Magistrates Court (Civil Division) Amendment Rules 2013 (TAS)

Magistrates Court (Civil Division) Amendment Rules 2013

The Magistrates Rule Committee makes the following rules of court under section 15AE of the Magistrates Court Act 1987 .

1Short titleThese rules of court may be cited as the Magistrates Court (Civil Division) Amendment Rules 2013 . 2CommencementThese rules of court take effect on the day on which their making is notified in the Gazette. 3Principal RulesIn these rules of court, the Magistrates Court (Civil Division) Rules 1998 are referred to as the Principal Rules. 4Rule 3 amended (Interpretation) Rule 3 of the Principal Rules is amended as follows: (a) by omitting the definition of action and substituting the following definition: action means an action commenced by a claim; (b) by omitting "an action" from the definition of address for service and substituting "a proceeding"; (c) by inserting the following definitions after the definition of address for service : application means – (a) an originating application, in writing, by which a proceeding mentioned in Division 4A of Part 3 is commenced; or (b) an interlocutory application, whether oral or in writing, made to the Court in the course of any proceedings already commenced in the Court; approved means approved by the Chief Magistrate; (d) by omitting the definition of complex action and substituting the following definition: complex proceeding means a complex proceeding referred to in rule 139 ; (e) by omitting the definition of conduct an action and substituting the following definition: conduct a proceeding includes compromise a proceeding; (f) by omitting "an action" from paragraph (a) of the definition of judgment and substituting "a proceeding"; (g) by inserting the following definition after the definition of order : originating process means – (a) any document by which an original proceeding is commenced; and (b) a claim; (h) by omitting "action or proceedings" from the definition of party and substituting "proceeding"; (i) by omitting "an action" from paragraph (b) of the definition of person under disability and substituting "a proceeding"; (j) by omitting the definition of proceeding and substituting the following definition: proceeding means any matter commenced by originating process; (k) by omitting the definition of routine action and substituting the following definition: routine proceeding means any action other than a complex proceeding; 5Rule 4 amended (Conduct of Court proceedings) Rule 4(d)(ii) of the Principal Rules is amended by omitting "action" and substituting "proceeding". 6Rule 6 amended (Delay in conduct of proceedings) Rule 6 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "proceedings have" and substituting "a proceeding has"; (b) by omitting from subrule (1)(a) "action" and substituting "proceeding"; (c) by omitting from subrule (1)(b) "proceedings" and substituting "proceeding"; (d) by omitting from subrule (1)(c) "action" and substituting "proceeding"; (e) by omitting from subrule (1)(d) "action" and substituting "proceeding"; (f) by omitting from subrule (2) "an action" and substituting "a proceeding"; (g) by omitting from subrule (3) "proceedings have" and substituting "a proceeding has"; (h) by omitting from subrule (4) "an action" and substituting "a proceeding". 7Rule 7 amended (Saving of costs) Rule 7 of the Principal Rules is amended by omitting "an action" and substituting "a proceeding". 8Rule 10 substituted Rule 10 of the Principal Rules is rescinded and the following rule is substituted: 10Directions as to practice and procedure If the manner or form of commencing a proceeding, taking a step or carrying out a process in a proceeding or doing any other thing is not prescribed by these rules or any Act – (a) the Court, of its own motion or on the application of a party or a district registrar, may give directions as to the procedural steps to be taken; or (b) in the absence of any order to the contrary, the Court may adopt, with the necessary modification it thinks fit, the practice and procedure of the Supreme Court. 9Part 3: Heading amended Part 3 of the Principal Rules is amended by omitting "ACTIONS" from the heading to that Part and substituting "PROCEEDINGS". 10Part 3, Division 1: Heading amended Division 1 of Part 3 of the Principal Rules is amended by omitting "an action" from the heading to that Division and substituting "a proceeding". 11Rule 11 amended (Identity of party) Rule 11 of the Principal Rules is amended by omitting "action" and substituting "proceeding". 