Magistrates Court (Minor Cases Procedure) Rules 2005

 

Magistrates Court (Minor Cases Procedure) Rules 2005

CONTENTS

Part 1 — Preliminary

1.Citation1

2.Commencement1

3.These rules to be read with the Magistrates Courts (General) Rules 20051

4.Terms used in these rules1

5.When these rules apply3

5A.Exercise of Court’s powers in Part 3 of the Act3

Part 2 — How to make and defend a claim generally

6.When this Part applies4

7.How to make a claim4

8.Lodging a statement of your claim4

9.How to respond to a claim5

10.Lodging a statement of your defence5

Part 3 — How to make a consumer/trader claim

11.How to make a consumer/trader claim7

12.Service of the claim7

13.Registrar to list case for listing conference7

14.Listing conference7

15.Attendance of parties at listing conferences7

Part 4 — If you or another party does not defend a claim

16.When this Part applies8

17.If the claim is for a specified amount8

18.If the claim is for an unspecified amount8

19.If the claim against you is for claim to recover possession of personal property9

20.Registrar may give default judgment in absence of parties9

21.Leave needed in cases lasting one year or more9

22.Registrar to list application9

22A.Registrar may order costs after giving judgment9

Part 5 — Pre‑trial conferences

23.Listing a pre‑trial conference10

24.What happens at a pre‑trial conference10

25.If there is a counterclaim that is not a minor case11

26.Your attendance at a pre‑trial conference or hearing11

27.Listing the case for trial11

28.Status of things said or done at a pre‑trial conference11

Part 6 — Mediation

29.Mediation conference13

30.Attendance of parties at mediation conferences13

31.Outcome of mediation13

32.Further pre‑trial conference if case not settled13

Part 7 — Consent orders and settlement

33.Memorandum of consent14

34.Registrar may make consent orders or give judgment14

35.When the rules require your consent14

36.Settling claims involving a person under a legal disability14

Part 8 — Trial

37.How the trial of your case is to be conducted16

38.Your attendance at trial16

39.How to call witnesses16

40.Return of things after trial17

Part 9 — Orders and judgments

41.Money paid to you if you are a person under a legal disability18

42.Setting aside default judgment18

43.Decisions of Registrars18

44.Requests for certificate of judgment18

Part 10 — How to lodge documents

45.How to lodge a document19

46.Where you may lodge a claim that starts a case19

47.If a Registrar refuses to accept your document for lodgment19

48.You may lodge documents by hand delivery or pre‑paid post19

49.Lodging documents electronically or by fax20

Part 11 — How to serve documents

Division 1 — General

50.Meaning of “serve”21

51.How to serve a document21

52.A bailiff may serve documents for you22

53.You must lodge an affidavit after serving a document22

Division 2 — Service at a residential, business or postal address

54.Your address must be on each document22

55.If you are not represented22

56.If you are represented23

57.If your address changes23

Division 3 — Personal service

58.Service on an individual personally23

59.Service on a partnership personally24

60.Service on a corporation personally24

61.Service on a public authority personally25

Part 12 — How to make an application

62.How to make a written application26

63.Your supporting affidavit26

64.Application must be served26

65.Response to an application27

66.How the Court will deal with your application27

Part 13 — Affidavits

67.Form of an affidavit28

68.Content of an affidavit28

Part 14 — If you need a litigation guardian

69.Terms used in this Part29

70.When this Part applies29

71.If you are a represented person29

72.Affidavit your litigation guardian must lodge and serve if you are a represented person30

73.If you are a child31

74.Affidavits your litigation guardian must lodge and serve if you are a child31

75.Person may apply to be appointed your litigation guardian32

Part 15 — Miscellaneous

76.You may discontinue claim33

77.Availability of forms33

78.Partnership name may be used33

79.When you are required to do things personally and you are not an individual33

80.Payments into Court34

81.Registrar’s powers under the Civil Judgments Enforcement Act 200434

Notes

Compilation table36

Provisions that have not come into operation36

 

Magistrates Court (Civil Proceedings) Act 2004

Magistrates Court (Minor Cases Procedure) Rules 2005

Part 1  Preliminary

1.Citation

These rules are the Magistrates Court (Minor Cases Procedure) Rules 2005.

2.Commencement

These rules come into operation on the day on which the Magistrates Court (Civil Proceedings) Act 2004 comes into operation.

3.These rules to be read with the Magistrates Courts (General) Rules 2005

These rules are to be read with the Magistrates Courts (General) Rules 2005.

4.Terms used in these rules

In these rules, unless the contrary intention appears —

agent means a lawyer or any other person who is representing you with the leave of the Court;

application means an application made under Part 12;

approved form means the form approved by the Chief Magistrate;

counterclaim means a claim made by a defendant against a claimant including a claim for set‑off;

default judgment means a judgment without trial given against a party for a failure by the party to comply with the Act, these rules or an order made by the Court, and includes a dismissal of a claim for want of service without consideration of its merits;

defendant means a party against which a claim is made by a claimant;

enforcement officer has the meaning given to that term in the Civil Judgments Enforcement Act 2004 section 3;

lodge has the meaning affected by rule 47;

order includes a direction;

partnership means —

(a)a partnership as defined in the Partnership Act 1895 section 7;

(b)an unincorporated company or association formed for the purposes of gain; or

(c)3 or more persons who otherwise have a joint or several interest or liability in a case;

personal service has a meaning corresponding with the meaning of “serve personally”;

Public Trustee means the Public Trustee under the Public Trustee Act 1941;

Registrar does not include a Deputy Registrar;

response means a response made under rule 9 to a claim;

serve has a meaning affected by rule 50;

serve personally in relation to a document, means to serve the document in accordance with Part 11 Division 3;

third party means a party against which a third party claim is made;

third party claim means a claim made by a defendant against a party other than the claimant relating to the claim against the defendant;

working day means a day other than a Saturday, a Sunday, or a public holiday.

[Rule 4 amended in Gazette 24 Aug 2007 p. 4333.]

