Version No. 005 Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010 Version incorporating amendments as at 7 April 2014 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 1.01 Title and object 1 1.02 Authorising provisions 1 1.03 Commencement 1 1.04 Definitions 1 1.05 Application 2 1.06 Rules of general procedure 2 ORDER 2 3 ARBITRATION 3 2.01 Application 3 2.02 Statement of claim 3 2.03 Defence 3 2.04 No pleadings, discovery, interrogatories etc. 3 2.05 Parties to serve a list of documents 4 2.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents 4 2.07 Plaintiff may join third party 5 1
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Version incorporating amendments as at7 April 2014
TABLE OF PROVISIONSRule Page
ORDER 1 1
PRELIMINARY 1
1.01 Title and object 11.02 Authorising provisions 11.03 Commencement 11.04 Definitions 11.05 Application 21.06 Rules of general procedure 2
ORDER 2 3
ARBITRATION 3
2.01 Application 32.02 Statement of claim 32.03 Defence32.04 No pleadings, discovery, interrogatories etc. 32.05 Parties to serve a list of documents 42.06 Service of reports and assessments in relation to proceedings
relating to motor vehicle accidents 42.07 Plaintiff may join third party 5
ORDER 3 6
SERVICE AND EXECUTION OF PROCESS RULES 6
3.01 Definitions 63.02 How application made 63.03 Sealed copy of order 63.04 Enforcement of order 73.05 Fees 7
1
3.06 Costs 73.07 Interest 7
ORDER 4 9
REGISTRARS 9
4.01 Reference to a magistrate 94.02 Appeal from registrar 9
ORDER 5 10
APPEALS 10
5.01 Application of order 105.02 Notice of appeal 105.03 Amendment of grounds 105.04 Affidavit 105.05 Date for hearing 11
ORDER 6 12
PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT COMPENSATION ACT 1985 12
6.01 Definition 126.02 Application for appointment of nominal defendant—Forms 6A
and 6B 136.03 Application for discharge 146.04 Request for referral of a medical question to a Medical Panel—
Form 6C 146.05 Application for revocation of direction of Conciliation Officer 15
ORDER 7 16
PARTICULAR RULES AS TO THE CORPORATIONS ACT 16
7.01 Definition 167.02 Commencement of originating process 167.03 Notice to defendant 167.04 Service of complaint and notices 167.05 Application for order in default of defence 17
ORDER 8 18
IMPRISONMENT OF FRAUDULENT DEBTORS 18
8.01 Application for summons 18
2
ORDER 9 19
INSTRUMENTS ACT RULES 19
9.01 Definition 199.02 Application of Order 199.03 Form of complaint 199.04 Leave to defend 199.05 Order where leave not granted or notice of defence not given 209.06 Notice to parties 209.07 Leave to defend after order made 20
ORDER 10 22
PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 22
10.01 Definitions 2210.02 Commencement of proceeding under section 28R of the
Act 2210.03 Power of registrar to make order in proceedings under
section 28R of the Act 2210.04 Setting aside an order 2310.05 Certification of debt by Court 2310.06 Application for stay of payments 23
ORDER 11 24
MISCELLANEOUS RULES 24
11.01 Civil registry courts 2411.02 Jurisdiction of Neighbourhood Justice Division 2411.03 General power of amendment 2411.04 Registrar's power of amendment 2511.05 Directions 2511.06 Preservation of property 2511.07 Practice notes 26
__________________
FORMS FOR CHAPTER II 27
Form 3A—Service and Execution of Process Act 1992 27
Form 3B—Service and Execution of Process Act 1992 29
Form 3C—Service and Execution of Process Act 1992 30
Form 5A—Notice of Appeal 32
Form 6A—Application for Appointment of Nominal Defendant 33
3
Form 6B—Notice of Appointment of Nominal Defendant 34
Form 6C—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 35
Form 6D—Application 36
Form 7A—Notice to Defendant under Corporations Act 37
Form 8A—Affidavit in Support of Summons for Commitment 38
Form 9A—Complaint 39
Form 9B—Application for Leave to Defend 41
Form 9C—Application for Order 42
Form 9D—Notification of Decision 43
Form 9E—Application for Leave to Defend after Order Made 44
__________________
APPENDIX A—Civil Registry Courts 45
APPENDIX B—Civil Registry Courts—Proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies 46
Version incorporating amendments as at7 April 2014
The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:
ORDER 1
PRELIMINARY
1.01 Title and object
(1) These Rules constitute Chapter II of the Rules of the Magistrates' Court of Victoria and are entitled the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010.
