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Supreme Court Civil

VIC

This publication guides practitioners through the conduct of civil proceedings in the Supreme Court of Victoria.

5 Matter Plans

Overview

The Supreme Court Civil commentaries cover key topics, including letters of demand, settlement, initiating and responding to proceedings, default judgment and summary dispositions, case management, disclosure, and trial in the Supreme Court of Victoria.

The Enforcement guide covers oral examination, payment by instalments, attachment of earnings, garnishee orders, warrants, and enforcement of foreign and interstate judgements.

The Reference materials folder includes guidance on electronic signing and witnessing, and the comprehensive Getting the matter underway folder includes compliance and client care documents. Using the extensive Retainer Instructions when gathering information ensures nothing is missed.

Also included is 101 Subpoena Answers, which is a useful reference guide.

Precedents in this publication include:

  • Library of letters of demand and example response to letter of demand;
  • Example offer of compromise and Calderbank offer;
  • Library of example consent orders;
  • Library of events for initiating application;
  • Example content for:
    • substituted service, amending the initiating application, and seeking injunctive relief;
    • defence, cross claim, summary judgment, summary dismissal, consolidation, security for costs, default judgment, and notice of discontinuance;
    • interrogatories, and content for setting aside subpoenas and notices to produce;
    • consent orders, terms of settlement, and deeds of release.
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5 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Supreme Court Civil (VIC) - Acting for the Plaintiff
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Litigation
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
    • Folder icon Demonstrating the use of precedents
      • Item icon Demonstrating the Use of Precedents
        To demonstrate the range of precedents available in the guide and to illustrate how they can be adapted to a particular matter, one set of precedents are based on a set of facts in a debt recovery that escalates when a cross-claim is brought alleging a course of conduct between the parties and a ...

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      • Item icon Demonstration - Letter of demand
      • Item icon Demonstration - Response to letter of demand
      • Item icon Demonstration - Pleadings and particulars
      • Item icon Demonstration - Request for further and better particulars
      • Item icon Demonstration - Defence
      • Item icon Demonstration - Affidavit of defendant
      • Item icon Demonstration - Cross-claim or counterclaim
      • Item icon Demonstration - Defence to cross claim or counterclaim
      • Item icon Demonstration - Calderbank offer
      • Item icon Demonstration - ADR order - Referral to mediation
      • Item icon Demonstration - Mediation position paper - Plaintiff
      • Item icon Demonstration - Mediation position paper - Defendant
      • Item icon Demonstration - Consent orders
      • Item icon Demonstration - Deed of release - Settlement of proceedings
    • Item icon Further information
  • Item icon Overview and limitation periods
    Overview This guide will assist practitioners to deal with civil Supreme Court matters in a straightforward, cost effective way and, if necessary, complete interlocutory steps up to trial. This publication will not deal with every specialist list or division of the court but will concentrate on the ...

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  • Item icon Summary of the process
    The usual steps in acting for a plaintiff in a straightforward common law claim are:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Supreme Court civil
    • Item icon To do list - Civil - Acting for the plaintiff
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Civil litigation
    • Item icon Retainer instructions - Debt collection
    • Item icon Conflict of interest check
    • Item icon Costs disclosure
      Send the client a Costs Agreement which complies with Part 4.3 of the Uniform Law. The importance of advising the client about the potential costs of Supreme Court litigation at the beginning of the matter cannot be overstated. The need for directions, discovery, written submissions, and ...

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    • Item icon Initial letter to client enclosing costs agreement
    • Item icon Costs agreement - VIC
    • Item icon Conditional costs agreement - VIC
    • Item icon Conditional costs agreement - Uplift fee - VIC
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Choosing the right court
      The Supreme Court has very wide jurisdiction which is not limited by any monetary limit. Before commencing a claim in the Supreme Court, consider whether another court or tribunal is more appropriate or has exclusive jurisdiction. Examples of such claims include:

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    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Settling the matter
    • Item icon Settling the matter
      Letters of demand Letters of demand are almost always issued prior to commencing proceedings. The exception might be where a potential plaintiff believes there is urgency for some reason, such as the imminent expiry of a limitation period, and proceedings therefore cannot be delayed. Even then, a ...

