the
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Commonwealth or under the
Corporations Law; and
(b) any dividend or interest payable on
such stock;
"stock" includes shares, and any debenture,
debenture stock, bond, note or other security.
73.02 Order charging securities
For the purpose of securing the payment of a
judgment debt the Court may by order (in this
Order called "a charging order") impose a charge
on the beneficial interest of the judgment debtor in
any securities.
73.03 Filing and service of charging summons
(1) The Court may, on the application of a judgment
creditor, order that a charging summons be filed
and served.
(2) A judgment creditor may apply for an order under
paragraph (1) without notice to any person.
73.04 Evidence on application for charging summons
(1) An application for an order under Rule 73.03(1)
shall be supported by an affidavit—
(a) stating that the judgment is unsatisfied, either
wholly or to a stated extent;
(b) identifying the securities in respect of which
the order is sought and stating in whose
name they stand; and
(c) stating that the judgment debtor has a
beneficial interest in the securities and
describing that interest.
(2) An affidavit under this Rule may contain
statements of fact based on information and belief
if the grounds are set out.
r. 73.02 r. 73.03
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73.05 Charging summons
(1) A charging summons shall identify the securities
in respect of which it is filed and state that—
(a) upon service of the summons on the
government or corporation to which it is
addressed, the government or corporation, as
the case may be, shall not, except by order of
the court, cause or permit any transfer of any
of the securities to be made, or pay to any
person any dividend or interest thereon;
(b) upon service of the summons on the
judgment debtor, unless the Court otherwise
orders, no disposition by him of his interest
in any of the securities made before the
application for the charging order is heard by
the Court shall be valid as against the
judgment creditor.
(2) A charging summons shall be in Form 73A.
73.06 Service of summons
The judgment creditor shall, not less than seven
days before the day for hearing named in the
charging summons, serve on the judgment debtor
and personally on the government or corporation
the summons and a copy of each affidavit used on
the application for an order under Rule 73.03(1).
73.07 Effect of service of summons
(1) Where without the authority of the Court a
government or corporation upon which a charging
summons has been served causes or permits any of
the securities to which the summons relates to be
transferred or pays to any person any dividend or
interest thereon, the government or corporation, as
the case may be, shall be liable to pay to the
judgment creditor an amount equal to the value to
the judgment debtor of the securities transferred or
r. 73.06
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of the dividend or interest paid, as the case may
be, or so much thereof as is sufficient to satisfy the
judgment.
(2) No disposition by the judgment debtor of his
interest in any of the securities to which a
charging summons relates made after the service
of it on him and before the application for the
charging order is heard shall be valid as against
the judgment creditor, unless the Court otherwise
orders.
73.08 Order on summons hearing
(1) On the hearing of a charging summons the Court
may make a charging order with respect to
securities to which the summons relates.
(2) If the judgment debtor does not attend on the
hearing of the charging summons or, if attending,
does not dispute the evidence in support of the
application under Rule 73.03(1), the Court may
make a charging order upon that evidence.
73.09 Effect and enforcement of charge
A charge imposed by a charging order shall have
the same effect and give the judgment creditor the
same remedies for enforcing it as if it were a valid
charge effectively made by the judgment debtor.
73.10 Variation or discharge of order
The Court may by order at any time—
(a) vary the effect under Rule 73.07 of service of
a charging summons;
(b) vary or discharge a charging order.
73.11 Order charging funds in court
r. 73.08
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(1) For the purpose of securing the payment of a
judgment debt the Court may by order impose a
charge on the beneficial interest of the judgment
debtor in any funds in court.
(2) Rules 73.03 to 73.08 and Rule 73.10 shall apply,
with any necessary modification, to an application
for an order under paragraph (1).
(3) The judgment creditor shall, forthwith upon the
making of an order that a summons for an order
under paragraph (1) be filed and served, lodge a
copy of the summons and of each affidavit used
on the application for the order with the Registrar,
Master or other officer of the Court by whom the
funds in court are held.
(4) Paragraph (1) is subject to Rule 15.09.
73.12 Stop order for funds in court
(1) The Court may make an order that funds in court,
or any part thereof, or the income thereon, shall
not be transferred, sold, delivered out, paid or
otherwise dealt with unless notice is first given to
the person applying for the order.
(2) An order may be made under paragraph (1) on the
application of—
(a) any person who has a mortgage or charge on
the interest of any person in the funds in
court;
(b) any person to whom that interest has been
assigned; or
(c) any person who is a judgment creditor of the
person entitled to that interest.
(3) The application shall be made by summons in the
proceeding in which the funds are in court, or, if
there is no proceeding, by originating motion.
r. 73.12
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(4) The summons or originating motion and a copy of
any affidavit in support shall be served on every
person who has an interest in the funds in court
which may be affected by the order sought.
(5) On an application under this Rule the Court may
make such order as it thinks fit for the costs and
expenses of the applicant and of any party to the
application or other person against whom an order
is sought.
73.13 Stop notice on corporation stock not in court
(1) In this Rule and the following Rules of this
Order—
"corporation" means any corporation registered
or formed under any general Act of the
Commonwealth of Australia or under any
general Act or Companies Code of any State
or Territory of the Commonwealth.
(2) Any person (in this and the following Rules called
"the claimant") claiming a beneficial interest in
any stock of a corporation, other than stock in
court, who desires to be notified of any proposed
transfer of that stock or payment of any dividend
or interest thereon may give notice of that desire
to the corporation by—
(a) filing—
(i) an affidavit in Form 73B identifying the
stock in question and describing his
interest therein and identifying any
document under which it arises; and
(ii) a notice in Form 73C, signed by the
deponent and addressed to the
corporation; and
r. 73.13
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(b) serving a sealed copy of the affidavit and of
the notice on the corporation.
(3) The affidavit shall be indorsed with a note stating
the address to which any notice under Rule 73.14
is to be sent and, subject to paragraph (4), that
address shall for the purpose of that Rule be the
address for service of the claimant.
(4) The claimant may change his address for service
for the purpose of Rule 73.14 by filing and serving
on the corporation notice of the change.
73.14 Effect of stop notice
Where an affidavit and a notice are served on a
corporation under Rule 73.13, and during the time
the notice is in force, the corporation is requested
to register a transfer of the stock to which the
notice relates or the payment of any dividend or
interest on the stock falls due, the corporation—
(a) shall serve on the claimant at his address for
service a notice informing him of the
request; and
(b) except with the authority of the Court, shall
not register the transfer or, as the case
requires, pay the dividend or interest before
the expiration of 10 days after the day that
notice is served.
73.15 Withdrawal or discharge of stop notice
(1) A claimant may by notice served on the
corporation withdraw a notice served on it under
Rule 73.13.
(2) The Court may by order discharge any such
notice.
73.16 Prohibition of transfer of or payment on stock
r. 73.14
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(1) The Court, on the application of any person
claiming a beneficial interest in any stock of a
corporation, other than stock in court, may by
order prohibit or restrict the corporation from
registering any transfer of the whole or any part of
the stock or from paying any dividend or interest
thereon.
(2) The Court may vary or discharge an order made
under paragraph (1).
ORDER 74
ENFORCEMENT BY APPOINTMENT OF RECEIVER
74.01 Procedure
An application for the appointment of a receiver
by way of equitable execution may be made in
accordance with Order 39 and that Order shall
apply to such a receiver as it applies to a receiver
appointed for any other purpose.
74.02 Appointment of receiver by way of equitable execution
Before determining an application for the
appointment of a receiver by way of equitable
execution the Court shall have regard to the
amount claimed by the judgment creditor, the
amount likely to be obtained by the receiver and
the probable costs of his appointment and may
direct an inquiry on these or any other matters.
ORDER 75
CONTEMPT
r. 74.01
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PART 1—INTERPRETATION
75.01 Definition
In this Order, unless the context or subject matter
otherwise requires, "respondent" means a person
guilty or alleged to be guilty of contempt of court.
PART 2—SUMMARY PROCEEDINGS FOR CONTEMPT
75.02 Contempt in face of the Court
Where it is alleged or appears to the Court that a
person is guilty of contempt of court committed in
the face of the Court, the Court may—
(a) by oral order direct that the respondent be
arrested and brought before the Court; or
(b) issue a warrant for his arrest in Form 75A.
75.03 Procedure on hearing of charge
Where the respondent is brought before the Court,
whether under oral order or warrant for arrest, the
Court shall cause him to be informed of the
contempt with which he is charged and adopt
thereafter such procedure as in the circumstances
the Court thinks fit.
75.04 Custody pending disposal of charge
The Court may order that until the charge is
disposed of the respondent be kept in custody or
be released or released on terms, including a
condition that he give security for attendance in
person to answer the charge.
PART 3—OTHER PROCEDURE FOR CONTEMPT
75.05 Application
(1) This Part applies to—
r. 75.03
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(a) contempt of court committed in the face of
the Court;
(b) any other contempt of the Court;
(c) * * * * *
(2) In the case of contempt of court committed in the
face of the Court, the procedure under this Part is
alternative to that under Part 2.
75.06 Procedure
(1) Application for punishment for the contempt shall
be by summons or originating motion in
accordance with this Rule.
(2) Where the contempt is committed by a party in
relation to a proceeding in the Court, the
application shall be made by summons in the
proceeding.
(3) Where paragraph (2) does not apply, the
application shall be made by originating motion
which—
(a) shall be entitled "The Queen v." the
respondent, "on the application of" the
applicant; and
(b) shall require the respondent to attend before
a Judge.
(4) The summons or originating motion shall specify
the contempt with which the respondent is
charged.
(5) The summons or originating motion and a copy of
every affidavit shall be served personally on the
respondent, unless the Court otherwise orders.
75.07 Application by Registrar
r. 75.07
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(1) The Court may, by order, direct the Registrar to
apply by summons or originating motion for
punishment of the contempt.
(2) Where the Registrar applies as so directed, the
Court may order that costs be paid by the Registrar
to the respondent or by the respondent to the
Registrar as it thinks fit.
75.08 Arrest of respondent
Where a summons or originating motion for
punishment of a contempt has been filed, and it
appears to the Court that the respondent has
absconded or is likely to abscond or has left or is
likely to leave Victoria, the Court may issue a
warrant for his arrest and detention in custody
until he is brought before the Court to answer the
charge, unless he gives security, as the Court
directs, for his attendance in person to answer the
charge and to submit to the judgment of the Court.
75.08.1 Arrest pending contempt hearing
(1) If it appears to the Court that a party or other
person bound by an order of the Court is guilty of
contempt of court, and that the delay caused by
proceeding in accordance with Rule 75.06 may
cause serious or irreparable mischief, the Court
may issue a warrant for the arrest of the person in
Form 75AA.
(2) The Court may thereafter adopt such procedure as
it thinks fit and in particular may direct that—
(a) proceedings be conducted in accordance with
Rule 75.06 with such variation as the case
requires;
(b) the person arrested be kept in custody or be
released or released on terms, including a
condition that he give security for his
r. 75.08.1
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attendance in person to answer a charge of
contempt.
75.09 Warrant for arrest
(1) A warrant for the arrest of a respondent shall be
addressed to such person as the Court may direct
and may be issued—
(a) where the arrest is ordered by a Judge, under
his hand;
(b) * * * * *
(2) The warrant shall be in Form 75B.
PART 4—COMMITTAL AND COSTS
75.10 Application
This Part applies where the Court finds that a
respondent is guilty of contempt of court.
75.11 Punishment for contempt
(1) Where the respondent is a natural person, the
Court may punish for contempt by committal to
prison or fine or both.
(2) Where the respondent is a corporation, the Court
may punish for contempt by sequestration or fine
or both.
(3) When the Court imposes a fine, it may commit, or
further commit, the respondent to prison until the
fine is paid.
(4) The Court may make an order for punishment on
terms, including a suspension of punishment.
75.12 Discharge
r. 75.10
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Where a respondent is committed to prison for a
term, the Court may order his discharge before the
expiry of the term.
75.13 Warrant for committal
A warrant for the committal of a person found
guilty of contempt of court shall be in Form 75C.
75.14 Costs
The costs of an application for punishment for
contempt shall be in the discretion of the Court,
whether an order for committal is made or not.
ORDER 76
SEQUESTRATION
76.01 Definitions
In this Order, unless the context or subject matter
otherwise requires—
"judgment" includes order;
"person bound" means a person against whom a
judgment is entered or given or an order is
made.
76.02 * * * * *
76.03 Order for sequestration
(1) An order for sequestration shall appoint not less
than four persons as sequestrators and provide that
the sequestrators, or any two or more of them, be
authorised and directed to enter upon and take
possession of the real and personal estate of the
r. 76.01
-- 382 of 546 --
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352
person bound and to collect, receive and get into
their hands the rents and profits of his real and
personal estate and keep them under sequestration
in their hands until the person bound complies
with the judgment to be enforced by sequestration
or until further order.
(2) Where the person bound is a corporation and an
order is made for the sequestration of the property
of an officer of the corporation (whether or not an
order for sequestration is also made against the
corporation), the order shall give the same
authority and direction to the sequestrators with
respect to the real and personal estate of the
officer as in the case of an order against a
corporation and shall provide that the
sequestrators shall keep that estate under
sequestration in their hands until the corporation
complies with the judgment to be enforced by
sequestration or until further order.
(3) The Court may discharge an order for
sequestration.
76.04 Application
(1) An application for an order for sequestration shall
be by summons, and the summons and a copy of
each affidavit in support shall be served personally
on the person bound.
(2) Where the person bound is a corporation and
sequestration of the property of an officer of the
corporation is sought, a copy of the summons and
of each affidavit in support shall also be served
personally on him.
(3) The Court may dispense with service under
paragraphs (1) and (2).
ORDER 77
r. 76.04
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* * * * *
ORDER 77A
AUTHORITY OF MASTERS
77A.01 Authority
Subject to this Order, a Master shall have and may
exercise all the powers and authorities of a Judge
under these Rules, the Act or any Act.
77A.02 Limitation upon authority
(1) The trial of a proceeding shall not be held before a
Master and a Master shall not give judgment or
make any order at the trial of a proceeding.
(2) Except as provided by paragraph (3)(a) or (c), a
Master may, at the trial of any proceeding, give
judgment or make an order by consent of all
parties.
(3) A Master shall not have authority to hear and
determine—
(a) any application or proceeding which by these
Rules or under any Act is required to be
heard only by a Judge;
(b) any application or proceeding for an
injunction;
(c) any application, proceeding or other matter
relating to criminal proceedings or to the
liberty of the subject, including proceedings
for attachment or committal.
77A.03 Reference by Master to Judge
(1) Where on an application to a Master it appears to
the Master that the application is proper for the
r. 77A.03
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determination of a Judge, the Master may refer the
application to a Judge.
(2) The Judge to whom the application is referred may
hear and determine the application or refer it back
to the Master with directions.
(3) A Master may refer to a Judge for directions any
questions arising on an application to him.
ORDER 78
PROCEEDINGS UNDER JUDGMENT
78.01 Definition
In this Order "judgment" includes order.
78.02 Directions in judgment
(1) Where by a judgment of the Court further
proceedings are necessary, the Court may, when
giving the judgment or at any later time, give
directions for the conduct of those proceedings.
(2) Without limiting paragraph (1), the Court may
give directions with respect to—
(a) the taking of any account or the making of
any inquiry;
(b) the evidence to be adduced on the account or
inquiry;
(c) the preparation of any draft instrument
directed by the judgment to be settled, and
the making of any objections to the draft;
(d) the parties require to attend the proceedings;
(e) the representation by the same solicitors of
parties who constitute a class and by
r. 78.02
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different solicitors of parties who ought to be
separately represented;
(f) the time for taking each step in the
proceedings, and the day or days for the
further attendance of the parties;
(g) the publication of advertisements for
creditors or other claimants and the time for
creditors and claimants to respond.
(3) The Court may revoke or vary any directions
given under this Rule.
78.03 Claims
(1) In this Rule "administration proceeding" means
a proceeding for the administration of the estate of
a deceased person or the execution of a trust under
the direction of the Court.
(2) Where the judgment in an administration
proceeding directs the taking of an account of
debts or other liabilities of a deceased person, the
Court may direct a party to—
(a) (i) examine the claims of persons claiming
to be creditors of the estate and
determine, so far as he is able, to which
of the claims the estate is liable; and
(ii) determine, so far as he is able, what are
the other debts or liabilities of the
deceased; and
(b) file an affidavit stating his conclusions and
reasons.
(3) Where the judgment in an administration
proceeding directs an inquiry for unascertained
persons entitled, the Court may direct a party to—
r. 78.03
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(a) (i) examine the claims of persons claiming
to be entitled and determine, so far as
he is able, which of them are valid; and
(ii) determine, so far as he is able, what
other persons are entitled; and
(b) file an affidavit stating his conclusions and
reasons.
(4) Where the party directed by the Court under
paragraph (2) or (3) to examine claims is not the
personal representative or trustee concerned, then,
unless the Court otherwise orders, that personal
representative or trustee shall join with the party
so directed in making the affidavit.
(5) A copy of the affidavit under paragraph (2)(b) or
(3)(b) shall be served on every other party not less
than seven days before the time appointed by the
Court for adjudicating on claims.
(6) For the purpose of adjudicating on claims the
Court may—
(a) direct any claim to be investigated in such
manner it thinks fit;
(b) require any claimant to attend and prove his
claim or to furnish further particulars or
evidence of it; or
(c) allow any claim with or without proof.
(7) The Court may give directions for service on
persons claiming to be creditors of notice of the
result of the adjudication.
(8) This Rule shall, with any necessary modification,
apply where the judgment in any proceeding other
than an administration proceeding directs that an
account of debts or other liabilities be taken or
that an inquiry be made.
-- 387 of 546 --
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78.04 Interest on debts
(1) Where a judgment directs an account of the debts
of a deceased person, unless the estate of the
deceased is insolvent or the Court otherwise
orders, interest shall be allowed—
(a) on any debt which carries interest, at the rate
it carries;
(b) on any other debt, from the date of the
judgment at the rates payable on judgment
debts from that date.
(2) A creditor whose debt does not carry interest and
who establishes the debt in proceedings under the
judgment shall, unless the Court otherwise orders,
be entitled to interest on the debt in accordance
with paragraph (1)(b) out of any assets which
remain after satisfying the costs of the proceeding,
the debts established and the interest on such debts
as by law carry interest.
(3) For the purpose of this Rule the debts of a
deceased person include funeral, testamentary and
administration expenses and, in relation to
expenses incurred after the judgment, for the
reference in paragraph (1)(b) to the date of the
judgment substitute a reference to the date on
which the expenses became payable.
78.05 Interest on legacies
Where a judgment directs an account of legacies,
then, subject to any direction in the will or codicil
or any order of the Court, interest shall be allowed
on each legacy at the rate of eight per cent per
annum from the end of one year after the testator's
death.
78.06 Account or inquiry by Master
r. 78.04 r. 78.05
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Unless the Court otherwise orders, a Master shall
take any account or make any inquiry with respect
to further proceedings under a judgment.
78.07 Master's order
(1) The result of proceedings before a Master under a
judgment shall be stated in the form of an order.
(2) An order under this Rule shall have immediate
binding effect on the parties to the proceeding and
a copy shall be served on such parties as the
Master directs.
(3) Subject to any direction of the Master under
paragraph (4) or otherwise, an order under this
Rule shall have effect as a final order disposing of
the proceeding in which it is made.
(4) The Master may give directions as to the further
consideration of the proceeding.
78.08 * * * * *
ORDER 79
FUNDS IN COURT
PART 1—INTERPRETATION
79.01 Definition
In this Order—
"order" includes judgment.
PART 2—GENERAL
79.02 Application of money
(1) This Rule applies where money is paid into court
under an order of the Court.
r. 79.01
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(2) Subject to paragraph (3), money paid into court
and any interest allocated or received in respect
thereof shall not be paid out except by order of the
Court.