5.When these rules apply

Unless the Court in a particular case orders otherwise, these rules apply in every minor case.

5A.Exercise of Court’s powers in Part 3 of the Act

The Court’s powers in Part 3 of the Act, except sections 14, 18 and 25, may be exercised by the Court in every circumstance.

[Rule 5A inserted in Gazette 10 Jun 2005 p. 2566.]

Part 2 —  How to make and defend a claim generally

6.When this Part applies

This Part applies if —

(a)you want to make any claim other than a consumer/trader claim; or

(b)if a claim other than a consumer/trader claim is made against you.

7.How to make a claim

(1)If you want to make a claim you must lodge the approved form.

(2)Your claim may, but need not, be lodged together with a statement of claim in accordance with rule 8.

(3)If your claim starts a case you must serve it as soon as practicable, and in any event within one year, after the day on which you lodge it.

(4)If your claim is a counterclaim or third party claim you must lodge it together with your statement of defence referred to in rule 9.

(5)Unless these rules or an Act says otherwise, your claim must be served personally on the party you are claiming against.

8.Lodging a statement of your claim

(1)If you make a claim, you must lodge and serve a statement of claim in accordance with this rule.

(2)Unless you lodged and served your statement of claim with your claim you must lodge and serve your statement of claim within 14 days after you are served with a response that indicates an intention to defend the claim.

(3)Your statement of claim must be in an approved form.

(4)Your statement of claim must contain —

(a)a summary of the facts relevant to your claim;

(b)a list of any documents that you might tender in evidence at the trial in support of your claim;

(c)what remedy or relief you want.

[Rule 8 amended in Gazette 10 Jun 2005 p. 2566.]

9.How to respond to a claim

(1)If a claim has been made against you, you must complete the response served with the claim and lodge it with the Court within 14 days after the claim was served.

(2)Your response may, but need not, be lodged together with a statement of defence in accordance with rule 10.

(3)After you lodge your response, the Court will give a copy of it to the party which made the claim against you and to every other party to your case.

(4)If you admit the whole of the claim, a Registrar may give judgment against you.

10.Lodging a statement of your defence

(1)If you are served with a claim against you, you must lodge and serve a statement of defence in accordance with this rule.

(2)Unless you lodged and served your statement of defence with your response you must lodge and serve your statement of defence within 14 days after you are served with a statement of claim.

(3)Your statement of defence must be in the approved form.

(4)Your statement of defence must contain —

(a)a summary of the facts relevant to your defence;

(b)a list of any documents that you might tender in evidence at the trial in support of your defence; and

(c)the details of anyone who you allege is liable for you and the grounds upon which you base that allegation.

Part 3  How to make a consumer/trader claim

11.How to make a consumer/trader claim

If you want to make a consumer/trader claim you must lodge the approved form.

12.Service of the claim

After you lodge a consumer/trader claim, the Court will give a copy of it to the party against which you are claiming and to every other party to your case.

13.Registrar to list case for listing conference

A Registrar must, as soon as possible after you have lodged your consumer/trader claim, list your case for a listing conference and write the date of that conference on the copy of the claim.

[Rule 13 amended in Gazette 10 Jun 2005 p. 2566.]

14.Listing conference

(1)A listing conference must be conducted before a magistrate, in private and at any time or place the Court thinks fit.

(2)Unless the Court at a listing conference orders the parties to attend before a mediator, or to attend a pre‑trial conference or listing conference, the Court will list the case for trial.

(3)The Registrar must notify you and the other parties in writing of the listing.

15.Attendance of parties at listing conferences

You must attend a listing conference in person.

Part 4  If you or another party does not defend a claim

16.When this Part applies

This Part applies if an application for default judgment is made against you or another party for a failure to —

(a)lodge a response in accordance with rule 9(1); or

(b)lodge a statement of defence in accordance with rule 10(1).

17.If the claim is for a specified amount

Unless rule 21 applies, a Registrar may give default judgment for a specified amount if the claim is for —

(a)a liquidated amount;

(b)an unliquidated amount of $500 or less; or

(c)an unliquidated amount of more than $500, if the Registrar is able to assess the amount from any supporting affidavit lodged with the application.

18.If the claim is for an unspecified amount

(1)Unless rule 21 applies, a Registrar may give default judgment for an unspecified amount if the claim is for any unliquidated amount not referred to in rule 17.

(2)When the Registrar gives default judgment for an unspecified amount, the Registrar must —

(a)list the application for a hearing at which the Court will assess the amount; and

(b)notify you and the other parties in writing at least 28 days before the hearing.

(3)An application for default judgment under this Part does not need to be supported by an affidavit unless a hearing is listed under subrule (2) or rule 22. In that case a supporting affidavit must be lodged at least 14 days before the hearing.

19.If the claim against you is for claim to recover possession of personal property

Unless rule 21 applies, or the claim is a consumer/trader claim, a Registrar may give default judgment for a claim to recover possession of personal property.

20.Registrar may give default judgment in absence of parties

A Registrar may give default judgment under this Part in the absence of the parties.

21.Leave needed in cases lasting one year or more

A Registrar must not give default judgment against you under this Part if one year or more has passed since the claim that started the case was lodged.

22.Registrar to list application

If the Registrar does not grant the application for default judgment, the Registrar must list the application for a hearing before the Court and notify you and the other parties in writing at least 28 days before the hearing.

22A.Registrar may order costs after giving judgment

When the Registrar gives default judgment under this Part the Registrar may also make an order for costs under the Act section 31(2).

[Rule 22A inserted in Gazette 10 Jun 2005 p. 2566.]

Part 5  Pre‑trial conferences

23. Listing a pre‑trial conference

(1)A Registrar must list a case for a pre‑trial conference —

(a)within 14 days after the defendant in your case lodges and serves a statement of defence; or

(b)if the defendant has made a counterclaim, within 14 days after the claimant lodges and serves a statement of defence to the counterclaim.

(2)The Registrar must notify you and the other parties in writing of the listing.

