Untitled document

Magistrates' Court Civil Procedure (Amendment No. 12) Rules 2005

S.R. No. 5/2005

TABLE OF PROVISIONS

Rule  Page

1.Object

2.Authorising provisions

3.Commencement

4.Principal Rules

5.Defendant may apply for costs order

6.Substitution of Rule 22.01

22.01Parties must attend a pre-hearing conference

7.Appeal from registrar

8.Amendments to Appendix A

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ENDNOTES

STATUTORY RULES 2005

S.R. No. 5/2005

Magistrates' Court Act 1989

Magistrates' Court Civil Procedure (Amendment No. 12) Rules 2005

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

1.Object

The object of these Rules is make miscellaneous amendments to the Principal Rules.

2.Authorising provisions

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

3.Commencement

These Rules come into operation on 1 March 2005.

4.Principal Rules

In these Rules the Magistrates' Court Civil Procedure Rules 1999[1] are called the Principal Rules.

5.Defendant may apply for costs order

In Rule 10.04(1) of the Principal Rules, after "Rule 22.02(2)(a)," insert "Rule 22A.04(1)(a),".

6.Substitution of Rule 22.01

(1)For Rule 22.01 of the Principal Rules substitute—

"22.01Parties must attend a pre-hearing conference

(1)For the avoidance of any doubt, in this Rule a complaint includes a claim by counterclaim and a claim by third party notice, and a notice of defence includes a notice of defence to a counterclaim and a notice of defence to a claim by third party notice.

(2)If a proceeding or any part of a proceeding is referred to a pre-hearing conference, all parties must attend the pre-hearing conference—

(a)personally; and

(b)if a party has appointed a legal practitioner or other person empowered by law to appear for the party, together with that legal practitioner or other person.

(3)If a party referred to in sub-rule (2) is a corporation—

(a)a legal practitioner; and

(b)a person in the exclusive employment of the corporation who is authorised in writing to attend the pre-hearing conference on behalf of the corporation—

must attend the pre-hearing conference.

(4)In addition to the requirements of sub‑rules (2) and (3), all parties must have present at the pre-hearing conference a person who has the authority to decide whether or not to settle the proceeding or settle the part of the proceeding that has been referred to a pre-hearing conference.

(5)If an insurer is indemnifying a party, the person referred to in sub-rule (4) may be an officer or employee of the insurer.

(6)If a party does not attend a pre-hearing conference after receiving notice to attend, the magistrate or the Court constituted by a registrar may—

(a)in the case of failure by a plaintiff, dismiss the complaint; or

(b)in the case of failure by a defendant or other party, make an order that that party's notice of defence be struck out.

(7)Where at a pre-hearing conference, the Court, including the Court constituted by a registrar, dismisses a complaint or strikes out a notice of defence the Court may also—

(a)make an order for the defendant's costs of the proceeding; or

(b)make an order on the claim, if the claim is for a debt or liquidated demand or is a claim arising from a motor vehicle collision and the claim is for the cost of repairs only or for total loss of the vehicle only.

(8)Where the Court, whether constituted by a magistrate or a registrar, adjourns a pre‑hearing conference, the Court may make an order as to the costs of the adjournment in accordance with the scale of costs in Appendix A.

(9)A party whose notice of defence is struck out in accordance with paragraph (6)(b) shall, for the purposes of Rule 10.01, be taken to be a defendant who does not give notice of defence.

(10)If all the parties to a proceeding (including any third parties) agree at a pre-hearing conference upon the terms in which an order should be made, including an order for the final disposition of a complaint, the Court constituted by a registrar, if satisfied that the order sought is one proper to be made under this Rule, may make the order.

(11)Where a proceeding or part of a proceeding is referred to a pre-hearing conference, the Court constituted by a registrar may exercise the powers of the Court under—

(a)Rule 3.02;

(b)Rule 6.06;

(c)Rule 8.07;

(d)Rule 9.08(1), unless the adequacy of further particulars is in issue;

(e)Rule 11.07(1), unless the adequacy of discovery is in issue;

(f)Rule 12.07(1), unless the adequacy of answers to interrogatories is in issue;

(g)Rule 29.01(6);

(h)Rule 35.02, but not as to costs, except to order that the question of costs be reserved;

(i)Rule 35.03;

(j)Rule 35.05(1) for an order for inspection of property, but excluding an order for detention or preservation of property;

(k)section 102(3) of the Act (to order that a complaint be heard and determined by the Court and not referred to arbitration).".

7.Appeal from registrar

After Rule 33.02(1) of the Principal Rules insert—

"(1.1)An appeal must be commenced within 14 days after the day the registrar made the order.".

8.Amendments to Appendix A

In Appendix A to the Principal Rules—

(a)in item 1(g) for "Over $70 000" substitute "$70 000 and over";

(b)in Table 1—

(i)for "Over $70 000" (wherever occurring) substitute "$70 000 and over";

(ii)in item 76, in column D, for "45" substitute "46";

(iii)in item 77, for "3" (wherever occurring) substitute "10".

Dated:    10 February 2005

IAN LESLIE GRAY,

Chief Magistrate

PAUL DOUGLAS GRANT,

Deputy Chief Magistrate

PETER HENRY LAURITSEN,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 4: S.R. No. 58/1999.  Reprint No. 2 as at 13 March 2003.  Subsequently amended by S.R. Nos 144/2003 and 153/2004.