12Rule 11A insertedAfter rule 11 of the Principal Rules , the following rule is inserted in Division 1: 11ANaming of parties and proceedings (1)  In an action – (a) the person who commences the action is to be called the claimant; and (b) the person against whom the action is commenced is to be called the defendant; and (c) accordingly, the claim, and any other process in the action, is to be headed, after the title of the action, as being between the parties. (2)  In a proceeding (other than an action) between parties – (a) the person who commences the proceeding is to be called the applicant; and (b) the person against whom the proceeding is commenced is to be called the respondent; and (c) accordingly, the originating application, and any other process in the proceeding, is to be headed, after the title of the proceeding, as being between the parties. (3)  In a proceeding that is not between parties – (a) the person who commences the proceeding is to be called the applicant; and (b) the originating application, and any other process in the proceeding, is to be headed, after the title of the proceeding, “In the Matter of” followed by a reference to the statutory provision, if any, under which the applicant’s claim arises. 13Rule 13 amended (Parties joined in a proceeding) Rule 13 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action are joined in the action" and substituting "a proceeding are joined in the proceeding"; (b) by omitting from subrule (2) "An action is not defeated if parties to the action" and substituting "A proceeding is not defeated if parties to the proceeding". 14Rule 15 amended (Trustees) Rule 15(2) of the Principal Rules is amended by omitting "an action" and substituting "a proceeding". 15Rule 16 amended (Representation order) Rule 16(2) of the Principal Rules is amended by omitting "an action" and substituting "a proceeding". 16Rule 17 amended (Consent to representation order) Rule 17(b) of the Principal Rules is amended by omitting "action" and substituting "proceeding". 17Rule 18 amended (Directions hearing in relation to representation order) Rule 18(4) of the Principal Rules is amended as follows: (a) by omitting from paragraph (a) "action" and substituting "proceeding"; (b) by omitting from paragraph (b) "action" and substituting "proceeding"; (c) by omitting from paragraph (c) "action" and substituting "proceeding". 18Rule 20 amended (Litigation guardian for person under disability) Rule 20 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "a proceeding"; (b) by omitting from subrule (2) "an action" and substituting "a proceeding"; (c) by omitting from subrule (3) "an action" and substituting "a proceeding"; (d) by inserting in subrule (4) "or applicant" after "claimant"; (e) by omitting from subrule (6) "an action" and substituting "a proceeding". 19Rule 22 amended (Particulars of litigation guardian) Rule 22 of the Principal Rules is amended by inserting "or originating application" after "claim". 20Rule 23 amended (Application for order approving settlement of proceeding by person under disability) Rule 23 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "any proceeding"; (b) by omitting from subrule (1) "proceedings" and substituting "proceeding"; (c) by omitting from subrule (1) "the action" and substituting "the proceeding"; (d) by omitting from subrule (2)(b)(ii) "claim of the person under disability" and substituting "proceeding"; (e) by omitting from subrule (3)(a) "the action" and substituting "the proceeding". 21Rule 24 amended (Settlement of proceeding by person under disability) Rule 24(1) of the Principal Rules is amended by omitting "an action" and substituting "any proceeding". 22Rule 25 amended (Action to be commenced by claim) Rule 25 of the Principal Rules is amended by omitting subrule (1) and substituting the following subrule: (1)  A proceeding that falls within a class of proceeding that is required under the Supreme Court Rules 2000 to be commenced by a writ is to be commenced by a claim. 23Rule 27 amended (Dividing causes of action) Rule 27(1) of the Principal Rules is amended by omitting "actions" and substituting "proceedings". 24Rule 29 amended (Requirements on commencing action) Rule 29(1)(b) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 25Part 3, Division 4A insertedAfter rule 29 of the Principal Rules , the following Division is inserted in Part 3: Division 4AOriginating applications 29ACertain proceedings to be commenced by originating application (1)  A proceeding that, by or under any Act, may be commenced by application to the Magistrates Court is to be commenced by an originating application. (2)  An originating application is to be in an approved form. (3)  An originating application is to be filed in a registry. 