County Court (Chapter I Amendment No. 1) Rules 1999

i County Court (Chapter I Amendment No. 1) Rules 1999 S.R. No. 128/1999 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Principal Rules 1 4. Commencement 1 5. Offer of compromise 2 26.02 Application 2 6. Costs consequences 2 7. New Rule 26.11 3 26.11 Transitional 3 8. Revocation of Part 3 of Order 26 3 9. Medical and hospital reports 3 33.06 Report of examination of plaintiff 4 33.07 Service of reports by plaintiff 4 33.08 Service of reports by defendant 4 33.08.1 Other medical reports to be served 5 10. Revocation of Rule 33.09(1) 5 11. Amendment of Rule 33.11 6 12. Dismissal of proceeding 6 34A.15 Dismissal of proceeding 6 13. New Rule 34A.35 7 34A.35 Court books—particular proceedings 7 14. Money claim in wrong court 8 15. Other claim in wrong court 8 16. Amendment to Form 60E 8 17. Amendments to Appendix A 9 18. Substitution of First Schedule 15 ═══════════════ NOTES 17 -- 1 of 18 -- 1 STATUTORY RULES 1999 S.R. No. 128/1999 County Court Act 1958 County Court (Chapter I Amendment No. 1) Rules 1999 A majority of the Judges of the County Court makes the following Rules: 1. Object The object of these Rules is to amend the provisions in the Principal Rules concerning— (a) offers of compromise; (b) medical reports and hospital reports; (c) dismissal of proceedings if judgment has not been entered; (d) court books; (e) fees to counsel— and to make other miscellaneous amendments. 2. Authorising provisions These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers. 3. Principal Rules In these Rules, the County Court Rules of Procedure in Civil Proceedings 19991 are called the Principal Rules. 4. Commencement -- 2 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 2 These Rules come into operation on 1 January 2000. 5. Offer of compromise For Rule 26.02 of the Principal Rules substitute— "26.02 Application (1) The plaintiff and the defendant may in respect of any claim in a proceeding serve on one another an offer of compromise on the terms specified in the offer. (2) An offer of compromise in respect of a claim may be on terms that take into account any other claim between the plaintiff and the defendant made in the proceeding. (3) An offer of compromise shall— (a) be in writing and 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 Order.". 6. Costs consequences (1) For Rule 26.08(2) of the Principal Rules substitute— "(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— (a) if the claim of the plaintiff is for damages for or arising out of death or -- 3 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 3 bodily injury, to an order against the defendant for his costs in respect of the claim, taxed on a solicitor and client basis; (b) in the case of any other claim of the plaintiff, 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 basis, and for his costs thereafter taxed on a solicitor and client basis.". (2) After Rule 26.08(7) of the Principal Rules insert— "(8) Where the plaintiff obtains judgment for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, paragraph (2) shall not apply unless the Court is satisfied that the plaintiff's offer was of a genuine compromise.". 7. New Rule 26.11 After Rule 26.10 of the Principal Rules insert— "26.11 Transitional This Order as in force immediately before the commencement of the County Court (Chapter I Amendment No. 1) Rules 1999 continues to apply to an offer of compromise served under Part 2 of this Order before that commencement.". 8. Revocation of Part 3 of Order 26 In Order 26 of the Principal Rules, Part 3 is revoked. 9. Medical and hospital reports r. 7 -- 4 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 4 For Rules 33.06, 33.07, 33.08 and 33.08.1 of the Principal Rules substitute— '33.06 Report of examination of plaintiff (1) 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. (2) Upon obtaining the medical report the defendant shall forthwith serve the medical report on the plaintiff. (3) If the defendant later obtains another medical report from the medical expert concerning the plaintiff, whether or not the other report is consequent upon a further examination by the medical expert of the plaintiff, the defendant shall forthwith serve the medical report on the plaintiff. 33.07 Service of reports by plaintiff (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any hospital or medical report (other than a hospital or 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 or which otherwise he intends to use at the trial. (2) The plaintiff shall serve the hospital report or medical report at such time as the Court directs. 