Civil+Litigation


 * JURISDICTION**

In Victoria, the Supreme Court is governed by the Supreme Court Act 1986 (SCA) and the Supreme Court (General Civil Procedure) Rules 2005 (SCR). In addition, there are the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (SCMR) and specific rules relating to certain types of proceedings such as administration and probate, corporations, criminal, admiralty and intellectual property.

From 1 January 2011 procedures in the Supreme Court, County Court and Magistrates’ Court are also governed by the Civil Procedure Act 2010 (CPA).


 * Inherent Jurisdiction: **
 * The Supreme Court is a superior court of record and has inherent jurisdiction to administer justice.


 * Monetary Jurisdiction: **
 * There are no monetary limits placed upon the jurisdiction of the Supreme Court (also County Court)


 * Geographical Jurisdiction: **
 * The Supreme Court has a broad jurisdiction and can hear any matter in which Victoria is involved. This included proceedings:
 * Whose causes of actions arose in Vic;
 * Where the subject matter is a contract relating to Victoria;
 * Where there is property which the cause of action occurred and the property is located in Victoria.


 * Equitable Jurisdiction **
 * ** S.29(1) ** **SCA** : “if there is a conflict between the rules of equity and the rules of the common law, the rules of equity will prevail”.
 * The Supreme Court is not limited to making orders for the payment of money and is effectively the appropriate court for making orders for specific performance, injunction or possession of land.
 * The Supreme Court also has the power to make a variety of orders such as –
 * The winding up of corporations;
 * The appointment of receivers and liquidators;
 * Dissolution of partnerships;
 * Adoption orders for children;
 * Orders directing trustees, administrators and executors to do something or to refrain from doing something;
 * Orders arising out of loss/damage sustained to a ship, marine insurance matters and the carriage of goods by ship; and
 * Orders in relation to proprietary interests in property


 * PRE-COMMENCEMENT CONSIDERATIONS**


 * Cost Agreements **


 * Every lawyer should enter into a costs agreement with their client.
 * Cost agreements disclose an estimate of anticipated professional fees.
 * Lawyers should disclose:
 * The basis on which legal costs will be calculated;
 * The manner and frequency of billing;
 * The rate of interest (if any) that may be charged for overdue costs;
 * If the matter is litigated, an estimate of the range of costs that may be recoverable or payable if the client is successful or unsuccessful; and
 * If counsel is to be briefed, the basis upon which counsel’s fees will be charged and an estimate of those fees.


 * Freezing Orders (Mareva Injunction) **


 * It may be necessary to investigate whether the other party has sufficient assets to cover the remedy sought by the client, and whether it is likely that these assets are likely to ‘disappear’.
 * It may be appropriate to make an application for a freezing order, which if granted would prevent dissipation of assets until the proceedings are resolved ** (SCR O 37A) **.
 * An application for a freezing order must be supported by affidavit, which must address the matters set out in ** SCR O 37A.02(5) **.


 * Search Orders (Anton Piller Order) **


 * It may be necessary to consider seeking a search order pursuant to ** SCR O 37B **.
 * Search orders are usually made without notice and compels the respondent to permit persons specified by the order (‘search party’) to enter premises and to search for, inspect, copy and remove the things described in the order.


 * Preliminary discovery **


 * ** SCR r 32.03 ** provides a limited form of discovery to enable a party to identify the appropriate party against whom to commence the action.
 * ** SCR r 32.03(2) ** provides that the court may order a person or, in the case of a coporation, an appropriate officer to:
 * (a) appear before the court to be orally examined on any matter relating to the description of the person concerned; and
 * (b) make discovery to the applicant of all documents which are, or were, in his or her possession relating to the description of the person.


 * COMMENCEMENT AND DOCUMENTS **

In the Supreme Court there are two primary modes of commencement:


 * 1) writ
 * 2) originating motion


 * Writ (Form 5A) **


 * Under ** r 4.04 ** every proceeding must be commenced by writ, except as provided by ** rr ** ** 1.12, 4.05 ** and ** 4.06 ** and ** O 58 of SCR **.
 * A writ is appropriate where there is a dispute of fact in most circumstances. Evidence is oral unless ordered otherwise.
 * ** R 5.04(1) SCR ** states that a writ must contain an indorsement of claim, which must be:
 * A statement of claim (to obtain judgment by default); or
 * A statement sufficient to give with reasonable particularity notice of the nature of the claim and cause and the relief or remedy sought ** (r 5.04(3) SCR) **


 * Originating motion (Forms 5B, 5C, 5D and 5E) **


 * An originating motion is required where ** (r 4.05 SCR): **
 * There is no defendant;
 * An application is authorised to be made to the court by or under any Act; **or**
 * It is required by SCR.
 * Originating motions are supported by affidavits, rather than oral evidence and are therefore not suitable where there are facts in dispute.

