magistrates' court (miscellaneous civil … compensation act 2013 12 ... form 9c—application...

Authorised by the Chief Parliamentary Counsel

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Authorised Version No. 008

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010

S.R. No. 141/2010 Authorised Version incorporating amendments as at

31 October 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 2.08 Costs in respect of an arbitration 5

ORDER 3 6

SERVICE AND EXECUTION OF PROCESS RULES 6

3.01 Definitions 6 3.02 How application made 6 3.03 Sealed copy of order 6 3.04 Enforcement of order 7


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3.05 Fees 7 3.06 Costs 7 3.07 Interest 7

ORDER 4 9

REGISTRARS 9

4.01 Reference to a magistrate 9 4.02 Appeal from registrar 9

ORDER 5 10

APPEALS 10

5.01 Application of order 10 5.02 Notice of appeal 10 5.03 Amendment of grounds 10 5.04 Affidavit 10 5.05 Date for hearing 11

ORDER 6 12

PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958, THE ACCIDENT COMPENSATION ACT 1985 AND THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013 12

6.01 Definitions 12 6.02 Application for appointment of nominal defendant—Forms 6A

and 6 B 13 6.03 Application for discharge 14 6.04 Request for referral of a medical question to a Medical Panel—

Form 6C 15 6.05 Application for revocation of direction of Conciliation Officer 15

ORDER 7 17

PARTICULAR RULES AS TO THE CORPORATIONS ACT 17

7.01 Definition 17 7.02 Commencement of originating process 17 7.03 Notice to defendant 17 7.04 Service of complaint and notices 17 7.05 Application for order in default of defence 18

ORDER 8 19

IMPRISONMENT OF FRAUDULENT DEBTORS 19

8.01 Application for summons 19


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ORDER 9 20

INSTRUMENTS ACT RULES 20

9.01 Definition 20 9.02 Application of Order 20 9.03 Form of complaint 20 9.04 Leave to defend 20 9.05 Order where leave not granted or notice of defence not given 21 9.06 Notice to parties 21 9.07 Leave to defend after order made 21

ORDER 10 23

PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002 23

10.01 Definitions 23 10.02 Commencement of proceeding under section 28R of the Act 23 10.03 Power of registrar to make order in proceedings under

section 28R of the Act 23 10.04 Setting aside an order 24 10.05 Certification of debt by Court 24 10.06 Application for stay of payments 24

ORDER 11 25

MISCELLANEOUS RULES 25

11.01 Civil registry courts 25 11.02 Jurisdiction of Neighbourhood Justice Division 25 11.03 General power of amendment 25 11.04 Registrar's power of amendment 26 11.05 Directions 26 11.06 Preservation of property 26 11.07 Practice notes 27

ORDER 12 28

PROCEDURE UNDER THE VEXATIOUS PROCEEDINGS ACT 2014 28

PART 1—INTERPRETATION 28

12.01 Definitions 28

PART 2—APPLICATIONS AND NOTICES 28

12.02 Applications for leave to apply for limited and extended litigation restraint orders 28


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12.03 Applications for limited and extended litigation restraint orders 28

12.04 Applications for acting in concert orders 29 12.05 Application for leave to proceed under limited litigation

restraint order 29 12.06 Application for leave to proceed under extended litigation

restraint order 29 12.07 Application for leave to proceed under general litigation

restraint order 30 12.08 Notice of applications for leave to proceed—litigation

restraint orders 30 12.09 Application for leave to apply for variation or revocation of

litigation restraint order 30 12.10 Application to vary or revoke litigation restraint order 30 12.11 Notice of application to vary or revoke litigation restraint

order 31

PART 3—PROVISIONS APPLYING TO APPLICATIONS 31

12.12 Application of Part 31 12.13 Service of applications 31 12.14 Day for hearing 32 12.15 Adjournment 32 12.16 Absence of party to application 33

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FORMS FOR CHAPTER II 34

Form 3A—Service and Execution of Process Act 1992 34

Form 3B—Service and Execution of Process Act 1992 36

Form 3C—Service and Execution of Process Act 1992 37

Form 5A—Notice of Appeal 39

Form 6A—Application for Appointment of Nominal Defendant 40

Form 6B—Notice of Appointment of Nominal Defendant 41

Form 6C—Notice of Request Pursuant to Section 45(1)(b) of the Accident Compensation Act 1985*/ SECTION 304 OF THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013* 42

Form 6D—Application 43

Form 7A—Notice to Defendant under Corporations Act 44

Form 8A—Affidavit in Support of Summons for Commitment 45

Form 12A—Application for Leave to Apply for Limited Litigation Restraint Order or Extended Litigation Restraint Order 46


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Form 12B—Application for Limited Litigation Restraint Order or Extended Litigation Restraint Order 48

Form 12C—Application for Acting In Concert Order 50

Form 12D—Application for Leave to Make or Continue Interlocutory Application in Proceeding by Person Subject to Limited Litigation Restraint Order 52

Form 12E—Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order 54

Form 12F—Application for Leave to Commence Proceeding by Person Subject to Extended Litigation Restraint Order 56

Form 12G—Application for Leave to Continue Proceeding by Person Subject to General Litigation Restraint Order 58