(2) The object of these Rules is to further provide for rules of civil procedure in the Magistrates' Court.
1.02 Authorising provisions
These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.
1.03 Commencement
These Rules come into operation on 1 January 2011.
1.04 Definitions
In these Rules—
the Act means the Magistrates' Court Act 1989, unless the context otherwise requires.
1
1.05 Application
These Rules apply to any proceeding in the Court with respect to which provision is made by these Rules, whether the proceeding was commenced before, on or after the day on which they come into operation.
1.06 Rules of general procedure
Except so far as is otherwise provided by these Rules or any Act, Chapter I of the Rules of the Magistrates' Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.
__________________
2
r. 1.05
ORDER 2
ARBITRATION
2.01 Application
This Order applies to a proceeding in which the monetary relief sought is less than the amount set out in section 102(1) of the Act and which the Court must refer to arbitration in accordance with that section.
2.02 Statement of claim
The statement of claim in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances and cause of action upon which the claim is based together with the amount or other relief or remedy sought.
2.03 Defence
The notice of defence in a proceeding referred to in Rule 2.01 must state with particularity the date, place, circumstances facts or matters relied on in defence of the claim.
2.04 No pleadings, discovery, interrogatories etc.
No party in a proceeding referred to in Rule 2.01 may—
(a) serve a request for further and better particulars of claim, counterclaim or defence;
(b) serve and file a reply;
(c) serve a notice to admit any fact or the authenticity of any document;
(d) serve a notice for discovery;
(e) serve interrogatories;
(f) serve an expert witness statement.
r. 2.01
Rule 2.04(f) amended by S.R. No. 124/2011 rule 3(1).
(1) If the amount of the claim or the counterclaim in a proceeding referred to arbitration in accordance with this Order is $5000 or more, each party must serve on each other party a list of documents not less than 14 days before the date fixed for a pre-hearing conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.
(2) A list of documents must identify each document in the possession of the party serving the list that—
(a) supports the claim, defence, or counterclaim; or
(b) is injurious to that claim, defence or counterclaim.
2.06 Service of reports and assessments in relation to proceedings relating to motor vehicle accidents
(1) If in any proceeding that has been referred to arbitration in accordance with this Order there is a claim or counterclaim for damages arising out of a motor vehicle accident, each party (the serving party) must serve on each other party a copy of any assessor's report or documents relating to such an assessment in the possession of the serving party.
(2) Any report or documents required to be served under subrule (1) must be served not less than 14 days before the date fixed for a pre-hearing
Rule 2.04(g) revoked by S.R. No. 124/2011 rule 3(2).
conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.
r. 2.07Rule 2.07 inserted by S.R. No. 27/2012 rule 4.
2.07 Plaintiff may join third party
(1) If in any proceeding that has been referred to arbitration in accordance with this Order the defendant files a third party notice against a person, the plaintiff may join that person as a defendant.
(2) The plaintiff must give notice in writing to the third party, the defendant or defendants and the registrar that the third party is joined as defendant.
(3) When the notice is filed and served the third party becomes a defendant to the proceeding.
appropriate court has the same meaning as in Part 6 of the Act;
court of rendition has the same meaning as in Part 6 of the Act;
place of rendition has the same meaning as in Part 6 of the Act;
the Act means the Service and Execution of Process Act 1992 of the Commonwealth.
3.02 How application made
(1) An application to the Court under the Act must be made in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.
(2) Where an application under subrule (1) is filed by facsimile transmission, the address for service of the applicant must include a facsimile telephone number.
(3) When an application is filed the registrar must forthwith fix a hearing date and as soon as practicable notify the applicant.
3.03 Sealed copy of order
For the purpose of registration of an order of the Court in the appropriate court of another State or Territory, the registrar may provide a sealed copy of the judgment in Form 3A or Form 3B, as the case requires.
A person who seeks to enforce an order registered under the Act must before taking any step under the Act or these Rules for such enforcement file an affidavit in Form 3C stating that the order is capable of being enforced in or by the court of rendition or a court in the place of rendition and the extent to which it is so capable.
3.05 Fees
(1) The fees to be allowed in relation to the service under the Act of the process of the Court must be calculated on the same basis as fees allowable in the appropriate court for service of process at the place where the process was served.