// Which form? // CL307.130


 * Form 5B – appropriate for most common forms of proceeding by originating motion
 * Form 5C


 * Choice of writ and originating motion **


 * Originating motion is preferred where:
 * It is unlikely there will be any substantial dispute of fact; and
 * For that reason it is appropriate that there be no pleadings or discovery
 * Where an originating motion is used, but a writ ought to have been used, the court may order that:
 * The proceeding continue by way of pleadings;
 * The affidavits already filed stand as pleadings;
 * The proceeding will be taken to have been commenced on the day the originating motion was filed.


 * Pleadings **


 * The statement of claim filed with a writ must specify the relief claimed and the question for determination by the court.

// Rules in relation to pleadings // ** (r 13.01 SCR) **


 * Every pleading must bear on its face the description of the pleading and the date on which it is served;
 * Each pleading must be divided into numbered paragraphs
 * The person who prepares the pleading must sign the pleading.

// Content of pleadings //** (rr 13.02-13.15 SCR) **


 * Must contain a summary of material facts, not evidence;
 * Must specify the specific provision of any claim or defence;
 * The relief of remedy claimed must be clearly stated;


 * Particulars **


 * A party must provide particulars of any fact or matter pleaded, to allow the opposite party to define the questions for trial and to avoid surprise at trail ** (r 13.10 SCR) .**
 * A party is required to plead particulars of the following alleged matters**:**
 * Misrepresentation, fraud, breach of trust, wilful default or undue influence**;** and
 * Disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice.
 * If insufficient particulars are provided, the respondent should apply by letter for those particulars required. The court may order a party to serve on any other party particulars or further and better particulars ** (r 13.11 SCR) **.


 * Affidavits **


 * Requirements for affidavits ** (Order 43 SCR): **
 * The affidavit should be in the first person
 * Unless otherwise ordered by the court, it must state:
 * The place of residence of the deponent
 * The occupation
 * That the deponent is a party to the proceeding or an employee of a party;
 * If made in the deponents professional/occupational capacity, the deponent’s place of business, the position held and the name of employer.
 * The affidavit should be divided into numbered paragraphs
 * The affidavit must be signed by the deponent and witness


 * Amending pleadings **


 * A party may amend any pleading served by the party ** (r 36.03 SCR): **
 * Once before the close of pleadings; and
 * At any time – by leave of the court or with the consent of all parties
 * Amendments can be challenged within 21 days ** (r 36.04 SCR) .**
 * The court can order a document be amended at any time for the purpose of ** (r 36.01 SCR): **
 * Determining the real question in controversy between the parties;
 * Correcting any defect or error in a proceeding; or
 * Avoiding a multiplicity of proceedings.

// Procedure for amending a pleading //** (r 36.05 SCR) **


 * Amendment must be filed with the court and served on all parties
 * Amendments must be highlighted to the other party (e.g. via Word track changes)


 * SERVICE OF PROCESS **


 * Proof of Service **


 * Proof of service is provided by filing an affidavit of service


 * LODGMENT OF APPEARANCE AND DEFENCE **


 * Appearance **


 * A defendant cannot take any step in the proceeding until an appearance is file ** (r 8.02 SCR) .**
 * The time and filing an appearance must be ** (r 8.04 SCR): **
 * Not less than 10 days after service (if in Victoria)
 * Not less than 21 days after service (anywhere else in Australia)
 * Not less than 28 days after service (if in NZ or Papua New Guinea)
 * Not less than 42 days after service (anyway else in the World)

// Types of Appearance //


 * Unconditional/notice of appearance (Form 8A):
 * where the defendant waives any objection to jurisdiction of the court and to any irregularity in the process known to the defendant
 * Conditional appearance (Form 8B):
 * When a defendant objects to the jurisdiction of the court or the proceeding as irregular, the defendant has 14 days after the filing to apply by summons to seek appropriate orders.