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    • Item icon Letters of demand
      Letters of demand are almost always issued prior to commencing proceedings. The exception might be where a potential plaintiff believes there is urgency for some reason, such as the imminent expiry of a limitation period, and proceedings therefore cannot be delayed. Even then, a letter of demand ...

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    • Folder icon Letters of demand
      • Item icon Standard letter of demand
      • Item icon Letter of demand with originating motion
      • Item icon Letter of demand to guarantor
      • Item icon Letter to client enclosing copy letter of demand
      • Item icon Letter to defendant chasing instalments
      • Item icon Letter to other side to cease and desist
    • Item icon Letter to other side to cease and desist
    • Item icon Example deed of release after letter of demand
    • Item icon Alternative dispute resolution
      Practitioners have a duty to advise the client of the availability of alternative dispute resolution. Indeed under s 22 of the Civil Procedure Act both the parties and their legal practitioners have an obligation to use reasonable endeavours to resolve the dispute. Alternative dispute resolution ...

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    • Item icon Letter to client advising on alternate dispute resolution
    • Item icon Offers of compromise and Calderbank offers
      Offers to settle can take two forms:

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    • Item icon Offer of compromise
    • Item icon Letter to other side with Calderbank offer
    • Item icon Letter to defendant's insurer - Calderbank offer
    • Item icon Order 26 offers before proceedings are commenced
      Rule 26.08.1 allows for Order 26 offers of compromise to be made before proceedings are commenced. The benefit of using this procedure is that if the matter cannot be settled and ultimately goes to trial, there will be a strong basis to seek an order that the other party pay costs predating ...

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    • Item icon Mediation
      Parties often do not contemplate mediation until proceedings are well under way. This is a mistake. If the dispute is fairly uncomplicated and negotiations by correspondence are not proving fruitful, it is worthwhile suggesting a mediation before issuing the claim. Once proceedings are commenced, ...

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    • Item icon Example content - Mediation position paper - Plaintiff
    • Item icon Informal settlement conferences
      In some cases, it can be helpful and more cost effective to hold an informal settlement conference instead of a mediation. These usually consist of a meeting between lawyers to try to facilitate settlement, without the formal intervention of a mediator. They can help to resolve disputes at an early ...

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    • Item icon Letter to other side proposing settlement conference
    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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    • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    • Item icon Terms of settlement
      Once a matter has settled, the parties should enter into terms of settlement formalising the terms of the settlement and providing for releases from future suit. This is the case regardless of whether proceedings were issued and whether the settlement was negotiated by correspondence or by ...

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    • Item icon Terms of settlement
    • Item icon Example deed of release - Settlement of proceedings
    • Item icon Consent orders
      When the parties settle after proceedings have been commenced they will have to enter into consent orders to dispose of the proceedings. The court’s power to make consent orders is in rule 59.06.

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    • Item icon Minutes of Consent Orders pursuant to Rule 59 06
    • Folder icon Library of consent orders
      • Item icon Clause - Consent orders for acceptance of lesser sum
      • Item icon Clause - Consent orders for judgment notation of agreement
      • Item icon Clause - Consent orders for proceedings to be dismissed with no order as to costs
      • Item icon Clause - Consent orders judgment in favour of one party
      • Item icon Clause - Consent orders payment inclusive of costs
    • Item icon Court approval of settlements for persons under a disability
      Where the plaintiff is a person who by reason of injury, disease, senility or otherwise is incapable of managing her or his affairs, the person must have a litigation guardian appointed under r 15.03 and any compromise of the claim must be approved by the court: r 15.08. Approval is not ...

