Magistrates' Court Civil Procedure (Amendment No. 6) Rules 2000 (Vic)

Magistrates' Court Civil Procedure (Amendment

No. 6) Rules 2000

S.R. No. 133/2000

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Offers of Compromise	2
PART 1—INTERPRETATION	2
15.01 Definitions	2
PART 2—OFFER OF COMPROMISE	2
15.02 Application	2
15.03 Time for making, accepting, etc. offer	3
15.04 Time for payment	4
15.05 Effect of offer	4
15.06 Disclosure of offer to Court	5
15.07 Failure to comply with accepted offer	5
15.08 Costs consequences of failure to accept	6
15.09 Multiple defendants	8
15.10 Offer to contribute	9
15.11 Transitional	10
6.	Amendment to reference to Form	10
7.	Substitution of Appendix A	10
APPENDIX A	11

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ENDNOTES 21

i

STATUTORY RULES 2000

S.R. No. 133/2000

Magistrates' Court Act 1989

Magistrates' Court Civil Procedure (Amendment

No. 6) Rules 2000

The Acting Chief Magistrate together with 2 Deputy Chief

Magistrates jointly make the following Rules:

1. Object

The object of these Rules is to revise the rules concerning offers of compromise, to amend a reference in a form and to increase the scale of

costs.

2. Authorising provisions

These Rules are made under section 16 of the enabling powers.

3. Commencement

These Rules come into operation on 1 January

2001.

4. Principal Rules

In these Rules the Magistrates' Court Civil
Procedure Rules 19991 are called the Principal
Rules.

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2000

S.R. No. 133/2000 r. 5

5. Offers of Compromise

For Order 15 of the Principal Rules substitute—

'OFFER OF COMPROMISE

PART 1—INTERPRETATION

15.01 Definitions

In this Order—

"claim" includes a counterclaim and any

claim made in accordance with Order 8;

"defendant" includes a defendant by

counterclaim and a party against whom
a claim is made in accordance with
Order 8;

"plaintiff" includes a defendant who serves a counterclaim and a party who makes a claim in accordance with Order 8.

PART 2—OFFER OF COMPROMISE

15.02 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 must—

(a)	be in writing and be prepared in accordance with Rule 3.05; and
(b)	contain a statement to the effect that it is served in accordance with this Order.

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r. 5 S.R. No. 133/2000

(4) For the avoidance of any doubt, the making of or acceptance of an offer of compromise under this Order does not affect the

operation of—

(a) section 105 of the Act; and

(b) any regulations made under section 105—

concerning the awarding of costs.

15.03 Time for making, accepting, etc. offer (1) An offer of compromise may be served at

any time before an order in respect of the

claim to which it relates.

(2) A party may serve more than one offer of

compromise.

(3) An offer of compromise may be expressed

to be limited as to the time the offer is open
to be accepted after service on the party to
whom it is made, but the time expressed
shall not be less than 7 days after such
service.

(4) A party on whom an offer of compromise is

served must within 3 days after service
serve a written acknowledgment of service
on the party serving the offer.

(5) A party on whom an offer of compromise is

served may accept the offer by serving
notice of acceptance in writing on the party
who made the offer before—

(a) the expiration of the time specified in accordance with sub-rule (3) or, if no time is specified, the expiration of

7 days after service of the offer; or

(b) an order in respect of the claim to

which the offer relates—

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2000

S.R. No. 133/2000 r. 5

whichever event is the sooner.

(6) An offer of compromise must not be

withdrawn during the time it is open to be

accepted, unless the Court otherwise orders.

(7) An offer of compromise is open to be

accepted within the period referred to in
sub-rule (5) notwithstanding that during that
period the party on whom the offer is served
makes an offer of compromise to the party
who served the offer of compromise,
whether or not the offer made by the party

served is made in accordance with this Part.

(8) Upon the acceptance of an offer of

compromise in accordance with sub-rule (5),
unless the Court otherwise orders, the
defendant must pay the costs of the plaintiff
in respect of the claim up to and including

the day the offer was served.

(9) If an offer of compromise contains a term

which purports to negative or limit the
operation of sub-rule (8), that term has no

effect for any purpose under this Part.

15.04 Time for payment

An offer of compromise providing for payment of a sum of money to a plaintiff must, unless it otherwise provides, be taken to be an offer providing for payment of that sum within 30 days after acceptance of the offer.