Form 12H—Application for Leave to Commence Proceeding by Person Subject to General Litigation Restraint Order 60

Form 12I—Notice of Application for Leave to Proceed 62

Form 12J—Application for Leave to Apply to Vary or Revoke Litigation Restraint Order 63

Form 12K—Application to Vary or Revoke Litigation Restraint Order 65

Form 12L—Notice of Application to Vary or Revoke Litigation Restraint Order 67

Form 9A—Complaint 68

Form 9B—Application for Leave to Defend 70

Form 9C—Application for Order 71

Form 9D—Notification of Decision 72

Form 9E—Application for Leave to Defend after Order Made 73

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APPENDIX AA—Costs in Respect of an Arbitration 74

1 Costs 74 2 Disbursements 75

APPENDIX A—Civil Registry Courts 76

APPENDIX B—Civil Registry Courts—Proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies 77

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ENDNOTES 78

1. General Information 78

2. Table of Amendments 79

3. Explanatory Details 80


1

Authorised Version No. 008

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010

S.R. No. 141/2010 Authorised Version incorporating amendments as at

31 October 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.


Order 1

Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 S.R. No. 141/2010

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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.

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r. 1.05


Order 2


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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;

r. 2.01


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(f) serve an expert witness statement.

* * * * *

2.05 Parties to serve a list of documents (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.

Rule 2.04(f) amended by S.R. No. 124/2011 rule 3(1).

Rule 2.04(g) revoked by S.R. No. 124/2011 rule 3(2).

r. 2.05


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(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 conference or, if no such date is fixed, then 14 days before the date fixed for the arbitration.

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.

2.08 Costs in respect of an arbitration For the purposes of section 105(2) of the Act, the Court may award, to a party to a proceeding referred to arbitration, costs in respect of the arbitration in accordance with Appendix AA.

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r. 2.07

Rule 2.07 inserted by S.R. No. 27/2012 rule 4.



Order 3


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ORDER 3

SERVICE AND EXECUTION OF PROCESS RULES

3.01 Definitions In this Order—

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.

r. 3.01


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3.04 Enforcement of order 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 Rule 10.05 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.

r. 3.04

Rule 3.05(2) amended by S.R. No. 70/2014 rule 24.


Order 3


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(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.

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r. 3.07


Order 4


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ORDER 4

REGISTRARS

4.01 Reference to a magistrate 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.

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r. 4.01


Order 5


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ORDER 5

APPEALS

5.01 Application of order 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—

(a) the order or decision appealed against; and

(b) the grounds of appeal.

r. 5.01


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5.05 Date for hearing At the time of filing the notice of appeal the registrar must fix a date for the hearing of the appeal.

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r. 5.05


Order 6


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ORDER 6

PARTICULAR APPLICATIONS UNDER THE WORKERS COMPENSATION ACT 1958, THE ACCIDENT

COMPENSATION ACT 1985 AND THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT

2013

6.01 Definitions 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 and continued in existence under section 491(1) of the Workplace Injury Rehabilitation and Compensation Act 2013;

Conciliation Officer means a person nominated as a Conciliation Officer under section 52D of the Accident Compensation Act 1985 or a person appointed under section 523 of the Workplace Injury Rehabilitation and Compensation Act 2013;

employer, in a proceeding under—

(a) the Workplace Injury Rehabilitation and Compensation Act 2013, has the same meaning as in section 3 of that Act;

(b) the Accident Compensation Act 1985, has the same meaning as in section 5(1) of that Act;

(c) the Workers Compensation Act 1958, has the same meaning as in section 3(1) of that Act;

Order 6 (Heading) amended by S.R. No. 70/2014 rule 18.

Rule 6.01 (Heading) substituted by S.R. No. 70/2014 rule 19(1).

r. 6.01

Rule 6.01 def. of Authority amended by S.R. No. 70/2014 rule 19(2)(a).

Rule 6.01 def. of Conciliation Officer amended by S.R. No. 70/2014 rule 19(2)(b).

Rule 6.01 def. of employer substituted by S.R. No. 70/2014 rule 19(2)(c).


Order 6


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Medical Panel means a Medical Panel under the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013;

medical question, in a proceeding under—

(a) the Workplace Injury Rehabilitation and Compensation Act 2013, has the same meaning as in section 3 of that Act;

(b) the Accident Compensation Act 1985, has the same meaning as in section 5(1) of that Act;

* * * * *

the Act means 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;

Rule 6.01 def. of Medical Panel amended by S.R. No. 70/2014 rule 19(2)(d).

Rule 6.01 def. of medical question substituted by S.R. No. 70/2014 rule 19(2)(e).

Rule 6.01 def. of plaintiff revoked by S.R. No. 70/2014 rule 19(2)(f).

r. 6.02


Order 6


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(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—

(a) a notice of the appointment in Form 6B;

(b) a copy of the application;

(c) a copy of the affidavit in support;

(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.

r. 6.03


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(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 or section 304 of the Workplace Injury Rehabilitation and Compensation Act 2013 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

(1) 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.

(2) An application under section 299(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 for the revocation of a direction given by a Conciliation Officer pursuant to Division 2 of Part 6 of that Act must be—

Rule 6.04(1) amended by S.R. No. 70/2014 rule 20.

