Victorian Consolidated Regulations Victorian Consolidated Regulations(1) A notice of the making of an application under section 15(1) of the Act to review a suppression order in a proceeding to which these Rules apply must be generally in accordance with Form 82B.
(2) A copy of the notice must be filed by the
applicant as soon as practicable after the notice has been given to the Court,
if notice was not given by filing.
Form 4A—Overarching obligations certification
OVERARCHING OBLIGATIONS CERTIFICATION
[ heading as in Form 5A ]
In accordance with section 41 of the Civil Procedure Act 2010 , I [ name of party ] certify to the Court that I have read and understood the overarching obligations set out in sections 16 to 26 of that Act and the paramount duty set out in section 16 of that Act.
Dated: [ insert date ].
Signed
[ To be signed personally by party
or if party is represented by a litigation
guardian
or similar representative,
by that litigation guardian or
representative,
or if party has no meaningful control of the proceeding
by
virtue of a statute or a contract of insurance,
by the person in control of
the proceeding
by virtue of the statute or contract of insurance ]
Form 4AB—Certification of prior overarching obligations certification
CERTIFICATION OF PRIOR OVERARCHING OBLIGATIONS CERTIFICATION
[ heading as in Form 5A ]
In accordance with section 41(5)(b) of the Civil Procedure Act 2010 , I [ name of legal practitioner ] certify to the Court that [ name of party ] is currently involved, or has been involved, in more than one civil proceeding and has personally made the overarching obligations certification in other civil proceedings in the Court within 2 years prior to the date of this certification.
Dated: [ insert date ].
Signed
[ To be signed by legal practitioner
representing party who has previously
made overarching obligations certification in other civil proceedings in
the Court ]
Form 4B—Proper basis certification
PROPER BASIS CERTIFICATION
[ heading as in Form 5A ]
In accordance with section 42 of the Civil Procedure Act 2010 , I [ name of legal practitioner or if not legally represented, name of party ] certify to the Court that, in relation to [ identify document to which certification relates ] filed on behalf of [ specify party ], on the factual and legal material available to me at present:
[ in a civil proceeding which involves allegations of fact: ]
*(a) each allegation of fact in the document has a proper basis;
*(b) each denial in the document has a proper basis;
*(c) there is a proper basis for each non-admission in the document.
[ in a civil proceeding commenced by a complaint seeking a particular legal relief or remedy: ]
*(a) each claim in the document has a proper basis;
*(b) each response in the document to a claim has a proper basis;
*(c) each question posed to the Court in the document has a proper basis;
*(d) each response in the document to each question posed to the Court has a proper basis.
Dated: [ insert date ].
Signed
*Delete if inapplicable.
* * * *
*
Form 5A—Complaint
IN THE MAGISTRATES' COURT Court Number
OF VICTORIA
AT [ insert proper venue ]
BETWEEN A.B. Plaintiff
[ full name ]
OF
[ address ]
and
C.D. Defendant
[ full name ]
OF
[ address of defendant ]
1. The address for service of the plaintiff is—[ address must be within Victoria if the plaintiff sues in person ]
*2. Name and business address of the Australian lawyer for the plaintiff—[ if the Australian lawyer is acting as agent for another Australian lawyer, state the name and business address of the principal lawyer ]
*3. The plaintiff sues ( or the defendant is sued) in the following representative capacity [ e.g. as administrator of the estate of ].
4. The email address for service on the plaintiff is—
NOTICE TO THE DEFENDANT
If you need an interpreter to help you read this document contact details for
most languages are listed at www.mcv.vic.gov.au.
The plaintiff's claim against you is set out in the Statement of Claim.
You MUST READ the Statement of Claim.
IF YOU INTEND TO DEFEND this Complaint , YOU MUST GIVE NOTICE OF DEFENCE within 21 days of the day you were served with this Complaint, to—
(a) the plaintiff (at the address for service of the plaintiff as stated above); and
(b) the registrar of the Magistrates' Court of Victoria at [ insert proper venue and address ].
NOTICE OF DEFENCE must be given in the proper form (Form 8A, 2 copies of which have been served with this Complaint) and you must read and comply with the notes attached to that document. You may attach additional pages, if needed.
