Magistrates' Court Civil Procedure Rules 1999

i Magistrates' Court Civil Procedure Rules 1999 S.R. No. 58/1999 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 PART 1—GENERAL 1 1.01 Object 1 1.02 Authorising provisions 1 1.03 Commencement 1 1.04 Revocation 1 PART 2—APPLICATION OF RULES 2 1.05 Definitions 2 1.06 Application 2 1.07 Proceedings in another court 2 1.08 Order in pending proceeding 3 1.09 Costs 3 PART 3—INTERPRETATION 4 1.10 Definitions 4 PART 4—MISCELLANEOUS 6 1.11 Exercise of power 6 1.12 Procedure wanting or in doubt 6 1.13 Act by corporation 6 1.14 Corporation a party 7 1.15 Power to act by solicitor 7 1.16 Filing of documents 7 1.17 Seal of Court 7 1.18 Use of electronic messages for lodging Court documents 8 ORDER 2 8 NON-COMPLIANCE WITH THE RULES 8 2.01 Effect of non-compliance 8 2.02 Originating process 9 2.03 Application to set aside for irregularity 9 -- 1 of 266 -- Rule Page ii 2.04 Dispensing with compliance 9 ORDER 3 9 TIME, SITTINGS, COURT OFFICE AND DOCUMENTS 9 3.01 Calculating time 9 3.02 Extension and abridgement 10 3.03 Fixing time 10 3.04 Time for service 10 3.04.1 Process in vacation 11 3.05 Content and form of documents 11 3.06 Registrar refusing to accept documents 13 3.07 Scandalous matter 14 ORDER 4 14 PROCESS IN THE COURT 14 4.01 Claim not to be divided 14 4.02 Form of complaint 14 4.02.1 Requirements for filing a complaint by an electronic message 17 4.02.2 Complaints by electronic message to comply with Rules 17 4.02.3 Copy of complaint commenced by electronic message to be provided upon request 17 4.03 Costs to be specified 18 4.04 Filing of process 18 4.05 Duration 19 4.06 Interlocutory application 20 4.07 Names of parties 20 4.08 Urgent cases 20 4.09 Discontinuance and withdrawal 20 4.10 Costs on discontinuance or withdrawal 20 4.11 Stay on new proceeding 21 ORDER 5 21 SERVICE 21 5.01 When personal service necessary 21 5.02 Complaint to be served personally 21 5.03 How personal service effected 21 5.04 Service on particular defendants 22 5.05 Service on persons jointly sued 23 5.06 Claims for personal injury 23 5.07 How ordinary service effected 24 5.08 Acceptance of service by solicitor 25 5.09 Substituted service 25 5.10 Service of document by the Court 26 -- 2 of 266 -- Rule Page iii 5.11 Affidavit of service 26 ORDER 6 27 CLAIMS AND PARTIES 27 PART 1—JOINDER AND SEVERANCE 27 6.01 Joinder of claims 27 6.02 Joinder of parties permitted 27 6.03 Plaintiff suing for numerous persons 28 6.04 Business or firm name 28 6.04.1 Plaintiff suing owner or charterer of ship 28 6.05 Additions, removal, substitutions of party 28 PART 2—CONSOLIDATION 28 6.06 Consolidation of proceedings 28 6.07 Where several complaints against one defendant 29 ORDER 7 29 COUNTERCLAIM 29 7.01 When counterclaim allowed 29 7.02 Form of counterclaim 30 7.03 Trial of counterclaim 31 7.04 Counterclaim on stay etc., of original proceeding 31 ORDER 8 31 THIRD PARTY PROCEDURE 31 8.01 Claims by third party notice 31 8.02 Filing and service of third party notice 32 8.03 Plaintiff may join third party 32 8.04 Separate disposal or stay of third party proceeding 32 8.05 Directions 33 8.06 Trial 33 8.07 Subsequent parties 33 8.08 Counterclaim 33 8.09 Contribution proceedings 34 8.10 Proceedings to enforce order for contribution or indemnity 34 ORDER 9 34 -- 3 of 266 -- Rule Page iv DEFENCES AND PARTICULARS 34 9.01 Notice of defence after service 35 9.03 Particulars from plaintiff 36 9.04 Particulars from defendant 36 9.05 Time for giving notice 36 9.06 Particulars to be filed 36 9.07 Counterclaim and third party claim 37 9.08 Failure to give particulars 37 9.09 Request for referral of a medical question to a Medical Panel— Form 9B 37 ORDER 10 38 ORDER IN DEFAULT OF DEFENCE OR COMPLIANCE 38 PART 1—ORDER IN DEFAULT OF DEFENCE 38 10.01 Plaintiff may apply for order 38 10.02 Affidavit required 38 10.02.1 Application by electronic message 39 10.03 Registrar may make order or refer to Court 40 PART 2—ORDER IN DEFAULT OF COMPLIANCE 41 10.04 Defendant may apply for costs order 41 10.05 Applications under Rule 10.04 41 10.06 Registrar may make order or refer to Court 42 PART 3—SUMMARY ORDERS FOR PLAINTIFF 43 10.07 Application 43 10.08 Application for an order 43 10.09 Affidavit in support 43 10.10 Service 44 10.11 Defendant to show cause 44 10.12 Affidavit in reply 44 10.13 Hearing of application 44 10.14 Cross-examination on affidavit 45 10.15 Order on counterclaim 45 10.16 Order where amount unascertained 46 10.17 Directions 46 10.18 Continuing for other claim or against other defendant 46 10.19 Setting aside order 46 ORDER 11 47 DISCOVERY 47 -- 4 of 266 -- Rule Page v 11.01 Definition 47 11.02 Notice for discovery 47 11.02.1 Discovery requiring leave of Court 47 11.03 Time for notice 48 11.04 Affidavit of documents 48 11.05 Time for making discovery 49 11.05.1 Continuing obligation to make discovery 49 11.06 Inspection of documents 49 11.07 Failure to make discovery 50 ORDER 12 51 INTERROGATORIES 51 12.01 When interrogatories allowed 51 12.01.1 Interrogatories requiring leave of Court 51 12.02 Time for serving interrogatories 51 12.03 Statement as to who to answer 51 12.04 Time for answering interrogatories 51 12.05 Answers and objections 51 12.06 Who to answer 52 12.07 Failure to answer interrogatories 52 12.08 Answers as evidence 53 ORDER 13 54 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON- PARTY 54 13.01 Definitions 54 13.02 Privilege 54 13.03 Discovery to identify a defendant 55 13.04 Party an applicant 56 13.05 Discovery from prospective defendant 56 13.06 Party an applicant 56 13.07 Discovery from non-party 57 13.08 Procedure 57 13.09 Inspection of documents 58 13.10 Costs 58 ORDER 14 58 ADMISSIONS 58 -- 5 of 266 -- Rule Page vi 14.01 Definition 58 14.02 Voluntary admission of facts 58 14.03 Notice for admission of facts 59 14.04 Notice for admission of documents 59 14.05 Cost of non-admission of fact or document 60 14.06 Restrictive effect of admission 60 ORDER 15 60 OFFERS OF COMPROMISE 61 15.01 Definitions 61 15.02 Defendant may make offer 61 15.02.1 Plaintiff may make offer of compromise in certain proceedings 61 15.02.2 Costs consequences of failure to accept 62 15.03 Acceptance of offer 62 15.04 Effect of offer 63 15.05 Disclosure of offer to Court 63 15.06 Failure to comply with accepted offer 63 15.07 Costs consequences of failure to accept 64 15.08 Multiple defendants 64 15.09 Offer to contribute 65 ORDER 16 66 EVIDENCE GENERALLY 66 16.01 Evidence of witness 66 16.01.1 Quotation or assessment as evidence 66 16.02 When affidavit may be used 67 16.03 Use of affidavits when practicable 67 16.04 Attendance and production 67 16.05 View 68 16.06 Admission of documents 68 16.07 Person about to leave Victoria may be ordered to be examined or to produce documents 68 ORDER 16A—APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 69 16A.01 Application of Order 69 16A.02 Form of application 69 16A.03 Filing 69 16A.04 Service 69 16A.05 Duty of applicant 70 16A.06 Payment of costs 70 -- 6 of 266 -- Rule Page vii ORDER 17 70 WITNESS SUMMONSES 70 17.01 Attendance by summons 70 17.02 Filing summons 70 17.03 Service 71 17.04 Conduct money 71 17.05 Expenses of witness 71 17.06 Setting aside 72 17.07 Books of account 72 17.08 Production before date of attendance 72 ORDER 18 72 AFFIDAVITS 72 18.01 Form of affidavit 72 18.02 Affidavit by illiterate, blind or incapacitated person 73 18.03 Content of affidavit 74 18.04 Affidavit by two or more deponents 74 18.05 Alterations 74 18.06 Annexures and exhibits 75 18.07 Time for swearing 75 18.08 Irregularity 75 18.09 Filing 75 18.10 Affidavit sworn before party, solicitor 76 ORDER 19 76 EXPERT EVIDENCE 76 19.01 Application 76 19.02 Service of statement of expert evidence 77 19.03 Making a statement of other party evidence 77 ORDER 19A 77 SERVICE OF MEDICAL REPORTS 77 19A.01 Application 77 19A.02 Counterclaim 78 19A.03 Definitions 78 19A.04 Notice for examination 79 19A.05 Expenses 79 19A.06 Report of examination 80 19A.07 Service of reports 80 19A.08 Time for service 80 19A.09 Other medical reports to be served 81 19A.10 Proceeding against medical expert 81 -- 7 of 266 -- Rule Page viii 19A.11 Medical report admissible 82 19A.12 No evidence unless disclosed in report 83 ORDER 20 83 APPLICATIONS 83 PART 1—GENERAL 83 20.01 Application of Order 83 20.02 Form of application 83 20.03 Form and filing 84 20.04 Service 84 20.05 Adjournment 84 20.06 Absence of party to application 84 PART 2—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 85 20.07 Definitions 85 20.08 Application for appointment of nominal defendant— Forms 20B and 20C 85 20.09 Application for discharge 86 20.10 Application for reference of question to medical referee— Forms 20D, 20E, 20F, 20G, 20H, 20J and 20K 86 20.11 Application for revocation of direction of Conciliation Officer 88 ORDER 21 89 ARBITRATION 89 21.01 Application 89 21.02 Discovery and interrogatories 89 ORDER 22 89 PRE-HEARING CONFERENCES 89 22.01 Procedure 89 22.02 Confidentiality 90 ORDER 23 91 HEARING 91 23.01 Order of hearing 91 23.02 No addresses 91 -- 8 of 266 -- Rule Page ix 23.03 Absence of party 91 23.04 Adjournment of hearing 91 ORDER 24 91 INSTRUMENTS ACT RULES 91 24.01 Definition 91 24.02 Application of Order 92 24.03 Form of complaint 92 24.04 Leave to defend 92 24.05 Order where leave not granted 92 24.06 Notice to parties 93 24.07 Leave to defend after order made 93 ORDER 25 94 ORDERS 94 25.01 General relief 94 25.02 Date of effect 94 25.03 Time for compliance 94 25.04 Orders may be drawn up; certified extract 94 25.05 Consent orders 95 25.06 Order where excess abandoned 95 25.07 Setting aside or varying self-executing order 95 ORDER 26 96 COSTS 96 26.01 Costs to be fixed on day of hearing 96 26.02 Costs in accordance with Appendix A 97 26.03 Application of scale 97 26.04 Costs on counterclaim 97 26.05 Costs of discovery, particulars 98 26.06 Complaint not referred to arbitration 98 26.07 Costs after defence struck out 98 26.08 Costs after complaint dismissed 98 ORDER 27 99 ENFORCEMENT OF ORDERS 99 PART 1—DEFINITIONS 99 27.01 Definitions 99 -- 9 of 266 -- Rule Page x PART 2—WARRANTS GENERALLY 102 27.02 Issue of warrant 102 27.02.1 Issue of warrant consequent to request by electronic message 103 27.03 Duration 104 27.04 Costs of prior execution 104 27.05 Interpleader 105 27.06 When interpleader decided against the claimant 105 27.07 Order against two or more persons 106 27.08 Order against partners 106 PART 3—WARRANTS TO SEIZE PROPERTY 107 27.09 Warrant to seize property 107 27.10 Form of warrant 108 27.10.1 Notice to person responsible for safe-keeping of seized property 108 PART 4—WARRANTS OF DELIVERY 108 27.11 Warrant of delivery 108 27.12 Form of warrant 109 PART 4A—ORAL EXAMINATION 109 27.12.1 Examination of judgment debtor 109 27.12.2 Issue of summons for oral examination consequent to application by electronic message 110 PART 5—ATTACHMENT OF EARNINGS ORDERS 111 27.12.3 Definition 112 27.13 Attachment of earnings order 112 27.15 Application for attachment of earnings order 112 27.16 Examination of judgment debtor 113 27.17 Making an order in absence of debtor 114 27.18 Contents of order 116 27.19 Service of order 117 27.20 Employer to make payments 118 27.21 Discharge or variation of order 118 27.22 Cessation of attachment of earnings order 119 27.23 Two or more attachment of earnings orders in force 119 27.24 Notice to judgment debtor of payments 120 27.25 Determination of earnings 121 27.26 Service 121 PART 6—ATTACHMENT OF DEBTS 121 27.27 Attachable debts 121 27.30 Order for attachment of debt 122 27.31 Dispute of liability by garnishee 123 -- 10 of 266 -- Rule Page xi 27.33 Claim by another person 123 27.34 Discharge of garnishee 123 PART 7—IMPRISONMENT OF FRAUDULENT DEBTORS 124 27.35 Application for summons 124 ORDER 28 124 JUDGMENT DEBT RECOVERY RULES 124 28.01 Definition 124 28.02 Application under section 5 124 28.03 Application under section 6 or 8 124 28.04 Notice of objection 125 28.05 Agreement under section 7 125 28.06 Order in absence of parties 125 28.07 Summons for examination 126 28.08 Warrant of apprehension 126 28.09 Forms of notice 126 28.10 Warrant of commitment 126 28.11 Payments to be made to registrar 126 28.12 Certificate of discharge 126 28.13 Service and notification 127 28.14 Adjournment 127 ORDER 29 127 VENUE AND TRANSFER OF PROCEEDINGS 127 29.01 Venue of Court 127 29.02 Transfer of proceeding to the Court 128 ORDER 30 129 RE-HEARING 129 30.01 Application for re-hearing 129 30.02 Form of application 129 30.03 Re-hearing date 130 ORDER 31 130 SECURITY FOR COSTS 130 31.01 Definitions 130 31.02 When security for costs may be ordered 130 31.03 Manner of giving security 131 -- 11 of 266 -- Rule Page xii 31.04 Failure to give security 131 31.05 Variation or setting aside 131 31.06 Payment by way of irrevocable guarantee 131 31.07 Requirements of guarantee 131 31.08 Liability of bank 132 ORDER 32 132 PERSON UNDER DISABILITY 132 32.01 Litigation guardian of minor 132 32.02 Person with a disability 133 32.03 Litigation guardian of defendant 134 32.04 Power of litigation guardian 134 32.05 Compromise of claim by minor or a person with a disability 134 32.06 Money to be paid into court 135 32.07 Investment of money 135 ORDER 33 136 REGISTRARS 136 33.01 Reference to a magistrate 136 33.02 Appeal from registrar 136 ORDER 34 136 APPEALS 136 34.01 Application of order 136 34.02 Notice of appeal 136 34.03 Amendment of grounds 137 34.04 Affidavit 137 34.05 Date for hearing 137 ORDER 35 138 MISCELLANEOUS RULES 138 35.01 Civil registry courts 138 35.02 General power of amendment 138 35.03 Directions 138 35.04 Injunctions 138 35.05 Preservation of property 138 35.06 Practice notes 139 __________________ FORMS 140 Form 1A—Electronic lodgment authorisation 141 -- 12 of 266 -- Rule Page xiii Form 4A—Complaint 142 Form 5A—Affidavit/declaration of service 145 Form 7A—Counterclaim 146 Form 8A—Third party notice 148 Form 8B—Notice claiming contribution 150 Form 9A—Notice of defence 151 Form 9B—Notice of request pursuant to section 45(1)(b) of the Accident Compensation Act 1985 152 Form 10A—Application for order 153 Form 10B— 154 Form 10C—Application for summary order 155 Form 10D—Application for *setting aside/*variation of summary order 156 Form 11A—Notice for discovery 156 Form 11B—Affidavit of documents 157 Form 11C—Notice to produce 159 Form 14A—Notice to admit 160 Form 14B—Notice of dispute 161 Form 16AA—Notice of application under section 42E(1) of the Evidence Act 1958 162 Form 17A—Witness summons to give evidence 164 Form 17B—Witness summons for production 165 Form 17C—Witness summons for production and to give evidence 167 Form 17D—Witness summons for production 169 Form 20A—Application 171 Form 20B—Application for appointment of nominal defendant 171 Form 20C—Notice of appointment of nominal defendant 172 Form 20D—Application for reference of question to medical referee 173 Form 20E—Order of reference 174 Form 20F—Certificate of identity 175 Form 20G—Notice to be given to worker intending to cease to reside in Australia 176 -- 13 of 266 -- Rule Page xiv Form 20H—Form of medical certificate to be obtained by worker residing out of Australia 178 Form 20J—Declaration of identity by worker residing out of Australia 179 Form 20K—Notice by Registrar to employer of receipt of medical certificate and declaration of identity 180 Form 24A—Complaint 181 Form 24B—Application for leave to defend 183 Form 24C—Application for order 184 Form 24D—Notification of decision 185 Form 24E—Application for leave to defend after order made 186 Form 27A—Interpleader summons 187 Form 27B—Warrant to seize property 188 Form 27BA—Notice to person responsible for safe-keeping of property seized under a warrant to seize property 190 Form 27C—Warrant of delivery 191 Form 27CA—Summons to attend for oral examination 193 Form 27CB—Summons to attend to give evidence or produce documents 195 Form 27CC—Examination of a judgment debtor 196 Form 27CD—Examination of an officer of a judgment debtor which is a corporation 200 Form 27D—Attachment of earnings summons 203 Form 27E—Affidavit in support of application for attachment of earnings order 204 Form 27F—Judgment debtor's statement of financial position 205 Form 27J—Order that judgment debtor attend for examination 209 Form 27K—Order that person indebted or employer of judgment debtor give statement 209 Form 27L—Attachment of earnings order 210 Form 27M—Notice to employer 212 Form 27N—Notice by employer that judgment debtor is not in the employ of the employer 214 Form 27P—Garnishee order 215 -- 14 of 266 -- Rule Page xv Form 27Q—Garnishee order 216 Form 27R—Affidavit in support of summons for commitment 217 Form 28A—Application for instalment order 218 Form 28B—Statement of affairs 221 Form 28C—Notice of objection 225 Form 28D—Instalment agreement 226 Form 28E—Summons for examination 228 Form 28F—Application for issue of summons 230 Form 28G—Warrant of apprehension 231 Form 28H—Notice 232 Form 28J—Notice 233 Form 28K—Notice 234 Form 28L—Warrant of commitment 235 Form 28M—Certificate of discharge 236 Form 30A—Application for re-hearing 237 Form 31A—Irrevocable bank guarantee 238 Form 31B—Notice of discharge and payment into court 238 Form 32A—Consent to act as litigation guardian 239 Form 34A—Notice of appeal 240 __________________ APPENDIX A—Scale of costs 240 APPENDIX B—Civil registry courts 249 __________________ SCHEDULE 1—Rules revoked 250 ═══════════════ -- 15 of 266 -- 1 STATUTORY RULES 1999 S.R. No. 58/1999 Magistrates' Court Act 1989 Magistrates' Court Civil Procedure Rules 1999 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: ORDER 1 PRELIMINARY PART 1—GENERAL 1.01 Object The object of these Rules is to re-make with amendments the rules of procedure in civil proceedings in the Magistrates' Court of Victoria. 1.02 Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 1.03 Commencement These Rules come into operation on 1 June 1999. 1.04 Revocation The Rules in Schedule 1 to these Rules are revoked. -- 16 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 2 PART 2—APPLICATION OF RULES 1.05 Definitions In this Part— "commencement date" means the date referred to in Rule 1.03; "former Rules" means the Magistrates' Court Civil Procedure Rules 1989; "pending proceeding" means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied. 1.06 Application (1) These Rules apply to every civil proceeding commenced in the Court on or after the commencement date except where inconsistent with any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984. (2) These Rules apply, with any necessary modification, to a pending proceeding and anything required or permitted to be done under these Rules with respect to a proceeding commenced on or after the commencement date shall or may be done in a pending proceeding. 1.07 Proceedings in another court (1) Except as the Court otherwise orders these Rules apply, with any necessary modification, to proceedings commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date as if they were a proceeding commenced in the Court on the day they were remitted, transferred or removed. r. 1.05 -- 17 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 3 (2) For the purposes of this Part a proceeding commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date shall be taken to be a pending proceeding. 1.08 Order in pending proceeding (1) Except as provided in this Rule, these Rules apply to an order made in a pending proceeding as if it had been given in a proceeding commenced after the commencement date. (2) An order made in a pending proceeding before the commencement date may be enforced in accordance with these Rules, but otherwise the order shall have the same force and effect as if it were made under any Act or Rules previously in force. (3) Without limiting paragraph (2)— (a) no appeal may be brought, application to set aside or vary made or other proceeding taken in respect of an order made before the commencement date which could not have been brought, made or taken in respect of that order under the former Rules immediately before the commencement date; (b) process commenced under the former Rules to enforce an order made before the commencement date may be continued or carried out and aided in accordance with those Rules. 1.09 Costs (1) The amount of costs for work done in a pending proceeding before the commencement date shall be determined in accordance with the former Rules and the amount of costs for work done in r. 1.08 -- 18 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 4 the proceeding on or after that date shall be determined in accordance with these Rules. (2) For the purpose of this Rule work done in a pending proceeding on or after the commencement date in accordance with the former Rules shall, so far as practicable, be taken to have been done in accordance with these Rules. PART 3—INTERPRETATION 1.10 Definitions (1) In these Rules, unless the context or subject matter otherwise requires— "authorised insurer" has the same meaning as in section 5(1) of the Accident Compensation Act 1985; "authorised user" means a person or body authorised by the Chief Magistrate under Rule 1.18 to file documents by lodging electronic messages with the Court; "Authority" means the Victorian WorkCover Authority established under section 18(1) of the Accident Compensation Act 1985; "Conciliation Officer" means a person nominated as a Conciliation Officer under section 54 of the Accident Compensation Act 1985; "corporation" means any body corporate, whether formed within or out of Victoria; "discovery" includes discovery and inspection of documents and discovery by written interrogatories or oral examination and "make discovery of documents" means make an affidavit of documents complying with the requirements of these Rules, file the r. 1.10 -- 19 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 5 affidavit and serve a copy on the party or person entitled to the discovery; "electronic message" means data transmitted electronically by an authorised user to the Court; "employer" in a proceeding under the Accident Compensation Act 1985 has the same meaning as in section 5(1) of that Act and in a proceeding under the Workers Compensation Act 1958 has the same meaning as in section 2 of that Act; "Medical Panel" means a Medical Panel under the Accident Compensation Act 1985; "medical question" has the same meaning as in section 5(1) of the Accident Compensation Act 1985; "order made" means an order made by the Court at the hearing of a proceeding or on the hearing of an application in a proceeding; "personal injury" includes any impairment of mental condition or any disease; "plaintiff" includes a claimant under section 44(1) of the Workers Compensation Act 1958; "proceeding" means any matter in the Court commenced by complaint or as otherwise provided by or under any Act or these Rules; "registrar" means the principal registrar or the registrar or deputy registrar of the Court at the proper venue of the Court in relation to a proceeding; "self-insurer" has the same meaning as in section 5(1) of the Accident Compensation Act 1985; r. 1.10 -- 20 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 6 "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 Magistrates' Court Act 1989; "worker" in a proceeding under the Accident Compensation Act 1985 has the same meaning as in section 5(1) of that Act and in a proceeding under the Workers Compensation Act 1958 has the same meaning as in section 3(1) of that Act. PART 4—MISCELLANEOUS 1.11 Exercise of power The Court may exercise any power under these Rules of its own motion or on application. 1.12 Procedure wanting or in doubt Where the manner or form of the procedure— (a) for commencing, or for taking any step, in a proceeding; or (b) by which the jurisdiction, power or authority of the Court is exercisable— is not prescribed by these Rules or by or under any Act the general principles of practice and the Rules and forms observed and used in the Supreme Court may, at the discretion of the Court, be adopted and applied to any proceeding with such modification as may be necessary. 1.13 Act by corporation r. 1.11 r. 1.13 -- 21 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 7 Where the Court makes an order that a corporation do any act, it may order that the act be done by the corporation by its appropriate officer. 1.14 Corporation a party (1) Subject to paragraph (2), a corporation must not take any step in a proceeding except by a solicitor. (2) Paragraph (1) does not apply— (a) if by or under any Act or these Rules a corporation is permitted to act other than by a solicitor; and (b) to the filing of a complaint, the giving of a notice of defence and, in a case to which Order 10 applies, obtaining an order by a corporation which is a party or by an employee, authorised in writing, of a corporation which is a party. 1.15 Power to act by solicitor (1) Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party's solicitor. (2) Where a solicitor ceases to act for a party in a proceeding the solicitor must forthwith file notice of ceasing to act and serve a copy on all parties including the party for whom the solicitor has ceased to act. 1.16 Filing of documents Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by its being lodged with the registrar in the office of the Court at the proper venue of the Court. 1.17 Seal of Court r. 1.17 -- 22 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 8 (1) The principal registrar and every registrar shall each have in his or her custody a stamp the design of which shall as near as practicable be the same as the design of the seal of the Court with the addition of, in the case of— (a) the principal registrar, the words "Principal Registrar"; (b) a registrar, the word "Registrar". (2) Making a document or a copy of a document with a stamp referred to in paragraph (1) is sufficient compliance with any requirements of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court. 1.18 Use of electronic messages for lodging Court documents (1) The Chief Magistrate may authorise a person or body to file documents in the Court by lodging electronic messages with the Court. (2) Any authorisation under paragraph (1) must be in Form 1A. ORDER 2 NON-COMPLIANCE WITH THE RULES 2.01 Effect of non-compliance (1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein a nullity. (2) Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may— (a) set aside the proceeding, either wholly or in part; -- 23 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 9 (b) set aside any step taken in the proceeding, or any document or order therein; (c) exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally. 2.02 Originating process The Court must not wholly set aside any proceeding or the complaint by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process. 2.03 Application to set aside for irregularity The Court must not set aside any proceeding or any step in any proceeding or any document or order therein on the ground of a failure to comply with these Rules on the application of any party unless the application is made— (a) within a reasonable time after the applicant becomes aware of the failure; and (b) before the applicant has taken any fresh step (save for filing a defence) after becoming aware of the failure. 2.04 Dispensing with compliance The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. ORDER 3 TIME, SITTINGS, COURT OFFICE AND DOCUMENTS 3.01 Calculating time r. 2.02 r. 3.01 -- 24 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 10 (1) Any period of time fixed by these Rules or by any order or by any document in any proceeding must be calculated in accordance with this Rule. (2) Where a time of one day or longer is to begin on, or to be calculated from, a day or event, the day or the day of the event shall be excluded. (3) Where a time of one day or longer is to end on, or to be calculated to, a day or event, the day or the day of the event shall be included. (4) Where a period of five days or less would include a day on which an office of the Court is closed, that day shall be excluded. (5) Where the last day for doing any act at an office of the Court is a day on which the office is closed, the act may be done on the next day the office is open. 3.02 Extension and abridgement (1) The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time. (2) Subject to Rule 4.05, the Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires. 3.03 Fixing time Where no time is fixed by these Rules or by order for doing any act in a proceeding, the Court may fix a time. 3.04 Time for service (1) In this Rule "document" does not include a complaint. r. 3.04 -- 25 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 11 (2) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time any document which is served after 4.00 p.m. or on any day an office of the Court is closed shall be taken to have been served on the next day the office is open. 3.04.1 Process in vacation (1) In calculating the time fixed by these Rules or by an order fixing, extending or abridging time, the period from 24 December to 7 January next following must be excluded, unless the Court otherwise orders. (2) Where the Court makes an order under paragraph (1), it may give any direction as to service as it thinks fit. 3.05 Content and form of documents (1) A document prepared by a party for use in the Court shall be prepared in accordance with this Rule. (2) A document must be headed "In the Magistrates' Court of Victoria at", or, if the document is in a proceeding in the Industrial Division of the Court or a proceeding to be commenced in the Industrial Division of the Court "In the Magistrates' Court of Victoria (Industrial Division) at" stating the proper venue of the Court in which the proceeding is or is to be commenced and must show any identifying number assigned by the Court to the proceeding. (3) A document must be of durable paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4, and be capable of receiving writing in ink. -- 26 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 12 (4) Except as listed in paragraph (4.1), both sides of the paper may be used, with double spacing between the lines and a left-hand margin of at least 40 millimetres. (4.1) In the following documents one side only of the paper must be used— (a) a counterclaim; (b) a third party notice; (c) a notice of defence; (d) a request for particulars and particulars provided; (e) interrogatories and answers to interrogatories; (f) a notice to admit, admissions and notice of dispute; (g) an offer of compromise and offer to contribute; (h) an affidavit including an affidavit of discovery but excluding an affidavit of service; (i) a statement of an expert witness; (j) an application under Order 20 or Order 30. (5) The text of a document must be clear, sharp, legible and permanent. (6) A document must not bear any erasure or alteration that causes material disfigurement. (7) A document, other than a complaint, must be endorsed on the front sheet with— (a) the title of the proceeding and any identifying number; (b) a short description of the document; r. 3.05 -- 27 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 13 (c) the name of the party on whose behalf it is filed; (d) if a solicitor prepares the document, the name, address, telephone number, document exchange number, code reference of the solicitor's firm and the solicitor's reference or name of an individual in the firm to whom reference can be made in respect of the proceeding; (e) if the party on whose behalf the document is filed acts without a solicitor, the name address and telephone number of that party. (8) The Court may require any document in a proceeding to be prepared in any manner it thinks fit. (9) Dates, amounts and other numbers must be expressed in figures and not in words. 3.06 Registrar refusing to accept documents (1) A registrar may refuse to accept a document where the registrar considers that the form or contents of the document show that were the document to be accepted the proceeding so commenced would be an abuse of the process of the Court. (2) Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court— (a) the registrar may refuse to accept it for filing without the direction of the Court; (b) the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is properly prepared is filed. r. 3.06 -- 28 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 14 (3) The Court may direct the registrar to accept a document for filing. 3.07 Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order— (a) that the offending matter be deleted; or (b) if the document has been filed, that it be taken off the file. ORDER 4 PROCESS IN THE COURT 4.01 Claim not to be divided (1) A plaintiff must not divide a claim or cause of action for the purpose of making two or more complaints. (2) A plaintiff who has a claim for more than the amount for which a claim may be made in the Court may abandon the excess by so stating in the particulars of the claim. 4.02 Form of complaint A complaint must— (a) state the full name of the plaintiff, an address for service of notices and documents upon the plaintiff, and if the plaintiff sues in a representative capacity, the capacity in which the plaintiff sues; and (b) state the name and address of the defendant; and (c) where the plaintiff sues by a solicitor, the name or firm and business address within Victoria of the solicitor and also, if the r. 3.07 -- 29 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 15 solicitor is the agent of another, the name and firm and the business address of the principal; and (d) contain— (i) a concise statement of the nature of the claim; and (ii) the place where and the date when the claim arose; and (iii) particulars of the plaintiff's claim; and (iv) a statement of the amount, relief or remedy sought; and (da) if the claim arises from a motor vehicle collision and— (i) includes a claim for cost of repairs to the vehicle, have attached to it an itemised quotation of the cost of repairs; or (ii) includes a claim for total loss of the vehicle, have attached to it an assessment of the loss; and (iii) is a claim to which sub-paragraphs (i) or (ii) applies, have included with the particulars of the plaintiff's claim a sketch plan of the collision giving its location, names of roads and the identity of any vehicle involved; and (e) be in Form 4A with Part A or B completed as the case requires; and (f) if the claim is being brought under the Workplace Relations Act 1996 of the Commonwealth and the plaintiff wants a small claims procedure to apply within the meaning of that Act, contain the following indorsement—"Pursuant to the Workplace r. 4.02 -- 30 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 16 Relations Act 1996 of the Commonwealth the plaintiff wants a small claims procedure to apply."; and (g) if the claim is being brought under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 contain the indorsement—"This claim is being brought under the Workers Compensation Act 1958" or "This claim is being brought under the Accident Compensation Act 1985", whichever is appropriate and also contain— (i) the name of the employer; (ii) the name of the authorised insurer of the employer (if any); (iii) the date or dates of any injury or injuries; (iv) a description of the injury; (v) a description of the circumstances as to how the injury occurred; (vi) the date and details of any decision (including details as to who made the decision) of the Authority, authorised insurer, employer or self-insurer which the Court is being requested to inquire into, hear and determine under section 39(1)(a) of the Accident Compensation Act 1985; (vii) the date and details of any recommendation or direction of a Conciliation Officer the Court is being requested to inquire into, hear and determine under section 39(1)(b) of the Accident Compensation Act 1985. r. 4.02 -- 31 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 17 4.02.1 Requirements for filing a complaint by an electronic message If a complaint (including a complaint upon a bill of exchange) is filed by lodging an electronic message, the electronic message must specify— (a) whether or not the complaint is under the Instruments Act 1958; and (b) the full name of the plaintiff and an address for service of notices and documents upon the plaintiff; and (c) the name and address of the defendant; and (d) where the plaintiff sues by a solicitor, the name or firm and business address within Victoria of the solicitor; and (e) the nature of the claim; and (f) the place where and the date when the claim arose; and (g) the amount (if any) claimed and costs claimed; and (h) the proper venue of the Court. 