Rule 6.05 amended by S.R. No. 70/2014 rule 21 (ILA s. 39B(2)).

r. 6.04

Rule 6.05(2) inserted by S.R. No. 70/2014 rule 21.


Order 6


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(a) in Form 6D with such modification as is necessary; and

(b) accompanied by an affadavit in support of the application.

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r. 6.05


Order 7


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ORDER 7

PARTICULAR RULES AS TO THE CORPORATIONS ACT

7.01 Definition In this Order—

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.

r. 7.01


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7.05 Application for order in default of defence In a corporations proceeding, an application for an order in default of defence must not be made before the mention date for the proceeding.

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r. 7.05


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ORDER 8

IMPRISONMENT OF FRAUDULENT DEBTORS

8.01 Application for summons (1) An application for the issue of a summons under

Part III of the Imprisonment of Fraudulent Debtors Act 1958 must be made by affidavit in Form 8A.

(2) An affidavit under subrule (1) may contain statements of fact based on information and belief if the grounds are set out.

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r. 8.01


Order 9


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ORDER 9

INSTRUMENTS ACT RULES

9.01 Definition In this Order—

the Act means the Instruments Act 1958.

9.02 Application of Order (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.

r. 9.01


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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

(b) not less than 5 days before the day for hearing of the application serve a copy of the application on the complainant personally.

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).


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(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.

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r. 9.07


Order 10


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ORDER 10

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—

r. 10.01


Order 10


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(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.

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r. 10.04


Order 11


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ORDER 11

MISCELLANEOUS RULES

11.01 Civil registry courts (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).


Order 11


26

11.04 Registrar's power of amendment (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.

r. 11.04


Order 11


27

(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.

__________________

r. 11.07


Order 12


28

ORDER 12

PROCEDURE UNDER THE VEXATIOUS PROCEEDINGS ACT 2014

PART 1—INTERPRETATION

12.01 Definitions An expression used in the Vexatious Proceedings Act 2014 has the same meaning in this Order as it has in that Act.

PART 2—APPLICATIONS AND NOTICES

12.02 Applications for leave to apply for limited and extended litigation restraint orders

(1) An application under section 10(1) of the Vexatious Proceedings Act 2014 by a person referred to in section 10(1)(b) or (c) of that Act for leave to apply for a limited litigation restraint order must be in Form 12A.

(2) An application under section 16(1) of the Vexatious Proceedings Act 2014 by a person referred to in section 16(1)(b) or (c) of that Act for leave to apply for an extended litigation restraint order must be in Form 12A.

(3) An application referred to in this rule—

(a) must be supported by an affidavit; and

(b) must be made without notice to any person unless the Court orders otherwise.

12.03 Applications for limited and extended litigation restraint orders

(1) An application under section 10(1) or 16(1) of the Vexatious Proceedings Act 2014 for a limited litigation restraint order or an extended litigation

Order 12 (Headings and rules 12.01–12.16) inserted by S.R. No. 203/2014 rule 4.


r. 12.01




Part 2—Applications and Notices


29

restraint order (as the case requires) must be in Form 12B.

(2) An application referred to in this rule must be supported by an affidavit.

(3) In addition, a copy of the order granting leave to apply for the limited litigation restraint order or the extended litigation restraint order (as the case requires) must be attached to the application.

12.04 Applications for acting in concert orders (1) An application under section 34 of the Vexatious

Proceedings Act 2014 for an acting in concert order must be in Form 12C.

(2) An application referred to in this rule must be supported by an affidavit.

12.05 Application for leave to proceed under limited litigation restraint order

An application under section 50 of the Vexatious Proceedings Act 2014 by a person subject to a limited litigation restraint order for leave to make or continue an interlocutory application in the proceeding to which the limited litigation restraint order relates must be in Form 12D.

12.06 Application for leave to proceed under extended litigation restraint order

An application under section 52(1) of the Vexatious Proceedings Act 2014 by a person subject to an extended litigation restraint order for leave to commence or continue a proceeding must be—

(a) in Form 12E, in the case of an application to continue a proceeding; and

(b) in Form 12F, in the case of an application to commence a proceeding.


r. 12.04




Part 2—Applications and Notices


30

12.07 Application for leave to proceed under general litigation restraint order

An application under section 54 of the Vexatious Proceedings Act 2014 by a person subject to a general litigation restraint order for leave to commence or continue a proceeding must be—

(a) in Form 12G, in the case of an application to continue a proceeding; and

(b) in Form 12H, in the case of an application to commence a proceeding.

12.08 Notice of applications for leave to proceed—litigation restraint orders

(1) Notice required to be given by a direction of the Court under section 60(2) of the Vexatious Proceedings Act 2014 must be in Form 12I.

(2) The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates. Note

Further requirements are stated in section 60(4) of the Vexatious Proceedings Act 2014.

12.09 Application for leave to apply for variation or revocation of litigation restraint order

An application under section 65(1) of the Vexatious Proceedings Act 2014 by a person subject to a litigation restraint order for leave to apply to vary or revoke the order must be in Form 12J.

