Magistrates Court (Civil Division) Rules 1998

The Rules define a number of key concepts that structure how civil litigation is conducted in the Court. An “action” means an action commenced by a claim (rule 3). An “application” includes both an originating application (which commences a proceeding under Division 4A of Part 3) and an interlocutory application made in the course of an existing proceeding. “Originating process” includes any document by which an original proceeding is commenced and specifically a claim (rule 3). Proceedings are commenced either by a claim (for actions that would be commenced by writ in the Supreme Court, rule 25(1)) or by an originating application (for proceedings that may be commenced by application to the Court under any Act, rule 29A). The party who commences an action is called the “claimant”; the opposing party is the “defendant” (rule 11A). In originating applications, the terms “applicant” and “respondent” are used.

A “judgment” is defined broadly as any judgment, declaration, decree, decision or order of the Court finally disposing of a proceeding, or an interlocutory judgment (rule 3). A “final judgment” includes a consent judgment, any judgment given at trial, judgment made on acceptance of an offer of compromise or payment into Court, or a summary judgment. An “interlocutory judgment” is any judgment that is not final. “Default judgment” means judgment entered against a party in default of defence or default of compliance with an order (rule 3). “Summary judgment” is a judgment under rule 115, available when a party has no arguable defence or the other party has no reasonable prospect of success. A “consent judgment” is entered in terms of a consent filed jointly by the parties.

A “person under disability” is defined as an infant (under 18 years) or any other party who by reason of physical, mental or intellectual impairment is unable to give sufficient instructions to conduct a proceeding (rule 3). Such a person must have a “litigation guardian” to conduct the proceeding on their behalf (rule 20). A litigation guardian may be appointed by the Court or self‑appointed, and is a party to the proceeding (rule 20(3)). Crucially, a litigation guardian on behalf of a claimant is liable for costs of a successful party unless the Court orders otherwise (rule 20(4)), but a litigation guardian for a defendant is not liable for costs (rule 20(5)).

The Rules distinguish between “routine proceedings” and “complex proceedings”. A complex proceeding is one that the Court has declared to be complex under rule 139(1). Complex proceedings attract higher cost scales (Schedule 1 Part 2) compared to routine proceedings (Schedule 1 Part 1). The “operative date” is defined as the earlier of 21 days after issue of a notice of trial, the date a conciliation conference is concluded, or the date to which a conciliation conference is adjourned (rule 3). This date is used for cost penalty calculations in rules 142 and 143.

Other important concepts include the “Litigants Fund” (the Court’s interest‑bearing account into which payments into Court and security are deposited, rule 159), the “approved document exchange” and “EDX” (electronic document exchange) for service (rule 158), “conciliation conferences” aimed at settlement or simplification of issues (rule 87), “mediation conferences” for confidential mediation (rule 80(1)(c)), and “listing conferences” for setting trial dates. The Rules also define various types of orders: attachment orders (garnishee orders), warrants to seize and sell property, warrants of possession, and representation orders (allowing one person to sue or defend on behalf of others with a common interest, rule 16).

The Rules directly affect any person who is a party to a civil proceeding in the Magistrates Court (Civil Division). This includes individuals, corporations, partnerships (which may sue or be sued in the firm name under rule 14), trustees, executors and administrators (who may sue or be sued on behalf of trust property or estates, rule 15), unincorporated bodies of persons (who may be represented by a natural person under rule 19A), and the Crown (which is bound by enforcement provisions under rules 125(3) and 129F(2)). Practitioners (Australian legal practitioners, rule 3 adopting the definition from the Legal Profession Act 2007) who act on behalf of parties are affected by rules on notice of acting (rule 19), service on practitioners, and obligations regarding affidavits (no affidavit may be sworn before a practitioner acting for the party, rule 63). Law practices are also indirectly affected by the costs regime and the requirement for GST allowances in bills of costs (rule 146A).

Specific categories of persons with special roles include litigation guardians (who must be appointed for persons under disability and bear personal cost liability in certain circumstances, rule 20(4)), conciliators (appointed by the Chief Magistrate to conduct conciliation and mediation conferences, rule 80A), registrars (who perform numerous functions including issuing process, assessing costs, fixing hearings, administering the Litigants Fund, and whose decisions may be reviewed by a magistrate under rule 152), district registrars (who have custody of Court records and seals, rule 153), bailiffs (who execute warrants to seize and sell property and warrants of possession, rules 130, 132, 134, 135), and assessment officers (who conduct assessments of costs, rule 3).