(3) Except where money is paid into court for the
benefit of a person under disability, money paid
into court and any interest allocated or received in
respect thereof may be paid out by the Registrar
upon and in accordance with a written authority
signed by each party to the proceeding or his
solicitor, each signature of a party to be verified
by the indorsed certificate of a solicitor.
79.03 Money in court for person under disability
Where an order is made that money in court be
held by the Registrar for the benefit of a person
under disability, the party who obtains the order
shall as soon as practicable procure its
authentication in accordance with these Rules.
79.04 Payment into court for person under disability
(1) Where an order is made that money be paid into
court for the benefit of a person under disability,
the party who obtains the order shall as soon as
practicable procure its authentication in
accordance with these Rules.
(2) As soon as practicable after authentication—
(a) the party obtaining the order shall serve a
copy on the party ordered to pay into court.
(b) * * * * *
(3) The party ordered to pay into court shall pay the
money to the Registrar and within seven days of
the payment serve on the party who obtained the
order notice in writing of the payment.
r. 79.04
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79.05 Certificate of receipt
Where money is received by the Registrar under
an order of the Court, he shall as soon as
practicable send to the party obtaining the order a
certificate of receipt.
79.06 Delay
(1) Where an order is made that a party pay money
into court for the benefit of a person under
disability, and it appears to the Registrar after due
inquiry that loss has been occasioned to the person
under disability—
(a) through undue delay by the party or his
solicitor in making the payment;
(b) where the order was made on the approval of
a compromise of a claim by the person under
disability, through undue delay by the
solicitor for or the litigation guardian of the
person under disability in—
(i) obtaining the approval of the
compromise;
(ii) procuring the authentication of the
order; or
(iii) serving a copy of the order on the other
party—
the Registrar may order that the person
responsible for the loss pay into court for the
benefit of the person under disability a sum by
way of interest on the money received or to be
received for investment.
(2) The sum ordered to be paid under paragraph (1)
shall not exceed that derived by applying to the
money for the period of the loss the last rate fixed
under the Penalty Interest Rates Act 1983.
-- 391 of 546 --
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(3) The Registrar shall not make an order under
paragraph (1) without giving the person who
appears to be responsible for the loss an
opportunity to be heard.
(4) Any person affected by an order made by the
Registrar under paragraph (1) may appeal to a
Judge or Master.
(5) Where money is paid into court in accordance
with an order of the Registrar under paragraph (1),
he shall deal with the sum as if paid into court
under the original order.
PART 3—FUNDS
79.07 * * * * *
79.08 * * * * *
79.09 * * * * *
79.10 Proceeding in another court
(1) This Rule applies where—
(a) money is held for the benefit of a person in
respect of a claim by or on behalf of that
person in another court, whether that court is
within or out of Victoria; and
(b) if the claim were made in a proceeding in the
Court, that person would be a person under
disability.
(2) Where the person for whose benefit the money is
held is or is about to become domiciled or
ordinarily resident within Victoria, the Registrar
may order that if the money is paid to the Court it
be held in court for the benefit of that person.
r. 79.06 r. 79.10
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(3) Money held in court pursuant to an order made
under paragraph (2) shall be taken to have been
paid into court pursuant to an order in a
proceeding in the Court that money be paid into
court for the benefit of a person under disability.
ORDER 80
* * * * *
ORDER 81
* * * * *
__________________
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FORMS
RULE 5.02(1)
FORM 5A
WRIT
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
BETWEEN A.B. Plaintiff
and
C.D. Defendant
TO THE DEFENDANT
TAKE NOTICE that this proceeding has been brought against you by the
plaintiff for the claim set out in this writ.
IF YOU INTEND TO DEFEND the proceeding, or if you have a claim
against the plaintiff which you wish to have taken into account at the trial,
YOU MUST GIVE NOTICE of your intention by filing an appearance within
the proper time for appearance stated below.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court Registry, William Street, Melbourne, or, where the
writ has been filed in the office of a Registrar out of Melbourne, in
the office of that Registrar; and
(b) on the day you file the Notice, serving a copy, sealed by the Court,
at the plaintiffs address for service, which is set out at the end of
this writ.
IF YOU FAIL to file an appearance within the proper time, the plaintiff may
OBTAIN JUDGMENT AGAINST YOU on the claim without further notice.
*THE PROPER TIME TO FILE AN APPEARANCE is as follows—
(a) where you are served with the writ in Victoria, within 10 days
after service;
Form 5A
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(b) where you are served with the writ out of Victoria and in another
part of Australia, within 21 days after service;
(c) where you are served with the writ in New Zealand or in Papua
New Guinea, within 28 days after service;
(d) where you are served with the writ in any other place, within
42 days after service.
IF the plaintiff claims a debt only and you pay that debt, namely, $
and $ for the legal costs to the plaintiff or his solicitor within the
proper time for appearance, this proceeding will come to an end.
Notwithstanding the payment you may have the costs taxed by the Court.
FILED [e.g. 15 June, 19 ].
Registrar
THIS WRIT is to be served within one year from the date it is filed or within
such further period as the Court orders.
Page 2
[Plaintiff's indorsement of a statement of claim or of a statement sufficient to
give with reasonable particularity notice of the nature of the claim and the
cause thereof and of the relief or remedy sought in the proceeding.]
Page 3
1. Place of trial—
(If no place of trial is specified, trial will be in Melbourne)
2. Mode of trial—
(If trial before a Judge and jury is not specified, trial will be before a
Judge sitting alone.)
3. ** This writ was filed—
(a) by the plaintiff in person;
(b) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor];
(c) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor] as agent for [name or firm of
principal solicitor], solicitor, of [business address of principal].
4. The address of the plaintiff is—
5. The address for service of the plaintiff is—
[Where the plaintiff sues by a solicitor, the address for service is the
business address of the solicitor or, where the solicitor acts by an
agent, the business address of the agent. Where the plaintiff sues
without a solicitor, the address for service is stated in 4, but, where that
Form 5A
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address is outside Victoria, the plaintiff must state an address for
service within Victoria.]
6. The address of the defendant is—
*[Strike out this paragraph where order made fixing time for appearance and
substitute "THE PROPER TIME TO FILE AN APPEARANCE is within
days after service on you of this writ."]
**[Complete or strike out as appropriate.]
_______________
Form 5A
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RULE 5.02(2)
FORM 5B
ORIGINATING MOTION BETWEEN PARTIES
[heading as in Form 5A]
TO THE DEFENDANT
TAKE NOTICE that this proceeding by originating motion has been brought
against you by the plaintiff for the relief or remedy set out below.
IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE
NOTICE of your intention by filing an appearance within the proper time for
appearance stated below.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court Registry, William Street, Melbourne, or, where the
originating motion has been filed in the office of a Registrar out of
Melbourne, in the office of that Registrar; and
(b) on the day you file the Notice, serving a copy, sealed by the Court,
at the plaintiff's address for service, which is set out at the end of
this originating motion.
IF YOU FAIL to file an appearance within the proper time, the plaintiff MAY
OBTAIN JUDGMENT AGAINST YOU without further notice.
IF YOU FILE an appearance within the proper time, the plaintiff cannot
obtain judgment against you except by application to the Court after notice to
you by summons.
*THE PROPER TIME TO FILE AN APPEARANCE is as follows—
(a) where you are served with the originating motion in Victoria,
within 10 days after service;
(b) where you are served with the originating motion out of Victoria
and in another part of Australia, within 21 days after service;
(c) where you are served with the originating motion in New Zealand
or in Papua New Guinea, within 28 days after service;
Form 5B
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(d) where you are served with the originating motion in any other
place, within 42 days after service.
FILED [e.g. 15 June, 19 ].
Registrar
THIS ORIGINATING MOTION is to be served within one year from the
date it is filed or within such further period as the Court orders.
Page 2
[Specify the relief or remedy sought and the Act, if any, under which the
claim is made, and, where it includes the answer to any question, state the
question.]
Page 3
1. Place of trial—
(If no place of trial is specified, trial will be held in Melbourne.)
2. **This originating motion was filed—
(a) by the plaintiff in person;
(b) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor];
(c) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor] as agent for [name or firm
of principal solicitor], solicitor, of [business address of
principal].
3. The address of the plaintiff is—
4. The address for service of the plaintiff is—
[Where the plaintiff sues by a solicitor, the address for service is the
business address of the solicitor or, where the solicitor acts by an
agent, the business address of the agent. Where the plaintiff sues
without a solicitor, the address for service is stated in 3, but, where
that address is outside Victoria, the plaintiff must state an address for
service within Victoria.]
5. The address of the defendant is—
*[Strike out this paragraph where order made fixing time for appearance and
substitute "THE PROPER TIME TO FILE AN APPEARANCE is within
days after service on you of this originating motion."]
**[Complete or strike out as appropriate.]
_______________
Form 5B
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RULES 5.02(2), 45.05(2)(b)
FORM 5C
ORIGINATING MOTION BETWEEN PARTIES
(where commenced under Rule 45.05)
[heading as in Form 5A]
TO THE DEFENDANT
TAKE NOTICE that this proceeding by originating motion has been brought
against you by the plaintiff for the relief or remedy set out below.
ALSO TAKE NOTICE that the plaintiff cannot continue with the proceeding
except by order of the Court. You will be given notice by summons of any
application for the order and until the summons is served you are not required
to take any step in the proceeding.
[or where a summons for an order under Rule 45.05 or for judgment will be
served with the originating motion]
IF YOU INTEND TO DEFEND the proceeding you must attend before the
Court at the time and place named in the summons served with this
originating motion.
FILED [e.g. 15 June, 19 ].
Registrar
THIS ORIGINATING MOTION is to be served within one year from the
date it is filed or within such further period as the Court orders.
Page 2
[complete as in Form 5B]
Page 3
[complete as in Form 5B]
_______________
Form 5C
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RULE 5.02(2)
FORM 5D
ORIGINATING MOTION
[where no defendant]
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
IN THE MATTER of an application by
A.B. for [describe nature of application
and state the Act, if any, under which
made].
TAKE NOTICE that the plaintiff will apply to the Court on [e.g. 20 June, 19
] at a.m. [or p.m.] for [specify the relief or remedy sought and the Act,
if any, under which the claim is made, and where it includes any question to
be answered, state the question].
FILED [e.g. 15 June, 19 ].
Registrar
The address of the plaintiff is—
_______________
Form 5D
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RULES 5.02(2), 53.02(3)
FORM 5E
ORIGINATING MOTION FOR RECOVERY OF LAND
UNDER ORDER 53
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
BETWEEN A.B. Plaintiff
and
C.D. Defendant
[or if the plaintiff does not know the name of any person in occupation]
BETWEEN A.B. Plaintiff
and
(The plaintiff does not know the name of any person in Defendant
occupation to make defendant)
TO THE DEFENDANT AND TO EVERY PERSON IN OCCUPATION OF
THE LAND AT [description of land*]
[or where there is no defendant]
TO EVERY PERSON IN OCCUPATION OF THE LAND AT [description
of land*]
TAKE NOTICE that this proceeding by originating motion has been
commenced by the plaintiff for the recovery of land at
Further particulars of the claim appear in the affidavit made in support of the
claim. A copy of the affidavit and of any exhibit referred to therein is served
with this originating motion.
AND TAKE NOTICE that the plaintiff will apply to the Judge or Master in
the County Court, William Street, Melbourne on [e.g. 20 June, 19 ]
at a.m. [or p.m.] or so soon afterwards at the business of the Court
allows. At that time the Judge or Master may refer to a Judge for hearing
forthwith an application by the plaintiff for judgment.
IF YOU ARE NAMED AS DEFENDANT AND INTEND TO DEFEND
THIS PROCEEDING you must—
Form 5E
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(a) give notice of your intention by filing an appearance on or before
the day specified above; and
(b) attend before the Judge or Master as specified above.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court Registry, William Street, Melbourne, or, where the
originating motion has been filed in the office of a Registrar out of
Melbourne, in the office of that Registrar; and
(b) on the day you file the Notice, serving a copy, sealed by the Court,
at the plaintiff's address for service, which is set out at the end of
this originating motion.
IF YOU FAIL to file an appearance on or before the day specified above or
to attend before the Judge or Master on that day, the plaintiff MAY OBTAIN
JUDGMENT AGAINST YOU without further notice.
IF YOU ARE IN OCCUPATION OF THE LAND AND ARE NOT NAMED
AS DEFENDANT you may attend before the Judge or Master in person or by
your counsel or solicitor on the day and at the time and place specified above
and apply to be made a defendant.
FILED [e.g. 15 June, 19 ].
Registrar
Page 2
1. Place of trial—
(If no place of trial is specified, trial will be held in Melbourne.)
2. **This originating motion was filed—
(a) by the plaintiff in person;
(b) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor];
(c) for the plaintiff by [name or firm of solicitor], solicitor, of
[business address of solicitor] as agent for [name or firm of
principal solicitor], solicitor, of [business address of
principal].
3. The address of the plaintiff is—
4. The address for service of the plaintiff is—
[Where the plaintiff sues by a solicitor, the address for service is
the business address of the solicitor or, where the solicitor acts
Form 5E
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372
by an agent, the business address of the agent. Where the
plaintiff sues without a solicitor, the address for service is stated
in 3, but, where that address is outside Victoria the plaintiff must
state an address for service within Victoria].
5. [If there is a defendant] The address of the defendant is—
*[Note: The land should be so described as to be physically identifiable.]
**[complete or strike out as appropriate.]
_______________
Form 5E
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RULE 7.13(2)
FORM 7A
LETTER OF REQUEST FOR SERVICE OF DOCUMENT
[heading as in originating process]
To
Whereas a civil proceeding is now pending in the County Court of Victoria in
which is plaintiff and is
defendant and in which the plaintiff claims
And whereas in order that the matters in dispute between the parties in the
proceeding may be duly determined it is necessary that [describe the
document] be served on and it has been made to appear
that is a national of and is
domiciled or resident in at
Now I the Registrar of the County Court of Victoria
hereby request that for the reasons aforesaid and for the assistance of the
Court you will be pleased to cause the said [and a
translation of it], [both of] which I send to you with this request, to be served
on of
And I inform you that proper arrangements have been made by the Court and
by the Commonwealth of Australia for the reimbursement of any expenses
incurred in carrying out the service hereby requested.
And I further inform you that legal assistance with respect to the service of
documents in the State of Victoria can be given by this Court at the request of
a foreign court if that request is duly transmitted to the Attorney-General of
the State of Victoria.
Dated [e.g. 15 June, 19 ].
Registrar of the County Court
of the State of Victoria.
_______________
Form 7A
-- 404 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
374
RULE 8.05(2)
FORM 8A
NOTICE OF APPEARANCE
[heading as in originating process]
FILE an appearance for [full name of defendant] the abovenamed defendant
Dated [e.g. 15 June, 19 ].
[Signed]
The address of the defendant is [where
the defendant appears in person and the address of the defendant is outside
Victoria and the address of the defendant within Victoria for service
is ].
[where the defendant appears by a solicitor The name or firm and the
business address within Victoria of the solicitor for the defendant
is ].
[where the solicitor is agent of another as agent for [name or firm and
business address of principal].]
_______________
RULE 8.08(2)
FORM 8B
NOTICE OF CONDITIONAL APPEARANCE
[heading as in originating process]
FILE a conditional appearance for [full name of defendant] the abovenamed
defendant.
Dated [e.g. 15 June, 19 ].
[Signed]
[continue as in Form 8A]
_______________
Form 8A
-- 405 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
375
RULE 10.04(5)
FORM 10A
HEADING AND NOTICE OF COUNTERCLAIM WHERE
DEFENDANT NEW PARTY
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
BETWEEN A.B. Plaintiff
and
C.D. Defendant
[by original proceeding]
AND BETWEEN C.D. Plaintiff
and
A.B. and E.F. Defendants
[by counterclaim]
To E.F.
of [address]
TAKE NOTICE that this proceeding has been brought against you by the
defendant for the claim set out in this counterclaim.
IF YOU INTEND TO DEFEND the claim YOU MUST GIVE NOTICE of
your intention by filing an appearance within the proper time for appearance
stated below.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court Registry, William Street, Melbourne, or, where the
counterclaim has been filed in the office of a Registrar out of
Melbourne, in the office of that Registrar; and
(b) on the day you file the Notice, serving a copy, sealed by the Court,
at the defendant's address for service, which is set out at the end of
the counterclaim.
Form 10A
-- 406 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
376
IF YOU FAIL to file an appearance within the proper time, the defendant
may OBTAIN JUDGMENT AGAINST YOU on the counterclaim without
further notice.
*THE PROPER TIME TO FILE AN APPEARANCE is as follows—
(a) where you are served with the counterclaim in Victoria, within 10
days after service;
(b) where you are served with the counterclaim out of Victoria and in
another part of Australia, within 21 days after service;
(c) where you are served with the counterclaim in New Zealand or in
Papua New Guinea, within 28 days after service;
(d) where you are served with the counterclaim in any other place,
within 42 days after service.
COUNTERCLAIM
[Set out in separate, consecutively numbered paragraphs all the material
facts relied upon or the counterclaim and state precisely the relief claimed.]
The address of the defendant is—
The address for service of the defendant is—
*[Strike out this paragraph where order made fixing time for appearance and
substitute "THE PROPER TIME TO FILE AN APPEARANCE is within
days after service on you of this counterclaim."]
_______________
Form 10A
-- 407 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
377
RULE 10.04(6)
FORM 10B
NOTICE OF APPEARANCE TO COUNTERCLAIM
[heading as in Form 10A]
FILE an appearance for [full name of defendant to counterclaim] the
abovenamed defendant to the counterclaim of the defendant.
Dated [e.g. 15 June, 19 ].
[Signed]
[continue as in Form 8A]
_______________
Form 10B
-- 408 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
378
RULE 11.02
FORM 11A
THIRD PARTY NOTICE
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
BETWEEN A.B. Plaintiff
and
C.D. Defendant
and
E.F. Third Party
To E.F.
of [address]
TAKE NOTICE that the plaintiff has brought this proceeding against the
defendant for the claim set out in the writ and statement of claim [or
originating motion and affidavit[s]] served herewith.
AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the
grounds set out in his defence served herewith, and claims to be entitled to
relief against you on the grounds set out in the statement of claim indorsed on
this notice.
IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant,
or the defendant's claim against you, YOU MUST GIVE NOTICE of your
intention by filing an appearance within the proper time for appearance stated
below.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court Registry, William Street, Melbourne, or, where the
writ has been filed in the office of a Registrar out of Melbourne, in
the office of that Registrar; and
Form 11A
-- 409 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
379
(b) on the day you file the Notice, serving a copy, sealed by the Court
at the defendant's address for service, which is set out at the end of
this notice.
IF YOU FAIL to file an appearance within the proper time you will be taken
to admit the validity of any judgment against the defendant and your own
liability to the defendant to the extent claimed in the statement of claim
indorsed on this notice, and the defendant may OBTAIN JUDGMENT
AGAINST YOU without further notice.
*THE PROPER TIME TO FILE AN APPEARANCE is as follows—
(a) where you are served with the counterclaim in Victoria, within 10
days after service;
(b) where you are served with the notice out of Victoria and in
another part of Australia, within 21 days after service;
(c) where you are served with the notice in New Zealand or in Papua
New Guinea, within 28 days after service;
(d) where you are served with the notice in any other place, within 42
days after service.
FILED [e.g. 15 June, 19 ].
Registrar
Page 2
STATEMENT OF CLAIM
[Set out in separate, consecutively numbered paragraphs all the material
facts relied upon for the claim against the third party and state precisely the
relief claimed.]