29BTime for service (1)  An originating application that requires an appearance and is served in Tasmania is to be served at least 9 clear days before the hearing date. (2)  An originating application that does not require an appearance and is served in Tasmania is to be served at least 2 clear days before the hearing date. (3) An originating application that is served outside Tasmania is to be served the number of days before the hearing date that is 2 days more than the period limited for the entry of an appearance under rule 99 of the Supreme Court Rules 2000 in respect of the place at which the application is served. 29CAppearance generally (1)  If a person served with an originating application wishes to take part in the proceeding, the person, within the period limited on the application, is to – (a) file in a registry a notice of appearance; and (b) serve the notice on all other parties to the proceeding. (2)  A notice of appearance is to be in the approved form. (3)  Unless the Court or a magistrate otherwise orders, a party to an originating application which requires the entry of an appearance is not to be heard on the application before the party has entered his or her appearance. (4)  The period for entering an appearance is 7 days after service. 26Part 3, Division 5: Heading amended Division 5 of Part 3 of the Principal Rules is amended by omitting "action" from the heading to that Division and substituting "proceeding". 27Rule 30 amended (Registry in which proceeding to be conducted) Rule 30 of the Principal Rules is amended as follows: (a) by inserting the following subrule after subrule (2) : (2A)  In any proceeding other than an action, the proceeding is to be conducted at the Court closest to where – (a) the respondent resides; or (b) the cause of action arose. (b) by omitting from subrule (3) "the action is to proceed" and substituting "the proceeding is to be conducted"; (c) by omitting from subrule (3) "a directions hearing" and substituting "the registry in which the proceeding is to be conducted"; (d) by inserting the following subrule after subrule (3) : (4)  The Court may order that a proceeding commenced in one registry be transferred to another registry. 28Rule 31 amended (Abandonment of claim or application) Rule 31 of the Principal Rules is amended as follows: (a) by inserting in subrule (1) "or applicant" after "claimant"; (b) by inserting in subrule (1) "or right" after "claim"; (c) by inserting in subrule (2) "or applicant" after "claimant"; (d) by inserting in subrule (2) "or originating application" after "separate claim"; (e) by inserting in subrule (2) "or right" after "a claim". 29Rule 32 amended (Discontinuance of proceeding) Rule 32 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "any proceeding"; (b) by omitting from subrule (1) "proceedings" and substituting "proceeding"; (c) by omitting from subrule (2) "action" first occurring and substituting "proceeding"; (d) by omitting from subrule (2) "action" second occurring and substituting "proceeding". 30Rule 33 amended (Dismissal of action) Rule 33(1) of the Principal Rules is amended as follows: (a) by omitting from paragraph (a) "commencing the action"; (b) by inserting in paragraph (a) "on each other party" after "served"; (c) by omitting from paragraph (b) "time for" and substituting "date of". 31Rule 36 amended (Powers of amendment) Rule 36 of the Principal Rules is amended by omitting "action or". 32Rule 37 amended (Power to extend or shorten time limits) Rule 37 of the Principal Rules is amended by omitting "action or". 33Rule 39 amended (Documents to be filed and served) Rule 39 of the Principal Rules is amended by omitting "action or". 34Rule 40 amended (Manner of service) Rule 40(1) of the Principal Rules is amended by omitting "A claim commencing an action" and substituting "An originating process". 35Rule 48 amended (Defence) Rule 48(1)(a) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 36Rule 50 amended (Counterclaim and set-off) Rule 50(1)(a) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 37Rule 52 amended (Third party claims) Rule 52(1) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 38Part 3, Division 10: Heading amended Division 10 of Part 3 of the Principal Rules is amended by omitting "Applications" from the heading to that Division and substituting "Interlocutory applications". 