Magistrates' Court (Miscellaneous Civil Proceedings) (Industrial Division Amendment) Rules 2022 (Vic)
Magistrates' Court (Miscellaneous Civil Proceedings) (Industrial Division Amendment) Rules 2022
S.R. No. 20/2022
TABLE OF PROVISIONS
Rule Page
1Object
2Authorising provisions
3Commencement
4New Order 13 inserted
5New Forms 13A to 13E inserted
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Endnotes
STATUTORY RULES 2022
S.R. No. 20/2022
Magistrates' Court Act 1989
Magistrates' Court (Miscellaneous Civil Proceedings) (Industrial Division Amendment) Rules 2022
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 2020 to make provision in relation to the commencement and conduct of proceedings in the Industrial Division of the Magistrates' Court.
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 11 April 2022.
4New Order 13 inserted
After Order 12 of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020[1] insert—
"Order 13—Proceedings in the Industrial Division
13.01Application of Order
This Order applies to the commencement, hearing and determination of a proceeding in the Industrial Division of the Court.
Note
Rule 1.06 provides that, except so far as is otherwise provided by these Rules or any Act, the Magistrates' Court General Civil Procedure Rules 2020 for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.
13.02Commencement of proceeding—form of complaint
(1)A proceeding in the Industrial Division of the Court may be commenced by a complaint that contains the information set out in Form 13A.
(2)The amount of costs stated in the indorsement on the complaint must be the amount of scale costs applicable to the amount claimed plus the fees (if any) for the filing and service of the complaint.
13.03Response
(1)A response must contain the information set out in Form 13B.
(2)Unless the Court otherwise orders, the time stated in the complaint for the defendant to give a notice of response must be—
(a)where the complaint is to be served in Victoria, not less than 14 days after service; or
(b)where the complaint is to be served out of Victoria and in another part of Australia, not less than 14 days after service; or
(c)where the complaint is to be served in Papua New Guinea, not less than 28 days after service; or
(d)where the complaint is to be served in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed.
13.04Plaintiff may apply for order
(1)If a defendant does not give notice of a response in accordance with Rule 13.03 after the service of a complaint or within any other time fixed by the Court for giving notice, the plaintiff may apply for an order.
(2)An application under paragraph (1) must—
(a)contain the information set out in Form 13C; and
(b)be accompanied by an affidavit in support which must contain the information set out in Form 13D.
13.05No counterclaim, third party claim, joinder, pleadings, discovery etc.
Unless the Court otherwise orders, no party in a proceeding in the Industrial Division of the Court may—
(a)file and serve any counterclaim; or
(b)file and serve any reply; or
(c)file and serve a request for further and better particulars of claim, counterclaim or defence; or
(d)serve a notice to admit any fact or the authenticity of any document; or
(e)serve a notice for discovery; or
(f)serve interrogatories; or
(g)serve an expert witness statement.
13.06Hearing readiness certificate
(1)A hearing readiness certificate must—
(a)contain the information set out in Form 13E; and
(b)be completed by all parties to the proceeding in the manner indicated in the form before it is filed.
(2)Except with the leave of the Court, a hearing readiness certificate must not be filed unless it states that the parties are ready to proceed to hearing with not less than 14 days' notice of the date of hearing.
13.07Failure to complete hearing readiness certificate
(1)If a party to a proceeding in the Industrial Division of the Court refuses or neglects to complete a hearing readiness certificate, any other party may apply to the Court for an order that the proceeding proceed to hearing.
(2)On an application referred to in paragraph (1), the Court may, by order, set down for hearing the proceeding with such directions as it thinks fit.".
5New Forms 13A to 13E inserted
After Form 12L of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020 insert—
'Form 13A—Complaint
Rule 13.02(1)
COMPLAINT
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA AT MELBOURNE
INDUSTRIAL DIVISION
BETWEEN A.B. Plaintiff
[full name]
OF
[address]
and
C.D. Defendant
[full name]
OF
[address of defendant]
TO THE DEFENDANT
TAKE NOTICE that this COMPLAINT has been brought against you on the basis set out in the pages attached.
If you intend to defend this complaint you must complete a response within 14 days after service on you of this complaint and give it to—
(a)the plaintiff whose address for service is set out in this Form;
AND
(b)the Registrar of the Magistrates' Court of Victoria at Melbourne.
You should have received a blank copy of the response when served with this complaint.
If you have a claim against the plaintiff, you may counterclaim against the plaintiff in the proceeding with leave of the Court. If you intend to counterclaim you must give notice of intention to counterclaim in the response form.
If you submit a response the Court will write to you and tell you the date you need to attend a pre-hearing conference.