Page 3
1. **This notice was filed—
(a) by the defendant in person;
(b) for the defendant by [name or firm of solicitor], solicitor,
of [business address of solicitor];
(c) for the defendant by [name or firm of solicitor], solicitor,
of [business address of solicitor] as agent for [name or firm
of principal solicitor], solicitor, of [business address of
principal].
2. The address of the defendant is—
The address for service of the defendant is—
Form 11A
-- 410 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
380
3. The address of the third party is—
*[Strike out this paragraph where order made fixing time for appearance and
substitute "THE PROPER TIME TO FILE AN APPEARANCE is within
days after service on you of this notice."]
**[Complete or strike out as appropriate.]
_______________
Form 11A
-- 411 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
381
RULE 11.15(5)
FORM 11B
PERSON LIABLE IN RESPECT OF DAMAGE CLAIMING
CONTRIBUTION AGAINST ANOTHER
[heading as in originating process]
TO THE DEFENDANT [name]
TAKE NOTICE that the plaintiff has brought this proceeding against the
defendant, to recover damages for loss sustained [e.g. as the result of a
collision between a motor car driven by you and a motor car driven by the
defendant , which is alleged to have been caused by the
negligence of the defendants].
AND TAKE NOTICE that the defendant , claims to
be entitled to contribution from you in respect of any sum which the plaintiff
may recover herein against him to the extent of such amount as may be found
by the Court to be just and equitable having regard to the extent of your
responsibility for such damages [e.g. on the ground that your negligence
contributed to the happening of the collision].
FILED [e.g. 15 June, 19 ].
Registrar
_______________
Form 11B
-- 412 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
382
RULE 12.05(1)
FORM 12A
NOTICE OF CLAIM TO GOODS TAKEN IN EXECUTION
[heading as in originating process]
To the [judgment creditor]
of [address]
TAKE NOTICE that A.B. has claimed the goods [or certain goods] [where
only certain goods are claimed here enumerate them] taken in execution by
the Sheriff under the warrant of execution issued in this proceeding.
WITHIN five days of service of this notice on you you may serve notice in
writing on the Sheriff stating whether you admit or dispute the claim of A.B.
to the goods.
IF you do not within the period of five days after service of this notice serve
notice on the Sheriff stating that you admit the claim or if within the period of
five days you serve notice in writing on the Sheriff that you dispute the claim,
the Sheriff may apply to the Court by summons for relief by way of
interpleader. If you serve notice in writing on the Sheriff stating that you
admit the claim you will not be liable for any fees or expenses incurred by the
Sheriff after the notice is given.
Dated [e.g. 15 June, 19 ].
Sheriff
_______________
Form 12A
-- 413 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
383
RULE 14A.12
FORM 14AA
THIRD PARTY NOTICE
(Miscellaneous Cause)
IN THE COUNTY COURT 19 No.
OF VICTORIA
AT
BETWEEN A.B. Plaintiff
and
C.D. Defendant
and
E.F. Third Party
To E.G.
of [address]
TAKE NOTICE that the plaintiff has brought this proceeding against the
defendant for the claim set out in the writ and statement of claim [or
originating motion and affidavit[s]] served herewith.
AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the
grounds set out in his defence served herewith, and claims to be entitled to
relief against you on the grounds set out in the statement of claim indorsed on
this notice.
IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant,
or the defendant's claim against you, YOU MUST GIVE NOTICE of your
intention by filing an appearance within the proper time for appearance stated
below.
YOU OR YOUR SOLICITOR may file the appearance. An appearance is
filed by—
(a) filing a "Notice of Appearance" in the Registrar's office in the
County Court, William Street, Melbourne, or, where the writ has
been filed in the office of a Registrar, in the office of that
Registrar; and
Form 14AA
-- 414 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
384
(b) on the day you file the Notice, serving a copy, sealed by the Court
at the defendant's address for service, which is set out at the end of
this notice.
IF YOU FAIL to file an appearance within the proper time you will be taken
to admit the validity of any judgment against the defendant and your own
liability to the defendant to the extent claimed in the statement of claim
indorsed on this notice, and the defendant may OBTAIN JUDGMENT
AGAINST YOU without further notice.
*THE PROPER TIME TO FILE AN APPEARANCE is as follows—
(a) where you are served with the notice in Victoria, within 10 days
after service;
(b) where you are served with the notice out of Victoria and in
another part of Australia, within 21 days after service;
(c) where you are served with the notice in New Zealand or in Papua
New Guinea, within 28 days after service;
(d) where you are served with the notice in any other place, within 42
days after service.
FILED [e.g. 15 June, 19 ].
Registrar
Page 2
STATEMENT OF CLAIM
[Set out in separate, consecutively numbered paragraphs all the material
facts relied upon for the claim against the third party and state precisely the
relief claimed.]
Page 3
1. This notice was filed—
(a) by the defendant in person;
(b) for the defendant by [name or firm of solicitor], solicitor, of
[business address of solicitor];
(c) for the defendant by [name or firm of solicitor], solicitor, of
[business address of solicitor] as agent for [name or firm of
principal solicitor], solicitor, of [business address of
principal].
2. The address of the defendant is—
The address for service of the defendant is—
Form 14AA
-- 415 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
385
3. The address of the third party is—
*[Strike out this paragraph where order made fixing time for appearance and
substitute "THE PROPER TIME TO FILE AN APPEARANCE is within
days after service on you of this notice."]
_______________
Form 14AA
-- 416 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
386
RULE 15.08(6)
FORM 15A
ORDER APPROVING COMPROMISE OF CLAIM OF MINOR
[heading as in originating process]
[other particulars as in Form 60C]
JUDGE [or MASTER]:
DATE MADE:
ORIGINATING PROCESS:
HOW OBTAINED:
[state whether on application before trial or at trial with date of
commencement of trial]
ATTENDANCE:
OTHER MATTERS:
1. The plaintiff was born on 19 .
2. By a compromise entered into on 19
the defendant proposes to pay and the plaintiff desires to accept
$ for the benefit of the plaintiff and the plaintiff's costs,
including the cost of this application, in full settlement of the
plaintiff's claim in the proceeding.
3. The Court read the following material:
(a) [Identify affidavits by date and name of deponent];
(b) The exhibits to the affidavits including the opinion of
Counsel dated 19 .
4. The defendant consents to the proposed compromise.
THE COURT ORDERS THAT:
1. The compromise be approved.
2. The defendant within days after service of a copy of this
order on his solicitors pay $ to the Registrar for the
benefit of the plaintiff [where appropriate and $ to the
Health Insurance Commission] [where appropriate and $
to the solicitors for the plaintiff, to be disbursed or retained by
them in payment of the items totalling $ referred to in
Form 15A
-- 417 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
387
the affidavit of
dated 19 ].
3. The costs of the plaintiff, including the costs of this application,
be taxed on Scale [or on the Magistrates' Court
Scale] and when taxed, paid by the defendant.
4. Subject to any further order, the Registrar invest $ for
the plaintiff and pay it out with the interest accrued thereon to
the plaintiff upon his attaining the age of 18 years.
5. Upon payment by the defendant of the sum[s] and costs referred
to, the proceeding be forever stayed.
5A. If under Rule 79.10(2) of Chapter I of the Rules of the Supreme
Court, the Senior Master of the Supreme Court orders that if the
moneys are paid to the Supreme Court they be held in court for
the benefit of the plaintiff, the Registrar shall thereafter remit the
said moneys and any interest accrued thereon to the Senior
Master for the benefit of the plaintiff.
6. Each party have liberty to apply.
7. The exhibits to the affidavits [where appropriate and a transcript
of the evidence with respect to the application] be retained on the
Court file.
DATE AUTHENTICATED
Judge [or Master]
_______________
Form 15A
-- 418 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
388
RULE 15.08(6)
FORM 15B
ORDER APPROVING COMPROMISE OF CLAIM UNDER
PART III OF WRONGS ACT FOR BENEFIT OF MINOR
[heading as in originating process]
[other particulars as in Form 60C]
JUDGE [or MASTER]:
DATE MADE:
ORIGINATING PROCESS:
HOW OBTAINED:
[state whether an application before trial or at trial with date of
commencement of trial]
ATTENDANCE:
OTHER MATTERS:
1. The dates of birth of the minors on whose behalf the proceeding is
brought are:
[name] 19 ;
[name] 19 .
2. By a compromise entered into on 19 the defendant
proposes to pay and the plaintiff desires to accept [where appropriate $
for the plaintiff and] $ and $ for and ,
respectively, the minors referred to above and the plaintiff's costs,
including the costs of this application, in full settlement of the plaintiff's
claim in the proceeding.
3. The Court read the following material:
(a) [Identify affidavits by date and name of deponent];
(b) The exhibits to the affidavits including the opinion of
of Counsel dated 19 .
4. The defendant consents to the proposed compromise.
Form 15B
-- 419 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
389
THE COURT ORDERS THAT:
1. The compromise be approved.
2. The defendant within days after service of a copy of this order
on his solicitors pay [where appropriate $ to the solicitors for
the plaintiff, being $ for the plaintiff and the balance
of $ to be disbursed or retained by them in payment of the items
referred to in the affidavit of dated 19 and]
$ to the Registrar for the benefit of the minors referred to
above, being $ for the benefit of and $
for the benefit of
3. The costs of the plaintiff, including the costs of this application, be
taxed on Scale [or on the Magistrates' Court Scale] and,
when taxed, paid by the defendant.
4. Subject to any further order, the Registrar invest $ and $
for and respectively, each sum to be paid out
with the interest accrued thereon to the minor for whose benefit it was
invested upon his attaining the age of 18 years.
[continue as in Form 15A]
_______________
Form 15B
-- 420 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
390
RULE 19.02(3)
FORM 19A
NOTICE OF A CONSTITUTIONAL MATTER
[heading as in originating process]
1. The [party whose case raises the matter] gives notice that this
proceeding involves a matter under the Constitution or involving its
interpretation within the meaning of section 78B of the Judiciary Act
1903.
2. [State specifically the nature of the matter].
3. [State the facts showing the matter is one to which section 78B of the
Judiciary Act 1903 applies].
Dated [e.g. 15 June, 19 ].
[Signed]
To the Registrar
And to
_______________
RULE 29.02(2)
FORM 29A
NOTICE FOR DISCOVERY
[heading as in originating process]
To the [identify party]
YOU are required to give discovery of documents within 42 days after service
of this notice on you.
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
Form 19A
-- 421 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
391
RULE 29.04
FORM 29B
AFFIDAVIT OF DOCUMENTS
[heading as in originating process]
I, the abovenamed , make oath and say as follows:
1. I have in my possession, custody or power, the documents relating to
the questions in this proceeding enumerated in Schedule 1.
2. The documents enumerated in Part 2 of Schedule 1 are privileged, and I
object to produce them. The documents are privileged on the ground—
(a) as to documents numbered 4 to 6, that
[state the ground];
(b) as to document numbered 7, that
[state the ground].
3. I have had, but no longer have, in my possession, custody or power, the
document relating to the questions in the proceeding enumerated in
Schedule 2.
4. Document numbered 8, referred to in Schedule 2, was last in my
possession, custody or power on [state when] and I believe that [state
belief as to what has become of it].
5. To the best of my knowledge, information and belief neither I nor my
solicitor nor any other person on my behalf has now, or ever had, in my
or his possession, custody or power, any document relating to any
question in the proceeding, other than the documents enumerated in the
said Schedules 1 and 2.
[Describe each document in the Schedules as original or copy.]
Schedule 1
Part 1
1.
2.
3.
Part 2
Form 29B
-- 422 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
392
4.
5.
6.
7.
Schedule 2
8. Sworn, etc.
_______________
Form 29B
-- 423 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
393
RULE 29.10(5)
FORM 29C
NOTICE TO PRODUCE
[heading as in originating process]
To the [identify party]
TAKE NOTICE that the requires you to produce for
his inspection the following documents referred to in your [writ, pleading,
particulars, affidavit, etc.] [describe documents required].
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
RULE 29.12.1(2)
FORM 29D
NOTICE OF DEFAULT IN MAKING DISCOVERY OF
DOCUMENTS
[heading as in originating process]
To the [identify party]
YOU have failed to make discovery of documents to the [identify party]
within the time limited by the Rules [or fixed by order of the Court made on
e.g. 20 June, 19 ].
TAKE NOTICE that unless you make discovery of documents to the [identify
party] within 7 days of the day of service of this notice on you the plaintiff
will apply to the Court for an order that the defence served by you be struck
out [or the defendant will apply to the Court for an order that the proceeding
be dismissed].
Dated [e.g. 20 June, 19 ].
[Signed]
_______________
Form 29C
-- 424 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
394
RULE 30.09.1(2)
FORM 30A
NOTICE OF DEFAULT IN ANSWERING
INTERROGATORIES
[heading as in originating process]
To the [identify party]
YOU have failed to answer interrogatories served by the [identify party] for
your examination within the time limited by the Rules [or fixed by order of
the Court made on e.g. 20 June, 19 ].
TAKE NOTICE that unless you answer the interrogatories within 7 days of
the day of service of this notice on you the plaintiff will apply to the Court for
an order that the defence served by you be struck out [or the defendant will
apply to the Court for an order that the proceeding be dismissed].
Dated [e.g. 20 June, 19 ].
[Signed]
_______________
Form 30A
-- 425 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
395
RULE 35.03(4)
FORM 35A
NOTICE TO ADMIT
[heading as in originating process]
To the [identify party]
TAKE NOTICE that if you do not, within [specify a number not less than 14]
days after service of this notice upon you, serve a notice upon
disputing any fact specified [or the authenticity of any document mentioned]
below, that fact [or the authenticity of that document] shall, for the purpose of
this proceeding only, be taken to be admitted by you in favour of
the . If you do serve a notice disputing that fact [or the authenticity
of that document], and afterwards that fact [or the authenticity of that
document] is proved, you shall pay the costs of proof, unless the Court
otherwise orders.
1.
[specify each fact]
2.
[or]
1.
[mention each document]
2.
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
Form 35A
-- 426 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
396
RULE 35.03(4)
FORM 35B
NOTICE OF DISPUTE
[heading as in originating process]
To the [identify party]
The disputes the following facts specified in the
's notice dated the day of 19 .
1.
[identify each fact]
2.
[or]
The disputes the authenticity of the following
documents mentioned in the 's notice dated the day
of 19 .
1.
[identify each document]
2.
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
Form 35B
-- 427 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
397
RULE 39.05(b)
FORM 39A
DEED OF GUARANTEE
[heading as in originating process]
THIS guarantee is made the day of 19 between
[name] of [address], called "the guarantor", and the Registrar of the County
Court of the State of Victoria.
Whereas by an order of the County Court of the State of Victoria made the
day of 19 , in the abovenamed proceeding, [name] of
[address], called "the receiver", has been appointed to receive [or receive and
manage] [follow words of the order].
And whereas pursuant to the said order the receiver is required to give
security approved by the Court.
And whereas the guarantor has agreed at the request of the receiver to give a
guarantee in consideration of the annual premium mentioned below which
guarantee has been approved by the Court in testimony whereof a Master of
the County Court has signed an allowance in the margin hereof.
Now this guarantee witnesses that the guarantor promises the Registrar that if
the receiver does not account to the Court for what he receives as receiver or
does not deal with what he receives as the Court directs the guarantor will pay
to the Registrar whatever is required to make good the default to a limit of $
Guarantee for $ . Annual premium $
The Common Seal of
was hereunto affixed in
the presence of
_______________
Form 39A
-- 428 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
398
RULE 41.01(2)
FORM 41A
ORDER FOR EXAMINATION WITHIN VICTORIA
[heading as in originating process]
[other particulars as in Form 60C]
THE COURT ORDERS THAT:
[name] of [address within Victoria] be examined before [name and address
or description of examiner].
_______________
Form 41A
-- 429 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
399
RULE 41.01(2)
FORM 41B
ORDER FOR EXAMINATION OUT OF VICTORIA
[heading as in originating process]
[other particulars as in Form 60C]
THE COURT ORDERS THAT:
1. [name and address or description] be appointed as examiner for the
purpose of taking the examination, cross-examination and re-
examination orally on oath or affirmation of a witness [name] of
[address out of Victoria] a witness on the part of at
in [name of country].
2. The examiner be at liberty to invite the attendance of* the witness and
the production of documents, but shall not exercise any compulsory
powers, and that otherwise the examination be taken in accordance with
the procedure of Victoria.
3. The solicitors give to the
solicitors day's notice of the date on which they propose to
send out this order to for execution, and
that days after the service of such notice the solicitors for the
plaintiff and defendant respectively exchange the names of their agents
at to whom notice relating to the examination of the said
witness may be sent.
4. days before the examination of the said witness notice of
such examination be given by the agent to the party on whose behalf the
witness is to be examined to the agent of the other party, unless such
notice be dispensed with.
5. The depositions when taken, together with any documents referred to
therein, or certified copies of such documents, or of extracts therefrom,
be sent by the examiner, under seal, to the Registrar of the County Court
of Victoria, William Street, Melbourne, on or before , 19
or such further day as may be ordered, there to be filed in the Registrar's
office.
6. The trial of the proceeding be stayed until the depositions are filed or
further order.
Form 41B
-- 430 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
400
7. The costs of this application and the examination be costs in the
proceeding.
*[If any Convention which applies requires that the invitation or notice to the
witness shall expressly state that no compulsory powers may be exercised,
this shall be done.]
_______________
Form 41B
-- 431 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
401
RULE 41A.02
FORM 41AA
NOTICE OF APPLICATION UNDER SECTION 42E(1) OF
THE EVIDENCE ACT 1958
[heading as in originating process]
PART 1—PARTICULARS OF APPLICATION
I, [name of applicant]
of [address of applicant or firm of solicitor for applicant]
hereby request an *audio visual/*audio link in accordance with the following
details—
1. *Audio visual/*Audio link—
From [originating city/town]
To [receiving city/town]
2. Type of hearing—[e.g. *Hearing/*Practice Court Hearing/*Directions
Hearing/*Taxation of Costs/*Other]
3. Number of persons to appear before, or give evidence by *audio
visual/*audio link—
4. Suggested time (if any) for link—
5. Estimate of duration of link—
6. Is this application being made with the consent of the parties to the
proceeding?—
7. If the answer to question 6 is No, what parties have not given
consent?—
8. If a hearing date has been fixed, what is the date of the hearing?—
I hereby undertake to pay, in the first instance, the appropriate amount
prescribed by the regulations under section 42H(1) of the Act.
Date—
[Signature]
Form 41AA
-- 432 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
402
PART 2—PARTICULARS OF HEARING
(to be completed by the Registrar)
The application will be heard before the Judge in the Court, [or the
Master in the Court] County Court, William Street, Melbourne on
[e.g. 20 June, 19 ] at a.m. [or p.m.] or so soon afterwards as the
business of the Court allows.
FILED [e.g. 15 June 19 ].
*strike out as appropriate.
_______________
Form 41AA
-- 433 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
403
FORM 41C
* * * * *
_______________
FORM 41D
* * * * *
_______________
Form 41C
-- 434 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
404
RULE 42.02(2)
FORM 42A
SUBPOENA TO GIVE EVIDENCE
[heading as in originating process]
To [name]
of [address]:
THE COURT ORDERS that you attend for the purpose of giving evidence—
(a) before the Court [or as the case requires];
(b) at [address of Court or other place];
(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a
later day is given to you by the [identify party by whom subpoena
is filed] or by the solicitor for that party, the later day, and until
you are excused from further attending.
or
*at 10.30 a.m. [or as the case requires] on a day during the sittings beginning
on [date], notice of which day will be given to you by the [identify party by
whom subpoena filed] or by the solicitor for that party and until you are
excused from further attending, or on a day and at a time during any later
sittings in which this proceeding is heard, notice of which day and time is so
given, and until you are excused from further attending.
FILED [e.g. 15 June, 19 ].
