Magistrates' Court General Civil Procedure and Authentication Amendment Rules 2022 (Vic)

Magistrates' Court General Civil Procedure and Authentication Amendment Rules 2022

S.R. No. 102/2022

table of provisions

Rule  Page

Part 1—Preliminary

1Object

2Authorising provisions

3Commencement

Part 2—Amendment of Magistrates' Court General Civil Procedure Rules 2020

4Definitions

5Commencement of proceedings

6Revocation of Rules 4.08.1, 4.08.2 and 4.08.3

7Other miscellaneous matters

8Filing of certificates

9Revocation of Rule 4.10.2

10Address of parties

11Revocation of Rule 8.04

12When counterclaim allowed

13Filing and service of third party notice

14Time for third party notice

15Plaintiff may apply for order

16Substitution of Rule 21.03

17Registrar may make order or refer to Court

18Substitution of Rule 28.01

19Substitution of Rule 28.01.1

20Substitution of Rule 60.06

21Substitution of Rule 67.02

22Issue of warrant

23Substitution of Rule 68.09

24Form 10A—Counterclaim

25Form 11A—Third party notice

26Revocation of Form 28A

Part 3—Amendment of Magistrates' Court Authentication and Electronic Transmission Rules 2021

27Definitions

28Substitution of Rule 6

29Application of Rules 8 and 9

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Endnotes

statutory rules 2022

S.R. No. 102/2022

Magistrates' Court Act 1989

Magistrates' Court General Civil Procedure and Authentication Amendment Rules 2022

The Chief Magistrate together with one or more Deputy Chief Magistrates jointly make the following Rules:

Part 1—Preliminary

1Object

The object of these Rules is—

(a)to amend the Magistrates' Court General Civil Procedure Rules 2020 and the Magistrates' Court Authentication and Electronic Transmission Rules 2021 to accommodate certain procedural requirements being completed electronically as a consequence of the introduction of a new case management system, CMS, at the Magistrates' Court; and

(b)to amend the Magistrates' Court General Civil Procedure Rules 2020 to make other minor miscellaneous amendments.

2Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.

3Commencement

These Rules come into operation on 3 October 2022.

Part 2—Amendment of Magistrates' Court General Civil Procedure Rules 2020

4Definitions

In Rule 1.13 of the Magistrates' Court General Civil Procedure Rules 2020[1]—

(a)insert the following definitions—

"CMS means the computer system in operation in the Court from time to time which, among other things—

(a)deals with process; and

(b)issues documents; and

(c)stores and retrieves documents and information; 

Example

Process and court orders.

electronic communication has the same meaning as in the Electronic Transactions (Victoria) Act 2000;

file electronically means any of the following—

(a)lodging data or a document into CMS in accordance with the requirements of CMS;

(b)sending a document by electronic communication for—

(i)lodging into CMS in accordance with the requirements of CMS; or

(ii)storing in another computer storage and retrieval system in operation in the Court from time to time;";

(b)the definitions of authorised user and electronic message are revoked.

5Commencement of proceedings

(1)For Rule 4.04(2)(b) of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"(b)filing electronically.".

(2)After Rule 4.04(2) of the Magistrates' Court General Civil Procedure Rules 2020 insert—

"(3)A complaint filed electronically may be processed by CMS.".

6Revocation of Rules 4.08.1, 4.08.2 and 4.08.3

Rules 4.08.1, 4.08.2 and 4.08.3 of the Magistrates' Court General Civil Procedure Rules 2020 are revoked.

7Other miscellaneous matters

In Rule 4.08.4 of the Magistrates' Court General Civil Procedure Rules 2020, paragraphs (2) and (3) are revoked.

8Filing of certificates

For Rule 4.10.1(b) of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"(b)filing electronically.".

9Revocation of Rule 4.10.2

Rule 4.10.2 of the Magistrates' Court General Civil Procedure Rules 2020 is revoked.

10Address of parties

In Rule 5.07(1.1) of the Magistrates' Court General Civil Procedure Rules 2020, for "On the application of the plaintiff, the" substitute "The".

11Revocation of Rule 8.04

Rule 8.04 of the Magistrates' Court General Civil Procedure Rules 2020 is revoked.

12When counterclaim allowed

After Rule 10.02(5) of the Magistrates' Court General Civil Procedure Rules 2020 insert—

"(6)A counterclaim must include an email address for service of the defendant.".

13Filing and service of third party notice

After Rule 11.04(2) of the Magistrates' Court General Civil Procedure Rules 2020 insert—

"(3)A third party notice must include an email address for service of the defendant.".

14Time for third party notice

(1)In Rule 11.05(2) of the Magistrates' Court General Civil Procedure Rules 2020, for "A defendant" substitute "Subject to paragraph (3), a defendant".

(2)After Rule 11.05(2) of the Magistrates' Court General Civil Procedure Rules 2020 insert—

"(3)Except with the leave of the Court, a defendant must not file a third party notice if—

(a)the plaintiff has obtained an order under Part 1 of Order 21; or

(b)the Court has ordered that the defendant's third party notice be struck out.".

15Plaintiff may apply for order

For Rule 21.01(2) of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"(2)An application under paragraph (1) must be in Form 21A.".

16Substitution of Rule 21.03

For Rule 21.03 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"21.03   Application for default judgment processed by CMS

An application under Rule 21.01 that is filed electronically may be processed by CMS for the purpose of enabling the registrar to—

(a)make an order under Rule 21.04(1); or

(b)refer the matter to the Court under Rule 21.04(3) or (4).".

