county court (chapter i amendment no. 11) rules 2017file/17-021sr.docx · web view1originating...

County Court (Chapter I Amendment No. 11) Rules 2017

S.R. No. 21/2017

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Object 12 Authorising provisions 13 Commencement 24 Principal Rules 2

Part 2—Service out of Australia 3

5 Part 1 of Order 7 substituted 36 Heading to Rule 7.09 in Part 2 of Order 7 substituted 117 Rule 37A.07 substituted 118 New Form 7AAA inserted 12

Part 3—Litigation guardian 14

9 Litigation guardian of person under disability 14

Part 4—Judicial registrars 15

10 How judgment or order authenticated 1511 Judge, associate judge or Registrar to authenticate judgment

given or order 1512 General form of judgment given 1513 General form of order 1514 Judgment at trial by judge without a jury 1615 Judgment or order at trial of preliminary question 1616 Interlocutory or interlocutory and final judgment for damages or

value in default 1617 Final judgment for damages or value in default 1618 Interlocutory or interlocutory and final judgment for detention

of goods in default 17═══════════════

Endnotes 19

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STATUTORY RULES 2017

S.R. No. 21/2017

County Court Act 1958

County Court (Chapter I Amendment No. 11) Rules 2017

A majority of the Judges of the County Court makes the following Rules:

Part 1—Preliminary1 Object

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

(a) to replace the existing rules for the service out of Australia of originating process (other than documents which may be served under Division 2 of Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth) with rules which are, to the extent that the County Court's jurisdiction allows, harmonised with those of like jurisdictions;

(b) to change the default position as to a litigation guardian's liability for costs awarded against a person under disability; and

(c) to provide for judicial registrars to authenticate judgments and orders.

2 Authorising provisions

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These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.

3 Commencement

These Rules come into operation on 27 April 2017.

4 Principal Rules

In these Rules, the County Court Civil Procedure Rules 20081 are called the Principal Rules.

Part 4—Judicial registrars

County Court (Chapter I Amendment No. 11) Rules 2017S.R. No. 21/2017

2

Part 2—Service out of Australia5 Part 1 of Order 7 substituted

For Part 1 of Order 7 of the Principal Rules substitute—

"PART 1—SERVICE OUT OF AUSTRALIA

7.01 Part does not apply to service in New Zealand of documents for or in certain Trans-Tasman proceedings

This Part (which contains rules on service out of Australia) does not apply to service in New Zealand of an originating process for, or of any other document to be served in or for, a proceeding an originating process for which may be served in New Zealand under Division 2 of Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth.

7.02 When allowed without leave

An originating process may be served out of Australia without leave in the following cases—

(a) when the claim is founded on a tortious act or omission—

(i) which was done or which occurred wholly or partly in Victoria; or

(ii) in respect of which the damage was sustained wholly or partly in Victoria;

(b) when the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or



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other relief in respect of a breach of, a contract which—

(i) was made or entered into in Victoria; or

(ii) was made by or through an agent trading or residing within Victoria; or

(iii) was to be wholly or in part performed in Victoria; or

(iv) was by its terms or by implication to be governed by Victorian law or to be enforceable or cognizable in a Victorian court;

(c) when the claim is in respect of a breach in Victoria of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach out of Victoria that rendered impossible the performance of that part of the contract that ought to have been performed in Victoria;

(d) when the claim—

(i) is for an injunction to compel or restrain the performance of any act in Victoria; or

(ii) is for interim or ancillary relief in respect of any matter or thing in or connected with Victoria, where such relief is sought in relation to judicial or arbitral proceedings commenced or to be commenced, or an arbitration agreement made, in or outside Victoria; or



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(iii) without limiting subparagraph (ii), is an application for a freezing order or ancillary order under Order 37A in respect of any matter or thing in or connected with Victoria;

(e) when the subject matter of the claim is land or other property situated in Victoria, or any act, deed, will, instrument, or thing affecting such land or property, or the proceeding is for the perpetuation of testimony relating to such land or property;

(f) when the claim relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to Victorian law;

(g) when any relief is sought against any person domiciled or ordinarily or habitually resident in Victoria (whether present in Victoria or not);

(h) when any person out of Australia is—

(i) a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Victoria or outside Victoria) under any other provision of these Rules; or

(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the Court;



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(i) when the claim is for the administration of the estate of any deceased person who at the time of death was domiciled in Victoria or is for any relief or remedy which might be obtained in any such proceeding;

(j) when the claim arises under an Australian enactment and—

(i) any act or omission to which the claim relates was done or occurred in Victoria; or

(ii) any loss or damage to which the claim relates was sustained in Victoria; or

(iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

(iv) the enactment expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the enactment relating to service must be complied with);

(k) when the person to be served has submitted to the jurisdiction of the Court;

(l) when a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly in Victoria;



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(m) when it is sought to recognise or enforce any judgment;

(n) when the claim is founded on a cause of action arising in Victoria;

