Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs Amendment) Rules 2019 (Vic)

Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs Amendment) Rules 2019

S.R. No. 81/2019

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Rule 2.01A inserted

6New Rule 2.07A inserted

7Rule 2.08 substituted and new Rules 2.09 to 2.11 inserted

8Appendix AA substituted and new Appendices AB and AC inserted

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Endnotes

STATUTORY RULES 2019

S.R. No. 81/2019

Magistrates' Court Act 1989

Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs Amendment) Rules 2019

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

1Object

The object of these Rules is to amend the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 to provide for the making of offers of compromise in respect of proceedings which have been referred to arbitration in accordance with Division 2 of Part 5 of the Magistrates' Court Act 1989.

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 16 September 2019.

4Principal Rules

In these Rules, the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010[1] are called the Principal Rules.

5New Rule 2.01A inserted

After Rule 2.01 of the Principal Rules insert—

"2.01A   Definitions

In this Order—

Cap A means—

(a)if the arbitration does not exceed 2 hours—

(i)$1586; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $1586 and $300; and

(b)if the arbitration exceeds 2 hours—

(i)$2379; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $2379 and $300;

Cap B means—

(a)if the arbitration does not exceed 2 hours—

(i)$1710; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $1710 and $371; and

(b)if the arbitration exceeds 2 hours—

(i)$2565; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $2565 and $371;

Cap C means—

(a)if the arbitration does not exceed 2 hours—

(i)$1833; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $1833 and $446; and

(b)if the arbitration exceeds 2 hours—

(i)$2750; or

(ii)if a complaint has been the subject of a pre-hearing conference—the sum of $2750 and $446.".

6New Rule 2.07A inserted

After Rule 2.07 of the Principal Rules insert—

"2.07A   Offers of compromise

Rule 26.08 of Chapter I of the Rules of the Magistrates' Court does not apply in respect of a proceeding referred to arbitration.

Note

Under Rule 1.06, the remainder of Order 26 of Chapter I of the Rules of the Magistrates' Court applies so far as practicable in relation to a proceeding referred to arbitration.".

7Rule 2.08 substituted and new Rules 2.09 to 2.11 inserted

For Rule 2.08 of the Principal Rules substitute—

"2.08   Costs in respect of an arbitration if no offer of compromise served

(1)This Rule applies if no offer of compromise is served in a proceeding referred to arbitration.

(2)For the purposes of section 105(2) of the Act, the Court may award, to a party in the proceeding, costs in respect of the arbitration in accordance with Appendix AA.

2.09Costs in respect of an arbitration if offer of compromise served by plaintiff in the proceeding

(1)This Rule applies if a plaintiff in a proceeding referred to arbitration—

(a)serves an offer of compromise on a defendant in the proceeding that is not accepted by the defendant; and

(b)is awarded an amount in the arbitration that is no less favourable than that stated in the offer of compromise.

(2)For the purposes of section 105(2) of the Act, the Court may award to the plaintiff costs in respect of the arbitration (which the defendant must pay to the plaintiff) in accordance with Appendix AB.

2.10Costs in respect of an arbitration if offer of compromise served by defendant in the proceeding

(1)This Rule applies if a defendant in a proceeding referred to arbitration—

(a)serves an offer of compromise on the plaintiff in the proceeding that is not accepted by the plaintiff; and

(b)the plaintiff is awarded an amount in the arbitration that is less favourable than that stated in the offer of compromise.

(2)For the purposes of section 105(1) and (2) of the Act, the Court may award costs in respect of the arbitration as follows—

(a)to the defendant (which the plaintiff must pay to the defendant) in accordance with Appendix AC;

(b)to the plaintiff (which the defendant must pay to the plaintiff) in accordance with Appendix AC.

2.11Disbursements

In addition to the costs that may be awarded under Rule 2.08, 2.09 and 2.10, the Court may award to a party in the proceeding money properly paid or payable out of pocket and the expenses of witnesses and interpreters.".

8Appendix AA substituted and new Appendices AB and AC inserted

For Appendix AA of the Principal Rules substitute—

"APPENDIX AA

Rule 2.08

PROFESSIONAL COSTS IN RESPECT OF AN ARBITRATION WHERE NO OFFER OF COMPROMISE MADE

Part A—Professional costs

1.1The Court may award a party to a proceeding referred to arbitration costs for all professional costs incurred in the proceeding (including Australian lawyers' costs and fees to counsel) in accordance with the following Table—