17Registrar may make order or refer to Court

In Rule 21.04(1) and (3) of the Magistrates' Court General Civil Procedure Rules 2020 omit "or Rule 21.03(1)".

18Substitution of Rule 28.01

For Rule 28.01 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"28.01   Filing of documents

Subject to any Court order or any other Rule to the contrary, filing of a document is effected by—

(a)lodging the document with the registrar in the office of the Court at the proper venue of the Court; or

(b)filing electronically.".

19Substitution of Rule 28.01.1

For Rule 28.01.1 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"28.01.1   Counterclaim or third party notice processed by CMS

A counterclaim or third party notice filed electronically may be processed by CMS.".

20Substitution of Rule 60.06

For Rule 60.06 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"60.06   Issue and authentication of process

Process may be issued—

(a)by a person—

(i)signing it; or

(ii)stamping with a signature stamp; or

(b)by CMS with an electronic signature or seal.".

21Substitution of Rule 67.02

For Rule 67.02 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"67.02   Application for examination summons processed by CMS

(1)An application under Rule 67.01(1) that is filed electronically may be processed by CMS. 

(2)An examination summons may be issued by CMS.

(3)An examination summons is valid for all purposes if it bears—

(a)the allocated Court number; and

(b)the name of the principal registrar; and

(c)the date of its issue; and

(d)the hearing venue; and

(e)the date and time for the person named in the summons to be orally examined.".

22Issue of warrant

(1)In Rule 68.04(1) of the Magistrates' Court General Civil Procedure Rules 2020—

(a)omit "other than a warrant referred to in Rule 68.09,";

(b)after paragraph (b)(ii) insert—

"(iia)whether the Act under which the order was made provides for enforcement by distress or does not specify the method of enforcement; and".

(2)For Rule 68.04(2) of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"(2)A warrant referred to in paragraph (1) may be issued—

(a)by being sealed by the registrar with the seal of the Court; or

(b)by CMS with an electronic signature or seal.".

23Substitution of Rule 68.09

For Rule 68.09 of the Magistrates' Court General Civil Procedure Rules 2020 substitute—

"68.09   Request for warrant processed by CMS

(1)A request for a warrant under Rule 68.04 may be processed by CMS if the request for warrant—

(a)is filed electronically; and

(b)is for the issue of a warrant to enforce an order for the payment of money.

(2)A warrant referred to in paragraph (1) may be issued by CMS.

(3)A warrant is valid for all purposes if it bears the name of the principal registrar.".

24Form 10A—Counterclaim

In Form 10A of the Magistrates' Court General Civil Procedure Rules 2020, after—

"IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS OF SERVICE, the defendant may OBTAIN AN ORDER AGAINST YOU for the amount of the counterclaim and costs without further notice."

insert—

"1.The address of the defendant is—

[insert address].

2.The address for service of the defendant is—

[*If the Service and Execution of Process Act 1992 of the Commonwealth applies] The address for service of the defendant within Australia is [insert address].

[*If the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies] The address for service of the defendant in Australia or New Zealand is [insert address].

[*If neither of those Acts applies and the defendant appears in person] The address for service of the defendant within Victoria is [insert address of the defendant within Victoria, not being a post office box].

[*If neither of those Acts applies and the defendant defends by an Australian lawyer] The name or firm and the business address of the Australian lawyer of the defendant is [insert name or firm and business address].

[*If neither of those Acts applies and the Australian lawyer is an agent of another] The name or firm and business address of the principal is [insert name or firm and business address].

3.The email address of the defendant is—

[insert email address].".

25Form 11A—Third party notice

In Form 11A of the Magistrates' Court General Civil Procedure Rules 2020, after—

"4.     The address of the third party is—"

insert—

"5.    The email address of the third party is—".

26Revocation of Form 28A

Form 28A of the Magistrates' Court General Civil Procedure Rules 2020 is revoked.

Part 3—Amendment of Magistrates' Court Authentication and Electronic Transmission Rules 2021

27Definitions

(1)For the heading to Rule 4 of the Magistrates' Court Authentication and Electronic Transmission Rules 2021[2] substitute—

"Definitions".

(2)In Rule 4 of the Magistrates' Court Authentication and Electronic Transmission Rules 2021 insert the following definition—

"CMS has the same meaning as in the Magistrates' Court General Civil Procedure Rules 2020;".

28Substitution of Rule 6

For Rule 6 of the Magistrates' Court Authentication and Electronic Transmission Rules 2021 substitute—

"6   Issue of process

Process may be issued—

(a)by a person—

(i)signing the process; or

(ii)signing the process with an electronic signature; or

(iii)sealing the process with an electronic seal; or

(b)by CMS with an electronic signature or seal.".

29Application of Rules 8 and 9

In Rule 10 of the Magistrates' Court Authentication and Electronic Transmission Rules 2021 omit the example at the foot of that Rule.

Dated: 29 September 2022

LISA HANNAN,

Chief Magistrate

FELICITY BROUGHTON,

Deputy Chief Magistrate

SUSAN WAKELING,

Deputy Chief Magistrate

TIMOTHY D. BOURKE,

Deputy Chief Magistrate

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Endnotes

[1] Rule 4: S.R. No. 112/2020 as amended by S.R. Nos 23/2021, 89/2021, 167/2021 and 54/2022.

[2] Rule 27(1): S.R. No. 52/2021.