15.05 Effect of offer

An offer of compromise made in accordance with this Part must be taken to be an offer of compromise made without prejudice, unless the offer otherwise provides.

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2000

r. 5 S.R. No. 133/2000

15.06 Disclosure of offer to Court (1) No statement of the fact that an offer of

compromise has been made must be
contained in any document filed in the
proceeding.

(2) Where an offer of compromise has not been

accepted, then, except as provided by Rule
15.08(6), communication with respect to the
offer must not be made to the Court on the
hearing of the proceeding until after all
questions of liability and the relief to be
granted have been determined.

(3) Sub-rules (1) and (2) do not apply where an offer of compromise provides that the offer is not made without prejudice.

15.07 Failure to comply with accepted offer (1) If a party to an accepted offer of

compromise fails to comply with the terms
of the offer, then, unless for special cause
the Court otherwise orders, the other party is
entitled, as that other party may elect, to—

(a) an order in the proceeding in the terms of the accepted offer; or

(b) where the party in default is the

plaintiff, an order that the proceeding be dismissed, and where the party in default is the defendant, an order that the plaintiff be permitted to proceed as

if a notice of defence had not been filed, and in either case to an order accordingly.

(2) If a party to an accepted offer of compromise

fails to comply with the terms of the offer,
and a defendant in the proceeding has made
a claim by counterclaim or third party notice

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2000

S.R. No. 133/2000 r. 5

which is not the subject of the accepted
offer, the Court may make such order in the
proceeding under sub-rule (1) and make an
order that the proceeding, counterclaim or
claim by third party notice be continued as it
thinks fit.

15.08 Costs consequences of failure to accept (1) This Rule applies to an offer of compromise

which has not been accepted at the time of
an order on the claim to which the offer

relates.

(2) If an offer of compromise is made by a

plaintiff and not accepted by the defendant,
and the plaintiff obtains an order on the
claim to which the offer relates no less
favourable to the plaintiff than the terms of
the offer, then, unless the Court otherwise

orders, the plaintiff is entitled—

(a)	if the claim of the plaintiff is for damages for or arising out of death or bodily injury, to an order against the defendant for costs in respect of the claim to be fixed on a party and party basis in accordance with paragraph (c);
(b)	in the case of any other claim of the plaintiff, to an order against the defendant for costs in respect of the claim up to and including the day the offer was served to be fixed on a party and party basis and for costs thereafter to be fixed on a party and party basis in accordance with paragraph (c);
(c)	unless scale F in Table 1 of Appendix A applies to a claim, party and party costs must be fixed on the next highest

Magistrates' Court Civil Procedure (Amendment No. 6) Rules
2000

r. 5	S.	R. No. 133/2000
scale in that Table to the scale that, if not for this Rule, would apply.

(3) If an offer of compromise is made by a

defendant and not accepted by the plaintiff,
and the plaintiff obtains an order on the
claim to which the offer relates not more
favourable to the plaintiff than the terms of
the offer, then, unless the Court otherwise
orders, the plaintiff is entitled to an order
against the defendant for costs in respect of
the claim up to and including the day the
offer was served fixed on a party and party
basis and the defendant is entitled to an
order against the plaintiff for costs in respect
of the claim thereafter fixed on a party and
party basis.

(4) For the purpose of sub-rule (3), if the offer of compromise was served on the first or a later day of the hearing of the proceeding, then, unless the Court otherwise orders, the

plaintiff is entitled to costs in respect of the claim to the opening of the court next after the day on which the offer was served fixed on a party and party basis, and the defendant is entitled to costs in respect of the claim

thereafter fixed on a party and party basis.

(5) If a plaintiff obtains an order of the Court

for the recovery of a debt or damages and—

(a) the order includes an amount for interest or damages in the nature of interest; or

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2000

S.R. No. 133/2000 r. 5

(b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest—

for the purpose of determining the
consequences as to costs referred to in sub-
rules (2) and (3) the Court must disregard so
much of the amount recovered by or awarded
to the plaintiff for interest or damages in the
nature of interest as relates to the period after

the day the offer of compromise was served.

(6) For the purpose only of sub-rule (5), the

Court may be informed of the fact that the offer of compromise was served, and of the date of service, but must not be informed of its terms.

