Magistrates' Court General Civil Procedure Rules 2020

• All parties to civil proceedings in the Victorian Magistrates' Court.
• Australian lawyers acting in Magistrates' Court proceedings.
• Registrars and judicial officers of the Magistrates' Court.
• Judgment creditors and debtors in enforcement proceedings.
• Third parties subject to garnishee orders, attachment of earnings, or subpoenas.
• Employers of judgment debtors subject to attachment of earnings orders.
• Persons seeking Trans-Tasman enforcement of New Zealand judgments.

Service of process (Orders 6 and 7). Complaints must be personally served. The Rules set out who may effect personal service, how it is effected on various classes of defendant, and the requirements for affidavits of service. Electronic service is permitted in specified circumstances.

Time for notice of defence (Order 8.01). The defendant must file a notice of defence within the time specified in the complaint or allowed by the court. The default period is 14 days for defendants within Victoria.

Pleadings (Order 13). Statements of claim, defences, and replies must be in the form required by Order 13, including particulars of the claim and any allegations of fraud.

Overarching obligations certification (Orders 4.09 and 4.10). Must be filed before the first step in proceedings. A lawyer signing a certification confirms that the party is aware of and will comply with the overarching obligations in the Civil Procedure Act 2010.

Discovery compliance (Orders 29-32). Parties must comply with discovery orders and cannot withhold documents subject to legal professional privilege unless a proper objection is made.

Costs certifications. Where costs orders are made, the Rules require compliance with the prescribed form and scale. Retainers and fee agreements must comply with the Legal Profession Uniform Law.

Court may dispense with compliance (Order 2.04). The court may dispense with compliance with any requirement of the Rules where compliance would prejudice the overriding objective. This is a broad judicial discretion.

Extension and abridgement of time (Order 3.02). The court may extend or abridge any time limit under the Rules, except where a limitation period has expired.

Summary judgment (Order 22). The court may grant summary judgment on the application of either party where there is no genuine issue for trial.

Stay or dismissal (Order 23). The court may stay or dismiss a claim or strike out a statement of claim or defence.

Amendment (Order 36). The court may order amendment of pleadings and other documents. Order 36.08 relates to amendment and correction of orders.

Appropriate dispute resolution (Order 50). The court may at any stage refer parties to mediation, conciliation, or other ADR.

Cost orders (Order 63). The court has a broad discretion to make costs orders, including indemnity costs orders and orders departing from the standard scale.

Contempt (Order 75). Breach of a court order may be punished as contempt. Contempt proceedings in the Magistrates' Court are initiated by application.

Default orders (Order 21). Entered against defendants who fail to file a notice of defence. Amounts may be for the full sum claimed or for judgment on the basis of the complaint's particulars.

Attachment of earnings (Order 72). The court may order an employer to deduct earnings from a judgment debtor's wage or salary and pay those amounts to the registrar. Employers who fail to comply may face penalties.

Garnishee orders (Order 71). The court may order a third party (typically a bank) holding money belonging to the judgment debtor to pay that money to the judgment creditor.

Sequestration (Order 76). Enforcement by sequestration of property where other enforcement mechanisms are unavailable or inadequate.

Commencing proceedings (Orders 4 and 5). A complaint is filed with the court, paid the fee, and issued. The complaint must be served within the time specified by the Rules.

Notice of defence (Order 8). Within 14 days of service (for Victorian defendants) or longer for defendants outside Victoria. Late notice of defence requires leave.

Summary judgment application (Order 22). May be made at any time after a notice of defence is filed. Usually listed on 14 days' notice.

Default judgment (Order 21). Application may be made after the time for notice of defence has expired. Registrar processes through the Case Management System for uncontested matters.

Directions hearings (Order 34). The court may direct parties on the steps required to prepare the matter for hearing, including discovery, expert evidence, and filing of documents.

Trial listing (Order 48). Matters are set down for trial by application or by the court's own initiative after directions.