24. What happens at a pre‑trial conference

(1)The purpose of a pre‑trial conference is to give you and the other parties an opportunity to settle the case.

(2)The primary role of the Registrar at a pre‑trial conference is to attempt to bring you and the other parties to a settlement that is acceptable to all of you.

(3)Specifically, the Registrar may —

(a)determine what facts, if any, are agreed by the parties;

(b)direct the parties to exchange further documents or other information;

(c)recommend to the Court that it order you and the other parties to attend before a mediator;

(d)make any other directions necessary to facilitate settlement; and

(e)list the case for a further pre‑trial conference.

(4)The Registrar must notify you and the other parties in writing of any further pre‑trial conference.

(5)The Court may consider a recommendation from the Registrar under subrule (3)(c) in the absence of the parties.

25.If there is a counterclaim that is not a minor case

(1)If there is a counterclaim that is not a minor case, the Registrar must determine whether or not you and the other parties consent to it being dealt with under these rules.

(2)If the parties do not consent to the counterclaim being dealt with under these rules, the Registrar must —

(a)list the case for a hearing before the Court for it to determine what part of the case, if any, is to be dealt with under these rules; and

(b)notify you and the other parties in writing of the hearing date.

(3)If the Court determines that part of the case is to be dealt with under these rules, it will list the case for a further pre‑trial conference.

(4)The Registrar must notify you and the other parties in writing of the listing.

26.Your attendance at a pre‑trial conference or hearing

(1)You must attend a pre‑trial conference, or any hearing referred to in rule 25(2), in person.

(2)If you do not attend a pre‑trial conference, the Registrar at the pre‑trial conference may give default judgment against you. In that case Part 4, except rule 21, with any necessary modifications, applies in relation to the default judgment.

27.Listing the case for trial

Unless the Registrar at a pre‑trial conference lists the case for a further pre‑trial conference, the Registrar must list the case for trial and notify you and the other parties in writing.

28.Status of things said or done at a pre‑trial conference

(1)A pre‑trial conference must be conducted before a Registrar.

(2)Anything said or done by you or another party for the purpose of attempting to settle a case at a pre‑trial conference is to be taken to be said or done without prejudice to any evidence or submission that you or the other party —

(a)has adduced or made; or

(b)may subsequently adduce or make,

in or in respect of the proceedings, and the saying or doing of that thing does not disqualify the Registrar who conducted the pre‑trial conference from later dealing with the case.

Part 6  Mediation

29.Mediation conference

(1)If the Court orders you and the other parties to attend before a mediator, you must ensure that a mediation conference before the mediator is arranged.

(2)A mediation conference must be conducted in private.

30.Attendance of parties at mediation conferences

Unless the mediator otherwise approves, you must attend a mediation conference in person.

31.Outcome of mediation

If you are the claimant you must, within 14 days after the mediation conference, lodge a notice of the outcome of the mediation in the approved form.

32.Further pre‑trial conference if case not settled

If the case is not settled at the mediation conference a Registrar must list the case for a further pre‑trial conference and notify you and the other parties in writing.

Part 7  Consent orders and settlement

33.Memorandum of consent

If you want to settle a case or consent to any other order you may lodge a memorandum to that effect in the approved form, signed by you and every other party.

34.Registrar may make consent orders or give judgment

(1)When a memorandum of consent is lodged, a Registrar may, unless subrule (2) applies, make the orders or give the judgment consented to.

(2)The Registrar must not make an order —

(a)adjourning the trial of a case; or

(b)extending the time for complying with any rule of court or practice direction, or any order made by the Court.

35.When the rules require your consent

Where the Act or these rules require your consent before something can be done, you may give that consent by lodging a notice of consent to that effect in the approved form and signed by you.

36.Settling claims involving a person under a legal disability

(1)If you make an application for the approval of the settlement of a case in which there is a claim by or against a person under a legal disability, that application may be dealt with in the absence of the respondent to the application.

(2)Unless the Court orders otherwise, in addition to the supporting affidavit required under rule 65, your application must be supported by an affidavit of an independent lawyer verifying that the settlement is in the best interests of the person under a legal disability.

(3)The settlement of a case in which there is a claim by or against a person under a legal disability has effect on and from the day the Court gives its approval to it.

Part 8 — Trial

37.How the trial of your case is to be conducted

The trial of your case must be conducted in accordance with directions given by the Court.

38.Your attendance at trial

You must attend the trial of your case in person.

39.How to call witnesses

(1)If you want to require someone to give evidence or to produce something at the trial of your case, you must lodge a request for the Court to issue a witness summons.

(2)Your request must be in the approved form and must be accompanied by —

(a)a draft witness summons, in the approved form, that requires the witness to attend the Court to give oral evidence in the case; or

(b)a draft witness summons, in the approved form, that requires the witness to attend the Court and produce to the Court evidentiary material that is relevant to the case.

(3)If the Court issues the requested witness summons, you must lodge and serve the witness summons on the witness at least 14 days before the trial date.

(4)The witness summons must be served personally.

(5)You must ensure that at the time the witness summons is served on a witness, or at a reasonable time before the attendance date —

(a)an amount that is likely to be sufficient to meet the reasonable expenses of attending the court is tendered to the witness;

(b)arrangements to enable the witness to attend the court are made with the witness; or

(c)the means to enable the witness to attend the court are provided to the witness.

(6)The person who serves a witness with the witness summons for you must record how subsection (3) was complied with on a copy of the witness summons.

(7)If a copy of a witness summons contains information recorded in accordance with subsection (4) it is to be presumed that the information is true, unless the contrary is proved.

40.Return of things after trial

(1)If, during your trial, you tender to the Court something that you are entitled to possess you will not be entitled to have that thing returned to you —

(a)if no appeal against the judgment is lodged, until 21 days after the day on which the judgment was given; or

(b)if an appeal against the judgment is lodged, until the appeal has been dealt with.

(2)The Registrar must give you written notice of your entitlement to the return of something under subrule (1) as soon as practicable after the entitlement arises.

