Magistrates' Court Civil Procedure (Amendment) Rules 1996 (Vic)

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

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NOTES 20

i

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 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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 6	S.R. No. 73/1996
a complaint, but except by leave of the given where—

(a)	the plaintiff has obtained an order under Part 1 of Order 10; or
(b)

by order of the Court the 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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 11

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" ' "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.";

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 17 S.R. No. 73/1996

(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".

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 21

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

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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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 21

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 21 S.R. No. 73/1996

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)

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 21

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 21 S.R. No. 73/1996

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.

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 21

TABLE 1

Costs for items 2 to 28

A B C D E F

$20 000

Less	$500 to	$5000 to	$7500 to	to less	$40 000
than	less than	less than	less than	than	and over

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

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996

Table 1 continued— Costs for items 2 to 28

A B C D E F

$20 000

Less $500 to $5000 to $7500 to to less

than less than less than less than than $40 000

Item	$500	$5000	$7500	$20 000	$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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 21

S.R. No. 73/1996

Table 1 continued— Costs for items 2 to 28

A B C D E F

$20 000

Less $500 to $5000 to $7500 to to less

than less than less than less than than $40 000

Item	$500	$5000	$7500	$20 000	$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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 21 S.R. No. 73/1996

Table 1 continued— Costs for items 2 to 28

A B C D E F

$20 000

Less $500 to $5000 to $7500 to to less

than less than less than less than than $40 000

Item	$500	$5000	$7500	$20 000	$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.

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 21

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	2.10
service is effected by post or by leaving at a document exchange
(iii)	For every necessary visit made in attempting	23
service and for each report of non-service where the time, date and number of visits attempting service are shown by affidavit
(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.

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 22

r. 22 S.R. No. 73/1996

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 116

professional costs.

(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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

r. 22 S.R. No. 73/1996

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

Magistrates' Court Civil Procedure (Amendment) Rules 1996

S.R. No. 73/1996 r. 22

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

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Magistrates' Court Civil Procedure (Amendment) Rules 1996

Notes S.R. No. 73/1996

NOTES

1 S.R. No. 199/1989. Reprinted (No. 3) to S.R. No. 103/1995. Subsequently

amended by S.R. No. 149/1995.