4.02.2 Complaints by electronic message to comply with Rules A complaint which was filed by the lodgement of an electronic message and is to be served on a party must comply with these Rules. 4.02.3 Copy of complaint commenced by electronic message to be provided upon request A copy of a complaint which was filed by lodging an electronic message must be retained by or on behalf of the plaintiff and such copy must be r. 4.02.1 r. 4.02.3 -- 32 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 18 provided to the Court at the request of the registrar. 4.03 Costs to be specified (1) If the plaintiff claims a sum of money only, the complaint must be indorsed with a statement as follows: "If you pay the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs.". (2) The amount of costs in the indorsement must be— (a) in the case of a claim for debt, liquidated demand or claim arising from a motor vehicle collision for cost of repairs only or for total loss of vehicle only, the amount of scale costs in item 1 in Appendix A applicable to the amount claimed; or (b) in any other case, the amount of scale costs in item 2 in Appendix A applicable to the amount claimed— plus the fees (if any) for the filing and service of the complaint. (3) A registrar, upon application made before service of any complaint, may fix an amount in respect of additional disbursements reasonably and necessarily incurred which amount must be included in the indorsement on the complaint. 4.04 Filing of process (1) A proceeding must be commenced by the filing of a complaint— (a) in the office of the Court at the proper venue of the Court; or r. 4.04 -- 33 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 19 (b) by an authorised user lodging an electronic message with the Court. (2) If an office of the Court is closed, a complaint may be produced by the plaintiff to the magistrate and upon the plaintiff's undertaking that the complaint will be lodged in the office on the day that office is next open and giving such other undertaking as the magistrate requires the magistrate may initial the complaint and it shall thereupon be taken to have been filed. (3) A complaint is valid for all purposes if it bears the allocated Court number and the date of filing. (4) Data contained in electronic messages must be stored by the Court in a computer database or other device so as to be capable of being reproduced therefrom. (5) The date of filing of a complaint lodged by an electronic message which complies with the Act and the Rules is the date the electronic message is received at the Court. 4.05 Duration (1) A complaint, summons or witness summons is valid for service for one year after the day it is filed. (2) If a complaint or summons has not been served on a defendant or if a witness summons has not been served on a witness, the Court may from time to time extend the validity of the complaint, summons or witness summons for such period from the day of the order as the Court directs, not being more than one year from that day. (3) An application for an extension under paragraph (2) must be made on or before a day on which a complaint, summons or witness summons would cease to be valid and no order for extension -- 34 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 20 shall be made after a complaint summons or witness summons ceases to be valid. 4.06 Interlocutory application Unless the Court otherwise orders an interlocutory or other application in a proceeding must be by application. 4.07 Names of parties (1) A person who commences a proceeding is called a plaintiff and a person against whom a proceeding is commenced is called a defendant. (2) On an interlocutory or other application in a proceeding the person making the application is called an applicant and the person to whom notice is given is called a respondent. 4.08 Urgent cases In an urgent case, the Court may, on the application of a person who intends to commence a proceeding and upon the person's undertaking to commence the proceeding within such time as the Court directs, make any order which the Court might make if the applicant had commenced the proceeding and the application were made in the proceeding. 4.09 Discontinuance and withdrawal (1) A complaint, counterclaim or claim by third party notice may be discontinued and a notice of defence may be withdrawn at any time before the day of hearing without the leave of the Court. (2) Notice in writing of discontinuance or withdrawal must be filed and served on each other party. (3) Discontinuance or withdrawal is not effective until the notice under paragraph (2) is filed. 4.10 Costs on discontinuance or withdrawal r. 4.06 r. 4.10 -- 35 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 21 Unless the Court otherwise orders, a party who discontinues or withdraws in accordance with Rule 4.09 must pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal. 4.11 Stay on new proceeding If by reason of discontinuance or withdrawal under this Order a party is liable to pay the costs of any other party, and the party, before paying those costs, commences another proceeding for the same or substantially the same cause of action, the Court may by order stay the proceeding until those costs are paid. ORDER 5 SERVICE 5.01 When personal service necessary Any document required or permitted to be served in a proceeding may be served personally, but unless personal service is required by these Rules or by order, need not be served personally. 5.02 Complaint to be served personally Except where otherwise provided by these Rules, a complaint must be served personally on each defendant, together with two notices of defence. 5.03 How personal service effected (1) Personal service of a document is effected— (a) by leaving a copy of the document with the person to be served or, if the person does not accept the copy, by putting the copy down in r. 5.03 -- 36 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 22 the person's presence and telling the person the nature of the document; or (b) by delivering a copy of the document to the place of residence of the person to be served to a person apparently above the age of sixteen years who resides at that place but when the place of residence is an hotel, boarding house or similar establishment, to some person apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment; or (c) if the person to be served conducts a business, by delivering a copy of the document to the place of business of the person to be served to a person apparently above the age of sixteen years who is apparently in charge of that business or is employed in the office of that business. (2) To effect personal service it shall not be necessary to produce the original document at the time of service. 5.04 Service on particular defendants Personal service of a document may be effected by serving the document in accordance with Rule 5.03, in the case of— (a) a corporation, on the mayor, chairman, president or other head officer of the corporation, or on the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation or, where provision is made by or under any Act for service on a corporation, by serving the document in accordance with that provision; -- 37 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 23 (b) a minor, on a parent or guardian of the minor, and, if there is none, on the person with whom he or she resides or in whose care he or she is; (c) the Crown in the right of the Commonwealth or the Commonwealth, on the Secretary to the Attorney-General's Department or any person authorised under section 55E(4) of the Commonwealth Act known as the Judiciary Act 1903 as amended from time to time to act in the name of the Australian Government Solicitor; (d) the Crown in the right of Victoria or the State of Victoria, on the Victorian Government Solicitor; (e) the owner or charterer of a ship— (i) on the owner charterer or manager for the time being; or (ii) on the Victorian agent for the ship; or (iii) in the case of a claim by a sailor, including a seaman as defined in section 3 of the Workers Compensation Act 1958, other than the master or the dependants of such a sailor, on the master. 5.05 Service on persons jointly sued Notwithstanding Rule 5.02, if a person makes a claim against partners in the name of their firm, it is sufficient if any of those partners is served with the complaint and an order may be obtained and enforced against the person or persons so served, notwithstanding that others jointly liable have not been served. 5.06 Claims for personal injury r. 5.05 r. 5.06 -- 38 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 24 (1) In any proceeding in which the plaintiff claims damages in respect of personal injury caused by or arising out of the use of a motor car, a complaint shall not be taken to have been served on the defendant unless a copy of the complaint is served on the defendant in accordance with these Rules and also on the Transport Accident Commission. (2) If in a proceeding to which paragraph (1) applies a copy of the complaint has been duly served on the defendant but not on the Transport Accident Commission the Court may, notwithstanding paragraph (1), order that the complaint be taken to have been served on the defendant. (3) Service on the Transport Accident Commission for the purposes of this Rule may be by ordinary service. 5.07 How ordinary service effected (1) If personal service of a document is not required, the document may be served— (a) by leaving the document at the address for service of the person to be served; or (b) by posting the document to the person to be served at that person's address for service; or (c) where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision; or (d) when the solicitor for a party has facilities for the reception of documents in a document exchange, by delivering the document into those facilities; or (e) where the solicitor for a party has a facility for the reception of documents by facsimile transmission, by transmitting the document to that facility. -- 39 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 25 (2) The day of service of a document shall, where the document— (a) is sent by post in accordance with paragraph (1)(b)—be taken to be the day it would be delivered in the normal course of post; (b) is delivered into the facilities of a document exchange in accordance with paragraph (1)(d)—be taken to be the day following the day upon which it is so delivered or, where a document is delivered on a Friday or a day preceding a public holiday, be taken to be the following Monday or the next working day after the public holiday, as the case requires— or on such other day as may be proved. (3) In this Rule, "document exchange" means any document exchange for the time being approved by the Chief Justice on the recommendation of the Council of the Law Institute of Victoria. 5.08 Acceptance of service by solicitor If in a proceeding a document is required or permitted to be served on any person, and a solicitor makes on a copy of the document a note that the solicitor accepts service of the document on behalf of the person served, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been duly served on that person on the day on which the solicitor makes the note or on such other day as may be proved. 5.09 Substituted service (1) If for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that such steps be taken as r. 5.08 r. 5.09 -- 40 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 26 the Court specifies for the purposes of bringing the document to the notice of the person to be served. (2) If the Court makes an order under paragraph (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time. (3) The Court may make an order under paragraph (1) notwithstanding that the person to be served is out of Victoria or was out of Victoria when the proceeding commenced. 5.10 Service of document by the Court If, under these Rules or under an order of the Court, any notice or other document is to be given to or served on any person by the Court, then, unless the Rules otherwise provide or the Court otherwise orders, the notice or document is sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order. 5.11 Affidavit of service (1) An affidavit or declaration of service of any document must state by whom the document was served, the hour of the day, day of the week and date on which it was served and the place and mode of service and must be in Form 5A. (2) A document purporting to be an affidavit or declaration of service shall be taken to be evidence of the proper service of a document unless the contrary is proved. (3) An affidavit of service must be filed as soon as practicable after service of an application or summons. -- 41 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 27 ORDER 6 CLAIMS AND PARTIES PART 1—JOINDER AND SEVERANCE 6.01 Joinder of claims (1) A plaintiff may join any number of claims against a defendant whether the plaintiff makes the claims in the same or in different capacities and whether the claims are made against the defendant in the same or in different capacities. (2) If the Court considers that it is appropriate and convenient to hear separately any claims joined in one complaint, the Court may order that the claims be heard separately. (3) The total amount claimed where claims are joined in the same complaint shall not exceed the jurisdiction of the Court. 6.02 Joinder of parties permitted Two or more persons may be joined as plaintiffs or defendants in any proceeding— (a) where— (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court, before or after the joinder, gives leave to do so. r. 6.01 -- 42 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 28 6.03 Plaintiff suing for numerous persons If, in a proceeding for a debt or liquidated demand or for unliquidated damages there are numerous parties who have the same interest, one or more of the persons may sue on behalf of or for the benefit of all the parties so interested. 6.04 Business or firm name If, in a proceeding for a debt or liquidated demand or for unliquidated damages a person carries on business in a name or style other than the person's own name, that person may sue or be sued in that name or style. 6.04.1 Plaintiff suing owner or charterer of ship It is sufficient in a proceeding to describe the owner or charterer of a ship as the owner or charterer of the named ship as the owner or charterer of the named ship and the provisions of Order 17 of Chapter I of the Rules of the County Court with respect to the disclosure of names of partners apply, with any necessary modification, to the disclosure of the names of the owners or charterers. 6.05 Additions, removal, substitutions of party At any stage of a proceeding the Court may order that any person— (a) who ought to be a party be added as a party or substituted for a party; (b) who is not a proper or a necessary party cease to be a party. PART 2—CONSOLIDATION 6.06 Consolidation of proceedings If two or more complaints are pending in the Court, and— r. 6.03 r. 6.06 -- 43 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 29 (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed in those proceedings are in respect of or arise out of the same transaction or series of transactions; or (c) for any other reason it is desirable to make an order under this Rule— the Court may order the proceedings to be consolidated, or to be heard at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them. 6.07 Where several complaints against one defendant (1) If several complaints by different plaintiffs against the same defendant are pending in the Court and the claims arise out of the same circumstances, the defendant may apply to the Court for an order that all but one of the complaints be stayed. (2) An application under paragraph (1) must be accompanied by an undertaking by the defendant that the defendant will be bound to be heard in respect of all other proceedings to be stayed by the order. (3) On an application under paragraph (1) the court shall select the proceeding to be heard. ORDER 7 COUNTERCLAIM 7.01 When counterclaim allowed r. 7.01 -- 44 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 30 (1) A defendant who has a claim against a plaintiff may counterclaim in the proceedings. (2) These Rules apply to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall file and serve the counterclaim no later than 21 days after notice of defence is given unless the Court otherwise orders. 7.02 Form of counterclaim (1) A counterclaim must be in Form 7A with Part A or B completed as the case requires and contain— (a) a concise statement of the nature of the claim; and (b) particulars of the counterclaim; and (c) a statement of the amount, relief or remedy sought. (2) If the counterclaim arises from a motor vehicle collision and— (a) includes a claim for cost of repairs to the vehicle, have attached to it an itemised quotation of the cost of repairs; (b) includes a claim for total loss of the vehicle, have attached to it an assessment of the loss; and (c) is a claim to which sub-paragraphs (a) or (b) applies, have included with the particulars of the counterclaim a sketch plan of the collision giving its location, names of roads and the identity of any vehicle involved. -- 45 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 31 (3) Two notices of defence in Form 9A, with any necessary modification, must be served with a counterclaim. 7.03 Trial of counterclaim A counterclaim shall be heard at the hearing of the claim unless the Court otherwise orders. 7.04 Counterclaim on stay etc., of original proceeding If the original complaint is stayed, dismissed, discontinued or struck out or if a decision is given for the plaintiff, a counterclaim nevertheless may be prosecuted. ORDER 8 THIRD PARTY PROCEDURE 8.01 Claims by third party notice If a defendant claims as against a person not already a party to the proceeding (in this Order called "the third party")— (a) any contribution or indemnity; (b) any relief or remedy relating to or connected with the original subject-matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question relating to or connected with the original subject-matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party— the defendant may join the third party as a party to the proceeding and make the claim against the r. 7.03 -- 46 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 32 third party by filing and serving a third party notice in Form 8A. 8.02 Filing and service of third party notice (1) A claim against a third party must be commenced by filing a third party notice. (2) A third party notice together with a copy of the complaint must be served on the third party in the same manner as a complaint is served on a defendant. (2.1) A third party notice served under paragraph (2) must also be served on the plaintiff and on any other party who has given a notice of defence. (3) A third party becomes a party to the proceeding when served with the notice. (3.1) A third party who has a claim against any other party in the proceeding may counterclaim and Order 7 shall apply as if the third party is a defendant who counterclaims. (4) A third party notice must not be served more than 42 days after the day on which notice of defence is given unless the Court otherwise orders. 8.03 Plaintiff may join third party (1) If a defendant files a third party notice against a person the plaintiff may join that person as a defendant. (2) The plaintiff must give notice in writing to the third party, the defendant or defendants and the registrar that the third party is joined as defendant. (3) When the notice is filed and served the third party becomes a defendant to the proceeding. 8.04 Separate disposal or stay of third party proceeding r. 8.02 r. 8.04 -- 47 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 33 If a third party notice has been filed and served the Court may at any time before the complaint is determined— (a) order that the defendant's claim or any part of the claim or the facts on which the claim or any part of the claim depends be dealt with or inquired into separately; or (b) stay proceedings on the defendant's claim. 8.05 Directions The Court may give directions or make any order for directions in the proceeding involving the defendant and the third party. 8.06 Trial Unless the Court otherwise orders— (a) the third party may attend and take part at the hearing of the complaint; and (b) the third party shall be bound by the result of the hearing. 8.07 Subsequent parties With the leave of the Court, a third party who wishes to obtain relief of the kind mentioned in Rule 8.01 against any other person, may file and serve a notice on that person or persons and on every other person who is then a party to the proceeding and, if the other person or persons who are not parties, must also serve a copy of the complaint. 8.08 Counterclaim If a defendant has served a counterclaim, this Order with any necessary modification, applies as r. 8.08 -- 48 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 34 if the defendant were the plaintiff and the plaintiff were the defendant. 8.09 Contribution proceedings If a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice claiming relief of the kind described in Rule 8.01 must be in Form 8B. 8.10 Proceedings to enforce order for contribution or indemnity (1) Where an order is made for a plaintiff against a defendant, any order made in favour of the defendant against a third party or co-defendant (other than an order under Part IV of the Wrongs Act 1958) shall not be enforced, without leave of the Court, to any greater extent than that to which the order against the defendant has been satisfied. (2) Where a defendant seeks to enforce an order for contribution or indemnity by the issue of a warrant to seize property or a warrant of delivery the defendant shall file with the registrar an affidavit stating either— (a) that the defendant has paid the whole or part (stating what part) of the sum in respect of which the defendant is entitled to contribution or indemnity; or (b) that the defendant has by order of the Court under Rule 8.10(1) been granted leave to enforce the order against the third party or co-defendant— and the registrar may then issue either a warrant to seize property or a warrant of delivery. ORDER 9 DEFENCES AND PARTICULARS -- 49 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 35 9.01 Notice of defence after service (1) A defendant may give notice of defence at any time after the service of a complaint, but except by leave of the Court a notice of defence must not be given where— (a) the plaintiff has obtained an order under part 1 of Order 10; or (b) by order of the Court the defendant's notice of defence has been struck out. (2) Notice of defence is given by serving a notice of defence in Form 9A on the plaintiff at the address for service stated in the complaint and by filing a copy with the registrar. (3) A copy of a notice of defence may be filed with the registrar by means of facsimile transmission. (4) A notice of defence must— (a) state the name and address of the defendant, and the address for service of the defendant; and (b) contain a statement that the defendant intends to defend the complaint; and (c) contain a concise statement of the nature of the defence and a summary of the material facts, with particulars, on which the defendant relies for the defence. (5) Without limiting paragraph (4)(c), the defendant must state specifically in the notice of defence any fact or matter which— (a) the defendant alleges makes the claim of the plaintiff not maintainable; or (b) if not stated specifically, might take the plaintiff by surprise; or r. 9.01 -- 50 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 36 (c) raises questions of fact not arising out of the complaint. (6) The defendant cannot rely upon the defence of tender unless within seven days after giving notice of defence the defendant pays to the registrar the amount alleged to have been tendered. * * * * * 9.03 Particulars from plaintiff (1) The defendant may give notice to the plaintiff that the defendant requires further particulars of the plaintiff's claim. (2) A notice seeking further particulars must be in writing and must specify in respect of which facts or matters alleged particulars are sought. 9.04 Particulars from defendant (1) The plaintiff may give notice to the defendant that the plaintiff requires further particulars of the defendant's defence. (2) A notice seeking further particulars must be in writing and must specify in respect of which facts or matters alleged particulars are sought. 9.05 Time for giving notice Unless the Court otherwise orders, a notice under Rule 9.03 or 9.04 must not be given more than 14 days after the day on which notice of defence is given. 9.06 Particulars to be filed Within 14 days of receiving a notice seeking particulars, a party must file and serve the further particulars. r. 9.03 r. 9.06 -- 51 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 37 9.07 Counterclaim and third party claim This Order applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. 9.08 Failure to give particulars (1) If a party fails to comply with a notice requiring further particulars, the Court may make an order— (a) requiring the party to provide the further particulars within a time specified by the Court; or (b) requiring the party to provide the further particulars within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. 9.09 Request for referral of a medical question to a Medical Panel—Form 9B r. 9.09 -- 52 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 38 (1) A request by a party for the Court to refer a medical question to a Medical Panel for an opinion under section 45(1)(b) of the Accident Compensation Act 1985 must— (a) state clearly the medical question for referral; (b) be in Form 9B. (2) A copy of the request must be served on all other parties to the proceeding who have an address for service not less than two days before the request is to be considered by the Court. ORDER 10 ORDER IN DEFAULT OF DEFENCE OR COMPLIANCE PART 1—ORDER IN DEFAULT OF DEFENCE 10.01 Plaintiff may apply for order (1) If a defendant does not give notice of defence within 21 days after the service of a complaint or any other time fixed by the Court for giving notice of defence, the plaintiff may apply for an order. (2) An application under paragraph (1) must be— (a) in Form 10A; or (b) subject to Rule 10.02.1, made by electronic message by an authorised user. 10.02 Affidavit required An application under Rule 10.01 to which Rule 10.01(2)(a) applies must be filed with the registrar and must be accompanied by— r. 10.02 -- 53 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 39 (a) where the claim— (i) is for a debt or liquidated demand; or (ii) is a claim arising from a motor vehicle collision and the claim is— (A) for the cost of repairs only; or (B) for total loss of the vehicle only— an affidavit or declaration of service of the complaint; and (b) in any other case— (i) an affidavit or declaration of service of the complaint; (ii) an affidavit or affidavits verifying the complaint and the nature and extent of the injury loss or damage suffered by the plaintiff. 10.02.1 Application by electronic message (1) An application under Rule 10.01 to which Rule 10.01(2)(b) applies may be filed by an authorised user by lodging an electronic message where the claim is for a debt or liquidated demand. (2) The authorised user lodging the electronic message must possess, at the time of lodging the electronic message, an affidavit or declaration of service of the complaint to which the electronic message relates. (3) The electronic message must contain a statement containing the following details obtained from the affidavit or declaration of service— (a) name and address of person who effected service; (b) mode of service; -- 54 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 40 (c) identity of person served; (d) hour of the day, day of the week, date and place of service; (e) distance travelled by person who effected service; (f) date and place of swearing; (g) name and authorisation of person before whom affidavit was sworn or declaration was declared. (4) If requested to do so by the Court or the registrar, the authorised user must file the affidavit or declaration of service. 10.03 Registrar may make order or refer to Court (1) If an application has been made to which paragraph (a) of Rule 10.02 or Rule 10.02.1(1) applies and the registrar is satisfied that an order should be made, the registrar must make such an order. (1.1) In an application under paragraph (1) the registrar must fix the amount of costs and interest as is appropriate in the circumstances in accordance with Appendix A. (2) If an application has been made to which paragraph (a) of Rule 10.02 or Rule 10.02.1(1) applies and the registrar is not satisfied that an order should be made, the registrar may, or if the plaintiff so requests must, refer the matter to the Court for decision. (2.1) If an application has been made to which paragraph (b) of Rule 10.02 applies, the registrar must refer the matter to the Court for decision. (3) If the registrar refers an application to the Court, the Court may— r. 10.03 -- 55 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 41 (a) make the order sought in the application; (b) direct that a further affidavit or affidavits be filed; (c) give directions as to the application; (d) refuse to make the order sought in the application; (e) make any other order it considers appropriate. (4) If the Court, under paragraph (3)(b), directs a further affidavit or affidavits to be filed, upon the filing of such affidavit or affidavits, the registrar may make an order. (5) The registrar must notify the plaintiff of any order made by him or her or (if the application has been referred to the Court) any decision or order of the Court. PART 2—ORDER IN DEFAULT OF COMPLIANCE 10.04 Defendant may apply for costs order (1) If a complaint is dismissed under Rule 9.08(1)(b)(i), Rule 9.08(1)(c), Rule 11.07(1)(b)(i), Rule 11.07(1)(c), Rule 12.07(1)(b)(i), Rule 12.07(1)(c) or Rule 22.02(2)(a), the defendant may apply for an order for costs. (2) An application under paragraph (1) must be in Form 10B. 10.05 Applications under Rule 10.04 (1) An application under Rule 10.04 must be filed with the registrar. (2) Where the complaint is dismissed under Rule 9.08(1)(b)(i), Rule 11.07(1)(b)(i) or r. 10.04 r. 10.05 -- 56 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 42 Rule 12.07(1)(b)(i) the application under paragraph (1) must be accompanied by an affidavit in support of the order(s) sought in the application. 10.06 Registrar may make order or refer to Court (1) If an application has been made under Rule 10.04 and the registrar is satisfied that an order should be made, the registrar must make such an order and must fix the amount of costs as is appropriate in the circumstances in accordance with Appendix A. (2) If an application has been made under Rule 10.04 and the registrar is not satisfied that an order should be made, the registrar may, or if the defendant so requests must, refer the matter to the Court for decision. (3) If the registrar refers an application to the Court, the Court may— (a) make the order sought in the application; (b) direct that a further affidavit or affidavits be filed; (c) give directions as to the application; (d) refuse to make the order sought in the application; (e) make any other order it considers appropriate. (4) If the Court, under paragraph (3)(b), directs a further affidavit or affidavits to be filed, upon the filing of such affidavit or affidavits, the registrar may make an order. (5) The registrar must notify the defendant of any order made by him or her or (if the application has been referred to the Court) any decision or order of the Court. -- 57 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 43 PART 3—SUMMARY ORDERS FOR PLAINTIFF 10.07 Application This Part applies only to a claim or counterclaim for a debt or liquidated demand. 10.08 Application for an order (1) Where the defendant has given a notice of defence, the plaintiff may at any time apply to the Court for an order against the defendant on the ground that the defendant has no defence to the whole or part of the claim, or no defence except as to the amount of the claim. (2) An application under paragraph (1) must be in Form 10C. (3) The application must be filed and, on filing, the application shall be taken to have been made. (4) An affidavit or affidavits in support of the application must be filed before the hearing of the application. (5) Except by order of the Court the plaintiff shall make only one application for an order under paragraph (1). 10.09 Affidavit in support (1) An application for an order shall be supported by an affidavit verifying the facts on which the claim or part of the claim to which the application relates is based and stating that in the belief of the deponent there is no defence to that claim or part, or no defence except as to the amount claimed. (2) Where a statement in a document tends to establish a fact within paragraph (1) and at the hearing of the proceeding the document would be admissible by or under the Evidence Act 1958 or r. 10.07 -- 58 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 44 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. 10.10 Service The plaintiff shall serve the application and a copy of the affidavit or affidavits in support and of any exhibit referred to therein on the defendant not less than 14 days before the day for hearing named in the application. 10.11 Defendant to show cause (1) The defendant may show cause against the orders sought in the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to therein on the plaintiff not less than 3 days before the day for hearing named in the application. 10.12 Affidavit in reply Where the defendant serves an affidavit under Rule 10.11, the Court may by order allow the plaintiff to rely upon an affidavit in reply. 10.13 Hearing of application (1) On the hearing of the application the Court may— (a) dismiss the application; r. 10.10 r. 10.13 -- 59 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 45 (b) make an order in favour of the plaintiff against the defendant on the claim or part of the claim unless the defendant satisfies the Court that in respect of that claim or part a question ought to be heard and determined at a hearing or that there ought for some other reason be a hearing of that claim or part; (c) give the defendant leave to defend with respect to the claim or part of the claim either unconditionally or on terms as to giving security, paying money into court, time, the mode of hearing or otherwise. (2) The Court may stay execution of any order made under paragraph (1)(b) until after the hearing of any counterclaim made by the defendant in the proceeding. 