Magistrates' Court Chapter Ii and Judicial Registrars Amendment (Federal Jurisdiction Matters) Rules 2021 (Vic)

Magistrates' Court Chapter II and Judicial Registrars Amendment (Federal Jurisdiction Matters) Rules 2021

S.R. No. 143/2021

TABLE OF PROVISIONS

Rule  Page

Part 1—Preliminary

1Object

2Authorising provisions

3Commencement

Part 2—Amendment of Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020

4New Order 10A inserted

5New Forms 10A and 10B inserted

Part 3—Amendment of Magistrates' Court (Judicial Registrars) Rules 2015

6Civil proceedings that may be dealt with by judicial registrars

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Endnotes

STATUTORY RULES 2021

S.R. No. 143/2021

Magistrates' Court Act 1989

Magistrates' Court Chapter II and Judicial Registrars Amendment (Federal Jurisdiction Matters) Rules 2021

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

Part 1—Preliminary

1Object

The object of these Rules is to amend the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020 and the Magistrates' Court (Judicial Registrars) Rules 2015 in relation to the new jurisdiction being conferred on the Magistrates' Court under Part 3A of the Victorian Civil and Administrative Tribunal Act 1998.

2Authorising provisions

These Rules are made under sections 16 and 16I of the Magistrates' Court Act 1989 and all other enabling powers.

3Commencement

These Rules come into operation on 29 November 2021.

Part 2—Amendment of Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020

4New Order 10A inserted

After Order 10 of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020[1] insert—

"Order 10A—Proceedings under Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 (Federal subject matter)

Part 1—Interpretation

10A.01Definitions

In this Order—

applicant means a person who makes an application under section 57B of the Victorian Civil and Administrative Tribunal Act 1998;

enabling enactment has the same meaning as in the Victorian Civil and Administrative Tribunal Act 1998;

substituted proceeding has the same meaning as in section 57A of the Victorian Civil and Administrative Tribunal Act 1998;

substituted proceeding complaint or summons means an application under section 57B of the Victorian Civil and Administrative Tribunal Act 1998 that is in Form 10A;

Tribunal means Victorian Civil and Administrative Tribunal.

Part 2—Filing and service

10A.02Form of application for substituted proceeding

An application under section 57B of the Victorian Civil and Administrative Tribunal Act 1998 must be in Form 10A.

10A.03Time for giving notice of reply

(1)Subject to Rule 10A.04, unless the Court otherwise orders, a respondent in a substituted proceeding must give a notice of reply to the applicant within 14 days after being served a substituted proceeding complaint or summons.

(2)A notice of reply must be in Form 10B.

10A.04Urgent substituted proceedings

(1)This Rule applies if—

(a)under the Victorian Civil and Administrative Tribunal Act 1998 or an enabling enactment, the Court is required to hear a substituted proceeding within 14 days after the commencement of the proceeding; and

(b)the Court schedules a date for the hearing of the substituted proceeding within that 14 day period.

(2)Despite the Magistrates' Court General Civil Procedure Rules 2020, the applicant must serve a substituted proceeding complaint or summons on the respondent in the substituted proceeding before 4 p.m. on the day before the day that the Court has scheduled for the hearing of the proceeding.

(3)In addition, despite the Magistrates' Court General Civil Procedure Rules 2020, a respondent in the substituted proceeding is not required to file a notice of reply with the Court.

10A.05Service

(1)Without limiting section 57C(2) and (3) of the Victorian Civil and Administrative Tribunal Act 1998, sections 140 and 141 of the Victorian Civil and Administrative Tribunal Act 1998 and rule 4.10 of the Victorian Civil and Administrative Tribunal Rules 2018 apply to a substituted proceeding as if, in those sections and that rule—

(a)a reference to the Tribunal were a reference to the Court; and

(b)a reference to the principal registrar of the Tribunal were a reference to the principal registrar of the Court.

(2)In addition—

(a)despite the Magistrates' Court General Civil Procedure Rules 2020, a substituted proceeding complaint or summons is not required to be served personally; and

(b)for the purposes of paragraph (1)—

(i)the electronic address for service included in a substituted proceeding complaint or summons is to be treated as the electronic address for receipt of electronic communication that must be included in an address for service by the applicant; and

(ii)the electronic address for service included in a notice of reply by a respondent is to be treated as the electronic address for receipt of electronic communication that must be included in an address for service by the respondent.

Note

See rule 4.10(3) of the Victorian Civil and Administrative Tribunal Rules 2018.

10A.06Order 21 of General Civil Procedure Rules 2020 does not apply

Order 21 of the Magistrates' Court General Civil Procedure Rules 2020 does not apply in relation to a substituted proceeding.

