Acting for the Defendant

NOTE: The rules of the Supreme Court in civil proceedings (Supreme Court Rules chapter I Supreme Court (general civil procedure)rRules 2005 No. 148 and the County Court Rules (County Court civil procedure rules 2008 No. 148) are in large measure identical. Where they differ, explanation is given. Because of the similarity, procedures and citations are often the same in both courts.

References to ‘Cook’ are to the annotated rules of court 2008’, Richard Cook, Australian Law Books, 2008.

The division of the work of the courts into some what specialized areas differs from County to Supreme Court, and this reflects both the differences of jurisdiction and indeed, of the nature of the cases issued in each.

In the Supreme Court, there is the Commercial Court, presided over by eight judges and associate judges, in five lists.

The other lists, apart from the civil management list, which includes all matters which do not fit into a specialist list, are:

Admiralty
Building cases
Commercial
Corporations
Intellectual property
Judicial review and appeals
Long cases
Major torts
Personal injuries
Valuation compensation and planning
Victorian taxation appeals

A number of these categories is similar to County Court lists or divisions, prescribed under order 34A, however the procedures, especially interlocutory procedures are quite different.

In the County Court, the lists specified under order 34A are:

Damages and compensation
Commercial

GETTING THE MATTER UNDERWAY

Your client will come to you about a dispute in which they already are or are likely to be the defendant in proceedings in the County Court. The amount in dispute will be in excess of the Magistrates’ Court’s jurisdiction of $100,000.

The dispute may be a debt recovery or a breach of contract, a building or engineering dispute, a damages claim in personal injury or a dispute between neighbours. In each of these cases the County Court has jurisdiction to hear the claim but certain limitations apply which are discussed below at “jurisdiction”.

The guide will assist you to deal with common County Court civil matters in a straight-forward, cost effective way up to settlement and, if necessary, to complete interlocutory steps up to trial.

The advice on the structure of the court and its procedures will give you the information you need to comply with the court’s procedures.

The Guide also includes a library of precedents including correspondence, pleadings, interlocutory process and other documents.

Initial instructions

Use the appropriate instruction sheet in the initial conference with the client:

•    County Court

•    General civil claim
•    Defamation
•    Medical
•    WorkCover

•    Motor vehicleaAccident
•    Building case

•    Serious injury

Send the client a cost agreement.

Jurisdiction

The County Court is a creature of statute and its jurisdiction is limited to those powers provided for in relevant Acts and the implied powers necessary to allow it to act effectively within its jurisdiction and to secure the proper administration of justice throughout Victoria. See s 4 County Court Act 1958.

Sec 4. Establishment of the County Court

The court has jurisdiction to hear any action of any kind which is not reserved to the Supreme Court by other legislation. There is no  monetary jurisdictional limit: see s 37(1) County Court Act 1958.

Sec 37. Extent of jurisdiction

Claims under the Relationships Act 2008 are no longer limited to property to a value of $200,000: s 37(1) County Court Act.  I(All of this has been overtaken by legislation in recent days. This jurisdiction now falls to the Family Court]

Testators’ Family Maintenance or family Provision claims can be brought under the Part IV of the Administration and Probate Act 1958 but the Supreme Court is generally a more appropriate venue for these claims, unless the value of the estate is comparatively small. See the Step by Step Guide to Testators’ Family Maintenance claims.

All equitable defences are available in the County Court.

Injunctions

Jurisdiction

The County Court’s injunctive power is unlimited.

The power extends to granting Mareva-style and Anton Piller asset preservation orders under Order 37B, in proceedings within its jurisdiction: s 37 County Court Act 1958.  See also practice Notes 1-2007 and 2-2007. 

However, this is not the place to make an urgent application for an injunction. If you are in that position approach the Supreme Court. See the Step by Step Guides to the Supreme Court which provide commentary and precedents in relation to injunctions.

Service of Injunctions

The Court may grant an interlocutory injunction, before or after the commencement of a proceeding: r. 4.08, r.38.01.

When the injunction is granted, give consideration as to the most effective manner of bringing the injunction to the defendant’s notice and make appropriate submissions to the Judge. Orders can be sought for service of an injunction by facsimile, electronically and even to the voicemail of a mobile telephone, depending upon the circumstances and the urgency of the matter.

Costs of Injunctions

Rule 38.03 gives the Court a discretion in relation to the costs of an injunction obtained before the trial of a proceeding. In addition, r.63 provides:

63A.19 Interlocutory injunction

63A.20 Interlocutory application

Case management

All proceedings in the Court are subject to case management by the Registrar, Associate Judge (formerly Master) and Judges of the Court. Most of the business of the Court is divided amongst the specialist lists discussed below, each of which is in the charge of one or more judges.

Rule 1.15 provides the Court with power to make directions and orders relating to the conduct and hearing of proceedings where the rules do not specifically prescribe..

Like the Magistrates’ Court (see the Step by Step Guide to the Magistrates’ Court in its civil jurisdiction) the County Court has stipulated time standards and requires practitioners to not only comply with them but to inform the client that they apply and of the penalties for default. The Court’s requirements are set out below.

Practice notes

The Court issues Practice Notes relating to conduct of business in the Court.  

For a list of all available files
The Court’s Practice Notes set out the varying case management procedures in the Court’s Lists. See ‘Lists and Sittings’:

The purpose of the Practice Notes is to explain how matters are conducted in the Court’s specialist Lists and in some instances to explain the procedure at hearings in the particular List, for example in Commercial List and Building Cases Division.

Procedures vary in individual lists. Always refer to the appropriate Practice Note before commencing proceedings. Above all, the notes to Order 34A are compulsory and extensive.

The Practice Note should be the first point of reference for practitioners before commencing proceedings in the Court.

Reference to the Practice Notes and compliance with them will prevent unnecessary applications for enforcement, save time and avoid adverse costs orders.

Where there is default in compliance with directions the Court will list the proceedings for a mention before the Judge in charge of a list or the Practice Court. The purpose of the mention is to allow the defaulting party an opportunity to show cause why the action should not be dismissed or the defence struck out, etc. For standard Directions on mentions hearings refer to Order 34A and the Consolidated Practice Note.

Lists

General Division of the commercial list

The judge in charge of the general division and the commercial list is judge Anderson. When he is not available, judge Kennedy assumes this role. His honour allocates hearing dates and allocates some applications for hearing before other Judges. See the Practice note for the general list

Specialist Lists within the court

The Court also assigns its business to a number of specialist lists. See annexure 1: order 34A.

Proceedings in the lists are the subject of practice notes, dealt with below.

Building cases division

Building and engineering disputes are allocated to the building cases division. The practice note for the construction list

The judge in charge of the building cases division is judge Shelton, who has authorised a practice note for the division: PNC1 1-2009.

Damages list and compensation list

This list is divided into six sub-divisions:

1. The general division
2. The defamation division
3. The medical division
4. The applications division
5. The workcover division, and
6. The serious injury division.

This list is managed by judge Davis.  Her onour has published a new Practice Note which supersedes the previous ones: see PNC1 2-2009

Directions hearings

The following judges conduct the directions hearings in the lists named:

Medical: judge Lawson who has authorised a practice note for the division: PNC1 3-2009

Workcover: judge Bowman see practice note PNCI 5-2008.

Damages for Melbourne (and any other lists): judge Davis
Applications: judge Holt

Defamation list

Defamation is a highly specialised area of law. Unless you can engage in a meaningful discussion as to how many angels can dance on the head of a pin (as a defamation practitioner can) you are unlikely to be in a position to run such a matter without counsel’s assistance.

The defamation list practice note

The role of the court is expressed in Rule 1.14, which says:

“In exercising any power under these rules, the court - shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined’

This ethos is sought to be implemented at all stages of proceedings and may, for example, result in early orders for mediation, truncation of directions to prepare matters for hearing, including dispensing with pleadings, or the dispensation with compliance with particular rules in certain circumstances.

See also r. 2.04, which gives the court discretion to dispense with compliance with the rules, and r. 34.01, which empowers it to give any direction as contemplated in r.1.14 for the conduct of any proceeding which appear convenient (whether or not inconsistent with the rules or any other rules of court) it thinks conducive to the effective, complete, prompt and economical determination of the proceeding.

Applicable Legislation, Procedures and Forms

Legislation & Procedure

Practice in the County Court is conducted, principally under (amongst other legislation):

Administration and Probate Act 1958
County Court Civil Procedure Rules 2008
County Court Act 1958 (“CCA”)
Accident Compensation Act 1985
Choice of Law (Limitation Periods) Act 1993
Practice Notes (“PN”)
Relationships Act 2008 (formerly Part IX of the Property Law Act 1958)
Transport Accident Act 1986
Workers Compensation Act 1958

Judges, and Registrars

   
The business of the Court is dealt with within a hierarchy.

Judges of the Court have power to hear all matters but many functions are delegated to the  Associate Judge of the Court.

Registrar

The majority of the limited functions and powers of County Court Registrars are set out in the following rules:

27.06 - power to refuse to seal documents if irregular
28.12 - power to reject documents
34A.11 - power to transfer cases between lists
34A.14 - power to exercise powers as directed by Judge
41.01 - power to examine witnesses by order
48.07(3) - power to direct case no longer set down
63A - power to tax costs
63A.21.1 - power to direct payment of costs in proceedings where party guilty of neglect or delay.
63A.22 - power to direct payment of reserved costs
63A.22.1 - power to direct payment of evidence transcript costs
63A.23 - power to investigate costs liability of legal practitioner
63A.36 - power to award costs of taxation
67.02 - power to order persons to attend for examination or production
75.07 - to apply on order to punish contempt
79.02 - power to pay money out of court
79.06 - power to order payment of interest on money for person with a disability

SETTLING IT EARLY

The commentary in the Guide makes more than one reference to the costs of conducting proceedings in the County Court and to the need to keep a close watch on costs from the outset.

The expression “it can all be about costs” is discussed in the commentary on Costs of Going to Court and it is a truth that should not be ignored.

Unlike the Family Court, where costs orders at trial are rare, in the County Court costs generally follow the event. So, if a matter goes to hearing and determination before a judge, there will be a loser who pays not only their own costs but the costs of the other side.

In the County Court the costs of the most ordinary matters that go to trial start at about $30,000 for each party.

Practitioners have a duty to provide their client with costs disclosure and to keep it up to date. They should also enter cost agreements from the start. Changes which may significantly affect costs include the need to brief senior counsel, to engage experts, and to conduct views with or without the Court in attendance.

Alternative Dispute Resolution “ADR”

Practitioners also have a duty to advise the client of the availability of Alternative Dispute Resolution, “ADR”.

ADR has a number of forms: negotiations between solicitors, negotiations between the parties’ counsel, mediation, arbitration and referrals. All of these are discussed at Going to Court.

The most common form of ADR is negotiation between practitioners prior to commencement of proceedings. If a settlement can be negotiated then everyone saves on costs. (Even after commencement of proceedings parties can settle and should consider settlement at all stages of the proceedings).

Parties can and often do negotiate a settlement of a dispute without the necessity of commencing proceedings. A well structured offer is an inducement to settle.

Offers are relevant to the exercise of discretion concerning costs at the conclusion of any proceedings.

The inherent problem with negotiations is that practitioners frequently become emotionally attached to their clients’ arguments. This is a mistake. Likewise personal animosities between opposing legal practitioners should be discarded, in order to let the lawyers speak frankly and without malice about the merits of their respective cases. Even in the most emotionally charged cases, such as testators’ family maintenance cases, off-the-record discussions between the practitioners, at arms’ length, can prove very effective in limiting the issues, expanding mutual understanding and exploring lateral thinking. The enormous saving in cost achieved by settling without the need for costly hearings and documentation will often make up for slightly reduced - but realistic - settlement amounts.

A fact of litigation for the practitioner to bear in mind is that, whatever the client may think or say, and however compelling the evidence may appear, there is no such thing as an unlosable case. Allowance should always be made by the practitioner for the possibility of unforeseen events and technical anomalies.

It must also be remembered that, since the party-party costs awarded in favour of a successful party do not represent the entire costs of the proceeding, both parties will still have to put their hands in their pockets for costs.

Mediation is discussed in detail below.

Arbitration is still much used, but the attendant costs and complexity seldom render the process any cheaper than a trial even when the arbitrator is an expert.

Referrals to experts, not as arbitrators but simply as independent advisers to the parties,  can also sometimes offer speedier and cheaper resolution without trial.

Settlement before proceedings are commenced

If an agreement to settle is reached before proceedings are commenced the parties should enter into Terms of Settlement that provide for payment of the debt or a money amount in respect of claimed damages or even for the completion of rectification or further work in a building case, or perhaps the taking down of an offending tree, together with mutual releases.

A Release, incorporated in a Deed or the Terms of Settlement, is always good practice. It will often be advisable to make the terms conditional upon fulfilment of some act by one or other party. Often, in default of performance, it is also wise to include agreed directions for the disposal of the matter if it is reinstated. It is usual practice for the disposal of the proceeding in the list  to be ‘struck out with a right of reinstatement’.

Mediation

The Court has power to order that civil proceedings be referred to mediation at any time, with or without the consent of the parties- s 47A County Court Act 1958 See also rules about mediations in CCR 1999 rules 34A.21 and 50.07. It is either a compulsory step or ‘strongly encouraged’ in all of the specialist lists.
 
Mediation is normally before a private mediator selected and paid for by the parties. In general the Court will only nominate a mediator if the parties cannot agree on one.

All mediations are conducted upon a without prejudice basis and all of the proceedings are expressly excluded from evidence.

The tendency is to order mediation (if it is not already agreed between the parties) earlier rather than later. If mediation can be conducted before discovery and other interlocutory steps, the costs savings can be enormous.

At mediation any agreement is reduced to orders or an agreement or both. Orders are then made by the Court, including orders disposing of the proceedings.

In the County Court most matters will be ordered to mediation before they are set down for trial. Indeed, the Court will not set matters down without a mediator’s certificate of conclusion of the mediation.

Participating in a mediation

Any party can seek an order for mediation even though it is opposed by another party. If the order is opposed by the other side, in your submissions tell the Court what the issues are, whether of fact or law, whether they are clearly defined in the pleadings, what the state of the evidence is, whether it is a family dispute, whether there is likely to be extensive discovery of documents, whether expert evidence will be called, the likely length of hearing and why it is appropriate to make the order.

Once a mediation order is made the parties will have to agree on the mediator to be employed. This may be any qualified person, but the cost will vary greatly between, say, a retired Supreme Court judge at the top of the scale and a commercial mediator at the other.

As a matter of practice, there is a wide range of mediators available. The Law Institute of Victoria has established a specialist list of mediators and arbitrators, some of whom are involved as mediators full-time. On the whole, solicitors are very satisfactory mediators.

While most members of the bar hold themselves out as mediators, many have no formal training as mediators, and in some cases, their very expertise in certain areas  tends to tempt them to try to inform the parties at the mediation, rather than to foment useful discussion and negotiations.

Practitioners will be well-advised to speak to experienced litigation lawyers before selecting a mediator.

The mediator will speak to the practitioners to arrange the mediation date and venue, what documents are to be read by the mediator, position papers, parties’ authority to settle and any other matters relevant to the mediation. Usually the mediator will require the parties to sign a mediation agreement which sets out the rights of the parties (and the mediator) and protects the confidentiality of the process.

The division of cases into specialist lists in the County Court has led to automatic making of procedural orders, whether by consent - incorporating the parties' requests - or at the motion of the judge in charge of the particular list. Mediation is one of the essential elements of the orders. The parties generally must organise the venue and mediator. As a rule, the mediator is supplied only with the pleadings, and sometimes with (usually useless because they are excessively one-sided) position papers prepared by the parties’ legal representatives.

The mediator is not an adjudicator and parties cannot expect him or her to make a judgment on the likely outcome of the dispute nor to express such a view to a potential loser. A mediator will often point out the difficulties of a particular case but mediators are facilitators, not judges. A mediator will not decide who wins. Therefore it is not productive or cost effective to require the mediator to read the entirety of the documentation in the case. Usually the pleadings and concise position papers are sufficient. Sometimes a mere oral summary is enough.

Ensure that the client has authority to settle, particularly where there are corporations or partners involved. If there is no authority to settle, the mediation will fail and there may be an application to the Court for costs thrown away.

Consent orders

When the parties settle after proceedings have been commenced, they often enter into consent orders to dispose of the proceedings.

Ensure that the orders are precise as to what the settlement is, including time stipulations for payment of money, and that they contain the necessary mechanical orders for the disposal of the proceedings.

For example, where the defendant is to pay the Plaintiff $125,000 and something in relation to costs, the orders would be:

1. The defendant is to pay the plaintiff the sum of $125,000 within 28 days.
2. The defendant is to pay the plaintiff the sum of $10,000 in respect of costs within 28 days.
3. Proceeding otherwise dismissed, with a right of reinstatement.
4. The parties have liberty to apply generally.

If the parties agree that one party is to have judgment the consent orders are:

1. Judgment for the plaintiff in the sum of $125,000.
2. The dfendant to pay to the plaintiff the sum of $125,000 within 28 days.
3. The dfendant to pay the plaintiff the sum of $10,000 in respect of costs within 28 days.
4.  Proceeding dismissed with a right of reinstatement.

Consent orders where the parties agree to walk away from each can be:

1. Proceeding dismissed, and
2. No order as to costs.

The parties may agree on terms that require performance by one party of an obligation that is not to be the subject of an order of the court. The consent orders are then:

1. Proceeding dismissed, with a right of reinstatement.
2. No order as to costs, or;
3. Each party to pay their own costs, and
4. The court ‘notes the agreement of the parties that the paintiff will accept the sum of $100,000 if paid by the dfendant within 28 days of the date of these orders’. 

The agreement may be set out in the consent orders, or in a deed. However, if the party undertaking performance of the obligation does not perform, the client’s only recourse is to bring further proceedings for breach of the agreement because the agreement is not an order of the court. It is for this reason that the right of reinstatement is retained, to enable the party entitled to the benefit of the agreement to hitch his wagon to the existing proceedings rather than issuing anew.

The preferable course is where the parties have negotiated payment of a lesser sum than that claimed or that work be done to satisfy a claim, it is in the client’s interests to require entry of judgment for the higher sum or the sum claimed in damages in respect of the work with an order that the Plaintiff will accept the lesser sum in full and final satisfaction of the claim if the lesser sum is paid within a specified time:

1. Judgment for the plaintiff in the sum of $150,000 inclusive of costs.
2. Proceeding dismissed.
3. The court notes the agreement of the parties that the plaintiff will accept the sum of $80,000 in full and final satisfaction of the judgment if that sum is paid by the defendant within 28 days of the date of these orders.

The trouble with this arrangement is that the defendant has a judgement against him for the full amount, on the court record, even if he pays the agreed amount. It may be prudent in those circumstances to include a provision that the judgement will be vacated on proof of payment.

If there is default in payment, the plaintiff has judgment for the higher sum which is enforceable without having to commence further proceedings and the defendant has a real incentive to comply. The judgment is enforceable by issuing a warrant of execution: Order 68, applying for a garnishee summons: Orders 71 & 72 or any other steps that are available in the circumstances.

Court approval of settlements

Where the plaintiff is a person who by reason of injury, disease, senility etc or otherwise and is incapable of managing her or his affairs, the person must have a litigation guardian appointed under r. 15, "person under disability" and any settlement must be approved by the court r. 15.08. Approval is not automatic and the solicitor or barrister appearing on the approval application should be prepared to place all the relevant material before the court and answer the Judge’s enquiries as to the form and quantum of the settlement.

The procedure for obtaining approval is as follows:

1.  In general, applications for approval under r. 15.08 will be made to the associate judge or practice court, without notice to any other party.
2. The litigation guardian may list a matter for approval by contacting the associate to the judge or associate judge.
3. The litigation guardian must file his or her affidavit and an affidavit of the solicitor for the person under the disability not later than 30 days after the compromise, payment of acceptance. The affidavit must not be served: 15.08(2.1).
4. Unless there are exceptional circumstances, the plaintiff and the litigation guardian and the solicitor will be required to attend at the hearing of the application.
5. The affidavit evidence should, where relevant, include the following matters:
   1. Whether the settlement reflects a compromise on liability and if so, copies of any relevant documents;
   2. Up to date medical reports dealing with all relevant medical issues;
   3. A statement by the litigation guardian as to the plaintiff’s current disabilities, if any;
   4. Details of the past out-of-pocket expenses both paid and unpaid;
   5. Details of any other deductions to be made from the settlement e.g. Centrelink;
   6. A statement by the litigation guardian to the effect that the amount allowed for past out-of-pocket expenses in the settlement includes all accounts, both paid and unpaid, of which the litigation guardian is aware having made all relevant enquiries;
   7. An acknowledgement by the litigation guardian that the settlement is final.
   8. Rule 15.08 also requires evidence  as to:
   1. the date of the compromise, payment or acceptance, and
   2. the date of birth of the person under disability

If an application for approval of a compromise on behalf of a person under a disability is either refused or not ready to proceed, the action will be returned for management.  If the action has already been allocated an arbitration or trial date, that arbitration or trial will, unless the court otherwise orders, proceed.

The test for approval of the compromise appears to be:

‘[T]he question is whether the prospect of getting a greater sum by rejecting the offer is good enough to outweigh significantly the risk of not getting any more.’: Elliott v Diener (1978) 21 ACTR 21.

Guardianship and Administration Act 1986 appointments

It should be noted that the prior appointment of a guardian or administrator under the provisions of the Guardianship and Administration Act 1986 [GAA] may anticipate the need for appointment of a litigation guardian.

Guardians may be appointed for persons with disabilities by the Guardianship List of VCAT under s.22. If the person appointed an enduring guardian under s.35A GAA, the appointment will most likely also be adequate for the purpose of a litigation guardian. Enduring powers of guardianship empower the guardian to exercise the specified powers during disability. If no powers are specified, the guardians may only exercise the powers in s.24 GAA, which are narrowly stated to include issues of residence, work, health care and visitors,

Administrators appointed under s.46 ff GAA normally have the powers in Division 3A which include general care and management of the estate, collection and preservation of property, and ‘all acts and…powers…as effectually and in the same way as the represented person could have done’ s.58B(1)(c). therefore administrators, at first blush, have more appropriate powers to act as litigation guardians.

If no settlement is reached the parties are Going to Court.

GOING TO COURT

Notice of Appearance

Defendants served with a Statement of Claim must enter an appearance: R. 8   within 10 days of service: 8.04, or longer when served out of the jurisdiction.

The rules in relation to subsequent changes in representation by a solicitor are at R. 20

Objection to the Jurisdiction of the Court

If a party does not submit to the jurisdiction of the Court because, for example, a term in a contract contains an exclusive jurisdiction clause for arbitration or determination in another jurisdiction or forum, or the named defendant considers itself to have been wrongly sued because a of a mistake of identity, a party may make an application by summons challenging the jurisdiction and seeking to have the originating process set aside: r7.05, 8.09.

