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Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2016

S.R. No. 17/2016

TABLE OF PROVISIONSRule Page

1 Object 12 Authorising provisions 13 Commencement 14 Principal Rules 15 Definition 26 Effect of noncompliance 27 Application to set aside for irregularity 28 Urgent cases 29 Duration 210 Personal service on particular parties 311 How ordinary service effected 312 Acceptance of service by Australian lawyer 313 Substituted service 314 Application for leave 415 Joinder of claims 416 Addition, removal, substitution of party 417 Defendant dead at commencement of proceeding 418 Change of party on death, bankruptcy 519 Failure to proceed after death of party 520 Amendment of proceedings after change of party 621 Procedure after counterclaim against another person 622 Default by third party 623 Claim against another party 624 Definitions for Order 12 725 Admission of claim 726 Interpleader summons 727 Neutrality of applicant 728 Order in several proceedings 729 Heading to Order 15 amended 830 Definitions for Order 15 831 Litigation guardian of person under disability 832 Appointment of litigation guardian 833 Discovery 834 Rule 17.06 substituted 935 Heading to Order 26 936 Heading to Part 2 of Order 26 9

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37 Party under disability 938 Form of document 939 Seal of Court 1040 Scope of discovery 1041 Co-defendants and third party 1042 Inspection of documents referred to in pleadings and affidavits 1043 Source for answers to interrogatories 1044 Who to answer interrogatories 1145 Party an applicant 1146 Inspection of documents 1147 Costs 1148 Voluntary admission of facts 1149 General power of amendment 1250 Inspection from prospective defendant 1251 Procedure 1252 Examination on affidavit 1353 Deposition as evidence 1354 Heading to Order 41A substituted 1355 Payment of costs 1356 Application of Order 42A 1357 Objection by party to inspection by other party 1358 Removal of document 1359 Return of document 1360 Form of affidavit 1461 Affidavit by illiterate, blind or incapacitated person 1562 Annexures and exhibits 1563 Application of Order 44 1564 Report of expert 1565 No evidence unless disclosed in report 1666 Time for compliance 1667 Authentication of warrants 1668 Adjournment 1669 When security for costs may be ordered 1670 Time for costs order and payment 1671 Bases of taxation 1772 Standard basis 1773 Indemnity basis 1774 Heading to Rule 63.68 amended 1775 Gross sum for costs 1776 Order in aid of enforcement 1777 Definitions in Order 68 1778 Notional possession of goods 1879 Examination of judgment debtor 1880 Minor amendments to Forms 4B, 5A, 7A, 7AA, 7AB, 7AC, 8A,

10A, 11A, 11B and 12A 1881 Notice of claim to goods taken in execution 1882 Minor amendments to Forms 12C, 19A, 21A, 21B and 22A 18

83 Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and 35B 19

84 Minor amendments to Forms 46A, 46B, 61D to 61I 1985 Minor amendments to Forms 61J, 61K, 61L, 61M, 67A

and 67D 2086 Minor amendments to Forms 68A, 68B, 69A, 71A to 72E 2087 Minor amendments to Forms 82A and 82B 21

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Endnotes 22

STATUTORY RULES 2016

S.R. No. 17/2016

Magistrates' Court Act 1989


The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

1 Object

The object of these Rules is to amend the Magistrates' Court General Civil Procedure Rules 2010—

(a) to ensure that, as far as possible, the Magistrates' Court General Civil Procedure Rules 2010 are consistent with the Supreme Court (General Civil Procedure) Rules 2015; and

(b) to make other miscellaneous amendments.

2 Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.

3 Commencement

These Rules come into operation on 11 April 2016.

4 Principal Rules

In these Rules, the Magistrates' Court General Civil Procedure Rules 20101 are called the Principal Rules.

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5 Definition

Insert the following definition in Rule 1.13 of the Principal Rules—

"sheriff includes—

(a) the sheriff employed under section 6 of the Sheriff Act 2009; and

(b) any person to whom a warrant referred to in these Rules is directed;".

6 Effect of noncompliance

(1) In Rule 2.01(1) of the Principal Rules, for "or a" substitute "or any".

(2) In Rule 2.01(1) of the Principal Rules, for "therein" substitute "in the proceeding".

7 Application to set aside for irregularity

In Rule 2.03 of the Principal Rules, for "therein" substitute "in any proceeding".