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    • Item icon Summons
    • Item icon Clause - Summons for approval of compromise
    • Item icon Order approving compromise of claim of minor (Supreme Court)
    • Item icon Undertaking for purpose of court approval of settlement
  • Folder icon C. Going to court
    • Item icon Structure of the Supreme Court
      The Supreme Court of Victoria is the state's superior court and was established by an Act of Parliament in 1852. It is governed by the Supreme Court Act 1986. The court is presided over by the Chief Justice and divided into the Trial Division and the Court of Appeal.

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    • Folder icon If required - Parties
      • Item icon Parties
        Any natural person or corporation may commence and carry on proceedings. A natural person does not require representation but may appear in person or be represented by a solicitor: r 8.03(1).

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      • Item icon Affidavit
      • Item icon Clause - Affidavit by director authority to commence proceedings
      • Item icon Clause - Affidavit of authorised officer authority to commence proceedings
      • Item icon Clause - Affidavit of consent to be joined as a plaintiff
      • Item icon Consent to act as litigation guardian
      • Item icon Solicitor's certificate - Appointment of litigation guardian
    • Item icon Briefing counsel
      Brief counsel as early as possible, preferably before initiating the claim. Counsel’s advice on evidence before issuing will identify premature or weak claims before costs are wasted on them. Counsel should also be briefed to formulate the claim and draw the pleadings. Precise and accurate ...

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    • Item icon Brief to counsel - Civil
    • Item icon Example content - Brief to counsel - Civil
    • Item icon Civil Procedure Act obligations
      The Civil Procedure Act 2010 imposes overarching obligations on litigants and legal practitioners in the conduct of litigation. It is imperative that all practitioners understand and abide by the overarching obligations. The consequences for breach can be dire.

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    • Item icon Overarching obligations certification
    • Item icon Proper Basis Certification
    • Item icon Certification of prior overarching obligations certification
    • Item icon Filing and RedCrest
      RedCrest is the Supreme Court electronic case management system, used for the electronic filing of all documents for the Common Law Division, the Costs Court and all Commercial Court matters. RedCrest allows legal practitioners to initiate cases, file documents and view case records online. To ...

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    • Item icon Communication with the court
      It is not acceptable for a solicitor to unilaterally communicate with an associate or the registry about substantial matters or try to get the court involved in interlocutory disputes. Ensure that all parties are copied in to all correspondence to the court. All practitioners need to be familiar ...

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    • Folder icon If required - Solicitor notices
      • Item icon Notice of change of solicitor's address
      • Item icon Notice of solicitor acting
      • Item icon Notice of solicitor ceasing to act
      • Item icon Notice of change of solicitor
    • Item icon Case management, directions and practice notes
    • Item icon Directions
      After the close of pleadings, the court will list a first directions hearing before an associate judge. The court will make orders setting out a timetable for the proceeding including dates for exchange of discovered documents, evidence and mediation. The parties should liaise well before the ...

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    • Item icon Personal Injury List - Request for consent orders first directions
    • Item icon Request for orders first directions (Nunc Pro Tunc)
    • Folder icon Court Case Transfer forms
      • Item icon Defendant's application under Part 5 of Courts (Case Transfer) Act 1991
      • Item icon Notice of objection under Courts (Case Transfer) Act 1991
      • Item icon Plaintiff's application under Part 5 of Courts (Case Transfer) Act 1991
      • Item icon Referral under Part 3 of Courts (Case Transfer) Act 1991
    • Folder icon If required - Urgent applications and injunctions
      • Item icon Urgent cases and applications
        Commencing cases urgently In some cases, urgent remedies may be required to prevent irreparable damage. There may not be time to properly draw pleadings or file and serve originating process.

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      • Item icon Clause - Summons - Expedited hearing
      • Item icon Injunctions
        If it is necessary to prevent the defendant from doing something, or to require them to do something before the case is decided, an application can be made for an injunction. Injunctions are often needed urgently and, although they may not be made permanent until the final hearing, obtaining a ...