Part 3—Particular Court powers exercised by principal registrars

10A.07Particular powers of principal registrar in relation to certain substituted proceedings

(1)This Rule applies if the Court decides to hear and determine a substituted proceeding in respect of a matter under the Residential Tenancies Act 1997.

(2)The Court constituted by the principal registrar has the following powers in relation to the substituted proceeding—

(a)the power to determine adjournment applications by a residential rental provider, rooming house operator, caravan park owner, caravan owner or site owner on the first listing of an application for possession for rent or hiring charge arrears under the Residential Tenancies Act 1997 where the request is for an adjournment of 3 months or less;

(b)the power to stay a warrant—

(i)on an application under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 for a review of an order or on a request for the extension of a warrant; or

(ii)under section 110 of the Act;

Note

Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 applies for the purposes of a substituted proceeding in addition to section 110 of the Act—see section 57C(3)(g) of the Victorian Civil and Administrative Tribunal Act 1998.

(c)the power to stay and extend a warrant of possession issued under the Residential Tenancies Act 1997—

(i)on an application under section120 of the Victorian Civil and Administrative Tribunal Act 1998 for a review of an order; or

(ii)under section 110 of the Act.

Note

Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 applies for the purposes of a substituted proceeding in addition to section 110 of the Act—see section 57C(3)(g) of the Victorian Civil and Administrative Tribunal Act 1998.".

5New Forms 10A and 10B inserted

After Form 9E of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020 insert—

"Form 10A—Substituted proceeding complaint or summons

Rule 10A.02

SUBSTITUTED PROCEEDING

COMPLAINT OR SUMMONS

(Part 3A of the Victorian Civil and
Administrative Tribunal Act 1998)

IN THE MAGISTRATES' COURT  Court Number

OF VICTORIA

AT [insert proper venue]

BETWEEN  A.B.  Applicant

[full name]

OF

[address]

and

C.D.  Respondent

[full name]

OF

[address of respondent]

1.The address of the applicant is—

[insert address].

2.The electronic address for service of the applicant is—

[insert address].

3.*Name and address of the Australian lawyer for the applicant—

[insert name and address].

4.The applicant/s sue/s in the following representative capacity (individual, organisation, company or other)—

5.The respondent/s is/are being sued in the following representative capacity (individual, organisation, company or other)—

6.*Amount the applicant is claiming—[$    ].

*Delete if inapplicable.

NOTICE TO THE RESPONDENT

If you need an interpreter to help you read this document, contact details for most languages are listed at applicant's claim against you is set out in the Application Information.

You MUST READ the Application Information.

IF YOU INTEND TO DEFEND this substituted proceeding complaint or summons, YOU MUST GIVE NOTICE OF REPLY within 14 days after the day you were served with this substituted proceeding complaint or summons, to—

(a)the applicant (at the address for service of the applicant as stated above); and

(b)the registrar of the Magistrates' Court of Victoria at [insert proper venue and address].

NOTICE OF REPLY must be given in the proper form (Form 10B, 2 copies of which have been served with this substituted proceeding complaint or summons) and you must read and comply with the notes attached to that document. You may attach additional pages, if needed.

IF YOU PROVIDE THE RELIEF SOUGHT by the applicant within 14 days after service of this substituted proceeding complaint or summons to the applicant or to the applicant's Australian lawyer without giving notice of reply and the applicant accepts the relief or payment in full satisfaction of the claim (including any interest and costs), the proceeding ends on that acceptance.

IF YOU DO NOT GIVE NOTICE OF REPLY WITHIN 14 DAYS after service of this substituted proceeding complaint or summons and have not provided relief or paid the claim and the costs, the applicant, upon hearing of this claim by the Court and without giving you any further notice, may apply to the Court for an ORDER (JUDGMENT) AGAINST YOU for the relief or the amount of the claim and interest and costs AND take steps to enforce the order (judgment) and obtain payment.

IF THIS IS AN URGENT APPLICATION (listed for hearing in less than 14 days after receiving this summons) you do not need to file a notice of reply. You MUST contact the registrar at the Court at [insert proper venue and address] that is hearing this substituted proceeding complaint or summons.

The Court's registrars do NOT provide legal or financial advice but may provide some information to you about the actions and processes you must undertake in order to defend this claim.

If, before giving NOTICE OF REPLY, you wish to get FREE LEGAL or FINANCIAL ADVICE you may be able to do so from free legal advice services and free financial counselling services.

Those services are not employed by or under the control of the Court and therefore the Court cannot recommend any of them but contact details for such services together with some practical assistance can be obtained from the Magistrates' Court of Victoria's website at local municipal council may also be able to provide contact details for community services in your area that may be able to assist you.

Payment of Judgment Debt by Instalments

IF YOU DO NOT reply to this claim and do not reach agreement with the applicant relating to the time for payment after an order (judgment) against you, you may apply to the Court for an order permitting you to pay that order (judgment) by instalments. The Court will consider your application and advise you of the outcome.