The Motor Accidents Insurance Board (MAIB) is directly affected by rule 29: a claimant in a personal injury action caused by a motor accident must serve on the MAIB a copy of the claim within 7 days after filing, together with a notice of particulars of personal injury. Insurers who are subrogated to a party’s rights may attend conferences or hearings on behalf of that party (rule 81(4)). Garnishees (persons from whom a judgment creditor claims a debt is due to the judgment debtor) are affected by attachment of debt proceedings (Division 2 of Part 8) and attachment of wages or salary proceedings (Division 2A). The Rules also affect witnesses (entitled to fees and expenses under Schedule 2, rule 104), experts (must provide written reports and serve copies within stipulated times, rule 105), and third parties brought into proceedings via third party claims (rule 52). Any person who is served with an originating process (claim or originating application) is affected by the service requirements and time limits for filing defences or appearing. Finally, the Rules affect judgment creditors and judgment debtors through enforcement mechanisms and orders about payment of judgment debts (rule 119A).

The Rules impose numerous duties on parties and practitioners. The overriding duty is to conduct proceedings in accordance with rule 4 - with least delay, on an equal footing, saving costs, and proportionately. Parties must attend scheduled directions hearings, conciliation conferences and listing conferences when notified (rule 81). Failure to attend within 15 minutes may result in judgment being entered against them without hearing evidence (rule 83). Parties must comply with time limits for filing defences (21 days after service of the claim, rule 48(1)), filing defences to counterclaims (14 days, rule 51(1)), serving expert reports (21 days after obtaining, and not less than 21 days before trial, rule 105(1)), and making discovery (14 days after request, rule 64(2)). The Court has power to extend or shorten time limits (rule 37). Failure to comply with an order may lead to judgment for non‑compliance under rule 79.

A party who serves an offer of compromise (rule 89) or a payment into Court (rule 92) has a right to have that offer or payment kept confidential from the trial magistrate until after final judgment (rules 86 and 96). A party who accepts an offer or payment may enter judgment accordingly (rule 91, 94). A party who does not accept an offer or payment that turns out to be more favourable than the trial result may suffer adverse cost consequences: a plaintiff who does not better the offer may only recover costs up to 14 days after the offer and then be liable for the defendant’s costs (rule 141(2)). A party who makes an inadequate offer (the judgment is 200% or more of the offer) may have costs reduced by a formula (rule 142). A party who makes an excessive claim (obtains less than 50% of the amount claimed at the operative date) may have costs reduced by a formula (rule 143).

Parties have a right to apply for interlocutory orders (rule 70), for summary judgment (rule 115), for default judgment (rule 116), for amendment of pleadings (rule 45), for discovery and inspection (rules 64, 66), for interrogatories with leave (rule 68), for orders against non‑parties (rule 69), for substituted service (rule 42), and for extensions of time (rule 37). A party has the right to have a proceeding set aside if it is an abuse of process (rule 38). A party may discontinue a proceeding at any stage by notice (rule 32). A party may also abandon part of a claim (rule 31). Costs are generally payable to the successful party unless the Court orders otherwise (rule 138). The successful party is entitled to costs on the relevant scale in Schedule 1 and disbursements under Schedule 2 (rule 138A). Disputes about costs must be resolved through the assessment process (rules 146‑150). A party who is dissatisfied with a registrar’s or conciliator’s decision may apply to a magistrate for review by way of rehearing (rule 152).

The Rules also confer rights on persons under disability: their settlements or compromises are not binding unless approved by the Court (rule 24). The Court must consider any legal opinion filed on behalf of the person under disability before approving a settlement (rule 24(2)). A party whose property is seized under a warrant has rights: tools of trade up to $3,000 and personal clothing and bedding are exempt from seizure (rule 131). A third party claiming an interest in seized property must give notice to the bailiff (rule 136), and the bailiff may then interplead if the claim is disputed (rule 137). A judgment debtor may apply to the Court for an order to pay the judgment debt by instalments, and the Court must not impose hardship (rule 119A).