IF YOU PAY the Plaintiff within 21 days of service of this Complaint the amount of $ [ insert amount ] and the costs of $ [ insert amount ] to the plaintiff or to the plaintiff's Australian lawyer without giving notice of defence and the plaintiff accepts that payment in full satisfaction of the claim (including any interest and costs), the proceeding ends on that acceptance.
IF YOU DO NOT GIVE NOTICE OF DEFENCE WITHIN 21 DAYS of service of this Complaint and have not paid the claim and the costs, the plaintiff may, without there being a hearing of this claim by the Court and without giving you any further notice , apply to the Court for an ORDER (JUDGMENT) AGAINST YOU for the amount of the claim and interest and costs AND take steps to enforce the order (judgment) and obtain payment.
The Court's registrars do NOT provide legal or financial advice but may provide some information to you about the actions and processes you must undertake in order to defend this claim.
If before giving NOTICE OF DEFENCE , you wish to get FREE LEGAL or FINANCIAL ADVICE you may be able to do so from free legal advice services and free financial counselling services.
Those services are not employed by or under the control of the Court and therefore the Court cannot recommend any of them, but contact details for such services together with some practical assistance can be obtained from the Magistrates' Court of Victoria's website at www.mcv.vic.gov.au.
Your local municipal council may also be able to provide contact details for community services in your area that may be able to assist you.
Payment of Judgment Debt by Instalments
IF YOU DO NOT defend this claim and do not reach agreement with the plaintiff relating to the time for payment after an order (judgment) against you, you may apply to the Court for an order permitting you to pay that order (judgment) by instalments. The Court will consider your application and advise you of the outcome.
The Court's registrars will be able to provide you with information about the process to apply for an order for payment of the judgment debt by instalments.
STATEMENT OF CLAIM
1. [ Here set out in numbered consecutive paragraphs all the material facts relied on for the claim against the defendant including particulars of every fact or matter.
If the claim arises by or under any statute, identify the specific provision relied on. State specifically the amount or other relief or remedy sought. State the place where and the date when the claim arose.
If the claim arises out of a motor vehicle accident and the claim includes a claim for the cost of repairs to the vehicle or total loss of the vehicle, an itemised quotation of the cost of the repairs or an assessment of the loss (whichever is relevant) must be attached to this complaint .]
2. [ etc. ]
DATE OF FILING:
THIS COMPLAINT IS VALID IF IT BEARS THE COURT NUMBER AND THE DATE OF FILING.
Dated: [ insert date ].
[ To be signed by the plaintiff or the plaintiff's Australian lawyer ]
*Delete if inapplicable.
Form 6A—Affidavit/declaration of service
AFFIDAVIT/DECLARATION OF SERVICE
[ heading as in Form 5A ]
I, [ full name ] of [ address and occupation ],
*make oath and say
*affirm and say
*declare that
I served [ describe each document and whether it was a copy of a document or an original document ]
on [ name of the person served ]
[ State all relevant information and facts as required by Rule 6.17(1) in numbered paragraphs which may include answers to the following:
How did you identify the person you served and establish the person's identity?
Was the person you served the person named in the document(s) to be served?
At what time, day of the week and date did you serve the document(s) on the person?
Where was the person served the document(s)? For example, was it at the residence or the business of the person?
How was/were the document(s) served on the person? For example, by hand or by post? ]
*[ For affidavits ] The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.
*[ For statutory declarations ] I declare that the contents of this statutory declaration are true and correct and I make it knowing that making a statutory declaration that I know to be untrue is an offence.
|
*Sworn/Affirmed/ Declared at |
|
[ Signed by person ]
*authorised under section 30(2) of the Oaths and Affirmations Act 2018 to witness the signing of a statutory declaration.
*authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.
[ Name and address in legible writing, typing or stamp ]
*Delete if inapplicable.
Form 7A—Service out of Australia—Notice to defendant served out of Australia
SERVICE OUT OF AUSTRALIA—NOTICE TO DEFENDANT SERVED OUT OF AUSTRALIA
[ heading as in Form 5A ]
To the Defendant:
1. You have been served with an originating process out of Australia under Rules 7.01.1 to 7.09 of the Magistrates' Court General Civil Procedure Rules 2020 of the Magistrates' Court of Victoria. A copy of those Rules is enclosed for your information. They show the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia.