Registrar
Filed by the [identify party]
NOTE THAT—
1. if you do not comply with this subpoena you may be arrested;
2. any question concerning this subpoena should be addressed not to the
Court but to the solicitor for the party who filed the subpoena.
*[Strike out as appropriate]
_______________
Form 42A
-- 435 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
405
RULE 42.02(2)
FORM 42B
SUBPOENA FOR PRODUCTION
(SUBPOENA TO A NATURAL PERSON)
[heading as in originating process]
To [name]
of [address]:
THE COURT ORDERS that you attend and produce this subpoena and the
documents and things described in the schedule—
(a) before the Court [or as the case requires];
(b) at [address of Court or other place];
(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a
later day is given to you by the [identify party by whom subpoena
is filed] or by the solicitor for that party, the later day, and until
you are excused from further attending.
or
*at 10.30 a.m. [or as the case requires] on a day during the sittings beginning
on [date], notice of which day will be given to you by the [identify party by
whom subpoena filed] or by the solicitor for that party and until you are
excused from further attending, or on a day and at a time during any later
sittings in which this proceeding is heard, notice of which day and time is so
given, and until you are excused from further attending.
Instead of so attending, you may produce this subpoena and the documents
and things described in the schedule to the Registrar of the County Court,
William Street, Melbourne, by hand or by post, in either case so that he
receives them not later than two days (excluding Saturdays, Sundays or other
holidays) before the first date on which you are required to attend. [Delete
this paragraph when production is required otherwise than to the County
Court or any officer of the Court].
SCHEDULE
Form 42B
-- 436 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
406
[description of documents and things]
FILED [e.g. 15 June, 19 ].
Registrar
Filed by the [identify party].
NOTE THAT—
(1) if you do not comply with this subpoena you may be arrested;
(2) documents and things produced by you in accordance with this
subpoena may be returned by post to you at your address shown on this
subpoena but you may in writing on or attached to this subpoena request
that they be posted to you at another address given by you or that you be
informed when they are available to be collected by you;
(3) any question concerning this subpoena should be directed not to the
Court but to the solicitor for the party who filed the subpoena.
*[Strike out as appropriate]
_______________
Form 42B
-- 437 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
407
RULE 42.02(2)
FORM 42C
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
[heading as in originating process]
To [name]
of [address]:
THE COURT ORDERS that you attend and produce this subpoena and the
documents and things described in the schedule and attend for the purpose of
giving evidence—
(a) before the Court [or as the case requires];
(b) at [address of Court or other place];
(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a
later day is given to you by the [identify party by whom subpoena
is filed] or by the solicitor for that party, the later day, and until
you are excused from further attending.
or
*at 10.30 a.m. [or as the case requires] on a day during the sittings beginning
on [date], notice of which day will be given to you by the [identify party by
whom subpoena filed] or by the solicitor for that party and until you are
excused from further attending, or on a day and at a time during any later
sittings in which this proceeding is heard, notice of which day and time is so
given, and until you are excused from further attending.
Instead of attending to produce the documents and things described in the
schedule, you may produce them and this subpoena to the Registrar of the
County Court, William Street, Melbourne, by hand or by post, in either case
so that he receives them not later than two days (excluding Saturdays,
Sundays or other holidays) before the first date on which you are required to
attend. Note, however, that if you produce the documents and things to the
Registrar you will still be required to attend to give evidence as directed
above. [Delete this paragraph when production is required otherwise than to
the County Court or any officer of the Court].
SCHEDULE
Form 42C
-- 438 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
408
[description of documents and things]
FILED [e.g. 15 June, 19 ].
Registrar
Filed by the [identify party].
NOTE THAT—
(1) if you do not comply with this subpoena you may be arrested;
(2) documents and things produced by you in accordance with this
subpoena may be returned by post to you at your address shown on this
subpoena but you may in writing on or attached to this subpoena request
that they be posted to you at another address given by you or that you be
informed when they are available to be collected by you;
(3) any question concerning this subpoena should be directed not to the
Court but to the solicitor for the party who filed the subpoena.
*[Strike out as appropriate]
_______________
Form 42C
-- 439 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
409
RULE 42.02(2)
FORM 42D
SUBPOENA FOR PRODUCTION
[Subpoena to a corporation for production and for its proper officer to
answer questions concerning possession, etc. of documents and things]
[heading as in originating process]
To [name of corporation]
of [address]
THE COURT ORDERS that—
1. [name of corporation], called "the corporation", shall produce this
subpoena and the documents and things described in the schedule by
causing its proper officer to attend and produce them—
(a) before the Court [or as the case requires];
(b) at [address of Court or other place];
(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice
of a later day is given to you by the [identify party by whom
subpoena is filed] or by the solicitor for that party, the later
day, and until you are excused from further attending.
or
*at 10.30 a.m. [or as the case requires] on a day during the sittings
beginning on [date], notice of which day will be given to you by the
[identify party by whom subpoena filed] or by the solicitor for that
party and until you are excused from further attending, or on a day
and at a time during any later sittings in which this proceeding is
heard, notice of which day and time is so given, and until you are
excused from further attending.
Instead of so attending, the corporation may produce this subpoena
and the documents and things described in the schedule to the
Registrar of the County Court, William Street, Melbourne, by hand
or by post, in either case so that he receives them not later than two
days (excluding Saturdays, Sundays or other holidays) before the
first date on which the officer is required to attend. [Delete this
paragraph when production is required otherwise than to the
County Court or any officer of the Court.]
2. The officer who is to attend shall make enquiries for the purpose of
answering, and, on attending, shall answer, such questions as the
Form 42D
-- 440 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
410
Court requires him to answer concerning the possession or custody
of those documents and things.
SCHEDULE
[description of documents and things]
FILED [e.g. 15 June, 19 ].
Registrar
Filed by the [identify party].
NOTE THAT—
(1) if the corporation fails to comply with this subpoena, the subpoena
may be enforced by arrest of an officer of the corporation;
(2) documents and things produced by the corporation in accordance
with this subpoena may be returned by post to it at its address shown
on this subpoena but it may in writing on or attached to this
subpoena request that they be posted to it at another address given by
it or that it be informed when they are available to be collected by it;
(3) any questions concerning this subpoena should be directed not to the
Court but to the solicitor for the party who filed the subpoena.
*[Strike out as appropriate]
_______________
Form 42D
-- 441 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
411
RULE 43.06
FORM 43A
CERTIFICATE IDENTIFYING EXHIBIT
[heading as in affidavit]
This is the exhibit marked [e.g. "ABC1"] now produced and shown to
[identify deponent] at the time of swearing his affidavit on [date].
[Signature of the person taking affidavit]
[state distinguishing mark of exhibit
and briefly and specifically describe exhibit:
e.g. Exhibit "ABC1"
Letter BHP to CRA 15/6/09]*
*print distinguishing mark and description in bold type and in a font size not less
than 20 points in lower right hand corner of the page.
_______________
Form 43A
-- 442 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
412
RULE 45.04(3)
FORM 45A
SUMMONS ON ORIGINATING MOTION
[heading as in originating process]
To: [identify each party or other person to whom summons is addressed and
state address of each person not a party.]
You are summoned to attend before the Court on the hearing of an application
by the plaintiff for judgment or an order in respect of the relief or remedy
sought in the originating motion as follows: [describe the judgment or order
sought].
The application will be heard before the Master in the Court,
William Street, Melbourne, on [e.g. 20 June, 19 ] at a.m.
[or p.m.] or so soon afterwards as the business of the Court allows.
The Master may, as appropriate—
(a) where he has authority to give the judgment or make the order
sought by the plaintiff, hear and determine the application or refer
it to another Master for hearing and determination;
(b) by consent of the defendant, give the judgment or make the order;
(c) refer the application to a Judge for hearing and determination;
(d) place the proceeding in the list of cases for trial and give
directions for the filing and service of affidavits or otherwise.
FILED [e.g. 15 June, 19 ].
This summons was filed by of solicitor
for the plaintiff.
_______________
Form 45A
-- 443 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
413
RULE 46.04(1)
FORM 46A
SUMMONS
[heading as in originating process]
To: [identify each party or other person to whom summons is addressed and
state address of each person not a party].
You are summoned to attend before the Court on the hearing
of an application by the for [describe the order sought].
The application will be heard before the Judge in the Court [or
the Master in the Court] William Street, Melbourne, on
[e.g. 20 June, 19 ] at a.m. [or p.m.] or so soon afterwards as the
business of the Court allows.
FILED [e.g. 15 June, 19 ].
This summons was filed by of , solicitor for
the [identify party].
_______________
RULE 48.02
FORM 48A
NOTICE OF TRIAL
[heading as in originating process]
To the [identify party]
TAKE NOTICE of trial of this proceeding [or of trial of the question in this
proceeding ordered to be tried, [or of the assessment of damages in this
proceeding] by a Judge [and jury of six] [or by a Master or as the case may
be] for the next sitting at .
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
Form 46A
-- 444 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
414
RULE 48.04
FORM 48B
CERTIFICATE OF READINESS FOR TRIAL
[heading as in originating process]
NOTE:
(1) Section A of the Plaintiff's Part must be completed by the plaintiff
or his solicitor in all cases.
Section B of the Plaintiff's Part must also be completed by the
plaintiff or his solicitor where the plaintiff's claim is for damages
for or arising out of death or bodily injury.
Section A of the Defendant's Part must be completed by the
defendant or his solicitor in all cases.
Section B of the Defendant's Part must also be completed by the
defendant or his solicitor where the plaintiff's claim is for damages
for or arising out of death or bodily injury.
The General Part must be completed by the plaintiff or his
solicitor and the defendant or his solicitor in all cases.
(2) Each defendant separately represented must complete a
Defendant's Part.
(3) The party or solicitor preparing a certificate of readiness must
sign and date each part relating to that party before presenting the
certificate of readiness to any other party or his solicitor for
signature.
_______________
PLAINTIFF'S PART
SECTION A
I/WE, the undersigned, certify as follows:
1. Pleadings are closed and the plaintiff does not propose to apply
before trial for any amendment.
2. All particulars of the defence that have been requested have been
served and it is not proposed to seek further particulars of the
defence.
Form 48B
-- 445 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
415
3. The defendant has served answers to the plaintiff's interrogatories
and it is not proposed to seek further answers. [Either 3 or 4 must
be deleted.]
4. The plaintiff does not intend to interrogate.
5. Such inspection as is desired of the documents listed in the
defendant's affidavit of documents has been had and it is not
proposed to seek further discovery or inspection from the
defendant. [Either 5 or 6 must be deleted].
6. The plaintiff does not intend to serve a notice for discovery.
Dated [e.g. 15 June, 19 ].
[Signed]
SECTION B
I/WE, the undersigned, certify as follows:
1. Any offer of settlement made by the defendant whether by offer in
writing served on the plaintiff in accordance with Part 2 of
Order 26 or otherwise has been discussed with the plaintiff and
instructions have been given by the plaintiff not to accept it.
2. Instructions have been obtained from the plaintiff as to whether
any offer of settlement should be made and any offer which the
plaintiff has authorised has been communicated to the defendant or
been made the subject of an offer in writing served on the
defendant in accordance with Part 2 or 3 of Order 26.
3. Particulars of special damage (including particulars of loss or
earnings, loss of earning capacity, or both) to a date not more than
14 days prior to the date of service of this certificate on the
defendant have been served on the defendant.
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
DEFENDANT'S PART
SECTION A
I/WE, the undersigned, certify as follows:
1. Pleadings are closed and the defendant does not propose to apply
before trial for any amendment.
Form 48B
-- 446 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
416
2. All particulars of the statement of claim and reply (if any) that have
been requested have been served and it is not proposed to seek
further particulars of the statement of claim or reply.
3. The plaintiff has served answers to the defendant's interrogatories
and it is not proposed to seek further answers. [Either 3 or 4 must
be deleted.]
4. The defendant does not intend to interrogate.
5. Such inspection as is desired of the documents listed in the
plaintiff's affidavit of documents has been had and it is not
proposed to seek further discovery or inspection from the plaintiff.
[Either 5 or 6 must be deleted.]
6. The defendant does not intend to serve a notice for discovery.
7. Third party proceedings have not been instituted by any of the
defendants. [Either 7 or 8 must be deleted.]
8. Third party proceedings have been instituted by the defendant and
all interlocutory matters therein completed.
Dated [e.g. 20 June, 19 ].
[Signed]
SECTION B
I/WE, the undersigned, certify as follows:
1. Any offer of settlement made by the plaintiff whether by offer in
writing served on the defendant in accordance with Part 2 or 3 of
Order 26 or otherwise has been discussed with the defendant and
instructions have been given by the defendant not to accept it.
2. Instructions have been obtained from the defendant as to whether
any offer of settlement should be made and any offer of settlement
which the defendant has authorised has been communicated to the
plaintiff or been made the subject of an offer in writing served on
the plaintiff in accordance with Part 2 of Order 26.
Dated [e.g. 20 June, 19 ].
[Signed]
GENERAL PART
1. This proceeding is defended by [names of parties defending].
or
This proceeding is undefended.
Form 48B
-- 447 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
417
2. The parties to this proceeding are ready to proceed with the trial
upon having not less than 14 days' notice.
3. This proceeding is to be set down for trial at [insert place of trial].
4. The number of days the trial can reasonably be expected to occupy
is in the opinion of—
(a) the plaintiff [number of days]
(b) the defendant [number of days]
(c) the third party [number of days]
5. The third party confirms the statements in the Defendant's Part,
Section A, paragraph 8.
Dated , 19 .
Solicitor for the Plaintiff
Solicitor for the Defendant
Solicitor for the Third Party
_______________
Form 48B
-- 448 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
418
RULE 48.07
FORM 48C
INDORSEMENT ON CERTIFICATE OF READINESS FOR
TRIAL
[heading as in originating process]
IF this certificate is not completed by you and returned to the
within 21 days after it is served on you for completion, this proceeding will
be set down for trial without a certificate completed by you and will remain
set down unless the Registrar or the Court otherwise directs.
TO the [identify party] and to his solicitor—
_______________
RULE 53.07(2)
FORM 53A
JUDGMENT IN SUMMARY PROCEEDING FOR RECOVERY
OF LAND
[heading as in Form 5E]
[other particulars as in Form 60A]
THE JUDGMENT OF THE COURT IS THAT:
The plaintiff recover possession of the land described in the originating
motion as [description of land*] [where there is a defendant and that the
defendant pay the plaintiff $ costs] [or pay the plaintiff's costs to be
assessed].
[other particulars as in Form 60D]
*[Note: The land should be so described as to be physically identifiable.]
_______________
Form 48C
-- 449 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
419
RULE 53.08(3)
FORM 53B
WARRANT OF POSSESSION IN SUMMARY PROCEEDING
FOR RECOVERY OF LAND
[heading as in Form 5E]
TO THE SHERIFF:
In respect of the judgment dated [e.g. 20 April, 19 ] by which it was
adjudged that the plaintiff recover possession of the land described in the
schedule [where there is a defendant and that the defendant pay the plaintiff $
costs or the plaintiff's costs, which have been taxed at $ ]. Enter The
Land and cause the plaintiff to have possession of it [where there is a
defendant, and levy on the property of the defendant which is authorised by
law to be taken in execution for [continue as in Form 68A as for a levy for
costs only] And Indorse [continue as in Form 68A].
SCHEDULE
[Describe land as in judgment]
Issued [e.g. 15 June, 19 ].
By the Court
Registrar
Issued at the request of the plaintiff.
[where there is a defendant] The last known address of the defendant
[continue as in Form 68A].
_______________
FORM 57A
* * * * *
_______________
Form 53B
-- 450 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
420
RULE 59.05(4)
FORM 59A
NOTICE OF JUDGMENT
[heading as in originating process]
To [name]
of [address]
TAKE NOTICE that—
1. A judgment [or An order] of the Court was given [or made] on
[e.g. 20 April, 19 ] by which it was [state substance of judgment or
order].
2. From the time of service of this notice you [or some other person,
naming him, as the case may be] will be bound by the judgment [or
order] to the same extent as you [or he] would have been if you [or he]
were a party on the day the judgment [or order] was given [or made].
3. Without filing an appearance, you [or the other person] may apply by
summons filed within 28 days after service of this notice for an order
that the judgment [or order] be set aside or varied.
4. After filing an appearance, you [or the other person] may attend on the
taking of the account or the making of the inquiry under the judgment
[or order].
Dated [e.g. 15 June, 19 ].
[Signed]
_______________
Form 59A
-- 451 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
421
ORDER 60A
FORM 60A
GENERAL FORM OF JUDGMENT GIVEN
[heading as in originating process]
JUDGMENT
JUDGE [or MASTER]: [e.g. His Honour Judge or
Master ]
DATE GIVEN: [e.g. 20 June, 19 ].
ORIGINATING PROCESS: [e.g. Writ] [state whether by writ, by originating
motion or otherwise]
HOW OBTAINED: [e.g. By plaintiff's summons dated 15 June, 19 ]
[state whether on application by or without summons before trial with date of
summons or application, or at a trial with date of commencement of trial]
ATTENDANCE: [set out attendance or non-attendance of any person
entitled to attend and, if attending, whether by counsel or solicitor]
OTHER MATTERS: [state any finding of jurisdictional fact, undertaking of
party or other matter as directed by Court]
THE JUDGMENT OF THE COURT IS THAT:
1.
2. [terms of judgment]
3.
DATE AUTHENTICATED:
Judge [or Master]
_______________
Form 60A
-- 452 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
422
ORDER 60A
FORM 60B
GENERAL FORM OF JUDGMENT ENTERED
[heading as in originating process]
JUDGMENT
DATE ENTERED:
ORIGINATING PROCESS: [state whether by writ, by originating motion or
otherwise]
HOW OBTAINED: [state whether in default of appearance or defence or
otherwise]
THE JUDGMENT OF THE COURT IS THAT:
1.
2. [terms of judgment]
3.
_______________
Form 60B
-- 453 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
423
ORDER 60A
Registrar
FORM 60C
GENERAL FORM OF ORDER
[heading as in originating process]
ORDER
JUDGE [or MASTER]:
DATE MADE:
ORIGINATING PROCESS: [state whether by writ, by originating motion or
otherwise]
HOW OBTAINED: [state whether on application by or without summons,
identifying party filing summons or, if no summons, making application, and
whether application made before trial with date of summons or application,
or at trial with date of commencement of trial]
ATTENDANCE: [set out attendance or non-attendance of any person
entitled to attend and, if attending, whether by counsel or solicitor]
OTHER MATTERS: [state any finding of jurisdictional fact, undertaking of
party or other matter as directed by Court]
THE COURT ORDERS THAT:
1.
2. [terms of order]
DATE AUTHENTICATED:
Judge [or Master]
_______________
Form 60C
-- 454 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
424
ORDER 60A
FORM 60D
JUDGMENT AT TRIAL BY JUDGE WITHOUT A JURY
[heading as in originating process]
JUDGE:
DATE GIVEN:
ORIGINATING PROCESS:
HOW OBTAINED: Trial without a jury, commenced on [e.g. 15 June,
19 ].
ATTENDANCE:
OTHER MATTERS:
THE JUDGMENT OF THE COURT IS THAT:
[e.g.]
The defendant by himself his servants and agents be perpetually restrained
from [as the case may be].
or
There be judgment for the defendant together with costs to be taxed.
DATE AUTHENTICATED:
Judge
_______________
Form 60D
-- 455 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
425
ORDER 60A
FORM 60E
JUDGMENT AT TRIAL BY JUDGE WITH A JURY
[heading as in originating process]
JUDGE:
DATE GIVEN:
ORIGINATING PROCESS:
HOW OBTAINED: Trial without a jury, commenced on ,
19 ,
ATTENDANCE:
OTHER MATTERS: [set out findings of jury]
THE JUDGMENT OF THE COURT IS THAT:
[e.g.]
