ByLawyers News and Updates

Magistrates Court – Civil – VIC

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The By Lawyers Magistrates Court – Civil litigation publication has been reviewed by our author, resulting in consolidation and enhancement.

Both the Acting for the Plaintiff and Acting for the Defendant guides in the Magistrates Court – Civil publication have been reviewed. Precedents on the matter plan have been consolidated, with some updates and amendments. This includes a number of bespoke By Lawyers precedents in the nature of ‘court forms’ drafted for use where there is no prescribed court form for certain actions required under the rules of court.

Amended precedents include:

  • Notice of discontinuance
  • Notice of ceasing to act
  • Notice of change of solicitor
  • Notice of change of solicitor’s address
  • Offer of compromise
  • Acceptance of offer of compromise under order 26
  • Application for administrative transfer to the County Court
  • Answers to interrogatories

The precedent Notice of Defence to Counterclaim has been deleted. This is because when a counterclaim is served the rules apply as if the defendant were the plaintiff and the plaintiff were the defendant. Accordingly, the usual Defence – Form 8A is used to defend a counterclaim which is on the matter plan.

Commentary on administratively transferring matters to the County Court, pursuant to s 17 of the Courts (Case Transfer) Act 1991, and appropriately responding to counterclaims has also been added.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Judicial registrars in the Magistrates’ Court – VIC

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Some recent legislative amendments have expanded the categories of criminal offences which can be dealt with by judicial registrars in the Magistrates’ Court of Victoria.

The offence of Improper Use of a Motor Vehicle has now been added to the list of offences which can be dealt with by a judicial registrar rather than a magistrate.

All traffic offences commence in the Magistrates Court and most traffic offences remain there, as only a relatively few traffic offences such as culpable driving and dangerous driving causing death are serious enough to be dealt with on indictment.

Some criminal offences, including some traffic offences can be dealt with in the Magistrates’ Court by a judicial registrar – see Rule 6(ea) of the Magistrates’ Court (Judicial Registrars) Rules 2015 for a full list of these. This now includes Improper Use of a Motor Vehicle. One of the ways in which that offence can be committed is to drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle’s wheels. The maximum penalty for the offence is 5 penalty units.

The Full Commentary in the By Lawyers Victorian Magistrates’ Court – Criminal publication has been updated accordingly.

The commentary also includes, in the Overview, an explanation of the nature and value of ‘penalty units’.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

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