Magistrates' Court Civil Procedure (Amendment) Rules 1997 (Vic)

Magistrates' Court Civil Procedure (Amendment)

Rules 1997

S.R. No. 81/1997

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Amendment of Rule 1.12—definition of solicitor	1
6.	Substitution of Rule 3.05(7)	2
7.	Substitution of Rule 9.01	2
9.01 Notice of defence after service	2
8.	Substitution of Order 19A	3
ORDER 19A	4
SERVICE OF MEDICAL REPORTS	4
19A.01 Application	4
19A.02 Counterclaim	4
19A.03 Definitions	4
19A.04 Notice for examination	6
19A.05 Expenses	6
19A.06 Report of examination	6
19A.07 Service of reports	6
19A.08 Time for service	7
19A.09 Other medical reports to be served	8
19A.10 Proceeding against medical expert	8
19A.11 Medical report admissible	8
19A.12 No evidence unless disclosed in report	10
9.	Amendment to Form 9A	10

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NOTES 11

i

STATUTORY RULES 1997

S.R. No. 81/1997

Magistrates' Court Act 1989

Magistrates' Court Civil Procedure (Amendment)

Rules 1997

The Chief Magistrate together with 2 Deputy Chief

Magistrates jointly 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

These Rules come into operation on 1 September

1997.

4. Principal Rules

In these Rules the Magistrates' Court Civil
Procedure Rules 19891 are called the Principal
Rules.

5. Amendment of Rule 1.12—definition of solicitor In Rule 1.12(1) of the Principal Rules, in the definition of "solicitor", for "1986" substitute

"1996".

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6. Substitution of Rule 3.05(7)

For Rule 3.05(7) of the Principal Rules
substitute—

"(7) A document, other than a complaint, must be

endorsed on the front sheet with—

(a) the title of the proceeding and any identifying number;

(b) a short description of the document;

(c)	the name of the party on whose behalf it is filed;
(d)	if a solicitor prepares the document, the name, address, telephone number, document exchange number, code reference of the solicitor's firm and the solicitor's reference or name of an individual in the firm to whom reference can be made in respect of the proceeding;
(e)	if the party on whose behalf the document is filed acts without a solicitor, the name address and telephone number of that party.".

7. Substitution of Rule 9.01

For Rule 9.01 of the Principal Rules substitute—

"9.01 Notice of defence after service

(1) A defendant may give notice of defence at

any time after the service of a complaint, but
except by leave of the Court a notice of
defence must not be given where—

(a)	the plaintiff has obtained an order under part 1 of Order 10; or
(b)	by order of the Court the defendant's notice of defence has been struck out.

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S.R. No. 81/1997

(2) Notice of defence is given by serving a

notice of defence in Form 9A on the plaintiff
at the address for service stated in the
complaint and by filing a copy with the
registrar.

(3) A copy of a notice of defence may be filed

with the registrar by means of facsimile
transmission.

(4) A notice of defence must—

(a)	state the name and address of the defendant, and the address for service of the defendant; and
(b)	contain a statement that the defendant intends to defend the complaint; and
(c)	contain a concise statement of the nature of the defence and a summary of the material facts, with particulars, on which the defendant relies for the defence.

(5) Without limiting paragraph (4)(c), the defendant must state specifically in the notice of defence any fact or matter which—

(a)	the defendant alleges makes the claim of the plaintiff not maintainable; or
(b)	if not stated specifically, might take the plaintiff by surprise; or
(c)	raises questions of fact not arising out of the complaint.

(6) The defendant cannot rely upon the defence

of tender unless within seven days after
giving notice of defence the defendant pays
to the registrar the amount alleged to have
been tendered.".

8. Substitution of Order 19A

Magistrates' Court Civil Procedure (Amendment) Rules 1997
S.R. No. 81/1997

For Order 19A of the Principal Rules substitute—

'ORDER 19A

SERVICE OF MEDICAL REPORTS

19A.01 Application

This Order applies to a proceeding—

(a)	under the Accident Compensation Act 1985;
(b)	under the Workers Compensation Act 1958;
(c)	in which the plaintiff claims damages for personal injury.

19A.02 Counterclaim

This Order shall, with any necessary modification, apply to a counterclaim in a proceeding of the kind referred to in Rule 19A.01.

19A.03 Definitions

In this Order, unless the context or subject
matter otherwise requires—

"dentist" means a person registered as a

dentist under the Dentists Act 1972 or
any corresponding enactment of
another State or a Territory of the
Commonwealth.

"examination" means an examination for

medical, dental or psychological
purposes as the case requires;

"hospital report" means a statement in

writing concerning the plaintiff made
by or on behalf of a hospital,

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rehabilitation centre or other like institution;

"medical expert" means medical

practitioner, dentist, or psychologist as
the case requires;

"medical matters" includes dental matters and psychological matters;

"medical practitioner" means a person registered as a medical practitioner under the Medical Practice Act 1994

or any corresponding enactment of
another State or a territory of the

Commonwealth;

"medical report"—

(a) matters concerning the plaintiff

means a statement on medical by a medical expert; and

(b)	includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the
medical expert obtained or caused to be brought into existence subsequently;

"psychologist" means a registered psychologist as defined by the Psychologists Registration Act 1987;

"serve", in relation to the service of a

medical report, means—

(a) where the medical report was in writing, serve a copy, and

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(b) where the medical report was oral, serve notice in writing of its substance.