12.10 Application to vary or revoke litigation restraint order

(1) An application under section 65(1) of the Vexatious Proceedings Act 2014 by a person subject to a litigation restraint order to vary or revoke the order must be in Form 12K.


r. 12.07





Part 3—Provisions Applying to Applications


31

(2) In addition, a copy of the order granting leave to apply to vary or revoke the limited litigation restraint order must be attached to the application.

12.11 Notice of application to vary or revoke litigation restraint order

(1) Notice required to be given by a direction of the Court under section 67(2) of the Vexatious Proceedings Act 2014 must be in Form 12L.

(2) The notice must be accompanied by a copy of every order made or direction given by the Court in the application to which the notice relates and in the preceding leave application. Note

Further requirements are stated in section 67(4) of the Vexatious Proceedings Act 2014.

PART 3—PROVISIONS APPLYING TO APPLICATIONS

12.12 Application of Part This Part applies to an application that is made under any of the following sections of the Vexatious Proceedings Act 2014—

(a) section 10(1);

(b) section 16(1);

(c) section 34 in the case where the application relates to a person who is acting in concert with a person who is subject to a litigation restraint order that is not an extended litigation restraint order that relates to intervention order legislation.

12.13 Service of applications (1) The applicant must serve a copy of the application

and a copy of any affidavit in support on every person to whom notice of the application is to be given unless otherwise provided by these Rules.


r. 12.11






32

(2) The application must be served within a reasonable time before the day for hearing named in the application, and in no case later than 2.00 p.m. on the previous day, or where the office of the Court was closed on the day before the day for hearing, not later than 2.00 p.m. on the day the office was last open.

12.14 Day for hearing (1) If an application has not been served a registrar

may, at the request of the party who filed it, amend the application on or before the day for hearing named in the application to name another day.

(2) The application may be amended—

(a) by a magistrate; or

(b) by a judicial registrar; or

(c) a registrar.

(3) An application shall not be amended under this Rule more than once.

(4) This Rule does not limit the power of the Court under Rule 36.01 of Magistrates' Court General Civil Procedure Rules 2010.

12.15 Adjournment

(1) The Court may adjourn the hearing of an application on such terms as it thinks fit.

(2) The Court constituted by a registrar—

(a) may by consent order that the hearing of an application be adjourned to a particular date or for a particular time or generally, and reserve the costs of the adjournment; and

(b) must record the adjournment and any reservation of the costs by indorsement on the court file.


r. 12.14





33

(3) If the hearing of an application is adjourned under paragraph (2), the Court may thereafter, whether the costs of the adjournment were reserved or not, make an order in relation to the costs of or occasioned by the adjournment as it thinks fit.

12.16 Absence of party to application (1) If any person to whom an application is addressed

fails to attend, the Court may hear the application if satisfied that the application was duly served.

(2) If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit.

__________________


r. 12.16



34

FORMS FOR CHAPTER II CHAPTER II

RULE 3.03 FORM 3A

SERVICE AND EXECUTION OF PROCESS ACT 1992

ORDER

IN THE MAGISTRATES' COURT Court Number

OF VICTORIA

AT

BETWEEN A.B. Plaintiff

(full name)

OF

(address of plaintiff)

and

C.D. Defendant

(full name)

OF

(address of defendant)

Magistrate:

Date of order:

Nature of complaint:

How obtained: [state whether on hearing or arbitration or on application before hearing, identifying party filing application]

Attendances: [set out attendance or non-attendance of any person entitled to attend and, if attending, whether by counsel or solicitor]

Other matters: [state any finding of jurisdictional fact, undertaking of party or other matter as directed by Court]

Form 3A



35

The Court orders that:

1.

2. [terms of order]

I certify that this is a true and correct record.

Registrar

__________________

Form 3A



36

CHAPTER II

RULE 3.03 FORM 3B


DEFAULT ORDER FOR DEBT

[heading as in Form 3A]

Date of order:

Nature of proceedings:

How obtained: In default of notice of defence.

The order of the Court is that:

[e.g.: The defendant pay the plaintiff $ and $ interest and $ costs].

I certify that this is a true and correct record.

Registrar

__________________

Form 3B



37

CHAPTER II

RULE 3.04 FORM 3C


AFFIDAVIT IN SUPPORT OF ENFORCEMENT


I, [name] of [address]

in the State of MAKE OATH AND SAY:

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] %.

Form 3C



38

8. At the date of swearing this affidavit, interest in the sum of $ [amount] has accrued and is calculated as follows—

[date of judgment] to [date], [number] days @ [percentage figure] % = $ .

[If relevant, provide additional calculations taking into account payments or variations in interest rate e.g.—

[date] to [date], [number] days @ [percentage figure] % = $ .]

Sworn etc.

*Delete if inapplicable

__________________

Form 3C



39

CHAPTER II

RULE 5.02(2) FORM 5A

NOTICE OF APPEAL

IN THE MAGISTRATES' COURT 20 No.

OF VICTORIA

AT

In the matter of an appeal pursuant to [name of the Act and section of Act under which appeal is brought].

APPLICANT: [name and address]

RESPONDENT: [name and address]

The appellant appeals against [set out briefly the substance of the order or decision appealed against].

Date of order or decision:

Grounds of appeal: [set out specifically the grounds of appeal]

Dated: [e.g. 5 September 20 ].