The Rules provide a range of penalties and enforcement mechanisms, both in the form of adverse cost orders and direct enforcement processes. For non‑compliance, the Court may order costs against a party who commits a wrongful act, default, neglect, or non‑compliance causing prejudice (rule 8). The Court may dismiss a proceeding for undue delay (rule 6(1)(d)), and such dismissal has effect as an interlocutory judgment, not a final judgment (rule 6(4)). The Court may enter judgment against a party who fails to attend within 15 minutes of a hearing (rules 75, 83, 109). Rule 79 allows the Court to enter judgment against a party who fails or refuses to comply with an order, provided the terms of the order have been given in writing and the order has not been complied with. For abuse of process, the Court can enter judgment, stay the action, or strike out pleadings (rule 38).

In the costs context, the cost penalties are significant. Under rule 141(2), if a plaintiff obtains final judgment for a sum equal to or less than an offer or payment by the defendant, the plaintiff is only entitled to costs up to 14 days after service of the offer or payment; after that, the defendant is entitled to costs on the scale applicable to the amount claimed. Under rule 142, if no offer or payment was made, or if the judgment sum is 200% or more than any offer or payment, the successful party’s costs are reduced by a formula: C = P x (J/A). Under rule 143, if the judgment sum is less than 50% of the amount claimed at the operative date, the successful party’s costs are reduced by a formula: C = P x (J/A). If both rules 142 and 143 apply to the same action, neither rule has effect (rules 142(5), 143(5)). A party who makes an unreasonable objection to an admission must bear relevant costs (rule 47(5)). A party who objects at trial to the authenticity of relevant evidence and is unsuccessful must pay the costs incurred (rule 145).

The primary enforcement mechanism for money judgments is the warrant to seize and sell property under rule 130. A registrar may issue such a warrant, which expires 12 months after issue, but further warrants may be issued within the six‑year period (rule 121) without leave. A bailiff executing a warrant must not seize personal clothing or bedding, or tools of trade up to $3,000 (rule 131). The bailiff may sell the property by public auction not less than 3 days after seizure, with at least 3 days’ newspaper advertisement (rule 132). A bailiff who directly or indirectly purchases seized property commits an offence punishable by a fine not exceeding 10 penalty units (rule 132(4)). For possession of property, a warrant of possession may be issued under rule 135.

Attachment of debts (garnishee proceedings under Division 2 of Part 8) and attachment of wages and salaries (Division 2A) are also key enforcement tools. A provisional garnishee order can be obtained without attendance (rule 127). If the garnishee or judgment debtor does not dispute liability within 21 days after service, the order becomes final (rule 129). For earnings, the garnishee deducts 20% of net earnings on each payday until the judgment debt is satisfied (rule 129G). Priority among multiple garnishee orders is according to the time of service (rules 129E, 129N). Payment by the garnishee is a valid discharge even if the judgment is later set aside (rules 129C, 129L). A judgment debtor may apply to the Court to vary a final earnings garnishee order on grounds of severe and unusual hardship due to a significant change in personal circumstances (rule 129I(4A)).

Finally, cost assessment procedure has its own penalty: if disallowed costs represent one‑sixth or more of the allowed costs, the successful party is not entitled to any costs of the assessment and may have to pay the unsuccessful party’s assessment costs (rule 148(4)).