(3)If you do not take possession of the thing within 28 days after you receive the notice, the Registrar may dispose of the thing as the Registrar thinks fit.

Part 9 — Orders and judgments

41.Money paid to you if you are a person under a legal disability

(1)If you are a person under a legal disability and under a judgment money is to be paid to you, the money is to be paid to the Public Trustee to hold on trust for you.

(2)The Public Trustee must invest the money for you and may, if the Court so orders, invest it outside the Common Fund referred to in the Public Trustee Act 1941 section 40.

42.Setting aside default judgment

If the Court gives default judgment against you and you want to apply for the judgment to be set aside you must apply within 21 days after the judgment was given.

43.Decisions of Registrars

If a Registrar exercises any jurisdiction of the Court, the decision of the Registrar is to be taken to be a decision of the Court unless it is set aside on an appeal.

44.Requests for certificate of judgment

If you want a certificate of a judgment, you must lodge a request for the judgment in an approved form.

Part 10 — How to lodge documents

45.How to lodge a document

In order to lodge a document with the Court you must lodge it in accordance with this Part at a Court registry together with any fee required under the Magistrates Courts (Fees) Regulations 2005.

46.Where you may lodge a claim that starts a case

You may lodge a claim that starts a case at any registry of the Court except a registry of the Court where the only registrar is a member of the Police Force who has been appointed a Deputy Registrar under the Magistrates Court Act 2004 section 26(5).

[Rule 46 amended in Gazette 24 Aug 2007 p. 4333.]

47.If a Registrar refuses to accept your document for lodgment

You may make an application under the Magistrates Court Act 2004 section 17(3) for the Court to give you leave to lodge a document that has been refused by a Registrar. If you make the application in relation to a claim that would have started a case, you are to be taken to be a party to an existing case for the purposes of making the application.

48.You may lodge documents by hand delivery or pre‑paid post

(1)You may lodge a document by delivering the document to the registry by hand delivery or by pre‑paid post.

(2)When you are lodging a document you must also lodge —

(a)a copy for yourself; and

(b)a copy for any other party which must be served under these rules.

49.Lodging documents electronically or by fax

You may lodge a document electronically or by fax if the Magistrates Court (General) Rules 2005 enable you to do so.

Part 11 — How to serve documents

Division 1 — General

50.Meaning of “serve”

If these rules require you to serve a document —

(a)you must serve a copy of the document returned after lodgment bearing the seal of the Court; and

(b)unless the rules provide otherwise, you must serve it on each other party.

51.How to serve a document

(1)Unless personal service is required under these rules, if you want to serve a document on a person you must —

(a)deliver the document to the person;

(b)send the document by pre‑paid post to the person; or

(c)if the Magistrates Court (General) Rules 2005 enable it, send the document to the person by email or fax.

(2)If you want to serve a document by delivery or pre‑paid post and an address for service has been provided under Division 2, you must serve it at that address.

(3)If you want to serve a document by delivery or pre‑paid post and the party you want to serve has not provided an address for service under Division 2, you must serve it at the party’s usual or last known place of residence or principal or last known place of business.

(4)In order to serve a document on someone personally, you must serve it in accordance with Division 3.

(5)Nothing in this rule prevents you from serving a person in a manner other than in accordance with this rule if the person consents to being served in that manner.

52.A bailiff may serve documents for you

(1)You may ask an enforcement officer to serve a document for you. If an enforcement officer serves a document for you, he or she must, as soon as practicable after the service, give you a certificate of the service.

(2)The certificate must be in an approved form.

(3)The certificate is admissible as evidence and, in the absence of proof to the contrary, is proof that the document was served by the enforcement officer.

[Rule 52 amended in Gazette 24 Aug 2007 p. 4334.]

53.You must lodge an affidavit after serving a document

(1)If you serve a document personally, or someone other than an enforcement officer serves the document for you, you must lodge an affidavit of service completed by whoever served the document.

(2)The affidavit of service must state when, where, how and by whom service was effected.

[Rule 53 amended in Gazette 24 Aug 2007 p. 4334.]

Division 2 — Service at a residential, business or postal address

54.Your address must be on each document

If you lodge a document in relation to a case, the document must contain your residential, business or postal address for service.

55.If you are not represented

(1)If you are an individual who is not represented by an agent, the address for service is to be your usual place of residence, principal place of business or postal address.

(2)If you are a partnership that is not represented by an agent, your address for service is to be your principal place of business or postal address.

(3)If you are a corporation that is not represented by an agent, your address for service is to be your registered office, principal place of business or postal address.

56.If you are represented

(1)If you are represented by a lawyer, your address for service is to be your lawyer’s principal place of business, your lawyer’s postal address, or your lawyer’s number (if any) at a document exchange approved by the Chief Magistrate.

(2)If you are represented by an agent who is not a lawyer, your address for service is to be your agent’s usual place of residence, principal place of business or postal address.

57.If your address changes

(1)If your address for service under this rule changes after documents have been lodged in relation to your case, you must lodge and serve a notice of change of address as soon as practicable after the address has changed.

(2)Your notice of change of address must be in the approved form.

Division 3 — Personal service

58.Service on an individual personally

In order to serve a document on an individual personally you must —

(a)hand the document to the individual or, if he or she is a person under a legal disability, with his or her parent, guardian or litigation guardian;

(b)if the individual’s parent, guardian or litigation guardian, as the case may be, does not accept the document, put the document down in his or her presence and advise him or her of the nature of the document;

(c)hand the document to someone who is authorised in writing to receive documents on behalf of the individual;

(d)hand the document to someone at the person’s usual or last known place of residence or business who is believed, on reasonable grounds, to have reached 18 years of age; or

(e)hand the document to an agent who is acting for the person.

59.Service on a partnership personally

In order to serve a document on a partnership personally you must —

(a)hand the document to one of the partners;

(b)if the partner does not accept the document, put the document down in the partner’s presence and advise the partner of the nature of the document;

(c)hand the document to someone at the partnership’s principal or last known place of business who, on reasonable grounds, is believed to be in charge of the business at the time of service; or

(d)hand the document to a lawyer who is acting for the partnership.

