Untitled document

Magistrates' Court General Civil Procedure (Forms and Related Amendments) Rules 2015

S.R. No. 3/2015

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Costs to be specified

6Address for service

7Form of complaint and indorsement

8Form 5A substituted

Form 5A—Complaint

9Form 7A substituted

Form 7A—Complaint

10Form 11A substituted

Form 11A—Third Party Notice

11Form 67A amended

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ENDNOTES

STATUTORY RULES 2015

S.R. No. 3/2015

Magistrates' Court Act 1989

Magistrates' Court General Civil Procedure (Forms and Related Amendments) 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 General Civil Procedure Rules 2010—

(a)to make further provision in relation to the effect on a proceeding when a defendant pays the amount indorsed on a complaint before the giving of a notice of defence; and

(b)to require the address for service for a plaintiff suing by an Australian lawyer to be a business address within Victoria; and

(c)to substitute the following Forms—

(i)the Form for a complaint;

(ii)the Form for a complaint to be served outside Australia;

(iii)the Form for a third party notice; and

(d)to make a minor amendment to the form of summons to attend for oral examination.

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 General Civil Procedure Rules 2010[1] are called the Principal Rules.

5Costs to be specified

(1)In Rule 5.09(1) of the Principal Rules, for

"you may avoid further costs" substitute "and the plaintiff accepts the amounts paid as full satisfaction of the claim (including any interest and costs), the proceeding ends on that acceptance".

(2)After Rule 5.09(1) of the Principal Rules insert—

"(1A)If a complaint is indorsed in accordance with paragraph (1), and—

(a)the defendant pays the amounts claimed within the time limited for giving notice of defence; and

(b)the plaintiff accepts the amounts paid as full satisfaction of the claim

(including any interest and costs)—

the proceeding ends on that acceptance.".

(3)In Rule 5.09(2) of the Principal Rules, for

"the indorsement" substitute "an indorsement referred to in paragraph (1)".

(4)Rule 5.09(4) of the Principal Rules is revoked.

6Address for service

In Rule 6.06(1)(a) of the Principal Rules, after "address" (where first occurring) insert "within Victoria".

7Form of complaint and indorsement

In Rule 7.02(1.1) of the Principal Rules, for "indorsement of claim" (where twice occurring) substitute "Statement of Claim".

8Form 5A substituted

For Form 5A of the Principal Rules substitute—

"FORM 5A

Rule 5.02(1)

COMPLAINT

IN THE MAGISTRATES' COURT  Court Number

OF VICTORIA

AT (insert proper venue)

BETWEEN  A.B.  Plaintiff

(full name)

OF

(address)

and

C.D.  Defendant

(full name)

OF

(address of defendant)

1.The address for service of the plaintiff is—(address must be within Victoria if the plaintiff sues in person)

*2.Name and business address within Victoria of the Australian lawyer for the plaintiff—(if the Australian lawyer is acting as agent for another Australian lawyer, state the name and business address of the principal lawyer)

*3.The plaintiff sues (or the defendant is sued) in the following representative capacity (e.g. as administrator of the estate of).

NOTICE TO THE DEFENDANT

If you need an interpreter to help you read this document contact details for most languages are listed at plaintiff's claim against you is set out in the Statement of Claim.

You MUST READ the Statement of Claim.

IF YOU INTEND TO DEFEND this Complaint, YOU MUST GIVE NOTICE OF DEFENCE within 21 days of the day you were served with this Complaint, to—

(a)the plaintiff (at the address for service of the plaintiff as stated above); and

(b)the registrar of the Magistrates' Court of Victoria at (insert proper venue and address).

NOTICE OF DEFENCE must be given in the proper form (Form 8A, 2 copies of which have been served with this Complaint) and you must read and comply with the notes attached to that document. You may attach additional pages, if needed.

IF YOU PAY the Plaintiff within 21 days of service of this Complaint the amount of  $       and the costs of  $       to the plaintiff or to the plaintiff's Australian lawyer without giving notice of defence and the plaintiff accepts that payment in full satisfaction of the claim (including any interest and costs), the proceeding ends on that acceptance.

IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS of service of this Complaint and have not paid the claim and the costs, the plaintiff may, without there being a hearing of this claim by the Court and without giving you any further notice, apply to the Court for an ORDER (JUDGMENT) AGAINST YOU for the amount of the claim and interest and costs AND take steps to enforce the order (judgment) and obtain payment.

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 giving NOTICE OF DEFENCE, 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 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.

STATEMENT OF CLAIM

1.(Here set out in numbered consecutive paragraphs all the material facts relied on for the claim against the defendant including particulars of every fact or matter.

If the claim arises by or under any statute, identify the specific provision relied on.  State specifically the amount or other relief or remedy sought.  State the place where and the date when the claim arose.

If the claim arises out of a motor vehicle collision and the claim includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost of the repairs or an assessment of the loss (whichever is relevant) must be attached to this complaint).

2.(etc.)

DATE OF FILING:

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

Dated: [e.g. 5 September 20     ].

[To be signed by the plaintiff or the plaintiff's Australian lawyer]

* Delete if not applicable.

__________________".

9Form 7A substituted

For Form 7A of the Principal Rules substitute—

"FORM 7A

Rule 7.02(1)

COMPLAINT

(for service out of Australia)

IN THE MAGISTRATES' COURT  Court Number

OF VICTORIA

AT (insert proper venue)

BETWEEN  A.B.  Plaintiff

(full name)

OF

(address)

and

C.D.  Defendant

(full name)

OF

(address of defendant)

Nature of Complaint (state shortly)

The facts and particular paragraph of Rule 7.01(1) being relied on to support service out of Australia are as follows—

NOTICE TO THE DEFENDANT

If you need an interpreter to help you read this document contact details for most languages are listed at plaintiff's claim against you is set out in the Statement of Claim.

You MUST READ the Statement of Claim.

IF YOU INTEND TO DEFEND this Complaint, YOU MUST GIVE NOTICE OF DEFENCE within the *proper time to give that notice to—

(a)the plaintiff (at the address for service of the plaintiff as stated above); and

(b)the registrar of the Magistrates' Court of Victoria at (insert proper venue and address).

NOTICE OF DEFENCE must be given in the proper form (Form 8A, 2 copies of which have been served with this Complaint) and you must read and comply with the notes attached to that document. You may attach additional pages, if needed.

IF YOU PAY the Plaintiff within the *proper time to give notice of defence the amount of  $       and the costs of  $       to the plaintiff or to the plaintiff's Australian lawyer without giving notice of defence and the plaintiff accepts that payment in full satisfaction of the claim (including any interest and costs), the proceeding ends on that acceptance.

IF YOU DO NOT GIVE NOTICE OF DEFENCE within the *proper time to give that notice and have not paid the claim and the costs, the plaintiff may, without there being a hearing of this claim by the Court and without giving you any further notice, apply to the Court for an ORDER (JUDGMENT) AGAINST YOU for the amount of the claim and interest and costs AND take steps to enforce the order (judgment) and obtain payment.

*THE PROPER TIME TO GIVE NOTICE OF DEFENCE is as follows—

(a)where you are served with the Complaint in Papua New Guinea, within 28 days after service;

(b)where you are served with the Complaint in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 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;

(c)where you are served with the Complaint in any other place out of Australia, within 42 days after service.

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 giving NOTICE OF DEFENCE, 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 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.

STATEMENT OF CLAIM

1.(Here set out in numbered consecutive paragraphs all the material facts relied on for the claim against the defendant including particulars of every fact or matter.

If the claim arises by or under any statute, identify the specific provision relied on.  State specifically the amount or other relief or remedy sought.  State the place where and the date when the claim arose.

If the claim arises out of a motor vehicle collision and the claim includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost of the repairs or an assessment of the loss (whichever is relevant) must be attached to this complaint).

2.(etc.)

DATE OF FILING:

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

Dated: [e.g. 5 September 20     ].