Enforcement (Orders 66-74). After judgment, the creditor applies for the enforcement mechanism. Garnishee orders take effect within a short period of service. Attachment of earnings orders require employer compliance within specified periods.

Magistrates' Court Act 1989 (Vic). The authorising legislation for these Rules. The Rules operate subject to the Act and any amendments to it.

Civil Procedure Act 2010 (Vic). The overarching obligations (reasonable costs, prompt resolution, minimising harm) imposed on parties and lawyers in all Victorian civil proceedings apply to Magistrates' Court proceedings. Order 1.06.1 (overriding objective) and Orders 4.09-4.10 (certifications) give effect to this Act in the Rules.

Evidence Act 2008 (Vic). Evidence rules apply at Magistrates' Court hearings (subject to any departures in Orders 40-44 of these Rules).

Legal Profession Uniform Law (Vic). Lawyers' obligations regarding costs disclosure and retainer agreements interact with the costs rules in Order 63.

Trans-Tasman Proceedings Act 2010 (Cth). Order 7A gives effect to the Trans-Tasman proceedings framework for service in New Zealand, enforcement of New Zealand judgments, and interlocutory relief.

Open Courts Act 2013 (Vic). Order 82 governs procedure under the Open Courts Act, including applications to suppress publication of information or exclude the public from proceedings.

Bankruptcy Act 1966 (Cth). Magistrates' Court judgments are frequently the foundation of bankruptcy proceedings in the Federal Court. The order amount must be accurately stated on bankruptcy notices, as shown in Efficient Pure Plumbing Pty Ltd v Warren [2023] FCA 1301.

Order 2.04 dispensation does not override limitation periods. The court may dispense with any procedural requirement under the Rules but cannot extend a statutory limitation period. Order 3.02 expressly excludes expired limitation periods from its extension power.

Overarching obligations certifications must be filed before the first step. If a party takes a step in proceedings without first filing the overarching obligations certification under Order 4.09, the court may disallow their step or impose costs. Practitioners should file certifications concurrently with or before the first document.

Costs scales have multiple caps, and the applicable cap depends on stage and outcome. Order 63 and its appendices are complex. The applicable professional fee cap (Cap A, Cap B, Cap C) depends on the amount in issue, whether an offer of compromise was made, and whether that offer was beaten. Practitioners must check which appendix and cap applies to each matter before advising on costs exposure.

Amendment of orders (Order 36.08) does not cure an incorrect amount in a judgment debt used as the foundation for bankruptcy proceedings. In Efficient Pure Plumbing Pty Ltd v Warren [2023] FCA 1301, the Federal Court observed that the Magistrates' Court's order incorrectly stated the claim amount, with consequences for the bankruptcy notice. An error in a Magistrates' Court order used as the foundation for a bankruptcy notice may invalidate the notice.

Default judgments cannot be entered for unliquidated damages. The registrar may process default judgments through the Case Management System, but where damages are unliquidated they must be assessed before a default order takes full effect. Order 21.04 authorises the registrar to refer such applications to the court.

Example 1: Small commercial debt. A supplier is owed $18,000 by a buyer who refuses to pay. The supplier files a complaint in the Magistrates' Court, serves it personally on the company's registered office, and attaches an overarching obligations certification. The buyer files no notice of defence within 14 days. The supplier applies for a default order under Order 21. The registrar processes it through the Case Management System. The supplier obtains judgment for $18,000 plus costs.

Example 2: Disputed personal injury claim. A pedestrian sues a driver for $40,000 in personal injuries. The driver files a notice of defence within 14 days. Both parties file overarching obligations and proper basis certifications. The matter proceeds through directions, discovery, and expert medical reports. The court holds a directions hearing and sets the matter down for trial. The plaintiff makes an offer of compromise under Order 26 before trial.

Example 3: Garnishee order after judgment. The supplier in Example 1, having obtained a default judgment, discovers the debtor company has a bank account. The supplier files a garnishee order application under Order 71 against the bank. The order is served on the bank, which must comply within the specified period by paying the garnisheed funds to the court. Failure to comply exposes the bank to liability.