Magistrates' Court Civil Procedure (Amendment) Rules 1996

i Magistrates' Court Civil Procedure (Amendment) Rules 1996 S.R. No. 73/1996 TABLE OF PROVISIONS Regulation Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Amendment of Rule 9.01 1 6. Revocation of Rule 9.02 2 7. Amendment of Rule 9.08 2 8. Amendment of Rule 10.01 2 9. New Rule 11.05.1 inserted 2 11.05.1 Continuing obligation to make discovery 2 10. Amendment of Rule 11.07 2 11. Amendment of Rule 12.07 2 12. Amendment of Rule 15.02 3 13. Amendment of Rule 15.05 3 14. Amendment of Rule 15.07 3 15. Amendment of Rule 19A.03 3 16. Amendment of Rule 22.02 3 17. Amendment of Rule 25.07 4 18. Amendment of Rule 30.01 4 19. Amendment to Form 9A 4 20. Amendment to Form 28F 4 21. Substitution of Appendix A 5 22. Amendment to Appendix B 16 ═══════════════ NOTES 20 -- 1 of 21 -- 1 STATUTORY RULES 1996 S.R. No. 73/1996 Magistrates' Court Act 1989 Magistrates' Court Civil Procedure (Amendment) Rules 1996 The Magistrates 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 (1) These Rules (apart from Rules 21 and 22) come into operation on 1 September 1996. (2) Rules 21 and 22 come into operation on the day on which these Rules are made. 4. Principal Rules In these Rules the Magistrates' Court Civil Procedure Rules 19891 are called the Principal Rules. 5. Amendment of Rule 9.01 In Rule 9.01 of the Principal Rules— (a) for paragraph (1) substitute— "(1) A defendant may give a notice of defence at any time after the service of -- 2 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 2 a complaint, but except by leave of the Court a notice of defence shall 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."; and (b) in paragraph (2), sub-paragraph (g) is revoked. 6. Revocation of Rule 9.02 Rule 9.02 of the Principal Rules is revoked. 7. Amendment of Rule 9.08 In Rule 9.08(2) of the Principal Rules omit "within the time limited for that purpose". 8. Amendment of Rule 10.01 In Rule 10.01(1) of the Principal Rules for "the time limited" substitute "21 days after the service of a complaint or any other time fixed by the Court for giving notice of defence". 9. New Rule 11.05.1 inserted After Rule 11.05 of the Principal Rules insert— "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.". 10. Amendment of Rule 11.07 In Rule 11.07(2) of the Principal Rules omit "within the time limited for that purpose". 11. Amendment of Rule 12.07 r. 6 -- 3 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 3 In Rule 12.07(2) of the Principal Rules omit "within the time limited for that purpose". 12. Amendment of Rule 15.02 In Rule 15.02(1) of the Principal Rules for "judgment" substitute "a final order". 13. Amendment of Rule 15.05 In Rule 15.05(2) of the Principal Rules for "on the trial" substitute "at the hearing". 14. Amendment of Rule 15.07 In Rule 15.07(2) of the Principal Rules for "judgment" substitute "final order". 15. Amendment of Rule 19A.03 In Rule 19A.03 of the Principal Rules— (a) in the definition of "medical practitioner" for "legally qualified medical practitioner under the Medical Practitioners Act 1970" substitute "medical practitioner under the Medical Practice Act 1994"; and (b) for the definition of "psychologist" substitute— ' "psychologist" means a registered psychologist as defined by the Psychologists Registration Act 1987;'. 16. Amendment of Rule 22.02 In Rule 22.02 of the Principal Rules— (a) after paragraph (2) insert— "(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."; r. 11 -- 4 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 4 (b) in paragraph (3) omit "within the time limited for that purpose"; and (c) after paragraph (4) insert— "(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.". 17. Amendment of Rule 25.07 In Rule 25.07(2) of the Principal Rules omit "within the time limited". 