10.14 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit to attend and be examined and cross- examined, or to produce any papers, books or documents, or copies of or extracts therefrom. (2) Where a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer thereof or any person purporting to act in any such capacity. 10.15 Order on counterclaim (1) Where a plaintiff has given a notice of defence to a counterclaim, the defendant may at any time apply to the Court for an order against the plaintiff on the ground that the plaintiff has no defence to the whole or part of the counterclaim or no defence except as to the amount of the counterclaim. -- 60 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 46 (2) This Part shall, with any necessary modification, apply to an application under paragraph (1) as if the plaintiff were the defendant and the defendant the plaintiff. 10.16 Order where amount unascertained Where on an application under this Part for an order the amount of the debt or liquidated demand is not established to the satisfaction of the Court, and where if the amount were established the Court would make an order, the Court may make a declaration as to liability for the debt or liquidated demand and order that its amount be ascertained in such manner as the Court directs, and give leave to apply for an order for the debt or liquidated demand once the amount is ascertained. 10.17 Directions Where leave is given to defend, or where an order is made on a claim or part of a claim but execution of the order is stayed pending the hearing of a counterclaim or of the proceeding, as the case may be, the Court may give directions as to the further conduct of the proceeding. 10.18 Continuing for other claim or against other defendant Where a plaintiff obtains an order on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for the remainder of the claim or any other claim against that defendant or any other defendant. 10.19 Setting aside order (1) The Court may set aside or vary any order given against a party who does not attend on the hearing of an application under Rule 10.08 or 10.15 and may give directions as to the future conduct of the proceeding. r. 10.16 -- 61 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 47 (2) An application referred to in paragraph (1) must be— (a) filed; (b) in Form 10D; (c) supported by affidavit or affidavits. (3) The affidavit or affidavits in support must be filed before the hearing of the application. (4) The applicant must serve a copy of the application and a copy of any affidavit and of any exhibit referred to therein on the respondent to the application not less than 3 days before the day for hearing named in the application. (5) The Court may adjourn the hearing of the application on such terms as it thinks fit. ORDER 11 DISCOVERY 11.01 Definition In this Order "possession" means possession, custody or power. 11.02 Notice for discovery (1) Except where these Rules otherwise provide, any party to a proceeding may serve on any other party a notice for discovery requiring the party served to make discovery of all documents which are or have been in that party's possession relating to the proceeding. (2) A notice for discovery must be in Form 11A. 11.02.1 Discovery requiring leave of Court r. 11.01 r. 11.02.1 -- 62 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 48 (1) Despite Rule 11.03 a notice for discovery shall not be served without leave of the Court in— (a) a proceeding under the Accident Compensation Act 1985; (b) a proceeding under the Workers Compensation Act 1958. (2) If leave is granted under paragraph (1) Rule 26.05 shall not apply, unless the Court otherwise orders. 11.03 Time for notice A notice for discovery must not be served more than 28 days after the day on which notice of defence is given unless the Court otherwise orders. 11.04 Affidavit of documents An affidavit of documents for the purpose of making discovery of documents must be in Form 11B and must— (a) identify the documents which are or have been in the possession of the party making the affidavit; (b) enumerate the documents in convenient order and describe each document or, in the case of a group of documents of the same nature, describe the group, sufficiently to enable the document or group to be identified; (c) distinguish those documents which are in possession of the party making the affidavit from those that have been but are no longer in the party's possession, and as to any document which has been but is no longer in the possession of the party, state when the party parted with the document and the party's belief as to what has become of it; -- 63 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 49 (d) if the party making the affidavit claims that any document in the party's possession is privileged from production, state sufficiently the grounds of the privilege. 11.05 Time for making discovery A party on whom a notice for discovery is served must, within 28 days after service of the notice, make discovery of documents. 11.05.1 Continuing obligation to make discovery A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit. 11.06 Inspection of documents (1) A party may by notice to produce served on another party require that that party produce for inspection any document in that party's possession referred to— (a) in an affidavit of documents; (b) in particulars of claim, notice of defence of counterclaim or in any affidavit. (2) The party on whom a notice to produce is served in accordance with paragraph (1) shall within 7 days after service, serve on the party requiring production a notice appointing a time within 7 days after service of the notice under this paragraph when and a place where the documents may be inspected. (3) A notice to produce must be in Form 11C. r. 11.05 -- 64 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 50 11.07 Failure to make discovery (1) If a party fails to comply with a notice for discovery, the Court may make an order— (a) requiring the party to make discovery of documents within a time specified by the Court; or (b) requiring the party to make discovery of documents within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) This Rule applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (4) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. r. 11.07 -- 65 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 51 ORDER 12 INTERROGATORIES 12.01 When interrogatories allowed Except where these Rules otherwise provide any party to a proceeding may serve on any other party interrogatories relating to any question between them in the proceeding. 12.01.1 Interrogatories requiring leave of Court (1) Despite Rule 12.02 interrogatories shall not be served without leave of the Court in— (a) a proceeding under the Accident Compensation Act 1985; (b) a proceeding under the Workers Compensation Act 1958. (2) If leave is granted under paragraph (1) Rule 26.05 shall not apply, unless the Court otherwise orders. 12.02 Time for serving interrogatories Interrogatories must not be served more than 28 days after the day on which notice of defence is given except with the leave of the Court. 12.03 Statement as to who to answer If interrogatories are to be answered by two or more parties, the interrogating party must state in the document containing the interrogatories which of them each party is required to answer. 12.04 Time for answering interrogatories If interrogatories are served on a party, the party within 28 days after service must answer by affidavit and serve a copy on the party who served the interrogatories. 12.05 Answers and objections r. 12.01 r. 12.05 -- 66 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 52 (1) A party interrogated must answer each interrogatory specifically by answering the substance of the interrogatory without evasion unless it is objectionable on any of the grounds in paragraph (2). (2) If a party objects to answering any interrogatory the party must state briefly on which of the following grounds the party objects to answer— (a) the interrogatory does not relate to any question between the party and the interrogating party; (b) the interrogatory is unclear or vague or too wide; (c) the interrogatory is oppressive; (d) the interrogatory requires the party to express an opinion which the party is not qualified to give; (e) privilege, and must also state sufficiently the grounds of privilege. 12.06 Who to answer Interrogatories shall be answered— (a) where the person on whom the interrogatories are served is— (i) a natural person, by that party; (ii) a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or (b) by any person as the Court may direct. 12.07 Failure to answer interrogatories (1) If a party fails to answer interrogatories, the Court may make an order— -- 67 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 53 (a) requiring the party to answer the interrogatories within a time specified by the Court; or (b) requiring the party to answer the interrogatories within a time specified by the Court and on failure to do so— (i) if the party is a plaintiff, that the complaint be dismissed; or (ii) if the party is a defendant, that the party's notice of defence, if any, be struck out; or (c) if the party is a plaintiff, that the complaint be dismissed; or (d) if the party is a defendant, that the party's notice of defence, if any, be struck out. (2) A defendant whose notice of defence is struck out in accordance with paragraph (1)(b)(ii) or (1)(d) shall, for the purpose of Rule 10.01, be taken to be a defendant who does not give notice of defence. (3) This Rule applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (4) An application for an order under paragraph (1) must be made before the day fixed for hearing of the complaint. 12.08 Answers as evidence (1) On an application in or at the hearing of a proceeding a party may tender as evidence— (a) one or more answers to interrogatories given by another party without tendering the others; r. 12.08 -- 68 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 54 (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) Upon the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless that other answer or part is also tendered. ORDER 13 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY 13.01 Definitions In this Order, unless the context or subject matter otherwise requires— "applicant" means applicant for an order under this Order; "description" includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation; "possession" means possession, custody or power. 13.02 Privilege An order made under this Order shall not operate to require the person against whom the order is made to produce any document which, on the ground of privilege, the person could not be required to produce— r. 13.01 -- 69 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 55 (a) in the case of an order under Rule 13.03 or 13.05, if the applicant had commenced a proceeding against that person; (b) in the case of an order under Rule 13.04 or 13.06, if the applicant had made that person a party to the proceeding; (c) in the case of an order made under Rule 13.07, if that person had been served with a witness summons for production of the document at the trial of the proceeding. 13.03 Discovery to identify a defendant (1) If an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called "the person concerned") and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in the person's possession any document or thing, tending to assist in such ascertainment, the Court may make an order under paragraph (2). (2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, must— (a) attend before the Court to be orally examined in relation to the description of the person concerned; (b) make discovery to the applicant of all documents which are or have been in the possession of the person or the corporation relating to the description of the person concerned. (3) If the Court makes an order under paragraph (2)(a), it may order that the person or corporation r. 13.03 -- 70 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 56 against whom or which the order is made shall produce to the Court on the examination any document or thing in the person's or the corporation's possession relating to the description of the person concerned. 13.04 Party an applicant Rule 13.03 applies, with any necessary modification, where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which the applicant could properly have made in the proceeding had the person been a party. 13.05 Discovery from prospective defendant Where— (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in the person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision— the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 13.06 Party an applicant r. 13.04 r. 13.06 -- 71 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 57 Rule 13.05 applies, with any necessary modification, where the applicant is a party to a proceeding and there is reasonable cause to believe that the applicant has or may have the right to obtain against a person who is not a party relief which the applicant could properly have claimed in the proceeding had the person been a party. 13.07 Discovery from non-party On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that the person has or is likely to have or has had or is likely to have had in the person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document. 13.08 Procedure (1) An application under Rule 13.03, 13.04, 13.05, 13.06 or 13.07 must be made by application served on every party to the proceeding and served personally on the person against whom the order is sought. (2) An application under paragraph (1) must be supported by an affidavit— (a) stating the facts on which the application is made; and (b) specifying or describing the documents or any class of documents in respect of which the order is sought. (3) A copy of the supporting affidavit must be served on every person on whom the application is served. -- 72 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 58 13.09 Inspection of documents Rule 11.06 applies, with any necessary modification, to the inspection of the documents referred to in an affidavit of documents made and served in accordance with this Order as if the affidavit were an affidavit of documents as mentioned in Rule 11.06. 13.10 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of any party to the proceeding, including the costs of making and serving any affidavit of documents, or of producing any document for inspection in accordance with Rule 13.09. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. ORDER 14 ADMISSIONS 14.01 Definition In this Order, "authenticity of a document" means that a document— (a) is what it purports to be; (b) if an original or described as such, is an original document and was printed, written, signed or executed as it purports to have been; (c) if a copy or described as such, is a true copy. 14.02 Voluntary admission of facts r. 13.09 r. 14.02 -- 73 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 59 (1) A party may, by notice served on another party, admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice. (2) A party may, by leave of the Court, withdraw an admission made in accordance with paragraph (1). 14.03 Notice for admission of facts (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts. (2) If the party served with the notice does not dispute any fact specified by serving notice that the party disputes the fact within the time allowed for that purpose, the party shall, for the purpose of the proceeding only, be taken to admit that fact. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 14A, and a notice under paragraph (2) shall be in Form 14B. 14.04 Notice for admission of documents (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the authenticity of the documents mentioned in the notice, that party shall, for the purpose of the proceeding only, be taken to admit the authenticity of those documents. -- 74 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 60 (2) If the party served with the notice does not dispute the authenticity of any document mentioned by serving notice that the party disputes its authenticity within the time allowed for that purpose, the party shall, for the purpose of the proceeding only, be taken to admit its authenticity. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 14A, and a notice under paragraph (2) shall be in Form 14B. 14.05 Cost of non-admission of fact or document If a party serves a notice— (a) under Rule 14.03(2) disputing a fact, and afterwards that fact is proved in the proceeding; or (b) under Rule 14.04(2) disputing the authenticity, and afterwards the authenticity of that document is proved in the proceeding— that party shall pay the costs of proof, unless the Court otherwise orders. 14.06 Restrictive effect of admission An admission made by a party under this Order is for the purpose of the particular proceeding only and shall not be used against the party as an admission in any other civil proceeding. ORDER 15 r. 14.05 -- 75 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 61 OFFERS OF COMPROMISE 15.01 Definitions In this Order, unless the context or subject-matter otherwise requires— "claim" includes a counterclaim and any claim made in accordance with Order 8; "defendant" includes a defendant by counterclaim and a party against whom a claim is made in accordance with Order 8; "plaintiff" includes a defendant who serves a counterclaim and a party who makes a claim in accordance with Order 8. 15.02 Defendant may make offer (1) A defendant may at any time before a final order in the proceeding serve on a plaintiff an offer of compromise of the plaintiff's claim on the terms specified in the offer. (2) For the purpose of this Order an offer of compromise shall— (a) be in writing and be prepared in accordance with Rule 3.05; and (b) contain a statement to the effect that it is served in accordance with this Order. (3) A defendant may serve more than one offer of compromise. 15.02.1 Plaintiff may make offer of compromise in certain proceedings (1) A plaintiff in a proceeding under the Accident Compensation Act 1985 or the Workers Compensation Act 1958 may at any time before a final order in the proceeding serve on a r. 15.01 -- 76 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 62 defendant an offer of compromise of the plaintiff's claim on the terms specified in the offer. (2) Rules 15.02(2) and (3), 15.03, 15.04, 15.05 and 15.06 shall, with any necessary modification, apply to an offer of compromise under paragraph (1). 15.02.2 Costs consequences of failure to accept Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a final order on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs of the claim on a solicitor and client basis in accordance with Appendix A. 15.03 Acceptance of offer (1) 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 plaintiff, but the time expressed shall not be less than 7 days after such service. (2) A plaintiff shall within 3 days after service of an offer of compromise serve a written acknowledgement of service on the defendant. (3) A plaintiff may accept the offer by serving notice of acceptance in writing on the defendant before— (a) the expiration of the time specified in accordance with paragraph (1) or, if no time is specified, the expiration of 7 days after service of the offer; or (b) an order is made in the proceeding in respect of the claim to which the offer relates— r. 15.02.2 -- 77 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 63 whichever event is sooner. (4) An offer of compromise shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders. (5) Upon the acceptance of an offer of compromise in accordance with paragraph (3), 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. (6) If an offer of compromise contains a term which purports to negative or limit the operation of paragraph (5), that term shall be of no effect for any purpose under this Order. 15.04 Effect of offer The offer of compromise made in accordance with this Order shall be taken to be an offer of compromise made without prejudice, unless the offer otherwise provides. 15.05 Disclosure of offer to Court (1) No statement of the fact that an offer of compromise has been made shall be contained in any document filed in the Court. (2) If an offer of compromise has not been accepted, no communication with respect to the offer shall be made to the Court at the hearing 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. 15.06 Failure to comply with accepted offer If within 30 days (or such other time as the parties may in writing agree) the defendant fails to comply with the terms of an offer of compromise r. 15.04 -- 78 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 64 which the plaintiff has accepted, then, unless for special cause the Court otherwise orders, the plaintiff shall be entitled, as the plaintiff elects, to— (a) an order in the terms of the accepted offer; or (b) an order that the plaintiff be permitted to proceed as if a notice of defence had not been filed. 15.07 Costs consequences of failure to accept (1) This Rule applies to an offer of compromise which has not been accepted at the time of the final order of the Court. (2) If an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a final order on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his, her or its costs in respect of the claim up to and including the day the offer was served fixed on a party and party basis and the defendant shall be entitled to an order against the plaintiff for his, her or its costs in respect of the claim thereafter fixed on a party and party basis. (3) Paragraph (2) shall not apply unless the Court is satisfied by the defendant that he, she or it was at all material times willing and able to carry out the defendant's part of what was proposed in the offer. 15.08 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 r. 15.07 -- 79 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 65 costs referred to in Rule 15.07 shall not apply to an offer of compromise unless— (a) the offer is to compromise the claim against all defendants; and (b) where the offer is made by two or more defendants, by the terms of the offer the defendants who made the offer of compromise are liable to the plaintiff for the whole amount of the offer. 15.09 Offer to contribute (1) If in any proceeding a defendant makes a claim (in this Rule called "a contribution claim") to recover contribution or indemnity against any person, whether a defendant to the proceeding or not, in respect of any claim for a debt or damages made by the plaintiff in the proceeding, any party to the contribution claim may serve on any other party to the contribution claim an offer to contribute toward a compromise of the claim made by the plaintiff on the terms specified in the offer. (2) The Court may take an offer to contribute into account in determining whether it should order that the party on whom the offer to contribute was served should pay the whole or part of— (a) the costs of the party who made the offer; (b) any costs which that party is liable to pay to the plaintiff. (3) Rules 15.04 and 15.05 shall, with any necessary modification, apply to an offer to contribute as if it were an offer of compromise. r. 15.09 -- 80 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 66 ORDER 16 EVIDENCE GENERALLY 16.01 Evidence of witness Except where otherwise provided by any Act or by these Rules or unless the Court otherwise orders, the evidence of a witness— (a) at the hearing of a complaint must be taken orally on oath or by affirmation; and (b) on any other application must be by affidavit. 16.01.1 Quotation or assessment as evidence (1) In a complaint counterclaim or claim by third party notice which arises from a motor vehicle collision and includes a claim— (a) for the cost of repairs to a motor vehicle, an itemised quotation of the cost of repairs; or (b) for total loss of a motor vehicle, an assessment of the loss— attached to the complaint counterclaim or claim by third party notice is evidence of the cost of repairs or the loss (as the case may be). (2) A party against whom damages are sought may, by notice in writing served on the party claiming relief not more than 42 days after service of the complaint counterclaim or claim by third party notice to which an itemised quotation or assessment is attached, require the maker of the quotation or assessment to attend the hearing for the purposes of cross-examination. r. 16.01 -- 81 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 67 16.02 When affidavit may be used At the hearing of a complaint a party may use an affidavit by any particular witness or an affidavit as to particular facts if— (a) at least 21 days before the hearing that party serves notice of intention to do so, with a copy of the affidavit annexed on the party against whom the affidavit is to be used; and (b) the party on whom the notice is served does not at least 10 days before the hearing serve notice on the party who served the notice that objection is taken to the use of the affidavit. 16.03 Use of affidavits when practicable A party must whenever practicable use affidavits in accordance with Rule 16.02. 16.04 Attendance and production (1) The Court may in any proceeding make an order for— (a) the attendance of any person for the purpose of being examined; or (b) the attendance of any person and production by that person of any document or thing specified or described in the order; or (c) the production by any corporation of any document or thing described in the order. (2) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could r. 16.02 -- 82 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 68 properly object to produce on the ground of privilege. 16.05 View The Court may during the proceeding inspect any place, process or thing. 16.06 Admission of documents (1) If any document is produced to the Court from proper custody it shall be read without further proof if it appears genuine and if no objection to its admission is made. (2) If objection is taken to a document produced under paragraph (1), the Court may adjourn the hearing for proof of the document and if the document is afterwards proved then, unless the Court otherwise orders, the party who made the objection shall pay the costs incurred by the objection. (3) The Court may, on the hearing of a complaint, if it considers it is proper to do so and there is no real dispute as to the contents or authenticity of an original document, admit as evidence a copy of the document without enquiring into the non- production of the original document. 16.07 Person about to leave Victoria may be ordered to be examined or to produce documents (1) If the Court on the application of any party is satisfied by evidence upon oath that any person— (a) is able to give material evidence or to produce relevant or material documents or things relating to a pending complaint; and (b) is likely to be absent from Victoria at the time the complaint comes on for hearing— r. 16.05 -- 83 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 69 the Court may order that, before the hearing— (c) the evidence of that person be taken; or (d) the documents or things be produced by that person. (2) An order under paragraph (1) must be served on— (a) the person named in the order; and (b) all other parties to the complaint. (3) An order under paragraph (1) must be served on the person named in the order personally. (4) The person named in the order must, at a reasonable time before the evidence is to be taken or documents to be produced, be given a reasonable sum for expenses and Rules 17.04 and 17.05 shall, with any necessary modification, apply to an order under this Rule. ORDER 16A—APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 16A.01 Application of Order This Order applies to an application for a direction under section 42E(1) of the Evidence Act 1958. 16A.02 Form of application Notice of an application must be in Form 16AA. 16A.03 Filing The applicant must file the notice at least 7 days before the person the subject of the application is due to appear before or give evidence or make a submission to the Court. 16A.04 Service As soon as practicable after the filing of the notice the applicant must serve a copy on every other party. r. 16A.01 -- 84 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 70 16A.05 Duty of applicant If, whether before or after a direction has been given, an applicant no longer requires the person the subject of the application to appear before or give evidence or make a submission to the Court by audio visual link or audio link, the applicant must notify the Registrar forthwith. 16A.06 Payment of costs Unless the Court otherwise orders, the appropriate amount prescribed by the regulations under section 42H(1) of the Act shall be paid in the first instance by the applicant. ORDER 17 WITNESS SUMMONSES 17.01 Attendance by summons (1) In any proceeding the Court may by witness summons order that a person to whom the witness summons is addressed attend at the hearing or at any stage of the proceeding for the purpose of giving evidence or of producing any document or thing or for both purposes. (2) A witness summons shall be in Form 17A, 17B, 17C or 17D whichever is appropriate. 17.02 Filing summons (1) An order by witness summons for the attendance of a person in a proceeding shall be taken to be made upon the signing of the witness summons by a registrar. (2) A witness summons requiring a person to attend for the purpose of giving evidence may be addressed to any number of persons. r. 16A.05 -- 85 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 71 (3) A witness summons requiring the production of a document or thing must be addressed to one person only except in the case of partners where all the members of a firm may be addressed in the witness summons. 17.03 Service Service of a witness summons— (a) if the person to whom the witness summons is addressed is a natural person, shall be by personal service of a copy on the person to whom the witness summons is addressed in accordance with Rule 5.03; (b) if the person to whom the witness summons is addressed is a corporation, shall be by service of a copy in accordance with Rule 5.04(a) or, where provision is made by or under any Act for service of a document on a corporation, in accordance with that provision. 17.04 Conduct money A person to whom a witness summons is addressed shall be excused from complying with the summons unless conduct money, sufficient to meet the person's reasonable expenses of complying is given or tendered to that person at the time of service of the witness summons or a reasonable time before the day the witness is required to attend in answer to the summons. 17.05 Expenses of witness (1) If any person who attends in answer to a witness summons, before being sworn, requests the Court to fix the amount to be paid to him or her as a witness, the Court shall do so. (2) Unless the Court otherwise orders, no witness shall be compelled to give evidence until the r. 17.03 -- 86 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 72 amount of expenses as fixed by the Court has been paid. 17.06 Setting aside The Court may set aside a witness summons either wholly or in part. 17.07 Books of account Nothing in this Order shall affect the provisions of Division 3A of Part III of the Evidence Act 1958 relating to books of account. 17.08 Production before date of attendance (1) A witness summons for production requiring production before the Court or an officer of the Court shall, unless the Court otherwise orders, permit the person to whom the witness summons is addressed, instead of producing the document or thing before the Court or officer of the Court, to produce it to the registrar by hand or by post, in either case so that the registrar receives it not later than 2 days before the day on which production is required by the witness summons to be made. (2) This Rule does not apply to so much of a witness summons as requires a person to attend for the purpose of giving evidence. ORDER 18 AFFIDAVITS 18.01 Form of affidavit (1) An affidavit must be made in the first person. (2) Unless the Court otherwise orders, an affidavit must state the place of residence of the deponent and his or her occupation or, if he or she has none, his or her description, and that he or she is a party r. 17.06 -- 87 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 73 to the proceeding or employed by a party, if such be the case. (3) Notwithstanding paragraph (2), where a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state the address of his or her place of business, the position he or she holds and the name of his or her firm or employer, if any. (4) An affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (5) Every affidavit must be signed by the deponent, except as provided by Rule 18.02(1), and the jurat must be completed and signed by the person before whom it is sworn. (6) Each page of an affidavit must be signed by the person before whom it is sworn. (7) The first page of an affidavit must be headed immediately beneath the title of the proceeding with the name of the deponent and the date of swearing. (8) An affidavit must on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date of swearing. 18.02 Affidavit by illiterate, blind or incapacitated person (1) If it appears to the person before whom an affidavit is sworn that the deponent is illiterate, blind or physically incapacitated he or she must certify in or below the jurat that— (a) the affidavit was read in his or her presence to the deponent; and r. 18.02 -- 88 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 74 (b) the deponent seemed to him or her to understand it; and (c) the deponent made his or her signature or mark in the person's presence. (2) If an affidavit is made by an illiterate, blind or physically incapacitated deponent and a certificate in accordance with paragraph (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed perfectly to understand it. 18.03 Content of affidavit (1) Except where otherwise provided by or under these Rules an affidavit must be confined to facts which the deponent is able to state of his or her own knowledge. (2) In an application in a proceeding an affidavit may contain a statement of fact based on information and belief if the grounds are set out in the affidavit. 18.04 Affidavit by two or more deponents If an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn by "each of the abovenamed" deponents. 18.05 Alterations r. 18.03 r. 18.05 -- 89 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 75 Notwithstanding any interlineation, erasure or other alteration in the jurat or body, an affidavit— (a) may be filed, unless the Court otherwise orders; but (b) may not be used without the leave of the Court unless the person before whom it is sworn has initialled the alteration. 18.06 Annexures and exhibits (1) A document referred to in an affidavit must not be annexed to the affidavit but may be referred to as an exhibit. (2) An exhibit to an affidavit must be identified by a separate certificate annexed to it bearing the same title as the affidavit and signed by the person before whom the affidavit is sworn. 18.07 Time for swearing Unless the Court otherwise orders an affidavit may be used in a proceeding notwithstanding that it was sworn before the commencement of the proceeding. 