The defendant pay the plaintiff $ and costs to be taxed.
or
There be judgment for the defendant together with costs to be taxed.
DATE AUTHENTICATED:
Judge
_______________
Form 60E
-- 456 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
426
ORDER 60A
FORM 60F
JUDGMENT OR ORDER AT TRIAL OF PRELIMINARY
QUESTION
[heading as in originating process]
JUDGE:
DATE GIVEN [or MADE]:
ORIGINATING PROCESS:
HOW OBTAINED: Trial of question pursuant to order [identify order],
commenced on
ATTENDANCE:
OTHER MATTERS: The Court finds that:
[state findings of Court]
THE JUDGMENT OF THE COURT IS THAT:
[e.g.]
The defendant pay the plaintiff $ and costs to be taxed.
or
There be judgment for the defendant together with costs to be taxed.
[or THE COURT ORDERS THAT]:
[e.g.]
The proceeding be set down for trial at [or as the case may be]
DATE AUTHENTICATED:
Judge
_______________
Form 60F
-- 457 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
427
ORDER 60A
FORM 60G
DEFAULT JUDGMENT FOR DEBT
[heading as in originating process]
DATE ENTERED:
ORIGINATING PROCESS:
HOW OBTAINED: In default of appearance [or defence].
THE JUDGMENT OF THE COURT IS THAT:
[e.g.] The defendant pay the plaintiff $ and $ costs [or costs
to be taxed].
Registrar
_______________
ORDER 60A
FORM 60H
DEFAULT JUDGMENT FOR RECOVERY OF LAND
[heading as in originating process]
DATE ENTERED:
ORIGINATING PROCESS:
HOW OBTAINED: In default of appearance [or defence].
THE JUDGMENT OF THE COURT IS THAT:
The plaintiff recover possession of the land described in the indorsement of
claim on the writ as [description of land*] and that the defendant pay the
plaintiff $ costs [or pay the plaintiff's costs to be taxed].
Registrar
*[Note: The land should be so described as to be physically identifiable.]
_______________
Form 60G
-- 458 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
428
ORDER 60A
FORM 60J
INTERLOCUTORY OR INTERLOCUTORY AND FINAL
JUDGMENT FOR DAMAGES OR VALUE IN DEFAULT
[heading as in originating process]
DATE INTERLOCUTORY JUDGMENT ENTERED:
ORIGINATING PROCESS:
HOW OBTAINED: In default of appearance [or defence].
THE JUDGMENT OF THE COURT IS THAT:
The defendant pay the plaintiff damages to be assessed and $ costs
[or costs to be taxed].
JUDGE [or MASTER]
DATE FINAL JUDGMENT GIVEN:
HOW OBTAINED: Assessment of damages pursuant to interlocutory
judgment.
ATTENDANCE:
THE JUDGMENT OF THE COURT IS THAT:
The defendant pay the plaintiff $ , the amount of the assessed damages
[or the assessed value of $ ] and costs to be taxed [or as the case may
be].
DATE AUTHENTICATED:
Judge [or Master]
[Note: This form is a combined form of interlocutory and final judgment.
The plaintiff may at his option enter interlocutory judgment by omitting the
words below the line in the form and obtain the authentication of a separate
final judgment in Form 60K].
_______________
Form 60J
-- 459 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
429
ORDER 60A
FORM 60K
FINAL JUDGMENT FOR DAMAGES OR VALUE IN
DEFAULT
[heading as in originating process]
JUDGE [or MASTER]
DATE FINAL JUDGMENT GIVEN:
ORIGINATING PROCESS:
HOW OBTAINED: Assessment of damages [or value] pursuant to
interlocutory judgment entered on in default of appearance [or
defence].
ATTENDANCE:
THE JUDGMENT OF THE COURT IS THAT:
The defendant pay the plaintiff $ , the amount of the assessed damages
[or the assessed value of $ ] and costs to be taxed [or as the case may
be].
DATE AUTHENTICATED:
Judge [or Master]
_______________
Form 60K
-- 460 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
430
ORDER 60A
FORM 60L
INTERLOCUTORY OR INTERLOCUTORY AND FINAL
JUDGMENT FOR DETENTION OF GOODS IN DEFAULT
[heading as in originating process]
DATE INTERLOCUTORY JUDGMENT ENTERED:
ORIGINATING PROCESS:
HOW OBTAINED: In default of appearance [or defence].
THE JUDGMENT OF THE COURT IS THAT:
The defendant deliver to the plaintiff the goods described in the indorsement
of claim on the writ as [description of goods] or pay the plaintiff the value of
the goods to be assessed [and also damages for their detention to be assessed]
and $ costs [or costs to be taxed].
or
The defendant pay the plaintiff the value of the goods described in the
indorsement of claim on the writ to be assessed [and also damages for their
detention to be assessed] and $ costs [or costs to be taxed].
JUDGE [or MASTER]
DATE FINAL JUDGMENT GIVEN:
HOW OBTAINED: Assessment of [complete appropriately] pursuant to
interlocutory judgment.
ATTENDANCE:
THE JUDGMENT OF THE COURT IS THAT:
The defendant pay the plaintiff $ , the amount of the assessed value of $
[and the assessed damages or the assessed damages] and costs to be taxed [or
as the case may be].
DATE AUTHENTICATED:
Judge [or Master]
[Note: This form is a combined form of interlocutory and final judgment.
The plaintiff may at his option enter interlocutory judgment by omitting the
words below the line in the form and obtain the authentication of a separate
final judgment in Form 60K].
_______________
Form 60L
-- 461 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
431
RULE 61.02(1)(a)
FORM 61A
APPLICATION TO MASTER FOR ORDER FOR PAYMENT
OF JUDGMENT DEBT BY INSTALMENTS
[heading as in originating process]
This application is made to a Master by the [judgment creditor or judgment
debtor] of [usual place of residence or of business or registered office] with
respect to the judgment for the [judgment creditor] against the [judgment
debtor] in the County Court dated the [e.g. 20 June, 19 ] for $ and
costs.
$ is now owing under the judgment, being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest [if capable of calculation where
the judgment debtor applies].
The [judgment creditor or judgment debtor] hereby applies for an order for
the payment by instalments of the sum owing under the judgment as follows:
[state amount of each instalment, weekly, monthly or other period for
payment, number of instalments, date of payment of first and last instalment,
name and address of person to be paid].
The grounds on which the application is made are [complete appropriately].
The address for service of the [judgment creditor or judgment debtor]
is
The usual or last known place of residence or of business or registered office
of the [judgment debtor or judgment creditor] is
Dated , 19 .
Signature of Applicant or his Solicitor
[Note that where the application is made by a judgment debtor, the judgment
debtor must file an affidavit of his financial situation which gives the
information required by Form 72C.]
_______________
Form 61A
-- 462 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
432
RULE 61.02(1)(b)
FORM 61B
APPLICATION TO MASTER FOR ORDER IN
SUBSTITUTION FOR ORDER FOR PAYMENT OF
JUDGMENT DEBT BY INSTALMENTS
[heading as in originating process]
This application is made to a Master by the [judgment creditor or judgment
debtor] of [usual place of residence or of business or registered office] with
respect to the judgment for the [judgment creditor] against the [judgment
debtor] in the County Court dated [e.g. 20 June, 19 ] for $ and costs.
On , 19 an order was made that the [judgment debtor] pay $ ,
the sum then owing under the judgment, by instalments as follows: [insert
terms of order]. The [judgment debtor] has duly paid the instalments in
accordance with the order [or has failed to pay the instalments which under
the order were due on and the instalments are now in arrears in the
sum of $ ].
$ is now owing under the judgment, being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest [if capable of calculation where
the judgment debtor applies].
The [judgment creditor or judgment debtor] hereby applies for an order in
substitution for the order made on , 19 namely, for an order
for the payment of $ , the sum owing under the judgment, by instalments
as follows: [state amount of each instalment, weekly, monthly or other period
for payment, number of instalments, date of payment of first and last
instalment, name and address of person to be paid].
The grounds on which the application is made are:
[include particulars of any material change in the circumstances of the
judgment debtor since the date of the order].
The address for service of the [judgment creditor or judgment debtor] is .
The usual or last known place of residence or of business or registered office
of the [judgment debtor or judgment creditor] is
Form 61B
-- 463 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
433
Date , 19 .
Signature of Applicant or his Solicitor
[Note that where the application is made by a judgment debtor, the judgment
debtor must file an affidavit of his financial situation which gives the
information required by Form 72C.]
_______________
Form 61B
-- 464 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
434
RULE 61.02(2)
FORM 61C
APPLICATION TO THE COURT FOR VARIATION OR
CANCELLATION OR ORDER FOR PAYMENT OF
JUDGMENT DEBT BY INSTALMENTS
[heading as in originating process]
This application is made to the Court by the [judgment creditor or judgment
debtor] of [usual place of residence or of business or registered office] with
respect to the judgment for the [judgment creditor] against the [judgment
debtor] in the County Court dated [e.g. 20 June, 19 ] for $ and costs.
On , 19 an order was made that the [judgment debtor] pay $ the
sum then owing under the judgment, by instalments as follows: [insert terms
of order]. The [judgment debtor] has duly paid the instalments in accordance
with the order [or has failed to pay the instalments which under the order
were due on and the instalments are now in arrears in the sum of $
].
$ is now owing under the judgment, being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest [if capable of calculation where
the judgment debtor applies].
The [judgment creditor or judgment debtor] hereby applies for an order that
the order made on , 19 be varied as follows: [give
particulars of variation sought stating amount of each instalment, weekly,
monthly or other period for payment, number of instalments, date of payment
of first and last instalment, name and address of person to be paid under the
order as varied] [or be cancelled].
The grounds on which the application is made are:
[Where the judgment debtor applies, give particulars of any material change
in the circumstances of the judgment debtor since the date of the order.]
[Where the judgment creditor applies, give particulars of any allegation that
there has been a substantial increase in the property or means of the
judgment debtor or that any information given by the judgment debtor in
support of the application for the order for the payment of the judgment debt
by instalments or in any agreement for the payment of the judgment debt by
instalments was inaccurate.]
Form 61C
-- 465 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
435
TAKE NOTICE that the application will be heard before the Judge in
the Court, County Court, William Street, Melbourne,
on , 19 at a.m. [or p.m.] or so soon afterwards as the
business of the Court allows.
The address for service of the [judgment creditor or judgment debtor]
is .
The usual or last known place of residence or of business or registered office
of the [judgment debtor or judgment creditor] is .
Date , 19 .
Signature of Applicant or his Solicitor
[Note that where the application is made by a judgment debtor, the judgment
debtor must file an affidavit of his financial situation which gives the
information required by Form 72C.]
_______________
Form 61C
-- 466 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
436
RULE 61.02(5)
FORM 61D
ORDER RELATING TO PAYMENT OF JUDGMENT DEBT
BY INSTALMENTS
[heading as in originating process]
[follow form 60C except as below]
THE COURT ORDERS THAT:
The [judgment debtor] pay to the [judgment creditor] $ , being the sum
owing in respect of a judgment for the [judgment creditor] against the
[judgment debtor] dated [e.g. 20 June, 19 ] by instalments as follows:
[state amount of each instalment, weekly, monthly or other period for
payment, number of instalments, date of payment of first and last instalment,
name and address of person to be paid].
or
The following order be substituted for the order made on , 19
that the [judgment debtor] pay by instalments $ which was then
owing under a judgment for the [judgment creditor] against the [judgment
debtor] dated [e.g. 20 June, 19 ].
[complete appropriately]
or
The order made on , 19 that the [judgment debtor] pay by
instalments $ which was then owing under a judgment for the
[judgment creditor] against the [judgment debtor] dated [e.g. 20 June, 19 ]
be varied as follows:
[complete appropriately]
or
The order made on , 19 that the [judgment debtor] pay by
instalments $ which was then owing under a judgment for the
[judgment creditor] against the [judgment debtor] dated [e.g. 20 June, 19 ]
be cancelled [or be confirmed and the application dismissed].
_______________
Form 61D
-- 467 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
437
RULE 61.02(6)
FORM 61E
NOTICE OF ORDER OR REFUSAL OF ORDER BY MASTER
FOR PAYMENT OF JUDGMENT DEBT BY INSTALMENTS
[heading as in originating process]
To the [judgment creditor]
And to the [judgment debtor]
TAKE NOTICE that on , 19 I made an order on the application
of the [judgment creditor or judgment debtor] that the [judgment debtor] pay
to the [judgment creditor] $ , being the sum owing under a judgment
for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June,
19 ] by instalments as follows: [state amount of each instalment, weekly,
monthly or other period of payment, number of instalments, date of payment
of first and last instalment, name and address of person to be paid].
or
that on , 19 I refused an application by the [judgment creditor or
judgment debtor] for an order that the [judgment debtor] pay by instalments $
, being the sum owing under a judgment for the [judgment creditor] against
the [judgment debtor] dated [e.g. 20 June, 19 ].
Dated , 19 .
Master
Note: If you are dissatisfied with the order or refusal referred to in this Notice
you may file a Note of Objection with the Registrar within 14 days after
receipt by you of this Notice. The Notice of Objection should be in Form No.
79F of Chapter I of the Rules of the County Court.
_______________
Form 61E
-- 468 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
438
RULE 61.02(7)
FORM 61F
NOTICE OF OBJECTION
[heading as in originating process]
To Master
TAKE NOTICE that the [judgment creditor or judgment debtor] of [usual
place of residence or of business or registered office] hereby objects to the
order made on , 19 that [complete appropriately].
or
to the refusal on , 19 of an application by the [judgment
creditor or judgment debtor] for an order that [complete appropriately].
The address for service of the [judgment creditor or judgment debtor] is .
Dated , 19 .
[Signature of Objector or his Solicitor]
_______________
Form 61F
-- 469 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
439
RULE 61.02(9)
FORM 61G
NOTICE OF HEARING OF OBJECTION
[heading as in originating process]
To the [judgment creditor]
And to the [judgment debtor]
TAKE NOTICE that the [judgment creditor or judgment debtor] has filed
notice of objection to an order of Master made
on , 19 on the application of the [judgment
creditor or judgment debtor] that [complete appropriately] [or to the refusal
by Master on , 19 of an application
by the [judgment creditor or judgment debtor] for an order that [complete
appropriately].
The objection will be heard in the Court of the County Court,
William Street, Melbourne, on , 19 at a.m.
[or p.m.] or so soon afterwards as the business of the Court allows.
Dated , 19 .
Registrar
_______________
Form 61G
-- 470 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
440
RULE 61.02(10)
FORM 61H
NOTICE BY COURT RELATING TO PAYMENT OF
JUDGMENT DEBT BY INSTALMENTS
[heading as in originating process]
To the [judgment creditor]
And to the [judgment debtor]
This Notice is given in relation to the judgment dated [e.g. 20 June, 19 ] by
which it was adjudged that the [judgment debtor] pay to the [judgment
creditor] $ and costs.
[to be completed where the Registrar has refused to order the payment of the
judgment debt by instalments].
On , 19 the Registrar refused an application by the [judgment
creditor or judgment debtor] for an order that the [judgment debtor] pay the
sum owing under the judgment by instalments.
TAKE NOTICE that the [judgment creditor or judgment debtor] filed notice
of objection to the refusal of the Registrar and that on , 19
the Court made an order that the [judgment debtor] pay to the [judgment
creditor] $ , being the sum owing under the judgment by instalments as
follows: [state amount of each instalment, weekly, monthly or other period
for payment, number of instalments, date of payment of first and last
instalment, name and address of person to be paid] [or the Court refused to
make an order that the [judgment debtor] pay the sum owing under the
judgment by instalments].
[to be completed where the Registrar has ordered the payment of the
judgment debt by instalments].
On , 19 the Registrar, on the application of the [judgment creditor
or judgment debtor], made an order that the [judgment debtor] pay the sum
owing under the judgment by instalments as follows: [state amount of each
instalment, weekly or monthly or other period for payment, number of
instalments, date of payment of first and last instalment, name and address of
person to be paid].
Form 61H
-- 471 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
441
TAKE NOTICE that the [judgment creditor or judgment debtor] filed notice
of objection to the order of the Registrar and that on , 19 the
Court made an order that the order of the Registrar be confirmed [or varied as
follows: complete appropriately] [or cancelled].
Dated , 19 .
Registrar
_______________
Form 61H
-- 472 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
442
RULE 61.03(1)
FORM 61J
INSTALMENT AGREEMENT
[heading as in originating process]
1. This agreement is made between the [judgment creditor] of [usual place
of residence or of business or registered office] and the [judgment
debtor] of [usual place of residence or of business or registered office]
with respect to the judgment for the [judgment creditor] against the
[judgment debtor] in the County Court dated [e.g. 20 June, 19 ]
for $ and costs.
2. $ is owing under the judgment, being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest.
3. The parties hereby agree that the [judgment debtor] shall pay and the
[judgment creditor] will accept payment of $ , being the sum
owing under the judgment, by instalments as follows:
(a) Number of instalments;
(b) Amount of each instalment;
(c) Weekly, monthly or other period for payment;
(d) Date of payment of—
first instalment;
last instalment;
(e) Name and address of person to whom payment to be made.
4. The [judgment debtor] acknowledges that he is aware that upon filing of
this agreement an order will be made in the terms of this agreement and
that for a breach thereof he may be required to attend before the Court.
Dated the day of 19 .
Form 61J
-- 473 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
443
Signed by the judgment creditor:
Witness:
Signed by the judgment debtor:
Witness:
_______________
Form 61J
-- 474 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
444
RULE 61.03(4)
FORM 61K
ORDER FOR INSTALMENT PAYMENT OF JUDGMENT
DEBT AFTER AGREEMENT
[heading as in originating process]
[follow Form 60C except as below]
THE COURT ORDERS THAT:
In accordance with an agreement dated , 19 made between
the [judgment creditor] and the [judgment debtor] under the Judgment Debt
Recovery Act 1984 and filed the [judgment debtor] pay to the [judgment
creditor] $ , being the sum owing under a judgment for the
[judgment creditor] against the [judgment debtor] dated [e.g. 20 June, 19 ],
by instalments as follows: [state amount of each instalment, weekly, monthly
or other period for payment, number of instalments, date of payment of first
and last instalment, name and address of person to be paid].
_______________
Form 61K
-- 475 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
445
RULE 61.03(5)
FORM 61L
NOTICE OF ORDER FOR INSTALMENT PAYMENT OF
JUDGMENT DEBT AFTER AGREEMENT
[heading as in originating process]
To the [judgment creditor]
And to the [judgment debtor]
TAKE NOTICE that on , 19 in accordance with an
agreement dated , 19 made between the [judgment creditor]
and the [judgment debtor] under the Judgment Debt Recovery Act 1984 and
filed, I made an order that the [judgment debtor] pay to the [judgment
creditor] the sum of $ , being the sum owing under a judgment for the
[judgment creditor] against the [judgment debtor] dated [e.g. 20 June, 19 ]
by instalments as follows: [state amount of each instalment, weekly, monthly
or other period for payment, number of instalments, date of payment of first
and last instalment, name and address of person to be paid].
Dated , 19 .
Registrar
_______________
Form 61L
-- 476 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
446
RULE 61.04(1)
FORM 61M
SUMMONS TO ATTEND FOR ORAL EXAMINATION
(Judgment Debt Recovery Act 1984)
[heading as in originating process]
To the [judgment debtor]
You are summoned to attend before the Court to be orally examined as to any
matter related to your financial circumstances generally and your means and
ability to satisfy the judgment against you in favour of the [judgment creditor]
dated [e.g. 20 June, 19 ] under which judgment $ is owing.