 * The Defence **


 * If the plaintiff’s statement of claim is indorsed on the writ, the defence must be served within 30 days after filing the appearance;
 * If the statement of claim was served separately, the defence must be served within 30 days after the service of that statement of claim;
 * If the defendant sets up a counterclaim in the defence, the plaintiff must serve a reply and defence to counterclaim within 30 days after service of the defence and counterclaim.

// Pleading a defence //


 * See Pleadings (above) – same rules apply.
 * General rules ** (r 13.12 SCR): **
 * Every allegation of fact in any pleading will be taken to be admitted unless is it specifically denied;
 * If a party intends to prove facts different from those pleaded by the opposite party, then they must plead those facts.
 * Any allegation that a party suffered damage and any allegation as to the amount of damages will be taken to be denied unless specifically admitted.


 * DISPOSAL OF A CASE WITHOUT A HEARING **


 * Settlement between parties **


 * ** Order 26 SCR ** provides an offer of compromise procedure
 * Either party can serve an offer of compromise on the other.
 * If the plaintiff makes an offer in proceedings, and obtains a result equal to or better than that contained in the offer, the plaintiff will be entitled to claim costs against the defendant up to and including the day the offer was served.
 * If the defendant makes an offer in proceedings and the plaintiff obtains a result no more favourable than that offer, the plaintiff is entitled to party and party costs against the defendant up to and including the day the offer was served. However, the defendant is entitled to the defendant’s costs against the plaintiff on a party and party basis thereafter.
 * The offer must be in writing and comply with ** rr 27.02 ** and ** 27.04 .**
 * The offer must be open for acceptance for a minimum of 14 days; it cannot be withdrawn within this period.
 * The recipient of the offer has 3 days after service to serve and acknowledgment to the other party.
 * Summary judgment **
 * Either party may apply for a summary judgment on the grounds that all or part of the opposing party’s claim or defence has ‘no real prospect of success’ ** (s.60-62 CPA) **.
 * A summary judgment may be applied for in the situation where the defendant has filed an appearance, and the plaintiff believes that the defendant could have no possible defence to whole or part of a claim included in the writ or statement of claim ** (r 22.02 SCR) .**
 * This application must be made by summons and supported by an affidavit.
 * The plaintiff may only make one application for summary judgment. Subsequent applications may be granted with leave from the court.
 * Summary stay or strike out of pleading **
 * The defendant may apply to have the matter stayed if it appear that:
 * The action commenced by the plaintiff is scandalous, vexatious or frivolous;
 * There is no reasonable cause of action disclosed;
 * The action is an abuse of process of the court.
 * The court may order that part or all of a pleading by struck out or amended ** (r 23.02 SCR) **
 * Mediation **
 * The court can refer a case to mediation with or without the consent of the parties.
 * Evidence derived from mediation won’t be admissible unless the parties agree in writing ** (s24A SCA) **


 * PREPARATION FOR TRIAL **


 * Directions hearings **


 * Initial Directions Hearing (First Directions hearing)
 * Usually occurs 42 days after the first filing of appearance by the defendant.
 * This hearing is used to:
 * Set the trial direction date (second directions hearing);
 * Determine the timetable of interlocutory steps for the matter;
 * Determine whether an order should be made for separate trial of any question’ and
 * Determine whether the matter should be referred to mediation.
 * Lawyers should check whether they need to attend and whether the court will hear the parties or receive any written submissions at the hearing.
 * Trial Direction Date (Second Directions hearing)
 * Sets the trial date, which will be fixed at not more than 12 weeks from the trial directions date; and
 * Determines any further steps as agreed or required by the court.

// Failure to comply with the timetable determined //


 * Where a party fails to comply with orders fixed in the timetable, opposite parties may take any step open to them under SCR in relation to default. If the party is still in default 7 days after the date fixed for the taking of steps, the party in default may not take that step without first obtaining:
 * The consent in writing of all opposite parties; and
 * The leave of a judge or judge administrator.
 * The party must file an affidavit:
 * Explaining the cause for the default; and
 * Stating any reason advanced against the making of an order that the costs occasioned by the default and the application for leave, taxed as between practitioner and client, be borne by the party applying for leave.