(2) The same fees must be paid in relation to the enforcement under the Act by the Court of the process or order of a court of another part of Australia as are charged for the like enforcement of the process or judgment of the Court, together with the fees set out in the Schedule to Order 10 of Chapter II of the Rules of the Supreme Court.
3.06 Costs
The same costs must be allowed in relation to the enforcement of an order registered under the Act as are allowed upon the enforcement of an order of the Court.
3.07 Interest
(1) A person who seeks to recover interest payable under section 108 of the Act must specify by affidavit the interest rate or rates applying to the order in the court of rendition and must include a calculation showing the amount of interest recoverable under the order.
(2) The interest rate or rates applying in the court of rendition specified in an affidavit pursuant to subrule (1) must be endorsed on a warrant to seize property which is filed to enforce an order registered under the Act.
(3) The person to whom a warrant to seize property is directed must calculate and recover interest on an order registered under the Act at the rate or rates specified in the warrant.
(4) The person to whom a warrant to seize property is directed must not calculate or recover interest on an order registered under the Act where the warrant does not contain a statement of the interest rate or rates applying to the order in the court of rendition and does not contain a calculation of the interest recoverable under the order.
If on an application to a registrar under the Act, the Magistrates' Court General Civil Procedure Rules 2010 or these Rules, the registrar considers that it is proper that the application be determined by a magistrate, the registrar may refer the application to a magistrate.
4.02 Appeal from registrar
(1) Any person affected by any order made by a registrar may appeal to a magistrate.
(2) An appeal must be commenced within 14 days after the day the registrar made the order.
(3) An appeal may be made by application in accordance with Order 46 of the Magistrates' Court General Civil Procedure Rules 2010.
(4) An appeal is a re-hearing of the application to the registrar.
(5) Unless a magistrate otherwise orders, an appeal does not operate as a stay on the order of the registrar.
(6) This Rule does not apply to an order in default of defence made by a registrar under Order 21 of the Magistrates' Court General Civil Procedure Rules 2010 or any corresponding previous enactment.
Where by or under any Act a person (in this Order called the appellant) may appeal to a magistrate or to the Magistrates' Court, this Order applies.
5.02 Notice of appeal
(1) Except as provided by any Act, an appeal must be commenced by filing a notice of appeal at the proper venue of the Court.
(2) The notice of appeal must—
(a) be in Form 5A; and
(b) set out—
(i) the order or decision of the person from whom or the body from which the appeal is brought (in this order called the respondent);
(ii) concisely the grounds of appeal.
(3) As soon as practicable after filing the notice of appeal the appellant must serve a copy on the respondent.
5.03 Amendment of grounds
The Magistrates' Court or a magistrate may give leave to amend the grounds of appeal.
5.04 Affidavit
Within 14 days after filing the notice of appeal the appellant must file in the Court and serve on the respondent an affidavit setting out the facts, matters and circumstances relating to—
PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958 AND THE ACCIDENT
COMPENSATION ACT 1985
6.01 Definition
In this Part, unless the context or subject-matter otherwise requires—
Authority means the Victorian WorkCover Authority established under section 18(1) of the Accident Compensation Act 1985;
Conciliation Officer means a person nominated as a Conciliation Officer under section 52D of the Accident Compensation Act 1985;
employer in a proceeding under the Accident Compensation Act 1985 has the same meaning as in section 5(1) of that Act and in a proceeding under the Workers Compensation Act 1958 has the same meaning as in section 3(1) of that Act;
Medical Panel means a Medical Panel under the Accident Compensation Act 1985;
medical question has the same meaning as in section 5(1) of the Accident Compensation Act 1985;
plaintiff includes a claimant under section 44(1) of the Workers Compensation Act 1958;
6.02 Application for appointment of nominal defendant—Forms 6A and 6B
(1) An application for the appointment of a nominal defendant under section 5A, 16 or 25E of the Act must be—
(a) made after the filing of a complaint;
(b) accompanied by an affidavit in support of the application;
(c) in Form 6A.
(2) The affidavit in support of the application must—
(a) state the reasons for the application;
(b) give details of any attempts to identify or find the employer or the employer's insurer;
(c) if the employer was a company which has been wound up, exhibit advice from the Australian Securities and Investment Commission that the company has been wound up;
(d) except where the application is to have the Authority named as the nominal defendant, exhibit the consent in writing of the person proposed for appointment as nominal defendant.