[Signed by appellant]

__________________

Form 5A



40

CHAPTER II

RULE 6.02(1)(c) FORM 6A

APPLICATION FOR APPOINTMENT OF NOMINAL DEFENDANT


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].

__________________

Form 6A



41

CHAPTER II

RULE 6.02(3)(a) FORM 6B

NOTICE OF APPOINTMENT OF NOMINAL DEFENDANT


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].


[Signature of party or Australian lawyer for party who obtained order]

* Delete if inapplicable.

__________________

Form 6B



42

CHAPTER II

RULE 6.04(1)(b) FORM 6C

NOTICE OF REQUEST PURSUANT TO SECTION 45(1)(b) OF THE ACCIDENT COMPENSATION ACT 1985*/ SECTION 304 OF THE

WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013*


In the matter of the Accident Compensation Act 1985*/ Workplace Injury Rehabilitation and Compensation Act 2013*.

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—

(a)

(b)

(c)

Signed:


*Delete if inapplicable

__________________

Form 6C (Heading) amended by S.R. No. 70/2014 rule 22(1).

Form 6C amended by S.R. No. 70/2014 rule 22(2)(3).

Form 6C



43

CHAPTER II

RULE 6.05(1)(a) or (2)(a) FORM 6D

APPLICATION


TO: [identify each party to whom application is addressed]

YOU are summoned to attend before the Court on the hearing of an application by the [party] for [describe the order sought].

The application will be heard by the Court at [venue] at [time] on [date].

Registrar

FILED: [e.g. 5 September 20 ].

This application was filed by , Australian lawyer for [identify party].

__________________

Form 6D amended by S.R. No. 70/2014 rule 23.

Form 6D



44

CHAPTER II

RULE 7.03 FORM 7A

NOTICE TO DEFENDANT UNDER CORPORATIONS ACT


TO: [name and address of each defendant (if any)]

This complaint will be mentioned at [venue] at [time] on [date].

If you intend to defend the complaint you must attend:

(a) in person or instruct a legal practitioner to attend on your behalf on the mention date; and

(b) give a notice of defence in accordance with Order 8 of the Magistrates' Court General Civil Procedure Rules 2010.

If you or your legal practitioner do not attend on the mention date the Court may:

(a) make a final order;

(b) give directions as to the future conduct of the proceeding; or

(c) hear any application.

Dated: [e.g. 5 September, 20 ].

Registrar

__________________

Form 7A



45

CHAPTER II


AFFIDAVIT IN SUPPORT OF SUMMONS FOR COMMITMENT


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.

Sworn, etc.

__________________

Form 8A



46

FORM 12A

Rule 12.02

*[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]/*[heading in accordance with Rule 27.02]

APPLICATION FOR LEAVE TO APPLY FOR LIMITED LITIGATION RESTRAINT ORDER OR EXTENDED LITIGATION

RESTRAINT ORDER

(Section 10(1) or 16(1) of the Vexatious Proceedings Act 2014)

I, [name], apply under section *10(1)/*16(1) of the Vexatious Proceedings Act 2014 for leave to apply for *a limited litigation restraint order/*an extended litigation restraint order.

In accordance with section *10(3)/*16(3) of that Act, I contend that there is merit in the application and that the making of the application would not be an abuse of process on the basis of the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks—

1. leave to apply for *a limited litigation restraint order/*an extended litigation restraint order;

2. [set out any other orders sought].

ACCOMPANYING AFFIDAVIT

This application is accompanied by an affidavit in support of the order(s) sought in the application.

FILED [insert date].

This application was filed—

*(a) by the applicant in person.

*(b) for the applicant by [name or firm of Australian lawyer], Australian lawyer, of [business address of Australian lawyer].

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

The address of the applicant is:

The address for service of the applicant is:

Form 12A inserted by S.R. No. 203/2014 rule 5.

Form 12A



47

Date:

Signed

*delete if inapplicable

__________________

Form 12A



48

FORM 12B

Rule 12.03


APPLICATION FOR LIMITED LITIGATION RESTRAINT ORDER OR EXTENDED LITIGATION RESTRAINT ORDER

(Section 10(1) or 16(1) of the Vexatious Proceedings Act 2014)

I, [name], apply for *a limited litigation restraint order/*an extended litigation restraint order under section *10(1)/*16(1) of the Vexatious Proceedings Act 2014.

Leave was granted to me to apply by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.

I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. *a limited litigation restraint order/*an extended litigation restraint order;


SUMMONS

To: [identify each party or other person to whom the application is addressed and state address of each person not a party].

You are summoned to attend before the Court on the hearing of the application for the orders sought.

The application will be heard in the Magistrates' Court of Victoria at [insert venue] on [e.g. 20 June 20 ] at [insert time] a.m. [or p.m.] or so soon afterwards as the business of the Court allows.




Form 12B inserted by S.R. No. 203/2014 rule 5.

Form 12B



49







Date:

Signed


__________________

Form 12B



50

FORM 12C

Rule 12.04


APPLICATION FOR ACTING IN CONCERT ORDER

(Section 34 of the Vexatious Proceedings Act 2014)

I, [name], am a person referred to in section *34(a)/*34(b) of the Vexatious Proceedings Act 2014 and apply under that section for an acting in concert order.