The Rules interact directly with the Magistrates Court (Civil Division) Act 1992 (the Act), which is the primary legislation. The Rules are made pursuant to the Act and give effect to its provisions. For example, the prescribed rate of interest for default judgments is defined by reference to Division 2 of Part 5 of the Act (rule 3 definition of “prescribed rate”). Section 31AC of the Act is referenced in rule 99(3A), which allows the Court to permit written statements as evidence in chief, subject to that section. Section 26 of the Act is referenced in relation to interest claimed in warrants (rule 130(2)(c)). The “Court seal” is defined by reference to the Magistrates Court Act 1987 (rule 3), and district registrars and district registries are established under that Act. Magistrates are defined as within the meaning of the Magistrates Court Act 1987. The Rules also adopt the Supreme Court Rules 2000 in several places: rule 25(1) requires that proceedings which would be commenced by writ in the Supreme Court be commenced by claim; rule 29B(3) adopts the service periods from Supreme Court Rules 2000 for service outside Tasmania; rule 44(1) requires pleadings to comply with the Supreme Court Rules 2000; and rule 10(b) allows the Magistrates Court to adopt the practice and procedure of the Supreme Court with modifications when the Rules are silent. Rule 40(1)(d)(ii) permits service on corporations in any manner permitted by the Corporations Act. The definition of “law practice” adopts the meaning from the Legal Profession Act 2007 (rule 3). The definition of “practitioner” is “an Australian legal practitioner” (rule 3). The Motor Accidents Insurance Board is defined by reference to the Motor Accidents (Liabilities and Compensation) Act 1973 (rule 3). The Rules also reference the Financial Management and Audit Act 1990 for the keeping of books of account (rule 151(1)(c)). In relation to costs and disbursements, the GST is addressed via the A New Tax System (Goods and Services Tax) Act 1999 (rule 146A, and rule 148(2)(b)). The Rules also mention the General Conditions of Service Award under the Industrial Relations Act 1984 for travel expense allowances (Schedule 2, item 2). The Chief Magistrate may approve a document exchange on the recommendation of The Law Society of Tasmania (rule 158). The repeal of the Magistrates Court (Small Claims Division) Act 1989 is noted in rule 88A(3). The Rules do not operate in isolation; they sit within a broader framework of Tasmanian court legislation and rules, and the Court may look to Supreme Court practice where necessary.

The Rules were made by the Rules Committee on 29 March 1998 and notified in the Gazette on 30 March 1998, taking effect on that day (rule 2). Since then, they have been amended by a series of statutory rules. Amendment S.R. 2000, No. 195 (applied 15 Nov 2000) inserted rule 80A (appointment of conciliators) and amended definitions including “conciliator”. S.R. 2003, No. 17 (applied 9 Apr 2003) substituted rule 30 (registry in which proceeding conducted), inserted rules 40A (service by registered post), 40B (change of address), substituted rules 50 (counterclaim and set‑off), 52 (third party claims), 88 (adjournment of conciliation conference), and introduced new Division 2 (attachment of debts) and Division 2A (attachment of wages and salaries) in Part 8, replacing the previous Division 2. S.R. 2003, No. 119 (applied 3 Oct 2003) substituted rule 34 (joining of actions) and inserted rule 88A (delegation by registrar). S.R. 2005, No. 153 (applied 1 Jan 2006) substantially substituted Schedule 1 (costs) and Schedule 2 (witness fees). S.R. 2008, No. 37 (applied 7 May 2008) inserted rule 19A (body of persons acting in proceedings). S.R. 2008, No. 122 (applied 8 Oct 2008) inserted rule 99(3A) (written statements as evidence). S.R. 2009, No. 78 (applied 8 Jul 2009) amended definitions of “law practice” and “practitioner” to align with the Legal Profession Act 2007. S.R. 2010, No. 23 (applied 17 Mar 2010) amended Schedule 1 and replaced Schedule 2. S.R. 2013, No. 69 (applied 4 Sep 2013) was a major amendment that rewrote many rules: it introduced Division 4A (originating applications) with rules 29A‑29C, amended definitions throughout, reworked Part 3 headings, replaced rule 10, inserted rule 11A (naming of parties), amended rules 4, 6, 7, 11, 12, 13, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 27, 29, 30, 31, 32, 33, 36, 37, 39, 40, 48, 50, 52, 71, 72, 73, 74, 75, 77, 78, 80, 81, 84, 85, 85A, 86, 87, 89, 93, 95, 96, 97, 99, 100, 102, 105, 114, 116, 119, 119A, 122, 125, 128, 129A, 129I, 129J, 129N, 130, 135, 138, 139, 140, 142, 144, 146, 153, 156, and Schedule 1. It also inserted rule 85A (pre‑conference orders for minor civil claims) and rule 119A (orders about payment of judgment debts). S.R. 2014, No. 42 (applied 12 Mar 2014) substituted Schedule 1 again and amended rules 25, 117, rescinded former rule 138A, and made related changes. These amendments reflect an ongoing process of procedural refinement, including the introduction of originating applications, enhanced case management, modernised service provisions, and updated cost scales.