(3) If the Court makes an order for the appointment of a nominal defendant on an application under subrule (1), unless the Court directs otherwise, the party obtaining the order must give notice of the appointment to all parties to the complaint and serve on the nominal defendant—
(d) notice of any hearing date subsequent to the appointment, fixed in the proceeding, if any;
(e) a copy (including any amended copies) of the complaint (if any) showing the nominal defendant as defendant and giving full particulars of the claim against the alleged employer in respect of whom the nominal defendant was appointed;
(f) where appropriate, particulars of the claim for contribution.
6.03 Application for discharge
(1) At any time after receiving notice of appointment, the nominal defendant appointed by the Court may apply to the Court to be discharged from acting in that capacity.
(2) Unless the Court directs otherwise, or the application is by consent, the application must be supported by an affidavit setting out the facts on which the discharge is requested.
6.04 Request for referral of a medical question to a Medical Panel—Form 6C
(1) A request by a party for the Court to refer a medical question to a Medical Panel for an opinion under section 45(1)(b) of the Accident Compensation Act 1985 must—
(a) state clearly the medical question for referral;
(b) be in Form 6C.
(2) A copy of the request must be served on all other parties to the proceeding who have an address for service not less than 14 days before the request is to be considered by the Court.
6.05 Application for revocation of direction of Conciliation Officer
An application under section 60(2) of the Accident Compensation Act 1985 for the revocation of a direction given by a Conciliation Officer pursuant to Division 2 of Part 3 of that Act must be—
(a) in Form 6D with such modification as is necessary; and
(b) accompanied by an affidavit in support of the application.
corporations proceeding means a proceeding under the Act that is brought in the Court;
the Act means the Corporations Act.
7.02 Commencement of originating process
(1) An originating process under the Act in the Court must be commenced by a complaint in accordance with Order 5 of the Magistrates' Court General Civil Procedure Rules 2010.
(2) A complaint to which subrule (1) applies, when lodged for filing, must be accompanied by a supporting affidavit, in accordance with Rule 2.4 of the Supreme Court (Corporations) Rules 2003.
(3) An affidavit to which subrule (2) applies, subject to that subrule, must comply with the Magistrates' Court General Civil Procedure Rules 2010.
7.03 Notice to defendant
In any corporations proceeding the plaintiff must prepare a notice to the defendant in the form of Form 7A.
7.04 Service of complaint and notices
In a corporations proceeding, the complaint and any notice of defence, affidavit of service and notice to the defendant under Rule 7.03 must be served on the defendant at least 7 days before the mention date for the proceedings.
(1) This Order applies to any proceeding in the Court under Part 1 of the Act.
(2) Except where inconsistent with the Act or this Order, the Magistrates' Court General Civil Procedure Rules 2010 and the remaining provisions of these Rules apply to any proceeding under Part I of the Act.
9.03 Form of complaint
(1) A complaint upon a bill of exchange commenced after the bill has become due must be in Form 9A.
(2) The amount of costs stated in the indorsement on the complaint must be the amount of scale costs applicable to the amount claimed plus the fees (if any) for the filing and service of the complaint.
9.04 Leave to defend
(1) Leave to defend under section 5 of the Act may be given by the Court.
(2) An application for leave to defend must be made without notice to any person, within the time allowed by section 5 of the Act.
(3) An application for leave must be in Form 9B and must be filed.
(4) The applicant for leave must file in support of the application an affidavit sworn by himself or
herself or by another person who can depose to the facts from his or her own knowledge.
9.05 Order where leave not granted or notice of defence not given
(1) A plaintiff who is entitled to an order under section 4 of the Act may apply to the registrar for an order for the amount claimed together with costs and fees (if any) for filing and service of the complaint as the scale allows.
(2) An application for such an order must be filed and must be in Form 9C.
(3) Where the registrar is satisfied that—
(a) the complaint has been served in accordance with section 4 of the Act; and
(b) the defendant—
(i) has not been given leave to defend under section 5 of the Act; or
(ii) has been given leave to defend under section 5 of the Act, but has not given notice of defence to the plaintiff within 21 days after the date on which leave to defend was given—
the registrar must make an order.
9.06 Notice to parties
As soon as practicable after the Court has made a decision on an application for leave to defend, the registrar must notify the parties by notice in Form 9D.