The application may be made without entering an appearance, or after entering a conditional appearance: 8.08 and may seek a stay of the proceedings.

A clear contractual provision providing for resolution of disputes under the agreement in another forum or jurisdiction will generally justify a stay of proceedings.

Parties may enter conditional appearances, as noted above, but the rule provides that they are effective as unconditional appearances: r. 8.08

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: 8.03(1).

Corporations

A corporation may appear by any person authorised by it to act: 8.03(2). But a corporation may not take a step in a proceeding save by a solicitor: 1.17(1).

Persons under legal disability

A person under legal disability (1) may not commence or carry on proceedings except by his or her litigation guardian 15.02(1) and (2), and unless the court orders otherwise, the litigation guardian of a person under legal disability may not commence or carry on proceedings except by a solicitor 15.02(3) If the Litigation Guardian is a solicitor, this rule would be satisfied.

Litigation guardians –Order 15

No formal appointment is required to act as a litigation guardian: but the Court may appoint a litigation guardian of its own motion, such as where a party becomes handicapped during proceedings [15.03(3)] and it may remove or appoint litigation guardians in the interest of the person under a disability: 15.03(4). Except where the litigation guardian has been appointed by the Court, the guardian’s name must not be used unless there is first filed in the office of the Prothonotary:

1. The written consent to be the litigation guardian (Form 24: consent to act as litigation guardian)
2. A certificate signed by the  solicitor for the person under a disability in the proceedings, certifying that:

Note that where a party sues or is sued in  a representative capacity, the originating process must be indorsed with a statement showing that capacity: CCR 5.06.

If no defendant under a disability appears, the plaintiff may apply to the court under 15.03 for the appointment of a litigation guardian for the defendant.

Proceedings against partners and defendants operating under business names

Where a person incurs a liability whilst carrying on business under an unregistered business name proceedings can be commenced that person, as defendant, under that name: r.  17.10, together with 17.02 requiring disclosure of partners' names to 17.09.

For the purposes of the proceedings the unregistered business name is taken to be a sufficient description of that person and any judgment or order arising from any such proceedings may be enforced against that person: r 17.07

R. 17.10 allows a plaintiff to sue a person carrying on business in Victoria ‘in a name or style other than his own’ in that name or style, and treats him as a partner under rules 17.02-17.09. The rule does not differentiate between registered and unregistered business names. This is the corollary to r.17.01, which permits proceedings against partners.

Defendant sued in business name to respond in own name

A defendant sued as a partner under r.17.01 must, within 14 days of service, also disclose in writing the names and residential or business addresses of all persons constituting the firm at the time when the cause of action accrued: R. 17.02(1) and of any changes in the firm since. In default of compliance with subrule (1) the court may order that a defendant’s defence be struck out: r. 17.02(2).

Persons sued as partners may appear under objection and deny that they were partners at any material time, or that they are liable as such: r.17.06. An appearance under objection does not qualify as a conditional appearance under r.8.08.

Joinder of a person as a Plaintiff

A person is not to be joined as a plaintiff in any proceedings except with his or her consent signified in writing ‘or in such other manner as the Court orders’: r.9.07(1).

Joinder of additional parties

The Court has an overriding power to join necessary parties: r.9.06, at any stage of the proceeding.

If it is desired to add an additional defendant, it is usual not to give notice to that proposed defendant. Rather, the application is made to the Court and, if the order for joinder is made, the writ is amended and is then served on the new defendant. If the order for joinder was applied for ex parte, the new defendant may be entitled to apply to set it aside under r.46.08

See also under ‘consolidation’ below.

Death of a party before judgment

R.9.09 provides:

1. Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceedings shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2).
2. Where 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 that the other person be added as a party to the proceeding

If a party dies , and no order is made under r.9.09, the Court may order substitution under r.9.10, or that the proceeding be dismissed unless substitution is made. It may also give judgement under r.49.04.

Litigants in person

The number of litigants in person in the Magistrates’, County and Supreme Courts is increasing, with consequent problems as to how to deal with them in relation to both interlocutory processes and at trial.

The Court attempts to strike a balance between allowing a lay litigant in person some latitude in presenting their case and complying with the rules without providing them with some advantage over legally represented parties.

While the Supreme Court has a practice note on this topic, the County Court does not.

Defending the claim

The steps involved in defending a claim in the County Court are dictated by the court’s case management procedures.

Case Management in defending the claim

Reference should be made to the Court’s website: www.countycourt.vic.gov.au, especially to the tabs ‘Lists and Sittings’ and Practice and Procedure’ and each of the lists and divisions’ pages.

The business of the County Court is divided amongst a series of interest divisions or lists:
Commercial List
Banking & Finance Division
Building Cases List
Expedited Cases Division
Family Property Division (Family property disputes and Testators’ Family Maintenance)
General Division (Commercial, real or personal property cases)
Damages, which is further divided into:
General Division
Defamation Division
Medical Division
Applications Division
Serious Injury Division
WorkCover Division

Each list in the charge of a particular Judge, who manages not only the interlocutory applications, but may ultimately hear the cases.

Each division or list has web-pages devoted to it on the County Court site, and has standard forms which include:

• practice notes
• first directions hearing orders
• and mediation orders

The parties are encouraged to seek orders ‘on the papers’, also called an ‘administrative mention’, which are consent orders, settled between practitioners, then submitted to the judge by fax for orders to be made without an appearance. This generally avoids the need for an immediate directions hearing. The parties are then left to comply with the orders according to a schedule prescribed by the Judge in charge. If no orders are made on the papers, a directions hearing is fixed.

It can be seen that this process, while convenient to both Court and practitioners, would be rather opaque to litigants in person, and practitioners should be prepared for constant lack of understanding from them. Even addressing the rules as to documentation is extremely hard for laypersons, and judges and solicitors alike must allow them considerable latitude.

Directions hearings are usually fixed quite quickly, and the prevalence of orders ‘on the papers’ has greatly reduced the numbers of these hearings. The judges in charge of the lists are completely familiar with the particular needs of their lists, and the standard forms usually lead to speedy disposal of these applications.

Case management begins when a Statement of Claim is filed in the Registry or a writ containing an indorsement of claim is issued. A request must be made at the time of filing on a standard form to enter the case into one of the lists or divisions. The practice notes, standard orders and other documents can all be accessed at the outset, and the judges expect practitioners to have read and complied with them.

In the General Division, to prepare the matter for hearing and comply with the Commercial List Practice Note the steps will be:

1. Respond to any Letter of Demand (see “Getting the Matter Underway”)
2. Accept service of the Statement of Claim and arrange a conference with the client to take instructions for the Defence and any Counterclaim or set-off.
3. Prepare and serve any request for further and better particulars of the Statement of Claim.
4. After receipt of particulars, file and serve the Defence and consider and respond to the Plaintiff’s proposed timetable for the conduct of the case which will include all necessary steps to ensure that the case will be ready to be referred to mediation prior to being listed for trial.
5. If you do not agree with the Plaintiff’s proposed timetable or want to add additional steps, negotiate changes and request orders on the papers, or if agreement cannot be reached, ask for a directions hearing.
6. Respond to any request for further and better particulars of the counterclaim.
7. Receive and consider any Defence to the counterclaim.
8. In a personal injury matter the Court expects that the parties will also have exchanged medical and other expert reports.
9. The Court expects that the Defendant will have arranged medical examinations and issued subpoenas.

If an administrative mention has not been achieved:

Appear at the first Directions Hearing -

1. Unless the defendant has requested particulars of the statement of claim and the plaintiff has supplied them before the directions hearing, these are issues to be included in the directions.  Likewise, discovery and interrogatories are steps which are no longer to be taken for granted, and the Judge in Charge will want justification for ordering these.
2. The Judge will fix the matter for trial as a cause or as a jury trial, as appropriate, and will include those matters in the pro forma orders that are relevant, such as mediation and court books. 

Mediation

1. The mediation will be held after completion of the interlocutory proceedings. The mediation is the most important case management activity.
2. If a party has a solicitor, a legal practitioner with full knowledge of the proceedings must represent that party at the mediation.  That legal practitioner must have sufficient instructions to enable the Court to make all appropriate orders and directions.  In the words of the standard mediation procedures guidelines from the Court:
   1. ‘Those persons who have the ultimate responsibility and authority for deciding whether to settle the dispute and the terms of any settlement and the lawyers who have the ultimate responsibility to advise the parties in relation to the dispute and its settlement must attend the Mediation.’
3. It is therefore generally inappropriate for parties to be represented by agents or clerks.  Parties should anticipate that costs orders will be made against them if they are not adequately represented at the pre-trial conference. Practitioners also face criticism by the Court if they do not attend the mediation with proper instructions and after full preparation.
4. At the mediation, the mediator agreed between the parties or appointed by the Court has entire responsibility for the conduct of the mediation.

If the mediation is successful in reaching agreement which settles the dispute, the mediator and the lawyers will collaborate in reducing the agreement to writing for immediate signature by the parties then and there. The Court must be advised in writing of the outcome of the mediation either way.

If settled, once the Court has been advised, an order will be made dismissing the proceeding.

If the mediation does not resolve the dispute, the trial date will stand, and the trial must proceed.

Discontinuance or withdrawal of proceedings

Proceedings commenced by writ may be discontinued by a plaintiff under R. 25.02:

• Before the close of pleadings
• At any time by leave of the court or with the consent of all other parties

A defendant may discontinue a counterclaim or withdraw any part of it:

• Before the close of pleadings
• At any time by leave of the court or with the consent of all other parties to the counterclaim

At any time the plaintiff may withdraw a defence to counterclaim or any part of it and a defendant may withdraw his defence or any part of it.

A defendant may discontinue a claim against a third party or withdraw any part of the claim in the third party notice by leave of the court or with the consent of the third party.

By R. 25.03, proceedings not commenced by writ may be discontinued at any time by leave of the court or with the consent of all other parties.

Any further proceedings commenced for the same or substantially the same cause of action before the costs on discontinuance are paid may be stayed by order of the court: r 25.07.

Discontinuance is not a defence to a subsequent proceeding for the same or substantially the same cause of action unless the court provides otherwise by order granting leave to discontinue: r.25.06.

A discontinuance or withdrawal is made by filing a notice of withdrawal stating the extent of the withdrawal: r 25.04. If made by consent, the consent of each party must be indorsed on the discontinuance or withdrawal: r.25.04(2).

Withdrawal of admission

 
Leave of the Court ,or consent of the party for whose benefit an admission was made, is required to withdraw formal admissions: r 25.02(5).

Dismissal of proceedings for want of prosecution

If a plaintiff or defendant does not prosecute the proceedings with due despatch the Court has inherent jurisdiction to order that the proceedings be dismissed or the defence struck out either in whole or in part, or make such other order as the court thinks fit: R.: 24.05.

Additional grounds for dismissal of proceedings

The County Court has a further power of its own motion to make an order dismissing the proceedings if the plaintiff, being entitled under r.48.02 to set the proceeding down for trial, does not do so within 28 days after the time he becomes entitled: r.24.01. Rule 48.02 allows a plaintiff to set proceedings down for trial at any time after the close of pleadings, or 10 days after any date set by the Court. It should be noted that this order has less relevance now that the specialist lists in the Court embody a trial date as a matter of course.

Limitation periods

At the outset ensure that no limitation period has expired which may be relevant to bringing or defending the claim.

Check any relevant legislation, some of which is:

1. Limitation of Actions Act 1958
2. Fair Trading Act 1999 s 71
3. Transport Accidents Act 1986 s.93 etc
4. Relationships Act 2008

If the client requires leave to defend the proceedings because they are out of time (and leave is available), depending upon the proceedings, that order will have to be sought by filing an application to the Judge in charge of the list with an affidavit in support.

Also note the provisions of  r.36.01. Under the section, the Court has wide powers to grant leave to the parties to amend ‘for the purpose of determining the real question in controversy between the parties’, a mistake in the name of a party, to add or subtract a cause of action, or to amend an originating process even after the expiration of any relevant limitation period if ‘it is satisfied that any other party would not, by reason of the order, be prejudiced in the conduct of his claim or defence in a way that could not fairly be met by an adjournment, an award of costs or otherwise’: r.36.01(6).

Requests for further and better particulars

If you require further and better particulars of the Statement of Claim before filing a Defence and you write to the other side requesting particulars, ensure that the letter states: “Please confirm that you will not take any steps to enter default judgment until 14 days after the particulars are provided. If any steps are taken we will rely upon this letter on the issue of costs”.

There is usually no issue that the Plaintiff will allow 14 days to file the defence after the particulars are provided.

Rule 13.11(2) anticipates this situation, but insists on the delivery of a defence before it will make an order for particulars.

Before you file a Defence refer to the Practice Note for the relevant List because there may be special requirements for Defences in the Lists.

It is important to note that many barristers and solicitors make a rule of requesting particulars, even when the need is scant. For this reason, like interrogatories before them, requests for particulars are examined with increasingly critical eye. In consequence, many of the particulars supplied in response are narrow and even uncooperative.

Interest

Sections 58, 59 & 60 of the Supreme Court Act 1986 [SCA] deal in portmanteau fashion with interest which is to be allowed in civil proceedings.

In Victoria, the benchmark for interest to be charged as a penalty is section 2 of the Penalty Interest Rates Act 1983. The rate fixed under this section [the penalty rate] varies from time to time, and is published in the Government Gazette and privately, in particular, in the Law Institute Journal each month. Past rates are also published in the Law Institute Diary in the Quick Reference section

Section 58 SCA requires a court to allow interest on debts or sums certain at a rate not exceeding the penalty rate, or in the case of bills of exchange or promissory notes, the penalty rate plus 2% , from the time when the debt or sum was payable. The higher rate does not apply to bills of exchange or promissory notes if no defence was pleaded.

Section 59 is more specific:
s.59(1) allows damages in the nature of interest in all proceedings for trover  {a cause of action which has not been used in half a century) or trespass concerning goods over and above the value of the goods at the time of conversion.

s.59(2) says that the court must, in proceedings on policies of insurance, unless good cause is shown to the contrary, give damages in the nature of interest over and above the money receivable.

Section 60(1) allows interest on debts and damages at a rate not exceeding the penalty rate.

s.60(2) clarifies the preceding:

(2)    Nothing in this section -
(a)   authorises the granting of interest on interest;
(b)   applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;
(c)    affects the damages recoverable for the dishonour of a negotiable instrument;
(d)    authorises the allowance of interest otherwise than by consent on any sum for which judgment is entered or given by consent;
(e)    applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or
(f)     limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.

s.60(3) further limits the granting of interest on certain kinds of damages including punitive damages, and s.60(4) allows a court to request a jury to specify amounts affected by s.60(3).

Application may be made for interest after judgment: David Leahey (Aust) Pty Ltd v McPherson’s Ltd [1991] 2 VR 367. 

In any damages claim a successful claimant, whether plaintiff or counterclaimant, is entitled to interest at a rate not exceeding the penalty rate. In the statement of claim the Plaintiff claims:

1. Damages,
2. Interest, and
3. Costs.

Pleadings and Particulars

The County Court is a Court of strict pleading. All pleadings must comply with the CCR , especially CCR O. 13.

The material facts of the claim must be pleaded ‘in summary form’ [CCR O 13.029A)], with as much brevity as possible, but containing ‘the necessary particulars’ [CCR O 13.10(1)]. .

Where serious allegations of fraud, misrepresentation, breach of trust, wilful default or undue influence are made, proper particulars must be given of the allegations relied upon: CCR O 13.10(3), which also relates to particulars of any “disorder or disability of the mind, fraudulent intention or other condition of the mind, including knowledge or notice’.

However, giving extensive particulars is no substitute for pleading as briefly as possible the material facts of the claim. If you are in doubt as to how to plead and particularise a claim, brief counsel to settle the pleading for the reasons set out under the heading “Striking out of Pleadings”. In the most straight forward cases, simple and careful drafting by a solicitor is quite sufficient. However in the more complex cases, especially complex agreements and arrangements and those involving breaches of the Trade Practices Act 1974, it will be necessary to brief suitable counsel to draw the pleadings,

In both a Statement of Claim and Defence the following matters must be specifically pleaded: CCR O 13.07(1)

1. Any fact or matter that the party alleges which makes any claim or defence not maintainable;
2. Any matter which, if not specifically pleaded, that might take the opposite party by surprise;
3. Which raises questions of fact not arising out of  the preceding pleading
   
   Pleadings in Defamation are the subject of specific and very technical rules. Defamation is a highly specialist jurisdiction and will usually require counsel to be briefed. See e.g. CCR 40.10.
   
   A very useful introduction to the art of pleading is in Rose’s Pleadings Without Tears in Australia. It is recommended reading.

Striking out of pleadings

If the pleading does not comply with the rules it may be embarrassing and liable to be struck out.

‘Embarrassing’ is a technical term, and has no connexion with the ordinary vernacular meaning. It means ’throwing into doubt or difficulty’ [Oxford English Dictionary - OED].

When served with originating process, carefully consider the facts pleaded as to whether or not the elements of the cause of action are properly pleaded. This is a difficult area but you must take care that the defendant is not trying to defend a claim that is not properly articulated. You can ask for further and better particulars, but if the pleading is still not clear you may have to consider first, writing to the other side and putting the deficiencies to them.

If the pleading is so defective as to require amendment, make your complaint in a letter setting out the defects in the pleading and that it is embarrassing and likely to be struck out.

If the Plaintiff does not amend when requested, you may make an application to the Judge in charge of the List to strike out the pleading

Under r.23.02, a pleading may be struck out wholly or in part if it:

(a)    does not disclose a cause of action or defence;

(b)    is scandalous, frivolous or vexatious;

(c)    may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)    is otherwise an abuse of process of the court.


If partially successful, the Plaintiff will probably be given leave to replead and will suffer a costs order which will include the costs of and occasioned by the amendment including those of the application r.63A.17(2).

Applications under r. 23.02 are often made in tandem with applications under r. 23.01 or r. 23.03.

Amendment of Pleadings

Pursuant to r 36.03 a party may, without leave, amend any pleading served by him once at any time before the close of pleadings but, unless the court otherwise orders, or all other parties consent, may not amend it at any other time.

Also note that a party who amends a pleading or other document without leave must, also pay the costs of and occasioned by the amendment: r 63A.17(1).

Amended pleadings must be appropriately described. A first amendment is an Amended Statement of Claim. A second amendment is a Further or Second Amended Statement of Claim. If there is further amendment it is a Third Amended Statement of Claim and so on. If you get to that point you have a problem with the claim. The essential, as always, is to keep the identity of each document clear.

As to amendment generally see Order 36.

As noted at “Striking out of Pleadings” a plaintiff may, without leave, amend a statement of claim once before the close of pleadings, and at any other time with leave or with the consent of all parties: r.36.03. It is sensible to seek consent by delivering a proposed amended pleading to the other parties and asking them to consent to the amendment. In cases of minor amendments, or amendments which are uncontroversial, that can save the need for an application to the Court.

Parties must plead to amended pleadings within 30 days after service: r.36.06.

Amendments may be made to correct the names of parties: r. 36.01..

An order giving leave to amend a document ceases to have effect:

(a)    At the expiration of the time limited by the order for making the amendment, or

(b)    If no time was limited, 21 days from the date on which the order: r. 36.02.

Amendments may be disallowed. A defendant may consider that amendments made before the close of pleadings do not remedy the defects in the pleading, and may apply for an order , within 21 days after service of the amended pleading, pursuant to r . 36.04, to disallow the amendment wholly or in part.

Mode of Amendment generally

Technique of Amendment

One must file and serve the amended pleading, marking the amended document so that the amendment is clear. Rule 36.05(4) requires that each amendment must be made in such a way as to distinguish it from the original pleading and from any previous amendment.

In former times, this was achieved by using red ink (generally available on typewriters) or by underlining the amendment, then using a double underscore in a second amendment. In these days of colour printers and word processors which can render print in bold and italics with ease, additional methods of distinguishing amendments can be seen. It is to be remembered, however, that colour will only be reproduced by a colour photocopier, and so will be lost in copying on a half-tone copier. Nothing irritates a judge more than being unable to tell documents apart.

 Rule 36.05 requires that an amendment to a document must be made by:

(a)    amending the filed copy of the pleading or filing an amended copy,;

(b)    serving a copy of the amended pleading; and

(c)    the Registrar indorsing the filed copy with the date of amendment, or the filed copy with the dated of filing.

Suing a defendant in a business name

A plaintiff suing a defendant under a business name under r. 17.10 need not conduct the proceedings against the defendant in his or her own name: but the defendant must appear individually: r. 17.04

Addition or Joinder Of Parties

Order 36 does not allow the joinder of new parties. Such an application must be made under r. 9.06, which allows the addition, removal or substitution of parties who are ‘proper or necessary’.

An application to add a person as a plaintiff in a proceeding, which must be made on application to an Associate Judge, supported by affidavit (r. 9.07(2)) requires that person’s consent to be given in writing or as the Court orders: r. 9.07(1).

If leave to add a party is granted, the writ or originating process must be amended within the time specified in the order, otherwise within 10 days: r. 9.11(1).

Entry of default judgment

The client may come to you after the sheriff has attempted to levy execution or the client has been notified by the registry that default judgment has already been entered. This procedure is only available to the plaintiff where the proceeding was issued by writ: r. 21.01.

A plaintiff may enter default judgment under Rule 21.01:

(a)    If the defendant has not filed an appearance within the time limited (usually 10 days); or

(b)    If the defendant, having filed an appearance, does not file a defence, also within the time limited (30 days after appearance).


In a liquidated claim, judgment is entered for the amount of the debt plus interest (see SCHEDULE 5 for applicable rates) and costs: r. 21.03.

Where the claim is for damages, interlocutory judgment is entered for the plaintiff for damages to be assessed: r. 21.03((1)(b).. There will then have to be an assessment by an associate judge or a judge (which may be ex parte) of damages r.21.03(3)..

In order to enter judgment in default under this rule, the plaintiff must:

To enter judgement in default of appearance the plaintiff must:
(1)    File a notice requesting a search for an appearance in the registry;
(2)    File an affidavit of service of the writ;
(3)    File a statement of claim if the endorsement on the writ is not a statement of claim conforming with r. 5.04.

To enter judgement in default of a defence: file an affidavit proving the default. This also applies where the defence is struck out by order: r.21.02(3).

Setting Aside Default Judgment

The Court may set aside default judgment which has been regularly entered, under r. 21.07, (and only refrains from doing so in exceptional cases: (see e.g. Collins Book Depot Pty Ltd v Bretherton [1938] VR 40) where the defendant has:

(a)    A prima facie defence on the merits,

(b)    An explanation for the delay in filing a defence with the time provided by the Rules, and

(c)    It is in the interests of justice to allow the proposed defence to be litigated.

If judgment was regularly entered, the Court will order the Defendant to pay the Plaintiff’s costs of entering default judgment thrown away. If the judgment was irregularly entered, the plaintiff is likely to have costs awarded against him.

