Magistrates' Court Civil Procedure (Amendment) Rules 1997

i Magistrates' Court Civil Procedure (Amendment) Rules 1997 S.R. No. 81/1997 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Amendment of Rule 1.12—definition of solicitor 1 6. Substitution of Rule 3.05(7) 2 7. Substitution of Rule 9.01 2 9.01 Notice of defence after service 2 8. Substitution of Order 19A 3 ORDER 19A 4 SERVICE OF MEDICAL REPORTS 4 19A.01 Application 4 19A.02 Counterclaim 4 19A.03 Definitions 4 19A.04 Notice for examination 6 19A.05 Expenses 6 19A.06 Report of examination 6 19A.07 Service of reports 6 19A.08 Time for service 7 19A.09 Other medical reports to be served 8 19A.10 Proceeding against medical expert 8 19A.11 Medical report admissible 8 19A.12 No evidence unless disclosed in report 10 9. Amendment to Form 9A 10 ═══════════════ NOTES 11 -- 1 of 12 -- 1 STATUTORY RULES 1997 S.R. No. 81/1997 Magistrates' Court Act 1989 Magistrates' Court Civil Procedure (Amendment) Rules 1997 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: 1. Object The object of these Rules is to make miscellaneous amendments to the Principal Rules. 2. Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 3. Commencement These Rules come into operation on 1 September 1997. 4. Principal Rules In these Rules the Magistrates' Court Civil Procedure Rules 19891 are called the Principal Rules. 5. Amendment of Rule 1.12—definition of solicitor In Rule 1.12(1) of the Principal Rules, in the definition of "solicitor", for "1986" substitute "1996". -- 2 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 2 6. Substitution of Rule 3.05(7) For Rule 3.05(7) of the Principal Rules substitute— "(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; (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.". 7. Substitution of Rule 9.01 For Rule 9.01 of the Principal Rules substitute— "9.01 Notice of defence after service (1) A defendant may give notice of defence at any time after the service of a complaint, but except by leave of the Court a notice of defence must not be given 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. r. 6 -- 3 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 3 (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 (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.". 8. Substitution of Order 19A r. 7 r. 8 -- 4 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 4 For Order 19A of the Principal Rules substitute— 'ORDER 19A SERVICE OF MEDICAL REPORTS 19A.01 Application This Order applies to a proceeding— (a) under the Accident Compensation Act 1985; (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, -- 5 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 5 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"— (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 by 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 r. 8 -- 6 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 6 (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. (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 r. 8 -- 7 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 7 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 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 r. 8 -- 8 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 8 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 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 r. 8 r. 8 -- 9 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 9 (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— (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; -- 10 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 10 (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.'. 9. Amendment to Form 9A In Form 9A to the Principal Rules for "particulars of defence and summary of material facts upon" substitute "a concise statement of the nature of the defence and a summary of the material facts, with particulars, on". Dated: 29 July 1997 MICHAEL ANTHONY ADAMS, QC, CM BRIAN STIRTEVANT BARROW, Deputy CM PATRICK DENIS STREET, Deputy CM ═══════════════ r. 9 -- 11 of 12 -- S.R. No. 81/1997 Magistrates' Court Civil Procedure (Amendment) Rules 1997 11 NOTES 1 S.R. No. 199/1989. Reprinted to S.R. No. 199/1989 and subsequently amended by S.R. Nos 149/1995, 73/1996 and 143/1996. Notes -- 12 of 12 --