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Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and Forms Amendment) Rules 2015

S.R. No. 4/2015

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Insertion of new Form 9A and relocation of Forms related to Order 9

Form 9A—Complaint

Form 9B—Application for Leave to Defend

Form 9C—Application for Order

Form 9D—Notification of Decision

Form 9E—Application for Leave to Defend after Order Made

6Amendment of costs caps in Appendix AA

7Statute law revision

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ENDNOTES

STATUTORY RULES 2015

S.R. No. 4/2015

Magistrates' Court Act 1989

Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and Forms Amendment) Rules 2015

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—

(a)to increase the caps on the costs that may be awarded in proceedings referred to arbitration; and

(b)to substitute a new Form 9A; and

(c)to make a statute law revision in relation to the order of certain Forms and the headings to certain Forms.

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 1 February 2015.

4Principal Rules

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

5Insertion of new Form 9A and relocation of Forms related to Order 9

After Form 8A of the Principal Rules insert—

"CHAPTER II

RULE 9.03(1) FORM 9A

COMPLAINT

(Instruments Act 1958)

[heading as in Form 3A]

TO THE DEFENDANT

TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this Complaint.

IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by first obtaining the leave of the Court to defend the claim and then giving notice of defence.

IF YOU DO NOT OBTAIN THE LEAVE OF THE COURT TO DEFEND, the plaintiff may OBTAIN AN ORDER (JUDGMENT) AGAINST YOU on the claim without further notice.

THE PROPER TIME FOR OBTAINING LEAVE TO DEFEND is as follows—

(a)where you reside within 80 kilometres of the North East corner of Bourke and Elizabeth Streets, Melbourne, within 16 days of service;

(b)where you reside beyond that distance, within 21 days after service.

IF YOU PAY the amount of the claim, namely $ [amount] and $ [amount] for legal costs to the plaintiff or to the plaintiff's Australian lawyer within the proper time stated above, this proceeding will come to an end.  Notwithstanding the payment you may have the costs fixed by the Court.

APPLICATION FOR LEAVE TO DEFEND must be made within the proper time stated above to the Court at the venue of the Court at which this Complaint was filed.

THE COURT MAY GIVE LEAVE TO DEFEND if you—

(a)pay into Court the amount claimed, namely, $ [amount]; or

(b)file affidavits satisfactory to the Court which disclose—

(i)a defence; or

(ii)such facts as would make it incumbent on the holder to prove consideration; or

(iii)such other facts as the Court considers sufficient to support the application.

DATE OF FILING:

THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING

Particulars of Claim

The Plaintiff claims $ [amount] principal and interest [or $ [amount] balance of principal and interest] due to the payee [indorsee or bearer] of a bill of exchange [promissory note or order for the payment of money] of which the following is a copy.

[Here copy bill and all indorsements on it]

1.This Complaint was filed by—

*the plaintiff in person;

*for the plaintiff by [name of firm of Australian lawyer], Australian lawyer(s), of [business address within Victoria of Australian lawyer].

2.The address of the plaintiff is—

3.The address for service of the plaintiff is—[If the plaintiff sues by an Australian lawyer, the business address within Victoria of the Australian lawyer.  If the plaintiff sues in person, the address in 2.]

4.The address of the defendant is—

IMPORTANT INFORMATION FOR THE DEFENDANT

Interpreters

If you need an interpreter to help you read this document contact details for most languages are listed at and financial advice

The Court's registrars do NOT provide legal or financial advice but may provide some information to you about the actions and processes you must undertake in order to defend this claim.

If before making an APPLICATION TO OBTAIN LEAVE TO DEFEND, you wish to get FREE LEGAL or FINANCIAL ADVICE you may be able to do so from free legal advice services and free financial counselling services.

Those services are not employed by or under the control of the Court and therefore the Court cannot recommend any of them, but contact details for such services together with some practical assistance can be obtained from the Magistrates' Court of Victoria's website at

Your local municipal council may also be able to provide contact details for community services in your area that may be able to assist you.

Payment of Judgment Debt by Instalments

IF YOU DO NOT obtain leave to defend this claim and do not reach agreement with the plaintiff relating to the time for payment after an order (judgment) against you, you may apply to the Court for an order permitting you to pay that order (judgment) by instalments.  The Court will consider your application and advise you of the outcome.

The Court's registrars will be able to provide you with information about the process to apply for an order for payment of the judgment debt by instalments.

* Delete if inapplicable.