Application to set aside default judgment is made by filing an application in the proceeding seeking an order to set aside the default judgment pursuant to r 21.07.

The Application must be supported by an affidavit which annexes a draft defence and in which the deponent sets out the reasons for the failure to file the appearance or a defence within the time limited by the Rules. Merely saying the client has a defence on the merits is insufficient. It must be demonstrated, and the way of doing it is to annex a defence that will be filed if the court exercises its discretion in favour of the client.

Defence

Where the client is served with a statement of claim, a Defence, must be filed within 30 days after appearance: r 14.04, unless [1] you require further and better particulars (see above) or [2] you are making an early application for security for costs (see below).

If either [1] or [2]  is the case, ensure you have the plaintiff’s undertaking through their solicitor not to enter default judgment until the issues are resolved.
 
Order 27 sets out the formal requirements for documents filed in the court.  Note that although the rules prescribe forms for headings of actions, writs, originating motions and third party notices, there is no prescribed form for a statement of claim, defence or other pleading.

The formal requirements for the content of pleadings are contained in order 13 (Pleadings) which also covers particulars: r. 13.10.
Defences must disclose the grounds upon which the plaintiff’s claim is denied or not admitted

To a count in contract, a plea of “never indebted as alleged” is insufficient as a defence, in that it is potentially embarrassing since it does not throw up any issue to be tried by the court: Heffernan v Hayes (1899) 25 VLR 156.

Defences of the non-admit variety or those which simply deny assertions in the plaintiff’s pleading without advancing a case of the defendant’s own, or setting out  the real issues in dispute, fall into the same category. Such pleas are likely to be struck out on application by another party and costs orders made in consequence.

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. The form for a counterclaim against a person who is not already a party is Form 10B. 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 any connection with the Plaintiff’s claim.

A Defendant can by his counterclaim join third parties under r. 10.03, where the relief claimed in the counterclaim is related or there is a common question of law of fact, and all rights to relief arise out of the same transaction, or the Court gives leave, as permitted by r. 9.02.

There is no time limited by the rules for service of a counterclaim, because it is in essence a new claim. However, since a party bringing a counterclaim must consolidate it with his defence under r. 10.02(3), and a defence must be filed within 30 days of service of the statement of claim: r 14.04, filing and service of the counterclaim should occur within 30 days after service of the statement of claim.

If more than one Counterclaim is filed the documents must be titled, “First Counterclaim”, “Second Counterclaim” and so in the order in which the Counterclaims are filed.

A counterclaim may have more than one defendant, but ensure that the pleading is clear and precise as to the identity of each, and where they vary, what claims are made against each defendant to the counterclaim.

The Plaintiff and each other defendant to the counterclaim must file a Defence to the Counterclaim within 30 days after service: r.14.07.

Claims for Contribution or Indemnity – Order 11

A Defendant may join all necessary persons who are not already parties by way of counterclaim, if he has claims toward contribution or indemnity or any other relief relating to or connected with the subject of the action, by joining them as third parties to the proceeding under r. 11.01, using Form 11A..

The third party procedure allows all issues to be tried in one set of proceedings to which all interested persons are parties.

The practical result is that the third party will be bound by the result as between the plaintiff and defendant, which may (and hopefully will) preclude the necessity for separate proceedings between the defendant and third party.

The third party procedure is less disruptive and assumed to be more cost-effective.

The time for service of a third party notice is within 30 days after the time limited for service of a defence, and it must be served in the same manner as originating process: r. 11.04.

The time for appearance to a third party notice is the same as for appearance to originating process: usually 10 days: r. 10 days. Likewise, a defence to a third party notice must be filed and served within 30 days of service of the notice: r. 11.09.

Failure to file a defence to a third part y notice will give the person serving the notice the right to enter judgement as on a statement of claim: r. 11.11.

Reply

A party does not require leave to file a Reply, and if it wishes to do so, must serve it within 30 days after the service of the defence: r.14.05.

A Reply should only be filed when there is a fact or issue asserted in the Defence that the Plaintiff can rebut by pleading further facts, sometimes the effect of a document that is contrary to the matters pleaded in the Defence. Replies are not a restatement of the facts in the Statement of Claim. They are frequently unnecessary. They must not merely join issue: r. 13.13(1). This is because r.13.13(2) implies a joinder of issue  on the pleading last served.

Further pleadings

No further pleadings subsequent to a Reply may be served without leave: r. 14.06.

The Court is loath to allow subsequent pleadings.

Security for Costs

If you have doubts that a corporate plaintiff or a plaintiff resident overseas will be able to satisfy a costs order if your client is successful in the proceedings, you may need to make an application for security for costs. Make the application early in the proceedings. Order 62.

Security for costs is ordered to provide some protection to defendants from prosecution of unsuccessful proceedings by plaintiffs or counterclaimants. However, orders for security for costs are not available against all plaintiffs and are always in the discretion of the court.

The most common instances are where the plaintiff or counterclaimant is a corporation or an individual resident outside Australia.

Despite r 62.02(1)(a) below, it is uncommon to obtain an order for security for costs against an individual Australian resident.

Overseas plaintiffs are subject to the rule. It is the absence of property within the jurisdiction that is the relevant factor. It is a matter of establishing that the overseas plaintiff does not have property within the jurisdiction that is capable of satisfying a costs order. This is done by searches at the Land Registry in Victoria and if necessary at the Land Titles offices of each other state to conclusively establish that there is no real property in Australia.

There are three sources of power in relation to security for costs.

Rule 62.02 provides as follows:

‘62.02 When security for costs may be ordered
(1)     Where—

(a)     the plaintiff is ordinarily resident out of Victoria;

(b)     the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so;

(c)     a proceeding by the plaintiff in another court for the same claim is pending;

(d)     subject to paragraph (2), the address of the plaintiff is not stated or is not stated correctly in the plaintiff's originating process;

(e)     the plaintiff has changed his, her or its address after the commencement of the proceeding in order to avoid the consequences of the proceeding;

(f)     under any Act the Court may require security for costs—

the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.

(2)     The Court shall not require a plaintiff to give security by reason only of paragraph (1)(d) if in failing to state the plaintiff's address or to state the plaintiff's correct address the plaintiff acted innocently and without intention to deceive.’

As to (a), as noted above, this is not usually sufficient.

The Court also has power pursuant to its inherent jurisdiction to order security for costs (which must be exercised by a judge). When exercising its inherent jurisdiction, the court is not limited to the instances given in the rule: Lines v Tana Pty Ltd [1987] VR 641 (FC) at p. 643.

In relation to security for costs sought against a corporate plaintiff, s. 1335 of the Corporations Act 2001 provides, in a provision complementary to the court rules and the court’s inherent jurisdiction:

1. Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. 
2. The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs.

Delay in bringing an application for security for costs will prejudice the client’s position, as security for costs is only ordered in relation to future costs.

It is unlikely that an order will be made in relation to costs already incurred by the defendant if the defendant has delayed in applying: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd [1985] 1 NSWLR 114. The appropriate time to bring the application is before or at the time of filing of the defence. This is particularly so where disputes and subsequent multiple interlocutory applications for provision of particulars, amendment of pleadings and delivery of third party notices will involve the defendant in significant early costs.

Security for costs can be ordered against any plaintiff, including a counterclaimant and an appellant. If the counterclaimant is the real aggressor in the proceedings security may be ordered.

Bringing the Application against a corporate plaintiff/counterclaimant

No application should be made before a number of preparatory steps have been taken, because the grounds for ordering security for costs against a corporation, (that the plaintiff will be unable to satisfy an order for costs in favour of the defendant), must be established by evidence led by the defendant. Until a defendant can produce credible evidence, which will usually be in the possession of the plaintiff, the application will fail.

The first step in an application is to compile a skeleton bill or solicitor’s estimate of what the defendant’s likely future costs in the proceedings will be.

The bill must be a comprehensive estimate of the anticipated work to be done (prepared by a solicitor experienced in litigation who should set out :

• their number of years of experience
• by whom,
• at what rates per hour (or according to which scale of cost) and
• what steps are likely to be taken in defending the proceedings up until, say trial. Each step must be estimated by the number of hours to be spent at the appropriate rates per hour for each person involved and
• an estimate of counsel’s fees (including counsel’s hourly and daily rates),
• expert witnesses and other disbursements to be incurred by the defendant.

Other usual steps are:

(a)    Obtaining a copy of the corporate plaintiff’s last annual return from ASIC (if available), the amount of the paid up capital of the plaintiff and any assets held;

(b)    Carrying out index searches of any real property held by the plaintiff in Victoria and if, necessary, all other states and territories

Security for costs is not a complete indemnity to the defendant. The court orders security after discounting the amount set out in the solicitor’s estimate and only on a party-party basis. The court also orders security in stages, which may be up to completion of discovery, up to setting the matter down for hearing and then the costs of the trial. The court will not order a lump sum to be paid in relation to the totality of the matter.

Once the skeleton bill or solicitor’s estimate is ready, provide it to the other side by way of letter. The letter must also address the steps taken to date, what the plaintiff’s financial position is and the reasons why the defendant takes no comfort that the plaintiff will be able to satisfy a costs order.

The letter will then request that security be provided within, say, 28 days, for a reasonable discounted amount of the total costs. An appropriate claim is for one third to half of the costs in the bill. The letter should also request that the plaintiff provide copies of its financial statements (audited if available) for the last three years.
 
The letter and skeleton bill form the basis of the affidavit filed in support of any subsequent application.

At times a corporate plaintiff will provide security without the need for an application to the court. If a reasonable offer is made and rejected, the rejection is relevant on any subsequent application. It may be appropriate to provide a reasonable level of security to avoid financial disclosure and to minimise costs. Those are commercial decisions to be made after advice to the plaintiff.

If no consent is forthcoming an application will have to be made. The defendant carries the onus of establishing the need for security.

The most effective way of establishing the financial position of a corporation is to serve a Notice to Produce for the financial statements of the company for the last three years plus current books of account and banking records.

There may be opposition to production, but a Notice to Produce has similar force to a subpoena and a plaintiff seeking to resist production must be prepared to prove by affidavit or oral evidence that  production ought not to be compelled: r. 29.10(4). The defendant’s solicitors can then consider the financial position of the plaintiff company to determine whether an application for security is justified.

If it is, the application is made by summons and affidavit in support.

If more than ground of jurisdiction is relied upon, orders should be sought in the summons under each ground. The application should seek an order that the proceedings be stayed until the security is provided, and should seek a further order that in default of provision of security within 28 days (or any other period considered appropriate) the proceeding be dismissed. Costs usually follow the event.

The affidavit in support will have to annex an up-to-date company search of the corporate plaintiff, the letter you have already sent requesting security and any relevant documents evidencing enquiries made as to the company’s financial position.

Security for costs is to be given in the manner, at the time the court directs: r 62.03. Security is paid into court and held until the determination of the proceedings. Security can be provided in cash or by bank guarantee. Real property is only acceptable in exceptional circumstances due to the difficulties imposed on the Registry.

If security is ordered and if the plaintiff fails to comply with an order under the rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed: r. 62.04.

It should not be forgotten that an application for security for costs not only serves to secure payment of costs, but may also be a successful tactic to frustrate the plaintiff’s action. It may be impracticable for the plaintiff to provide the security so ordered, and may therefore result in an indefinite stay of the proceeding.

Interlocutory steps in the proceedings

Interlocutory steps are mini trials conducted before the final hearing, on application by summons and affidavits 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, provision of proper particulars, default in discovery obligations, and compelling answers to interrogatories.

Interlocutory applications increase the costs of proceedings and extend the period the matter takes to be ready for hearing. They are at times necessary and care should be taken in formulating the orders sought and in compiling the evidence in support. They are often technical and vigorously fought in the court.

If the Court has made orders ‘on the papers’, most of these issues will have been dealt with one way or another in those orders. If there has been a first directions hearing, they are also likely to have been anticipated there. It is therefore when the parties have sought to comply with the orders that these issues will arise.

Since the parties may ask for a second directions hearing, and the judge in charge of the relevant list is the person who will want to adjudicate on the matter, it will be a matter of asking the judge’s associate to place the matter back in the list for hearing.

Any interlocutory or other application is to be made on summons unless the Court otherwise orders: Order 46 The correct form is Form 46A. The summons will be returnable in the Practice Court if the case is not in one of the specialist lists or divisions.

Summonses must generally be supported by affidavit and be filed and served upon on each person affected by the application: r 46.05(1) within a reasonable time before the day for hearing named in the summons, and in no case later than 2.00 p.m. on the previous day (or the last day the Registrar’s office was last open).

Affidavits must comply with Order 43, and in interlocutory applications, may ‘contain a statement of fact based on information and belief if the grounds are set out’: r. 43.03(2).

The application must:

(a)    Identify each party or person to whom it is addressed, and state the address of each person who is not a party;

(b)    describe the order sought

(c)    State the date and time when, and the court where, the application is to be made, and

(d)    state the name of the solicitor who issues it.

There is no requirement to specifically claim costs in the motion but it is always good practice to seek the appropriate costs order.

An application can be served on a party’s solicitor or address for service provided in the their Notice of Appearance.

An application need not be personally served if the person on whom it is to be served: ordinary service is sufficient: r. 6.07.

If an application has been served on a party and there is no appearance the Court may hear and dispose of the motion in the absence of the party if satisfied that the summons was duly served: r. 46.07.

Applications not in the specialist lists are generally listed at 9.30 am before the Master in the Practice Court. Applications in the various lists must be listed before one of the judges in charge of those lists. Hearing days vary.

Summary dismissal

A defendant faced with what it considers to be an unsustainable claim by the plaintiff may apply for summary dismissal pursuant to Order 23.

As in the case of a plaintiff seeking summary judgment, the test applied is that the claim must be ‘so objectionable that no amendment to the pleading can cure any defect, and so it is only just that the proceedings be terminated summarily’ [Cook, p.129].

Rule 23.01 provides (in relation only to claims):

(1)    Where a proceeding generally or any claim in a proceeding -

(a.)    does not disclose a  cause of action; orr

(b.)    is scandalous, frivolous or vexatious; or

(c.)    is an abuse of process of the Court -

The court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Rule 23.03 provides:

On application by a defendant who has filed an appearance the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.

The court may receive evidence on the hearing of the application for an order under either r. 23.01 or r. 23.03 by affidavit or, if it thinks fit, orally: r. 23.04(1). The affidavit usually goes only to the question of costs: Cook, p.130.

In considering the application the court will have to be satisfied the plaintiff’s action is absolutely hopeless: Dey v Victorian Ralway Commissioners 1949) 78 CLR 62 at 91 per Dixon J. As noted below at Summary Judgment, the remedy is a drastic one as it prevents the plaintiff from bringing the claim. As Kirby J. said in Lindon v Commonwealth of Australia (Nº2) (1996) 136 ALR 251 at p. 256:

‘the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising case into a successful argument.’

Summary Judgment

Summary judgment is available to a plaintiff in circumstances where the defence filed is not sustainable.
 
The test which is that "the matter must be so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, or be “so manifestly faulty that it does not admit of argument”: see General Steel Industries Inc v Commissioner for Railways (NSW) (1949) 78 CLR 62 at 91. This is a high bar to a plaintiff.

Rule 22.02 provides:

22.02 Application for judgment

(1)     Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against that defendant on the ground that the defendant has no defence to the whole or part of a claim included in the writ or statement of claim, or no defence except as to the amount of a claim.

(2)     Paragraph (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or seduction or to a claim based on an allegation of fraud.

(3)     Where the writ or statement of claim includes a claim within paragraph (2), the plaintiff may apply for judgment in respect of any other claim and continue the proceeding for the first-mentioned claim.

(4)     Except by order of the Court, the plaintiff shall make only one application for judgment under this Order.

The Application must be supported by an affidavit:

22.03 Affidavit in support

(1)     An application for judgment shall be made by summons supported by an affidavit—
(a)     verifying the facts on which the claim or the part of the claim to which the application relates is based;
and
(b)     stating that in the belief of the deponent there is no defence to that claim or part, or no defence except as to the amount claimed.

(2)     Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence Act 1958 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.

(3)     An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.

(4)     The plaintiff shall serve the summons and a copy of the affidavit or affidavits in support and of any exhibit referred to therein on the defendant not less than 14 days before the day for hearing named in the summons.

It may be that the court strikes out part of the claim or the application is unsuccessful. In those circumstances the court will give directions for the further progress of the matter. The precedent application therefore seeks directions in the alternative.

In considering the application the court will have to be satisfied that there is absolutely no triable issue. The remedy is a drastic one which shuts a defendant out from defending the claim. In the words of Herring CJ and Lowe J in Aust. Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 334:

‘…where there is a real case to be investigated either in fact or in law , leave to defend should be given.’

The number of cases in which summary judgment is granted is comparatively few.

Stay of judgment pending determination of counterclaim

If the court gives judgment against a party under rule 22.02 and that party has a counterclaim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the counterclaim: r. 10.07 - but note that this rule does not mention judgment in default, only admission of the claim.

Separate Decision of Questions

The Court may, by order, give any direction for the conduct of the proceeding: r. 34.01.

The Court may make orders for the decision of any question separately from any other question, may state the question or give directions at any time:  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 those circumstances it is desirable to seek a separate determination of the question under r. 47.04. The Court may also make such an order on its own motion

If you are of the view that separate determination is appropriate first write to the other side setting out the reasons and seeking consent. If no consent is forthcoming orders will have to be sought by application with affidavit in support.

This often arises where there is a time limitation defence under the Limitation of Actions Act 1958, or a litigation guardian must be appointed before recovery may be satisfied.

However, the court will not embark upon a separate determination unless:

1. The question to be determined can be formulated by the parties with some precision: Jacobson & Ors v Ross & Anor [1995] 1 VR 337 (CA) by Brooking J at p. 340-341, J.D .Phillips J concurring.
2. The relevant evidence identified; and
3. The practicalities and costs of the exercise are not out of proportion to the issue to be determined.

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 & 9.13  provide:

r 9.12 Consolidation or trial together

(1) Where two or more proceedings are pending in the court, and:

(a)     Some common question of law or fact arises in both or all of them;
(b)     The rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or
(c)     For any other reason it is desirable to make an order under this rule:

the court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.

(2) Any order for the trial together of two or more proceedings or for the trial of one immediately after the other shall be subject to the discretion of the trial Judge.

r 9.13 Conduct of proceeding

The court may give the conduct of the whole or any part of a proceeding to such person as it thinks fit.

If you are of the view that consolidation is appropriate, first write to the other side setting out the reasons and seeking consent. If no consent is forthcoming orders will have to be sought by application and affidavit in support.

Cook states: ‘It is normal for related actions simply to be tried together rather than consolidated: orders for consolidation are usually confined to cases where several actions have been brought which might have been joined in one writ: Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97. (Cook at p. 63).

It is appropriate to seek consolidation where the client is being sued by one plaintiff in a number of proceedings arising out of the same facts and circumstances. One instance is where a de facto relationship ends and a plaintiff not only sues for relief under the Relationships Act 2008 but also claims other entitlements against corporate entities related to the defendant.

The directions usually sought are that:

1. The proceedings be heard together;
2. Evidence in one be evidence in the other; and
3. Such further or other orders as the court sees fit (The court may have a view on other issues such as discovery or other pre-trial procedures and make appropriate directions in relation to them).

Interrogatories – Order 30

Interrogatories are questions administered to another party that must be answered and verified by affidavit r. 30.04 Neither the interrogatories nor the answer must be in a prescribed form. For an example, see Form 19: proposed interrogatories.

Interrogatories are administered to elicit relevant admissions in the proceedings.

In general in the County Court, interrogatories and discovery are forbidden as a matter of course, unless the Court otherwise orders: r. 34A.17, The following commentary therefore expects that either the case is not in one of the specialist lists, or has been the subject of any order allowing interrogatories.

Furthermore, taking objections to interrogatories has become an art form, so that all but the most carefully crafted interrogatories are consigned to the bin by technical objections. Even the best of drafting can, by omission of a comma or parenthesis, be conveniently misinterpreted as ‘too wide’ etc. The efficacy of interrogatories as a tool for limiting the issues must therefore be doubted.

Interrogatories must not be objectionable because:

1. they do not relate to any question between the party interrogated and the interrogating party;
2. they are unclear or vague or too wide;
3. they are oppressive;
4. they require the party interrogated to express an opinion which he is not qualified to give, or
5. of privilege.

Objection can be taken to any interrogatory in any of these categories: r. 30.07(1)..

In elucidation of the description in category (a), r.30.07(2) provides that that category includes an interrogatory the sole purpose of which is to -

1. impeach the credit of the party interrogated;
2. enable the interrogating party to ascertain whether the he has a claim or defence other that which he has raised in the proceedings;
3. enable the interrogating party to ascertain the evidence by which the party interrogated  intends

to prove his case, including the identity of witnesses.

A party must answer on affidavit  r.30.04. Answer to Interrogatories within 42 days (r. 30.04(b))or the time specified in the order. The Answer must first set out the question and then the answer.

Failure by a plaintiff to comply with an order to answer interrogatories may result in an order that the proceeding be dismissed or that a defendant’s defence be struck out: r. 24.02.

The procedure on default is to serve a default notice in Form 30A. The form gives the interrogated party 7 days to answer or face an application for dismissal or the claim or striking out of the defence. Such an application must be made on notice, and in fact allows the recalcitrant interrogated party more time in which to comply.

If, however, the matter comes before a judge, the dire consequences may become reality.

A party may tender one or more answers or part of any answer to interrogatories in the proceedings without tendering the others: r. 30.11(1), but the Court may look at the whole of the answers to see if ‘any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part’ and require the whole answer or part to be tendered: r. 30.11(2).

Discovery

Discovery is usually the first step after the close of pleadings. It is a process of identification, listing and production of documents for inspection by the parties to proceedings.  Its purpose is to prevent surprises at trial where documents may be tendered of which a part is unaware.

Just as interrogatories have been abused and made redundant by technical refusal to answer, discovery has become the bane of the litigator’s existence. It is frequently the case that boxes after boxes of documents, computer printouts, computer storage disks, invoices, vouchers, letters and memos are accumulated and exhaustively listed in the expectation that amongst this dross a single document of interest in the proceedings might be found. Affidavits of documents are often of enormous length, and despite this, documents are sometimes so poorly described that their potential importance is hard to discern. The courts have increasingly frowned on this kind of snow job, and have more recently forbidden automatic discovery.

Prompted by these reasons, as with interrogatories, discovery is no longer permitted in the County Court without an order: r. 34A.17.

Discovery is only available of documents relevant to a fact in issue. Under r.29.02, after  the close of pleadings, and subject to the specialist list restrictions, a  party may deliver a notice for discovery. Otherwise, the parties must convince the judge in charge of their list to order discovery. The judges have power to limit discovery to documents or classes of documents: r. 29.05, or to order particular discovery of documents which are or may have been in a party’s possession: r. 29.08.

The rule requires discovery by a party of ‘all documents which are or have been in his possession relating to any questions raised by the pleadings’ r 29.02(1).