19A.04 Notice for examination

(1) The defendant may request the plaintiff in

writing to submit to appropriate
examinations by a medical expert or experts
at specified times and places.

(2) Where a plaintiff refuses or neglects without

reasonable cause to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding.

19A.05 Expenses

(1) The costs of and incidental to the

examination shall be costs in the proceeding.

(2) Without limiting paragraph (1), the

defendant shall, on request by the plaintiff
whether before or after the plaintiff is
examined, pay to the plaintiff a reasonable
sum to meet his or her travelling and other
expenses of and incidental to the

examination.

19A.06 Report of examination

A defendant for whom a plaintiff is examined under Rule 19A.04 shall as soon as practicable after the examination obtain from the medical expert a medical report.

19A.07 Service of reports

(1) A plaintiff shall serve on each other party

who has an address for service in the
proceeding any medical report (other than a
medical report served on or supplied to the
plaintiff by another party) which the plaintiff

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intends to tender or the substance of which
the plaintiff intends to adduce in evidence at

the hearing.

(2) Where a plaintiff obtains possession, custody

plaintiff intends to call at the hearing, this

or power of a hospital report which the modification, applies as if the report were a medical report.

(3) A defendant or a third or subsequent party must serve on each other party who has an address for service in the proceeding any

medical report (other than a medical report served on or supplied to the defendant or a third or subsequent party by another party) in
the possession, custody or power of or made
to or obtained by or for the defendant, third

or subsequent party.

19A.08 Time for service

Unless the Court otherwise orders, the time for service of a medical report by a party required under Rule 19A.07 to serve a medical report shall be—

(a) Compensation Act 1985 or the
Workers Compensation Act 1958,

in a proceeding under the Accident given a date for hearing;

(b)	in a proceeding involving a claim for damages for personal injury, not less than 14 days before the date fixed for a
pre-hearing conference, mediation or hearing (whichever occurs first);
(c)	in the case of a medical report made to or obtained by or for a party after the

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times referred to in sub-paragraphs (a) or (b), forthwith.

19A.09 Other medical reports to be served

Where after a plaintiff has served a medical
report under Rule 19A.07(1) the medical
expert who made the report makes another
medical report to the plaintiff, then,
notwithstanding that the plaintiff no longer
intends to tender the medical report so
served or to adduce its substance in evidence
at the hearing, or does not intend to tender
the other medical report or to adduce its
substance in evidence at the hearing, the
plaintiff shall serve the other medical report

forthwith.

19A.10 Proceeding against medical expert

(1) This Rule applies to a proceeding in which

the plaintiff claims damages for personal
injury sustained as a result of medical or the
like treatment or advice given in respect of
any physical or mental condition of the
plaintiff.

(2) Unless the Court otherwise orders, a party

who is required to serve a copy of a hospital
report or medical report under this Order
may exclude from the copy served any
expression of opinion in the original report
on the question of liability and, if the
original report contains any statement with
respect to the facts on which the opinion is
based, any statement with respect to a fact
that relates only to the question of liability.

19A.11 Medical report admissible

Magistrates' Court Civil Procedure (Amendment) Rules 1997
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(1) This Rule applies in the case of a medical

report sought to be admitted pursuant to
section 47 of the Accident Compensation
Act 1985.

(2) A medical report a copy of which was served under this Order is admissible as evidence of the opinion of the medical expert who gave

the report and, where the medical expert's
oral evidence of a fact upon which the
opinion was based would be admissible, as
evidence of that fact.

(3) Subject to paragraphs (4) and (5), a medical report may be used in evidence by the party who served a copy of the report or by any

party on whom the copy was served.

(4) If a medical report is tendered by the party who served a copy of the report, that party shall cause the medical expert who gave the

report to attend at the hearing of the
proceeding to be cross-examined if notice
that such attendance is required is served on
the party by any other party not later than
five days before the commencement of the
hearing, and if the medical expert does not
attend for cross-examination the Court may
order that the medical report be not received
in evidence.

(5) If a medical report is tendered by a party on whom a copy of the report was served—

(a) that party shall cause the medical expert who gave the report to attend at the hearing of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence;

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(b) the medical expert is cross-examined

if the report is received in evidence and received, at the conclusion of the cross- examination the party who tendered the report may examine the expert as if by re-examination.

19A.12 No evidence unless disclosed in report

Save with the leave of the Court or by consent of the parties, a party shall not except in cross-examination adduce evidence

from a medical expert on medical matters
concerning the plaintiff unless that evidence
is disclosed by a medical report served in

accordance with this Order.'.

9. Amendment to Form 9A

In Form 9A to the Principal Rules for "particulars of defence and summary of material facts upon" substitute "a concise statement of the nature of the defence and a summary of the material facts, with particulars, on".

Dated: 29 July 1997

MICHAEL ANTHONY ADAMS, QC, CM
BRIAN STIRTEVANT BARROW, Deputy CM

PATRICK DENIS STREET, Deputy CM

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Magistrates' Court Civil Procedure (Amendment) Rules 1997

S.R. No. 81/1997 Notes

NOTES

1 S.R. No. 199/1989. Reprinted to S.R. No. 199/1989 and subsequently

amended by S.R. Nos 149/1995, 73/1996 and 143/1996.