I contend that the order should be made on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. an acting in concert order;


SUMMONS

To: [identify each party or other person to whom the application is addressed and state address of each person not a party].

You are summoned to attend before the Court on the hearing of the application for the orders sought.

The application will be heard in the Magistrates' Court of Victoria at [insert venue] on [e.g. 20 June 20 ] at [insert time] a.m. [or p.m.] or so soon afterwards as the business of the Court allows.







Form 12C inserted by S.R. No. 203/2014 rule 5.

Form 12C



51




Date:

Signed


__________________

Form 12C



52

FORM 12D

Rule 12.05

[heading as in Form 5A of the Magistrates' Court General Civil Procedure Rules 2010]

APPLICATION FOR LEAVE TO MAKE OR CONTINUE INTERLOCUTORY APPLICATION IN PROCEEDING BY PERSON

SUBJECT TO LIMITED LITIGATION RESTRAINT ORDER


I, [name], a person subject to a limited litigation restraint order [identify the relevant order], apply under section 50 of the Vexatious Proceedings Act 2014 for leave to *make/*continue an interlocutory application in this proceeding.

In accordance with section 51 of that Act, I contend that the interlocutory application is not a vexatious application and that there are reasonable grounds for the application, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. leave to *make/*continue the following interlocutory application [specify];



This application is accompanied by an affidavit disclosing the details required under section 56 of the Vexatious Proceedings Act 2014 as follows—

(a) details of each application for leave to proceed made by the applicant;

(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant—

(i) that is a vexatious application or a vexatious proceeding (as defined in the Act); or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

Form 12D inserted by S.R. No. 203/2014 rule 5.

Form 12D



53

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, which are known to the applicant.








Date:

Signed


__________________

Form 12D



54

FORM 12E

Rule 12.06


APPLICATION FOR LEAVE TO CONTINUE PROCEEDING BY PERSON SUBJECT TO EXTENDED LITIGATION RESTRAINT

ORDER

(Section 52(1) of the Vexatious Proceedings Act 2014)

I, [name], a person subject to an extended litigation restraint order [identify the relevant order], apply under section 52(1) of the Vexatious Proceedings Act 2014 for leave to continue *this proceeding/*a proceeding to which the order relates, namely [identify the relevant proceeding].

In accordance with section 53 of that Act, I contend that *this proceeding/*the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. leave to continue this proceeding/*a proceeding, namely [identify relevant proceeding];









Form 12E inserted by S.R. No. 203/2014 rule 5.

Form 12E



55









The address for service of the applicant is: Date:

Signed


__________________

Form 12E



56

FORM 12F

Rule 12.06

IN THE MAGISTRATES' COURT

OF VICTORIA

20 No.

AT

IN THE MATTER of an application under section 52(1) of the Vexatious Proceedings Act 2014.

APPLICATION FOR LEAVE TO COMMENCE PROCEEDING BY PERSON SUBJECT TO EXTENDED LITIGATION RESTRAINT

ORDER

I, [name], a person subject to an extended litigation restraint order [identify the relevant order], apply under section 52(1) of the Vexatious Proceedings Act 2014 for leave to commence a proceeding *against a person or other entity protected by the order/*in respect of a matter described in the order.

In accordance with section 53 of that Act, I contend that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. leave to commence a proceeding, namely, [set out full details of proposed proceeding for which leave is sought, including the names and addresses of all proposed parties];






Form 12F inserted by S.R. No. 203/2014 rule 5.

Form 12F



57













Signed


__________________

Form 12F



58

FORM 12G

Rule 12.07


APPLICATION FOR LEAVE TO CONTINUE PROCEEDING BY PERSON SUBJECT TO GENERAL LITIGATION RESTRAINT

ORDER


I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to continue *this proceeding/*a proceeding, namely [identify relevant proceeding].

In accordance with section 55 of that Act, I contend that *this proceeding/*the proceeding is not a vexatious proceeding and that there are reasonable grounds for the proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. leave to continue *this proceeding/*a proceeding, namely [identify the proceeding];









Form 12G inserted by S.R. No. 203/2014 rule 5.

Form 12G



59










Signed


__________________

Form 12G



60

FORM 12H

Rule 12.07

IN THE MAGISTRATES' COURT

OF VICTORIA

20 No.

AT

IN THE MATTER of an application under section 54 of the Vexatious Proceedings Act 2014.

APPLICATION FOR LEAVE TO COMMENCE PROCEEDING BY PERSON SUBJECT TO GENERAL LITIGATION RESTRAINT

ORDER

I, [name], a person subject to a general litigation restraint order [identify the relevant order], apply under section 54 of the Vexatious Proceedings Act 2014 for leave to commence a proceeding.

In accordance with section 55 of that Act, I contend that the proposed proceeding would not be a vexatious proceeding and that there are reasonable grounds for the proposed proceeding, namely that: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


1. leave to commence a proceeding, namely, [set out full details of proposed proceeding for which leave is sought, including the names and addresses of all proposed parties];






Form 12H inserted by S.R. No. 203/2014 rule 5.

Form 12H



61













Signed


__________________

Form 12H



62

FORM 12I

Rule 12.08

[heading as used in application for leave to proceed]

NOTICE OF APPLICATION FOR LEAVE TO PROCEED


TO:

(a) the Attorney-General;

(b) [name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].