18. Amendment of Rule 30.01 In Rule 30.01(2) of the Principal Rules after "application" (where secondly occurring) insert "and of any affidavit in support upon which the applicant intends to rely". 19. Amendment to Form 9A In Form 9A to the Principal Rules omit "4. The date of service of this complaint was [insert date].". 20. Amendment to Form 28F In Form 28F to the Principal Rules for "MAGISTRATE'S COURT" substitute "MAGISTRATES' COURT". r. 17 -- 5 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 5 21. Substitution of Appendix A For Appendix A to the Principal Rules substitute— "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 cost of repairs only or for total loss of vehicle only including all professional costs where the amount claimed is— (a) Less than $500 101 (b) $500 to less than $5000 196 (c) $5000 to less than $7500 258 (d) $7500 to less than $20 000 309 (e) $20 000 to less than $40 000 386 (f) $40 000 and over 463 r. 21 -- 6 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 6 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) 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 r. 21 -- 7 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 7 Item Particulars of Service— For Costs relating to items 2 to 28 see Table 1 after item 28 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 (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 r. 21 -- 8 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 8 Item Particulars of Service— For Costs relating to items 2 to 28 see Table 1 after item 28 14 . Affidavits 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 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) r. 21 -- 9 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 9 Item Particulars of Service— For Costs relating to items 2 to 28 see Table 1 after item 28 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 (b) Copies—any necessary carbon, photo or machine-made 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 r. 21 -- 10 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 10 Item Particulars of Service— For Costs relating to items 2 to 28 see Table 1 after item 28 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. r. 21 -- 11 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 11 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 to less than $40 000 F $40 000 and over 2. 101 196 258 309 386 463 3.(a) 48 93 123 147 184 221 (b) 53 103 135 162 202 242 (c) 25 25 25 25 25 25 4. 34 34 34 51 64 77 5. 35 76 95 114 142 170 6. 31 61 80 95 119 143 7.(a) 24 34 48 55 69 83 (b) 30 48 62 78 97 116 (c) 55 110 143 171 214 257 (d) 24 34 48 55 69 83 8.(a) 47 83 112 135 169 203 (b) 61 121 162 194 242 290 9. 24 35 49 56 70 84 r. 21 -- 12 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 12 Table 1 continued— 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 to less than $40 000 F $40 000 and over 10.(a) 61 61 61 84 105 126 (b) 61 61 61 84 105 126 11. 51 51 51 76 95 114 12.(a) 11 18 28 28 35 42 (b) 11 11 11 18 22 26 (c) (i) 33 33 33 51 64 77 (ii) 10 10 10 25 31 37 (d) 47 83 112 135 169 203 13.(a) 32 43 49 53 66 79 (b) 21 21 21 21 21 21 14. 47 83 112 135 169 203 15. 18 18 18 18 18 18 16. 183 547 735 884 1105 1326 17.(a) 45 134 181 217 271 325 (b) 80 153 218 271 339 407 -- 13 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 13 Table 1 continued— 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 to less than $40 000 F $40 000 and over 18.(a) 168 337 507 609 761 913 (b) 35 61 80 97 121 145 (c) 49 101 131 157 196 235 (d) 57 57 57 57 57 57 19.(a) 76 123 162 194 242 290 (b) 25 40 55 66 82 98 20. 24 47 60 75 94 113 21.(a) 26 45 64 75 94 113 (b) 173 388 521 626 782 938 (c) 115 259 347 417 521 625 (d) 26 49 64 75 94 113 22. 