18.08 Irregularity Notwithstanding any irregularity in form an affidavit may— (a) unless the Court otherwise orders, be filed; (b) with the leave of the Court, be used in evidence. 18.09 Filing (1) An affidavit must be filed. (2) Unless the Court otherwise orders, an affidavit— (a) which has not been filed; or -- 90 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 76 (b) which has not been served or filed in compliance with an order in respect of its service or filing— must not be used by the party by or on whose behalf it was made. 18.10 Affidavit sworn before party, solicitor (1) An affidavit sworn before— (a) a party; (b) a partner in a firm which is a party; or (c) an employee of a party— shall not be used in evidence by or on behalf of the party. (2) Paragraph (1) shall not apply where the Crown is the party on whose behalf the affidavit is to be used and the affidavit is sworn before an employee of the Crown. ORDER 19 EXPERT EVIDENCE 19.01 Application This Order does not apply— (a) to any claim for damages for personal injury; (b) to any itemised quotation or assessment to which Rule 16.01.1 applies; or (c) if an affidavit made by an expert witness is served pursuant to Rule 16.02; or (d) a proceeding under the Accident Compensation Act 1985; or (e) a proceeding under the Workers Compensation Act 1958. r. 18.10 -- 91 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 77 19.02 Service of statement of expert evidence (1) A party who intends at the hearing to adduce the evidence of a person as an expert witness must, not later than 10 days before the day fixed for the hearing, serve on every other party a statement in accordance with paragraph (2). (2) The statement must— (a) give the name and address of the witness; (b) describe the qualifications to give evidence as an expert; and (c) give the substance of the evidence it is proposed to adduce from the witness as an expert. (3) Save with the leave of the Court or by consent of the parties, a party must not except in cross- examination adduce at the trial of a proceeding any evidence from a witness as an expert unless that party has served a statement under paragraph (1). 19.03 Making a statement of other party evidence A party may put in evidence a statement served on that party by another party in accordance with Rule 19.02. ORDER 19A SERVICE OF MEDICAL REPORTS 19A.01 Application This Order applies to a proceeding— (a) under the Accident Compensation Act 1985; r. 19.02 -- 92 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 78 (b) under the Workers Compensation Act 1958; (c) in which the plaintiff claims damages for personal injury. 19A.02 Counterclaim This Order shall, with any necessary modification, apply to a counterclaim in a proceeding of the kind referred to in Rule 19A.01. 19A.03 Definitions In this Order, unless the context or subject matter otherwise requires— "dentist" means a person registered as a dentist under the Dentists Act 1972 or any corresponding enactment of another State or a Territory of the Commonwealth; "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 person registered as a medical practitioner under the Medical Practice Act 1994 or any corresponding enactment of another State or a territory of the Commonwealth; "medical report"— r. 19A.02 -- 93 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 79 (a) means a statement on medical matters concerning the plaintiff whether in writing or oral made by a medical expert; and (b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the medical expert obtained or caused to be brought into existence subsequently; "psychologist" means a registered psychologist as defined in the Psychologists Registration Act 1987; "serve", in relation to the service of a medical report, means— (a) where the medical report was in writing, serve a copy; and (b) where the medical report was oral, serve notice in writing of its substance. 19A.04 Notice for examination (1) The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places. (2) Where a plaintiff refuses or neglects without reasonable cause to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding. 19A.05 Expenses (1) The costs of and incidental to the examination shall be costs in the proceeding. r. 19A.04 -- 94 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 80 (2) Without limiting paragraph (1), the defendant shall, on request by the plaintiff whether before or after the plaintiff is examined, pay to the plaintiff, a reasonable sum to meet his or her travelling and other expenses of and incidental to the examination. 19A.06 Report of examination A defendant for whom a plaintiff is examined under Rule 19A.04 shall as soon as practicable after the examination obtain from the medical expert a medical report. 19A.07 Service of reports (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to the plaintiff by another party) which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence at the hearing. (2) Where a plaintiff obtains possession, custody or power of a hospital report which the plaintiff intends to call at the hearing, this Rule and Rule 19A.08, with any necessary modification, applies as if the report were a medical report. (3) A defendant or a third or subsequent party must serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to the defendant or a third or subsequent party by another party) in the possession, custody or power of or made to or obtained by or for the defendant, third or subsequent party. 19A.08 Time for service Unless the Court otherwise orders, the time for service of a medical report by a party required r. 19A.06 -- 95 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 81 under Rule 19A.07 to serve a medical report shall be— (a) in a proceeding under the Accident Compensation Act 1985 or the Workers Compensation Act 1958, within 14 days of the proceeding being given a date for hearing; (b) in a proceeding involving a claim for damages for personal injury, not less than 14 days before the date fixed for a pre-hearing conference, mediation or hearing (whichever occurs first); (c) in the case of a medical report made to or obtained by or for a party after the times referred to in sub-paragraphs (a) or (b), forthwith. 19A.09 Other medical reports to be served Where after a plaintiff has served a medical report under Rule 19A.07(1) the medical expert who made the report makes another medical report to the plaintiff, then, notwithstanding that the plaintiff no longer intends to tender the medical report so served or to adduce its substance in evidence at the hearing, or does not intend to tender the other medical report or to adduce its substance in evidence at the hearing, the plaintiff shall serve the other medical report forthwith. 19A.10 Proceeding against medical expert (1) This Rule applies to a proceeding in which the plaintiff claims damages for personal injury sustained as a result of medical or the like treatment or advice given in respect of any physical or mental condition of the plaintiff. (2) Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or r. 19A.09 -- 96 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 82 medical report under this Order may exclude from the copy served any expression of opinion in the original report on the question of liability and, if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact that relates only to the question of liability. 19A.11 Medical report admissible (1) This Rule applies in the case of a medical report sought to be admitted pursuant to section 47 of the Accident Compensation Act 1985. (2) A medical report a copy of which was served under this Order is admissible as evidence of the opinion of the medical expert who gave the report and, where the medical expert's oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. (3) Subject to paragraphs (4) and (5), a medical report may be used in evidence by the party who served a copy of the report or by any party on whom the copy was served. (4) If a medical report is tendered by the party who served a copy of the report, that party shall cause the medical expert who gave the report to attend at the hearing of the proceeding to be cross- examined if notice that such attendance is required is served on the party by any other party not later than five days before the commencement of the hearing, and if the medical expert does not attend for cross-examination the Court may order that the medical report be not received in evidence. (5) If a medical report is tendered by a party on whom a copy of the report was served— r. 19A.11 -- 97 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 83 (a) that party shall cause the medical expert who gave the report to attend at the hearing of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence; (b) if the report is received in evidence and the medical expert is cross-examined by any party against whom the report is received, at the conclusion of the cross-examination the party who tendered the report may examine the expert as if by re-examination. 19A.12 No evidence unless disclosed in report Save with the leave of the Court or by consent of the parties, a party shall not except in cross- examination adduce evidence from a medical expert on medical matters concerning the plaintiff unless that evidence is disclosed by a medical report served in accordance with this Order. ORDER 20 APPLICATIONS PART 1—GENERAL 20.01 Application of Order Unless otherwise provided by these Rules this Order applies to any interlocutory or other application in a proceeding other than an application under Order 10. 20.02 Form of application An application in a proceeding made on notice to any person must be by application, unless the Court otherwise orders, and must be supported by an affidavit or affidavits. r. 19A.12 -- 98 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 84 20.03 Form and filing (1) Unless otherwise provided by these Rules, an application in a proceeding must be in Form 20A. (2) An application must be filed and, on filing, an application shall be taken to have been made. (3) An affidavit or affidavits in support of an application must be filed before the hearing of the application. 20.04 Service (1) The applicant must serve a copy of an application and a copy of any affidavit in support on every person to whom notice of the application is to be given unless otherwise provided by these Rules. (2) Every application must be served within a reasonable time before the day for hearing named in the application, and in no case later than 2.00 p.m. on the previous day, or where the office of the Court was closed on the day before the day for hearing, not later than 2.00 p.m. on the day the office was last open. 20.05 Adjournment The Court may adjourn the hearing of an application on such terms as it thinks fit. 20.06 Absence of party to application (1) If any person to whom an application is addressed fails to attend, the Court may hear the application if satisfied that the application was duly served. (2) If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit. r. 20.03 -- 99 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 85 PART 2—PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 20.07 Definitions In this Part, unless the context or subject-matter otherwise requires— "the Act" means the Workers Compensation Act 1958; "medical referee" means a medical practitioner appointed to be a medical referee under section 24 of the Act. 20.08 Application for appointment of nominal defendant— Forms 20B and 20C (1) An application for the appointment of a nominal defendant under section 5A, 16 or 25E of the Act must be— (a) made after the filing of a complaint; (b) accompanied by an affidavit in support of the application; (c) in Form 20B. (2) The affidavit in support of the application must— (a) state the reasons for the application; (b) give details of any attempts to identify or find the employer or the employer's insurer; (c) if the employer was a company which has been wound up, exhibit advice from the Australian Securities Commission that the company has been wound up; (d) except where the application is to have the Authority named as the nominal defendant, exhibit the consent in writing of the person r. 20.07 -- 100 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 86 proposed for appointment as nominal defendant. (3) If the Court makes an order for the appointment of a nominal defendant on an application under paragraph (1), unless the Court directs otherwise, the party obtaining the order must give notice of the appointment to all parties to the complaint and serve on the nominal defendant— (a) a notice of the appointment in Form 20C; (b) a copy of the application; (c) a copy of the affidavit in support; (d) notice of any hearing date subsequent to the appointment, fixed in the proceeding, if any; and (e) a copy (including any amended copies) of the complaint (if any) showing the nominal defendant as defendant and giving full particulars of the claim against the alleged employer in respect of whom the nominal defendant was appointed; (f) where appropriate, particulars of the claim for contribution. 20.09 Application for discharge (1) At any time after receiving notice of appointment, the nominal defendant appointed by the Court may apply to the Court to be discharged from acting in that capacity. (2) Unless the Court directs otherwise, or the application is by consent, the application must be supported by an affidavit setting out the facts on which the discharge is requested. 20.10 Application for reference of question to medical referee—Forms 20D, 20E, 20F, 20G, 20H, 20J and 20K r. 20.09 r. 20.10 -- 101 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 87 (1) An application under section 10 of the Act, to refer to a medical referee the question whether the incapacity of the worker resulting from the injury is likely to be of a permanent nature must— (a) be in Form 20D; (b) have attached to it a report of a medical practitioner selected by the worker setting out the nature of the incapacity alleged to be the result of the injury. (2) If on the hearing of the application the Court is satisfied that the worker intends to cease to reside in Australia, the Court may— (a) make an order in Form 20E; (b) order that the worker submit to an examination by a medical referee. (3) If the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature, the registrar must serve on the worker— (a) a copy of the medical certificate of the medical referee; and (b) a copy of the award, memorandum or certificate under which the weekly payment is to be made; and (c) a certificate of identity in Form 20F; and (d) a notice in Form 20G. (4) If the worker who has been receiving a weekly payment of compensation ceases to reside in Australia and has an incapacity which a medical referee has certified is likely to be of a permanent nature the worker is entitled to receive weekly payments under section 10 of the Act at quarterly intervals if— -- 102 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 88 (a) the worker submits to an examination by a medical practitioner in the place where the worker is residing and obtains from that medical practitioner a certificate in Form 20H; and (b) the worker makes a declaration of identity in Form 20J; and (c) the worker submits the declaration and certificate to the registrar together with a request for payment of the amount of the weekly payments accruing in the preceding quarter. (5) On receipt of a notice in Form 20K, the employer must forward the amount of the weekly payment to the registrar for transmission to the worker. (6) Where a worker has ceased to reside in Australia before obtaining an order from the Court in respect of continued payments of compensation, the Court may dispense with any of the requirements of this Rule and may instead give directions to be complied with to the Court's satisfaction by the worker so that weekly payments may be ordered to be paid to the worker during the worker's incapacity. 20.11 Application for revocation of direction of Conciliation Officer An application under section 60(2) of the Accident Compensation Act 1985 for the revocation of a direction given by a Conciliation Officer pursuant to Division 2 of Part 3 of that Act must be— (a) in Form 20A with such modification as is necessary; and (b) accompanied by an affidavit in support of the application. r. 20.11 -- 103 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 89 ORDER 21 ARBITRATION 21.01 Application (1) This Order applies to any proceeding which is referred to arbitration under section 102 of the Act and in which a notice of defence is given. (2) A proceeding referred to arbitration must be conducted in accordance with this Order. 21.02 Discovery and interrogatories No party may seek discovery of documents or serve interrogatories in a proceeding referred to arbitration. ORDER 22 PRE-HEARING CONFERENCES 22.01 Procedure (1) If a complaint is referred for a pre-hearing conference all parties must attend the conference— (a) personally; or (b) by counsel or a solicitor or other person empowered by law to appear for the party; or (c) in the case of a cause of action for a debt or a liquidated demand, where a party is a corporation, by a person in the exclusive employment of that party who is authorised in writing to appear for that party. (2) If a party does not attend a pre-hearing conference after receiving notice to attend, the magistrate or the Court constituted by a registrar may— r. 21.01 -- 104 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 90 (a) in the case of failure by a plaintiff, dismiss the complaint; or (b) in the case of failure by a defendant or other party against whom complaint is made, make an order that that party's notice of defence be struck out. (2.1) Where the Court, whether constituted by a magistrate or a registrar, adjourns a pre-hearing conference, the Court may make an order as to the costs of the adjournment in accordance with the scale of costs in Appendix A. (3) A defendant whose notice of defence is struck out in accordance with paragraph (2)(b) shall, for the purposes of Rule 10.01, be taken to be a defendant who does not give notice of defence. (4) If all the parties to a complaint (including any third parties) agree at pre-hearing conference upon the terms in which an order should be made, including an order for the final disposition of a complaint, the Court constituted by a registrar, if satisfied that the order sought is one proper to be made under this Rule, may make the order. (5) Where a complaint is referred to a pre-hearing conference, the Court constituted by a registrar may exercise the powers of the Court under Rule 3.02. 22.02 Confidentiality The proceedings of a pre-hearing conference shall be confidential and no answers given or admissions made at a pre-hearing conference shall be used or referred to at the hearing nor be r. 22.01 r. 22.02 -- 105 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 91 disclosed to the Court or arbitrating magistrate at the hearing without the consent of all parties. ORDER 23 HEARING 23.01 Order of hearing The Court may give directions as to the order of evidence and generally as to the conduct of the hearing of a complaint. 23.02 No addresses Unless the Court otherwise orders, no opening or closing addresses may be made at the hearing of any complaint. 23.03 Absence of party If, when the hearing of a proceeding is called on, any party is absent, the Court may— (a) proceed with the hearing; (b) strike out or dismiss the complaint; (c) adjourn the hearing; or (d) make any other order which the Court considers appropriate. 23.04 Adjournment of hearing The Court may at any time adjourn a hearing on such terms as it thinks fit. ORDER 24 INSTRUMENTS ACT RULES 24.01 Definition r. 24.01 -- 106 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 92 In this Order— "the Act" means the Instruments Act 1958. 24.02 Application of Order (1) This Order applies to any proceeding in the Court under Part 1 of the Act. (2) Except where inconsistent with the Act or this Order the Rules apply to any proceeding under Part I of the Act. 24.03 Form of complaint (1) A complaint upon a bill of exchange commenced after the bill has become due shall be in Form 24A. (2) The amount of costs stated in the indorsement on the complaint must be the amount of scale costs applicable to the amount claimed plus the fees (if any) for the filing and service of the complaint. 24.04 Leave to defend (1) Leave to defend under section 5 of the Act may be given by the Court. (2) An application for leave to defend must be made without notice to any person, within the time allowed by section 5 of the Act. (3) An application for leave must be in Form 24B and must be filed. (4) The applicant for leave must file in support of the application an affidavit sworn by himself or herself or by another person who can depose to the facts from his or her own knowledge. 24.05 Order where leave not granted (1) A plaintiff who is entitled to an order under section 4 of the Act may apply to the registrar for an order for the amount claimed together with r. 24.05 -- 107 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 93 costs and fees (if any) for filing and service of the complaint as the scale allows. (2) An application for such an order must be filed and must be in Form 24C. (3) Where the registrar is satisfied that— (a) the complaint has been served in accordance with section 4 of the Act; and (b) the defendant has not been given leave to defend under section 5 of the Act— the registrar must make an order. 24.06 Notice to parties As soon as practicable after the Court has made a decision on an application for leave to defend, the registrar must notify the parties by notice in Form 24D. 24.07 Leave to defend after order made (1) A defendant who wishes to apply under section 6 of the Act must— (a) file an application in Form 24E; and (b) not less than five days before the day for hearing of the application serve a copy of the application on the complainant personally. (2) An application under section 6 must state the special circumstances relied upon by the applicant. (3) The Court may set aside the order on such terms as the Court thinks fit. (4) Upon filing an application under section 6, no steps to enforce the order shall be taken for fourteen days from the date of filing or until the application is heard (whichever is the earlier). -- 108 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 94 (5) An applicant who fails to appear on the hearing of the application shall not make a further application without the leave of the Court. ORDER 25 ORDERS 25.01 General relief The Court may at any stage of a proceeding on the application of any party make such order as the case requires notwithstanding that the order was not sought in the complaint. 25.02 Date of effect An order made by the Court must, unless the Court otherwise orders, bear the date of and take effect on and from the day it is made. 25.03 Time for compliance (1) Subject to paragraph (2), an order which requires a person to do an act shall be taken to mean, unless the Court otherwise orders, that the act must be done within 14 days after service of an order or of a certified extract from the register of the order. (2) Paragraph (1) does not apply to— (a) so much of an order as requires a person to pay money otherwise than into Court; or (b) an order for the delivery of goods. 25.04 Orders may be drawn up; certified extract (1) An order may be drawn up by a party and verified by the registrar if a party so desires. r. 25.01 r. 25.04 -- 109 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 95 (2) Except where a special form of order is prescribed by these Rules, a certified extract from the Court record of any order shall be sufficient for any purpose for which an order is required. 25.05 Consent orders (1) If all parties to a complaint (including any third parties) agree to the making of an order for the final disposition of a complaint (not being an order relating to enforcement of an order) and written consent of all parties is filed, the Court constituted by a registrar may make an order in the terms set out in the consents without appearance by any party. (1.1) Except as provided in paragraph (1) or as otherwise provided by these Rules, the Court constituted by a registrar may make any order (which order may include an order for costs) in any proceeding, summons or application with or without appearance of any party if satisfied that the order sought is by the consent of the parties to the proceeding, summons or application. (2) If the registrar is not satisfied that an order should be made under paragraph (1.1), the registrar may, or if a party requests must, refer the matter to the Court for decision. 25.06 Order where excess abandoned An order of the Court in a complaint referred to in Rule 4.01(2) is conclusive evidence for any purpose of abandonment of the excess of a claim above the jurisdictional limit of the Court. 25.07 Setting aside or varying self-executing order (1) In this Rule, "self-executing order" means an order that upon the failure of a party to do any act or take any step which under these Rules the party r. 25.07 -- 110 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 96 is required to do or take or to comply with an order that the party do any such act or take any such step— (a) if the party is a plaintiff, that the complaint be dismissed; (b) if the party is a defendant, that the defence of the party, if any, be struck out. (2) A defendant whose defence is struck out upon the failure to comply with a self-executing order is, for the purpose of Rule 10.01, taken to be a defendant who does not give notice of defence. (3) The Court may set aside or vary, as the case requires— (a) a self-executing order; (b) the dismissal of a complaint upon the failure of a plaintiff to comply with a self-executing order; (c) the striking out of a notice of defence upon the failure of a defendant to comply with a self-executing order; (d) an order made under Rule 10.01 upon the failure of a defendant to comply with a self- executing order; (e) an order made under Rule 10.04 upon the failure of a plaintiff to comply with a self- executing order. ORDER 26 COSTS 26.01 Costs to be fixed on day of hearing r. 26.01 -- 111 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 97 Unless it is impracticable to do so, the Court must fix the costs of any complaint or application on the day on which the complaint or application is heard and determined. 26.02 Costs in accordance with Appendix A (1) Subject to paragraph (2), costs must be fixed in accordance with the scale of costs in Appendix A to these Rules. (2) If in any case the Court thinks that any item in the scale is inadequate or excessive, the Court may allow a greater or lesser sum than the scale provides. (3) If the scale of costs does not provide for any case, the Court may allow reasonable costs. 26.03 Application of scale In applying the scale of costs between party and party, the amount recovered shall determine the scale of the plaintiff's costs and the amount sought to be recovered the scale of the defendant's costs. 26.04 Costs on counterclaim If a counterclaim is made, the scale upon which the costs of the parties are to be fixed must, unless the Court otherwise orders, be determined— (a) if the plaintiff succeeds on both the claim and the counterclaim, by the amount which the plaintiff recovers on the claim, unless the amount of the counterclaim is the larger, in which case the costs incurred after service of the counterclaim shall be determined by the amount of the counterclaim; (b) if the defendant succeeds on both the claim and the counterclaim, by the amount which the defendant recovers on the counterclaim -- 112 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 98 or the amount of the plaintiff's claim, whichever is the larger; (c) if both parties are successful, by the amounts which they recover on their respective claims; (d) if both claim and counterclaim fail, by the amount claimed by the opposite party. 26.05 Costs of discovery, particulars Unless the Court otherwise orders— (a) the costs of and incidental to discovery or interrogatories and answers thereto must be borne by the party requiring discovery or interrogating; (b) the costs of and incidental to seeking particulars under Rule 9.03 or 9.04 must be borne by the party seeking particulars. 26.06 Complaint not referred to arbitration If the Court orders under section 102(3) of the Act that a complaint be heard and determined otherwise than by referring it to arbitration, the Court may make such order concerning the costs of the complaint as it thinks fit. 26.07 Costs after defence struck out Where an order is made under Rule 9.08(1)(b)(ii), Rule 9.08(1)(d), Rule 11.07(1)(b)(ii), Rule 11.07(1)(d), Rule 12.07(1)(b)(ii), Rule 12.07(1)(d) or Rule 22.02(2)(b), costs fixed consequent on the making of the order may include scale costs in the proceeding up to and including the order striking out the notice of defence. 26.08 Costs after complaint dismissed r. 26.05 r. 26.08 -- 113 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 99 Where an order is made under Rule 9.08(1)(b)(i), Rule 9.08(1)(c), Rule 11.07(1)(b)(i), Rule 11.07(1)(c), Rule 12.07(1)(b)(i), Rule 12.07(1)(c) or Rule 22.02(2)(a) costs consequent upon the complaint being dismissed may include scale costs in the proceeding up to and including the application for an order for costs. ORDER 27 ENFORCEMENT OF ORDERS PART 1—DEFINITIONS 27.01 Definitions (1) In this Order— "attachment of earnings order" means an order under Part 5 or such order as varied from time to time; "earnings", in relation to a judgment debtor, means any amounts payable to the judgment debtor— (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, -- 114 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 100 or any diminution in the emoluments, of any office or employment— but does not include any pension payable to the judgment debtor under the Commonwealth Acts known as the Social Security Act 1947 as amended from time to time, the Veterans' Entitlements Act 1986 as amended from time to time or the Seamen's War Pensions and Allowances Act 1940 as amended from time to time; "employer", in relation to a judgment debtor, means a person (including the Crown, a Minister of the Crown, and any statutory authority representing the Crown) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the judgment debtor; "garnishee" means a person from whom a judgment creditor claims that a debt is due or accruing to a judgment debtor; "judgment creditor" means the person entitled to enforce an order; "judgment debt" means the amount of money payable under an order and includes the costs of recovering that amount; "judgment debtor" means the person liable under an order; "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 r. 27.01 -- 115 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 101 Commonwealth Act known as the Income Tax Assessment Act 1936 as amended and in force for the time being; 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 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; "officer", in relation to a corporation, has the same meaning as in section 9 of the Corporations Law; "order" means an order made by the Court— (a) for the payment of money, with or without costs; or (b) for the payment of costs alone; or (c) under Rule 27.11(1); "pay-day" means an occasion on which earnings to which the attachment of earnings order relates become payable; r. 27.01 -- 116 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 102 "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. (2) For the purposes of the definition of "garnishee" in paragraph (1), an amount standing to the credit of a judgment debtor in an account in a bank, building society, co-operative housing society or similar society, credit union, credit society or investment fund or corporation is a debt due or accruing to the judgment debtor, whether or not a demand or notice is required before money may be withdrawn. PART 2—WARRANTS GENERALLY 27.02 Issue of warrant (1) A warrant other than a warrant referred to in Rule 27.02.1, shall not be issued unless the person requesting it to be issued— (a) produces to a registrar a form of the warrant; (b) where the warrant is to enforce an order for the payment of money, files a request to issue a warrant which must state— (i) the date of the order; (ii) the amount for which the order was made; and (iii) the amount, including any interest accrued and any costs due and payable in respect of the order at the date of r. 27.02 -- 117 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 103 request with particulars stating how that amount is calculated or made up; and (iv) the daily amount of interest, if any, which subject to any future payment under the order, will accrue after the date of request in respect of the amount of the order and costs; and (v) particulars of any amounts paid on account or recovered under any previous warrant or other proceeding. (2) A warrant referred to in paragraph (1) is issued when the warrant is sealed by the registrar with the seal of the Court. (3) A warrant referred to in paragraph (1) shall bear the date of its issue. 27.02.1 Issue of warrant consequent to request by electronic message (1) A request for the issue of a warrant to enforce an order for the payment of money may be made by an authorised user lodging an electronic message with the Court. (2) A request by electronic message under paragraph (1) must state— (a) the name of the judgment creditor; (b) the name of the judgment debtor; (c) the Court number; (d) the date of the order; (e) particulars, including dates, of any amounts paid or recovered under any previous warrant or other proceeding since the date of the order; (f) whether interest is being sought from the date of the order. r. 27.02.1 -- 118 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 104 (3) A warrant is issued when a request lodged by electronic message, which complies with the requirements of paragraph (2), is received at the Court. (4) A warrant issued under paragraph (3) is valid for all purposes if it bears— (a) the name of the Principal Registrar; and (b) the date of its issue. 27.03 Duration (1) A warrant shall be valid for the purpose of execution for one year after the day it is issued. (2) Notwithstanding paragraph (1), a registrar may from time to time extend the period of the validity of the warrant for the purpose of execution for a period of not more than one year from the day on which it would otherwise expire and so on from time to time. (3) An extension under paragraph (2) shall not be made after the day of expiry of the warrant. (4) The priority of a warrant in respect of which an extension under paragraph (2) had been made shall be determined by reference to the date on which the warrant was originally delivered to the person to whom it is directed. 27.04 Costs of prior execution The amount for which a warrant may be issued shall include the costs, fees and expenses (including the costs of any unsuccessful previously attempted execution of the order) incurred in respect of any prior warrant of r. 27.03 r. 27.04 -- 119 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 105 execution on the same order, whether the prior warrant was or was not productive. 