8 Urgent cases

In Rule 4.08 of the Principal Rules—

(a) omit "the Court may,";

(b) after "directs," insert "the Court may".

9 Duration

In Rule 5.12(4) of the Principal Rules, for "must adjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise." substitute—

"must—

(a) adjourn the further hearing; and

(b) direct the plaintiff to give notice to the defendant by summons or otherwise.".

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10 Personal service on particular parties

For Rule 6.04(d) of the Principal Rules substitute—

"(d) the Crown in right of the Commonwealth or the Commonwealth, on the Attorney-General of the Commonwealth or on a person appointed by the Attorney-General to receive service in accordance with section 63 of the Judiciary Act 1903 of the Commonwealth;".

11 How ordinary service effected

In Rule 6.07(2)(a) of the Principal Rules, for "his or her" substitute "the individual's".

12 Acceptance of service by Australian lawyer

In Rule 6.09(2) of the Principal Rules—

(a) omit ", unless the Australian lawyer is shown not to have had authority to accept service,";

(b) after "made the note" insert ", unless the Australian lawyer is shown not to have had authority to accept service".

13 Substituted service

For Rule 6.10(3) of the Principal Rules substitute—

"(3) The Court may make an order under paragraph (1) even though the person to be served—

(a) is out of Victoria; or

(b) was out of Victoria when the proceeding commenced.".

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14 Application for leave


"(4) If any document is served out of Australia by order of the Court made under Rule 7.06 or 7.07(3), the following must be served with the document—

(a) a copy of the order, a copy of any affidavit made in support of the application for the order;

(b) unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit.".

15 Joinder of claims

For Rule 9.01 of the Principal Rules substitute—

"9.01 Joinder of claims

A plaintiff may join any number of claims against a defendant—

(a) whether the plaintiff makes the claims in the same or in different capacities; and

(b) whether the claims are made against the defendant in the same or in different capacities.".

16 Addition, removal, substitution of party

In Rule 9.06(b) of the Principal Rules—

(a) omit ", namely";

(b) for "upon; or" substitute "upon;".

17 Defendant dead at commencement of proceeding

In Rule 9.08(4) of the Principal Rules, after "A proceeding" insert "commenced".

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18 Change of party on death, bankruptcy

For Rule 9.09(2) and (3) of the Principal Rules substitute—

"(2) If at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order—

(a) that the other person be added as a party to the proceeding or be made a party in substitution for the original party; and

(b) that the proceeding be carried on as so constituted.

(3) Unless the Court otherwise directs, the person on whose application an order is made under paragraph (2)—

(a) must serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order; and

(b) in the case of a person who becomes a defendant, must serve that person personally with the order and with the complaint.".

19 Failure to proceed after death of party


(a) for "(i)" substitute "(a)";

(b) for "(ii)" substitute "(b)".

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20 Amendment of proceedings after change of party


"(1) If an order is made under Rule 9.06 or 9.08—

(a) the complaint filed in the Court must, subject to Rule 27.02(5), be amended accordingly within the time specified in the order, and otherwise within 10 days after the making of the order; and

(b) a reference to the order, the date of the order and the date on which the amendment is made must be indorsed upon the complaint or the other originating process.".

21 Procedure after counterclaim against another person

In Rule 10.04(1) of the Principal Rules, for "showing who is plaintiff to the counterclaim and who are defendants to the counterclaim." substitute—

"showing—

(a) who is plaintiff to the counterclaim; and

(b) who are defendants to the counterclaim.".

22 Default by third party

In Rule 11.11(2) of the Principal Rules, after "such order" insert "as".

23 Claim against another party


(a) after "this Order" insert "applies";

(b) for "applies as if" substitute "as if".

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24 Definitions for Order 12


(a) in the definition of property in dispute, for "proceedings" substitute "a proceeding";

(b) the definition of sheriff is revoked.

25 Admission of claim


(a) in paragraph (a), for "given;" substitute "given; and";

(b) in paragraph (b), for "claimed;" substitute "claimed; and";

(c) in paragraph (c)—

(i) omit "the Court,";

(ii) after "the sheriff," insert "the Court".

26 Interpleader summons


(a) omit "the Court may";

(b) after "withdrawn," insert "the Court may".

27 Neutrality of applicant

(1) In Rule 12.10(2)(a) of the Principal Rules, for "mentioned" substitute "referred to".