39Rule 70 amended (Application by party) Rule 70(1) of the Principal Rules is amended by inserting "in a proceeding that has commenced" after "party". 40Rule 71 amended (Making an application) Rule 71 of the Principal Rules is amended as follows: (a) by inserting in subrule (1) "interlocutory" after "otherwise, an"; (b) by omitting paragraph (a) from subrule (1) and substituting the following paragraph: (a) in an approved form; and (c) by inserting in subrule (2) "interlocutory" after "an". 41Rule 72 amended (Service of application) Rule 72 of the Principal Rules is amended as follows: (a) by inserting in subrule (1) "interlocutory" after "An"; (b) by omitting subrule (2) . 42Rule 73 amended (Other means of making application) Rule 73 of the Principal Rules is amended by inserting "interlocutory" after "an". 43Rule 74 amended (Hearing an application) Rule 74 of the Principal Rules is amended as follows: (a) by inserting in subrule (1) "interlocutory" after "an"; (b) by inserting in subrule (2) "interlocutory" after "an"; (c) by inserting in subrule (3) "interlocutory" after "an"; (d) by inserting in subrule (4) "interlocutory" after "an". 44Rule 75 amended (Non-attendance on applications) Rule 75 of the Principal Rules is amended by inserting "interlocutory" after "of an". 45Rule 77 amended (Formal order) Rule 77(1) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 46Rule 78 amended (Order by consent) Rule 78 of the Principal Rules is amended as follows: (a) by omitting from subrule (2)(b)(iii) "direction." and substituting "direction; or"; (b) by inserting the following paragraph after paragraph (b) in subrule (2) : (c) in the course of proceedings to which an originating application relates. (c) by omitting from subrule (3) "a form specified in a practice direction" and substituting "an approved form". 47Rule 80 amended (Conference or hearing held in course of proceeding) Rule 80 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" first occurring and substituting "a proceeding"; (b) by omitting from subrule (1)(a) "action" and substituting "proceeding"; (c) by omitting from subrule (1)(d) "an action" and substituting "a proceeding"; (d) by omitting from subrule (3) "an action" and substituting "a proceeding". 48Rule 81 amended (Attendance of parties) Rule 81(1) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 49Rule 84 amended (Applications made at conference or hearing) Rule 84 of the Principal Rules is amended by omitting paragraph (b) and substituting the following paragraph: (b) in an approved form. 50Rule 85A insertedAfter rule 85 of the Principal Rules , the following rule is inserted in Part 4: 85APre-conference orders (1)  This rule applies only to minor civil claims. (2)  At any time, on notice to the parties, a registrar may make interlocutory orders relating to – (a) amendment of pleadings; and (b) filing of pleadings; and (c) orders for discovery; and (d) any other matter specified in a practice direction. 51Rule 86 amended (Confidentiality of offers and admissions) Rule 86 of the Principal Rules is amended by omitting "action" and substituting "proceeding". 52Rule 87 amended (Conciliation conference) Rule 87 of the Principal Rules is amended as follows: (a) by omitting from subrule (1)(a) "action" and substituting "proceeding"; (b) by omitting from subrule (1)(e) "action" and substituting "proceeding"; (c) by omitting from subrule (2)(b) "action" and substituting "proceeding". 53Rule 89 amended (Offer of compromise) Rule 89 of the Principal Rules is amended as follows: (a) by omitting from subrule (3) "action" and substituting "proceeding"; (b) by omitting from subrule (5)(a) "action" and substituting "proceeding". 54Rule 93 amended (Notice of payment into Court) Rule 93 of the Principal Rules is amended as follows: (a) by omitting from subrule (2) "action" and substituting "proceeding"; (b) by omitting from subrule (3) "action" and substituting "proceeding". 55Rule 95 amended (Payment out of Court) Rule 95(1) of the Principal Rules is amended by omitting "action" and substituting "proceeding". 56Rule 96 amended (Confidentiality of offers and payments into Court) Rule 96 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "action" and substituting "proceeding"; (b) by omitting from subrule (2) "action" and substituting "proceeding". 