Magistrates Court (Civil Division) Amendment Rules 2003

Magistrates Court (Civil Division) Amendment Rules 2003

The Rules Committee of Magistrates Court (Civil Division) makes the following Rules of Court under section 22 of the Magistrates Court (Civil Division) Act 1992 .

1.   Short title

These Rules of Court may be cited as the Magistrates Court (Civil Division) Amendment Rules 2003 .

2.   Commencement

These Rules of Court take effect on the day on which their making is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Magistrates Court (Civil Division) Rules 1998 are referred to as the Principal Rules.

4.    Rule 30 substituted

Rule 30 of the Principal Rules is rescinded and the following rule is substituted:

30.   Registry in which action to proceed

(1)  If an action is not defended, the parties are to conduct the action, up to and including final judgment, in the registry in which the action was commenced.

(2)  If an action is defended, the Court is to list the first directions hearing at the Court closest to where –

(a) the defendant resides; or

(b) the cause of action arose.

(3)  If there is disagreement between the parties as to the registry in which the action is to proceed, the registrar is to decide the location of a directions hearing.

5.    Rules 40A and 40B inserted

After rule 40 of the Principal Rules , the following rules are inserted in Division 6:

40A.   Service by registered post

If a document is served by registered post, the following are to be filed with the affidavit of service:

(a) a registered mail posting receipt bearing the serial number referred to in the affidavit as being connected with the document;

(b) a delivery receipt signed by the person who took delivery of the document.

40B.   Change of address

If a party appearing in person changes his or her address, the party must notify the Registrar of the new address.

6.    Rule 44 amended (Pleadings)

Rule 44(1) of the Principal Rules is amended by omitting " Rules of the Supreme Court 1965 " and substituting " Supreme Court Rules 2000 ".

7.    Rule 50 substituted

Rule 50 of the Principal Rules is rescinded and the following rule is substituted:

50.   Counterclaim and set-off

(1)  A defendant intending to file a counterclaim or set-off may do so only –

(a) in a form specified in a practice direction; and

(b) at the same time the defence is filed, unless the Court grants leave under subrule (2) .

(2)  The Court may grant leave to file a counterclaim or set-off after a defence is filed if the justice of the case so requires.

8.    Rule 52 amended (Third party claims)

Rule 52 of the Principal Rules is amended as follows:

(a) by inserting in subrule (2)(a) ", unless the Court grants leave under subrule (2A) " after "is filed";

(b) by inserting the following subrule after subrule (2) :

(2A)  The Court may grant leave to file a third party claim after a defence is filed if the justice of the case so requires.

9.    Rule 80 amended (Conference or hearing held in course of action)

Rule 80 of the Principal Rules is amended by inserting after subrule (2) the following subrule:

(3)  A party to an action must attend a conciliation conference of which he or she has been notified, unless the conciliator is satisfied that there are sufficient reasons for the party's non-attendance.

10.    Rule 88 amended (Adjournment of conciliation conference)

Rule 88 of the Principal Rules is amended by omitting "A" and substituting "Except in exceptional circumstances, a".

11.    Rule 99 amended (Orders at trial)

Rule 99 of the Principal Rules is amended by inserting after subrule (1) the following subrule:

(1A)  The Court may grant leave for a witness to appear by audio or audio visual link at a trial.

12.    Rule 116 amended (Judgment in default of defence)

Rule 116 of the Principal Rules is amended by inserting after subrule (3) the following subrule:

(4)  The registrar may refuse the entry of a default judgment if he or she is not satisfied that the claim has been served on all relevant parties.

13.    Part 8, Division 2 substituted

Division 2 of Part 8 of the Principal Rules is rescinded and the following Divisions are substituted:

Division 2 - Attachment of debts

125.   Interpretation and application of Division 2

(1)  In this Division –

approved means approved by the Administrator;

garnishee means a person from whom a judgment creditor claims that a debt is due or accruing to the judgment debtor on the day an application for a provisional garnishee order is made;

judgment includes an order;

judgment creditor means a person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into Court;

judgment debtor means a person required by a judgment to pay money other than into Court.

(2)  This Division does not apply to debts that are earnings within the meaning of Division 2A .

(3)  Subject to subrule (4) , this Division applies to and binds the Crown.

