Magistrates Courts Amendment Rules (No. 2) 1995 (Qld)

Queensland Subordinate Legislation 1995 No. 79 Magistrates Courts Act 1921 MAGISTRATES COURTS AMENDMENT RULES (No. 2) 1995 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 Rules amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Amendment of s 48 (Summons where service out of the State) . . . . . . . . . 2 4 Omission of Pt 5, Div 5 (Time for Appearance) . . . . . . . . . . . . . . . . . . . . . . 4 5 Amendment of s 76 (Entry of appearance and defence) . . . . . . . . . . . . . . . 4 6 Amendment of s 157 (Judgment on summons on default in filing entry of appearance and defence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7 Insertion of new s 194A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 194A Trying of questions in different ways and at different times . . . . . . 5 8 Amendment of Sch 5 (Scale of barristers’ and solicitors’ costs) . . . . . . . . . 5

s1 2 s3 Magistrates Courts Amendment (No. 2) No. 79, 1995 ˙ Short title 1. These rules may be cited as the Magistrates Courts Amendment Rules (No. 2) 1995 . ˙ Rules amended 2. These rules amend the Magistrates Courts Rules 1960 . ˙ Amendment of s 48 (Summons where service out of the State) 3.(1) Section 48(3)— omit. (2) Section 48(4)— omit, insert— ‘ (4) A summons issued under this section in relation to a proceeding may be served on a person outside Australia, without the leave of a Court, if any of the following paragraphs apply— (a) the proceeding is founded on a cause of action arising in Queensland; (b) the subject matter of the proceeding is— (i) property situated in Queensland; or (ii) the perpetuation of testimony relating to property in Queensland; (c) the proceeding is for any relief against a person domiciled or ordinarily resident in Queensland; (d) the proceeding relates to a contract that— (i) was made in Queensland; or (ii) was made by 1 or more parties carrying on business or residing in Queensland; or (iii) was made by or through an agent carrying on business or residing in Queensland on behalf of a principal carrying on business or residing outside Queensland; or

s4 3 s6 Magistrates Courts Amendment (No. 2) No. 79, 1995 (iv) is governed by the law of Queensland; (e) the proceeding is founded on a breach of contract committed in Queensland, regardless of where the contract was made; (f) the proceeding is for the recovery of an amount payable under an Act to a person or body in Queensland; (g) the proceeding is founded on a tort committed in Queensland; (h) the proceeding is for damage that— (i) was suffered in whole or part in Queensland; and (ii) was caused by a tortious act or omission (wherever happening); (i) the proceeding is for a contribution or indemnity for a liability enforceable in a Court; (j) the proceeding is properly brought in Queensland against a person and another person outside Queensland is a necessary or proper party to the proceeding; (k) the subject matter of the proceeding, so far as it concerns the person, is property in Queensland; (l) the proceeding, so far as it concerns the person, falls partly within 1 or more of paragraphs (a) to (k). ‘ (4A) Each paragraph of subsection (4) is to be construed independently of the other paragraphs and the construction of a paragraph is not to be taken to affect the construction of another paragraph.’. (3) Section 48(8)— omit, insert— ‘ (8) In this section— “Australia” includes the external Territories. “Commonwealth Act” means the Service and Execution of Process Act 1992 (Cwlth).’. ˙ Omission of Pt 5, Div 5 (Time for Appearance) 4. Part 5, Division 5—

s4 4 s6 Magistrates Courts Amendment (No. 2) No. 79, 1995 omit. ˙ Amendment of s 76 (Entry of appearance and defence) 5. Section 76(1)— omit, insert— ‘ 76.(1) If a defendant in a proceeding intends to contest the plaintiff’s claim, the defendant must file with the registrar of the Court where the plaint or summons for the proceeding was issued, and deliver to the plaintiff, an entry of appearance and defence— (a) if the proceeeding is an action for a small debt—within 20 clear days of service of the plaint or within another period allowed by the Court in a particular case; or (b) if the proceeding was started by a summons and— (i) the place of service of the summons is in Queensland—within 20 clear days of service of the summons or within another period allowed by the Court in a particular case; or (ii) the place of service of the summons is in another State or a Territory (including an external Territory)—within the period provided under the Service and Execution of Process Act 1992 (Cwlth); or (iii) the place of service of the summons is outside Australia and the external Territories—within 42 clear days of service of the summons or within another period allowed by the Court in a particular case.’. ˙ Amendment of s 157 (Judgment on summons on default in filing entry of appearance and defence) 6. Section 157(1)(a)— omit.

s7 5 s8 Magistrates Courts Amendment (No. 2) No. 79, 1995 ˙ Insertion of new s 194A 7. After section 194— insert— ˙ ‘ Trying of questions in different ways and at different times ‘ 194A.(1) In this section— “question” means a question or issue, whether of fact or law, or partly of fact and partly of law, that arises in a proceeding (whether or not the question or issue is raised by the pleadings or by the agreement of the parties to the proceeding). ‘ (2) A Court may at any time make an order providing for— (a) a question to be tried separately; or (b) when, in relation to the rest of the proceeding, a question that is to be tried separately is to be tried; or (c) how a question that is to be tried separately is to be tried; or (d) where a question that is to be tried separately is to be tried; or (e) the amendment of an order made under this subsection. ‘ (3) An order made under subsection (2)(d) may specify a Court at any place in Queensland. ‘ (4) If a question has been tried separately under this section, a Court may make an order or give a direction that is appropriate, including for example— (a) dismissing the proceeding, or the whole or a part of a claim that is a part of the proceeding; or (b) giving judgment in the proceeding. ‘ (5) However, if an assessment of damages is made, it must be on a final basis for the proceeding.’. ˙ Amendment of Sch 5 (Scale of barristers’ and solicitors’ costs) 8. Schedule 5, Part 1, clause 4(a), ‘or’—

s8 6 Magistrates Courts Amendment (No. 2) omit, insert— ‘to’. s8 No. 79, 1995 ENDNOTES 1. Made by the Governor in Council on 30 March 1995. 2. Notified in the Gazette on 31 March 1995. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Justice and Attorney-General. © State of Queensland 1995