60.Service on a corporation personally

In order to serve a document on a corporation personally you must —

(a)hand the document to a person who, on reasonable grounds, is believed to be a director, manager or secretary of the corporation; or

(b)hand the document to a lawyer who is acting for the corporation.

61.Service on a public authority personally

In order to serve a document on a public authority personally you must —

(a)hand the document to a person who, on reasonable grounds, is believed to be the chief executive officer of the public authority or a person authorised by the chief executive officer to receive documents for the purposes of this paragraph; or

(b)hand the document to a lawyer who is acting for the public authority.

Part 12  How to make an application

62.How to make a written application

(1)If you want to make an application for a Court order other than —

(a)a judgment after trial; or

(b)an order made in or as a consequence of a judgment not being an order to set aside a judgment given under the Act section 17(3), 18(6), or 19(3),

you must lodge the approved form unless the Court gives you leave to make an oral application under subrule (2).

(2)You may, with the leave of the Court, make an oral application at any hearing before the Court.

63.Your supporting affidavit

Unless rule 18(3) applies, if you are making a written application it must be lodged together with a supporting affidavit.

64.Application must be served

(1)Unless subrule (2) applies, if you have made a written application you must serve a copy of the application and any supporting affidavit on every other party after it has been lodged and at least 10 days before the hearing of the application.

(2)Subrule (1) does not apply —

(a)if your application is for default judgment for a failure to —

(i)lodge a response in accordance with rule 9(1); or

(ii)lodge a statement of defence in accordance with rule 10(1);

or

(b)if these rules say that your application may be dealt with in the absence of the respondent to the application.

65.Response to an application

(1)If you have been served with an application you must, at least 3 working days before the hearing of the application, lodge and serve —

(a)a response to the application stating whether you consent or object to each order sought in the application;

(b)unless you consent to every order sought in the application, an affidavit supporting your response; and

(c)any related application you might want to make.

(2)You response must be in the approved form.

66.How the Court will deal with your application

(1)Your application will be dealt with in your presence and in the presence of every other party to the application unless —

(a)these rules provide otherwise; or

(b)the Court dealing with your application orders otherwise.

(2)Unless the Court orders otherwise, a party is not required to attend the determination of an application for proceedings in a case to be conducted at another place in the State.

(3)If you make an application to correct a typographical error or other defect, a Registrar may, in the absence of the parties, order that you may make the correction.

Part 13  Affidavits

67.Form of an affidavit

An affidavit lodged by you must be in the approved form.

68.Content of an affidavit

(1)Unless subrule (2) applies, an affidavit must be confined to facts to which the person making the affidavit is able to say from his or her own knowledge.

(2)An affidavit may contain statements based on information received by the person making the affidavit, and believed by that person to be true, if the affidavit also contains —

(a)the sources of the information; and

(b)the grounds for believing that the information is true.

(3)Any addition, alteration or erasure in an affidavit must be initialled by the person making the affidavit and the person before whom the affidavit was sworn or affirmed.

Part 14 — If you need a litigation guardian

69.Terms used in this Part

In this Part —

child means a person who is under 18 years of age and who is not a represented person;

represented person has the meaning given to that term in the Guardianship and Administration Act 1990 section 3(1).

70.When this Part applies

This Part applies if you are a person under a legal disability and you are, or intend to be, a party to a case.

71.If you are a represented person

(1)If you are a represented person you must have a litigation guardian to conduct the case on your behalf unless the Court orders otherwise.

(2)Except as provided in subrule (3), your guardian or administrator is to be your litigation guardian if the guardianship or administration order that applies to you —

(a)is plenary; or

(b)otherwise confers on your guardian or administrator the function of conducting or settling legal proceedings on your behalf.

(3)If the Public Trustee is a joint administrator of your estate, the Public Trustee is to be your sole litigation guardian.

(4)If you are a represented person who is not referred to in subrule (2) you may have as your litigation guardian anyone who —

(a)is not under a legal disability; and

(b)does not have an interest in the case that is adverse to your interests.

(5)A person may act as your litigation guardian without being appointed by the Court to act in that capacity.

72.Affidavit your litigation guardian must lodge and serve if you are a represented person

(1)If you are a represented person your litigation guardian must, in accordance with this rule, lodge and serve an affidavit that is sworn by the litigation guardian —

(a)when first lodging and serving a claim or response; or

(b)if he or she becomes the litigation guardian after proceedings on your behalf have begun, as soon as practicable after he or she becomes the litigation guardian.

(2)If you are a represented person referred to in rule 73(2), your litigation guardian’s affidavit must verify that —

(a)you are a represented person;

(b)your litigation guardian has been appointed the guardian or administrator of the person under the Guardianship and Administration Act 1990; and

(c)the guardianship or administration order that applies to you —

(i)is plenary; or

(ii)otherwise confers on your guardian or administrator the function of conducting or settling legal proceedings on your behalf.

(3)If you are a represented person not referred to in rule 73(2), your litigation guardian’s affidavit must —

(a)verify that you are a represented person;

(b)state the nature of your litigation guardian’s relationship with you;

(c)verify that your litigation guardian consents to acting in that capacity for you;

(d)verify that the litigation guardian is not under a legal disability and does not have an interest in the case that is adverse to your interests; and

(e)set out the grounds for any knowledge or belief expressed in the affidavit.

73.If you are a child

(1)If you are a child you may have as your litigation guardian anyone who —

(a)is not under a legal disability; and

(b)does not have an interest in the case that is adverse to your interests.

(2)A person may act as your litigation guardian without being appointed by the Court to act in that capacity.

74.Affidavits your litigation guardian must lodge and serve if you are a child

(1)If you are a child your litigation guardian must, in accordance with subrule (2), lodge and serve an affidavit sworn by the litigation guardian —

(a)when first lodging and serving a claim or response; or

(b)if proceedings on your behalf have already begun, as soon as practicable after the litigation guardian assumes that capacity.