Your examination is required for the purpose of your application [or an
application by the [judgment creditor] for an order that the sum of $ be
paid by instalments [or for an order that an order made on , 19 that
the [judgment debtor] pay by instalments $ , being the sum owing
under the judgment, be confirmed or varied or cancelled].
or
Your examination is required with respect to an allegation made by the
[judgment creditor] that you have defaulted in the payment of instalments
under an order made on , 19 that you pay by instalments $ ,
being the sum owing under a judgment against you in favour of the [judgment
creditor] dated [e.g. 20 June, 19 ].
You are required to produce to the Court on the examination the following
documents: [description of documents].
The examination will be held before the Judge [or the Master] at the County
Court, William Street, Melbourne, on , 19 at a.m. [or
p.m.] or so soon afterwards as the business of the Court allows.
Issued , 19 .
Registrar
Note: If you do not attend the Court as directed by this summons, the Court
may issue a warrant for your arrest.
_______________
Form 61M
-- 477 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
447
RULE 61.04(4)
FORM 61N
WARRANT OF APPREHENSION ON DISOBEDIENCE TO
SUMMONS
[heading as in originating process]
To all members of the Police Force of the State of Victoria.
Whereas [name of judgment debtor] of [address] has failed to attend before
the County Court at the time and place appointed by the summons issued
on , 19 to be examined concerning his financial
circumstances:
I do hereby authorise you to enter and search by day or by night any dwelling-
house, tenement, ship or place whatsoever [or the dwelling-house or tenement
or ship situated at ] wherein the said person is suspected
to be [or to be concealed or to be unlawfully detained] using all necessary
force for that purpose and if necessary to break any outer door or window and
to apprehend him and to bring him before the [continue as in Form 61M,
specifying the time and place as required by section 14(3) or 17(3)].
Issued , 19 .
Registrar
_______________
Form 61N
-- 478 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
448
RULE 61.04(6)
FORM 61P
NOTICE TO JUDGMENT CREDITOR OF SUMMONS OR
WARRANT TO JUDGMENT DEBTOR
[heading as in originating process]
To the [judgment creditor]
of [address]
TAKE NOTICE that on , 19 a summons was issued requiring
the [judgment debtor] to attend before the Court to be orally examined for the
purpose of an application by the [judgment creditor or judgment debtor] with
respect to the payment by instalments of the sum owing under the judgment
for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June,
19 ] for $ and costs.
or
TAKE NOTICE that on , 19 a warrant was issued for the
apprehension of the [judgment debtor] for his failure to comply with a
summons requiring him to attend before the Court on , 19 to be
orally examined for the purpose of an application by the [judgment creditor
or judgment debtor] with respect to the payment by instalments of the sum
owing under the judgment for the [judgment creditor] against the [judgment
debtor] dated [e.g. 20 June, 19 ] for $ and costs.
By the summons [or the warrant] the [judgment debtor] is required to attend
[or be brought] before the [continue as in Form 61M, specifying the time and
place as required by section 14(3) or 17(3)].
Dated , 19 .
Registrar
_______________
Form 61P
-- 479 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
449
RULE 61.05
FORM 61Q
NOTICE BY COURT OF CONFIRMATION, VARIATION OR
CANCELLATION OF JUDGMENT DEBT INSTALMENT
ORDER
[heading as in originating process]
To the [judgment creditor]
And to the [judgment debtor]
This Notice is given in relation to the default by the [judgment debtor] in the
payment of instalments under an order made on , 19 that
the [judgment debtor] pay by instalments $ being the sum owing under
a judgment for the [judgment creditor] against the [judgment debtor] dated
[e.g. 20 June, 19 ].
TAKE NOTICE that on , 19 , after examining the [judgment
debtor], the Court made an order that the said order for payment by
instalments be confirmed [or varied as follows: complete appropriately] [or
cancelled].
Dated , 19 .
Registrar
_______________
Form 61Q
-- 480 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
450
RULE 61.07(2)
FORM 61R
CERTIFICATE OF PAYMENT
[heading as in originating process]
To the Governor of the prison at
Whereas by virtue of an order for imprisonment made by the County Court on
, 19 [name of judgment debtor] of [address] was committed to prison at
: This is therefore to certify that the said [name of judgment debtor] has paid
the instalments of which default was made and is now entitled to be
discharged out of custody.
Dated , 19 .
Registrar
_______________
FORM 63A
* * * * *
_______________
Form 61R
-- 481 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
451
RULE 63A.38(3)
FORM 63AA
SUMMONS FOR TAXATION OF COSTS
[heading as in originating process]
To: [identify each party or other persons to whom summons is addressed and
state address of each person not a party].
You are summoned to attend before the Registrar, County Court, William
Street, Melbourne on , 19 at a.m. [or p.m.] on the
hearing of an application by [identify party] for the costs which are payable to
[that party] by [identify party liable for costs] under [identify the judgment,
etc. by which payable] to be taxed in accordance with the bill of costs served
on , 19 [or herewith].
Filed [e.g. 15 June, 19 ].
This summons was filed by of solicitor for the .
TAKE NOTICE that whether or not you attend on the day for hearing
referred to above the costs claimed in the bill may be allowed unless at least 7
days before that day you file and serve on the [identify party] a notice
identifying each item in the bill to which you object.
_______________
Form 63AA
-- 482 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
452
RULE 64A.03(1)
FORM 64AA
NOTICE OF APPEAL
TAKE NOTICE that the plaintiff (or defendant) intends to appeal to the
Court of Appeal against the judgment of His/Her Honour Judge
gives on [insert date e.g. 16 July 19 ].
The [identify party] appeals from [state whether the whole or part only and
which part of the decision is complained of].
The grounds on which [identify party] relies are [state specifically and
concisely the grounds of complaint in numbered paragraphs].
In place of the judgment or order from which the appeal is brought the
[identify party] seeks [state the judgment or order sought].
G.H.
Practitioner for [identify party]
TO: E.F., Practitioner for the [identify party].
_______________
RULE 64A.05
FORM 64AB
APPLICATION FOR COPY OF JUDGE'S NOTES
TO HIS/HER HONOUR JUDGE
The [identify party] having taken the steps necessary to enable prosecution of
an appeal under section 74 of the Act, from your judgment [or order] in the
above case tried at on [insert date e.g. 16 July 19 ], I
request to be furnished, for the purpose of such appeal, with a copy of your
notes taken at the hearing.
G.H.
Practitioner for [identify party]
_______________
Form 64AA
-- 483 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
453
RULE 68.08
FORM 68A
WARRANT OF SEIZURE AND SALE
[heading as in originating process]
TO THE SHERIFF:
In respect of the judgment [or order] dated [e.g. 20 June, 19 ] by which it
was adjudged [or ordered] that [judgment debtor] pay $ to [judgment
creditor] together with costs, which have been taxed at $ , [or by which
it was ordered that] [judgment debtor] pay certain costs to [judgment
creditor], which have been taxed at $ , Levy On The Property of
[judgment debtor] which is authorised by law to be taken in execution for—
(a) $ , being $ now due and payable exclusive of taxed
costs and $ for taxed costs; [or $ for taxed costs];
(b) being interest at the rate or rates fixed in accordance with law, on
[amount due and payable exclusive of taxed costs] from the date
of the judgment [or order];
(c) being interest at the rate or rates fixed in accordance with law, on
[amount of taxed costs] from , 19 [date of
taxation of costs];
(d) $ , being the costs of this [and of any prior] warrant; and
(e) your fees and expenses for this [and for any prior] warrant—
And Pay the amount so levied other than your fees and expenses to [judgment
creditor] or otherwise as the law requires And Indorse on this warrant
immediately after you have performed all your obligations under it a
statement of the date, time and place at which you have executed or attempted
to execute the warrant and the results of the execution and send a copy of the
statement to [judgment creditor].
Issued , 19 .
Registrar
Issued at the request of [judgment creditor].
The last known address of [judgment debtor] is and [if it is different
the address of the place where it is believed that property of [identify that
person] may be found is ].
_______________
Form 68A
-- 484 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
454
RULE 68.08
FORM 68B
WARRANT OF POSSESSION
[heading as in originating process]
TO THE SHERIFF:
In respect of the judgment dated [e.g. 20 June, 19 ] by which it was
adjudged that [identify party or other person for whom judgment was entered
or given] recover possession of the land described in the Schedule and that
[identify party or other person against whom judgment was entered or given]
pay [identify party or other person] costs [or pay $ to the [identify party
or other person together with costs], which have been taxed at $ ,
Enter The Land and cause [identify party or other person] to have possession
of it, and levy on property of [identify party or other person] which is
authorised by law to be taken in execution for [continue as in Form 68A
according to whether the levy is for a judgment amount and costs or for costs
only] And Indorse [continue as in Form 68A].
SCHEDULE
[Describe land as in judgment]
Issued , 19 .
Registrar
Issued at the request of [identify party or other person for whom judgment
was entered or given].
The last known address of [continue as in Form 68A].
_______________
Form 68B
-- 485 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
455
RULE 68.08
FORM 68C
WARRANT OF DELIVERY
[heading as originating process]
TO THE SHERIFF:
In respect of the judgment [or order] dated [e.g. 20 June, 19 ] by which it
was adjudged [or ordered] that [identify party or other person against whom
judgment was entered or given or other made] deliver the goods described in
the schedule to [identify party or other person for whom judgment was
entered or given or order made] and pay [$ damages for their
detention and] costs, which have been taxed at $ , Cause The Goods
To Be Delivered to [identify party or other person] And Levy on the property
of [identify party or other person] which is authorised by law to be taken in
execution [continue as in Form 68A according to whether the levy is for a
judgment amount and costs or for costs only] And Indorse [continue as in
Form 68A].
or
[where judgment or order is for delivery of goods or payment of their
assessed value with or without an award of damages for their detention:]
In respect of the judgment [or order] dated [e.g. 20 June, 19 ] by which it
was adjudged [or ordered] that [identify party or other person] do deliver the
goods described in the schedule to [identify party or other person] or pay $
their assessed value [and $ damages for their detention] and costs,
which have been taxed at $ , Cause The Goods To Be Delivered to
[identify party or other person] And Levy on the property of [identify party or
other person], which is authorised by law to be taken in execution—
(a) if you cannot cause the goods to be so delivered, for $
[assessed value of the goods];
(b) for $ , being $ [amount of damages] due and
payable exclusive of taxed costs and $ for taxed costs;
[or
(c) for $ for taxed costs:]
[continue as in Form 68A according to whether the levy is for interest on
damages and costs or on costs only] And Indorse [continue as in Form 68A].
SCHEDULE
[Describe goods as in judgment]
Form 68C
-- 486 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
456
Issued , 19 .
Registrar
Issued at the request of [identify party or other person].
The last known address of [continue as in Form 68A].
_______________
Form 68C
-- 487 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
457
RULE 69.06(3)
FORM 69A
ADVERTISEMENT OF SALE BY THE SHERIFF
On , 19 at a.m. [or p.m.] at (unless process if
stayed or satisfied) all the estate and interest (if any) of the [debtor] of
as [proprietor of an estate in fee simple in the land described in Certificate of
Title Volume Folio upon which is erected a brick factory known
as No. Street ].
[Registered mortgage No. affects the said estate and interest].
Terms: Cash only.
Sheriff
_______________
Form 69A
-- 488 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
458
RULE 71.06(2)
FORM 71A
GARNISHEE SUMMONS
Between A.B. Judgment creditor
and
C.D. Judgment debtor
and
X.Y. Garnishee
To [name of garnishee]
of [address].
You are summoned to attend before the Court on the hearing of an application
by the judgment creditor for an order that you, the garnishee, pay to the
judgment creditor the debt due from you to the judgment debtor [or the debt
which will become due from you to the judgment debtor
on , 19 ] [or pay to the judgment creditor in such amount or
amounts and at such time or times as the Court may direct the debt accruing
from you to the judgment debtor] [or the debt which will accrue from you to
the judgment debtor on 19 ] or so much thereof as may be
sufficient to satisfy a judgment recovered against the judgment debtor by the
judgment creditor in the Court on [e.g. 20 June, 19 ] for $ ,
interest accrued and accruing on the judgment and the costs of the judgment
creditor of the garnishee proceedings. The sum required to satisfy the
judgment, interest and costs is $ being—
(a) $ , the amount due and unpaid under the judgment;
(b) $ , the amount of interest accrued and accruing;
(c) $ , the costs of the garnishee proceedings.
The debt in respect of which this summons is filed and served is [identify the
debt in accordance with Rule 71.06(1)].
This summons is filed and served by order of the Court on , 19 .
The application will be heard on etc. [continue as in Form 46A] [insert the
following at the end of summons].
Form 71A
-- 489 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
459
TAKE NOTICE [where the debt is due or accruing] that upon service of this
summons the debt shall be bound in your hands to the extent of the whole
amount of the debt, namely, $ or to the extent of $ ] to answer
the sum of $ required to satisfy the judgment, interest and costs.
[or where the debt is not yet due or accruing]
TAKE NOTICE in the event that the debt becomes due or accrues before the
day for hearing named in the summons upon its becoming due or accruing the
debt shall be bound in your hands to the extent of the whole amount of the
debt, namely, $ [or to the extent of $ ] to answer the sum of $
required to satisfy the judgment, interest and costs.
_______________
Form 71A
-- 490 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
460
RULE 71.09(4)
FORM 71B
GARNISHEE ORDER
(where garnishee debt less than judgment debt, interest and judgment
creditor's costs)
[heading as in Form 71A]
[other particulars as in Form 60L]
THE COURT ORDERS THAT:
1. The garnishee [where appropriate insert here (after deducting
therefrom $ for his costs of the garnishee application)] do
forthwith pay to the judgment creditor $ , the debt due from
him to the judgment debtor and that in default of payment
execution may issue against the garnishee.
[or where the debt is not due but accruing]
do pay to the judgment creditor $ , the debt accruing from
him to the judgment debtor, as follows [state the amount or
amounts to be paid and the time or times of payment as directed
by the Court] and that in default of payment execution may issue
against the garnishee.
2. $ , the costs of the judgment creditor of the garnishee
application, be added to the judgment debt and the interest
accrued thereon and be retained by the judgment creditor out of
the money recovered by him under this order in priority to the
judgment debt and interest.
_______________
Form 71B
-- 491 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
461
RULE 71.09(4)
FORM 71C
GARNISHEE ORDER
(where garnishee debt greater than judgment debt, interest and judgment
creditor's costs)
[heading as in Form 71A]
[other particulars as in Form 60C]
THE COURT ORDERS THAT:
1. The garnishee do forthwith pay to the judgment creditor $ ,
being so much of the debt due from him to the judgment debtor
as is sufficient to satisfy the judgment debt, the interest accrued
thereon and the costs of the judgment creditor of the garnishee
proceedings and that in default of payment execution may issue
against the garnishee.
[or where the debt is not due but accruing]
do pay to the judgment creditor $ , being so much of the
debt accruing from him to the judgment debtor as is sufficient to
satisfy the judgment debt, the interest accrued thereon and the
costs of the judgment creditor of the garnishee proceedings as
follows [state the amount or amounts to be paid and the time or
times of payment as directed by the Court] and that in default of
payment execution may issue against the garnishee.
[where appropriate add]
2. The garnishee be at liberty to retain $ for his costs of the
garnishee proceedings out of the balance of the debt due [or
accruing] from him to the judgment debtor.
_______________
Form 71C
-- 492 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
462
RULE 72.02(3)
FORM 72A
ATTACHMENT OF EARNINGS SUMMONS
[heading as in originating process]
To the [judgment debtor]
of [address]
You are summoned to attend before the Court on the hearing of an application
by the [judgment creditor] for an order that the earnings of the [judgment
debtor] be attached to satisfy the judgment against the [judgment debtor] in
favour of the [judgment creditor] in the County Court dated [e.g. 20 June, 19
] for $ , in respect of which judgment $ is due and unpaid,
being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest.
The application will be heard [continue as in Form 46A.].
_______________
Form 72A
-- 493 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
463
RULE 72.02(3)
FORM 72B
AFFIDAVIT IN SUPPORT OF APPLICATION FOR
ATTACHMENT OF EARNINGS ORDERS
[heading as in originating process]
I, of , the [judgment creditor], make oath and
say that:
1. By a judgment dated [e.g. 20 June, 19 ] it was adjudged that the
[judgment debtor] should pay to me the sum of $
together with costs.
2. $ is due and unpaid in respect of the judgment, being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest.
or
The [judgment debtor] has persistently failed to comply with an order with
respect to the judgment made by the County Court on ,
19 that the [judgment debtor] [insert terms of order not complied with].
3. The [judgment debtor] is employed by of as a
[occupation].
4. No warrant committing the [judgment debtor] to prison under the
Imprisonment of Fraudulent Debtors Act 1958 has been issued.
or
A warrant committing the [judgment debtor] to prison under the
Imprisonment of Fraudulent Debtors Act 1958 has been issued and has not
been executed.
Sworn etc.
_______________
Form 72B
-- 494 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
464
RULE 72.02(4)
FORM 72C
JUDGMENT DEBTOR'S STATEMENT OF FINANCIAL
SITUATION
[heading as in originating process]
To the [judgment debtor]:
of [address]
TAKE NOTICE that you should complete this form by giving the information
requested below. The completed form signed by you must be sent to the
[judgment creditor] at [address for service] before , 19
[day for hearing named in the summons].
If you do not do this, the court may make an order that you attend before the
Court and give the information.
Signature of judgment
creditor's solicitor:
1. Amount and Source of Weekly Income
Occupation:
If working for an employer:
Name and address of employer:
Gross wage: ______________
Current overtime (if any): ______________
Car and other allowances and commission: ______________
If self-employed or in partnership:
Average pre-tax earnings for last 12 months: ______________
If unemployed:
State length of last employment, date when last
employment ceased and gross weekly amount earned: ______________
Pension or other benefit received: ______________
Workers' compensation received: ______________
Maintenance received: ______________
Superannuation received: ______________
Form 72C
-- 495 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
465
Board or rent received: ______________
Average weekly interest on bank or building society
deposit, debentures etc.: ______________
Average weekly dividend on shares: ______________
Other income (give particulars): ______________
Total Gross Weekly Income: ______________
2. Property and Assets
Land, including vacant land:
For each piece of land—
Market value: ______________
Amount of mortgage: ______________
Net value: ______________
Motor vehicle:
For each motor vehicle—
Year, make and model: ______________
Market value: ______________
Amount owing to finance company: ______________
Net value: ______________
Deposit in bank, building society etc.: ______________
Other investments including shares, debentures, bonds: ______________
Money owing to you:
From , $
From , $
Total: ______________
Value of interest in partnership or business: ______________
Furniture, household and personal goods:
Market value: ______________
Form 72C
-- 496 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
466
Amount owing to finance company: ______________
Net value: ______________
Life insurance policies:
Give particulars and state surrender value of each
policy: ______________
Other assets (give particulars): ______________
Total Property and Assets:
3. Debts, Liabilities and Other Financial Obligations
(a) Weekly expenses
Income tax: ______________
Superannuation: ______________
Housing (mortgage, rent, board, hospital or institution): ______________
Municipal rates: ______________
Water and sewerage rates: ______________
Land tax: ______________
Child care expenses incurred for the purpose of earning
income: ______________
Maintenance actually paid: ______________
Instalment payments such as for household goods or
tools of trade:
To , $
To , $
Total: ______________
Electricity and gas: ______________
Food: ______________
Other general household expenses: ______________
Motor vehicle expenses (registration, insurance,
maintenance, fuel): ______________
Fares: ______________
Telephone: ______________
Insurance policy premiums: ______________
Form 72C
-- 497 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
467
School fees and other school expenses: ______________
Clothing and shoes: ______________
Medical and chemist expenses: ______________
Entertainment: ______________
Payments on court orders and fines: ______________
Other expenses (give particulars): ______________
Total: ______________
(b) Other debts outstanding
Give particulars of debts under hire purchase, leasing, credit card or other
credit contracts, department store accounts, guarantee or personal loan:
$ , to , due on
$ , to , due on
Total: ______________
4. If any of the assets referred to in paragraph 2 above is owned jointly,
identify each asset and give name of the other owner or owners:
.......................................................................................................
