Untitled document

Magistrates' Court General Civil Procedure (Amendment No. 2) Rules 2011

S.R. No. 36/2011

TABLE OF PROVISIONS

Rule  Page

PART 1—PRELIMINARY

1Object

2Authorising provisions

3Principal Rules

PART 2—AMENDMENTS RELATING TO FILING AND SERVICE

4Electronic filing of complaints

4.08.1Requirements for filing a complaint by an electronic message

4.08.2Complaints by electronic message to comply with Rules when served

4.08.3Copy of complaint commenced by electronic message to be provided on request

4.08.4Other miscellaneous matters

5Electronic filing of certificates

4.10.1Filing of certificates

4.10.2Copy of certificate filed by electronic message to be provided on request

6Revocation of Rule 4.11

7Service on particular defendants

8Revocation of Form 4C

PART 3—AMENDMENTS RELATING TO DISCONTINUANCE AND WITHDRAWAL

9Withdrawal of notice of defence

10New Rule 25.02.1 inserted

PART 4—AMENDMENTS RELATING TO SUBPOENAS

11Form of subpoena

12Compliance with subpoena

13Disposal of documents and things produced

14Form 42A

15New Form 42B

Form 42B—Notice to addressee and declaration

PART 5—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS

16Form 37AA—freezing order

17Form 37BA—search order

PART 6—OTHER MISCELLANEOUS AMENDMENTS

18New Rule 1.13.1 inserted

1.13.1References to Australian lawyer

19Costs consequences of failure to accept

20Disposal of documents and things produced

21Other party's report as evidence

22Parties must attend a pre-hearing conference

23Form 42AA

24Scale of Costs

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ENDNOTES

STATUTORY RULES 2011

S.R. No. 36/2011

Magistrates' Court Act 1989

Magistrates' Court General Civil Procedure (Amendment No. 2) Rules 2011

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

PART 1—PRELIMINARY

1Object

The object of these Rules is to amend Chapter I of the Rules of the Magistrates' Court—

(a)to prescribe requirements for the electronic filing of complaints and certificates required under the Civil Procedure Act 2010; and

(b)to revoke the Rule and corresponding form for pre-litigation requirements compliance certification as a consequence of amendments made by the Civil Procedure and Legal Profession Amendment Act 2011; and

(c)to provide that a notice or proceeding relating to a small claim may be withdrawn or discontinued without the leave of the Court or the consent of the other parties; and

(d)to further provide for the manner of delivering documents for the purposes of subpoena rules harmonised with like rules in other Australian jurisdictions; and

(e)to provide that the forms of freezing orders and search orders harmonised with like rules in other Australian jurisdictions are consistent with the Evidence Act 2008; and

(f)to provide that a reference to an Australian lawyer includes a reference to a firm of Australian lawyers; and

(g)to make further provision for costs in certain circumstances where an offer of compromise is refused; and

(h)to include a certificate required under the Civil Procedure Act 2010 as a document for which costs and fees may be claimed under item 19 of the Scale of Costs; and

(i)to make other miscellaneous amendments.

2Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.

3Principal Rules

In these Rules, the Magistrates' Court General Civil Procedure Rules 2010[1] are called the Principal Rules.

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PART 2—AMENDMENTS RELATING TO FILING AND SERVICE

4Electronic filing of complaints

After Rule 4.08 of the Principal Rules insert—

"4.08.1   Requirements for filing a complaint by an electronic message

Despite anything to the contrary in these Rules, if a complaint (including a complaint upon a bill of exchange) is filed by lodging an electronic message, the electronic message must specify—

(a)whether or not the complaint is under the Instruments Act 1958; and

(b)the full name of the plaintiff and an address for service of notices and documents upon the plaintiff; and

(c)the name and address of the defendant; and

(d)if the plaintiff sues by an Australian lawyer, the name or firm and business address within Victoria of the Australian lawyer; and

(e)the nature of the claim; and

(f)the place where and the date when the claim arose; and

(g)the amount (if any) claimed and costs claimed; and

(h)the proper venue of the Court.

4.08.2Complaints by electronic message to comply with Rules when served

If a complaint which was filed by the lodgement of an electronic message is to be served on a party, the complaint is served on the party by serving a document that complies with Rule 5.02.

