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

County Court (Chapter I Amendment No. 1) Rules

1999

S.R. No. 128/1999

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Principal Rules	1
4.	Commencement	1
5.	Offer of compromise	2
26.02 Application	2
6.	Costs consequences	2
7.	New Rule 26.11	3
26.11 Transitional	3
8.	Revocation of Part 3 of Order 26	3
9.	Medical and hospital reports	3

33.06	Report of examination of plaintiff	4
33.07	Service of reports by plaintiff	4
33.08	Service of reports by defendant	4

33.08.1 Other medical reports to be served 5

10.	Revocation of Rule 33.09(1)	5
11.	Amendment of Rule 33.11	6
12.	Dismissal of proceeding	6
34A.15 Dismissal of proceeding	6
13.	New Rule 34A.35	7
34A.35 Court books—particular proceedings	7
14.	Money claim in wrong court	8
15.	Other claim in wrong court	8
16.	Amendment to Form 60E	8
17.	Amendments to Appendix A	9
18.	Substitution of First Schedule	15

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NOTES 17

i

STATUTORY RULES 1999

S.R. No. 128/1999

County Court Act 1958

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

A majority of the Judges of the County Court makes the following Rules:

1. Object

The object of these Rules is to amend the provisions in the Principal Rules concerning—

(a) offers of compromise;

(b) medical reports and hospital reports;

(c) dismissal of proceedings if judgment has not been entered;

(d) court books;

(e) fees to counsel—

and to make other miscellaneous amendments.

2. Authorising provisions

These Rules are made under section 78 of the powers.

3. Principal Rules

In these Rules, the County Court Rules of the Principal Rules.

4. Commencement

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

S.R. No. 128/1999

These Rules come into operation on 1 January

2000.

5. Offer of compromise

For Rule 26.02 of the Principal Rules substitute—

"26.02 Application

(1) The plaintiff and the defendant may in

respect of any claim in a proceeding serve on
one another an offer of compromise on the
terms specified in the offer.

(2) An offer of compromise in respect of a claim

may be on terms that take into account any
other claim between the plaintiff and the
defendant made in the proceeding.

(3) An offer of compromise shall—

(a)	be in writing and prepared in accordance with Rules 27.02 to 27.04; and
(b)	contain a statement to the effect that it is served in accordance with this Order.".

6. Costs consequences

(1) For Rule 26.08(2) of the Principal Rules

substitute—
"(2) Where an offer of compromise is made by a

plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less

favourable to him than the terms of the offer,
then, unless the Court otherwise orders, the

plaintiff shall be entitled—

(a) if the claim of the plaintiff is for damages for or arising out of death or

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

r. 7

S.	R. No. 128/1999
bodily injury, to an order against the defendant for his costs in respect of the claim, taxed on a solicitor and client basis;

(b) in the case of any other claim of the plaintiff, to an order against the defendant for his costs in respect of the claim up to and including the day the offer was served, taxed on a party and party basis, and for his costs thereafter taxed on a solicitor and client basis.".

(2) After Rule 26.08(7) of the Principal Rules

insert—

"(8) Where the plaintiff obtains judgment for the

recovery of a debt or damages, and the of a genuine compromise.".

amount of the debt or the damages was not in
dispute, but only the question of liability,
paragraph (2) shall not apply unless the

7. New Rule 26.11

After Rule 26.10 of the Principal Rules insert—

"26.11 Transitional

This Order as in force immediately before the commencement of the County Court (Chapter I Amendment No. 1) Rules 1999 continues to apply to an offer of compromise served under Part 2 of this Order before that commencement.".

8. Revocation of Part 3 of Order 26

In Order 26 of the Principal Rules, Part 3 is revoked.

9. Medical and hospital reports

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

S.R. No. 128/1999

For Rules 33.06, 33.07, 33.08 and 33.08.1 of the

Principal Rules substitute—

'33.06 Report of examination of plaintiff

(1) A defendant for whom a plaintiff is

examined under Rule 33.04 shall as soon as
practicable after the examination obtain from

the medical expert a medical report.

(2) Upon obtaining the medical report the

defendant shall forthwith serve the medical
report on the plaintiff.

