Magistrates' Court Civil Procedure (Amendment No. 5) Rules 2000 (Vic)

Magistrates' Court Civil Procedure

(Amendment No. 5) Rules 2000

S.R. No. 89/2000

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Form of complaint	1
6.	New Order 5A inserted	2
ORDER 5A	2
SERVICE OUT OF AUSTRALIA	2
5A.01. For what claims	2
5A.02. Form of complaint and indorsement	3
5A.03. Mode of service out of Australia	4
5A.04. Leave to apply for an order	4
5A.05. Stay, setting aside service, etc.	5
5A.06. Service of counterclaim or third party notice	6
5A.07. Application for order under Rule 5A.05 or 5A.06	6
7.	Form of counterclaim	7
8.	Notice of defence to state address in Victoria if complaint served
out of Australia	7
9.	Extension of application of rules concerning expert evidence	7
10.	Copy of statement or report may be served in certain proceedings	7
11.	Substitution of Rule 19.03	8

19.03.	Making a statement or copy of a report of other party
evidence 8

12.      New form of complaint for service out of Australia (Form 5AB)

inserted 8

13.      New form of counterclaim for service out of Australia (Form

7AB) 11
14.	Heading inserted in Form 10B 13
15.	Amendment to Form 28G 13
16.	Amendments to Appendix A 13

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ENDNOTES 15

i

STATUTORY RULES 2000

S.R. No. 89/2000

Magistrates' Court Act 1989

Magistrates' Court Civil Procedure

(Amendment No. 5) Rules 2000

The Chief Magistrate together with 2 Deputy Chief

Magistrates jointly make the following Rules:

1. Object

The object of these Rules is to provide for the service of certain documents out of Australia and 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 October

2000.

4. Principal Rules

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

Rules.

5. Form of complaint

In Rule 4.02(e) of the Principal Rules, after "Form
4A" insert ", or if the complaint is to be served
out of Australia in Form 4AB,".

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000 r. 6

6. New Order 5A inserted

After Rule 5.11 of the Principal Rules insert—

"ORDER 5A

SERVICE OUT OF AUSTRALIA

5A.01. For what claims

(1) A complaint may be served out of Australia

without leave of the Court where—

(a) the proceeding is one brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a contract, or to recover damages or other relief in respect of the breach of a contract, and the contract—

(i) was made within Victoria;

(ii) carrying on business or residing
within Victoria on behalf of a

was made by or through an agent residing out of Victoria; or

(iii)  is governed by the law of Victoria;

(b) a breach committed within Victoria of a
contract wherever made, even though
that breach was preceded or

the proceeding is brought in respect of Victoria that rendered impossible the performance of that part of the contract which ought to have been performed within Victoria;

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 6 S.R. No. 89/2000

(c)	the proceeding is founded on a contract the parties to which have agreed that the Court shall have jurisdiction to entertain a proceeding in respect of the contract;
(d)	the proceeding is founded on a tort committed within Victoria;
(e)	the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring;
(f)	an injunction is sought ordering the defendant to do or refrain from doing anything within Victoria, whether or not damages are also claimed in respect of a failure to do or the doing of that thing;
(g)	the proceeding is properly brought against a person duly served within or out of Victoria and another person out of Australia is a necessary or proper party to the proceeding.

(2) A complaint may be served out of Australia under sub-rule (1) notwithstanding that part of the cause of action arose outside Victoria provided that a material part of it arose in

Victoria.

5A.02. Form of complaint and indorsement

(1) A complaint served on any defendant out of Australia in accordance with this Order must be in Form 5AB and, at the time of service

on that defendant, contain an indorsement
stating the facts and the particular paragraph
of Rule 5A.01(1) relied upon in support of
such service.

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000 r. 6

(2) If the complaint is not in Form 5AB or does

not contain the indorsement referred to in
sub-rule (1) at the time it is filed, the plaintiff
may, in accordance with sub-rule (3), amend
the complaint to conform with Form 5AB

and to include the indorsement.

(3) The complaint must be taken to be amended

upon the filing by the plaintiff of a copy of
the complaint to conform with Form 5AB
with the indorsement included.

(4) Upon the filing of an amended copy of the complaint under sub-rule (3) or at any later time, the registrar on the request of the

plaintiff shall seal a sufficient number of
copies of the complaint as amended for

service and proof of service.