(2) In Rule 12.10(3) of the Principal Rules, for "must affect" substitute "affects".

28 Order in several proceedings


"(2) An order made under paragraph (1)—

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(a) must be entitled in all the proceedings in which it is made; and

(b) must be binding on all the parties to them.".

29 Heading to Order 15 amended

In the heading to Order 15 of the Principal Rules, for "PERSON" substitute "PERSONS".

30 Definitions for Order 15

In Rule 15.01 of the Principal Rules, in the definition of handicapped person, for "his or her" substitute "that person's".

31 Litigation guardian of person under disability

In Rule 15.02(1) and (2) of the Principal Rules, for "his or her" substitute "the person's".

32 Appointment of litigation guardian

(1) For Rule 15.03(1) of the Principal Rules substitute—

"(1) A person may be a litigation guardian of a person under disability if the first-mentioned person—

(a) is not a person under disability; and

(b) has no interest in the proceeding adverse to that of the person under disability.".

(2) In Rule 15.03(6)(b)(ii) of the Principal Rules omit "said".

33 Discovery

In Rule 15.07(2) of the Principal Rules, for "his or her" substitute "the person's".

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34 Rule 17.06 substituted


"17.06 Notice of defence under objection of person sued as partner

A person served with a complaint as a partner may file a notice of defence stating—

(a) that the person does so as a person served as a partner; and

(b) that the person denies that the person was a partner at any material time or is liable as such.".

35 Heading to Order 26

In the heading to Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".

36 Heading to Part 2 of Order 26

In the heading to Part 2 of Order 26 of the Principal Rules, for "OFFER" substitute "OFFERS".

37 Party under disability

In Rule 26.06 of the Principal Rules, for "him or her" substitute "the person".

38 Form of document


"(5) Subject to Rule 27.02(4) and (5), the heading of the document—

(a) must be indorsed on the first sheet of the document; and

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(b) must be followed immediately by a short description of the document.".

(2) In Rule 27.03(12) of the Principal Rules, for "and telephone number" substitute ", telephone number and email address".

39 Seal of Court

In Rule 28.04(1) of the Principal Rules, for "his or her" substitute "that person's".

40 Scope of discovery

In Rule 29.01.1(4)(b) of the Principal Rules, for "his, her or its" substitute "the party's".

41 Co-defendants and third party

In Rule 29.06(2) of the Principal Rules, for "shall apply" substitute "applies".

42 Inspection of documents referred to in pleadings and affidavits


(a) for "other party may" substitute "other party";

(b) after "that party," insert "may".

43 Source for answers to interrogatories

For Rule 30.05(1)(b) of the Principal Rules substitute—

"(b) a party who has no knowledge of the fact or matter inquired after must be taken not to have a belief as to the fact or matter—

(i) where the party has no information relating to the fact or matter on which to form a belief; or

(ii) where, if the party has such information, for reasonable cause the

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party has no belief that the information is true;".

44 Who to answer interrogatories

In Rule 30.08(1)(a)(ii) of the Principal Rules, for "his or her" substitute "that person's".

45 Party an applicant


"32.06 Party an applicant

Rule 32.05 applies, with any necessary modification, if—

(a) the applicant is a party to a proceeding; and

(b) there is reasonable cause to believe that the applicant has or may have the right to obtain against a person who is not a party relief which the applicant could properly have claimed in the proceeding had the person been a party.".

46 Inspection of documents

In Rule 32.09 of the Principal Rules, for "mentioned" substitute "referred to".

47 Costs

In Rule 32.11(1)(c) of the Principal Rules omit "of".

48 Voluntary admission of facts

(1) In Rule 35.02(1) of the Principal Rules—

(a) omit "may";

(b) after "another party," insert "may".

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(a) omit "may";

(b) after "Court," insert "may".

49 General power of amendment


"(2) In this Part document includes—

(a) a complaint; and

(b) an application; and

(c) a pleading.".


(a) for "The Court may, notwithstanding" substitute "Notwithstanding";

(b) after "commenced," insert "the Court may".

50 Inspection from prospective defendant


"(5) On an application under this Rule, the Court may make an order for the costs and expenses of—

(a) the applicant; and

(b) the person against whom the order is sought.".

51 Procedure


"(1) An application for an order under Rule 37.01 must be made by application—

(a) served on all parties to the proceeding; and

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(b) served personally on each person who would be affected by the order if made.".