 * Discovery, inspection of documents and notice to produce **


 * Discovery in civil proceedings must be in accordance with the court rules ** (s 54 CPA). **
 * The court has broad discretion to make orders or directions in relation to discovery that it considers necessary or appropriate ** (s 55(1) CPA) **.
 * ** S 55(2) ** ** CPA **sets out a non-exhaustive list of examples of the kind of orders or direction the court may make – (e.g. in relation to the scope of documents to be discovered, timetabling, presentation and facilities for inspection).
 * Non-compliance can result in sanctions, including initiating proceedings for contempt, adjournment, costs, restriction on use of documents, preventing a party from taking any steps in the proceedings and awarding compensations ** (s 56 CPA). **
 * The deponent to an affidavit of documents may be cross-examined in relation to interpretation of discovery obligations or failure to disclose discoverable documents, provided there is a reasonable basis for the cross-examination ** (s 56 CPA). **
 * In matters involving pleadings, parties are entitled to discovery as of right.
 * The scope of documents to be discovered has been limited to ** (r 29.01.1 SCR): **
 * Documents on which the party relies;
 * Documents that adversely affect the party’s own case;
 * Documents that adversely affect another party’s case; and
 * Documents that support another party’s case
 * Any party may serve a Notice for Discovery (Form 29A) on any other party to make discovery of all documents which are in the possession of the party which relate to any question raised on the pleadings ** (r 29.02 SCR) **

// Notice to Produce //


 * A party upon whom an affidavit of documents is served can inspect the discovered documents by serving a notice to produce (Form 29C) ** (r 29.09(3) SCR) ** requiring that the documents referred to in the affidavit be produced for inspection.
 * The party receiving the notice to produce must within 7 days serve a notice appointing a time and place within the next 7 days where inspection can take place ** (r 29.09(2) SCR) **.
 * A notice to produce can also be used to obtain copies of documents referred to in pleadings ** (r 29.10 SCR) **.


 * Medical examinations **


 * Where a party claims damages in respect of bodily injury, the other party may request a medical examination be conducted ** (O 33 SCR) **.
 * The requesting party must bear the expense of the medical examination.


 * Expert Reports **


 * An “expert” is a person who has specialised knowledge based on training, study or experience ** (r 44.01 SCR). **
 * The expert reports on which the parties rely must be exchange not later than 30 days before the day fixed for trail ** (r 44.03(1) SCR) **.
 * In order for an expert report to be admitted into evidence, the expert must state in the report that the expert has read the expert witness’s code of conduct in Form 44A, and agrees to be bound by it ** (r 44.03(2) SCR) **.


 * Subpoenas **

> > ** Interlocutory applications ** > > // Common types of Interlocutory Applications //
 * The person requesting the issue of the subpoena is “the issuing party”; the person to whom the subpoena is addressed is “the addressee” ** (r 42.01 SCR) **.
 * The court may order that the addressee attend to give evidence or produce documents ** (r.42.02(1) SCR) **.
 * Use **__Form 42A__**where the recipient is required to personally attend court or produce documents.
 * Use **__Form 42AA__** where the recipient is required to produce documents to the court but not required to personally attend to give evidence. This must be used if the subpoena is issued on a non-party.
 * The subpoena must be served no later than 5 days before the earliest date on which the addressee is expected to comply with the subpoena ** (r 42.03(8) SCR) **.
 * Interlocutory applications provide orders to compel parties to comply with directions, or to gain forensic advantage.
 * An interlocutory application is commenced by summons, which sets out the relief sought and the rule or legislation under which the relief is sought. The summons should be supported by an affidavit.
 * Expedited hearings;
 * Security for costs;
 * Limiting the scope of documents produced under subpoena;
 * Amendment with leave;
 * Stay of proceedings;
 * Narrowing the scope of interrogatories;
 * Application to set aside judgment;
 * Application for enforcement for failure to comply with directions;
 * Injunctions


 * PRACTICE COURT **


 * The judge sitting in the Practice Court hears and determines:
 * Interlocutory applications not within the jurisdiction of an Associate judge;
 * Bail and other criminal applications;
 * Urgent applications; and
 * Other miscellaneous applications.


