In my previous post 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity', I discussed the new 2010 MCV Rules which are largely uniform with the VSC Rules. One good practical outcome of having largely uniform Court Rules is that a practitioner may only have to use volume 1 of Williams' Civil Procedure when in the Magistrates' Court (although this will make assessing costs in the Magistrates' Court difficult as the scale of costs is located in volume 3).
There are some differences which appear to arise between the 2010 MCV Rules and the VSC Rules 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 the Magistrates' Court has a more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).
I have set out below a list of orders in the 2010 MCV Rules and the VSC Rules which appear to differ from one another. This is not a list of the exact differences in the wording between the two sets of rules. If you are after that, I suggest you run a comparison between the two documents in Microsoft Word. Where I have put a '/' in the heading, I am referring to the following: (heading of the 2010 MCV Rules / heading of the VSC Rules).
Order 1 (Preliminary)
The 2010 MCV Rules include rules about the overriding objective and case management, whereas the VSC Rules do not.
Orders 4 (Process in the Court) and 5 (form of complaint / content, filing and duration of originating process)
The 2010 MCV Rules retain the simple commencement process by way of complaint, whereas the VSC Rules require commencement by writ or originating motion. For that reason, Orders 4 and 5 of the VSC Rules are more complex.
Order 6 (service)
The 2010 MCV Rules retain the additional mode of service by serving at a place of residence to a person over the age of 16. The VSC Rules do not have this mode of service.
Order 8 (notice of defence / appearance)
This is simpler than the VSC Rules. The 2010 MCV Rules do not require the filing and service of an appearance, so Order 8 of the 2010 MCV Rules concerns the form and timing of the notice of defence. Any rule in the VSC Rules which refers to an appearance appears to either be varied or not included in the 2010 MCV Rules.
Order 13 (pleadings)
This is simpler than the VSC Rules. The 2010 MCV Rules retain the simple pleading rules for a statement of claim and defence from the old MCV Rules (specifically orders 4 and 9 of the old MCV Rules), and do not go into the same detail seen in the VSC Rules.
Order 14 (service of pleadings)
This is absent from the 2010 MCV Rules. The 2010 MCV Rules have included service of pleadings in earlier orders (e.g. service of defence is in order 8 of the 2010 MCV Rules) and so there is no Order 14 in the 2010 MCV Rules concerning service of pleadings.
Order 16 (executors, administrators or trustees)
This is absent from the 2010 MCV Rules.
Order 18 (representative proceeding) and 18A (group proceeding)
This is absent from the 2010 MCV Rules.
Order 21 (order in default of defence or compliance / judgment in default of appearance or pleading)
The equivalent order in the 2010 MCV Rules is similar to the VSC Rules although it deals with judgment in default of defence only. Order 21 of the 2010 MCV Rules include rules about the expiration of proceedings, whereas the equivalent Order 21 in the VSC Rules does not.
Order 28 (filing / filing and sealing of court documents)
The equivalent order in the 2010 MCV Rules is simplified, dealing with the filing of documents with the Magistrates' Court.
Orders 31 to 45 (discovery by oral examination, directions, receivers, evidence before trial and originating motion)
These are all absent from the 2010 MCV Rules.
Order 47 (place and mode of hearing vs place and mode of trial)
The equivalent order in the 2010 MCV Rules is similar to the VSC Rules, except it does not include rules about juries.
Order 48 (setting a date for trial / fixing a date for trial)
The equivalent order in the 2010 MCV Rules is simplified. There is no order in the 2010 MCV Rules with rules concerning fixing a date for trial, trial notices, subsequent interlocutory steps, vacating the trial date and pre-trial conferences.
Order 50 (pre-hearing conferences and mediation / references)
The equivalent order in the 2010 MCV Rules is simplified. The VSC Rules provide for referral of the dispute for various forms of alternative dispute resolution including a special referee, mediation or arbitration. The 2010 MCV Rules provide only for referral to pre-hearing conferences and mediation.
Orders 51 to 58 (assessment of damages, accounts and inquiries, summary proceeding for recovery of land, administration of estates and execution of trusts, sale of land by order of court, judicial review and appeals from inferior jurisdiction)
These are all absent from the 2010 MCV Rules. Apart from assessment of damages, the remainder of the rules are not included as the Magistrates' Court does not have jurisdiction to hear these matters. An order concerning the assessment of damages is presumably not included in the 2010 MCV Rules in order to keep the proceedings in the Magistrates' Court simple, by reason of the low jurisdictional limit (i.e. $100,000).
Order 59 (orders / judgments and orders)
The equivalent order in the 2010 MCV Rules is simplified. The consent order rule is also simpler. There are additional rules in the 2010 MCV Rules concerning abandoning the excess above the jurisdictional limit, and self-executing orders.
Order 60 (authentication and filing of orders / authentication and filing of judgments and orders)
The equivalent authentication rules in the 2010 MCV Rules are simplified. The order in the 2010 MCV Rules also includes authentication of warrants.
Order 61 (judgment debt instalment orders)
The rules differ but appear similar in effect.
Order 63 (costs)
These are similar except with some added provisions and some simplification to deal with the low jurisdictional limit. They are similar to the County Court Rules as noted in Order 1 of the 2010 MCV Rules. The equivalent to rules 63.00.1 to 63.00.3 of the 2010 MCV Rules are not in the VSC Rules. These rules deal with the application of the scale of costs in particular instances when assessing or fixing costs. The lawyer costs liability provision in the VSC Rules does not make it into the 2010 MCV Rules, nor do the provisions concerning claims issued in the wrong court.
As the Magistrates' Court also refers taxation to the Costs Court of the Supreme Court of Victoria, the 2010 MCV Rules do not repeat the procedures for the Costs Court but instead refer to the VSC Rules as the governing provisions for taxation. Also, the allowances on taxation are simplified.
Orders 64 and 65 (court of appeal)
These are absent from the 2010 MCV Rules.
Order 66 (enforcement of orders / enforcement of judgments and orders)
The equivalent order in the 2010 MCV Rules is simplified and refers to the relevant provisions for enforcement in the Magistrates' Court Act 1989 (Vic).
Orders 67 to 72 (enforcement)
The 2010 MCV Rules have largely reproduced the enforcement provisions in Order 27 of the old MCV Rules, rather than adopting the VSC Rules.
Orders 73 to 81 (charging and stop orders, appointment of receiver, contempt, sequestration, associate judges, proceedings under judgment, funds in court, service under the Hague convention and obtaining evidence for external tribunal)
These are not included in the 2010 MCV Rules.
If you spot any other differences please let me know. I only spotted the difference in the service rules (that is, under rule 6.03(1)(b) of the 2010 MCV Rules a party may serve a document by delivering it to a person over the age of 16 years at a party's 'place of residence') because I had a matter involving this exact issue.
When I find other differences (which my initial review did not reveal) I will post them for your reference.