27.05 Interpleader (1) If a claim is made to or in respect of property seized under a warrant, or in respect of the proceeds or value of that property, by any person other than the judgment debtor, a registrar may, on the application of the person to whom the warrant is directed, issue a summons directed to the judgment creditor and the person making the claim seeking relief by way of interpleader. (2) The person to whom the warrant is directed may apply under paragraph (1) whether or not proceedings have been brought against him or her in the Court or any other court. (3) A claimant under paragraph (1) must within a reasonable time after the claimant has become aware or ought reasonably to have been aware of the seizure of the property give the person to whom the warrant is directed a notice in writing showing— (a) particulars of the property alleged to be the property of the claimant; and (b) the grounds of the claim; and (c) the claimant's usual address and occupation and an address for service in Victoria. (4) A summons under paragraph (1) must be in Form 27A. (5) A summons may be served on the judgment creditor and the claimant by leaving a copy of the summons at the address for service or by sending a copy by security post to that address. 27.06 When interpleader decided against the claimant r. 27.06 -- 120 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 106 If the claim to any property the subject of a warrant to seize property is decided against the claimant, the costs of the person to whom the warrant is directed in the interpleader shall be retained by the person to whom the warrant is directed out of the proceeds of the execution of the warrant unless— (a) the party who procured the issue of the warrant requests the Court to order that those costs be paid by the claimant and the Court so orders; or (b) the Court otherwise orders. 27.07 Order against two or more persons (1) If in a complaint an order is made against two or more defendants jointly, the order may be enforced by warrant or otherwise against any of the defendants as if the order had been made against that defendant separately. (2) If an order against two or more defendants jointly is satisfied by any of the defendants, no further steps may be taken by the party in whose favour the order so satisfied was made against any other defendant. 27.08 Order against partners (1) An order made against a firm may be enforced against any or all of the persons who were members of the firm at the time the cause of action arose. (2) If a person is sued under Rule 6.04 in a name or style other than the person's own name and an order is made against the person in that name or style, the order may be enforced against the person. (3) No enforcement proceeding shall be commenced under an order referred to in paragraph (1) or (2) -- 121 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 107 against a person whose name is not mentioned in the order or complaint unless the person in whose favour the order was made files with the registrar an affidavit stating— (a) the name and address of the person against whom it is proposed to commence the proceeding; and (b) that, at the time the cause of action arose, that person was a member of the firm or was carrying on business in the name or style in which the order was made; and (c) the proceeding it is desired to take under the order. PART 3—WARRANTS TO SEIZE PROPERTY 27.09 Warrant to seize property (1) If an order is made by the Court, a registrar may, in the circumstances referred to in paragraph (2), issue a warrant to seize property for the purpose of satisfying the judgment debt. (2) Paragraph (1) applies where the Act under which the order is made either specifies no method of enforcement of the order or provides for enforcement by distress. (3) A warrant to seize property authorises the person to whom it is directed to seize and sell any personal property belonging to the judgment debtor. (4) Money or bank notes belonging to a judgment debtor may be seized under a warrant to seize property but need not be sold. (5) Cheques, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to a judgment debtor may be seized r. 27.09 -- 122 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 108 under a warrant to seize property and held as security for the judgment debt or the unsatisfied part of the judgment debt and when the time of payment arrives the person to whom the warrant is directed may demand and receive payment of them and may sue in any proper court in the name of the judgment debtor or in the name of any person in whose name the judgment debtor might have sued for the recovery of the money secured or made payable by them. (6) Subject to this Order and except where otherwise expressly provided by these Rules, the rules, practice and procedure of the Supreme Court which apply to or are adopted by the sheriff in the execution of warrants of execution apply, with such modifications as are necessary, to the execution of warrants to seize property. 27.10 Form of warrant A warrant to seize property must be in Form 27B. 27.10.1 Notice to person responsible for safe-keeping of seized property The prescribed form of notice under section 111(7A) of the Act is Form 27BA. PART 4—WARRANTS OF DELIVERY 27.11 Warrant of delivery (1) If an order is made by the Court— (a) for delivery of goods; or (b) for delivery of goods or recovery of their assessed value— a registrar may issue a warrant of delivery. r. 27.10 r. 27.11 -- 123 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 109 (2) If the order of the Court is for the assessed value of goods only, the order may be enforced by the same means as any other order for the payment of money. (3) Rule 27.09(6) applies to execution of a warrant of delivery. 27.12 Form of warrant A warrant of delivery must be in Form 27C. PART 4A—ORAL EXAMINATION 27.12.1 Examination of judgment debtor (1) If an order has been made for the recovery or payment of money (with or without costs) or for costs alone a registrar may upon application of the judgment creditor issue a summons requiring the judgment debtor (or, if the judgment debtor is a corporation, an officer of the corporation) to appear before the Court to be orally examined by the registrar as to— (a) the amount and source of the income of the judgment debtor; (b) the property and assets of the judgment debtor; (c) the cash that is readily available to the judgment debtor or that can be made so available; (d) the debts, liabilities and other financial obligations of the judgment debtor— and the registrar may examine the person as to any other matter related to the financial circumstances generally of the judgment debtor and the judgment debtor's means and ability to satisfy the order. (2) A summons under paragraph (1) must be in Form 27CA. -- 124 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 110 (3) The person must be examined on oath. (4) The registrar may issue a summons calling on other persons to give evidence or produce documents or to give evidence and produce documents. (5) A summons under paragraph (4) must be in Form 27CB. (6) An examination under this Part must be conducted by the registrar or counsel for the judgment creditor (if present) and no persons other than the judgment debtor being examined and his, her or its counsel and the judgment creditor and his, her or its counsel may be present without the consent of both parties. (7) If the examination is conducted by the registrar a copy of the record in Form 27CC or 27CD must be sent to the judgment creditor. (8) At an examination the registrar may make an order as to the costs of the examination in accordance with the scale of costs in Appendix A, the fees, if any, for filing and service of the summons and any other prescribed fees. (9) A registrar may adjourn an examination under this Rule as he or she thinks fit. 27.12.2 Issue of summons for oral examination consequent to application by electronic message (1) An application to the registrar under Rule 27.12.1 for the issue of a summons under that Rule may be made by an authorised user lodging an electronic message with the Court. (2) The electronic message must state— (a) the allocated Court number for the proceeding in which the order was made; r. 27.12.1 r. 27.12.2 -- 125 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 111 (b) the name of the judgment debtor (and, if the judgment debtor is a corporation, the name of an officer of the corporation who is to appear before the Court to be orally examined); (c) the address of the judgment debtor (and, if the judgment debtor is a corporation, the address of the officer of the corporation who is to appear before the Court to be orally examined); (d) the date of the order; (e) particulars, including dates, of any amounts recovered since the date of the order; (f) whether further penalty interest is being claimed. (3) The date of issue of a summons issued consequent to an application by electronic message as provided for in paragraph (1), and which complies with the requirements of paragraph (2), is the date the electronic message is received at Court. (4) The summons is valid for all purposes if it bears the— (a) allocated Court number; (b) name of the Principal Registrar; (c) date of its issue; (d) hearing venue; (e) date and time for the person named in the summons to be orally examined. (5) A copy of the summons must be retained by or on behalf of the authorised user and such copy must be provided to the Court at the request of the registrar. PART 5—ATTACHMENT OF EARNINGS ORDERS -- 126 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 112 27.12.3 Definition In this Part, "the Court" includes the Court constituted by a registrar. 27.13 Attachment of earnings order (1) If the Court is satisfied— (a) that a judgment debtor is a person to whom earnings are payable or are likely to become payable; and (b) that a judgment debtor has failed to comply with an order with respect to a judgment debt— the Court may order a person who appears to the Court to be the judgment debtor's employer in respect of those earnings or part of those earnings to make out of those earnings or that part of those earnings payments in accordance with Rule 27.20. (1.1) If the Court constituted by a registrar is not satisfied that an order should be made under this Part, the registrar may, or if a party requests must, refer the matter to the Court for decision. (2) Unless the Court otherwise orders, if an attachment of earnings order is in force, no warrant or other process of execution shall issue and no order shall be made for the enforcement of the order to which the attachment of earnings order relates. * * * * * 27.15 Application for attachment of earnings order (1) A judgment creditor may apply for an attachment of earnings order. (2) An application under paragraph (1) must be by summons in Form 27D and must be supported by affidavit which may contain statements of fact r. 27.12.3 r. 27.15 -- 127 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 113 based on information and belief if the grounds are set out. (3) The affidavit must be in Form 27E. (4) The summons, a copy of the affidavit and a notice in Form 27F as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor shall be served on the judgment debtor not less than 14 days before the day for hearing named in the summons. (5) The Court must not make an attachment of earnings order to secure the payment of a judgment debt if a warrant has been issued in that case committing the judgment debtor to prison under the Imprisonment of Fraudulent Debtors Act 1958 and has not been executed, but in that case the Court may discharge the warrant with a view to making an attachment of earnings order instead. 27.16 Examination of judgment debtor (1) On an application for an attachment of earnings order the Court may— (a) direct the judgment debtor to attend for an oral examination at the time and place specified in the direction; or (b) direct any person who appears to the Court to owe money to the judgment debtor or to be the employer of the judgment debtor to give the Court a statement signed by or on behalf of that person containing such particulars as are specified in the direction of money owed by that person to the judgment r. 27.16 -- 128 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 114 debtor that became payable during a period specified in the direction. (2) On an oral examination the Court must examine a judgment debtor as to the following matters— (a) the amount and source of the income of the judgment debtor; (b) the property and assets of the judgment debtor; (c) the cash that is readily available to the judgment debtor or can be made so available; (d) the debts, liabilities and other financial obligations of the judgment debtor— and may examine a judgment debtor as to any other matter related to the financial circumstances generally of the judgment debtor and the judgment debtor's means and ability to satisfy the judgment debt. (3) A document purporting to be a statement referred to in paragraph (1)(b) is admissible in evidence in any proceedings for the enforcement of the order. (4) The provisions of paragraph (1)(a) are without prejudice to any other mode of enforcing the attendance of the judgment debtor before the Court. * * * * * (6) An order under paragraph (1) must be in Form 27J or 27K, whichever is appropriate. 27.17 Making an order in absence of debtor (1) If an application is made to the Court for an attachment of earnings order and the Court is satisfied— r. 27.17 -- 129 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 115 (a) that the judgment debtor has been served with a copy of the application; and (b) that the judgment debtor has had a reasonable opportunity of attending the hearing; and (c) that the judgment debtor is employed by a known employer; and (d) as to the earnings of the judgment debtor— the Court may make an attachment of earnings order in the absence of the judgment debtor. (2) For the purposes of this Rule the Court may act on— (a) evidence given by or on behalf of the judgment debtor's employer; or (b) evidence given by the judgment debtor's spouse; or (c) any statement or information furnished under Rule 27.16(1). (3) If the Court is considering an application for an attachment of earnings order in the absence of the judgment debtor or his or her spouse— (a) has before it sufficient evidence in the opinion of the Court on which to specify a protected earnings rate and a normal deduction rate, the Court must specify those rates; (b) does not have such evidence before it, the Court may, without specifying those rates, make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court. -- 130 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 116 27.18 Contents of order (1) An attachment of earnings order (except an order under Rule 27.17(3)(b)) must specify either generally or in relation to any particular 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 order to which the attachment of earnings order relates but not exceeding a rate that appears to the Court to be necessary for the purpose of— (a) securing payment of the amount due and unpaid under the order; and (b) securing payment within a reasonable time of any costs ordered by the Court to be paid by the judgment debtor. (2) An attachment of earnings order may specify a normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower or higher normal deduction rate to apply to subsequent pay-days. (3) An attachment of earnings order (except an order under Rule 27.17(3)(b)) must also specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and needs of the judgment debtor and of any other person for whom the judgment debtor must or reasonably may provide, the Court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order. (4) An attachment of earnings order must specify an amount in respect of the clerical and administrative costs of making payments under the order which an employer is entitled to deduct in respect of each payment from the earnings of r. 27.18 -- 131 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 117 the judgment debtor in addition to any other amount. (5) Unless the Court— (a) has received from the judgment debtor a completed form pursuant to the notice in Form 27F given under Rule 27.15(4) as to the property and assets of the judgment debtor and the debts, liabilities and the financial obligations of the judgment debtor; or (b) has examined the judgment debtor as to those matters— the Court must not under paragraph (3) specify as the protected earnings rate a rate that is less than 80 per cent of the net earnings of the judgment debtor. (6) An attachment of earnings order must be in Form 27L. 27.19 Service of order (1) An attachment of earnings order must be served on the judgment debtor and on the person to whom the order is directed. (2) There must also be served on the person to whom an attachment of earnings order is directed— (a) a notice informing the person of the effect of the order and of the person's obligations under this Part; and (b) two forms of notice that the judgment debtor is not in the person's employ. (3) A notice under paragraph (2)(a) must be in Form 27M and a notice under paragraph (2)(b) shall be in Form 27N. r. 27.19 -- 132 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 118 (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. 27.20 Employer to make payments (1) An employer to whom an attachment of earnings order is directed must, 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. (1.1) If an employer fails to comply with a binding order under paragraph (1) the judgment creditor may apply to the Court to have the order enforced against the employer. (2) A payment made by an employer under paragraph (1) is a valid discharge to the employer as against the judgment debtor to the extent of the amount paid. 27.21 Discharge or variation of order (1) If an attachment of earnings order is in force the Court may, on the application of the judgment r. 27.20 r. 27.21 -- 133 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 119 creditor or the judgment debtor, discharge, suspend or vary the order. (2) The order suspending or varying an attachment of earnings order must be served on the respondent to the application and the person to whom the attachment of earnings order is directed. (3) An order suspending or varying an attachment of earnings order does not come into force until the expiration of 7 days after the day on which the order is served on the person to whom it is directed. 27.22 Cessation of attachment of earnings order (1) An attachment of earnings order ceases to have effect— (a) on being discharged under Rule 27.21; or (b) unless the Court otherwise orders, on the making of any other order for the recovery of the money owing under the order in relation to which the attachment of earnings order was made. (2) If an attachment of earnings order ceases to have effect, the registrar must forthwith give notice accordingly to the person to whom the order was directed. (3) If an attachment of earnings order ceases to have effect, the person to whom the order is directed does not incur any liability in consequence of treating the order as still in force at any time before the expiration of 7 days after the day on which the notice required by paragraph (2) or a copy of the order discharging the attachment of earnings order, as the case requires, is served on that person. 27.23 Two or more attachment of earnings orders in force r. 27.23 -- 134 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 120 (1) If earnings become payable to a judgment debtor and there are in force 2 or more attachment of earnings orders, whether made under this Act or otherwise, in relation to those earnings, the person to whom the orders are directed— (a) must comply with those orders according to the respective dates on which they took effect and must disregard any order until the earlier order has been complied with; and (b) must comply with any order as if the earnings to which the order relates were the residue of the earnings of the judgment debtor after the making of any payment under an earlier order. (2) For the purpose of this Rule, an attachment of earnings order which has been varied under Rule 27.22 is to be taken to have been made as so varied on the day on which the attachment of earnings order was made. 27.24 Notice to judgment debtor of payments (1) A person who makes a payment in compliance with an attachment of earnings order must give to the judgment debtor a notice specifying the particulars of the payment. (2) If a person served with an attachment of earnings order directed to that person is not the employer of the judgment debtor at the time of service of the order, that person must, forthwith after service of the order, give notice in writing accordingly to the registrar. (3) If a person served with an attachment of earnings order directed to that person is the employer of the judgment debtor at the time of service of the order but ceases to be the judgment debtor's employer at any time thereafter, that person must, forthwith -- 135 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 121 after ceasing to be the judgment debtor's employer, give notice in writing accordingly to the registrar. 27.25 Determination of earnings (1) The Court must, on the application of the person to whom an attachment of earnings order is directed, determine whether payments to the judgment debtor of a particular class or description specified in the application are earnings for the purpose of that order. (2) A person to whom an attachment of earnings order is directed who makes an application under paragraph (1) does not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by that person to the judgment debtor while the application, or any appeal from an order made on the application, is pending. (3) Paragraph (2) does not apply in respect of any payment made after an application is withdrawn or an appeal from an order made on the application is abandoned. 27.26 Service An order or document that is required or permitted to be served on a person under this Part must be served on that person— (a) personally; or (b) by registered post. PART 6—ATTACHMENT OF DEBTS 27.27 Attachable debts r. 27.25 r. 27.26 -- 136 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 122 A debt may be attached under this Part if the debt is due or accruing to the judgment debtor from the garnishee on the day an application is made for a garnishee order. * * * * * * * * * * 27.30 Order for attachment of debt (1) The Court constituted by a registrar may, on the application of the judgment creditor, order that all debts (other than earnings within the meaning of this Order) due or accruing from a garnishee to a judgment debtor be attached to answer the judgment debt. (2) An application for an order under paragraph (1)— (a) must be made by affidavit accompanied by a draft form of the order sought; (b) may be made without notice to any person; and (c) may be made either before or after the examination of the judgment debtor under Rule 27.12.1 (3) An order must not be made under paragraph (1) unless it is shown by affidavit— (a) that the judgment debt is unsatisfied, either wholly or to a stated extent; and (b) that— (i) a debt is due or accruing to the judgment debtor from the garnishee; and (ii) the garnishee is within Victoria. -- 137 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 123 (4) The registrar may refuse to make an order under paragraph (1) if the registrar is of the opinion that the remedy being sought is worthless or vexatious on account of the smallness of the amount to be recovered or of the debt sought to be attached or otherwise. (5) The judgment creditor may appeal to a magistrate against the refusal of the registrar to make an order under paragraph (1). (6) Any order made under paragraph (1) must be served on the garnishee personally within 7 days of the making of the order and such order binds the debts to which it applies upon service of the order. (7) An order under paragraph (1) must be in Form 27P or 27Q whichever is appropriate. 27.31 Dispute of liability by garnishee If the garnishee disputes liability to pay the debt attached, he, she or it may make application to the Court, within 14 days of service of the order for attachment of debt, to determine liability or to give directions for its determination. * * * * * 27.33 Claim by another person Any person other than the judgment debtor who claims to be entitled to the attached debt or to a charge or lien on it may make application to the Court to determine the claim of entitlement or to give directions for its determination. 27.34 Discharge of garnishee Any payment made by a garnishee in compliance with, and any execution levied against a garnishee under, an attachment of debts order is a valid r. 27.31 r. 27.33 -- 138 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 124 discharge of the garnishee's liability to the judgment debtor to the extent of the amount paid or levied even if subsequently the garnishee proceedings are set aside or the order from which they arose is reversed or varied. PART 7—IMPRISONMENT OF FRAUDULENT DEBTORS 27.35 Application for summons (1) An application for the issue of a summons under Part III of the Imprisonment of Fraudulent Debtors Act 1958 must be made by affidavit in Form 27R. (2) An affidavit under paragraph (1) may contain statements of fact based on information and belief if the grounds are set out. ORDER 28 JUDGMENT DEBT RECOVERY RULES 28.01 Definition In this Order— "Act" means the Judgment Debt Recovery Act 1984. 28.02 Application under section 5 An application in writing under section 5 of the Act for an instalment order must— (a) be in Form 28A; (b) if made by a judgment debtor, be accompanied by a Statement of Affairs in Form 28B; (c) be filed. 28.03 Application under section 6 or 8 r. 28.02 -- 139 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 125 (1) An application under section 6 or 8 of the Act must— (a) be in Form 28A; (b) if made by a judgment debtor, be accompanied by a Statement of Affairs in Form 28B; (c) be filed. (2) An affidavit or declaration of service of an application under section 6 or 8 must be filed within a reasonable time after service of the application. (3) If an applicant under section 8 of the Act fails to comply with paragraph (2)— (a) the applicant shall be taken to have abandoned the application; and (b) the proper officer shall give notice in writing to the applicant of that abandonment. 28.04 Notice of objection (1) The period for filing a notice of objection under section 6(5) of the Act is fourteen days. (2) A notice of objection must be in Form 28C. 28.05 Agreement under section 7 An instalment agreement under section 7 of the Act must— (a) be in Form 28D; (b) be accompanied by a Statement of Affairs in Form 28B; (c) be filed. 28.06 Order in absence of parties r. 28.05 -- 140 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 126 An order made by a proper officer under section 7(3) of the Act may be made in the absence of the parties. 28.07 Summons for examination (1) A summons under section 14 or 17 of the Act must be in Form 28E. (2) An application for issue of a summons under section 17 of the Act must be made by affidavit in Form 28F. (3) An affidavit under paragraph (2) may contain statements of fact based on information and belief if the grounds are set out. 28.08 Warrant of apprehension A warrant of apprehension under section 14 or 17 of the Act must be in Form 28G. 28.09 Forms of notice A notice— (a) under section 6(4), 6(7), 7(4) or 18(2) of the Act must be in Form 28H; (b) under section 14(6) or 17(5) of the Act must be in Form 28J; (c) under section 6(6) or 8 of the Act must be in Form 28K. 28.10 Warrant of commitment A warrant of commitment under section 19 of the Act must be in Form 28L. 28.11 Payments to be made to registrar Payments under section 19(3) of the Act must be made to the proper officer. 28.12 Certificate of discharge r. 28.10 -- 141 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 127 A certificate under section 19(3) of the Act must be in Form 28M. 28.13 Service and notification (1) A summons required to be served under the Act or this Order must be served personally. (2) If any notice is required to be given or any document required to be served under this Order, it shall be sufficient to serve the notice or document by post. 28.14 Adjournment The proper officer may at any time adjourn an application or proceeding as he or she thinks fit. ORDER 29 VENUE AND TRANSFER OF PROCEEDINGS 29.01 Venue of Court (1) A civil proceeding must be issued from the proper venue of the Court. (2) Subject to paragraph (3), if— (a) the defendant objects that the venue from which process is issued is not the proper venue of the Court; and (b) the Court is satisfied, having regard to the convenience of the parties, that the proceeding should be transferred— the Court may adjourn the proceeding to another venue of the Court. (3) If the defendant objects that the venue from which process is issued is not the proper venue of the Court the defendant must give notice of the objection to the plaintiff not more than 3 days after giving notice of defence. -- 142 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 128 (4) Notwithstanding that a proceeding is issued from a venue of the Court which is not the proper venue within paragraph (1), the Court may proceed to hear and determine the proceeding at the venue from which the proceeding was issued or at any other venue as the Court thinks fit. (5) A proceeding is not void or in any other way affected by reason only that the proceeding was filed at or was heard and determined at a venue of the Court other than the proper venue within paragraph (1). (6) Notwithstanding anything in these Rules, the Court may on its own motion order the transfer of a proceeding from venue to venue of the Court. 29.02 Transfer of proceeding to the Court (1) Where the Supreme Court or the County Court orders that a proceeding be heard in the Magistrates' Court, the party who applied for the order shall file with the registrar at the appropriate venue of the Court within 14 days of authentication of the order by the transferring court— (a) a copy of the order; and (b) a statement of the names and addresses of all the parties to the proceeding and their practitioners. (1.1) For the purposes of paragraph (1), "appropriate venue" means the venue of the Court which would have been the proper venue if the proceeding had been commenced in the Magistrates' Court. (2) If no statement of claim or particulars of claim have been filed in the other court, the plaintiff must file a concise statement of the particulars of the plaintiff's claim and must serve a copy on all r. 29.02 -- 143 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 129 parties within seven days after filing the statement. (3) If in these Rules a time is prescribed for the doing of any act by reference to the date of filing notice of defence, the time for the doing of that act shall be determined by reference to the date on which the order for transfer was made. ORDER 30 RE-HEARING 30.01 Application for re-hearing (1) An application under section 110 of the Act must be filed. (2) At least 14 days before the day specified in the application, a copy of the application and of any affidavit in support upon which the applicant intends to rely must be served on the other party or parties at the address for service in the complaint or notice of defence (as the case may be) unless the Court otherwise orders. (3) If an application is struck out because the applicant failed to appear at the time fixed for hearing of the application, a further application for re-hearing is taken to be an application for leave to re-apply under section 110(5) of the Act. 30.02 Form of application (1) An application under Rule 30.01 must state— (a) why the applicant did not appear on the hearing of the complaint; and (b) if applicable, why notice of defence was not given. (2) An application under Rule 30.01 must be in Form 30A. r. 30.01 r. 30.02 -- 144 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 130 30.03 Re-hearing date If the Court sets aside an order the complaint must be re-heard on a date fixed by the registrar. ORDER 31 SECURITY FOR COSTS 31.01 Definitions In this Order, unless the context or subject-matter otherwise requires— "plaintiff" includes any person who makes a claim in a proceeding; "defendant" includes any person against whom a claim is made in a proceeding; "defence" includes defence to counterclaim and defence to statement of third party claim. 31.02 When security for costs may be ordered Where— (a) the plaintiff is ordinarily resident out of Victoria; (b) the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so; (c) a proceeding by the plaintiff in another court for the same claim against the same defendant is pending; -- 145 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 131 (d) the plaintiff has changed address after the commencement of the proceeding in order to avoid the consequences of the proceeding; (e) under any Act or the Companies Code the Court may require security for costs— the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against the defendant be stayed until the security is given. 31.03 Manner of giving security Where an order is made requiring the plaintiff to give security for costs, security shall be given in the manner and at the time the Court directs. 31.04 Failure to give security Where a plaintiff fails to give the security required by an order, the Court may dismiss the plaintiff's claim. 31.05 Variation or setting aside The Court may set aside or vary any order requiring a plaintiff to give security for costs. 31.06 Payment by way of irrevocable guarantee If the Court makes an order requiring a plaintiff to pay money into Court as security for costs, it is sufficient compliance, subject to Rule 31.03, if the plaintiff files an irrevocable guarantee given by a bank to pay that sum. 31.07 Requirements of guarantee An irrevocable guarantee given by a bank must be— r. 31.03 r. 31.06 -- 146 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 132 (a) given by a bank approved by the Principal Registrar; and (b) sealed by the bank or signed by an officer of the bank who has written authority from the bank to sign such a guarantee on behalf of the bank; and (c) in Form 31A. 31.08 Liability of bank (1) A bank guarantee which is filed pursuant to an order under Rule 31.06 may not be amended or revoked without the leave of the Court. (2) Unless the Court otherwise orders, a bank which has given a guarantee may discharge its liability under the guarantee only— (a) by payment into Court of the total sum guaranteed; and (b) by filing a Notice of Discharge and Payment into Court in Form 31B. ORDER 32 PERSON UNDER DISABILITY 32.01 Litigation guardian of minor (1) Except where otherwise provided by or under any Act, a minor shall file a complaint by his or her litigation guardian. (2) A litigation guardian shall file a consent so to act in the Court at the same time as the complaint. r. 32.01 -- 147 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 133 (3) A litigation guardian under this Rule shall be liable for costs in the same manner and to the same extent as if the litigation guardian were the plaintiff. (4) A complaint filed by a litigation guardian must state that the proceeding is taken by the litigation guardian on behalf of the minor. (5) A consent to act as a litigation guardian under this Rule must be in Form 32A. 32.02 Person with a disability (1) In this Order— "person with a disability" means a person with a disability within the meaning of the Guardianship and Administration Act 1986. (2) If a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a person with a disability, that person shall, unless the Court otherwise orders, be entitled to be litigation guardian of the person with a disability in any proceeding to which that person's authority extends. (3) Subject to any Act, if there is no person authorised to conduct legal proceedings in the name of or on behalf of a person with a disability— (a) a person may file a consent to act as a litigation guardian on behalf of the person with a disability and thereafter he or she shall be the appointed litigation guardian of that person; or (b) the Court may appoint a litigation guardian— and Rules 32.01(2) to (5) shall apply to such appointment. -- 148 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 134 32.03 Litigation guardian of defendant (1) In this Rule— "defendant" includes any party against whom relief is claimed in a proceeding. (2) If a minor or person with a disability is a defendant, Rules 32.01 and 32.02 apply with any necessary modification except that a litigation guardian for a defendant shall not, unless the Court otherwise orders, be responsible for costs. 