I have included below a brief discussion of the new rules and how they differ from the Supreme Court (General civil Procedure) Rules 2005 (Vic) (the VSC Rules). The differences appear to arise because of an attempt by the drafters to simplify the equivalent rule for the Magistrates' Court (e.g. no writ, simpler pleading rules) or because of the Magistrates' Court has a narrower and more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).
This attempt at uniformity is a good thing, as the previous rules embodied in the Magistrates' Court Civil Procedure Rules 2009 (Vic) (the old MCV Rules) were sparse and often required supplementation by the VSC Rules under the rule 1.12 of the old MCV Rules. Rule 1.12 gave the Magistrates' Court of Victoria a discretion to apply the rules of the Supreme Court of Victoria where the old MCV Rules were silent. Under the old MCV Rules, I was occasionally involved in argument where a rule was vague and it was unclear whether or not it could be supplemented by the VSC Rules. The 2010 MCV Rules avoid these issues, and have the benefit of many years of authority on the meaning of the VSC Rules, as seen in the extensive commentary in Volume 1 of Williams' Civil Procedure.
The 2010 MCV Rules are uniform to a certain extent, but as I noted above there are certain orders and rules that have been customised for the peculiarities of the Magistrates' Court of Victoria. Order 1 notes the following under the heading 'preliminary':
These Rules are in many respects uniform with the Supreme Court (General Civil Procedure) Rules 2005 (the Supreme Court Rules). Many of the Orders and Rules are drafted in the same terms as the Supreme Court Rules, except so far as minor variations are required to accord with the Magistrates' Court jurisdiction. In some appropriate cases an Order is drafted in the same terms as the County Court Civil Procedure Rules 2008, for example Order 63 is drafted in similar terms to Order 63A of the County Court Civil Procedure Rules 2008, except so far as minor variations are required to accord with the Magistrates' Court jurisdiction
If the Supreme Court Rules include an Order or a Rule that is not included in these Rules there is a gap in the numbering of these Rules in order to maintain consistent numbering for the other Orders and Rules.My next blog post on this topic will be a list of orders in the 2010 MCV Rules and the VSC Rules which appear to differ one another.
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