(3) If the defendant later obtains another medical

report from the medical expert concerning
the plaintiff, whether or not the other report
is consequent upon a further examination by
the medical expert of the plaintiff, the
defendant shall forthwith serve the medical
report on the plaintiff.

33.07 Service of reports by plaintiff

(1) A plaintiff shall serve on each other party

who has an address for service in the
proceeding any hospital or medical report
(other than a hospital or medical report
served on or supplied to him by another
party) which he intends to tender or the
substance of which he intends to adduce in
evidence or which otherwise he intends to
use at the trial.

(2) The plaintiff shall serve the hospital report or

medical report at such time as the Court
directs.

33.08 Service of reports by defendant

(1) A defendant shall serve on each other party

who has an address for service in the
proceeding any hospital report or medical
report (other than a hospital report or

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

S.R. No. 128/1999 r. 9

medical report served on or supplied to him by another party) which he intends to tender or the substance of which he intends to

adduce in evidence or which otherwise he
intends to use at the trial.

(2) Paragraph (1) does not require the defendant

to serve on the plaintiff a medical report
served on the plaintiff under Rule 33.06, but
the defendant shall by notice to the plaintiff
in writing identify any medical report so
served which he intends to tender or the
substance of which he intends to adduce in
evidence or which otherwise he intends to
use at the trial.

(3) The defendant shall serve the hospital report or medical report and give any notice under paragraph (2) at such time as the Court

directs.

(4) In this Rule "defendant" includes a third or subsequent party.

33.08.1 Other medical reports to be served

Where after a party has served a medical
report under Rule 33.07 or Rule 33.08 the
medical expert who made the report makes
another medical report to the party, then,
notwithstanding that the party no longer
intends to tender the medical report so
served or to adduce its substance in evidence
or to otherwise use it at the trial, or does not
intend to tender the other medical report or
to adduce its substance in evidence or to
otherwise use it at the trial, the party shall
serve the other medical report forthwith on
each other party who has an address for

service in the proceeding.'.

10. Revocation of Rule 33.09(1)2

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

S.R. No. 128/1999

Rule 33.09(1) of the Principal Rules is revoked.

11. Amendment of Rule 33.11

(1) In Rule 33.11(2) of the Principal Rules omit

"a copy of".

(2) For Rule 33.11(3) of the Principal Rules

substitute—

"(3) Subject to paragraphs (4) and (5), a medical

report may be used in evidence by the party
who served the report or by any party on

whom it was served.".

(3) In Rule 33.11(4) of the Principal Rules omit

"a copy of".

(4) In Rule 33.11(5) of the Principal Rules omit

"a copy of".

12. Dismissal of proceeding

For Rule 34A.15 of the Principal Rules substitute—

"34A.15 Dismissal of proceeding

(1) A proceeding shall stand dismissed as

against any defendant at the expiration of
three months after the period of the validity
for service of the writ or originating motion,
or any extension of that period expires, if at
that time that defendant has not filed an
appearance and judgment has not been

entered or given against that defendant.

(2) The Court may from time to time by order

extend the period of three months referred to
in paragraph (1) for a period not more than

three months after the day of the order.

(3) If an order is made under paragraph (2),

there shall in the particular case be taken to be substituted for the period of three months

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

S.R. No. 128/1999 r. 13

in paragraph (1) the period as extended by

the order.".

13. New Rule 34A.35

After Rule 34A.34 of the Principal Rules insert—

"34A.35 Court books—particular proceedings

(1) This Rule applies to a proceeding—

(a)	that includes a claim for damages in respect of death or bodily injury; and
(b)	of a kind referred to in Rule 34A.03(c)(ii); and
(c)	of a kind referred to in Rule 34A.03(c)(iii).

(2) The parties may agree, not less than 7 days

before—

(a)	the trial of a proceeding referred to in sub-paragraph (1)(a); or
(b)

the hearing of an application in a paragraphs (1)(b) or (c)—

to file a joint court book.

(3) If the parties have agreed to file a joint court

book in accordance with paragraph (2), it
must be filed by the plaintiff at the
commencement of the trial or at the
commencement of the hearing of the
application as the case requires.