5A.03. Mode of service out of Australia

A complaint which is to be served out of
Australia must be served in accordance with

Rule 5.03(1)(a).

5A.04. Leave to apply for an order

(1) Where no notice of defence is given within

42 days of a party being served with a
complaint out of Australia, the Court, if

satisfied so far as it concerns that party—

(a)	that the subject matter of the complaint is within Rule 5A.01;
(b)	that the complaint complies with the requirements of Rule 5A.02; and
(c)	that the complaint was duly served on that party—

may order that the plaintiff be at liberty to
apply for an order under Rule 10.01(1).

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 6 S.R. No. 89/2000

(2) An application for an order under sub-rule (1) must be supported by affidavit or other evidence showing the grounds on which the

application is made.

5A.05. Stay, setting aside service, etc.

(1) The Court may make an order on application

by a party served with a complaint outside

Australia to—

(a) set aside the complaint or its service;

(b) set aside or vary an order made under Rule 5A.04 where the application for an order—

(i)  was made on notice to the party, but the party did not attend the hearing of the application; or

(ii)  was not made on notice to that party;

(c) stay the complaint.

(2) Without limiting sub-rule (1), the Court may

make an order under this Rule on the

ground—

(a)	that service out of Australia is not authorised by these Rules; or
(b)	that Victoria is not a convenient forum for the hearing of the proceeding.

(3) The Court may make an order under this Rule before an application is made under Rule 5A.04 or before an order of the Court is

made on such an application.

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000 r. 6

5A.06. Service of counterclaim or third party

notice

(1) This Rule applies to—

(a)	a counterclaim against the plaintiff and another person joined as defendant where the person joined is not already a party to the proceeding; and
(b)	a third party notice filed in accordance with Order 8.

(2) A counterclaim or third party notice may be served out of Australia without leave where the claim made by the defendant in the

counterclaim or third party notice is of such
a kind that if the claim were made by
complaint, the complaint could be served out

of Australia.

(3) Where sub-rule (2) applies the counterclaim

must be in Form 7AB.

(4) Where sub-rule (2) does not apply, the Court may by order allow service out of Australia a counterclaim or third party notice.

5A.07. Application for order under Rule 5A.05 or

5A.06

(1) An application under Rule 5A.05 or 5A.06

shall be supported by affidavit or other
evidence showing the grounds upon which

the application is made.

(2) Upon making an order under Rule 5A.05 or

5A.06 the Court may give directions with respect to service and the time for filing a notice of defence or for attendance before the Court or otherwise.

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 7 S.R. No. 89/2000

(3) Where a document is served out of Australia

by order of the Court made under Rule referred to in the affidavit shall be served with the document.".

5A.05 or 5A.06, a copy of the order, a copy
of any affidavit made in support of the
application for the order and, unless the

7. Form of counterclaim

In Rule 7.02(1) of the Principal Rules, after "Form 7A" insert ", or if the counterclaim is to be served out of Australia in Form 7AB".

8.  Notice of defence to state address in Victoria if complaint served out of Australia

After Rule 9.01(4) of the Principal Rules insert—

"(4.1) The notice of defence must state an address for service in Victoria if the defendant was served with the complaint out of Australia.".

9.  Extension of application of rules concerning expert evidence

(1) In Rule 19.01 of the Principal Rules, paragraphs

(a), (d) and (e) are revoked.

(2) In Rule 19.01 of the Principal Rules, in

paragraph (c), for "16.02; or" substitute "16.02.".

10.  Copy of statement or report may be served in certain proceedings2

(1) In Rule 19.02(1) of the Principal Rules, for

"paragraph (2)" substitute "sub-rule (2) or a copy

of a report in accordance with sub-rule (2.1)".

(2) After Rule 19.02(2) of the Principal Rules

insert—

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 11
r. 12

S.R. No. 89/2000

"(2.1) In—

(a)	any claim for damages for personal injury; or
(b)	a proceeding under the Accident Compensation Act 1985; or
(c)	a proceeding under the Workers Compensation Act 1958—

a party may serve on another party a copy of

a report of an expert witness.

(2.2) The report must—

(a) give the name of the witness; and

(b) describe the qualifications to give evidence as an expert.".