The text of the Rules does not include any references to specific case law. As procedural rules, they are applied daily in the Magistrates Court, but the instrument itself contains no citations of judicial decisions. Litigation arising under these Rules is internal to the Magistrates Court, with appeals from final judgments lying to the Supreme Court under the Act. The Rules have been considered in various contexts, including challenges to the Court’s jurisdiction, the operation of cost penalties, and the validity of default judgments and enforcement processes, but the instrument provides no such history. In any case, the reader must look to the Act and to external case law for interpretation. The Rules do, however, provide for review of decisions of registrars and conciliators by a magistrate (rule 152), which generates its own body of internal rulings. No cases are named in the text.

Several provisions contain traps for the unwary practitioner or litigant. Rule 27 prohibits dividing a cause of action into two or more proceedings; doing so risks having the second proceeding struck out as an abuse of process. Rule 33(1) requires that a claim be served within one year after filing; if not served within that time (or any extension under rule 26(2)), the Court must dismiss the action on giving reasonable notice. There is no automatic dismissal, but the Court is obliged to act. Rule 48(1) mandates that a defence be filed within 21 days after service of the claim; if not filed, default judgment may be entered (rule 116). Critically, rule 116(3) provides that a party cannot enter default judgment on a counterclaim, interpleader or third party claim - these require a hearing. A common trap is attempting to enter default judgment on a claim for property repair or loss without first serving the required evidentiary material (repair account, quotation, invoice or receipt) with the claim, as rule 118 requires; default judgment cannot be entered without proof of such service. Rule 118(3) allows the claim to include towing, storage, rental costs and incidental expenses, but only if those items are liquidated sums.

For enforcement, rule 121 provides that a registrar shall not issue an enforcement process in respect of a judgment that is more than six years old except with the leave of the Court. Practitioners who delay enforcement beyond six years must make a formal application. Rule 131 exempts tools of trade up to a value of $3,000 from seizure, but only those; the exemption does not extend to other property. A judgment creditor who overstates the amount on a warrant may face difficulties. In garnishee proceedings, rule 125(2) excludes earnings from the general attachment of debts Division; earnings must be attached under Division 2A. The prescribed amount for earnings attachment is 20% of net earnings (rule 129F). However, the judgment debtor can object and claim a reduction within 21 days by filing a full financial statement and a notice (rule 129I(1)(b)). The judgment debtor may later apply for variation of a final order on grounds of severe and unusual hardship due to a significant change in circumstances (rule 129I(4A)). That ground is narrow.

Cost penalties under rules 142 and 143 are often overlooked. If no offer of compromise or payment into Court is made, rule 142 applies with A=zero, meaning the formula effectively reduces costs to zero (C = P x (J/0) is not possible mathematically; but the rule states that if no offer is filed or payment made, A is zero, and the formula is applied. In practice this means the successful party receives nil costs unless the Court orders otherwise. Similarly, rule 143 reduces costs if the judgment is less than 50% of the amount claimed at the operative date. The amount claimed can be amended at a conciliation conference (rule 143(3)), so parties should consider amending excessive claims before that date. If both rules apply, neither has effect (rules 142(5), 143(5)).

The bill of costs process contains a trap: if an unsuccessful party does not file a notice of objection within 21 days after service of the bill, each item on the bill is taken to be admitted (rule 147(1)). That admission cannot be challenged later. Additionally, under rule 148(4), if the disallowed costs represent one‑sixth or more of the allowed costs, the successful party loses the costs of the assessment and may have to pay the other side’s assessment costs. That can negate a significant portion of the costs recovery. An assessment officer may also reduce any item in Parts 1 and 2 of Schedule 1 (rule 138(6)).

On representation, a litigation guardian on behalf of a claimant is personally liable for costs if the claimant loses (rule 20(4)). This is a significant risk for a parent or guardian who decides to sue on behalf of an infant. Conversely, a litigation guardian for a defendant is not liable for costs (rule 20(5)). Rule 63 prohibits swearing an affidavit before a practitioner acting for the party, or before any member of that practitioner’s law practice. Affidavits sworn in breach may be rejected. Rule 86 and 96 strictly prohibit communicating the existence of an offer of compromise or a payment into Court to the trial magistrate before final judgment. Inadvertent disclosure may lead to a mistrial or adverse costs orders. Another trap: rule 85A allows a registrar to make pre‑conference interlocutory orders in minor civil claims only; parties in such claims must be aware that a registrar can order amendments, discovery, etc., without a hearing.