(2)Your litigation guardian’s affidavit must —

(a)verify that you are a child;

(b)state the nature of your litigation guardian’s relationship with you;

(c)verify that your litigation guardian consents to acting in that capacity for you;

(d)verify that your litigation guardian is not under a legal disability and does not have an interest in the case that is adverse to your interests; and

(e)set out the grounds for any knowledge or belief expressed in the affidavit.

(3)If you have reached 14 years of age, your litigation guardian’s affidavit must be accompanied by an affidavit sworn by you, verifying that you want the litigation guardian to act in that capacity.

(4)If —

(a)you have not reached 14 years of age; and

(b)your litigation guardian is not your parent or guardian,

your litigation guardian’s affidavit must be accompanied by an affidavit sworn by one of your parents or guardians, verifying that your parent or guardian consents to the litigation guardian acting in that capacity.

75.Person may apply to be appointed your litigation guardian

(1)A person may make an application to be appointed as your litigation guardian, or to replace your litigation guardian.

(2)Except as provided in subrules (3) and (4), the application must be made in accordance with Part 12.

(3)If you are a represented person, the application must be supported by an affidavit in accordance with rule 74(3).

(4)If you are a child, the application must be supported by affidavits in accordance with rule 74.

Part 15  Miscellaneous

76.You may discontinue claim

If you want to discontinue the whole or part of a claim that you have made, you must lodge and serve a notice of discontinuance in the approved form.

77.Availability of forms

The Court will make forms approved by the Chief Magistrate available —

(a)at each Court registry;

(b)on request, by post; and

(c)on the website maintained by the Principal Registrar under the Magistrates Court (General) Rules 2005.

78.Partnership name may be used

If you are a partnership you may conduct your case in your partnership name, if any.

79.When you are required to do things personally and you are not an individual

(1)Except as provided in the Act section 30, when under these rules you are required or enabled to sign a document, or do something else personally and —

(a)you are a partnership — then a person who was a partner at the time the cause of action arose and who is authorised by each of the other partners to do the thing may do it;

(b)you are a corporation — then a person who is authorised by the corporation to do the thing may do it;

(c)you are a public authority — then an officer of the public authority who is authorised by the public authority to do the thing may do it;

(d)an insurer is subrogated to your rights — then a person who is authorised to do the thing on behalf of the insurer may do it.

(2)If you are a person under a legal disability and a litigation guardian is conducting a case on your behalf, subrule (1) applies to your litigation guardian with any necessary changes.

[Rule 79 amended in Gazette 24 Aug 2007 p. 4334.]

80.Payments into Court

(1)If you make a payment of money into Court, the Court will give you a written receipt for the money.

(2)When judgment is given in the case and the Court does not order that the money be paid out, the money must be returned to you or paid out in accordance with any authorisation prepared by you in the approved form.

81.Registrar’s powers under the Civil Judgments Enforcement Act 2004

(1)A Registrar may deal with a means enquiry under the Civil Judgments Enforcement Act 2004 section 30 and may for that purpose exercise any of the Court’s powers under sections 28, 29 and 31 of that Act.

(2)For the purposes of the Civil Judgments Enforcement Act 2004 section 9(3), an application or request that, when made to the Court under that Act, may be dealt with by a Registrar, is —

(a)an application for an order under section 10, 15(5)(a) or 20(3) of that Act;

(b)an application for leave under section 13(1)(a) of that Act; or

(c)an application or request under a section of that Act listed in the Table to this paragraph.

Table

s. 15(1)

s. 56(1)

s. 32

s. 58(1)

s. 33

s. 59(1)

s. 35(1)

s. 95(1)

s. 41(2)

s. 101(1)

s. 42(1)

s. 102(2)

s. 49(1)

s. 103(2)

s. 55(2)

 

(3)You may apply for the review of a decision of a Registrar in relation to the application or request by making an application under Part 12 of these rules.

 

Notes

1This is a compilation of the Magistrates Court (Minor Cases Procedure) Rules 2005 and includes the amendments made by the other written laws referred to in the following table 1a.

Compilation table

Citation

Gazettal

Commencement

Magistrates Court (Minor Cases Procedure) Rules 2005

28 Apr 2005 p. 1711-48

1 May 2005 (see r. 2 and Gazette 31 Dec 2005 p. 7127)

Magistrates Court (Minor Cases Procedure) Amendment Rules 2005

10 Jun 2005 p. 2565-6

10 Jun 2005

Magistrates Court (Minor Cases Procedure) Amendment Rules 2007

24 Aug 2007 p. 4333‑4

r. 1 and 2: 24 Aug 2007 (see r. 2(a));
Rules other than r. 1 and 2: 25 Aug 2007 (see r. 2(b))

1aOn the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Citation

Gazettal

Commencement

Magistrates Court (Minor Cases Procedure) Amendment Rules 2008 r. 3-31 2

3 Jun 2008 p. 2138-49

1 Sep 2008 (see r. 2(b))

2On the date as at which this compilation was prepared, the Magistrates Court (Minor Cases Procedure) Amendment Rules 2008 r. 3-31 had not come into operation. They read as follows:

3.The rules amended

The amendments in these rules are to the Magistrates Court (Minor Cases Procedure) Rules 2005.

4.Rule 4 amended

Rule 4 is amended by inserting in the appropriate alphabetical position —

the Act means the Magistrates Court (Civil Proceedings) Act 2004;

”.

5.Rule 5A renumbered

Rule 5A is renumbered as rule 6A.

6.Rules 7 and 8 replaced

Rules 7 and 8 are repealed and the following rules are inserted instead —

7.How to make a claim that starts a case

(1)If you want to make a claim that starts a case you must lodge the approved form.

(2)Your claim may, but need not, be lodged and served together with a statement of claim in accordance with rule 25A.

(3)You must serve your claim as soon as practicable, and in any event within one year, after the day on which you lodge it.

(4)Unless these rules or an Act says otherwise, your claim must be served personally on the party you are claiming against.