Since discovery occurs after the close of pleadings, the questions raised by the pleadings will be clear. You will have to determine at this stage what documents are relevant to the hearing of the claim.

The best method is always to consider the elements of the claims and defences pleaded when drawing up categories of documents.

To prepare the verified list, put the documents into categories such as bank statements or invoices, letters (in date order) etc. Where there are bundles of, say, bank statements, you can discover them in a bundle identified as “Statements of Account number in the name of …..(person)  at [NAME OF BANK] for the period ….. to ……

After the documents are organised, number them by placing a small sticker (small coloured dots are often used) on the top right hand side of the first page of the document or bundle of documents. Write the number of the document or the bundle on the sticker. Then compile the list from the numbered documents. If a document comprises several pages, the number of pages should be recorded in the affidavit in a separate column, and it may be necessary to allocate secondary numbers to those pages, so that a document numbered 46 may comprise three pages numbered 46.a, 46.b and 46.c. this assists the Court in referring to the relevant passages in a document.

Documents not produced may not be admissible at hearing.

Ensure that privileged documents are not produced but are specifically noted in the relevant part of the affidavit.

Ensure that appropriate claims for client legal privilege are made. If confidential information or commercially sensitive information is involved, appropriate restrictions and undertakings should be sought from the inspecting party.

When discovery is ordered parties must serve affidavits verifying lists of documents (Form 29B) and complete any inspection of the other side’s documents within the timetable. The form identifies the categories of documents:

• Schedule 1, part 1 - relevant documents
• Schedule 1, part 2 - documents for which privilege is claimed
• Schedule 2 - documents which were, but are no longer in the possession of the deponent or the party represented, stating when they were last in their possession

Note that the form does not give any guide as to the form of the lists in the schedules.

When compiling an affidavit of documents, the following column headings are usually sufficient:

• Serial number of the entry, starting at 1 (the affidavit will then show, at the end, the total number of documents discovered)
• Date of each document
• Number of pages
• type of document (e.g. letter, invoice, bank statement, memo, computer disk, drawing, video recording etc)
• description (giving sufficient detail to enable quick identification, and possibly naming the writer or recipient or both)
• if many documents contain monetary amounts, you could add a column for ‘amount’

If a party’s discovery is in your view inadequate, first write to them and point out the deficiency. If the required documents are not produced, with a supplementary affidavit, within a reasonable time orders can be sought on application and an affidavit will be required. The application will be set down for hearing before a list judge or the Practice Court.

Discovery is an ongoing obligation up to and including trial: r. 29.15. If further relevant documents or things come to a party’s notice they must serve one or more supplementary affidavits of documents and make the further items available for inspection.

In personal injury actions and workers’ compensation claims, special reasons are required before discovery will be ordered: r 29.02(4).

The directions may be:

1. The parties to serve categories of documents for discovery by DATE.
2. The parties to serve verified lists of documents by DATE.
3. The parties to complete inspection by DATE.

Affidavits

After completion of discovery you will have to prepare the evidence in the case. This is often given by affidavit but note that in some common law actions evidence is given orally, e.g. in defamation. Refer to the Practice Notes for the relevant list.

Affidavits are evidence in writing usually ordered by the Court to minimise the time spent at hearing in leading oral evidence.

All of the evidence led in the case, whether it is in written form or given orally must be in admissible form so all affidavits must comply with the rules, in particular Order 8 as to form and Order 43 as to content, and with the Evidence Act 2008 (which is substantially similar to the Commonwealth and New South Wales Evidence Act 1995). . If they do not, objections will be taken to them at the start of the trial and they may be ruled inadmissible in the proceedings, wholly or in part.

It may seem obvious but what is often forgotten when preparing affidavits is that you should go back to the pleadings and consider the matters you have to prove or deny.

If you are in a dispute about a contract, the first thing the Plaintiff will have to prove is the contract. Someone will have to give evidence annexing the document and then go on to give the evidence as to the circumstances of the breach and the loss suffered. Each element of the claim and any defence raised must be the subject of evidence. If it is not the claim or defence will fail.

Order 43 sets out the requirements for affidavits. There is no prescribed  correct form for a general affidavit in the County Court. The LEAP precedent form will ask you questions as to the name of deponent, address and occupation and date of swearing or affirming. Ensure all the requested details are filled in.

Affidavits must be divided into numbered paragraphs, each paragraph, as far as possible, dealing with only one issue: r. 43.01(4). Regrettably, many practitioners ignore this rule, and allow paragraphs to meander aimlessly for whole pages. This should be avoided at all costs, because it makes locating information very difficult, and also renders reading the document a serious chore, which alienates the Court.

The pages of affidavits must be consecutively numbered. It only annoys the Bench if he or she has to search an unnumbered affidavit to find the page or paragraph you are referring to. Judges and Registrars have been known to return affidavits without page numbers to be corrected by an embarrassed practitioner during a hearing.

If the deponent of an affidavit requires any alteration, deletion or addition to the affidavit the change must be initialled by the deponent and the prescribed witness. If it is not the affidavit cannot be used without the leave of the Court: r 43.05.

Each page of an affidavit must be signed at the bottom of the page by the person before whom the affidavit is made: r 43.01(6), and signed at the end by the deponent: r. 43.01(5).

The person before whom an affidavit is made, such as a barrister or solicitor or Justice of the Peace, that person must also add tin type, by a stamp or in legible writing their name, address and a statement of the capacity in which they have authority to take the affidavit: r. 43.01(7).

Under r. 43.02, affidavits by persons who cannot read cannot be used unless they carry a certificate by the person before whom they are sworn that:
(a)    the affidavit was read in his presence to the deponent;
(b)    the deponent seemed to him perfectly to understand it; and
(c)    the deponent made his signature or mark in his presence.

Any conversations deposed to in an affidavit are always given “in words to the effect” but must be in first person speech, “I said”, “he said”. For example,

“On 1 May 2007 I had a conversation with the defendant in words to the effect:

Me:        “I want to order three dozen widgets”.

Defendant:    “Do you want the large widgets or the small widgets”?

Me:    “I want the large ones and you have to deliver them on Thursday to Broken Hill”.

Defendant:    “Fine, we can do that”.

Annexures and Exhibits

It is forbidden to annex documents to an affidavit: r. 43.06. Instead they are to be exhibits to the affidavit. The form of the certificate identifying an exhibit to an affidavit is Form 43A. An exhibit note identifies the exhibit by letters and numbers. The letters are the initials of the deponent, the numbers are consecutive from 1. The deponent does not sign exhibit notes, but they are signed by the qualified witness, who again adds the stamp or qualification.

The form of the certificate requires not only the usual identifying certificate, but also the addition in the bottom right hand corner of the certificate of a title in at least 20 point font size the distinguishing mark of the exhibit and ‘a brief and specific description of the exhibit’: r. 43.06(3).

Some practitioners make the old-fashioned error of numbering exhibits A, B, C etc. This is unhelpful in the extreme to other parties and to the Court. Meaningful abbreviations of the deponent’s name are preferable. If, say. Jane Monica Smith has to file two affidavits, both with exhibits, one could differentiate between them by using ‘1JMS 1’ and ‘2 JMS 1’. As another method, the whole surname could be used: ‘Smith 1’. It does not take much ingenuity to hit on a simple but logical code.

The certificate is placed upon a separate page which is attached to the first page of the exhibit.

It must state:

“This is exhibit “PLD 1” now produced and shown to Pauline Louise Donne at the time of swearing her affidavit on [date affidavit made].

Signature of witness
…………………………………………………………………………
A current legal practitioner/JP/A Member of the Police Force of or above the rank of Sergeant or for the time being in charge of a police station etc
[Print name of witness and where necessary JP registration number]”
[Print address of witness]

Always make an index of exhibits, giving the exhibit number a short description of the document and its page number and place it at the front of the exhibits. It makes the running of the trial easier.

Exhibits are not filed. However, copies should be served with the affidavit or a request for production may be made: Re Hinchcliffe [1895] 1 Ch 117..

The original exhibits are tendered at hearing.

Filing and Service of Affidavits

Affidavits must be filed if they are to be relied upon: r. 43.09(1). The rules permit electronic filing: r. 43.09(3).

All affidavits must be served on the other parties to the proceedings at their address for service. Where a party is represented service is effected by service on the solicitor.

Affidavits must be served:

1. by the time limited by the rules or by an order of the Court;
2. with a sealed copy of the summons not later than 2 p.m. on the day before an application in respect of which the affidavit is filed: r. 46.05.

Don’t attempt to serve extensive affidavits in the days just before a hearing. The inevitable result will be a request by the other side for an adjournment and a costs order against your client.

Where an affidavit of service is required:

1.    An affidavit of service of a document should clearly identify the document, but need not annex a copy of the document except in the case of originating process: r. 6.17(3).

2.    Rule 6.17 provides that an affidavit of service must state:

(a)    by whom service was effected;

(b)    and the hour of the day, day of the week and date on which it was served;

(c)    the place of service

(d)    the manner of identification of the person served..

See above at Affidavits for the form and content of affidavits.

Expert witnesses

It is important to recall that order 34A largely governs the use of expert witnesses in the specialist lists of the court: see Annexure 1. 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 44A.

Rule 34A.19.1 provides that parties are precluded from relying on expert evidence at trial unless they promptly seek directions from the court in that regard at a directions hearing. The court will order service of a copy of the expert report on the other party. Expert reports will not be admitted in evidence at the trial, without an order of the court or consent of the parties, unless a report has been served in this way: r. 34A.19.1(3) see also r. 44.05.

The following comments do not apply to medical and like reports under order 33: see r 44.02(3).

The court will give general directions including a:

1. Direction as to the time for service of experts’ reports,
2. Direction that expert evidence may not be adduced on a specified issue,
3. Direction that expert evidence may not be adduced on a specified issue except by leave of the court,
4. Direction that expert evidence may be adduced on specified issues only,
5. Direction limiting the number of expert witnesses who may be called to give evidence on a specified issue, (although it should be noted that last minute flurries of expert reports are a common occurrence),
6. Direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,
7. Direction providing for the appointment and instruction of a Court-appointed expert in relation to a specified issue,
8. Direction (e.g. under r.44.06) requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue, and to provide a joint report,
9. Any other direction that may assist an expert in the exercise of the expert’s functions,
10. Direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

Expert evidence must be given by exchange of one or more experts’ reports: r 34A.19.1.

 
An expert witness must comply with the expert witness code of conduct: r 44.01. The expert witness code of conduct is set out at form 44A and provides:

EXPERT WITNESS CODE OF CONDUCT

1.      A person engaged as an expert witness has an overriding duty to assist the court impartially on matters relevant to the area of expertise of the witness.

2.      An expert witness is not an advocate for a party.

3.      Every report prepared by an expert witness for the use of the court shall state the opinion or opinions of the expert and shall state, specify or provide:

    (a)     The name and address of the expert;
    (b)     An acknowledgement that the expert has read this code and agrees to be bound by it;
    (c)     The qualifications of the expert to prepare the report;
    (d)     The facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed);
    (e)   
         (i)     The reasons for,
        (ii)     Any literature or other materials utilised in support of,
        (iii)     A summary of—
        each such opinion;
    (f)     (If applicable) that a particular question, issue or matter falls outside the expert's field of expertise;
    (g)     Any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;
    (h)     A declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the court;
    (i)     Any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and
    (j)     Whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.

4.     Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause.

5.     If directed to do so by the court, an expert witness shall—
    (a)     Confer with any other expert witness; and
    (b)     Provide the court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing.

6.    Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement.

Allocation of a hearing date

Order 34A provides that setting down is only by order of the Court: r. 34A.26. This does away with the need for a certificate of readiness.

The regular directions hearings, and the constant feel of the Court for the pulse of the proceeding, together with the early 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 the matter should be set down, or, in those lists where a trial date is fixed early in the interlocutory stage, whether that date can be adhered to or should be vacated.

The Court will have allocated a putative trial date, as part of the initial directions which, it will be recalled, have probably been made ‘on the papers’ in many cases. 

Standard Directions – Hearings and Mediation

If you thought you’d had all the directions from the Court and complied with them the bad news is - there’s more!

After allocation of the hearing date and prior to hearing the Court may also require the following to be carried out and otherwise noted:

1.    Chronology

• Plaintiff's solicitor is commonly required to prepare a full chronology of relevant events, a copy of which is to be served upon the other party/parties at least 3 clear days prior to the hearing date.
• Service of the chronology on the other parties well in time often leads to refinements being made before trial. The usefulness of a well-drawn chronology cannot be over-emphasised, even though it is not required by the rules.

2.    Medical and Expert Reports

• Remembering that the delivery of expert reports is largely governed by prior directions in the proceeding, and that copies of all of these will have been incorporated into the Court Book, there should be no need to identify any of these documents separately.
• Working copies of all medical reports, the chronology and all other documents which any party proposes to tender should be available for the Trial Judge in the Court Book. In the case of trial by a Judge without a jury, copies of medical reports must be delivered two days before the trial date to Registrar: r. 33.10(3).

3.    Particulars of Special Damages

• Each plaintiff must prepare an up-to-date list giving particulars of her or his special damages. This is to be served upon the other party/parties prior to the hearing date and to be provided to the Trial Judge.

4.    Adjournments

• All cases should be ready to proceed on the hearing date. Adjournments will only be granted in exceptional circumstances, such as death or serious illness of a party. Procedural problems such as unavailability of witnesses are not sufficient. The Court may adjourn on any terms: r.  49.03, but will decide an application according to the justice of the situation: see Cook, p.327 of examples where an adjournment has been granted. Adjournment will almost always be subject to terms as to costs.
• As stated in Smith v Gannawarra Shire Council [2002] VSCA 69 at Para. 35, per Winneke P:

• Any application for an adjournment should be made to the Judge in charge of the list prior to the trial date by way of application with affidavit in support and must be made at the earliest possible time.

Subpoenas to produce documents

The County 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.

Subpoenas and Notices to Produce generally 

Subpoenas are issued to third parties pursuant to Rules 42 and 42A. The latter rule is for production to the Registrar, using Form 42AA, the former for the purpose of attending to give evidence, for which the correct form is Form 42A.

Form 42A covers both subpoenas to produce documents and to give evidence. It is a long and detailed form, which explains how the addressee (the term used in the Rule) may comply, and listing the penalties for failure to do so.

Any subpoena must be personally served a reasonable time before the date specified in the subpoena for attendance or production: r. 42.06. Conduct money must also be handed to the addressee at the time of service.

Serve the subpoena promptly and allow an adequate time before the return date for the party to comply. Failure to do so may result in the subpoena being disregarded or set aside. However an addressee must comply with a subpoena if he or she has actual knowledge of the subpoena and its requirements, even if it has not been served, by the last day for service of the subpoena: r. 42.06(3).

There is no necessity to issue subpoenas to parties. The correct procedure before trial is to issue a party with a Notice to Produce, Form 29C pursuant to r 29.09 (which relates to documents in an affidavit of documents) or r. 29.10 (which relates to documents identified in pleadings of miscellaneous affidavits). Respondents to notices to produce under r. 29.10 may take objections to production under r. 29.10(4) on grounds of privilege or lack of possession of the document.

The documents sought in the notice may be produced to the Court on trial (and this is usual), or to a party, or to the Court Registry.

Notices to Produce are not a substitute for discovery. If a party requires discovery directions should be sought at the first return date. A general obligation of discovery is no longer available in most County Court lists as noted above in the discussion of Order 34A. 

An example is when a party pleads the effect of a document and not its terms: “Letter from the Defendant to name about subject dated”. The recipient of the letter may not be a party. The production procedure enables production of the document without the necessity to issue a subpoena.

A pleading might also refer to a thing, for example defective goods. Production of the goods would be sought for inspection by an expert. Any inspection of “things” should be in the first instance by application to the Practice Court of Judge in charge of the list, where appropriate orders to deal with production of the specific thing can be made.  When dealing with production of things a party cannot be compelled to produce say a bank account referred to in an affidavit. The Notice to Produce can only seek documents relating to the bank account.

The obligations imposed by a Notice to Produce are comparable to those imposed by a subpoena.  The Court applies the same considerations in any application to set aside Notices to Produce as it does to subpoenas. Failure to comply with a notice to produce may be dealt with as any other breach of the rules, on application by the aggrieved party.

The Court has general power to set aside a subpoena on application pursuant to r 42.04. The application must be made on notice to the issuing party and supported by affidavit. The affidavit will annex the correspondence between the parties in relation to the request for production to which objection is made, and the grounds relied upon to set it aside will be set out.

An application to set aside a Notice to Produce, or an application to enforce provision of documents is brought by way of application pursuant to r. 24.02 (where an order for production has been made) or r.29.07 (where an order for discovery has been made), or r. 29.11 (failure to comply with notice to produce)..

Costs in default of attendance

Failure to comply with a subpoena is a contempt of court and punishable accordingly: r. 42.12.

The court may order any person to attend for the purpose of being examined, or any person or corporation for the production of any document or thing specified: r. 40.12, and if the person or corporation fails to attend in accordance with the order, may, if the order was to give particulars, discovery or answers to interrogatories, dismiss the proceeding: r. 24.02. This is in the nature of dismissal for want of prosecution, and the proceeding may be stayed until the costs are paid: r. 24.03 This applies to counterclaims and third party claims: r. 24.04. The power under these rules is in addition to its inherent power to dismiss for want of prosecution: r. 24.05.

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 list will include annexures and exhibits to affidavits and further relevant documents that may have been discovered or produced on subpoena.

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 compile the list of contents at the start, with the other parties contributing in turn.

One of the consequences of this process is that there are seldom any important documents to be added at a late stage in the proceeding, and the risk of being taken by surprise is greatly reduced. Application to the judge is necessary to make any significant changes to the list.

Adjournments

As noted above under ‘standard directions’ the Court will only grant adjournment applications where there are very good reasons to do so. 

Legal practitioners must ascertain the availability of the parties and their witnesses before taking a date for trial or arbitration. As also noted above, the need for an order to set down a case for trial means that the parties must be ready to satisfy the Judge’s enquiries before the case will be set down.

An application for adjournment of a trial or arbitration is made by application and supporting affidavit and must be made at the earliest possible opportunity.  The Court may require the party in default to show cause why its statement of claim or cross claim should not be dismissed or its defence struck out.

As a rule, the Court will make costs orders for costs thrown away by reason of the adjournment and may even call on legal practitioners to show cause why they should not pay the costs of an adjournment personally or reimburse their client for those costs.

The Consolidated Practice Note 2002 provides:

When prior to the trial a party wishes to adjourn or reinstate a trial date, that party’s solicitor must file and serve a Form 46A summons with an affidavit in support and pay the appropriate fee. The application will be fixed for determination before the Judge in Charge of the Business and Damages Lists if it is made at least 60 days before the trial.
In case of an application made within 60 days of the trial date, the matter will be fixed for determination in the Practice Court.
Any application for adjournment should be made well before the trial date, except in cases of emergency. If an application for an adjournment is made on the day of the trial itself, it will generally be referred by the Trial Judge to the Judge in Charge of the Business and Damages List for hearing during the course of the same morning. The Trial Judge will then be free to take the next available case, and if the application for adjournment is refused, the case will be referred back to the Judge in Charge of the Reserve List for re-allocation on the same day.

Any adjournment or reinstatement order made will normally include an order that the applicant party should pay a trial hearing fee (or further trial fee) for the new trial date.

The court will also consider on any application for adjournment whether or not the costs of the adjournment or reinstatement, including the costs thrown away in the conduct of the proceeding by reason of the adjournment and any alterations to pleadings made at the time of the adjournment, should be paid by any defaulting party or by the legal representatives of that party.

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 (Form 35A) requiring the other party to admit material facts: r.35.03. or the authenticity of documents: r. 35.05.

The best time to issue the notice is after the matter is set down for hearing.

The procedure is designed to limit the issues in dispute at hearing and to reduce disputes about the admissibility of documents.

It also allows the party in receipt of the notice to make voluntary admissions for the purposes of the hearing by not disputing the notice.

A party disputing any fact: or the authenticity of a document must serve a notice disputing the fact: r. 35.03(2) using Form 35B within the time specified in the notice which is not less than 14 days after service of the notice.

A party who serves a notice disputing facts or documents which are subsequently proven in the proceedings will be liable for the costs of proof: r. 63A.18.

At the conclusion of the notice to admit procedure, your matter should now be ready for hearing, save for notices to produce and subpoenas.

Briefing counsel

If necessary, brief counsel to advise and appear at trial.

A demonstration of the use of Precedents

To demonstrate the range of precedents available in the Guide and to illustrate how they are used in a particular matter, one set of precedents is based on a set of facts in a debt recovery that escalates when a counterclaim is brought alleging a course of conduct between the parties and a consequent estoppel issue. The precedents deal with the set of facts from the issue of a letter of demand, issue of proceedings, a defence and counterclaim, mediation and terms of settlement.

The facts:

A dispute arises between two companies, one a supplier, the other a customer holding contracts for a manufactured item which requires the supplier’s product as a component.

There is a late delivery by the supplier, as a consequence the customer refuses to pay the supplier’s tax invoice and asserts that it has suffered loss because one of its customers has cancelled a large order because of failure to deliver on time.

The supplier issues a letter of demand and the defendant’s response raises significant issues later pleaded in the proceedings.

The pleadings disclose that the parties have been trading under the Plaintiff’s standard terms and conditions and written Job Orders issued by the Defendant for a number of years but have also been engaging in a course of conduct whereby an employee of the Defendant telephones to stipulate times for delivery which are not always incorporated in the Job Order.

The Defendant relies upon the course of conduct in a counterclaim, alleging damages arising from inability to satisfy its orders within the stipulated time.

Commercially there is a need to attempt to maintain the trading relationship so the Plaintiff makes a Calderbank offer before commencement of proceedings which is not accepted because there is no offer in relation to the defendant’s loss. The parties will also go to mediation.

The Defendant makes an Offer of Compromise which is ultimately accepted and Consent Orders are made in the proceedings.

Any of the following example precedents can be adapted for use in a range of matters, regardless of the list or division of the Court.

• Example letter of demand  
• Example Response to Letter of demand  
• Example Statement of Claim - Writ   
• Example Request for further and better particulars  
• Example Defence  
• Example counterclaim  
• Example defence to counterclaim  
• Example offer of compromise by the Plaintiff  
• Example offer of compromise by the defendant  
• Letter to client advising on mediation  
• Example ADR Order - referral to mediation
• Example Mediation Position Paper - Plaintiff  
• Example Mediation Position Paper - Defendant  
• Example affidavit of defendant  
• Example consent orders  
• Example Litigation Deed of Release

 

Acting for the Defendant

NOTE: The rules of the Supreme Court in Civil proceedings (Supreme Court Rules Chapter I Supreme Court (General Civil Procedure) Rules 2005 No. 148 and the County Court Rules (County Court Civil Procedure Rules 2008 No. 148) are in large measure identical. Where they differ, explanation is given. Because of the similarity, procedures and citations are often the same in both courts.