__________________

CHAPTER II

RULE 9.04(3) FORM 9B

APPLICATION FOR LEAVE TO DEFEND

(Instruments Act 1958)

[heading as in Form 3A]

THE DEFENDANT APPLIES for leave to defend this claim.

*On [date] the sum of $ [amount] (being the sum claimed in the complaint) was paid into Court by the defendant.

*The affidavit(s) of [names of deponents] setting out the facts upon which the defendant relies in the application are filed herewith.

* Defendant

* Defendant's Australian lawyer

FILED:      [e.g. 5 September, 20    ].

1.This application was filed by—

*the defendant in person;

*for the defendant by [name or firm of Australian lawyer], Australian lawyer(s), of [business address of Australian lawyer].

2.The address of the defendant is—

3.The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address within Victoria of the Australian lawyer.  If the defendant sues in person, the address in 2.]

4.The date of service of the complaint was [date].

* Delete if inapplicable.

__________________

CHAPTER II

RULE 9.05(2) FORM 9C

APPLICATION FOR ORDER

(Instruments Act 1958)

[heading as in Form 3A]

1.     The plaintiff requests that an order be made for $ [amount] plus interest at the rate of [rate]% to the date of the order.

2.     The defendant—

* has not been given leave to defend this complaint within the time provided for in section 5 of the Instruments Act 1958.

* has been given leave to defend this complaint within the time provided for in section 5 of the Instruments Act 1958, but has not given notice of defence to the plaintiff within 21 days after the date on which leave to defend was given.

3.     An affidavit stating the matter in which the complaint was served has

       

been previously filed with the Court.

4.     The plaintiff's costs are—

FILED: [e.g. 5 September, 20       ].

* Plaintiff

* Plaintiff's Australian lawyer

* Delete if inapplicable.

__________________

CHAPTER II

RULE 9.06 FORM 9D

NOTIFICATION OF DECISION

(Instruments Act 1958)

[heading as in Form 3A]

TO THE PLAINTIFF AND TO THE DEFENDANT

APPLICATION FOR LEAVE TO DEFEND was filed on [date] and has been considered by the Court.

The Court orders as follows—

*      Application for leave to defend refused.

*      Application for leave to defend granted upon condition—[set out conditions, if any].

Dated: [e.g. 5 September, 20       ].

Registrar

* Delete if inapplicable.

__________________

CHAPTER II

RULE 9.07(1)(a) FORM 9E

APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE

(Instruments Act 1958)

[heading as in Form 3A]

TO THE PLAINTIFF

THE DEFENDANT did not obtain leave to defend the above complaint and on [date] an order was made against the defendant for $ [amount] with $ [amount] costs.

TAKE NOTICE that the defendant will apply to the Court at [time] on [date] for an order that the order made be set aside and that leave to defend the complaint be granted.

The special circumstances upon which the defendant relies in support of this application are—[set out special circumstances].

FILED: [e.g. 5 September, 20      ].

* Defendant

* Defendant's Australian lawyer

Registrar

1.This application was filed by—

*the defendant in person;

*for the defendant by [name or firm or Australian lawyer], Australian lawyer(s), of [business address within Victoria of Australian lawyer].

2.The address of the defendant is—

3.The address for service of the defendant is—[If the defendant defends by an Australian lawyer, the business address within Victoria of the Australian lawyer.  If the defendant sues in person, the address in 2.]

* Delete if inapplicable.

__________________".

6Amendment of costs caps in Appendix AA

In Appendix AA of the Principal Rules—

(a)in item 1.1(a) and (c), for "$1432" substitute "$1464";

(b)in item 1.1(b) and (d), for "$1544" substitute "$1578";

(c)in item 1.1(e) and (f), for "$1655" substitute "$1691";

(d)in item 1.1(g)—

(i)for "$270" substitute "$276";

(ii)for "$335" substitute "$342";

(iii)for "$403" substitute "$412".

7Statute law revision

(1)Forms 9A to 9E of the Principal Rules located after Form 12L of the Principal Rules are revoked.

(2)In Forms 12A to 12L of the Principal Rules, insert "CHAPTER II" immediately above the heading.

Dated:    20 January 2015

PETER LAURITSEN,

Chief Magistrate

DANIEL JOHN MULING,

Deputy Chief Magistrate

FELICITY ANNE BROUGHTON,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 4: S.R. No. 141/2010 as amended by S.R. Nos 124/2011, 27/2012, 158/2012, 11/2014, 70/2014, 106/2014 and 203/2014.