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      • Item icon Summons
      • Item icon Clause - Summons for injunctive relief - Simple
      • Item icon Clause - Summons for injunctive relief - Land
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support of summons for injunctive relief
      • Item icon Certificate identifying exhibit
      • Item icon Freezing order
      • Item icon Search order
  • Folder icon D. Pleadings, filing and service
    • Item icon Originating process
      File the correct originating process and the number of copies necessary to serve each defendant plus one copy to be retained on file in the registry of the court with the correct filing fee. The Overarching Obligations Certificate, form 4A, and Proper Basis Certificate, form 4B, must be filed at ...

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    • Item icon Writ
    • Item icon Originating motion between parties
    • Item icon Originating motion between parties where commenced under Rule 45.05
    • Item icon Originating motion for recovery of land under Order 53
    • Item icon Originating motion where no defendant
    • Item icon Interest
      A plaintiff claiming a debt can claim interest from the date the debt was due under s 58 of the Supreme Court Act 1986. Interest from the date of the writ can be claimed under s 60 of the Supreme Court Act.

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    • Item icon Overarching obligations certification
    • Item icon Proper Basis Certification
    • Item icon Certification of prior overarching obligations certification
    • Folder icon Library of pleadings and particulars
      • Item icon Clause - Pleadings and particulars - Goods sold and delivered
      • Item icon Clause - Pleadings and particulars - Against company debtor director guarantor
      • Item icon Clause - Pleadings and particulars - Debt recovery solicitor's costs
      • Item icon Clause - Pleadings and particulars - Misrepresentation under s 18 of the Australian Consumer Law
      • Item icon Clause - Pleadings and particulars - Money lent
      • Item icon Clause - Pleadings and particulars - Money paid under a mistake of fact
      • Item icon Clause - Pleadings for possession of land
    • Item icon Counterclaims by the defendant
      A defendant is entitled in any proceeding commenced, or continued as if, by writ to bring a counterclaim against the plaintiff. A defendant must plead his counterclaim and defence in one document: r 10.02(3). The counterclaim does not have to arise out of the same facts and circumstances or have ...

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    • Item icon Notice of appearance to counterclaim
    • Item icon Reply
      Once the defence is received, consider whether a reply is required. Under r 13.07 the reply should plead any fact or matter which:

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    • Item icon Claims for contribution or indemnity
      If the defendant has claims of contribution or indemnity related to the subject matter of the proceeding against a person who is not already a party, the defendant may join them as third parties to the proceeding using a Third Party Notice, form 11 A: r 11.01. The third party procedure allows ...

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    • Folder icon If required - Striking out defence or countertclaim
      • Item icon Striking out of pleadings
        Under r 23.02, a pleading may be struck out wholly or in part if it:

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      • Item icon Summons
      • Item icon Clause - Summons to strike out defence
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Strike out defence or counterclaim
      • Item icon Defence
    • Item icon Amendment
      Under r 36.03 a party may, without leave, amend any pleading once at any time before the close of pleadings. After that leave of the court or consent of all other parties is required. A party who amends a pleading or other document must generally pay the costs of the amendment and the ...

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    • Item icon Filing and RedCrest
      RedCrest is the Supreme Court electronic case management system, used for the electronic filing of all documents for the Common Law Division, the Costs Court and all Commercial Court matters. RedCrest allows legal practitioners to initiate cases, file documents and view case records online. To ...

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    • Item icon Service
      Originating process may be served anywhere in Australia. Part 2 of Order 7 of the rules sets out the procedure for service in a foreign country. However, where it is to be served outside Victoria and in another state, service must be effected pursuant to the Service and Execution of Process ...

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    • Item icon Letter instructing process server
    • Item icon Letter serving process at registered office of a company
    • Item icon Affidavit
    • Item icon Clause - Affidavit of service - Originating process
    • Item icon Email attaching documents for service
    • Item icon Service in another state or territory
      Where the writ or originating motion it is to be served outside Victoria and in another state, service must be effected pursuant to the Service and Execution of Process Act 1992 (Cth). Compliance with the provisions of the Service and Execution of Process Act 1992 is essential, particularly ...