TAKE NOTICE that [name] of [address], a person subject to a litigation restraint order, has made an application to the Court for leave to proceed as follows: [describe the relief sought in the application].

Under section 60(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for leave to proceed be given to you.

This notice is accompanied by a copy of the application for leave to proceed and by a copy of every order made or direction given by the Court in the application to which this notice relates.

You are entitled to make submissions in relation to the application.

Date:

Any Questions? If you have any questions, please contact the registrar at the Magistrates' Court of Victoria [venue], Tel: [insert telephone number], Hours: 9:00 a.m. to 4:30 p.m. each business day. *delete if inapplicable

__________________

Form 12I inserted by S.R. No. 203/2014 rule 5.

Form 12I



63

FORM 12J

Rule 12.09


APPLICATION FOR LEAVE TO APPLY TO VARY OR REVOKE LITIGATION RESTRAINT ORDER


I, [name], a person subject to *a limited litigation restraint order/*an extended litigation restraint order/*a general litigation restraint order [identify the relevant order] apply for leave to apply to *vary/*revoke that order under section 65(1) of the Vexatious Proceedings Act 2014.

I contend that leave to apply should be given to *vary the order/*revoke the order, on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT

The applicant seeks leave to apply for—

*1. variation of the order in the following manner [specify variation of order sought];

*1. revocation of the order;








Form 12J inserted by S.R. No. 203/2014 rule 5.

Form 12J



64


Signed


__________________

Form 12J



65

FORM 12K

Rule 12.10


APPLICATION TO VARY OR REVOKE LITIGATION RESTRAINT ORDER


I, [name], a person subject to *a limited litigation restraint order/*an extended litigation restraint order/*a general litigation restraint order [identify the relevant order] apply to *vary/*revoke that order under section 65(1) of the Vexatious Proceedings Act 2014.

Leave was granted to me to apply to *vary/*revoke that order by order of [insert name of Court] on [insert date]. Attached to this application is a copy of that order.

I contend that the order should be *varied in the manner set out below/*revoked, on the following grounds: [set out the grounds in numbered paragraphs].

ORDERS SOUGHT


*1. variation of the order in the following manner [specify variation of order sought];

*1. revocation of the order;







Form 12K inserted by S.R. No. 203/2014 rule 5.

Form 12K



66



Date:

Signed


__________________

Form 12K



67

FORM 12L

Rule 12.11

[heading as used in application for leave to vary or revoke litigation restraint order]

NOTICE OF APPLICATION TO VARY OR REVOKE LITIGATION RESTRAINT ORDER


TO:

(a) the Attorney-General;

(b) [name of person to be given notice of the application in accordance with the Court's direction, and if more than one, list separately].

TAKE NOTICE that [name] of [address], a person subject to a litigation restraint order, has made an application to the Court to *vary the litigation restraint order in the following manner [describe variation sought]/*revoke the litigation restraint order.

Under section 67(2) of the Vexatious Proceedings Act 2014, the Court has directed that notice of the application for *variation/*revocation be given to you.

This notice is accompanied by a copy of the application for *variation/*revocation and by a copy of every order made or direction given by the Court in the application for *variation/*revocation and in the preceding leave application.

You are entitled to make submissions in relation to the application for *variation/*revocation.

Date:

Any Questions? If you have any questions, please contact the registrar at the Magistrates' Court of Victoria [venue], Tel: [insert telephone number], Hours: 9:00 a.m. to 4:30 p.m. each business day. *delete if inapplicable

__________________

Form 12L inserted by S.R. No. 203/2014 rule 5.

Form 12L



68

CHAPTER II


COMPLAINT

(Instruments Act 1958)


TO THE DEFENDANT

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

Form 9A



69

(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.]

4. The address of the defendant is—


__________________

Form 9A



70

CHAPTER II

RULE 9.04(3) FORM 9B

APPLICATION FOR LEAVE TO DEFEND



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].


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].


__________________

Form 9B



71

CHAPTER II

RULE 9.05(2) FORM 9C

APPLICATION FOR ORDER



1. The plaintiff requests that an order be made for $ [amount] plus interest at 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.

4. The plaintiff's costs are—


* Plaintiff

* Plaintiff's Australian lawyer


__________________

Form 9C amended by S.R. No. 158/2012 rule 7.

Form 9C



72

CHAPTER II

RULE 9.06 FORM 9D

NOTIFICATION OF DECISION



TO THE PLAINTIFF AND TO THE DEFENDANT

APPLICATION FOR LEAVE TO DEFEND was filed on [date] and has been considered by the Court.

The Court orders as follows—

* Application for leave to defend refused.

* Application for leave to defend granted upon condition—[set out conditions, if any].

Dated: [e.g. 5 September, 20 ].

Registrar


__________________

Form 9D



73

CHAPTER II

RULE 9.07(1)(a) FORM 9E

APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE



TO THE PLAINTIFF

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].


* 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].


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.]


