Magistrates' Court Civil

“ Contents ”

“ Legal Practitioners’ Liability Committee limitation periods Know your limits Magistrates’ Court of Victoria ”

“ County Court Civil Enforcement – Magistrates’ Court ”

“ The client has come to see you and related a set of facts that have the potential for civil litigation in the Magistrates’ Court. Your instructions may be to recover a debt or damages for breach of contract. The guide will assist you in dealing with similar matters in the court’s civil jurisdiction. ”

“ As soon as you are retained in the matter, you must enter into a costs agreement with the client. You must make costs disclosure to the client in writing, including all the information required by s 174 of the Legal Profession Uniform Law. Ensuring costs are fair and reasonable ”

“ The first step in recovering the debt or damages and prior to commencing proceedings is to issue a concise and strongly worded Letter of demand to the other side. If you objectively convey the strength of your client’s case, the Letter of demand may achieve an early settlement. There is no point in ... ”

“ Proceedings can settle through face-to-face negotiation, such as in a mediation. However, many proceedings settle through exchange of correspondence. You should always try to settle the matter before issuing proceedings to keep costs to a minimum. If the other party is represented, it is often ... ”

“ An offer of compromise under Order 26 must comply with certain requirements as set out in Order 26 of the rules. Importantly, the offer must be open for at least 7 days. The offer must state whether it is inclusive of costs, colloquially known as an ‘all in’ offer, or whether costs are to be paid ... ”

“ An offer of compromise may be made before proceedings have commenced under the new procedure in r 26.08.1. The offer must be in writing and open for at least 7 days. ”

“ A Calderbank offer is an offer made in a letter. The letter should carry the notation ‘Without prejudice save as to costs’ and contain an offer that is a genuine compromise of the claim. An effective Calderbank offer sets out the rationale of the offer, objectively putting forward the reasoning ... ”

“ Mediation can be arranged between the parties before or after proceedings have been issued.  Once proceedings are commenced, the court can also order the parties to attend mediation. In almost every case, the court will order the parties to attend a pre-hearing conference under s 107 of the ... ”

“ Once a matter has settled, the parties should enter into terms of settlement formalising the terms of the settlement and providing for releases from future suit. This is the case regardless of whether proceedings were issued and whether the settlement was negotiated by correspondence or by ... ”

“ When the parties settle after proceedings have been commenced you will have to enter into consent orders to dispose of the proceedings. Where consent orders are to be made, all parties to the action must consent, including any third party, but if they do so consent orders can be filed and dealt ... ”

“ If the matter does not settle, you must check that the Magistrates’ Court has jurisdiction to hear the claim. Jurisdiction is not limited to the court’s monetary limit of $100,000. Jurisdiction can be unlimited with the parties’ consent and also goes to the court’s power to grant the relief the ... ”

“ The Civil Procedure Act 2010 imposes overarching obligations on litigants and legal practitioners in the conduct of litigation. You should carefully read the Civil Procedure Act 2010, Practice Direction 5 of 2010, and Part 2 of Order 4 of the Magistrates’ Court General Civil Procedure Rules 2010. ... ”

“ The client has instructed you to commence proceedings in relation to a dispute in the court. Before you do ensure: your written costs disclosure to the client under s 174 of the Legal Profession Uniform Law is up to date, including disbursements for counsel’s fees and experts and the likely costs ... ”

“ If the dispute relates to a claim for a sum of less than $10,000 restrictions apply to the interlocutory steps that can be taken in the proceedings. The proceeding will be referred to arbitration under s 102(1) of the Magistrates’ Court Act 1989. Exceptions to the referral provision are: ”

“ Proceedings to recover money or damages are commenced by filing an original Complaint in form 5A. The Complaint must contain a statement of claim, setting out in summary form: ”

“ If the sum claimed is less than $10,000 and the matter is proceeding by arbitration, no party may serve a Request for Further and Better Particulars of Claim, Counterclaim or Defence. If a Notice of Defence, Counterclaim or Third Party Notice does not plead all material facts with sufficient ... ”

“ A defendant must file and serve a Notice of Defence within 21 days of service of the Complaint. A Notice of Defence may be filed with the registrar by facsimile: r 8.04 Magistrates’ Court General Civil Procedure Rules. ”

“ For a claim of less than $10,000 which is proceeding by way of arbitration, you are not permitted to file a Reply: r 2.04 of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010. The plaintiff must file a reply if, at the hearing, the plaintiff intends to prove or establish any fact ... ”

“ A defendant who has a claim against the defendant may bring a Counterclaim against the plaintiff: r 10.02. A Counterclaim is made using form 10A and must be served within 21 days after the Notice of Defence is given. ”

“ The complaint must be filed at the registry of the proper venue: r 4.04. The proper venue is the registry closest to the place where the subject matter of the claim arose or the defendant’s residence. The closest registry can be found on the Magistrates’ Court website. The court also has an ... ”

“ Once a sealed copy of the Complaint is received from the office of the court it must be personally served on each defendant, together with two notices of defence: r 6.02. Order 6 of the Magistrates’ Court General Civil Procedure Rules sets out the requirements for service on particular ... ”

“ Where the Complaint it is to be served outside Victoria and in another state, service must be effected pursuant to the Service and Execution of Process Act 1992 (Cth). Compliance with the provisions of the Service and Execution of Process Act 1992 is essential, particularly s 16 which requires ... ”

“ In certain circumstances a Complaint filed in the Magistrates’ Court may be served out of Australia without leave of the court. These are set out in r 7.01 of the Magistrates’ Court General Civil Procedure Rules. The Complaint to be served out of Australia must be in form 7A and carry an ... ”

“ Interlocutory applications are mini contests conducted before the final hearing, on application by summons and with affidavits in support. They can be about a variety of issues including, but not limited to, defects in the pleadings, provision of proper particulars, default in discovery ... ”

“ The court requires that all the parties, their solicitors and any other person who has the authority to settle the matter - for example, the party’s insurer - must attend the pre-hearing conference. Attendance may be by telephone if a party or other essential person if they can show the registrar ... ”

“ The Court should send you a notice of hearing giving the date and time of prehearing conferences and any hearing, application or mediation in the matter. Do not assume that the other party has also received the notice. Practice Direction 5 of 2016 requires you to notify each other party in the ... ”

“ Consider early on whether you have to brief counsel to appear at the final hearing or any interlocutory hearings. Counsel should be briefed as early as possible to allow time to resolve any extra issues. For example, counsel will often identify gaps in the evidence that need to be addressed before ... ”

“ In the Magistrates’ Court, costs are usually fixed immediately at the end of the hearing once the result is handed down: r 63.00. Costs are fixed in accordance with the scale in Appendix A of the Rules. This is updated every year. The appropriate scale is the one that applied when the work was ... ”

“ The rules about calculating interest are set out in the Supreme Court Act 1986. Section 33 of the Act applies these rules to inferior courts as well. Interest up to judgment ”

“ Where a final order has been made in a civil proceeding a party may appeal to the Supreme Court on a question of law only: s 109(1) Magistrates’ Court Act 1989. The appeal must be instituted no later than 30 days after the order was made and does not operate as a stay of the order unless the ... ”