(o) when the claim affects the person to be served in respect of the person's membership of a corporation incorporated in Victoria, or of a partnership or an association formed or carrying on any part of its affairs in Victoria;

(p) when the claim concerns the construction, effect or enforcementof a Victorian enactment;

(q) when the claim—

(i) relates to an arbitration held in Victoria or governed by Victorian law; or

(ii) is to enforce in Victoria an arbitral award wherever made; or

(iii) is for orders necessary or convenient for carrying into effect in Victoria the whole or any part of an arbitral award wherever made;

(r) when the claim is for relief relating to the custody, guardianship, protection or welfare of a minor present in Victoria or who is domiciled or ordinarily or habitually resident in Victoria (whether present in Victoria or not);

(s) when the claim, so far as concerns the person to be served, falls partly within one or more of the above paragraphs and, as to the residue, within one or



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more of the others of the above paragraphs.

Notes

1 Originating process includes a document that commences a proceeding as well as a counter-claim or third party claim.

2 If a proceeding is commenced in the Court and originating process is served out of Australia under this Rule but the Court later decides that it is more appropriate that the proceeding be determined by a court of another Australian jurisdiction, the Jurisdiction of Courts (Cross-vesting) Act 1987 may enable the proceeding to be transferred to the Supreme Court to make an order transferring the proceeding to that Court or to that State's Supreme Court.

7.03 When allowed with leave

(1) In any proceeding when service is not allowed under Rule 7.02, an originating process may be served out of Australia with the leave of the Court.

(2) An application for leave under this Rule shall be made on notice to every party other than the person intended to be served.

(3) A sealed copy of every order made under this Rule shall be served with the document to which it relates.

(4) An application for leave under this Rule shall be supported by an affidavit stating any facts or matters related to the desirability of the Court assuming jurisdiction, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is an Australian citizen.



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(5) The Court may grant an application for leave if satisfied that—

(a) the claim has a real and substantial connection with Victoria; and

(b) Victoria is an appropriate forum for the trial of the proceeding; and

(c) in all the circumstances the Court should assume jurisdiction.

7.04 Court's discretion whether to assume jurisdiction

(1) On application by a person on whom an originating process has been served out of Australia, the Court may by order set aside the originating process or its service on the person or dismiss or stay the proceeding.

(2) Without limiting paragraph (1), the Court may make an order under this Rule if satisfied—

(a) that service out of Australia of the originating process is not authorised by these Rules; or

(b) that the Court is an inappropriate forum for the trial of the proceeding; or

(c) that the claim has insufficient prospects of success to warrant putting the person served out of Australia to the time, expense and trouble of defending the claim.

7.05 Notice to person served out of Australia

If a person is to be served out of Australia with an originating process, the person shall also be served with a notice in Form 7AAA informing the person of—



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(a) the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia; and

(b) the grounds alleged by the plaintiff to found jurisdiction; and

(c) the person's right to apply for an order setting aside the originating process or its service on the person or dismissing or staying the proceeding.

7.06 Time for filing appearance

Except when the Court otherwise orders, a defendant who has been served out of Australia shall file an appearance within 42 days from the date of service.

7.07 Leave to proceed where no appearance by person

(1) If an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court.

(2) An application for leave under paragraph (1) may be made without serving notice of the application on the person served with the originating process.

7.08 Service of other documents out of Australia

Any document other than an originating process may be served out of Australia with the leave of the Court, which may be given with any directions that the Court thinks fit.



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7.09 Mode of service

A document to be served out of Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.".

6 Heading to Rule 7.09 in Part 2 of Order 7 substituted

In Part 2 of Order 7 of the Principal Rules, for the heading to Rule 7.09 substitute—

"7.09.1 Application".

7 Rule 37A.07 substituted

For Rule 37A.07 of the Principal Rules substitute—

"37A.07 Service

A freezing order—

(a) shall be authenticated pursuant to Rule 60A.04;

(b) when served, shall be served together with a copy of—

(i) the summons, or, if none was filed, any draft summons produced to the Court;

(ii) the material (other than material excepted by the Court as confidential) that was relied on by the applicant at the hearing when the order was made;

(iii) a transcript or, if none is available, a note, of any oral allegation of fact that was made, and of any oral submission that was put, to the Court; and



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(iv) the originating motion, or, if none was filed, any draft originating motion produced to the Court.

Note

An application for a freezing order or an ancillary order may be served on a person who is out of Australia where such service is authorised by or under Part 1 of Order 7: see, in particular, Rule 7.02(d).".

8 New Form 7AAA inserted

Before Form 7A of the Principal Rules insert—

"Rule 7.05 FORM 7AAA

SERVICE OUT OF AUSTRALIA—NOTICE TO DEFENDANT SERVED OUT OF AUSTRALIA

NOTICE TO DEFENDANT SERVED OUT OF AUSTRALIA

To the Defendant:

1. You have been served with an originating process out of Australia under Rules 7.01 to 7.09 of the Rules of the County Court of Victoria. A copy of those Rules is enclosed for your information. They show the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia.