8.How to make a counterclaim or third party claim

(1)If you want to make a counterclaim or third party claim you must lodge the approved form.

(2)You must lodge your claim together with your statement of defence referred to in rule 25B.

(3)Your claim may, but need not, be lodged and served together with a statement of claim in accordance with rule 25A.

(4)Unless these rules or an Act says otherwise, if your claim is a third party claim it must be served personally on the party you are claiming against.

”.

7.Rule 9 amended

(1)Rule 9(2) is amended as follows:

(a)by inserting after “lodged” —

“ and served ”;

(b)by deleting “rule 10.” and inserting instead —

“ rule 25B. ”.

(2)Rule 9(4) is repealed.

8.Rules 10A, 10B and 10C inserted

After rule 9 the following rules are inserted —

10A.If you admit a claim

If in a response you admit liability for the whole of the claim and agree to pay the amount claimed, a Registrar may give judgment against you in accordance with that admission.

10B.If you admit part of a claim

(1)If in a response you admit liability for part of a claim made against you but indicate that you want to defend the rest of the claim, you may offer an amount as full satisfaction for the claim in your response.

(2)The other party may accept your offer by lodging and serving a notice of acceptance in an approved form within 14 days after receiving your response.

(3)If your offer is accepted, the Registrar may give judgment against you in accordance with your admission and offer.

10C.You may admit liability but dispute the amount claimed

(1)If in a response —

(a)you admit liability for the whole of an unliquidated claim; but

(b)you do not agree to the amount sought by the other party,

you may, in your response, apply to the Court to determine the amount that should be awarded for the claim.

(2)The Registrar must then list the case for a pre-trial conference and notify you and the other parties in writing.

”.

9.Rule 10 replaced

Rule 10 is repealed and the following rule is inserted instead —

10.How to accept an offer of settlement

(1)If you have made a claim against a party and that party has, in its response, offered to settle the whole or part of your claim, you may accept that offer, or any part of the offer, by lodging and serving a notice of acceptance on the party at any time before the case is listed for pre‑trial conference.

(2)The notice of acceptance must be in the approved form.

”.

10.Rule 13A inserted

After rule 12 the following rule is inserted —

13A.If someone has made a consumer/trader claim against you

If someone has made a consumer/trader claim against you and you want to make —

(a)a counterclaim against that person; or

(b)a third party claim against another person,

you must lodge it in the approved form within 14 days after you have received a copy of the claim made against you.

”.

11.Rule 13 replaced

Rule 13 is repealed and the following rule is inserted instead —

13.Registrar to list case for listing conference

(1)A Registrar must, as soon as possible after a consumer/trader claim is made and the time for making any related counterclaim or third party claim has passed, list the case for a listing conference.

(2)The Registrar must notify you and the other parties in writing of the listing conference.

”.

12.Rule 16 amended

Rule 16(b) is amended as follows:

(a)by inserting after “lodge” —

“ and serve ”;

(b)by deleting “rule 10(1).” and inserting instead —

“ rule 25B. ”.

13.Rule 17 amended

Rule 17 is amended as follows:

(a)by inserting after “claim” —

“ , or the relevant part of the claim, ”;

(b)by deleting “$500” in both places where it occurs and inserting instead —

“ $1 000 ”.

14.Rule 18 amended

(1)Rule 18(1) is amended by inserting after “claim” —

“ , or the relevant part of the claim, ”.

(2)Rule 18(3) is amended by inserting after “lodged” —

“ and served ”.

15.Rules 21 and 22 replaced

Rules 21 and 22 are repealed and the following rules are inserted instead —

21.Registrar not to give judgment in certain cases

(1)A Registrar must not give default judgment against you under this Part for a failure to lodge and serve a statement of defence if —

(a)you have lodged an application under the Act section 17 to strike out the relevant statement of claim; and

(b)your application —

(i)has not been dealt with; or

(ii)has been granted; or

(iii)has been dismissed, but you have lodged a statement of defence within 14 days after the dismissal.

(2)A Registrar must not give default judgment against you under this Part if one year or more has passed since the claim that started the case was served.

22.Registrar to list application

(1)If the Registrar does not grant the application for default judgment, the Registrar must refer the matter to the Court.

(2)The Court may determine the application in the absence of the parties or may list the application for a hearing in which case the Court must notify you and the other parties in writing of that hearing at least 28 days before the hearing.

”.

16.Rule 22A renumbered

Rule 22A is renumbered as rule 23A.

17.Rule 23 replaced

Rule 23 is repealed and the following rule is inserted instead —

23.Listing a pre‑trial conference

(1)A Registrar must list a case for a pre‑trial conference within 14 days after the defendant in your case lodges a response that indicates an intention to defend the claim.

(2)The Registrar must notify you and the other parties in writing of the pre‑trial conference.

”.

18.Rule 24 amended

Rule 24(3) is repealed and the following subrule is inserted instead —

(3)Specifically, the Registrar may do any or all of the following —

(a)determine what facts, if any, are agreed by the parties;

(b)order the parties to —

(i)lodge and serve statements of claim and defence; and

(ii)lodge and serve lists of documents the parties might tender in evidence at the trial in support of their claims or defences; and

(iii)exchange any other documents or information;

(c)extend the time for making counterclaims or third party claims (even if the time for making those claims has passed);

(d)recommend to the Court that it order you and the other parties to attend before a mediator;

(e)list the case for a further pre‑trial conference;

(f)make any other orders necessary to facilitate settlement or ensure the case is ready for trial.

”.

19.Rules 25A, 25B and 25C inserted

After rule 24 the following rules are inserted —

25A.Lodging a statement of your claim

(1)If the Registrar at the pre‑trial conference orders you to lodge and serve a statement of claim, you must do so in accordance with this rule.

(2)Unless you lodged and served your statement of claim with your claim you must lodge and serve your statement of claim —

(a)if your claim is not a counterclaim or third party claim, within 14 days after the pre‑trial conference; and

(b)if your claim is a counterclaim or third party claim, within 14 days after you have received a response that indicates an intention to defend the claim.