Table

Item	If any of the following things occur...	The amount of costs that may be awarded is not more than...
1	If the amount awarded in arbitration is $500 or more but does not exceed $3000	If the arbitration does not exceed 2 hours—$1586 If the arbitration exceeds 2 hours—$2379
2	If the amount awarded in arbitration exceeds $3000 but is less than $5000	If the arbitration does not exceed 2 hours—$1710 If the arbitration exceeds 2 hours—$2565
3	If the amount awarded in arbitration is $5000 or more but is less than $10 000	If the arbitration does not exceed 2 hours—$1833 If the arbitration exceeds 2 hours—$2750
4	If a party is awarded costs only and the amount claimed in the complaint is $500 or more but does not exceed $3000	If the arbitration does not exceed 2 hours—$1586 If the arbitration exceeds 2 hours—$2379
5	If a party is awarded costs only and the amount claimed in the complaint is $3000 or more but does not exceed $5000	If the arbitration does not exceed 2 hours—$1710 If the arbitration exceeds 2 hours—$2565
6	If a party is awarded costs only and the amount claimed in the complaint exceeds $5000 but is less than $10 000	If the arbitration does not exceed 2 hours—$1833 If the arbitration exceeds 2 hours—$2750

Part B—Additional amounts of professional costs—pre‑hearing conferences and mediations

1.2In addition to the amounts that may be awarded under clause 1.1, if a complaint has been the subject of a pre-hearing conference under section 107 of the Magistrates' Court Act 1989 or a mediation under section 108 of the Magistrates' Court Act 1989, the Court may award a party to a proceeding referred to arbitration the following amounts—

(a)$300, if item 1 or 4 of the Table to clause 1.1 applies;

(b)$371, if item 2 or 5 of the Table to clause 1.1 applies;

(c)$446, if item 3 or 6 of the Table to clause 1.1 applies.

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APPENDIX AB

Rule 2.09

PROFESSIONAL COSTS TO BE AWARDED TO PLAINTIFF WHERE DEFENDANT DOES NOT ACCEPT OFFER OF COMPROMISE

Table

Item	Amount of award	If offer of compromise was served within 21 days after notice of defence given	If offer of compromise was served within 21 days before pre-hearing conference	If offer of compromise was served within 14 days before arbitration
1	$500 or more but does not exceed $3000	Cap A plus 75% of Cap A	Cap A plus 50% of Cap A	Cap A plus 25% of Cap A
2	$3001 or more but less than $5000	Cap B plus 75% of Cap B	Cap B plus 50% of Cap B	Cap B plus 25% of Cap B
3	$5000 or more but less than $10000	Cap C plus 75% of Cap C	Cap C plus 50% of Cap C	Cap C plus 25% of Cap C

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APPENDIX AC

Rule 2.10

PROFESSIONAL COSTS TO BE AWARDED WHERE PLAINTIFF DOES NOT ACCEPT OFFER OF COMPROMISE

Table

Item	Amount of award	If offer of compromise was served within 21 days after notice of defence given	If offer of compromise was served within 21 days before pre-hearing conference	If offer of compromise was served within 14 days before arbitration
1	Nil and no other relief granted	Plaintiff pays— Cap A plus 75% of Cap A	Plaintiff pays— Cap A plus 50% of Cap A	Plaintiff pays— Cap A plus 25% of Cap A
2	$1 or more but less than $500	Plaintiff pays— 80% of Cap A (the base amount) plus 75% of the base amount	Plaintiff pays— 60% of Cap A (the base amount) plus 50% of the base amount	Plaintiff pays— 30% of Cap A (the base amount) plus 25% of the base amount
3	$500 or more but does not exceed $3000	Plaintiff pays— 80% of Cap A (the base amount) plus 75% of the base amount Defendant pays— 20% of Cap A	Plaintiff pays— 60% of Cap A (the base amount) plus 50% of the base amount Defendant pays— 40% of Cap A	Plaintiff pays— 30% of Cap A (the base amount) plus 25% of the base amount Defendant pays— 70% of Cap A
4	$3001 or more but less than $5000	Plaintiff pays— 80% of Cap B (the base amount) plus 75% of the base amount Defendant pays— 20% of Cap B	Plaintiff pays— 60% of Cap B (the base amount) plus 50% of the base amount Defendant pays— 40% of Cap B	Plaintiff pays— 30% of Cap B (the base amount) plus 25% of the base amount Defendant pays— 70% of Cap B
5.	$5000 or more but less than $10000	Plaintiff pays— 80% of Cap C (the base amount) plus 75% of the base amount Defendant pays— 20% of Cap C	Plaintiff pays— 60% of Cap C (the base amount) plus 50% of the base amount Defendant pays— 40% of Cap C	Plaintiff pays— 30% of Cap C (the base amount) plus 25% of the base amount Defendant pays— 70% of Cap C

__________________".

Dated: 12 September 2019

PETER LAURITSEN,

Chief Magistrate

LANCE MARTIN,

Deputy Chief Magistrate

FELICITY BROUGHTON,

Deputy Chief Magistrate

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Endnotes

[1] Rule 4: S.R. No. 141/2010. Reprint No. 1 as at 1 February 2015. Reprinted to S.R. No. 4/2015. Subsequently amended by S.R. Nos 163/2015 137/2016, 128/2017 and 167/2018.