2. The grounds alleged by the plaintiff to support its claim to be entitled to serve you out of Australia are:
[ specify grounds ]
3. If you do not give notice of defence in accordance with the Rules of the Court, the Court may, on application made by you, make an order setting aside the complaint or its service on you or dismissing or staying the proceeding. Without limiting the Court's powers in this regard, the Court may make such an order if satisfied that—
(a) the service was not authorised by the Rules of the Court; or
(b) this Court is an inappropriate forum for the trial of the proceeding; or
(c) the claim has insufficient prospects of success to warrant putting you to the time, expense and trouble of defending the claim.
4. Alternatively you may give notice of defence (in the form prescribed by the Rules of the Court) within the time required under the Rules of the Court.
5. If you give notice of defence, additional procedural obligations (such as an obligation to file a notice of defence) may apply to you in accordance with the Rules of the Court.
6. If you do not give notice of defence within the time required
under the Rules of the Court and you have not made an application of a
kind referred to in paragraph 3, the Court may give leave to the plaintiff to
proceed against you without further notice.
Form 7AA—Subpoena to give evidence (New Zealand)
SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND)
No. of 20
IN THE MAGISTRATES' COURT OF VICTORIA
AT
APPLICANT[S] [ Name of Applicant(s) ]
RESPONDENT[S] [ Name of Respondent(s) ]
Notice to Witness
Trans-Tasman Proceedings Act 2010
This Notice is very important.
Please read it and the attached document or documents very carefully.
If you have any trouble understanding these documents you should get legal advice as soon as possible.
Attached to this Notice is a subpoena.
The subpoena has been issued by the Magistrates' Court of Victoria.
The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)).
This Notice—
● sets out your rights relating to the subpoena; and
● sets out your obligations relating to the subpoena; and
● includes information about the way in which you may make an application to have the subpoena set aside.
Filed on behalf of [ name and role of party ]
Prepared by [ name of person/lawyer ]
Law firm [ if applicable ]
Tel Fax
Address for service
[ include State and postcode ]
Your rights
1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.
2. An amount of money, or money and vouchers that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ' Your obligations ').
3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Magistrates' Court of Victoria that you be paid the additional amount you incurred.
4. You may apply to the Magistrates' Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible.
5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand.
Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this Notice.
Your obligations
Unless the subpoena is set aside, you must comply with the attached subpoena if—
(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either—
(i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or
(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and
(b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and
(c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and
(d) service of the subpoena complied with any other conditions specified in the order; and
(e) you are 18 years of age or older.
Failure to comply with the subpoena
If you do not comply with the subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed.
Grounds for setting aside a subpoena
1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and—
(a) you do not have the necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or
(b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or
(c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or
(d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or
(e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence).
2. The grounds on which the Court may set aside the subpoena include—
(a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense;
(b) compliance with the subpoena would cause you hardship or serious inconvenience;
(c) if the subpoena requires you to produce a document or thing and—
(i) that document or thing should not be taken out of New Zealand; and
(ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.
Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.
Procedure for applying to set aside a subpoena
1. Application must be made to the Magistrates' Court of Victoria.
2. You may fax your application to that Court on fax number [ fax number of the Court ].
3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.
4. The Registrar will arrange for service of your application and of any affidavit you lodge with the Court with your application.
5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.
6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.
7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.
SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND)
No. of 20
IN THE MAGISTRATES' COURT OF VICTORIA
AT
APPLICANT[S] [ Name of Applicant(s) ]
RESPONDENT[S] [ Name of Respondent(s) ]
TO: [ name and address ]
You are ordered to attend to give evidence. See next page for details.
Failure to comply with this subpoena without lawful excuse is a contempt of
court and may result in your arrest and the imposition
of a fine under section
165 of the Evidence Act 2006 (New Zealand).
Please read Notes 1 to 8 at the end of this subpoena.
The last date for service of this subpoena is [ date ]. (See Note 2)
Dated: [ insert date ].