9.07 Leave to defend after order made
(1) A defendant who wishes to apply under section 6 of the Act must—
(a) file an application in Form 9E; and
Rule 9.05 (Heading) amended by S.R. No. 158/2012 rule 6(1).
r. 9.05
Rule 9.05(3)(b) substituted by S.R. No. 158/2012 rule 6(2).
(b) not less than 5 days before the day for hearing of the application serve a copy of the application on the complainant personally.
(2) An application under section 6 must state the special circumstances relied upon by the applicant.
(3) The Court may set aside the order on such terms as the Court thinks fit.
(4) Upon filing an application under section 6, no steps to enforce the order shall be taken for 14 days from the date of filing or until the application is heard (whichever is the earlier).
(5) An applicant who fails to appear on the hearing of the application must not make a further application without the leave of the Court.
PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT
ACT 2002
10.01 Definitions
In this Order—
adjudication certificate has the same meaning as in section 4 of the Act;
authorised nominating authority has the same meaning as in section 4 of the Act;
claimant has the same meaning as in section 4 of the Act;
principal has the same meaning as in section 4 of the Act;
the Act means the Building and Construction Industry Security of Payment Act 2002.
10.02 Commencement of proceeding under section 28R of the Act
A proceeding under section 28R of the Act may be commenced by a person, who has been provided with an adjudication certificate by an authorised nominating authority, applying to the Court by filing in the Court the certificate and affidavit that are required to be filed under section 28R of the Act.
10.03 Power of registrar to make order in proceedings under section 28R of the Act
In any proceeding commenced under Rule 10.02, the Court constituted by a registrar may make an order that the respondent pay the person applying under that Rule the unpaid amount if the registrar is satisfied that—
(a) the adjudication certificate has been provided by the authorised nominating authority; and
(b) an amount payable under section 28M or 28N of the Act has not been paid.
10.04 Setting aside an order
Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modifications, applies to making an application to set aside an order in any proceeding under section 28R of the Act.
10.05 Certification of debt by Court
(1) For the purposes of section 33 of the Act, the court may be constituted by a registrar.
(2) An application for an order under section 33(1) of the Act may be made in writing and Order 46 of the Magistrates' Court General Civil Procedure Rules 2010 does not apply to any such application.
10.06 Application for stay of payments
(1) For the purposes of section 37(1) of the Act, an application by a principal for a stay of payments under that section must be made in the proceeding in which the claimant has obtained an order for the adjudicated amount or part of the adjudicated amount as referred to in section 30(c) of the Act.
(2) Order 46 of the Magistrates' Court General Civil Procedure Rules 2010, with any necessary modification, applies to an application under section 37(1) of the Act.
(1) The civil registry courts are those venues of the Court listed in Appendix A to these Rules.
(2) Despite paragraph (1), in relation to a proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies, the civil registry courts are those venues of the Court listed in Appendix B to these Rules.
11.02 Jurisdiction of Neighbourhood Justice Division
For the purposes of section 4O(3)(d) of the Act, with respect to the civil jurisdiction of the Court, the following are specified—
(a) a proceeding under the Fences Act 1968; and
(b) a proceeding under the Family Law Act 1975 of the Commonwealth in which the Court has federal jurisdiction under section 39(6) or 69J of that Act.
11.03 General power of amendment
For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including a complaint) in a proceeding be amended or that any party have leave to amend any document in the proceeding.
Rule 11.01 amended by S.R. No. 11/2014 rule 13 (ILA s. 39B(2)).
r. 11.01
Rule 11.01(2) inserted by S.R. No. 11/2014 rule 13(2).
(1) At the request of a party made before service of a complaint, the registrar may amend the complaint.
(2) The registrar must record on the complaint the date of any amendment.
11.05 Directions
At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.
11.06 Preservation of property
(1) In any proceeding, the Court may make an order for the inspection, detention or preservation of any property whether or not in the possession, custody or power of a party.
(2) An order under subrule (1) may authorise any person to—
(a) enter any land or do any other thing for the purpose of obtaining access to the property;
(b) take samples of the property;
(c) make observations (including the photographing) of the property;
(d) conduct any experiment on or with the property;
(e) observe any process.
(3) If the Court makes an order under subrule (1) the Court may make an order for the costs and expenses of any person who is not a party to the proceeding.