References to ‘Cook’ are to the Annotated Rules of Court 2008’, Richard Cook, Australian Law Books, 2008.

The division of the work of the courts into somewhat specialized areas differs from County to Supreme Court, and this reflects both the differences of jurisdiction and indeed, of the nature of the cases issued in each.

In the Supreme Court, there is the Commercial Court, presided over by eight judges and Associate Judges, in five lists.

The other lists, apart from the Civil Management List, which includes all matters which do not fit into a specialist list, are:

Admiralty
Building Cases
Commercial
Corporations
Intellectual Property
Judicial Review and Appeals
Long Cases
Major Torts
Personal Injuries
Valuation Compensation and Planning
Victorian Taxation Appeals

A number of these categories is similar to County Court Lists or Divisions, prescribed under Order 34A, however the procedures, especially interlocutory procedures are quite different.

In the County Court, the lists specified under Order 34A are:

Damages and Compensation
Commercial

GETTING THE MATTER UNDERWAY

Your client will come to you about a dispute in which they already are or are likely to be the defendant in proceedings in the County Court. The amount in dispute will be in excess of the Magistrates’ Court’s jurisdiction of $100,000.

The dispute may be a debt recovery or a breach of contract, a building or engineering dispute, a damages claim in personal injury or a dispute between neighbours. In each of these cases the County Court has jurisdiction to hear the claim but certain limitations apply which are discussed below at “Jurisdiction”.

The Guide will assist you to deal with common County Court civil matters in a straight-forward, cost effective way up to settlement and, if necessary, to complete interlocutory steps up to trial.

The advice on the structure of the Court and its procedures will give you the information you need to comply with the Court’s procedures.

The Guide also includes a library of precedents including correspondence, pleadings, interlocutory process and other documents.

Initial Instructions

Use the appropriate Instruction Sheet in the initial conference with the Client:

•    County Court

•    General Civil claim
•    Defamation
•    Medical
•    WorkCover

•    Motor Vehicle Accident
•    Building case

•    Serious Injury

Send the client a cost agreement.

Jurisdiction

The County Court is a creature of statute and its jurisdiction is limited to those powers provided for in relevant Acts and the implied powers necessary to allow it to act effectively within its jurisdiction and to secure the proper administration of justice throughout Victoria. See s 4 County Court Act 1958.

Sec 4. Establishment of the County Court

The Court has jurisdiction to hear any action of any kind which is not reserved to the Supreme Court by other legislation. There is no  monetary jurisdictional limit: see s 37(1) County Court Act 1958.

Sec 37. Extent of jurisdiction

Claims under the Relationships Act 2008 are no longer limited to property to a value of $200,000: s 37(1) County Court Act.  I(All of this has been overtaken by legislation in recent days. This jurisdiction now falls to the Family Court]

Testators’ Family Maintenance or family Provision claims can be brought under the Part IV of the Administration and Probate Act 1958 but the Supreme Court is generally a more appropriate venue for these claims, unless the value of the estate is comparatively small. See the Step by Step Guide to Testators’ Family Maintenance claims.

All equitable defences are available in the County Court.

Injunctions

Jurisdiction

The County Court’s injunctive power is unlimited.

The power extends to granting Mareva-style and Anton Piller asset preservation orders under Order 37B, in proceedings within its jurisdiction: s 37 County Court Act 1958.  See also practice Notes 1-2007 and 2-2007. 

However, this is not the place to make an urgent application for an injunction. If you are in that position approach the Supreme Court. See the Step by Step Guides to the Supreme Court which provide commentary and precedents in relation to injunctions.

Service of Injunctions

The Court may grant an interlocutory injunction, before or after the commencement of a proceeding: r. 4.08, r.38.01.

When the injunction is granted, give consideration as to the most effective manner of bringing the injunction to the defendant’s notice and make appropriate submissions to the Judge. Orders can be sought for service of an injunction by facsimile, electronically and even to the voicemail of a mobile telephone, depending upon the circumstances and the urgency of the matter.

Costs of Injunctions

Rule 38.03 gives the Court a discretion in relation to the costs of an injunction obtained before the trial of a proceeding. In addition, r.63 provides:

63A.19 Interlocutory injunction

63A.20 Interlocutory application

Case management

All proceedings in the Court are subject to case management by the Registrar, Associate Judge (formerly Master) and Judges of the Court. Most of the business of the Court is divided amongst the specialist lists discussed below, each of which is in the charge of one or more judges.

Rule 1.15 provides the Court with power to make directions and orders relating to the conduct and hearing of proceedings where the rules do not specifically prescribe..

Like the Magistrates’ Court (see the Step by Step Guide to the Magistrates’ Court in its civil jurisdiction) the County Court has stipulated time standards and requires practitioners to not only comply with them but to inform the client that they apply and of the penalties for default. The Court’s requirements are set out below.

Practice Notes

The Court issues Practice Notes relating to conduct of business in the Court.  

For a list of all available files
The Court’s Practice Notes set out the varying case management procedures in the Court’s Lists. See ‘Lists and Sittings’:

The purpose of the Practice Notes is to explain how matters are conducted in the Court’s specialist Lists and in some instances to explain the procedure at hearings in the particular List, for example in Commercial List and Building Cases Division.

Procedures vary in individual lists. Always refer to the appropriate Practice Note before commencing proceedings. Above all, the notes to Order 34A are compulsory and extensive.

The Practice Note should be the first point of reference for practitioners before commencing proceedings in the Court.

Reference to the Practice Notes and compliance with them will prevent unnecessary applications for enforcement, save time and avoid adverse costs orders.

Where there is default in compliance with directions the Court will list the proceedings for a mention before the Judge in charge of a list or the Practice Court. The purpose of the mention is to allow the defaulting party an opportunity to show cause why the action should not be dismissed or the defence struck out, etc. For standard Directions on mentions hearings refer to Order 34A and the Consolidated Practice Note.

Lists

General Division of the Commercial List

The Judge in Charge of the General Division and the Commercial List is Judge Anderson. When he is not available, Judge Kennedy assumes this role. His Honour allocates hearing dates and allocates some applications for hearing before other Judges. See the Practice Note for the General List

Specialist Lists within the Court

The Court also assigns its business to a number of specialist lists. See Annexure 1: Order 34A.

Proceedings in the Lists are the subject of Practice Notes, dealt with below.

Building Cases Division

Building and engineering disputes are allocated to the Building Cases Division. The Practice Note for the Construction List

The Judge in Charge of the Building Cases Division is Judge Shelton, who has authorised a practice Note for the Division: PNC1 1-2009.

Damages List and Compensation List

This list is divided into six sub-divisions:

1. the General Division
2. the Defamation Division
3. the Medical Division
4. the Applications Division
5. the WorkCover Division, and
6. the Serious Injury Division.

This list is managed by Judge Davis.  Her Honour has published a new Practice Note which supercedes the previous ones: see PNC1 2-2009

Directions Hearings

The following Judges conduct the directions hearings in the lists named:

Medical: Judge Lawson who has authorised a Practice Note for the Division: PNC1 3-2009

Workcover: Judge Bowman See Practice Note PNCI 5-2008.

Damages for Melbourne (and any other lists): Judge Davis
Applications: Judge Holt

Defamation List

Defamation is a highly specialised area of law. Unless you can engage in a meaningful discussion as to how many angels can dance on the head of a pin (as a Defamation practitioner can) you are unlikely to be in a position to run such a matter without counsel’s assistance.

The Defamation List Practice Note

The role of the Court is expressed in Rule 1.14, which says:

“In exercising any power under these Rules, the Court - shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined’

This ethos is sought to be implemented at all stages of proceedings and may, for example, result in early orders for mediation, truncation of directions to prepare matters for hearing, including dispensing with pleadings, or the dispensation with compliance with particular rules in certain circumstances.

See also r. 2.04, which gives the Court discretion to dispense with compliance with the rules, and r. 34.01, which empowers it to give any direction as contemplated in r.1.14 for the conduct of any proceeding which appear convenient (whether or not inconsistent with the rules or any other rules of Court) it thinks conducive to the effective, complete, prompt and economical determination of the proceeding.

Applicable Legislation, Procedures and Forms

Legislation & Procedure

Practice in the County Court is conducted, principally under (amongst other legislation):

Administration and Probate Act 1958
County Court Civil Procedure Rules 2008
County Court Act 1958 (“CCA”)
Accident Compensation Act 1985
Choice of Law (Limitation Periods) Act 1993
Practice Notes (“PN”)
Relationships Act 2008 (formerly Part IX of the Property Law Act 1958)
Transport Accident Act 1986
Workers Compensation Act 1958

Judges, and Registrars

   
The business of the Court is dealt with within a hierarchy.

Judges of the Court have power to hear all matters but many functions are delegated to the  Associate Judge of the Court.

Registrar

The majority of the limited functions and powers of County Court Registrars are set out in the following rules:

27.06 - power to refuse to seal documents if irregular
28.12 - power to reject documents
34A.11 - power to transfer cases between lists
34A.14 - power to exercise powers as directed by Judge
41.01 - power to examine witnesses by order
48.07(3) - power to direct case no longer set down
63A - power to tax costs
63A.21.1 - power to direct payment of costs in proceedings where party guilty of neglect or delay.
63A.22 - power to direct payment of reserved costs
63A.22.1 - power to direct payment of evidence transcript costs
63A.23 - power to investigate costs liability of legal practitioner
63A.36 - power to award costs of taxation
67.02 - power to order persons to attend for examination or production
75.07 - to apply on order to punish contempt
79.02 - power to pay money out of court
79.06 - power to order payment of interest on money for person with a disability

SETTLING IT EARLY

The commentary in the Guide makes more than one reference to the costs of conducting proceedings in the County Court and to the need to keep a close watch on costs from the outset.

The expression “it can all be about costs” is discussed in the commentary on Costs of Going to Court and it is a truth that should not be ignored.

Unlike the Family Court, where costs orders at trial are rare, in the County Court costs generally follow the event. So, if a matter goes to hearing and determination before a judge, there will be a loser who pays not only their own costs but the costs of the other side.

In the County Court the costs of the most ordinary matters that go to trial start at about $30,000 for each party.

Practitioners have a duty to provide their client with costs disclosure and to keep it up to date. They should also enter cost agreements from the start. Changes which may significantly affect costs include the need to brief senior counsel, to engage experts, and to conduct views with or without the Court in attendance.

Alternative Dispute Resolution “ADR”

Practitioners also have a duty to advise the client of the availability of Alternative Dispute Resolution, “ADR”.

ADR has a number of forms: negotiations between solicitors, negotiations between the parties’ counsel, mediation, arbitration and referrals. All of these are discussed at Going to Court.

The most common form of ADR is negotiation between practitioners prior to commencement of proceedings. If a settlement can be negotiated then everyone saves on costs. (Even after commencement of proceedings parties can settle and should consider settlement at all stages of the proceedings).

Parties can and often do negotiate a settlement of a dispute without the necessity of commencing proceedings. A well structured offer is an inducement to settle.

Offers are relevant to the exercise of discretion concerning costs at the conclusion of any proceedings.

The inherent problem with negotiations is that practitioners frequently become emotionally attached to their clients’ arguments. This is a mistake. Likewise personal animosities between opposing legal practitioners should be discarded, in order to let the lawyers speak frankly and without malice about the merits of their respective cases. Even in the most emotionally charged cases, such as testators’ family maintenance cases, off-the-record discussions between the practitioners, at arms’ length, can prove very effective in limiting the issues, expanding mutual understanding and exploring lateral thinking. The enormous saving in cost achieved by settling without the need for costly hearings and documentation will often make up for slightly reduced - but realistic - settlement amounts.

A fact of litigation for the practitioner to bear in mind is that, whatever the client may think or say, and however compelling the evidence may appear, there is no such thing as an unlosable case. Allowance should always be made by the practitioner for the possibility of unforeseen events and technical anomalies.

It must also be remembered that, since the party-party costs awarded in favour of a successful party do not represent the entire costs of the proceeding, both parties will still have to put their hands in their pockets for costs.

Mediation is discussed in detail below.

Arbitration is still much used, but the attendant costs and complexity seldom render the process any cheaper than a trial even when the arbitrator is an expert.

Referrals to experts, not as arbitrators but simply as independent advisers to the parties,  can also sometimes offer speedier and cheaper resolution without trial.

Settlement before proceedings are commenced

If an agreement to settle is reached before proceedings are commenced the parties should enter into Terms of Settlement that provide for payment of the debt or a money amount in respect of claimed damages or even for the completion of rectification or further work in a building case, or perhaps the taking down of an offending tree, together with mutual releases.

A Release, incorporated in a Deed or the Terms of Settlement, is always good practice. It will often be advisable to make the terms conditional upon fulfilment of some act by one or other party. Often, in default of performance, it is also wise to include agreed directions for the disposal of the matter if it is reinstated. It is usual practice for the disposal of the proceeding in the list  to be ‘struck out with a right of reinstatement’.

Mediation

The Court has power to order that civil proceedings be referred to mediation at any time, with or without the consent of the parties- s 47A County Court Act 1958 See also rules about mediations in CCR 1999 rules 34A.21 and 50.07. It is either a compulsory step or ‘strongly encouraged’ in all of the specialist lists.
 
Mediation is normally before a private mediator selected and paid for by the parties. In general the Court will only nominate a mediator if the parties cannot agree on one.

All mediations are conducted upon a without prejudice basis and all of the proceedings are expressly excluded from evidence.

The tendency is to order mediation (if it is not already agreed between the parties) earlier rather than later. If mediation can be conducted before discovery and other interlocutory steps, the costs savings can be enormous.

At mediation any agreement is reduced to orders or an agreement or both. Orders are then made by the Court, including orders disposing of the proceedings.

In the County Court most matters will be ordered to mediation before they are set down for trial. Indeed, the Court will not set matters down without a mediator’s certificate of conclusion of the mediation.

Participating in a mediation

Any party can seek an order for mediation even though it is opposed by another party. If the order is opposed by the other side, in your submissions tell the Court what the issues are, whether of fact or law, whether they are clearly defined in the pleadings, what the state of the evidence is, whether it is a family dispute, whether there is likely to be extensive discovery of documents, whether expert evidence will be called, the likely length of hearing and why it is appropriate to make the order.

Once a mediation order is made the parties will have to agree on the mediator to be employed. This may be any qualified person, but the cost will vary greatly between, say, a retired Supreme Court judge at the top of the scale and a commercial mediator at the other.

As a matter of practice, there is a wide range of mediators available. The Law Institute of Victoria has established a specialist list of mediators and arbitrators, some of whom are involved as mediators full-time. On the whole, solicitors are very satisfactory mediators.

While most members of the bar hold themselves out as mediators, many have no formal training as mediators, and in some cases, their very expertise in certain areas  tends to tempt them to try to inform the parties at the mediation, rather than to foment useful discussion and negotiations.

Practitioners will be well-advised to speak to experienced litigation lawyers before selecting a mediator.

The mediator will speak to the practitioners to arrange the mediation date and venue, what documents are to be read by the mediator, position papers, parties’ authority to settle and any other matters relevant to the mediation. Usually the mediator will require the parties to sign a mediation agreement which sets out the rights of the parties (and the mediator) and protects the confidentiality of the process.

The division of cases into specialist lists in the County Court has led to automatic making of procedural orders, whether by consent - incorporating the parties' requests - or at the motion of the judge in charge of the particular list. Mediation is one of the essential elements of the orders. The parties generally must organise the venue and mediator. As a rule, the mediator is supplied only with the pleadings, and sometimes with (usually useless because they are excessively one-sided) position papers prepared by the parties’ legal representatives.

The mediator is not an adjudicator and parties cannot expect him or her to make a judgment on the likely outcome of the dispute nor to express such a view to a potential loser. A mediator will often point out the difficulties of a particular case but mediators are facilitators, not judges. A mediator will not decide who wins. Therefore it is not productive or cost effective to require the mediator to read the entirety of the documentation in the case. Usually the pleadings and concise position papers are sufficient. Sometimes a mere oral summary is enough.

Ensure that the client has authority to settle, particularly where there are corporations or partners involved. If there is no authority to settle, the mediation will fail and there may be an application to the Court for costs thrown away.

Consent Orders

When the parties settle after proceedings have been commenced, they often enter into consent orders to dispose of the proceedings.

Ensure that the orders are precise as to what the settlement is, including time stipulations for payment of money, and that they contain the necessary mechanical orders for the disposal of the proceedings.

For example, where the defendant is to pay the Plaintiff $125,000 and something in relation to costs, the orders would be:

1. The Defendant is to pay the Plaintiff the sum of $125,000 within 28 days.
2. The Defendant is to pay the Plaintiff the sum of $10,000 in respect of costs within 28 days.
3. Proceeding otherwise dismissed, with a right of reinstatement.
4. The parties have liberty to apply generally.

If the parties agree that one party is to have judgment the consent orders are:

1. Judgment for the Plaintiff in the sum of $125,000.
2. The Defendant to pay to the Plaintiff the sum of $125,000 within 28 days.
3. The Defendant to pay the Plaintiff the sum of $10,000 in respect of costs within 28 days.
4.  Proceeding dismissed with a right of reinstatement.

Consent orders where the parties agree to walk away from each can be:

1. Proceeding dismissed, and
2. No order as to costs.

The parties may agree on terms that require performance by one party of an obligation that is not to be the subject of an order of the Court. The consent orders are then:

1. Proceeding dismissed, with a right of reinstatement.
2. No order as to costs, or;
3. Each party to pay their own costs, and
4. The Court ‘notes the agreement of the parties that the Plaintiff will accept the sum of $100,000 if paid by the Defendant within 28 days of the date of these orders’. 

The agreement may be set out in the consent orders, or in a deed. However, if the party undertaking performance of the obligation does not perform, the client’s only recourse is to bring further proceedings for breach of the agreement because the agreement is not an order of the Court. It is for this reason that the right of reinstatement is retained, to enable the party entitled to the benefit of the agreement to hitch his wagon to the existing proceedings rather than issuing anew.

The preferable course is where the parties have negotiated payment of a lesser sum than that claimed or that work be done to satisfy a claim, it is in the client’s interests to require entry of judgment for the higher sum or the sum claimed in damages in respect of the work with an order that the Plaintiff will accept the lesser sum in full and final satisfaction of the claim if the lesser sum is paid within a specified time:

1. Judgment for the Plaintiff in the sum of $150,000 inclusive of costs.
2. Proceeding dismissed.
3. The Court notes the agreement of the parties that the Plaintiff will accept the sum of $80,000 in full and final satisfaction of the judgment if that sum is paid by the Defendant within 28 days of the date of these orders.

The trouble with this arrangement is that the defendant has a judgement against him for the full amount, on the Court record, even if he pays the agreed amount. It may be prudent in those circumstances to include a provision that the judgement will be vacated on proof of payment.

If there is default in payment, the Plaintiff has judgment for the higher sum which is enforceable without having to commence further proceedings and the Defendant has a real incentive to comply. The judgment is enforceable by issuing a warrant of execution: Order 68, applying for a garnishee summons: Orders 71 & 72 or any other steps that are available in the circumstances.

Court Approval of Settlements

Where the Plaintiff is a person who by reason of injury, disease, senility etc or otherwise and is incapable of managing her or his affairs, the person must have a litigation guardian appointed under r. 15, "Person Under Disability" and any settlement must be approved by the Court r. 15.08. Approval is not automatic and the solicitor or barrister appearing on the approval application should be prepared to place all the relevant material before the Court and answer the Judge’s enquiries as to the form and quantum of the settlement.

The procedure for obtaining approval is as follows:

1.  In general, applications for approval under r. 15.08 will be made to the Associate Judge or Practice Court, without notice to any other party.
2. The litigation guardian may list a matter for approval by contacting the associate to the Judge or Associate Judge.
3. The litigation guardian must file his or her affidavit and an affidavit of the solicitor for the person under the disability not later than 30 days after the compromise, payment of acceptance. The affidavit must not be served: 15.08(2.1).
4. Unless there are exceptional circumstances, the plaintiff and the litigation guardian and the solicitor will be required to attend at the hearing of the application.
5. The affidavit evidence should, where relevant, include the following matters:
   1. Whether the settlement reflects a compromise on liability and if so, copies of any relevant documents;
   2. Up to date medical reports dealing with all relevant medical issues;
   3. A statement by the litigation guardian as to the plaintiff’s current disabilities, if any;
   4. Details of the past out-of-pocket expenses both paid and unpaid;
   5. Details of any other deductions to be made from the settlement e.g. Centrelink;
   6. A statement by the litigation guardian to the effect that the amount allowed for past out-of-pocket expenses in the settlement includes all accounts, both paid and unpaid, of which the litigation guardian is aware having made all relevant enquiries;
   7. An acknowledgement by the litigation guardian that the settlement is final.
   8. Rule 15.08 also requires evidence  as to:
   1. the date of the compromise, payment or acceptance, and
   2. the date of birth of the person under disability

If an application for approval of a compromise on behalf of a person under a disability is either refused or not ready to proceed, the action will be returned for management.  If the action has already been allocated an arbitration or trial date, that arbitration or trial will, unless the Court otherwise orders, proceed.

The test for approval of the compromise appears to be:

‘[T]he question is whether the prospect of getting a greater sum by rejecting the offer is good enough to outweigh significantly the risk of not getting any more.’: Elliott v Diener (1978) 21 ACTR 21.

Guardianship and Administration Act 1986 appointments

It should be noted that the prior appointment of a guardian or administrator under the provisions of the Guardianship and Administration Act 1986 [GAA] may anticipate the need for appointment of a litigation guardian.

Guardians may be appointed for persons with disabilities by the Guardianship List of VCAT under s.22. If the person appointed an enduring guardian under s.35A GAA, the appointment will most likely also be adequate for the purpose of a litigation guardian. Enduring powers of guardianship empower the guardian to exercise the specified powers during disability. If no powers are specified, the guardians may only exercise the powers in s.24 GAA, which are narrowly stated to include issues of residence, work, health care and visitors,

Administrators appointed under s.46 ff GAA normally have the powers in Division 3A which include general care and management of the estate, collection and preservation of property, and ‘all acts and…powers…as effectually and in the same way as the represented person could have done’ s.58B(1)(c). therefore administrators, at first blush, have more appropriate powers to act as litigation guardians.

If no settlement is reached the parties are Going to Court.

GOING TO COURT

Notice of Appearance

Defendants served with a Statement of Claim must enter an appearance: R. 8   within 10 days of service: 8.04, or longer when served out of the jurisdiction.

The rules in relation to subsequent changes in representation by a solicitor are at R. 20

Objection to the Jurisdiction of the Court

If a party does not submit to the jurisdiction of the Court because, for example, a term in a contract contains an exclusive jurisdiction clause for arbitration or determination in another jurisdiction or forum, or the named defendant considers itself to have been wrongly sued because a of a mistake of identity, a party may make an application by summons challenging the jurisdiction and seeking to have the originating process set aside: r7.05, 8.09.