32.04 Power of litigation guardian A litigation guardian under this Order may take any step or do any act in a proceeding that is required or permitted to be done by a party. 32.05 Compromise of claim by minor or a person with a disability (1) If in a proceeding a claim is made by or on behalf of or against a minor or a person with a disability, no compromise, payment of money or acceptance of an offer of compromise under Order 15, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. (2) Application for approval must be made by application under Order 20 filed not later than 30 days after the compromise, payment or acceptance. (2.1) A copy of an affidavit in support of the application need not be served. (3) If application for approval is made at the hearing of a proceeding, the Court may dispense with the requirement of paragraph (2). (4) On the application, evidence must be given of the date of the compromise, payment or acceptance and the date of birth of the minor or person with a r. 32.03 -- 149 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 135 disability, and those dates must be stated in any order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the minor or person with a disability shall be taken to have made or accepted the offer at the time of the approval. 32.06 Money to be paid into court (1) All money or damages received by or awarded to a minor or person with a disability by settlement or compromise must, unless the Court otherwise orders, be paid into court without delay after approval by the Court of the compromise, payment or acceptance. (2) Money held in court on behalf of a minor or a person with a disability may be paid out of court from time to time to any person by order of the Court. (3) Nothing in this Order affects the lien of a solicitor for costs. 32.07 Investment of money Money held in court on behalf of a minor or a person with a disability must be invested— (a) on deposit with a bank approved by the Principal Registrar; or (b) on deposit in the Cash Management Account established under the Public Account Act 1958; or (c) in any manner in which trust money may be invested by a trustee under the Trustee Act 1958. r. 32.06 r. 32.07 -- 150 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 136 ORDER 33 REGISTRARS 33.01 Reference to a magistrate If on an application to a registrar under the Act or these Rules, the registrar considers that it is proper that the application be determined by a magistrate, the registrar may refer the application to a magistrate. 33.02 Appeal from registrar (1) Any person affected by any order made by a registrar may appeal to a magistrate. (2) An appeal may be made by application in accordance with Order 20. (3) An appeal is a re-hearing of the application to the registrar. (4) Unless a magistrate otherwise orders, an appeal does not operate as a stay on the order of the registrar. (5) This Rule does not apply to an order in default of defence made by a registrar under Order 10. ORDER 34 APPEALS 34.01 Application of order Where by or under any Act a person (in this Order called "the appellant") may appeal to a Magistrate or to the Magistrates' Court, this Order applies. 34.02 Notice of appeal r. 34.01 -- 151 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 137 (1) Except as provided by any Act, an appeal must be commenced by filing a notice of appeal at the proper venue of the Court. (2) The notice of appeal must— (a) be in Form 34A; and (b) must set out— (i) the order or decision of the person from whom or the body from which the appeal is brought (in this order called "the respondent"); and (ii) concisely the grounds of appeal. (3) As soon as practicable after filing the notice of appeal the appellant must serve a copy on the respondent. 34.03 Amendment of grounds The Magistrates' Court or a Magistrate may give leave to amend the grounds of appeal. 34.04 Affidavit Within 14 days after filing the notice of appeal the appellant must file in the Court and serve on the respondent an affidavit setting out the facts, matters and circumstances relating to— (a) the order or decision appealed against; and (b) the grounds of appeal. 34.05 Date for hearing At the time of filing the notice of appeal the registrar must fix a date for the hearing of the appeal. r. 34.04 -- 152 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 138 ORDER 35 MISCELLANEOUS RULES 35.01 Civil registry courts The civil registry courts are those venues of the Court listed in Appendix B to these Rules. 35.02 General power of amendment For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including a complaint) in a proceeding be amended or that any party have leave to amend any document in the proceeding. 35.03 Directions At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. 35.04 Injunctions The Court may grant an injunction at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. 35.05 Preservation of property (1) In any proceeding, the Court may make an order for the inspection, detention or preservation of any property whether or not in the possession, custody or power of a party. (2) An order under paragraph (1) may authorise any person to— r. 35.04 -- 153 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 139 (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) If the Court makes an order under paragraph (1) the Court may make an order for the costs and expenses of any person who is not a party to the proceeding. (4) The Court may make an order under this Rule on condition that the person applying for the order gives security for the costs and expenses of any person, whether or not a party, who will be affected by the order. 35.06 Practice notes The Chief Magistrate may from time to time issue practice directions or notes not inconsistent with the Act or these Rules. __________________ r. 35.06 -- 154 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 140 FORMS RULE 1.18 FORM 1A ELECTRONIC LODGMENT AUTHORISATION This is to certify that [name of authorised user] is authorised to file documents in the Magistrates' Court of Victoria by lodging electronic messages with the Court. Dated: Chief Magistrate _______________ Form 1A -- 155 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 141 RULE 4.02 FORM 4A COMPLAINT IN THE MAGISTRATES' COURT Court Number OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant OF (ADDRESS) NATURE OF COMPLAINT (STATE SHORTLY) AMOUNT OF CLAIM TO THE DEFENDANT TAKE NOTICE that this complaint has been brought against you by the plaintiff for the claim set out in the pages attached. IF YOU INTEND TO DEFEND this complaint, YOU MUST GIVE NOTICE OF DEFENCE, within 21 days of service upon you of this complaint, to— (a) the plaintiff whose address for service is and (b) the registrar of the Magistrates' Court of Victoria at IF YOU GIVE NOTICE OF DEFENCE, the Court will write to you and tell you of the hearing date. IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the plaintiff may OBTAIN AN ORDER AGAINST YOU for the amount of the claim and costs without further notice. IF YOU PAY the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs. DATE OF FILING: THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING [next page] Form 4A -- 156 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 142 TO THE PLAINTIFF If your claim arises from a motor vehicle collision, complete Part A. If your claim does not arise from a motor vehicle collision complete Part B. If yours is a combined claim, complete the appropriate parts. PART A (CLAIM ARISING FROM A MOTOR VEHICLE COLLISION INCLUDING PERSONAL INJURY) WHAT IS THE NATURE OF YOUR CLAIM? (e.g. cost of repairs to motor vehicle; cost of repairs to damaged fence.) WHERE DID YOUR CLAIM ARISE? [Give the location of any collision, including a Melway reference if possible, and in the space below draw a sketch plan of the collision with names of roads, etc. Identify your vehicle as "1", the vehicle driven by the defendant as "2" and any other vehicles involved as "3", "4", "5", etc.] WHEN DID YOUR CLAIM ARISE? HOW DID THE COLLISION HAPPEN? [You must set out here in as much detail as you can how the collision happened and why you believe the defendant if at fault. If the space is insufficient you may attach other sheets.] HOW MUCH ARE YOU CLAIMING? Dated: [e.g. 5 September 19 ]. [To be signed by the Plaintiff or the Plaintiff's Solicitor] [next page] PART B (ANY CLAIM NOT ARISING FROM A MOTOR VEHICLE COLLISION) WHAT IS THE NATURE OF YOUR CLAIM? (e.g. work done; money owed; goods or services supplied; personal injury other than that arising from a motor vehicle collision; application to fence; injunction.) WHERE DID YOUR CLAIM ARISE? WHEN DID YOUR CLAIM ARISE? PARTICULARS OF THE CLAIM: [You must set out here in as much detail as you can the substance of your claim. If the space is insufficient you may add other sheets.] Form 4A -- 157 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 143 HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING? WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING? Dated: [e.g. 5 September 19 ]. [To be signed by the Plaintiff or the Plaintiff's Solicitor] _______________ Form 4A -- 158 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 144 RULE 5.11 FORM 5A AFFIDAVIT/DECLARATION OF SERVICE [heading as in Form 4A] I, [full name] of [address], *make oath and say/declare that I served a copy of the [document] *together with two notices of defence on [name of person served] by: *leaving it with *him/her personally at [address] *delivering it to *his/her place of residence to [name] a person apparently above the age of 16 years and residing there at [address] *delivering it to *his/her place of business at [address] to [name] a person apparently above the age of 16 years and apparently in charge of that business or employed in the office of that business. *posting it by prepaid ordinary post at [address] in an envelope addressed to *him/her at *his/her address for service at [address] *leaving it at *sending it by post to the registered office of the corporation at [address] on [day of week], the day of 19 at *a.m./p.m. *I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury. *Sworn/Declared at [place] in the State of Victoria on [date] Before      [Signed by person] *authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration. *authorised under section 123C(1) of the Evidence Act 1958 to take an affidavit. [Name and address in legible writing, typing or stamp] * Delete if not applicable. _______________ Form 5A -- 159 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 145 RULE 7.02 FORM 7A COUNTERCLAIM [heading as in Form 4A] NATURE OF COUNTERCLAIM (STATE SHORTLY) AMOUNT OF COUNTERCLAIM TO THE PLAINTIFF— TAKE NOTICE that this counterclaim has been brought against you by the defendant for the counterclaim set out in the pages attached. IF YOU INTEND TO DEFEND this counterclaim, YOU MUST GIVE NOTICE OF DEFENCE, within 21 days of service upon you of this counterclaim, to— (a) the defendant whose address for service is— and (b) the registrar of the Magistrates' Court at— IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the defendant may OBTAIN AN ORDER AGAINST YOU for the amount of the counterclaim and costs without further notice. DATE OF FILING— [next page] TO THE DEFENDANT—If your counterclaim arises from a motor vehicle collision, complete Part A. If your counterclaim does not arise from a motor vehicle collision complete Part B. If yours is a combined counterclaim, complete the appropriate parts. PART A (COUNTERCLAIM ARISING FROM A MOTOR VEHICLE COLLISION INCLUDING PERSONAL INJURY) WHAT IS THE NATURE OF YOUR COUNTERCLAIM? (e.g. cost of repairs to motor vehicle, cost of repairs to damaged fence.) WHERE DID YOUR CLAIM ARISE? [Give the location of any collision, including a Melway reference if possible, and in the space below draw a sketch plan of the collision with names of roads, etc. Identify your vehicle as Form 7A -- 160 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 146 "1", the vehicle driven by the plaintiff as "2" and any other vehicles involved as "3", "4", "5", etc.] WHEN DID YOUR COUNTERCLAIM ARISE?— HOW DID THE COLLISION HAPPEN?—[You must set out here in as much detail as you can how the collision happened and why you believe the plaintiff is at fault. If the space is insufficient you may attach other sheets.] HOW MUCH ARE YOU CLAIMING?— Dated: [e.g. 5 September 19 ]. [To be signed by the Defendant or the Defendant's Solicitor] [next page] PART B (ANY COUNTERCLAIM NOT ARISING FROM A MOTOR VEHICLE COLLISION) WHAT IS THE NATURE OF YOUR COUNTERCLAIM? (e.g. work done; money owed; goods or services supplied; personal injury other than that arising from a motor vehicle collision; application to fence; injunction.) WHERE DID YOUR COUNTERCLAIM ARISE?— PARTICULARS OF THE COUNTERCLAIM— [You must set out here in as much detail as you can the substance of your counterclaim. If the space is insufficient you may attach other sheets.] HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING?— WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING? Dated: [e.g. 5 September 19 ]. [To be signed by the Defendant or the Defendant's Solicitor] _______________ Form 7A -- 161 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 147 RULE 8.01 FORM 8A THIRD PARTY NOTICE IN THE MAGISTRATES' 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 complaint served herewith. AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the grounds set out in the Notice of Defence served herewith, and claims to be entitled to relief against you on the grounds set out in the particulars of claim indorsed on this notice. FILED: [e.g. 5 September, 1987]. Registrar 1. This notice was filed by— * the defendant in person * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant sues by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2.] 4. The claim between the plaintiff and the defendant has been set down for hearing on [insert date of hearing, if known]. * Delete if inapplicable. [next page] Form 8A -- 162 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 148 Particulars of Claim [set out particulars of claim] _______________ Form 8A -- 163 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 149 RULE 8.09 FORM 8B NOTICE CLAIMING CONTRIBUTION [heading as in Form 4A] TO THE DEFENDANT TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained [give brief statement of plaintiff's claim]. AND TAKE NOTICE that the [identify party] claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover against that party in the proceeding [where appropriate to the extent of such amount as may be found by the Court to be just and equitable, having regard to your responsibility for such damages on the ground that [insert ground(s)]]. FILED: [e.g. 5 September, 19 ]. Registrar _______________ Form 8B -- 164 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 150 RULE 9.01 FORM 9A NOTICE OF DEFENCE [heading as in Form 4A] TO THE PLAINTIFF AND TO THE REGISTRAR OF THE MAGISTRATES' COURT AT TAKE NOTICE that the defendant intends to defend this complaint. AND TAKE NOTICE that the defendant's defence is as follows [set out a concise statement of the nature of the defence and a summary of the material facts, with particulars, on which the defendant relies]. FILED: [e.g. 5 September, 19 ]. * Defendant [signed] * Defendant's solicitor [signed] 1. This notice was signed— * by the defendant in person; * for the defendant corporation by [name of person] of [address] who holds the position of [director, secretary or other person authorised in writing by the defendant corporation]; * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant defends in person, the address in 2]. * Delete if inapplicable. _______________ Form 9A -- 165 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 151 RULE 9.09 FORM 9B NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985 [heading as in Form 4A] In the matter of the Accident Compensation Act 1985 Take notice that will request the Magistrates' Court at on 19 at a.m./p.m. to refer the following medical questions to a medical panel for an opinion— (a) (b) (c) Signed: Dated: _______________ Form 9B -- 166 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 152 RULE 10.01(2) FORM 10A APPLICATION FOR ORDER [heading as in Form 4A] Nature of complaint [state shortly] 1. The plaintiff applies for an order for the claim with interest to the date of the order and costs shown below. 2. The defendant has not given notice of defence to the plaintiff. 3. An affidavit/declaration of service of the complaint has been filed. 4. Details of the order sought are: CLAIM Claim $ Less amounts paid since claim $ $ INTEREST Date of issue of complaint: to , days @ % $ to , days @ % $ $ [Attach schedule where necessary] COSTS Professional costs $ Fee on complaint $ Fee on this application $ Service fee $ Attempted service fee(s)—total $ Distance fee $ Search fee $ Necessary affidavit(s) [specify] $ Other(s) [specify] $ Sub-total $ Less any costs paid $ $ Dated: [e.g. 5 September 19 ]. [plaintiff or plaintiff's solicitor] _______________ Form 10A -- 167 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 153 RULE 10.04 FORM 10B [heading as in Form 4A] Nature of complaint [state shortly] 1. The defendant applies for an order for costs against the plaintiff. 2. The complaint was dismissed on [insert date or date of non- compliance]. 3. Details of the order sought are: COSTS Instructions to defend $ Fee on this application $ Necessary affidavit(s) [specify] $ Other(s) [specify] $ Dated: [e.g. 5 September 19 ]. [Defendant or defendant's solicitor] _______________ Form 10B -- 168 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 154 RULE 10.08(2) FORM 10C APPLICATION FOR SUMMARY ORDER [heading as in Form 4A] NATURE OF COMPLAINT—[state shortly] TO: The defendant. 1. The plaintiff applies for an order on the claim with interest to the date of the order and costs on the grounds set out in the accompanying affidavit(s). 2. UNLESS you satisfy the Court, by affidavit or otherwise, that you have a good defence to the claim, or disclose facts deemed by the Court sufficient to entitle you to defend the claim, the Court may make an order in favour of the plaintiff for the amount of the claim, or part of the claim. 3. The application will be heard by the Court at [venue] on [date]. FILED: [e.g. 5 September 19 ]. Registrar This application was filed by , solicitor for the [identify party]. _______________ Form 10C -- 169 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 155 RULE 10.19(1) FORM 10D APPLICATION FOR *SETTING ASIDE/*VARIATION OF SUMMARY ORDER [heading as in Form 4A] NATURE OF COMPLAINT—[state shortly] To: [identify party/parties] 1. The [identify party] applies for an order *setting aside/*varying the order of the Court dated [date of order]. 2. Details of the order referred to in paragraph 1 are—[set out details of order]. 3. The grounds for this application are set out in the accompanying affidavit(s). 4. The application will be heard by the Court at [venue] on [date]. FILED: [e.g. 5 September 19 ]. Registrar This application was filed by , solicitor for the [identify party] * Delete if not applicable. _______________ RULE 11.02 FORM 11A NOTICE FOR DISCOVERY [heading as in Form 4A] To the [identify party]. YOU are required to make discovery of documents within 28 days after service of this notice on you. Dated: [e.g. 5 September 19 ]. [Signed] _______________ Form 10D -- 170 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 156 RULE 11.04 FORM 11B AFFIDAVIT OF DOCUMENTS [heading as in Form 4A] I, the abovenamed [party], make oath and say as follows— 1. I have in my possession, custody or power, the documents relating to the questions in this proceeding enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to producing them. The documents are privileged on the ground— [e.g. (a) as to documents numbered 4–6, that (grounds of privilege); (b) as to documents numbered 7–9, that (grounds of privilege).] 3. I have had, but no longer have, in my possession, custody or power, the documents relating to the questions in the proceeding enumerated in Schedule 2. 4. (a) Document numbered [e.g. 10], referred to in Schedule 2, was last in my possession, custody or power on [state when] and I believe that [state belief as to what has become of it]. 5. To the best of my knowledge, information and belief neither I nor my solicitor nor any other person on my behalf has now, or ever had, in my or his, her or its possession, custody or power, any document relating to any question in the proceeding, other than the documents enumerated in Schedules 1 and 2. [Describe each document in the Schedules as original or copy] SCHEDULE 1 PART 1 1. 2. 3. PART 2 4. 5. 6. SCHEDULE 2 Form 11B -- 171 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 157 8. Sworn, etc. _______________ Form 11B -- 172 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 158 RULE 11.06 FORM 11C NOTICE TO PRODUCE [heading as in Form 4A] To the [identify party] TAKE NOTICE that the [party] requires you to produce for the inspection of the [party] the following documents referred to in your [complaint, defence, affidavit, etc.] [describe documents required]. Dated: [e.g. 5 September, 19 ]. [Signed] NOTE: Within 7 days of service of this notice you must serve on the [party] a notice appointing a time within a further 7 days and a place where the documents may be inspected. _______________ Form 11C -- 173 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 159 RULE 14.03 14.04 FORM 14A NOTICE TO ADMIT [heading as in Form 4A] To the [identify party] TAKE NOTICE that if you do not, within [specify a number not less than 14] days after service of this notice on you, serve a notice on the [party] disputing any fact specified [or the authenticity of any document mentioned] below, that fact [or the authenticity of that document] shall, for the purpose of this proceeding only, be taken to be admitted by you in favour of the [party]. If you do serve a notice disputing that fact [or the authenticity of the document], and afterwards that fact [or the authenticity of the document] is proved, you must pay the costs of proof, unless the Court otherwise orders. 1. [specify each fact] or 2. [mention each document] Dated: [e.g. 5 September, 19 ]. [Signed] _______________ Form 14A -- 174 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 160 RULE 14.03 14.04 FORM 14B NOTICE OF DISPUTE [heading as in Form 4A] To the [identify party] The [party] disputes the following facts specified in the [party]'s notice dated [e.g. 5 September 19 ]. 1. [identify each document] 2. or The [party] disputes the authenticity of the following documents mentioned in the [party]'s notice dated [e.g. 5 September, 19 ]. 1. [identify document] 2. Dated: [e.g. 5 September, 19 ]. [Signed] _______________ Form 14B -- 175 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 161 RULE 16A.02 FORM 16AA NOTICE OF APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 [heading as in Form 4A] PART 1—PARTICULARS OF APPLICATION I, [name of applicant] of [address of applicant or firm of solicitor for applicant] hereby request an *audio visual/*audio link in accordance with the following details— 1. *Audio visual/*Audio link— From [originating city/town] To [receiving city/town] 2. Type of hearing—[e.g. *Hearing/*Contest Mention/*Other] 3. Number of persons to appear before, or give evidence by *audio visual/*audio link— 4. Suggested time (if any) for link— 5. Estimate of duration of link— 6. Is this application being made with the consent of the parties to the proceeding?— 7. If the answer to question 6 is No, what parties have not given consent?— 8. If a hearing date has been fixed, what is the date of the hearing?— I hereby undertake to pay, in the first instance, the appropriate amount prescribed by the regulations under section 42H(1) of the Act. Date— [Signature] Form 16AA -- 176 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 162 PART 2—PARTICULARS OF HEARING (to be completed by the Registrar) The applicant will be heard before the Magistrates' Court at on [e.g. 20 June, 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 16AA -- 177 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 163 RULE 17.01 FORM 17A WITNESS SUMMONS TO GIVE EVIDENCE [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend for the purpose of giving evidence— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. FILED [e.g. 5 September 19 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) any question concerning this summons should be addressed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17A -- 178 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 164 RULE 17.01 FORM 17B WITNESS SUMMONS FOR PRODUCTION (Note: Summons to a natural person) [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend and produce this summons and the documents and things described in the Schedule— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of so attending, you may produce this summons and the documents and things described in the Schedule to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the date on which you are required to attend. SCHEDULE [description of documents and things] FILED: [e.g. 5 September, 19 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) documents and things produced by you in accordance with this summons may be returned by post to you at your address shown on this summons but you may in writing on or attached to this summons request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; Form 17B -- 179 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 165 (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17B -- 180 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 166 RULE 17.01 FORM 17C WITNESS SUMMONS FOR PRODUCTION AND TO GIVE EVIDENCE [heading as in Form 4A] To [name]: of [address]: THE COURT ORDERS that you attend and produce this summons and the documents and things described in the Schedule and attend for the purpose of giving evidence— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of attending to produce the documents and things described in the Schedule, you may produce them and this summons to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the first date on which you are required to attend. Note, however, that if you produce the documents and things to the registrar you will still be required to give evidence as directed above. SCHEDULE [description of documents and things] FILED: [e.g. 5 September 19 ]. Registrar Filed by the [identify party] NOTE that— (1) if you do not comply with this summons you may be arrested; (2) documents and things produced by you in accordance with this summons may be returned by post to you at your address shown on this summons but you may in writing on or attached to this summons request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; Form 17C -- 181 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 167 (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17C -- 182 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 168 RULE 17.01 FORM 17D WITNESS SUMMONS FOR PRODUCTION (Summons to a corporation for production and for its proper officer to answer questions concerning possession, etc. of documents and things) [heading as in Form 4A] To [name of corporation]: of [address]: THE COURT ORDERS that— 1. [name of corporation], called "the corporation", shall produce this summons and the documents and things described in the Schedule by causing its proper officer to attend and produce them— (a) before the Court; (b) at [address of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Instead of so attending, the corporation may produce this summons and the documents and things described in the Schedule to the registrar of the Magistrates' Court of Victoria at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the first date on which the officer is required to attend. 2. The officer who is to attend must make enquiries for the purpose of answering, and, on attending, must answer, such questions as the Court requires the officer to answer concerning the possession or custody of those documents and things. SCHEDULE [description of documents and things] Registrar Filed by the [identify party]. NOTE that— (1) if the corporation fails to comply with this summons, the summons may be enforced by arrest of an officer of the corporation; Form 17D -- 183 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 169 (2) documents and things produced by the corporation in accordance with this summons may be returned by post to it at its address shown on this summons but it may in writing on or attached to this summons request that they be posted to it at another address given by it or that it be informed when they are available to be collected by it; (3) any question concerning this summons should be directed not to the Court but to the solicitor for the party who filed the summons. _______________ Form 17D -- 184 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 170 RULE 20.03 FORM 20A APPLICATION [heading as in Form 4A] TO: [identify each party to whom application is addressed] YOU are summoned to attend before the Court on the hearing of an application by the [party] for [describe the order sought]. The application will be heard by the Court at [venue] at [time] on [date]. Registrar FILED: [e.g. 5 September 19 ]. This application was filed by , solicitor for [identify party]. _______________ RULE 20.08(3) FORM 20B APPLICATION FOR APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 4A] TO: [Identify each party (if any) to whom application is addressed] YOU are summoned to attend before the Court on the hearing of an application by the [identify party]. The [identify party] applies to the Court for an order to appoint a nominal defendant for the purposes of a claim for compensation. The circumstances and grounds of the application are set out in the accompanying affidavit. FILED: [e.g. 5 September 19 ]. This application was filed by , solicitor for the [identify party]. _______________ Form 20A -- 185 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 171 RULE 20.08(3) FORM 20C NOTICE OF APPOINTMENT OF NOMINAL DEFENDANT [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 TAKE NOTICE THAT: At the request of [identify party] the Court has this day appointed [name of nominal defendant] of [address] as a nominal defendant for the purposes of these proceedings, *in place of an alleged employer—[name of alleged employer] *in the place of an employer who cannot be identified [or as the case may be]. A copy of the application for appointment and the accompanying affidavit, together with a copy of the originating process in these proceedings is attached to this Notice. The complaint is listed for [nature of hearing] by the Court at [venue] at [time] on [date]. Dated 19 . [Signature of party or solicitor for party who obtained order] * Delete if inapplicable. _______________ Form 20C -- 186 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 172 RULE 20.10(1) FORM 20D APPLICATION FOR REFERENCE OF QUESTION TO MEDICAL REFEREE [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 TO: [Identify each party to whom application is addressed] YOU are summoned to attend before the Court on the hearing of an application by [identity party]. [Name of worker] to whom a weekly payment of $ is payable by [name of employer] under a *claim/*award as compensation under the Act intends to cease to reside in Australia. The [identify party] applies to the Court for an order referring to a medical referee the question whether the incapacity of [name of worker] resulting from the injury is likely to be of a permanent nature. FILED: [e.g. 5 September 19 ] This application was filed by , solicitor for the [identify party]. * Delete if inapplicable. _______________ Form 20D -- 187 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 173 RULE 20.10(2) FORM 20E ORDER OF REFERENCE [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 On the application of [identify party] of [address] (a copy of which is attached) the Court appoints [name of referee], one of the medical referees appointed by the Governor in Council for the purposes of the Workers Compensation Act 1958, to examine [name of worker] and to give a certificate as to whether the incapacity of [name of worker] resulting from the injury is likely to be of a permanent nature. A copy [or copies] of the report [or reports] of the medical practitioner [or practitioners] by whom the [name of worker] has been examined, is [or are] attached. [Add, if appropriate: Copies of the statements submitted by the parties are also attached]. [Name of worker] who is now at [address] has been directed to be examined by the referee. The Court is satisfied that [name of worker] is in a fit condition to travel for the purpose of being examined, and he [or she] has been directed to attend on the referee for examination at such time and place as may be fixed by the referee. [or [Name of worker] does not appear to be in a fit condition to travel for the purpose of being examined]. The referee is requested to forward a certificate by certified mail to the Registrar of the Court at on or before 19 , specifying the nature of the incapacity of [name of worker] resulting from the injury, and whether such incapacity is likely to be of a permanent nature. Dated 19 Registrar Magistrates' Court at _______________ Form 20E -- 188 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 174 RULE 20.10(3) FORM 20F CERTIFICATE OF IDENTITY [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 NOTICE—This certificate is no security whatever for a debt No. of Certificate: (a)* This is to certify that [name of worker] formerly of [address and description] is entitled to a weekly payment of $ from [name and address of employer] as compensation payable to [name of worker] in respect of personal injury which arose out of or in the course of employment, such weekly payment to continue during the total or partial incapacity of [name of worker] for work; and the description of [name of worker] and the incapacity for work as certified by the medical referee appointed in this matter are as follows: Age— Height— Hair— Eyes— Nature of incapacity— [Describe nature of incapacity, as in certificate of medical referee]. Holder of Australian passport number , issued at on 19 . Dated 19 Registrar Magistrates' Court at . *(a) Here fill in the name of place in which proceedings were commenced or to which they have been transferred. _______________ Form 20F -- 189 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 175 RULE 20.10(3) FORM 20G NOTICE TO BE GIVEN TO WORKER INTENDING TO CEASE TO RESIDE IN AUSTRALIA [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 Take notice that if you want to obtain payment of the weekly payments payable to you under the award made in your favour against [identify