The Court's registrars will be able to provide you with information about the process to apply for an order for payment of the judgment debt by instalments.

Part A—Federal jurisdiction information

(The substituted proceeding complaint or summons must demonstrate that the application raises a controversy involving federal jurisdiction subject matter under Part 3A of the Victorian Civil and Administrative Tribunal Act 1998. Federal jurisdiction matters are those within sections 75 and 76 of the Commonwealth Constitution and include matters where the Commonwealth is a party, the dispute is between residents of different states or the dispute arises under a Commonwealth law.

Please briefly outline, in numbered paragraphs, the facts which cause this matter to come within federal jurisdiction subject matter to be heard by the Magistrates' Court).

Part B—Application information**

DESCRIPTION OF CLAIM

(Briefly outline the circumstances of the dispute in numbered paragraphs).

DESCRIPTION OF RELIEF SOUGHT

(Briefly outline the relief sought from the Court in numbered paragraphs, including any amounts claimed).

**This substituted proceeding complaint or summons must be lodged with an accompanying annexure if applicable to the application type. The full list of accompanying annexures can be obtained from the Magistrates' Court of Victoria's website at OF FILING:

THIS SUBSTITUTED PROCEEDING COMPLAINT OR SUMMONS IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING

Dated: [insert date]

[To be signed by the applicant or the applicant's Australian lawyer]

You are summoned to attend before the Court on the hearing of an application by [insert name of applicant].

The application will be heard in the Magistrates' Court of Victoria at [insert venue] on [insert date] at     a.m. [or p.m.] or so soon afterwards as the business of the Court allows.

FILED [insert date].

This substituted proceeding complaint or summons was filed by [insert name of Australian lawyer] of [insert name and address of firm of Australian lawyer], Australian lawyer for the [identify party].

Registrar

Form 10B—Notice of reply

Rule 10A.03(2)

NOTICE OF REPLY

(Part 3A of the Victorian Civil and
Administrative Tribunal Act 1998)

IN THE MAGISTRATES' COURT  Court Number

OF VICTORIA

AT [insert proper venue]

BETWEEN  A.B.  Applicant

[full name]

OF

[address]

and

C.D.  Respondent

[full name]

OF

[address of respondent]

TO THE APPLICANT:

AND TO THE REGISTRAR AT THE MAGISTRATES' COURT AT:

TAKE NOTICE that the respondent intends to defend this substituted proceeding complaint or summons.

AND TAKE NOTICE THAT the respondent's reply is as follows—

[Briefly outline, in numbered paragraphs, the reply of the respondent to the dispute]

DATE OF FILING:

Dated: [insert date]

[To be signed by the respondent or the respondent's Australian lawyer]

1.This notice was signed—

* by the respondent in person.

* for the respondent corporation by [name of person] of [address] who holds the position of [director, secretary or other person authorised in writing by the respondent corporation].

* for the respondent by [name or firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer].

2.The address of the respondent is—

[insert address].

3.The address for service of the respondent is—

[*If the Service and Execution of Process Act 1992 of the Commonwealth applies] The address for service of the respondent within Australia is [insert address].

[*If the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies] The address for service of the respondent in Australia or New Zealand is [insert address].

[*If neither of those Acts applies and the respondent appears in person] The address for service of the respondent within Victoria is [insert address of the defendant within Victoria, not being a post office box].

[*If neither of those Acts applies and the respondent defends by an Australian lawyer] The name or firm and the business address of the Australian lawyer of the respondent is [insert name or firm and business address].

[*If neither of those Acts applies and the Australian lawyer is an agent of another] The name or firm and business address of the principal is [insert name or firm and business address].

4.The electronic address for service of the respondent is—

[insert address].

*Delete if inapplicable.".

Part 3—Amendment of Magistrates' Court (Judicial Registrars) Rules 2015

6Civil proceedings that may be dealt with by judicial registrars

After Rule 8(d) of the Magistrates' Court (Judicial Registrars) Rules 2015[2] insert—

"(da)a substituted proceeding within the meaning of section 57A of the Victorian Civil and Administrative Tribunal Act 1998;".

Dated:   24 November 2021

LISA HANNAN,
Chief Magistrate

FELICITY BROUGHTON,
Deputy Chief Magistrate

SUSAN WAKELING,
Deputy Chief Magistrate

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Endnotes

[1] Rule 4: S.R. No. 113/2020 as amended by S.R. Nos 23/2021 and 89/2021.

[2] Rule 6: S.R. No. 154/2015 as amended by S.R. Nos 135/2016, 28/2018, 24/2019, 95/2019, 39/2020 and 41/2021.