The application may be made without entering an appearance, or after entering a conditional appearance: 8.08 and may seek a stay of the proceedings.

A clear contractual provision providing for resolution of disputes under the agreement in another forum or jurisdiction will generally justify a stay of proceedings.

Parties may enter conditional appearances, as noted above, but the rule provides that they are effective as unconditional appearances: r. 8.08

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: 8.03(1).

Corporations

A corporation may appear by any person authorised by it to act: 8.03(2). But a corporation may not take a step in a proceeding save by a solicitor: 1.17(1).

Persons under legal disability

A person under legal disability (1) may not commence or carry on proceedings except by his or her litigation guardian 15.02(1) and (2), and unless the court orders otherwise, the litigation guardian of a person under legal disability may not commence or carry on proceedings except by a solicitor 15.02(3) If the Litigation Guardian is a solicitor, this rule would be satisfied.

Litigation guardians –Order 15

No formal appointment is required to act as a litigation guardian: but the Court may appoint a litigation guardian of its own motion, such as where a party becomes handicapped during proceedings [15.03(3)] and it may remove or appoint litigation guardians in the interest of the person under a disability: 15.03(4). Except where the litigation guardian has been appointed by the Court, the guardian’s name must not be used unless there is first filed in the office of the Prothonotary:

1. The written consent to be the litigation guardian (Form 24: consent to act as litigation guardian)
2. A certificate signed by the  solicitor for the person under a disability in the proceedings, certifying that:

Note that where a party sues or is sued in  a representative capacity, the originating process must be indorsed with a statement showing that capacity: CCR 5.06.

If no defendant under a disability appears, the plaintiff may apply to the court under 15.03 for the appointment of a litigation guardian for the defendant.

Proceedings against partners and defendants operating under business names

Where a person incurs a liability whilst carrying on business under an unregistered business name proceedings can be commenced that person, as defendant, under that name: r.  17.10, together with 17.02 requiring disclosure of partners' names to 17.09.

For the purposes of the proceedings the unregistered business name is taken to be a sufficient description of that person and any judgment or order arising from any such proceedings may be enforced against that person: r 17.07

R. 17.10 allows a plaintiff to sue a person carrying on business in Victoria ‘in a name or style other than his own’ in that name or style, and treats him as a partner under rules 17.02-17.09. The rule does not differentiate between registered and unregistered business names. This is the corollary to r.17.01, which permits proceedings against partners.

Defendant sued in business name to respond in own name

A defendant sued as a partner under r.17.01 must, within 14 days of service, also disclose in writing the names and residential or business addresses of all persons constituting the firm at the time when the cause of action accrued: R. 17.02(1) and of any changes in the firm since. In default of compliance with subrule (1) the court may order that a defendant’s defence be struck out: r. 17.02(2).

Persons sued as partners may appear under objection and deny that they were partners at any material time, or that they are liable as such: r.17.06. An appearance under objection does not qualify as a conditional appearance under r.8.08.

Joinder of a person as a Plaintiff

A person is not to be joined as a plaintiff in any proceedings except with his or her consent signified in writing ‘or in such other manner as the Court orders’: r.9.07(1).

Joinder of additional parties

The Court has an overriding power to join necessary parties: r.9.06, at any stage of the proceeding.

If it is desired to add an additional defendant, it is usual not to give notice to that proposed defendant. Rather, the application is made to the Court and, if the order for joinder is made, the writ is amended and is then served on the new defendant. If the order for joinder was applied for ex parte, the new defendant may be entitled to apply to set it aside under r.46.08

See also under ‘consolidation’ below.

Death of a party before judgment

R.9.09 provides:

1. Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceedings shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2).
2. Where 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 that the other person be added as a party to the proceeding

If a party dies , and no order is made under r.9.09, the Court may order substitution under r.9.10, or that the proceeding be dismissed unless substitution is made. It may also give judgement under r.49.04.

Litigants in person

The number of litigants in person in the Magistrates’, County and Supreme Courts is increasing, with consequent problems as to how to deal with them in relation to both interlocutory processes and at trial.

The Court attempts to strike a balance between allowing a lay litigant in person some latitude in presenting their case and complying with the rules without providing them with some advantage over legally represented parties.

While the Supreme Court has a practice note on this topic, the County Court does not.

Defending the Claim

The steps involved in defending a claim in the County Court are dictated by the Court’s Case Management procedures.

Case Management in defending the claim

Reference should be made to the Court’s website: www.countycourt.vic.gov.au, especially to the tabs ‘Lists and Sittings’ and Practice and Procedure’ and each of the lists and divisions’ pages.

The business of the County Court is divided amongst a series of interest divisions or lists:
Commercial List
Banking & Finance Division
Building Cases List
Expedited Cases Division
Family Property Division (Family property disputes and Testators’ Family Maintenance)
General Division (Commercial, real or personal property cases)
Damages, which is further divided into:
General Division
Defamation Division
Medical Division
Applications Division
Serious Injury Division
WorkCover Division

Each list in the charge of a particular Judge, who manages not only the interlocutory applications, but may ultimately hear the cases.

Each division or list has web-pages devoted to it on the County Court site, and has standard forms which include:

• practice notes
• first directions hearing orders
• and mediation orders

The parties are encouraged to seek orders ‘on the papers’, also called an ‘administrative mention’, which are consent orders, settled between practitioners, then submitted to the judge by fax for orders to be made without an appearance. This generally avoids the need for an immediate directions hearing. The parties are then left to comply with the orders according to a schedule prescribed by the Judge in charge. If no orders are made on the papers, a directions hearing is fixed.

It can be seen that this process, while convenient to both Court and practitioners, would be rather opaque to litigants in person, and practitioners should be prepared for constant lack of understanding from them. Even addressing the rules as to documentation is extremely hard for laypersons, and judges and solicitors alike must allow them considerable latitude.

Directions hearings are usually fixed quite quickly, and the prevalence of orders ‘on the papers’ has greatly reduced the numbers of these hearings. The judges in charge of the lists are completely familiar with the particular needs of their lists, and the standard forms usually lead to speedy disposal of these applications.

Case management begins when a Statement of Claim is filed in the Registry or a writ containing an indorsement of claim is issued. A request must be made at the time of filing on a standard form to enter the case into one of the lists or divisions. The practice notes, standard orders and other documents can all be accessed at the outset, and the judges expect practitioners to have read and complied with them.

In the General Division, to prepare the matter for hearing and comply with the Commercial List Practice Note the steps will be:

1. Respond to any Letter of Demand (see “Getting the Matter Underway”)
2. Accept service of the Statement of Claim and arrange a conference with the client to take instructions for the Defence and any Counterclaim or set-off.
3. Prepare and serve any request for further and better particulars of the Statement of Claim.
4. After receipt of particulars, file and serve the Defence and consider and respond to the Plaintiff’s proposed timetable for the conduct of the case which will include all necessary steps to ensure that the case will be ready to be referred to mediation prior to being listed for trial.
5. If you do not agree with the Plaintiff’s proposed timetable or want to add additional steps, negotiate changes and request orders on the papers, or if agreement cannot be reached, ask for a directions hearing.
6. Respond to any request for further and better particulars of the counterclaim.
7. Receive and consider any Defence to the counterclaim.
8. In a personal injury matter the Court expects that the parties will also have exchanged medical and other expert reports.
9. The Court expects that the Defendant will have arranged medical examinations and issued subpoenas.

If an administrative mention has not been achieved:

Appear at teh first Directions Hearing -

1. Unless the defendant has requested particulars of the statement of claim and the plaintiff has supplied them before the directions hearing, these are issues to be included in the directions.  Likewise, discovery and interrogatories are steps which are no longer to be taken for granted, and the Judge in Charge will want justification for ordering these.
2. The Judge will fix the matter for trial as a cause or as a jury trial, as appropriate, and will include those matters in the pro forma orders that are relevant, such as mediation and court books. 

Mediation

1. The mediation will be held after completion of the interlocutory proceedings. The mediation is the most important case management activity.
2. If a party has a solicitor, a legal practitioner with full knowledge of the proceedings must represent that party at the mediation.  That legal practitioner must have sufficient instructions to enable the Court to make all appropriate orders and directions.  In the words of the standard mediation procedures guidelines from the Court:
   1. ‘Those persons who have the ultimate responsibility and authority for deciding whether to settle the dispute and the terms of any settlement and the lawyers who have the ultimate responsibility to advise the parties in relation to the dispute and its settlement must attend the Mediation.’
3. It is therefore generally inappropriate for parties to be represented by agents or clerks.  Parties should anticipate that costs orders will be made against them if they are not adequately represented at the pre-trial conference. Practitioners also face criticism by the Court if they do not attend the mediation with proper instructions and after full preparation.
4. At the mediation, the mediator agreed between the parties or appointed by the Court has entire responsibility for the conduct of the mediation.

If the mediation is successful in reaching agreement which settles the dispute, the mediator and the lawyers will collaborate in reducing the agreement to writing for immediate signature by the parties then and there. The Court must be advised in writing of the outcome of the mediation either way.

If settled, once the Court has been advised, an order will be made dismissing the proceeding.

If the mediation does not resolve the dispute, the trial date will stnd, and the trial must proceed.

Discontinuance or Withdrawal of proceedings

Proceedings commenced by writ may be discontinued by a plaintiff under R. 25.02:

• before the close of pleadings
• at any time by leave of the Court or with the consent of all other parties

A defendant may discontinue a counterclaim or withdraw any part of it:

• before the close of pleadings
• at any time by leave of the Court or with the consent of all other parties to the counterclaim

At any time the plaintiff may withdraw a defence to counterclaim or any part of it and a defendant may withdraw his defence or any part of it.

A defendant may discontinue a claim against a third party or withdraw any part of the claim in the third party notice by leave of the Court or with the consent of the third party.

By R. 25.03, proceedings not commenced by writ may be discontinued at any time by leave of the Court or with the consent of all other parties.

Any further proceedings commenced for the same or substantially the same cause of action before the costs on discontinuance are paid may be stayed by order of the court: r 25.07.

Discontinuance is not a defence to a subsequent proceeding for the same or substantially the same cause of action unless the Court provides otherwise by order granting leave to discontinue: r.25.06.

A discontinuance or withdrawal is made by filing a notice of withdrawal stating the extent of the withdrawal: r 25.04. If made by consent, the consent of each party must be indorsed on the discontinuance or withdrawal: r.25.04(2).

Withdrawal of admission

 
Leave of the Court ,or consent of the party for whose benefit an admission was made, is required to withdraw formal admissions: r 25.02(5).

Dismissal of proceedings for want of prosecution

If a plaintiff or defendant does not prosecute the proceedings with due despatch the Court has inherent jurisdiction to order that the proceedings be dismissed or the defence struck out either in whole or in part, or make such other order as the court thinks fit: R.: 24.05.

Additional grounds for dismissal of proceedings

The County Court has a further power of its own motion to make an order dismissing the proceedings if the plaintiff, being entitled under r.48.02 to set the proceeding down for trial, does not do so within 28 days after the time he becomes entitled: r.24.01. Rule 48.02 allows a plaintiff to set proceedings down for trial at any time after the close of pleadings, or 10 days after any date set by the Court. It should be noted that this order has less relevance now that the specialist lists in the Court embody a trial date as a matter of course.

Limitation periods

At the outset ensure that no limitation period has expired which may be relevant to bringing or defending the claim.

Check any relevant legislation, some of which is:

1. Limitation of Actions Act 1958
2. Fair Trading Act 1999 s 71
3. Transport Accidents Act 1986 s.93 etc
4. Relationships Act 2008

If the client requires leave to defend the proceedings because they are out of time (and leave is available), depending upon the proceedings, that order will have to be sought by filing an application to the Judge in charge of the list with an affidavit in support.

Also note the provisions of  r.36.01. Under the section, the Court has wide powers to grant leave to the parties to amend ‘for the purpose of determining the real question in controversy between the parties’, a mistake in the name of a party, to add or subtract a cause of action, or to amend an originating process even after the expiration of any relevant limitation period if ‘it is satisfied that any other party would not, by reason of the order, be prejudiced in the conduct of his claim or defence in a way that could not fairly be met by an adjournment, an award of costs or otherwise’: r.36.01(6).

Requests for further and better particulars

If you require further and better particulars of the Statement of Claim before filing a Defence and you write to the other side requesting particulars, ensure that the letter states: “Please confirm that you will not take any steps to enter default judgment until 14 days after the particulars are provided. If any steps are taken we will rely upon this letter on the issue of costs”.

There is usually no issue that the Plaintiff will allow 14 days to file the defence after the particulars are provided.

Rule 13.11(2) anticipates this situation, but insists on the delivery of a defence before it will make an order for particulars.

Before you file a Defence refer to the Practice Note for the relevant List because there may be special requirements for Defences in the Lists.

It is important to note that many barristers and solicitors make a rule of requesting particulars, even when the need is scant. For this reason, like interrogatories before them, requests for particulars are examined with increasingly critical eye. In consequence, many of the particulars supplied in response are narrow and even uncooperative.

Interest

Sections 58, 59 & 60 of the Supreme Court Act 1986 [SCA] deal in portmanteau fashion with interest which is to be allowed in civil proceedings.

In Victoria, the benchmark for interest to be charged as a penalty is section 2 of the Penalty Interest Rates Act 1983. The rate fixed under this section [the penalty rate] varies from time to time, and is published in the Government Gazette and privately, in particular, in the Law Institute Journal each month. Past rates are also published in the Law Institute Diary in the Quick Reference section

Section 58 SCA requires a court to allow interest on debts or sums certain at a rate not exceeding the penalty rate, or in the case of bills of exchange or promissory notes, the penalty rate plus 2% , from the time when the debt or sum was payable. The higher rate does not apply to bills of exchange or promissory notes if no defence was pleaded.

Section 59 is more specific:
s.59(1) allows damages in the nature of interest in all proceedings for trover  {a cause of action which has not been used in half a century) or trespass concerning goods over and above the value of the goods at the time of conversion.

s.59(2) says that the court must, in proceedings on policies of insurance, unless good cause is shown to the contrary, give damages in the nature of interest over and above the money receivable.

Section 60(1) allows interest on debts and damages at a rate not exceeding the penalty rate.

s.60(2) clarifies the preceding:

(2)    Nothing in this section -
(a)   authorises the granting of interest on interest;
(b)   applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;
(c)    affects the damages recoverable for the dishonour of a negotiable instrument;
(d)    authorises the allowance of interest otherwise than by consent on any sum for which judgment is entered or given by consent;
(e)    applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or
(f)     limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.

s.60(3) further limits the granting of interest on certain kinds of damages including punitive damages, and s.60(4) allows a court to request a jury to specify amounts affected by s.60(3).

Application may be made for interest after judgment: David Leahey (Aust) Pty Ltd v McPherson’s Ltd [1991] 2 VR 367. 

In any damages claim a successful claimant, whether plaintiff or counterclaimant, is entitled to interest at a rate not exceeding the penalty rate. In the statement of claim the Plaintiff claims:

1. Damages,
2. Interest, and
3. Costs.

Pleadings and Particulars

The County Court is a Court of strict pleading. All pleadings must comply with the CCR , especially CCR O. 13.

The material facts of the claim must be pleaded ‘in summary form’ [CCR O 13.029A)], with as much brevity as possible, but containing ‘the necessary particulars’ [CCR O 13.10(1)]. .

Where serious allegations of fraud, misrepresentation, breach of trust, wilful default or undue influence are made, proper particulars must be given of the allegations relied upon: CCR O 13.10(3), which also relates to particulars of any “disorder or disability of the mind, fraudulent intention or other condition of the mind, including knowledge or notice’.

However, giving extensive particulars is no substitute for pleading as briefly as possible the material facts of the claim. If you are in doubt as to how to plead and particularise a claim, brief counsel to settle the pleading for the reasons set out under the heading “Striking out of Pleadings”. In the most straightforward cases, simple and careful drafting by a solicitor is quite sufficient. However in the more complex cases, especially complex agreements and arrangements and those involving breaches of the Trade Practices Act 1974, it will be necessary to brief suitable counsel to draw the pleadings,

In both a Statement of Claim and Defence the following matters must be specifically pleaded: CCR O 13.07(1)

1. Any fact or matter that the party alleges which makes any claim or defence not maintainable;
2. Any matter which, if not specifically pleaded, that might take the opposite party by surprise;
3. Which raises questions of fact not arising out of  the preceding pleading
   
   Pleadings in Defamation are the subject of specific and very technical rules. Defamation is a highly specialist jurisdiction and will usually require counsel to be briefed. See e.g. CCR 40.10.
   
   A very useful introduction to the art of pleading is in Rose’s Pleadings Without Tears in Australia. It is recommended reading.

Striking out of pleadings

If the pleading does not comply with the rules it may be embarrassing and liable to be struck out.

‘Embarrassing’ is a technical term, and has no connexion with the ordinary vernacular meaning. It means ’throwing into doubt or difficulty’ [Oxford English Dictionary - OED].

When served with originating process, carefully consider the facts pleaded as to whether or not the elements of the cause of action are properly pleaded. This is a difficult area but you must take care that the defendant is not trying to defend a claim that is not properly articulated. You can ask for further and better particulars, but if the pleading is still not clear you may have to consider first, writing to the other side and putting the deficiencies to them.

If the pleading is so defective as to require amendment, make your complaint in a letter setting out the defects in the pleading and that it is embarrassing and likely to be struck out.

If the Plaintiff does not amend when requested, you may make an application to the Judge in charge of the List to strike out the pleading

Under r.23.02, a pleading may be struck out wholly or in part if it:

(a)    does not disclose a cause of action or defence;

(b)    is scandalous, frivolous or vexatious;

(c)    may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)    is otherwise an abuse of process of the court.


If partially successful, the Plaintiff will probably be given leave to replead and will suffer a costs order which will include the costs of and occasioned by the amendment including those of the application r.63A.17(2).

Applications under r. 23.02 are often made in tandem with applications under r. 23.01 or r. 23.03.

Amendment of Pleadings

Pursuant to r 36.03 a party may, without leave, amend any pleading served by him once at any time before the close of pleadings but, unless the court otherwise orders, or all other parties consent, may not amend it at any other time.

Also note that a party who amends a pleading or other document without leave must, also pay the costs of and occasioned by the amendment: r 63A.17(1).

Amended pleadings must be appropriately described. A first amendment is an Amended Statement of Claim. A second amendment is a Further or Second Amended Statement of Claim. If there is further amendment it is a Third Amended Statement of Claim and so on. If you get to that point you have a problem with the claim. The essential, as always, is to keep the identity of each document clear.

As to amendment generally see Order 36.

As noted at “Striking out of Pleadings” a plaintiff may, without leave, amend a statement of claim once before the close of pleadings, and at any other time with leave or with the consent of all parties: r.36.03. It is sensible to seek consent by delivering a proposed amended pleading to the other parties and asking them to consent to the amendment. In cases of minor amendments, or amendments which are uncontroversial, that can save the need for an application to the Court.

Parties must plead to amended pleadings within 30 days after service: r.36.06.

Amendments may be made to correct the names of parties: r. 36.01..

An order giving leave to amend a document ceases to have effect:

(a)    At the expiration of the time limited by the order for making the amendment, or

(b)    If no time was limited, 21 days from the date on which the order: r. 36.02.

Amendments may be disallowed. A defendant may consider that amendments made before the close of pleadings do not remedy the defects in the pleading, and may apply for an order , within 21 days after service of the amended pleading, pursuant to r . 36.04, to disallow the amendment wholly or in part.

Mode of Amendment generally

Technique of Amendment

One must file and serve the amended pleading, marking the amended document so that the amendment is clear. Rule 36.05(4) requires that each amendment must be made in such a way as to distinguish it from the original pleading and from any previous amendment.

In former times, this was achieved by using red ink (generally available on typewriters) or by underlining the amendment, then using a double underscore in a second amendment. In these days of colour printers and word processors which can render print in bold and italics with ease, additional methods of distinguishing amendments can be seen. It is to be remembered, however, that colour will only be reproduced by a colour photocopier, and so will be lost in copying on a half-tone copier. Nothing irritates a judge more than being unable to tell documents apart.

 Rule 36.05 requires that an amendment to a document must be made by:

(a)    amending the filed copy of the pleading or filing an amended copy,;

(b)    serving a copy of the amended pleading; and

(c)    the Registrar indorsing the filed copy with the date of amendment, or the filed copy with the dated of filing.

Suing a defendant in a business name

A plaintiff suing a defendant under a business name under r. 17.10 need not conduct the proceedings against the defendant in his or her own name: but the defendant must appear individually: r. 17.04

Addition or Joinder Of Parties

Order 36 does not allow the joinder of new parties. Such an application must be made under r. 9.06, which allows the addition, removal or substitution of parties who are ‘proper or necessary’.

An application to add a person as a plaintiff in a proceeding, which must be made on application to an Associate Judge, supported by affidavit (r. 9.07(2)) requires that person’s consent to be given in writing or as the Court orders: r. 9.07(1).

If leave to add a party is granted, the writ or originating process must be amended within the time specified in the order, otherwise within 10 days: r. 9.11(1).

Entry of Default Judgment

The client may come to you after the Sheriff has attempted to levy execution or the client has been notified by the Registry that default judgment has already been entered. This procedure is only available to the plaintiff where the proceeding was issued by writ: r. 21.01.

A Plaintiff may enter default judgment under Rule 21.01:

(a)    if the defendant has not filed an appearance within the time limited (usually 10 days); or

(b)    if the defendant, having filed an appearance, does not file a defence, also within the time limited (30 days after appearance).


In a liquidated claim, judgment is entered for the amount of the debt plus interest (see SCHEDULE 5 for applicable rates) and costs: r. 21.03.

Where the claim is for damages, interlocutory judgment is entered for the plaintiff for damages to be assessed: r. 21.03((1)(b).. There will then have to be an assessment by an Associate Judge or a judge (which may be ex parte) of damages r.21.03(3)..

In order to enter judgment in default under this Rule, the plaintiff must:

To enter judgement in default of appearance the plaintiff must:
(1)    file a notice requesting a search for an appearance in the Registry;
(2)    file an affidavit of service of the writ;
(3)    file a statement of claim if the indorsement on the writ is not a statement of claim conforming with r. 5.04.

To enter judgement in default of a defence: file an affidavit proving the default. This also applies where the defence is struck out by order: r.21.02(3).

Setting Aside Default Judgment

The Court may set aside default judgment which has been regularly entered, under r. 21.07, (and only refrains from doing so in exceptional cases: (see e.g. Collins Book Depot Pty Ltd v Bretherton [1938] VR 40) where the defendant has:

(a)    A prima facie defence on the merits,

(b)    An explanation for the delay in filing a defence with the time provided by the Rules, and

(c)    It is in the interests of justice to allow the proposed defence to be litigated.