(7) Sub-rules (2) and (3) do not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all material times willing and able to carry out that party's part of what was proposed in

the offer.

(8) Where the plaintiff obtains an order for the

recovery of a debt or damages, and the
amount of the debt or the damages was not
in dispute, but only the question of liability,
sub-rule (2) does not apply unless the Court
is satisfied that the plaintiff's offer was of a
genuine compromise.

15.09 Multiple defendants

If 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to

Magistrates' Court Civil Procedure (Amendment No. 6) Rules
2000

r. 5 S.R. No. 133/2000

exist between the defendants, the
consequences as to costs referred to in Rule
15.08 do not apply to an offer of compromise
unless—

(a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer of

compromise of the claim against all of

them;

(b) in the case of an offer made to the

plaintiff—

(i) the offer is to compromise the

claim against all defendants; and
(ii) where the offer is made by two or
more defendants, by the terms of

the offer the defendants who made the offer are jointly or jointly and severally liable to the

plaintiff for the whole amount of

the offer.

15. 10 Offer to contribute
(1) Where in any proceeding a defendant makes

a claim (in this Rule called "a contribution
claim") to recover contribution or indemnity
against any person, whether a defendant to
the proceeding or not, in respect of any
claim for a debt or damages made by the
plaintiff in the proceeding, any party to the
contribution claim may serve on any other
party to the contribution claim an offer to
contribute toward a compromise of the
claim made by the plaintiff on the terms

specified in the offer.

(2) The Court may take an offer to contribute

into account in determining whether it

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2000

S.R. No. 133/2000 r. 6

should order that the party on whom the
offer to contribute was served should pay

the whole or part of—

(a) the costs of the party who made the

offer;

(b) any costs which that party is liable to

pay to the plaintiff.

(3) Rules 15.05 and 15.06 apply, with any

necessary modification, to an offer to
contribute as if it were an offer of

compromise.

15.11 Transitional

Order 15 as in force immediately before
1 January 2001 continues to apply to an offer

of compromise served before that date.'.

6. Amendment to reference to Form

In Rule 4.02(e) of the Principal Rules for "Form

4AB" substitute "Form 5AB".

7. Substitution of Appendix A

For Appendix A to the Principal Rules substitute—

Magistrates' Court Civil Procedure (Amendment No. 6) Rules
2000

r. 7	S.	R. No. 133/2000
'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 costs of repairs only or for total loss of vehicle only including all professional costs where the amount claimed is—

(a)	Less than $500	126.00
(b)	$500 to less than $5000	263.00
(c)	$5000 to less than $7500	323.00
(d)	$7500 to less than $20 000	387.00
(e)	$20 000 up to and including $40 000	483.00
(f)	Over $40 000	580.00

Item

Particulars of Service—For Costs relating to items 2
to 28A see Table 1 after item 28A

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)

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2000

S.R. No. 133/2000 r. 7

Item Particulars of Service—For Costs relating to items 2
to 28A see Table 1 after item 28A

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

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

Item Particulars of Service—For Costs relating to items 2

Magistrates' Court Civil Procedure (Amendment No. 6) Rules

2000

r. 7 S.R. No. 133/2000

to 28A see Table 1 after item 28A

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

Affidavits

14.     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)

Item Particulars of Service—For Costs relating to items 2
to 28A see Table 1 after item 28A

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2000

S.R. No. 133/2000 r. 7

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)

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

Item Particulars of Service—For Costs relating to items 2
to 28A see Table 1 after item 28A

Documents

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2000

r. 7 S.R. No. 133/2000

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

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

Item	Particulars of Service—For Costs relating to items 2 to 28A see Table 1 after item 28A
28.	Proceedings for attachment of debts including all professional costs.

Magistrates' Court Civil Procedure (Amendment No. 6) Rules

2000

S.R. No. 133/2000 r. 7

28A.	(a)	Summons for Attachment of Earnings, including instructions, preparation of summons, affidavit and Form 27F, issuing summons, arranging service, forwarding summons and affidavit to Registrar with a letter (including affidavit of service)
(b)	Preparation, filing and serving Form 27L
(c)	Preparation of order to attend or to give a statement under Rule 27.16 issue and arranging service.