(3) In Rule 19.02(3) of the Principal Rules for "statement under paragraph (1)" substitute "statement under sub-rule (1) or a copy of a report

under sub-rule (2.1)".
11. Substitution of Rule 19.03

For Rule 19.03 of the Principal Rules substitute—

"19.03. Making a statement or copy of a report of

other party evidence

A party may put in evidence a statement or a copy of a report served on that party by another party in accordance with Rule 19.02.".

12.  New form of complaint for service out of Australia (Form 5AB) inserted

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000

After Form 5A to the Principal Rules insert—

"RULE 5A.02(2) FORM 5AB

COMPLAINT

(for service out of Australia)

IN THE MAGISTRATES' COURT Court Number

OF VICTORIA AT BETWEEN	A.B.	Plaintiff
and
C.D.	Defendant
OF (ADDRESS)

NATURE OF COMPLAINT (STATE SHORTLY)

STATE THE FACTS AND PARTICULAR PARAGRAPH OF
RULE 5A.01(1) BEING RELIED ON TO SUPPORT SERVICE OUT OF
AUSTRALIA—

AMOUNT OF CLAIM TO THE DEFENDANT TAKE NOTICE that this complaint has been brought against you by the

plaintiff for the claim set out in the pages attached. complaint, to—

IF YOU INTEND TO DEFEND this complaint, YOU MUST GIVE

(a) the plaintiff whose address for service is

and

(b) the registrar of the Magistrates' Court of Victoria at

IF YOU GIVE NOTICE OF DEFENCE THE ADDRESS FOR SERVICE

OF THE DEFENDANT MUST BE IN VICTORIA; and

THE COURT will write to you and tell you of the hearing date.

IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 42 DAYS OF amount of the claim and costs without further notice.

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000 r. 12

IF YOU PAY the amount of $ and costs of $ to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs.

DATE OF FILING:

THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT

NUMBER AND THE DATE OF FILING

[next page]

TO THE PLAINTIFF If your claim arises from a motor vehicle collision, complete Part A.

If your claim does not arise from a motor vehicle collision complete Part B.

If your claim combines Part A and Part B, complete the appropriate parts.

PART A

(CLAIM ARISING FROM A MOTOR VEHICLE COLLISION
INCLUDING PERSONAL INJURY)

WHAT IS THE NATURE OF YOUR CLAIM? (e.g. cost of repairs to motor vehicle; cost of repairs to damaged fence.)

WHERE DID YOUR CLAIM ARISE? [Give the location of any collision, including a Melway reference if possible, and in the space below draw a sketch plan of the collision with names of roads, etc. Identify your vehicle as "1", the vehicle driven by the defendant as "2" and any other vehicles involved as "3", "4", "5", etc.]

WHEN DID YOUR CLAIM ARISE?

HOW DID THE COLLISION HAPPEN? [You must set out here in as much detail as you can how the collision happened and why you believe the defendant is at fault. If the space is insufficient you may attach other sheets.]

HOW MUCH ARE YOU CLAIMING?

Dated: [e.g. 5 September 20 ].

[To be signed by the Plaintiff

or the Plaintiff's Solicitor]

[next page]

PART B

(ANY CLAIM NOT ARISING FROM A MOTOR VEHICLE
COLLISION)
Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 13 S.R. No. 89/2000

WHAT IS THE NATURE OF YOUR CLAIM? (e.g. work done; money owed; goods or services supplied; personal injury other than that arising from a motor vehicle collision; application to fence; injunction.)

WHERE DID YOUR CLAIM ARISE?

WHEN DID YOUR CLAIM ARISE?

PARTICULARS OF THE CLAIM:

[You must set out here in as much detail as you can the substance of your

claim. If the space is insufficient you may add other sheets.]

HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING?
WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING?

Dated: [e.g. 5 September 20 ].

[To be signed by the Plaintiff
or the Plaintiff's Solicitor]".

13.  New form of counterclaim for service out of Australia (Form 7AB)

After Form 7A to the Principal Rules insert—

"RULES 5A.02(2) and 7.02 FORM 7AB

COUNTERCLAIM

(for service out of Australia)

[heading as in Form 4A]

NATURE OF COUNTERCLAIM (STATE SHORTLY)

AMOUNT OF COUNTERCLAIM

TO THE PLAINTIFF—

TAKE NOTICE that this counterclaim has been brought against you by the defendant for the counterclaim set out in the pages attached.