If judgment was regularly entered, the Court will order the Defendant to pay the Plaintiff’s costs of entering default judgment thrown away. If the judgment was irregularly entered, the plaintiff is likely to have costs awarded against him.

Application to set aside default judgment is made by filing an application in the proceeding seeking an order to set aside the default judgment pursuant to r 21.07.

The Application must be supported by an affidavit which annexes a draft defence and in which the deponent sets out the reasons for the failure to file the appearance or a defence within the time limited by the Rules. Merely saying the client has a defence on the merits is insufficient. It must be demonstrated, and the way of doing it is to annex a defence that will be filed if the court exercises its discretion in favour of the client.

Defence

Where the client is served with a Statement of Claim, a Defence, must be filed within 30 days after appearance: r 14.04, unless [1] you require further and better particulars (see above) or [2] you are making an early application for security for costs (see below).

If either [1] or [2]  is the case, ensure you have the plaintiff’s undertaking through their solicitor not to enter default judgment until the issues are resolved.
 
Order 27 sets out the formal requirements for documents filed in the Court.  Note that although the rules prescribe forms for headings of actions, writs, originating motions and third party notices, there is no prescribed form for a statement of claim, defence or other pleading.

The formal requirements for the content of pleadings are contained in Order 13 (Pleadings) which also covers particulars: r. 13.10.
Defences must disclose the grounds upon which the plaintiff’s claim is denied or not admitted

To a count in contract, a plea of “never indebted as alleged” is insufficient as a defence, in that it is potentially embarrassing since it does not throw up any issue to be tried by the Court: Heffernan v Hayes (1899) 25 VLR 156.

Defences of the non-admit variety or those which simply deny assertions in the plaintiff’s pleading without advancing a case of the defendant’s own, or setting out  the real issues in dispute, fall into the same category. Such pleas are likely to be struck out on application by another party and costs orders made in consequence.

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. The form for a counterclaim against a person who is not already a party is Form 10B. 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 any connection with the Plaintiff’s claim.

A Defendant can by his counterclaim join third parties under r. 10.03, where the relief claimed in the counterclaim is related or there is a common question of law of fact, and all rights to relief arise out of the same transaction, or the Court gives leave, as permitted by r. 9.02.

There is no time limited by the rules for service of a counterclaim, because it is in essence a new claim. However, since a party bringing a counterclaim must consolidate it with his defence under r. 10.02(3), and a defence must be filed within 30 days of service of the statement of claim: r 14.04, filing and service of the counterclaim should occur within 30 days after service of the statement of claim.

If more than one Counterclaim is filed the documents must be titled, “First Counterclaim”, “Second Counterclaim” and so in the order in which the Counterclaims are filed.

A counterclaim may have more than one defendant, but ensure that the pleading is clear and precise as to the identity of each, and where they vary, what claims are made against each defendant to the counterclaim.

The Plaintiff and each other defendant to the counterclaim must file a Defence to the Counterclaim within 30 days after service: r.14.07.

Claims for Contribution or Indemnity – Order 11

A Defendant may join all necessary persons who are not already parties by way of counterclaim, if he has claims toward contribution or indemnity or any other relief relating to or connected with the subject of the action, by joining them as third parties to the proceeding under r. 11.01, using Form 11A..

The third party procedure allows all issues to be tried in one set of proceedings to which all interested persons are parties.

The practical result is that the third party will be bound by the result as between the plaintiff and defendant, which may (and hopefully will) preclude the necessity for separate proceedings between the defendant and third party.

The third party procedure is less disruptive and assumed to be more cost-effective.

The time for service of a third party notice is within 30 days after the time limited for service of a defence, and it must be served in the same manner as originating process: r. 11.04.

The time for appearance to a third party notice is the same as for appearance to originating process: usually 10 days: r. 10 days. Likewise, a defence to a third party notice must be filed and served within 30 days of service of the notice: r. 11.09.

Failure to file a defence to a third part y notice wll give the person serving the notice the right to enter judgement as on a statement of claim: r. 11.11.

Reply

A party does not require leave to file a Reply, and if it wishes to do so, must serve it within 30 days after the service of the defence: r.14.05.

A Reply should only be filed when there is a fact or issue asserted in the Defence that the Plaintiff can rebut by pleading further facts, sometimes the effect of a document that is contrary to the matters pleaded in the Defence. Replies are not a restatement of the facts in the Statement of Claim. They are frequently unnecessary. They must not merely join issue: r. 13.13(1). This is because r.13.13(2) implies a joinder of issue  on the pleading last served.

Further pleadings

No further pleadings subsequent to a Reply may be served without leave: r. 14.06.

The Court is loath to allow subsequent pleadings.

Security for Costs

If you have doubts that a corporate plaintiff or a plaintiff resident overseas will be able to satisfy a costs order if your client is successful in the proceedings, you may need to make an application for security for costs. Make the application early in the proceedings. Order 62.

Security for costs is ordered to provide some protection to defendants from prosecution of unsuccessful proceedings by plaintiffs or counterclaimants. However, orders for security for costs are not available against all plaintiffs and are always in the discretion of the court.

The most common instances are where the plaintiff or counterclaimant is a corporation or an individual resident outside Australia.

Despite r 62.02(1)(a) below, it is uncommon to obtain an order for security for costs against an individual Australian resident.

Overseas plaintiffs are subject to the rule. It is the absence of property within the jurisdiction that is the relevant factor. It is a matter of establishing that the overseas plaintiff does not have property within the jurisdiction that is capable of satisfying a costs order. This is done by searches at the Land Registry in Victoria and if necessary at the Land Titles offices of each other state to conclusively establish that there is no real property in Australia.

There are three sources of power in relation to security for costs.

Rule 62.02 provides as follows:

‘62.02 When security for costs may be ordered
(1)     Where—

(a)     the plaintiff is ordinarily resident out of Victoria;

(b)     the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so;

(c)     a proceeding by the plaintiff in another court for the same claim is pending;

(d)     subject to paragraph (2), the address of the plaintiff is not stated or is not stated correctly in the plaintiff's originating process;

(e)     the plaintiff has changed his, her or its address after the commencement of the proceeding in order to avoid the consequences of the proceeding;

(f)     under any Act the Court may require security for costs—

the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.

(2)     The Court shall not require a plaintiff to give security by reason only of paragraph (1)(d) if in failing to state the plaintiff's address or to state the plaintiff's correct address the plaintiff acted innocently and without intention to deceive.’

As to (a), as noted above, this is not usually sufficient.

The Court also has power pursuant to its inherent jurisdiction to order security for costs (which must be exercised by a judge). When exercising its inherent jurisdiction, the court is not limited to the instances given in the rule: Lines v Tana Pty Ltd [1987] VR 641 (FC) at p. 643.

In relation to security for costs sought against a corporate plaintiff, s. 1335 of the Corporations Act 2001 provides, in a provision complementary to the court rules and the court’s inherent jurisdiction:

1. Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. 
2. The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs.

Delay in bringing an application for security for costs will prejudice the client’s position, as security for costs is only ordered in relation to future costs.

It is unlikely that an order will be made in relation to costs already incurred by the defendant if the defendant has delayed in applying: Southern Cross Exploratino NL v Fire & All Risks Insurance Co Ltd [1985] 1 NSWLR 114. The appropriate time to bring the application is before or at the time of filing of the defence. This is particularly so where disputes and subsequent multiple interlocutory applications for provision of particulars, amendment of pleadings and delivery of third party notices will involve the defendant in significant early costs.

Security for costs can be ordered against any plaintiff, including a counterclaimant and an appellant. If the counterclaimant is the real aggressor in the proceedings security may be ordered.

Bringing the Application against a corporate plaintiff/counterclaimant

No application should be made before a number of preparatory steps have been taken, because the grounds for ordering security for costs against a corporation, (that the plaintiff will be unable to satisfy an order for costs in favour of the defendant), must be established by evidence led by the defendant. Until a defendant can produce credible evidence, which will usually be in the possession of the plaintiff, the application will fail.

The first step in an application is to compile a skeleton bill or solicitor’s estimate of what the defendant’s likely future costs in the proceedings will be.

The bill must be a comprehensive estimate of the anticipated work to be done (prepared by a solicitor experienced in litigation who should set out :

• their number of years of experience
• by whom,
• at what rates per hour (or according to which scale of cost) and
• what steps are likely to be taken in defending the proceedings up until, say trial. Each step must be estimated by the number of hours to be spent at the appropriate rates per hour for each person involved and
• an estimate of counsel’s fees (including counsel’s hourly and daily rates),
• expert witnesses and other disbursements to be incurred by the defendant.

Other usual steps are:

(a)    Obtaining a copy of the corporate plaintiff’s last annual return from ASIC (if available), the amount of the paid up capital of the plaintiff and any assets held;

(b)    Carrying out index searches of any real property held by the plaintiff in Victoria and if, necessary, all other states and territories

Security for costs is not a complete indemnity to the defendant. The court orders security after discounting the amount set out in the solicitor’s estimate and only on a party-party basis. The court also orders security in stages, which may be up to completion of discovery, up to setting the matter down for hearing and then the costs of the trial. The court will not order a lump sum to be paid in relation to the totality of the matter.

Once the skeleton bill or solicitor’s estimate is ready, provide it to the other side by way of letter. The letter must also address the steps taken to date, what the plaintiff’s financial position is and the reasons why the defendant takes no comfort that the plaintiff will be able to satisfy a costs order.

The letter will then request that security be provided within, say, 28 days, for a reasonable discounted amount of the total costs. An appropriate claim is for one third to half of the costs in the bill. The letter should also request that the plaintiff provide copies of its financial statements (audited if available) for the last three years.
 
The letter and skeleton bill form the basis of the affidavit filed in support of any subsequent application.

At times a corporate plaintiff will provide security without the need for an application to the court. If a reasonable offer is made and rejected, the rejection is relevant on any subsequent application. It may be appropriate to provide a reasonable level of security to avoid financial disclosure and to minimise costs. Those are commercial decisions to be made after advice to the plaintiff.

If no consent is forthcoming an application will have to be made. The defendant carries the onus of establishing the need for security.

The most effective way of establishing the financial position of a corporation is to serve a Notice to Produce for the financial statements of the company for the last three years plus current books of account and banking records.

There may be opposition to production, but a Notice to Produce has similar force to a subpoena and a plaintiff seeking to resist production must be prepared to prove by affidavit or oral evidence that  production ought not to be compelled: r. 29.10(4). The defendant’s solicitors can then consider the financial position of the plaintiff company to determine whether an application for security is justified.

If it is, the application is made by summons and affidavit in support.

If more than ground of jurisdiction is relied upon, orders should be sought in the summons under each ground. The application should seek an order that the proceedings be stayed until the security is provided, and should seek a further order that in default of provision of security within 28 days (or any other period considered appropriate) the proceeding be dismissed. Costs usually follow the event.

The affidavit in support will have to annex an up-to-date company search of the corporate plaintiff, the letter you have already sent requesting security and any relevant documents evidencing enquiries made as to the company’s financial position.

Security for costs is to be given in the manner, at the time the court directs: r 62.03. Security is paid into court and held until the determination of the proceedings. Security can be provided in cash or by bank guarantee. Real property is only acceptable in exceptional circumstances due to the difficulties imposed on the Registry.

If security is ordered and if the plaintiff fails to comply with an order under the rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed: r. 62.04.

It should not be forgotten that an application for security for costs not only serves to secure payment of costs, but may also be a successful tactic to frustrate the plaintiff’s action. It may be impracticable for the plaintiff to provide the security so ordered, and may therefore result in an indefinite stay of the proceeding.

Interlocutory steps in the proceedings

Interlocutory steps are mini trials conducted before the final hearing, on application by summons and affidavits 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, provision of proper particulars, default in discovery obligations, and compelling answers to interrogatories.

Interlocutory applications increase the costs of proceedings and extend the period the matter takes to be ready for hearing. They are at times necessary and care should be taken in formulating the orders sought and in compiling the evidence in support. They are often technical and vigorously fought in the court.

If the Court has made orders ‘on the papers’, most of these issues will have been dealt with one way or another in those orders. If there has been a first directions hearing, they are also likely to have been anticipated there. It is therefore when the parties have sought to comply with the orders that these issues will arise.

Since the parties may ask for a second directions hearing, and the judge in charge of the relevant list is the person who will want to adjudicate on the matter, it will be a matter of asking the judge’s associate to place the matter back in the list for hearing.

Any interlocutory or other application is to be made on summons unless the Court otherwise orders: Order 46 The correct form is Form 46A. The summons will be returnable in the Practice Court if the case is not in one of the specialist lists or divisions.

Summonses must generally be supported by affidavit and be filed and served upon on each person affected by the application: r 46.05(1) within a reasonable time before the day for hearing named in the summons, and in no case later than 2.00 p.m. on the previous day (or the last day the Registrar’s office was last open).

Affidavits must comply with Order 43, and in interlocutory applications, may ‘contain a statement of fact based on information and belief if the grounds are set out’: r. 43.03(2).

The application must:

(a)    Identify each party or person to whom it is addressed, and state the address of each person who is not a party;

(b)    describe the order sought

(c)    State the date and time when, and the court where, the application is to be made, and

(d)    state the name of the solicitor who issues it.

There is no requirement to specifically claim costs in the motion but it is always good practice to seek the appropriate costs order.

An application can be served on a party’s solicitor or address for service provided in the their Notice of Appearance.

An application need not be personally served if the person on whom it is to be served: ordinary service is sufficient: r. 6.07.

If an application has been served on a party and there is no appearance the Court may hear and dispose of the motion in the absence of the party if satisfied that the summons was duly served: r. 46.07.

Applications not in the specialist lists are generally listed at 9.30 am before the Master in the Practice Court. Applications in the various lists must be listed before one of the judges in charge of those lists. Hearing days vary.

Summary dismissal

A defendant faced with what it considers to be an unsustainable claim by the plaintiff may apply for summary dismissal pursuant to Order 23.

As in the case of a plaintiff seeking summary judgment, the test applied is that the claim must be ‘so objectionable that no amendment to the pleading can cure any defect, and so it is only just that the proceedings be terminated summarily’ [Cook, p.129].

Rule 23.01 provides (in relation only to claims):

(1)    Where a proceeding generally or any claim in a proceeding -

(a.)    does not disclose a  cause of action; orr

(b.)    is scandalous, frivolous or vexatious; or

(c.)    is an abuse of process of the Court -

The court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Rule 23.03 provides:

On application by a defendant who has filed an appearance the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.

The court may receive evidence on the hearing of the application for an order under either r. 23.01 or r. 23.03 by affidavit or, if it thinks fit, orally: r. 23.04(1). The affidavit usually goes only to the question of costs: Cook, p.130.

In considering the application the court will have to be satisfied the plaintiff’s action is absolutely hopeless: Dey v Victorian Ralway Commissioners 1949) 78 CLR 62 at 91 per Dixon J. As noted below at Summary Judgment, the remedy is a drastic one as it prevents the plaintiff from bringing the claim. As Kirby J. said in Lindon v Commonwealth of Australia (Nº2) (1996) 136 ALR 251 at p. 256:

‘the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising case into a successful argument.’

Summary Judgment

Summary judgment is available to a plaintiff in circumstances where the defence filed is not sustainable.
 
The test which is that "the matter must be so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, or be “so manifestly faulty that it does not admit of argument”: see General Steel Industries Inc v Commissioner for Railways (NSW) (1949) 78 CLR 62 at 91. This is a high bar to a plaintiff.

Rule 22.02 provides:

22.02 Application for judgment

(1)     Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against that defendant on the ground that the defendant has no defence to the whole or part of a claim included in the writ or statement of claim, or no defence except as to the amount of a claim.

(2)     Paragraph (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or seduction or to a claim based on an allegation of fraud.

(3)     Where the writ or statement of claim includes a claim within paragraph (2), the plaintiff may apply for judgment in respect of any other claim and continue the proceeding for the first-mentioned claim.

(4)     Except by order of the Court, the plaintiff shall make only one application for judgment under this Order.

The Application must be supported by an affidavit:

22.03 Affidavit in support

(1)     An application for judgment shall be made by summons supported by an affidavit—
(a)     verifying the facts on which the claim or the part of the claim to which the application relates is based;
and
(b)     stating that in the belief of the deponent there is no defence to that claim or part, or no defence except as to the amount claimed.

(2)     Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence Act 1958 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.

(3)     An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.

(4)     The plaintiff shall serve the summons and a copy of the affidavit or affidavits in support and of any exhibit referred to therein on the defendant not less than 14 days before the day for hearing named in the summons.

It may be that the court strikes out part of the claim or the application is unsuccessful. In those circumstances the court will give directions for the further progress of the matter. The precedent application therefore seeks directions in the alternative.

In considering the application the court will have to be satisfied that there is absolutely no triable issue. The remedy is a drastic one which shuts a defendant out from defending the claim. In the words of Herring CJ and Lowe J in Aust. Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 334:

‘…where there is a real case to be investigated either in fact or in law , leave to defend should be given.’

The number of cases in which summary judgment is granted is comparatively few.

Continuation of proceedings following partial judgment

If a party applies for summary judgment and the proceedings are not wholly disposed of by the judgment, the proceedings may be continued as regards any claim or part of a claim not disposed of by the judgment: r. 22.12.

As noted above, the Court may give directions for the further progress of the matter.

Stay of judgment pending determination of counterclaim

If the court gives judgment against a party under rule 22.02 and that party has a counterclaim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the counterclaim: r. 10.07 - but note that this rule does not mention judgment in default, only admission of the claim.

Separate Decision of Questions

The Court may, by order, give any direction for the conduct of the proceeding: r. 34.01.

The Court may make orders for the decision of any question separately from any other question, may state the question or give directions at any time:  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 those circumstances it is desirable to seek a separate determination of the question under r. 47.04. The Court may also make such an order on its own motion

If you are of the view that separate determination is appropriate first write to the other side setting out the reasons and seeking consent. If no consent is forthcoming orders will have to be sought by application with affidavit in support.

This often arises where there is a time limitation defence under the Limitation of Actions Act 1958, or a litigation guardian must be appointed before recovery may be satisfied.

However, the court will not embark upon a separate determination unless:

1. The question to be determined can be formulated by the parties with some precision: Jacobson & Ors v Ross & Anor [1995] 1 VR 337 (CA) by Brooking J at p. 340-341, J.D .Phillips J concurring.
2. The relevant evidence identified; and
3. The practicalities and costs of the exercise are not out of proportion to the issue to be determined.

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 & 9.13  provide:

r 9.12 Consolidation or trial together

(1) Where two or more proceedings are pending in the Court, and—

(a)     some common question of law or fact arises in both or all of them;
(b)     the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or
(c)     for any other reason it is desirable to make an order under this Rule—

the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.

(2) Any order for the trial together of two or more proceedings or for the trial of one immediately after the other shall be subject to the discretion of the trial Judge.

r 9.13 Conduct of proceeding

The Court may give the conduct of the whole or any part of a proceeding to such person as it thinks fit.

If you are of the view that consolidation is appropriate, first write to the other side setting out the reasons and seeking consent. If no consent is forthcoming orders will have to be sought by application and affidavit in support.

Cook states: ‘It is normal for related actions simply to be tried together rather than consolidated: orders for consolidation are usually confined to cases where several actions have been brought which might have been joined in one writ: Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97. (Cook at p. 63).

It is appropriate to seek consolidation where the client is being sued by one plaintiff in a number of proceedings arising out of the same facts and circumstances. One instance is where a de facto relationship ends and a plaintiff not only sues for relief under the Relationships Act 2008 but also claims other entitlements against corporate entities related to the Defendant.

The directions usually sought are that:

1. The proceedings be heard together;
2. Evidence in one be evidence in the other; and
3. Such further or other orders as the court sees fit (The court may have a view on other issues such as discovery or other pre-trial procedures and make appropriate directions in relation to them).

Interrogatories – Order 30

Interrogatories are questions administered to another party that must be answered and verified by affidavit r. 30.04 Neither the interrogatories nor the answer must be in a prescribed form. For an example, see Form 19: proposed interrogatories.

Interrogatories are administered to elicit relevant admissions in the proceedings.

In general in the County Court, interrogatories and discovery are forbidden as a matter of course, unless the Court otherwise orders: r. 34A.17, The following commentary therefore expects that either the case is not in one of the specialist lists, or has been the subject of any order allowing interrogatories.

Furthermore, taking objections to interrogatories has become an art form, so that all but the most carefully crafted interrogatories are consigned to the bin by technical objections. Even the best of drafting can, by omission of a comma or parenthesis, be conveniently misinterpreted as ‘too wide’ etc. The efficacy of interrogatories as a tool for limiting the issues must therefore be doubted.

Interrogatories must not be objectionable because:

1. they do not relate to any question between the party interrogated and the interrogating party;
2. they are unclear or vague or too wide;
3. they are oppressive;
4. they require the party interrogated to express an opinion which he is not qualified to give, or
5. of privilege.

Objection can be taken to any interrogatory in any of these categories: r. 30.07(1)..

In elucidation of the description in category (a), r.30.07(2) provides that that category includes an interrogatory the sole purpose of which is to -

1. impeach the credit of the party interrogated;
2. enable the interrogating party to ascertain whther the he has a claim or defence other that which he has raised in the proceedings;
3. enable the interrogating party to ascertain the evidence by which the party interrogated  intends

to prove his case, including the identity of witnesses.

A party must answer on affidavit  r.30.04. Answer to Interrogatories within 42 days (r. 30.04(b))or the time specified in the orde. The Answer must first set out the question and then the answer.

Failure by a plaintiff to comply with an order to answer interrogatories may result in an order that the proceeding be dismissed or that a defendant’s defence be struck out: r. 24.02.

The procedure on default is to serve a default notice in Form 30A. The form gives the interrogated party 7 days to answer or face an application for dismissal or the claim or striking out of the defence. Such an application must be made on notice, and in fact allows the recalcitrant interrogated party more time in which to comply.

If, however, the matter comes before a judge, the dire consequences may become reality.

A party may tender one or more answers or part of any answer to interrogatories in the proceedings without tendering the others: r. 30.11(1), but the Court may look at the whole of the answers to see if ‘any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part’ and require the whole answer or part to be tendered: r. 30.11(2).

Discovery

Discovery is usually the first step after the close of pleadings. It is a process of identification, listing and production of documents for inspection by the parties to proceedings.  Its purpose is to prevent surprises at trial where documents may be tendered of which a part is unaware.

Just as interrogatories have been abused and made redundant by technical refusal to answer, discovery has become the bane of the litigator’s existence. It is frequently the case that boxes after boxes of documents, computer printouts, computer storage disks, invoices, vouchers, letters and memos are accumulated and exhaustively listed in the expectation that amongst this dross a single document of interest in the proceedings might be found. Affidavits of documents are often of enormous length, and despite this, documents are sometimes so poorly described that their potential importance is hard to discern. The courts have increasingly frowned on this kind of snow job, and have more recently forbidden automatic discovery.

Prompted by these reasons, as with interrogatories, discovery is no longer permitted in the County Court without an order: r. 34A.17.