(4) Unless the Court otherwise orders, a court

book or a joint court book shall contain and

contain only—

(a) an index of its contents;

(b) a copy of the writ or originating motion;

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

r. 14 S.R. No. 128/1999

(c)	a copy of the latest version of any pleadings served between the parties and particulars of any such pleading pursuant to an order of the Court or the request of a party, and any such order or request by a party for particulars;
(d)	a list of any documents a party intends to tender in evidence or which a party otherwise intends to use at the trial or at
the hearing of the application (as the case requires).

(5) If the parties have not agreed to file a joint

court book in accordance with paragraph (2),
each party must serve a court book not less
than 7 days before the trial or the hearing of
the application (as the case requires) and
must file it at the commencement of the trial
or at the commencement of the hearing of

the application (as the case requires).".

14. Money claim in wrong court

In Rule 63A.24 of the Principal Rules omit "is limited".

15. Other claim in wrong court

In Rule 63A.25 of the Principal Rules for "a time the proceeding commenced)".

Magistrates' Court is limited" substitute "the

16. Amendment to Form 60E

In Form 60E to the Principal Rules, for—

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

S.R. No. 128/1999 r. 17

"Trial without a jury, commenced on , 19 ,"

substitute—

"Trial with a jury of six, commenced on [date]".

17. Amendments to Appendix A

In Appendix A to the Principal Rules—

(a) at the end of item 1 insert—

"Consent of litigation
guardian including,
preparation of
memorandum copies
and obtaining
signature of litigation

guardian

83.00 110.00 113.00 119.00";

(b) for items 20A(a), (b) and (c) substitute—

"20A.	Counsel or solicitor hearing at mediation
(a) Half day

(3 hours or part

thereof) 365.00 532.00 613.00 648.00

(b) Hourly rate

beyond half-day (c) Daily maximum or if case settles within the day 94.00 118.00 133.00 156.00

663.00 984.00 1091.00 1145.00";

(c) for item 20B substitute—

"20B.	Counsel or solicitor
appearing at directions
hearing 101.00 169.00 169.00 169.00";

(d) for item 25(c) substitute—

"(c) Counsel's fees 370.00 555.00 621.00 682.00";

(e) for item 29 substitute—

"29. (Note: No fee to
counsel is to be allowed

County Court (Chapter I Amendment No. 1) Rules 1999
S.R. No. 128/1999

unless vouched by the signature of counsel or his clerk)—

(a) For drawing pleadings or settling any necessary

document including
Statement of
Claim, Defence,

Interrogatories, etc.

96.00 118.00 133.00 156.00

(b) (i) To advise on

evidence or for

opinion 96.00 145.00 156.00 175.00

(ii) Advice on

Pre-Trial

Conference 145.00 214.00 232.00 264.00

(c) Conference on

view—per hour 96.00 118.00 133.00 156.00

(d) Pre-Trial

Conference with

Registrar 270.00 350.00 390.00 431.00

(e) Brief to hear

Judgment or for
any application in a

proceeding 105.00 133.00 156.00 156.00

(f) Brief on Trial:

(i) Property,

Personal

Injuries 663.00 984.00 1091.00 1145.00

(ii) Commercial

Causes 1145.00

(g) Refresher fee:

(i) Property,

Personal

Injuries 441.00 651.00 725.00 763.00

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

S.R. No. 128/1999 r. 17

(ii) Commercial

Causes 763.00

Any allowance for a refresher fee is to be calculated in the

manner set out in
Rule 63A.82(3)

(h) (i) In circuit cases, a circuit fee may be allowed and

the amount
thereof fixed by
order of the
Judge, in
accordance with

the First

Schedule of this
scale, if, in his
opinion (having
regard to all the
circumstances,
including
travelling
expenses, living

expenses and absence from Chambers) the scale fee is

insufficient but the total amount of the scale fee and the circuit fee shall not

exceed the fee marked on the brief.

(ii) In any case

where a
refresher is
certified for, a
further circuit
fee may be

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

r. 17 S.R. No. 128/1999

allowed in
accordance with
the First
Schedule in this
scale.