(4) The Court may make an order under this Rule on condition that the person applying for the order gives security for the costs and expenses of any person, whether or not a party, who will be affected by the order.
11.07 Practice notes
The Chief Magistrate may from time to time issue practice directions or notes not inconsistent with the Act or these Rules.
1. I am *the plaintiff*a solicitor in the firm of [name of firm], solicitors for the
plaintiff, and I have the care and conduct of this matter and make this affidavit according to my information and belief.
2. Judgment was entered in the [name of court] at [place] in the State of [State] on [date]. The terms of the judgment were that the defendant pay the plaintiff the sum of $ [claim] with $ [interest] and $ [costs].
3. The nature of the proceedings was for [describe the nature of proceedings/cause of action].
4. The amount of the judgment which is sought to be enforced is $ [amount] and is the extent the judgment is capable of being enforced in the court of rendition.
5(a). The reasonable costs and expenses of and incidental to obtaining and lodging the copy of the judgment are $ [amount], being the sum paid to obtain a sealed copy of the judgment and $ [amount], being the cost of registering the judgment in Victoria, making a total of $ [amount].
5(b). The costs and expenses reasonably incurred in attempting to execute the judgment in the court of rendition or in another State are—
[set out details of the costs and expenses].
6. Pursuant to section [description] of the [name of the relevant legislation], interest is payable on the judgment from [date] to the date of payment of the judgment [describe the provisions of the legislation referred to which provides the basis of interest calculation].
7. At the date of judgment the applicable interest rate was [percentage figure] %. On [date] the interest rate *will be/was* varied to [percentage figure] %.
TO: [Identify each party (if any) to whom application is addressed]
YOU are summoned to attend before the Court on the hearing of an application by the [identify party]. The [identify party] applies to the Court for an order to appoint a nominal defendant for the purposes of a claim for compensation. The circumstances and grounds of the application are set out in the accompanying affidavit.
FILED: [e.g. 5 September 20 ].
This application was filed by , Australian lawyer for the [identify party].
In the matter of the Workers Compensation Act 1958
TAKE NOTICE THAT:
At the request of [identify party] the Court has this day appointed [name of nominal defendant] of [address] as a nominal defendant for the purposes of these proceedings, *in place of an alleged employer—[name of alleged employer]
*in the place of an employer who cannot be identified [or as the case may be].
A copy of the application for appointment and the accompanying affidavit, together with a copy of the originating process in these proceedings is attached to this Notice.
The complaint is listed for [nature of hearing] by the Court at [venue] at [time] on [date].
Dated: [e.g. 5 September 20 ].
[Signature of party or Australian lawyer for party who obtained order]
NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985
[heading as in Form 3A]
In the matter of the Accident Compensation Act 1985.
Take notice that [identify party] will request the Magistrates' Court at [venue] on [date] at [time] to refer the following medical questions to a medical panel for an opinion—
I, of , the abovenamed plaintiff [or Australian lawyer for the abovenamed plaintiff] make oath and say:
1. By an order dated [e.g. 5 September, 20 ] it was ordered that [judgment debtor] should pay me [or the plaintiff] the sum of $ [amount] together with $ [amount] costs [or as the case may be].
2. The sum of $ [amount] ordered to be paid [or $ [amount]], part of the sum ordered to be paid is still due and unpaid.
3. I am informed by [name and address] and believe that since the date of the order made against the defendant, the defendant has had sufficient means and ability to pay the sum in respect of which the defendant has made default and has refused or neglected and still refuses or neglects to pay.
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 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 post office 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 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 of the Australian lawyer. If the plaintiff sues in person, the address in 2.]
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 of the Australian lawyer. If the defendant sues in person, the address in 2.]
4. The date of service of the complaint was [date].
1. The plaintiff requests that an order be made for $ [amount] plus interestat 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.
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 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 of the Australian lawyer. If the defendant sues in person, the address in 2.]
1. General InformationThe Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010, S.R. No. 141/2010 were made on 26 October 2010 by the Chief Magistrate together with 2 Deputy Chief Magistrates jointly under section 16 of the Magistrates' Court Act 1989, No. 51/1989 and came into operation on 1 January 2011: rule 1.03.
The Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 will sunset 10 years after the day of making on 26 October 2020 (see section 5 of the Subordinate Legislation Act 1994).
2. Table of AmendmentsThis Version incorporates amendments made to the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 by statutory rules, subordinate instruments and Acts.