.......................................................................................................
5. If any of the debts referred to in paragraph 3 is due jointly, identify each
debt and give the name of the other debtor or debtors:
.......................................................................................................
.......................................................................................................
6. Give particulars of any other circumstances which affect the financial
situation of the judgment debtor such as the number and age of
dependants, marital status and health:
.......................................................................................................
.......................................................................................................
Signature of judgment debtor:
Date:
_______________
Form 72C
-- 498 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
468
RULE 72.04(7)
FORM 72D
SUMMONS FOR AN ORDER TO ATTEND FOR
EXAMINATION OR FURNISH PARTICULARS
[heading as in originating process]
To: the [judgment debtor]
or
[person indebted to or employer of judgment debtor]
of [address].
You are summoned to attend before the Court on the hearing of an application
by the [judgment creditor] for an order that [set out the order sought].
The application will be heard [continue as in Form 46A].
_______________
Form 72D
-- 499 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
469
RULE 72.04(7)
FORM 72E
AFFIDAVIT SUPPORT OF SUMMONS FOR AN ORDER TO
ATTEND FOR EXAMINATION OR FURNISH PARTICULARS
[heading as in originating process]
I, of , the [judgment creditor] make oath and say
that:
1. By a judgment dated [e.g. 20 June, 19 ] it was adjudged that the
[judgment debtor] should pay to me $ together with costs.
2. $ is due and unpaid in respect of the judgment the sum,
being—
(a) $ , the amount due under the judgment;
(b) $ , the amount of costs;
(c) $ , the amount of interest.
or
The [judgment debtor] has persistently failed to comply with an order with
respect to the judgment made by the County Court on , 19
that the [judgment debtor] [insert terms of order not complied with].
3. I seek to obtain an order for the attachment of the earnings of the
[judgment debtor].
4. The place of residence of the [judgment debtor] is .
5. On , 19 I was informed by of and
verily believe that the [judgment debtor] is employed by
of as a [occupation] and is a person to whom earnings
are payable or likely to become payable by the said employer.
or
On , 19 I was informed by and verily believe that the
[judgment debtor] is employed by and is a person to whom earnings
are payable or likely to become payable, but I do not know the name or
whereabouts of the employer of the [judgment debtor] or what the earnings of
the [judgment debtor] are.
Sworn etc.
_______________
Form 72E
-- 500 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
470
RULE 72.04(8)
FORM 72F
ORDER THAT JUDGMENT DEBTOR ATTEND OR GIVE
STATEMENT
[heading as in originating process]
[Follow Form 81C except as below]
HOW OBTAINED:
Summons by the [judgment creditor] dated , 19 in aid of an
application for an attachment earnings order against the [judgment debtor] in
respect of a judgment dated [e.g. 20 June, 19 ] for $
together with costs.
THE COURT ORDERS THAT:
The [judgment debtor] attend before the Judge in the Court [or the
Master in the Court] County Court, William Street, Melbourne,
on , 19 at to be examined concerning the means and
ability of the [judgment debtor] or comply with the judgment [or to state to
the Court the following particulars], namely:
[complete appropriately]
or
The [judgment debtor] furnish to the Court on or before 19
a statement in writing signed by the [judgment debtor] setting forth the
following particulars, namely:
[complete appropriately]
_______________
Form 72F
-- 501 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
471
RULE 72.04(8)
FORM 72G
ORDER THAT PERSON INDEBTED TO OR EMPLOYER OF
JUDGMENT DEBTOR GIVE STATEMENT
[heading as in originating process]
[Follow Form 60C except as below]
HOW OBTAINED:
Summons by the [judgment creditor] dated , 19 in aid of an
application for an attachment of earnings order against the [judgment debtor]
in respect of a judgment dated [e.g. 20 June, 19 ] for $ together
with costs.
OTHER MATTERS:
It was made to appear to the Court that is indebted to [or is the
employer of] the [judgment debtor].
THE COURT ORDERS THAT:
give to the Court on or before , 19 a statement in
writing signed by him or on his behalf containing the following particulars of
his indebtedness to the [judgment debtor] that became payable during the
period , 19 to , 19 .
[complete appropriately]
_______________
Form 72G
-- 502 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
472
RULE 72.05(6)
FORM 72H
ATTACHMENT OF EARNINGS ORDER
[heading as in originating process]
[Follow Form 60C except as below]
OTHER MATTERS:
The Court finds that:
1. By a judgment dated [e.g. 20 June, 19 ] it was adjudged that the
[judgment debtor] pay to the [judgment creditor] $ together with
costs.
2. $ is due and unpaid in respect of the judgment.
or
The [judgment debtor] has persistently failed to comply with an order
with respect to the judgment made by the Court on , 19
that the [judgment debtor] [insert terms of order not complied with].
3. The [judgment debtor] was served with a copy of the summons herein
and has had a reasonable opportunity of attending the hearing.
4. The [judgment debtor] is employed by at in the State
of Victoria as a [occupation] and is a person to whom earnings are
payable or are likely to become payable by that employer.
THE COURT ORDERS THAT:
1. The abovenamed employer on each pay-day whilst the [judgment
debtor] is employed by him or until this order ceases to have effect do
make payments out of the earnings of the [judgment debtor] at the rate
calculated in accordance with this order to [name and address of person
to whom payments are to be made] for or towards securing payment of
$ , being the amount of $ due and unpaid in respect of the
judgment and the amount of $ for costs.
2. For the purpose of calculating the normal deduction for the purposes of
paragraph 4 of this order the normal deduction rate shall be $ each
pay-day [or on the pay-day(s) falling on , 19 and thereafter
$ each pay-day].
3. The protected earnings rate, that is, the rate below which the earnings of
the [judgment debtor] may not be reduced by a payment under this
order, shall be $ in respect of each pay-day.
Form 72H
-- 503 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
473
4. [The employer] shall, in respect of each pay-day whilst the order is in
force, if the net earnings of the [judgment debtor] exceed the sum of—
(a) the protected earnings of the [judgment debtor]; and
(b) so much of any amount by which the net earnings that became
payable on any previous pay-day were less than the protected
earnings in relation to that pay-day as has not been made good on
any previous pay-day, pay, so far as that excess permits, to the
[judgment creditor] the normal deduction in relation to that pay-
day and so much of the normal deduction in relation to any
previous pay-day as was not paid on that pay-day and has not been
paid on any other previous pay-day.
NOTE—An attachment of earnings order does not come into force until the
expiration of seven days after the day on which the order is served on the
person to whom the order is directed.
_______________
Form 72H
-- 504 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
474
RULE 72.06(3)
FORM 72J
NOTICE TO EMPLOYER
[heading as in originating process]
The attachment of earnings order served herewith requires you to deduct from
any earnings becoming payable to the [judgment debtor] as your employee,
from pay-day to pay-day until the order is discharged or suspended, the
amount referred to in the order as the normal deduction, and to pay that
amount to of towards securing payment of $ , being the
amount of $ due and unpaid in respect of the judgment referred to in
the order and $ for costs.
"Earnings" in relation to the [judgment debtor] means any amounts payable
to the [judgment debtor]—
(a) by way of wages or salary, including any fees, bonus, commission,
overtime pay or other emoluments payable in addition to wages or
salary; or
(b) by way of pension, including—
(i) an annuity in respect of past services whether or not the
services were rendered to the person paying the annuity; and
(ii) periodical payments in respect of or by way of compensation
for the loss, abolition or relinquishment, or any diminution
in the emoluments, of any office or employment, but does
not include any pension payable to the [judgment debtor]
under the Social Security Act 1991 of the Commonwealth or
the Veterans' Entitlements Act 1986 of the Commonwealth.
Where two or more attachment of earnings orders are directed to you with
respect to earnings payable or likely to become payable by you to the
[judgment debtor], you are required to—
(a) comply with those orders according to the respective dates on
which they took effect, and disregard any order until an earlier
order has been complied with; and
(b) comply with any order as if the earnings to which it relates were
the residue of the earnings of the [judgment debtor] after the
making of any payment under an earlier order.
You are required to give the [judgment debtor] a notice specifying particulars
of the payments made by you under the attachment of earnings order.
Form 72J
-- 505 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
475
In addition to deducting the amount required to be deducted under an
attachment of earnings order, you are entitled to make a further deduction of
$3 from the earnings of the [judgment debtor] towards the clerical and
administrative costs of making payments under the order. You are required to
give the [judgment debtor] notice of the amount deducted for this purpose.
If you are in doubt whether payments to the [judgment debtor] of a particular
class or description are earnings for the purpose of the attachment of earnings
order you may apply to the Court to have that question determined.
You must give notice in writing to the Registrar—
(a) if you are not the employer of the judgment debtor at the time the
order is served, forthwith after service;
(b) if you are the employer of the judgment debtor at the time the
order is served, but cease to be employer thereafter, forthwith after
you cease to be employer.
Any person who dismisses an employee, injures him in his employment or
alters his position to his prejudice because an attachment of earnings order
has been made or because the person is required to make payments under the
order in relation to the employee may be dealt with as for contempt of court.
Dated , 19 .
Registrar
_______________
Form 72J
-- 506 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
476
RULE 72.06(3)
FORM 72K
NOTICE BY EMPLOYER THAT JUDGMENT DEBTOR IS
NOT IN HIS EMPLOY
[heading as in originating process]
To the Registrar,
And to the [judgment creditor] of [address].
Whereas an order was made on , 19 that I make payments to the
[judgment creditor] out of the earnings of the [judgment debtor] I hereby give
notice that I am not the employer of the [judgment debtor] [or I ceased to be
the employer of the [judgment debtor] on , 19 .
Dated , 19 .
[signature of employer]
_______________
Form 72K
-- 507 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
477
RULE 72.11(3)
FORM 72L
NOTICE OF CESSATION OF ATTACHMENT OF EARNINGS
ORDER
[heading as in originating process]
To: [employer] of , the employer of the [judgment debtor].
TAKE NOTICE that the attachment of earnings order made on ,
19 whereby you were ordered to make payments for or towards securing
payment of the amount due and unpaid in respect of a judgment in favour of
the [judgment creditor] out of the earnings payable to the [judgment debtor],
ceased to have effect on , 19 because [state reason].
Dated , 19 .
Registrar
NOTE—Where the order ceases to have effect, you will not incur any
liability in consequence of your treating it as still in force at any time before
the expiration of seven days after this notice or a copy of the order
discharging the earlier order, as the case may be, is served on you.
_______________
Form 72L
-- 508 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
478
RULE 73.05(2)
FORM 73A
CHARGING SUMMONS
[heading as in originating process]
To [name]
of [address].
And to the [judgment debtor].
You are summoned to attend before the Court on the hearing of an application
by the [judgment creditor] for an order that certain securities [or as the case
may be] in which the [judgment debtor] has a beneficial interest, namely [give
particulars sufficient to identify the securities and the interest of the judgment
debtor], stand charged to the extent of the value of the entire beneficial
interest of the [judgment debtor] in the securities or of so much of that value
as may be sufficient to satisfy a judgment recovered against the [judgment
debtor] by the [judgment creditor] in the Court on [e.g. 20 June, 19 ] for $
, interest accrued and accruing on the judgment and the costs of the [judgment
creditor] of the charging order proceedings. The sum required to satisfy the
judgment, interest and costs is $ , being—
(a) $ , the amount due and unpaid under the judgment;
(b) $ , the amount of interest accrued or estimated to accrue;
(c) $ , the estimated costs of the charging order proceedings.
This summons is filed and served by order of the Court made on , 19 .
The application will be heard etc. [continue as in Form 46A].
[insert the following at the end of the summons]
To [name]
of [address]
TAKE NOTICE that upon service of this summons you shall not, except by
order of the Court, cause or permit any transfer of any of the abovementioned
securities to be made or pay to any person any dividend or interest thereon.
To the [judgment debtor].
TAKE NOTICE that, unless the Court otherwise orders, no disposition by
you of your interest in any of the abovementioned securities made after
Form 73A
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County Court Rules of Procedure in Civil Proceedings 1999
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service of this summons and before the application for the charging order is
heard by the Court shall be valid as against the [judgment creditor].
_______________
Form 73A
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County Court Rules of Procedure in Civil Proceedings 1999
480
RULE 73.13(2)(a)(i)
FORM 73B
AFFIDAVIT AS TO STOCK
In the County Court
of Victoria
In the matter of [identify the document comprising the stock under which the
claimant's interest arises].
I, of make oath and say that according to the best of
my knowledge, information and belief I have [or if the affidavit is made by
the solicitor, name of claimant of has] a beneficial interest in the
stock specified in the notice filed with this affidavit as [describe the interest
of the claimant in the stock and identify and document under which it arises].
This affidavit is filed on behalf of [name of claimant] of [address].
_______________
Form 73B
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481
RULE 73.13(2)(a)(ii)
FORM 73C
NOTICE AS TO STOCK
[heading as in Form 73B]
[to be filed with Form 73B]
To [name]
of [address].
TAKE NOTICE that the stock comprised in and subject to the trusts of the
settlement [or as the case may be] referred to in the affidavit filed with this
notice consists of the following, namely [identify the stock, stating the names
in which it stands].
This notice is intended to stop the transfer of the stock and not the payment of
any dividend or interest thereon [or also the payment of any dividend or
interest thereon].
[Signature of claimant, or solicitor]
[where affidavit made by the solicitor]
_______________
Form 73C
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482
RULE 75.02(b)
FORM 75A
ARREST WARRANT IN SUMMARY PROCEEDINGS FOR
CONTEMPT IN FACE OF COUNTY COURT
IN THE COUNTY COURT
OF VICTORIA
To the Sheriff.
Arrest and bring him before the Court forthwith to answer a charge
of contempt, and if it is not practicable to bring him before the Court
forthwith, detain him in custody, and when it is practicable to bring him
before the Court, do so forthwith.
Dated [e.g. 15 June, 19 ].
Judge
_______________
RULE 75.08.1
FORM 75AA
ARREST WARRANT PENDING CONTEMPT HEARING
[heading as in originating process]
TO THE SHERIFF
Arrest and bring him before the Court forthwith to answer a charge
of contempt, and if it is not practicable to bring him before the Court
forthwith, detain him in custody, and when it is practicable to bring him
before the Court, do so forthwith.
Dated [e.g. 15 June, 19 ].
Judge
_______________
Form 75A
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483
RULE 75.09(2)
FORM 75B
ARREST WARRANT IN CONTEMPT PROCEEDINGS BY
SUMMONS OR ORIGINATING MOTION
[heading as in summons or originating motion]
To the Sheriff
Arrest and bring him before the Court to answer a charge of
contempt, detaining him in custody in the meantime, unless by paying
$ into Court [or as the case may be], he gives security for his
attendance in person before the Court to answer the charge and to submit to
the judgment of the Court.
Dated [e.g. 15 June, 19 ].
Judge
_______________
Form 75B
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484
RULE 75.13
FORM 75C
COMMITTAL WARRANT
[heading as in Form 75A, 75AA or 75B as appropriate]
TO THE SHERIFF
Take to the prison at and deliver him to the Governor
of that prison.
or
Arrest and take him to the prison at and deliver him
to the Governor of that prison.
To the Governor of the prison at
Receive into you custody and keep him until the further order of this Court
[as the case may be].
His committal is for contempt of court in that he (state nature of his
contempt).
Dated [e.g. 15 June 19 ].
Judge
__________________
Form 75C
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County Court Rules of Procedure in Civil Proceedings 1999
485
APPENDIX A
Scale of Costs
Scale of Fees and costs to be paid to Counsel and Practitioners between party
and party and between Practitioner and Client.
The Judge, Registrar or other taxing officer shall have full discretion to allow
any fee, cost or disbursement in full, or in part.
In appropriate cases should the Judge, Registrar or other taxing officer
consider the fee, cost or disbursement provided by the scale to be inadequate
to compensate for the work actually done, the Judge, Registrar or other taxing
officer may allow an appropriate fee which in the circumstances is considered
to be fair and reasonable.
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
Institution of proceedings
1. Instructions to sue
including letter before
action, preparation of
brief to and attendance
on counsel, preparation
of originating process,
statement of claim,
notice of defence and
copies, filing, attending
to service, and affidavit
of service 282.00 367.00 403.00 445.00
If Statement of Claim
exceeds 10 folios for
each additional folio
such additional fees
pursuant to item 26 as
appropriate
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County Court Rules of Procedure in Civil Proceedings 1999
486
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
2. Instructions to defend,
including perusal of
statement of claim, and
filing of appearance 134.00 180.00 185.00 207.00
3. Instructions to institute
or defend any original
proceeding or to appeal
or oppose an appeal
where not elsewhere
provided for 215.00 269.00 298.00 328.00
4. Instructions to institute
or oppose any
interlocutory
proceeding, or
instructions for special
affidavit where not
elsewhere provided for 37.00 56.00 56.00 56.00
Issues and Particulars
5. (a) Counterclaim or
third party notice
including
preparation of brief
to and attendance
on counsel, copies,
filing and service 150.00 200.00 215.00 237.00
If counterclaim or
third party notice
exceeds 10 folios
for each additional
folio, such
additional fees
pursuant to item 26
as appropriate
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County Court Rules of Procedure in Civil Proceedings 1999
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A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(b) Perusal of
counterclaim or
third party notice
and making copies 27.00 37.00 37.00 37.00
Defence
6. (a) Any necessary
further pleading,
notice claiming
contribution or
indemnity,
including
preparation of brief
to and attendance
on counsel, copies,
filing and service 91.00 123.00 134.00 150.00
If defence, any
necessary further
pleading or any
Notice claiming
contribution or
indemnity exceeds
8 folios, for each
additional folio
such additional fees
pursuant to item 26
as appropriate
(b) Perusal of Defence,
any necessary
further pleading,
notice claiming
contribution or
indemnity and
making copies 27.00 37.00 37.00 37.00
A B C D
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Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
7. Request for further
particulars including
special damages or
preparation of further
particulars or special
damages including
preparation of brief
attendance on counsel,
copies, filing, service,
perusal of further
particulars, or special
damages, or request,
and making copies
thereof 122.00 150.00 159.00 178.00
Discovery
8. (a) Notice for
discovery including
copies, filing,
service, perusal of
affidavit of
documents, and
making copies
thereof 66.00 91.00 111.00 119.00
(b) Affidavit of
documents
including
instructions for
affidavit, copies,
swearing, filing and
service 185.00 239.00 269.00 298.00
If affidavit exceeds
10 folios for each
additional folio
such additional fees
pursuant to
A B C D
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
489
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
item 26 as
appropriate
provided that the
Judge, Registrar or
other taxing officer
is satisfied in all the
circumstances that it
is fair and
reasonable to do so.