IF YOU WANT TO DEFEND THE COMPLAINT but fail to submit a response within 14 days after service on you of the complaint the plaintiff may be able to obtain an order against you for the amount claimed together with costs without further notice to you.
IF YOU DO NOT WANT TO DEFEND THE COMPLAINT but you pay the amount of $ (insert amount) and costs of $ (insert amount) to the plaintiff, plaintiff's Australian lawyer or other named representative within 14 days of service on you of the complaint you may avoid further costs.
Section 570 of the Fair Work Act 2009 of the Commonwealth makes allowances for a costs order to be awarded in limited circumstances.
PLAINTIFF DETAILS
Name:
Date of Birth: (only provide date of birth if under 21 years of age)
Address:
Address for service of court documents: (if different from above)
Phone: (telephone during business hours)
Mobile:
Email address:
If the plaintiff is an organisation:
Name:
Trading as:
ABN: (if an individual business)
ACN: (if a company)
Address:
Phone: (telephone during business hours)
Email address:
PLAINTIFF REPRESENTATIVE DETAILS
Who is representing you?
Union
Australian lawyer
Other
Name of representative:
Representative contact person details:
Name:
Address:
Phone: (telephone during business hours)
Mobile:
Email address:
DEFENDANT DETAILS
You may sue the defendant in ONE of the following capacities. Please provide details for ONE applicable option below:
Individual
Individual business
Company
Name:
Trading as:
ABN: (only if complaint is against a defendant that is an individual business)
ACN: (only if complaint is against a defendant that is a company)
Address:
Email address:
If the complaint is against a company, the address is the company's registered office (as per ASIC search).
PLAINTIFF EMPLOYMENT DETAILS
Job title:
Date employment commenced:
Are you still employed by the defendant?
Yes
No
Date employment ended:
NATURE OF EMPLOYMENT
On what basis are or were you employed?
Full time
Part time
Casual
Fixed term
Seasonal
Outworker
Do or did you work regular hours?
Yes
If Yes, please indicate your start and finish times in the table below
No
If No, how many hours per week did you work? (provide average or range)
| Day | Start time | Finish time |
| Monday | a.m./p.m. | a.m./p.m. |
| Tuesday | a.m./p.m. | a.m./p.m. |
| Wednesday | a.m./p.m. | a.m./p.m. |
| Thursday | a.m./p.m. | a.m./p.m. |
| Friday | a.m./p.m. | a.m./p.m. |
| Saturday | a.m./p.m. | a.m./p.m. |
| Sunday | a.m./p.m. | a.m./p.m. |
What is your applicable Modern Award or Enterprise Agreement?
What is your classification level under the applicable Modern Award or Enterprise Agreement?
Do you have a written contract of employment?
Yes
No
COMPLAINT TYPE
The claim is made because the defendant has breached (select each one that applies):
A term of an award (specify name of award)
A term of an Enterprise Agreement (or transitional agreement) (specify name of agreement)
A term of an Australian Workplace Agreement (specify the relevant terms)
A term of the National Employment Standards (specify the relevant terms)
A term of an order of the Fair Work Commission (specify the term of the order)
The Fair Work Act 2009 of the Commonwealth (specify relevant section)
The Fair Work Regulations 2009 of the Commonwealth (specify relevant regulation)
The Long Service Leave Act 2018
The Occupational Health and Safety Act 2004
The Outworkers (Improved Protection) Act 2003
The Public Holidays Act 1993
The Workplace Injury Rehabilitation and Compensation Act 2013
Other (specify)
BREACHES
Please indicate which of the following are applicable and the amounts you are claiming (select each one that applies):
Failure to pay wages: $
Failure to pay commission: $
Failure to pay entitlements (e.g. sick leave, annual leave
or carers leave): $
Failure to pay penalty rates: $
Failure to pay allowances: $
Failure to pay National Employment Standards (NES)
or termination of employment: $
Unauthorised deduction from wages: $
Other: (specify) $
Total of all breaches: $
NATURE OF BREACHES
Briefly describe each breach you have selected above. Be clear and include enough information to enable the defendant to understand the claim. If claiming money, you must include details of each amount claimed (attach further sheets if you require more space).
ORDERS SOUGHT
The plaintiff seeks orders that the defendant do either or both of the following:
Pay monies in the sum of the breaches claimed: $(insert amount)
Impose a penalty (this is not available if the small claims pocedure under the Fair Work Act 2009 of the Commonwealth is elected)
Yes
No
Do something else (please specify).
SMALL CLAIMS PROCEDURE
Please note if your complaint is brought under the Fair Work Act 2009 of the Commonwealth and the total amount sought is $20 000 or less your matter can, if you elect, be heard as a small claim and simplified procedures will apply.