TABLE 1

Costs for items 2 to 28A

A B C D E F

$500 $5000 $7500 $20 000

Less to less to less to less up to and

than than than than including Over

Item	$500	$5000	$7500	$20 000	$40 000	$40 000
2.	126	263	323	387	483	580

3.	(a)	59	125	154	184	229	276
(b)	67	137	169	203	252	303
(c)	31	31	31	31	31	31
4.	43	43	43	65	80	96
5.	44	99	119	144	178	213
6.	39	83	100	119	149	179
7.	(a)	30	47	59	69	87	103
(b)	36	66	78	98	122	146
(c)	69	148	179	215	269	321
(d)	30	44	59	69	87	103
8.	(a)	58	116	141	169	212	253
(b)	76	162	203	243	303	363

A B C D E F

$500 $5000 $7500 $20 000

Less to less to less to less up to and

than than than than including Over

Item $500 $5000 $7500 $20 000 $40 000 $40 000

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r. 7 S.R. No. 133/2000

9.	30	50	60	70	88	104
10. (a)	76	76	76	104	130	157
(b)	76	76	76	104	130	157
11.	65	65	65	95	119	144
12. (a)	14	23	34	34	44	53
(b)	14	14	14	23	27	32
(c) (i)	42	42	42	65	80	96
(ii)	11	11	11	31	39	47
(d)	58	103	141	169	212	253
13. (a)	41	54	60	67	82	99
(b)	26	26	26	26	26	26
14.	58	116	141	169	212	253
15.	23	23	23	23	23	23
16.	228	747	921	1106	1383	1660
17. (a)	56	168	226	272	339	407
(b)	100	192	273	339	424	510
18. (a)	210	422	635	762	953	1142
(b)	44	83	100	122	151	181
(c)	60	132	164	196	246	295
(d)	71	71	71	71	71	71
19. (a)	95	164	203	243	303	363
(b)	31	56	69	82	102	123
20.	30	60	75	94	118	142

A B C D E F

$500 $5000 $7500 $20 000

Less to less to less to less up to and

than than than than including Over

Item $500 $5000 $7500 $20 000 $40 000 $40 000

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S.R. No. 133/2000 r. 7

21. (a)	33	57	80	93	118	142
(b)	217	487	654	785	980	1177
(c)	145	325	436	523	654	783
(d)	33	57	80	93	118	142
22.	2.60	6.60	6.60	6.60	8.10	9.80
23. (a)	1.50	1.50	1.50	1.50	1.50	1.50
(b)	1.50	1.50	1.50	1.50	1.50	1.50
24. (a)	1.50	1.50	1.50	1.50	1.50	1.50
(b)	0.90	0.90	0.90	0.90	0.90	0.90
25. (a)	23.60	23.60	23.60	23.60	23.60	23.60
(b)	16.60	16.60	16.60	16.60	16.60	16.60
(c)	9.40	9.40	9.40	9.40	9.40	9.40
26. (a)	16.60	16.60	16.60	16.60	16.60	16.60
(b)	29	29	29	29	29	29
(c)	13.00	13.00	13.00	13.00	13.00	13.00
27. (a)	33	66	79	99	124	149
(b)	35	80	96	109	136	164
28.	95	194	243	291	363	435
28A. (a)	171	274	294	369	462	552
(b)	30	50	60	70	88	104
(c)	30	50	60	70	88	104

Item Particulars of Service Costs

$

29.          Service

In this item "Court documents" includes complaint,
summons, application or other document used in a
Court proceeding

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2000

r. 7 S.R. No. 133/2000

(1) (a) For service of Court documents—

(i)	For service on each person to be served	41
(ii)	For service on each person to be served where service is effected by post or by leaving at a document exchange	2.60
(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 29

(iv)    In addition to the abovementioned fees an allowance at the rate of 55 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 55 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.

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.

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2000

S.R. No. 133/2000 r. 7

(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 146

(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.'.

Dated: 13 December 2000

BRIAN STIRTEVANT BARROW,

Acting Chief Magistrate

JELENA POPOVIC,

Deputy Chief Magistrate

DANIEL JOHN MULING,

Deputy Chief Magistrate

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Magistrates' Court Civil Procedure (Amendment No. 6) Rules
2000

Endnotes S.R. No. 133/2000

ENDNOTES

1 Rule 4: S.R. No. 58/1999. Reprint (No. 1) as at 1 July 2000 to

S.R. No. 46/2000. Subsequently amended by S.R. No. 89/2000.