party] and dated [insert date] [or as the case may be] while you are residing out of Australia— • you must, at intervals of three months from the date up to which such payments have been made submit yourself to examination by a doctor in the place where you are residing and produce to the doctor the copy of the certificate of the medical referee and the Certificate of Identity attached to this Notice; • you must obtain from the doctor a certificate in the attached form (Form 20H) that you have been examined, and that your incapacity resulting from the injury described in the certificate of the medical referee continues; • such certificate must be verified by the doctor by declaration in your presence before a notary public; • you must attend before a notary public, and make a declaration in the attached form (Form 20J) that you are the person mentioned in the copy of the certificate of the medical referee and in the Certificate of Identity attached to this Notice, and in the certificate of the doctor who examined you, and you must show the notary public the copy and the certificates. You must then send to me, at [address] the certificate of the doctor who examined you, and your and the doctor's declarations, together with a request for transmission to you of the amount of the weekly payment due to you, specifying the place where and the manner in which the amount is to be sent, which request must be signed by you. In addition to notaries public, you may have certificates witnessed by any Australian or British ambassador, envoy, minister, charge d'affaires or secretary of embassy or legation, exercising functions in any foreign place in which you reside. In the event of your death whilst residing out of Australia, your representatives must, in order to obtain payment of the arrears due to you, send to me at [address] a certificate of your death, and documents showing that they are entitled to such arrears, verified by declaration before a notary Form 20G -- 190 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 176 public, with a request for transmission to them of the amount of such arrears, specifying the place where and the manner in which such amount is to be sent to them. The expression "your representative" means the executor of your will or administrator of your estate. The Court may in its discretion dispense with production of probate or letters of administration. Dated 19 Registrar Magistrates' Court at _______________ Form 20G -- 191 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 177 RULE 20.10(4) FORM 20H FORM OF MEDICAL CERTIFICATE TO BE OBTAINED BY WORKER RESIDING OUT OF AUSTRALIA [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 I, [name, address and medical qualification of medical practitioner] certify that I have this day examined [name of worker] of [address] whom I believe to be the same person as [name of worker] described in the copy of the certificate of medical referee in the above matter, dated [insert date], produced to me by [name of worker] and that in my opinion the incapacity of [name of worker] resulting from the injury described in the certificate of the medical referee still continues. Dated 19 [Signature] Declared at 19 in the presence of [name of worker], the copy of the certificate of the medical referee and the certificate of identity mentioned above being produced at the same time. Before me, [Signature and description of person before whom the declaration is made]. _______________ Form 20H -- 192 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 178 RULE 20.10(4) FORM 20J DECLARATION OF IDENTITY BY WORKER RESIDING OUT OF AUSTRALIA [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 I, [name of worker] of [address] hereby declare that I am the same person as [name of worker] formerly of [address] described in the copy of the certificate of the medical referee in the above matter, dated 19 , now produced by me, and in the certificate of identity, dated 19 , now produced by me and the same person as [name of worker] formerly of [address] described in the certificate of [insert details] declared by in my presence on 19 , and now produced by me. [Signed] [Name of worker] Declared at on 19 the certificates mentioned above being produced at the same time. Before me, [Signature and description of person before whom the declaration is made]. _______________ Form 20J -- 193 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 179 RULE 20.10(5) FORM 20K NOTICE BY REGISTRAR TO EMPLOYER OF RECEIPT OF MEDICAL CERTIFICATE AND DECLARATION OF IDENTITY [heading as in Form 4A] In the matter of the Workers Compensation Act 1958 Take notice that I have received proof of identity and of continuance of incapacity in this matter. I request you to transmit the sum of $ being the amount of the weekly payments payable to [name of worker] under the award from [the date to which they were paid last] to [13 weeks from that date] to me, to be remitted by me to [name of worker]. Dated 19 Registrar Magistrates' Court at To: [name and address of employer]. _______________ Form 20K -- 194 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 180 RULE 24.03 FORM 24A COMPLAINT (Instruments Act 1958) [heading as in Form 4A] TO THE DEFENDANT TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this complaint. IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by first obtaining the leave of the Court to defend the claim and then giving notice of defence. IF YOU DO NOT OBTAIN THE LEAVE OF THE COURT TO DEFEND, the plaintiff may OBTAIN AN ORDER AGAINST YOU on the claim without further notice. THE PROPER TIME FOR OBTAINING LEAVE TO DEFEND is as follows— (a) where you reside within 80 kilometres of the post office at the corner of Bourke and Elizabeth Streets, Melbourne, within 16 days of service; (b) where you reside beyond that distance, within 21 days after service. IF YOU PAY the amount of the claim, namely $ and $ for legal costs to the plaintiff or to the plaintiff's solicitor within the proper time stated above, this proceeding will come to an end. Notwithstanding the payment you may have the costs fixed by the Court. APPLICATION FOR LEAVE TO DEFEND must be made within the proper time stated above to the Court at the venue of the Court at which this complaint was filed. THE COURT MAY GIVE LEAVE TO DEFEND if you— (a) pay into Court the amount claimed, namely, $ ; or (b) file affidavits satisfactory to the Court which disclose— (i) a defence; or (ii) such facts as would make it incumbent on the holder to prove consideration; or (iii) such other facts as the Court considers sufficient to support the application. Form 24A -- 195 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 181 DATE OF FILING: THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING Particulars of Claim The Plaintiff claims $ principal and interest [or $ balance of principal and interest] due to the payee [indorsee or bearer] of a bill of exchange [promissory note or order for the payment of money] of which the following is a copy. [Here copy bill and all indorsements on it] 1. This Complaint was filed by— * the plaintiff in person; * for the plaintiff by [name of firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the plaintiff is— 3. The address for service of the plaintiff is—[If the plaintiff sues by a solicitor, the business address of the solicitor. If the plaintiff sues in person, the address in 2.] 4. The address of the defendant is— * Delete if inapplicable. _______________ Form 24A -- 196 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 182 RULE 24.04 FORM 24B APPLICATION FOR LEAVE TO DEFEND (Instruments Act 1958) [heading as in Form 4A] THE DEFENDANT APPLIES for leave to defend this claim. * On [date] the sum of $ (being the sum claimed in the complaint) was paid into Court by the defendant. * The affidavit(s) of [names of deponents] setting out the facts upon which the defendant relies in the application are filed herewith. * Defendant * Defendant's solicitor FILED: [e.g. 5 September, 19 ]. 1. This application was filed by— * the defendant in person; * for the defendant by [name or firm of solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2.] 4. The date of service of the complaint was [date]. * Delete if inapplicable. _______________ Form 24B -- 197 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 183 RULE 24.05 FORM 24C APPLICATION FOR ORDER (Instruments Act 1958) [heading as in Form 4A] 1. The plaintiff requests that an order be made for $ plus interest at the rate of % to the date of the order. 2. The defendant has not been given leave to defend this complaint within the time provided for in section 5 of the Instruments Act 1958. 3. An affidavit stating the matter in which the complaint was served has been previously filed with the Court. 4. The plaintiff's costs are— FILED: [e.g. 5 September, 19 ]. * Plaintiff * Plaintiff's solicitor * Delete if inapplicable. _______________ Form 24C -- 198 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 184 RULE 24.06 FORM 24D NOTIFICATION OF DECISION (Instruments Act 1958) [heading as in Form 4A] TO THE PLAINTIFF AND TO THE DEFENDANT APPLICATION FOR LEAVE TO DEFEND was filed on [date] and has been considered by the Court. The Court orders as follows— * Application for leave to defend refused. * Application for leave to defend granted upon condition—[set out conditions, if any]. Dated: [e.g. 5 September, 19 ]. Registrar * Delete if inapplicable. _______________ Form 24D -- 199 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 185 RULE 24.07 FORM 24E APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE (Instruments Act 1958) [heading as in Form 4A] TO THE PLAINTIFF THE DEFENDANT did not obtain leave to defend the above complaint and on [date] an order was made against the defendant for $ with $ costs. TAKE NOTICE that the defendant will apply to the Court at [time] on [date] for an order that the order made be set aside and that leave to defend the complaint be granted. The special circumstances upon which the defendant relies in support of this application are—[set out special circumstances]. FILED: [e.g. 5 September, 19 ]. * Defendant * Defendant's solicitor Registrar 1. This application was filed by— *the defendant in person; *for the defendant by [name or firm or solicitor], solicitor(s), of [business address of solicitor]. 2. The address of the defendant is— 3. The address for service of the defendant is—[If the defendant defends by a solicitor, the business address of the solicitor. If the defendant sues in person, the address in 2]. * Delete if inapplicable. _______________ Form 24E -- 200 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 186 RULE 27.05 FORM 27A INTERPLEADER SUMMONS (Instruments Act 1958) [heading as in Form 4A] To [judgment creditor] of [address] and To the [claimant] of [address] The claimant, [name of claimant] has claimed the goods [or certain goods] [if only certain goods are claimed, list them] [or the proceeds of sale of [goods]] taken in execution by [person to whom warrant was directed] under the warrant to seize property in this proceeding. TAKE NOTICE that the Court will hear the claim at [time] on [date]. Dated: [e.g. 5 September, 19 ]. Registrar _______________ Form 27A -- 201 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 187 RULE 27.10 FORM 27B WARRANT TO SEIZE PROPERTY [heading as in Form 4A] ORIGINAL/EXECUTION COPY REQUEST FOR WARRANT To the Registrar [name] is owed money [name] of [address] was ordered to pay money in the above matter on [date] by the Magistrates' Court at [venue]. Please issue a warrant to seize property to recover [amount] which is the amount now owing. This amount is calculated— Amount ordered $ Costs ordered $ Interest ordered $ Sub-total $ Amount paid since order $ Sub-total $ Interest from order to this date to , days @ % $ to , days @ % $ Sub-total $ Prior costs of recovering amount ordered $ Fees on warrant $ Professional costs $ Sub-total $ Amount owing $ This request is made by [name of solicitor or person making request, address and telephone number] It is believed that the personal property of the person ordered to pay can be found at [address]. Dated: [e.g. 5 September 19 ] Form 27B -- 202 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 188 WARRANT TO SEIZE PROPERTY To the Sheriff: You are authorised to seize the personal property of the person ordered to pay. If the amount and your costs of execution set out in the request for this warrant are not paid you are to sell the property and pay the amount due to [judgment creditor]. You or your officer must indorse details of execution on this warrant. Issued at: Dated: [e.g. 5 September 19 ]. Registrar _______________ Form 27B -- 203 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 189 RULE 27.10.1 FORM 27BA NOTICE TO PERSON RESPONSIBLE FOR SAFE-KEEPING OF PROPERTY SEIZED UNDER A WARRANT TO SEIZE PROPERTY (Magistrates' Court Act 1989, section 111(7A)) To: (insert name) The personal property listed below belonging to (insert name) has been seized under a warrant to seize property dated (insert date). You are now responsible for the safe-keeping of this property. LIST OF PROPERTY: (description of property seized—add extra pages if space insufficient) Section 111(7B) of the Magistrates' Court Act 1989 provides— "(7B) A person who knows that the property has been seized under a warrant to seize property or is the subject of a notice served under sub-section (7A) must not, except with the written consent of the person executing the warrant to seize property— (a) interfere with or dispose of that property; or (b) deface or remove any mark attached to that property indicating that it had been so seized; or (c) remove that property from the place at which it was situated when the notice was served. Penalty applying to this sub-section: 25 penalty units or 6 months imprisonment or both." Signature of person executing warrant: Date: [e.g. 5 September 19 ] _______________ Form 27BA -- 204 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 190 RULE 27.12 FORM 27C WARRANT OF DELIVERY [To be used for delivery of goods or, where the Court order was for the delivery of goods or for payment of their assessed value. If the Court order was for the payment of assessed value of goods only a warrant to seize property may be used.] [heading as in Form 4A] REQUEST FOR WARRANT To the Registrar: 1. Please issue a warrant for delivery of [specify goods] ordered to be delivered by the Court at [venue of Court] on [date] plus costs of [amount]. [Either paragraph 1 or 2 must be deleted.] 2. Please issue a warrant for delivery of [specify goods] or the payment of their assessed value [specify assessed value] ordered to be delivered or paid by the Court at [venue of Court] on [date], plus costs of [amount]. 3. The goods were ordered to be returned to [name and address] by [name and address] who has possession of the goods. It is believed that the goods are located at [address]. [Either paragraph 3 or 4 must be deleted]. 4. The goods were ordered to be returned to, or payment of their assessed value paid to [name and address] by [name and address] who has possession of the goods. It is believed the goods are located at [address.] 5. This request is made by [name of solicitor or person making request, address and telephone number]. Dated: [e.g. 5 September 19 ]. WARRANT OF DELIVERY To the Sheriff: 1. [name] is entitled to recovery of goods. [Either paragraph 1 or 2 must be deleted.] 2. [name] is entitled to recovery of goods or to payment of their assessed value. 3. [name] was ordered to deliver those goods. [Either paragraph 3 or 4 must be deleted.] 4. [name] was ordered to deliver those goods or pay their assessed value. Form 27C -- 205 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 191 5. You are authorised to seize the goods described above and demand costs as set out above together with your costs of execution. If those costs are not paid you are to seize and sell property belonging to that person sufficient to cover those costs. [Either paragraph 5 or 6 must be deleted.] 6. You are authorised to seize the goods described above and demand costs as set out above together with your costs of execution. If you cannot cause the goods described above to be so delivered, you are to seize and sell property belonging to that person sufficient to cover the assessed value of those goods, plus the costs as set out above together with your costs of execution. 7. You or your officer must indorse details of execution on this warrant. Issued at: Dated: [e.g. 5 September 19 ]. _______________ Form 27C -- 206 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 192 RULE 27.12.1 FORM 27CA SUMMONS TO ATTEND FOR ORAL EXAMINATION [heading as in Form 4A] To: [judgment debtor, or if a corporation, an officer of the judgment debtor] of [address] On [date] the Court ordered you [or the corporation] to pay money. You are summoned to attend before the Court to be orally examined on the application of [judgment creditor] as to your [of the corporation's] income, property, assets, debts and other liabilities and your [or the corporation's] means and ability to pay the amount ordered to be paid. The examination will be heard by the Court at [venue] on [date] at a.m./p.m. You are required to produce to the Court on the examination all books of account, papers, documents, passbooks and current statements for all bank/building society/credit union accounts, and all relevant files dealing with your income, purchases and expenditure. IF YOU DO NOT ATTEND IN ANSWER TO THIS SUMMONS A WARRANT MAY BE ISSUED BY THE COURT FOR YOUR ARREST Dated: [e.g. 5 September 19 ]. Registrar The amount due and unpaid on the court order is— Amount awarded on the claim $ Costs ordered $ Interest awarded $ Sub-total $ Less amount paid since order $ Total $ Additional amounts that have been accrued against you since the court order are— Interest from order to this date— to , days @ % $ to , days @ % $ Form 27CA -- 207 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 193 Costs of this summons $ Filing fee $ Service fee $ Total $ _______________ Form 27CA -- 208 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 194 RULE 27.12.1 FORM 27CB SUMMONS TO ATTEND TO GIVE EVIDENCE OR PRODUCE DOCUMENTS [heading as in Form 4A] To: [name] of [address] You are summoned to attend before the Court at [address of Court] at 10 a.m. [or as the case requires] on [date] to give evidence or produce the documents described in the Schedule or both to give evidence and produce those documents. SCHEDULE [description of documents] IF YOU DO NOT ATTEND IN ANSWER TO THIS SUMMONS A WARRANT MAY BE ISSUED BY THE COURT FOR YOUR ARREST Dated: [e.g. 5 September 19 ]. Registrar _______________ Form 27CB -- 209 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 195 RULE 27.12.1 FORM 27CC EXAMINATION OF A JUDGMENT DEBTOR [heading as in Form 4A] [name of person being examined] having been sworn, has answered the questions set out in column 1 below in the manner set out in column 2 below— Column 1 Questions Column 2 Answers 1. Is the judgment debt still owing? 2. What is your full name? 3. What is your date of birth? 4. What is the address/phone number of your present permanent address? Do you own or rent this residence? If renting, give name/address/phone number of Estate Agent/Landlord. 5. Do you propose to change your residence in the near future? If so, state your new address. 6. Are you single/married/living in a de facto relationship? 7. How many dependants do you have (excluding your spouse/de facto)? 8. Do you own or are you purchasing any real property (land)? Give details, including— (1) address; (2) value; (3) mortgage (naming financier); (4) 2nd mortgage (+ financier); (5) 3rd mortgage (+ financier); (6) caveats. 9. Do you own or are you purchasing a motor vehicle? Give details, including— (1) make/model/condition; (2) registration number; Column 1 Column 2 Form 27CC -- 210 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 196 Questions Answers (3) encumbrances (if any), stating for each encumbrance— (a) name of encumbrancer; (b) account number. 10. Do you own or are you purchasing any furniture? List all items, stating for any which are encumbered— (a) name of encumbrancer; (b) account number. 11. Does any person/corporation/firm owe you money? for each such person/corporation/firm give details, including— (1) name of person/corporation/firm; (2) address/phone number; (3) reference number (if any). 12. What position do you hold in your present employment? 13. What is the name/address/phone number of your present employer? 14. Have you any accounts at any bank/building society/credit union/etc.? For each account give details, including— (1) name of bank etc.; (2) type of account; (3) account number; (4) present balance of account. If account not held solely by you, state name/address/phone number of each other person with whom the account is jointly held. 15. How much cash-on-hand do you have? 16. Have you any personal property or assets not previously mentioned, including— (1) other deposits; (2) investments; Column 1 Questions Column 2 Answers Form 27CC -- 211 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 197 (3) shares; (4) debentures; (5) a life insurance policy; held either in your own name or jointly with any other person or persons? Give details of all such property/assets. If not held solely by you, state name/address/phone number of each person with whom jointly held. 17. What income do you receive after income tax is deducted? Is this income received weekly/fortnightly/monthly or how otherwise? 18. What other sources of income do you have? Give details of all sources and amounts. 19. What are the regular weekly expenses of running your household, including— (1) rent/mortgage; (2) food; (3) gas/electricity; (4) clothing; (5) hire purchase etc. (giving details of balance owing); (6) credit card repayments (giving details of balance owing); (7) other (and what) expenses? From whose money are each of these items of expense paid? 20. Are there any other persons who contribute to the expenses of running your household? If so, give details of source and amount. 21. Are there any other unsatisfied judgments against you? If so, give details of each judgment, including— (1) name/address/phone number of judgment creditor; (2) date of judgment; Column 1 Questions Column 2 Answers (3) amount outstanding; Form 27CC -- 212 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 198 (4) reference number (if any). 22. What other debts and liabilities do you have? Give details. 23. Do you have a proposal to pay the amount claimed by the judgment creditor? [Signature of judgment debtor] Recorded at on [date] [Signature of registrar] _______________ Form 27CC -- 213 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 199 RULE 27.12.1 FORM 27CD EXAMINATION OF AN OFFICER OF A JUDGMENT DEBTOR WHICH IS A CORPORATION [heading as in Form 4A] [name of person being examined], an officer of the judgment debtor corporation, having been sworn, has answered the questions set out in column 1 below in the manner set out in column 2 below— Column 1 Questions Column 2 Answers 1. Is the judgment debt still owing? 2. What is your full name? 3. What is your date of birth? 4. What is the address/phone number of your present permanent residence? 5. Are you an officer of the judgment debtor corporation? Give details. 6. What is the address of the registered office of the corporation? 7. Is the corporation registered or deregistered at the Corporate Affairs Office? 8. Is the corporation still trading? If not, when did it last trade? 9. At what addresses does the corporation carry on business? 10. What is the current financial position of the corporation? Give details. 11. Does any person/corporation/firm owe the corporation money? For each such person/corporation/firm give details, including— (1) name of person/corporation/firm; (2) address/phone number; (3) reference number (if any). Form 27CD -- 214 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 200 Column 1 Questions Column 2 Answers 12. Does the corporation have any accounts at any bank/building society/credit union/etc.? For each account give details, including— (1) name of bank etc.; (2) type of account; (3) account number; (4) present balance of account. 13. How much cash-on-hand does the corporation have? 14. What other assets does the corporation have? Give details of all— (1) real estate, listing— (a) addresses; (b) values; (c) mortgages (+ financier); (2) plant and equipment (not included elsewhere), listing— (a) locations/addresses; (b) values; (c) charges (+ financier); (3) motor vehicles, listing for each— (a) make/model/condition; (b) registration number; (c) lease details; (d) charges (+ financier); (4) stock (not included elsewhere), listing— (a) locations/addresses; (b) values; (c) charges (+ financier); (5) other deposits, investments, shares and debentures, giving for each details of value and in what business/corporation/firm; (6) other assets. Column 1 Column 2 Form 27CD -- 215 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 201 Questions Answers 15. What sources of income does the corporation have? Give details of all sources and amounts. 16. Are there any other unsatisfied judgments against the corporation? If so, give details of each judgment, including— (1) name/address/phone number of judgment creditor; (2) date of judgment; (3) amount outstanding; (4) reference number (if any). 17. What other debts and liabilities does the corporation have? Give details. 18. What are the corporation's future income prospects? Give details. 19. Does the corporation have a proposal to pay the amount claimed by the judgment creditor? [Signature of officer of judgment debtor] Recorded at on [date] [Signature of registrar] _______________ Form 27CD -- 216 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 202 RULE 27.15 FORM 27D ATTACHMENT OF EARNINGS SUMMONS [heading as in Form 4A] To [judgment debtor] of [address] You are summoned to attend before the Magistrates' Court at [venue] on the hearing of an application by [judgment creditor] for an order that your earnings be attached to satisfy the order against you in favour of [judgment creditor] made by the Court at [venue] on [date] for [amount], in respect of which [amount] is due and unpaid, being— (a) [amount] due under the order; (b) [amount] costs incurred subsequent to order; (c) [amount] interest to date. The application will be heard by the Court at [venue] at [time] on [date]. FILED: [e.g. 5 September 19 ]. Registrar This application was filed by , solicitor for [identify party]. _______________ Form 27D -- 217 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 203 RULE 27.15 FORM 27E AFFIDAVIT IN SUPPORT OF APPLICATION FOR ATTACHMENT OF EARNINGS ORDER [heading as in Form 4A] I, of the judgment creditor, make oath and say that: 1. By an order dated: [e.g. 5 September 19 ] it was ordered that [judgment debtor] pay me the sum of [amount] together with costs. 2. [amount] is due and unpaid in respect of the order, being— (a) [amount] due under the order; (b) [amount] costs incurred subsequent to order; (c) [amount] interest to date. or [judgment debtor] has persistently failed to comply with an order with respect to the order made by the Court on [date] that [insert terms or order not complied with]. 3. [judgment debtor] is employed by [name and address of employer] as a [occupation]. 4. No warrant committing [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued. or A warrant committing [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued and has been returned unexecuted. Sworn, etc. _______________ Form 27E -- 218 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 204 RULE 27.15 FORM 27F JUDGMENT DEBTOR'S STATEMENT OF FINANCIAL POSITION [heading as in Form 4A] To [judgment debtor] of [address] TAKE NOTICE that you must complete this form by giving the information requested below. The completed forms signed by you must be sent to [judgment creditor] at [address for service] before [day of hearing named in the summons]. If you do not do this, the Court may make an order that you attend before the Court and give the information. Dated: [e.g. 5 September, 19 ]. [Signed by judgment creditor or solicitor]. 1. Amount and source of weekly income Occupation: If working for an employer: Name and address of employer: Gross wage: Current overtime (if any): Car and other allowances and commission: If self-employed or in partnership: Average pre-tax earnings for last 12 months: If unemployed: State length of last employment, when last employment ceased and gross weekly amount earned: Pension or other benefit received: Workers' compensation received: Maintenance received: Superannuation received: Board or rent received: Form 27F -- 219 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 205 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: Amount owing to finance company: Net value: Life insurance policies: Form 27F -- 220 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 206 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: School fees and other school expenses: Clothing and shoes: Medical and chemist expenses: Entertainment: Payment on court orders and fines: Other expenses (give particulars): Form 27F -- 221 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 207 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 the name of the other owner or owners: 5. If any of the debts referred to in paragraph 3 is due jointly, identify each debt and give the name of the other debtor or debtors: 6. Give particulars of any other circumstances which affect the financial situation of the judgment debtor such as the number and age of dependants, marital status and health: Signature of judgment debtor: Date: _______________ * * * * * _______________ * * * * * _______________ Form 27F -- 222 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 208 RULE 27.16 FORM 27J ORDER THAT JUDGMENT DEBTOR ATTEND FOR EXAMINATION [heading as in Form 4A] THE COURT ORDERS that [judgment debtor] attend before the Court at on [date] to be examined concerning the means and ability of [judgment debtor] to comply with the order [state terms of order]. By the Court Dated: [e.g. 5 September, 19 ]. Registrar _______________ RULE 27.16 FORM 27K ORDER THAT PERSON INDEBTED OR EMPLOYER OF JUDGMENT DEBTOR GIVE STATEMENT [heading as in Form 4A] THE COURT ORDERS that [name of person indebted or employer] give to the Court on or before [date] a statement in writing signed by him or her or on his or her behalf containing the following particulars of indebtedness to [judgment debtor] that became payable during the period , 19 to , 19 . [complete appropriately] By the Court Dated: [e.g. 5 September, 19 ]. Registrar _______________ Form 27J -- 223 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 209 RULE 27.18 FORM 27L ATTACHMENT OF EARNINGS ORDER [heading as in Form 4A] THE COURT ORDERS that 1. [name] of [address], the employer of [judgment debtor] on each pay- day whilst [judgment debtor] is employed by him/her/it or until this order ceases to have effect, make payments out of the earnings of [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 [amount], being the amount of [amount] due and unpaid in respect of the order and the amount of [amount] 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 [amount] 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 [judgment debtor] may not be reduced by a payment under this order, shall be [amount] in respect of each pay-day. 4. [The employer] shall, in respect of each pay-day whilst the order is in force, if the net earnings of [judgment debtor] exceed the sum of— (a) the protected earnings of [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 [judgment debtor] 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. 5. The amount for the clerical and administrative costs of complying with this order which you the employer may deduct is [amount]. By the Court Dated: [e.g. 5 September, 19 ]. Registrar Form 27L -- 224 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 210 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 27L -- 225 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 211 RULE 27.19 FORM 27M NOTICE TO EMPLOYER [heading as in Form 4A] The attachment of earnings order served herewith requires you to deduct from any earnings becoming payable to [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 [judgment debtor] of [address] towards securing payment of $ , being the amount of $ due and unpaid in respect of the order and $ for costs. "Earnings" in relation to [judgment debtor] means any amounts payable to [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 [judgment debtor] under the Commonwealth Acts known as the Social Security Act 1947 as amended from time to time, the Veterans' Entitlements Act 1986 as amended from time to time or the Seamen's War Pensions and Allowances Act 1940 as amended from time to time. Where two or more attachment earnings orders are directed to you with respect to earnings payable or likely to become payable by you to [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 [judgment debtor] after the making of any payment under an earlier order. Form 27M -- 226 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 212 You are required to give [judgment debtor] a notice specifying particulars of the payments made by you under the attachment of earnings order. 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 [amount] from the earnings of [judgment debtor] towards the clerical and administrative costs of making payments under the order. You are required to give [judgment debtor] notice of the amount deducted for this purpose. If you are in doubt whether payments to [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 the employee or alters the position of the employee to the employee's 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 that employee may be dealt with as for contempt of court. Dated: [e.g. 5 September, 19 ]. Registrar _______________ Form 27M -- 227 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 213 RULE 27.19 FORM 27N NOTICE BY EMPLOYER THAT JUDGMENT DEBTOR IS NOT IN THE EMPLOY OF THE EMPLOYER [heading as in Form 4A] To the Registrar and to [judgment creditor] of [address] Whereas an order was made on , 19 that I make payments to [judgment creditor] out of the earnings of [judgment debtor] I hereby give notice that I am not the employer of [judgment debtor] [or I ceased to be the employer of [judgment debtor] on , 19 .] Dated , 19 . [Signature of Employer] _______________ * * * * * _______________ Form 27N -- 228 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 214 RULE 27.30 FORM 27P GARNISHEE ORDER [where garnishee debt is less than judgment debt, interest and judgment creditor's costs] IN THE MAGISTRATES' COURT OF VICTORIA AT BETWEEN A.B. Judgment creditor and C.D. Judgment debtor and E.F. Garnishee THE COURT ORDERS that: 1. The garnishee [where appropriate insert here (after deducting therefrom $ for costs of the garnishee application)] pay to the judgment creditor without delay $ , the debt due from the garnishee to the judgment debtor and if the garnishee defaults in payment, execution may issue against the garnishee [or where the debt is not due but accruing] pay to the judgment creditor $ , the debt accruing from the judgment creditor to the judgment debtor, as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment, execution may issue against the garnishee. 