I elect to have this matter heard as a small claim under section 548 of the Fair Work Act 2009 of the Commonwealth.
The small claims procedure does not allow a party to be represented by a legal practitioner unless the Court grants permission.
Do you intend to seek to be represented?
Yes
No
If you intend to seek leave to be represented, please provide the representative details in the "Plaintiff Representative Details" section above.
Signed by the plaintiff or plaintiff's representative
Name:
Date:
Form 13B—Response
Rule 13.03(1)
RESPONSE
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA AT MELBOURNE
INDUSTRIAL DIVISION
BETWEEN A.B. Plaintiff
[full name]
OF
[address]
and
C.D. Defendant
[full name]
OF
[address of defendant]
TO THE PLAINTIFF
AND
TO THE REGISTRAR OF THE MAGISTRATES' COURT AT MELBOURNE
TAKE NOTICE that the defendant's response to a claim made by the plaintiff is attached.
RESPONSE TO A CLAIM MADE BY THE PLAINTIFF
DEFENDANT DETAILS
Is the defendant correctly identified in the complaint?
Yes (Go to "Contact person details")
No (Go to next question)
What is the correct name?
Registered office or trading address:
Contact person details:
Name:
Position:
Address:
Phone:
Email address:
REPRESENTATIVE DETAILS
Is anyone representing the defendant?
Yes (Go to next question)
No (Go to next section)
Who is representing the defendant?
Australian lawyer
Other
Name of representative:
Representative contact person details:
Name:
Address:
Phone:
Email address:
ADDRESS FOR SERVICE
Court documents and notice to the defendant must be sent to:
Defendant directly
Defendant's representative
INDUSTRIAL INSTRUMENT
Does the defendant agree that the award, agreement or order (if any) referred to in the complaint is correct?
Yes
No
If No, state the award, agreement, Australian workplace agreement or other order under which the plaintiff is or was employed:
RESPONSE TO CLAIM
The defendant opposes each of the following claims made in the complaint (tick as appropriate and attach further sheets if necessary):
Wages: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Commission: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Leave entitlements: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Penalty rates: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Allowances: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Notice of termination: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Unauthorised deduction from wages: $
This element of the claim is:
admitted
not admitted
denied for the following reasons:
Response to any other alleged breach:
This element of the claim is:
admitted
not admitted
denied for the following reasons:
NOTICE OF INTENTION TO COUNTERCLAIM BY DEFENDANT
The defendant may counterclaim against the plaintiff in the proceeding only with leave of the Court. This section is to be completed if the defendant intends to make a counterclaim against the plaintiff in the proceeding.
The defendant intends to make a counterclaim against the plaintiff as follows (provide details of the nature of the breaches, applicable legislation if known, and any amounts claimed):
SMALL CLAIMS PROCEDURE
Only applicable if the matter is a small claim under the Fair Work Act 2009 of the Commonwealth.
The small claims procedure does not allow a party to be represented by a legal practitioner unless the Court grants permission.
Do you intend to seek to be represented?
Yes
No
If you intend to seek leave to be represented, please provide the representative details in the "Representative Details" section above.
Signed by the defendant or defendant's representative:
Name:
Date:
Form 13C—Application for Order in default under Rule 13.04
Rule 13.04(2)(a)
APPLICATION FOR ORDER IN DEFAULT UNDER RULE 13.04
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA AT MELBOURNE
INDUSTRIAL DIVISION
BETWEEN A.B. Plaintiff
[full name]
OF
[address]
and
C.D. Defendant
[full name]
OF
[address of defendant]
1.The plaintiff applies for an order for the claim with interest and costs, to the date of this application, shown below.
2.The defendant has not provided a response Form 13B within 14 days after service of the plaintiff's complaint.
3.An "affidavit/*declaration of service'' of the complaint and an 'affidavit in support' has been filed with the Court.
4.A "proper basis certification" and an "overarching obligations certification" has been filed with the Court.
5.An ASIC search has been filed with the Court confirming that the complaint has been served at the registered address of the company (if this claim is against a company).
6.Details of the order sought are set out below.
CLAIM
Claim amount: $
Less amounts paid since claim: $
Total: $
INTEREST
Note: Interest can be calculated from the date the Court issued your complaint to the date you make this application.
Date of issue of complaint: $
Date of this application: $
[ ] days at applicable interest rate.
