Magistrates Court (Minor Cases Procedure) Amendment Rules 2008 (WA)
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U302*
Magistrates Court Act 2004
Amendment Rules 2008.
Magistrates Court (Minor Cases Procedure)
Amendment Rules 2008
Made by Magistrates Court.
1. Citation
These rules are the Magistrates Court (Minor Cases Procedure)
3 June 2008 GOVERNMENT GAZETTE, WA 2139 2. Commencement
These rules come into operation as follows:
(a) rules 1 and 2 - on the day on which these rules are published in the Gazette; (b) the rest of the rules - on 1 September 2008. 3. The rules amended
The amendments in these rules are to the Magistrates Court
(Minor Cases Procedure) Rules 2005.4. Rule 4 amended
Rule 4 is amended by inserting in the appropriate alphabetical position -
"
"the Act" means the Magistrates Court (Civil
Proceedings) Act 2004;
5. Rule 5A renumbered
Rule 5A is renumbered as rule 6A.
6. Rules 7 and 8 replaced
Rules 7 and 8 are repealed and the following rules are inserted instead -
7. How to make a claim that starts a case
(1) If you want to make a claim that starts a case you must
lodge the approved form.(2) Your claim may, but need not, be lodged and served
together with a statement of claim in accordance with
rule 25A.
(3) You must serve your claim as soon as practicable, and
in any event within one year, after the day on which
you lodge it.(4) Unless these rules or an Act says otherwise, your claim
must be served personally on the party you are
claiming against.8. How to make a counterclaim or third party claim
(1) If you want to make a counterclaim or third party claim
you must lodge the approved form.(2) You must lodge your claim together with your
statement of defence referred to in rule 25B.(3) Your claim may, but need not, be lodged and served
together with a statement of claim in accordance with
rule 25A.
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(4) Unless these rules or an Act says otherwise, if your
claim is a third party claim it must be served personally
on the party you are claiming against.7. Rule 9 amended
(1) Rule 9(2) is amended as follows:
(a) by inserting after "lodged" - and served ";
(b) by deleting "rule 10." and inserting instead - 66 rule 25B. ".
(2) Rule 9(4) is repealed. 8. Rules 10A, lOB and 10C inserted
After rule 9 the following rules are inserted -
lOA. If you admit a claim If in a response you admit liability for the whole of the claim and agree to pay the amount claimed, a Registrar may give judgment against you in accordance with that admission.
lOB. If you admit part of a claim (1) If in a response you admit liability for part of a claim
made against you but indicate that you want to defend the rest of the claim, you may offer an amount as full satisfaction for the claim in your response.
(2) The other party may accept your offer by lodging and
serving a notice of acceptance in an approved form
within 14 days after receiving your response.(3) If your offer is accepted, the Registrar may give judgment against you in accordance with your
admission and offer.
10C. You may admit liability but dispute the amount
claimed(1) If in a response—
(a)
you admit liability for the whole of an unliquidated claim; but
(b)
you do not agree to the amount sought by the other party,
you may, in your response, apply to the Court to
determine the amount that should be awarded for the
claim.
3 June 2008 GOVERNMENT GAZETTE, WA 2141 (2) The Registrar must then list the case for a pre-trial conference and notify you and the other parties in writing.
9. Rule 10 replaced
Rule 10 is repealed and the following rule is inserted instead -10. How to accept an offer of settlement
(1) If you have made a claim against a party and that party
has, in its response, offered to settle the whole or part
of your claim, you may accept that offer, or any part of
the offer, by lodging and serving a notice of acceptance
on the party at any time before the case is listed for
pre-trial conference.(2) The notice of acceptance must be in the approved form.
10. Rule 13A inserted
After rule 12 the following rule is inserted -
13A. If someone has made a consumer/trader claim
against ouIf someone has made a consumer/trader claim against you and you want to make -
(a) a counterclaim against that person; or (b) a third party claim against another person, you must lodge it in the approved form within 14 days
after you have received a copy of the claim madeagainst you.
11. Rule 13 replaced
Rule 13 is repealed and the following rule is inserted instead -
13. Registrar to list case for listing conference
(1) A Registrar must, as soon as possible after a
consumer/trader claim is made and the time for making
any related counterclaim or third party claim has
passed, list the case for a listing conference.(2) The Registrar must notify you and the other parties in
writing of the listing conference.
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12. Rule 16 amended
Rule 16(b) is amended as follows:
(a) by inserting after "lodge" - and serve ";
(b) by deleting "rule 10(1)." and inserting instead - 46 rule 25B. ".