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    • Item icon Service of originating process overseas
      Originating process may not be served outside Australia except in the circumstances set out in r 7.02. In any other circumstances, the plaintiff needs the court’s leave to serve outside Australia. Litigation against a foreign defendant is costly and complex. The defendant is likely to resist the ...

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    • Folder icon Service and execution of process
      • Item icon Notice to a defendant - County Court Victoria
    • Folder icon If required - Substituted service
      • Item icon Substituted service
        If the defendant cannot be served, for example, because they are evading service, apply for substituted service to the judge in charge of the relevant list or to the Associate Judges’ Practice Court under r 6.10. The application is made by summons and must be supported by an affidavit setting out ...

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      • Item icon Summons
      • Item icon Clause - Summons upon application for substituted service
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support of application for substituted service
    • Folder icon If required - Recovery of land
      • Item icon Judgment in summary proceeding for recovery of land
      • Item icon Warrant of possession in summary proceeding for recovery of land
  • Folder icon E. Interlocutory steps
    • Item icon Interlocutory applications
      Interlocutory applications are determined by hearings conducted before the trial, on application by either party filing a summons with affidavit evidence in support. They can be about a variety of issues including, but not limited to, defects in the pleadings, whether a person is a proper party, ...

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    • Item icon Appearance
    • Folder icon If required - Default judgment
      • Item icon Default judgment
        Default judgment is only available to the plaintiff where the proceeding was issued by writ: r 21.01. Default judgment is restricted in certain specialist lists, particularly in the Commercial Court where an order of a Commercial List judge must be obtained before a default judgment may be ...

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      • Item icon Letter to defendant warning of entry of default judgment
      • Item icon Search for appearance
      • Item icon Default judgment for debt (Supreme Court)
      • Item icon Default judgment for recovery of land
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Default judgment
      • Item icon Certificate identifying exhibit
    • Folder icon If required - Summary judgment
      • Item icon Summary judgment
        Summary judgment is available to a plaintiff under s 61 of the Civil Procedure Act 2010 on the ground that the defence, or part of the defence, has no real prospect of success. The procedure for the application is governed by Order 22 of the rules. Order 22 previously allowed for summary judgment ...

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      • Item icon Summons
      • Item icon Clause - Summons - Summary judgment - Plaintiff
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Summary judgment - Plaintiff
      • Item icon Certificate identifying exhibit
    • Folder icon If required - Separate determination
      • Item icon Separate decision of questions
        The court may make orders for the decision of any question separately from any other question: r 47.04. There are instances where, if a particular issue or question in the proceedings is tried separately, often as a preliminary issue, it will dispose of the entirety of the proceedings. In ...

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      • Item icon Letter to the other side seeking consent to separate determination
      • Item icon Summons
      • Item icon Clause - Summons - Separate determination
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Separate determination
      • Item icon Certificate identifying exhibit
    • Folder icon If required - Consolidation
      • Item icon Consolidation
        The court may order that proceedings be consolidated, that is, heard together so that evidence in one will be evidence in the other, when realistically the claims and parties could have been pleaded in the one statement of claim. Hence there are no significant differences in the parties. Rules 9.12 ...

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      • Item icon Letter to the other side seeking consent to consolidation
      • Item icon Summons
      • Item icon Clause - Summons - Consolidation of proceedings
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Consolidation
    • Folder icon If required - Discontinuance
      • Item icon Discontinuance or withdrawal of proceedings
        Discontinuance Proceedings commenced by writ may be discontinued by a plaintiff under r 25.02, see relevantly below:

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      • Item icon Notice of discontinuance
      • Item icon Minutes of Consent Orders pursuant to Rule 59 06
      • Item icon Clause - Consent orders - Discontinuance of proceedings
    • Folder icon If required - Other applications
      • Item icon Summons
      • Item icon Affidavit in support of summons
      • Item icon Certificate identifying exhibit
      • Folder icon Library of clauses for summons
        • Item icon Clause - Add defendant - Second or alternative defendant
        • Item icon Clause - Amend counterclaim
        • Item icon Clause - Amend defence
        • Item icon Clause - Amend reply
        • Item icon Clause - Amend writ
        • Item icon Clause - Answer interrogatories - Defendants
        • Item icon Clause - Answer interrogatories - Plaintiff
        • Item icon Clause - Dismiss - Want of prosecution
        • Item icon Clause - Extend time for defence
        • Item icon Clause - Extend time for reply
        • Item icon Clause - Judgment for claim, interest and costs
        • Item icon Clause - Judgment for damages to be assessed
        • Item icon Clause - Judgment for value of goods
        • Item icon Clause - Judgment for delivery of goods
        • Item icon Clause - Judgment set aside
        • Item icon Clause - Leave to discontinue
        • Item icon Clause - Leave to proceed
        • Item icon Clause - Order for consolidation
        • Item icon Clause - Order for inspection
        • Item icon Clause - Renew writ
        • Item icon Clause - Serve affidavit of documents - Served on defendant
        • Item icon Clause - Serve affidavit of documents - Served on plaintiff
        • Item icon Clause - Substituted service
        • Item icon Clause - Third party notice out of time
        • Item icon Clause - Add defendant - Defendant have leave to add
    • Folder icon If required - Urgent applications and injunctions
      • Item icon Urgent cases and applications
        Commencing cases urgently In some cases, urgent remedies may be required to prevent irreparable damage. There may not be time to properly draw pleadings or file and serve originating process.

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      • Item icon Clause - Summons - Expedited hearing
      • Item icon Injunctions
        If it is necessary to prevent the defendant from doing something, or to require them to do something before the case is decided, an application can be made for an injunction. Injunctions are often needed urgently and, although they may not be made permanent until the final hearing, obtaining a ...

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      • Item icon Summons
      • Item icon Clause - Summons for injunctive relief - Simple
      • Item icon Clause - Summons for injunctive relief - Land
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support of summons for injunctive relief
      • Item icon Certificate identifying exhibit
      • Item icon Freezing order
      • Item icon Search order
  • Folder icon F. Gathering and exchanging evidence
    • Folder icon If required - Discovery
      • Item icon Discovery
        Discovery is usually the first step after close of pleadings. It is a process of identifying, listing and producing documents for inspection by the parties to proceedings. Its purpose is to prevent surprises at trial where documents may be tendered of which a party is unaware.

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      • Item icon Notice for discovery (Supreme Court)
      • Item icon Affidavit of documents (Supreme Court)
      • Item icon Notice to produce
      • Item icon Letter to other side with categories of documents for discovery
      • Item icon Notice of default in making discovery of documents
    • Folder icon Affidavits and exhibits
      • Item icon Affidavits and exhibits
        After discovery, prepare the evidence in the case. Evidence in chief is often given by affidavit to minimise the time spent at hearing in leading oral evidence. However, in some common law actions evidence is given orally. For example, in defamation and personal injury claims. Refer to the practice ...

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      • Item icon Affidavit
      • Item icon Affidavit of service - party on the matter
      • Item icon Common affidavit clauses
      • Item icon Certificate identifying exhibit
    • Folder icon Subpoenas and notices to produce
      • Item icon Subpoenas and notices to produce
        See 101 Subpoena Answers for more information. The court requires parties to issue subpoenas as early as possible before the trial date so that documents can be produced and inspected well before hearing and are available for the proper preparation of the case, including submission to experts.

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      • Item icon Subpoena to attend to give evidence
      • Item icon Subpoena to produce
      • Item icon Subpoena for production to the prothonotary
      • Item icon Subpoena both to attend to give evidence and to produce
      • Item icon Notice to produce
      • Item icon Summons
      • Item icon Clause - Summons - Set aside subpoena
      • Item icon Clause - Summons - Set aside notice to produce
      • Item icon Affidavit
      • Item icon Clause - Affidavit in support - Summons to set aside subpoena or notice to produce
    • Folder icon If required - Expert witnesses
      • Item icon Expert witnesses
        Order 44 largely governs the use of expert witnesses in the Supreme Court. The restrictions are substantial, and boil down to a careful meting out of expert testimony by a select group of witnesses who are bound to the Expert Witness Code of Conduct in Form 44 A. Medical reports in personal ...