__________________

Form 9E



74

APPENDIX AA Rule 2.08

COSTS IN RESPECT OF AN ARBITRATION

1 Costs 1.1 For all professional costs including Australian

lawyers' costs and fees to counsel— (a) where the amount

awarded is $500 or more but does not exceed $3000

not more than $1432 for the first 2 hours of arbitration

(b) where the amount awarded exceeds $3000 but is less than $5000


(c) if a party is awarded costs only and the amount claimed in the complaint is $500 or more but does not exceed $3000


(d) if a party is awarded costs only and the amount claimed in the complaint exceeds $3000 but is less than $5000


(e) where the amount awarded is $5000 or more but is less than $10 000


(f) if a party is awarded costs only and the amount claimed in the complaint exceeds $5000 but is less than $10 000


Appendix AA inserted by S.R. No. 106/2014 rule 6.

App. AA



75

(g) if a complaint has been the subject of a pre-hearing conference under section 107 of the Magistrates' Court Act 1989 or a mediation under section 108 of the Magistrates' Court Act 1989, the following additional amounts are payable

(i) $270, if paragraph (a) or (c) applies; or

(ii) $335, if paragraph (b) or (d) applies; or

(iii) $403, if paragraph (e) or (f) applies.

1.2 If an arbitration exceeds 2 hours, the Court may award in respect of each further 2 hours of arbitration or part thereof an amount not exceeding 50% of the amount referred to in the applicable paragraph of item 1.1.

2 Disbursements 2.1 In addition to the above amounts, money properly

paid or payable out of pocket and the expenses of witnesses and interpreters are to be allowed.

Note

See also sections 105 and 131 of the Act in relation to the awarding of costs in an arbitration.

__________________

App. AA



76

APPENDIX A

CIVIL REGISTRY COURTS

Ararat Hamilton Orbost

Bacchus Marsh Heidelberg Ouyen

Bairnsdale Hopetoun Portland

Ballarat Horsham Ringwood

Benalla Kerang Robinvale

Bendigo Korumburra St. Arnaud

Broadmeadows Kyneton Sale

Castlemaine Latrobe Valley Seymour

Cobram Mansfield Shepparton

Colac Maryborough Stawell

Neighbourhood Justice Centre, Collingwood

Melbourne Sunshine

Corryong Mildura Swan Hill

Dandenong Moe Wangaratta

Dromana Moorabbin Justice Centre

Warrnambool

Echuca Myrtleford Werribee

Frankston Nhill Wodonga

Geelong Omeo Wonthaggi

__________________

Appendix (Heading) substituted as Appendix A by S.R. No. 11/2014 rule 14.

Appendix A



77

APPENDIX B

CIVIL REGISTRY COURTS—PROCEEDING TO WHICH THE TRANS-TASMAN PROCEEDINGS ACT 2010 OF THE

COMMONWEALTH APPLIES

Bairnsdale Heidelberg Seymour

Ballarat Horsham Shepparton

Bendigo Latrobe Valley Wangaratta

Broadmeadows Melbourne Warrnambool

Dandenong Mildura Werribee

Echuca Moorabbin Justice Centre

Wodonga

Frankston Ringwood

Geelong Sale

Dated: 26 October 2010

I GRAY, Chief Magistrate

L MARTIN, Deputy Chief Magistrate

PETER LAURITSEN, Deputy Chief Magistrate

═══════════════

Appendix B inserted by S.R. No. 11/2014 rule 15.

Appendix B



78

ENDNOTES

1. General Information The 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).

Endnotes



79

2. Table of Amendments This Version incorporates amendments made to the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010 by statutory rules, subordinate instruments and Acts.

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

Magistrates' Court (Miscellaneous Civil Proceedings) (Amendment No. 1) Rules 2011, S.R. No. 124/2011

Date of Making: 3.11.11 Date of Commencement: 3.11.11

Magistrates' Court (Miscellaneous Civil Proceedings) (Amendment No. 2) Rules 2012, S.R. No. 27/2012

Date of Making: 23.4.12 Date of Commencement: 25.4.12: rule 3

Magistrates' Court General Civil Procedure and Miscellaneous Civil Proceedings (Scale of Costs and Other Amendments) Rules 2012, S.R. No. 158/2012

Date of Making: 12.12.12 Date of Commencement: Rules 6, 7 on 1.1.13: rule 3

Magistrates' Court General Civil Procedure and Miscellaneous Civil Proceedings (Trans-Tasman Proceedings Amendment) Rules 2014, S.R. No. 11/2014

Date of Making: 1.4.14 Date of Commencement: Rules 13–15 on 7.4.14: rule 3

Magistrates' Court (Chapters I and II Miscellaneous Amendments) Rules 2014, S.R. No. 70/2014

Date of Making: 18.6.14 Date of Commencement: Rules 18–24 on 1.7.14: rule 3

Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs Amendment) Rules 2014, S.R. No. 106/2014

Date of Making: 25.7.14 Date of Commencement: 1.8.14: rule 3

Magistrates' Court (Vexatious Proceedings Amendments) Rules 2014, S.R. No. 203/2014

Date of Making: 30.10.14 Date of Commencement: Rules 4, 5 on 31.10.14: rule 3

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

Endnotes



80

3. Explanatory Details No entries at date of publication.

Endnotes

magistrates' court (miscellaneous civil … compensation act 2013 12 ... form 9c—application...

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