33.08 Service of reports by defendant (1) A defendant shall serve on each other party who has an address for service in the proceeding any hospital report or medical report (other than a hospital report or -- 5 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 5 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 or which otherwise he intends to use at the trial. (2) Paragraph (1) does not require the defendant to serve on the plaintiff a medical report served on the plaintiff under Rule 33.06, but the defendant shall by notice to the plaintiff in writing identify any medical report so served which he intends to tender or the substance of which he intends to adduce in evidence or which otherwise he intends to use at the trial. (3) The defendant shall serve the hospital report or medical report and give any notice under paragraph (2) at such time as the Court directs. (4) In this Rule "defendant" includes a third or subsequent party. 33.08.1 Other medical reports to be served Where after a party has served a medical report under Rule 33.07 or Rule 33.08 the medical expert who made the report makes another medical report to the party, then, notwithstanding that the party no longer intends to tender the medical report so served or to adduce its substance in evidence or to otherwise use it at the trial, or does not intend to tender the other medical report or to adduce its substance in evidence or to otherwise use it at the trial, the party shall serve the other medical report forthwith on each other party who has an address for service in the proceeding.'. 10. Revocation of Rule 33.09(1) 2 r. 9 -- 6 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 6 Rule 33.09(1) of the Principal Rules is revoked. 11. Amendment of Rule 33.11 (1) In Rule 33.11(2) of the Principal Rules omit "a copy of". (2) For Rule 33.11(3) of the Principal Rules substitute— "(3) Subject to paragraphs (4) and (5), a medical report may be used in evidence by the party who served the report or by any party on whom it was served.". (3) In Rule 33.11(4) of the Principal Rules omit "a copy of". (4) In Rule 33.11(5) of the Principal Rules omit "a copy of". 12. Dismissal of proceeding For Rule 34A.15 of the Principal Rules substitute— "34A.15 Dismissal of proceeding (1) A proceeding shall stand dismissed as against any defendant at the expiration of three months after the period of the validity for service of the writ or originating motion, or any extension of that period expires, if at that time that defendant has not filed an appearance and judgment has not been entered or given against that defendant. (2) The Court may from time to time by order extend the period of three months referred to in paragraph (1) for a period not more than three months after the day of the order. (3) If an order is made under paragraph (2), there shall in the particular case be taken to be substituted for the period of three months -- 7 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 7 in paragraph (1) the period as extended by the order.". 13. New Rule 34A.35 After Rule 34A.34 of the Principal Rules insert— "34A.35 Court books—particular proceedings (1) This Rule applies to a proceeding— (a) that includes a claim for damages in respect of death or bodily injury; and (b) of a kind referred to in Rule 34A.03(c)(ii); and (c) of a kind referred to in Rule 34A.03(c)(iii). (2) The parties may agree, not less than 7 days before— (a) the trial of a proceeding referred to in sub-paragraph (1)(a); or (b) the hearing of an application in a proceeding referred to in sub- paragraphs (1)(b) or (c)— to file a joint court book. (3) If the parties have agreed to file a joint court book in accordance with paragraph (2), it must be filed by the plaintiff at the commencement of the trial or at the commencement of the hearing of the application as the case requires. (4) Unless the Court otherwise orders, a court book or a joint court book shall contain and contain only— (a) an index of its contents; (b) a copy of the writ or originating motion; r. 13 -- 8 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 8 (c) a copy of the latest version of any pleadings served between the parties and particulars of any such pleading pursuant to an order of the Court or the request of a party, and any such order or request by a party for particulars; (d) a list of any documents a party intends to tender in evidence or which a party otherwise intends to use at the trial or at the hearing of the application (as the case requires). (5) If the parties have not agreed to file a joint court book in accordance with paragraph (2), each party must serve a court book not less than 7 days before the trial or the hearing of the application (as the case requires) and must file it at the commencement of the trial or at the commencement of the hearing of the application (as the case requires).". 14. Money claim in wrong court In Rule 63A.24 of the Principal Rules omit "is limited". 15. Other claim in wrong court In Rule 63A.25 of the Principal Rules for "a Magistrates' Court is limited" substitute "the Magistrates' Court in a civil proceeding (at the time the proceeding commenced)". 