(4)  If a debt owing or accruing to the judgment debtor by or from the Crown is recoverable from an officer, servant or agent of the Crown, the garnishee proceedings are to be taken against the officer, servant or agent.

126.   Attachment of debts

(1)  A debt or periodical payment owing by, or accruing from, a firm carrying on business in Tasmania may be attached under this Division notwithstanding that one or more members of the firm may reside out of the jurisdiction.

(2)  A provisional garnishee order is to be served on a person having the control or management of a partnership business, or a member of a firm, within the jurisdiction.

127.   Provisional garnishee order

(1)  On the application in writing of a judgment creditor accompanied by an affidavit in accordance with the approved form, a registrar, without requiring any attendance, may make a provisional order that –

(a) all debts owing or accruing from the garnishee to the judgment debtor be attached to satisfy the judgment and the costs of the garnishee proceedings; and

(b) the garnishee hold any such debt due to the judgment debtor, or as much of that debt as is sufficient to satisfy the judgment and those costs, until the provisional order is made final or discharged.

(2)  An order under subrule (1) is to be in accordance with the approved form.

(3)  The costs of the garnishee proceedings are as provided for in item 4 in the table in Part 3 of Schedule 1 .

128.   Service of provisional order

(1)  A provisional order is to be served on the garnishee and the judgment debtor as soon as possible after it is made.

(2)  Service on the judgment debtor may be effected –

(a) at the address for service, if the judgment debtor has given one; or

(b) at the judgment debtor's usual residence or place of employment or business; or

(c) in any other manner as a magistrate or registrar directs.

(3)  Service of a provisional order binds the debts due or accruing to a judgment debtor in the garnishee's hands.

129.   Final order

(1)  If, after the expiration of 21 days after service of a provisional order on the garnishee and the judgment debtor, neither disputes the debt claimed to be due or accruing by filing a notice in the Court disputing the liability, the Court or a registrar, on proof of service in accordance with rule 43 and without requiring any attendance, may order –

(a) that the provisional order be made final; and

(b) if the garnishee has not paid to the judgment creditor the amount bound by the provisional order, that execution issue for that amount and those costs.

(2)  If, within 21 days after service of the provisional order on the garnishee and the judgment debtor, either files a notice disputing the garnishee's liability, the dispute is to be determined by a magistrate.

(3)  The registrar is to cause to be served on the garnishee, the judgment creditor and the judgment debtor notice of the hearing of the dispute.

(4)  For the purposes of determining the dispute, the magistrate may make any order as to how an issue of fact or question necessary for determining the liability of the garnishee is to be tried.

(5)  If the garnishee disputes liability on the ground that the debt sought to be attached belongs to a third person, or that a third person has a lien or charge on it, a magistrate may –

(a) order that the third person be given notice to appear and state the nature and particulars of the claim; and

(b) make any other order as to how the claim of that third person is to be tried.

(6)  On the determination of a dispute, a magistrate may –

(a) make a final order; or

(b) discharge the provisional order; or

(c) make any other order as is appropriate.

(7)  A final order is to be in accordance with the approved form.

129A.   Service of final order

As soon as possible after a final order is made, it is to be served on the garnishee.

129B.   Service of order discharging provisional order

An order discharging a provisional order is to be served on the garnishee and the judgment debtor as soon as possible after it is made.

129C.   Discharge of garnishee

Payment made by, or execution levied on, the garnishee under this Division is a valid discharge to the garnishee as against the judgment debtor to the extent of the amount paid or levied, even though the judgment afterwards may be set aside or the provisional garnishee order discharged.

129D.   Costs

(1)  Except where specific provision is made, the costs of any proceedings under this Division are to be in the discretion of a magistrate.

(2)  Unless otherwise directed, any costs of the garnishee proceedings to which a judgment creditor is entitled are to be retained out of the money recovered by the judgment creditor under the garnishee order in priority to the amount of the money due under the judgment.

129E.   Priority of orders

Where 2 or more provisional orders in respect of a debt have been served on a garnishee –

(a) those orders have priority according to the order in which they were served; and

(b) the order which is the first to be served on the garnishee is to be satisfied in full before payment is made in order to satisfy any order which is served later.

