Magistrates' Court (Miscellaneous Civil
Proceedings) (Arbitration Costs and Forms
Amendment) Rules 2015
S.R. No. 4/2015
TABLE OF PROVISIONS
Rule
1
2
3
4
5
6
7
Page
Object
Authorising provisions
Commencement
Principal Rules
Insertion of new Form 9A and relocation of Forms related to
Order 9
1
1
1
2
Form 9A—Complaint
2
Form 9B—Application for Leave to Defend
5
Form 9C—Application for Order
6
Form 9D—Notification of Decision
7
Form 9E—Application for Leave to Defend after Order Made
8
Amendment of costs caps in Appendix AA
Statute law revision
═══════════════
8
9
ENDNOTES
2
10
i
STATUTORY RULES 2015
S.R. No. 4/2015
Magistrates' Court Act 1989
Magistrates' Court (Miscellaneous Civil
Proceedings) (Arbitration Costs and Forms
Amendment) Rules 2015
The Chief Magistrate together with 2 Deputy Chief
Magistrates jointly make the following Rules:
1 Object
The object of these Rules is to amend the
Magistrates' Court (Miscellaneous Civil
Proceedings) Rules 2010—
(a) to increase the caps on the costs that may be
awarded in proceedings referred to
arbitration; and
(b) to substitute a new Form 9A; and
(c) to make a statute law revision in relation to
the order of certain Forms and the headings
to certain Forms.
2 Authorising provisions
These Rules are made under section 16 of the
Magistrates' Court Act 1989 and all other
enabling powers.
3 Commencement
These Rules come into operation on
1 February 2015.
1
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 4
4 Principal Rules
In these Rules, the Magistrates' Court
(Miscellaneous Civil Proceedings) Rules 20101
are called the Principal Rules.
5 Insertion of new Form 9A and relocation of Forms
related to Order 9
After Form 8A of the Principal Rules insert—
"CHAPTER II
RULE 9.03(1)
FORM 9A
COMPLAINT
(Instruments Act 1958)
[heading as in Form 3A]
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 (JUDGMENT) 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 North East 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.
2
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 5
THE COURT MAY GIVE LEAVE TO DEFEND if you—
(a) pay into Court the amount claimed, namely, $ [amount]; or
(b) file affidavits satisfactory to the Court which disclose—
(i) a defence; or
(ii) such facts as would make it incumbent on the holder to prove
consideration; or
(iii) such other facts as the Court considers sufficient to support the
application.
DATE OF FILING:
THIS COMPLAINT IS VALID IF IT BEARS THE ALLOCATED COURT
NUMBER AND THE DATE OF FILING
Particulars of Claim
The Plaintiff claims $ [amount] principal and interest [or $ [amount] balance
of principal and interest] due to the payee [indorsee or bearer] of a bill of
exchange [promissory note or order for the payment of money] of which the
following is a copy.
[Here copy bill and all indorsements on it]
1.
This Complaint was filed by—
* the plaintiff in person;
* for the plaintiff by [name of firm of Australian lawyer], Australian
lawyer(s), of [business address within Victoria 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 within Victoria of the
Australian lawyer. If the plaintiff sues in person, the address in 2.]
4.
The address of the defendant is—
IMPORTANT INFORMATION FOR THE DEFENDANT
Interpreters
If you need an interpreter to help you read this document contact details for
most languages are listed at www.magistratescourt.vic.gov.au.
Legal and financial advice
The Court's registrars do NOT provide legal or financial advice but may
provide some information to you about the actions and processes you must
undertake in order to defend this claim.
3
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 5
If before making an APPLICATION TO OBTAIN LEAVE TO DEFEND,
you wish to get FREE LEGAL or FINANCIAL ADVICE you may be able to
do so from free legal advice services and free financial counselling services.
Those services are not employed by or under the control of the Court and
therefore the Court cannot recommend any of them, but contact details for
such services together with some practical assistance can be obtained from
the Magistrates' Court of Victoria's website at
www.magistratescourt.vic.gov.au.