4.08.3Copy of complaint commenced by electronic message to be provided on request

A copy of a complaint which was filed by lodging an electronic message must be retained by or on behalf of the plaintiff and the copy must be provided to the Court at the request of the registrar.

4.08.4Other miscellaneous matters

(1)A complaint is valid for all purposes if it bears the allocated Court number and the date of filing.

(2)Data contained in electronic messages must be stored by the Court in a computer database or other device so as to be capable of being reproduced from that database or device.

(3)The date of filing of a complaint lodged by an electronic message which complies with the Act and the Rules is the date the electronic message is received at the Court.".

5Electronic filing of certificates

After Rule 4.10 of the Principal Rules insert—

4.10.1Filing of certificates"

(1)The Court may require that a certificate under Rule 4.09 or 4.10 be filed.

(2)Filing of a certificate may be effected by—

(a)filing at the office of the Court at the proper venue of the Court; or

(b)an authorised user lodging an electronic message with the Court.

4.10.2Copy of certificate filed by electronic message to be provided on request

A copy of a certificate which was filed by lodging an electronic message must be retained by or on behalf of the party on whose behalf the certificate was filed and the copy must be provided to the Court at the request of the registrar.".

6Revocation of Rule 4.11

Rule 4.11 of the Principal Rules is revoked.

7Service on particular defendants

(1)In Rule 6.04(a)(ii) of the Principal Rules, for "corporation;" substitute "corporation; or".

(2)After Rule 6.04(a)(ii) of the Principal Rules insert—

"(iii)if provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision;".

8Revocation of Form 4C

Form 4C of the Principal Rules is revoked.

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PART 3—AMENDMENTS RELATING TO DISCONTINUANCE AND WITHDRAWAL

9Withdrawal of notice of defence

At the end of Rule 25.01 of the Principal Rules insert—

"(2)Despite paragraph (1), a party who has filed a notice of defence in a proceeding in which the monetary amount sought is less than the amount set out in section 102(1) of the Act may withdraw the notice of defence at any time without the leave of the Court.".

10New Rule 25.02.1 inserted

After Rule 25.02 of the Principal Rules insert—

"25.02.1   Small claims—discontinuance or withdrawal of proceeding or claim

(1)Despite Rule 25.02(1), a plaintiff may discontinue a proceeding in which the monetary relief sought is less than the amount set out in section 102(1) of the Act or withdraw any part of the proceeding at any time without the leave of the Court or the consent of all other parties.

(2)Despite Rule 25.02(2), a defendant may discontinue a counterclaim in which the monetary relief sought is less than the amount set out in section 102(1) of the Act or withdraw any part of the counterclaim at any time without the leave of the Court or the consent of all other parties to the counterclaim.

(3)Despite Rule 25.02(5), a defendant who has joined a third party in relation to a claim in which the monetary relief sought is less than the amount set out in section 102(1) of the Act may discontinue the claim made against the third party by the third party notice or withdraw any part of the claim at any time without the leave of the Court or the consent of the third party.".

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PART 4—AMENDMENTS RELATING TO SUBPOENAS

11Form of subpoena

At the foot of Rule 42.03(9) of the Principal Rules insert—

"Note

See also Rule 42.10(3) regarding notice and declaration in Form 42B to accompany a subpoena to produce dealing with copies and disposal of documents.".

12Compliance with subpoena

After Rule 42.06(5) of the Principal Rules insert—

"(6)Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.

(7)The copy of a document may be—

(a)a photocopy; or

(b)in PDF format on a CD-Rom.".

13Disposal of documents and things produced

After Rule 42.10(2) of the Principal Rules insert—

"(3)The issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 42B.

(4)The addressee must—

(a)complete the notice and declaration referred to in paragraph (3); and

(b)attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.

(5)Subject to paragraph (6), the registrar may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.

(6)The registrar may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

14Form 42A

In the Notes to Form 42A of the Principal Rules, for Note 9 substitute—

"9.    If the subpoena requires you to produce a document, you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

9A.   The copy of a document may be—

(a)    a photocopy; or

(b)    in PDF format on a CD-Rom.".