2.10 3.80 5.20 5.20 6.50 7.80 23.(a) 1.20 1.20 1.20 1.20 1.20 1.20 (b) 1.20 1.20 1.20 1.20 1.20 1.20 24.(a) 1.20 1.20 1.20 1.20 1.20 1.20 (b) .80 .80 .80 .80 .80 .80 r. 21 -- 14 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 14 Table 1 continued— 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 to less than $40 000 F $40 000 and over 25.(a) 18.80 18.80 18.80 18.80 18.80 18.80 (b) 13.20 13.20 13.20 13.20 13.20 13.20 (c) 7.50 7.50 7.50 7.50 7.50 7.50 26.(a) 13.20 13.20 13.20 13.20 13.20 13.20 (b) 23 23 23 23 23 23 (c) 10.50 10.50 10.50 10.50 10.50 10.50 27.(a) 27 49 63 79 99 119 (b) 29 61 77 87 109 131 28. 76 143 194 232 290 348. r. 21 -- 15 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 15 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 32 (ii) For service on each person to be served where service is effected by post or by leaving at a document exchange 2.10 (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 23 (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. (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. r. 21 -- 16 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 16 Item Particulars of Service Costs $ (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. 116 (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.". 22. Amendment to Appendix B In Appendix B to the Principal Rules after "Portland" insert "Ringwood". Dated: 24 July 1996 MICHAEL ANTHONY ADAMS QC, CM BRIAN STIRTEVANT BARROW, Deputy CM PATRICK DENIS STREET, Deputy CM DANIEL JOHN MULING, Deputy CM r. 22 r. 22 -- 17 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 17 PHILIP JOHN RODDA, M MICHAEL CONNOLLY, M JAMES PATRICK HANRAHAN, M LIONEL CEDRIC WINTON-SMITH, M JOHN CHARLES TOBIN, M IAN MAXWELL VON EINEM, M JOHN DOUGLAS BOLSTER, M FRANCIS ROSS HODGENS, M GRAEME ANGUS GOLDEN, M MICHAEL FRANCIS MOLONEY, M JOHN SYDNEY HUTCHINS, M LEWIS PHILLIP BYRNE, M RODNEY LESLIE CRISP, M IAN THOMAS MC GRANE, M IAIN TRELOAR WEST, M BARRY FRANCIS DOCKING, M RAFFAELE BARBERIO, M ROBERT KRISHNAN ASHOK KUMAR, M WILLIAM PATERSON GIBB, M BERNARD JOSEPH COBURN, M BARRY JOHN MAHER, M GREGORY JOHN ZALMAN LEVINE, M ROBERT LESLIE TUPPEN, M NOEL BRIAN PURCELL, M LANCE IVAN MARTIN, M ROGER WILSON FRANICH, M JOHN PHILIP DUGDALE, M -- 18 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 18 HEATHER MARGARET SPOONER, M EDWIN CHARLES BATT, M JILLIAN MARY CROWE, M WENDY ANNE WILMOTH, M TIMOTHY JOHN McDONALD, M KEITH WILLIAM LEWIS, M JULIAN FRANCIS FITZ-GERALD, M PAUL DOUGLAS GRANT, M CHRISTINE ANNE STEWART-THORNTON, M JOHN CHARLES MYERS, M BRIAN JOSEPH CLIFFORD, M HARLEY JAMES HARBER, M ANN MACDONALD, M PETER HENRY LAURITSEN, M BARRY BERNARD BRAUN, M LEONARD HAROLD BREAR, M LOUIS JOSEPH HILL, M JELENA POPOVIC, M CLIVE JAMES MC PHERSON, M PETER THOMAS POWER, M MAURICE GURVICH, M JOHN WILLIAM DOHERTY, M JONATHAN GEORGE KLESTADT, M DUNCAN KEITH REYNOLDS, M ROBERT LEYLAND LANGTON, M ANNE JEANETTE MAUGHAN, M MARGARET GILL HARDING, M r. 22 -- 19 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 19 ALASTAIR GRAHAM McLEAN, M PHILLIP GOLDBERG, M TERRY JOHN WILSON, M SUSAN ADELE BLASHKI, M KAY HELEN MACPHERSON, M JENNIFER ANN COATE, M MAXWELL CHARLES SPEEDIE BECK, M BRIAN PHILIP WYNN-MACKENZIE, M JOHN MARTIN MURPHY, M FRANCIS WILLIAM HENDER, M THOMAS MICHAEL O'DWYER, M JAMES MAXWELL BROOKE CASHMORE, M WILLIAM PETER WHITE, M COLIN EUNAN MACLEOD, M ISAAC JOSEPH BEDER, M THOMAS KEVIN HASSARD, M PAUL ANTHONY SMITH, M HENRY CLIVE ALSOP, M MICHAEL LESLIE SMITH, M NOREEN MARY TOOHEY, M CATHERINE FRANCES LAMBLE, M ═══════════════ r. 22 -- 20 of 21 -- S.R. No. 73/1996 Magistrates' Court Civil Procedure (Amendment) Rules 1996 20 NOTES 1 S.R. No. 199/1989. Reprinted (No. 3) to S.R. No. 103/1995. Subsequently amended by S.R. No. 149/1995. Notes -- 21 of 21 --