Your local municipal council may also be able to provide contact details for
community services in your area that may be able to assist you.
Payment of Judgment Debt by Instalments
IF YOU DO NOT obtain leave to defend this claim and do not reach
agreement with the plaintiff relating to the time for payment after an order
(judgment) against you, you may apply to the Court for an order permitting
you to pay that order (judgment) by instalments. The Court will consider
your application and advise you of the outcome.
The Court's registrars will be able to provide you with information about the
process to apply for an order for payment of the judgment debt by
instalments.
* Delete if inapplicable.
__________________
4
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 5
CHAPTER II
RULE 9.04(3)
FORM 9B
APPLICATION FOR LEAVE TO DEFEND
(Instruments Act 1958)
[heading as in Form 3A]
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:
1.
[e.g. 5 September, 20
].
This application was filed by—
* the defendant in person;
* for the defendant by [name or firm of Australian lawyer],
Australian lawyer(s), of [business address of Australian lawyer].
2.
The address of the defendant is—
3.
The address for service of the defendant is—[If the defendant defends
by an Australian lawyer, the business address within Victoria of the
Australian lawyer. If the defendant sues in person, the address in 2.]
4.
The date of service of the complaint was [date].
* Delete if inapplicable.
__________________
5
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 5
CHAPTER II
RULE 9.05(2)
FORM 9C
APPLICATION FOR ORDER
(Instruments Act 1958)
[heading as in Form 3A]
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—
FILED: [e.g. 5 September, 20
].
* Plaintiff
* Plaintiff's Australian lawyer
* Delete if inapplicable.
__________________
6
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 5
CHAPTER II
RULE 9.06
FORM 9D
NOTIFICATION OF DECISION
(Instruments Act 1958)
[heading as in Form 3A]
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
* Delete if inapplicable.
__________________
7
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 6
CHAPTER II
RULE 9.07(1)(a)
FORM 9E
APPLICATION FOR LEAVE TO DEFEND AFTER ORDER MADE
(Instruments Act 1958)
[heading as in Form 3A]
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].
FILED: [e.g. 5 September, 20
].
* Defendant
* Defendant's Australian lawyer
Registrar
1.
This application was filed by—
*the defendant in person;
*for the defendant by [name or firm or Australian lawyer], Australian
lawyer(s), of [business address within Victoria of Australian lawyer].
2.
The address of the defendant is—
3.
The address for service of the defendant is—[If the defendant defends
by an Australian lawyer, the business address within Victoria of the
Australian lawyer. If the defendant sues in person, the address in 2.]
* Delete if inapplicable.
__________________".
6 Amendment of costs caps in Appendix AA
In Appendix AA of the Principal Rules—
(a) in item 1.1(a) and (c), for "$1432" substitute
"$1464";
8
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
r. 7
(b) in item 1.1(b) and (d), for "$1544"
substitute "$1578";
(c) in item 1.1(e) and (f), for "$1655" substitute
"$1691";
(d) in item 1.1(g)—
(i) for "$270" substitute "$276";
(ii) for "$335" substitute "$342";
(iii) for "$403" substitute "$412".
7 Statute law revision
(1) Forms 9A to 9E of the Principal Rules located
after Form 12L of the Principal Rules are
revoked.
(2) In Forms 12A to 12L of the Principal Rules,
insert "CHAPTER II" immediately above the
heading.
Dated: 20 January 2015
PETER LAURITSEN,
Chief Magistrate
DANIEL JOHN MULING,
Deputy Chief Magistrate
FELICITY ANNE BROUGHTON,
Deputy Chief Magistrate
═══════════════
9
Magistrates' Court (Miscellaneous Civil Proceedings) (Arbitration Costs and
Forms Amendment) Rules 2015
S.R. No. 4/2015
Endnotes
ENDNOTES
1
Rule 4: S.R. No. 141/2010 as amended by S.R. Nos 124/2011, 27/2012,
158/2012, 11/2014, 70/2014, 106/2014 and 203/2014.
10