Total interest claimed: $
COSTS
Fee on complaint: $
Fee on this application: $
ASIC search fee: $
The following fees can be claimed if a process server has served your complaint:
Service fee:$
Attempted service fee: $
Distance fee: $
The following fees can only be claimed by your legal representative:
Professional costs: $
Necessary affidavits: (specify) $
Other: (specify) $
Total costs claimed: $
Total amount being claimed: $
Date:
Signature of plaintiff
*Delete if inapplicable
Form 13D—Affidavit in support
Rule 13.04(2)(b)
AFFIDAVIT IN SUPPORT
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA AT MELBOURNE
INDUSTRIAL DIVISION
BETWEEN A.B. Plaintiff
[full name]
OF
[address]
and
C.D. Defendant
[full name]
OF
[address of defendant]
I (insert name of plaintiff and occupation) of (insert address) *make oath and say/*affirm and say—
1.A complaint Form 13A has been served on the defendant.
2.An 'affidavit/declaration of service' has been filed with the Court.
3.I have not received a response Form 13B from the defendant at the date of swearing or affirming this affidavit.
4.The amount of $ (insert amount) remains outstanding.
5.Nil or $ (insert amount) has been paid since filing and service of the complaint.
The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.
*Sworn/*Affirmed at [insert place]:
in the State of Victoria on [date]:
(signed by the plaintiff)
Before:
(signature)
(Name, capacity and address in legible writing or typed or stamped)
Authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.
*Delete if inapplicable
Form 13E—Hearing readiness certificate
Rule 13.06(1)(a)
HEARING READINESS CERTIFICATE
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA AT MELBOURNE
INDUSTRIAL DIVISION
BETWEEN A.B. Plaintiff
[full name]
OF
[address]
and
C.D. Defendant
[full name]
OF
[address of defendant]
HEARING COUNSEL
Plaintiff:
Defendant:
Third party:
INSTRUCTING LAWYERS
Plaintiff:
Defendant:
Third party:
HEARING ESTIMATE
What is the agreed hearing estimate? (insert number of days)
Is there any pre-hearing legal argument required?
Yes
No
What is the pre-hearing legal argument duration?
(insert text)
What is the nature of the legal argument?
(insert text)
PRIORITY LISTING FACTORS
Are there any priority listing factors that apply to this matter?
Yes
No
If Yes, which priority listing factors apply:
Previously "not-reached"
Other (please provide details)
RESOLUTION DISCUSSIONS
Have all reasonable efforts been made to seek resolution in this proceeding?
Yes
No
DISCOVERY
Are there any outstanding matters concerning discovery?
Yes
No
If Yes, provide details of the material or issues outstanding.
SUBPOENAS
Are there any documents that are to be produced at the trial that will need to be the subject of a subpoena?
Yes
No
If Yes, which documents will need to be the subject of a subpoena?
HEARING
Has the Court Book (or list of documents) been filed?
Yes
No
Are there witness availability issues?
Yes
No
If Yes, specify witness, unavailable dates and reason for unavailability. Plaintiff expert witnesses.
Does the plaintiff propose to call any expert witness?
Yes
No
Has the plaintiff filed and served expert witness statements?
Yes
No
Still to be filed
Name of expert witness or names of expert witnesses:
Defendant expert witnesses
Does the defendant propose to call any expert witness?
Yes
No
Has the defendant filed and served expert witness statements?
Yes
No
Still to be filed
Name of expert witness or names of expert witnesses:
Third party expert witnesses
Does the third party propose to call any expert witness:
Yes
No
Has the third party filed and served expert witness statements?
Yes
No
Still to be filed
Name of expert witness or names of expert witnesses:
INTERPRETERS
Plaintiff interpreters
Does the plaintiff require an interpreter?
Yes
No
If Yes, which language is to be interpreted:
Defendant interpreters
Does the defendant require an interpreter?
Yes
No
If Yes, which language is to be interpreted:
Third party interpreters
Does the third party require an interpreter?
Yes
No
If Yes, which language is to be interpreted:
Signed by:
ENDORSEMENT
Plaintiff endorsement
The hearing is ready to proceed on 14 days' notice of a hearing date.
Yes
No
Name of plaintiff's Australian lawyer/*self-represented litigant:
Dated:
Defendant endorsement
The hearing is ready to proceed on 14 days' notice of a hearing date.
Yes
No
Name of defendant's Australian lawyer/*self-represented litigant:
Dated:
Third party endorsement
The hearing is ready to proceed on 14 days' notice of a hearing date.
Yes
No
Name of third party's Australian lawyer/*self-represented litigant:
Dated:
*Delete if inapplicable'.
Dated: 8 April 2022
LISA HANNAN,
Chief MagistrateFELICITY BROUGHTON,
Deputy Chief MagistrateSUSAN WAKELING,
Deputy Chief Magistrate
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Endnotes
[1] Rule 4: S.R. No. 113/2020 as amended by S.R. Nos 23/2021, 89/2021, 143/2021 and 167/2021.
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