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      • Item icon Letter instructing expert witness - Plaintiff
      • Item icon Letter instructing single expert witness
      • Item icon Expert witness code of conduct
      • Item icon Affidavit
      • Item icon Clause - Affidavit of expert witness annexing report
      • Item icon Letter to other side serving expert report
      • Item icon Clause - Affidavit of assessor
    • Folder icon If required - Interrogatories
      • Item icon Interrogatories
        Interrogatories are questions administered to another party that must be answered on affidavit within 42 days of the request: r 30.04. Responses to interrogatories must include the question and the answer: r 30.06(3). Interrogatories can only be served after close of pleadings unless the court ...

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      • Item icon Summons
      • Item icon Example content - Interrogatories to the defendant
      • Item icon Answers to interrogatories (Supreme Court)
      • Item icon Example content - Plaintiff's answers to defendant's interrogatories
      • Item icon Notice of default in answering interrogatories
    • Folder icon If required - Notice to admit facts and authenticity of documents
      • Item icon Notices to admit facts and authenticity of documents
        The procedure under Order 35 allows a party to admit facts by notice, r 35.02, or to serve a Notice to Admit, Form 35 A requiring the other party to admit material facts or the authenticity of documents: r 35.03 and r 35.05. The procedure is designed to limit the issues in dispute at hearing ...

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      • Item icon Notice to admit
      • Item icon Notice of dispute
  • Folder icon G. The trial
    • Item icon Allocation of a hearing date
      The regular directions hearings, and the constant feel of the court for the pulse of the proceeding, together with the early first directions hearing, mean that the court is generally in a position to detect completion of all interlocutory steps, especially after mediation, and to decide whether ...

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    • Item icon Example content - Consent orders - Listing the matter for trial
    • Item icon Adjournment or vacation of trial dates
      The court will only grant adjournment applications where there are very good reasons. The parties must not ask the court to fix cases for trial unless they are ready for trial. Legal practitioners must ascertain the availability of the parties and their witnesses before taking a date for trial. An ...

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    • Item icon Court book
      The progressive refinement of the contents of the court book as the proceeding approaches trial should result in a final and agreed list of documents. The process for settling the court book will have been imposed by the judge at the outset, it usually being the responsibility of the plaintiff to ...

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    • Item icon Supreme Court - Court book cover page
    • Item icon Supreme Court - Court book index
    • Item icon Schedule of medical and expert reports
    • Item icon Appearances
      The requirement to file an Appearance Form does not apply to trials, only to interlocutory hearings. If a matter has been case-managed by a judge before it is listed for trial the appearances, evidence and issues in the trial will likely be well known to the court.

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    • Item icon Transcript
      The court has an agreement with its preferred provider, the Victorian Government Reporting Service, for recording hearings and providing transcript. Transcript is required for all trials. A hearing date will not be fixed unless all parties have delivered a transcript order form.

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    • Item icon After the hearing
      The case is not over and the file is not dead the very second that the judge leaves the bench after each side has made final submissions. The file, which has inevitably been torn apart in court in response to counsel’s urgent whispered demands for various documents, should be reconstructed and ...

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  • Folder icon H. Costs
    • Item icon Costs
      Types of costs orders In the Supreme Court costs ordinarily follow the event. This means the party which loses a particular application, or the ultimate trial, is ordered to pay the successful party’s costs.

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    • Item icon Assessment of costs and time for payment
    • Item icon The Scale of Costs
      The Costs Court procedure and the law concerning what can and cannot be claimed are beyond the scope of this publication. An outline of the procedure can be found in Order 63 and in Practice Note SC GEN 11 Costs Court (Third Revision). The scale operates based principally on time costing. If a ...

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    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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  • Folder icon I. Finalising the matter
    • Item icon Letter to client finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - VIC
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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