Compliance with the Rules begins at the earliest stage of litigation. Before commencing an action, consider whether it is a claim (for actions that would be writs in the Supreme Court) or an originating application (for proceedings under specific Acts). Use the correct forms approved by the Chief Magistrate. For personal injuries actions, serve a notice of intended action on the defendant’s insurer at least 90 days before filing (rule 28(1)). File the claim or originating application in the proper registry (rule 25(2), 29A(3)). For actions, ensure the claim includes a statement of the amount claimed, costs in accordance with Part 3 of Schedule 1, and service costs in accordance with item 14 of Part 1 of Schedule 1 (rule 25(3)). For property repair or loss claims, serve the required evidentiary material (receipt, quotation, etc.) with the claim to preserve the right to default judgment (rule 118).

Serve the originating process within one year (rule 26(1)) or apply for an extension within that year (rule 26(2)). Use an approved method of service from rule 40. If service is difficult, apply for substituted service (rule 42). Prove service by affidavit (rule 43). If the defendant does not file a defence within 21 days, the claimant may apply for default judgment, but must follow the specific rules for liquidated sums (rule 117) and property claims (rule 118). For unliquidated claims, the registrar will fix a hearing for assessment of damages (rule 119). If a defence is filed, participate actively in case management: attend all directions hearings, conciliation conferences and listing conferences. At the first directions hearing, the Court will set a timetable. Comply promptly.

Discovery obligations should be fulfilled by serving a list of documents within 14 days of a request, or within the time ordered (rule 64). Update discovery as new documents come to hand (rule 64(3)). Produce documents at trial unless otherwise agreed (rule 65). If you intend to rely on expert evidence, serve the expert’s written report on all parties within 21 days of obtaining it and at least 21 days before trial (rule 105(1)). File the report at least 7 days before trial or the conciliation conference. Consider making an offer of compromise or a payment into Court early in the litigation to protect your costs position (Part 5). Such offers and payments should be realistic; they will be taken into account at trial in cost orders (rule 141). If you are a defendant, a reasonable offer may shift cost liability to the plaintiff if the plaintiff fails to beat the offer. If you are a plaintiff, a reasonable offer may protect your costs if the judgment exceeds the offer. Be aware that failing to make any offer may result in a cost penalty under rule 142. Also, ensure that the amount claimed is realistic; an excessive claim (resulting in a judgment less than 50% of that claim) triggers a cost penalty under rule 143. Amend the amount claimed at a conciliation conference if necessary.

At trial, comply with directions regarding the order of evidence, witness statements and documents. If a witness is not required, serve an affidavit 14 days before trial and if no objection within 7 days, the witness need not attend (rule 101). Use the formal evidence procedure (rule 106) to avoid calling witnesses for formal matters. After judgment, if you are the successful party, serve a bill of costs in approved form (rule 146). Ensure you include any GST adjustments (rule 146A). If the other party objects within 21 days, participate in the assessment. If they do not object, the bill is admitted, and you can obtain a certificate of assessment after 48 hours (rule 149) or earlier if 21 days have passed and no objection filed (rule 149(1A)). To enforce a money judgment, consider issuing a warrant to seize property (rule 130) or a garnishee order (Division 2 or 2A). Evaluate whether the judgment debtor has earnings or debts from third parties. For property enforcement, the warrant expires after 12 months, but further warrants may be issued within six years of judgment without leave (rule 121). If the judgment is older than six years, seek leave. If the judgment debtor is in financial difficulty, an application to pay by instalments may be made (rule 119A). Throughout the proceedings, maintain an up‑to‑date address for service (rule 40B) and ensure all documents are filed and sealed where required (rule 39). Regularly check for practice directions (rule 9) as they may affect procedures. If a registrar or conciliator makes a decision you disagree with, seek review by a magistrate promptly by way of rehearing (rule 152). Finally, be mindful of the overriding objective in rule 4; the Court will expect parties to cooperate to avoid delay and unnecessary cost, and may penalise non‑compliance with adverse cost orders.