52 Examination on affidavit


(a) omit "may" (where first occurring);

(b) in paragraph (a), before "order" insert "may".

53 Deposition as evidence

In Rule 40.07(1)(a)(ii) of the Principal Rules, for "his or her" substitute "the deponent's".

54 Heading to Order 41A substituted

For the heading to Order 41A of the Principal Rules substitute—

"APPLICATION TO USE AUDIO VISUAL LINK OR AUDIO LINK".

55 Payment of costs

In Rule 41A.06 of the Principal Rules—

(a) after "amount" insert "(if any)";

(b) after "regulations" insert "(if any)".

56 Application of Order 42A

In Rule 42A.01 of the Principal Rules, for "Rule" substitute "Order".

57 Objection by party to inspection by other party

In Rule 42A.08(2) of the Principal Rules, for "his or her" substitute "the plaintiff's".

58 Removal of document

In 42A.11(3) of the Principal Rules, for "his or her" substitute "the registrar's".

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59 Return of document

(1) In Rule 42A.12(1)(a) and (2) of the Principal Rules, for "his or her" substitute "the registrar's".

(2) In Rule 42A.12(3)(b) of the Principal Rules, for "his or her" substitute "the plaintiff's".

60 Form of affidavit


"(2) Unless the Court otherwise orders, an affidavit must state—

(a) the place of residence of the deponent and the deponent's occupation or, if the deponent has none, the deponent's description; and

(b) that the deponent is a party to the proceeding or employed by a party, if such be the case.".


"(3) Notwithstanding paragraph (2), if a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state—

(a) the address of the deponent's place of business; and

(b) the position the deponent holds; and

(c) the name of the deponent's firm or employer, if any.".


(a) for "his or her" (where twice occurring) substitute "the person's";

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(b) for "he or she" substitute "the person".

61 Affidavit by illiterate, blind or incapacitated person


(a) for "he or she" substitute "the person";

(b) in paragraph (c), for "his or her" substitute "the deponent's".

62 Annexures and exhibits

For Rule 43.06(2) and (3) of the Principal Rules substitute—

"(2) An exhibit to an affidavit must be identified by a separate certificate annexed to it—

(a) bearing the same heading as the affidavit; and

(b) signed by the person before whom the affidavit is sworn.

(3) The certificate must—

(a) be in Form 43A; and

(b) contain in the bottom right-hand corner of the page in bold type and in a font size not less than 20 points the distinguishing mark of the exhibit and a brief and specific description of the exhibit.".

63 Application of Order 44

In the heading to Rule 44.02 of the Principal Rules, after "Application" insert "of Order".

64 Report of expert

(1) For Rule 44.03(2)(e) of the Principal Rules substitute—

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"(e) in respect of the opinion—

(i) the reasons for it;

(ii) any literature or other materials utilised in support of it;

(iii) a summary of it;".

(2) In Rule 44.03(3) of the Principal Rules, for "his or her" substitute "the expert's".

65 No evidence unless disclosed in report

In Rule 44.05 of the Principal Rules, for "Save" substitute "Except".

66 Time for compliance


(a) omit "may";

(b) after "order," insert "may".

67 Authentication of warrants

In Rule 60.07(a) of the Principal Rules, for "his or her" substitute "the person's".

68 Adjournment

In Rule 61.13 of the Principal Rules, for "he or she" substitute "the proper officer".

69 When security for costs may be ordered

In Rule 62.02(1)(e) of the Principal Rules, for "his, her or its" substitute "the plaintiff's".

70 Time for costs order and payment


"(1) The Court may in any proceeding exercise its power and discretion as to costs—

(a) at any stage of the proceeding; or

(b) after the conclusion of the proceeding.".

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71 Bases of taxation


(a) in paragraph (a), for "a" substitute "the";

(b) in paragraph (b), for "an" substitute "the".

72 Standard basis

In Rule 63.30 of the Principal Rules, for "a" (where secondly occurring) substitute "the".

73 Indemnity basis

In Rule 63.30.1(1) of the Principal Rules, for "an" (where firstly occurring) substitute "the".

74 Heading to Rule 63.68 amended

In the heading to Rule 63.68 of the Principal Rules omit "and interpretation".