2. $ , the costs of the judgment creditor of the garnishee application, be added to the judgment debt and the interest accrued thereon and be retained by the judgment creditor out of the money recovered by the judgment creditor under this order in priority to the judgment debt and interest. By the Court Dated: [e.g. 5 September, 19 ]. Registrar _______________ Form 27P -- 229 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 215 RULE 27.30 FORM 27Q GARNISHEE ORDER [where garnishee debt is greater than judgment debt, interest and judgment creditor's costs] [heading as in Form 27P] THE COURT ORDERS that: 1. The garnishee pay without delay to the judgment creditor $ , being so much of the debt due from the garnishee to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings and that in default of payment execution may issue against the garnishee [or where the debt is not due but accruing] pay to the judgment creditor $ , being so much of the debt accruing from time to time to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment execution may issue against the garnishee. [where appropriate add] 2. The garnishee be at liberty to retain $ being the garnishee's costs of the garnishee proceedings out of the balance of the debt due [or accruing] from time to time to the judgment debtor. By the Court Dated: [e.g. 5 September, 19 ]. Registrar _______________ Form 27Q -- 230 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 216 RULE 27.35 FORM 27R AFFIDAVIT IN SUPPORT OF SUMMONS FOR COMMITMENT [heading as in Form 4A] I, of , the abovenamed plaintiff [or solicitor for the abovenamed plaintiff] make oath and say: 1. By an order dated [e.g. 5 September, 19 ] it was ordered that [judgment debtor] should pay me [or the plaintiff] the sum of $ together with $ costs [or as the case may be]. 2. The sum of $ ordered to be paid [or $ , part of the sum ordered to be paid] is still due and unpaid. 3. I am informed by [name and address] and believe that since the date of the order made against the defendant, the defendant has had sufficient means and ability to pay the sum in respect of which the defendant has made default and has refused or neglected and still refuses or neglects to pay. Sworn, etc. _______________ Form 27R -- 231 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 217 RULE 28.02 28.03 FORM 28A APPLICATION FOR INSTALMENT ORDER (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To the Registrar, On [date] the Court made an order in this complaint. The terms of the order were [particulars of order]. *And a previous instalment order, particulars of which are stated below, was made on [date]. This application is for— *an instalment order *an instalment order in substitution for a previous instalment order *the variation of an instalment order *the cancellation of an instalment order. 1. Details of Applicant: (*Debtor/*Creditor) [Name] [Address] [Telephone numbers—business and private] 2. Details of *Debtor/*Creditor [Name] [Address] [Telephone numbers—business and private] Form 28A -- 232 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 218 3. If previous instalment order(s) *has/*have been made in respect of this matter, state— (a) date(s) of previous instalment order(s)— (b) amount(s) of debt then owing— (c) number of instalments ordered— (d) amount of each instalment ordered— (e) whether all instalments have been fully paid and if not, how many instalments are, and what amount is in arrears— 4. [To be completed unless application is made for cancellation of an instalment order]. State: (a) amount of judgment debt owing, including costs (if any) awarded against judgment debtor: $ (b) interest on judgment (if any) to date of this application: $ (c) total amount of debt owing: $ (d) amount to be paid per instalment: $ (e) time when instalments are to be paid (e.g. weekly, fortnightly, monthly): (f) number of instalments to be paid: (g) date of first instalment: (h) date of last instalment: (i) person to whom instalments are to be paid: (j) address at which instalments are to be paid. 5. If debtor, attach a Statement of Affairs in or to the effect of Form 28B. 6. Reasons for application: *(a) Debtor State reasons for application. [If application is being made for the substitution, variation or cancellation of an instalment order, state whether circumstances have changed since last instalment order and, if so, the details of the change]. *(b) Creditor Form 28A -- 233 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 219 State reasons for application: [If application is being made for the variation or cancellation of an instalment order, you must state whether you allege that— (i) there has been a substantial increase in the property or means of the debtor; or (ii) the information given in support of a previous application for an instalment order, or in support of an instalment agreement, was inaccurate; or (iii) both (i) and (ii) above. and set out the details of your allegation(s) in an affidavit attached to this form]. 7. State any other relevant details. Dated: [e.g. 5 September, 19 ]. [Signature of *Applicant/Agent of Creditor]. IMPORTANT IF YOU DO NOT UNDERSTAND THIS DOCUMENT, YOU SHOULD OBTAIN LEGAL ADVICE IMMEDIATELY. YOU MAY ALSO NEED TO OBTAIN FINANCIAL COUNSELLING. * Delete if not applicable. _______________ Form 28A -- 234 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 220 RULE 28.02 28.03 28.05 FORM 28B STATEMENT OF AFFAIRS (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To the Registrar, 1. Amount and Source of Weekly Income Occupation: Name and address of employer: Gross wage: Current overtime (if any): Car and other allowances and commissions: Average earnings from self-employment or partnership for last 12 months: If unemployed, state length of last employment, date when last employment ceased, and gross weekly amount earned: Pension or Benefit received: Workers' compensation received: Maintenance received: Superannuation received: Board or rent received: Average weekly income from bank, building society, shares etc.: Other (give details): TOTAL GROSS WEEKLY INCOME: $ 2. Property and Assets Form 28B -- 235 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 221 Market value of house (place of residence) owned: $ Amount owing on mortgage: $ Net value of interest in house: $ Market value of any other house or land owned: $ Amount owing on mortgage: $ Net value or interest in other house or land owned: $ Market value of motor vehicle(s) Year: Make/Model: Year: Make/Model: Amounts owing to creditor(s): $ Net value of interest(s): $ Cash in banks, building societies etc. $ Other investments including shares, debentures, bonds: $ Money owing to you: From: From: TOTAL Value of interest in partnership or business: $ State approximate re-sale value of furniture and personal goods: $ Amount owing on these: $ Net value of interest: $ Other assets (give details): $ TOTAL NET VALUE $ Life insurance policies: Specify, giving surrender value(s). $ TOTAL PROPERTY AND ASSETS: $ 3. Cash that is readily available or can be made so available. (e.g. deposits on call, deposits on short-term etc.) Source Amount TOTAL: $ 4. Debts, Liabilities and other Financial Obligations: $ Form 28B -- 236 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 222 (a) Weekly Expenses Income tax: Superannuation: Housing (mortgage, board, rent, hospital or institution): Municipal rates: Water and sewerage rates: Land tax: Child care costs—necessary for the purpose of earning income: Maintenance actually paid: Instalment payments: e.g. Household goods payable to: $ Tools of trade payable to: $ TOTAL: Electricity and gas: Food: Other general household expenses: Car expenses (registration, insurance, maintenance, fuel): Fares: Telecom: Insurance policies: School fees and other schooling costs: Clothing and shoes: Medical and chemist expenses: Entertainment: Payments on court orders and fines: Other expenses (give details): TOTAL WEEKLY EXPENSES: $ (b) Other Debts Outstanding (give details) Form 28B -- 237 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 223 (Hire purchase, leases, credit cards, credit contracts, personal loans, store accounts, guarantees being paid off etc.): Amount: $ To: Payable by: Amount: $ To: Payable by: Amount: $ To: Payable by: TOTAL OTHER DEBTS: $ 5. Are any assets jointly owned: (Give details). 6. Have any of the above debts been jointly incurred with any other person? (Give details). 7. Give details of any other circumstances which affect financial position (e.g. number and age of dependants; marital status, health etc.) Date: [e.g. 5 September, 19 ]. [Signature] WARNING ANY PERSON WHO MAKES A FALSE STATEMENT MAY HAVE THE INSTALMENT ORDER VARIED OR CANCELLED _______________ Form 28B -- 238 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 224 RULE 28.04 FORM 28C NOTICE OF OBJECTION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To the Registrar, An application under section 6 of the Judgment Debt Recovery Act 1984 was *granted *refused by the proper officer on [date]. Notification of such *order/*refusal was received by me on [date]. TAKE NOTICE that I object to the *order made/*refusal to make the order on the grounds that [set out grounds]. Dated: [e.g. 5 September 19 ]. [Signed by judgment creditor or judgment debtor] * Delete if not applicable. _______________ Form 28C -- 239 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 225 RULE 28.05 FORM 28D INSTALMENT AGREEMENT IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor On [date] the Court ordered that [judgment debtor] pay [judgment creditor] the sum of $ and $ for interest and $ for costs. I, [judgment debtor] of [address] agree and undertake to pay to [judgment creditor] of [address] the sum of $ [total sum] in the following manner: Number of instalments: Amount of each instalment: $ Time of payment of each instalment: On or by the day of each *week/*fortnight/*month. First instalment is payable on or by the day of 19 . Last instalment is payable on or by the day of 19 . Person to whom payment is to be made: Address at which payment is to be made: I am aware that should I fail to keep to this agreement, I may be called before the Court. I attach a Statement of Affairs which I believe to be true and correct in every particular. Signature of judgment debtor: Witness: Date: [e.g. 5 September 19 ]. * Delete if not applicable. I agree that the judgment debt owing to me shall be paid in the manner set out above. Form 28D -- 240 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 226 Signature of judgment creditor: Witness: Date: [e.g. 5 September 19 ]. IMPORTANT NOTE TO DEBTOR IF YOU DO NOT UNDERSTAND THIS DOCUMENT YOU SHOULD OBTAIN LEGAL ADVICE IMMEDIATELY. BEFORE SIGNING THIS DOCUMENT YOU SHOULD OBTAIN FINANCIAL COUNSELLING. _______________ Form 28D -- 241 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 227 RULE 28.07 FORM 28E SUMMONS FOR EXAMINATION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor To [judgment debtor] of [address] An order was made by the Court on [date] that you pay to [judgment creditor] the sum of $ and $ for interest and $ for costs, and *an application dated has been made to this Court for the *making/*confirming/*varying/*cancelling/*substituting of an instalment order by [full name of applicant] and this Court is not satisfied that in the circumstances an instalment order should be *made/*confirmed/*varied/*cancelled/*substituted or * An instalment order was made by [name of Court] dated for the payment of the judgment debt; and [Full name of judgment creditor] alleges that you have defaulted in the payment of instalment(s) ordered. YOU MUST ATTEND the Court at [venue] on [date] at [time] * to be examined concerning your financial circumstances and your means and ability to satisfy the order against you: or * to be examined according to your financial circumstances and, in the case of an alleged default, as to the circumstances of your alleged default. You are required to produce to the Court on the examination the following documents [description of documents]. Date: [e.g. 5 September 19 ]. Registrar Form 28E -- 242 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 228 WARNING IF YOU DO NOT ATTEND AS ORDERED BY THIS SUMMONS, A WARRANT MAY BE ISSUED FOR YOUR ARREST. * Delete if not applicable. _______________ Form 28E -- 243 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 229 RULE 28.07 FORM 28F APPLICATION FOR ISSUE OF SUMMONS (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor I, of , the judgment creditor make oath and say that: 1. By an order dated: [e.g. 5 September 19 ] it was ordered that [judgment debtor] pay me the sum of $ and $ for interest and $ for costs. 2. An instalment order for the payment of the sum was made on [date]. 3. The judgment debtor has defaulted in the payment of instalment(s) under the order in the following way [set out details of default]. 4. I seek the issue of a summons for the oral examination of the judgment debtor. Sworn, etc. _______________ Form 28F -- 244 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 230 RULE 28.08 FORM 28G WARRANT OF APPREHENSION (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [named member or all members of the Police Force] [name of judgment debtor] of [address] has failed to appear at the time and place appointed in the summons dated to be examined regarding *his/*her financial circumstances. You are authorised to enter and search any place where you may suspect [judgment debtor] to be and you may use all necessary force for that purpose. When you have apprehended [judgment debtor] you are to bring *him/*her before a magistrate or the Court to be dealt with according to law. Dated: [e.g. 5 September 19 ]. Registrar NOTE: If apprehended before the date and time of hearing specified in this Warrant, the judgment debtor may be released on his or her own undertaking to appear for oral examination at the time and place specified in this Warrant. IF UNABLE TO EXECUTE BY THAT DATE PLEASE RETURN UNEXECUTED. * Delete if not applicable. _______________ Form 28G -- 245 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 231 RULE 28.09 FORM 28H NOTICE (Section 6(4); 6(7); 7(4); 18(2)) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name and address of judgment creditor or judgment debtor]. TAKE NOTICE THAT upon application by [name of applicant] for [type of application] and *a notice of objection filed by [name] having been heard, the proper officer of the Court has * ordered that [details of order] or * refused to make the order sought in the application. Dated: [e.g. 5 September 19 ]. Registrar * Delete if not applicable. _______________ Form 28H -- 246 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 232 RULE 28.09 FORM 28J NOTICE (Section 14(6); 17(5)) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name of judgment creditor]. of [address]. A *warrant of apprehension/summons for oral examination was issued on [date] requiring the attendance of the judgment debtor at the Court on [date] for the *purposes of examination as to financial circumstances [and]/as to the circumstances of the alleged default in payment of instalments. Dated: [e.g. 5 September, 19 ]. Registrar * Delete if not applicable. _______________ Form 28J -- 247 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 233 RULE 28.09 FORM 28K NOTICE (Section 6(6), 8) (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: [name of judgment creditor or judgment debtor] of [address]. An application for [type of application] was made by [identify party] on [date] and on [date] the proper officer of the Court *made an order in the terms of the application/refused to make an order. * And the [identify party] filed on [date] *a notice of objection/application for variation of instalment order/application for cancellation of instalment order. TAKE NOTICE that the matter will be heard on [date] at [time] by the Court at [venue]. Dated: [e.g. 5 September, 19 ]. Registrar * Delete if not applicable. _______________ Form 28K -- 248 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 234 RULE 28.10 FORM 28L WARRANT OF COMMITMENT (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT TO: All members of the Police Force and to the keeper of Her Majesty's Prison at You are commanded to take [judgment debtor] and to convey *him/her to the prison at and deliver *him/her to the keeper of that prison and you, the keeper are required to receive *him/her into your custody and keep *him/her there safely for [number] of days unless you receive a certificate signed by the registrar of the Court at [venue] that the judgment debt has been paid or satisfied or until the judgment debtor is discharged by due course of law. Dated: [e.g. 5 September, 19 ]. Registrar * Delete if not applicable. _______________ Form 28L -- 249 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 235 RULE 28.12 FORM 28M CERTIFICATE OF DISCHARGE (Judgment Debt Recovery Act 1984) IN THE MAGISTRATES' COURT OF VICTORIA AT A.B. Judgment creditor and C.D. Judgment debtor TO: The Keeper of Her Majesty's Prison at This is to certify that [judgment debtor] presently held by you under a warrant dated has paid the debt owing [or has made satisfaction for the debt owing] for which the warrant issued and is now entitled to be discharged out of your custody. Dated: [e.g. 5 September, 19 ]. Registrar * Delete if not applicable. _______________ Form 28M -- 250 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 236 RULE 30.02 FORM 30A APPLICATION FOR RE-HEARING [heading as in Form 4A] To the Registrar and to [names and addresses of other parties to proceeding] I did not appear at the hearing of the above complaint. The Court on [date] in my absence made an order against me for [set out terms of order] and for $ costs. TAKE NOTICE that I intend to apply to the Court for an order that that order be set aside and the complaint be re-heard as soon as possible. I did not appear at the hearing for the following reason(s) [set out reasons] *I did not file a notice of defence for the following reason(s) [set out reasons] My address for service is: [Signed] Filed: [e.g. 5 September, 19 ]. This application will be heard by the Court on [date] at [time]. Registrar * Delete if not applicable. _______________ Form 30A -- 251 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 237 RULE 31.07 FORM 31A IRREVOCABLE BANK GUARANTEE [heading as in Form 4A] The [name of bank] of [address] undertakes to hold itself responsible for the payment into Court of $ ordered to be paid by the *plaintiff/*defendant in the above matter by order of the Court on [date]. The bank acknowledges that this undertaking can be amended or revoked only with the leave of the Court or discharged by payment of $ into Court. [*sealed by the Bank or * Signed by an officer of the bank authorised in writing] Filed: [e.g. 5 September, 19 ]. * Delete if not applicable. _______________ RULE 31.08 FORM 31B NOTICE OF DISCHARGE AND PAYMENT INTO COURT [heading as in Form 4A] The [name of bank] of [address] which guaranteed the payment of $ into Court on behalf of the *plaintiff/*defendant in the above matter hereby discharges the guarantee and pays into Court the total sum of money so guaranteed. [*sealed by the Bank or * Signed by an officer of the bank authorised in writing] Filed: [e.g. 5 September, 19 ]. * Delete if not applicable. _______________ Form 31A -- 252 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 238 RULE 32.01 FORM 32A CONSENT TO ACT AS LITIGATION GUARDIAN IN THE MAGISTRATES' COURT OF VICTORIA AT To the Registrar I, [name of litigation guardian] of [address] give notice that I consent to act as litigation guardian for [name of minor or person with a disability] of [address] for the purposes of [set out brief details of proceeding in which litigation guardian consents to act]. [Signed] Dated: [e.g. 5 September 19 ]. _______________ Form 32A -- 253 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 239 RULE 34.02 FORM 34A NOTICE OF APPEAL IN THE MAGISTRATES' COURT 19 No. OF VICTORIA AT In the matter of an appeal pursuant to [name of the Act and section of Act under which appeal is brought.] APPLICANT: [Name and Address] RESPONDENT: [Name and Address] The appellant appeals against [set out briefly the substance of the order or decision appealed against]. Date of order or decision: Grounds of appeal: [set out specifically the grounds of appeal] Dated: [e.g. 5 September 19 ]. [Signed by appellant] __________________ Form 34A -- 254 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 240 APPENDIX A Scale of costs and fees which may be claimed by Counsel and Solicitors as between party and party as well as between solicitor and client. Item Particulars of Service Costs PART 1 $ 1. Claim for debt, liquidated demand or claim arising from a motor vehicle collision for costs of repairs only or for total loss of vehicle only including all professional costs where the amount claimed is— (a) Less than $500 110.00 (b) $500 to less than $5000 229.00 (c) $5000 to less than $7500 282.00 (d) $7500 to less than $20 000 337.00 (e) $20 000 up to and including $40 000 421.00 (f) Over $40 000 505.00 Item Particulars of Service—For Costs relating to items 2 to 28 see Table 1 after item 28 Institution of proceedings 2. Instructions to sue including letter before action, preparation and filing of complaint, copies for service and attendances on counsel (where necessary) and on process server 3. (a) Instructions to defend claim, counterclaim or third party notice including perusal and giving notice of defence, attendance on counsel (where necessary), copies, filing and service (b) Preparation of counterclaim, third party notice or notice of contribution including copies, filing and service (c) Perusal of notice of contribution 4. Instructions to make, issue or oppose an application or summons or any notice of objection under the Judgment Debt Recovery Act 1984 including instructions for any necessary affidavit (not otherwise provided for) Item Particulars of Service—For Costs relating to items 2 to 28 see App. A -- 255 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 241 Table 1 after item 28 Particulars 5. Request for particulars of any document including copies, attendances on counsel, filing, service and perusal of further particulars 6. Further and better particulars of any document including copies, attendances on counsel, filing, service and perusal of request Discovery 7. (a) Notice of discovery including filing and service (b) Perusal of affidavit and inspection of documents (c) Affidavit of documents including instructions, copies, swearing, filing and service and production of documents for inspection (d) Notice to produce documents including filing and service Interrogatories 8. (a) Interrogatories for examination of one party including instructions, copies and attendances on counsel, filing and service and perusal of interrogatories (b) Answers to interrogatories of one party including instructions, copies and attendances on counsel, swearing, filing and service including perusal of interrogatories Notices, undertakings etc. 9. Any necessary notice, undertaking, consent, order, memorandum (not otherwise provided for) including copies, filing and service 10. (a) Notice to Admit, including copies, filing, service and perusal of admissions and making copies thereof (b) Admissions, including copies, perusal of Notice to Admit and making copies, filing and service 11. Offer of Compromise or notice of acceptance of offer including copies and service Witnesses and Expert Witnesses 12. (a) Witness summons including instructions, issuing and necessary copies Item Particulars of Service—For Costs relating to items 2 to 28 see App. A -- 256 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 242 Table 1 after item 28 (b) Attendance on a witness to arrange attendance to give evidence without witness summons, including reminders (c) (i) Arranging examination or inspection by an expert witness and notifying party, supplying relevant documents to witness, obtaining and perusing reports (ii) Notifying party of examination or inspection arranged by opposite party (d) Instructions for and preparation of statement of expert witness (pursuant to Order 19.02) including filing and service 13. (a) Application or summons or any notice of objection under the Judgment Debt Recovery Act 1984 including copies, issuing, filing and affidavit of service (b) Application for an order under Rules 10.01 (in addition to item 1 if applicable) or 10.04 Affidavits 14. Preparation of any necessary affidavit, swearing, filing and service 15. Affidavit of service, including swearing and filing (not otherwise provided for) General Preparation 16. Including all necessary instructions (including instructions for negotiations for settlement), and instructions for brief for counsel or brief notes for solicitor (where necessary) including attendances personally, and/or by telephone, correspondence, perusals and examinations or scanning and preparation for delivery of brief to counsel (or brief notes to solicitor) Pre-Hearing Conference 17. (a) Preparation including all necessary instructions, instructions for brief for counsel or brief notes for solicitor (where necessary) all necessary correspondence, perusals, etc. (b) Attending conference whether by counsel or by solicitor Item Particulars of Service—For Costs relating to items 2 to 28 see Table 1 after item 28 App. A -- 257 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 243 Court Attendance 18. (a) Attending Court on hearing—solicitor without counsel for the first six hours (b) If attendance at Court exceeds six hours—for each hour thereafter (c) Attending Court, Magistrate or Officer of the Court on an application, summons or to hear reserved judgment (d) Attending WorkCover mentions 19. (a) Solicitor attending Court on hearing—with counsel (where necessary)—for the first three hours (b) If attendance exceeds three hours—for each hour thereafter Conference with Counsel 20. Appointing and attending conference (when necessary) Fees to Counsel 21. (a) To draw or settle any necessary document including notice before action, particulars of claim, counterclaim, special defence, interrogatories, etc. (b) Brief on hearing (c) For each six hours or part thereof after the first six hours of hearing (including any luncheon adjournment) (d) Conference PART 2 The items in this Part may be allowed in solicitor/client matters by the Taxing Master of the Supreme Court in addition to or in substitution for the costs provided in item 16 Documents 22. Drawing any necessary document or brief (where not otherwise provided for)—per folio 23. (a) Typing any necessary document or brief (where not otherwise provided for)—per folio Item Particulars of Service—For Costs relating to items 2 to 28 see Table 1 after item 28 (b) Copies—any necessary carbon, photo or machine-made App. A -- 258 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 244 copy—per page Perusals 24. (a) Of any necessary document or part of a document (where not otherwise provided for)—per folio (b) Examination or scanning any document which is not necessary to peruse—per folio Correspondence 25. (a) Special letter (b) Any necessary letter (including an agency letter) (c) For each circular letter after the first postage may be claimed as a disbursement Attendances 26. (a) An attendance—such as an attendance at the office of the Registrar, or on a process server or to serve or an attendance which is capable of being made by a clerk (b) An attendance (personal or by telephone) of a solicitor or managing clerk and involving the exercise of skill or legal knowledge—for each quarter hour (c) An attendance which does not involve the exercise of skill or legal knowledge—for each quarter hour PART 3 27. (a) Warrant to seize property or of delivery including instructions, preparation and issuing (b) Summons for oral examination, including instructions, preparation of summons and affidavit, issue, arranging service, forwarding summons and affidavit to Registrar with letter 28. Proceedings for attachment of debts including all professional costs. App. A -- 259 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 245 TABLE 1 Costs for items 2 to 28 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 up to and including $40 000 F Over $40 000 2. 110 229 282 337 421 505 3. (a) 52 109 134 160 200 241 (b) 58 119 147 177 220 264 (c) 27 27 27 27 27 27 4. 37 37 37 56 70 84 5. 38 86 104 125 155 185 6. 34 73 87 104 130 156 7. (a) 26 41 52 60 75 90 (b) 32 57 68 85 106 127 (c) 60 129 156 187 234 280 (d) 26 38 52 60 75 90 8. (a) 51 101 123 147 184 221 (b) 66 141 177 212 264 316 9. 26 44 53 61 76 91 10. (a) 66 66 66 91 114 137 (b) 66 66 66 91 114 137 11. 56 56 56 83 104 125 12. (a) 12 20 30 30 38 46 (b) 12 12 12 20 24 28 (c) (i) 36 36 36 56 70 84 (ii) 10 10 10 27 34 41 (d) 51 90 123 147 184 221 13. (a) 35 47 53 58 72 86 (b) 23 23 23 23 23 23 App. A -- 260 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 246 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 up to and including $40 000 F Over $40 000 14. 51 101 123 147 184 221 15. 20 20 20 20 20 20 16. 199 650 802 964 1205 1446 17. (a) 49 146 197 237 295 354 (b) 87 167 238 295 370 444 18. (a) 183 368 553 664 830 995 (b) 38 73 87 106 132 158 (c) 53 115 143 171 214 257 (d) 62 62 62 62 62 62 19. (a) 83 143 177 212 264 316 (b) 27 49 60 72 89 107 20. 26 53 65 82 103 124 21. (a) 28 49 69 81 102 123 (b) 187 419 563 676 844 1013 (c) 125 280 375 450 563 675 (d) 28 53 69 81 102 123 22. 2.30 5.70 5.70 5.70 7.10 8.50 23. (a) 1.30 1.30 1.30 1.30 1.30 1.30 (b) 1.30 1.30 1.30 1.30 1.30 1.30 24. (a) 1.30 1.30 1.30 1.30 1.30 1.30 (b) 0.80 0.80 0.80 0.80 0.80 0.80 25. (a) 20.50 20.50 20.50 20.50 20.50 20.50 (b) 14.40 14.40 14.40 14.40 14.40 14.40 (c) 8.20 8.20 8.20 8.20 8.20 8.20 App. A -- 261 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 247 Item A Less than $500 B $500 to less than $5000 C $5000 to less than $7500 D $7500 to less than $20 000 E $20 000 up to and including $40 000 F Over $40 000 26. (a) 14.40 14.40 14.40 14.40 14.40 14.40 (b) 25 25 25 25 25 25 (c) 11.40 11.40 11.40 11.40 11.40 11.40 27. (a) 29 57 69 86 108 130 (b) 31 70 84 95 118 143 28. 83 169 212 253 316 379 Item Particulars of Service Costs $ 29. Service In this item "Court documents" includes complaint, summons, application or other document used in a Court proceeding (1) (a) For service of Court documents— (i) For service on each person to be served 35 (ii) For service on each person to be served where service is effected by post or by leaving at a document exchange 2.30 (iii) For every necessary visit made in attempting service and for each report of non-service where the time, date and number of visits attempting service are shown by affidavit 25 (iv) In addition to the abovementioned fees an allowance at the rate of 50 cents for each 1 kilometre in respect of any distance measured both ways from the nearest court house or other building where the Court is held, or the residence of the person who served the Court document, whichever is the closer, to the place of service or attempted service of the Court document. App. A -- 262 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 248 Item Particulars of Service Costs $ (b) A Registrar, upon application made before service of any Court document, may fix and endorse on the document an amount representing an allowance calculated at 50 cents for each kilometre of the distance both ways by the shortest practicable route, from the nearest court house or other building where the Court is held, or the residence of the process server, whichever is the closer to the place of service and the Court in assessing costs on the hearing shall have regard to the amount so fixed and endorsed. (2) (a) For service of two or more Court documents in the same proceeding on the same person who was or could have been served at the same time and place, only one service fee shall be allowed. (b) For service of a Court document in the same proceeding on two or more persons who were or could have been served at the same time and place, only one service fee shall be allowed. (3) No costs shall be allowed for service of any Court document where service has been effected by an employee of the plaintiff or defendant, unless the Court is satisfied by evidence on oath or affidavit that the employee is exclusively engaged on the service of legal process for the employer. (4) (a) Order for substituted service including all professional costs 127 (b) If advertisement in lieu of service is ordered, the necessary and reasonable costs of advertisement in addition. 30. In addition to the above amounts, money properly paid out of the pocket and the expenses of witnesses and interpreters are to be allowed, and disbursements and counsel's fees of the nature referred to in item 21 that are reasonably incurred on behalf of a client may be charged. _______________ App. A -- 263 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 249 APPENDIX B CIVIL REGISTRY COURTS Ararat Heidelberg Ouyen Bacchus Marsh Hopetoun Portland Bairnsdale Horsham Ringwood Ballarat Kerang Robinvale Benalla Korumburra St. Arnaud Bendigo Kyneton Sale Broadmeadows Mansfield Seymour Castlemaine Maryborough Shepparton Cobram Melbourne Stawell Colac Mildura Sunshine Dandenong Moe Swan Hill Echuca Morwell Wangaratta Frankston Myrtleford Warrnambool Geelong Nhill Wodonga Hamilton Orbost Wonthaggi __________________ App. B -- 264 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 250 SCHEDULE 1 RULES REVOKED 1. Magistrates' Court Civil Procedure Rules 1989 S.R. 199/1989 2. Magistrates' Court Civil Procedure (Amendment) Rules 1990 S.R. 35/1990 3. Magistrates' Court Civil Procedure (Amendment) (Costs) Rules 1990 S.R. 148/1990 4. Magistrates' Court Civil Procedure (Amendment No. 2) Rules 1990 S.R. 438/1990 5. Magistrates' Court Civil Procedure (Amendment) (Costs) Rules 1991 S.R. 109/1991 6. Magistrates' Court Civil Procedure (Costs No. 2) Rules 1991 S.R. 266/1991 7. Magistrates' Court Civil Procedure (Amendment) Rules 1991 S.R. 289/1991 8. Magistrates' Court Civil Procedure (Costs) Rules 1992 S.R. 324/1992 9. Magistrates' Court Civil Procedure (Amendment) Rules 1992 S.R. 331/1992 10. Magistrates' Court Civil Procedure (Electronic Data Interchange) Rules 1992 S.R. 332/1992 11. Magistrates' Court Civil Procedure (Amendment) Rules 1993 S.R. 57/1993 12. Magistrates' Court Civil Procedure (Costs) Rules 1993 S.R. 103/1993 13. Magistrates' Court Civil Procedure (Further Amendment) Rules 1993 S.R. 234/1993 14. Magistrates' Court Civil Procedure (Amendment) Rules 1994 S.R. 125/1994 15. Magistrates' Court Civil Procedure (Further Amendment) Rules 1994 S.R. 197/1994 16. Magistrates' Court Civil Procedure (Costs) Rules 1994 S.R. 198/1994 17. Magistrates' Court Civil Procedure (Amendment) S.R. 18/1995 Sch. 1 -- 265 of 266 -- S.R. No. 58/1999 Magistrates' Court Civil Procedure Rules 1999 251 Rules 1995 18. Magistrates' Court Civil Procedure (Further Amendment) Rules 1995 S.R. 44/1995 19. Magistrates' Court Civil Procedure (Costs and Further Amendment) Rules 1995 S.R. 99/1995 20. Magistrates' Court Civil Procedure (WorkCover) Rules 1995 S.R. 103/1995 21. Magistrates' Court Civil Procedure (Miscellaneous Amendments) Rules 1995 S.R. 149/1995 22. Magistrates' Court Civil Procedure (Amendment) Rules 1996 S.R. 73/1996 23. Magistrates' Court Civil Procedure (Further Amendment) Rules 1996 S.R. 143/1996 24. Magistrates' Court Civil Procedure (Amendment) Rules 1997 S.R. 81/1997 25. Magistrates' Court Civil Procedure (Further Amendment) Rules 1997 S.R. 131/1997 26. Magistrates' Court Civil Procedure (Amendment) Rules 1998 S.R. 16/1998 27. Magistrates' Court Civil Procedure (Costs) Rules 1998 S.R. 162/1998 Dated: 17 May 1999 MICHAEL ANTHONY ADAMS QC, Chief Magistrate BRIAN STIRTEVANT BARROW, Deputy Chief Magistrate SELENA POPOVIC, Deputy Chief Magistrate ═══════════════ Sch. 1 -- 266 of 266 --