2. The grounds alleged by the plaintiff to support its claim to be entitled to serve you out of Australia are:

[specify grounds]

3. If you do not file an appearance (or if you file a conditional appearance and apply by summons within 14 days of filing the conditional appearance) the Court may, on application made by you, make an order setting aside the originating process or its service on you or dismissing or staying the proceeding. Without limiting the Court's powers in this regard, the Court may make such an order if satisfied that—

(a) the service was not authorised by the Rules of the Court; or

(b) this Court is an inappropriate forum for the trial of the proceeding; or

(c) the claim has insufficient prospects of success to warrant putting you to the time, expense and trouble of defending the claim.



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4. Alternatively you may file an unconditional appearance (in the form prescribed by the Rules of the Court) within the time required under the Rules of the Court.

5. If you file an unconditional appearance, additional procedural obligations (such as an obligation to file a defence or an affidavit) may apply to you in accordance with the Rules of the Court.

6. If you do not file an unconditional appearance within the time required under the Rules of the Court and you have not made an application of a kind referred to in paragraph 3, the Court may give leave to the plaintiff to proceed against you without further notice.".



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Part 3—Litigation guardian9 Litigation guardian of person under disability

After Rule 15.02(3) of the Principal Rules insert—

"(4) Unless for special reason the Court otherwise orders, the litigation guardian of a person under disability is not personally liable for costs awarded against the person.".



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Part 4—Judicial registrars10 How judgment or order authenticated

In Rule 60A.02(1)(a)(i) of the Principal Rules, for "or an associate judge" substitute ", an associate judge or a judicial registrar".

11 Judge, associate judge or Registrar to authenticate judgment given or order

(1) In the heading to Rule 60A.04 of the Principal Rules, after "associate judge" insert ", judicial registrar".

(2) In Rule 60A.04(1)(a) of the Principal Rules, for "or associate judge" substitute ", associate judge or judicial registrar".

(3) In Rule 60A.04(2) of the Principal Rules, for "or associate judge" (where twice occurring) substitute ", associate judge or judicial registrar".

12 General form of judgment given

(1) In Form 60A of the Principal Rules, for "JUDGE:" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60A of the Principal Rules, for"Judge [or associate judge]" substitute "Judge [or associate judge or judicial registrar]".

13 General form of order

(1) In Form 60C of the Principal Rules, for "JUDGE:" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60C of the Principal Rules, for"Judge [or associate judge]" substitute"Judge [or associate judge or judicial registrar]".



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14 Judgment at trial by judge without a jury

(1) In Form 60D of the Principal Rules, for "JUDGE:" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60D of the Principal Rules, for "Judge" substitute "Judge [or associate judge or judicial registrar]".

15 Judgment or order at trial of preliminary question

(1) In Form 60F of the Principal Rules, for "JUDGE:" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60F of the Principal Rules, for "Judge" substitute "Judge [or associate judge or judicial registrar]".

16 Interlocutory or interlocutory and final judgment for damages or value in default

(1) In Form 60J of the Principal Rules, for "JUDGE" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60J of the Principal Rules, for"Judge [or associate judge]" substitute"Judge [or associate judge or judicial registrar]".

17 Final judgment for damages or value in default

(1) In Form 60K of the Principal Rules, for "JUDGE" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60K of the Principal Rules, for"Judge [or associate judge]" substitute"Judge [or associate judge or judicial registrar]".



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18 Interlocutory or interlocutory and final judgment for detention of goods in default

(1) In Form 60L of the Principal Rules, for "JUDGE:" substitute "JUDGE [or ASSOCIATE JUDGE or JUDICIAL REGISTRAR]:".

(2) In Form 60L of the Principal Rules, for"Judge [or associate judge]" substitute"Judge [or associate judge or judicial registrar]".

Dated: 24 April 2017

P. B. KIDD, Chief Judge K. L. BOURKE

M. G. McINERNEY P. M. E. WISCHUSEN

M. B. HARBISON P. G. LACAVA

R. A. LEWITAN F. R. GUCCIARDO

S. M. COHEN P. M. TAFT

M. E. SEXTON F. SACCARDO

F. E. HOGAN M. A. GAMBLE

M. P. BOURKE H. T. MASON

R. F. PUNSHON G. P. MULLALY

W. A. WILMOTH K. E. KINGS

G. T. CHETTLE J. L. PARRISH

F. MILLANE M. H. TINNEY

F. P. HAMPEL J. F. CARMODY

P. D. GRANT R. J. H. MAIDMENT

D. A. PARSONS R. H. SMITH

S. E. PULLEN M. F. MACNAMARA

M. D. MURPHY D. G. BROOKES

C. M. O'NEILL C. J. RYAN

D. L. ALLEN P. J. COSGRAVE

P. G. MISSO G. F. MEREDITH



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R. W. DYER P. H. LAURITSEN

A. J. TSALAMANDRIS G. L. LYON

═══════════════



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Endnotes

Endnotes


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1 Rule 4: S.R. No. 148/2008.

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