Division 2A - Attachment of wages and salaries

129F.   Interpretation and application of Division 2A

(1)  In this Division –

earnings, in relation to a judgment debtor, means any amount payable to the judgment debtor –

(a) by way of wages or salary or any other emolument payable in addition to wages or salary; or

(b) by way of pension in the form of –

(i) an annuity in respect of past services, whether or not the services were rendered to the person paying the annuity; and

(ii) periodical payments in respect of, or by way of, compensation for the loss, abolition or relinquishment, or any diminution in the emoluments, of any office; or

(c) by way of any other payment payable periodically, other than a pension or benefit or an allowance payable to the judgment debtor under any law of the Commonwealth;

judgment includes an order;

judgment creditor means a person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into Court;

judgment debtor means a person required by a judgment to pay money other than into Court;

net earnings, in relation to a payday, means the amount of earnings due to the judgment debtor less any usual deductions made by the garnishee in respect of the following:

(a) income tax instalments required to be deducted from those earnings under Division 2 of Part VI of the Income Tax Assessment Act 1936 of the Commonwealth;

(b) premiums to a medical or hospital benefits fund;

(c) superannuation contributions due and payable;

(d) periodical payments due and payable by the judgment debtor to the garnishee;

(e) other attachment orders made by any court having jurisdiction in the State, according to their priority;

payday means an occasion on which earnings to which a garnishee order relates become payable;

prescribed amount means 20% of net earnings.

(2)  Subject to subrule (3) , this Division applies to and binds the Crown.

(3)  If earnings payable to the judgment debtor by or from the Crown are recoverable from an officer, servant or agent of the Crown, the garnishee proceedings are to be taken against that officer, servant or agent.

129G.   Provisional garnishee order for attachment of earnings

(1)  On the application of a judgment creditor accompanied by an affidavit in accordance with the approved form, the registrar, without requiring any attendance, may make a provisional order that –

(a) on each payday the garnishee deduct from the earnings of the judgment debtor the prescribed amount until the judgment and the costs of the garnishee proceedings have been paid or satisfied; and

(b) the garnishee hold every sum so deducted for the judgment creditor until the provisional order is made final or discharged.

(2)  An order under subrule (1) is to be in accordance with the approved form.

(3)  An order may be made under subrule (1) even though –

(a) at the time there are no earnings due or owing by the garnishee to the judgment debtor; and

(b) the amount of the earnings is uncertain or is dependent on a contingency.

(4)  The costs of the garnishee proceedings are as provided for by item 4 in the table in Part 3 of Schedule 1 .

129H.   Service of provisional garnishee order

(1)  As soon as possible after a provisional order is made, it is to be served on the garnishee and on the judgment debtor.

(2)  Service on the judgment debtor may be effected –

(a) at the address for service, if the judgment debtor has given one; or

(b) at the judgment debtor's usual residence or place of employment or business; or

(c) in any other manner as a magistrate or registrar directs.

(3)  Service of a provisional order binds the earnings of the judgment debtor as and when they are earned or become due and owing in the hands of the garnishee.

129I.   Final garnishee order

(1)  On the expiration of 21 days after service of the provisional order on the garnishee and judgment debtor and on proof of service, the registrar, without requiring any attendance, may order that a provisional order be made final if –

(a) neither the garnishee nor the judgment debtor by filing a notice in the Court disputes that there are earnings payable by the garnishee to the judgment debtor; and

(b) the judgment debtor does not file a notice of objection claiming a reduction in the prescribed amount and accompanied by a full statement of the financial position of the judgment debtor verified on oath or by statutory declaration.

(2)  A registrar may order execution to issue in default of the garnishee paying to the judgment creditor the amounts deducted in accordance with the provisional order or the amounts deducted in accordance with the final order.

(3)  If, within 21 days after service of the provisional order on the garnishee and the judgment debtor, either files a notice disputing that earnings are payable to the judgment debtor, the dispute is to be determined by a magistrate.

(4)  If, within 21 days after service of the provisional order on the judgment debtor, the judgment debtor files a notice and statement in accordance with subrule (1)(b) , the matter is to be determined by a magistrate.

(5)  Rule 129(3) and (4) applies to any determination under subrule (3) or (4) .