Interrogatories
9. (a) Interrogatories for
examination of one
party including
instructions for
interrogatories,
preparation of brief
to and attendance
on counsel, copies,
filing, service,
perusal of answers
to interrogatories
and making copies
thereof 185.00 239.00 269.00 298.00
(b) Answers to
interrogatories of
one party including
perusal of
interrogatories,
instructions for
answers,
preparation of brief
to and attendance
on counsel,
swearing, copies,
filing and service 376.00 483.00 536.00 591.00
A B C D
Over
$7500
Over
$20 000
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
490
Up to and
including
$7500
up to and
including
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
Setting
10. (a) Certificate of
readiness including
letter requesting
certification, setting
down and service
of sealed copy
66.00 91.00 111.00 119.00
(b) Perusal of
certificate of
readiness,
certification and
letter returning
certificate 31.00 51.00 57.00 61.00
11. (a) Notice of Trial,
copies, service and
filing 37.00 56.00 56.00 56.00
(b) Affidavit in support
of setting down,
swearing and filing
56.00 66.00 83.00 88.00
Notices
12. (a) Notice to Admit
including preparing
of brief
to and attendance
on counsel, copies,
filing, service,
perusal of
admissions and
making copies
thereof 66.00 91.00 111.00 119.00
A B C D
Up to and
Over
$7500
up to and
Over
$20 000
up to and
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County Court Rules of Procedure in Civil Proceedings 1999
491
including
$7500
including
$20 000
including
$50 000
Over
$50 000
$ $ $ $
13. Notice of payment into
Court, offer of
Compromise, or notice
of acceptance including
copies, filing and
service 56.00 83.00 83.00 83.00
14. Any necessary notice
(including notices
before proceeding,
notice to Transport
Accident Commission,
Incorporated Nominal
Defendant and any
other statutory notice
when required),
memorandum or
undertaking including
copies, filing or service,
where not elsewhere
provided for 56.00 83.00 83.00 83.00
Preparation and Trial
15. Callover—
Solicitor's attendance 56.00 66.00 83.00 83.00
Clerk's attendance 36.00 56.00 56.00 56.00
Subpoena
16. (a) Including filing,
copy for service
attending to service 36.00 56.00 56.00 56.00
(b) Each additional
copy for service 2.30 2.30 2.30 2.30
A B C D
Up to and
including
Over
$7500
up to and
including
Over
$20 000
up to and
including Over
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
492
$7500 $20 000 $50 000 $50 000
$ $ $ $
Expert Witnesses
17. (a) Arranging
examination on
inspection by an
expert witness and
notifying party 36.00 56.00 56.00 56.00
(b) Notifying party of
examination or
inspection arranged
by opposite party
11.10 27.00 27.00 27.00
Advice of Counsel
18. Including brief,
attendance on counsel,
perusal and advice 91.00 122.00 134.00 150.00
Conference with Counsel
19. Appointing and
attending—
(a) Solicitor's
attendance—
per hour 91.00 122.00 134.00 150.00
(b) Clerk's
attendance—
per hour 56.00 66.00 83.00 83.00
Brief to View
20. Including arranging
view, attendance on
counsel and attendance
at view 91.00 122.00 134.00 150.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
493
$ $ $ $
If attendance on view
exceeds half an hour for
each quarter hour
thereafter 11.20 27.00 27.00 27.00
Mediation
20A. Counsel or solicitor
hearing at mediation
(a) Half day (3 hours
or part thereof) 356.00 519.00 598.00 632.00
(b) Hourly rate beyond
half-day 92.00 115.00 130.00 152.00
(c) Daily maximum or
if case settles
within the day 646.00 959.00 1063.00 1116.00
Solicitor appearing to
instruct at mediation
(d) Half day (3 hours
or part thereof) 185.00 239.00 269.00 298.00
(e) Hourly rate beyond
half-day 89.00 109.00 124.00 144.00
(f) Daily maximum 447.00 584.00 649.00 720.00
Directions hearing
20B. Counsel or solicitor
appearing at directions
hearing 98.00 165.00 165.00 165.00
Instructions for Brief
21. For work necessarily
and properly done in
preparing for trial or
hearing and not
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
494
$ $ $ $
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) arranging to obtain
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;
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
App. A App. A
-- 525 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
495
(i) the general care and
conduct of the
proceeding—not
exceeding 1477.00 2953.00 4212.00 6020.00
Notes
A. This item should begin
with a short statement
of—
(i) the main issues;
(ii) any particular
difficulties of fact
or law;
(iii) any special skill,
knowledge or
responsibility
required
B. This should be followed
not by a chronological
narrative, but by an
analysis of the work
done separated on the
main headings
appropriate to the
subject matter. Under a
heading, for example,
"Attendances on and
correspondence with
client" there should be
included a statement of
the number of
attendances on the
client, the total time
occupied and the
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
number of letters sent,
but not the details of
App. A
-- 526 of 546 --
S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
496
every attendance or of
every letter.
However, where
objection is lodged to
the stated number of
letters or attendances,
the practitioner lodging
the bill for taxation
must remove from his
file the attendance notes
and copy letters
claimed, and be in a
position to produce
same in chronological
order at the taxation.
If by reason of special
circumstances any party
considers that the
maximum amount
provided for in this item
is not sufficient
remuneration for the
care and conduct
including skill and
responsibility involved
throughout the course
of proceedings and in
obtaining instructions
for brief or brief notes
the party may apply for
remuneration in excess
of this item to a Judge
or Registrar in respect
of a party-party bill of
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
costs or to the Taxing
Master on the taxation
of a solicitor-client bill
App. A
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S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
497
of costs and the Judge,
Registrar or Taxing
Master may allow an
amount in excess of the
scale or give such
directions as is in all the
circumstances
considered fair and
reasonable
Brief to counsel to appear
22. Including attendance on
counsel 56.00 66.00 83.00 83.00
Attending court
23. (a) (i) Solicitor or
managing
clerk with
counsel—per
half day 185.00 239.00 269.00 298.00
(ii) Clerk with
counsel—per
half day 143.00 180.00 200.00 221.00
(iii) Solicitor
without
counsel—per
day 561.00 721.00 797.00 881.00
(iv) If proceeding
in list for
hearing but
not reached 66.00 91.00 111.00 119.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(v) Additional
Solicitor or
managing
clerk (if
App. A
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S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
498
certified by
trial Judge)—
discretionary
fee
(b) Pre-Trial
Conference—
(i) solicitor or
managing
clerk with
counsel 185.00 239.00 269.00 298.00
(ii) solicitor
without
counsel 282.00 364.00 402.00 443.00
Solicitor or managing
clerk attending trial at a
Court more than
50 kilometres from his
place of business for
each day of absence
from office—
discretionary additional
fee
Brief to hear judgment
24. (a) Including
receiving/advice of
date fixed,
attendance on
counsel and
attendance to hear
judgment 91.00 122.00 134.00 150.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(b) Brief (or brief notes
for solicitor) for
any unopposed
application or
adjournment
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
499
(where not
otherwise provided
for) including
attendance to apply 91.00 122.00 134.00 150.00
Costs of the Day
25. Including—
(a) Practitioner for
attending Court
where no counsel
employed 228.00 298.00 327.00 356.00
(b) Attending with
counsel—
(i) Clerk 111.00 150.00 159.00 178.00
(ii) Practitioner or
managing clerk 160.00 214.00 239.00 265.00
(c) Counsel's fees 361.00 541.00 605.00 665.00
Note: These allowances shall be in
addition to other items thrown away
Documents
26. (a) Drawing any
necessary
documents where
not otherwise
provided for—per
folio 7.30 7.30 7.30 7.30
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(b) Engrossing or
typing any
necessary
document where
not otherwise
provided for—per
App. A
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S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
500
folio 5.60 5.60 5.60 5.60
(c) Copies—any
necessary carbon,
photo or machine
made copy—where
not otherwise
provided for—per
page 1.30 1.30 1.30 1.30
(d) Perusals of any
necessary letter,
document or part of
a document (not
otherwise provided
for)—per folio 3.00 3.00 3.00 3.00
(e) Examination or
scanning any
document which it
is not necessary to
peruse (not
otherwise provided
for)—per page 2.20 2.20 2.20 2.20
(f) Applications
including copies,
issuing and filing 66.00 83.00 83.00 83.00
(g) Affidavit of service
including swearing,
copies and filing
27.00 27.00 27.00 27.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(h) Any necessary
affidavit (not
otherwise provided
for) including
preparation, copies,
swearing, filing and
service 185.00 239.00 269.00 298.00
App. A
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County Court Rules of Procedure in Civil Proceedings 1999
501
(i) Facsimile
transmission or
receipt if urgent
and necessary in
the discretion of the
Registrar 7.60 7.60 7.60 7.60
Letters
27. (a) Any necessary letter
(including agency
letters) 16.80 21.70 25.10 26.80
(b) For each circular
letter after the first 8.80 8.80 8.80 8.80
Attendances
28. Any necessary
attendance not
otherwise provided for
(including attendance
on witness to arrange
appearance without
subpoena, or to cancel
such appearance)—
(a) Which is capable of
being made by a
clerk—per quarter
hour 12.50 19.90 21.70 23.50
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(b) Which requires the
personal attention
of the solicitor or
managing clerk and
involves the
exercise of skill or
legal knowledge—
per quarter hour 25.00 26.80 26.80 31.60
App. A
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S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
502
(c) Service by post 12.60 26.80 26.80 26.80
(d) Personal service 41.00 41.00 41.00 41.00
Service of any
document where
necessary, and not able
to be served by post.
Where it is judged
appropriate, the
Registrar may allow
additional proper costs
having regard to the
time taken, the distance
travelled and any other
necessary expense
incurred
(e) Attempted service
Where more than one
attendance is necessary
to effect service, or to
ground an application
for substituted service,
for each necessary
attendance 25.00 25.00 25.00 25.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(f) Service by leaving
Service of a document
on party by filing or
leaving at the office of
his solicitor or other
address for service,
where that mode of
service is necessary 18.00 18.00 18.00 18.00
App. A
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S.R. No. 20/1999
County Court Rules of Procedure in Civil Proceedings 1999
503
Fees to Counsel
29. (Note: No fee to
counsel is to be allowed
unless vouched by the
signature of counsel or
his clerk)—
(a) For drawing
pleadings or
settling any
necessary
document including
Statement of Claim,
Defence,
Interrogatories, etc
94.00 115.00 130.00 152.00
(b) (i) To advise on
evidence or for
opinion 94.00 141.00 152.00 171.00
(ii) Advice on
Pre-Trial
Conference 141.00 209.00 226.00 257.00
(c) Conference on
view—per hour 94.00 115.00 130.00 152.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
(d) Pre-Trial
Conference with
Registrar 263.00 341.00 380.00 420.00
(e) Brief to hear
Judgment or for
any application in a
proceeding 102.00 130.00 152.00 152.00
(f) Brief on Trial:
(i) Property,
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Personal
Injuries 646.00 959.00 1063.00 1116.00
(ii) Commercial
Causes 1116.00
(g) Refresher fee
(i) Property,
Personal
Injuries 430.00 635.00 707.00 744.00
(ii) Commercial
Causes 744.00
Any allowance for a
refresher fee is to be
calculated in the
manner set out in
Rule 63A.82(3)
(h) (i) In circuit cases,
a circuit fee may
be allowed and
the amount
thereof fixed by
order of the
Judge, in
accordance with
the First
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
Schedule of this
opinion
(having regard to all the
circumstances,
including travelling
expenses, living
expenses and absence
from Chambers) the
scale fee is insufficient
but the total amount of
the scale fee and the
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County Court Rules of Procedure in Civil Proceedings 1999
505
circuit fee shall not
exceed the fee marked
on the brief.
(ii) In any case
where a
refresher is
certified for, a
further circuit
fee may be
allowed in
accordance with
the First
Schedule in this
scale.
(iii) Where in any
such case the
Judge certifies
for two counsel,
all reasonable
and necessary
attendances and
copies
additional to
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
those which
would have
been necessary
had only one
counsel been
employed shall
be allowed.
(iv) In any
proceeding or
matter
notwithstanding
anything
contained in the
rules or in the
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scale of costs,
apart from item
20A, the trial
Judge ONLY
may on
application
allow such
higher fee for
counsel
(including more
than one
counsel) as he
thinks fit.
(v) Despite
anything
contained in
these Rules—
(A) where a
trial has
commenced,
the Judge
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
ONLY may
allow such
higher fee
for counsel
for the trial
and may
allow fees
for more
than one
counsel as
the Judge
thinks fit,
save that this
sub-item
does not
apply to the
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County Court Rules of Procedure in Civil Proceedings 1999
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allowances
set out in
item 20A.
(B) where no
trial has
commenced,
the Registrar
or other
taxing
officer may
allow such
higher fee
for counsel
and may
allow fees
for more
than one
counsel as
the Registrar
or other
taxing
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
officer
thinks fit
(vi) Undefended
proceedings (see
item 38).
Practice Court
30. Application for order
for substituted service
(not including fees of
advertising) 327.00 388.00 430.00 473.00
31. Application for Leave
to Proceed 122.00 150.00 176.00 192.00
Interpleader
32. (a) Bailiff—solicitor or
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County Court Rules of Procedure in Civil Proceedings 1999
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counsel appearing 324.00 385.00 426.00 469.00
(b) Claimant—solicitor
with or without
counsel appearing
298.00 366.00 403.00 445.00
(c) Creditor—solicitor
with or without
counsel appearing 298.00 366.00 403.00 445.00
Other Applications in Proceedings
33. (a) Applicants costs—
solicitor with or
without counsel
appearing 334.00 413.00 453.00 497.00
(b) Respondents
costs—solicitor
with or without
counsel appearing 298.00 376.00 413.00 458.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
Summons to Debtor
34. (a) Judgment Creditor
on hearing—
solicitor with or
without counsel
appearing 334.00 413.00 453.00 497.00
(b) costs of
adjournment—
solicitor with or
without counsel
appearing 215.00 269.00 298.00 328.00
The costs in items
30–34 are inclusive of
counsel's fees, where
applicable, and
disbursements but do
not include fees for
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County Court Rules of Procedure in Civil Proceedings 1999
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service or filing fees for
an application. These
costs are subject to
increase or reduction at
the discretion of the
Court. Such costs
include the summons,
affidavit in support,
one affidavit of service,
preparation, signing,
service and filing of the
order where
appropriate.
Miscellaneous
35. Registration of
interstate Judgment 56.00 83.00 83.00 83.00
36. Warrant of execution 56.00 83.00 83.00 83.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
37. Upon entering default
judgment, including
instructions to sue,
letter before action,
preparation of
originating process and
statement of claim,
including copies,
issuing, arranging for
service, affidavit of
service and entry of
judgment 298.00 381.00 423.00 465.00
Undefended proceedings
38. Upon judgment in any
proceeding where the
defendant has not
participated throughout
the course of the
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County Court Rules of Procedure in Civil Proceedings 1999
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proceeding, including
originating process,
statement of claim,
issue and service fees,
setting down, fixing
proceeding for trial,
arranging attendance of
witnesses at court,
witnesses expenses,
instructions for an
preparing of brief,
attending counsel
therewith, appointing
and attending pre-trial
conference, attendance
at Court and fees to
counsel for both trial
and conference 1854.00 2503.00 2760.00 3035.00
A B C D
Up to and
including
$7500
Over
$7500
up to and
including
$20 000
Over
$20 000
up to and
including
$50 000
Over
$50 000
$ $ $ $
For the purpose of this
item the fees payable to
counsel which are
included in the above
amounts are:
A B C D
$ $ $ $
387.00 708.00 804.00 852.00
Should any unusual or
abnormally large
disbursement have
necessarily been made
in addition to those
mentioned above, the
Judge may on
application made to him
at the trial allow an
appropriate additional
amount.
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County Court Rules of Procedure in Civil Proceedings 1999
511
39. In addition to the
allowance of any
disbursement
hereinbefore provided,
the Registrar or other
taxing officer may
allow any
disbursements
necessarily or properly
made in the course of
the proceeding.
CONVEYANCING BUSINESS
The charges prescribed by an Solicitors Remuneration Order for the time
being in force.
Rating Appeals
1. As to all items and charges under this heading, as far as practicable
Scale "A" shall apply where the annual value appealed against is up to
and including $1000 and Scale "B" where the annual value appealed
against is over $1000.
2. Whenever any rating appeal case is, in the opinion of the presiding
Judge, of such a special important nature that the fees above specified
would not be a fair and reasonable remuneration for the trouble, care,
skill and expense necessarily involved in the proper preparation and
conduct of such appeal case he may allow such lump sum, as in his
opinion, would amount to such fair and reasonable remuneration.
Providing that nothing hereinstated with regard to costs of rating appeals
shall prevent the Judge from making such order as to costs of fixing the
same at such sum as he shall think fit.
Witnesses' Expenses
Witnesses giving evidence in an expert or professional capacity, $117.00–
$215.00 per hour or part thereof, not exceeding $1413.00 per day.
Person not referred to in the preceding paragraph who are engaged in
business as principals on their own behalf $130.00 per half day or part thereof
but not in any event to exceed $217.00 in any one day.
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County Court Rules of Procedure in Civil Proceedings 1999
512
Other witnesses—$59.00 per day, provided that a witness who receives
wages, salary, remuneration or fees may be allowed the amount actually lost
by reason of attendance not exceeding $217.00 per day.
Travelling expenses, if witnesses residence or place of business is more than
seven kilometres from place of hearing, the sum reasonable and actually paid.
Witnesses attending in more than one case will be entitled to a proportionate
part only in each case.
Professional, scientific or expert witnesses, for time necessarily occupied in
qualifying to give evidence, to be allowed such reasonable sum as was
necessarily and properly incurred.
Meals and Accommodation of Witnesses
A reasonable sum to be fixed by the Registrar.
In cases in which it is considered reasonable to bring heavy or bulky articles
to court or the precincts of the court as exhibits or for inspection by Judge or
Jury, a reasonably sum may be allowed for costs of conveyance or transport.
Interpreter Allowances
(a) Attending professional scientific or expert witnesses qualifying to give
evidence attending conference with solicitor or counsel $51.00, or for
each hour $19.30 but not in any event to exceed $217.00 in any one day.
(b) Attending court where the period of absence from the place of business
or residence is four hours or less, $102.00, and for each hour or part
thereof in excess of four hours, $19.30, but not in any event to exceed
$217.00 in any one day.
Travelling Accommodation and Meals
(c) A reasonable sum to be fixed by the Registrar.
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County Court Rules of Procedure in Civil Proceedings 1999
513
FIRST SCHEDULE—CIRCUIT FEES
Circuit Town Fee for first six hours
Further fee for each
five hours thereafter
Bairnsdale 256.00 171.00
Ballarat 165.00 111.00
Bendigo 194.00 129.00
Geelong 140.00 90.00
Hamilton 267.00 178.00
Horsham 267.00 178.00
Kerang 267.00 178.00
Mildura 327.00 216.00
Morwell 197.00 129.00
Sale 232.00 153.00
Shepparton 222.00 150.00
Wangaratta 245.00 162.00
Warrnambool 256.00 171.00
N.B. Any circuit fee allowed under item 29(g)(i) shall be in accordance with
this Schedule, provided that not more than one such further circuit fee will be
allowed in any one day in relation to any one proceeding or matter.
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County Court Rules of Procedure in Civil Proceedings 1999
514
Dated: 23 February 1999
G. R. D. WALDRON, Chief Judge FRED DAVEY
F. G. DYETT MARGARET RIZKALLA
FRANK WALSH T. G. WODAK
L. S. OSTROWSKI F. J. SHELTON
J. T. HASSETT WILLIAM R. WHITE
T. A. NEESHAM A. P. DUCKETT
D. A. T. JONES B. R. DOVE
J. R. HANLON MARILYN HARBISON
F. B. LEWIS J. M. PANNAM
B. STOTT TIMOTHY HOLT
A. F. SMITH CAROLYN DOUGLAS
J. H. BARNETT TIM WOOD
JOHN DEE IAN C. ROBERTSON
R. G. WILLIAMS G. R. ANDERSON
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NOTES
1 Rule 1.03.2: S.R. No. 49/1989 as amended by S.R. Nos 175/1989,
272/1989, 380/1989, 129/1990, 130/1990, 340/1990, 427/1990, 67/1991,
114/1991, 130/1991, 208/1991, 246/1991, 76/1992, 316/1992, 41/1993,
43/1993, 83/1993, 84/1993, 212/1993, 75/1994, 146/1994, 195/1994,
47/1995, 146/1995, 169/1995, 34/1996, 56/1996, 165/1996, 12/1997,
127/1997, 128/1997, 130/1997, 174/1997, 36/1998, 85/1998 and
158/1998.
Notes
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