Issued at the request of [ name of party ], whose address for service is:
Place:
Email:
Details of subpoena
Date, time and place at which you must attend to give evidence, unless you receive a notice of a later date or time from the issuing party, in which case the later date or time is substituted:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
Notes:
1. You need not comply with this subpoena unless it is accompanied by—
(a) a copy of the order giving leave to serve this subpoena in New Zealand; and
(b) a notice in the prescribed form that—
(i) sets out your rights and obligations in relation to this subpoena; and
(ii) includes information about the way in which an application to have this subpoena set aside may be made.
Last day for service
2. You need not comply with this subpoena unless it is served on you on or before the date specified in this subpoena as the last date for service of this subpoena.
Informal service
3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements.
Addressee a corporation
4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer.
Applications in relation to subpoena
5. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena.
Loss or expense of compliance
6. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness's expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with this subpoena.
Contempt of court—arrest
7. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand).
8. Note 7 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
*Delete if inapplicable.
Form 7AB—Subpoena to produce documents (New Zealand)
SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND)
No. of 20
IN THE MAGISTRATES' COURT OF VICTORIA
AT
APPLICANT[S] [ Name of Applicant(s) ]
RESPONDENT[S] [ Name of Respondent(s) ]
Notice to Witness
Trans-Tasman Proceedings Act 2010
This Notice is very important.
Please read it and the attached document or documents very carefully.
If you have any trouble understanding these documents you should get legal advice as soon as possible.
Attached to this Notice is a subpoena.
The subpoena has been issued by the Magistrates' Court of Victoria.
The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)).
This Notice—
● sets out your rights relating to the subpoena; and
● sets out your obligations relating to the subpoena; and
● includes information about the way in which you may make an application to have the subpoena set aside.
Filed on behalf of [ name and role of party ]
Prepared by [ name of person/lawyer ]
Law firm [ if applicable ]
Tel Fax
Address for service
[ include State and postcode ]
Your rights
1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.
2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ' Your obligations ').
3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Magistrates' Court of Victoria that you be paid the additional amount you incurred.
4. You may apply to the Magistrates' Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible.
5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand.
Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this Notice.
Your obligations
1. Unless the subpoena is set aside, you must comply with the attached subpoena if—
(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either—
(i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or
(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and
(b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and
(c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and
(d) service of the subpoena complied with any other conditions specified in the order; and
(e) you are 18 years of age or older.
2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena.
You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena.
When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena.
Failure to comply with the subpoena
If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed.
Grounds for setting aside a subpoena
1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and—
(a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or
(b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or
(c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or
(d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or
(e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence).
2. The grounds on which the Court may set aside the subpoena include—
(a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense;
(b) compliance with the subpoena would cause you hardship or serious inconvenience;
(c) if the subpoena requires you to produce a document or thing and—
(i) that document or thing should not be taken out of New Zealand; and
(ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.
Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.
Procedure for applying to set aside a subpoena
1. Application must be made to the Magistrates' Court of Victoria.
2. You may fax your application to that Court on fax number [ fax number of the Court ].
3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.
4. The Registrar will arrange for service of your application and of any affidavit you lodge with the Court with your application.
5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.
6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.
7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.
SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND)
No. of 20
IN THE MAGISTRATES' COURT OF VICTORIA
AT
APPLICANT[S] [ Name of Applicant(s) ]
RESPONDENT[S] [ Name of Respondent(s) ]
TO: [ name and address ]
You are ordered to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details.
Failure to comply with this subpoena without lawful excuse is a contempt of
court and may result in your arrest and the imposition
of a fine under section
165 of the Evidence Act 2006 (New Zealand).
Please read Notes 1 to 16 at the end of this subpoena.
The last date for service of this subpoena is [ date ]. (See Note 2)
Dated: [ insert date ].
Issued at the request of [ name of party ], whose address for service is:
Place:
Email:
Details of subpoena
You must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to—
(i) the Registrar at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production; or
(ii) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. (See Notes 6–12)
Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things:
Date:
Time:
Place:
Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted:
Magistrates' Court of Victoria
[ address ]