 * SETTING DOWN FOR HEARING **


 * Trial directions date **
 * At the initial directions hearing, an “Order” is prepared setting out the dates on which interlocutory steps are to be taken and also the date of the trial directions date.
 * Within the “Order” the trial directions date is set approximately 8 months after that initial directions hearing.

// What happens at the Trial Directions date? //
 * A proceeding referred to in the order is held before the listing master [|[1]] to find out if the parties are ready for trial.
 * The listing master inquires of the parties’ legal practitioners as to whether all interlocutory steps have been completed.
 * If all interlocutory steps have been completed and the parties announce that they have no intention to amend their pleadings at that time, the proceedings are listed for trial.
 * The plaintiff will be ordered to file and serve a notice of trial.


 * THE TRIAL AND ITS AFTERMATH **


 * Adjournment and Postponements **
 * The court’s power to grant adjournments is discretionary, and will be exercised where the court thinks it fit in order to do justice between the parties ** (r 49.03 SCR) **.
 * An application for adjournment must be made based on clear and persuasive grounds, such as:
 * The unexpected unavailability of a witness;
 * Discovery of new evidence; or
 * To effect amendments to pleadings.


 * Evidence at trial **
 * The court may give directions as to the order of evidence and addresses and the conduct of the trial ** (r 49.01 SCR) ** . Subject to this rule, the party upon whom the burden of proof rests, will commence.

// Procedure //
 * The party commencing first will open its case with an opening address;
 * The party will then call its witnesses who will give evidence-in-chief;
 * The other party may cross-examine the witnesses;
 * After calling all witnesses in its case, the party commencing first will then make closing addresses; and
 * The party going second will follow the same process, but there will typically be a right of reply for the party commencing.


 * Judgment and orders **
 * Any judgment or order made by the court, with the consent of the parties, after hearing the proceeding, must be authenticated in order for it to be capable of enforcement ** (O 60 SCR) **.


 * Costs **
 * The Supreme Court has power to award costs in favour of one party over another ** (s 24 SCA) **.
 * There are many factors which can affect the making of costs orders, including whether:
 * There have been any offers of compromise;
 * There was a submitting appearance by one party;
 * There have been any interlocutory applications during the course of the proceedings; and
 * There has been non-admission of facts or documents which should have been admitted, thereby setting the other party to the expense of proving those facts.


 * ENFORCEMENT OF JUDGMENTS **


 * Examination **
 * On application by summons from the judgment creditor, a judgment debtor can be ordered to ** (r 67.02 SCR) **:
 * Attend before the court and be orally examined on material questions; and
 * Produce any document or thing in their possession, custody or power relating to material questions.


 * Attachment of debt/Attachment of earnings **
 * A judgment creditor may apply to the court by summons for an attachment of debt, which is a process allowing a debt payable by a third party to the judgment debtor to be applied in or toward satisfaction of the judgment creditor’s debt ** (r 71.02 SCR) **.
 * A judgment creditor may apply by summons for an attachment of earnings order ** (r 72.02 SCR). ** Subject to receipt of a Statement of Financial Situation (Form 72C) or an examination, the judgment debtor must be left with a minimum of 80% of their income per pay period intact and unaffected by the order ** (r 72.05(4) SCR) **.


 * Warrants of execution **
 * There are three types of warrants:
 * Warrant of seizure and sale ** (r 66.02 SCR) **
 * Warrant of possession ** (r 66.03 SCR) **
 * Warrant of delivery ** (r 66.04 SCR) **
 * APPEALS FROM JUDGMENTS OF THE SUPREME COURT **


 * Types of appeals **
 * There are two types of appeals in the Supreme Court:
 * Appeals as of right; and
 * Appeals by leave of the Court of Appeal.
 * Appeals by leave of the Supreme Court include appeals against:
 * Interlocutory judgments;
 * Orders as to costs; and
 * A judgment or order under the Commercial Arbitration Act 1984.


 * Procedure for lodgement of an appeal **
 * An appeal must be lodged within 14 days after the day the decision of the court was given, or within 14 days of leave being granted in cases where leave is required to appeal ** (r 64.03(1) SCR) **.
 * If leave is required, the prospective appellant must file:
 * A summons; and
 * An affidavit in support.
 * If an appeal is of right, then the prospective appellant has 14 days from the decision of the court of first instance to serve a notice of appeal.