13. Rule 17 amended
Rule 17 is amended as follows:
(a) by inserting after "claim" or the relevant part of the claim,
(b) by deleting "$500" in both places where it occurs and " $1000 ".
14. Rule 18 amended
(1) Rule 18(1) is amended by inserting after "claim" - 44 ,or the relevant part of the claim, ".
(2) Rule 18(3) is amended by inserting after "lodged" -
" and served15. Rules 21 and 22 replaced
Rules 21 and 22 are repealed and the following rules are inserted instead -
33
21. Registrar not to give judgment in certain cases
(1) A Registrar must not give default judgment against you under this Part for a failure to lodge and serve a
statement of defence if— (a)
you have lodged an application under the Act section 17 to strike Out the relevant statement of claim; and
(b) your application -
(i) has not been dealt with; or
(ii) has been granted; or
(iii) has been dismissed, but you have lodged a statement of defence within 14 days after the dismissal.
(2) A Registrar must not give default judgment against you under this Part if one year or more has passed since the claim that started the case was served.
3 June 2008 GOVERNMENT GAZETTE, WA 2143 22. Registrar to list application
(1) If the Registrar does not grant the application for
default judgment, the Registrar must refer the matter to
the Court.(2) The Court may determine the application in the
absence of the parties or may list the application for a
hearing in which case the Court must notify you and
the other parties in writing of that hearing at least
28 days before the hearing.
16. Rule 22A renumbered
Rule 22A is renumbered as rule 23A.17. Rule 23 replaced
Rule 23 is repealed and the following rule is inserted instead -
23. Listing a pre-trial conference
(1) A Registrar must list a case for a pre-trial conference
within 14 days after the defendant in your case lodges a response that indicates an intention to defend the claim.
(2) The Registrar must notify you and the other parties in writing of the pre-trial conference.
18. Rule 24 amended
Rule 24(3) is repealed and the following subrule is inserted instead -
M.
(3) Specifically, the Registrar may do any or all of the
following - (a) determine what facts, if any, are agreed by the
parties;
(b) order the parties to -
(i) lodge and serve statements of claim and defence; and
(ii) lodge and serve lists of documents the parties might tender in evidence at the trial in support of their claims or
defences; and
(iii) exchange any other documents or information;
(c) extend the time for making counterclaims or
third party claims (even if the time for making
those claims has passed);
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(d) recommend to the Court that it order you and the other parties to attend before a mediator; (e) list the case for a further pre-trial conference; (f) make any other orders necessary to facilitate settlement or ensure the case is ready for trial. 19. Rules 25A, 25B and 25C inserted
After rule 24 the following rules are inserted -
25A. Lodging a statement of your claim (1) If the Registrar at the pre-trial conference orders you to lodge and serve a statement of claim, you must do so in accordance with this rule.
(2) Unless you lodged and served your statement of claim
with your claim you must lodge and serve your
statement of claim -
(a)
if your claim is not a counterclaim or third party claim, within 14 days after the pre-trial conference; and
(b)
if your claim is a counterclaim or third party claim, within 14 days after you have received a response that indicates an intention to defend the claim.
(3) Your statement of claim must be in an approved form.
(4) Your statement of claim must contain -
(a)
a summary of the facts relevant to your claim; and
(b) what remedy or relief you want.
25B. Lodging a statement of your defence (1)
If the Registrar at the pre-trial conference orders you to lodge and serve a statement of defence, you must do so in accordance with this rule.
(2) Unless you lodged and served your statement of
defence with your response you must lodge and serve
your statement of defence within 14 days after you are
served with the relevant statement of claim.(3) Your statement of defence must be in the approved
form.(4) Your statement of defence must contain -
(a) a summary of the facts relevant to your
defence; and
3 June 2008 GOVERNMENT GAZETTE, WA 2145 (b) the details of anyone who you allege is liable for the claim and the grounds upon which you base that allegation.
25C. List of documents you might tender at trial (1) If the Registrar at the pre-trial conference orders you to lodge and serve a list of any documents that you might tender in evidence at the trial in support of your claim or defence, you must do so in the approved form. (2) You may, at any stage of your case, lodge and serve an amended list of those documents to correct any errors. (3) You must lodge and serve an amended list of those
documents as soon as practicable after you come into
possession, or become aware that you are in
possession, of any further documents that you might
tender in evidence at the trial in support of your claim
or defence.(4) You must have all the documents specified on your list
available at the trial.(5) At the trial you cannot, without the leave of the Court, tender into evidence a document that was not on your list before the trial commenced. 20. Rule 36 amended
Rule 36(1) is amended by deleting "that application may be dealt with in the absence of the respondent to the application." and inserting instead -
"
that application -
(a) is not required to be served on any other party: and (b) may be dealt with in the absence of the parties.