57Rule 97 amended (Notice of trial) Rule 97 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "action" and substituting "proceeding"; (b) by omitting from subrule (2) "a form specified in a practice direction" and substituting "an approved form". 58Rule 99 amended (Orders at trial) Rule 99(5) of the Principal Rules is amended by omitting paragraph (b) and substituting the following paragraph: (b) in writing, in an approved form. 59Rule 100 amended (Expedited hearing) Rule 100(1) of the Principal Rules is amended as follows: (a) by omitting "an action" and substituting "a proceeding"; (b) by omitting "action" second occurring and substituting "proceeding". 60Rule 102 amended (Summons to witness) Rule 102(1) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 61Rule 105 amended (Expert evidence) Rule 105(1) of the Principal Rules is amended by omitting "an action" and substituting "a proceeding". 62Rule 114 amended (Judgment by consent) Rule 114(4) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 63Rule 116 amended (Judgment in default of defence) Rule 116(2) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 64Rule 119 amended (Hearing of default assessments) Rule 119(2)(a) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 65Rule 119A insertedAfter rule 119 of the Principal Rules , the following rule is inserted in Part 7: 119AOrders about payment of judgment debts (1)  In this rule – judgment creditor means a person entitled to enforce a judgment or order for the payment of money to a person; judgment debtor means a person required by a judgment or order to pay money to a judgment creditor. (2)  The Court may order a judgment debtor to pay the judgment debt – (a) within a period specified in the order; or (b) by instalments that are of the amounts, and are payable within the periods, specified in the order. (3)  The Court may make an order under subrule (2) on its own motion or on the application of a judgment creditor or judgment debtor. (4)  The Court may not make an order under subrule (2) that requires a judgment debtor to pay within a period an amount that constitutes all or part of the judgment debt if the Court is of the opinion, on the evidence before it, that requiring payment of that amount within the period will impose unreasonable hardship on the judgment debtor. (5)  In determining whether requiring payment of an amount within a period will impose unreasonable hardship on the judgment debtor, the Court is to have regard to any evidence before the Court as to – (a) the judgment debtor’s means of satisfying the judgment debt; and (b) where the judgment debtor is a natural person, the judgment debtor’s reasonable living expenses; and (c) any other debts for which the judgment debtor is liable. (6)  The Court may, on the application of a judgment creditor or judgment debtor, vary, suspend or substitute an order made under subrule (2) in relation to the judgment debtor. 66Rule 122 substituted Rule 122 of the Principal Rules is rescinded and the following rule is substituted: 122Service and execution of enforcement process Except as otherwise provided in these rules, an enforcement process is to be served or executed by a bailiff on the person to whom it is directed. 67Rule 125 amended (Interpretation and application of Division 2 ) Rule 125(1) of the Principal Rules is amended by omitting the definition of approved . 68Rule 128 amended (Service of provisional order) Rule 128 of the Principal Rules is amended by inserting after subrule (2) the following subrule: (2A)  A provisional order may be served on the garnishee and the judgment debtor by any person. 69Rule 129A substituted Rule 129A of the Principal Rules is rescinded and the following rule is substituted: 129AService of final order (1)  As soon as possible after a final order is made, it is to be served on the garnishee. (2)  A final order may be served on the garnishee and the judgment debtor by any person. 70Rule 129H amended (Service of provisional garnishee order) Rule 129H of the Principal Rules is amended by inserting after subrule (2) the following subrule: (2A)  A provisional order may be served on the garnishee and the judgment debtor by any person. 71Rule 129I amended (Final garnishee order) Rule 129I of the Principal Rules is amended by inserting after subrule (4) the following subrule: (4A)  A judgment debtor may, at any time after a final order is made, apply to the Court for a variation of the final order on the grounds that the final order is causing severe and unusual hardship due to a significant change in the personal circumstances of the judgment debtor. 