IF YOU INTEND TO DEFEND this counterclaim, YOU MUST GIVE
NOTICE OF DEFENCE, within 42 days of service upon you of this

counterclaim, to—

(a) the defendant whose address for service is—

and

(b) the registrar of the Magistrates' Court at—

Magistrates' Court Civil Procedure (Amendment No. 5)

Rules 2000

S.R. No. 89/2000 r. 13

IF YOU GIVE NOTICE OF DEFENCE THE ADDRESS FOR SERVICE

OF THE DEFENDANT MUST BE IN VICTORIA; and

THE COURT will write to you and tell you of the hearing date.

IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 42 DAYS OF SERVICE, the defendant may OBTAIN AN ORDER AGAINST YOU for the amount of the counterclaim and costs without further notice.

DATE OF FILING—

[next page]

TO THE DEFENDANT—If your counterclaim arises from a motor vehicle collision, complete Part A.

If your counterclaim does not arise from a motor vehicle collision complete
Part B.

If your counterclaim combines Part A and Part B, complete the appropriate parts.

PART A

(COUNTERCLAIM ARISING FROM A MOTOR VEHICLE COLLISION
INCLUDING PERSONAL INJURY)

WHAT IS THE NATURE OF YOUR COUNTERCLAIM? (e.g. cost of repairs to motor vehicle, cost of repairs to damaged fence.)

WHERE DID YOUR CLAIM ARISE? [Give the location of any collision, including a Melway reference if possible, and in the space below draw a sketch plan of the collision with names of roads, etc. Identify your vehicle as "1", the vehicle driven by the plaintiff as "2" and any other vehicles involved as "3", "4", "5", etc.]

WHEN DID YOUR COUNTERCLAIM ARISE?—

HOW DID THE COLLISION HAPPEN?—[You must set out here in as much detail as you can how the collision happened and why you believe the plaintiff is at fault. If the space is insufficient you may attach other sheets.]

HOW MUCH ARE YOU CLAIMING?—

Dated: [e.g. 5 September 20 ].

[To be signed by the Defendant
or the Defendant's Solicitor]

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

r. 14

r. 16 S.R. No. 89/2000

[next page]

PART B

(ANY COUNTERCLAIM NOT ARISING FROM A MOTOR VEHICLE
COLLISION)

WHAT IS THE NATURE OF YOUR COUNTERCLAIM? (e.g. work done; money owed; goods or services supplied; personal injury other than that arising from a motor vehicle collision; application to fence; injunction.)

WHERE DID YOUR COUNTERCLAIM ARISE?—

PARTICULARS OF THE COUNTERCLAIM—

[You must set out here in as much detail as you can the substance of your

counterclaim. If the space is insufficient you may attach other sheets.]

HOW MUCH MONEY (IF ANY) ARE YOU CLAIMING?—
WHAT OTHER RELIEF OR REMEDY (IF ANY) ARE YOU CLAIMING?
Dated: [e.g. 5 September 20 ].

[To be signed by the Defendant or the Defendant's Solicitor]".

14. Heading inserted in Form 10B

In Form 10B to the Principal Rules after "Form

10B" insert—

"APPLICATION FOR AN ORDER FOR COSTS".

15. Amendment to Form 28G

In Form 28G to the Principal Rules for "or the
Court" substitute "or the Court at [time] at

[place]".

16. Amendments to Appendix A

In Appendix A to the Principal Rules—

(a) in Table 1, in item 16—

(i) for "964.00" substitute "1061.00"; and
(ii) for "1061.00" substitute "1326.00";

Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

S.R. No. 89/2000

(b) in item 29(1)(a)(iv), for "50 cents" substitute "55 cents".

Dated: 4 September 2000

MICHAEL ANTHONY ADAMS QC,

Chief Magistrate

BRIAN STIRTEVANT BARROW,

Deputy Chief Magistrate

DANIEL JOHN MULING,

Deputy Chief Magistrate

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Magistrates' Court Civil Procedure (Amendment No. 5)
Rules 2000

Endnotes	S.	R. No. 89/2000
ENDNOTES

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

S.R. No. 46/2000.

2Rule 10: The heading to Rule 19.02 is changed to "Service of statement or

copy of a report of an expert".