21. Rule 37 amended
Rule 37 is amended by deleting "directions" and inserting instead -
" orders
22. (1) Rule 54 is amended as follows:
Rule 54 amended
(a) by inserting before "If" the subrule designation "(1)"; (b) by deleting ", business or postal" and inserting instead - 46 or business ".
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(2) At the end of rule 54 the following subrule is inserted -
"
(2) The address for service specified on the document is to
be taken to be your address for service under this
Division until -
(a) if your document specifies the address of an agent under rule 56— your agent lodges a notice in the approved form stating that he or she no longer acts for you; or (b) you lodge a notice of change of address under rule 57. 23. Rule 55 amended
(1) Rule 55(1) is amended by deleting", principal place of business
or postal address." and inserting instead -44 or principal place of business. ".
(2) Rule 55(2) is amended by deleting "or postal address". (3) Rule 55(3) is amended by deleting", principal place of business
or postal address." and inserting instead -44 or principal place of business. ".
24. Rule 56 amended
(1) Rule 56(1) is amended by deleting ", your lawyer's postal
address,".(2) Rule 56(2) is amended by deleting ", principal place of business
or postal address." and inserting instead -44 or principal place of business. ".
25. Rule 60 replaced
Rule 60 is repealed and the following rule is inserted instead - 60. Service on a corporation personally
(1) In order to serve a document on a corporation
personally you must hand the document to -
(a)
a person who, on reasonable grounds, is believed to be a director of the corporation who resides in Australia; or
(b) a lawyer who is acting for the corporation.
(2) This rule applies in addition to the Corporations
Act 2001 of the Commonwealth.
3 June 2008 GOVERNMENT GAZETTE, WA 2147 26. Part 11 Division 4 inserted
After rule 61 the following Division is inserted in Part 11 -
Division 4 - Miscellaneous
62A. Applications for substituted service (1) If you cannot serve a document on another party in
accordance with Divisions 1 to 3, you may apply to the that -
(a)
you may serve the party by a substituted form of service; or
(b)
if it is appropriate in the circumstances, you do not have to serve the party.
(2) The application -
(a) is not required to be served on any other party; and (b) may be dealt with in the absence of the parties.
27. Rule 64 amended
Rule 64(2) is repealed and the following subrule is inserted instead -
(2) Subrule (1) does not apply to your application if—
(a) your application is for default judgment against
another part -
(i) for a failure by the other party to lodge a or
(ii) for a failure by the other party to lodge a statement of defence in accordance with rule 10(1); or (iii)
something else, and these rules state that
for a failure by the other party to do the absence of the parties; (b) your application is for something else and -
(i) these rules provide that your application does not need to be served; or
(ii) the Court dealing with your application does not need to be served.
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28. Rule 66 amended
(1) Rule 66(1) is amended by deleting the subrule designation "(1)".
(2) Rule 66(2) and (3) are repealed. 29. Rule 68 amended
Rule 68(2) is repealed and the following subrule is inserted instead - 91
(2) An affidavit may contain statements based on
information received by the person making the
affidavit, and believed by that person to be true, if the
affidavit also contains the sources or grounds of that
information or belief.30. Rules 76A, 76B and 76C inserted
Before rule 76 the following rules are inserted into Part 15 -
76A. If you are making an application under the
Residential Tenancies Act 1987(1) If you are making an application under the Residential
Tenancies Act 1987 you do not have to serve it.(2) Instead, the Court must give a copy of your application
to every other party after you have lodged it.76B. If you want to change venues (1) If you make an application for the proceedings in your case to be conducted at another place in the State -
(a) you are not required to serve the application on
any other party; and
(b)
the Registrar must instead provide a copy of your application to every other party.
(2) Unless the Court orders otherwise, your application
may be dealt with in the absence of the parties.76C. If you want to correct typographical and other
errors(1)
If you make an application to correct a typographical error or other defect, a Registrar may make an order allowing you may make that correction.
(2) Your application - (a) does not have to be served on any other party;
and
(b) may be dealt with in the absence of the parties.
3 June 2008 GOVERNMENT GAZETTE, WA 2149 31. Rule 78 amended
(1) Rule 78 is amended by inserting before "If" the subrule
designation "(1)".(2) At the end of rule 78 the following subrule is inserted - 46
(2) You may make a claim, and conduct a case, against a
partnership in the partnership's name, if any.
,,
Dated: 28 May 2008.
STEVEN HEATH, Chief Magistrate.
E. WOODS, Deputy Chief Magistrate.
R. BAYLY, Magistrate.
M. BOON, Magistrate.
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