75 Gross sum for costs

In Rule 63.71(1) of the Principal Rules, for "is excessive, only costs that were reasonable and proper must be allowed, and a registrar may assess those costs at a gross sum." substitute—

"is excessive—

(a) only costs that were reasonable and proper must be allowed; and

(b) a registrar may assess those costs at a gross sum.".

76 Order in aid of enforcement

In Rule 66.15(2) of the Principal Rules, for "Sheriff" substitute "sheriff".

77 Definitions in Order 68

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(1) For the heading to Rule 68.01 of the Principal Rules substitute—

"Definition".

(2) In Rule 68.01 of the Principal Rules, the definition of Sheriff is repealed.

78 Notional possession of goods

In Rule 69.07 of the Principal Rules, for "Sheriff" (where three times occurring) substitute "sheriff".

79 Examination of judgment debtor

In Rule 72.04(6) of the Principal Rules, for "his or her" substitute "the judgment debtor's".

80 Minor amendments to Forms 4B, 5A, 7A, 7AA, 7AB, 7AC, 8A, 10A, 11A, 11B and 12A

(1) In Form 4B of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(2) In Forms 5A and 7A of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

(3) In Forms 7AA, 7AB, 7AC and 8A of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(4) In Forms 10A, 10B and 11A of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

(5) In Forms 11B and 12A of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

81 Notice of claim to goods taken in execution

(1) In Form 12B of the Principal Rules, for "Sheriff" (wherever occurring) substitute "sheriff".

(2) In Form 12B of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

82 Minor amendments to Forms 12C, 19A, 21A, 21B and 22A

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(1) In Form 12C of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(2) In Forms 19A, 21A and 21B of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

(3) In Form 22A of the Principal Rules—

(a) for "e.g. 20 June 20" substitute "insert date";

(b) for "e.g. 15 June 20" substitute "insert date".

83 Minor amendments to Forms 29A, 29C, 29D, 30A, 35A and 35B

(1) In Forms 29A and 29C of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

(2) In Form 29D of the Principal Regulations, for "e.g. 20 June 20" (where twice occurring) substitute "insert date".

(3) In Form 30A of the Principal Regulations—

(a) for "e.g. 20 June 20 ]" (where first occurring) substitute "[insert date]";

(b) for "e.g. 20 June 20" (where secondly occurring) substitute "insert date".

(4) In Form 35A of the Principal Rules, for "e.g. 15 June 20" substitute "insert date".

(5) In Form 35B of the Principal Rules, for "e.g. 15 June, 20" substitute "insert date".

84 Minor amendments to Forms 46A, 46B, 61D to 61I

(1) In Form 46A of the Principal Regulations—

(a) for "e.g. 20 June 20" substitute "insert date";

(b) for "e.g. 15 June 20" substitute "insert date".

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(2) In Form 46B of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(3) In Form 61D of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

(4) In Form 61E of the Principal Rules, for "e.g. 5 September 20" (where twice occurring) substitute "insert date".

(5) In Forms 61F, 61G, 61H and 61I of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

85 Minor amendments to Forms 61J, 61K, 61L, 61M, 67A and 67D

(1) In Forms 61J, 61K, 61L and 61M of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(2) In Forms 67A and 67D of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

86 Minor amendments to Forms 68A, 68B, 69A, 71A to 72E

(1) In Forms 68A and 68B of the Principal Rules, for "e.g. 5 September 20" (where twice occurring) substitute "insert date".

(2) In Forms 69A, 71A and 71B of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

(3) In Forms 72A and 72B of the Principal Rules, for "e.g. 5 September 20" substitute "insert date".

(4) In Forms 72C, 72D and 72E of the Principal Rules, for "e.g. 5 September, 20" substitute "insert date".

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87 Minor amendments to Forms 82A and 82B

In Forms 82A and 82B of the Principal Rules, for "e.g. 5 September 20" (where twice occurring) substitute "insert date".

Dated: 22 March 2016

PETER LAURITSEN, Chief Magistrate

LANCE MARTIN, Deputy Chief Magistrate

BARRY BERNARD BRAUN, Deputy Chief Magistrate

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Endnotes

Endnotes


S.R. No. 17/2016

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1 Rule 4: S.R. No. 140/2010. Reprint No. 2 as at 1 February 2015. Reprinted to S.R. No. 3/2015. Subsequently amended by S.R. Nos 163/2015 and 164/2015.

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