72Rule 129J substituted Rule 129J of the Principal Rules is rescinded and the following rule is substituted: 129JService of final garnishee order (1)  As soon as possible after a final order, or a variation of a final order, is made, the final order, or the variation of the final order, is to be served on the garnishee. (2)  A final order, or a variation of a final order, may be served on the garnishee and the judgment debtor by any person. 73Rule 129N amended (Priority of garnishee orders) Rule 129N(a) of the Principal Rules is amended by omitting "served" and substituting "made". 74Rule 130 amended (Warrant to seize and sell property) Rule 130(2) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 75Rule 135 amended (Warrant of possession) Rule 135(1) of the Principal Rules is amended by omitting "a form specified in a practice direction" and substituting "an approved form". 76Rule 138 amended (Entitlement to costs) Rule 138 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "a proceeding"; (b) by omitting from subrule (3) "an action other than for" and substituting "proceedings other than an action for"; (c) by omitting from subrule (7) "action" and substituting "proceeding". 77Rule 138A insertedAfter rule 138 of the Principal Rules , the following rule is inserted in Division 1: 138AEntitlement to disbursements Unless the Court orders otherwise, a successful party in a proceeding is entitled on judgment, in relation to a matter specified in items 3, 4, 5 or 6 of the table in Schedule 2 , to the disbursements specified in that Schedule in relation to the matter. 78Rule 139 amended (Complex proceeding) Rule 139(1) of the Principal Rules is amended by omitting "an action is a complex action" and substituting "a proceeding is a complex proceeding". 79Rule 140 amended (Reserved costs) Rule 140 of the Principal Rules is amended by omitting "action" and substituting "proceeding". 80Rule 142 amended (Cost penalty for inadequate offer) Rule 142(1) of the Principal Rules is amended by inserting "where no offer of compromise is filed or payment into court made or" after "action". 81Rule 144 amended (Security for costs) Rule 144 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "a proceeding"; (b) by omitting from subrule (2) "action" and substituting "proceeding"; (c) by omitting from subrule (4) "action" and substituting "proceeding"; (d) by omitting from subrule (5) "an action proceeding" and substituting "a proceeding continuing". 82Rule 146 amended (Bill of costs) Rule 146 of the Principal Rules is amended as follows: (a) by omitting "an action" and substituting "a proceeding"; (b) by omitting "a form specified in a practice direction" and substituting "an approved form". 83Rule 153 amended (Records of the Court) Rule 153(1)(b) of the Principal Rules is amended by omitting "actions and". 84Rule 156 amended (Numbering of proceedings) Rule 156 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "an action" and substituting "a proceeding"; (b) by omitting from subrule (2) "action" and substituting "proceeding". 85Schedule 1 amended (Costs and expenses) Schedule 1 to the Principal Rules is amended as follows: (a) by omitting from the heading to Part 1 "ROUTINE ACTIONS" and substituting "ROUTINE PROCEEDINGS"; (b) by omitting item 2 from Part 1 and substituting the following:

2. Filing claim or originating application other than for sum of money $512 $512 $512

(c) by omitting from the heading to Part 2 "COMPLEX ACTIONS" and substituting "COMPLEX PROCEEDINGS"; (d) by inserting "or originating application" after "claim" in column 1 of item 2 in Part 2 .

These rules of court were made by the Magistrates Rule Committee at a meeting held on 23 August 2013.

M. DALY

Chief Magistrate

SIMON COOPER

Member

OLIVIA MCTAGGART

Member

MARK RAPLEY

Member

CATHERINE RHEINBERGER

Member

CHRIS WEBSTER

Member

SAM MOLLARD

Member

TIM HILL

Member

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 4 September 2013

These rules are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule) These rules of court amend the

(a) enabling the application of provisions of the rules to proceedings commenced by originating application; and (b) enabling pre-conference orders, relating to procedural matters, to be made in respect of minor civil claims; and (c) enabling certain forms to be approved by the Chief Magistrate; and (d) making provision in relation to the examination of persons in respect of, and the enforcement of, judgment debts.