(3)Your statement of claim must be in an approved form.

(4)Your statement of claim must contain —

(a)a summary of the facts relevant to your claim; and

(b)what remedy or relief you want.

25B.Lodging a statement of your defence

(1)If the Registrar at the pre‑trial conference orders you to lodge and serve a statement of defence, you must do so in accordance with this rule.

(2)Unless you lodged and served your statement of defence with your response you must lodge and serve your statement of defence within 14 days after you are served with the relevant statement of claim.

(3)Your statement of defence must be in the approved form.

(4)Your statement of defence must contain —

(a)a summary of the facts relevant to your defence; and

(b)the details of anyone who you allege is liable for the claim and the grounds upon which you base that allegation.

25C.List of documents you might tender at trial

(1)If the Registrar at the pre‑trial conference orders you to lodge and serve a list of any documents that you might tender in evidence at the trial in support of your claim or defence, you must do so in the approved form.

(2)You may, at any stage of your case, lodge and serve an amended list of those documents to correct any errors.

(3)You must lodge and serve an amended list of those documents as soon as practicable after you come into possession, or become aware that you are in possession, of any further documents that you might tender in evidence at the trial in support of your claim or defence.

(4)You must have all the documents specified on your list available at the trial.

(5)At the trial you cannot, without the leave of the Court, tender into evidence a document that was not on your list before the trial commenced.

”.

20.Rule 36 amended

Rule 36(1) is amended by deleting “that application may be dealt with in the absence of the respondent to the application.” and inserting instead —

that application —

(a)is not required to be served on any other party; and

(b)may be dealt with in the absence of the parties.

”.

21.Rule 37 amended

Rule 37 is amended by deleting “directions” and inserting instead —

“ orders ”.

22.Rule 54 amended

(1)Rule 54 is amended as follows:

(a)by inserting before “If” the subrule designation “(1)”;

(b)by deleting “, business or postal” and inserting instead —

“ or business ”.

(2)At the end of rule 54 the following subrule is inserted —

(2)The address for service specified on the document is to be taken to be your address for service under this Division until —

(a)if your document specifies the address of an agent under rule 56 — your agent lodges a notice in the approved form stating that he or she no longer acts for you; or

(b)you lodge a notice of change of address under rule 57.

”.

23.Rule 55 amended

(1)Rule 55(1) is amended by deleting “, principal place of business or postal address.” and inserting instead —

“ or principal place of business. ”.

(2)Rule 55(2) is amended by deleting “or postal address”.

(3)Rule 55(3) is amended by deleting “, principal place of business or postal address.” and inserting instead —

“ or principal place of business. ”.

24.Rule 56 amended

(1)Rule 56(1) is amended by deleting “, your lawyer’s postal address,”.

(2)Rule 56(2) is amended by deleting “, principal place of business or postal address.” and inserting instead —

“ or principal place of business. ”.

25.Rule 60 replaced

Rule 60 is repealed and the following rule is inserted instead —

60.Service on a corporation personally

(1)In order to serve a document on a corporation personally you must hand the document to —

(a)a person who, on reasonable grounds, is believed to be a director of the corporation who resides in Australia; or

(b)a lawyer who is acting for the corporation.

(2)This rule applies in addition to the Corporations Act 2001 of the Commonwealth.

”.

26.Part 11 Division 4 inserted

After rule 61 the following Division is inserted in Part 11 —

Division 4 — Miscellaneous

62A.Applications for substituted service

(1)If you cannot serve a document on another party in accordance with Divisions 1 to 3, you may apply to the Court to make an order under the Act section 16(1)(t) that —

(a)you may serve the party by a substituted form of service; or

(b)if it is appropriate in the circumstances, you do not have to serve the party.

(2)The application —

(a)is not required to be served on any other party; and

(b)may be dealt with in the absence of the parties.

”.

27.Rule 64 amended

Rule 64(2) is repealed and the following subrule is inserted instead —

(2)Subrule (1) does not apply to your application if —

(a)your application is for default judgment against another part —

(i)for a failure by the other party to lodge a response in accordance with rule 9(1); or

(ii)for a failure by the other party to lodge a statement of defence in accordance with rule 10(1); or

(iii)for a failure by the other party to do something else, and these rules state that the default judgment may be given in the absence of the parties;

(b)your application is for something else and —

(i)these rules provide that your application does not need to be served; or

(ii)the Court dealing with your application does not need to be served.

”.

28.Rule 66 amended

(1)Rule 66(1) is amended by deleting the subrule designation “(1)”.

(2)Rule 66(2) and (3) are repealed.

29.Rule 68 amended

Rule 68(2) is repealed and the following subrule is inserted instead —

(2)An affidavit may contain statements based on information received by the person making the affidavit, and believed by that person to be true, if the affidavit also contains the sources or grounds of that information or belief.

”.

30.Rules 76A, 76B and 76C inserted

Before rule 76 the following rules are inserted into Part 15 —

76A.If you are making an application under the Residential Tenancies Act 1987

(1)If you are making an application under the Residential Tenancies Act 1987 you do not have to serve it.

(2)Instead, the Court must give a copy of your application to every other party after you have lodged it.

76B.If you want to change venues

(1)If you make an application for the proceedings in your case to be conducted at another place in the State —

(a)you are not required to serve the application on any other party; and

(b)the Registrar must instead provide a copy of your application to every other party.

(2)Unless the Court orders otherwise, your application may be dealt with in the absence of the parties.

76C.If you want to correct typographical and other errors

(1)If you make an application to correct a typographical error or other defect, a Registrar may make an order allowing you may make that correction.

(2)Your application —

(a)does not have to be served on any other party; and

(b)may be dealt with in the absence of the parties.

”.

31.Rule 78 amended

(1)Rule 78 is amended by inserting before “If” the subrule designation “(1)”.

(2)At the end of rule 78 the following subrule is inserted —

(2)You may make a claim, and conduct a case, against a partnership in the partnership’s name, if any.

”.

”.