[To be signed by the plaintiff or the plaintiff's Australian lawyer]

__________________".

10Form 11A substituted

For Form 11A of the Principal Rules substitute—

"FORM 11A

Rules 11.02, 11.15(4)

THIRD PARTY NOTICE

IN THE MAGISTRATES' COURT  20      No. OF VICTORIA

AT

BETWEEN  A.B.  Plaintiff

and

C.D.  Defendant

and

E.F.  Third Party

To E.F.

of [address]

If you need an interpreter to help you read this document contact details for most languages are listed at NOTICE that—

(a)the plaintiff has brought this proceeding against the defendant for the claim set out in the complaint and statement of claim; and

(b)the defendant disputes the plaintiff's claim on the grounds set out in the defendant's Notice of Defence served herewith, and claims to be entitled to relief against you on the grounds set out in the statement of claim indorsed on this notice.

IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant, or the defendant's claim against you, YOU MUST GIVE NOTICE OF DEFENCE within the *proper time for giving Notice of Defence stated below.

NOTICE OF DEFENCE must be given in the proper form (Form 8A, 2 copies of which have been served with this Notice) and you must read and comply with the notes attached to that document. You may attach additional pages, if needed.

YOU OR YOUR AUSTRALIAN LAWYER may file a Notice of Defence at the above venue of the Court.

IF YOU DO NOT give a Notice of Defence within the *proper time you will be taken to admit the validity of any final order (judgment) against the defendant and your own liability to the defendant to the extent claimed in the statement of claim indorsed on this notice, and the defendant may OBTAIN A FINAL ORDER (JUDGMENT) AGAINST YOU without further notice.

*THE PROPER TIME TO GIVE NOTICE OF DEFENCE is as follows—

(a)where you are served with the notice in Victoria, within 21 days after service;

(b)where you are served with the notice out of Victoria and in another part of Australia, within 21 days after service;

(c)where you are served with the notice in Papua New Guinea, within 28 days after service;

(d)where you are served with the notice in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 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;

(e)where you are served with the notice in any other place, within 42 days after service.

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 dispute the plaintiff's claim against the defendant, or the defendant's claim against you.

If before giving NOTICE OF DEFENCE, 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 defend this claim and do not reach agreement 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.

DATE OF FILING:

THIS THIRD PARTY NOTICE IS VALID IF IT BEARS THE ALLOCATED COURT NUMBER AND THE DATE OF FILING

Dated: [e.g. 5 September 20     ].

[To be signed by the defendant or the defendant's Australian lawyer]

Page 2

STATEMENT OF CLAIM

(Here set out in numbered consecutive paragraphs all the material facts relied on for the claim against the third party including particulars of every fact or matter.

If the claim against the third party arises by or under any Act, identify the specific provision relied on.  State specifically the amount or other relief or remedy sought.  State the place where and the date when the claim arose.

If the claim against the third party arises out of a motor vehicle collision and includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost of the repairs or an assessment of the loss (whichever is relevant) must be attached to this claim).

Page 3

1.   **This notice was filed—

(a)by the defendant in person;

(b)for the defendant by [name of firm of Australian lawyer], Australian lawyer, of [business address within Victoria of Australian lawyer];

(c)for the defendant by [name or firm of Australian lawyer], Australian lawyer, of [business address within Victoria of Australian lawyer] as agent for [name or firm of principal Australian lawyer], Australian lawyer, of [business address of principal].

2.   The address of the defendant is—

3.   The address for service of the defendant is—

4.   The address of the third party is—

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

*    [Strike out this paragraph where order made fixing time for giving notice of defence and substitute "THE PROPER TIME TO GIVE NOTICE OF DEFENCE is within      days after service on you of this notice.]

**  [Complete or strike out as appropriate.]

__________________".

11Form 67A amended

In Form 67A of the Principal Rules, for "are summoned to" substitute "must".

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. 140/2010. Reprint No. 1 as at 11 October 2013.

Reprinted to S.R. No. 89/2013. Subsequently amended by

S.R. Nos 155/2013, 178/2013, 11/2014, 70/2014, 105/2014 and 180/2014.