(6)  On the determination of a matter under subrule (3) or (4) , a magistrate may –

(a) make the order final; or

(b) vary the prescribed amount and make the order final subject to the variation.

(7)  A final order is to be in accordance with the approved form.

129J.   Service of final garnishee order

As soon as possible after a final order is made, it is to be served on the garnishee.

129K.   Service of order discharging provisional garnishee order

As soon as possible after an order discharging a provisional order is made, it is to be served on the garnishee and the judgment debtor.

129L.   Discharge of garnishee

Payment made by, or execution levied on, the garnishee under this Division is a valid discharge to the garnishee as against the judgment debtor to the extent of the amount paid or levied, even though the judgment may afterwards be set aside or the provisional garnishee order discharged.

129M.   Costs of garnishee proceedings

Rule 129D applies to proceedings under this Division.

129N.   Priority of garnishee orders

If 2 or more provisional orders in respect of a judgment debtor have been served on a garnishee, those orders have priority according to the order in which they were served, subject to the following:

(a) if 2 or more orders are served on the same day, each order has the same priority and the garnishee is to deduct one prescribed amount only and distribute that amount equally to each relevant judgment creditor;

(b) in any other case, the garnishee is to comply with any later order as if the net earnings to which that order relates were the residue of the debtor's earnings after the deduction of the prescribed amount under any earlier order.

14.    Rule 141 amended (Consequences of not bettering offers or payments)

Rule 141 of the Principal Rules is amended by omitting subrule (2) and substituting the following subrule:

(2)  Unless the Court orders otherwise, if a claimant obtains final judgment for a sum of money equal to or less than the amount of any offer or payment by the defendant –

(a) the claimant is only entitled to costs for a period up to 14 days after the date of service of the offer or the date of the payment into Court; and

(b) following the expiration of that period, the defendant is entitled to costs on the scale applicable to the amount claimed by the claimant.

15.    Rule 142 amended (Cost penalty for inadequate offer)

Rule 142 of the Principal Rules is amended by omitting subrule (4) .

16.    Rule 146A inserted

After rule 146 of the Principal Rules , the following rule is inserted in Division 2:

146A.   Goods and services tax

A bill of costs may include as a disbursement an amount referable to tax paid or to be paid under the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth and the registrar is to make such allowance as is appropriate for the impact of the GST, within the meaning of that Act, on the bill of costs.

17.    Rule 148 amended (Assessment of costs)

Rule 148 of the Principal Rules is amended as follows:

(a) by omitting from subrule (1) " rule 148 ," and substituting " rule 147 ,";

(b) by inserting in subrule (2)(b) ", including an allowance for the impact of the GST, within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth" after "assessment".

18.    Rule 149 amended (Certificate of assessment)

Rule 149 of the Principal Rules is amended as follows:

(a) by inserting the following subrule after subrule (1) :

(1A)  If a registrar is satisfied that 21 days have passed since the bill of costs was served, the registrar may issue a certificate of assessment even though a notice of objection has not been filed.

(b) by omitting from subrule (3) " rule 151 " and substituting " rule 150 ".

19.    Schedule 1 amended (Costs and expenses)

Schedule 1 to the Principal Rules is amended by omitting items 17 and 18 from in Part 2 and substituting:

17 Attendance at listing conference, directions hearing or routine application

$80

$120

$150

18 Attendance at application requiring special argument or at conciliation conference

$160

$240

$300

These Rules of Court were made by the Rules Committee of Magistrates Court (Civil Division) at a meeting held on 24 March 2003.

A. G. Shott

Chief Magistrate

S. E. Tennent

Member

S. F. Mollard

Member

Roger C. Willee

Member

Ian R. Matterson

Member

P. F. Dixon

Member

M. Rapley

Member

T. J. Hill

Member

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 9 April 2003

These rules are administered in the Department of Justice and Industrial Relations.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Magistrates Court (Civil Division) Rules 1998  –

(a) in relation to –

(i) the registry in which an action is to proceed; and

(ii) the service of documents; and

(iii) conciliation conferences; and

(iv) the giving of evidence by audio or audio visual link; and

(v) attachment orders; and

(vi) assessments of costs; and

(b) by increasing certain costs.