16. Amendment to Form 60E In Form 60E to the Principal Rules, for— r. 14 -- 9 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 9 "Trial without a jury, commenced on , 19 ," substitute— "Trial with a jury of six, commenced on [date]". 17. Amendments to Appendix A In Appendix A to the Principal Rules— (a) at the end of item 1 insert— "Consent of litigation guardian including, preparation of memorandum copies and obtaining signature of litigation guardian 83.00 110.00 113.00 119.00"; (b) for items 20A(a), (b) and (c) substitute— "20A. Counsel or solicitor hearing at mediation (a) Half day (3 hours or part thereof) 365.00 532.00 613.00 648.00 (b) Hourly rate beyond half-day 94.00 118.00 133.00 156.00 (c) Daily maximum or if case settles within the day 663.00 984.00 1091.00 1145.00"; (c) for item 20B substitute— "20B. Counsel or solicitor appearing at directions hearing 101.00 169.00 169.00 169.00"; (d) for item 25(c) substitute— "(c) Counsel's fees 370.00 555.00 621.00 682.00"; (e) for item 29 substitute— "29. (Note: No fee to counsel is to be allowed r. 17 -- 10 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 10 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. 96.00 118.00 133.00 156.00 (b) (i) To advise on evidence or for opinion 96.00 145.00 156.00 175.00 (ii) Advice on Pre-Trial Conference 145.00 214.00 232.00 264.00 (c) Conference on view—per hour 96.00 118.00 133.00 156.00 (d) Pre-Trial Conference with Registrar 270.00 350.00 390.00 431.00 (e) Brief to hear Judgment or for any application in a proceeding 105.00 133.00 156.00 156.00 (f) Brief on Trial: (i) Property, Personal Injuries 663.00 984.00 1091.00 1145.00 (ii) Commercial Causes 1145.00 (g) Refresher fee: (i) Property, Personal Injuries 441.00 651.00 725.00 763.00 -- 11 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 11 (ii) Commercial Causes 763.00 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 Schedule of this scale, if, in his 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 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 r. 17 -- 12 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 12 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 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 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— r. 17 -- 13 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 13 (A) where a trial has commenced, the Judge 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 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 officer thinks fit (vi) Undefended proceedings r. 17 -- 14 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 14 (see item 38)"; (f) for item 32(a) substitute— "(a) Bailiff—solicitor or counsel appearing 332.00 395.00 437.00 481.00"; (g) for item 38 substitute— "38. Upon judgment in any proceeding where the defendant has not participated throughout the course of the 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 and preparing of brief, attending counsel therewith, appointing and attending pre-trial conference, attendance at Court and fees to counsel for both trial and conference 1864.00 2521.00 2781.00 3057.00 For the purpose of this item the fees payable to counsel which are included in the above amounts are: A B C D $ $ $ $ 397.00 726.00 825.00 874.00 Should any unusual or abnormally large r. 17 -- 15 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 15 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.". 18. Substitution of First Schedule In Appendix A to the Principal Rules, for the First Schedule substitute— "FIRST SCHEDULE—CIRCUIT FEES Circuit Town Fee for first six hours Further fee for each five hours thereafter Bairnsdale 263.00 175.00 Ballarat 169.00 114.00 Bendigo 199.00 132.00 Geelong 144.00 92.00 Hamilton 274.00 183.00 Horsham 274.00 183.00 Kerang 274.00 183.00 Mildura 335.00 222.00 Morwell 202.00 132.00 Sale 238.00 157.00 Circuit Town Fee for first six hours Further fee for each five hours thereafter Shepparton 228.00 154.00 Wangaratta 251.00 166.00 Warrnambool 263.00 175.00 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.". r. 18 -- 16 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 16 Dated: 1 December 1999 G. R. D. WALDRON, Chief Judge JOHN DEE EUGENE CULLITY E. H. CURTAIN F. G. DYETT DAVID MORROW JOHN K. NIXON MARGARET RIZKALLA FRANK WALSH T. G. WODAK L. S. OSTROWSKI A. P. DUCKETT W. FAGAN S. P. GEBHARDT G. R. G. CROSSLEY J. M. PANNAM T. A. NEESHAM TIMOTHY HOLT D. A. T. JONES IAN C. ROBERTSON J. R. HANLON G. R. ANDERSON M. C. KIMM L. D. PILGRIM M. HIGGINS P. D. JENKINS F. B. LEWIS K. M. WILLIAMS B. STOTT R. K. KENT J. H. BARNETT ═══════════════ r. 18 -- 17 of 18 -- S.R. No. 128/1999 County Court (Chapter I Amendment No. 1) Rules 1999 17 NOTES 1 Rule 3: S.R. No. 20/1999. 2 The heading to Rule 33.09 is changed to "Opinion on liability". Notes -- 18 of 18 --