Discovery is only available of documents relevant to a fact in issue. Under r.29.02, after  the close of pleadings, and subject to the specialist list restrictions, a  party may deliver a notice for discovery. Otherwise, the parties must convince the judge in charge of their list to order discovery. The judges have power to limit discovery to documents or classes of documents: r. 29.05, or to order particular discovery of documents which are or may have been in a party’s possession: r. 29.08.

The rule requires discovery by a party of ‘all documents which are or have been in his possession relating to any questions raised by the pleadings’ r 29.02(1).

Since discovery occurs after the close of pleadings, the questions raised by the pleadings will be clear. You will have to determine at this stage what documents are relevant to the hearing of the claim.

The best method is always to consider the elements of the claims and defences pleaded when drawing up categories of documents.

To prepare the verified list, put the documents into categories such as bank statements or invoices, letters (in date order) etc. Where there are bundles of, say, bank statements, you can discover them in a bundle identified as “Statements of Account number in the name of …..(person)  at [NAME OF BANK] for the period ….. to ……

After the documents are organised, number them by placing a small sticker (small coloured dots are often used) on the top right hand side of the first page of the document or bundle of documents. Write the number of the document or the bundle on the sticker. Then compile the list from the numbered documents. If a document comprises several pages, the number of pages should be recorded in the affidavit in a separate column, and it may be necessary to allocate secondary numbers to those pages, so that a document numbered 46 may comprise three pages numbered 46.a, 46.b and 46.c. this assists the Court in referring to the relevant passages in a document.

Documents not produced may not be admissible at hearing.

Ensure that privileged documents are not produced but are specifically noted in the relevant part of the affidavit.

Ensure that appropriate claims for client legal privilege are made. If confidential information or commercially sensitive information is involved, appropriate restrictions and undertakings should be sought from the inspecting party.

When discovery is ordered parties must serve affidavits verifying lists of documents (Form 29B) and complete any inspection of the other side’s documents within the timetable. The form identifies the categories of documents:

• Schedule 1, Part 1 - relevant documents
• Schedule 1, Part 2 - documents for which privilege is claimed
• Schedule 2 - documents which were, but are no longer in the possession of the deponent or the party represented, stating when they were last in their possession

Note that the form does not give any guide as to the form of the lists in the schedules.

When compiling an affidavit of documents, the following column headings are usually sufficient:

• serial number of the entry, starting at 1 (the affidavit will then show, at the end, the total number of documents discovered)
• date of each document
• number of pages
• type of document (e.g. letter, invoice, bank statement, memo, computer disk, drawing, video recording etc)
• description (giving sufficient detail to enable quick identification, and possibly naming the writer or recipient or both)
• if many documents contain monetary amounts, you could add a column for ‘amount’

If a party’s discovery is in your view inadequate, first write to them and point out the deficiency. If the required documents are not produced, with a supplementary affidavit, within a reasonable time orders can be sought on application and an affidavit will be required. The application will be set down for hearing before a list judge or the Practice Court.

Discovery is an ongoing obligation up to and including trial: r. 29.15. If further relevant documents or things come to a party’s notice they must serve one or more supplementary affidavits of documents and make the further items available for inspection.

In personal injury actions and Workers’ Compensation claims, special reasons are required before discovery will be ordered: r 29.02(4).

The directions may be:

1. The parties to serve categories of documents for discovery by DATE.
2. The parties to serve verified lists of documents by DATE.
3.  The parties to complete inspection by DATE.

Affidavits

After completion of discovery you will have to prepare the evidence in the case. This is often given by affidavit but note that in some common law actions evidence is given orally, e.g. in defamation. Refer to the Practice Notes for the relevant list.

Affidavits are evidence in writing usually ordered by the Court to minimise the time spent at hearing in leading oral evidence.

All of the evidence led in the case, whether it is in written form or given orally must be in admissible form so all affidavits must comply with the rules, in particular Order 8 as to form and Order 43 as to content, and with the Evidence Act 2008 (which is substantially similar to the Commonwealth and New South Wales Evidence Act 1995). . If they do not, objections will be taken to them at the start of the trial and they may be ruled inadmissible in the proceedings, wholly or in part.

It may seem obvious but what is often forgotten when preparing affidavits is that you should go back to the pleadings and consider the matters you have to prove or deny.

If you are in a dispute about a contract, the first thing the Plaintiff will have to prove is the contract. Someone will have to give evidence annexing the document and then go on to give the evidence as to the circumstances of the breach and the loss suffered. Each element of the claim and any defence raised must be the subject of evidence. If it is not the claim or defence will fail.

Order 43 sets out the requirements for affidavits. There is no prescribed  correct form for a general affidavit in the County Court. The LEAP precedent form will ask you questions as to the name of deponent, address and occupation and date of swearing or affirming. Ensure all the requested details are filled in.

Affidavits must be divided into numbered paragraphs, each paragraph, as far as possible, dealing with only one issue: r. 43.01(4). Regrettably, many practitioners ignore this rule, and allow paragraphs to meander aimlessly for whole pages. This should be avoided at all costs, because it makes locating information very difficult, and also renders reading the document a serious chore, which alienates the Court.

The pages of affidavits must be consecutively numbered. It only annoys the Bench if he or she has to search an unnumbered affidavit to find the page or paragraph you are referring to. Judges and Registrars have been known to return affidavits without page numbers to be corrected by an embarrassed practitioner during a hearing.

If the deponent of an affidavit requires any alteration, deletion or addition to the affidavit the change must be initialled by the deponent and the prescribed witness. If it is not the affidavit cannot be used without the leave of the Court: r 43.05.

Each page of an affidavit must be signed at the bottom of the page by the the person before whom the affidavit is made: r 43.01(6), and signed at the end by the deponent: r. 43.01(5).

The person before whom an affidavit is made, such as a barrister or solicitor or Justice of the Peace, that person must also add tin type, by a stamp or in legible writing their name, address and a statement of the capacity in which they have authority to take the affidavit: r. 43.01(7).

Under r. 43.02, affidavits by persons who cannot read cannot be used unless they carry a certificate by the person before whom they are sworn that:
(a)    the affidavit was read in his presence to the deponent;
(b)    the deponent seemed to him perfectly to understand it; and
(c)    the deponent made his signature or mark in his presence.

Any conversations deposed to in an affidavit are always given “in words to the effect” but must be in first person speech, “I said”, “he said”. For example,

“On 1 May 2007 I had a conversation with the defendant in words to the effect:

Me:        “I want to order three dozen widgets”.

Defendant:    “Do you want the large widgets or the small widgets”?

Me:    “I want the large ones and you have to deliver them on Thursday to Broken Hill”.

Defendant:    “Fine, we can do that”.

Annexures and Exhibits

It is forbidden to annex documents to an affidavit: r. 43.06. Instead they are to be exhibits to the affidavit. The form of the certificate identifying an exhibit to an affidavit is Form 43A. An exhibit note identifies the exhibit by letters and numbers. The letters are the initials of the deponent, the numbers are consecutive from 1. The deponent does not sign exhibit notes, but they are signed by the qualified witness, who again adds the stamp or qualification.

The form of the certificate requires not only the usual identifying certificate, but also the addition in the bottom right hand corner of the certificate of a title in at least 20 point font size the distinguishing mark of the exhibit and ‘a brief and specific description of the exhibit’: r. 43.06(3).

Some practitioners make the old-fashioned error of numbering exhibits A, B, C etc. This is unhelpful in the extreme to other parties and to the Court. Meaningful abbreviations of the deponent’s name are preferable. If, say. Jane Monica Smith has to file two affidavits, both with exhibits, one could differentiate between them by using ‘1JMS 1’ and ‘2 JMS 1’. As another method, the whole surname could be used: ‘Smith 1’. It does not take much ingenuity to hit on a simple but logical code.

The certificate is placed upon a separate page which is attached to the first page of the exhibit.

It must state:

“This is exhibit “PLD 1” now produced and shown to Pauline Louise Donne at the time of swearing her affidavit on [date affidavit made].

Signature of witness
…………………………………………………………………………
A current legal practitioner/JP/A Member of the Police Force of or above the rank of Sergeant or for the time being in charge of a police station etc
[Print name of witness and where necessary JP registration number]”
[Print address of witness]

Always make an index of exhibits, giving the exhibit number a short description of the document and its page number and place it at the front of the exhibits. It makes the running of the trial easier.

Exhibits are not filed. However, copies should be served with the affidavit or a request for production may be made: Re Hinchcliffe [1895] 1 Ch 117..

The original exhibits are tendered at hearing.

Filing and Service of Affidavits

Affidavits must be filed if they are to be relied upon: r. 43.09(1). The rules permit electronic filing: r. 43.09(3).

All affidavits must be served on the other parties to the proceedings at their address for service. Where a party is represented service is effected by service on the solicitor.

Affidavits must be served:

1. by the time limited by the rules or by an order of the Court;
2. with a sealed copy of the summons not later than 2 p.m. on the day before an application in respect of which the affidavit is filed: r. 46.05.

Don’t attempt to serve extensive affidavits in the days just before a hearing. The inevitable result will be a request by the other side for an adjournment and a costs order against your client.

Where an affidavit of service is required:

1.    An affidavit of service of a document should clearly identify the document, but need not annex a copy of the document except in the case of originating process: r. 6.17(3).

2.    Rule 6.17 provides that an affidavit of service must state:

(a)    by whom service was effected;

(b)    and the hour of the day, day of the week and date on which it was served;

(c)    the place of service

(d)    the manner of identification of the person served..

See above at Affidavits for the form and content of affidavits.

Expert witnesses

It is important to recall that Order 34A largely governs the use of expert witnesses in the specialist lists of the Court: see Annexure 1. 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 44A.

Rule 34A.19.1 provides that parties are precluded from relying on expert evidence at trial unless they promptly seek directions from the Court in that regard at a directions hearing. The Court will order service of a copy of the expert report on the other party. Expert reports will not be admitted in evidence at the trial, without an order of the Court or consent of the parties, unless a report has been served in this way: r. 34A.19.1(3) see also r. 44.05.

The following comments do not apply to medical and like reports under Order 33: see r 44.02(3).

The Court will give general directions including a:

1. Direction as to the time for service of experts’ reports,
2. Direction that expert evidence may not be adduced on a specified issue,
3. Direction that expert evidence may not be adduced on a specified issue except by leave of the Court,
4. Direction that expert evidence may be adduced on specified issues only,
5. Direction limiting the number of expert witnesses who may be called to give evidence on a specified issue, (although it should be noted that last minute flurries of expert reports are a common occurrence),
6. Direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,
7. Direction providing for the appointment and instruction of a Court-appointed expert in relation to a specified issue,
8. Direction (e.g. under r.44.06) requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue, and to provide a joint report,
9. Any other direction that may assist an expert in the exercise of the expert’s functions,
10. Direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

Expert evidence must be given by exchange of one or more experts’ reports: r 34A.19.1.

 
An expert witness must comply with the Expert Witness Code of Conduct: r 44.01. The Expert Witness Code of Conduct is set out at Form 44A and provides:

EXPERT WITNESS CODE OF CONDUCT

1.      A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.

2.      An expert witness is not an advocate for a party.

3.      Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide—

    (a)     the name and address of the expert;
    (b)     an acknowledgement that the expert has read this code and agrees to be bound by it;
    (c)     the qualifications of the expert to prepare the report;
    (d)     the facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed);
    (e)   
         (i)     the reasons for,
        (ii)     any literature or other materials utilised in support of,
        (iii)     a summary of—
        each such opinion;
    (f)     (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise;
    (g)     any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;
    (h)     a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;
    (i)     any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and
    (j)     whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.

4.     Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause.

5.     If directed to do so by the Court, an expert witness shall—
    (a)     confer with any other expert witness; and
    (b)     provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing.

6.    Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement.

Allocation of a hearing date

Order 34A provides that setting down is only by order of the Court: r. 34A.26. This does away with the need for a certificate of readiness.

The regular directions hearings, and the constant feel of the Court for the pulse of the proceeding, together with the early 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 the matter should be set down, or, in those lists where a trial date is fixed early in the interlocutory stage, whether that date can be adhered to or should be vacated.

The Court will have allocated a putative trial date, as part of the initial directions which, it will be recalled, have probably been made ‘on the papers’ in many cases. 

Standard Directions – Hearings and Mediation

If you thought you’d had all the directions from the Court and complied with them the bad news is - there’s more!

After allocation of the hearing date and prior to hearing the Court may also require the following to be carried out and otherwise noted:

1.    Chronology

• Plaintiff's solicitor is commonly required to prepare a full chronology of relevant events, a copy of which is to be served upon the other party/parties at least 3 clear days prior to the hearing date.
• Service of the chronology on the other parties well in time often leads to refinements being made before trial. The usefulness of a well-drawn chronology cannot be over-emphasised, even though it is not required by the rules.

2.    Medical and Expert Reports

• Remembering that the delivery of expert reports is largely governed by prior directions in the proceeding, and that copies of all of these will have been incorporated into the Court Book, there should be no need to identify any of these documents separately.
• Working copies of all medical reports, the chronology and all other documents which any party proposes to tender should be available for the Trial Judge in the Court Book. In the case of trial by a Judge without a jury, copies of medical reports must be delivered two days before the trial date to Registrar: r. 33.10(3).

3.    Particulars of Special Damages

• Each plaintiff must prepare an up-to-date list giving particulars of her or his special damages. This is to be served upon the other party/parties prior to the hearing date and to be provided to the Trial Judge.

4.    Adjournments

• All cases should be ready to proceed on the hearing date. Adjournments will only be granted in exceptional circumstances, such as death or serious illness of a party. Procedural problems such as unavailability of witnesses are not sufficient. The Court may adjourn on any terms: r.  49.03, but will decide an application according to the justice of the situation: see Cook, p.327 of examples where an adjournment has been granted. Adjournment will almost always be subject to terms as to costs.
• As stated in Smith v Gannawarra Shire Council [2002] VSCA 69 at Para. 35, per Winneke P:

• Any application for an adjournment should be made to the Judge in charge of the list prior to the trial date by way of application with affidavit in support and must be made at the earliest possible time.

Subpoenas to Produce Documents

The County 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.

Subpoenas and Notices to Produce generally 

Subpoenas are issued to third parties pursuant to Rules 42 and 42A. The latter rule is for production to the Registrar, using Form 42AA, the former for the purpose of attending to give evidence, for which the correct form is Form 42A.

Form 42A covers both subpoenas to produce documents and to give evidence. It is a long and detailed form, which explains how the addressee (the term used in the Rule) may comply, and listing the penalties for failure to do so.

Any subpoena must be personally served a reasonable time before the date specified in the subpoena for attendance or production: r. 42.06. Conduct money must also be handed to the addressee at the time of service.

Serve the subpoena promptly and allow an adequate time before the return date for the party to comply. Failure to do so may result in the subpoena being disregarded or set aside. However an addressee must comply with a subpoena if he or she has actual knowledge of the subpoena and its requirements, even if it has not been served, by the last day for service of the subpoena: r. 42.06(3).

There is no necessity to issue subpoenas to parties. The correct procedure before trial is to issue a party with a Notice to Produce, Form 29C pursuant to r 29.09 (which relates to documents in an affidavit of documents) or r. 29.10 (which relates to documents identified in pleadings of miscellaneous affidavits). Respondents to notices to produce under r. 29.10 may take objections to production under r. 29.10(4) on grounds of privilege or lack of possession of the document.

The documents sought in the notice may be produced to the Court on trial (and this is usual), or to a party, or to the Court Registry.

Notices to Produce are not a substitute for discovery. If a party requires discovery directions should be sought at the first return date. A general obligation of discovery is no longer available in most County Court lists as noted above in the discussion of Order 34A. 

An example is when a party pleads the effect of a document and not its terms: “Letter from the Defendant to name about subject dated”. The recipient of the letter may not be a party. The production procedure enables production of the document without the necessity to issue a subpoena.

A pleading might also refer to a thing, for example defective goods. Production of the goods would be sought for inspection by an expert. Any inspection of “things” should be in the first instance by application to the Practice Court of Judge in charge of the list, where appropriate orders to deal with production of the specific thing can be made.  When dealing with production of things a party cannot be compelled to produce say a bank account referred to in an affidavit. The Notice to Produce can only seek documents relating to the bank account.

The obligations imposed by a Notice to Produce are comparable to those imposed by a subpoena.  The Court applies the same considerations in any application to set aside Notices to Produce as it does to subpoenas. failure to comply with a notice to produce may be dealt with as any other breach of the rules, on application by the aggrieved party.

The Court has general power to set aside a subpoena on application pursuant to r 42.04. The application must be made on notice to the issuing party and supported by affidavit. The affidavit will annex the correspondence between the parties in relation to the request for production to which objection is made, and the grounds relied upon to set it aside will be set out.

An application to set aside a Notice to Produce, or an application to enforce provision of documents is brought by way of application pursuant to r. 24.02 (where an order for production has been made) or r.29.07 (where an order for discovery has been made), or r. 29.11 (failure to comply with notice to produce)..

Costs in default of Attendance

Failure to comply with a subpoena is a contempt of Court and punishable accordingly: r. 42.12.

The Court may order any person to attend for the purpose of being examined, or any person or corporation for the production of any document or thing specified: r. 40.12, and if the person or corporation fails to attend in accordance with the order, may, if the order was to give particulars, discovery or answers to interrogatories, dismiss the proceeding: r. 24.02. This is in the nature of dismissal for want of prosecution, and the proceeding may be stayed until the costs are paid: r. 24.03 This applies to counterclaims and third party claims: r. 24.04. The power under these rules is in addition to its inherent power to dismiss for want of prosecution: r. 24.05.

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 list will include annexures and exhibits to affidavits and further relevant documents that may have been discovered or produced on subpoena.

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 compile the list of contents at the start, with the other parties contributing in turn.

One of the consequences of this process is that there are seldom any important documents to be added at a late stage in the proceeding, and the risk of being taken by surprise is greatly reduced. Application to the Judge is necessary to make any significant changes to the list.

Adjournments

As noted above under ‘standard directions’ the Court will only grant adjournment applications where there are very good reasons to do so. 

Legal practitioners must ascertain the availability of the parties and their witnesses before taking a date for trial or arbitration. As also noted above, the need for an order to set down a case for trial means that the parties must be ready to satisfy the Judge’s enquiries before the case will be set down.

An application for adjournment of a trial or arbitration is made by application and supporting affidavit and must be made at the earliest possible opportunity.  The Court may require the party in default to show cause why its statement of claim or cross claim should not be dismissed or its defence struck out.

As a rule, the Court will make costs orders for costs thrown away by reason of the adjournment and may even call on legal practitioners to show cause why they should not pay the costs of an adjournment personally or reimburse their client for those costs.

The Consolidated Practice Note 2002 provides:

When prior to the trial a party wishes to adjourn or reinstate a trial date, that party’s solicitor must file and serve a Form 46A summons with an affidavit in support and pay the appropriate fee. The application will be fixed for determination before the Judge in Charge of the Business and Damages Lists if it is made at least 60 days before the trial.
In case of an application made within 60 days of the trial date, the matter will be fixed for determination in the Practice Court.
Any application for adjournment should be made well before the trial date, except in cases of emergency. If an application for an adjournment is made on the day of the trial itself, it will generally be referred by the Trial Judge to the Judge in Charge of the Business and Damages List for hearing during the course of the same morning. The Trial Judge will then be free to take the next available case, and if the application for adjournment is refused, the case will be referred back to the Judge in Charge of the Reserve List for re-allocation on the same day.

Any adjournment or reinstatement order made will normally include an order that the applicant party should pay a trial hearing fee (or further trial fee) for the new trial date.

The court will also consider on any application for adjournment whether or not the costs of the adjournment or reinstatement, including the costs thrown away in the conduct of the proceeding by reason of the adjournment and any alterations to pleadings made at the time of the adjournment, should be paid by any defaulting party or by the legal representatives of that party.

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 (Form 35A) requiring the other party to admit material facts: r.35.03. or the authenticity of documents: r. 35.05.

The best time to issue the notice is after the matter is set down for hearing.

The procedure is designed to limit the issues in dispute at hearing and to reduce disputes about the admissibility of documents.

It also allows the party in receipt of the notice to make voluntary admissions for the purposes of the hearing by not disputing the notice.

A party disputing any fact: or the authenticity of a document must serve a notice disputing the fact: r. 35.03(2) using Form 35B within the time specified in the notice which is not less than 14 days after service of the notice.

A party who serves a notice disputing facts or documents which are subsequently proven in the proceedings will be liable for the costs of proof: r. 63A.18.

At the conclusion of the notice to admit procedure, your matter should now be ready for hearing, save for notices to produce and subpoenas.

Briefing Counsel

If necessary, brief Counsel to advise and appear at trial.

A demonstration of the use of Precedents

To demonstrate the range of precedents available in the Guide and to illustrate how they are used in a particular matter, one set of precedents is based on a set of facts in a debt recovery that escalates when a counterclaim is brought alleging a course of conduct between the parties and a consequent estoppel issue. The precedents deal with the set of facts from the issue of a letter of demand, issue of proceedings, a defence and counterclaim, mediation and terms of settlement.

The facts:

A dispute arises between two companies, one a supplier, the other a customer holding contracts for a manufactured item which requires the supplier’s product as a component.

There is a late delivery by the supplier, as a consequence the customer refuses to pay the supplier’s tax invoice and asserts that it has suffered loss because one of its customers has cancelled a large order because of failure to deliver on time.

The supplier issues a letter of demand and the defendant’s response raises significant issues later pleaded in the proceedings.

The pleadings disclose that the parties have been trading under the Plaintiff’s standard terms and conditions and written Job Orders issued by the Defendant for a number of years but have also been engaging in a course of conduct whereby an employee of the Defendant telephones to stipulate times for delivery which are not always incorporated in the Job Order.

The Defendant relies upon the course of conduct in a counterclaim, alleging damages arising from inability to satisfy its orders within the stipulated time.

Commercially there is a need to attempt to maintain the trading relationship so the Plaintiff makes a Calderbank offer before commencement of proceedings which is not accepted because there is no offer in relation to the defendant’s loss. The parties will also go to mediation.

The Defendant makes an Offer of Compromise which is ultimately accepted and Consent Orders are made in the proceedings.

Any of the following example precedents can be adapted for use in a range of matters, regardless of the list or division of the Court.

• Example letter of demand  
• Example Response to Letter of demand  
• Example Statement of Claim - Writ   
• Example Request for further and better particulars  
• Example Defence  
• Example counterclaim  
• Example defence to counterclaim  
• Example offer of compromise by the Plaintiff  
• Example offer of compromise by the defendant  
• Letter to client advising on mediation  
• Example ADR Order - referal to mediation
• Example Mediation Position Paper - Plaintiff  
• Example Mediation Position Paper - Defendant  
• Example affidavit of defendant  
• Example consent orders  
• Example Litigation Deed of Release