(iii) Where in any such case the Judge certifies

for two counsel,
all reasonable
and necessary
attendances and
copies
additional to

those which would have been necessary

had only one counsel been employed shall

be allowed.

(iv) In any

proceeding or
matter
notwithstanding
anything
contained in the

rules or in the

scale of costs,
apart from item
20A, the trial
Judge ONLY
may on
application
allow such
higher fee for
counsel
(including more
than one
counsel) as he
thinks fit.

(v) Despite anything contained in

these Rules—

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

S.R. No. 128/1999 r. 17

(A) where a trial has commenced,

the Judge
ONLY may allow such higher fee for counsel for the trial and may
allow fees

for more

than one
counsel as
the Judge
thinks fit,
save that this
sub-item
does not
apply to the
allowances
set out in

item 20A.

(B) where no

trial has
commenced,
the Registrar
or other
taxing
officer may
allow such

higher fee

for counsel
and may
allow fees
for more
than one
counsel as
the Registrar
or other

taxing

officer

thinks fit

(vi) Undefended
proceedings

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

r. 17 S.R. No. 128/1999

(see item 38)";

(f) for item 32(a) substitute—

"(a) Bailiff—solicitor

or counsel

appearing 332.00 395.00 437.00 481.00";

(g) for item 38 substitute—

"38.	Upon judgment in any proceeding where the defendant has not
participated throughout the course of the proceeding, including originating process, statement of claim, issue and service fees, setting down, fixing
proceeding for trial,
arranging attendance of
witnesses at court,
witnesses expenses, instructions for and preparing of brief, attending counsel therewith, appointing
and attending pre-trial conference, attendance at Court and fees to
counsel for both trial
and conference 1864.00 2521.00 2781.00 3057.00
For the purpose of this item the fees payable to counsel which are
included in the above amounts are:
A B C D $ $ $ $ 397.00 726.00 825.00 874.00
Should any unusual or abnormally large

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

S.R. No. 128/1999 r. 18

disbursement have
necessarily been made
in addition to those
mentioned above, the
Judge may on
application made to him
at the trial allow an
appropriate additional

amount.".

18. Substitution of First Schedule

In Appendix A to the Principal Rules, for the First

Schedule substitute—

"FIRST SCHEDULE—CIRCUIT FEES

Further fee for each

Circuit Town	Fee for first six hours	five hours thereafter
Bairnsdale	263.00	175.00
Ballarat	169.00	114.00
Bendigo	199.00	132.00
Geelong	144.00	92.00
Hamilton	274.00	183.00
Horsham	274.00	183.00
Kerang	274.00	183.00
Mildura	335.00	222.00
Morwell	202.00	132.00
Sale	238.00	157.00

Further fee for each

Circuit Town	Fee for first six hours	five hours thereafter
Shepparton	228.00	154.00
Wangaratta	251.00	166.00
Warrnambool	263.00	175.00

N.B. Any circuit fee allowed under item 29(g)(i) shall be in accordance with this Schedule, provided that not more than one such further circuit fee will be allowed in any one day in relation to any one proceeding or matter.".

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

r. 18 S.R. No. 128/1999

Dated: 1 December 1999

G. R. D. WALDRON, Chief Judge	JOHN DEE
EUGENE CULLITY	E. H. CURTAIN
F. G. DYETT	DAVID MORROW
JOHN K. NIXON	MARGARET RIZKALLA
FRANK WALSH	T. G. WODAK
L. S. OSTROWSKI	A. P. DUCKETT
W. FAGAN	S. P. GEBHARDT
G. R. G. CROSSLEY	J. M. PANNAM
T. A. NEESHAM	TIMOTHY HOLT
D. A. T. JONES	IAN C. ROBERTSON
J. R. HANLON	G. R. ANDERSON
M. C. KIMM	L. D. PILGRIM
M. HIGGINS	P. D. JENKINS
F. B. LEWIS	K. M. WILLIAMS
B. STOTT	R. K. KENT
J. H. BARNETT

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

S.R. No. 128/1999 Notes

NOTES

1 Rule 3: S.R. No. 20/1999.

2 The heading to Rule 33.09 is changed to "Opinion on liability".