15New Form 42B

After Form 42A of the Principal Rules insert—

FORM 42B"

Rule 42.10(3)

NOTICE TO ADDRESSEE AND DECLARATION

[heading as in Form 5A]

To: [name of person to whom the subpoena is addressed and who will be the recipient of the subpoena]

of: [address]

You may produce copies of any subpoenaed documents, unless the subpoena specifically requires you to produce originals.  A copy of a document may be—

(a)a photocopy; or

(b)in PDF format on a CD-Rom.

You must complete the declaration below, attach it to the subpoena or a copy of the subpoena and return them with the documents or things you provide to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the registrar may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.

DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

[tick the relevant option below, provide your address as appropriate, sign and date]

£All of the material I am providing to the Court in compliance with the attached subpoena is copies of documents.  I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.

£Some or all of the material I am providing to the Court in compliance with the attached subpoena is an original document.  Once the material is no longer required, all of the material should be returned to me at the following address—

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]

__________________".

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PART 5—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS

16Form 37AA—freezing order

In Form 37AA of the Principal Rules, for paragraph 9 substitute—

"9.(a)    This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.".

17Form 37BA—search order

(1)In Form 37BA of the Principal Rules, for paragraph 21 substitute—

"21.(a)    This paragraph 21 applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 21 also applies if you are a corporation and all persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)   file and serve on each other party a separate affidavit setting out the basis of the objection.".

(2)In Form 37BA of the Principal Rules, for paragraph 24 substitute—

"24.(a)    This paragraph 24 applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 24 also applies if you are a corporation and all persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.".

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PART 6—OTHER MISCELLANEOUS AMENDMENTS

18New Rule 1.13.1 inserted

After Rule 1.13 of the Principal Rules insert—

1.13.1References to Australian lawyer"

In these Rules, a reference to an Australian lawyer includes a reference to a firm of Australian lawyers.".

19Costs consequences of failure to accept

(1)In Rule 26.08(2) of the Principal Rules—

(a)in subparagraph (a), for "subparagraph (c)" substitute "paragraph (2A)";

(b)in subparagraph (b), for "subparagraph (c);" substitute "paragraph (2A).";

(c)subparagraph (c) is revoked.

(2)After Rule 26.08(2) of the Principal Rules insert—

"(2A)For the purposes of paragraph (2)—

(a)in the case of a claim to which any scale in Table 1 of Appendix A other than scale G applies, the party and party costs are to be fixed on the next highest scale in that Table to the scale that, if not for this Rule, would apply;

(b)in the case of a claim to which scale G in Table 1 of Appendix A applies, the party and party costs are to be fixed on that scale as if the costs prescribed by that scale were increased by 20 per cent.".

20Disposal of documents and things produced

In Rule 42.10(1) of the Principal Rules, for "to him" substitute "to the registrar".

21Other party's report as evidence

In Rule 44.04 of the Principal Rules, for "on him" substitute "on that party".

22Parties must attend a pre-hearing conference

(1)In Rule 50.02(11)(c) of the Principal Rules, for "11.05(2)(6)" substitute "11.05(2)(b)".

(2)In Rule 50.02(11)(m) of the Principal Rules, for "12.03, 12.05 and 12.07(1)" substitute "11.03, 11.05 and 11.06(1)".

23Form 42AA

In Form 42AA of the Principal Rules, for "Magistrates' of Victoria" substitute "Magistrates' Court of Victoria".

24Scale of Costs

(1)In the heading preceding item 19 of Appendix A to the Principal Rules, after "Notices," insert "certificates,".

(2)In item 19 of Appendix A to the Principal Rules, after "proceeding)," insert "certificate (including certificates before proceeding),".

(3)In item 29 of Appendix A to the Principal Rules—

(a)for "Rule 10.01" substitute "Rule 21.01";

(b)for "10.04" substitute "21.08".

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Dated:    15 June 2011

IAN L. GRAY,

Chief Magistrate

DANIEL J. MULING,

Deputy Chief Magistrate

JELENA POPOVIC,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 3: S.R. No. 140/2010 as amended by S.R. No. 152/2010.